Exhibit 10.1


 


EXECUTION COPY




 





 





 


CREDIT AGREEMENT


 


dated as of


 


November 15, 2007


 


among


 


SYMMETRY HOLDINGS INC.


NOVAMERICAN STEEL FINCO INC.


632421 N.B. LTD (to become NOVAMERICAN STEEL INC. on
the Effective Date)


The Lenders Party Hereto


CIT BUSINESS CREDIT CANADA INC.,


 


and


 


THE CIT GROUP/BUSINESS CREDIT, INC.

as Syndication Agents


 


JPMORGAN CHASE BANK, N.A.,

as Administrative Agent


 


and


 


JPMORGAN CHASE BANK, N.A., TORONTO BRANCH,

as Canadian Agent


 






 


BANK OF AMERICA, N.A.,


 


THE BANK OF NOVA SCOTIA,


 


and


 


GENERAL ELECTRIC CAPITAL CORPORATION,

as Co-Documentation Agents


 




	
  J.P. MORGAN SECURITIES INC.

  	
   

  	
  CIBC WORLD MARKETS CORP.

  
	
  as Joint Lead Arranger and

  	
   

  	
  as Joint Lead Arranger and

  
	
  Joint Bookrunner

  	
   

  	
  Joint Bookrunner

  








 





[CS&M Ref. No. 6701-732]


 


 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE I

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Definitions

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION
  1.01.

  	
   

  	
  Defined
  Terms

  	
   

  	
  1

  
	
  SECTION
  1.02.

  	
   

  	
  Classification
  of Loans and Borrowings

  	
   

  	
  42

  
	
  SECTION
  1.03.

  	
   

  	
  Terms
  Generally

  	
   

  	
  42

  
	
  SECTION
  1.04.

  	
   

  	
  Accounting
  Terms; GAAP; Pro Forma Calculations

  	
   

  	
  43

  
	
  SECTION
  1.05.

  	
   

  	
  Currency
  Translation

  	
   

  	
  44

  
	
  SECTION
  1.06.

  	
   

  	
  Status of
  Obligations

  	
   

  	
  44

  
	
  SECTION
  1.07.

  	
   

  	
  Effectuation
  of Transfers

  	
   

  	
  45

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE II

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  The Credits

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION
  2.01.

  	
   

  	
  Revolving
  Commitments

  	
   

  	
  45

  
	
  SECTION
  2.02.

  	
   

  	
  Loans and
  Borrowings

  	
   

  	
  45

  
	
  SECTION
  2.03.

  	
   

  	
  Requests for
  Borrowings

  	
   

  	
  46

  
	
  SECTION
  2.04.

  	
   

  	
  Protective
  Advances

  	
   

  	
  47

  
	
  SECTION
  2.05.

  	
   

  	
  Swingline
  Loans

  	
   

  	
  48

  
	
  SECTION
  2.06.

  	
   

  	
  Letters of
  Credit

  	
   

  	
  50

  
	
  SECTION
  2.07.

  	
   

  	
  Canadian
  Bankers’ Acceptances

  	
   

  	
  55

  
	
  SECTION
  2.08.

  	
   

  	
  Funding of
  Borrowings and BA Drawings

  	
   

  	
  59

  
	
  SECTION
  2.09.

  	
   

  	
  Interest
  Elections

  	
   

  	
  60

  
	
  SECTION
  2.10.

  	
   

  	
  Termination
  and Reduction of Revolving Commitments; Increase of Revolving Commitments

  	
   

  	
  62

  
	
  SECTION
  2.11.

  	
   

  	
  Repayment of
  Loans; Evidence of Debt

  	
   

  	
  64

  
	
  SECTION
  2.12.

  	
   

  	
  Prepayment
  of Loans

  	
   

  	
  66

  
	
  SECTION
  2.13.

  	
   

  	
  Fees

  	
   

  	
  67

  
	
  SECTION
  2.14.

  	
   

  	
  Interest

  	
   

  	
  68

  
	
  SECTION
  2.15.

  	
   

  	
  Alternate
  Rate of Interest

  	
   

  	
  70

  
	
  SECTION
  2.16.

  	
   

  	
  Increased
  Costs

  	
   

  	
  70

  
	
  SECTION
  2.17.

  	
   

  	
  Break
  Funding Payments

  	
   

  	
  71

  
	
  SECTION
  2.18.

  	
   

  	
  Taxes

  	
   

  	
  72

  
	
  SECTION
  2.19.

  	
   

  	
  Payments
  Generally; Pro Rata Treatment; Sharing of Set-offs

  	
   

  	
  74

  
	
  SECTION
  2.20.

  	
   

  	
  Mitigation
  Obligations; Replacement of Lenders

  	
   

  	
  76

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE III

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Representations
  and Warranties

  	
   

  	
   

  



 

















 


	
  SECTION
  3.01.

  	
   

  	
  Organization;
  Powers

  	
   

  	
  77

  
	
  SECTION
  3.02.

  	
   

  	
  Authorization;
  Enforceability

  	
   

  	
  77

  
	
  SECTION
  3.03.

  	
   

  	
  Governmental
  Approvals; No Conflicts

  	
   

  	
  77

  
	
  SECTION
  3.04.

  	
   

  	
  Financial
  Condition; No Material Adverse Change

  	
   

  	
  78

  
	
  SECTION
  3.05.

  	
   

  	
  Properties

  	
   

  	
  79

  
	
  SECTION
  3.06.

  	
   

  	
  Litigation
  and Environmental Matters

  	
   

  	
  79

  
	
  SECTION
  3.07.

  	
   

  	
  Compliance
  with Laws and Agreements

  	
   

  	
  79

  
	
  SECTION
  3.08.

  	
   

  	
  Investment
  Company Status

  	
   

  	
  80

  
	
  SECTION
  3.09.

  	
   

  	
  Taxes

  	
   

  	
  80

  
	
  SECTION
  3.10.

  	
   

  	
  ERISA;
  Canadian Benefit and Pension Plans

  	
   

  	
  80

  
	
  SECTION
  3.11.

  	
   

  	
  Disclosure

  	
   

  	
  81

  
	
  SECTION
  3.12.

  	
   

  	
  Subsidiaries
  and Joint Ventures

  	
   

  	
  81

  
	
  SECTION
  3.13.

  	
   

  	
  Insurance

  	
   

  	
  81

  
	
  SECTION
  3.14.

  	
   

  	
  Labor
  Matters

  	
   

  	
  81

  
	
  SECTION
  3.15.

  	
   

  	
  Solvency

  	
   

  	
  82

  
	
  SECTION
  3.16.

  	
   

  	
  Collateral
  Matters

  	
   

  	
  82

  
	
  SECTION
  3.17.

  	
   

  	
  Federal
  Reserve Regulations

  	
   

  	
  83

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE IV

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Conditions

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION
  4.01.

  	
   

  	
  Effective
  Date

  	
   

  	
  84

  
	
  SECTION
  4.02.

  	
   

  	
  Each Credit
  Event

  	
   

  	
  88

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE V

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Affirmative
  Covenants

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION
  5.01.

  	
   

  	
  Financial
  Statements and Other Information

  	
   

  	
  89

  
	
  SECTION
  5.02.

  	
   

  	
  Notices of
  Material Events

  	
   

  	
  92

  
	
  SECTION
  5.03.

  	
   

  	
  Information
  Regarding Collateral

  	
   

  	
  92

  
	
  SECTION
  5.04.

  	
   

  	
  Existence;
  Conduct of Business

  	
   

  	
  93

  
	
  SECTION
  5.05.

  	
   

  	
  Payment of
  Obligations

  	
   

  	
  93

  
	
  SECTION
  5.06.

  	
   

  	
  Maintenance
  of Properties

  	
   

  	
  93

  
	
  SECTION
  5.07.

  	
   

  	
  Insurance

  	
   

  	
  93

  
	
  SECTION
  5.08.

  	
   

  	
  Casualty and
  Condemnation

  	
   

  	
  94

  
	
  SECTION
  5.09.

  	
   

  	
  Books and
  Records; Inspection and Audit Rights

  	
   

  	
  94

  
	
  SECTION
  5.10.

  	
   

  	
  Compliance
  with Laws

  	
   

  	
  95

  
	
  SECTION
  5.11.

  	
   

  	
  Use of
  Proceeds and Letters of Credit

  	
   

  	
  95

  
	
  SECTION
  5.12.

  	
   

  	
  Additional
  Subsidiaries

  	
   

  	
  95

  
	
  SECTION
  5.13.

  	
   

  	
  Further
  Assurances

  	
   

  	
  95

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VI

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Negative
  Covenants

  	
   

  	
   

  



 

















 


	
  SECTION
  6.01.

  	
   

  	
  Indebtedness;
  Certain Equity Securities

  	
   

  	
  96

  
	
  SECTION
  6.02.

  	
   

  	
  Liens

  	
   

  	
  98

  
	
  SECTION
  6.03.

  	
   

  	
  Fundamental
  Changes; Business Activities

  	
   

  	
  101

  
	
  SECTION
  6.04.

  	
   

  	
  Investments,
  Loans, Advances, Guarantees and Acquisitions

  	
   

  	
  102

  
	
  SECTION
  6.05.

  	
   

  	
  Asset Sales

  	
   

  	
  105

  
	
  SECTION
  6.06.

  	
   

  	
  Sale and Leaseback
  Transactions

  	
   

  	
  106

  
	
  SECTION
  6.07.

  	
   

  	
  Hedging
  Agreements

  	
   

  	
  106

  
	
  SECTION
  6.08.

  	
   

  	
  Restricted
  Payments; Certain Payments of Indebtedness

  	
   

  	
  106

  
	
  SECTION
  6.09.

  	
   

  	
  Transactions
  with Affiliates

  	
   

  	
  108

  
	
  SECTION
  6.10.

  	
   

  	
  Restrictive
  Agreements

  	
   

  	
  108

  
	
  SECTION
  6.11.

  	
   

  	
  Amendment of
  Material Documents

  	
   

  	
  109

  
	
  SECTION
  6.12.

  	
   

  	
  Fixed Charge
  Coverage Ratio

  	
   

  	
  109

  
	
  SECTION
  6.13.

  	
   

  	
  Fiscal Year

  	
   

  	
  109

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VII

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Events of
  Default

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE VIII

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  The
  Administrative Agent

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE IX

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Miscellaneous

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION
  9.01.

  	
   

  	
  Notices

  	
   

  	
  116

  
	
  SECTION
  9.02.

  	
   

  	
  Waivers;
  Amendments

  	
   

  	
  117

  
	
  SECTION
  9.03.

  	
   

  	
  Expenses;
  Indemnity; Damage Waiver

  	
   

  	
  119

  
	
  SECTION
  9.04.

  	
   

  	
  Successors
  and Assigns

  	
   

  	
  120

  
	
  SECTION
  9.05.

  	
   

  	
  Survival

  	
   

  	
  123

  
	
  SECTION
  9.06.

  	
   

  	
  Counterparts;
  Integration; Effectiveness

  	
   

  	
  124

  
	
  SECTION
  9.07.

  	
   

  	
  Severability

  	
   

  	
  124

  
	
  SECTION
  9.08.

  	
   

  	
  Right of
  Setoff

  	
   

  	
  124

  
	
  SECTION
  9.09.

  	
   

  	
  Governing
  Law; Jurisdiction; Consent to Service of Process

  	
   

  	
  125

  
	
  SECTION
  9.10.

  	
   

  	
  WAIVER OF
  JURY TRIAL

  	
   

  	
  125

  
	
  SECTION
  9.11.

  	
   

  	
  Headings

  	
   

  	
  126

  
	
  SECTION
  9.12.

  	
   

  	
  Confidentiality

  	
   

  	
  126

  
	
  SECTION
  9.13.

  	
   

  	
  Interest
  Rate Limitation

  	
   

  	
  126

  
	
  SECTION
  9.14.

  	
   

  	
  Release of
  Liens and Guarantees

  	
   

  	
  127

  
	
  SECTION
  9.15.

  	
   

  	
  USA Patriot
  Act Notice

  	
   

  	
  127

  
	
  SECTION
  9.16.

  	
   

  	
  No Fiduciary
  Relationship

  	
   

  	
  127

  
	
  SECTION
  9.17.

  	
   

  	
  Non-Public
  Information

  	
   

  	
  128

  
	
  SECTION 9.18.

  	
   

  	
  Conversion
  of Currencies

  	
   

  	
  128

  
	
  SECTION
  9.19.

  	
   

  	
  Concerning
  the Intercreditor Agreement

  	
   

  	
  128

  



 

















 


SCHEDULES:


 


Schedule 1.01
— Applicable Funding Account


Schedule 2.01
— Revolving Commitments; Applicable Lending Offices


Schedule 2.06A
— Existing Letters of Credit


Schedule 2.06B
— LC Commitments


Schedule 3.05
— Properties and Mortgaged Properties


Schedule 3.12
— Subsidiaries and Joint Ventures


Schedule 3.13
— Insurance


Schedule 6.01
— Existing Indebtedness


Schedule 6.02
— Existing Liens


Schedule 6.04
— Existing Investments


Schedule 6.10
— Existing Restrictions


 


EXHIBITS:


 


	
  Exhibit A

  	
  — Form of
  Assignment and Assumption

  
	
  Exhibit B

  	
  — Form of
  Borrowing Base Certificate

  
	
  Exhibit C-1

  	
  — Form of
  Guarantee and Collateral Agreement

  
	
  Exhibit C-2

  	
  — Form of
  Canadian Guarantee and Collateral Agreement

  
	
  Exhibit D

  	
  — Form of
  Intercreditor Agreement

  
	
  Exhibit E

  	
  — Form of
  Perfection Certificate

  
	
  Exhibit F-1

  	
  — Form of
  Opinion of Kelley Drye & Warren LLP, US counsel for Symmetry and the
  Borrowers

  
	
  Exhibit F-2

  	
  — Form of
  Opinion of Davies Ward Phillips & Vineberg LLP, Canadian counsel for
  Symmetry and the Borrowers

  



 

















 


CREDIT AGREEMENT dated as of November 15,
2007, among SYMMETRY HOLDINGS INC.; NOVAMERICAN STEEL FINCO INC.; 632421 N.B.
LTD (to become NOVAMERICAN STEEL INC. on the Effective Date); the LENDERS party
hereto; CIT BUSINESS CREDIT CANADA INC. and THE CIT GROUP/BUSINESS CREDIT,
INC., as Syndication Agents; JPMORGAN CHASE BANK, N.A., as Administrative
Agent; and JPMORGAN CHASE BANK, N.A., TORONTO BRANCH, as Canadian Agent.


 


Symmetry and
the Borrowers have requested that the Revolving Lenders extend credit to the
Borrowers in the form of Revolving Loans and BAs, the Swingline Lender extend
credit to the Borrowers in the form of Swingline Loans and the Issuing Banks
issue Letters of Credit for the account of the Borrowers, in each case at any
time and from time to time during the Revolving Availability Period such that
the aggregate Revolving Exposures will not exceed at any time (a)
US$125,000,000 to the Canadian Borrower or (b) US$175,000,000 to the Borrowers
in the aggregate. The proceeds of up to US$70,000,000 of Revolving Loans,
together with (i) the proceeds of the Senior Notes, (ii) the Novamerican Cash
Sources and (iii) the Equity Contribution, will be used on the Effective
Date to (A) pay the cash portion of the Acquisition Consideration and (B) pay
the Transaction Costs. Letters of Credit and the proceeds of the Revolving
Loans and Swingline Loans drawn, and BAs accepted and purchased, after the
Effective Date will be used for working capital and other general corporate
purposes of Symmetry and the Subsidiaries, including making Permitted
Acquisitions.


 


The Lenders
are willing to extend such credit to the Borrowers, and the Issuing Banks are
willing to issue Letters of Credit for the account of the Borrowers, on the
terms and subject to the conditions set forth herein. Accordingly, the parties
hereto agree as follows:


 


ARTICLE I


 


Definitions


 


SECTION 1.01. Defined
Terms. As used in this Agreement, the following terms have the meanings
specified below:


 


“ABL
Collateral” has the meaning assigned to such term in the Guarantee and
Collateral Agreement.


 


“ABR”,
when used in reference to any Loan or Borrowing, refers to whether such Loan,
or the Loans comprising such Borrowing, are bearing interest at a rate
determined by reference to the Alternate Base Rate.


 


“Accession
Agreement” has the meaning assigned to such term in Section 2.10(d).


 


SYMMETRY HOLDINGS INC., NOVAMERICAN STEEL FINCO INC.,


632421 N.B. LTD (TO BECOME NOVAMERICAN STEEL INC. ON THE EFFECTIVE
DATE)


CREDIT AGREEMENT


 

















 


“Account”
has the meaning assigned to such term in the New York UCC.


 


“Account
Debtor” means any Person obligated on an Account.


 


“Acquisition”
means, collectively, the acquisition of all of the issued and outstanding
common shares of Novamerican by a wholly-owned Subsidiary of Symmetry pursuant
to a Plan of Arrangement effected pursuant to the Arrangement Agreement and the
Reorganization Transactions.


 


“Acquisition
Consideration” means the cash consideration in an aggregate amount equal to
US$585,200,000 payable by a wholly-owned Subsidiary of Symmetry under the
Acquisition Documents in connection with the Acquisition.


 


“Acquisition
Documents” means the Arrangement Agreement and the other definitive agreements
entered into between the parties thereto and their Affiliates in connection
with the Acquisition, in each case in the form furnished to the Arrangers prior
to the date hereof.


 


“Adjusted
LIBO Rate” means, with respect to any Eurocurrency Borrowing for any
Interest Period, an interest rate per annum (rounded upwards, if necessary, to
the next 1/100 of 1%) equal to (a) the LIBO Rate for such Interest Period
multiplied by (b) the Statutory Reserve Rate.


 


“Administrative
Agent” means JPMorgan Chase Bank, N.A., in its capacity as administrative
agent for the Lenders hereunder, or, as applicable, such Affiliates thereof as
it shall from time to time designate for the purpose of performing its
obligations hereunder in such capacity, including with respect to a Loan or
Borrowing made to, or a BA Drawing drawn by, the Canadian Borrower, JPMorgan
Chase Bank, N.A., Toronto Branch.


 


“Administrative
Questionnaire” means an Administrative Questionnaire in a form supplied by
the Administrative Agent.


 


“Affiliate”
means, with respect to a specified Person, another Person that directly, or
indirectly through one or more intermediaries, Controls or is Controlled by or
is under common Control with the Person specified.


 


“Aggregate
Borrowing Base” means, at any time (a) the sum at such time of the US
Borrowing Base and the Canadian Borrowing Base (after the elimination of any
duplication in Reserves), minus (b) the Availability Block.


 


“Alternate
Base Rate” means, for any day, a rate per annum equal to the greater of
(a) the Prime Rate in effect on such day and (b) the Federal Funds
Effective Rate in effect on such day plus 1/2 of 1%. Any change in the
Alternate Base Rate due to a change in the Prime Rate or the Federal Funds
Effective Rate shall be effective from and including the effective date of such
change in the Prime Rate or the Federal Funds Effective Rate, respectively.


 


2

















 


“Applicable
Funding Account” means, as to each Borrower, the applicable account with
the Administrative Agent specified on Schedule 1.01 hereto, or any other
account with the Administrative Agent (or one of its Affiliates) that shall be
specified in a written notice signed by a Financial Officer of such Borrower
and delivered to and approved by the Administrative Agent (such approval not to
be unreasonably withheld).


 


“Applicable
Lending Office” means, with respect to any Lender, the office(s) of such
Lender (or any Affiliate of such Lender) specified as its “Lending Office(s)”
on Schedule 2.01 or, as to any Person that becomes a Lender after the Effective
Date, in the Assignment and Assumption executed by such Person, or such other
office(s) of such Lender (or an Affiliate of such Lender) as such Lender may
hereafter designate from time to time as its “Lending Office(s)” by notice to
the Borrowers and the Administrative Agent. A Lender may designate different
Lending Offices for Loans to the US Borrower and the Canadian Borrower.


 


“Applicable
Percentage” means, with respect to any Revolving Lender, the percentage of
the total Revolving Commitments represented by such Lender’s Revolving
Commitment. If the Revolving Commitments have terminated or expired, the
Applicable Percentages shall be determined based upon the Revolving Commitments
most recently in effect, giving effect to any assignments.


 


“Applicable
Rate” means, for any day, with respect to any Loan or BA, or with respect
to the commitment fees payable hereunder, as the case may be, the applicable
rate per annum set forth below under the caption “ABR/Canadian Prime Spread”, “Eurocurrency
Spread/BA Stamping Fee” or “Commitment Fee Rate”, as the case may be, based
upon Average Excess Availability for the most recent fiscal quarter of Symmetry
that shall have ended at least 20 days prior to such day; provided that
until the 20th day after the second fiscal quarter end of Symmetry following
the Effective Date, the “Applicable Rate” (a) with respect to any Loan or BA
shall be (i) in the case of the ABR/Canadian Prime Spread, 0.75%, and (ii) in
the case of the Eurocurrency Spread/BA Stamping Fee, 1.75% and (b) with respect
to the commitment fees payable hereunder shall be 0.30% per annum:


 


	
  Average Excess Availability:

  	
   

  	
  ABR/Canadian Prime

  Spread

  	
   

  	
  Eurocurrency

  Spread/BA Stamping

  Fee

  	
   

  	
  Commitment Fee

  Rate

  	
   

  
	
  Category 1

  <US$50,000,000

  	
   

  	
  1.00

  	
  %

  	
  2.00

  	
  %

  	
  0.30

  	
  %

  
	
  Category 2

  >US$50,000,000 and

  <US$100,000,000

  	
   

  	
  0.75

  	
  %

  	
  1.75

  	
  %

  	
  0.30

  	
  %

  
	
  Category 3

  >US$100,000,000 and

  <US$125,000,000

  	
   

  	
  0.50

  	
  %

  	
  1.50

  	
  %

  	
  0.25

  	
  %

  
	
  Category 4

  >US$125,000,000

  	
   

  	
  0.25

  	
  %

  	
  1.25

  	
  %

  	
  0.25

  	
  %

  



 


3

















 


For purposes
of the foregoing, Average Excess Availability for any fiscal quarter of
Symmetry shall be determined by the Administrative Agent. Notwithstanding the
foregoing, the applicable ABR/Canadian Prime Spread, Eurocurrency Spread/BA
Stamping Fee and Commitment Fee Rate shall be determined by reference to
Category 1 (A) for any day on which an Event of Default has occurred and is
continuing or (B) if Symmetry fails to deliver any Borrowing Base Certificate
required to be delivered pursuant to Section 5.01(f), during the period from
the last day on which such Borrowing Base Certificate is permitted to be
delivered in conformity with Section 5.01(f) until such Borrowing Base
Certificate is delivered.


 


“Applicable
Subsidiaries” means (a) in the case of the US Borrower, each subsidiary of
such Borrower that is a US Subsidiary and that has guaranteed and pledged its
assets to secure the Obligations pursuant to the Guarantee and Collateral
Agreement, and (b) in the case of the Canadian Borrower, each subsidiary of
such Borrower that is a Canadian Subsidiary and that has guaranteed and pledged
its assets to secure the Canadian Obligations pursuant to the Collateral
Agreements.


 


“Arrangement
Agreement” means the Arrangement Agreement among Symmetry, 632422 N.B. Ltd.
and Novamerican made June 21, 2007, as amended.


 


“Arrangers”
means J.P. Morgan Securities Inc. and CIBC World Markets Corp.


 


“Assignment
and Assumption” means an assignment and assumption entered into by a Lender
and an assignee (with the consent of any party whose consent is required by
Section 9.04), and accepted by the Administrative Agent, in the form of
Exhibit A or any other form approved by the Administrative Agent.


 


“Attributable
Debt” means, on any date, in respect of any lease entered into by a
Borrower or any other Subsidiary as part of a sale and leaseback transaction
subject to Section 6.06, (a) if such lease is a Capital Lease Obligation,
the capitalized amount thereof that would appear on a balance sheet of such
Borrower or such Subsidiary prepared as of such date in accordance with GAAP
and (b) if such lease is not a Capital Lease Obligation, the capitalized
amount of the remaining lease payments under such lease that would appear on a
balance sheet of such Borrower or such Subsidiary prepared as of such date in
accordance with GAAP if such lease were accounted for as a Capital Lease
Obligation.


 


“Availability
Block” means an amount equal to US$15,000,000.


 


“Available
Basket Amount” means, at any time, (a) US$25,000,000, minus (b) the
aggregate amount of consideration (other than Equity Interests of Symmetry
permitted to be issued hereunder) paid in connection with all acquisitions made
after the date hereof in reliance on clause (n)(ii) of Section 6.04 (including
Indebtedness assumed in connection therewith), minus (c) (i) for
purposes of clause (d) of


 


4

















 


Section 6.04, the
aggregate amount of investments, loans, advances and Guarantees outstanding at
such time in reliance on clause (n)(i) of Section 6.04, (ii) for
purposes of clause (n)(i) of Section 6.04, the aggregate amount of
investments by Loan Parties in, and loans and advances by Loan Parties to, and
Guarantees by Loan Parties of Indebtedness and other obligations of,
Subsidiaries that are not Loan Parties (other than all such investments, loans,
advances and Guarantees existing on the date hereof and set forth on
Schedule 6.04) outstanding at such time in reliance on clause (d) of
Section 6.04 and (iii) for purposes of clause (n)(ii) of
Section 6.04, the aggregate amount of investments, loans, advances and
Guarantees referred to in clauses (i) and (ii) above outstanding at such time. For
purposes of this definition, acquisitions referred to in clause (b) above shall
not be deemed to be investments referred to in clause (c) above.


 


“Average
Excess Availability” means, for any fiscal quarter of Symmetry,
(a) the sum of the Excess Availability at 5:00 p.m., New York City time,
on each Business Day during such fiscal quarter divided by (b) the number of
Business Days in such fiscal quarter.


 


“BA”
means a draft or other bill of exchange, including a depository bill issued in
accordance with the Depository Bills and Notes Act (Canada), denominated in
Canadian Dollars, drawn by the Canadian Borrower and accepted by a Revolving
Lender in accordance with the terms of this Agreement.


 


“BA Drawing”
means BAs accepted and purchased (and any BA Equivalent Loans made in lieu of
such acceptance and purchase) on the same date and as to which a single
Contract Period is in effect, including BA Equivalent Loans made on the same
date and as to which a single Contract Period is in effect.


 


“BA
Equivalent Loan” has the meaning assigned to such term in
Section 2.07(k).


 


“Bankruptcy
Code” means Title 11 of the United States Code entitled “Bankruptcy”.


 


“Benefit
Plan” means any employee benefit, health, welfare, pension, supplemental
pension, deferred compensation, stock, share or other similar incentive
compensation, retirement, post-retirement benefit and post-employment benefit
and long-term incentive plans or arrangements, disability or any other employee
benefit plan, program, arrangement, policy or practice, whether written or
oral, formal or informal, funded or unfunded, registered or unregistered,
insured or self-insured, that, in any of the foregoing cases, are applicable to
present or former employees, directors or officers of, or individuals working
on contract with, Symmetry or any Subsidiary and are currently maintained, administered
or participated in by Symmetry or any Subsidiary, or in respect of which
Symmetry or any Subsidiary has any contribution obligation or other liability
or contingent liability.


 


“Board”
means the Board of Governors of the Federal Reserve System of the United States
of America.


 


5

















 


“Borrower”
or “Borrowers” means, individually or collectively, the US Borrower and
the Canadian Borrower.


 


“Borrowing”
means (a) Loans of the same Type, made, converted or continued on the same date
and, in the case of Eurocurrency Loans, as to which a single Interest Period is
in effect, (b) a Swingline Loan or (c) a Protective Advance.


 


“Borrowing
Base” means, at any time (subject to adjustment as provided in
Section 5.09(b)), an amount determined with respect to a Borrower equal to
the sum of:


 


(a) 90% of an amount equal to (i) Eligible
Accounts of such Borrower and its Applicable Subsidiaries at such time minus
(ii) the sum of the Dilution Reserve related to such Borrower and its
Applicable Subsidiaries and other Reserves related to Accounts of such Borrower
and its Applicable Subsidiaries, plus


 


(b) the lesser of (i) 70% of an amount equal
to (A) Eligible Inventory of such Borrower and its Applicable Subsidiaries,
valued at the lower of cost or market value, determined on a first-in-first-out
basis, at such time, minus (B) Inventory Reserves related to such Borrower and
its Applicable Subsidiaries and (ii) 85% of an amount equal to the Net Orderly
Liquidation Value percentage identified in the most recent inventory appraisal
received by the Administrative Agent in respect of such Borrower’s and its
Applicable Subsidiaries’ Inventory multiplied by such Borrower’s and its
Applicable Subsidiaries’ Inventory, valued at the lower of cost or market
value, determined on a first-in-first-out basis, at such time, minus


 


(c) without duplication of any deductions
made pursuant to the preceding clauses of this definition, other Reserves
related to such Borrower and its Applicable Subsidiaries.


 


The
Administrative Agent may, in its Permitted Discretion, reduce the advance rates
set forth above, adjust Reserves or reduce one or more of the other elements
used in computing the Borrowing Base with respect to any Borrower, with any
such changes to be effective three days after delivery of notice thereof to the
Borrowers and the Lenders. The Borrowing Base with respect to any Borrower and
the Aggregate Borrowing Base at any time shall be determined by reference to
the most recent Borrowing Base Certificate delivered to the Administrative
Agent pursuant to Section 5.01(f). The Borrowing Base of the US Borrower is
referred to herein as the “US Borrowing Base”; and the Borrowing Base of
the Canadian Borrower is referred to herein as the “Canadian Borrowing Base”.


 


“Borrowing
Base Certificate” means a certificate in the form of Exhibit B (with such
changes thereto as may be required by the Administrative Agent from time to
time to reflect the components of and reserves against the US Borrowing Base or
the Canadian Borrowing Base as provided for hereunder), together with all
attachments contemplated thereby, signed and certified as accurate and complete
by a Financial Officer of Symmetry.


 


6

















 


“Borrowing
Minimum” means (a) in the case of a Revolving Borrowing denominated in US
Dollars, US$5,000,000, (b) in the case of a Swingline Borrowing denominated in
US Dollars, US$500,000, (c) in the case of a BA or a Revolving Borrowing
denominated in Canadian Dollars, Cdn.$5,000,000 and (d) in the case of a
Swingline Borrowing denominated in Canadian Dollars, Cdn.$500,000.


 


“Borrowing
Multiple” means (a) in the case of a Revolving Borrowing denominated in US
Dollars, US$100,000, (b) in the case of a Swingline Borrowing denominated in US
Dollars, US$100,000, (c) in the case of a BA or a Revolving Borrowing
denominated in Canadian Dollars, Cdn.$100,000 and (d) in the case of a
Swingline Borrowing denominated in Canadian Dollars, Cdn.$100,000.


 


“Borrowing
Request” means a request by a Borrower for a Borrowing in accordance with
Section 2.03.


 


“Business
Day” means any day that is not a Saturday, Sunday or other day on which
commercial banks in New York City are authorized or required by law to remain
closed; provided that, (a) when used in connection with a Eurocurrency
Loan, the term “Business Day” shall also exclude any day on which banks are not
open for dealings in dollar deposits in the London interbank market, and (b)
when used in connection with a Loan, a BA or a Letter of Credit issued for the
account of the Canadian Borrower, the term “Business Day” shall also exclude
any day on which banks are not open for business in Toronto.


 


“Canadian
Agent” means JPMorgan Chase Bank, N.A., Toronto Branch, acting by
designation as Administrative Agent with respect to Loans or Borrowings made
to, or BA Drawings drawn by, the Canadian Borrower.


 


“Canadian
Benefit Plans” means all material employee benefit plans maintained or
contributed to by Symmetry or any Subsidiary that are not Canadian Pension
Plans, including, without limitation, all profit sharing, savings,
post-retirement, supplemental retirement, retiring allowance, severance,
pension, deferred compensation, welfare, bonus, incentive compensation, phantom
stock, legal services and supplementary unemployment benefit plans or
arrangements and all life, health, dental and disability plans and arrangements
in which employees or former employees of Symmetry or its Subsidiaries employed
in Canada participate or are eligible to participate.


 


“Canadian
Borrower” means 632421 N.B. Ltd (to become Novamerican Steel Inc., a
Canadian corporation, formed by amalgamation with Novamerican on the Effective
Date as part of the Reorganization Transactions).


 


“Canadian
Borrower Revolving Exposure” means, with respect to any Lender at any time,
the sum of (a) the US Dollar Equivalents of the outstanding principal amount of
such Lender’s Revolving Loans to the Canadian Borrower and BAs, (b) that
portion of such Lender’s LC Exposure attributable to Letters of Credit issued
for the account of the Canadian Borrower and (c) that portion of such Lender’s
Swingline Exposure attributable to Swingline Loans made to the Canadian
Borrower.


 


7

















 


“Canadian
Borrower Sublimit” means US$125,000,000, as such amount may be increased
pursuant to Section 2.10(d).


 


“Canadian
Borrowing Base” has the meaning assigned to such term in the definition of “Borrowing
Base”.


 


“Canadian
Collateral Documents” means (a) the Canadian Guarantee and Collateral
Agreement among the Canadian Borrower, the other Canadian Loan Parties and the
Administrative Agent, substantially in the form of Exhibit C-2, and (b) in
the case of any Canadian Loan Party having assets located in the Province of Quebec,
any hypothecs and related bonds, debentures and pledges, in form and substance
reasonably satisfactory to the Administrative Agent, granting a Lien on the
assets of the Canadian Loan Parties to secure the Canadian Obligations.


 


“Canadian
Dollars” or “Cdn.$” means the lawful money of Canada.


 


“Canadian
Loan Party” means any Loan Party that is not a US Loan Party.


 


“Canadian
Obligations” has the meaning assigned to such term in the Guarantee and
Collateral Agreement.


 


“Canadian
Pension Event” means (a) the occurrence of a Termination Event with respect
to a Canadian Pension Plan; (b) the failure by Symmetry or any Subsidiary to
make a required contribution to a Canadian Pension Plan, which results in a
deemed trust or lien arising pursuant to the PBA against the assets of Symmetry
or any Subsidiary; (c) the occurrence of any event or condition which
might reasonably constitute grounds under the PBA for the appointment of a
third party to administer a Canadian Pension Plan; (d) the failure to fund
all Canadian Pension Plans as required by applicable law; (e) the failure to
make on a timely basis all required contributions (including employee
contributions made by authorized payroll deductions or other withholdings)
required to the appropriate funding agency in accordance with all applicable
laws and the terms of each Canadian Pension Plan of each Borrower and each
Subsidiary; (f) the violation of any provision of the terms of any Canadian
Pension Plan or applicable pension benefit laws; or (g) the merger of any
Canadian Pension Plan with another pension plan or the transfer of assets and
liabilities from or to any Canadian Pension Plan to any other Canadian or
non-Canadian pension plan, other than in connection with the termination of
employment of members of a Canadian Pension Plan in the ordinary course.


 


“Canadian
Pension Plan” means a Benefit Plan that is a “registered pension plan” as
defined in the ITA, or any other pension, supplemental pension or retirement
savings plan which is applicable to Symmetry or any Subsidiary for its
employees or former employees in Canada, whether or not registered.


 


“Canadian
Prime”, when used in reference to any Loan or Borrowing, refers to whether
such Loan, or the Loans comprising such Borrowing, are bearing interest at a
rate determined by reference to the Canadian Prime Rate.


 


8

















 


“Canadian
Prime Rate” means, for any day, the rate of interest per annum (rounded
upwards, if necessary, to the next 1/100 of 1%) equal to the greater of (a) the
interest rate per annum publicly announced from time to time by the
Administrative Agent as its reference rate in effect on such day at its
principal office in Toronto for determining interest rates applicable to
commercial loans denominated in Canadian Dollars and made by it in Canada (each
change in such reference rate being effective from and including the date such
change is publicly announced as being effective) and (b) the interest rate per
annum equal to the sum of (i) the CDOR Rate on such day (or, if such rate is
not so reported on the Reuters Screen CDOR Page, the average of the rate quotes
for bankers’ acceptances denominated in Canadian Dollars with a one month term
received by the Administrative Agent at approximately 10:00 a.m., Toronto time,
on such day (or, if such day is not a Business Day, on the next preceding
Business Day) from the Schedule I Reference Lenders) and (ii) 0.50% per annum.


 


“Canadian Resident” means, at any time, a Person that, at such
time, (a) is not a non-resident of Canada for the purposes of the ITA or (b) is
an “authorized foreign bank” as defined in subsection 248(1) of the ITA.


 


“Canadian
Subsidiary” means any Subsidiary that is organized under the laws of Canada
or any Province thereof.


 


“Capital
Expenditures” means, for any period, (a) the additions to property, plant
and equipment and other capital expenditures of Symmetry and its consolidated
Subsidiaries that are (or should be) set forth in a consolidated statement of
cash flows of Symmetry for such period prepared in accordance with GAAP and (b)
that portion of principal payments on Capital Lease Obligations made by
Symmetry and its consolidated Subsidiaries during such period that are
attributable to additions to property, plant and equipment that have not
otherwise been reflected on the consolidated statement of cash flows as
additions to property, plant and equipment.


 


“Capital
Lease Obligations” of any Person means the obligations of such Person to
pay rent or other amounts under any lease of (or other arrangement conveying
the right to use) real or personal property, or a combination thereof, which
obligations are required to be classified and accounted for as capital leases
on a balance sheet of such Person under GAAP, and the amount of such obligations
shall be the capitalized amount thereof determined in accordance with GAAP.


 


“Cash
Dominion Period” has the meaning assigned to such term in the Guarantee and
Collateral Agreement.


 


“CDOR Rate”
means, on any date, an interest rate per annum equal to the stated average
discount rate applicable to bankers’ acceptances denominated in Canadian
Dollars with a term of 30 days (for purposes of the definition of “Canadian
Prime Rate”) or with a term equal to the Contract Period of the relevant BAs
(for purposes of the definition of “Discount Rate”) appearing on the Reuters
Screen CDOR Page (or on any successor or substitute page of such Screen, or any
successor to or substitute for such Screen, providing rate quotations
comparable to those currently provided on such page of


 


9

















 


such Screen, as determined by
the Administrative Agent from time to time) at approximately 10:00 a.m.,
Toronto time, on such date (or, if such date is not a Business Day, on the next
preceding Business Day).


 


“CFC”
means (a) each Person that is a “controlled foreign person” for purposes of the
Code and (b) each Subsidiary of each such controlled foreign person.


 


“Change in
Control” means (a) the acquisition of ownership, directly or indirectly,
beneficially or of record, by any Person or group (within the meaning of the
Securities Exchange Act of 1934 and the rules of the Securities and Exchange
Commission thereunder as in effect on the date hereof), of Equity Interests
representing more than 35% of either the aggregate ordinary voting power or the
aggregate equity value represented by the issued and outstanding Equity
Interests in Symmetry; (b) occupation of a majority of the seats (other
than vacant seats) on the board of directors of Symmetry by Persons who were
neither (i) nominated by the board of directors of Symmetry (or the nominating
committee of such board) nor (ii) appointed by directors so nominated; (c) the
acquisition of direct or indirect Control of Symmetry by any Person or group;
(d) the acquisition of ownership, directly or indirectly, beneficially or of
record, by any Person other than Symmetry of any Equity Interest in Novamerican
Parent; (e) the acquisition of ownership, directly or indirectly, beneficially
or of record, by any Person other than Novamerican Parent of any Equity
Interest in the US Borrower; (f) the acquisition of ownership, directly or
indirectly, beneficially or of record, by any Person other than the US Borrower
of any Equity Interest in the Canadian Borrower; or (g) the occurrence of a “Change
of Control” or similar event, however denominated, as defined in the Senior
Notes Documents (so long as any Senior Notes shall be outstanding) or any other
instrument or agreement evidencing or governing Material Indebtedness.


 


“Change in
Law” means (a) the adoption of any law, rule or regulation after the date
of this Agreement, (b) any change in any law, rule or regulation or in the
interpretation or application thereof by any Governmental Authority after the
date of this Agreement or (c) compliance by any Lender or Issuing Bank (or, for
purposes of Section 2.16(b), by any lending office of such Lender or
Issuing Bank or by such Lender’s or such Issuing Bank’s holding company, if
any) with any request, guideline or directive (whether or not having the force
of law) of any Governmental Authority made or issued after the date of this
Agreement.


 


“Code”
means the Internal Revenue Code of 1986, as amended from time to time.


 


“Collateral”
means any and all assets and properties of Symmetry and the Subsidiaries that
are required to be subject to Liens securing any of the Loan Documents
Obligations, including all “Collateral” as defined in any Collateral Agreement.


 


“Collateral
Access Agreement” has the meaning assigned to such term in the Guarantee
and Collateral Agreement.


 


10

















 


“Collateral
Agreements” means (a) the Guarantee and Collateral Agreement and
(b) the Canadian Collateral Documents; provided that, when used in
reference to a US Loan Party, the term “Collateral Agreement” shall mean the
Guarantee and Collateral Agreement.


 


“Collateral
and Guarantee Requirement” means, at any time, the requirement that:


 


(a) the Administrative Agent shall have
received from Symmetry, each Borrower and each other Loan Party either (i)
counterparts of the Collateral Agreements and of the Intercreditor Agreement,
duly executed and delivered on behalf of such Loan Party, or (ii) in the case
of any Person that becomes a Loan Party after the Effective Date, instruments
in the form or forms specified in the Collateral Agreement and the
Intercreditor Agreement under which such Loan Party becomes a party to the
applicable Collateral Agreement and the Intercreditor Agreement, duly executed
and delivered on behalf of such Loan Party, provided, however,
that a Canadian Loan Party (other than the Canadian Borrower) shall not be
required to execute the Intercreditor Agreement unless such Canadian Loan Party
is an obligor in respect of the Senior Notes;


 


(b) all Equity Interests in any Subsidiary
owned by or on behalf of any US Loan Party shall have been pledged pursuant to,
and to the extent required by, the Guarantee and Collateral Agreement and, in
the case of Equity Interests in any Foreign Subsidiary, if requested by the
Administrative Agent, a Foreign Pledge Agreement, and the Administrative Agent
(or the Non-ABL Collateral Senior Agent, as its bailee for purposes of
perfection) shall have received certificates or other instruments representing
all such Equity Interests, together with undated stock powers or other
instruments of transfer with respect thereto endorsed in blank;


 


(c) all Indebtedness of Symmetry, each
Borrower and each other Subsidiary that is owing to any US Loan Party shall be
evidenced by a promissory note and shall have been pledged pursuant to the
Collateral Agreements and the Administrative Agent (or the Non-ABL Collateral
Senior Agent, as its bailee for purposes of perfection) shall have received all
such promissory notes, together with undated instruments of transfer with
respect thereto endorsed in blank;


 


(d) all documents and instruments, including
Uniform Commercial Code or other personal property security registry financing
statements, required by law or reasonably requested by the Administrative Agent
to be filed, registered or recorded to create the Liens intended to be created
by the Security Documents and perfect such Liens to the extent required by, and
with the priority required by, the Security Documents, shall have been filed,
registered or recorded or delivered to the Administrative Agent for filing,
registration or recording;


 


(e) the Administrative Agent shall have
received (i) counterparts of a Mortgage with respect to each Mortgaged Property
duly executed and delivered


 


11

















 


by the record
owner of such Mortgaged Property, (ii) a policy or policies of title insurance
issued by a nationally recognized title insurance company insuring the Lien of
each such Mortgage as a valid first Lien on the Mortgaged Property described
therein, free of any other Liens except as expressly permitted by
Section 6.02, together with such endorsements, coinsurance and reinsurance
as the Administrative Agent may reasonably request, and (iii) such surveys,
abstracts, appraisals, legal opinions and other documents as the Administrative
Agent may reasonably request with respect to any such Mortgage or Mortgaged
Property; and


 


(g) each Loan Party shall have obtained all
consents and approvals required to be obtained by it in connection with the
execution and delivery of all Security Documents to which it is a party, the
performance of its obligations thereunder and the granting by it of the Liens
thereunder.


 


Notwithstanding
the foregoing, any Subsidiary Party formed or acquired after the Effective Date
shall not be required to comply with the foregoing requirements prior to the
time specified in Section 5.12 or, in connection with any Permitted
Acquisition, the time specified in the definition of such term. The foregoing
definition shall not require the creation or perfection of pledges of or
security interests in, or the obtaining of title insurance, legal opinions or
other deliverables with respect to, particular assets of the Loan Parties, or
the provision of Guarantees by any Subsidiary, if and for so long as the
Administrative Agent, in consultation with the Borrowers, determines that the
cost of creating or perfecting such pledges or security interests in such
assets or providing such Guarantees (taking into account any adverse tax
consequences to each Borrower and its Affiliates (including the imposition of
withholding or other material taxes)) or obtaining title insurance, legal
opinions or other deliverables in respect of such assets shall be excessive in
view of the benefits to be obtained by the Lenders therefrom. The
Administrative Agent may grant extensions of time for the creation and
perfection of security interests in or the obtaining of title insurance, legal
opinions or other deliverables with respect to particular assets or the
provision of any Guarantee by any Subsidiary (including extensions beyond the
Effective Date or in connection with assets acquired, or Subsidiaries formed or
acquired, after the Effective Date) where it determines that such action cannot
be accomplished without undue effort or expense by the time or times at which
it would otherwise be required to be accomplished by this Agreement or the
Security Documents.


 


“Consolidated
Cash Interest Expense” means, for any period, the excess of (a) the sum of
(i) the interest expense (including imputed interest expense in respect of
Capital Lease Obligations) of Symmetry and the Subsidiaries for such period,
determined on a consolidated basis in accordance with GAAP, (ii) any interest
accrued during such period in respect of Indebtedness of Symmetry or any
Subsidiary that is required to be capitalized rather than included in
consolidated interest expense for such period in accordance with GAAP, plus
(iii) any cash payments made during such period in respect of obligations
referred to in clause (b)(iii) below that were amortized or accrued in a
previous period, minus (b) the sum of (i) interest income of Symmetry
and the Subsidiaries for such period, determined on a consolidated basis in
accordance with


 


12

















 


GAAP, (ii) to the extent
included in such consolidated interest expense for such period, non-cash
amounts attributable to amortization of financing costs paid in a previous
period, plus (iii) to the extent included in such consolidated interest
expense for such period, non-cash amounts attributable to amortization of debt
discounts or accrued interest payable in kind for such period.


 


“Consolidated
EBITDA” means, for any period, Consolidated Net Income for such period plus
(a) without duplication and to the extent deducted in determining such
Consolidated Net Income, the sum of (i) consolidated interest expense for such
period, (ii) consolidated income tax expense for such period, (iii) all amounts
attributable to depreciation and amortization (excluding amortization expense
attributable to a prepaid item that was paid in cash in a prior period) for
such period, (iv) any noncash charges (excluding any such noncash charge to the
extent that it represents an accrual of or reserve for cash expenditures in any
future period) for such period, (v) any noncash losses attributable to asset
dispositions (other than dispositions of inventory or other assets in the
ordinary course of business) for such period and (vi) fees and expenses for
such period relating to the Transactions, provided that the aggregate
amount thereof for all periods shall not exceed US$15,000,000, and minus
(b) without duplication and to the extent included in determining such
Consolidated Net Income, (i) any noncash items of income (other than accruals
of revenue in the ordinary course of business) for such period and (ii) any
gains attributable to asset dispositions (other than dispositions of inventory
or other assets in the ordinary course of business) for such period, all
determined on a consolidated basis in accordance with GAAP. Notwithstanding the
foregoing, Consolidated EBITDA for the quarters ended December 31, 2006,
March 31, 2007, June 30, 2007 and September 30, 2007 shall be US$24,316,000,
US$11,042,000, US$17,052,000 and US$15,023,000, respectively. For the purposes
of calculating Consolidated EBITDA for any period, if during such period
Symmetry or any Subsidiary shall have made a Material Disposition or a Material
Acquisition, Consolidated EBITDA for such period shall be calculated after
giving pro forma effect thereto in accordance with Section 1.04.


 


“Consolidated
Fixed Charges” means, for any period, the sum of, without duplication, (a)
Consolidated Cash Interest Expense for such period, (b) the aggregate amount of
scheduled principal payments made during such period in respect of Long-Term
Indebtedness of Symmetry and the Subsidiaries (other than payments made by
Symmetry or any Subsidiary to Symmetry or a Subsidiary), (c) the aggregate
amount of principal payments (other than scheduled principal payments) made
during such period in respect of Long-Term Indebtedness of Symmetry and the
Subsidiaries (other than payments made as part of a refinancing of any Long-Term
Indebtedness with other Long-Term Indebtedness), to the extent that such
payments reduced any scheduled principal payments that would have become due
within one year after the date of the applicable payment, (d) the aggregate
amount of principal payments on Capital Lease Obligations and Indebtedness of
the type described in Section 6.01(a)(vi) made by Symmetry and the
Subsidiaries during such period, (e) Capital Expenditures for such period
(except to the extent attributable to the incurrence of Capital Lease
Obligations or otherwise financed by incurring Long-Term Indebtedness), (f) the
aggregate amount of Taxes paid in cash by Symmetry and the Subsidiaries during
such period and (g) Restricted Payments made by


 


13

















 


Symmetry and the Subsidiaries
during such period (other than (i) the Effective Date Conversion Rights
Payment, (ii) the Effective Date Special Dividend Payment, (iii) Restricted
Payments made to Symmetry or a Subsidiary, (iv) Restricted Payments paid or
made solely in additional Equity Interests (other than Disqualified Equity
Interests) otherwise permitted hereunder and (v) Restricted Payments paid or
made in reliance on clause (iii) or (iv) of Section 6.08(a)).
Notwithstanding the foregoing, Consolidated Fixed Charges for the quarters
ended December 31, 2006, March 31, 2007, June 30, 2007 and September 30, 2007
shall be US$28,472,000, US$10,896,000, US$15,344,000 and US$14,034,000,
respectively. For the purposes of calculating Consolidated Fixed Charges for
any period, if during such period Symmetry or any Subsidiary shall have made a
Material Disposition or a Material Acquisition, Consolidated Fixed Charges
(including the Consolidated Cash Interest Expense constituting a part thereof)
for such period shall be calculated after giving pro forma effect thereto in
accordance with Section 1.04.


 


“Consolidated
Net Income” means, for any period, the net income or loss of Symmetry and
the Subsidiaries for such period, determined on a consolidated basis in
accordance with GAAP; provided that there shall be excluded the income
of any Person (other than Symmetry) that is not a wholly-owned Subsidiary,
except to the extent of the amount of dividends or other distributions actually
paid to Symmetry or any of the Subsidiaries during such period.


 


“Contract
Period” means, with respect to any BA, the period commencing on the date
such BA is issued, accepted and purchased and ending on the date that is 30,
60, 90 or 180 days thereafter, as the Canadian Borrower may elect; provided
that if such Contract Period would end on a day other than a Business Day, such
Contract Period shall be extended to the next succeeding Business Day.


 


“Control”
means the possession, directly or indirectly, of the power to direct or cause
the direction of the management or policies, or the dismissal or appointment of
the management, of a Person, whether through the ability to exercise voting
power, by contract or otherwise. “Controlling” and “Controlled”
have meanings correlative thereto.


 


“Default”
means any event or condition that constitutes an Event of Default or that upon
notice, lapse of time or both would become an Event of Default.


 


“Deposit
Account Control Agreement” has the meaning assigned to such term in the
Guarantee and Collateral Agreement.


 


“Dilution
Factors” means, without duplication, with respect to any period, the
aggregate amount of all deductions, credit memos, returns, adjustments,
allowances, bad debt write-offs and other non-cash credits recorded to reduce
accounts receivable in a manner consistent with current and historical
accounting practices of the Borrowers.


 


“Dilution
Ratio” means, at any date, the amount (expressed as a percentage) equal to
(a) the aggregate amount of the applicable Dilution Factors for the


 


14

















 


twelve most recently ended
fiscal months divided by (b) total gross sales for the twelve most recently
ended fiscal months. The Dilution Ratio in effect at any time shall be
determined by the Administrative Agent, in its Permitted Discretion.


 


“Dilution
Reserve” means, at any date, the applicable Dilution Ratio multiplied by
the Eligible Accounts on such date.


 


“Discount
Proceeds” means, with respect to any BA, an amount (rounded upward, if
necessary, to the nearest Cdn.$.01) calculated by multiplying (a) the face
amount of such BA by (b) the quotient obtained by dividing (i) one by (ii) the
sum of (A) one and (B) the product of (x) the Discount Rate (expressed as
a decimal) applicable to such BA and (y) a fraction of which the numerator is
the number of days in the Contract Period applicable to such BA and the
denominator is 365 (366 in the case of a Contract Period ending in a leap
year), with such quotient being rounded upward or downward to the fifth decimal
place and .000005 being rounded upward.


 


“Discount
Rate” means, with respect to a BA being accepted and purchased on any day,
(a) for a Lender that is a Schedule I Lender, (i) the CDOR Rate applicable to
such BA or (ii) if the discount rate for a particular Contract Period is not
quoted on the Reuters Screen CDOR Page, the arithmetic average (as determined
by the Administrative Agent) of the percentage discount rates (expressed as a
decimal and rounded upward, if necessary, to the nearest 1/100 of 1%) quoted to
the Administrative Agent by the Schedule I Reference Lenders as the percentage
discount rate at which each such bank would, in accordance with its normal
practices, at approximately 10:00 a.m., Toronto time, on such day, be prepared
to purchase bankers’ acceptances accepted by such bank having a face amount and
term comparable to the face amount and Contract Period of such BA and (b) for a
Lender that is a Non-Schedule I Lender, the lesser of (i) the CDOR Rate
applicable to such BA referred to in clause (a) above as if such Non-Schedule I
Lender were a Schedule I Lender plus 0.10% per annum and (ii) the arithmetic
average (as determined by the Administrative Agent) of the percentage discount
rates (expressed as a decimal and rounded upward, if necessary, to the nearest
1/100 of 1%) quoted to the Administrative Agent by the Non-Schedule I Reference
Lenders as the percentage discount rate at which each such bank would, in
accordance with its normal practices, at approximately 10:00 a.m., Toronto time,
on such day, be prepared to purchase bankers’ acceptances accepted by such bank
having a face amount and term comparable to the face amount and Contract Period
of such BA.


 


“Disqualified
Equity Interest” means, with respect to any Person, any Equity Interest in
such Person that, by its terms (or by the terms of any security into which it
is convertible or for which it is exchangeable, either mandatorily or at the
option of the holder thereof) or upon the happening of any event or condition:


 


(a) matures or is mandatorily redeemable
(other than solely for Equity Interests in such Person that do not constitute
Disqualified Equity Interests and cash in lieu of fractional shares of such
Equity Interests), whether pursuant to a sinking fund obligation or otherwise;


 


15

















 


(b) is convertible or exchangeable at
the option of the holder thereof for Indebtedness or Equity Interests (other
than solely for Equity Interests in such Person that do not constitute
Disqualified Equity Interest and cash in lieu of fractional shares of such
Equity Interests); or


 


(c) is redeemable (other than solely for
Equity Interests in such Person that do not constitute Disqualified Equity
Interest and cash in lieu of fractional shares of such Equity Interests) or is
required to be repurchased by such Person or any of its Affiliates, in whole or
in part, at the option of the holder thereof;


 


in each case,
on or prior to the date that is six months after the Revolving Maturity Date; provided,
however, that an Equity Interest that would not constitute a
Disqualified Equity Interest but for terms thereof giving holders thereof the
right to require such Person to redeem or purchase such Equity Interest upon
the occurrence of an “asset sale” or a “change of control” shall not constitute
a Disqualified Equity Interest if any such requirement becomes operative only
after repayment in full of all the Loans and all other Loan Documents
Obligations that are accrued and payable, the cancellation or expiration of all
Letters of Credit and the termination of the Revolving Commitments.


 


“Document”
has the meaning assigned to such term in the New York UCC.


 


“Effective
Date” means the date on which the conditions specified in Section 4.01
are satisfied (or waived in accordance with Section 9.02).


 


“Effective
Date Asset Sale” means the sale by certain subsidiaries of Novamerican of
the aircraft and real estate assets identified in the Arrangement Agreement, on
the terms and conditions consistent with those set forth in the Arrangement
Agreement and reasonably satisfactory to the Arrangers, for aggregate cash
consideration of not less than US$15,000,000.


 


“Effective
Date Conversion Rights Payment” means the payment by Symmetry to its public
stockholders that affirmatively voted against the Acquisition required to be
made by Symmetry under its amended and restated certificate of incorporation
upon the exercise by such stockholders of their right to convert their shares
of common stock of Symmetry into cash, in an aggregate amount of approximately
US$30,100,000.


 


“Effective
Date Sale Leaseback” means a transaction to be consummated on the Effective
Date pursuant to which the Canadian Borrower will enter into a sale leaseback
transaction in respect of its headquarters and certain plant assets identified
in the Arrangement Agreement, on terms and conditions consistent with those set
forth in the Arrangement Agreement and reasonably satisfactory to the
Arrangers, for aggregate cash consideration of not less than US$11,000,000.


 


“Effective
Date Special Dividend” means the special dividend paid by each of
Novamerican and the Qualifying Holdcos (as defined in the Arrangement


 


16

















 


Agreement) on the Effective
Date to holders of its common shares in an aggregate amount not to exceed the
amount set forth in the Arrangement Agreement.


 


“Eligible
Accounts” means, with respect to any Person, each Account of such Person
that, at the time of creation and at all times thereafter, is not ineligible
for inclusion in the calculation of the Borrowing Base pursuant to any of
clauses (a) through (x) below. Without limiting the Administrative Agent’s
discretion provided herein, Eligible Accounts shall not include any Account:


 


(a) which is not subject to a first priority
perfected security interest in favor of the Administrative Agent;


 


(b) which is subject to any Lien other than
(i) a Lien in favor of the Administrative Agent and (ii) a Permitted
Encumbrance which does not have priority over the Lien in favor of the
Administrative Agent;


 


(c) with respect to which the scheduled due
date is more than 90 days after the original invoice date, or which is unpaid
more than 60 days after the original due date, or which has been written off
the books of such Person or otherwise designated as uncollectible (in
determining the aggregate amount due from an Account Debtor that is unpaid
hereunder there shall be excluded the amount of any net credit balances
relating to Accounts owing by such Account Debtor which are unpaid more than 90
days from the date of invoice or more than 60 days from the due date);


 


(d) which is owing by an Account Debtor for
which more than 50% of the Accounts owing by such Account Debtor and its
Affiliates are ineligible under paragraph (c) above;


 


(e) (i) which is owing by an Account
Debtor whose securities are rated BBB or better by S&P or Baa3 or better by
Moody’s to the extent the aggregate amount of Eligible Accounts owing by such
Account Debtor and its Affiliates to (A) a Borrower and its Applicable
Subsidiaries, taken as a whole, exceeds 20% of the aggregate amount of Eligible
Accounts thereof or (B) the Borrowers and their Applicable Subsidiaries, taken
as a whole, exceeds 20% of the aggregate amount of Eligible Accounts thereof, or
(ii) which are owing by an Account Debtor whose securities are not rated BBB or
better by S&P or Baa3 or better by Moody’s (including any Account Debtor
none of the securities of which are rated by such rating agencies) to the
extent the aggregate amount of Accounts owing by such Account Debtor and its
Affiliates to (A) a Borrower and its Applicable Subsidiaries, taken as a whole,
exceeds 10% of the aggregate amount of Eligible Accounts thereof or (B) the
Borrowers and their Applicable Subsidiaries, taken as a whole, exceeds 10% of
the aggregate amount of Eligible Accounts thereof;


 


(f) with respect to which any covenant,
representation, or warranty contained in this Agreement or in the Collateral
Agreements has been breached or is not true in any material respect;


 


17

















 


(g) which (i) does not arise from the sale of
goods or performance of services in the ordinary course of business, (ii) is
not evidenced by an invoice or other documentation satisfactory to the Administrative
Agent and which has been sent to the Account Debtor, (iii) represents a
progress billing, (iv) is contingent upon such Person’s or its Affiliates’
completion of any further performance, (v) represents a sale on a
bill-and-hold, guaranteed sale, sale-and-return, sale on approval, consignment,
cash-on-delivery or any other repurchase or return basis,  (vi) relates to payments of interest or (vii)
has been invoiced more than once;


 


(h) with respect to which any check or other
instrument of payment has been returned uncollected for any reason;


 


(i) which is owed by an Account Debtor which
has (i) applied for, suffered, or consented to the appointment of any receiver,
interim receiver, receiver-manager, custodian, trustee, or liquidator of its
assets, (ii) had possession of all or a material part of its property taken by
any receiver, interim receiver, receiver-manager, custodian, trustee or
liquidator, (iii) filed, or had filed against it, any request or petition for
liquidation, reorganization, arrangement, adjustment of debts, adjudication as
bankrupt, winding-up, or voluntary or involuntary case under any state,
provincial, territorial or federal bankruptcy laws (other than post-petition
accounts payable of an Account Debtor that is a debtor-in-possession under the
Bankruptcy Code and reasonably acceptable to the Administrative Agent in its
Permitted Discretion), (iv) admitted in writing its inability, or is generally
unable to, pay its debts as they become due, (v) become insolvent, or (vi) ceased
operation of its business;


 


(j) which is owed by any Account Debtor which
has sold all or substantially all its assets (unless such Account has been
assumed by a Person that shall have acquired such assets and otherwise
satisfies the requirements set forth in this definition);


 


(k) which is owed by an Account Debtor which
(i) does not maintain its chief executive office in the United States or Canada
or (ii) is not organized under applicable law of the United States, any state
of the United States, Canada, or any province of Canada, unless, in either
case, such Account is backed by a Letter of Credit acceptable to the
Administrative Agent and which has been assigned to and is directly drawable by
the Administrative Agent;


 


(l) which is owed in any currency other than
US Dollars or Canadian Dollars;


 


(m) which is owed by (i) the government (or
any department, agency, public corporation, or instrumentality thereof) of any
country other than the United States or Canada, unless such Account is backed
by a Letter of Credit acceptable to the Administrative Agent and which has been
assigned to and is directly drawable by the Administrative Agent, or (ii) the
government of the United States or Canada, or any department, agency, public
corporation, or


 


18

















 


instrumentality thereof, unless the Federal
Assignment of Claims Act of 1940, as amended, or the Financial Administration
Act (Canada), as amended, as applicable, and any other steps necessary to
perfect the Lien of the Administrative Agent in such Account have been complied
with to the Administrative Agent’s satisfaction;


 


(n) which is owed by any Affiliate, employee,
officer, director or agent of any Loan Party;


 


(o) which, for any Account Debtor, exceeds a
credit limit determined by the Administrative Agent, to the extent of such
excess;


 


(p) which is owed by an Account Debtor or any
Affiliate of such Account Debtor to which any Loan Party is indebted, but only
to the extent of such indebtedness, or which is subject to any security,
deposit, progress payment, retainage or other similar advance made by or for
the benefit of an Account Debtor, in each case to the extent thereof;


 


(q) which is subject to any counterclaim,
deduction, defense, setoff or dispute;


 


(r) which is evidenced by any promissory
note, chattel paper, or instrument;


 


(s) which is owed by an Account Debtor
located in any jurisdiction which requires filing of a “Notice of Business
Activities Report” or other similar report in order to permit such Person to
seek judicial enforcement in such jurisdiction of payment of such Account,
unless such Person has filed such report or qualified to do business in such
jurisdiction;


 


(t) with respect to which such Person has
made any agreement with the Account Debtor for any reduction thereof (to the
extent of such reduction), other than discounts and adjustments given in the
ordinary course of business, or any Account which was partially paid and such
Person created a new receivable for the unpaid portion of such Account;


 


(u) which does not comply in all material
respects with the requirements of all applicable laws and regulations, whether
Federal, state, provincial, territorial or local, including without limitation
the Federal Consumer Credit Protection Act, the Federal Truth in Lending Act
and Regulation Z of the Board;


 


(v) which is for goods that have been sold
under a purchase order or pursuant to the terms of a contract or other
agreement or understanding (written or oral) that indicates or purports to
indicate that any Person other than such Person has or has had an ownership
interest in such goods, or which indicates any party other than such Person as
payee or remittance party;


 


(w) which was created on cash on delivery
terms; or


 


19

















 


(x) which the Administrative Agent determines
may not be paid by reason of the Account Debtor’s inability to pay or which the
Administrative Agent otherwise determines, in its Permitted Discretion, is
unacceptable for any reason whatsoever.


 


In determining
the amount of an Eligible Account, the face amount of an Account may, in the
Administrative Agent’s Permitted Discretion, be reduced by, without
duplication, to the extent not reflected in such face amount, (i) the amount of
all accrued and actual discounts, claims, credits or credits pending,
promotional program allowances, price adjustments, finance charges or other
allowances (including any amount that such Person may be obligated to rebate to
an Account Debtor pursuant to the terms of any agreement or understanding
(written or oral)) and (ii) the aggregate amount of all cash received in
respect of such Account but not yet applied by such Person to reduce the amount
of such Account. Standards of eligibility may be made more restrictive from
time to time solely by the Administrative Agent in the exercise of its
Permitted Discretion, with any such changes to be effective three days after
delivery of notice thereof to the Borrowers and the Lenders.


 


“Eligible
Inventory” means, with respect to any Person, all Inventory of such Person
that, at the time of purchase and at all times thereafter, was not ineligible
for inclusion in the calculation of the Borrowing Base pursuant to any of
clauses (a) through (q) below. Without limiting the Administrative Agent’s
discretion provided herein, Eligible Inventory shall not include any Inventory:


 


(a) which is not subject to a first priority
perfected security interest in favor of the Administrative Agent;


 


(b) which is subject to any Lien other than (i)
Liens in favor of the Administrative Agent and (ii) Permitted Encumbrances
which do not have priority over the Lien in favor of the Administrative Agent;


 


(c) which is, in the Administrative Agent’s
opinion, slow moving, obsolete, unmerchantable, defective, used, unfit for
sale, not salable at prices approximating at least the cost of such Inventory
in the ordinary course of business or unacceptable due to age, type, category
and/or quantity;


 


(d) with respect to which any covenant,
representation, or warranty contained in this Agreement or the Collateral
Agreements has been breached or is not true in any material respect or which
does not conform to all standards imposed by any Governmental Authority;


 


(e) in which any Person other than such
Person shall (i) have any direct or indirect ownership, interest or title to
such Inventory or (ii) be indicated on any purchase order or invoice with
respect to such Inventory as having or purporting to have an interest therein;


 


(f) which constitutes spare or replacement
parts, subassemblies, packaging and shipping material, manufacturing supplies,
samples, prototypes, displays or


 


20

















 


display items,
bill-and-hold goods, goods that are returned or marked for return, repossessed
goods, defective or damaged goods, goods held on consignment, or goods which
are not of a type held for sale in the ordinary course of business;


 


(g) which is not located in the United States
or Canada or is in transit with a common carrier from vendors and suppliers; provided
that in-transit Inventory purchased under Letters of Credit hereunder shall be
deemed Eligible Inventory, subject to a 20% reserve for duty and freight, if
(i) a Loan Party has sole title to such Inventory, (ii) a Loan Party has
possession or control over title documents relating to such Inventory and the
Administrative Agent is named as the consignee of such title documents, (iii)
the Inventory is fully insured, (iv) the Inventory is not commingled with
Inventory of any other third party, and (v) the Inventory would not be deemed
ineligible pursuant to any other provision of this definition;


 


(h) which is located in any location leased
by such Person or its Affiliates unless (i) the lessor (and its mortgagee, if
any) has delivered to the Administrative Agent a Collateral Access Agreement or
(ii) a Reserve for rent, charges, and other amounts due or to become due with
respect to such facility has been established by the Administrative Agent in
its Permitted Discretion;


 


(i) which is located in any third party
warehouse or is in the possession of a bailee or is being processed offsite at
a third party location or outside processor and, in any such case, is not
evidenced by a Document, unless (i) such warehouseman or bailee or the owner of
such third party location or such outside processor has delivered to the
Administrative Agent a Collateral Access Agreement and such other documentation
as the Administrative Agent may require or (ii) an appropriate Reserve has been
established by the Administrative Agent in its Permitted Discretion;


 


(k) which is a discontinued product or
component thereof and is not immediately usable in a continuing product;


 


(l) which is the subject of a consignment by
such Person as consignor;


 


(m) which contains or bears any intellectual
property rights licensed to such Person unless the Administrative Agent is
satisfied that it may sell or otherwise dispose of such Inventory without (i)
infringing the rights of such licensor, (ii) violating any contract with such
licensor, or (iii) incurring any liability with respect to payment of royalties
other than royalties incurred pursuant to sale of such Inventory under the
current licensing agreement;


 


(o) which is not reflected in a current
perpetual inventory report of such Person;


 


(p) for which reclamation rights have been
asserted by the seller; or


 


21

















 


(q) which the Administrative Agent otherwise
determines, in its Permitted Discretion, is unacceptable for any reason
whatsoever.


 


Standards of
eligibility may be made more restrictive from time to time solely by the
Administrative Agent in the exercise of its Permitted Discretion, with any such
changes to be effective three days after delivery of notice thereof to the
Borrowers and the Lenders.


 


“Environmental
Laws” means all laws, rules, regulations, codes, guidelines, ordinances,
orders, decrees, judgments, injunctions or permits issued, promulgated or
entered into by or with any Governmental Authority, relating in any way to the
environment, preservation or reclamation of natural resources or the
management, release or threatened release of any Hazardous Material or to
health and safety matters.


 


“Environmental
Liability” means any liability, contingent or otherwise (including any
liability for damages, costs of environmental remediation, fines, penalties or
indemnities) directly or indirectly resulting from or based upon
(a) violation of any Environmental Law, (b) the generation, use,
handling, transportation, storage, treatment or disposal of any Hazardous
Materials, (c) exposure to any Hazardous Materials, (d) the release
or threatened release of any Hazardous Materials into the environment or the
presence of any Hazardous Materials in, on or under any property or (e) any
contract, agreement or other consensual arrangement pursuant to which liability
is assumed or imposed with respect to any of the foregoing.


 


“Equity
Contribution” means a cash equity contribution on the Effective Date to the
US Borrower in an amount not less than the greater of (a) US$113,000,000 and
(b) the sum of (i) Investable Cash and (ii) the Equity Proceeds.


 


“Equity
Interests” means shares of capital stock, partnership interests, membership
interests in a limited liability company, beneficial interests in a trust or
other equity ownership interests in a Person, and any warrants, options or
other rights entitling the holder thereof to purchase or acquire any of the
foregoing.


 


“Equity
Proceeds” means Net Proceeds of not less than US$15,000,000 obtained by
Symmetry from a private placement of units, with each unit consisting of one
share of common stock and one warrant of Symmetry.


 


“ERISA”
means the Employee Retirement Income Security Act of 1974, as amended from time
to time.


 


“ERISA
Affiliate” means any trade or business (whether or not incorporated) that,
together with the US Borrower, is treated as a single employer under
Section 414(b) or (c) of the Code or, solely for purposes of Section 302
of ERISA and Section 412 of the Code, is treated as a single employer under
Section 414 of the Code.


 


“ERISA
Event” means (a) any “reportable event”, as defined in
Section 4043 of ERISA or the regulations issued thereunder with respect to
a Plan (other than an event for which the 30-day notice period is waived);
(b) prior to the effectiveness


 


22

















 


of the applicable provisions of
the Pension Act, the existence with respect to any Plan of an “accumulated
funding deficiency” (as defined in Section 412 of the Code or
Section 302 of ERISA) or, on or after the effectiveness of the applicable
provisions of the Pension Act, any failure by any Plan to satisfy the minimum
funding standard (within the meaning of Section 412 of the Code or Section 302
of ERISA) applicable to such Plan, in each case whether or not waived;
(c) the filing pursuant to, prior to the effectiveness of the applicable
provisions of the Pension Act, Section 412(d) of the Code or
Section 303(d) of ERISA or, on or after the effectiveness of the applicable
provisions of the Pension Act, Section 412(c) of the Code or Section 302(c) of
ERISA, of an application for a waiver of the minimum funding standard with
respect to any Plan; (d) on and after the effectiveness of the applicable
provisions of the Pension Act, a determination that any Plan is, or is expected
to be, in “at-risk” status (as defined in Section 303(i)(4) of ERISA or Section
430(i)(4) of the Code); (e) the incurrence by the US Borrower or any of its
ERISA Affiliates of any liability under Title IV of ERISA with respect to
the termination of any Plan; (f) the receipt by the US Borrower or any
ERISA Affiliate from the PBGC or a plan administrator of any notice relating to
an intention to terminate any Plan or Plans or to appoint a trustee to administer
any Plan; (g) the incurrence by the US Borrower or any of its ERISA Affiliates
of any liability with respect to the withdrawal or partial withdrawal from any
Plan or Multiemployer Plan; or (h) the receipt by the US Borrower or any
ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from
the US Borrower or any ERISA Affiliate of any notice, concerning the imposition
of Withdrawal Liability or a determination that a Multiemployer Plan is, or is
expected to be, insolvent or in reorganization, within the meaning of
Title IV of ERISA or, on and after the effectiveness of the applicable
provisions of the Pension Act, in endangered or critical status, within the
meaning of Section 305 of ERISA


 


“Eurocurrency”,
when used in reference to any Loan or Borrowing, refers to whether such Loan,
or the Loans comprising such Borrowing, are bearing interest at a rate
determined by reference to the Adjusted LIBO Rate.


 


“Event of
Default” has the meaning assigned to such term in Article VII.


 


“Excess Availability”
means, at any time, an amount equal to (a) the lesser of (i) the aggregate
Revolving Commitments and (ii) the Aggregate Borrowing Base (determined without
giving effect to clause (b) of the definition of such term) minus
(b) the aggregate Revolving Exposures. Excess Availability on any day
shall be determined on the basis of (A) the Revolving Commitments and Revolving
Exposures on such day and (B) the Aggregate Borrowing Base determined by the
Administrative Agent to be in effect on such day in accordance with the
provisions hereof and based on the information contained in the Borrowing Base
Certificate most recently delivered as of such day.


 


“Exchange
Rate” means on any day, for purposes of determining the US Dollar
Equivalent of any amount denominated in Canadian Dollars, the rate at which
Canadian Dollars may be exchanged into US Dollars at the time of determination
on such day as set forth on the Reuters WRLD Page for Canadian Dollars. In the
event that such


 


23

















 


rate does not appear on any
Reuters WRLD Page, the Exchange Rate shall be determined by reference to such
other publicly available service for displaying exchange rates as may be agreed
upon by the Administrative Agent and the Borrowers, or, in the absence of such
an agreement, such Exchange Rate shall instead be the arithmetic average of the
spot rates of exchange of the Administrative Agent in the market where its
foreign currency exchange operations in respect of Canadian Dollars are then
being conducted, at or about such time as the Administrative Agent shall elect
after determining that such rates shall be the basis for determining the
Exchange Rate, on such date for the purchase of US Dollars for delivery two
Business Days later; provided that if at the time of any such
determination, for any reason, no such spot rate is being quoted, the
Administrative Agent may use any reasonable method it deems appropriate to
determine such rate, and such determination shall be conclusive absent manifest
error.


 


“Excluded
Taxes” means, with respect to the Administrative Agent, any Lender, any
Issuing Bank or any other recipient of any payment to be made by or on account
of any obligation of the Borrowers hereunder, (a) income or franchise taxes imposed
on (or measured by) its net income  by
the United States of America, or by the jurisdiction under the laws of which
such recipient is organized or in which its principal office is located or, in
the case of any Lender, in which its Applicable Lending Office is located, (b)
any branch profits taxes imposed by the United States of America or any similar
tax imposed by any other jurisdiction referred to in the preceding clause (a),
(c) in the case of any Lender (other than an assignee pursuant to a request by
the Borrowers under Section 2.20(b)) or any Issuing Bank, any withholding tax
that is imposed (except for any such tax imposed after the occurrence and
during the continuance of an Event of Default) by the United States of America
or Canada on amounts payable by a Borrower from a location within such
jurisdiction to such Lender’s Applicable Lending Office or to such Issuing Bank
at the office designated by it for the receipt of such payments, to the extent
such tax is in effect and applicable (assuming the taking by such Borrower of
all actions required in order for available exemptions from such tax to be
effective) at the time such Lender becomes a party to this Agreement (or
designates a new Applicable Lending Office) or such Issuing Bank becomes an
Issuing Bank hereunder, except, in the case of a Lender, to the extent that
such Lender (or its assignor, if any) was entitled, immediately prior to the
designation of a new lending office (or an assignment), to receive additional
amounts with respect to such withholding tax pursuant to Section 2.18, and
(d) any withholding tax that is attributable to the failure of such Lender to
comply with Section 2.18(e).


 


“Existing
Letter of Credit” means each letter of credit previously issued for the
account of any subsidiary of the US Borrower that (a) is outstanding on the
Effective Date and (b) is listed on Schedule 2.06A.


 


“Existing
Novamerican Credit Facilities” means (a) the Amended and Restated Revolving
Credit Agreement dated as of May 8, 2007, among certain subsidiaries of
Novamerican party thereto, the lenders party thereto and Bank of America, N.A.,
as administrative and collateral agent, (b) the Credit Agreement dated as of
September 28, 2006, between Nova Steel Ltd. and Royal Bank of Canada, (c) the
Credit Agreement dated as of September 28, 2006, between Nova Tube Ontario Inc.
and


 


24

















 


Royal Bank of
Canada, (d) the Credit Agreement dated as of September 28, 2006, between Argo
Steel Ltd. and Royal Bank of Canada and (e) the Credit Agreement dated as of
May 21, 2004, between Cresswell Industries Inc. (as successor to Profilages
Cresswell Inc.) and Banque de Montreal.


 


“Existing
Warrants” means the warrants to purchase common stock of Symmetry issued by
Symmetry pursuant to the Warrant Agreement dated March 5, 2007, between
Symmetry and Continental Stock Transfer & Trust Company, as warrant agent,
and that are outstanding and unexercised on the date hereof.


 


“Federal
Funds Effective Rate” means, for any day, the weighted average (rounded
upwards, if necessary, to the next 1/100 of 1%) of the rates on overnight
Federal funds transactions with members of the Federal Reserve System arranged
by Federal funds brokers, as published on the next succeeding Business Day by
the Federal Reserve Bank of New York, or, if such rate is not so published
for any day that is a Business Day, the average (rounded upwards, if necessary,
to the next 1/100 of 1%) of the quotations for such day for such transactions
received by the Administrative Agent from three Federal funds brokers of
recognized standing selected by it.


 


“Financial
Officer” means, with respect to Symmetry or a Borrower, the chief financial
officer, principal accounting officer, treasurer or controller of Symmetry or
such Borrower, respectively. Each reference herein to a Financial Officer of
Symmetry and the Borrowers shall mean such an officer of any of them who is
authorized to deliver the applicable certificate or other document on behalf of
all of them and the Administrative Agent, the Issuing Banks and the Lenders
shall be entitled to assume that any such officer who delivers such a
certificate or other document is so authorized.


 


“Financing
Transactions” means (a) the execution, delivery and performance by each
Loan Party of the Loan Documents to which it is to be a party, the borrowing of
Loans and the drawing of BAs, the use of the proceeds thereof and the issuance
of Letters of Credit hereunder, (b) the execution, delivery and performance by
each Loan Party of the Senior Notes Documents to which it is to be a party, the
issuance of the Senior Notes and the use of the proceeds thereof, (c) the
execution, delivery and performance by Symmetry of the Overdraft Facility Loan
Agreement, the borrowing of loans thereunder and the use of the proceeds
thereof, (d) the execution, delivery and performance by the parties thereto of
the Intercompany Notes Documents, (e) the offering of common stock and warrants
of Symmetry for the Equity Proceeds, the execution, delivery and performance by
Symmetry of all documentation in connection therewith and the use of the
proceeds thereof, (f) the making of the Equity Contribution, (g) the
consummation of each of the Effective Date Asset Sale and the Effective Date
Sale Leaseback and (h) the execution, delivery and performance of all
documentation in connection with any of the foregoing by each Loan Party or
Subsidiary intended to be party thereto and the use of the proceeds thereof.


 


25
















 


“Foreign
Pledge Agreement” means a pledge or charge agreement with respect to each
portion of the Collateral that constitutes Equity Interests of a Foreign
Subsidiary, in form and substance reasonably satisfactory to the Administrative
Agent.


 


“Foreign Subsidiary”
means any Subsidiary that is organized under the laws of a jurisdiction other
than the United States of America or any State thereof or the District of
Columbia.


 


“GAAP”
means generally accepted accounting principles and practices in the United States
of America consistently applied.


 


“Governmental
Approvals” means all authorizations, consents, approvals, licenses and
exemptions of, registrations and filings with, and reports to, all Governmental
Authorities.


 


“Governmental
Authority” means the government of the United States of America, Canada,
any other nation or any political subdivision thereof, whether state,
provincial, territorial or local, and any agency, authority, instrumentality,
regulatory body, court, central bank or other entity exercising executive,
legislative, judicial, taxing, regulatory or administrative powers or functions
of or pertaining to government.


 


“Guarantee”
of or by any Person (the “guarantor”) means any obligation, contingent
or otherwise, of the guarantor guaranteeing or having the economic effect of
guaranteeing any Indebtedness or other obligation of any other Person (the “primary
obligor”) in any manner, whether directly or indirectly, and including any
obligation of the guarantor, direct or indirect, (a) to purchase or pay
(or advance or supply funds for the purchase or payment of) such Indebtedness
or other obligation or to purchase (or to advance or supply funds for the
purchase of) any security for the payment thereof, (b) to purchase or
lease property, securities or services for the purpose of assuring the owner of
such Indebtedness or other obligation of the payment thereof (including
pursuant to any “synthetic lease” financing), (c) to maintain working
capital, equity capital or any other financial statement condition or liquidity
of the primary obligor so as to enable the primary obligor to pay such
Indebtedness or other obligation or (d) as an account party in respect of any
letter of credit or letter of guaranty issued to support such Indebtedness or
obligation; provided, that the term Guarantee shall not include
endorsements for collection or deposit in the ordinary course of business.


 


“Guarantee
and Collateral Agreement” means the Guarantee and Collateral Agreement
among Symmetry, Novamerican Parent, the Borrowers, the Subsidiary Parties and
the Administrative Agent, substantially in the form of Exhibit C-1, together
with all supplements thereto.


 


“Hazardous
Materials”  means all explosive or
radioactive substances or wastes and all hazardous or toxic substances, wastes
or other pollutants, including petroleum or petroleum distillates, asbestos or
asbestos containing materials, polychlorinated biphenyls, radon gas, infectious
or medical wastes and all other substances or wastes of any nature regulated
pursuant to any Environmental Law.


 


26

















 


“Hedging
Agreement” means any agreement with respect to any swap, forward, future or
derivative transaction or option or similar agreement involving, or settled by
reference to, one or more rates, currencies, commodities, equity or debt
instruments or securities, or economic, financial or pricing indices or
measures of economic, financial or pricing risk or value or any similar
transaction or any combination of these transactions; provided that no
phantom stock, deferred compensation or similar plan providing for payments
only on account of services provided by current or former directors, officers,
employees or consultants of Symmetry, the Borrowers or the other Subsidiaries
shall be a Hedging Agreement.


 


“Inactive
Subsidiaries” means (a) Hencorp LLC, (b) Argo Steel Ltd., (c) Nova
Tube Inc., (d) 3217930 Nova Scotia Company, (e) 3217928 Nova Scotia Company,
(f) 3218088 Nova Scotia Company, (g) Acier Metco Inc. and (h) 4421591 Canada
Inc.


 


“Indebtedness”
of any Person means, without duplication, (a) all obligations of such
Person for borrowed money or with respect to deposits or advances of any kind,
(b) all obligations of such Person evidenced by bonds, debentures, notes
or similar instruments, (c) all obligations of such Person upon which
interest charges are customarily paid, (d) all obligations of such Person
under conditional sale or other title retention agreements relating to property
acquired by such Person, (e) all obligations of such Person in respect of
the deferred purchase price of property or services (excluding current accounts
payable incurred in the ordinary course of business), (f) all Indebtedness
of others secured by (or for which the holder of such Indebtedness has an
existing right, contingent or otherwise, to be secured by) any Lien on property
owned or acquired by such Person, whether or not the Indebtedness secured
thereby has been assumed, (g) all Guarantees by such Person of
Indebtedness of others, (h) all Capital Lease Obligations of such Person,
(i) all obligations, contingent or otherwise, of such Person as an account
party in respect of letters of credit and letters of guaranty and (j) all
obligations, contingent or otherwise, of such Person in respect of bankers’
acceptances. The Indebtedness of any Person shall include the Indebtedness of
any other entity (including any partnership in which such Person is a general
partner) to the extent such Person is liable therefor as a result of such
Person’s ownership interest in or other relationship with such entity, except
to the extent the terms of such Indebtedness provide that such Person is not
liable therefor.


 


“Indemnified
Taxes” means Taxes other than Excluded Taxes.


 


“Indemnitee”
has the meaning assigned to such term in Section 9.03(b).


 


“Information Memorandum”
means the Confidential Information Memorandum dated October 2007 relating to
Symmetry, the Borrowers and the Transactions.


 


“Intercompany Notes”
means the senior secured demand promissory notes evidencing loans by the US
Borrower to the Canadian Borrower in an aggregate principal amount of
US$125,000,000, made on the Effective Date from the gross proceeds from 


 


27

















 


the sale of
the Senior Notes.


 


“Intercompany Notes
Documents” means the Intercompany Notes and all other instruments,
agreements and other documents evidencing or governing the loans evidenced by
the Intercompany Notes, providing for any security interest or other right in
respect thereof, affecting the terms of the foregoing or entered into in
connection therewith and all schedules, exhibits and annexes to each of the
foregoing.


 


“Intercreditor
Agreement” means an Intercreditor Agreement among Symmetry, the
Borrowers, the Administrative Agent and The Bank of New York, as collateral
agent under the Senior Notes Documents, substantially in the form of
Exhibit D hereto.


 


“Interest
Election Request” means a request by a Borrower to convert or continue a
Revolving Borrowing in accordance with Section 2.09.


 


“Interest
Payment Date” means (a) with respect to any ABR Loan or Canadian Prime
Revolving Loan (other than a Swingline Loan), the last day of each March, June,
September and December, (b) with respect to any Eurocurrency Loan, the last day
of the Interest Period applicable to the Borrowing of which such Loan is a part
and, in the case of a Eurocurrency Borrowing with an Interest Period of more
than three months’ duration, each day prior to the last day of such Interest
Period that occurs at intervals of three months’ duration after the first day
of such Interest Period, and (c) with respect to any Swingline Loan, the
day that such Loan is required to be repaid.


 


“Interest
Period” means, with respect to any Eurocurrency Borrowing, the period
commencing on the date of such Borrowing and ending on the numerically
corresponding day in the calendar month that is one, two, three or
six months thereafter as the applicable Borrower may elect; provided,
that (a) if any Interest Period would end on a day other than a Business
Day, such Interest Period shall be extended to the next succeeding Business Day
unless such next succeeding Business Day would fall in the next calendar month,
in which case such Interest Period shall end on the next preceding Business Day
and (b) any Interest Period that commences on the last Business Day of a
calendar month (or on a day for which there is no numerically corresponding day
in the last calendar month of such Interest Period) shall end on the last
Business Day of the last calendar month of such Interest Period. For purposes
hereof, the date of a Borrowing initially shall be the date on which such
Borrowing is made and thereafter shall be the effective date of the most recent
conversion or continuation of such Borrowing.


 


“Inventory”
has the meaning assigned to such term in the New York UCC.


 


“Inventory
Reserves” shall mean reserves against Inventory equal to the sum of the
following:


 


(a) a reserve for shrink, or discrepancies
that arise pertaining to inventory quantities on hand between a Borrower’s
perpetual accounting system and physical counts of the inventory which will be
an amount determined by the Administrative Agent in its Permitted Discretion;


 


28

















 


(b) a revaluation reserve whereby capitalized
favorable variances shall be deducted from Eligible Inventory and unfavorable
variances shall not be added to Eligible Inventory;


 


(c) a lower of the cost or market reserve for
any differences between a Borrower’s actual cost to produce versus its selling
price to third parties; and


 


(d) other reserves as deemed appropriate by
the Administrative Agent in its Permitted Discretion from time to time.


 


“Investable
Cash” means the aggregate amount of investable cash held by Symmetry after
giving effect to (a) Effective Date Conversion Rights Payment and (b) the
payment of deferred underwriting discounts and commissions in connection with
Symmetry’s initial public offering in the amount of US$6,000,000.


 


“IP
Security Agreements” has the meaning assigned to such term in the Guarantee
and Collateral Agreement.


 


“Issuing
Bank” means (a) JPMCB, (b) each Person that is the issuer of any Existing
Letter of Credit and (c) each other Lender that shall have become an Issuing
Bank hereunder as provided in Section 2.06(k) (other than any Person that shall
have ceased to be an Issuing Bank as provided in Section 2.06(i)), each in its
capacity as an issuer of Letters of Credit hereunder. Each Issuing Bank may, in
its discretion, arrange for one or more Letters of Credit to be issued by
Affiliates of such Issuing Bank, in which case the term “Issuing Bank” shall
include any such Affiliate with respect to Letters of Credit issued by such
Affiliate.


 


“Issuing
Bank Agreement” shall have the meaning assigned to such term in Section
2.06(k).


 


“ITA”
means the Income Tax Act (Canada), as amended, and any successor thereto, and
any regulations promulgated thereunder.


 


“JPMCB”
means JPMorgan Chase Bank, N.A.


 


“LC
Commitment” shall mean, as to each Issuing Bank, the commitment of such
Issuing Bank to issue Letters of Credit pursuant to Section 2.06B. The initial
amount of each Issuing Bank’s LC Commitment is set forth on Schedule 2.06 or in
such Issuing Bank’s Issuing Bank Agreement.


 


“LC
Disbursement” means a payment made by an Issuing Bank pursuant to a Letter
of Credit.


 


“LC
Exposure” means, at any time, the sum of (a) the US Dollar Equivalents of
the undrawn amount of all outstanding Letters of Credit at such time plus
(b) the aggregate US Dollar Equivalents of the amount of all LC Disbursements
that have not yet been reimbursed by or on behalf of the Borrowers at such time.
The LC Exposure 


 


29

















 


of any
Revolving Lender at any time shall be its Applicable Percentage of the total LC
Exposure at such time.


 


“Lenders”
means the Persons listed on Schedule 2.01 and any other Person that shall
have become a party hereto pursuant to an Assignment and Assumption or an
Accession Agreement, other than any such Person that ceases to be a party
hereto pursuant to an Assignment and Assumption. Unless the context otherwise
requires, the term “Lenders” includes the Swingline Lender.


 


“Letter of
Credit” means any letter of credit issued pursuant to this Agreement and
each Existing Letter of Credit.


 


“LIBO Rate”
means, with respect to any Eurocurrency Borrowing for any Interest Period, the
rate appearing on the Reuters “LIBOR01” screen displaying British Bankers’
Association Interest Settlement Rates (or on any successor or substitute screen
of such Service, or any successor to or substitute for such Service, providing
rate quotations comparable to those currently provided on such screen of such
Service, as determined by the Administrative Agent from time to time for
purposes of providing quotations of interest rates applicable to dollar
deposits in the London interbank market) at approximately 11:00 a.m., London
time, two Business Days prior to the commencement of such Interest Period, as
the rate for dollar deposits with a maturity comparable to such Interest Period.
In the event that such rate is not available at such time for any reason, then
the “LIBO Rate” with respect to such Eurocurrency Borrowing for such
Interest Period shall be the rate at which dollar deposits of US$5,000,000 and
for a maturity comparable to such Interest Period are offered by the principal
London office of the Administrative Agent in immediately available funds in the
London interbank market at approximately 11:00 a.m., London time, two
Business Days prior to the commencement of such Interest Period.


 


“Lien”
means, with respect to any asset, (a) any mortgage, deed of trust, lien,
pledge, hypothecation, encumbrance, charge or security interest in, on or of
such asset, (b) the interest of a vendor or a lessor under any conditional
sale agreement, capital lease or title retention agreement (or any financing
lease having substantially the same economic effect as any of the foregoing)
relating to such asset and (c) in the case of securities, any purchase option,
call or similar right of a third party with respect to such securities.


 


“Loan
Documents” means this Agreement, each Accession Agreement, each Issuing
Bank Agreement, any letter of credit applications referred to in Section
2.06(a) or 2.06(b), any promissory notes delivered pursuant to Section 2.11(e),
the Collateral Agreements and the other Security Documents.


 


“Loan
Documents Obligations” has the meaning assigned to such term in the
Guarantee and Collateral Agreement.


 


“Loan
Parties” means Symmetry, the Borrowers and each Subsidiary Party.


 


30

















 


“Loans”
means the loans (including Swingline Loans and Protective Advances) made to the
Borrowers pursuant to this Agreement.


 


“Local Time”
means (a) with respect to a Loan or Borrowing denominated in US Dollars (other
than any such Loan to or Borrowing of the Canadian Borrower) or any Letter of
Credit, New York City time, and (b) with respect to a Loan or Borrowing
denominated in Canadian Dollars, any BA or any Loan or Borrowing denominated in
US Dollars of the Canadian Borrower, Toronto time.


 


“Lockbox
Agreement” has the meaning assigned to such term in the Guarantee and
Collateral Agreement.


 


“Long-Term
Indebtedness” means any Indebtedness that, in accordance with GAAP,
constitutes (or, when incurred, constituted) a long-term liability.


 


“Material
Acquisition” means any acquisition, or series of related acquisitions,
(a) that involves assets comprising all or substantially all of an
operating unit of a business or common Equity Interests of any Person and
(b) the consideration paid in which exceeds US$5,000,000.


 


“Material
Adverse Effect” means a material adverse effect on (a) the business,
assets, operations, prospects or condition, financial or otherwise, of
Symmetry, the Borrowers and the other Subsidiaries taken as a whole,
(b) the ability of any Loan Party to perform any of its obligations under
any Loan Document or (c) the material rights of or material benefits
available to the Lenders under any Loan Document.


 


“Material
Disposition” means any sale, transfer or other disposition, or series of
related sales, transfers or other dispositions, (a) that involves assets
comprising all or substantially all of an operating unit of a business or
common Equity Interests of any Person, in each case owned by Symmetry or any
Subsidiary and (b) the consideration paid in which exceeds US$5,000,000.


 


“Material
Indebtedness” means Indebtedness (other than the Loans, BAs and Letters of
Credit), or obligations in respect of one or more Hedging Agreements, of any
one or more of Symmetry, the Borrowers and the Subsidiaries in an aggregate
amount exceeding US$10,000,000 (such amount to be determined, with respect to
any Indebtedness, without duplication for any Guarantees thereof). For purposes
of determining Material Indebtedness, the “amount” of the obligations of
Symmetry, a Borrower or any other Subsidiary in respect of any Hedging
Agreement at any time shall be the maximum aggregate amount (giving effect to
any netting agreements) that Symmetry, such Borrower or such Subsidiary would
be required to pay if such Hedging Agreement were terminated at such time.


 


“MEPP”  has the meaning assigned to such
term in clause (m) of Article VII.


 


“MEPP
Liability”  has the meaning assigned to
such term in clause (m) of Article VII.


 


31

















 


“Moody’s”
means Moody’s Investors Service, Inc.


 


“Mortgage”
means a mortgage, deed of trust, debenture, hypothec, assignment of leases and
rents, leasehold mortgage or other security document granting a Lien on any
Mortgaged Property to secure the Obligations. Each Mortgage shall be
satisfactory in form and substance to the Administrative Agent.


 


“Mortgaged
Property” means each parcel of real property and the improvements thereto
owned by a US Loan Party and identified on Schedule 3.05 as a Mortgaged
Property, and each other parcel of real property and improvements thereto owned
by a US Loan Party that has a book or fair market value in excess of
US$1,000,000.


 


“Multiemployer
Plan” means a multiemployer plan as defined in Section 4001(a)(3) of
ERISA.


 


“Net
Orderly Liquidation Value” means, with respect to Inventory of any Person,
the orderly liquidation value thereof as determined in a manner acceptable to
the Administrative Agent by an appraiser acceptable to the Administrative
Agent, net of all costs of liquidation thereof.


 


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


 


“Non-ABL
Collateral” has the meaning assigned to such term in the Guarantee and
Collateral Agreement.


 


“Non-ABL
Collateral Senior Agent” means any Person that, under the terms of the
Intercreditor Agreement, is a Senior Agent (as defined in the Intercreditor
Agreement) with respect to the Non-ABL Collateral.


 


“Non-Schedule
I Lender” means any Lender not named on Schedule I to the Bank Act
(Canada).


 


“Non-Schedule
I Reference Lender” means JPMorgan Chase Bank, N.A., Toronto Branch, and
any other Non-Schedule I Lender agreed upon by the Canadian Borrower and the
Administrative Agent from time to time.


 


“Novamerican”
means Novamerican Steel Inc., a Canadian corporation and one of the entities
amalgamated with the Canadian Borrower as part of the Reorganization
Transactions.


 


“Novamerican
Cash Sources” means the cash on hand of Novamerican on the Effective Date,
including the proceeds of the Effective Date Asset Sale and the proceeds of the
Effective Date Sale Leaseback.


 


“Novamerican
Parent” means Novamerican Steel Holdings Inc., a Delaware corporation.


 


32

















 


“Obligations”
has the meaning assigned to such term in the Guarantee and Collateral
Agreement.


 


“Other
Taxes” means any and all present or future stamp or documentary taxes or
any other excise or property taxes, charges or similar levies arising from any
payment made under any Loan Document or from the execution, delivery or
enforcement of, or otherwise with respect to, any Loan Document.


 


“Overdraft
Facility” means the intraday demand loans in an aggregate principal amount
of up to US$91,000,000 made pursuant to the Overdraft Facility Loan Agreement.


 


“Overdraft
Facility Loan Agreement” means the Overdraft Facility Loan Agreement dated
as of the date hereof, among the Canadian Borrower, as the borrower thereunder,
Symmetry, as guarantor, and JPMCB.


 


“Participant”
has the meaning set forth in Section 9.04(c)(i).


 


“PBA”
means, collectively, the Pension Benefits Act (Ontario) and similar acts of
each Province in Canada or to the extent applicable the federal jurisdiction,
and all regulations thereunder as amended from time to time.


 


“PBGC”
means the Pension Benefit Guaranty Corporation referred to and defined in ERISA
and any successor entity performing similar functions.


 


“Pension
Act” means the Pension Protection Act of 2006, as amended from time to
time.


 


“Perfection
Certificate” means a certificate in the form of Exhibit E or any other form
approved by the Administrative Agent.


 


“Permitted
Acquisition” means any acquisition by the US Borrower, the Canadian Borrower
or any of their subsidiaries that is a Subsidiary Party of all the outstanding
Equity Interests (other than directors’ qualifying shares or other nominal
amounts of Equity Interests that are required to be held by other Persons under
applicable law) in, or all or substantially all the assets of, or all or
substantially all the assets constituting a division or line of business of, a
Person, if (a) immediately after giving effect thereto, no Default has
occurred and is continuing or would result therefrom, (b) each such
acquired Person (including each subsidiary of such acquired Person) is
organized under the laws of the United States of America or Canada or any State
or Province thereof or the District of Columbia, (c) the Person or the
division or line of business acquired is engaged in a business permitted by
Section 6.03(b), (d) each Subsidiary resulting from or acquiring the
assets acquired in such acquisition (and which survives such acquisition) shall
be a Subsidiary Party and all the Equity Interests of each such Subsidiary
shall be owned directly by a Loan Party and (e) all actions required to be
taken with respect to such acquired Subsidiary or assets in order to satisfy
the requirements set forth in clauses (a), (b), (c) and (d) of the definition
of the term 


 


33

















 


“Collateral
and Guarantee Requirement” (subject to the final paragraph of the definition of
such term) shall have been taken.


 


“Permitted
Asset Transfer” means any investment by a US Loan Party in a Canadian Loan
Party in the form of a transfer or other disposition of surplus equipment or
other surplus operating assets (but not of any manufacturing, processing or
other facility as a whole).


 


“Permitted
Discretion” means a determination made by the Administrative Agent in the
exercise of its reasonable credit judgment and consistent with its policies
applicable to asset based lending transactions of this type.


 


“Permitted
Encumbrances” means:


 


(a) Liens imposed by law for taxes that
are not yet due or are being contested in compliance with Section 5.05,
and Liens imposed on a real property for property taxes, where the recourse
with respect thereto is limited to the taking of such real property and such
real property is not material to the business of Symmetry, the Borrowers and
the other Subsidiaries;


 


(b) carriers’, warehousemen’s, mechanics’,
materialmen’s, repairmen’s and other like Liens imposed by law, arising in the
ordinary course of business and securing obligations that are not overdue by
more than 30 days or are being contested in compliance with Section 5.05;


 


(c) Liens arising by virtue of any
statutory, common law or contractual provisions relating to bankers’ liens,
rights of set-off or similar rights and remedies as to deposit accounts or
other funds maintained with a depositary bank;


 


(d) pledges and deposits made in the
ordinary course of business in compliance with workers’ compensation,
unemployment insurance and other social security laws or regulations or in
respect of health, disability, retirement or other employee benefits
obligations, and deposits made in the ordinary course of business securing
obligations to insurance carriers under insurance or self-insurance
arrangements;


 


(e) deposits to secure the performance
of bids, trade contracts, leases, regulatory or statutory obligations, surety
and appeal bonds, performance bonds and other obligations of a like nature, in
each case in the ordinary course of business;


 


(f) judgment liens in respect of judgments
that do not constitute an Event of Default under clause (k) of Article VII; and


 


(g) easements, zoning restrictions,
covenants, conditions, restrictions, rights-of-way and similar encumbrances on
real property imposed by law or arising in the ordinary course of business that
do not secure any monetary obligations and do not materially detract from the
value of the affected property 


 


34

















 


or interfere
with the ordinary conduct of business of either Borrower or any Subsidiary;


 


provided
that the term “Permitted Encumbrances” shall not include any Lien securing
Indebtedness.


 


“Permitted
Flow Through Investment” means any investment made in cash or with
Permitted Investments, or any loan or advance, in each case made by a US Loan
Party in or to a Canadian Loan Party, provided that the funds used to
make such investment, loan or advance constitute the proceeds of an issuance by
Symmetry of any Equity Interests permitted to be issued hereunder.


 


“Permitted
Investments” means:


 


(a) direct obligations of, or
obligations the principal of and interest on which are unconditionally
guaranteed by, the United States of America or Canada (or by any agency thereof
to the extent such obligations are backed by the full faith and credit of the United
States of America or Canada), in each case maturing within one year from the
date of acquisition thereof;


 


(b) investments in commercial paper
maturing within 270 days from the date of acquisition thereof and having, at
such date of acquisition, the highest credit rating obtainable from S&P or
from Moody’s;


 


(c) investments in certificates of
deposit, banker’s acceptances and time deposits maturing within 180 days from
the date of acquisition thereof issued or guaranteed by or placed with, and
money market deposit accounts issued or offered by, any domestic office of any
commercial bank organized under the laws of the United States of America or
Canada, or any State or Province thereof, which has a combined capital and
surplus and undivided profits of not less than US$500,000,000;


 


(d) fully collateralized repurchase
agreements with a term of not more than 30 days for securities described in
clause (a) above and entered into with a financial institution satisfying
the criteria described in clause (c) above;


 


(e) money market funds that (i) comply
with the criteria set forth in Securities and Exchange Commission Rule 2a-7
under the Investment Company Act of 1940, (ii) are rated AAA by S&P
and Aaa by Moody’s and (iii) have portfolio assets of at least US$5,000,000,000;
and


 


(f) in the case of any Foreign Subsidiary
(other than any Canadian Subsidiary), other short-term investments that are
analogous to the foregoing and are utilized by such Foreign Subsidiary in
accordance with normal investment practices for cash management purposes.


 


35

















 


“Person”
means any natural person, corporation, limited liability company, trust, joint
venture, association, company, partnership, Governmental Authority or other
entity.


 


“Plan”  means any employee pension benefit plan
(other than a Multiemployer Plan) subject to the provisions of Title IV of
ERISA or Section 412 of the Code or Section 302 of ERISA, and in
respect of which Symmetry, either Borrower or any ERISA Affiliate is (or, if
such plan were terminated, would under Section 4069 of ERISA be deemed to
be) an “employer” as defined in Section 3(5) of ERISA.


 


“Prime Rate”
means (a) in the case of an ABR Borrowing in US Dollars by the US Borrower, the
rate of interest per annum publicly announced from time to time by JPMorgan
Chase Bank, N.A., as its prime rate in effect at its principal office in New
York City, and (b) in the case of an ABR Borrowing in US Dollars by the
Canadian Borrower, the rate of interest per annum publicly announced from time
to time by the Administrative Agent as its reference rate in effect at its
principal office in Toronto for loans made in Canada and denominated in US
Dollars. Each change in the Prime Rate shall be effective from and including
the date such change is publicly announced as being effective.


 


“Principal
Issuing Bank” means JPMCB and any other Issuing Bank that the Borrowers and
the Administrative Agent agree will be a Principal Issuing Bank (or any of
their Affiliates that shall act as Issuing Banks hereunder).


 


“Priority Payable” means, with
respect to any Person, any amount payable by such Person solely to the extent
that it is past due and is secured by a Lien which ranks prior to or pari  passu with the Liens created by the Security Documents,
including amounts which are past due and owing for wages, vacation pay,
severance pay, employee deductions, sales tax, excise tax, Tax payable pursuant
to Part IX of the Excise Tax Act
(Canada) (net of GST input credits), income tax, workers compensation,
government royalties, pension fund obligations and overdue Taxes.


 


“Protective Advance” has the meaning assigned to such term in
Section 2.04.


 


“Protective Advance Exposure”
means, at any time, the sum of the principal amounts of all outstanding Protective
Advances at such time. The Protective Advance Exposure of any Revolving Lender
at any time shall be its Applicable Percentage of the total Protective Advance
Exposure at such time.


 


“Refinancing
Indebtedness” means, in respect of any Indebtedness (the “Original
Indebtedness”), any Indebtedness that extends, renews or refinances such
Original Indebtedness (or any Refinancing Indebtedness in respect thereof); provided
that: (a) the principal amount of such Refinancing Indebtedness shall not
exceed the principal amount of such Original Indebtedness; (b) the maturity of
such Refinancing Indebtedness shall not be earlier, and the weighted average
life to maturity of such Refinancing Indebtedness shall not be shorter, than
that of such Original Indebtedness, 


 


36

















 


and such
Refinancing Indebtedness shall not be required to be repaid, prepaid, redeemed,
repurchased or defeased, whether on one or more fixed dates, upon the
occurrence of one or more events or at the option of any holder thereof
(except, in each case, upon the occurrence of an event of default or a change
in control (including as a result of a sale of all or substantially all of the
assets) or similar event or as and to the extent such repayment, prepayment,
redemption, repurchase or defeasance would have been required pursuant to the
terms of such Original Indebtedness) prior to the earlier of (i) the maturity
of such Original Indebtedness and (ii) the date six months after the Revolving
Maturity Date; (c) such Refinancing Indebtedness shall not constitute an
obligation of any Subsidiary that shall not have been (or, in the case of
after-acquired Subsidiaries, shall not have been required to be or become) an
obligor in respect of such Original Indebtedness, and shall not constitute an
obligation of Symmetry if Symmetry shall not have been an obligor in respect of
such Original Indebtedness, and, in each case, shall constitute an obligation
of such Subsidiary or Symmetry only to the extent of their respective
obligations in respect of such Original Indebtedness; (d) if such Original
Indebtedness shall have been subordinated to the Loan Documents Obligations,
such Refinancing Indebtedness shall also be subordinated to the Loan Documents
Obligations on terms not less favorable in any material respect to the Lenders;
and (e) such Refinancing Indebtedness shall not be secured by any Lien on
any asset other than the assets that secured such Original Indebtedness or by
any Lien having a higher priority than the Lien that secured such Original
Indebtedness and, in the case of any such Refinancing Indebtedness in respect
of Senior Notes that is secured, the secured parties thereunder, or a trustee
or collateral agent on their behalf, shall have become a party to the
Intercreditor Agreement or another intercreditor agreement substantially in the
form of Exhibit B hereto (with such modifications thereto as may be reasonably
specified by the Administrative Agent to give effect to such refinancing of the
Senior Notes).


 


“Register”
has the meaning set forth in Section 9.04(b).


 


“Related
Parties” means, with respect to any specified Person, such Person’s
Affiliates and the respective directors, trustees, officers, employees, agents
and advisors of such Person and such Person’s Affiliates.


 


“Rent
Reserve” with respect to any store, warehouse distribution center, regional
distribution center or depot where any Inventory subject to Liens arising by
operation of law is located, a reserve equal to three months’ rent at such store,
warehouse distribution center, regional distribution center or depot.


 


“Reorganization
Transactions” means the transactions described in the Plan of Arrangement
entered into pursuant to the Arrangement Agreement.


 


“Reports”
means reports prepared by the Administrative Agent or another Person showing
the results of appraisals, field examinations or audits pertaining to the
Borrowers’ assets from information furnished by or on behalf of the Borrowers,
after the Administrative Agent has exercised its rights of inspection pursuant
to this Agreement, which Reports (except where prepared for internal purposes
of the Administrative Agent) 


 


37

















 


shall, upon
request by any Lender, be distributed to such Lender by the Administrative
Agent.


 


“Required
Lenders” means, at any time, Lenders having Revolving Exposures and unused
Revolving Commitments representing more than 50% of the sum of the total
Revolving Exposures and unused Revolving Commitments at such time.


 


“Reserves”
means Rent Reserves and any other reserves which the Administrative Agent deems
necessary, in its Permitted Discretion, to maintain (including, without
limitation, reserves for accrued and unpaid interest on the Obligations,
reserves for consignee’s, warehousemen’s and bailee’s charges, reserves for
in-transit inventory, reserves for fees and other amounts owed to outside
processors or the owners of outside processing locations, reserves for
Obligations under Hedging Agreements and, for purposes of determining the
Canadian Borrowing Base, Priority
Payables arising after the Effective Date that may affect the
collectability of Accounts or the saleability of Inventory), provided,
in each case, that such reserves shall not be duplicative of reductions made in
determining Eligible Accounts or Eligible Inventory.


 


“Restricted
Payment” means any dividend or other distribution (whether in cash,
securities or other property) with respect to any Equity Interests in Symmetry,
a Borrower or any other Subsidiary, or any payment (whether in cash, securities
or other property), including any sinking fund or similar deposit, on account
of the purchase, redemption, retirement, acquisition, cancelation or
termination of any Equity Interests in Symmetry, a Borrower or any other
Subsidiary.


 


“Revolving
Availability Period” means the period from and including the Effective Date
to but excluding the earlier of the Revolving Maturity Date and the date of
termination of the Revolving Commitments.


 


“Revolving
Borrowing” means a Borrowing consisting of Revolving Loans.


 


“Revolving
Commitment” means, with respect to each Lender, the commitment of such
Lender to make Revolving Loans, to accept and purchase BAs and to acquire
participations in Letters of Credit, Swingline Loans and Protective Advances
hereunder, expressed as an amount representing the maximum aggregate permitted
amount of such Lender’s Revolving Exposure hereunder, as such commitment may be
(a) reduced or increased from time to time pursuant to Section 2.10 and
(b) reduced or increased from time to time pursuant to assignments by or to
such Lender pursuant to Section 9.04. The initial amount of each Lender’s
Revolving Commitment is set forth on Schedule 2.01, or in the Assignment and
Assumption or the Accession Agreement pursuant to which such Lender shall have
assumed or provided its Revolving Commitment, as applicable. The initial
aggregate amount of the Lenders’ Revolving Commitments is US$175,000,000.


 


“Revolving
Exposure” means, with respect to any Lender at any time, the sum of the US
Dollar Equivalents of the outstanding principal amount of such Lender’s 


 


38

















 


Revolving
Loans and BAs and its LC Exposure, Swingline Exposure and Protective Advance
Exposure at such time.


 


“Revolving
Lender” means a Lender with a Revolving Commitment or, if the Revolving
Commitments have terminated or expired, a Lender with Revolving Exposure.


 


“Revolving
Loan” means a Loan made pursuant to Section 2.01.


 


“Revolving
Maturity Date” means November 15, 2012.


 


“S&P”
means Standard & Poor’s Ratings Services, a division of The McGraw-Hill
Companies, Inc.


 


“Schedule I
Lender” means any Lender named on Schedule I to the Bank Act (Canada).


 


“Schedule I
Reference Lenders” means one or more Schedule I Lenders agreed upon by the
Canadian Borrower and the Administrative Agent from time to time.


 


“Secured
Party” means each applicable “Secured Party”, as defined in any applicable
Security Document.


 


“Security
Documents” means the Collateral Agreements, the Foreign Pledge Agreements,
the Mortgages, the IP Security Agreements, the Intercreditor Agreement and each
other security agreement or other instrument or document executed and delivered
pursuant to Section 5.12 or 5.13 to secure any of the Obligations.


 


“Senior
Notes” means (a) the Senior Secured Notes due 2015 issued by the US
Borrower on the Effective Date in a Rule 144A or other private placement and
(b) any substantially identical Senior Secured Notes due 2015 that are
registered under the Securities Act of 1933, as amended, and issued in exchange
for the Senior Secured Notes described in clause (a) of this definition.


 


“Senior
Notes Documents” means the Senior Notes Indenture and all other
instruments, agreements and other documents evidencing or governing the Senior
Notes, providing for any Guarantee or security interest or other right in
respect thereof, affecting the terms of the foregoing or entered into in
connection therewith and all schedules, exhibits and annexes to each of the
foregoing.


 


“Senior
Notes Indenture” means the Indenture dated as of November 15, 2007, among
Symmetry, Novamerican Steel Finco Inc., as the issuer, certain other
Subsidiaries party thereto and The Bank of New York, as the trustee, under
which the Senior Notes are issued.


 


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


 


39

















 


activities
incidental thereto, (b) does not own any assets other than the Equity Interests
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).


 


“Statutory
Reserve Rate” means a fraction (expressed as a decimal), the numerator of
which is the number one and the denominator of which is the number one minus
the aggregate of the maximum reserve percentages (including any marginal,
special, emergency or supplemental reserves) expressed as a decimal established
by the Board to which the Administrative Agent is subject, with respect to the
Adjusted LIBO Rate, for eurocurrency funding (currently referred to as “Eurocurrency
Liabilities” in Regulation D of the Board). Such reserve percentages shall
include those imposed pursuant to such Regulation D. Eurodollar Loans
shall be deemed to constitute eurocurrency funding and to be subject to such
reserve requirements without benefit of or credit for proration, exemptions or
offsets that may be available from time to time to any Lender under such
Regulation D or any comparable regulation. The Statutory Reserve Rate
shall be adjusted automatically on and as of the effective date of any change
in any reserve percentage.


 


“Subordinated
Indebtedness” of any Person means any Indebtedness of such Person that is
subordinated in right of payment to any other Indebtedness of such Person.


 


“subsidiary”
means, with respect to any Person (the “parent”) at any date, any other
Person the accounts of which would be consolidated with those of the parent in
the parent’s consolidated financial statements if such financial statements
were prepared in accordance with GAAP as of such date, as well as any other
Person (a) of which Equity Interests representing more than 50% of the
equity or more than 50% of the ordinary voting power or, in the case of a
partnership, more than 50% of the general partnership interests are, as of such
date, owned, controlled or held, or (b) that is, as of such date,
otherwise Controlled, by the parent or one or more subsidiaries of the parent
or by the parent and one or more subsidiaries of the parent.


 


“Subsidiary”
means any subsidiary of Symmetry.


 


“Subsidiary
Party” means each Subsidiary other than (a) any Subsidiary that is not
a wholly-owned Subsidiary, where the organizational documents thereof or any
related joint venture or similar agreements prohibit such Subsidiary from
becoming a party to the Collateral Agreements without the prior consent of the
equityholders thereof (other than Symmetry and the Subsidiaries), and
(b) any Subsidiary (other than the Canadian Borrower and any of its
subsidiaries) that is a CFC.


 


“Supermajority
Lenders” means, at any time, Lenders having Revolving Exposures and unused
Revolving Commitments representing more than 75% of the sum of the total
Revolving Exposures and unused Revolving Commitments at such time.


 


40

















 


“Swingline
Exposure” means, at any time, the sum of the US Dollar Equivalents of the
principal amounts of all outstanding Swingline Loans at such time. The
Swingline Exposure of any Revolving Lender at any time shall be its Applicable
Percentage of the total Swingline Exposure at such time.


 


“Swingline
Lender” means JPMCB, in its capacity as lender of Swingline Loans hereunder
and its Applicable Lending Office (including its Toronto Branch) in respect of
Swingline Loans made to the Canadian Borrower.


 


“Swingline
Loan” means a Loan made pursuant to Section 2.05.


 


“Symmetry”
means Symmetry Holdings Inc., a Delaware corporation.


 


“Syndication
Agent” means, collectively, CIT Business Credit Canada Inc. and The CIT
Group/Business Credit, Inc., in their capacities as syndication agents for the
Lenders hereunder.


 


“Taxes”
means any and all present or future taxes, levies, imposts, duties, deductions,
charges or withholdings imposed by any Governmental Authority, including any
interest and penalties imposed in connection with any liability for any of the
foregoing.


 


“Termination
Event” means (a) the termination or partial termination of a Canadian
Pension Plan by Symmetry or any Subsidiary, (b) the institution of proceedings
by any Governmental Authority to terminate in whole or in part or have a third
party appointed to administer a Canadian Pension Plan or (c) any other event or
condition which might constitute grounds for the termination of, winding up or
partial termination or winding up or the appointment of a third party to
administer any Canadian Pension Plan.


 


“Transaction
Costs” means fees and expenses incurred in connection with the Transactions
on the Effective Date.


 


“Transactions”
means the Acquisition and the Financing Transactions.


 


“Type”,
when used in reference to any Loan or Borrowing, refers to whether the rate of
interest on such Loan, or on the Loans comprising such Borrowing, is determined
by reference to the Adjusted LIBO Rate, the Alternate Base Rate or the Canadian
Prime rate, or whether such Borrowing is by way of a BA Drawing.


 


“US
Borrower” means Novamerican Steel Finco Inc., a Delaware corporation.


 


“US
Borrower Revolving Exposure” means, with respect to any Lender at any time,
the sum of (a) the outstanding principal amount of such Lender’s Revolving
Loans to the US Borrower, (b) that portion of such Lender’s LC Exposure
attributable to Letters of Credit issued for the account of the US Borrower and
(c) that portion of such Lender’s Swingline Exposure attributable to Swingline
Loans made to the US Borrower.


 


41

















 


“US
Borrowing Base” has the meaning assigned to such term in the definition of “Borrowing
Base”.


 


“US Dollars”
or “US$” refers to lawful money of the United States of America.


 


“US Dollar
Equivalent” means, on any date of determination, (a) with respect to any
amount in US Dollars, such amount and (b) with respect to any amount in
Canadian Dollars, the equivalent in US Dollars of such amount, determined by
the Administrative Agent pursuant to Section 1.05 using the Exchange Rate with
respect to such currency at the time in effect under the provisions of such
Section.


 


“US Loan
Party” means any Loan Party that is not a CFC.


 


“US
Subsidiary” means any Subsidiary that is organized under the laws of the
United States of America, any State thereof or the District of Columbia.


 


“wholly-owned”,
when used in reference to a subsidiary of any Person, means any subsidiary of
such Person all the Equity Interests in which (other than directors’ qualifying
shares and other nominal amounts of Equity Interests that are required to be
held by other Persons under applicable law) are owned, controlled or held by
such Person, another wholly-owned subsidiary of such Person or any combination
thereof.


 


“Withdrawal
Liability” means liability to a Multiemployer Plan as a result of a
complete or partial withdrawal from such Multiemployer Plan, as such terms are
defined in Part I of Subtitle E of Title IV of ERISA.


 


SECTION 1.02. Classification
of Loans and Borrowings. For purposes of this Agreement, Loans may be
classified and referred to by Type (e.g., a “Eurocurrency Loan”). Borrowings
also may be classified and referred to by Type (e.g., a “Eurocurrency
Borrowing”).


 


SECTION 1.03. Terms
Generally. The definitions of terms herein shall apply equally to the
singular and plural forms of the terms defined. Whenever the context may
require, any pronoun shall include the corresponding masculine, feminine and
neuter forms. The words “include”, “includes” and “including” shall be deemed
to be followed by the phrase “without limitation”. The word “will” shall be
construed to have the same meaning and effect as the word “shall”. Unless the
context requires otherwise (a) any definition of or reference to any agreement,
instrument or other document herein shall be construed as referring to such
agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein), (b) any
definition of or reference to any statute, regulation or other law herein shall
be construed (i) as referring to such statute, regulation or other law as from
time to time amended, supplemented or otherwise modified (including by
succession of comparable successor statutes, regulations or other laws) and
(ii) to include all official rulings and interpretations thereunder having the
force of law or with which affected Persons 


 


42

















 


customarily comply, (c) any reference herein
to any Person shall be construed to include such Person’s successors and
assigns, (d) the words “herein”, “hereof” and “hereunder”, and words of similar
import, shall be construed to refer to this Agreement in its entirety and not
to any particular provision hereof, (e) all references herein to Articles,
Sections, Exhibits and Schedules shall be construed to refer to Articles and
Sections of, and Exhibits and Schedules to, this Agreement, and (f) the words “asset”
and “property” shall be construed to have the same meaning and effect and to
refer to any and all tangible and intangible assets and properties, including
cash, securities, accounts and contract rights.


 


SECTION 1.04. Accounting
Terms; GAAP; Pro Forma Calculations. (a) 
Except as otherwise expressly provided herein, all terms of an
accounting or financial nature shall be construed in accordance with GAAP, as
in effect from time to time; provided that, if a Borrower notifies the
Administrative Agent that it requests an amendment to any provision hereof to
eliminate the effect of any change occurring after the date hereof in GAAP or
in the application thereof on the operation of such provision (or if the
Administrative Agent notifies the Borrowers that the Required Lenders request
an amendment to any provision hereof for such purpose), regardless of whether
any such notice is given before or after such change in GAAP or in the
application thereof, then such provision shall be interpreted on the basis of
GAAP as in effect and applied immediately before such change shall have become
effective until such notice shall have been withdrawn or such provision amended
in accordance herewith. In the event that historical accounting practices,
systems or reserves relating to the components of the Aggregate Borrowing Base
or the Borrowing Base of either Borrower are modified in a manner that is
adverse to the Lenders in any material respect, the Borrowers will agree to
maintain such additional reserves (for purposes of computing the Aggregate
Borrowing Base and the Borrowing Base of each Borrower) in respect to the
components of the Aggregate Borrowing Base and the Borrowing Base of each
Borrower and make such other adjustments (which may include maintaining
additional reserves, modifying the advance rates or modifying the eligibility
criteria for the components of the Aggregate Borrowing Base and the Borrowing
Base of each Borrower) as may be required by the Administrative Agent in its
Permitted Discretion.


 


(b)  All pro forma computations required to be
made hereunder to give effect to any Material Acquisition, Material
Disposition, Permitted Acquisition, investment or other transaction shall be
calculated after giving pro forma effect thereto (and any other such
transaction consummated since the date as of which, or since the first day of
the period for which, such pro forma computation is being made and on or prior
to the date of such computation) as if such transaction had occurred on such
date (in the case of pro forma computations as of a specified date) or on the
first day of such period (in the case of pro forma computations for a specified
period), and, to the extent applicable, the historical earnings and cash flows
associated with the assets acquired or disposed of and any related incurrence
or reduction of Indebtedness, but shall not take into account any projected
synergies or similar benefits expected to be realized as a result of any such
transaction.


 


(c)  All pro forma computations of Excess
Availability required to be made hereunder shall be made after giving pro forma
effect to the transaction requiring such 


 


43

















 


computation and any other transaction
consummated since the date as of which such pro forma computation is made and
on or prior to the date of such computation.


 


SECTION 1.05. Currency
Translation. The Administrative Agent shall determine the US Dollar
Equivalent of any Borrowing or BA denominated in Canadian Dollars as of the
date on which such Borrowing is made or such BA is accepted and purchased and
as of the last Business Day of each subsequent calendar quarter, in each case
using the Exchange Rate for Canadian Dollars in relation to US Dollars in
effect on the last Business Day of the calendar quarter preceding the date of
such Borrowing or acceptance and purchase (or, if such Borrowing or acceptance
and purchase occurs on the last Business Day of a calendar quarter, on such
Business Day) and as of the last Business Day of such subsequent calendar
quarter, as the case may be, and each such amount shall be the US Dollar
Equivalent of such Borrowing or BA until the next required calculation thereof
pursuant to this sentence. The Administrative Agent shall determine the US
Dollar Equivalent of any Letter of Credit denominated in Canadian Dollars as of
the date such Letter of Credit is issued, amended to increase its face amount,
extended or renewed and as of the last Business Day of each subsequent calendar
quarter, in each case using the Exchange Rate for Canadian Dollars in relation
to US Dollars in effect on the date that is three Business Days prior to the date
on which such Letter of Credit is issued, amended to increase its face amount,
extended or renewed and as of the last Business Day of such subsequent calendar
quarter, as the case may be, and each such amount shall be the US Dollar
Equivalent of such Letter of Credit until the next required calculation thereof
pursuant to this sentence. The Administrative Agent shall notify the Borrowers
and the Lenders of each calculation of the US Dollar Equivalent of each
Borrowing, BA or Letter of Credit.


 


SECTION 1.06. Status
of Obligations. (a)  Symmetry and the
Borrowers represent, warrant and agree that the Obligations will at all times
constitute “Credit Agreement Obligations” under and as defined in the Senior
Notes Documents.


 


(b)  In the event that Symmetry or any Subsidiary
shall at any time issue or have outstanding any Subordinated Indebtedness,
Symmetry and the Borrowers shall take or cause such Subsidiary to take all such
actions as shall be necessary to cause the Loan Documents Obligations to
constitute senior indebtedness (however denominated) in respect of such
Subordinated Indebtedness and to enable the Lenders to have and exercise any
payment blockage or other remedies available or potentially available to
holders of senior indebtedness under the terms of such Subordinated
Indebtedness. Without limiting the foregoing, the Loan Documents Obligations
are hereby designated as “senior indebtedness” and as “designated senior
indebtedness” under and in respect of any indenture or other agreement or
instrument under which Subordinated Indebtedness is outstanding and are further
given all such other designations as shall be required under the terms of any
such Subordinated Indebtedness in order that the Lenders or the Administrative
Agent may have and exercise any payment blockage or other remedies available or
potentially available to holders of senior indebtedness under the terms of such
Subordinated Indebtedness.


 


44

















 


SECTION 1.07. Effectuation
of Transfers. Each of the representations and warranties of Symmetry and
the Borrowers contained in this Agreement (and all corresponding definitions)
are made after giving effect to the Acquisition and the other Transactions to
occur on the Effective Date, unless the context otherwise requires.


 


ARTICLE II


 


The Credits


 


SECTION 2.01. Revolving
Commitments. Subject to the terms and conditions set forth herein, each
Lender agrees from time to time during the Revolving Availability Period to (a)
make Revolving Loans denominated in US Dollars to the US Borrower, (b) make
Revolving Loans denominated in US Dollars or Canadian Dollars to the Canadian
Borrower and (c) accept and purchase drafts drawn by the Canadian Borrower in
Canadian Dollars as BAs, in each case in an aggregate principal amount that
will not result in (i) such Lender’s Revolving Exposure exceeding such Lender’s
Revolving Commitment, (ii) the sum of the US Borrower Revolving Exposures
exceeding the US Borrowing Base then in effect, (iii) the sum of the
Canadian Borrower Revolving Exposures exceeding the Canadian Borrower Sublimit,
(iv) the sum of the Revolving Exposures exceeding the lesser of (A) the
Aggregate Borrowing Base then in effect and (B) the aggregate Revolving
Commitments then in effect, or (v) the sum of the Revolving Exposures on the
Effective Date exceeding US$70,000,000. Within the foregoing limits and subject
to the terms and conditions set forth herein, the Borrowers may borrow, prepay
and reborrow Revolving Loans and sell and pay drafts drawn as BAs.


 


SECTION 2.02. Loans
and Borrowings. (a)  Each  Loan (other than a Swingline Loan) shall be
made as part of a Borrowing consisting of Loans of the same Type and currency
made by the Lenders ratably in accordance with their respective Revolving
Commitments. The failure of any Lender to make any Loan required to be made by
it shall not relieve any other Lender of its obligations hereunder; provided
that the Revolving Commitments of the Lenders are several and no Lender shall
be responsible for any other Lender’s failure to make Loans as required.


 


(b)  Subject to Section 2.15, (i) each
Revolving Borrowing denominated in US Dollars shall be comprised entirely of
ABR Loans or Eurocurrency Loans as the applicable Borrower may request in
accordance herewith; provided that all Borrowings made on the Effective
Date must be made as ABR Borrowings unless the Borrowers shall have provided an
indemnity satisfactory to the Administrative Agent extending the benefits of
Section 2.17 to Lenders in respect of such Borrowings; and (ii) each Revolving
Borrowing denominated in Canadian Dollars shall be comprised entirely of
Canadian Prime Revolving Loans. Each Swingline Loan denominated in US Dollars
shall be an ABR Loan and each Swingline Loan denominated in Canadian Dollars shall
be a Canadian Prime Loan. Each Protective Advance shall be an ABR Loan. Each
Lender at its option may make any Loan, accept and purchase any BA or issue any
Letter of Credit by causing any domestic or foreign branch or Affiliate of such
Lender to make such Loan, accept and purchase any BA or issue any Letter of
Credit, and any exercise of 


 


45

















 


such option shall not affect the obligation
of the applicable Borrower to repay such Loan or discharge such BA in
accordance with the terms of this Agreement.


 


(c)  At the commencement of each Interest Period
for any Eurocurrency Borrowing, such Borrowing shall be in an aggregate amount
that is an integral multiple of the Borrowing Multiple and not less than the
Borrowing Minimum; provided that an ABR Revolving Borrowing may be in an
aggregate amount that is equal to the entire unused balance of the total
Revolving Commitments or that is required to finance the repayment of a
Protective Advance as contemplated by Section 2.04(a) or the reimbursement
of an LC Disbursement as contemplated by Section 2.06(e). Borrowings of more
than one Type may be outstanding at the same time; provided that there
shall not at any time be more than a total of six Eurocurrency Borrowings outstanding.


 


(d)  Notwithstanding any other provision of this
Agreement, a Borrower shall not be entitled to request, or to elect to convert
or continue, any Borrowing if the Interest Period requested with respect
thereto would end after the Revolving Maturity Date.


 


(e)  Notwithstanding any other provision in this
Agreement, (i) each Lender that is a party to this Agreement on the date hereof
and that has made any Loan to the Canadian Borrower or accepted and purchased
any BA (or, if applicable, the branch or Affiliate of any such Lender that has
made any Loan to the Canadian Borrower or accepted and purchased any BA) shall,
for so long as any such Loan is outstanding or any such BA has not been repaid,
be a Canadian Resident unless the Canadian Borrower has been informed in
writing that such Person is not a Canadian Resident and (ii) all fees paid by
the Canadian Borrower pursuant to Section 2.13(b) will be paid for the account
of Persons that are Canadian Residents, unless the Canadian Borrower has been informed
in writing that any such Person is not a Canadian Resident; provided
that the provisions of this paragraph shall cease to apply, and shall have no
force or effect, at any time when, and to the extent, the ITA (or specific,
written and publicly announced proposed amendments to the ITA) does not require
the withholding of taxes pursuant to paragraph 212(1)(b) of the ITA on interest
that is not “participating debt interest” paid to non-resident persons that
deal at arm’s length with the payor for the purposes of the ITA.


 


SECTION 2.03. Requests
for Borrowings. To request a Revolving Borrowing, the applicable Borrower
shall notify the Administrative Agent of such request by telephone (a) in the
case of a Eurocurrency Borrowing, not later than 11:00 a.m., New York time,
three Business Days before the date of the proposed Borrowing or (b) in
the case of an ABR Borrowing or a Canadian Prime Borrowing, not later than
11:00 a.m., Local Time, one Business Day before the date of the proposed
Borrowing; provided that any such notice of an ABR Revolving Borrowing
to finance the repayment of a Protective Advance as contemplated by
Section 2.04(a) or the reimbursement of an LC Disbursement as contemplated
by Section 2.06(e) may be given not later than 10:00 a.m., Local Time, on
the date of the proposed Borrowing. Each such telephonic Borrowing Request
shall be irrevocable and shall be confirmed promptly by hand delivery or
facsimile to the Administrative Agent of a written Borrowing Request in a form
approved by the Administrative Agent and signed by the applicable Borrower. Each
such 


 


46

















 


telephonic and written Borrowing Request
shall specify the following information in compliance with Section 2.02:


 


(i) the Borrower requesting such Borrowing;


 


(ii) the currency and aggregate amount of such Borrowing;


 


(iii) the date of such Borrowing, which shall be a Business Day;


 


(iv) whether such Borrowing is to be an ABR Borrowing, a Canadian Prime
Borrowing or a Eurocurrency Borrowing;


 


(v) in the case of a Eurocurrency Borrowing, the initial Interest
Period to be applicable thereto, which shall be a period contemplated by the
definition of the term “Interest Period”; and


 


(vi) the Applicable Funding Account.


 


If no election
as to the Type of Borrowing is specified, then the requested Borrowing shall be
(i) if denominated in US Dollars, an ABR Revolving Borrowing, or (ii) if
denominated in Canadian Dollars, a Canadian Prime Revolving Borrowing. If no
Interest Period is specified with respect to any requested Eurocurrency
Revolving Borrowing, then the applicable Borrower shall be deemed to have
selected an Interest Period of one month’s duration. Promptly following receipt
of a Borrowing Request in accordance with this Section, the Administrative
Agent shall advise each Lender of the details thereof and of the amount of such
Lender’s Loan to be made as part of the requested Borrowing.


 


SECTION 2.04. Protective
Advances. (a)  Subject to the
limitations set forth below, the Administrative Agent is authorized by the
Borrowers and the Lenders, from time to time in the Administrative Agent’s sole
discretion (but the Administrative Agent shall have absolutely no obligation),
to make Loans in US Dollars to the Borrowers, on behalf of all Lenders, which
the Administrative Agent, in its Permitted Discretion, deems necessary or
desirable (i) to preserve or protect the Collateral, or any portion thereof,
(ii) to enhance the likelihood of, or maximize the amount of, repayment of the
Loans and other Loan Documents Obligations or (iii) to pay any other amount
chargeable to or required to be paid by the Borrowers pursuant to the terms of
this Agreement, including payments of reimbursable expenses (including costs,
fees and expenses as described in Section 9.03) and other sums payable under
the Loan Documents (any such Loans being referred to as “Protective Advances”);
provided that, no Protective Advance shall be made if after giving
effect thereto (A) the Revolving Exposures would exceed the Revolving Commitments
or (B) the aggregate principal amount of the outstanding Protective
Advances would exceed US$15,000,000. Protective Advances may be made even if
the conditions precedent set forth in Section 4.02 have not been satisfied. The
Protective Advances shall constitute Loan Documents Obligations hereunder and
shall be secured as provided in the Security Documents. All Protective Advances
shall be ABR Borrowings. The Administrative Agent’s authorization to make
Protective Advances may be revoked at any time by the Required Lenders. Any
such revocation must be in writing and shall become effective 


 


47

















 


prospectively upon the Administrative Agent’s
receipt thereof. The Administrative Agent may at any time (i) subject to the
limitations set forth in Section 2.01 and to the satisfaction of the
conditions set forth in Section 4.02, request, on behalf of any Borrower,
the Revolving Lenders to make ABR Revolving Loans to repay any Protective
Advance or (ii) require the Lenders to fund their risk participations in any
Protective Advance as provided in paragraph (b) of this Section.


 


(b)  The Administrative Agent may, by notice given
not later than 10:00 a.m., New York City time, on any Business Day,
require the Revolving Lenders to acquire participations on such Business Day in
all or a portion of the Protective Advances outstanding. Such notice shall
specify the aggregate amount of Protective Advances in which the Revolving
Lenders will participate and each Lender’s Applicable Percentage of such
Protective Advances. Each Revolving Lender hereby absolutely and
unconditionally agrees, upon receipt of notice as provided above, to pay to the
Administrative Agent such Lender’s Applicable Percentage of such Protective
Advances. Each Revolving Lender acknowledges and agrees that its obligation to
acquire participations in Protective Advances pursuant to this paragraph is
absolute and unconditional and shall not be affected by any circumstance
whatsoever, including the occurrence and continuance of a Default or reduction
or termination of the Revolving Commitments, and that each such payment shall
be made without any offset, abatement, withholding or reduction whatsoever. Each
Revolving Lender shall comply with its obligation under this paragraph by wire
transfer of immediately available funds, in the same manner as provided in
Section 2.08 with respect to Loans made by such Lender (and
Section 2.08 shall apply, mutatis  mutandis, to the payment
obligations of the Revolving Lenders). Any amounts received by the
Administrative Agent from a Borrower (or other party on behalf of a Borrower)
in respect of a Protective Advance after receipt by the Administrative Agent of
the proceeds of a sale of participations therein shall be promptly remitted by
the Administrative Agent to the Revolving Lenders that shall have made their
payments pursuant to this paragraph as their interests may appear; provided
that any such payment so remitted shall be repaid to the Administrative Agent
if and to the extent such payment is required to be refunded to a Borrower for
any reason. The purchase of participations in a Protective Advance pursuant to
this paragraph shall not relieve the applicable Borrower of any default in the
payment thereof.


 


SECTION 2.05. Swingline
Loans. (a)  Subject to the terms and
conditions set forth herein, the Swingline Lender agrees from time to time
during the Revolving Availability Period to make Swingline Loans to the US
Borrower, denominated in US Dollars, and to the Canadian Borrower, denominated
in US Dollars or Canadian Dollars as the Canadian Borrower shall request, in
each case in an aggregate principal amount at any time outstanding that will
not result in (i) the US Dollar Equivalents of the aggregate principal amount
of outstanding Swingline Loans exceeding US$15,000,000, (ii) any Lender’s
Revolving Exposure exceeding such Lender’s Revolving Commitment, (iii) the sum
of the US Borrower Revolving Exposures exceeding the US Borrowing Base then in
effect, (iv) the sum of the Canadian Borrower Revolving Exposures
exceeding the Canadian Borrower Sublimit or (v) the sum of the Revolving
Exposures exceeding the lesser of (A) the Aggregate Borrowing Base then in
effect and (B) the aggregate Revolving Commitments then in effect; provided
that the 


 


48

















 


Swingline Lender shall not be required to
make a Swingline Loan to refinance an outstanding Swingline Loan. Within the
foregoing limits and subject to the terms and conditions set forth herein, the
Borrowers may borrow, prepay and reborrow Swingline Loans.


 


(b)  To request a Swingline Loan, the applicable
Borrower shall notify the Administrative Agent of such request by telephone
(confirmed by facsimile), not later than 12:00 noon, Local Time, on the day of
a proposed Swingline Loan. Each such notice shall be irrevocable and shall
specify the requested date (which shall be a Business Day) and amount of the
requested Swingline Loan. The Administrative Agent will promptly advise the
Swingline Lender of any such notice received from a Borrower. The Swingline
Lender shall make each Swingline Loan available to the applicable Borrower by
means of a credit to the Applicable Funding Account (or, in the case of a
Swingline Loan made to finance the reimbursement of an LC Disbursement as
provided in Section 2.06(e), by remittance to the applicable Issuing Bank)
by 3:00 p.m., Local Time, on the requested date of such Swingline Loan.


 


(c)  The Swingline Lender may by written notice
given to the Administrative Agent not later than 10:00 a.m., New York City
time, on any Business Day require the Revolving Lenders to acquire
participations on such Business Day in all or a portion of the Swingline Loans
outstanding. Such notice shall specify the aggregate amount of Swingline Loans
in which Revolving Lenders will participate. Promptly upon receipt of such
notice, the Administrative Agent will give notice thereof to each Revolving
Lender, specifying in such notice such Lender’s Applicable Percentage of such
Swingline Loan or Loans. Each Revolving Lender hereby absolutely and
unconditionally agrees, upon receipt of notice as provided above, to pay to the
Administrative Agent, for the account of the Swingline Lender, such Lender’s
Applicable Percentage of such Swingline Loan or Loans. Each Revolving Lender
acknowledges and agrees that its obligation to acquire participations in
Swingline Loans pursuant to this paragraph is absolute and unconditional and
shall not be affected by any circumstance whatsoever, including the occurrence
and continuance of a Default or reduction or termination of the Revolving
Commitments, and that each such payment shall be made without any offset,
abatement, withholding or reduction whatsoever. Each Revolving Lender shall
comply with its obligation under this paragraph by wire transfer of immediately
available funds, in the same manner as provided in Section 2.08 with
respect to Loans made by such Lender (and Section 2.08 shall apply, mutatis
mutandis, to the payment obligations of the Revolving Lenders), and the
Administrative Agent shall promptly pay to the Swingline Lender the amounts so
received by it from the Revolving Lenders. The Administrative Agent shall
notify the applicable Borrower of any participations in any Swingline Loan acquired
pursuant to this paragraph, and thereafter payments in respect of such
Swingline Loan shall be made to the Administrative Agent and not to the
Swingline Lender. Any amounts received by the Swingline Lender from a Borrower
(or other party on behalf of a Borrower) in respect of a Swingline Loan after
receipt by the Swingline Lender of the proceeds of a sale of participations
therein shall be promptly remitted to the Administrative Agent; any such
amounts received by the Administrative Agent shall be promptly remitted by the
Administrative Agent to the Revolving Lenders that shall have made their
payments pursuant to this paragraph and to the Swingline Lender, as their 


 


49

















 


interests may appear; provided that
any such payment so remitted shall be repaid to the Swingline Lender or to the
Administrative Agent, as applicable, if and to the extent such payment is
required to be refunded to a Borrower for any reason. The purchase of
participations in a Swingline Loan pursuant to this paragraph shall not relieve
the applicable Borrower of any default in the payment thereof.


 


SECTION 2.06. Letters
of Credit. (a)  General. Subject
to the terms and conditions set forth herein, each Borrower may request the
issuance of Letters of Credit for its own account, in a form reasonably
acceptable to the Administrative Agent and the applicable Issuing Bank, at any
time and from time to time during the Revolving Availability Period. In the
event of any inconsistency between the terms and conditions of this Agreement
and the terms and conditions of any letter of credit application or other
agreement submitted by a Borrower to, or entered into by a Borrower with, an
Issuing Bank relating to any Letter of Credit, the terms and conditions of this
Agreement shall control. Each Existing Letter of Credit shall be deemed, for
all purposes of this Agreement (including paragraphs (d) and (e) of this
Section) to be a Letter of Credit issued hereunder for the account of the US
Borrower. The US Borrower unconditionally and irrevocably agrees that, in
connection with any Existing Letter of Credit, it will be fully responsible for
the reimbursement of LC Disbursements, the payment of interest thereon and the
payment of fees due under Section 2.13(b) to the same extent as if it were
the account party in respect of such Existing Letter of Credit.


 


(b)  Notice of Issuance, Amendment, Renewal,
Extension; Certain Conditions. To request the issuance of a Letter of
Credit (or the amendment, renewal or extension of an outstanding Letter of
Credit), a Borrower shall hand deliver or fax to an Issuing Bank and the
Administrative Agent (reasonably in advance of the requested date of issuance,
amendment, renewal or extension) a notice requesting the issuance of a Letter
of Credit, or identifying the Letter of Credit to be amended, renewed or
extended, and specifying the date of issuance, amendment, renewal or extension
(which shall be a Business Day), the date on which such Letter of Credit is to
expire (which shall comply with paragraph (c) of this Section), the amount
of such Letter of Credit, the currency of such Letter of Credit (which shall be
US Dollars or Canadian Dollars), the name and address of the beneficiary
thereof and such other information as shall be necessary to enable the Issuing
Bank to prepare, amend, renew or extend such Letter of Credit. If requested by
the Issuing Bank, the applicable Borrower also shall submit a letter of credit
application on such Issuing Bank’s standard form in connection with any request
for a Letter of Credit. A Letter of Credit shall be issued, amended, renewed or
extended only if (and upon issuance, amendment, renewal or extension of each
Letter of Credit the applicable Borrower shall be deemed to represent and
warrant that), immediately after giving effect to such issuance, amendment,
renewal or extension (i) the LC Exposure shall not exceed US$25,000,000,
(ii) the amount of the LC Exposure attributable to Letters of Credit issued by
the applicable Issuing Bank shall not exceed the LC Commitment of such Issuing
Bank, (iii) no Lender’s Revolving Exposure shall exceed such Lender’s
Revolving Commitment, (iv) the sum of the US Borrower Revolving Exposures shall
not exceed the US Borrowing Base then in effect, (v) the sum of the
Canadian Borrower Revolving Exposures shall not exceed the Canadian Borrower
Sublimit and (vi) the sum of the Revolving Exposures shall not exceed the
lesser of (A) 


 


50

















 


the Aggregate Borrowing Base then in effect
and (B) the aggregate Revolving Commitments then in effect.


 


(c)  Expiration Date. Each Letter of Credit
shall expire at or prior to the close of business on the earlier of
(i) the date one year after the date of the issuance of such Letter of Credit
(or, in the case of any renewal or extension thereof, one year after such
renewal or extension) and (ii) the date that is five Business Days prior
to the Revolving Maturity Date. A Letter of Credit may provide for automatic
renewals for additional periods of up to one year subject to a right on the
part of the applicable Issuing Bank to prevent any such renewal from occurring
by giving notice to the beneficiary during a specified period in advance of any
such renewal, and the failure of such Issuing Bank to give such notice by the
end of such period shall for all purposes hereof be deemed an extension of such
Letter of Credit; provided that in no event shall any Letter of Credit,
as extended from time to time, expire after the date that is five Business Days
prior to the Revolving Maturity Date.


 


(d)  Participations. By the issuance of a
Letter of Credit (or an amendment to a Letter of Credit increasing the amount
thereof) and without any further action on the part of the applicable Issuing
Bank or the Lenders, such Issuing Bank hereby grants to each Revolving Lender,
and each Revolving Lender hereby acquires from such Issuing Bank, a
participation in such Letter of Credit equal to such Lender’s Applicable
Percentage of the aggregate amount available to be drawn under such Letter of
Credit. In consideration and in furtherance of the foregoing, each Revolving
Lender hereby absolutely and unconditionally agrees to pay to the
Administrative Agent, for the account of such Issuing Bank, such Lender’s
Applicable Percentage of each LC Disbursement made by such Issuing Bank and not
reimbursed by the applicable Borrower on the date due as provided in paragraph
(e) of this Section, or of any reimbursement payment required to be refunded to
such Borrower for any reason. Each Lender acknowledges and agrees that its
obligation to acquire participations pursuant to this paragraph in respect of
Letters of Credit is absolute and unconditional and shall not be affected by
any circumstance whatsoever, including any amendment, renewal or extension of
any Letter of Credit or the occurrence and continuance of a Default or
reduction or termination of the Revolving Commitments, and that each such
payment shall be made without any offset, abatement, withholding or reduction
whatsoever.


 


(e)  Reimbursement. If an Issuing Bank
shall make any LC Disbursement in respect of a Letter of Credit, the applicable
Borrower shall reimburse such LC Disbursement by paying to the Administrative
Agent an amount equal to such LC Disbursement not later than 12:00 noon, Local
Time, on the date that such LC Disbursement is made, if such Borrower shall
have received notice of such LC Disbursement prior to 10:00 a.m., Local Time,
on such date, or, if such notice shall not have been received by such Borrower
prior to such time on such date, then not later than 12:00 noon, Local Time, on
(i) the Business Day that such Borrower receives such notice, if such notice is
received prior to 10:00 a.m., New York City time, on the day of receipt, or
(ii) the Business Day immediately following the day that such Borrower receives
such notice, if such notice is not received prior to such time on the day of
receipt; provided, that, if such LC Disbursement is not less than
US$500,000 (in the case 


 


51

















 


of an LC Disbursement in US Dollars) or
Cdn.$500,000 (in the case of an LC Disbursement in Canadian Dollars), the
applicable Borrower may, subject to the conditions to borrowing set forth
herein, request in accordance with Section 2.03 or 2.05 that such payment be
financed with an ABR Revolving Borrowing or Canadian Prime Rate Revolving
Borrowing, as applicable, or a Swingline Loan in an equivalent amount and, to
the extent so financed, such Borrower’s obligation to make such payment shall
be discharged and replaced by the resulting ABR Revolving Borrowing, Canadian
Prime Revolving Borrowing or Swingline Loan. If the applicable Borrower fails
to make such payment when due, the Administrative Agent shall notify each
Revolving Lender of the applicable LC Disbursement, the payment then due from
such Borrower in respect thereof and such Lender’s Applicable Percentage
thereof. Promptly following receipt of such notice, each Revolving Lender shall
pay to the Administrative Agent its Applicable Percentage of the payment then
due from such Borrower, in the same manner as provided in Section 2.08
with respect to Loans made by such Lender (and Section 2.08 shall apply, mutatis
mutandis, to the payment obligations of the Revolving Lenders), and the
Administrative Agent shall promptly pay to the applicable Issuing Bank the
amounts so received by it from the Revolving Lenders. Promptly following
receipt by the Administrative Agent of any payment from a Borrower pursuant to
this paragraph, the Administrative Agent shall distribute such payment to the
applicable Issuing Bank or, to the extent that Revolving Lenders have made
payments pursuant to this paragraph to reimburse such Issuing Bank, then to
such Lenders and such Issuing Bank as their interests may appear. Any payment
made by a Revolving Lender pursuant to this paragraph to reimburse an Issuing
Bank for any LC Disbursement (other than the funding of ABR Revolving Loans,
Canadian Prime Revolving Loans or a Swingline Loan as contemplated above) shall
not constitute a Loan and shall not relieve the applicable Borrower of its
obligation to reimburse such LC Disbursement.


 


(f)  Obligations Absolute. Each Borrower’s
obligation to reimburse LC Disbursements as provided in paragraph (e) of
this Section shall be absolute, unconditional and irrevocable, and shall be
performed strictly in accordance with the terms of this Agreement under any and
all circumstances whatsoever and irrespective of (i) any lack of validity or
enforceability of any Letter of Credit or this Agreement, or any term or
provision therein, (ii) any draft or other document presented under a Letter of
Credit proving to be forged, fraudulent or invalid in any respect or any
statement therein being untrue or inaccurate in any respect, (iii) payment by
an Issuing Bank under a Letter of Credit against presentation of a draft or
other document that does not comply with the terms of such Letter of Credit, or
(iv) any other event or circumstance whatsoever, whether or not similar to any
of the foregoing, that might, but for the provisions of this Section,
constitute a legal or equitable discharge of, or provide a right of setoff
against, a Borrower’s obligations hereunder. None of the Administrative Agent,
the Lenders or the Issuing Banks, or any of their Related Parties, shall have
any liability or responsibility by reason of or in connection with the issuance
or transfer of any Letter of Credit or any payment or failure to make any
payment thereunder (irrespective of any of the circumstances referred to in the
preceding sentence), or any error, omission, interruption, loss or delay in
transmission or delivery of any draft, notice or other communication under or
relating to any Letter of Credit (including any document required to make a
drawing thereunder), any error in interpretation of technical terms or any
consequence 


 


52

















 


arising from causes beyond the control of an
Issuing Bank; provided that the foregoing shall not be construed to
excuse an Issuing Bank from liability to the applicable Borrower to the extent
of any direct damages (as opposed to consequential damages, claims in respect
of which are hereby waived by each Borrower to the extent permitted by
applicable law) suffered by a Borrower that are caused by an Issuing Bank’s
failure to exercise care when determining whether drafts and other documents
presented under a Letter of Credit comply with the terms thereof. The parties
hereto expressly agree that, in the absence of gross negligence or wilful
misconduct on the part of an Issuing Bank (as finally determined by a court of
competent jurisdiction), such Issuing Bank shall be deemed to have exercised
care in each such determination. In furtherance of the foregoing and without
limiting the generality thereof, the parties agree that, with respect to
documents presented which appear on their face to be in substantial compliance
with the terms of a Letter of Credit, an Issuing Bank may, in its sole
discretion, either accept and make payment upon such documents without
responsibility for further investigation, regardless of any notice or
information to the contrary, or refuse to accept and make payment upon such
documents if such documents are not in strict compliance with the terms of such
Letter of Credit.


 


(g)  Disbursement Procedures. The
applicable Issuing Bank shall, promptly following its receipt thereof, examine
all documents purporting to represent a demand for payment under a Letter of
Credit. Such Issuing Bank shall promptly notify the Administrative Agent and
the applicable Borrower by telephone (confirmed by facsimile) of such demand
for payment and whether such Issuing Bank has made or will make an LC
Disbursement thereunder; provided that any failure to give or delay in
giving such notice shall not relieve the applicable Borrower of its obligation
to reimburse such Issuing Bank and the Revolving Lenders with respect to any
such LC Disbursement.


 


(h)  Interim Interest. If an Issuing Bank
shall make any LC Disbursement, then, unless the applicable Borrower shall
reimburse such LC Disbursement in full on the date such LC Disbursement is
made, the unpaid amount thereof shall bear interest, for each day from and
including the date such LC Disbursement is made to but excluding the date that
the applicable Borrower reimburses such LC Disbursement, at the rate per annum
then applicable to ABR Revolving Loans; provided that, if a Borrower
fails to reimburse such LC Disbursement when due pursuant to paragraph (e)
of this Section, then Section 2.14(d) shall apply. Interest accrued pursuant to
this paragraph shall be for the account of the applicable Issuing Bank, except
that interest accrued on and after the date of payment by any Revolving Lender
pursuant to paragraph (e) of this Section to reimburse such Issuing Bank shall
be for the account of such Lender to the extent of such payment, and shall be
payable on demand or, if no demand has been made, on the date on which the
applicable Borrower reimburses the applicable LC Disbursement in full.


 


(i)  Replacement of an Issuing Bank. An
Issuing Bank may be replaced at any time by written agreement among the
Borrowers, the Administrative Agent, the replaced Issuing Bank and the
successor Issuing Bank. The Administrative Agent shall notify the Lenders of
any such replacement of an Issuing Bank. At the time any such replacement shall
become effective, the Borrowers shall pay all unpaid fees accrued for the
account of the replaced Issuing Bank pursuant to Section 2.13(b). From and
after the 


 


53

















 


effective date of any such replacement, (i)
the successor Issuing Bank shall have all the rights and obligations of an
Issuing Bank under this Agreement with respect to Letters of Credit to be
issued by it thereafter and (ii) references herein to the term “Issuing Bank”
shall be deemed to refer to such successor or to any previous Issuing Bank as
the context shall require. After the replacement of an Issuing Bank hereunder,
the replaced Issuing Bank shall remain a party hereto and shall continue to
have all the rights and obligations of an Issuing Bank under this Agreement
with respect to Letters of Credit issued by it prior to such replacement, but
shall not be required to issue additional Letters of Credit.


 


(j)  Cash Collateralization. If any Event
of Default shall occur and be continuing, on the Business Day that the
Borrowers receive notice from the Administrative Agent or the Required Lenders
(or, if the maturity of the Loans has been accelerated, Revolving Lenders with
LC Exposures representing greater than 50% of the total LC Exposure) demanding
the deposit of cash collateral pursuant to this paragraph, each Borrower shall
deposit in an account with the Administrative Agent, in the name of the
Administrative Agent and for the benefit of the Lenders, an amount in cash
equal to 105% of the LC Exposure in respect of Letters of Credit outstanding
and issued for the account of such Borrower as of such date plus any accrued
and unpaid interest thereon; provided that the obligation to deposit
such cash collateral shall become effective immediately, and such deposit shall
become immediately due and payable, without demand or other notice of any kind,
upon the occurrence of any Event of Default with respect to a Borrower described
in clause (h) or (i) of Article VII. Each Borrower also shall deposit
cash collateral pursuant to this paragraph as and to the extent required by
Section 2.12(b), and any such cash collateral so deposited and held by the
Administrative Agent hereunder shall constitute part of the US Borrowing Base
or the Canadian Borrowing Base, as applicable, for purposes of determining
compliance with Section 2.12(b). Each such deposit shall be held by the
Administrative Agent as collateral for the payment and performance of the
obligations of the Borrowers under this Agreement. The Administrative Agent
shall have exclusive dominion and control, including the exclusive right of
withdrawal, over such account. Other than any interest earned on the investment
of such deposits, which investments shall be made at the option and sole
discretion of the Administrative Agent and at the applicable Borrower’s risk
and expense, such deposits shall not bear interest. Interest or profits, if
any, on such investments shall accumulate in such account. Moneys in such
account shall be applied by the Administrative Agent to reimburse an Issuing
Bank for LC Disbursements for which it has not been reimbursed and, to the
extent not so applied, shall be held for the satisfaction of the reimbursement
obligations of the Borrowers for the LC Exposure at such time or, if the
maturity of the Loans has been accelerated (but subject to the consent of
Revolving Lenders with LC Exposure 
representing greater than 50% of the total LC Exposure), be applied to
satisfy other obligations of the Borrowers under this Agreement. If a Borrower
is required to provide an amount of cash collateral hereunder as a result of
the occurrence of an Event of Default, such amount (to the extent not applied
as aforesaid) shall be returned to such Borrower within three Business Days
after all Events of Default have been cured or waived. If a Borrower is
required to provide an amount of cash collateral hereunder pursuant to
Section 2.12(b), such amount (to the extent not applied as aforesaid)
shall be returned to such Borrower as and to the extent that, after 


 


54

















 


giving effect to such return, such Borrower
would remain in compliance with Section 2.12(b) and no Default shall have
occurred and be continuing.


 


(k)  Designation of Additional Issuing Banks.
From time to time, the Borrowers may by notice to the Administrative Agent and
the Lenders designate as additional Issuing Banks one or more Lenders that
agree to serve in such capacity as provided below. The acceptance by a Lender
of any appointment as an Issuing Bank hereunder shall be evidenced by an
agreement (an “Issuing Bank Agreement”), which shall be in a form
satisfactory to the Borrowers and the Administrative Agent, shall set forth the
LC Commitment of such Lender and shall be executed by such Lender, the
Borrowers and the Administrative Agent and, from and after the effective date
of such agreement, (i) such Lender shall have all the rights and obligations of
an Issuing Bank under this Agreement and the other Loan Documents and (ii)
references herein and in the other Loan Documents to the term “Issuing Bank”
shall be deemed to include such Lender in its capacity as an Issuing Bank. The
Issuing Bank Agreement of any Issuing Bank may limit the currencies in which
and the Borrowers for the accounts of which such Issuing Bank will issue
Letters of Credit, and any such limitations will, as to such Issuing Bank, be
deemed to be incorporated in this Agreement.


 


(l)  Issuing Bank Reports. Unless otherwise
agreed by the Administrative Agent, each Issuing Bank shall report in writing
to the Administrative Agent (which shall promptly provide notice to the Lenders
of the contents thereof) (i) on the first Business Day of each week, the daily
activity (set forth by day) in respect of Letters of Credit during the
immediately preceding week, including all issuances, extensions, amendments and
renewals, all expirations and cancelations and all disbursements and
reimbursements, (ii) on or prior to each Business Day on which such
Issuing Bank issues, amends, renews or extends any Letter of Credit, the date
of such issuance, amendment, renewal or extension, and the currencies and face
amounts of the Letters of Credit issued, amended, renewed or extended by it and
outstanding after giving effect to such issuance, amendment, renewal or
extension (and whether the amounts thereof shall have changed), it being
understood that such Issuing Bank shall not effect any issuance, renewal,
extension or amendment resulting in an increase in the aggregate amount of the
Letters of Credit issued by it without first obtaining written confirmation
from the Administrative Agent that such increase is then permitted under this
Agreement, (iii) on each Business Day on which such Issuing Bank makes any LC
Disbursement, the date, currency and amount of such LC Disbursement, (iv) on
any Business Day on which the applicable Borrower fails to reimburse an LC
Disbursement required to be reimbursed to such Issuing Bank on such day, the
date of such failure and the currency and amount of such LC Disbursement, and
(v) on any other Business Day, such other information as the Administrative
Agent shall reasonably request as to the Letters of Credit issued by such
Issuing Bank.


 


SECTION 2.07. Canadian
Bankers’ Acceptances. (a)  Each
acceptance and purchase of BAs of a single Contract Period pursuant to Section
2.01 and this Section shall be made ratably by the Lenders in accordance with
the amounts of their Revolving Commitments. The failure of any Lender to accept
any BA required to be accepted by it shall not relieve any other Lender of its
obligations hereunder; provided that the 


 


55

















 


Revolving Commitments are several and no
Lender shall be responsible for any other Lender’s failure to accept BAs as
required.


 


(b)  The BAs of a single Contract Period accepted
and purchased on any date shall be in an aggregate amount that is an integral
multiple of the Borrowing Multiple and not less than the Borrowing Minimum. If
any Lender’s ratable share of the BAs of any Contract Period to be accepted on
any date would not be an integral multiple of Cdn.$100,000, the face amount of
the BAs accepted by such Lender may be increased or reduced to the nearest
integral multiple of Cdn.$100,000 by the Administrative Agent in its sole
discretion. BAs of more than one Contract Period may be outstanding at the same
time; provided that there shall not at any time be more than a total of
six BA Drawings outstanding at any time.


 


(c)  To request an acceptance and purchase of BAs,
the Canadian Borrower shall notify the Administrative Agent of such request by
telephone not later than 12:00 noon., Local Time, two Business Days before the
date of such acceptance and purchase. Each such request shall be irrevocable
and shall be confirmed promptly by hand delivery or facsimile to the
Administrative Agent of a written request in a form approved by the
Administrative Agent and signed by the Canadian Borrower. Each such telephonic
and written request shall specify the following information:


 


(i) the aggregate face amount of the BAs to be accepted and purchased;


 


(ii) the date of such acceptance and purchase, which shall be a
Business Day;


 


(iii) the Contract Period to be applicable thereto, which shall be a
period contemplated by the definition of the term “Contract Period” (and which
shall in no event end after the Revolving Maturity Date); and


 


(iv) the location and number of the Canadian Borrower’s account to
which the proceeds of such BAs are to be disbursed.


 


Any request
for an acceptance and purchase of BAs that shall fail to specify any of the
information required by the preceding provisions of this paragraph may be
rejected by the Administrative Agent if such failure is not corrected promptly
after the Administrative Agent shall give written or telephonic notice thereof
to the applicable Borrower and, if so rejected, will be of no force or effect. Promptly
following receipt of a request in accordance with this paragraph, the
Administrative Agent shall advise each Lender of the details thereof and of the
amount of BAs to be accepted and purchased by such Lender.


 


(d)  The Canadian Borrower hereby appoints each
Lender as its attorney to sign and endorse on its behalf, manually or by
facsimile or mechanical signature, as and when deemed necessary by such Lender,
blank forms of BAs, each Lender hereby agreeing that it will not sign or
endorse BAs in excess of those required in connection with BA Drawings that
have been requested by the Canadian Borrower hereunder. It shall be the
responsibility of each Lender to maintain an adequate supply of blank forms of
BAs for acceptance under this Agreement. The Canadian Borrower recognizes and 


 


56

















 


agrees that all BAs signed and/or endorsed on
its behalf by any Lender in accordance with the Canadian Borrower’s written
request shall bind the Canadian Borrower as fully and effectually as if
manually signed and duly issued by authorized officers of the Canadian Borrower.
Each Lender is hereby authorized to issue such BAs endorsed in blank in such
face amounts as may be determined by such Lender; provided that the
aggregate face amount thereof is equal to the aggregate face amount of BAs required
to be accepted by such Lender in accordance with the Canadian Borrower’s
written request. No Lender shall be liable for any damage, loss or claim
arising by reason of any loss or improper use of any such instrument unless
such loss or improper use results from the gross negligence or willful
misconduct of such Lender. Each Lender shall maintain a record with respect to
BAs (i) received by it from the Administrative Agent in blank hereunder, (ii)
voided by it for any reason, (iii) accepted and purchased by it hereunder and
(iv) canceled at their respective maturities. Each Lender further agrees to
retain such records in the manner and for the periods provided in applicable
provincial or federal statutes and regulations of Canada and to provide such
records to the Canadian Borrower upon its request and at its expense. Upon
request by the Canadian Borrower, a Lender shall cancel all forms of BA that
have been pre-signed or pre-endorsed on behalf of the Canadian Borrower and
that are held by such Lender and are not required to be issued pursuant to this
Agreement.


 


(e)  Drafts of the Canadian Borrower to be
accepted as BAs hereunder shall be signed as set forth in paragraph (d) above. Notwithstanding
that any Person whose signature appears on any BA may no longer be an
authorized signatory for any of the Lenders or the Canadian Borrower at the
date of issuance of such BA, such signature shall nevertheless be valid and
sufficient for all purposes as if such authority had remained in force at the
time of such issuance and any such BA so signed and properly completed shall be
binding on the Canadian Borrower.


 


(f)  Upon acceptance of a BA by a Lender, such
Lender shall purchase such BA from the Canadian Borrower at the Discount Rate
for such Lender applicable to such BA accepted by it and provide to the
Administrative Agent the Discount Proceeds for the account of the Canadian
Borrower as provided in Section 2.08. The acceptance fee payable by the
Canadian Borrower to a Lender under Section 2.13 in respect of each BA accepted
by such Lender shall be set off against the Discount Proceeds payable by such
Lender under this paragraph. Notwithstanding the foregoing, in the case of any
BA Drawing resulting from the conversion or continuation of a BA Drawing or
Revolving Borrowing pursuant to Section 2.09, the net amount that would
otherwise be payable to the Canadian Borrower by each Lender pursuant to this
paragraph will be applied as provided in Section 2.09(f).


 


(g)  Each Lender may at any time and from time to
time hold, sell, rediscount or otherwise dispose of any or all BAs accepted and
purchased by it (it being understood that no such sale, rediscount or
disposition shall constitute an assignment or participation of any Revolving
Commitment hereunder).


 


(h)  Each BA accepted and purchased hereunder
shall mature at the end of the Contract Period applicable thereto.


 


57
















 


(i) 
Subject to applicable law, the Canadian Borrower waives presentment for payment
and any other defense to payment of any amounts due to a Lender in respect of a
BA accepted and purchased by it pursuant to this Agreement that might exist
solely by reason of such BA being held, at the maturity thereof, by such Lender
in its own right, and the Canadian Borrower agrees not to claim any days of
grace if such Lender as holder sues the Canadian Borrower on the BA for payment
of the amounts payable by the Canadian Borrower thereunder. On the last day of
the Contract Period of a BA, or such earlier date as may be required
pursuant to the provisions of this Agreement, the Canadian Borrower shall pay
the Lender that has accepted and purchased such BA the full face amount of such
BA, and after such payment the Canadian Borrower shall have no further
liability in respect of such BA and such Lender shall be entitled to all
benefits of, and be responsible for all payments due to third parties under,
such BA.


 


(j)  At the option of the Canadian Borrower and
any Lender, BAs under this Agreement to be accepted by that Lender may be
issued in the form of depository bills for deposit with The Canadian
Depository for Securities Limited pursuant to the Depository Bills and Notes
Act (Canada). All depository bills so issued shall be governed by the
provisions of this Section.


 


(k)  If a Lender is not a chartered bank under the
Bank Act (Canada) or if a Lender notifies the Administrative Agent in writing
that it is otherwise unable to accept BAs, such Lender will, instead of
accepting and purchasing any BAs, make a Loan (a “BA Equivalent Loan”)
to the Canadian Borrower in the amount and for the same term as each draft
which such Lender would otherwise have been required to accept and purchase
hereunder. Each such Lender will provide to the Administrative Agent the
Discount Proceeds of such BA Equivalent Loan for the account of the Canadian
Borrower in the same manner as such Lender would have provided the Discount
Proceeds in respect of the draft which such Lender would otherwise have been
required to accept and purchase hereunder. Each such BA Equivalent Loan will
bear interest at the same rate that would result if such Lender had accepted
(and been paid an acceptance fee) and purchased (on a discounted basis) a BA
for the relevant Contract Period (it being the intention of the parties that
each such BA Equivalent Loan shall have the same economic consequences for the
Lenders and the Canadian Borrower as the BA that such BA Equivalent Loan
replaces). All such interest shall be paid in advance on the date such BA
Equivalent Loan is made, and will be deducted from the principal amount of such
BA Equivalent Loan in the same manner in which the Discount Proceeds of a BA
would be deducted from the face amount of the BA. Subject to the repayment
requirements of this Agreement, on the last day of the relevant Contract Period
for such BA Equivalent Loan, the Canadian Borrower shall be entitled to convert
each such BA Equivalent Loan into another type of Loan, or to roll over each
such BA Equivalent Loan into another BA Equivalent Loan, all in accordance with
the applicable provisions of this Agreement.


 


(l)  Notwithstanding any provision hereof but
subject to Section 2.12(b), the Canadian Borrower may not prepay any
BA Drawing other than on the last day of its Contract Period.


 


58

















 


(m)  For greater certainty, all provisions of this
Agreement that are applicable to BAs shall also be applicable, mutatis  mutandis,
to BA Equivalent Loans, and all references to principal amounts that are
applicable to BAs or BA Drawings shall be deemed to refer to the full face
amount thereof in the case of BAs and to the principal amount of any portion
thereof consisting of BA Equivalent Loans.


 


SECTION 2.08.
Funding of Borrowings and BA Drawings. (a)  Each Lender shall make
each Loan to be made by it hereunder and disburse the Discount Proceeds (net of
applicable acceptance fees) of each BA to be accepted and purchased by it
hereunder on the proposed date thereof by wire transfer of immediately
available funds in the applicable currency by 12:00 noon, Local Time, to the
account of the Administrative Agent most recently designated by it for such
purpose by notice to the Lenders; provided that Swingline Loans shall be
made as provided in Section 2.05 and Protective Advances shall be made as
provided in Section 2.04. The Administrative Agent will make such Loan
proceeds or Discount Proceeds available to the applicable Borrower by promptly
crediting the amounts so received, in like funds, to the Applicable Funding
Account of such Borrower; provided that (i) the proceeds of ABR
Revolving Loans or Canadian Prime Revolving Loans made to finance (A) the
repayment of a Protective Advance as provided in Section 2.04(a) shall
be applied by the Administrative Agent for such purpose and (B) the
reimbursement of an LC Disbursement as provided in Section 2.06(e) shall
be remitted by the Administrative Agent to the applicable Issuing Bank and (ii) the
proceeds of any Protective Advance shall be retained by the Administrative
Agent and applied for the purposes for which such Protective Advance shall have
been made.


 


(b) 
Unless the Administrative Agent shall have received notice from a Lender prior
to the proposed date of any Borrowing or acceptance and purchase of BAs that
such Lender will not make available to the Administrative Agent such Lender’s
share of such Borrowing or the applicable Discount Proceeds (net of applicable
acceptance fees), the Administrative Agent may assume that such Lender has
made such share available on such date in accordance with paragraph (a) of
this Section and may, in reliance upon such assumption, make available to
the applicable Borrower a corresponding amount. In such event, if a Lender has
not in fact made its share of the applicable Borrowing or the applicable
Discount Proceeds (net of applicable acceptance fees) available to the
Administrative Agent, then the applicable Lender and such Borrower severally
agree to pay to the Administrative Agent forthwith on demand such corresponding
amount with interest thereon, for each day from and including the date such
amount is made available to such Borrower to but excluding the date of payment
to the Administrative Agent, at (i) in the case of such Lender, (A) in
the case of amounts denominated in US Dollars, the greater of the Federal Funds
Effective Rate and a rate determined by the Administrative Agent in accordance
with banking industry rules on interbank compensation, and (B) in the
case of amounts denominated in Canadian Dollars, the rate reasonably determined
by the Administrative Agent to be the cost to it of funding such amount, or (ii) in
the case of the Borrowers, (A) in the case of amounts denominated in US
Dollars, the interest rate applicable to ABR Loans, and (B) in the case of
amounts denominated in Canadian Dollars, the interest rate applicable to
Canadian Prime Revolving Loans. If such Lender pays such amount to the
Administrative Agent, 


 


59

















 


then such amount shall
constitute such Lender’s Loan included in such Borrowing or such Lender’s BA
included in such BA Drawing, as the case may be.


 


SECTION 2.09.
Interest Elections. (a)  Each Revolving Borrowing initially shall
be of the Type specified in the applicable Borrowing Request and, in the case
of a Eurocurrency Borrowing, shall have an initial Interest Period as specified
in such Borrowing Request. Each BA Drawing shall have a Contract Period as specified
in the applicable request therefor. Thereafter, the applicable Borrower may elect
to convert such Borrowing or BA Drawing to a Borrowing of a different Type or,
in the case of a Borrowing in Canadian Dollars, a BA Drawing, or to continue
such Borrowing or BA Drawing and, in the case of a Eurocurrency Borrowing, may elect
Interest Periods therefor, all as provided in this Section and on terms
consistent with the other provisions of this Agreement, it being understood
that no BA Drawing may be converted or continued other than at the end of
the Contract Period applicable thereto. A Borrower may elect different
options with respect to different portions of an affected Borrowing or BA
Drawing, in which case each such portion shall be allocated ratably among the
Lenders holding the Loans comprising such Borrowing or accepting the BAs
comprising such BA Drawing, as the case may be, and the Loans or BAs
resulting from an election made with respect to any such portion shall be
considered a separate Borrowing or BA Drawing. This Section shall not
apply to Swingline Borrowings or Protective Advances, which may not be
converted or continued.


 


(b)  To
make an election pursuant to this Section, a Borrower shall notify the
Administrative Agent of such election by telephone (i) in the case of an
election that would result in a Borrowing, by the time that a Borrowing Request
would be required under Section 2.03 if such Borrower were requesting a
Revolving Borrowing of the Type resulting from such election to be made on the
effective date of such election, and (ii) in the case of an election that
would result in a BA Drawing or the continuation of a BA Drawing, by the time
and date that a request would be required under Section 2.07 if the
Canadian Borrower were requesting an acceptance and purchase of BAs to be made
on the effective date of such election. Each such Interest Election Request
shall be irrevocable and shall be confirmed promptly by hand delivery or
facsimile to the Administrative Agent of a written Interest Election Request in
a form approved by the Administrative Agent and signed by a Financial
Officer on behalf of the applicable Borrower. Notwithstanding any other
provision of this Section, a Borrower shall not be permitted to (i) change
the currency of any Borrowing or BA Drawing or (ii) elect an Interest
Period for Eurocurrency Loans that does not comply with Section 2.02(d) or
any Contract Period for a BA Drawing that does not comply with Section 2.07.


 


(c)  Each
telephonic and written Interest Election Request shall specify the following
information in compliance with Section 2.02:


 


(i) the Borrowing or BA Drawing to which
such Interest Election Request applies and, if different options are being
elected with respect to different portions thereof, the portions thereof to be
allocated to each resulting Borrowing or BA Drawing (in which case the
information to be specified pursuant to clauses (ii) and (iii) below
shall be specified for each resulting Borrowing or BA Drawing);


 


60

















 


(ii) the effective date of the election
made pursuant to such Interest Election Request, which shall be a Business Day;


 


(iii) in the case of an election
resulting in a Borrowing, the Type of such Borrowing and (A) if the
resulting Borrowing is a Eurocurrency Borrowing, the Interest Period to be
applicable thereto after giving effect to such election, which shall be a
period contemplated by the definition of the term “Interest Period”, or (B) in
the case of an election resulting in a BA Drawing, the Contract Period to be
applicable thereto, which shall be a period contemplated by the definition of
the term “Contract Period”.


 


If any such
Interest Election Request requests a Eurocurrency Borrowing or a BA Drawing but
does not specify an Interest Period or Contract Period, then the applicable
Borrower shall be deemed to have selected an Interest Period of one month’s
duration or a Contract Period of 30 days’ duration.


 


(d) 
Promptly following receipt of an Interest Election Request, the Administrative
Agent shall advise each Lender of the details thereof and of such Lender’s
portion of each resulting Borrowing or BA Drawing.


 


(e)  If
the applicable Borrower fails to deliver a timely Interest Election Request
with respect to a Eurocurrency Borrowing or BA Drawing prior to the end of the
Interest Period or Contract Period applicable thereto, then, unless such
Borrowing or BA Drawing is repaid as provided herein, at the end of such
Interest Period or Contract Period, (i) in the case of a Eurocurrency
Borrowing, such Borrowing shall be converted to an ABR Borrowing, and (ii) in
the case of a Borrowing or BA Drawing denominated in Canadian Dollars, such
Borrowing or BA Drawing shall be converted to a Canadian Prime Revolving
Borrowing.


 


(f)  Upon
the conversion of any Borrowing (or portion thereof), or the continuation of
any BA Drawing (or portion thereof), to or as a BA Drawing, the net amount that
would otherwise be payable to the Canadian Borrower by each Lender pursuant to Section 2.07(f) in
respect of such new BA Drawing shall be applied against the principal of such
Borrowing (in the case of a conversion) or the reimbursement obligation owed to
such Lender under Section 2.07(i) in respect of the BAs accepted by
such Lender as part of such maturing BA Drawing (in the case of a
continuation), and the Canadian Borrower shall pay to such Lender an amount
equal to the difference between the principal amount of such Loan or the
aggregate face amount of such maturing BAs, as the case may be, and such net
amount.


 


(g) 
Notwithstanding any contrary provision hereof, if an Event of Default has
occurred and is continuing and the Administrative Agent, at the request of the
Required Lenders, so notifies the Borrowers, then, so long as an Event of
Default is continuing (i) no outstanding Borrowing or BA Drawing may be
converted to or continued as a Eurocurrency Borrowing or a BA Drawing and (ii) unless
repaid, each Eurocurrency Borrowing or BA Drawing shall be converted to an ABR
Borrowing or a 


 


61

















 


Canadian Prime Revolving
Borrowing, as the case may be, at the end of the Interest Period or
Contract Period applicable thereto.


 


SECTION 2.10.
Termination and Reduction of Revolving Commitments; Increase of Revolving Commitments.
(a)  Unless previously terminated, the Revolving Commitments shall
terminate on the Revolving Maturity Date.


 


(b)  The
Borrowers may at any time terminate, or from time to time reduce, the
Revolving Commitments; provided that (i) each reduction of the
Revolving Commitments shall be in an amount that is an integral multiple of
US$1,000,000 and not less than US$5,000,000 and (ii) the Borrowers shall
not terminate or reduce the Revolving Commitments if, after giving effect to
any concurrent repayment or prepayment of the Loans or any concurrent repayment
of BA Drawings or LC Disbursements, the sum of the Revolving Exposures would
exceed the total Revolving Commitments.


 


(c)  The
Borrowers shall notify the Administrative Agent of any election to terminate or
reduce the Revolving Commitments under paragraph (b) of this Section at
least three Business Days prior to the effective date of such termination or
reduction, specifying such election and the effective date thereof. Promptly
following receipt of any notice, the Administrative Agent shall advise the
Lenders of the contents thereof. Each notice delivered by the Borrowers
pursuant to this Section shall be irrevocable; provided that a
notice of termination of the Revolving Commitments delivered by the Borrowers may state
that such notice is conditioned upon the effectiveness of other credit
facilities, in which case such notice may be revoked by the Borrowers (by
notice to the Administrative Agent on or prior to the specified effective date)
if such condition is not satisfied. Any termination or reduction of the
Revolving Commitments shall be permanent. Each reduction of the Revolving
Commitments shall be made ratably among the Lenders in accordance with their
respective Revolving Commitments.


 


(d)  The
Borrowers may on one or more occasions, by written notice to the
Administrative Agent, executed by the Borrowers and one or more financial
institutions (any such financial institution referred to in this Section being
called an “Increasing Lender”), which may include any Lender, cause
new Revolving Commitments to be extended by the Increasing Lenders or cause the
existing Revolving Commitments of the Increasing Lenders to be increased, as
the case may be (any such extension or increase, a “Commitment Increase”),
in an amount for each Increasing Lender set forth in such notice (and, if the
Borrowers and the Required Lenders shall so agree, cause the Canadian Borrower
Sublimit to be increased in connection therewith); provided, that (i) the
election of any Lender to increase its Revolving Commitment shall be in its
sole discretion, and no Lender shall have any obligation to increase its
Revolving Commitment hereunder, (ii) the aggregate amount of Commitment
Increases effected pursuant to this paragraph shall not exceed US$50,000,000, (iii) each
Increasing Lender, if not already a Lender hereunder, shall be subject to the
approval of the Administrative Agent, each Principal Issuing Bank and the
Swingline Lender (which approval shall not be unreasonably withheld or
delayed), (iv) each Increasing Lender, if not already a Lender hereunder,
shall become a party to this Agreement by completing and delivering to the 


 


62

















 


Administrative Agent a duly
executed accession agreement in a form reasonably satisfactory to the
Administrative Agent and the Borrowers (an “Accession Agreement”) and (v) each
Commitment Increase shall be in an aggregate principal amount of not less than
US$10,000,000. New Revolving Commitments and increases in Revolving Commitments
shall become effective on the date specified in the applicable notice delivered
pursuant to this paragraph (but not prior to, for any Increasing Lender that is
not already a Lender, execution and delivery by such Increasing Lender of an
Accession Agreement). Upon the effectiveness of any Accession Agreement to
which any Increasing Lender is a party, such Increasing Lender shall thereafter
be deemed to be a party to this Agreement and shall be entitled to all rights,
benefits and privileges, and subject to all obligations, of a Revolving Lender
hereunder.


 


(e)  On
the effective date of any Commitment Increase pursuant to this Section (the
“Increase Effective Date”), (i) the aggregate principal amount of
the Revolving Loans outstanding (the “Initial Loans”) immediately prior
to giving effect to the applicable Commitment Increase on the Increase
Effective Date shall be deemed to be repaid, (ii) after the effectiveness
of the Commitment Increase, the Borrowers shall be deemed to have made new
Borrowings (the “Subsequent Borrowings”) in an aggregate principal
amount equal to the aggregate principal amount of the Initial Loans and of the
Types and for the Interest Periods specified in a Borrowing Request delivered
to the Administrative Agent in accordance with Section 2.03, (iii) each
Revolving Lender shall pay to the Administrative Agent in same day funds an
amount equal to the difference, if positive, between (A) such Lender’s
Applicable Percentage (calculated after giving effect to the Commitment
Increase) of the Subsequent Borrowings and (B) such Lender’s Applicable
Percentage (calculated without giving effect to the Commitment Increase) of the
Initial Loans, (iv) after the Administrative Agent receives the funds
specified in clause (iii) above, the Administrative Agent shall pay to
each Revolving Lender the portion of such funds that is equal to the
difference, if positive, between (A) such Lender’s Applicable Percentage
(calculated without giving effect to the Commitment Increase) of the Initial
Loans and (B) such Lender’s Applicable Percentage (calculated after giving
effect to the Commitment Increase) of the amount of the Subsequent Borrowings, (v) each
Increasing Lender and each other Revolving Lender shall be deemed to hold its Applicable
Percentage of each Subsequent Borrowing (each calculated after giving effect to
the Commitment Increase) and (vi) the Borrowers shall pay each Revolving
Lender any and all accrued but unpaid interest on the Initial Loans. The deemed
payments made pursuant to clause (i) above in respect of each Eurocurrency
Loan shall be subject to indemnification by the applicable Borrower pursuant to
the provisions of Section 2.17 if the Increase Effective Date occurs other
than on the last day of the Interest Period relating thereto. On the Increase
Effective Date of any increase in the Revolving Commitments pursuant to
paragraph (d) above, the Canadian Borrower and the Lenders shall take such
actions (including making and receiving payments), if any, as the Administrative
Agent shall specify in order that the extensions of credit represented by any
outstanding BAs may be held by the Lenders ratably in proportion to their
Revolving Commitments; provided, that if the Administrative Agent does
not specify any such actions, such outstanding BAs will continue outstanding
for the duration of the applicable Contract Periods and the Canadian Borrower’s
reimbursement 


 


63

















 


obligations under Section 2.07(i) will
continue to be owed to the Lenders that accepted and purchased such BAs.


 


(f) 
Notwithstanding the foregoing, no Commitment Increase shall become effective
unless, on the date of such increase, (i) to the extent requested by the
Administrative Agent, the Administrative Agent shall have received documents
consistent with those delivered under paragraphs (b) and (c) of Section 4.01
as to the corporate power and authority of the Borrowers to borrow hereunder
after giving effect to such increase and (ii) the conditions set forth in
paragraphs (a) and (b) of Section 4.02 shall be satisfied (with
all references in such paragraphs to a Borrowing being deemed to be references
to such increase), and the Administrative Agent shall have received a
certificate to that effect dated such date and executed by a Financial Officer
of Symmetry.


 


SECTION 2.11.
Repayment of Loans; Evidence of Debt. (a)  Each Borrower
hereby unconditionally promises to pay (i) to the Administrative Agent on
the Revolving Maturity Date for the account of each Lender the face amount of
each BA Drawing by such Borrower accepted by such Lender, (ii) to the
Administrative Agent on the Revolving Maturity Date for the account of each
Lender the then unpaid principal amount of each Revolving Loan of such Lender
made to such Borrower, (iii) to the Swingline Lender the then unpaid
principal amount of each Swingline Loan made to such Borrower on the earlier of
the Revolving Maturity Date and the first date after such Swingline Loan is
made that is the 15th or last day of a calendar month and is at least two
Business Days after such Swingline Loan is made (provided that on each
date that a Revolving Borrowing is made or a BA Drawing is drawn, the
applicable Borrower shall repay all its Swingline Loans denominated in the Currency
of such Borrowing) and (iv) to the Administrative Agent the then unpaid
principal amount of each Protective Advance made to such Borrower on the
earlier of the Revolving Maturity Date and the date on which payment shall be
demanded by the Administrative Agent. Each Borrower will pay the principal
amount of each Loan or BA made to or drawn by such Borrower and the accrued
interest on such Loan in the currency of such Loan or BA.


 


(b)  Each
Lender shall maintain in accordance with its usual practice an account or
accounts evidencing the indebtedness of the Borrowers to such Lender resulting
from each Loan made or BA accepted and purchased by such Lender, including the
amounts of principal and interest payable and paid to such Lender from time to
time hereunder.


 


(c)  The
Administrative Agent shall maintain accounts in which it shall record (i) the
amount of each Loan made and BA accepted and purchased hereunder, the Type
thereof and, as applicable, the Interest Period or Contract Period applicable
thereto, (ii) the amount of any principal or interest due and payable or
to become due and payable from each Borrower to each Lender hereunder and (iii) the
amount of any sum received by the Administrative Agent hereunder for the
account of the Lenders and each Lender’s share thereof.


 


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(d)  The
entries made in the accounts maintained pursuant to paragraph (b) or (c) of
this Section shall be prima  facie evidence of the existence
and amounts of the obligations recorded therein; provided that the
failure of any Lender or the Administrative Agent to maintain such accounts or
any error therein shall not in any manner affect the obligation of the
applicable Borrower to repay the Loans and BA Drawings in accordance with the
terms of this Agreement.


 


(e)  Any
Lender may request that Revolving Loans made by it to either Borrower be
evidenced by a promissory note. In such event, such Borrower shall prepare,
execute and deliver to such Lender a promissory note payable to the order of
such Lender (or, if requested by such Lender, to such Lender and its registered
assigns) and in a form approved by the Administrative Agent. Thereafter,
the Loans evidenced by such promissory note and interest thereon shall at all
times (including after assignment pursuant to Section 9.04) be represented
by one or more promissory notes in such form payable to the order of the
payee named therein (or, if such promissory note is a registered note, to such
payee and its registered assigns).


 


(f)  In
the event the Administrative Agent shall, pursuant to any Deposit Account
Control Agreement or Lockbox Agreement, obtain sole control of the deposit
account or deposit accounts subject thereto, the Administrative Agent (i) shall
instruct the depositary bank party to such Deposit Account Control Agreement or
Lockbox Agreement to transfer on each Business Day (or with such other
frequency as shall be specified by the Administrative Agent) to the account of
the Administrative Agent specified by it all funds then on deposit in such
deposit account or deposit accounts and (ii) on each Business Day
immediately following the day of receipt by the Administrative Agent of any
funds pursuant to a transfer referred to in clause (i) above, (A) in
the case of any such funds received on account of any deposit account of a US
Loan Party, apply the amounts so received first, to prepay Protective Advances,
second, to prepay Swingline Loans, third, to prepay Revolving Loans, fourth, to
cash collateralize outstanding LC Exposures in accordance with Section 2.06(j)
and, then, to cash collateralize BA Drawings on the same terms as LC Exposures
are cash collateralized under Section 2.06(j), and (B) in the case of
any such funds received on account of any deposit account of a Canadian Loan
Party, first, to prepay Protective Advances made to the Canadian Borrower,
second, to prepay Swingline Loans made to the Canadian Borrower, third, to
prepay Revolving Loans made to the Canadian Borrower, fourth, to cash
collateralize in accordance with Section 2.06(j) outstanding LC Exposures
to the extent relating to Letters of Credit issued for the account of the
Canadian Borrower and, then, to cash collateralize BA Drawings on the same
terms as LC Exposures are cash collateralized under Section 2.06(j); provided,
that upon the occurrence and during the continuance of an Event of Default, at
the Administrative Agent’s election, such funds may be applied as provided
in the Collateral Agreements. Each Borrower hereby directs the Administrative
Agent to apply its funds as so specified and authorizes the Administrative
Agent to determine the order of application of such funds as among the
individual Borrowings, LC Exposures and BA Drawings of the Borrowers. Each
prepayment of a Borrowing shall be applied ratably to the Loans included in the
prepaid Borrowing.


 


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SECTION 2.12.
Prepayment of Loans. (a)  Each Borrower shall have the right at any
time and from time to time to prepay any Borrowing of such Borrower in whole or
in part, subject to the requirements of this Section.


 


(b)  In
the event and on such occasion that (i) the sum of the Canadian Borrower
Revolving Exposures exceeds the Canadian Borrower Sublimit, (ii) the sum
of the US Borrower Revolving Exposures exceeds the US Borrowing Base or (iii) the
sum of the Revolving Exposures exceeds the lesser of (A) the sum of (x)
the Aggregate Borrowing Base then in effect and (y) the Protective Advance
Exposure then outstanding and (B) the aggregate Revolving Commitments then
in effect, the Borrowers shall prepay Borrowings or amounts owing in respect of
outstanding BA Drawings hereunder or, if no such Borrowings or BA Drawings are
outstanding, deposit cash collateral in respect of the LC Exposure in an account
with the Administrative Agent pursuant to Section 2.06(j), in an aggregate
amount sufficient to eliminate such excess.


 


(c) 
Prior to any prepayment of Borrowings or amounts owing in respect of BA
Drawings hereunder, the applicable Borrower shall select the Borrowing or
Borrowings or the BA Drawing or BA Drawings to be prepaid and shall specify
such selection in the notice of such prepayment pursuant to paragraph (d) of
this Section.


 


(d)  The
applicable Borrower shall notify the Administrative Agent (and, in the case of
prepayment of a Swingline Loan, the Swingline Lender) by telephone (confirmed
by facsimile) of any prepayment hereunder (i) in the case of prepayment of
a Eurocurrency Borrowing, not later than 11:00 a.m., New York City time,
three Business Days before the date of prepayment, (ii) in the case of
prepayment of an ABR  Borrowing or a
Canadian Prime Revolving Borrowing, not later than 11:00 a.m., Local Time,
one Business Day before the date of prepayment or (iii) in the case of
prepayment of a Swingline Loan or Protective Advance, not later than 12:00
noon, New York City time, on the date of prepayment. Each such notice shall be
irrevocable and shall specify the prepayment date, the principal amount of each
Borrowing or portion thereof to be prepaid and, in the case of a mandatory
prepayment, a reasonably detailed calculation of the amount of such prepayment;
provided that, if a notice of optional prepayment is given in connection
with a conditional notice of termination of the Revolving Commitments as
contemplated by Section 2.10, then such notice of prepayment may be
revoked if such notice of termination is revoked in accordance with Section 2.10.
Promptly following receipt of any such notice (other than a notice relating
solely to Swingline Loans or Protective Advances), the Administrative Agent
shall advise the Lenders of the contents thereof. Each partial prepayment of
any Borrowing shall be in an amount that would be permitted in the case of an
advance of a Borrowing of the same Type as provided in Section 2.02,
except as necessary to apply fully the required amount of a mandatory
prepayment. Each prepayment of a Borrowing shall be applied ratably to the
Loans included in the prepaid Borrowing. Prepayments shall be accompanied by
accrued interest to the extent required by Section 2.14.


 


(e)  This
Section shall not apply to prepayments made pursuant to Section 2.11(f).


 


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SECTION 2.13.
Fees. (a)  The US Borrower agrees to pay in US Dollars to the Administrative
Agent for the account of each Lender a commitment fee, which shall accrue at
the Applicable Rate on the average daily unused amount of the Revolving
Commitment of such Lender during the period from and including the date hereof
to but excluding the date on which such Revolving Commitment terminates. Accrued
commitment fees shall be payable in arrears on the last day of March, June, September and
December of each year and on the date on which the Revolving Commitments
terminate, commencing on the first such date to occur after the date hereof. All
commitment fees shall be computed on the basis of a year of 360 days and shall
be payable for the actual number of days elapsed (including the first day but
excluding the last day). For purposes of computing commitment fees with respect
to Revolving Commitments, a Revolving Commitment of a Lender shall be deemed to
be used to the extent of the outstanding Revolving Loans, BA Drawings and LC
Exposure of such Lender (and the Swingline Exposure and the Protective Advance
Exposure of such Lender shall be disregarded for such purpose).


 


(b)  Each
Borrower agrees to pay (i) to the Administrative Agent for the account of
each Revolving Lender a participation fee with respect to its participations in
Letters of Credit issued for the account of such Borrower, which shall accrue
at the Applicable Rate used to determine the interest rate applicable to
Eurocurrency Revolving Loans on the average daily amount of such Lender’s LC
Exposure (excluding any portion thereof attributable to unreimbursed LC
Disbursements and accruing in respect of each Letter of Credit in the currency
of such Letter of Credit) during the period from and including the Effective
Date to but excluding the later of the date on which such Lender’s Revolving
Commitment terminates and the date on which such Lender ceases to have any LC
Exposure, and (ii) to each Issuing Bank a fronting fee, which shall accrue
at the rate or rates per annum separately agreed upon between such Borrower and
such Issuing Bank on the average daily amount of the LC Exposure attributable
to Letters of Credit issued by such Issuing Bank for the account of such
Borrower (excluding any portion thereof attributable to unreimbursed LC
Disbursements and accruing in respect of each Letter of Credit in the currency
of such Letter of Credit) during the period from and including the Effective
Date to but excluding the later of the date of termination of the Revolving
Commitments and the date on which there ceases to be any  such LC Exposure, as well as such Issuing
Bank’s standard fees with respect to the issuance, amendment, renewal or
extension of any Letter of Credit issued by it for the account of such Borrower
or processing of drawings thereunder. Participation fees and fronting fees
accrued through and including the last day of March, June, September and December of
each year shall be payable on the third Business Day following such last day,
commencing on the first such date to occur after the Effective Date; provided
that all such fees shall be payable on the date on which the Revolving
Commitments terminate and any such fees accruing after the date on which the
Revolving Commitments terminate shall be payable on demand. Any other fees
payable to an Issuing Bank pursuant to this paragraph shall be payable within
10 days after demand. All participation fees and fronting fees shall be
computed on the basis of a year of 360 days and shall be payable for the actual
number of days elapsed (including the first day but excluding the last day).


 


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(c)  The
Canadian Borrower agrees to pay to the Administrative Agent, for the account of
each Lender, on each date on which BAs drawn by the Canadian Borrower are
accepted and purchased hereunder, in Canadian Dollars, an acceptance fee
computed by multiplying the aggregate face amount of the BAs accepted by such
Lender on such date by the product of (i) the Applicable Rate (being the
applicable “BA Stamping Fee” set forth in the definition of such term) on such
date and (ii) a fraction, the numerator of which is the number of days in
the Contract Period applicable to such BAs and the denominator of which is 365
(366 in the case of a Contract Period ending in a leap year).


 


(d)  The
US Borrower agrees to pay to the Administrative Agent, for its own account,
fees payable in the amounts and at the times separately agreed upon between the
US Borrower and the Administrative Agent.


 


(e)  All
fees payable hereunder shall be paid on the dates due, in immediately available
funds, to the Administrative Agent (or to the Issuing Banks, in the case of
fees payable to them) for distribution, in the case of commitment fees and
participation fees, to the Lenders entitled thereto. Fees paid shall not be
refundable under any circumstances.


 


SECTION 2.14.
Interest. (a)  The Loans comprising each ABR Borrowing, each
Swingline Loan denominated in US Dollars and each Protective Advance shall bear
interest at the Alternate Base Rate plus the Applicable Rate.


 


(b)  The
Loans comprising each Canadian Prime Revolving Borrowing and each Swingline
Loan denominated in Canadian Dollars shall bear interest at the Canadian Prime
Rate plus the Applicable Rate.


 


(c)  The
Loans comprising each Eurocurrency Borrowing shall bear interest at the
Adjusted LIBO Rate for the Interest Period in effect for such Borrowing plus
the Applicable Rate.


 


(d) 
Notwithstanding the foregoing, if any principal of or interest on any Loan or
any fee or other amount payable by a Borrower hereunder is not paid when due,
whether at stated maturity, upon acceleration or otherwise, such overdue amount
shall bear interest, after as well as before judgment, at a rate per annum
equal to (i) in the case of overdue principal of any Loan, 2% per annum
plus the interest rate otherwise applicable to such Loan as provided in the
preceding paragraphs of this Section or (ii) in the case of any other
amount, 2% per annum plus the rate applicable to ABR Revolving Loans made to
the US Borrower (in the case of amounts payable in US Dollars) or the rate
applicable to Canadian Prime Revolving Loans (in the case of amounts payable in
US Dollars), in each case as provided in paragraph (a) or (b) of this
Section.


 


(e) 
Accrued interest on each Loan shall be payable in arrears on each Interest
Payment Date for such Loan and, in the case of Revolving Loans, upon
termination of the Revolving Commitments; provided that (i) interest
accrued pursuant to paragraph (d) of this Section shall be payable on
demand, (ii) in the event of any repayment or prepayment of any Loan
(other than a prepayment of an ABR Revolving 


 


68

















 


Loan or Canadian Prime
Revolving Loan prior to the end of the Revolving Availability Period), accrued
interest on the principal amount repaid or prepaid shall be payable on the date
of such repayment or prepayment and (iii) in the event of any conversion
of any Eurocurrency Loan prior to the end of the current Interest Period
therefor, accrued interest on such Loan shall be payable on the effective date
of such conversion. All interest shall be payable in the currency in which the
applicable Loan is denominated.


 


(f)  All
interest hereunder shall be computed on the basis of a year of 360 days, except
that interest computed by reference to the Canadian Prime Rate or the Alternate
Base Rate at times when the Alternate Base Rate is based on the Prime Rate
shall be computed on the basis of a year of 365 days (or 366 days in a leap
year), and in each case shall be payable for the actual number of days elapsed
(including the first day but excluding the last day). The applicable Alternate
Base Rate, Canadian Prime Rate or Adjusted LIBO Rate shall be determined by the
Administrative Agent, and such determination shall be conclusive absent manifest
error.


 


(g)  For
the purposes of the Interest Act (Canada),
in any case in which an interest rate is stated in this Agreement to be
calculated on the basis of a year of 360 days or any other period of time that
is less than a calendar year, the yearly rate of interest to which the rate
determined pursuant to such calculation is equivalent is the rate so determined
multiplied by the actual number of days in the calendar year for which the
calculation is made and divided by either 360 or such other period of time, as
the case may be. In addition, the principles of deemed investment of
interest do not apply to any interest calculations under this Agreement and the
rates of interest stipulated in this Agreement are intended to be nominal rates
and not effective rates or yields.


 


(h)  If
any provision of this Agreement would obligate the Canadian Borrower to make
any payment of interest or other amount payable to the Administrative Agent,
any Lender or any Issuing Bank in an amount or calculated at a rate which would
be prohibited by law or would result in the receipt by the Administrative Agent
or such Lender or Issuing Bank of interest at a criminal rate (as such terms
are construed under the Criminal Code (Canada)),
then notwithstanding such provision, such amount or rate shall be deemed to
have been adjusted with retroactive effect to the maximum amount or rate of
interest, as the case may be, as would not be so prohibited by law or so
result in a receipt by the Administrative Agent or such Lender or Issuing Bank
of interest at a criminal rate, such adjustment to be effected, to the extent
necessary, as follows: (i) first, by reducing the amount or rates
of interest required to be paid under this Section; and (ii) second,
by reducing any fees, commissions, premiums and other amounts which would
constitute interest for purposes of Section 347 of the Criminal Code (Canada). If,
notwithstanding the foregoing, and after giving effect to all adjustments
contemplated thereby, the Administrative Agent or any Lender or Issuing Bank
shall have received an amount in excess of the maximum permitted by such
clause, then the Canadian Borrower shall be entitled, by notice in writing to
the Administrative Agent or such Lender or Issuing Bank, to obtain
reimbursement from it of an amount equal to such excess, and, pending such
reimbursement, such amount shall be deemed to be an amount payable by the
Administrative Agent or such Lender or Issuing Bank to the Canadian Borrower. Any
amount or rate of interest referred to in this paragraph shall be determined in



 


69

















 


accordance with generally
accepted actuarial practices and principles as an effective annual rate of
interest over the term of any Loan or LC Disbursement on the assumption that
any charges, fees or expenses that fall within the meaning of “interest” (as
defined in the Criminal Code (Canada))
shall, if they relate to a specific period of time, be prorated over that
period of time and otherwise be prorated over the period from the Effective
Date to the Revolving Maturity Date and, in the event of dispute, a certificate
of a Fellow of the Canadian Institute of Actuaries appointed by the Canadian
Administrative Agent shall be conclusive for the purposes of such determination
absent manifest error.


 


SECTION 2.15.
Alternate Rate of Interest. If prior to the commencement of any Interest
Period for a Eurocurrency Borrowing:


 


(a)  the Administrative Agent determines
(which determination shall be conclusive absent manifest error) that adequate
and reasonable means do not exist for ascertaining the Adjusted LIBO Rate for
such Interest Period; or


 


(b)  the Administrative Agent is advised
by the Required Lenders that the Adjusted LIBO Rate for such Interest Period
will not adequately and fairly reflect the cost to such Lenders of making or
maintaining their Loans included in such Borrowing for such Interest Period;


 


then the
Administrative Agent shall give notice thereof (which may be telephonic)
to the Borrowers and the Lenders as promptly as practicable thereafter and,
until the Administrative Agent notifies the Borrowers and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) any Interest
Election Request that requests the conversion of any Borrowing to, or
continuation of any  Borrowing as, a
Eurocurrency Borrowing shall be ineffective and (ii) if any Borrowing
Request requests a Eurocurrency Borrowing, such Borrowing shall be made as an
ABR Borrowing.


 


SECTION 2.16.
Increased Costs. (a)  If any Change in Law shall:


 


(i) impose, modify or deem applicable
any reserve, special deposit or similar requirement against assets of, deposits
with or for the account of, or credit extended by, any Lender (except any such
reserve requirement reflected in the Adjusted LIBO Rate) or any Issuing Bank;
or


 


(ii) impose on any Lender or Issuing
Bank or the London or Canadian interbank market any other condition affecting
this Agreement or Eurocurrency Loans made by or any acceptance and purchase of
BAs by such Lender or any Letter of Credit or participation therein;


 


and the result
of any of the foregoing shall be to increase the cost to such Lender of making
or maintaining any Eurocurrency Loan or accepting and purchasing any BA (or of
maintaining its obligation to make any such Loan or to accept and purchase any
BA) or to increase the cost to such Lender or any Issuing Bank of participating
in, issuing or maintaining any Letter of Credit or to reduce the amount of any
sum received or receivable by such Lender or Issuing Bank hereunder (whether of
principal, interest or 


 


70

















 


otherwise),
then the applicable Borrower will pay to such Lender or Issuing Bank, as the
case may be, such additional amount or amounts as will compensate such
Lender or Issuing Bank, as the case may be, for such additional costs
incurred or reduction suffered.


 


(b)  If
any Lender or Issuing Bank determines that any Change in Law regarding capital
requirements has or would have the effect of reducing the rate of return on
such Lender’s or Issuing Bank’s capital or on the capital of such Lender’s or
Issuing Bank’s holding company, if any, as a consequence of this Agreement or
the Loans made by or BAs accepted and purchased by, or participations in
Letters of Credit held by, such Lender, or the Letters of Credit issued by such
Issuing Bank, to a level below that which such Lender or Issuing Bank or such
Lender’s or Issuing Bank’s holding company could have achieved but for such
Change in Law (taking into consideration such Lender’s or Issuing Bank’s
policies and the policies of such Lender’s or Issuing Bank’s holding company
with respect to capital adequacy), then from time to time the Borrowers will
pay to such Lender or Issuing Bank, as the case may be, such additional
amount or amounts as will compensate such Lender or Issuing Bank or such Lender’s
or Issuing Bank’s holding company for any such reduction suffered.


 


(c)  A
certificate of a Lender or Issuing Bank setting forth the amount or amounts
necessary to compensate such Lender or Issuing Bank or its holding company, as
the case may be, as specified in paragraph (a) or (b) of
this Section shall be delivered to the applicable Borrower and shall be
conclusive absent manifest error. Such Borrower shall pay such Lender or
Issuing Bank, as the case may be, the amount shown as due on any such
certificate within 10 days after receipt thereof.


 


(d) 
Failure or delay on the part of any Lender or Issuing Bank to demand
compensation pursuant to this Section shall not constitute a waiver of
such Lender’s or Issuing Bank’s right to demand such compensation; provided
that the applicable Borrower shall not be required to compensate a Lender or
Issuing Bank pursuant to this Section for any increased costs or
reductions incurred more than 180 days prior to the date that such Lender or
Issuing Bank, as the case may be, notifies such Borrower of the Change in
Law giving rise to such increased costs or reductions and of such Lender’s or
Issuing Bank’s intention to claim compensation therefor; provided  further
that, if the Change in Law giving rise to such increased costs or reductions is
retroactive, then the 180-day period referred to above shall be extended to
include the period of retroactive effect thereof.


 


SECTION 2.17.
Break Funding Payments. In the event of (a) the payment of any
principal of any Eurocurrency Loan other than on the last day of an Interest
Period applicable thereto (including as a result of an Event of Default), (b) the
conversion of any Eurocurrency Loan other than on the last day of the Interest
Period applicable thereto, (c) the failure to borrow, convert, continue or
prepay any Revolving Loan or to make any BA Drawing on the date specified in
any notice delivered pursuant hereto (regardless of whether such notice may be
revoked under Section 2.12(f) and is revoked in accordance therewith)
or (d) the assignment of any Eurocurrency Loan or the right to receive
payment in respect of a BA other than on the last day of the Interest Period or
Contract Period applicable thereto as a result of a request by the Borrowers 


 


71

















 


pursuant to Section 2.20
or as a result of the assignment or repayment made as contemplated in the
penultimate sentence of Section 9.02(b), then, in any such event, the
applicable Borrower shall compensate each Lender for the loss, cost and expense
attributable to such event. Such loss, cost or expense to any Lender shall be
deemed to include an amount determined by such Lender to be the excess, if any,
of (i) (A) with respect to a Eurocurrency Loan, the amount of
interest which would have accrued on the principal amount of such Loan had such
event not occurred, at the Adjusted LIBO Rate that would have been applicable
to such Loan, for the period from the date of such event to the last day of the
then current Interest Period therefor (or, in the case of a failure to borrow,
convert or continue, for the period that would have been the Interest Period
for such Loan), or (B) with respect to a BA, (x) in the case of an event
described in clause (c) above, the face amount of such BA minus the
Discount Proceeds of such BA and (y) in the case of an event described in
clause (d) above, the face amount of such BA minus amounts received as a
result of such assignment, over (ii) the amount of interest which would
accrue on such principal amount or the Discount Proceeds applicable to such BA
for such period at the interest rate which such Lender would bid were it to
bid, at the commencement of such period, for deposits in the applicable
currency of a comparable amount and period from other banks in the Eurocurrency
or Canadian interbank market. A certificate of any Lender setting forth any
amount or amounts that such Lender is entitled to receive pursuant to this Section shall
be delivered to the applicable Borrower and shall be conclusive absent manifest
error. The applicable Borrower shall pay such Lender the amount shown as due on
any such certificate within 10 days after receipt thereof. Any payments by the
Canadian Borrower in respect of BAs under this Section shall be made
without duplication of any payment made by the Canadian Borrower under Section 2.07(i).


 


SECTION 2.18.
Taxes. (a)  Any and all payments by or on account of any obligation
of a Loan Party hereunder or under any other Loan Document shall be made free
and clear of and without deduction for any Indemnified Taxes or Other Taxes; provided
that if a Loan Party shall be required to deduct any Indemnified Taxes or Other
Taxes from such payments, then (i) the sum payable shall be increased as
necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this Section) the Administrative
Agent, Lender or Issuing Bank (as the case may be) receives an amount
equal to the sum it would have received had no such deductions been made, (ii) such
Loan Party shall make such deductions and (iii) such Loan Party shall pay
the full amount deducted to the relevant Governmental Authority in accordance
with applicable law.


 


(b)  In
addition, the Loan Parties shall pay any Other Taxes to the relevant
Governmental Authority in accordance with applicable law.


 


(c)  Each
Loan Party shall indemnify the Administrative Agent, each Lender and each
Issuing Bank, within 10 days after written demand therefor, for the full amount
of any Indemnified Taxes or Other Taxes paid by the Administrative Agent, such
Lender or such Issuing Bank, as the case may be, on or with respect to any
payment by or on account of any obligation of such Loan Party hereunder or
under any other Loan Document (including Indemnified Taxes or Other Taxes
imposed or asserted on or 


 


72

















 


attributable to amounts payable
under this Section) and any penalties, interest and reasonable expenses arising
therefrom or with respect thereto (except to the extent such penalties,
interest and expenses result solely from the gross negligence or wilful
misconduct of the Administrative Agent, such Lender or such Issuing Bank, as
the case may be), whether or not such Indemnified Taxes or Other Taxes
were correctly or legally imposed or asserted by the relevant Governmental
Authority; provided, however, that the Administrative Agent, such
Lender or such Issuing Bank, as the case may be, shall reasonably
cooperate with the Borrowers, at the Borrowers’ sole cost and expense, in good
faith to recover any such Indemnified Taxes or Other Taxes that the
Administrative Agent, such Lender or such Issuing Bank, as the case may be,
in each case in its sole discretion, and the Borrowers agree were incorrectly
or illegally imposed or asserted by the relevant Governmental Authority. A
certificate as to the amount of such payment or liability delivered to the
Borrowers by a Lender or an Issuing Bank, or by the Administrative Agent on its
own behalf or on behalf of a Lender or an Issuing Bank, shall be conclusive
absent manifest error.


 


(d)  As
soon as practicable after any payment of Indemnified Taxes or Other Taxes by a
Loan Party to a Governmental Authority, such Loan Party shall deliver to the
Administrative Agent the original or a certified copy of a receipt issued by
such Governmental Authority evidencing such payment, a copy of the return
reporting such payment or other evidence of such payment reasonably
satisfactory to the Administrative Agent.


 


(e)  Any
Lender that is entitled to an exemption from or reduction of withholding tax
under the law of the jurisdiction in which a Borrower is located, or any treaty
to which such jurisdiction is a party, with respect to payments under this
Agreement shall deliver to such Borrower (with a copy to the Administrative
Agent), at the time or times prescribed by applicable law, such properly
completed and executed documentation prescribed by applicable law or reasonably
requested by such Borrower as will permit such payments to be made without
withholding or at a reduced rate; provided that such Lender has received
written notice from such Borrower advising it of the availability of such
exemption or reduction and containing all applicable documentation. Each Lender
shall promptly notify the Borrowers at any time it determines that it is no
longer in a position to provide any such previously delivered documentation.


 


(f)  If
the Administrative Agent, any Lender or any Issuing Bank, as the case may be,
determines in its sole discretion that it is entitled to receive a refund in
respect of Taxes with respect to which it has received additional amounts from
a Borrower pursuant to paragraph (a) of this Section or as to which
it has been indemnified by a Borrower pursuant to paragraph (c) of this
Section, the Administrative Agent, such Lender or such Issuing Bank, as the
case may be, shall notify the Borrowers and shall, within 45 days after
receipt of a request by the Borrowers, apply for such refund at the Borrowers’
sole cost and expense. If the Administrative Agent, a Lender or an Issuing Bank
determines, in its sole discretion, that it has received a refund of any Taxes
or Other Taxes as to which it has been indemnified by a Borrower or with
respect to which a Borrower has paid additional amounts pursuant to this
Section, it shall pay over such refund to such Borrower (but only to the extent
of indemnity payments made, or additional amounts 


 


73

















 


paid, by such Borrower under
this Section with respect to the Taxes or Other Taxes giving rise to such
refund), net of all out-of-pocket expenses of the Administrative Agent or such
Lender or Issuing Bank and without interest (other than any interest paid by
the relevant Governmental Authority with respect to such refund); provided,
that such Borrower, upon the request of the Administrative Agent, such Lender
or such Issuing Bank, agrees to repay the amount paid over to such Borrower
(plus any penalties, interest or other charges imposed by the relevant
Governmental Authority) to the Administrative Agent, such Lender or such
Issuing Bank in the event the Administrative Agent, such Lender or such Issuing
Bank is required to repay such refund to such Governmental Authority. This Section shall
not be construed to require the Administrative Agent, any Lender or any Issuing
Bank to make available its tax returns (or any other information relating to
its taxes which it deems confidential) to a Borrower or any other Person.


 


SECTION 2.19.
Payments Generally; Pro Rata Treatment; Sharing of Set-offs. (a)    Symmetry and each Borrower shall
make each payment required to be made by it hereunder or under any other Loan
Document (whether of principal, interest, fees or reimbursement of LC
Disbursements, or of amounts payable under Section 2.16, 2.17 or 2.18, or
otherwise) prior to the time required hereunder or under such other Loan
Document for such payment (or, if no such time is expressly required, prior to
12:00 noon, Local Time), on the date when due, in immediately available funds,
without set-off or counterclaim. Any amounts received after such time on any
date may, in the discretion of the Administrative Agent, be deemed to have been
received on the next succeeding Business Day for purposes of calculating
interest thereon. All such payments shall be made (i) in the case of
payments made by Symmetry or the US Borrower, to the Administrative Agent, and (ii) in
the case of payments made by the Canadian Borrower, to the Canadian Agent, in
each case to the applicable account specified by such Agent, except payments to
be made directly to an Issuing Bank or the Swingline Lender as expressly
provided herein and except that payments pursuant to Sections 2.16, 2.17, 2.18
and 9.03 shall be made directly to the Persons entitled thereto and payments
pursuant to other Loan Documents shall be made to the Persons specified therein.
The Administrative Agent and the Canadian Agent shall distribute any such
payments received by it for the account of any other Person to the appropriate
recipient promptly following receipt thereof (it being understood that all
payments received by the Canadian Agent shall be distributed, with respect to
any Lender, to the Applicable Lending Office of such Lender designated by such
Lender for the receipt of payments from the Canadian Borrower). If any payment
under any Loan Document shall be due on a day that is not a Business Day, the
date for payment shall be extended to the next succeeding Business Day, and, in
the case of any payment accruing interest, interest thereon shall be payable
for the period of such extension. All payments hereunder of principal or
interest in respect of any Loan, BA or LC Disbursement shall, except as
otherwise expressly provided herein, be made in the currency of such Loan, BA
or LC Disbursement; all other payments hereunder and under each other Loan
Document shall be made in US Dollars.


 


(b)  If
at any time insufficient funds from a Borrower are received by and available to
the Administrative Agent to pay fully all amounts of principal of the Loans and
BAs, unreimbursed LC Disbursements, interest and fees then due hereunder from 


 


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such Borrower, such funds shall
be applied in the manner determined by the Administrative Agent, in its sole
discretion, but subject to the provisions of Section 2.11(f).


 


(c)  If
any Lender shall, by exercising any right of set-off or counterclaim or
otherwise, obtain payment in respect of any principal of or interest on any of
its Revolving Loans, BAs or participations in LC Disbursements, Swingline Loans
or Protective Advances resulting in such Lender receiving payment of a greater
proportion of the aggregate amount of its Revolving Loans, BAs and
participations in LC Disbursements, Swingline Loans and Protective Advances and
accrued interest thereon than the proportion received by any other Lender, then
the Lender receiving such greater proportion shall purchase (for cash at face
value) participations in the Revolving Loans, BAs and participations in LC
Disbursements, Swingline Loans and Protective Advances of other Lenders to the
extent necessary so that the benefit of all such payments shall be shared by
the Lenders ratably in accordance with the aggregate amount of principal of and
accrued interest on their respective Revolving Loans, BAs and participations in
LC Disbursements, Swingline Loans and Protective Advances; provided that
(i) if any such participations are purchased and all or any portion of the
payment giving rise thereto is recovered, such participations shall be
rescinded and the purchase price restored to the extent of such recovery,
without interest, and (ii) the provisions of this paragraph shall not be
construed to apply to any payment made by a Borrower pursuant to and in
accordance with the express terms of this Agreement or any payment obtained by
a Lender as consideration for the assignment of or sale of a participation in
any of its Loans or BAs or participations in LC Disbursements, Swingline Loans
or Protective Advances to any assignee or participant, other than to the
applicable Borrower or any Subsidiary or Affiliate thereof (as to which the
provisions of this paragraph shall apply). Each Borrower consents to the
foregoing and agrees, to the extent it may effectively do so under
applicable law, that any Lender acquiring a participation pursuant to the
foregoing arrangements may exercise against such Borrower rights of
set-off and counterclaim with respect to such participation as fully as if such
Lender were a direct creditor of such Borrower in the amount of such
participation.


 


(d) 
Unless the Administrative Agent shall have received notice from a Borrower
prior to the date on which any payment is due to the Administrative Agent for
the account of the Lenders or an Issuing Bank hereunder that such Borrower will
not make such payment, the Administrative Agent may assume that such
Borrower has made such payment on such date in accordance herewith and may, in
reliance upon such assumption, distribute to the Lenders or such Issuing Bank,
as the case may be, the amount due. In such event, if such Borrower has
not in fact made such payment, then each of the Lenders or the applicable
Issuing Bank, as the case may be, severally agrees to repay to the
Administrative Agent forthwith on demand the amount so distributed to such
Lender or Issuing Bank with interest thereon, for each day from and including
the date such amount is distributed to it to but excluding the date of payment
to the Administrative Agent, at the greater of the Federal Funds Effective Rate
and a rate determined by the Administrative Agent in accordance with banking
industry rules on interbank compensation.


 


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(e)  If
any Lender shall fail to make any payment required to be made by it pursuant to
Section 2.05(c), 2.06(d) or (e), 2.08(b), 2.19(d) or 9.03(c),
then the Administrative Agent may, in its discretion (notwithstanding any
contrary provision hereof), apply any amounts thereafter received by the
Administrative Agent for the account of such Lender to satisfy such Lender’s
obligations under such Sections until all such unsatisfied obligations are
fully paid.


 


SECTION 2.20.
Mitigation Obligations; Replacement of Lenders. (a)  If any Lender
requests compensation under Section 2.16, or if a Borrower is
required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 2.18, then such
Lender shall use reasonable efforts to designate a different lending office for
funding or booking its Loans or other extensions of credit hereunder or to
assign its rights and obligations hereunder to another of its offices, branches
or affiliates, if, in the judgment of such Lender, such designation or
assignment (i) would eliminate or reduce amounts payable pursuant to Section 2.16
or 2.18, as the case may be, in the future and (ii) would not subject
such Lender to any unreimbursed cost or expense and would not otherwise be
disadvantageous to such Lender. The Borrowers hereby agree to pay all
reasonable costs and expenses incurred by any Lender in connection with any
such designation or assignment.


 


(b)  If (i) any
Lender requests compensation under Section 2.16, (ii) any Loan Party
is required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 2.18, (iii) any
Lender defaults in its obligation to fund Loans or to accept and purchase BAs
hereunder or (iv) any Lender has failed to consent to a proposed
amendment, waiver, discharge or termination which pursuant to the terms of Section 9.02
requires the consent of all of the Lenders and with respect to which the
Required Lenders shall have granted their consent, then the Borrowers may, at
their sole expense and effort, upon notice to such Lender and the
Administrative Agent, require such Lender to assign and delegate, without
recourse (in accordance with and subject to the restrictions contained in Section 9.04),
all its interests, rights and obligations under this Agreement to an assignee
that shall assume such obligations (which assignee may be another Lender,
if such other Lender accepts such assignment); provided that (A) the
Borrowers shall have received the prior written consent of the Administrative
Agent (and, if a Revolving Commitment is being assigned, each Principal Issuing
Bank and the Swingline Lender), which consent shall not unreasonably be
withheld, (B) such Lender shall have received payment of an amount equal
to the outstanding principal of its Loans, BAs and funded participations in LC
Disbursements and Swingline Loans, accrued interest thereon, accrued fees and
all other amounts payable to it hereunder, from the assignee (to the extent of
such outstanding principal and accrued interest and fees) or the Borrowers (in
the case of all other amounts), (C) in the case of any such assignment
resulting from a claim for compensation under Section 2.16 or payments
required to be made pursuant to Section 2.18, such assignment will result
in a reduction in such compensation or payments, and (D) in the case of
any such assignment resulting from the failure to provide a consent, the
assignee shall have given such consent. A Lender shall not be required to make
any such assignment and delegation if, prior thereto, as a result of a waiver
by such Lender or otherwise, the circumstances entitling the Borrowers to
require such assignment and 


 


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delegation cease to apply. Each
party hereto agrees that an assignment required pursuant to this Section 2.20(b) may be
effected pursuant to an Assignment and Assumption executed by the Borrowers,
the Administrative Agent and the assignee and that the Lender required to make
such assignment need not be a party thereto.


 


ARTICLE III


 


Representations
and Warranties


 


Each of
Symmetry and the Borrowers represents and warrants to the Lenders that:


 


SECTION 3.01.
Organization; Powers. Each of Symmetry, the Borrowers and the other
Subsidiaries is duly organized, validly existing and (to the extent the concept
is applicable in such jurisdiction) in good standing under the laws of the
jurisdiction of its organization, has all requisite power and authority and all
material Governmental Approvals to carry on its business as now conducted and
as proposed to be conducted, and, except where the failure to do so,
individually or in the aggregate, could not reasonably be expected to result in
a Material Adverse Effect, is qualified to do business in, and is in good
standing in, every jurisdiction where such qualification is required.


 


SECTION 3.02.
Authorization; Enforceability. The Transactions to be entered into by
each Loan Party are within such Loan Party’s corporate or other organizational
powers and have been duly authorized by all necessary corporate or other
organizational action and, if required, stockholder or other equityholder
action. This Agreement has been duly executed and delivered by each of Symmetry
and the Borrowers and constitutes, and each other Loan Document to which any
Loan Party is to be a party, when executed and delivered by such Loan Party,
will constitute, a legal, valid and binding obligation of Symmetry, such
Borrower or such Loan Party, as the case may be, enforceable in accordance
with its terms, 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.


 


SECTION 3.03.
Governmental Approvals; No Conflicts. The Transactions (a) do not
require any material consent or approval of, registration or filing with or any
other material action by any Governmental Authority, except (i) such as
have been obtained or made and are in full force and effect and (ii) filings
necessary to perfect Liens created under the Loan Documents, the Senior Notes
Documents and the Intercompany Notes Documents, (b) will not violate in
any material respect any applicable law or regulation or order of any
Governmental Authority, (c) will not violate the charter, by-laws or other
organizational documents of Symmetry, any Borrower or any other Subsidiary, (d) will
not violate or result in a default under any indenture or other material
agreement or instrument binding upon Symmetry, either Borrower or any other
Subsidiary or its assets, or give rise to a right thereunder to require any
payment to be made by Symmetry, either Borrower or any of the Subsidiaries, and
(e) will not result 


 


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in the creation or imposition
of any Lien on any asset of Symmetry, either Borrower or any other Subsidiary,
except for Liens created under the Loan Documents, the Senior Notes Documents
and the Intercompany Notes Documents.


 


SECTION 3.04.
Financial Condition; No Material Adverse Change. (a)  Symmetry and
the Borrowers have heretofore furnished to the Lenders the consolidated balance
sheets, consolidated statements of operations and comprehensive income,
consolidated statement of stockholders’ equity and consolidated statements of
cash flows of Novamerican and its consolidated subsidiaries (i) as of and
for the fiscal year ended November 25, 2006, reported on by Raymond Chabot
Grant Thornton LLP, independent registered public accountants, and (ii) as
of and for the fiscal quarter and the portion of the fiscal year ended August 25,
2007, certified by Novamerican’s chief financial officer. Such financial
statements present fairly, in all material respects, the financial position and
results of operations and cash flows of Novamerican and its consolidated
subsidiaries as of such dates and for such periods in accordance with GAAP,
subject to year-end audit adjustments and the absence of footnotes in the case
of the statements referred to in clause (ii) above.


 


(b) 
Symmetry has heretofore furnished to the Lenders its pro forma (i) condensed
consolidated balance sheet as of September 30, 2007, prepared giving
effect to the Transactions as if the Transactions had occurred on such date,
and (ii) condensed consolidated statements of operations for the nine and
twelve months ended September 30, 2007 and for the year ended December 31,
2006, prepared giving effect to the Transactions as if the Transactions had
occurred on January 1, 2006. Each of such pro forma consolidated balance
sheet and such pro forma consolidated statements of operations (i) has
been prepared in good faith based on the same assumptions used to prepare the
pro forma consolidated financial statements included in the Information
Memorandum (which assumptions are believed by Symmetry and the Borrowers on the
date hereof to be reasonable), (ii) is based on the best information
reasonably available to Symmetry and the Borrowers on the date hereof after due
inquiry, (iii) accurately reflects in all material respects all
adjustments necessary to give effect to the Transactions and (iv) presents
fairly, in all material respects, the pro forma financial position of Symmetry
and its consolidated Subsidiaries as of September 30, 2007, and the pro
forma results of operations of Symmetry for the period referred above, as if
the Transactions had occurred as of the dates referred to above.


 


(c) 
Except as disclosed in the financial statements referred to above or the notes
thereto or in the Information Memorandum, after giving effect to the
Transactions, none of Symmetry, the Borrowers or the other Subsidiaries has, as
of the Effective Date, any material contingent liabilities, unusual long-term
commitments or unrealized losses.


 


(d) 
Since November 25, 2006, there has been (i) no material adverse
change in the business, assets, operations, prospects or condition, financial
or otherwise, of Symmetry, the Borrowers and the other Subsidiaries, taken as a
whole, and (ii) no “Material Adverse Change” as such term is defined in
the Arrangement Agreement in respect of Novamerican and its subsidiaries.


 


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SECTION 3.05.
Properties. (a)  Each of Symmetry, the Borrowers and the other
Subsidiaries has good title to, or valid leasehold interests in, all its real
and personal property material to its business (including its Mortgaged
Properties), except for minor defects in title that do not interfere with its
ability to conduct its business as currently conducted or to utilize such
properties for their intended purposes.


 


(b)  Each
of Symmetry, the Borrowers and the other Subsidiaries owns, or is licensed to
use, all trademarks, tradenames, copyrights, patents and other intellectual
property material to its business, and the use thereof by Symmetry, the
Borrowers and the other Subsidiaries does not infringe upon the rights of any
other Person, except for any such infringements that, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect.


 


(c)  Schedule 3.05
sets forth the address of each real property that is owned or leased by
Symmetry, either Borrower or any other Subsidiary as of the Effective Date after
giving effect to the Transactions, and identifies each of such real properties
that is a Mortgaged Property, if any.


 


(d)  As
of the Effective Date, none of Symmetry, the Borrowers or the other
Subsidiaries has received notice of, or has knowledge of, any pending or
contemplated condemnation proceeding affecting any Mortgaged Property or any
sale or disposition thereof in lieu of condemnation. As of the Effective Date,
neither any Mortgaged Property nor any interest therein is subject to any right
of first refusal, option or other contractual right to purchase such Mortgaged
Property or interest therein.


 


SECTION 3.06.
Litigation and Environmental Matters. (a)  There are no actions,
suits or proceedings by or before any arbitrator or Governmental Authority
pending against or, to the knowledge of Symmetry or either Borrower, threatened
against or affecting Symmetry, either Borrower or any other Subsidiary (i) as
to which there is a reasonable possibility of an adverse determination and
that, if adversely determined, could reasonably be expected, individually or in
the aggregate, to result in a Material Adverse Effect or (ii) that involve
any of the Loan Documents or the Transactions.


 


(b) 
Except with respect to matters that, individually or in the aggregate, could
not reasonably be expected to result in a Material Adverse Effect, none of
Symmetry, the Borrowers or the other Subsidiaries (i) has failed to comply
with any Environmental Law or to obtain, maintain or comply with any permit,
license or other approval required under any Environmental Law, (ii) has
become subject to any Environmental Liability, (iii) has received notice
of any claim with respect to any Environmental Liability or (iv) knows of
any basis for any Environmental Liability against Symmetry, either Borrower or
any other Subsidiary.


 


SECTION 3.07.
Compliance with Laws and Agreements. Each of Symmetry, the Borrowers and
the other Subsidiaries is in compliance with all laws, regulations and orders
of any Governmental Authority applicable to it or its property (including
ERISA, Canadian pension laws and regulations and margin regulations) and all
indentures, agreements and other instruments binding upon it or its property,
except 


 


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where the failure to be in
compliance, individually or in the aggregate, could not reasonably be expected
to result in a Material Adverse Effect.


 


SECTION 3.08.
Investment Company Status. None of Symmetry, the Borrowers or the other
Subsidiaries is an “investment company” as defined in, or subject to regulation
under, the Investment Company Act of 1940.


 


SECTION 3.09.
Taxes. Each of Symmetry, the Borrowers and the other Subsidiaries has
timely filed or caused to be filed all Tax returns and reports required to have
been filed and has paid or caused to be paid all Taxes required to have been
paid by it, except (a) any Taxes that are being contested in good faith by
appropriate proceedings and for which Symmetry, such Borrower or such
Subsidiary, as applicable, has set aside on its books adequate reserves or (b) to
the extent that the failure to do so could not reasonably be expected to result
in a Material Adverse Effect.


 


SECTION 3.10.
ERISA; Canadian Benefit and Pension Plans. (a)  No ERISA Event has
occurred or is reasonably expected to occur that, when taken together with all
other such ERISA Events for which liability is reasonably expected to occur,
could reasonably be expected to result in a Material Adverse Effect. The
present value of all accumulated benefit obligations under each Plan (based on
the assumptions used for purposes of Statement of Financial Accounting
Standards No. 87) did not, as of the date of the most recent consolidated
financial statements reflecting such amounts, exceed by more than US$10,000,000
the fair market value of the assets of such Plan, and the present value of all
accumulated benefit obligations of all underfunded Plans (based on the
assumptions used for purposes of Statement of Financial Accounting Standards No. 87)
did not, as of the date of the most recent financial statements reflecting such
amounts, exceed by more than US$10,000,000 the fair market value of the assets
of all such underfunded Plans.


 


(b)  The
Canadian Pension Plans are duly registered in accordance with any applicable
law which requires registration, and no event has occurred which is reasonably
likely to cause the loss of such registered status. All material obligations of
Symmetry, each Borrower and each other Subsidiary (including fiduciary,
funding, investment and administration obligations) required to be performed in
connection with the Canadian Pension Plans and the funding agreements therefor
have been performed in a timely fashion. There have been no improper
withdrawals or applications of the assets of the Canadian Pension Plans or the
Canadian Benefit Plans. There are no outstanding disputes concerning the assets
held under the funding agreements for the Canadian Pension Plans or the
Canadian Benefit Plans. Each of the Canadian Pension Plans is fully funded both
on an ongoing basis and on a solvency basis (using actuarial methods and
assumptions which are consistent with the valuations last filed with the
applicable Governmental Authorities and which are consistent with generally
accepted actuarial principles). There has been no partial termination of any
Canadian Pension Plan, and no facts or circumstances have occurred or existed
that could reasonably be expected to result in the declaration of a partial
termination of any Canadian Pension Plan under applicable law. No promises of
benefit improvements under the Canadian Pension Plans or the Canadian Benefit
Plans have been made, except where such improvement could 


 


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not reasonably be expected to
result in a Material Adverse Effect and in any event no such improvements will
result in a solvency deficiency or going concern  unfunded liability in the affected Canadian Pension Plans. All
contributions or premiums required to be made or paid by Symmetry, any Borrowers
or any other Subsidiary to the Canadian Pension Plans or the Canadian Benefit
Plans have been made or paid in a timely fashion in accordance with the terms
of such plans and all applicable law. All employee contributions to the
Canadian Pension Plans or the Canadian Benefit Plans by way of authorized
payroll deduction or otherwise have been properly withheld or collected by
Symmetry, the Borrowers and the other Subsidiaries and fully paid into such
plans in a timely manner. The pension fund under each Canadian Pension Plan is
exempt from the payment of any income tax, and there are no Taxes, penalties or
interest owing in respect of any such pension fund. All material reports and
disclosures relating to the Canadian Pension Plans required by such plans and
any applicable law to be filed or distributed have been filed or distributed in
a timely manner.


 


SECTION 3.11.
Disclosure. Symmetry and the Borrowers have disclosed to the Lenders all
agreements, instruments and corporate or other restrictions to which Symmetry,
either Borrower or any other Subsidiary is subject, and all other matters known
to any of them, that, individually or in the aggregate, could reasonably be
expected to result in a Material Adverse Effect. Neither the Information
Memorandum nor any of the other reports, financial statements, certificates or
other information furnished by or on behalf of any Loan Party to the
Administrative Agent or any Lender in connection with the negotiation of this
Agreement or any other Loan Document or delivered hereunder or thereunder (as
modified or supplemented by other information so furnished) contains any
material misstatement of fact or omits to state any material fact necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading; provided that, with respect to projected
financial information, Symmetry and the Borrowers represent only that such
information was prepared in good faith based upon assumptions believed to be
reasonable at the time.


 


SECTION 3.12.
Subsidiaries and Joint Ventures. Schedule 3.12 sets forth, as of
the Effective Date, the name and jurisdiction of organization of, and the
percentage of each class of Equity Interests owned by Symmetry, any
Borrower or any other Subsidiary in, (a) each Subsidiary, accurately
identifying each Subsidiary that is a Subsidiary Party as such, and (b) each
joint venture in which Symmetry, any Borrower or any other Subsidiary owns any
Equity Interests.


 


SECTION 3.13.
Insurance. Schedule 3.13 sets forth a description of all insurance
maintained by or on behalf of Symmetry, the Borrowers and the other
Subsidiaries as of the Effective Date. As of the Effective Date, all premiums
in respect of such insurance have been paid. Symmetry and the Borrowers believe
that the insurance maintained by or on behalf of Symmetry, the Borrowers and
the other Subsidiaries is adequate.


 


SECTION 3.14.
Labor Matters. As of the Effective Date, there are no strikes, lockouts
or slowdowns against Symmetry, either Borrower or any Subsidiary pending or, to
the knowledge of Symmetry or either Borrower, threatened. The hours 


 


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worked by and payments made to
employees of Symmetry, the Borrowers and the other Subsidiaries have not been in
violation of the Fair Labor Standards Act or any other applicable Federal,
state, provincial, territorial, local or foreign law dealing with such matters.
All material payments due from Symmetry, either Borrower or any Subsidiary, or
for which any claim may be made against Symmetry, either Borrower or any
Subsidiary, on account of wages and employee health and welfare insurance and
other benefits, have been paid or accrued as a liability on the books of
Symmetry, such Borrower or such Subsidiary. The consummation of the
Transactions will not give rise to any right of termination or right of
renegotiation on the part of any union under any collective bargaining
agreement to which Symmetry, either Borrower or any Subsidiary is bound.


 


SECTION 3.15.
Solvency. Immediately after the consummation of the Transactions to
occur on the Effective Date, including the making of each Loan made on the
Effective Date and the application of the proceeds of such Loans, and after
giving effect to the rights of subrogation and contribution under the Guarantee
and Collateral Agreement, (a) the fair value of the assets of each Loan
Party, at a fair valuation, will exceed its debts and liabilities,
subordinated, contingent or otherwise; (b) the present fair saleable value
of the property of each Loan Party will be greater than the amount that will be
required to pay the probable liability of its debts and other liabilities,
subordinated, contingent or otherwise, as such debts and other liabilities
become absolute and matured; (c) each Loan Party will be able to pay its
debts and liabilities, subordinated, contingent or otherwise, as such debts and
liabilities become absolute and matured and shall not have ceased to pay its
current obligations in the ordinary course of business as they generally become
due; and (d) each Loan Party will not have unreasonably small capital with
which to conduct the business in which it is engaged as such business is now
conducted and is proposed to be conducted following the Effective Date.


 


SECTION 3.16.
Collateral Matters. (a)  The Collateral Agreements, upon execution
and delivery thereof, will create in favor of the Administrative Agent, for the
benefit of the Secured Parties, a valid and enforceable security interest in
the Collateral (as defined therein) and (i) when the Collateral (as
defined therein) constituting certificated securities (as defined in the Uniform Commercial
Code) is delivered to the Administrative Agent thereunder together with
instruments of transfer duly endorsed in blank, the Collateral Agreements will
constitute a fully perfected Lien on, and security interest in, all right,
title and interest of the pledgors thereunder in such Collateral, (A) in
the case of the ABL Collateral, prior and superior in right to any other
Person, and (B) in the case of the Non-ABL Collateral, junior to the first
priority security interest of the secured parties under the Senior Notes Documents
but prior and superior in right to any other Person, and (ii) when
financing statements in appropriate form are filed in the offices
specified in the Perfection Certificate, the Collateral Agreements will
constitute a fully perfected Lien on and security interest in all right, title
and interest of the Loan Parties in the remaining Collateral (as defined therein)
to the extent perfection can be obtained by filing Uniform Commercial Code
or other applicable personal property security registry financing statements, (A) in
the case of the ABL Collateral, prior and superior in right to any other
Person, and (B) in the case of the Non-ABL Collateral, junior to the first
priority security interest of the secured parties under the Senior Notes


 


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Documents but prior and
superior in right to any other Person, except, in each case, for rights secured
by Liens that have priority as a matter of law and Liens permitted under
clauses (a)(v), (a)(vi) and (a)(vii) of Section 6.02.


 


(b)  Each
Mortgage, upon execution and delivery by the parties thereto, will create in
favor of the Administrative Agent, for the benefit of the Secured Parties, a
legal, valid and enforceable Lien on all the applicable mortgagor’s right,
title and interest in and to the Mortgaged Properties subject thereto and the
proceeds thereof, and when the Mortgages have been filed in the jurisdictions
specified therein, the Mortgages will constitute a fully perfected Lien on all
right, title and interest of the mortgagors in the Mortgaged Properties and the
proceeds thereof, junior to the first priority security interest of the secured
parties under the Senior Notes Documents but prior and superior in right to any
other Person (but subject to Liens or other encumbrances for which exceptions
are taken in the policies of title insurance delivered in respect of the Mortgaged
Properties and rights secured by Liens that have priority as a matter of law
and Liens permitted under clauses (a)(v), (a)(vi) and (a)(vii) of Section 6.02).


 


(c)  Upon
the recordation of the IP Security Agreements with the United States Patent and
Trademark Office or the United States Copyright Office, as applicable, the
Liens created under the Collateral Agreements will constitute fully perfected
Liens on and security interests in all right, title and interest of the Loan
Parties in the Intellectual Property (as defined in the Collateral Agreements)
in which a security interest may be perfected by filing in the United
States and its territories and possessions, in each case junior to the first
priority security interest of the secured parties under the Senior Notes
Documents but prior and superior in right to any other Person, except, in each
case, for rights secured by Liens that have priority as a matter of law and
Liens permitted under clauses (a)(v), (a)(vi) and (a)(vii) of Section 6.02
(it being understood that subsequent recordings in the United States Patent and
Trademark Office or the United States Copyright Office, as applicable, may be
necessary to perfect Liens on registered patents, trademarks and trademark
applications or copyrights, respectively, acquired by the Loan Parties after
the Effective Date).


 


(d)  Each
Security Document other than the Collateral Agreements and the Mortgages, when
executed and delivered and when the filings or other actions provided for
therein have been taken, will be effective under applicable law to create in
favor of the Administrative Agent, for the benefit of the Secured Parties, a
valid and enforceable security interest in the Collateral subject thereto, and
will constitute a fully perfected Lien on and security interest in all right,
title and interest of the Loan Parties in the Collateral subject thereto (i) in
the case of the ABL Collateral, prior and superior in right to any other
Person, and (ii) in the case of the Non-ABL Collateral, junior to the first
priority security interest of the secured parties under the Senior Notes
Documents but prior and superior in right to any other Person, except, in each
case, for rights secured by Liens that have priority as a matter of law and
Liens permitted under clauses (a)(v), (a)(vi) and (a)(vii) of Section 6.02.


 


SECTION 3.17.
Federal Reserve Regulations. Neither Symmetry nor any of the
Subsidiaries is engaged or will engage, principally or as one of its important 


 


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activities, in the business of
purchasing or carrying margin stock (within the meaning of Regulation U of the
Board), or extending credit for the purpose of purchasing or carrying margin
stock. No part of the proceeds of the Loans or BA Drawings will be used,
whether directly or indirectly, to purchase or carry any margin stock or to
refinance Indebtedness originally incurred for such purpose, or for any purpose
that entails a violation (including on the part of any Lender) of
Regulation U or X of the Board.


 


ARTICLE IV


 


Conditions


 


SECTION 4.01.
Effective Date. The obligations of the Lenders to make Loans and accept
and purchase BAs and of the Issuing Banks to issue Letters of Credit hereunder
shall not become effective until the date on which each of the following
conditions is satisfied (or waived in accordance with Section 9.02):


 


(a)  The
Administrative Agent (or its counsel) shall have received from each party
hereto either (i) a counterpart of this Agreement signed on behalf of
such party or (ii) written evidence satisfactory to the Administrative
Agent (which may include facsimile or electronic transmission) that such
party has signed a counterpart of this Agreement.


 


(b)  The
Administrative Agent shall have received a favorable written opinion (addressed
to the Administrative Agent and the Lenders and dated the Effective Date) of
each of (i)  Kelley Drye & Warren LLP, US counsel for Symmetry
and the Borrowers, substantially in the form of Exhibit F-1, (ii) Davies
Ward Phillips & Vineberg LLP, Canadian counsel for Symmetry and the
Borrowers, substantially in the form of Exhibit F-2, and (iii) local
counsel in each jurisdiction where a Subsidiary Party or a Subsidiary the
Equity Interests in which are included in the Collateral is organized, in each case
in form and substance reasonably satisfactory to the Administrative Agent,
and, in the case of each such opinion required by this paragraph, covering such
other matters relating to the Loan Parties, the Loan Documents or the
Transactions as the Administrative Agent shall reasonably request. Each of
Symmetry and the Borrowers hereby requests such counsel to deliver such
opinions.


 


(c)  The
Administrative Agent shall have received such documents and certificates as the
Administrative Agent or its counsel may reasonably request relating to the
organization, existence and good standing of each Loan Party, the authorization
of the Transactions and any other legal matters relating to the Loan Parties,
the Loan Documents or the Transactions, all in form and substance
satisfactory to the Administrative Agent and its counsel.


 


(d)  The
Administrative Agent shall have received a certificate, dated the Effective
Date and signed by the President, a Vice President or a Financial Officer of
Symmetry and the Borrowers, confirming compliance with the conditions set forth
in paragraphs (f) (other than the second sentence thereof), (j), (k), (o)
and (p) of this Section 


 


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and paragraphs (a) (other
than insofar as it relates to Section 3.04(d)(i)), (b) and (c) of
Section 4.02.


 


(e)  The
Administrative Agent shall have received all fees and other amounts due and
payable on or prior to the Effective Date, including, to the extent invoiced,
reimbursement or payment of all out-of-pocket expenses (including fees, charges
and disbursements of counsel) required to be reimbursed or paid by any Loan
Party hereunder or under any other Loan Document.


 


(f)  The
Collateral and Guarantee Requirement shall have been satisfied. The Administrative
Agent shall have received (i) a completed Perfection Certificate dated the
Effective Date and signed by an executive officer or Financial Officer of
Symmetry and the Borrowers, together with all attachments contemplated thereby,
including the results of a search of the Uniform Commercial Code (or
equivalent) filings made with respect to the Loan Parties in the jurisdictions
contemplated by the Perfection Certificate and copies of the financing
statements (or similar documents) disclosed by such search and evidence
reasonably satisfactory to the Administrative Agent that the Liens indicated by
such financing statements (or similar documents) are permitted by Section 6.02
or have been, or substantially simultaneously with the initial funding of the
Loans on the Effective Date will be, released and (ii) evidence that the
lockbox arrangements contemplated by the Collateral Agreements shall have been
established.


 


(g)  The
Administrative Agent shall have received evidence that the insurance required
by Section 5.07 is in effect, together with endorsements naming the
Administrative Agent, for the benefit of the Secured Parties, as additional
insured and loss payee thereunder to the extent required by such Section.


 


(h) 
Symmetry shall have received the Equity Proceeds in an amount not less than
US$15,000,000, and Symmetry shall have made the Equity Contribution into an
account of the US Borrower maintained with JPMCB.


 


(i)  The
US Borrower shall have received from the issuance of the Senior Notes gross
cash proceeds of not less than US$315,000,000, and such proceeds shall have
been deposited into an account of the US Borrower maintained with JPMCB. The
terms and conditions of the Senior Notes and the Intercompany Notes, and the
provisions of the Senior Notes Documents and the Intercompany Notes Documents,
shall be satisfactory to the Lenders. The Administrative Agent shall have
received copies of the Senior Notes Documents and the Intercompany Notes
Documents, certified by a Financial Officer of Symmetry as complete and correct.
The Administrative Agent shall have received from each party to the
Intercreditor Agreement (other than the Administrative Agent) a counterpart thereof
signed on behalf of such party (or written evidence satisfactory to the
Administrative Agent (which may include facsimile or electronic
transmission) that such party has signed such a counterpart).


 


(j)  All material consents and approvals required
to be obtained from any Governmental Authority or other Person in connection
with the Acquisition shall have 


 


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been obtained, and all
applicable waiting periods and appeal periods shall have expired, in each case
without the imposition of any burdensome conditions.


 


(k)  The conditions to the Acquisition set forth
in the Acquisition Documents shall have been satisfied, and the Acquisition
shall have been consummated or, substantially simultaneously with the initial
funding of Loans on the Effective Date, shall be consummated in accordance with
applicable law and the Acquisition Documents (and no provision of the
Acquisition Documents shall have been waived, amended, supplemented or
otherwise modified in a manner material and adverse to the Lenders (as
reasonably determined by the Arrangers)). The Administrative Agent shall have
received copies of the Acquisition Documents as executed and delivered and all
certificates and other documents delivered thereunder and all other agreements
entered into in connection therewith, all certified by a Financial Officer of
Symmetry as complete and correct. The corporate structure of Symmetry and the
Subsidiaries shall be as set forth in Schedule 3.12.


 


(l)  The Administrative Agent shall have received
unaudited consolidated balance sheets and related statements of income,
stockholders’ equity and cash flows of Symmetry and Novamerican for (i) each
fiscal quarter ended after December 31, 2006, and at least 45 days before
the Effective Date and (ii) each fiscal month after the most recent fiscal
quarter for which financial statements were received pursuant to clause (i) above
and ended at least 30 days before the Effective Date, which financial
statements shall be prepared in accordance with, or reconciled to, GAAP
(subject to normal year-end adjustments and, in the case of clause (ii), to
lack of footnotes).


 


(m)  The Lenders shall have received the pro forma
consolidated financial statements referred to in Section 3.04(b).


 


(n)  The Administrative Agent shall have received
projections (broken down by quarter for the first two years and by year
thereafter and including projections with respect to the US Borrowing Base and
the Canadian Borrowing Base) for Symmetry and the Subsidiaries after giving
effect to the Transactions through the fifth anniversary of the Effective Date.


 


(o)  All principal, premium, if any, interest,
fees and other amounts due or outstanding under the Existing Novamerican Credit
Facilities shall have been, or substantially contemporaneously with the initial
funding of Loans on the Effective Date shall be, paid in full, the commitments
thereunder terminated and all guarantees and Liens in support thereof
discharged and released, and the Administrative Agent shall have received
reasonably satisfactory evidence thereof. After giving effect to the Transactions
to be consummated on the Effective Date, none of Symmetry, the Borrowers and
the other Subsidiaries shall have outstanding any shares of preferred stock or
any Indebtedness, other than (i) Revolving Loans, (ii) the Senior
Notes, (iii) the Effective Date Sale Leaseback, (iv) Indebtedness
under the Overdraft Facility and (v) other existing Indebtedness set forth
on Schedule 6.01 in an aggregate amount not to exceed US$5,000,000, provided
that, to the extent that Symmetry has the right to consent 


 


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to the incurrence of such
Indebtedness, the Arrangers shall also have consented to the incurrence of any
such Indebtedness under this clause (iv) incurred after June 21,
2007.


 


(p)  The Effective Date Asset Sale shall have been
consummated, or substantially simultaneously with the initial funding of Loans
on the Effective Date shall be consummated, in accordance with applicable law
and on terms and conditions and pursuant to definitive documentation reasonably
satisfactory to the Arrangers (it being agreed, however, that the sale of the
real estate assets referred to in the definition of the term “Effective Date
Asset Sale” may be consummated after the Effective Date so long as the
arrangements therefor reasonably satisfactory to the Arrangers have been
entered into on the Effective Date). All the conditions precedent to the
consummation of the Effective Date Sale Leaseback shall have been satisfied,
and immediately after the initial funding of Loans on the Effective Date the
Effective Date Sale Leaseback shall be consummated, in accordance with
applicable law and on terms and conditions and pursuant to definitive
documentation reasonably satisfactory to the Arrangers. The net aggregate
annual cost of the Effective Date Sale Leaseback during each 12-month period
during the first three years of its term will be no greater than US$750,000 in
excess of the net annual cost of ownership of the property subject to the
Effective Date Sale Leaseback during the 12-month period ended most recently
prior to the Effective Date. The aggregate amount of the Novamerican Cash
Sources shall be not less than US$91,000,000. JPMCB shall be reasonably
satisfied that the portion of the Novamerican Cash Sources that shall have been
deposited in an account with JPMCB (together with such other amounts as JPMCB
shall otherwise be satisfied as to the availability of) for application to
repay the Overdraft Facility immediately following the consummation of the
Acquisition shall be equal to or in excess of the amount of the Overdraft
Facility and the terms of such deposit and the arrangements for repayment of
the Overdraft Facility shall be satisfactory to JPMCB in all respects.


 


(q)  The Administrative Agent shall have received
a solvency certificate, in form and substance satisfactory to the Lenders,
executed by the chief financial officer of Symmetry, with respect to the
solvency of the Loan Parties after giving effect to the Transactions.


 


(r)  The Agents and Lenders shall have received
all documentation and other information requested by them for purposes of
ensuring compliance with applicable “know your customer” and anti-money
laundering rules and regulations, including the United States Patriot Act,
the Criminal Code (Canada), the Proceeds of Crime (Money Laundering) and
Terrorist Financing Act (Canada) and the Anti-Terrorism Act (Canada), not fewer
than five Business Days prior to the Effective Date.


 


(s)  The Administrative Agent shall have received (i) a
completed Borrowing Base Certificate and supporting documentation dated as of October 27,
2007, and signed by a Financial Officer of Symmetry and (ii) the results
of field examinations and inventory appraisals (prepared by a third party
appraisal firm selected by the Arrangers) with respect to the ABL Collateral,
which in each case shall be reasonably satisfactory to the Arrangers. The
Arrangers shall be satisfied with the Loan Parties’ cash management
arrangements, and the Administrative Agent shall have received each Collateral
Access 


 


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Agreement required to be
provided pursuant to Section 4.04(f) of the Guarantee and Collateral
Agreement and each Deposit Account Control Agreement and Lockbox Agreement
required to be provided pursuant to Section 4.06 of the Guarantee and
Collateral Agreement, all of which shall be effective; provided, that
if, notwithstanding the use by the Loan Parties of their commercially
reasonable efforts, one or more of such Deposit Account Control Agreements or
Lockbox Agreements shall not be effective by the Effective Date, the condition
set forth in this paragraph shall be deemed to have been satisfied, provided,
however, that the Loan Parties hereby covenant and agree with the
Lenders to cause all such Deposit Account Control Agreements or Lockbox
Agreements to become effective by the 90th day (or such longer period as the
Administrative Agent may determine) following the Effective Date or to
make alternative arrangements satisfactory to the Administrative Agent in its
sole discretion (and such covenants shall be deemed for all purposes to be
covenants set forth in Article VI of this Agreement); provided further
that the Administrative Agent may, in its discretion, establish a Reserve with
respect to any deposit account for which the Administrative Agent has not
received a Deposit Account Control Agreement or Lockbox Agreement, or, as to
any deposit account for which no Deposit Account Control Agreement or Lockbox
Agreement required to be delivered under the Guarantee and Collateral Agreement
shall have been delivered during the period referred to above, require the
applicable Loan Party to open and maintain a new deposit account with a
financial institution subject to a Deposit Account Control Agreement or a Lockbox
Agreement, as the case may be.


 


The
Administrative Agent shall notify the Borrowers and the Lenders of the
Effective Date, and such notice shall be conclusive and binding. Notwithstanding
the foregoing, the obligations of the Lenders to make Loans and accept and
purchase BAs and of the Issuing Banks to issue Letters of Credit hereunder
shall not become effective unless each of the foregoing conditions is satisfied
(or waived pursuant to Section 9.02) at or prior to 5:00 p.m., New
York City time, on November 15, 2007 (and, in the event such conditions
shall not have been so satisfied or waived, the Revolving Commitments and the
LC Commitments shall terminate at such time).


 


SECTION 4.02.
Each Credit Event. The obligation of each Lender to make a Loan on the occasion
of any Borrowing or to accept and purchase BAs on the occasion of any BA
Drawing, and of each Issuing Bank to issue, amend, renew or extend any Letter
of Credit, is subject to receipt of the request therefor in accordance herewith
and to the satisfaction of the following conditions:


 


(a)  The
representations and warranties of each Loan Party set forth in the Loan
Documents (other than, in the case of the initial extensions of credit on the
Effective Date, the representation and warranty set forth in Section 3.04(d)(i))
shall be true and correct in all material respects on and as of the date of
such Borrowing or BA Drawing or the date of issuance, amendment, renewal or
extension of such Letter of Credit, as applicable.


 


(b)  At
the time of and immediately after giving effect to such Borrowing or BA Drawing
or the issuance, amendment, renewal or extension of such Letter of Credit, as
applicable, no Default shall have occurred and be continuing.


 


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(c) 
Immediately after giving effect to such Borrowing or BA Drawing or the
issuance, amendment, renewal or extension of such Letter of Credit, as
applicable, (i) the sum of the US Borrower Revolving Exposures shall not
exceed the US Borrowing Base then in effect and (ii) the sum of the
Revolving Exposures shall not exceed the Aggregate Borrowing Base then in
effect.


 


Each Borrowing
or BA Drawing and each issuance, amendment, renewal or extension of a Letter of
Credit shall be deemed to constitute a representation and warranty by Symmetry
and the Borrowers on the date thereof as to the matters specified in paragraphs
(a), (b) and (c) of this Section.


 


ARTICLE V


 


Affirmative
Covenants


 


Until the
Revolving Commitments have expired or been terminated and the principal of and
interest on each Loan and each BA and all fees payable hereunder shall have
been paid in full and all Letters of Credit shall have expired or terminated
and all LC Disbursements shall have been reimbursed, each of Symmetry and the
Borrowers covenants and agrees with the Lenders that:


 


SECTION 5.01.
Financial Statements and Other Information. Symmetry and the Borrowers
will furnish to the Administrative Agent and each Lender:


 


(a)  within 90 days after the end
of each fiscal year of Symmetry, its audited consolidated and unaudited
consolidating statements of operations, comprehensive income and retained
earnings, consolidated statements of cash flows and consolidated balance
sheets, setting forth in each case in comparative form the figures for the
previous fiscal year (with the fiscal year 2007 statements being compared with
the fiscal year 2006 statements of Novamerican), all such audited statements
reported on by Raymond Chabot Grant Thornton or other independent registered
public accountants of recognized national standing (without a “going concern”
or like qualification or exception and without any qualification or exception
as to the scope of such audit) to the effect that such consolidated financial
statements present fairly in all material respects the financial condition and
results of operations of Symmetry and its consolidated Subsidiaries on a
consolidated basis in accordance with GAAP consistently applied;


 


(b)  within 45 days after the end
of each of the first three fiscal quarters of each fiscal year of Symmetry, its
consolidated and consolidating statements of operations, comprehensive income
and retained earnings, consolidated statements of cash flows and consolidated
balance sheets as of the end of and for such fiscal quarter and the then
elapsed portion of the fiscal year, setting forth in each case in comparative form the
figures for the corresponding period or periods of (or, in the case 


 


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of the balance sheet, as of the end of) the previous fiscal year (with
the statements of Novamerican being used for comparison purposes for all
periods prior to the Acquisition), all certified by one of its Financial
Officers as presenting fairly in all material respects the financial condition
and results of operations of Symmetry and its consolidated Subsidiaries on a
consolidated basis in accordance with GAAP consistently applied, subject to
normal year-end audit adjustments and the absence of footnotes;


 


(c)  concurrently with any delivery of
financial statements under clause (a) or (b) above, a certificate of
a Financial Officer of Symmetry (i) certifying as to whether a Default has
occurred and, if a Default has occurred, specifying the details thereof and any
action taken or proposed to be taken with respect thereto, (ii) setting
forth reasonably detailed calculations demonstrating compliance with Section 6.12,
(iii) stating whether any change in GAAP or in the application thereof has
occurred since the date of Novamerican’s audited financial statements referred
to in Section 3.04 and, if any such change has occurred, specifying the
effect of such change on the financial statements accompanying such certificate
and (iv) certifying that all notices required to be delivered under
Sections 5.03, 5.12 and 5.13(b) have been delivered;


 


(d)  concurrently with any delivery of
financial statements under clause (a) above, a certificate of the
accounting firm that reported on such financial statements stating whether they
obtained knowledge during the course of their examination of such financial
statements of any Default (which certificate may be limited to the extent
required by accounting rules or guidelines), as well as any management
letter delivered by such accounting firm to Symmetry or any Subsidiary;


 


(e)  within 90 days after the end of
each fiscal year of Symmetry, a certificate of a Financial Officer of Symmetry
setting forth (i) any Equity Interests or Indebtedness owned by any Loan
Party, (ii) any Intellectual Property owned by any Loan Party and (iii) any
commercial tort claims in respect of which a complaint or a counterclaim has
been filed by any Loan Party and that, in each case, (A) if so owned or
filed by a Loan Party as of the Effective Date, would have been required to be
set forth on the applicable schedule to the Collateral Agreements pursuant
to the terms thereof and (B) have not been set forth on any such schedule to
the Collateral Agreements or in a certificate previously delivered pursuant to
this clause (e);


 


(f)  no later than (i) 15 days
following the end of each fiscal month (or, if such day is not a Business Day,
the next succeeding Business Day), a completed Borrowing Base Certificate,
calculating and certifying the Aggregate Borrowing Base, the US Borrowing Base
and the Canadian Borrowing Base as of the close of business on the last day of
such immediately preceding fiscal month as outlined in Exhibit B, (ii) if
Excess 


 


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Availability shall be US$20,000,000 or less for each of five
consecutive Business Days, the Wednesday (or if such Wednesday is not a
Business Day, on the next succeeding Business Day) of the next succeeding week
following the last day of such five consecutive Business Day period (and on
each succeeding Wednesday (or next succeeding Business Day) thereafter until
the last day of a 60 consecutive day period in which Excess Availability shall
have been greater than US$20,000,000 on each day) a Borrowing Base Certificate
as of Saturday of the immediately preceding week, and (iii) if requested
by the Administrative Agent, at any other time when the Administrative Agent
reasonably believes that the then existing Borrowing Base Certificate is
materially inaccurate or fails to reflect material changes in any of the
Borrowing Base components, as soon as reasonably practicable but in no event
later than five Business Days after such request, a completed Borrowing Base
Certificate, calculating and certifying the Aggregate Borrowing Base, the US
Borrowing Base and the Canadian Borrowing Base as of the date so requested, in
each case signed on behalf of Symmetry by a Financial Officer and with such
supporting documentation and additional reports with respect to the Borrowing
Base as the Administrative Agent may reasonably request;


 


(g)  at least 30 days prior to the
commencement of each fiscal year of Symmetry, a detailed consolidated budget
for such fiscal year (including projected consolidated statements of
operations, comprehensive income and retained earnings, consolidated statements
of cash flows and consolidated balance sheets as of the end of and for such
fiscal year and setting forth the assumptions used for purposes of preparing
such budget) and, promptly when available, any significant revisions of such
budget;


 


(h)  promptly after the same become
publicly available, copies of all periodic and other reports, proxy statements
and other materials filed by Symmetry, either Borrower or any Subsidiary with
the Securities and Exchange Commission, or any Governmental Authority
succeeding to any or all of the functions of said Commission, or with any
national securities exchange, or distributed by Symmetry to its shareholders
generally, as the case may be;


 


(i)  promptly after the request by the
Administrative Agent or any Lender, on and after the effectiveness of the
applicable provisions of the Pension Act, copies of (i) any documents
described in Section 101(i)(1) of ERISA that the US Borrower or any
of its ERISA Affiliates may request with respect to any Multiemployer Plan
and (ii) any notices described in Section 101(l)(1) of ERISA
that the US Borrower or any of its ERISA Affiliates may request with
respect to any Multiemployer Plan; provided that if the US Borrower or
any of its ERISA Affiliates has not requested such documents or notices from
the administrator or sponsor of the applicable Multiemployer Plan, the US
Borrower or the applicable ERISA Affiliate shall promptly make a request for
such documents and notices 


 


91

















 


from such administrator or sponsor and shall provide copies of such
documents and notices promptly after receipt thereof; and


 


(j) 
promptly following any request therefor, such other information
regarding the operations, business affairs and financial condition of Symmetry,
either Borrower or any Subsidiary, or compliance with the terms of any Loan
Document, as the Administrative Agent or any Lender may reasonably
request.


 


Information
required to be delivered pursuant to this Section shall be deemed to have
been delivered if such information, or one or more annual or quarterly reports
containing such information (including, the case of certifications required
pursuant to clause (b) above, the certifications accompanying any
such quarterly report pursuant to Section 302 of the Sarbanes-Oxley Act of
2002), (i) shall have been posted by the Administrative Agent on an
IntraLinks or similar site to which the Lenders have been granted access or (ii) shall
be available on the website of the Securities and Exchange Commission at
www.sec.gov, provided that Symmetry and the Borrowers shall have
delivered a notice to the Administrative Agent that such information is so
available. Information required to be delivered pursuant to this Section may also
be delivered by electronic communications pursuant to procedures approved by
the Administrative Agent.


 


SECTION 5.02.
Notices of Material Events. Symmetry and the Borrowers will furnish to
the Administrative Agent prompt written notice of the following:


 


(a)  the occurrence of any Default;


 


(b)  the filing or commencement of any
action, suit or proceeding by or before any arbitrator or Governmental
Authority against or affecting Symmetry, either Borrower or any Affiliate
thereof that could reasonably be expected to result in a Material Adverse
Effect or that in any manner questions the validity of any Loan Document;


 


(c)  the occurrence of any ERISA Event
that, alone or together with any other ERISA Events that have occurred, could
reasonably be expected to result in liability of Symmetry, the Borrowers and
the other Subsidiaries in an aggregate amount exceeding US$10,000,000; and


 


(d)  any other development that results
in, or could reasonably be expected to result in, a Material Adverse Effect.


 


Each notice
delivered under this Section shall be accompanied by a statement of a
Financial Officer or other executive officer of Symmetry setting forth the
details of the event or development requiring such notice and any action taken
or proposed to be taken with respect thereto.


 


SECTION 5.03.
Information Regarding Collateral. Symmetry and the Borrowers will
furnish to the Administrative Agent promptly (and, in any event, within 


 


92

















 


15 days of the occurrence of
any such change) written notice of any change (i) in any Loan Party’s
legal name, as set forth in its documents or organization, (ii) in the
location of any Loan Party’s chief executive office, the jurisdiction of its
domicile (for purposes of the Civil Code of Quebec), the jurisdiction of any
office in which it maintains books or records relating to the Collateral owned
by it or the jurisdiction of any office or facility at which Collateral owned
by it is located (including the establishment of any such new office or facility
in a new jurisdiction), (iii) in any Loan Party’s form of
organization or corporate structure (including as a result of any merger or
consolidation), (iv) in any Loan Party’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 Loan Party’s
organization.


 


SECTION 5.04.
Existence; Conduct of Business. Each of Symmetry and the Borrowers will,
and will cause each of the Subsidiaries to, do or cause to be done all things
necessary to preserve, renew and keep in full force and effect its legal
existence and the rights, licenses, permits, privileges, franchises, patents,
copyrights, trademarks and trade names material to the conduct of its business;
provided that the foregoing shall not prohibit any merger,
consolidation, liquidation or dissolution permitted under Section 6.03.


 


SECTION 5.05.
Payment of Obligations. Each of Symmetry and the Borrowers will, and
will cause each of the Subsidiaries to, pay its obligations, including Tax
liabilities, before the same shall become delinquent or in default, except
where (a) the validity or amount thereof is being contested in good faith
by appropriate proceedings, (b) Symmetry, such Borrower or such Subsidiary
has set aside on its books adequate reserves with respect thereto in accordance
with GAAP and (c) the failure to make payment pending such contest could
not reasonably be expected to result in a Material Adverse Effect.


 


SECTION 5.06.
Maintenance of Properties. Each of Symmetry and the Borrowers will, and
will cause each of the Subsidiaries to, keep and maintain all property used in
the conduct of its business in good working order and condition, ordinary wear
and tear excepted, except where the failure to do so could not reasonably be
expected to result in a Material Adverse Effect.


 


SECTION 5.07.
Insurance. Each of Symmetry and the Borrowers will, and will cause each
of the Subsidiaries to, 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 Loan
Parties (other than policies of the type in respect of which such actions
customarily are not required) shall (a) in the case of each liability
insurance policy, name the Administrative Agent, on behalf of the Secured
Parties, as an additional insured thereunder, (b) in the case of each
casualty insurance policy, contain a loss payable clause or endorsement that
names the Administrative Agent, on behalf of the Secured Parties, as the loss
payee thereunder and (c) provide for at least 30 days’ (or such shorter
number of days may be agreed to by the Administrative 


 


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Agent) prior written notice to
the Administrative Agent of any cancellation of such policy. Symmetry and the
Borrowers will furnish to the Lenders, upon request of the Administrative
Agent, information in reasonable detail as to the insurance so maintained.


 


SECTION 5.08.
Casualty and Condemnation. Symmetry and the Borrowers (a) will
furnish to the Administrative Agent prompt written notice of any casualty or
other insured damage to any material portion of any Collateral or the
commencement of any action or proceeding for the taking or expropriation of any
Collateral or any part thereof or interest therein under power of eminent
domain or by condemnation or similar proceeding and (b) will ensure that
the proceeds of any such event (whether in the form of insurance proceeds,
condemnation awards or otherwise) are collected and applied in accordance with
the applicable provisions of the Security Documents.


 


SECTION 5.09.
Books and Records; Inspection and Audit Rights. (a)  Each of Symmetry and the Borrowers will, and
will cause each of the Subsidiaries to, keep proper books of record and account
in accordance with GAAP and applicable law. Each of Symmetry and the Borrowers
will, and will cause each of the Subsidiaries to, permit any representatives
designated by the Administrative Agent or any Lender, upon reasonable prior
notice, to visit and inspect its properties, to examine and make extracts from
its books and records, and to discuss its affairs, finances and condition with
its officers and independent accountants, all at such reasonable times and as
often as reasonably requested.


 


(b)  Each
of Symmetry and the Borrowers will, and will cause each of the Subsidiaries to,
permit any representatives designated by the Administrative Agent (including
any consultants, accountants, lawyers and appraisers retained by the
Administrative Agent) to conduct one evaluation and one appraisal in any  year (or (i) up to two evaluations and
two appraisals in any year as requested by the Administrative Agent or the
Required Lenders if Excess Availability shall have been less than US$20,000,000
at any time not more than 60 days prior to the making of the request for the
second evaluation or appraisal and (ii) additional evaluations and
appraisals as requested by the Administrative Agent at any time when an Event
of Default shall have occurred and be continuing) of the Borrowers’ computation
of the Borrowing Base and the assets included therein and such other assets and
properties of the Borrowers or any other Subsidiary as the Administrative Agent
may reasonably require. The Borrowers shall pay the reasonable fees
(including reasonable and customary internally allocated fees and expenses of
employees of the Administrative Agent as to which invoices have been furnished)
and expenses of any third party representatives retained by the Administrative
Agent as to which invoices have been furnished to conduct any such evaluation
or appraisal, including the reasonable fees and expenses associated with
collateral monitoring services performed by the IB ABL Portfolio Management
Group of the Administrative Agent. To the extent required by the Administrative
Agent as a result of any such evaluation, appraisal or monitoring, the
Borrowers also agree to modify or adjust the computation of the Borrowing Base
(which may include maintaining additional reserves or modifying the
eligibility criteria for the components of the Borrowing Base). Any such
modification or adjustment required by the Administrative Agent shall be made 


 


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by written notice to the
Borrowers, and shall become effective for purposes of the first Borrowing Base
Certificate that is delivered pursuant to Section 5.01(f) at least
five Business Days after the date of receipt by the Borrowers of such written
notice.


 


SECTION 5.10.
Compliance with Laws. Each of Symmetry and the Borrowers will, and will
cause each of the Subsidiaries to, comply with all laws, rules, regulations and
orders of any Governmental Authority applicable to it or its property, except
where the failure to do so, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect.


 


SECTION 5.11.
Use of Proceeds and Letters of Credit. The proceeds of up to
US$70,000,000 of Revolving Loans, together with (a) the proceeds of the
Senior Notes, (b) the Novamerican Cash Sources and (c) the Equity
Contribution will be used solely to pay (i) the cash portion of the
Acquisition Consideration and (ii) the Transaction Costs. Letters of
Credit and the proceeds of the Revolving Loans and Swingline Loans drawn, and
BAs accepted and purchased, after the Effective Date will be used solely for
working capital and other general corporate purposes of Symmetry, the Borrowers
and the other Subsidiaries, including making Permitted Acquisitions and
investments. No part of the proceeds of any Loan or BA Drawing will be
used, whether directly or indirectly, for any purpose that entails a violation
of any of the Regulations of the Board, including Regulations T, U and X.


 


SECTION 5.12.
Additional Subsidiaries. If any additional Subsidiary is formed or
acquired after the Effective Date, Symmetry and the Borrowers will, as promptly
as practicable, and in any event within 30 days (or such longer period as the
Administrative Agent may agree in writing) after such Subsidiary is formed
or acquired, notify the Administrative Agent thereof and cause the Collateral
and Guarantee Requirement to be satisfied with respect to such Subsidiary and
with respect to any Equity Interest in or Indebtedness of such Subsidiary owned
by or on behalf of any Loan Party.


 


SECTION 5.13.
Further Assurances. (a)  Each of Symmetry and the Borrowers will,
and will cause each Subsidiary Party to, execute any and all further documents,
financing statements, agreements and instruments, and take all such further
actions (including the filing and recording of financing statements, fixture
filings, mortgages, deeds of trust and other documents), which may be
required under any applicable law, or which the Administrative Agent may reasonably
request, to cause the Collateral and Guarantee Requirement to be and remain
satisfied at all times, all at the expense of the Loan Parties. Symmetry and
the Borrowers also agree to provide to the Administrative Agent, from time to
time upon request, evidence reasonably satisfactory to the Administrative Agent
as to the perfection and priority of the Liens created or intended to be
created by the Security Documents. Notwithstanding the foregoing, Symmetry and
the Borrowers shall not be deemed to be in breach of their covenants hereunder
with respect to the Collateral and Guarantee Requirement in the event of an
inadvertent failure to comply in any immaterial respect with the requirements
set forth in the definition of such term, provided that Symmetry and the
Borrowers shall take, or shall 


 


95

















 


cause the applicable Subsidiary
Party to take, prompt corrective action upon discovery or notice thereof.


 


(b)  If
any material assets (including any real property or improvements thereto
constituting Mortgaged Properties) are acquired by Symmetry, any Borrower or
any Subsidiary Party after the Effective Date (other than assets constituting
Collateral under the Collateral Agreements that become subject to the Lien of
the Collateral Agreements upon the acquisition thereof), Symmetry and the
Borrowers will notify the Administrative Agent thereof and, if requested by the
Administrative Agent, will cause such assets to be subjected to a Lien securing
the Obligations and will take, and cause the Subsidiary Parties to take, such
actions as shall be necessary or reasonably requested by the Administrative
Agent to grant and perfect such Liens, including actions described in paragraph
(a) of this Section, all at the expense of the Loan Parties.


 


ARTICLE VI


 


Negative
Covenants


 


Until the
Revolving Commitments have expired or terminated and the principal of and
interest on each Loan and each BA and all fees payable hereunder have been paid
in full and all Letters of Credit have expired or terminated and all LC
Disbursements shall have been reimbursed, each of Symmetry and the Borrowers
covenants and agrees with the Lenders that:


 


SECTION 6.01.
Indebtedness; Certain Equity Securities. (a)  Symmetry and the
Borrowers will not, and will not permit any Subsidiary to, create, incur,
assume or permit to exist any Indebtedness, except:


 


(i) Indebtedness created under the Loan
Documents;


 


(ii) the Senior Notes and Refinancing
Indebtedness (other than any Indebtedness incurred hereunder) in respect
thereof in an aggregate principal amount not to exceed US$315,000,000 (it being
understood and agreed that, for purposes of this Section, any Indebtedness that
is incurred for the purpose of repurchasing or redeeming any Senior Notes
shall, if otherwise meeting the requirements set forth above and in the
definition of the term “Refinancing Indebtedness”, be deemed to be Refinancing
Indebtedness in respect of the Senior Notes, and shall be permitted to be
incurred and be in existence, notwithstanding that such Refinancing
Indebtedness shall not be applied to make such repurchase or redemption
immediately upon the incurrence thereof, if (A) the proceeds of such
Refinancing Indebtedness are applied to make such repurchase or redemption
prior to the six month anniversary of the incurrence thereof and (B) at
all times pending such application, all the proceeds of such Refinancing
Indebtedness shall be held in an account with the Administrative Agent, subject
to its exclusive dominion and control, including the exclusive right of
withdrawal, as collateral for the payment and performance of the obligations of
the Borrowers under this Agreement (with the Administrative Agent hereby
agreeing that it shall 


 


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permit the Borrowers to withdraw funds from such account if (1) immediately
following such withdrawal, such funds shall be applied to make any such
repurchase or redemption of the Senior Notes or to repay any such Refinancing
Indebtedness, (2) at the time thereof, no Event of Default shall have
occurred and is continuing, provided that this clause (2) shall
not apply in the event the US Borrower shall have become, at a time when no
Default had occurred and was continuing, irrevocably obligated to make such
repurchase or redemption of the Senior Notes, and (3) Symmetry shall have
delivered to the Administrative Agent a certificate of its Financial Officer
certifying to the foregoing));


 


(iii) Indebtedness existing on the date
hereof and set forth on Schedule 6.01 and Refinancing Indebtedness in
respect thereof;


 


(iv) Indebtedness of any Subsidiary to
Symmetry or any other Subsidiary (including the Intercompany Notes); provided
that (A) such Indebtedness shall not have been transferred or pledged to
any Person, other than pledges thereof pursuant to the Loan Documents and the
Senior Notes Documents, (B) such Indebtedness that is owing (i) by
any US Loan Party to any Person that is not a US Loan Party shall be
subordinated to the Obligations or (ii) by any Canadian Loan Party to any
Person that is not a Loan Party shall be subordinated to the Canadian Obligations,
in each case on terms customary for intercompany subordinated Indebtedness, as
reasonably determined by the Administrative Agent, (C) Indebtedness of any
Subsidiary that is not a Loan Party to any Loan Party, or of any Canadian Loan
Party to a US Loan Party, shall be subject to Section 6.04, and (D) any
such Indebtedness owing to any US Loan Party shall be evidenced by a promissory
note that shall have been pledged pursuant to the Collateral Agreements;


 


(v) Guarantees by a Borrower or any other
Subsidiary of Indebtedness of a Borrower or any other Subsidiary; provided
that Guarantees by any Loan Party of Indebtedness of any Subsidiary that is not
a Loan Party, or by any US Loan Party of Indebtedness of any Canadian Loan
Party, shall be subject to Section 6.04;


 


(vi) Indebtedness of a Borrower or any
other Subsidiary incurred to finance the acquisition, construction or
improvement of any fixed or capital assets, including Capital Lease Obligations
and any Indebtedness assumed in connection with the acquisition of any such
assets or secured by a Lien on any such assets prior to the acquisition
thereof, and Refinancing Indebtedness in respect thereof; provided that (A) such
Indebtedness is incurred prior to or within 270 days after such acquisition or
the completion of such construction or improvement and (B) the aggregate
principal amount of Indebtedness permitted by this clause (vi), together with
the aggregate amount of Attributable Debt in respect of sale and leaseback
transactions (other than the Effective Date Sale Leaseback) permitted under Section 6.06,
shall not exceed US$10,000,000 at any time outstanding;


 


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(vii) Indebtedness of any Person that
becomes a Subsidiary (or any Person not previously a Subsidiary that is merged
or consolidated with or into a Subsidiary in a transaction permitted hereunder)
after the date hereof, or Indebtedness of any Person that is assumed by any
Subsidiary in connection with any acquisition of assets in a Permitted
Acquisition, and Refinancing Indebtedness in respect thereof; provided
that (A) such Indebtedness exists at the time such Person becomes a
Subsidiary (or is so merged or consolidated) or such assets are acquired, as
the case may be, and is not created in contemplation of or in connection
with such Person becoming a Subsidiary (or such merger or consolidation) or
such assets being acquired, (B) the aggregate principal amount of
Indebtedness permitted by this clause (vii) shall not exceed US$10,000,000
at any time outstanding and (C) neither Symmetry nor any Subsidiary other
than such Person shall Guarantee or otherwise become liable for the payment of
such Indebtedness;


 


(viii) Indebtedness under Hedging
Agreements that are permitted under Section 6.07;


 


(ix) Indebtedness owed in respect of any
overdrafts and related liabilities arising in the ordinary course of business
from treasury, depository and cash management services or from any automated
clearing-house transfers of funds;


 


(x) Indebtedness (including obligations in
respect of letters of credit) owed to providers of workers’ compensation,
health, disability, retirement or other employee benefits or casualty or
liability insurance pursuant to reimbursement or indemnification obligations;


 


(xi) 
Indebtedness owed in respect of performance bonds, bid bonds, surety
bonds, appeal bonds and bank guarantees and letters of credit (other than bank
guarantees and letters of credit supporting other Indebtedness), in each case
provided in the ordinary course of business, including those securing health,
safety and environmental obligations in the ordinary course of business;


 


(xii) unsecured Indebtedness of Foreign
Subsidiaries (other than Canadian Subsidiaries) incurred for working capital
purposes in an aggregate principal amount not exceeding US$5,000,000 at any
time outstanding; and


 


(xiii) other unsecured Indebtedness in an
aggregate principal amount not exceeding US$10,000,000 at any time outstanding.


 


(b) 
Symmetry and the Borrowers will not, and will not permit any Subsidiary to,
issue any preferred stock or other preferred Equity Interests, provided
that Symmetry may issue preferred stock or other preferred Equity
Interests that, in each case, do not constitute Disqualified Equity Interests.


 


SECTION 6.02.
Liens. (a)  Symmetry and the Borrowers will not, and will not
permit any Subsidiary to, create, incur, assume or permit to exist any Lien on
any 


 


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property or asset now owned or
hereafter acquired by it, or assign or sell any income or revenues (including
accounts receivable) or rights in respect of any thereof, except:


 


(i) Liens created under the Loan
Documents;


 


(ii) Liens securing Indebtedness
permitted under clause (ii) of Section 6.01(a), provided that
no Lien on any asset other than ABL Collateral shall secure any such
Indebtedness unless the Administrative Agent, for the benefit of the Secured
Parties, shall have a second priority security interest in such asset under the
Loan Documents, and no Lien on any asset constituting ABL Collateral shall
secure any such Indebtedness unless the Administrative Agent, for the benefit
of the Secured Parties, shall have a first priority security interest in such
asset under the Loan Documents;


 


(iii) Permitted Encumbrances;


 


(iv) any Lien on any property or asset
of a Canadian Loan Party securing Indebtedness owed by any Canadian Loan Party
to any US Loan Party and permitted under clause (iv) of Section 6.01(a);


 


(v) any Lien on any property or asset of
a Borrower or any other Subsidiary existing on the date hereof and set forth in
Schedule 6.02, and any renewals and continuations thereof; provided
that (A) such Lien shall not apply to any other property or asset of
Symmetry, any Borrower or any other Subsidiary and (ii) such Lien shall
secure only those obligations which it secures on the date hereof or, with
respect to any such obligations that shall have been extended, renewed or
refinanced in accordance with Section 6.01, Refinancing Indebtedness in
respect thereof;


 


(vi) any Lien existing on any property
or asset (other than Accounts and Inventory of any Loan Party) prior to the
acquisition thereof by a Borrower or any other Subsidiary or existing on any
property or asset (other than Accounts or Inventory of any Loan Party) of any
Person that becomes a Subsidiary after the date hereof prior to the time such
Person becomes a Subsidiary; provided that (A) such Lien is not
created in contemplation of or in connection with such acquisition or such
Person becoming a Subsidiary, as the case may be, (B) such Lien shall
not apply to any other property or assets of Symmetry, any Borrower or any
other Subsidiary and (C) such Lien shall secure only those obligations
which it secures on the date of such acquisition or the date such Person
becomes a Subsidiary, as the case may be, or, with respect to any such
obligations that shall have been extended, renewed or refinanced in accordance
with Section 6.01, Refinancing Indebtedness in respect thereof;


 


(vii) Liens on fixed or capital assets
acquired, constructed or improved by a Borrower or any other Subsidiary; provided
that (A) such Liens secure Indebtedness permitted by clause (vi) of
Section 6.01(a), (B) such Liens and the Indebtedness secured thereby
are incurred prior to or within 270 days after such 


 


99

















 


acquisition or the completion of such construction or improvement, (C) the
Indebtedness secured thereby does not exceed the cost of acquiring,
constructing or improving such fixed or capital assets and (D) such Liens
shall not apply to any other property or assets of Symmetry, any Borrower or
any other Subsidiary;


 


(viii) in connection with the sale,
transfer or other disposition of all of the Equity Interests in any Subsidiary
(other than Novamerican Parent or any Borrower) or any other assets owned by
Symmetry or any Subsidiary in a transaction permitted under Section 6.05,
customary rights and restrictions contained in agreements relating to such
sale, transfer or other disposition applicable pending completion thereof and
customary post-closing escrow and similar arrangements;


 


(ix) in the case of any Subsidiary that
is not a wholly-owned Subsidiary, any put, call, right of first refusal and
similar arrangements, and customary transfer restrictions, set forth in its
organizational documents or any related joint venture or similar agreement;


 


(x) leases, subleases, licenses and
sublicenses of assets, in each case entered into by a Borrower or any other
Subsidiary in the ordinary course of business, that do not interfere with the
ordinary course of business of Symmetry, the Borrowers and the other
Subsidiaries;


 


(xi) Liens arising by virtue of Uniform Commercial
Code financing statement filings (or similar filings under applicable law)
regarding operating leases entered into by a Borrower or any other Subsidiary
in the ordinary course of business;


 


(xii) Liens consisting of interests of
lessors under capital leases permitted under Section 6.01;


 


(xiii) Liens imposed by Section 107(1) of
CERCLA or any other Environmental Law for costs or damages that (A) are
not yet due or are being contested in good faith by appropriate proceeding or (B) are
imposed on a real property, where the recourse with respect thereto is limited
to the taking of such real property and such real property is not material to
the business of Symmetry, the Borrowers and the other Subsidiaries; provided
that the amount of obligations secured thereby shall not exceed US$7,500,000 in
the aggregate; and


 


(xiv) any Lien on any property or asset of
any Foreign Subsidiary (other than any Canadian Subsidiary), provided
that (A) such Lien shall not apply to any Collateral (including any Equity
Interests in any Subsidiary that constitute Collateral) or any other property
or asset of Symmetry, any US Subsidiary or any Canadian Subsidiary and (B) such
Lien shall secure only Indebtedness or other obligations of such Foreign
Subsidiary permitted hereunder.


 


Notwithstanding
the foregoing, none of the Liens permitted pursuant to this Section may at
any time attach to any Loan Party’s (A) Accounts, other than Liens
permitted under 


 


100

















 


clause (a) of
the definition of the term “Permitted Encumbrances” and clauses (i), (ii) and
(iv) above, or (B) Inventory, other than Liens permitted under
clauses (a) and (b) of the definition of the term “Permitted
Encumbrances” and clauses (i), (ii) and (iv) above.


 


(b) 
Symmetry will not, and will not permit Novamerican Parent to, create, incur,
assume or permit to exist any Lien on any property or asset now owned or
hereafter acquired by it, or assign or sell any income or revenues (including
accounts receivable) or rights in respect thereof, except Liens referred to in
clauses (i), (ii), (iii), (viii), (ix) and (xiii) of paragraph (a) of
this Section.


 


SECTION 6.03.
Fundamental Changes; Business Activities. (a)  Symmetry and the
Borrowers will not, and will not permit any Subsidiary to, merge into or
consolidate or amalgamate with any other Person, or permit any other Person to
merge into or consolidate or amalgamate with it, or liquidate or dissolve,
except that, if at the time thereof and immediately after giving effect thereto
no Default shall have occurred and be continuing (i) any Subsidiary (other
than Novamerican Parent or a Borrower) may merge into or amalgamate with a
Borrower in a transaction in which such Borrower is the surviving corporation, (ii) any
Person (other than Symmetry, Novamerican Parent or a Borrower) may merge
into or amalgamate with any Subsidiary in a transaction in which the surviving
entity is a Subsidiary and, if any party to such merger is a Subsidiary Party,
a Subsidiary Party and (iii) any Subsidiary (other than a Borrower) may liquidate
or dissolve if the Borrowers determine in good faith that such liquidation or
dissolution is in the best interests of the Borrowers and is not materially
disadvantageous to the Lenders; provided that (A) any such merger
or amalgamation  involving a Person that
is not a wholly-owned Subsidiary immediately prior to such merger or
amalgamation shall not be permitted unless it is also permitted by Section 6.04
and (B) no transaction described above that involves Symmetry, Novamerican
Parent or either Borrower shall be permitted unless Symmetry, Novamerican
Parent or such Borrower, as the case may be, is the surviving Person in
such transaction.


 


(b)  The
Borrowers will not, and will not permit any other Subsidiary to, engage to any
material extent in any business other than businesses of the type conducted by
the Borrowers and the Subsidiaries on the date hereof and businesses reasonably
related thereto.


 


(c) 
Symmetry will not engage in any business or activity other than the ownership
of all the outstanding Equity Interests in Novamerican Parent and of Equity
Interests in its other Subsidiaries and of the other assets permitted to be
owned by Symmetry under the next sentence, activities incidental thereto and
corporate maintenance activities associated with being a public holding company.
Symmetry will not own or acquire any assets, other than (i) Equity
Interests, cash and Permitted Investments (including any deposit accounts
relating thereto) and (ii) other nonoperating assets (including office
space leases, office equipment and office equipment leases) that, in the
aggregate, are not material to the business of Symmetry and the Subsidiaries.


 


(d) 
Novamerican Parent will not engage in any business or activity other than the
ownership of all the outstanding Equity Interests in the US Borrower and of 


 


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Equity Interests in its other
subsidiaries and of the other assets permitted to be owned by Novamerican
Parent under the next sentence and activities incidental thereto. Novamerican
Parent will not own or acquire any assets, other than (i) Equity
Interests, cash and Permitted Investments (including any deposit accounts
relating thereto) and (ii) other nonoperating assets (including office
space leases, office equipment and office equipment leases) that, in the
aggregate, are not material to the business of Symmetry and the Subsidiaries.


 


(e) 
Symmetry and the Borrowers will not permit (i) any Person other than
Symmetry to own any issued and outstanding Equity Interests in Novamerican
Parent, (ii) any Person other than Novamerican Parent to own any issued
and outstanding Equity Interests in the US Borrower, (iii) any Person
other than the US Borrower to own any issued and outstanding Equity Interests
in the Canadian Borrower, (iv) any Person other than the US Borrower, or
one or more of its subsidiaries that is a US Subsidiary and not a CFC, to own
any issued and outstanding Equity Interests in any US Subsidiary (other than
Novamerican Parent and the US Borrower) and (v) any Person other than the
Canadian Borrower, or one or more of its subsidiaries that is a Canadian
Subsidiary, to own any issued and outstanding Equity Interests in any Canadian
Subsidiary (other than the Canadian Borrower), in each case other than (A) directors’
qualifying shares and other nominal amounts of Equity Interests that are
required to be held by other Persons under applicable law and (B) in the
case of clauses (iv) and (v), Equity Interests held by third parties in
any Subsidiary that is not a wholly-owned Subsidiary.


 


(f)  For
so long as any Subsidiary owns any Equity Interests of the type referred to in
clause (a) of the definition of the term “Special Purpose Holdco”,
Symmetry and the Borrowers will not permit such Subsidiary to cease to meet the
requirements set forth in clauses (b) and (c) of the definition of
such term.


 


(g) 
Symmetry and the Borrowers will not permit any Inactive Subsidiary (i) to
engage in any business or activity, (ii) to own or acquire any assets,
other than de minimus assets incidental to the existence thereof, or (iii) to
incur any Indebtedness or other liabilities (other than liabilities imposed by
law, including tax liabilities, and other liabilities incidental to its
existence).


 


SECTION 6.04.
Investments, Loans, Advances, Guarantees and Acquisitions. Symmetry and
the Borrowers will not, and will not permit any of the Subsidiaries to,
purchase, hold or acquire (including pursuant to any merger with any Person
that was not a wholly owned Subsidiary prior to such merger) any Equity
Interests in or evidences of indebtedness or other securities (including any
option, warrant or other right to acquire any of the foregoing) of, make or
permit to exist any loans or advances to, Guarantee any obligations of, or make
or permit to exist any investment or any other interest in, any other Person,
or purchase or otherwise acquire (in one transaction or a series of
transactions) assets of any other Person that, taken as a whole, constitute a
division or a line of business, except:


 


(a)  the Acquisition;


 


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(b)  Permitted Investments;


 


(c)  investments, loans, advances and
Guarantees existing on the date hereof and set forth on Schedule 6.04 (but
not any additions thereto (including any capital contributions) made after the
date hereof);


 


(d)  investments by Symmetry, the
Borrowers and the other Subsidiaries in Equity Interests in their respective
subsidiaries that are subsidiaries prior to such investments; provided
that (i) any such Equity Interests held by a Loan Party shall be pledged
pursuant to, and to the extent required by, the Collateral Agreements, (ii) the
aggregate amount of investments by Loan Parties in, and loans and advances by
Loan Parties to, and Guarantees by Loan Parties of Indebtedness and other obligations
of, Subsidiaries that are not Loan Parties (other than all such investments,
loans, advances and Guarantees existing on the date hereof and set forth on Schedule 6.04)
shall not exceed at any time outstanding the Available Basket Amount at such time
and (iii) in the case of investments by US Loan Parties in, and loans and
advances by US Loan Parties to, and Guarantees by US Loan Parties of
Indebtedness and other obligations of, Canadian Loan Parties (other than all
such investments, loans, advances and Guarantees existing on the date hereof
and set forth on Schedule 6.04 and all such Guarantees created under the
Loan Documents), (A) any such investments is made with cash or Permitted
Investments or is a Permitted Asset Transfer and (B) except in the case of
a Permitted Asset Transfer or a Permitted Flow Through Investment, immediately
after giving effect thereto, (1) no Default has occurred and is continuing
or would result therefrom and (2) (I) the excess of (x) the US Borrowing
Base then in effect over (y) the product of the Availability Block and a
fraction, the numerator of which is the US Borrowing Base then in effect and
the denominator of which is the Aggregate Borrowing Base then in effect
(determined without giving effect to clause (b) of the definition of such
term) shall be at least 120% of (II) the sum of (x) the US Borrower Revolving
Exposures then outstanding and (y) the Protective Advance Exposure on account
of Protective Advances made to the US Borrower then outstanding;


 


(e)  loans or advances made by Symmetry,
a Borrower or any other Subsidiary to a Borrower or any other Subsidiary; provided
that (i) any such loans and advances made by a US Loan Party shall be
evidenced by a promissory note pledged pursuant to the Collateral Agreements
and (ii) the amount of such loans and advances made by Loan Parties to
Subsidiaries that are not Loan Parties, or made by US Loan Parties to Canadian
Loan Parties, shall be subject to the limitations set forth in clause (d) above;


 


(f)  Guarantees by a Borrower or any
other Subsidiary of Indebtedness or other obligations of a Borrower or any
other Subsidiary; provided that (i) a Subsidiary shall not
Guarantee any Indebtedness permitted under clause (ii) of Section 6.01(a) unless
such Subsidiary also has Guaranteed the Obligations pursuant to the Collateral
Agreements, (ii) any such Guarantee constituting 


 


103

















 


Indebtedness is permitted by Section 6.01, (iii) a Subsidiary
that has not Guaranteed the Obligations or, in the case of any Canadian
Subsidiary, the Canadian Obligations pursuant to the Collateral Agreements
shall not Guarantee any Indebtedness or other obligations of any Loan Party and
(iv) the aggregate amount of Indebtedness and other obligations of
Subsidiaries that are not Loan Parties that is Guaranteed by any Loan Party,
and the aggregate amount of Indebtedness and other obligations of Canadian Loan
Parties that is Guaranteed by any US Loan Party, shall be subject to the
limitation set forth in clause (d) above;


 


(g)  investments received in connection
with the bankruptcy or reorganization of, or settlement of delinquent accounts
and disputes with, customers and suppliers, in each case in the ordinary course
of business;


 


(h)  investments resulting from the
receipt of noncash consideration from a sale, transfer or other disposition of
any asset permitted under Section 6.05;


 


(i)  loans and advances to employees of
Symmetry, a Borrower or any other Subsidiary made in the ordinary course of
business, provided that the aggregate amount of such loans and advances
shall not exceed US$6,000,000 at any time outstanding;


 


(j) 
payroll, travel and similar advances to employees of Symmetry, a
Borrower or any other Subsidiary to cover matters that are expected at the time
of such advance to be treated as expenses for accounting purposes and that are
made in the ordinary course of business;


 


(k) 
accounts receivable arising and trade credit granted in the ordinary
course of business, and prepayments and other credits granted to suppliers in
the ordinary course of business;


 


(l) 
investments resulting from pledges and deposits referred to in
clause (d) or (e) of the definition of the term “Permitted
Encumbrances”;


 


(m) 
Permitted Acquisitions; provided that (A) immediately after
giving effect to each such Permitted Acquisition and to any related incurrence
of Indebtedness, Excess Availability at the close of business on the date of
the most recent Borrowing Base Certificate delivered prior thereto, determined
on a pro forma basis as if such Permitted Acquisition and incurrence of
Indebtedness had been made immediately prior to the date of such certificate,
shall have been not less than US$65,000,000 and (B) the ratio of (x)
Consolidated EBITDA to (y) Consolidated Fixed Charges, in each case for the
period of four consecutive fiscal quarters most recently ended prior to such
Permitted Acquisition for which financial statements shall have been delivered
under Section 5.01(a) or 5.01(b), shall have been not less than 1.0
to 1.0, determined on a pro forma basis as if such Permitted Acquisition and
any 


 


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related incurrence of Indebtedness had occurred on the first date of
such period; and


 


(n)  (i) other
investments (other than acquisitions), loans, advances and Guarantees in an
aggregate amount at any time outstanding not exceeding the Available Basket
Amount at such time and (ii) other acquisitions, provided that at
the time each such acquisition is made, (A) no Default shall have occurred
and is continuing or would result therefrom and (B) the aggregate
consideration (other than Equity Interests of Symmetry permitted to be issued
hereunder) paid in such acquisition (including Indebtedness assumed in
connection therewith) shall not exceed an amount equal to the Available Basket
Amount at the time of the consummation of such acquisition.


 


It is understood and agreed
that this Section shall not apply to any purchase or other acquisition of
one or more items of equipment so long as such items of equipment, taken as a
whole, do no constitute a division or a line of business of any Person.


 


SECTION 6.05.
Asset Sales. Symmetry and the Borrowers will not, and will not permit
any of the Subsidiaries to, sell, transfer, lease or otherwise dispose of any
asset, including any Equity Interest owned by it, nor will they permit any
Subsidiary to issue any additional Equity Interest in such Subsidiary (other
than to Symmetry, a Borrower or any other Subsidiary in compliance with Section 6.04
and other than the Effective Date Asset Sale), except:


 


(a)  sales of inventory, used or surplus
equipment or other used or surplus assets and Permitted Investments in the
ordinary course of business;


 


(b)  leases, subleases, licenses and
sublicenses of assets, in each case entered into by a Borrower or any other
Subsidiary in the ordinary course of business and that do not interfere with
the ordinary course of business of Symmetry, the Borrowers and the other
Subsidiaries;


 


(c)  sales, transfers and other
dispositions to a Borrower or any other Subsidiary; provided that any
such sales, transfers or dispositions involving a Subsidiary that is not a Loan
Party shall be made in compliance with Section 6.09;


 


(d)  dispositions in the form of
sale and leaseback transactions permitted under Section 6.06;


 


(e)  sales, transfers and other
dispositions of assets (other than Equity Interests in a Subsidiary) that are
not permitted by any other clause of this Section; provided that the
aggregate fair market value of all assets sold, transferred or otherwise
disposed of in reliance upon this clause (e) shall not exceed
US$10,000,000 during any fiscal year of Symmetry;


 


provided
that all sales, transfers, leases and other dispositions permitted hereby
(other than those permitted by clauses (b) and (c) above) shall be
made for fair value and for at 


 


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least (i) 100%
cash consideration, in the case of any disposition permitted by clause (d) above,
or (ii) 75% cash consideration, in the case of any other such disposition.
Nothing in this Section shall be construed to prohibit or restrict any
investment, loan or advance permitted to be made under Section 6.04.


 


SECTION 6.06.
Sale and Leaseback Transactions. Symmetry and the Borrowers will not,
and will not permit any of the Subsidiaries to, enter into any arrangement,
directly or indirectly, whereby it shall sell or transfer any property, real or
personal, used or useful in its business, whether now owned or hereinafter acquired,
and thereafter rent or lease such property or other property that it intends to
use for substantially the same purpose or purposes as the property sold or
transferred, other than (a) the Effective Date Sale Leaseback and (b) any
other sale and leaseback transaction that is entered into by a Borrower or any
other Subsidiary in respect of fixed or capital assets within 270 days after
the acquisition of, or the completion of construction of or improvements to,
such assets by such Borrower or such other Subsidiary, provided that the
aggregate amount of Attributable Debt in respect of all such sale and leaseback
transactions referred to in this clause (b), together with the aggregate
principal amount of Indebtedness permitted under clause (vi) of Section 6.01(a) shall
not exceed US$10,000,000 at any time outstanding.


 


SECTION 6.07.
Hedging Agreements. Symmetry and the Borrowers will not, and will not
permit any of the Subsidiaries to, enter into any Hedging Agreement, except (a) Hedging
Agreements entered into to hedge or mitigate risks to which either Borrower or
any other Subsidiary has actual exposure (other than in respect of Equity
Interests or Indebtedness of Symmetry, either Borrower or any other Subsidiary)
and (b) Hedging Agreements entered into in order to effectively cap,
collar or exchange interest rates (from fixed to floating rates, from one
floating rate to another floating rate or otherwise) with respect to any
interest-bearing liability or investment of Symmetry, either Borrower or any
other Subsidiary.


 


SECTION 6.08.
Restricted Payments; Certain Payments of Indebtedness. (a) 
Symmetry and the Borrowers will not, and will not permit any Subsidiary to,
declare or make, or agree to pay or make, directly or indirectly, any
Restricted Payment (other than the Effective Date Conversion Rights Payment and
the Effective Date Special Dividend), or incur any obligation (contingent or
otherwise) to do so, except that:


 


(i) Symmetry may declare and pay
dividends with respect to its Equity Interests payable solely in additional
Equity Interests permitted to be issued hereunder,


 


(ii) any Subsidiary may declare and
pay dividends or other distributions with respect to its capital stock,
partnership or membership interests or other similar Equity Interests, ratably
to the holders thereof, provided that dividends paid by the US Borrower
to Novamerican Parent, and by Novamerican Parent to Symmetry, may only be
paid at such times and in such amounts as shall be necessary to permit Symmetry
(A) to make Restricted Payments permitted to be made by it under clause
(iii), (iv), (v) or (vi) below, (B) to make any investment, 


 


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loan, advance or acquisition permitted to be made by it under Section 6.04
and (C) to discharge its other permitted liabilities when and as due,


 


(iii) Symmetry may make Restricted
Payments, not exceeding US$500,000 during any fiscal year of Symmetry, pursuant
to and in accordance with stock incentive plans or other benefit plans for
management or employees of Symmetry, the Borrowers and the other Subsidiaries,


 


(iv) Symmetry may redeem the
Existing Warrants from the registered holders thereof, provided that the
aggregate amount of Restricted Payments made by Symmetry in connection
therewith shall not exceed US$275,000,


 


(v) Symmetry may make any dividend
or distribution to all holders of its common stock to redeem rights issued
pursuant to any stockholder rights plan, “poison pill” or a similar
arrangement, provided that the aggregate amount of such dividends and
distributions shall not exceed $750,000, and


 


(vi) Symmetry may make other
Restricted Payments so long as (A) immediately after giving effect
thereto, no Default has occurred and is continuing or would result therefrom, (B) Excess
Availability at the close of business on the date of the most recent Borrowing
Base Certificate delivered prior to the making of such Restricted Payment,
determined on a pro forma basis as if such Restricted Payment had been made
immediately prior to the date of such certificate, shall have been not less
than US$65,000,000 and (C) the ratio of (1) Consolidated EBITDA to (2) Consolidated
Fixed Charges, in each case for the period of four consecutive fiscal quarters
then most recently ended for which financial statements shall have been
delivered under Section 5.01(a) or 5.01(b), shall have been not less
than 1.0 to 1.0, determined on a pro forma basis as if such Restricted Payment
had been made during such period.


 


(b) 
Symmetry and the Borrowers will not, and will not permit any Subsidiary to,
make or agree to pay or make, directly or indirectly, any payment or other
distribution (whether in cash, securities or other property) of or in respect
of principal of or interest on any Indebtedness, or any payment or other distribution
(whether in cash, securities or other property), including any sinking fund or
similar deposit, on account of the purchase, redemption, retirement,
acquisition, cancelation or termination of any Indebtedness, except:


 


(i) payments of Indebtedness created
under the Loan Documents;


 


(ii) regularly scheduled interest and
principal payments as and when due in respect of any Indebtedness (including,
in the case of the Intercompany Notes or any other Indebtedness owed by any
Canadian Loan Party to a US Loan Party, any such interest payments the payment
of which has been deferred from the original date due);


 


(iii) refinancings of Indebtedness to
the extent permitted by Section 6.01;


 


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(iv) payments of secured Indebtedness
that becomes due as a result of the voluntary sale or transfer of the property
or assets securing such Indebtedness; and


 


(v) other payments in respect of
Indebtedness or on account of the purchase, redemption, retirement,
acquisition, cancelation or termination of Indebtedness so long as (A) immediately
after giving effect thereto, no Default has occurred and is continuing or would
result therefrom, (B) Excess Availability at the close of business on the
date of the most recent Borrowing Base Certificate delivered prior to the
making of each such payment, determined on a pro forma basis as if such payment
had been made immediately prior to the date of such certificate, shall have
been not less than US$65,000,000 and (C) the ratio of (1) Consolidated
EBITDA to (2) Consolidated Fixed Charges, in each case for the period of
four consecutive fiscal quarters then most recently ended for which financial
statements shall have been delivered under Section 5.01(a) or
5.01(b), shall have been not less than 1.0 to 1.0, determined on a pro forma
basis as if such payment had been made during such period and had been a
scheduled principal payment in respect of Long-Term Indebtedness.


 


SECTION 6.09.
Transactions with Affiliates. Symmetry and the Borrowers will not, and
will not permit any Subsidiary to, sell, lease or otherwise transfer any
property or assets to, or purchase, lease or otherwise acquire any property or
assets from, or otherwise engage in any other transactions with, any of its
Affiliates, except (a) transactions in the ordinary course of business
that are at prices and on terms and conditions not less favorable to Symmetry,
such Borrower or such Subsidiary than could be obtained on an arm’s-length
basis from unrelated third parties, (b) transactions between or among the
Loan Parties not involving any other Affiliate, (c) any Restricted Payment
permitted by Section 6.08, (d) compensation and indemnification
(including advancement of expenses in connection thereto) of, and other
employment arrangements (including stock option or other employee benefit,
retention, incentive or retirement plans or agreements) with, directors,
officers and employees of Symmetry, either Borrower or any other Subsidiary
entered into in the ordinary course of business and (e) loans and advances
permitted under clauses (i) and (j) of Section 6.04.


 


SECTION 6.10.
Restrictive Agreements. Symmetry and the Borrowers will not, and will
not permit any Subsidiary to, directly or indirectly, enter into, incur or
permit to exist any agreement or other arrangement that prohibits, restricts or
imposes any condition upon (a) the ability of Symmetry, either Borrower or
any other Subsidiary to create, incur or permit to exist any Lien upon any of
its property or assets or (b) the ability of any Subsidiary to pay
dividends or other distributions with respect to of its Equity Interests or to
make or repay loans or advances to Symmetry, either Borrower or any other
Subsidiary or to Guarantee Indebtedness of a Borrower or any other Subsidiary; provided
that (i) the foregoing shall not apply to (A) restrictions and
conditions imposed by law or by any Loan Document or Senior Notes Document, (B) restrictions
and conditions existing on the date hereof identified on Schedule 6.10
(but shall apply to any amendment or modification expanding the scope of any
such restriction or condition), (C) customary restrictions and conditions
contained in agreements relating to the sale of a 


 


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Subsidiary pending such sale, provided
such restrictions and conditions apply only to the Subsidiary that is to be
sold and such sale is permitted hereunder, (D) restrictions and conditions
imposed by agreements relating to Indebtedness of any Subsidiary in existence at
the time such Subsidiary became a Subsidiary and otherwise permitted under
clause (vi) of Section 6.01(a) (but shall apply to any amendment
or modifications expanding the scope of any such restriction or condition), provided
such restrictions and conditions apply only to such Subsidiary, and (E) restrictions
and conditions imposed by agreements relating to Indebtedness of any Foreign
Subsidiary (other than any Canadian Subsidiary) permitted under Section 6.01(a),
provided that such restrictions and conditions apply only to such
Foreign Subsidiary, and (ii) clause (a) of the foregoing shall not
apply to (A) restrictions or conditions imposed by any agreement relating
to secured Indebtedness permitted by this Agreement if such restrictions or
conditions apply only to the property or assets securing such Indebtedness and (B) customary
provisions in leases, licenses and other contracts restricting the assignment
thereof.


 


SECTION 6.11.
Amendment of Material Documents. Symmetry and the Borrowers will not,
and will not permit any Subsidiary to, amend, modify or waive any of its rights
under (a) any Senior Notes Document or (b) its certificate of
incorporation, by-laws or other organizational documents if, in either case,
such amendment, modification or waiver could adversely affect in any material
respect the rights or interests of the Lenders or the creditworthiness of
Symmetry and the Subsidiaries.


 


SECTION 6.12.
Fixed Charge Coverage Ratio. At any time during any period commencing on
a date on which Excess Availability shall have been less than US$20,000,000 and
continuing until any later date on which Excess Availability shall have been
greater than US$20,000,000 for at least 60 consecutive days, Symmetry and the
Borrowers will not permit the ratio of (a) Consolidated EBITDA to (b) Consolidated
Fixed Charges, in each case for the period of four consecutive fiscal quarters
then most recently ended for which financial statements shall have been
delivered under Section 5.01(a) or 5.01(b), to be (or to have been)
less than 1.0 to 1.0.


 


SECTION 6.13.
Fiscal Year. Symmetry will not change its fiscal year to end on any date
other than December 31.


 


ARTICLE VII


 


Events of
Default


 


If any of the
following events (“Events of Default”) shall occur:


 


(a)  either Borrower shall fail to pay
any principal of any Loan or BA or any reimbursement obligation in respect of
any LC Disbursement when and as the same shall become due and payable, whether
at the due date thereof or at a date fixed for prepayment thereof or otherwise;


 


(b)  either Borrower shall fail to pay
any interest on any Loan or any fee or any other amount (other than an amount
referred to in clause (a) of this 


 


109

















 


Article) payable under this Agreement or any other Loan Document, when
and as the same shall become due and payable, and such failure shall continue
unremedied for a period of five Business Days;


 


(c)  any representation, warranty or
statement made or deemed made by or on behalf of Symmetry, either Borrower or
any Subsidiary in or in connection with any Loan Document or any amendment or
modification thereof or waiver thereunder, or in any report, certificate,
financial statement or other document furnished pursuant to or in connection
with any Loan Document or any amendment or modification thereof or waiver
thereunder, shall prove to have been incorrect in any material respect when
made or deemed made;


 


(d)  Symmetry or either Borrower shall
fail to observe or perform any covenant, condition or agreement contained
in Section 5.02, 5.04 (with respect to the existence of Symmetry or a
Borrower) or 5.11 or in Article VI;


 


(e)  any Loan Party shall fail to
observe or perform any covenant, condition or agreement contained in any
Loan Document (other than those specified in clause (a), (b) or (d) of
this Article), and such failure shall continue unremedied for a period of
30 days after notice thereof from the Administrative Agent to the
Borrowers (which notice will be given at the request of any Lender);


 


(f)  Symmetry, either Borrower or any
other Subsidiary shall fail to make any payment (whether of principal,
interest, termination payment or other payment obligation and regardless of
amount) in respect of any Material Indebtedness, when and as the same shall become
due and payable;


 


(g)  any event or condition shall occur
that results in any Material Indebtedness becoming due prior to its scheduled
maturity (other than the delivery of a notice of optional redemption or
optional prepayment by the issuer thereof) or that enables or permits (with or
without the giving of notice, the lapse of time or both) the holder or holders
of any Material Indebtedness or any trustee or agent on its or their behalf,
or, in the case of any Hedging Agreement, the applicable counterparty, to cause
such Material Indebtedness to become due, or to require the prepayment,
repurchase, redemption or defeasance thereof, prior to its scheduled maturity
or, in the case of any Hedging Agreement, to cause the termination thereof; provided
that this clause (g) shall not apply to secured Indebtedness that
becomes due as a result of the voluntary sale or transfer of the property or
assets securing such Indebtedness;


 


(h)  an involuntary case, action or
proceeding shall be commenced or an involuntary petition shall be filed seeking
(i) liquidation, reorganization or other relief in respect of Symmetry,
either Borrower or any other Subsidiary or its debts, or of a substantial part of
its assets, under any  Federal, state, 


 


110

















 


provincial, territorial or foreign bankruptcy, insolvency, receivership
or similar law now or hereafter in effect or (ii) the appointment of a
receiver, interim receiver, receiver manager, trustee, custodian, sequestrator,
conservator or similar official for Symmetry, either Borrower or any other
Subsidiary or for a substantial part of its assets, and, in any such case,
such case, action or proceeding or such petition shall continue undismissed for
60 days or an order or decree approving or ordering any of the foregoing
shall be entered;


 


(i)  Symmetry, either Borrower or any
other Subsidiary shall (i) voluntarily commence any case, action or
proceeding or file any petition seeking liquidation, reorganization or other
relief under any Federal, state, provincial, territorial or foreign bankruptcy,
insolvency, receivership or similar law now or hereafter in effect, (ii) consent
to the institution of, or fail to contest in a timely and appropriate manner,
any  case, action or proceeding or any
petition described in clause (h) of this Article, (iii) apply for or
consent to the appointment of a receiver, interim receiver, receiver manager,
trustee, custodian, sequestrator, conservator or similar official for Symmetry,
either Borrower or any other Subsidiary or for a substantial part of its
assets, (iv) file an answer admitting the material allegations of a
petition filed against it in any such case, action or proceeding, (v) make
a general assignment for the benefit of creditors or (vi) take any action
for the purpose of effecting any of the foregoing;


 


(j) 
Symmetry, either Borrower or any other Subsidiary shall become unable,
admit in writing its inability or fail generally to pay its debts as they
become due;


 


(k) 
one or more judgments for the payment of money in an aggregate amount in
excess of US$10,000,000 (excluding any amount covered by insurance to the
extent a claim therefor has been made in writing and liability therefor has not
been denied by the insurer) shall be rendered against Symmetry, either
Borrower, any other Subsidiary or any combination thereof and the same shall
remain undischarged for a period of 30 consecutive days during which
execution shall not be effectively stayed, or any action shall be legally taken
by a judgment creditor to attach or levy upon any assets of Symmetry, either
Borrower or any other Subsidiary to enforce any such judgment;


 


(l)  an
ERISA Event or Canadian Pension Event shall have occurred that, in the opinion
of the Required Lenders, when taken together with all other ERISA Events and
Canadian Pension Events that have occurred and all Withdrawal Liabilities and
the MEPP Liabilities referred to in clause (m) below, could reasonably be
expected to result in a Material Adverse Effect;


 


(m)  (i) Symmetry,
either Borrower or any Affiliate thereof as employer under a Multiemployer Plan
shall have made a complete or partial withdrawal from such Multiemployer Plan
and the plan sponsor of such Multiemployer 


 


111

















 


Plan shall have notified such withdrawing employer that such employer
has incurred a withdrawal liability that will be assessed against Symmetry,
either Borrower or any other Subsidiary (a “Withdrawal Liability”), or (ii) Symmetry,
either Borrower or any Affiliate thereof ceases to participate as a
participating employer under a Canadian Pension Plan which is a multi-employer
pension plan (a “Canadian MEPP”) as defined in the PBA or Symmetry,
either Borrower or any Affiliate thereof 
is a participating employer in a Canadian MEPP that has an ongoing
deficiency and the Canadian MEPP requires such employer to contribute to
eliminating such deficiency and, after such cessation of participation, or
otherwise in the case of such deficiency, such employer has any further
liability to contribute to such Canadian MEPP 
(a “MEPP Liability”) and the aggregate of the Withdrawal
Liabilities and the MEPP Liabilities, when taken together with all other ERISA
Events and Canadian Pension Events referred to in clause (l) above, could
reasonably be expected to result in a Material Adverse Effect;


 


(n) 
any Lien purported to be created under any Security Document shall cease
to be, or shall be asserted by any Loan Party not to be, a valid and perfected
Lien on any Collateral with the priority required by the applicable Security
Document, except (i) as a result of the sale or other disposition of the
applicable Collateral in a transaction permitted under the Loan Documents or (ii) as
a result of the Administrative Agent’s (or its sub-agent’s) failure to maintain
possession of any stock certificate, promissory note or other instrument
delivered to it under the Collateral Agreements;


 


(o) 
any Guarantee purported to be created under any Loan Document shall
cease to be, or shall be asserted by any Loan Party not to be, in full force
and effect, except upon the consummation of any transaction permitted by this
Agreement as a result of which the Subsidiary Party providing such Guarantee
ceases to be a Subsidiary or upon the termination of such Loan Document in
accordance with its terms; or


 


(p)  a
Change in Control shall occur;


 


then, and in
every such event (other than an event with respect to a Borrower described in
clause (h) or (i) of this Article), and at any time thereafter during
the continuance of such event, the Administrative Agent may, and at the request
of the Required Lenders shall, by notice to the Borrowers, take any or all of
the following actions, at the same or different times:  (i) terminate
the Revolving Commitments, and thereupon the Revolving Commitments shall
terminate immediately, (ii) declare the Loans and all payment obligations
of the Borrowers in respect of BAs then outstanding to be due and payable in
whole (or in part, in which case any principal not so declared to be due and
payable may thereafter be declared to be due and payable), and thereupon
the principal of the Loans and all payment obligations of the Borrowers in
respect of BAs so declared to be due and payable, together with accrued
interest thereon and all fees and other obligations of the Borrowers hereunder,
shall become due and payable immediately, and (iii) require the deposit of
cash collateral in respect of LC Exposure as provided in Section 2.06(j),
in 


 


112

















 


each case
without presentment, demand, protest or other notice of any kind, all of which
are hereby waived by each Borrower; and in the case of any event with respect
to a Borrower described in clause (h) or (i) of this Article, the
Revolving Commitments shall automatically terminate and the principal of the
Loans and all payment obligations of the Borrowers in respect of BAs then
outstanding, together with accrued interest thereon and all fees and other
obligations of the Borrowers hereunder, shall automatically become due and
payable and the deposit of such cash collateral in respect of LC Exposure shall
automatically become due and payable, in each case, without presentment,
demand, protest or other notice of any kind, all of which are hereby waived by
each Borrower.


 


ARTICLE VIII


 


The
Administrative Agent


 


Each of the
Lenders and the Issuing Banks hereby irrevocably appoints the Administrative
Agent as its agent and authorizes the Administrative Agent to take such actions
on its behalf and to exercise such powers as are delegated to the
Administrative Agent by the terms of the Loan Documents, together with such
actions and powers as are reasonably incidental thereto.


 


The bank
serving as the Administrative Agent hereunder shall have the same rights and
powers in its capacity as a Lender as any other Lender and may exercise
the same as though it were not the Administrative Agent, and such bank and its
Affiliates may accept deposits from, lend money to and generally engage in
any kind of business with Symmetry, either Borrower or any other Subsidiary or
other Affiliate thereof as if it were not the Administrative Agent hereunder.


 


The
Administrative Agent shall not have any duties or obligations except those
expressly set forth in the Loan Documents. Without limiting the generality of
the foregoing, (a) the Administrative Agent shall not be subject to any
fiduciary or other implied duties, regardless of whether a Default has occurred
and is continuing, (b) the Administrative 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 Loan Documents
that the Administrative Agent is required to exercise in writing by the
Required Lenders (or such other number or percentage of the Lenders as shall be
necessary under the circumstances as provided in Section 9.02), and (c) except
as expressly set forth in the Loan Documents, the Administrative Agent shall
not have any duty to disclose, and shall not be liable for the failure to
disclose, any information relating to Symmetry, either Borrower or any other
Subsidiary that is communicated to or obtained by the bank serving as
Administrative Agent or any of its Affiliates in any capacity. The
Administrative Agent shall not be liable for any action taken or not taken by
it with the consent or at the request of the Required Lenders (or such other
number or percentage of the Lenders as shall be necessary under the
circumstances as provided in Section 9.02) or in the absence of its own
gross negligence or wilful misconduct. The Administrative Agent shall be deemed
not to have knowledge of any Default unless and until written notice thereof is
given to the Administrative Agent by Symmetry, a Borrower or a Lender, and the
Administrative Agent shall not be responsible for or have 


 


113

















 


any duty to ascertain or inquire into (i) any statement, warranty
or representation made in or in connection with any Loan Document, (ii) the
contents of any certificate, report or other document delivered thereunder or
in connection therewith, (iii) the performance or observance of any of the
covenants, agreements or other terms or conditions set forth in any Loan
Document, (iv) the validity, enforceability, effectiveness or genuineness
of any Loan Document or any other agreement, instrument or document or (v) the
satisfaction of any condition set forth in Article IV or elsewhere in any
Loan Document, other than to confirm receipt of items expressly required to be
delivered to the Administrative Agent.


 


The
Administrative 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 Administrative Agent
also may rely upon any statement made to it orally or by telephone and
believed by it to be made by the proper Person, and shall not incur any
liability for relying thereon. The Administrative Agent may consult with
legal counsel (who may be counsel for Symmetry or a Borrower), 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.


 


The
Administrative 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
Administrative Agent, including the Non-ABL Collateral Senior Agent for
purposes of possessory security interests in or control of the Non-ABL
Collateral. The Administrative Agent and any such sub-agent may perform any
and all its duties and exercise its rights and powers through their respective
Related Parties. The exculpatory provisions of the preceding paragraphs shall
apply to any such sub-agent and to the Related Parties of the Administrative
Agent and any such sub-agent, and shall apply to their respective activities in
connection with the syndication of the credit facilities provided for herein as
well as activities as Administrative Agent.


 


Subject to the
appointment and acceptance of a successor Administrative Agent as provided in
this paragraph, the Administrative Agent may resign at any time by
notifying the Lenders, the Issuing Banks and the Borrowers. Upon any such
resignation, the Required Lenders shall have the right, in consultation with
the Borrowers, to appoint a successor. If no successor shall have been so appointed
by the Required Lenders and shall have accepted such appointment within
30 days after the retiring Administrative Agent gives notice of its
resignation, then the retiring Administrative Agent may, on behalf of the
Lenders and the Issuing Banks, appoint a successor Administrative 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 Administrative Agent
hereunder by a successor, such successor shall succeed to and become vested
with all the rights, powers, privileges and duties of the retiring
Administrative Agent, and the retiring Administrative Agent shall be discharged
from its duties and obligations hereunder. The fees payable by the Borrowers to
a successor Administrative Agent shall be the same as those payable to its
predecessor unless otherwise agreed between the Borrowers and such successor. After
the Administrative Agent’s resignation hereunder, the provisions of this Article and



 


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Section 9.03 shall continue in effect for the benefit of such
retiring Administrative Agent, its sub-agents and their respective Related
Parties in respect of any actions taken or omitted to be taken by any of them
while it was acting as Administrative Agent.


 


Each Lender
acknowledges that it has, independently and without reliance upon the
Administrative Agent, any Arranger or any other Lender and based on such
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the
Administrative Agent, any Arranger or any other Lender and based on such
documents and information as it shall from time to time deem appropriate,
continue to make its own decisions in taking or not taking action under or
based upon this Agreement, any other Loan Document or related agreement or any
document furnished hereunder or thereunder.


 


Each Lender,
by delivering its signature page to this Agreement and funding its Loans
on the Effective Date, or delivering its signature page to an Assignment
and Assumption pursuant to which it shall become a Lender hereunder, shall be
deemed to have acknowledged receipt of, and consented to and approved, each
Loan Document and each other document required to be approved by the
Administrative Agent or Lenders, as applicable, on the Effective Date.


 


Each Lender
hereby agrees that (a) it has requested a copy of each Report prepared by
or on behalf of the Administrative Agent; (b) the Administrative Agent (i) makes
no representation or warranty, express or implied, as to the completeness or
accuracy of any Report or any of the information contained therein or any
inaccuracy or omission contained in or relating to a Report and (ii) shall
not be liable for any information contained in any Report; (c) the Reports
are not comprehensive audits or examinations, and that any Person performing
any field examination will inspect only specific information regarding the Loan
Parties and will rely significantly upon the Loan Parties’ books and records,
as well as on representations of the Loan Parties’ personnel and that the
Administrative Agent undertakes no obligation to update, correct or supplement
the Reports; (d) it will keep all Reports confidential and strictly for
its internal use and not share any Report with any other Person except as
otherwise permitted pursuant to this Agreement; and (e) without limiting
the generality of any other indemnification provision contained in this
Agreement, it will pay and protect, and indemnify, defend, and hold the
Administrative Agent and any such other Person preparing a Report harmless from
and against, the claims, actions, proceedings, damages, costs, expenses, and
other amounts (including reasonable attorney fees) incurred by as the direct or
indirect result of any third parties who might obtain all or part of any
Report through the indemnifying Lender.


 


Without
limiting the powers of the Administrative Agent or any other Person acting as
an agent, attorney-in-fact or mandatary for the Administrative Agent under this
Agreement or under any other Loan Document, each Lender hereby (a) irrevocably
constitutes, to the extent necessary, the Administrative Agent as the holder of
an irrevocable power of attorney (fondé de pouvoir within
the meaning of Article 2692 of the Civil Code of Québec)
for the purposes of holding any Liens, 


 


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including hypothecs, granted or to be granted by any Loan Party on
movable or immovable property pursuant to the laws of the Province of Quebec to
secure obligations of a Loan Party under any bond issued by a Loan Party; and (b) appoints
and agrees that the Administrative Agent, acting as agent for the Secured
Parties (as defined in the Canadian Guarantee and Collateral Agreement), may act
as the bondholder and mandatary with respect to any bond that may be
issued and pledged from time to time for the benefit of the Secured Parties (as
so defined). The said constitution of the Administrative Agent as fondé de pouvoir (holder of an irrevocable power of attorney
within the meaning of Article 2692 of the Civil Code
of Québec) as the holder of any Lien and as bondholder and mandatary
with respect to any such bond shall be deemed to have been ratified and
confirmed by any future Secured Party (as so defined) that becomes a party to
this Agreement and by any assignee pursuant to Section 9.04 by the
execution of the applicable Assignment and Assumption. Notwithstanding the
provisions of Section 32 of An Act respecting the
special powers of legal persons (Quebec), the Administrative Agent may purchase,
acquire and be the holder of any bond issued by any Loan Party. Each Loan Party
hereby acknowledges that any such bond shall constitute a title of
indebtedness, as such term is used in Article 2692 of the Civil Code of Québec. The Administrative Agent in its
capacity as fondé de pouvoir shall have the rights,
powers and immunities stipulated in this Article, all of which shall apply mutatis
mutandis to the Administrative Agent acting in such capacity and,
without limitation, to the resignation and appointment of a successor to the
Administrative Agent acting as fondé de pouvoir.


 


The parties
agree that none of the Joint Lead Arrangers and Joint Bookrunners or the
Syndication Agent or Co-Documentation Agents named on the cover page of
this Agreement shall, in such capacities, have any powers, duties or
responsibilities under this Agreement or any other Loan Document.


 


ARTICLE IX


 


Miscellaneous


 


SECTION 9.01.
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 Symmetry or a Borrower, 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 Borrower;


 


(ii) (A) if
to the Administrative Agent, to JPMorgan Chase Bank, N.A., Loan and Agency
Services Group, 1111 Fannin, 10th Floor, Houston, Texas 77002, Attention of
Monica Espitia (Fax No. (713) 427-6307), with a copy to JPMorgan Chase
Bank, N.A., 270 Park Avenue, New York, New York 10017, 


 


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Attention
of Neil R. Boylan (Fax No. (212) 270-6637); or (B) if to the
Administrative Agent in respect of any Loan to or Letter of Credit for the
account of the Canadian Borrower, to JPMorgan Chase Bank, N.A., Toronto Branch,
200 Bay Street, Royal Bank Plaza, South Tower, 18th Floor, Toronto, Ontario M5J
2J2 Canada, Attention of Amanda Vidulich (Fax No. (416) 981-9128), with a
copy to JPMorgan Chase Bank, N.A., Toronto Branch, 200 Bay Street, Royal Bank
Plaza, South Tower, 18th Floor, Toronto, Ontario M5J 2J2 Canada, Attention of
Muhammad Hasan (Fax No. (416) 981-9138) and the Administrative Agent as
provided in clause (A);


 


(iii) if
to the Swingline Lender, to it at the address set forth in clause (ii)(A) above;
and


 


(iv) if to any
Issuing Bank or any other Lender, to it at its address (or fax number) set
forth in its Administrative Questionnaire.


 


(b) 
Notices and other communications to the Lenders hereunder may be delivered
or furnished by electronic communications pursuant to procedures approved by
the Administrative Agent; provided that the foregoing shall not apply to
notices pursuant to Article II unless otherwise agreed by the
Administrative Agent and the applicable Lender. Any notices and other
communications to the Administrative Agent, Symmetry or a Borrower hereunder
(other than any Borrowing Request, Interest Election Request or any other
notice pursuant to Article II) may be delivered or furnished by
electronic communications pursuant to procedures approved by the recipient
thereof prior thereto; provided that approval of such procedures may be
rescinded by any such Person by notice to each other such Person.


 


(c)  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 9.02.
Waivers; Amendments. (a)  No failure or delay by the Administrative
Agent, any Issuing Bank or any Lender in exercising any right or power
hereunder or under any other Loan 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 Administrative Agent, the
Issuing Banks and the Lenders hereunder and under the other Loan Documents are
cumulative and are not exclusive of any rights or remedies that they would
otherwise have. No waiver of any provision of any Loan Document or consent to
any departure by any Loan Party 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. Without limiting the generality
of the foregoing, the making of a Loan or acceptance and purchase of a BA or
issuance of a Letter of Credit shall not be construed 


 


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as a waiver of any Default,
regardless of whether the Administrative Agent, any Lender or any Issuing Bank may have
had notice or knowledge of such Default at the time.


 


(b) 
Subject to Section 9.19, none of this Agreement, any other Loan Document
or any provision hereof or thereof may be waived, amended or modified
except, in the case of this Agreement, pursuant to an agreement or agreements
in writing entered into by Symmetry, the Borrowers and the Required Lenders or,
in the case of any other Loan Document, pursuant to an agreement or agreements
in writing entered into by the Administrative Agent and the Loan Party or Loan
Parties that are parties thereto, in each case with the consent of the Required
Lenders; provided that no such agreement shall (i) increase the
Revolving Commitment of any Lender without the written consent of such Lender, (ii) reduce
the principal amount of any Loan or LC Disbursement or any payment obligation
in respect of a BA or reduce the rate of interest thereon, or reduce any fees
payable hereunder, without the written consent of each Lender affected thereby,
(iii) postpone the maturity of any Loan or BA, or the required date of
reimbursement of any LC Disbursement, or any date for the payment of any
interest or fees payable hereunder, or reduce the amount of, waive or excuse
any such payment, or postpone the scheduled date of expiration of any Revolving
Commitment, without the written consent of each Lender affected thereby, (iv) change
Section 2.19(c) in a manner that would alter the pro rata sharing of
payments required thereby without the written consent of each Lender, (v) change
any of the provisions of this Section or the percentage set forth in the
definition of “Required Lenders” or any other provision of any Loan Document
specifying the number or percentage of Lenders required to waive, amend or
modify any rights thereunder or make any determination or grant any consent
thereunder, without the written consent of each Lender, (vi) release all
or substantially all the Guarantees under the Collateral Agreements, or limit
liability in respect of all or substantially all such Guarantees, without the
written consent of each Lender, (vii) release all or substantially all of
the Collateral from the Liens of the Security Documents without the written
consent of each Lender or (viii) increase the advance rates set forth in
the definition of Borrowing Base or add categories of eligible assets other
than Eligible Accounts and Eligible Inventory without the written consent of
the Supermajority Lenders; provided further that no such agreement shall
amend, modify or otherwise affect the rights or duties of the Administrative
Agent, any Issuing Bank or the Swingline Lender without the prior written
consent of the Administrative Agent, such Issuing Bank or the Swingline Lender,
as the case may be. Notwithstanding the foregoing, any provision of this
Agreement may be amended by an agreement in writing entered into by
Symmetry, the Borrowers, the Administrative Agent (and, if their rights or
obligations are affected thereby, the Issuing Banks and the Swingline Lender)
and the Lenders that will remain parties hereto after giving effect to such
amendment if (i) by the terms of such agreement the Revolving Commitment
of each Lender not consenting to the amendment provided for therein shall
terminate upon the effectiveness of such amendment, (ii) at the time such
amendment becomes effective, each Lender not consenting thereto receives
payment in full of the principal of and interest accrued on each Loan made and
each BA accepted and purchased by it and all other amounts owing to it or
accrued for its account under this Agreement, and (iii) after giving
effect to such amendment and all contemporaneous repayments of Loans and
reductions of Revolving Commitments, the sum of the total Revolving Exposures
shall not exceed the total Revolving Commitments.


 


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Notwithstanding any other
provision of any Loan Document, no consent shall be required to be obtained in
connection with any waiver, amendment or other modification of any Loan
Document from any Lender that has no Revolving Commitment and whose Revolving Credit
Exposure is zero.


 


SECTION 9.03.
Expenses; Indemnity; Damage Waiver. (a)  Symmetry and the Borrowers
agree to pay (i) all reasonable out-of-pocket expenses incurred by the
Administrative Agent, the Arrangers, the Syndication Agent and their Affiliates
in connection with the structuring, arrangement, syndication and administration
of the credit facilities provided for herein, the preparation, execution,
delivery and administration of the Loan Documents or any amendments,
modifications or waivers of the provisions thereof (whether or not the
transactions contemplated hereby or thereby shall be consummated), including
the reasonable fees, charges and disbursements of Cravath, Swaine &
Moore LLP, McMillan Binch Mendelsohn LLP and, in connection with the perfection
of security interests, a single firm of local counsel in each applicable
jurisdiction, and fees and expenses relating to field examinations, appraisals
and collateral monitoring, (ii) all reasonable out-of-pocket expenses
incurred by any Issuing Bank in connection with the issuance, amendment,
renewal or extension of any Letter of Credit or any demand for payment
thereunder and (iii) all out-of-pocket expenses incurred by the
Administrative Agent, the Arrangers, the Syndication Agent, any Issuing Bank or
any Lender, including the fees, charges and disbursements of any counsel for
the Administrative Agent, any Arranger, the Syndication Agent, any Issuing Bank
or any Lender, in connection with the enforcement or protection of its rights
in connection with the Loan Documents, including its rights under this Section,
or in connection with the Loans made, the BAs accepted and purchased or the
Letters of Credit issued hereunder, including all such out-of-pocket expenses
incurred during  any workout, restructuring
or negotiations in respect of such Loans, BAs or Letters of Credit.


 


(b) 
Symmetry and the Borrowers shall indemnify the Administrative Agent, the
Arrangers, the Syndication Agent, each Issuing Bank and each Lender, and each
Related Party of any of the foregoing Persons (each such Person being called an
“Indemnitee”) against, and hold each Indemnitee harmless from, any and
all losses, claims, damages, penalties, 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 (i) the arrangement and the syndication
of the credit facilities provided for herein, the preparation, execution,
delivery and administration of the Loan Documents or any other agreement or
instrument contemplated hereby, the performance by the parties to the Loan
Documents of their respective obligations thereunder or the consummation of the
Transactions or any other transactions contemplated hereby, (ii) any Loan,
BA or Letter of Credit or the use of the proceeds therefrom (including any
refusal by an Issuing Bank to honor a demand for payment under a Letter of
Credit if the documents presented in connection with such demand do not
strictly comply with the terms of such Letter of Credit), (iii) any actual
or alleged presence or release of Hazardous Materials on or from any Mortgaged
Property or any other property currently or formerly owned or operated by
Symmetry, either Borrower or any other Subsidiary, or any Environmental
Liability related in any way to Symmetry, either Borrowers or any other
Subsidiary, or (iv) any actual or prospective 


 


119

















 


claim, litigation,
investigation or proceeding relating to any of the foregoing, whether based on
contract, tort or any other theory and regardless of whether any Indemnitee is
a party thereto and regardless of whether such matter is initiated by a third
party or by a Borrower or any Affiliate thereof; 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.


 


(c)  To
the extent that Symmetry or a Borrower fails to pay any amount required to be
paid by it to the Administrative Agent, an Arranger, the Syndication Agent, any
Issuing Bank or the Swingline Lender under paragraph (a) or (b) of
this Section, each Lender severally agrees to pay to the Administrative Agent,
such Arranger, the Syndication Agent, such Issuing Bank or the Swingline
Lender, as the case may be, such Lender’s pro rata share (determined as of
the time that the applicable unreimbursed expense or indemnity payment is
sought) of such unpaid amount; provided that the unreimbursed expense or
indemnified loss, claim, damage, liability or related expense, as the case may be,
was incurred by or asserted against the Administrative Agent, such Arranger,
the Syndication Agent, such Issuing Bank or the Swingline Lender in its
capacity as such. For purposes hereof, a Lender’s “pro rata share” shall be
determined based upon its share of the sum of the total Revolving Exposures and
unused Revolving Commitments at the time.


 


(d)  To
the extent permitted by applicable law, neither Symmetry nor the Borrowers
shall assert, and each hereby waives, any claim against any Indemnitee (i) for
any damages arising from the use by others of information or other materials
obtained through electronic telecommunications or other information
transmission systems (including the internet), so long as commercially
reasonable and customary efforts generally are made to safeguard access
thereto, it being understood that this clause (i) is not intended to
exculpate any knowing and intentional breach of any confidentiality agreement,
or (ii) on any theory of liability, for special, indirect, consequential
or punitive damages (as opposed to direct or actual damages) arising out of, in
connection with, or as a result of, this Agreement or any agreement or
instrument contemplated hereby, the Transactions, any Loan or Letter of Credit
or the use of the proceeds thereof.


 


(e)  All
amounts due under this Section shall be payable not later than 10 days
after written demand therefor.


 


SECTION 9.04.
Successors and Assigns. (a)  The provisions of this Agreement shall
be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns permitted hereby (including any Affiliate of
any Issuing Bank that issues any Letter of Credit), except that (i) neither
Borrower may assign or otherwise transfer any of its rights or obligations
hereunder without the prior written consent of each Lender (and any attempted
assignment or transfer by a Borrower without such consent shall be null and
void) and (ii) no Lender may assign or otherwise transfer its rights
or obligations hereunder except in accordance with this Section. Nothing in
this Agreement, expressed or implied, shall be construed to confer upon any 


 


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Person (other than the parties
hereto, their respective successors and assigns permitted hereby (including any
Affiliate of any Issuing Bank that issues any Letter of Credit), Participants
(to the extent provided in paragraph (c) of this Section) and, to the
extent expressly contemplated hereby, the Related Parties of each of the Administrative
Agent, the Issuing Banks and the Lenders) any legal or equitable right, remedy
or claim under or by reason of this Agreement.


 


(b)  (i) 
Subject to the conditions set forth in paragraph (b)(ii) below, any Lender
may assign to one or more assignees all or a portion of its rights and
obligations under this Agreement (including all or a portion of its Revolving
Commitment and the Loans and reimbursement obligations in respect of BAs and
Letters of Credit at the time owing to it) with the prior written consent (such
consent not to be unreasonably withheld) of:


 


(A) the Borrowers, provided
that no consent of the Borrowers shall be required for an assignment to a
Lender or to an Affiliate of a Lender, or, if an Event of Default under clause
(a), (b), (h), (i) or (j) of Article VII has occurred and is
continuing, any other assignee;


 


(B) the Administrative
Agent; and


 


(C) in the case of any
assignment of all or a portion of a Revolving Commitment or any Lender’s
obligations in respect of its LC Exposure or Swingline Exposure, each Principal
Issuing Bank and the Swingline Lender.


 


(ii) Assignments shall be subject to the
following additional conditions:


 


(A) except in the case of
an assignment to a Lender or an Affiliate of a Lender or an assignment of the entire
remaining amount of the assigning Lender’s Revolving Commitment or Loans and
reimbursement obligations in respect of BAs and Letters of Credit, the amount
of the Revolving Commitment or Loans and reimbursement obligations in respect
of BAs and Letters of Credit of the assigning Lender subject to each such
assignment (determined as of the date the Assignment and Assumption with
respect to such assignment is delivered to the Administrative Agent) shall not
be less than US$5,000,000 unless each of the Borrowers and the Administrative
Agent otherwise consents, provided that no such consent of the Borrowers
shall be required if an Event of Default under clause (a), (b), (h), (i) or
(j) of Article VII has occurred and is continuing:


 


(B) each partial assignment
shall be made as an assignment of a proportionate part of all the
assigning Lender’s rights and obligations under this Agreement;


 


(C) the parties to each
assignment shall execute and deliver to the Administrative Agent an Assignment
and Assumption (which shall specify 


 


121

















 


the Applicable Lending Office for the
assignee), together with a processing and recordation fee of US$3,500; and


 


(D) the assignee, if it
shall not be a Lender, shall deliver to the Administrative Agent an
Administrative Questionnaire in which the assignee designates one or more
credit contacts to whom all syndicate-level information (which may contain
material non-public information about Symmetry, the Borrowers and their Related
Parties or their securities) will be made available and who may receive
such information in accordance with the assignee’s compliance procedures and
applicable laws, including Federal, state, provincial, territorial and foreign
securities laws.


 


(iii) 
Subject to acceptance and recording thereof pursuant to paragraph (b)(iv) of
this Section, from and after the effective date specified in each Assignment
and Assumption the assignee thereunder shall be a party hereto and, to the
extent of the interest assigned by such Assignment and Assumption, have the
rights and obligations of a Lender under this Agreement, and the assigning
Lender thereunder shall, to the extent of the interest assigned by such
Assignment and Assumption, be released from its obligations under this
Agreement (and, in the case of an Assignment and Assumption covering all of the
assigning Lender’s rights and obligations under this Agreement, such Lender
shall cease to be a party hereto but shall continue to be entitled to the
benefits of Sections 2.16, 2.17, 2.18 and 9.03). Any assignment or transfer by
a Lender of rights or obligations under this Agreement that does not comply
with this Section shall be treated for purposes of this Agreement as a
sale by such Lender of a participation in such rights and obligations in
accordance with paragraph (c) of this Section.


 


(iv) The
Administrative Agent, acting for this purpose as an agent of the Borrowers,
shall maintain at one of its offices in New York, New York, a copy of each
Assignment and Assumption delivered to it and a register for the recordation of
the names and addresses of the Lenders, and the Revolving Commitment of, and
principal amount of the Loans, BAs and LC Disbursements owing to, each Lender
pursuant to the terms hereof from time to time (the “Register”). The
entries in the Register shall be conclusive, and the Borrowers, the
Administrative Agent, the Issuing Banks and the Lenders may treat each
Person whose name is recorded in the Register pursuant to the terms hereof as a
Lender hereunder for all purposes of this Agreement, notwithstanding notice to
the contrary. The Register shall be available for inspection by the Borrowers,
any Issuing Bank and any Lender, at any reasonable time and from time to time
upon reasonable prior notice.


 


(v) Upon
its receipt of a duly completed Assignment and Assumption executed by an
assigning Lender and an assignee, the assignee’s completed Administrative
Questionnaire (unless the assignee shall already be a Lender hereunder), the
processing and recordation fee referred to in this Section and any written
consent to such assignment required by this Section, the Administrative Agent
shall accept such Assignment and Assumption and record the information
contained therein in the Register. 


 


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No assignment shall be
effective for purposes of this Agreement unless it has been recorded in the
Register as provided in this paragraph.


 


(c)  (i) Any
Lender may, without the consent of the Borrowers, the Administrative Agent, any
Issuing Bank or the Swingline Lender, grant participations to one or more banks
or other entities (a “Participant”) in all or a portion of such Lender’s
rights and obligations under this Agreement (including all or a portion of its
Revolving Commitment and the Loans and reimbursement obligations in respect of
BAs and Letters of Credit owing to it); provided that (A) such
Lender’s obligations under this Agreement shall remain unchanged, (B) such
Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations, (C) the Borrowers, the Administrative
Agent, the Issuing Banks and the other Lenders shall continue to deal solely
and directly with such Lender in connection with such Lender’s rights and
obligations under this Agreement and (D) unless the Canadian Borrower has
received a notice of such participation, such participation will not result in
payments by the Canadian Borrower in respect of the rights and obligations
subject to such participation being subject to withholding taxes under the laws
of Canada in an amount that exceeds the Canadian withholding taxes applicable
to amounts payable by the Canadian Borrower to the Lender that granted such
participation. Any agreement or instrument pursuant to which a Lender grants
such a participation shall provide that such Lender shall retain the sole right
to enforce this Agreement and to approve any amendment, modification or waiver
of any provision of this Agreement; provided that such agreement or
instrument may provide that such Lender will not, without the consent of
the Participant, agree to any amendment, modification or waiver described in
the first proviso to Section 9.02(b) that affects such Participant. Subject
to paragraph (c)(ii) of this Section, each Borrower agrees that each
Participant shall be entitled to the benefits of Sections 2.16, 2.17 and 2.18
to the same extent as if it were a Lender and had acquired its interest by
assignment pursuant to paragraph (b) of this Section. To the extent
permitted by law, each Participant also shall be entitled to the benefits of Section  9.08
as though it were a Lender, provided such Participant agrees to be subject to Section 2.19(c) as
though it were a Lender.


 


(ii)  A
Participant shall not be entitled to receive any greater payment under Section 2.16
or 2.18 than the applicable Lender would have been entitled to receive with
respect to the participation sold to such Participant, unless the sale of the
participation to such Participant is made with the Borrowers’ prior written
consent.


 


(d)  Any
Lender may at any time pledge or assign a security interest in all or any
portion of its rights under this Agreement to secure obligations of such
Lender, including any pledge or assignment to secure obligations to a Federal Reserve
Bank, and this Section shall not apply to any such pledge or assignment of
a security interest; provided that no such pledge or assignment of a
security interest shall release a Lender from any of its obligations hereunder
or substitute any such pledgee or assignee for such Lender as a party hereto.


 


SECTION 9.05.
Survival. All covenants, agreements, representations and warranties made
by the Loan Parties in the Loan Documents and in the certificates or 


 


123

















 


other instruments delivered in
connection with or pursuant to this Agreement or any other Loan Document shall
be considered to have been relied upon by the other parties hereto and shall
survive the execution and delivery of the Loan Documents and the making of any
Loans, the acceptance and purchase of any BAs and the issuance of any Letters
of Credit, regardless of any investigation made by any such other party or on
its behalf and notwithstanding that the Administrative Agent, any Issuing Bank or
any Lender may have had notice or knowledge of any Default or incorrect
representation or warranty at the time any credit is extended hereunder, and
shall continue in full force and effect as long as the principal of or any
accrued interest on any Loan or any fee or any other amount payable under this
Agreement is outstanding and unpaid or any Letter of Credit is outstanding and
so long as the Revolving Commitments have not expired or terminated. The
provisions of Sections 2.16, 2.17, 2.18 and 9.03 and Article VIII shall
survive and remain in full force and effect regardless of the consummation of
the transactions contemplated hereby, the repayment of the Loans and the BAs,
the expiration or termination of the Letters of Credit and the Revolving
Commitments or the termination of this Agreement or any provision hereof.


 


SECTION 9.06.
Counterparts; Integration; Effectiveness. This Agreement, the other Loan
Documents and any separate letter agreements with respect to fees payable to
the Administrative Agent or any Issuing Bank constitute the entire contract
among the parties relating to the subject matter hereof and supersede any and
all previous agreements and understandings, oral or written, relating to the
subject matter hereof. Except as provided in Section 4.01, this Agreement
shall become effective when it shall have been executed by the Administrative
Agent and when the Administrative Agent shall have received counterparts hereof
that, when taken together, bear the signatures of each of the other parties hereto,
and thereafter shall be binding upon and inure to the benefit of the parties
thereto and their respective successors and assigns. Delivery of an executed
counterpart of a signature page of this Agreement by facsimile or
other electronic imaging means shall be effective as delivery of a manually
executed counterpart of this Agreement.


 


SECTION 9.07.
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.


 


SECTION 9.08.
Right of Setoff. If an Event of Default shall have occurred and be
continuing, each Lender and each of its Affiliates is hereby authorized at any
time and from time to time, to the fullest extent permitted by law, to set off
and apply any and all deposits (general or special, time or demand, provisional
or final) at any time held and other obligations at any time owing by such
Lender or Affiliate to or for the credit or the account of either Borrower
against any of and all the obligations then due of such Borrower now or
hereafter existing under this Agreement held by such Lender, irrespective of
whether or not such Lender shall have made any demand under this 


 


124

















 


Agreement. The rights of each
Lender under this Section are in addition to other rights and remedies
(including other rights of setoff) which such Lender may have.


 


SECTION 9.09.
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 Symmetry and the Borrowers 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 any Loan 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 Loan Document shall affect any
right that the Administrative Agent, any Issuing Bank or any Lender may otherwise
have to bring any action or proceeding relating to this Agreement or any other
Loan Document against Symmetry, the Borrowers or their properties in the courts
of any jurisdiction.


 


(c)  Each
of Symmetry and the Borrowers 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
Loan 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 9.01. Nothing in this Agreement or any
other Loan Document will affect the right of any party to this Agreement to
serve process in any other manner permitted by law.


 


SECTION 9.10.
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 LOAN
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 


 


125

















 


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 9.11.
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 shall not affect the construction of, or be taken into
consideration in interpreting, this Agreement.


 


SECTION 9.12.
Confidentiality. Each of the 
Administrative Agent, the Issuing Banks and the Lenders agrees to
maintain the confidentiality of the Information (as defined below), except that
Information may be disclosed (a) to its and its Affiliates’
directors, officers, employees and agents, including accountants, legal counsel
and other advisors (it being understood that the Persons to whom such
disclosure is made will be informed of the confidential nature of such Information
and instructed to keep such Information confidential), (b) to the extent
requested by any regulatory authority, (c) to the extent required by
applicable laws or regulations or by any subpoena or similar legal process, (d) to
any other party to this Agreement, (e) in connection with the exercise of
any remedies hereunder or any suit, action or proceeding relating to this
Agreement or any other Loan Document or the enforcement of rights hereunder or
thereunder, (f) subject to an agreement containing provisions
substantially the same as those of this Section, to (i) any assignee of or
Participant in, or any prospective assignee of or Participant in, any of its
rights or obligations under this Agreement or (ii) any actual or
prospective counterparty (or its advisors) to any swap or derivative
transaction relating to Symmetry, either Borrower or any Subsidiary and its
obligations, (g) with the consent of a Borrower or (h) to the extent
such Information (i) becomes publicly available other than as a result of
a breach of this Section or (ii) becomes available to the
Administrative Agent, any Issuing Bank or any Lender on a nonconfidential basis
from a source other than Symmetry or a Borrower. For the purposes of this
Section, “Information” means all information received from Symmetry or
the Borrowers relating to Symmetry or the Borrowers or their business, other
than any such information that is available to the Administrative Agent, any
Issuing Bank or any Lender on a nonconfidential basis prior to disclosure by
Symmetry or a Borrower; provided that, in the case of information
received from Symmetry or a Borrower after the date hereof, such information is
clearly identified at the time of delivery as confidential. Any Person required
to maintain the confidentiality of Information as provided in this Section shall
be considered to have complied with its obligation to do so if such Person has
exercised the same degree of care to maintain the confidentiality of such
Information as such Person would accord to its own confidential information.


 


SECTION 9.13.
Interest Rate Limitation. Notwithstanding anything herein to the
contrary, if at any time the interest rate applicable to any Loan, together
with all fees, charges and other amounts which are treated as interest on such
Loan under applicable law (collectively the “Charges”), shall exceed the
maximum lawful rate (the “Maximum Rate”) which may be contracted
for, charged, taken, received or reserved by the Lender holding such Loan in
accordance with applicable law, the rate of interest payable in respect of such
Loan hereunder, together with all Charges payable in respect 


 


126

















 


thereof, shall be limited to
the Maximum Rate and, to the extent lawful, the interest and Charges that would
have been payable in respect of such Loan but were not payable as a result of
the operation of this Section shall be cumulated and the interest and
Charges payable to such Lender in respect of other Loans or periods shall be
increased (but not above the Maximum Rate therefor) until such cumulated
amount, together with interest thereon at the Federal Funds Effective Rate to
the date of repayment, shall have been received by such Lender.


 


SECTION 9.14.
Release of Liens and Guarantees. A Subsidiary Party shall automatically
be released from its obligations under the Loan Documents and all security
interests in Collateral owned by such Subsidiary Party (other than Novamerican
Parent or either Borrower) shall be automatically released upon the consummation
of any transaction permitted by this Agreement as a result of which such
Subsidiary Party ceases to be a Subsidiary (other than a transaction in which
such Subsidiary Party merges into or consolidates or amalgamates with Symmetry
or any other Subsidiary); provided that, if so required by this
Agreement, the Required Lenders shall have consented to such transaction and
the terms of such consent shall not have provided otherwise. Upon any sale or
other transfer by any Loan Party of any Collateral that is permitted under this
Agreement (including any such transfer contemplated by Section 6.01(a)(ii),
but excluding any sale or transfer to Symmetry or any of its Affiliates unless
such sale or transfer is (a) a permitted transfer to a Subsidiary that is not
a Subsidiary Party or (b) a Permitted Asset Transfer to a Canadian
Subsidiary), or upon the effectiveness of any written consent to the release of
the security interest granted under any Loan Document in any Collateral
pursuant to Section 9.02 of this Agreement, the security interest in such
Collateral shall be automatically released. In connection with any termination
or release pursuant to this Section, the Administrative Agent shall execute and
deliver to any Subsidiary Party, at such Subsidiary Party’s expense, all
documents that such Subsidiary Party shall reasonably request to evidence such
termination or release. Any execution and delivery of documents pursuant to
this Section shall be without recourse to or warranty by the
Administrative Agent.


 


SECTION 9.15.
USA Patriot Act Notice. Each Lender and the Administrative Agent (for
itself and not on behalf of any Lender) hereby notifies each Borrower that
pursuant to the requirements of the USA Patriot Act (Title III of Pub. L.
107-56 (signed into law October 26, 2001)) (the “Act”), it is
required to obtain, verify and record information that identifies the
Borrowers, which information includes the name and address of each of them and
other information that will allow such Lender or the Administrative Agent, as
applicable, to identify the Borrowers in accordance with the Act.


 


SECTION 9.16.
No Fiduciary Relationship. Symmetry and each Borrower, on behalf of
itself and the Subsidiaries, agrees that in connection with all aspects of the
transactions contemplated hereby and any communications in connection
therewith, Symmetry, the Borrowers, the Subsidiaries and their Affiliates, on
the one hand, and the Administrative Agent, the Lenders and their Affiliates,
on the other hand, will have a business relationship that does not create, by
implication or otherwise, any fiduciary duty on the part of the
Administrative Agent, the Lenders or their Affiliates, and 


 


127

















 


no such duty will be deemed to
have arisen in connection with any such transactions or communications.


 


SECTION 9.17.
Non-Public Information. (a)  Each Lender acknowledges that all
information furnished to it pursuant to this Agreement by Symmetry or a
Borrower on its behalf and relating to Symmetry, the Borrowers, the
Subsidiaries or their businesses may include material non-public
information concerning Symmetry, the Borrowers and the Subsidiaries or their
securities, and confirms that it has developed compliance procedures regarding
the use of material non-public information and that it will handle such
material non-public information in accordance with the procedures and
applicable law, including Federal, state, provincial, territorial and foreign
securities laws.


 


(b)  All
such information, including requests for waivers and amendments, furnished by
Symmetry, a Borrower or the Administrative Agent pursuant to, or in the course
of administering, this Agreement will be syndicate-level information, which may contain
material non-public information about Symmetry, the Borrowers and the
Subsidiaries and their securities. Accordingly, each Lender represents to
Symmetry, the Borrowers and the Administrative Agent that it has identified in
its Administrative Questionnaire a credit contact who may receive information
that may contain material non-public information in accordance with its
compliance procedures and applicable law, including Federal, state, provincial,
territorial and foreign securities laws.


 


SECTION 9.18.
Conversion of Currencies. (a)  If, for the purpose of obtaining
judgment in any court, it is necessary to convert a sum owing hereunder in one
currency into another currency, each party hereto agrees, to the fullest extent
that it may effectively do so, that the rate of exchange used shall be that
at which in accordance with normal banking procedures in the relevant
jurisdiction the first currency could be purchased with such other currency on
the Business Day immediately preceding the day on which final judgment is
given.


 


(b)  The
obligations of each party hereto in respect of any sum due to any other party
hereto or any holder of the obligations owing hereunder (the “Applicable
Creditor”) shall, notwithstanding any judgment in a currency (the “Judgment
Currency”) other than the currency in which such sum is stated to be due
hereunder (the “Agreement Currency”), be discharged only to the extent
that, on the Business Day following receipt by the Applicable Creditor of any
sum adjudged to be so due in the Judgment Currency, the Applicable Creditor may in
accordance with normal banking procedures in the relevant jurisdiction purchase
the Agreement Currency with the Judgment Currency; if the amount of the
Agreement Currency so purchased is less than the sum originally due to the
Applicable Creditor in the Agreement Currency, the Borrowers agree as a
separate obligation and notwithstanding any such judgment, to indemnify the
Applicable Creditor against such loss. The obligations of each party hereto
contained in this Section shall survive the termination of this Agreement
and the payment of all other amounts owing hereunder.


 


SECTION 9.19.
Concerning the Intercreditor Agreement. The Lenders and the Issuing
Banks acknowledge that the Senior Notes are secured by Liens on the 


 


128

















 


ABL Collateral and the Non-ABL
Collateral. Each Lender and Issuing Bank hereby irrevocably authorizes and
directs the Administrative Agent to execute and deliver the Intercreditor
Agreement (and any intercreditor agreement referred to in the definition of the
term “Refinancing Indebtedness”) and any documents relating thereto, in each
case, on behalf of such Lender or such Issuing Bank and without any further
consent, authorization or other action by such Lender or such Issuing Bank, and
agrees that (a) it shall be bound by the terms of the Intercreditor
Agreement and any such other intercreditor agreement as if it were a signatory
thereto and (b) no Lender or Issuing Bank shall have any right of action
whatsoever against the Administrative Agent as a result of any action taken by
such Agent pursuant to this Section or in accordance with the terms of the
Intercreditor Agreement or any such other intercreditor agreement. Each Lender
and Issuing Bank hereby further irrevocably authorizes and directs the
Administrative Agent to enter into such amendments, supplements or other
modifications to the Intercreditor Agreement as are contemplated by Section 5.07
thereof (and such amendments, supplements or other modifications of any such
other intercreditor agreement as are contemplated by the corresponding section of
such other intercreditor agreement) in connection with any refinancing, in
whole or in part, of the Senior Notes or any refinancing, in part but not
in whole, of the Loan Documents Obligations, in each case, on behalf of such
Lender or such Issuing Bank and without any further consent, authorization or
other action by such Lender or such Issuing Bank. The Administrative Agent
shall have the benefit of the provisions of Article VIII with respect to
all actions taken by it pursuant to this Section to the full extent
thereof.


 


129

















 


IN WITNESS
WHEREOF, the parties hereto have caused this Agreement to be duly executed by
their respective authorized officers as of the day and year first above
written.


 


	
   

  	
  SYMMETRY HOLDINGS INC.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  by

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  /s/ Corrado De Gasperis

  	
   

  
	
   

  	
   

  	
   

  	
  Name: Corrado De Gasperis

  	
   

  
	
   

  	
   

  	
   

  	
  Title:   Chief Executive Officer

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  NOVAMERICAN STEEL FINCO INC.,

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  by

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  /s/ Corrado De Gasperis

  	
   

  
	
   

  	
   

  	
   

  	
  Name: Corrado De Gasperis

  	
   

  
	
   

  	
   

  	
   

  	
  Title:    President and
  Treasurer

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  632421 N.B. LTD (to become 

  NOVAMERICAN STEEL INC. on the 

  Effective Date),

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  by

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  /s/ Corrado De Gasperis

  	
   

  
	
   

  	
   

  	
   

  	
  Name: Corrado De Gasperis

  	
   

  
	
   

  	
   

  	
   

  	
  Title:    President

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  JPMORGAN CHASE BANK, N.A., 

  TORONTO BRANCH, as Canadian Agent,

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  by

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  JPMORGAN CHASE BANK, N.A., 

  individually and as Administrative Agent,

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  by

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  /s/ Neil R. Boylan

  	
   

  
	
   

  	
   

  	
   

  	
  Name: Neil R. Boylan

  	
   

  
	
   

  	
   

  	
   

  	
  Title:    Managing Director

  	
   

  



 


SYMMETRY HOLDINGS INC.,
NOVAMERICAN STEEL FINCO INC.,

632421 N.B. LTD (TO BECOME NOVAMERICAN STEEL INC. ON THE EFFECTIVE DATE)
  CREDIT AGREEMENT


 

















 


	
   

  	
  CIT BUSINESS CREDIT CANADA INC., 

  individually and as Syndication Agent,

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  by

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  /s/ Rick Lomas

  	
   

  
	
   

  	
   

  	
   

  	
  Name: Rick Lomas

  	
   

  
	
   

  	
   

  	
   

  	
  Title:   EVP & Deputy

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  /s/ Joseph Arnone

  	
   

  
	
   

  	
   

  	
   

  	
  Name: Joseph Arnone

  	
   

  
	
   

  	
   

  	
   

  	
  Title:   Vice President

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  THE CIT GROUP/BUSINESS CREDIT, 

  INC., individually and as Syndication Agent,

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  by

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  /s/ Andrew Loughlin

  	
   

  
	
   

  	
   

  	
   

  	
  Name: Andrew Loughlin

  	
   

  
	
   

  	
   

  	
   

  	
  Title:   Vice President

  	
   

  



 


SYMMETRY HOLDINGS INC.,
NOVAMERICAN STEEL FINCO INC.,

632421 N.B. LTD (TO BECOME NOVAMERICAN STEEL INC. ON THE EFFECTIVE DATE)

CREDIT AGREEMENT


 

















 


SIGNATURE
PAGE TO


SYMMETRY
HOLDINGS INC.


NOVAMERICAN
STEEL FINCO INC.


632421
N.B. LTD (to become


NOVAMERICAN
STEEL INC.


 on the Effective Date)


CREDIT
AGREEMENT


 


 


	
  Name
  of Institution:

  
	
  JPMORGAN
  CHASE BANK, N.A., TORONTO BRANCH

  
	
   

  
	
  by

  
	
            /s/
  M. Hasan

  	
   

  
	
  Name:
  Muhammed Hasan

  
	
  Title:
  Vice President

  



 


	
  For
  any Lender that requires a second signature line:

  
	
  by

  
	
  /s/[                               ]

  	
   

  
	
  Name:

  
	
  Title:

  



 


 


SIGNATURE
PAGE TO


SYMMETRY
HOLDINGS INC.


NOVAMERICAN
STEEL FINCO INC.


632421
N.B. LTD (to become


NOVAMERICAN
STEEL INC.


 on the Effective Date)


CREDIT
AGREEMENT


 


 


	
  Name
  of Institution: The Bank of Nova Scotia

  
	
   

  
	
  by

  
	
            /s/
  Michel Sirois 

  	
   

  
	
  Name:  Michel Sirois

  
	
  Title:  Sr. Credit Solutions Manager

  



 


	
  For
  any Lender that requires a second signature line:

  
	
  by

  
	
  /s/ Glen
  Patterson

  	
   

  
	
  Name:
  Glen Patterson

  
	
  Title:
  Director, Credit Solutions

  



 


 


SIGNATURE
PAGE TO


SYMMETRY
HOLDINGS INC.


NOVAMERICAN
STEEL FINCO INC.


632421
N.B. LTD (to become


NOVAMERICAN
STEEL INC.


 

















 


 on the Effective Date)


CREDIT
AGREEMENT


 


 


	
  Name
  of Institution: General Electric Capital Corp.

  
	
   

  
	
  by

  
	
          /s/
  Bond Harberts

  	
   

  
	
  Name:  Bond Harberts

  
	
  Title:  Duly Authorized Signatory

  



 


	
  For
  any Lender that requires a second signature line:

  
	
  by

  
	
   

  	
   

  
	
  Name:

  
	
  Title:

  



 


 


SIGNATURE
PAGE TO


SYMMETRY
HOLDINGS INC.


NOVAMERICAN
STEEL FINCO INC.


632421
N.B. LTD (to become


NOVAMERICAN
STEEL INC.


 on the Effective Date)


CREDIT
AGREEMENT


 


 


	
  Name
  of Institution: BANK OF AMERICA, N.A.

  
	
   

  
	
  by

  
	
           /s/
  Gregory A. Kress

  	
   

  
	
  Name:
   Gregory A. Kress

  
	
  Title:  Senior Vice President

  



 


	
  For
  any Lender that requires a second signature line:

  
	
  by

  
	
   

  	
   

  
	
  Name:

  
	
  Title:

  



 


 


SIGNATURE
PAGE TO


SYMMETRY
HOLDINGS INC.


NOVAMERICAN
STEEL FINCO INC.


632421
N.B. LTD (to become


NOVAMERICAN
STEEL INC.


 on the Effective Date)


CREDIT
AGREEMENT


 


 


	
  Name
  of Institution: Wells Fargo Foothill, LLC

  
	
   

  
	
  by

  
	
         /s/
  Jeff P. Royston 

  	
   

  
	
  Name:  Jeff Royston

  
	
  Title:  Vice President

  



 

















 


	
  Name
  of Institution: Wells Fargo Foothill Canada ULC

  
	
   

  
	
  by

  
	
          /s/
  Jeff P. Royston 

  	
   

  
	
  Name:  Jeff Royston

  
	
  Title:  Vice President

  



 


 


SYMMETRY
HOLDINGS INC.


NOVAMERICAN
STEEL FINCO INC.


632421
N.B. LTD (to become


NOVAMERICAN
STEEL INC.


 on the Effective Date)


CREDIT
AGREEMENT


 


 


	
  Name
  of Institution: Wachovia Capital Finance (New England)

  
	
   

  
	
  by

  
	
          /s/
  Jessica Benevides Caron

  	
   

  
	
  Name:  Jessica Benevides Caron

  
	
  Title:  Vice President

  
	
   

  
	
   

  
	
  For
  any Lender that requires a second signature line:

  
	
  by

  
	
   

  	
   

  
	
  Name:

  
	
  Title:

  
			



 


 


SYMMETRY
HOLDINGS INC.


NOVAMERICAN
STEEL FINCO INC.


632421
N.B. LTD (to become


NOVAMERICAN
STEEL INC.


 on the Effective Date)


CREDIT
AGREEMENT


 


 


	
  Name
  of Institution: Fifth Third Bank

  
	
   

  
	
  by

  
	
          /s/
  Andrew P. Arton

  	
   

  
	
  Name:  Andrew P. Arton

  
	
  Title:  Vice President

  



 


	
  For
  any Lender that requires a second signature line:

  
	
  by

  
	
   

  	
   

  
	
  Name:

  
	
  Title:

  



 
















 


Credit Agreement


Schedule 1.01


 


APPLICABLE FUNDING ACCOUNT


 


	
  OWNER

  	
   

  	
  TYPE OF ACCOUNT

  	
   

  	
  BANK OR 

  INTERMEDIARY

  	
   

  	
  ACCOUNT 

  NUMBERS

  
	
  Novamerican Steel Finco Inc.

  	
   

  	
  US Account

  	
   

  	
  JPMorgan Chase Bank, N.A.

  	
   

  	
   

  
	
  632421 N.B. Ltd.

  	
   

  	
  Cdn.$ Account

  	
   

  	
  JPMorgan Chase Bank, N.A.

  	
   

  	
   

  
	
  Novamerican Steel

  	
   

  	
  US$ Account

  	
   

  	
  JPMorgan Chase Bank, N.A.

  	
   

  	
   

  
	
  Novamerican Steel

  	
   

  	
  Cdn.$ Account

  	
   

  	
  JPMorgan Chase Bank, N.A.

  	
   

  	
   

  



 

















 


Schedule
2.01


Commitments


 


	
  Lender

  	
   

  	
  Amount

  	
   

  
	
  JPMorgan Chase
  Bank, N.A.

  	
   

  	
  $

  	
  22,500,000.00

  	
   

  
	
  The CIT
  Group/Business Credit, Inc. CIT Business Credit Canada, Inc.

  	
   

  	
  $

  	
  22,500,000.00

  	
   

  
	
  The Bank of Nova
  Scotia

  	
   

  	
  $

  	
  22,500,000.00

  	
   

  
	
  General Electric
  Capital Corporation

  	
   

  	
  $

  	
  22,500,000.00

  	
   

  
	
  Bank of America,
  N.A.

  	
   

  	
  $

  	
  22,500,000.00

  	
   

  
	
  Wells Fargo
  Foothill, LLC Wells Fargo Foothill Canada ULC

  	
   

  	
  $

  	
  22,500,000.00

  	
   

  
	
  Wachovia Capital
  Finance (New England)

  	
   

  	
  $

  	
  22,500,000.00

  	
   

  
	
  Fifth Third Bank

  	
   

  	
  $

  	
  17,500,000.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  TOTAL

  	
   

  	
  $

  	
  175,000,000.00

  	
   

  



 


Applicable
Lending Office


 


	
  US Lending Office

  	
   

  	
  Canadian
  Lending Office

  
	
  JPMorgan Chase Bank, N.A. 

  270 Park Avenue 

  New York, NY 10017

  	
   

  	
  JPMorgan Chase Bank, N.A., Toronto Branch 

  200 Bay Street, Suite 1800 

  Royal Bank Plaza, South Tower 

  Toronto, Ontario M5J 2J2

  
	
   

  	
   

  	
   

  
	
  The CIT Group/Business Credit, Inc. 

  11 West 42nd Street, 13th Floor 

  New York, NY 10036

  	
   

  	
  CIT Business Credit Canada Inc. 

  207 Queens Quay West, Suite 700 

  Toronto, ON M5J 1A7 Canada

  
	
   

  	
   

  	
   

  
	
  The Bank of Nova Scotia 

  44 King Street West 

  Toronto, ON M5H 1H1 Canada

  	
   

  	
  The Bank of Nova Scotia 

  1800 McGill College Ave., 12th Floor 

  Montreal, QC H3A 3K9 Canada

  
	
   

  	
   

  	
   

  
	
  General Electric Capital Corporation 

  500 West Monroe 

  Chicago, IL 60661-3671

  	
   

  	
  General Electric Capital Corporation 

  500 West Monroe 

  Chicago, IL 60661-3671

  
	
   

  	
   

  	
   

  
	
  Bank of America, N.A. 

  1 Federal Street 

  Boston, MA 02110

  	
   

  	
  Bank of America, N.A., Canadian Branch 

  200 Front Street West, Suite 2700 

  Toronto, ON M5V 3L2 Canada

  
	
   

  	
   

  	
   

  
	
  Wells Fargo Foothill, LLC 

  2450 Colorado Avenue, Suite 3000 W 

  Santa Monica, CA 90404

  	
   

  	
  Wells Fargo Foothill Canada ULC 

  161 Bay Street, Suite 27th Floor 

  Toronto, ON M5J 2S1 Canada

  
	
   

  	
   

  	
   

  
	
  Wachovia Capital Finance (New England) 

  One Post Office Square, Suite 3600 

  Boston, MA 02109

  	
   

  	
  Wachovia Capital Finance Corporation 

  (Canada) 

  141 Adelaide Street West, Suite 1500 

  Toronto, ON M5F 3L5 Canada

  
	
   

  	
   

  	
   

  
	
  Fifth Third Bank 

  38 Fountain Square Plaza 

  Cincinnati, OH 45236

  	
   

  	
  Fifth Third Bank 

  20 Bay Street, 12th Floor 

  Toronto, ON M5J 2N8 Canada

  



 

















 


Schedule 2.06A


 


Existing Letters of Credit


 


	
  Letter of Credit

  Number

  	
   

  	
  Beneficiary(ies)

  	
   

  	
  Expiration

  Date

  	
   

  	
  Face

  Amount

  	
   

  
	
  ASL-3007657-170ASA

  	
   

  	
  The Insurance Company of the State of Pennsylvania
  and Commerce and Industry Insurance Company

  	
   

  	
  Evergreen

  	
   

  	
  $

  	
  116,436.00

  	
   

  
	
  ASL-3007658-170ASA

  	
   

  	
  The Insurance Company of the State of Pennsylvania
  and Commerce and Industry Insurance Company

  	
   

  	
  Evergreen

  	
   

  	
  $

  	
  175,000.00

  	
   

  
	
  ASL-3012515-170ASA

  	
   

  	
  National Union Fire Insurance Co. of Pittsburgh PA; et al.

  	
   

  	
  Evergreen

  	
   

  	
  $

  	
  380,000.00

  	
   

  
	
  ASL-3013705-170ASA

  	
   

  	
  National Union Fire Insurance Co. of Pittsburgh PA; et al.

  	
   

  	
  Evergreen

  	
   

  	
  $

  	
  116,000.00

  	
   

  
	
  ASL-3014584-110ASA

  	
   

  	
  National Union Fire Insurance Co. of Pittsburgh PA; et al.

  	
   

  	
  Evergreen

  	
   

  	
  $

  	
  267,000.00

  	
   

  
	
  ASL-7420454-110ASA

  	
   

  	
  National Union Fire Insurance Co. of Pittsburgh PA; et al.

  	
   

  	
  Evergreen

  	
   

  	
  $

  	
  120,000.00

  	
   

  



 

















 


Schedule 2.06B


 


LC Commitments


 


	
  JPMorgan Chase Bank, N.A.:

  	
   

  	
  $

  	
  25,000,000.00

  	
   

  
	
  Bank of America, N.A.:

  	
   

  	
  $

  	
  1,174,436.00

  	
   

  



 

















 


Credit Agreement


Schedule 3.05


 


REAL PROPERTY


 


SYMMETRY HOLDINGS INC.:


 


None


 


NOVAMERICAN STEEL HOLDINGS INC.:


 


None


 


NOVAMERICAN STEEL FINCO INC.:


 


None


 


INTEGRATED STEEL INDUSTRIES, INC.:


 


None


 


AMERICAN STEEL AND ALUMINUM CORPORATION:


 


	
  1.

  	
   

  	
  1080/1050 University Avenue,
  Norwood, MA 02062 (To be mortgaged)

  
	
   

  	
   

  	
   

  
	
  2.

  	
   

  	
  27 Elm Street, Auburn, MA
  01501 (To be mortgaged)

  
	
   

  	
   

  	
   

  
	
  3.

  	
   

  	
  4601 Crown Road, Clay, NY
  12205 (To be mortgaged)(1)

  
	
   

  	
   

  	
   

  
	
  4.

  	
   

  	
  One West Albany Road,
  Colonie, NY 12205 (To be mortgaged)(2)

  
	
   

  	
   

  	
   

  
	
  5.

  	
   

  	
  11111 Leadbetter Road,
  Hanover Industrial Park, Ashland, VA 23005 (To be mortgaged)

  
	
   

  	
   

  	
   

  
	
  6.

  	
   

  	
  115 Wallace Avenue (Lots 7
  & 13), South Portland, ME 04106 (To be mortgaged)

  
	
   

  	
   

  	
   

  
	
  7.

  	
   

  	
  419 & 425 Homestead
  Avenue, Hartford, CT 06112 (To be mortgaged)

  
	
   

  	
   

  	
   

  
	
  8.

  	
   

  	
  2751 Spring Garden Drive,
  Middletown (Lower Swatara), PA 17057 (To be mortgaged)

  



 






(1)
This property qualifies as a mortgaged property, but no mortgage will be taken
due to New York State taxes that are applicable as a result of the secured
obligation being revolving in nature.


 


(2)
This property qualifies as a mortgaged property, but no mortgage will be taken
due to New York State taxes that are applicable as a result of the secured
obligation being revolving in nature.


 

















 


	
  9.           197
  Dexter Street, Cumberland, RI 02864 (To be mortgaged)

  



 


NOVA TUBE AND STEEL, INC.:


 


	
  1.           600
  Dean Sievers Place, Morrisville (Falls Township), PA 19067 (To be mortgaged)

  



 


NOVAMERICAN TUBE HOLDINGS,
INC.:


 


None


 


NOVA TUBE INDIANA, LLC:


 


	
  1.           1195
  Port Road, Jeffersonville, IN 47130 (To be mortgaged)

  



 


NOVAMERICAN STEEL, INC.:


 


	
  1.

  	
  2175 Hymus Boulevard, Dorval,
  Québec H9P 1J8(3)

  
	
   

  	
   

  
	
  2.

  	
  72 Devon Road, Unit 10,
  Brampton, Ontario L6T 5B4(4)

  
	
   

  	
   

  
	
  3.

  	
  553 rue Léon-Harmel, Granby,
  Québec J2G 3G5(5)

  
	
   

  	
   

  
	
  4.

  	
  424 rue St-Vallier, Granby,
  Québec J2G 7Y4(6)

  
	
   

  	
   

  
	
  5.

  	
  5675 Chemin de la Savane, St.
  Hubert, Québec J3Y 8Y9(7)

  
	
   

  	
   

  
	
  6.

  	
  1463 Cloutier Street,
  Shawinigan, Québec G9N 8G7(8)

  
	
   

  	
   

  
	
  7.

  	
  50 Pacifique Street East,
  Bromont, Québec J2L 1J5(9)

  



 






(3)
Formerly leased to Argo Steel Ltd. which was liquidated and dissolved on
November 15, 2007.


 


(4)
Formerly leased to Argo Steel Ltd. which was liquidated and dissolved on
November 15, 2007.


 


(5)
Formerly owned by Cresswell Industries, Inc. which was amalgamated into
Novamerican Steel Inc. on November 15, 2007.


 


(6)
Formerly owned by Cresswell Industries, Inc. which was amalgamated into
Novamerican Steel Inc. on November 15, 2007.


 


(7)
Formerly leased to Nova Steel Ltd. and subleased to Cresswell Industries, Inc.,
both of which were amalgamated into Novamerican Steel Inc. on November 15,
2007.


 


(8)
Formerly leased to Cresswell Industries, Inc. which was amalgamated into
Novamerican Steel Inc. on November 15, 2007.


 


(9)
Formerly leased to Cresswell Industries, Inc. which was amalgamated into
Novamerican Steel Inc. on November 15, 2007.


 

















 


 


	
  8.

  	
   

  	
  6001 Irwin Street, LaSalle,
  Québec H8N 1A1 (Subject to sale-leaseback transaction)(10)

  
	
   

  	
   

  	
   

  
	
  9.

  	
   

  	
  330 Pinebush Road, Cambridge,
  Ontario N1T 1Z6(11)

  
	
   

  	
   

  	
   

  
	
  10.

  	
   

  	
  830 South Service Road,
  Stoney Creek, Ontario L8E 5M7(12)

  
	
   

  	
   

  	
   

  
	
  11.

  	
   

  	
  19460 Clark Graham Avenue,
  Baie d’Urfé, Québec H9X 3R8(13)

  
	
   

  	
   

  	
   

  
	
  12.

  	
   

  	
  2730 Meadowpine Boulevard,
  Mississauga, Ontario L5N 7K4(14)

  



 


632421 N.B. LTD.:


 


None


 


632422 N.B. LTD.:


 


None


 


TUBES DELTA, SOCIÉTÉ EN COMMANDITE:


 


	
  1.

  	
   

  	
  5901 Irwin Street, LaSalle,
  Québec H8N 1A1

  



 






(10)
Formerly leased to Nova Steel Ltd. which was amalgamated into Novamerican Steel
Inc. on November 15, 2007.


 


(11)
Formerly leased to Nova Steel Ltd. which was amalgamated into Novamerican Steel
Inc. on November 15, 2007.


 


(12)
Formerly owned by Nova Steel Processing Centre Ltd. which was amalgamated into
Novamerican Steel Inc. on November 15, 2007.


 


(13)
Formerly leased to Nova Tube Inc. which was liquidated and dissolved on
November 15, 2007, and subleased by Nova Tube Inc. to Nova Products, a division
of Nova Steel Ltd., which was amalgamated into Novamerican Steel on November
15, 2007.


 


(14)
Formerly owned by Nova Tube Ontario Inc. which was amalgamated into Novamerican
Steel Inc. on November 15, 2007.


 

















 


Credit Agreement


Schedule 3.12


 


SUBSIDIARIES AND JOINT VENTURES


 


	
  1.

  	
   

  	
  Symmetry
  Holdings Inc. owns effective after the Acquisition outstanding shares of
  capital stock in each of the following:

  



 


	
  Name

  	
   

  	
  Jurisdiction

  	
   

  	
  Parent Company

  	
   

  	
  Ownership

  	
   

  
	
  Novamerican Steel Holdings Inc. *

  	
   

  	
  Delaware

  	
   

  	
  Symmetry Holdings Inc.

  	
   

  	
  100

  	
  %

  
	
  Novamerican Steel Finco Inc. *

  	
   

  	
  Delaware

  	
   

  	
  Novamerican Steel Holdings Inc.

  	
   

  	
  100

  	
  %

  
	
  Integrated Steel Industries, Inc. *

  	
   

  	
  Delaware

  	
   

  	
  Novamerican Steel Finco Inc.

  	
   

  	
  100

  	
  %

  
	
  American Steel and Aluminum Corporation *

  	
   

  	
  Massachusetts

  	
   

  	
  Integrated Steel Industries, Inc.

  	
   

  	
  100

  	
  %

  
	
  Nova Tube and Steel, Inc. *

  	
   

  	
  Delaware

  	
   

  	
  Integrated Steel Industries, Inc.

  	
   

  	
  100

  	
  %

  
	
  Novamerican Tube Holdings, Inc. *

  	
   

  	
  Delaware

  	
   

  	
  Integrated Steel Industries, Inc.

  	
   

  	
  100

  	
  %

  
	
  Nova Tube Indiana, LLC *

  	
   

  	
  Delaware

  	
   

  	
  Novamerican Tube Holdings, Inc.

  	
   

  	
  100

  	
  %

  
	
  Novamerican Steel Inc. *

  	
   

  	
  Canada

  	
   

  	
  Novamerican Steel Finco Inc.

  	
   

  	
  100

  	
  %

  
	
  632422 N.B. Ltd. *

  	
   

  	
  New Brunswick

  	
   

  	
  Novamerican Steel Inc.

  	
   

  	
  100

  	
  %

  
	
  Hencorp LLC(15)

  	
   

  	
  Delaware

  	
   

  	
  Novamerican Steel Inc.

  	
   

  	
  100

  	
  %

  
	
  Argo Steel Ltd.(16)

  	
   

  	
  Québec

  	
   

  	
  Novamerican Steel Inc.

  	
   

  	
  100

  	
  %

  
	
  Nova Tube Inc.(17)

  	
   

  	
  Québec

  	
   

  	
  Novamerican Steel Inc.

  	
   

  	
  100

  	
  %

  
	
  Delta Tube Inc.

  	
   

  	
  Québec

  	
   

  	
  Novamerican Steel Inc.

  	
   

  	
  60

  	
  %

  



 






* Means such party is a Subsidiary Party


 


(15)
To be liquidated by December 2007.


 


(16)
Wound-up and liquidated as of November 15, 2007, but will remain in existence
until the completion of its legal dissolution, which takes a few weeks.


 


(17)
Wound-up and liquidated as of November 15, 2007, but will remain in existence
until the completion of its legal dissolution, which takes a few weeks.


 

















 


	
  Name

  	
   

  	
  Jurisdiction

  	
   

  	
  Parent Company

  	
   

  	
  Ownership

  	
   

  
	
  Tubes Delta, Société en Commandite

  	
   

  	
  Québec

  	
   

  	
  Novamerican Steel Inc.

  	
   

  	
  60

  	
  %

  
	
  3217930 Nova Scotia Company(18)

  	
   

  	
  Nova Scotia

  	
   

  	
  Novamerican Steel Inc.

  	
   

  	
  100

  	
  %

  
	
  3217928 Nova Scotia Company(19)

  	
   

  	
  Nova Scotia

  	
   

  	
  Novamerican Steel Inc.

  	
   

  	
  100

  	
  %

  
	
  3218088 Nova Scotia Company(20)

  	
   

  	
  Nova Scotia

  	
   

  	
  Novamerican Steel Inc.

  	
   

  	
  100

  	
  %

  
	
  Metco Steel Inc.(21)

  	
   

  	
  Québec

  	
   

  	
  Novamerican Steel Inc.

  	
   

  	
  100

  	
  %

  
	
  4421591 Canada Inc.(22)

  	
   

  	
  Canada

  	
   

  	
  Novamerican Steel Inc.

  	
   

  	
  100

  	
  %

  



 


	
  2.

  	
  Joint Ventures:

  



 


Tubes Delta, Société en Commandite is a Québec Limited
Partnership between Delta Tube Inc. (as General Partner), Novamerican Steel
Inc. (as 60% Limited Partner) and Mittal Canada Inc. (as 40% Limited Partner).


 


	
  3.

  	
  Corporate Structure (see
  following page)

  
	
   

  
	
   

  	
  Final Structure on the
  Effective Date giving effect to the [Reorganization Transaction](23)

  
			



 






(18)
Wound-up and liquidated as of November 15, 2007, but will remain in existence
until the completion of its legal dissolution, which takes a few weeks.


 


(19) Wound-up and liquidated as of November 15,
2007, but will remain in existence until the completion of its legal
dissolution, which takes a few weeks.


 


(20)
Wound-up and liquidated as of November 15, 2007, but will remain in existence
until the completion of its legal dissolution, which takes a few weeks.


 


(21)
Wound-up and liquidated as of November 15, 2007, but will remain in existence
until the completion of its legal dissolution, which takes a few weeks.


 


(22)
Will be wound-up, liquidated and legally dissolved on November 16, 2007.


 


(23) Does not include entities
in the process of being legally dissolved, or Hencorp LLC which will be
liquidated by December 2007.


 

















 





 

















 


Credit Agreement


Schedule 3.13


 


INSURANCE


 


	
  1.

  	
   

  	
  See Exhibit 3.13(a), (b) and
  (c) (Insurance policies).

  



 

















 


Credit Agreement


Schedule 6.01


 


EXISTING INDEBTEDNESS 


 


1.             Nova Tube and Steel, Inc. has entered into a
commitment to buy an aggregate of Euro 4,300,000 of equipment from Mair
Research S.P.A. (30% of such purchase price having already been paid).


 

















 


Credit Agreement


Schedule 6.02


 


EXISTING LIENS


 


1.             Section 34 of the Articles of Association of
3217928 Nova Scotia Company (“3217928”) grants 3217928 a first and paramount
lien upon all shares of 3217928 (other than fully paid-up shares) registered in
the name of a shareholder (whether solely or jointly with others) including all
dividends declared in respect of such shares. Unless otherwise agreed, the
registration of a transfer of shares shall operate as a waiver of any lien of
3217928 on such shares.


 


2.             Section 34 of the Articles of Association of
3217930 Nova Scotia Company (“3217930”) grants 3217930 a first and paramount
lien upon all shares of 3217930 (other than fully paid-up shares) registered in
the name of a shareholder (whether solely or jointly with others) including all
dividends declared in respect of such shares. Unless otherwise agreed, the
registration of a transfer of shares shall operate as a waiver of any lien of
3217930 on such shares.


 


3.             Section 34 of the Articles of Association of
3218088 Nova Scotia Company (“3218088”) grants 3218088 a first and paramount
lien upon all shares of 3218088 (other than fully paid-up shares) registered in
the name of a shareholder (whether solely or jointly with others) including all
dividends declared in respect of such shares. Unless otherwise agreed, the
registration of a transfer of shares shall operate as a waiver of any lien of
the 3218088 on such shares.


 


4.             Property owned by American Steel and Aluminum
Corporation at 4601 Crown Road, Clay, NY 12205: 
This property lies within an area claimed by the Onondaga Indian Nation
(note: the title company is providing affirmative insurance against that
matter).


 


5.             Property owned by American Steel and Aluminum
Corporation at 11111 Leadbetter Road, Hanover Industrial Park, Ashland, VA
23005:  The following is an exception to
title: Deed of Trust from Steel Sales Realty Company to Philip J. Bagley, III
and M. Kevin McCusty, Trustees for Alan V. Lowenstein, not individually but in
his capacity as Trustee of the Lowenstein Family Trust created under Trust
Agreement dated as of June 17, 1996, and recorded August 28, 1996 in Deed Book
1207, Page 431, of the land records of Hanover County, Virginia (note: the
title company is providing affirmative insurance against that matter). 


 


6.             Citibank, N.A. lien in Massachusetts over
Accounts Receivable from The Stanley Works Co. purchased by Citibank, N.A. per
the terms of the Supplier Agreement between American Steel and Aluminum
Corporation and Citibank, N.A., file# 200430251980.


 


7.             Citicorp Vendor Finance, Inc. lien in
Massachusetts over Lighting Retrofit National Grid USA Service as well as
accessories, attachments, replacements, substitutions and all proceeds thereof,
file# 200323335320.


 


8.             Advantage Financial Services, LLC lien in
Massachusetts over (1) DOCSTAR Workgroup Pro Imaging System (located at 1 West
Albany Drive, Albany, NY) and (1) DOCSTAR Workgroup Pro Imaging System (located
at 4601 Crown Road, Liverpool, NY) 242588 & 242589, file# 200323519270.


 

















 


9.             GREATAMERICA Leasing Corporation lien in
Massachusetts over various Copystar copiers with accessories and all products,
proceeds or attachments, file# 200325627810.


 


10.           IBM Credit LLC lien in Massachusetts over IBM equipment and related
software, file# 200428222750.


 


11.           IBM Credit LLC lien in Massachusetts over IBM equipment and related
software, file# 200428964100.


 


12.           IBM Credit LLC lien in Massachusetts over IBM equipment and related
software, file# 200431780380.


 


13.           Toyota Motor Credit Corp. lien in Massachusetts over (1) new Toyota
Cushion Tire Forklift, file# 200539446700.


 


14.           IBM Credit LLC lien in Massachusetts over IBM equipment and related
software, file# 200543670810.


 


15.           Toyota Motor Credit Corporation lien in Massachusetts over (1) new
Toyota Cushion Tire Forklift, file# 200646134930.


 


16.           IBM Credit LLC lien in Massachusetts over IBM equipment and related
software, file# 200647945940.


 


17.           IBM Credit LLC lien in Massachusetts over IBM equipment and related
software, file# 200755738720.


 


18.           IBM Credit LLC lien in Massachusetts over IBM equipment and related
software, file# 200756625380.


 


19.           Greater Bay Bank N.A. lien in Massachusetts over 1-World Lift Forklift,
file# 200757055690


 


20.           Canadian security registrations as described on the attached Exhibit:


 

















 


I. Security registrations in the 


Register of personal and movable
real rights


 


NOVAMERICAN STEEL INC. (AND OTHER VERSION)


 


	
   

  	
   

  	
  Registration

  number

  Registration Date

  Expiration Date

  	
   

  	
  Nature

  Amount

  	
   

  	
  Parties

  	
   

  	
  Description of Property (Summary)

  	
   

  	
  Comments

  
	
  1.

  	
   

  	
  05-0383364-0020 July 4, 2005 June 29, 2008

  	
   

  	
  Rights resulting from a lease

  	
   

  	
  Lessor:

  CBSC Capital Inc.

  	
   

  	
  Imagerunner
  IR4570

  With all attachments, accessories and proceeds thereof including insurance
  proceeds and indemnities.

  	
   

  	
  Deed
  under private writing dated June 29, 2005.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Lessee:

  Novamerican Steel Inc.

  	
   

  	
   

  	
   

  	
  Lease
  term is 36 months with 12 payments of $1,282.83 plus applicable taxes.

  



 

















 


NOVA STEEL LTD. (OTHER VERSION AND QUEBEC OTHER REGISTERED NAMES)


 


	
  2.

  	
   

  	
  03-0382909-0001 July 24, 2003 December 31, 2008

  	
   

  	
  Rights resulting from a lease

  	
   

  	
  Lessor:

  Location Empress Inc. 

  

  Lessee:

  Acier Nova Ltée

  	
   

  	
  Commercial vehicles: 1XKDDB0X82J965835 2002
  T800-#22565 

  1XKDDB0X22J965832 2002 T800-#22566 

  1XKDDB0X42J965833 2002 T800-#22567 

  1XKDDB0X62J965834 2002 T800-#22568 

  1XKDDB0X72J966071 2002 T800-#22569 

  1XKDDB0X94J972960 2004 T800-#24564 

  1XKDDB0X24J972959 2004
  T800-#24563

  	
   

  	
  Deed
  under private writing dated April 30, 2003.

  
	
  3.

  	
   

  	
  05-0411166-0015 July 15, 2005 July 14, 2011

  	
   

  	
  Rights resulting from a lease

  	
   

  	
  Lessor:

  CBSC Capital Inc. 

  

  Lessee: Acier Nova Ltée

  	
   

  	
  Copier
  IR5570 and IR2870, Fax LC9000 With all attachments, accessories and proceeds
  thereof including insurance proceeds and indemnities.

  	
   

  	
  Deed
  under private writing dated July 14, 2005.

   

  Lease
  term is 60 months with 20 payments of $2,213.70 plus applicable taxes.

  
	
  4.

  	
   

  	
  07-0481912-0020 August 23, 2007

  	
   

  	
  Modification of a published right

  	
   

  	
  Creditor:

  La Compagnie GMAC

   Location; GMAC Leaseco Corporation

  

  Debtor:

  Nova
  Steel Ltée

  	
   

  	
   

  	
   

  	
  Modification
  of the following registration:

   

  Rights
  resulting from a lease and assignment of rights 06-0403380-0004 on July 13,
  2006 (expiry date: July 7, 2009): 

  Lessor:

  Plaza Chevrolet Hummer Cadillac Inc.

   

  Lessee:

  Stephen
  Shaw

   

  Assignee:
  

  GMAC
  Leaseco Corporation 

   

  Property:
  

  Motor
  vehicle:

  1GYEE63A960201087
  2006 Cadillac SRX

   

  Modification:

  To
  add Nova Steel Ltee and delete Stephen Shaw.

  



 

















 


CRESSWELL INDUSTRIES INC. (OTHER VERSION AND PREDECESSORS)


 


	
   

  	
   

  	
  Registration

  number

  Registration Date
  Expiration Date

  	
   

  	
  Nature

  Amount

  	
   

  	
  Parties

  	
   

  	
  Description of Property (Summary)

  	
   

  	
  Comments

  
	
  5.

  	
   

  	
  07-0393636-0086 July 10, 2007 June 29, 2011

  	
   

  	
  Rights resulting from a lease and assignment of rights

  	
   

  	
  Lessor:

  Charland Chevrolet Cadillac Ltee 

  

  Lessee:

  Industries Cresswell Inc.

  

  Assignee:

  GMAC Leaseco Corporation

  	
   

  	
  Motor
  vehicle:

  3GNFK12307G296412 2007 Chevrolet Avalanche

  	
   

  	
  Deed
  under private writing dated June 29, 2007.

  



 

















 


TUBES DELTA, SOCIÉTÉ EN COMMANDITE (AND QUEBEC
OTHER REGISTERED NAME)


 


	
   

  	
   

  	
  Registration number Registration Date Expiration Date

  	
   

  	
  Nature Amount

  	
   

  	
  Parties

  	
   

  	
  Description of Property (Summary)

  	
   

  	
  Comments

  
	
  6.

  	
   

  	
  04-0588912-0019 October 8, 2004 October 8, 2009

  	
   

  	
  Rights resulting from a lease

  	
   

  	
  Lessor:

  CBSC Capital Inc.

   

  Lessee:

  Tubes Delta, société en commandite

  	
   

  	
  IRC
  3100, fnisseur, Fax, Scanner & Accessories With all attachments,
  accessories and proceeds thereof including insurance proceeds and
  indemnities.

  	
   

  	
  Deed
  under private writing dated October 8, 2004.

   

  Lease
  term is 60 months with 20 payments of $1,071.00 plus applicable taxes.

  



 

















 


Ontario security registrations
pursuant to the Personal Property and Security Act and
the Bank Act


 


THE LOAN PARTIES HEREBY CONFIRM THAT, WITH RESPECT TO THE CANADIAN
FINANCING STATEMENTS SET FORTH IN 1-14 BELOW, THE LIENS THEREUNDER ARE LIMITED
TO PURCHASE MONEY SECURITY INTERESTS IN THE SPECIFIED EQUIPMENT


 


Nova Tube Ontario Inc.

Tube Nova Ontario Inc.


 


	
  1.

  	
   

  	
  Financing Statement/Financing
  Change Statement(s)

  
	
   

  	
   

  	
  Reference File No. 622257975

  



 


	
  Registration No.

  	
   

  	
  20060125 1702 1462 7678

  
	
  Registration Period

  	
   

  	
  6 year(s)

  
	
  Debtor

  	
   

  	
  Nova Tube Ontario Inc.

  2730 Meadow Pine Blvd

  Mississauga, Ontario L5N7K4

  
	
  Secured Party

  	
   

  	
  De Lage
  Landen Financial Services Canada Inc.

  #100, 1235 North Service Rd. West

  Oakville, Ontario L6M2W2

  
	
  Collateral Classification

  	
   

  	
  Consumer goods

  	
   

  	
  Motor vehicle included   Yes
  x   No o

  
	
  (If “x” is absent from certain field(s) at the right,
  this indicates that the corresponding box(es) of the PPSA registration was/were
  not completed.) 

  	
   

  	
  Inventory

  	
   

  	
  Amount

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Equipment

  	
   

  	
  Date of maturity none fixed

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Accounts

  	
   

  	
  Motor vehicle description

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Other

  	
  x       2
  2005 TCM FCG30-3HL

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  General Collateral
  Description

  	
   

  	
  All goods supplied by the
  secured party pursuant to a lease between the debtor and the secured party,
  together with all parts and accessories thereto and accessions thereto and
  all replacements or substitutions for such goods and proceeds thereof
  (proceeds as defined in the Personal Property Security
  Act (ON)) and any insurance proceeds resulting there from.

  



 


	
  2.

  	
  Financing Statement/Financing Change Statement(s)

  	
   

  	
   

  	
   

  
	
   

  	
  Reference File No. 621871362

  	
   

  



 

















 


	
  Registration No.

  	
   

  	
  20060109 1815 7029 8674

  
	
  Registration Period

  	
   

  	
  5 year(s)

  
	
  Debtor

  	
   

  	
  Nova Tube Ontario Inc.

  2730 Meadowpine Blvd.

  Mississauga, Ontario L5N 7K4

  
	
  Secured Party

  	
   

  	
  De Lage Landen Financial
  Services Canada Inc.

  100-1235 North Service Rd W

  Oakville, Ontario L6M 2W2

  
	
  Collateral Classification 

  	
   

  	
  Consumer goods

  	
   

  	
  Motor vehicle included   Yes
  x   No o

  
	
  (If “x” is absent from
  certain field(s) at the right, this indicates that the corresponding box(es)
  of the PPSA registration was/were not completed.)

  	
   

  	
  Inventory

  	
   

  	
  Amount

  
	
   

  	
  Equipment

  	
  x

  	
  Date of maturity

  
	
   

  	
  Accounts

  	
   

  	
  Motor vehicle description

  	
   

  
	
   

  	
   

  	
  Other

  	
  x

  	
  2005 TCM FCG30-3HL

  
	
  General Collateral
  Description

  	
   

  	
  All goods supplied by the
  secured party pursuant to a lease between the debtor and the secured party,
  together with all parts and accessories thereto and accession thereto and all
  replacements or substitutions for such goods and proceeds thereof (proceeds
  as defined in the Personal Property
  Security Act (ON)) and any insurance proceeds resulting there
  from.

  



 


Nova Steel
Ltd.

Acier Nova Ltee


 


	
  3.

  	
   

  	
  Financing Statement/Financing
  Change Statement(s)

  
	
   

  	
   

  	
  Reference File No. 639833391

  



 


	
  Registration No.

  	
   

  	
  20071011 1947 1531 8767

  
	
  Registration Period

  	
   

  	
  4 year(s)

  
	
  Debtor

  	
   

  	
  Nova Steel Ltd.

  830 South Service Road

  Stoney Creek, Ontario L8E 5M7

  
	
  Secured Party

  	
   

  	
  De Lage Landen Financial
  Services Canada Inc.

  100 – 1235 North Service Road W

  Oakville, Ontario L6M 2W2

  
	
  Collateral Classification 

  (If “x” is absent from
  certain field(s) at the right, this indicates that the corresponding box(es)
  of the PPSA registration was/were not completed.)

  	
   

  	
  Consumer goods

  	
   

  	
  Motor vehicle included   Yes
  x   No o

  
	
   

  	
  Inventory

  	
   

  	
  Amount

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Equipment

  	
  x

  	
  Date of maturity

  	
   

  	
   

  	
   

  
	
   

  	
  Accounts

  	
   

  	
  Motor vehicle description

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Other

  	
  x

  	
  2004 Cat GP50K-LP

  



 


	
  4.

  	
   

  	
  Financing Statement/Financing
  Change Statement(s)

  
	
   

  	
   

  	
  Reference File No. 634270149

  



 


	
   

  
	
  Registration No.

  	
  20070412 1120 6005 2869

  



 

















 


	
  Registration Period

  	
   

  	
  5 year(s)

  
	
  Debtor

  	
   

  	
  Nova Steel Ltd. 

  330 Pinebush Road

  Cambridge, Ontario N1T 1Z6

  
	
  Secured Party

  	
   

  	
  National Leasing Group Inc.
  L#2369763

  1558 Willson Pl

  Winnipeg, Manitoba R3T 0Y4

  
	
  Collateral Classification 

  (If “x” is absent from
  certain field(s) at the right, this indicates that the corresponding box(es)
  of the PPSA registration was/were not completed.)

  	
   

  	
  Consumer goods

  	
   

  	
  Motor vehicle included   Yes
  o   No o

  
	
   

  	
  Inventory

  	
   

  	
  Amount

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Equipment

  	
  x

  	
  Date of maturity

  	
   

  	
   

  	
   

  
	
   

  	
  Accounts

  	
   

  	
  Motor vehicle description

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Other

  	
   

  	
   

  



 


	
  5.

  	
   

  	
  Financing Statement/Financing
  Change Statement(s)

  
	
   

  	
   

  	
  Reference File No. 619382241

  



 


	
  Registration No.

  	
   

  	
  20051003 1458 1530 2177

  
	
  Registration Period

  	
   

  	
  7 year(s)

  
	
  Debtor (1)

  	
   

  	
  Paccar Leasing Company Ltd.

  6465 Van Deemter Court

  Mississauga, Ontario  L5T 1S1

  
	
  Debtor (2)

  	
   

  	
  Nova Steel Ltd.

  330 Pinebush Road

  Cambridge, Ontario  N3H 5C6

  
	
  Secured Party

  	
   

  	
  Paccar Leasing a Division of
  Paccar of Canada Ltd.

  P.O. Box 1518

  Bellevue, Washington  98009

  
	
  Collateral Classification

  (If “x” is absent from
  certain field(s) at the right, this indicates that the corresponding box(es)
  of the PPSA registration was/were not completed.)

  	
   

  	
   

  	
   

  	
  Motor vehicle included   Yes
  x   No o

  
	
   

  	
  Inventory

  	
   

  	
  Amount

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Equipment

  	
  x

  	
  Date of maturity

  	
   

  	
   

  	
   

  
	
   

  	
  Accounts

  	
   

  	
  Motor vehicle description

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Other

  	
  x

  	
  20006 Kenworth W900 Tractor

  



 

















 


	
  6.

  	
   

  	
  Financing Statement/Financing
  Change Statement(s)

  
	
   

  	
   

  	
  Reference File No. 619382259

  



 


	
  Registration No.

  	
   

  	
  20051003 1458 1530 2178

  
	
  Registration Period

  	
   

  	
  7 year(s)

  
	
  Debtor (1)

  	
   

  	
  Paccar Leasing Company Ltd.

  6465 Van Deemter Court

  Mississauga, Ontario  L5T 1S1

  
	
  Debtor (2)

  	
   

  	
  Nova Steel Ltd.

  330 Pinebush Road

  Cambridge, Ontario  N3H 5C6

  
	
  Secured Party       

  	
   

  	
  Paccar Leasing a Division of
  Paccar of Canada Ltd.

  P.O. Box 1518

  Bellevue, Washington  98009 

  
	
  Collateral Classification

  (If “x” is absent from
  certain field(s) at the right, this indicates that the corresponding box(es)
  of the PPSA registration was/were not completed.)

  	
   

  	
  Consumer goods

  	
   

  	
  Motor vehicle included   Yes
  x   No o

  
	
   

  	
  Inventory

  	
   

  	
  Amount 

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Equipment

  	
  x

  	
  Date of maturity 

  	
   

  	
   

  	
   

  
	
   

  	
  Accounts

  	
  x

  	
  Motor vehicle description

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Other

  	
   

  	
  2006 Kennworth W900 Tractor

  



 

















 


	
  7.

  	
   

  	
  Financing Statement/Financing
  Change Statement(s)

  
	
   

  	
   

  	
  Reference File No. 619382268

  



 


	
  Registration No.

  	
   

  	
  20051003 1458 1530 2179

  
	
  Registration Period

  	
   

  	
  7 year(s)

  
	
  Debtor (1)

  	
   

  	
  Paccar Leasing Company Ltd.

  6465 Van Deemter Court

  Mississauga, Ontario  L5T 1S1

  
	
  Debtor (2)

  	
   

  	
  Nova Steel Ltd.

  330 Pinebush Road

  Cambridge, Ontario  N3H 5C6

  
	
  Secured Party       

  	
   

  	
  Paccar Leasing a Division of
  Paccar of Canada Ltd.

  P.O. Box 1518

  Bellevue, Washington  98009 

  
	
  Collateral Classification

  (If “x” is absent from
  certain field(s) at the right, this indicates that the corresponding box(es)
  of the PPSA registration was/were not completed.)

  	
   

  	
  Consumer goods

  	
   

  	
  Motor vehicle included   Yes
  x   No o

  
	
   

  	
  Inventory

  	
   

  	
  Amount 

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Equipment

  	
  x

  	
  Date of maturity 

  	
   

  	
   

  	
   

  
	
   

  	
  Accounts

  	
   

  	
  Motor vehicle description

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Other

  	
  x

  	
  2006 Kenworth W900 Tractor

  



 

















 


	
  8.

  	
   

  	
  Financing Statement/Financing
  Change Statement(s)

  
	
   

  	
   

  	
  Reference File No. 619382277

  



 


	
  Registration No.

  	
   

  	
  20051003 1458 1530 2180

  
	
  Registration Period

  	
   

  	
  7 year(s)

  
	
  Debtor (1)

  	
   

  	
  Paccar Leasing Company Ltd.

  6465 Van Deemter Court

  Mississauga, Ontario  L5T 1S1

  
	
  Debtor (2)

  	
   

  	
  Nova Steel Ltd.

  330 Pinebush Road

  Cambridge, Ontario  N3H 5C6

  
	
  Secured Party       

  	
   

  	
  Paccar Leasing a Division of
  Paccar of Canada Ltd.

  P.O. Box 1518

  Bellevue, Washington  98009  

  
	
  Collateral Classification

  (If “x” is absent from
  certain field(s) at the right, this indicates that the corresponding box(es)
  of the PPSA registration was/were not completed.)

  	
   

  	
  Consumer goods

  	
   

  	
  Motor vehicle included   Yes
  x   No o

  
	
   

  	
  Inventory

  	
   

  	
  Amount 

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Equipment

  	
  x

  	
  Date of maturity 

  	
   

  	
   

  	
   

  
	
   

  	
  Accounts

  	
   

  	
  Motor vehicle description

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Other

  	
  x

  	
  2006 Kenworth W900 Tractor

  



 


	
  9.

  	
   

  	
  Financing Statement/Financing
  Change Statement(s)

  
	
   

  	
   

  	
  Reference File No. 619382286

  



 


	
  Registration No.

  	
   

  	
  20051003 1458 1530 2181

  
	
  Registration Period

  	
   

  	
  7 year(s)

  
	
  Debtor (1)

  	
   

  	
  Paccar Leasing Company Ltd.

  6465 Van Deemter Court

  Mississauga, Ontario  L5T 1S1

  
	
  Debtor (2)

  	
   

  	
  Nova Steel Ltd.

  330 Pinebush Road

  Cambridge, Ontario  N3H 5C6

  
	
  Secured Party       

  	
   

  	
  Paccar Leasing a Division of
  Paccar of Canada Ltd.

  P.O. Box 1518

  Belleveue, Washington  98009  

  
	
  Collateral Classification

  (If “x” is absent from
  certain field(s) at the right, this indicates that the corresponding box(es)
  of the PPSA registration was/were not completed.)

  	
   

  	
  Consumer goods

  	
   

  	
  Motor vehicle included   Yes
  x   No o

  
	
   

  	
  Inventory

  	
   

  	
  Amount 

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Equipment

  	
  x

  	
  Date of maturity 

  	
   

  	
   

  	
   

  
	
   

  	
  Accounts

  	
   

  	
  Motor vehicle description

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Other

  	
  x

  	
  2006 Kenworth  W900 Tractor

  



 

















 


	
  10.

  	
   

  	
  Financing Statement/Financing
  Change Statement(s)

  
	
   

  	
   

  	
  Reference File No. 614813598

  



 


	
  Registration No.

  	
   

  	
  20050504 1516 7029 3776

  
	
  Registration Period

  	
   

  	
  3 year(s)

  
	
  Debtor

  	
   

  	
  Nova Steel Ltd.

  330 Pinebush

  Cambridge, Ontario  N3C 2V3

  
	
  Secured Party       

  	
   

  	
  Citicorp Vendor Finance, Ltd.

  123 Front St W, 16th Floor

  Toronto, Ontario  M5J 2M2

  
	
  Collateral Classification

  (If “x” is absent from
  certain field(s) at the right, this indicates that the corresponding box(es)
  of the PPSA registration was/were not completed.)

  	
   

  	
  Consumer goods

  	
   

  	
  Motor vehicle included   Yes
  o   No o

  
	
   

  	
  Inventory

  	
   

  	
  Amount 

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Equipment

  	
  x

  	
  Date of maturity 

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Accounts

  	
   

  	
  Motor vehicle description

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Other

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  General Collateral
  Description

  	
   

  	
  1 – Imagerunner 4570 with all
  attachments, accessories and proceeds thereof

  



 


	
  11.

  	
   

  	
  Financing Statement/Financing
  Change Statement(s)

  
	
   

  	
   

  	
  Reference File No. 868711455

  
	
   

  	
   

  	
   

  



 


	
  Registration No.

  	
   

  	
  20010102 1444 1530 7600

  
	
  Registration Period

  	
   

  	
  7 year(s)

  
	
  Debtor (1)

  	
   

  	
  Merit Truck & Trailer
  Leasing Inc.

  6465 Van Deemter Court

  Mississauga, Ontario  L5T 1S1

  
	
  Debtor (2)

  	
   

  	
  Nova Steel Ltd.

  330 Pinebush Road

  Cambridge, Ontario  N3H 5C6

  
	
  Secured Party

  	
   

  	
  Paccar Leasing a Division of
  Paccar of Canada Ltd.

  P.O. Box 1518

  Bellevue, Washington  98009 

  
	
  Collateral Classification

  (If “x” is absent from
  certain field(s) at the right, this indicates that the corresponding box(es)
  of the PPSA registration was/were not completed.)

  	
   

  	
  Consumer goods

  	
   

  	
  Motor vehicle included   Yes
  x   No o

  
	
   

  	
  Inventory

  	
  x

  	
  Amount 

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Equipment

  	
  x

  	
  Date of maturity 

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Accounts

  	
   

  	
  Motor vehicle description

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Other

  	
   

  	
  2001 Kenworth W900

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


	
  12.

  	
   

  	
  Financing Statement/Financing
  Change Statement(s)

  
	
   

  	
   

  	
  Reference File No. 863371134

  	
  Caution Filing

  
	
   

  	
   

  	
   

  



 


	
  Registration No.

  	
   

  	
  20000630 1441 1530 0289

  
	
  Registration Period

  	
   

  	
  7 year(s)

  



 

















 


	
  Debtor

  	
   

  	
  Nova Steel Ltd.

  P.O. Box 3840

  Cambridge, Ontario  N3H 5C6

  
	
  Secured Party       

  	
   

  	
  Rentway Ltd.

  7405 East Danbro Crescent

  Mississauga, Ontario  L5N 6P8

  
	
  Collateral Classification

  (If “x” is absent from
  certain field(s) at the right, this indicates that the corresponding box(es)
  of the PPSA registration was/were not completed.)

  	
   

  	
  Consumer goods

  	
   

  	
  Motor vehicle included   Yes
  x   No o

  
	
   

  	
  Inventory

  	
   

  	
  Amount $102,457

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Equipment

  	
  x

  	
  Date of maturity 

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Accounts

  	
   

  	
  Motor vehicle description

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Other

  	
   

  	
  2001 Freightliner FLD120064ST

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Amendment (A)

  	
   

  	
   

  
	
   

  	
  Registration No.

  	
   

  	
  20011128 1815 1531 3977

  
	
   

  	
   

  	
   

  	
  Added vehicles to original registration

  
	
   

  	
   

  	
   

  	
  Motor Vehicle

  
	
   

  	
   

  	
   

  	
  2000 International 9400

  2 2002 Freightliner D12064ST

  
	
   

  	
   

  	
   

  	
  And

  
	
   

  	
   

  	
   

  	
  Secured prty transfer due to amalgamation

  
	
   

  	
   

  	
   

  	
  Penske Truck Leasing Canada Inc.

  Rt 10 , Green Hills

  P.O. Box 405

  Reading, Pennsylvania  19603  

  



 


	
   

  	
  Discharge (F)

  	
   

  	
  Partial discharge

  
	
   

  	
  Registration No.

  	
   

  	
  20051104 1452 1530 5634

  
	
   

  	
   

  	
   

  	
  Motor Vehicle

  
	
   

  	
   

  	
   

  	
  2000 International 9400

  



 


	
   

  	
  Discharge (F)

  	
   

  	
  Partial discharge

  
	
   

  	
  Registration No.

  	
   

  	
  20060914 1453 1530 7120

  
	
   

  	
   

  	
   

  	
  Motor Vehicle

  
	
   

  	
   

  	
   

  	
  2001 Freightliner FLD120064ST

  



 


	
   

  	
  Renewal (B)

  	
   

  	
  For 3 year(s)

  
	
   

  	
  Registration No.

  	
   

  	
  20070508 1405 1462 0068

  



 

















 


Nova Steel Processing
Centre Ltd.

Centre de Traitement Acier Nova Ltee


 


	
  13.

  	
   

  	
  Financing Statement/Financing
  Change Statement(s)

  
	
   

  	
   

  	
  Reference File No. 614142693

  



 


	
  Registration No.

  	
   

  	
  20050412 1635 7029 3248

  
	
  Registration Period

  	
   

  	
  6 year(s)

  
	
  Debtor

  	
   

  	
  Nova Steel Processing Centre
  Ltd.

  830 South Service Rd

  Stoney Creek, Ontario L8E 5M7

  
	
  Secured Party       

  	
   

  	
  Ricoh Canada Inc.

  #100, 1235 North Service Rd. West

  Oakville, Ontario L6M 2W2

  
	
  Collateral Classification

  (If “x” is absent from
  certain field(s) at the right, this indicates that the corresponding box(es)
  of the PPSA registration was/were not completed.)

  	
   

  	
  Consumer goods

  	
   

  	
  Motor vehicle included   Yes
  o   No o

  
	
   

  	
  Inventory

  	
   

  	
  Amount 

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Equipment

  	
  x

  	
  Date of maturity 

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Accounts

  	
   

  	
  Motor vehicle description

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Other

  	
  x

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  General Collateral
  Description

  	
   

  	
  All goods supplied by the
  secured party pursuant to a lease between the debtor and the secured party,
  together with all parts and accessories thereto and accession thereto and all
  replacements or substitutions for such goods and proceeds thereof (proceeds
  as defined in the Personal Property
  Security Act (ON)) and any insurance proceeds resulting there
  from.

  



 


	
  14.

  	
   

  	
  Financing Statement/Financing
  Change Statement(s)

  
	
   

  	
   

  	
  Reference File No. 893478411

  



 


	
  Registration No.

  	
   

  	
  20030416 1620 7029 0539

  
	
  Registration Period

  	
   

  	
  5 year(s)

  
	
  Debtor

  	
   

  	
  Nova Steel Processing Centre
  Ltd

  830 South Service Rd.

  Stoney Creek, Ontario L8E 5M7

  
	
  Secured Party       

  	
   

  	
  Ricoh Canada Inc.

  100-1235 North Service Rd W

  Oakville, Ontario L6M 2W2

  
	
  Collateral Classification

  (If “x” is absent from
  certain field(s) at the right, this indicates that the corresponding box(es)
  of the PPSA registration was/were not completed.)

  	
   

  	
  Consumer goods

  	
   

  	
  Motor vehicle included   Yes
  o   No o

  
	
   

  	
  Inventory

  	
   

  	
  Amount 

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Equipment

  	
  x

  	
  Date of maturity 

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Accounts

  	
   

  	
  Motor vehicle description

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Other

  	
  x

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 

















 


Credit
Agreement


Schedule
6.04


 


EXISTING
INVESTMENTS


 


1.             As
of 10/27/2007 Nova Tube Indiana, LLC has a general advance receivable from
Novamerican Steel, Inc. for $252,500.00 – no specific terms of repayment, non
interest bearing.


 


2.             As
of 10/27/2007 Novamerican Tube Holdings, Inc. has a general advance receivable
from Novamerican Steel, Inc. for $337,590.00 – no specific terms of repayment,
non interest bearing.


 


3.             As
of 11/9/2007 American Steel and Aluminum Corporation has a general advance
receivable for normal operations from Nova Steel, Inc. for $9,337.73 – no
specific terms of repayment, non interest bearing.


 


4.             Pursuant
to the Effective Date Asset Sale, Novamerican Tube Holdings, Inc. will sell the
aircraft for approximately $11,000,000.  This cash will be used by
Novamerican Steel Inc. to repay the $91,000,000, resulting in Novamerican Steel
Inc. owing $11,000,000 to Novamerican Tube Holdings, Inc. as a non-interest
bearing intercompany loan.


 

















 


Credit
Agreement


Schedule
6.10


 


EXISTING
RESTRICTIONS


 


1.             Section
14 of the Articles of Association of 3217928 Nova Scotia Company prohibits the
Company from transferring security issued by the company, other than a
non-convertible debt security, without either the consent of the directors of
the Company or the consent of the shareholders of the Company. Consent of the
directors of the company must be expressed by a resolution of the directors or
by a document in writing signed by a majority of the directors. Consent of the
shareholders of the Company must be expressed by a resolution of the
shareholders or by a document in writing signed by a majority of the
shareholders.


 


2.             Section
14 of the Articles of Association of 3217930 Nova Scotia Company prohibits the
Company from transferring security issued by the company, other than a
non-convertible debt security, without either the consent of the directors of
the Company or the consent of the shareholders of the Company. Consent of the
directors of the company must be expressed by a resolution of the directors or
by a document in writing signed by a majority of the directors. Consent of the shareholders
of the Company must be expressed by a resolution of the shareholders or by a
document in writing signed by a majority of the shareholders.


 


3.             Section
14 of the Articles of Association of 3218088 Nova Scotia Company prohibits the
Company from transferring security issued by the company, other than a
non-convertible debt security, without either the consent of the directors of
the Company or the consent of the shareholders of the Company. Consent of the
directors of the company must be expressed by a resolution of the directors or
by a document in writing signed by a majority of the directors. Consent of the
shareholders of the Company must be expressed by a resolution of the
shareholders or by a document in writing signed by a majority of the shareholders.


 


4.             The
Tubes Delta, Société en Commandite Partnership Agreement prohibits a security
interest from being taken in the General Partner or in the Limited Partnership.