exv10w1






EXHIBIT 10.1




FIRST AMENDMENT TO

SECOND AMENDED AND RESTATED CREDIT AGREEMENT




     THIS FIRST AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT (this “First
Amendment”), dated as of February 26, 2010, among COMMERCIAL METALS COMPANY, a Delaware
corporation (the “Borrower”), the lenders party to the Credit Agreement defined below (the
“Lenders”), and BANK OF AMERICA, N.A., as Administrative Agent.



BACKGROUND




     A. The Borrower, the Lenders and the Administrative Agent are parties to that certain Second
Amended and Restated Credit Agreement, dated as of November 24, 2009 (the “Credit
Agreement”; the terms defined in the Credit Agreement and not otherwise defined herein shall be
used herein as defined in the Credit Agreement).



     B. The Borrower, the Lenders and the Administrative Agent desire to make certain amendments to
the Credit Agreement, subject to the terms and conditions contained herein.



     NOW, THEREFORE, in consideration of the covenants, conditions and agreements hereafter set
forth, and for other good and valuable consideration, the receipt and adequacy of which are all
hereby acknowledged, the parties hereto covenant and agree as follows:



     1. AMENDMENTS.



     (a) Section 7.08 of the Credit Agreement is hereby amended and restated in its
entirety to read as follows:




     7.08 Interest Coverage Ratio. The Borrower shall not permit the Interest Coverage
Ratio to be less than 2.50 to 1 on May 31, 2010 or at the end of any fiscal quarter
thereafter; provided, however, notwithstanding anything in the definition of
Interest Coverage Ratio to the contrary, and for purposes of this Section 7.08 only
(thereby expressly excluding Section 7.10, in addition to any other Sections of this
Agreement), the Interest Coverage Ratio for (a) the fiscal quarter ending May 31, 2010,
shall be calculated using Consolidated EBITDA and Consolidated Interest Expense for the
fiscal quarter ending May 31, 2010, (b) the fiscal quarter ending August 31, 2010, shall be
calculated using Consolidated EBITDA and Consolidated Interest Expense for the two
consecutive fiscal quarters ending August 31, 2010, and (c) the fiscal quarter ending
November 30, 2010, shall be calculated using Consolidated EBITDA and Consolidated Interest
Expense for the three consecutive fiscal quarters ending November 30, 2010.



 









 





     (b) Exhibit E to the Credit Agreement, the Compliance Certificate, is hereby amended
and restated in its entirety to be in the form of Exhibit E attached to this First
Amendment.



     2. REPRESENTATIONS AND WARRANTIES TRUE; NO EVENT OF DEFAULT. By its execution and
delivery hereof, the Borrower represents and warrants that, as of the date hereof and after giving
effect to the amendments set forth in the foregoing Section 1:



     (a) the representations and warranties contained in the Credit Agreement and the other Loan
Documents are true and correct in all material respects (except that any representation or warranty
that is qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all
respects) on and as of the date hereof as made on and as of such date, except to the extent that
such representations and warranties specifically refer to an earlier date, in which case they are
true and correct in all material respects (except that any representation or warranty that is
qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all
respects) as of such earlier date;



     (b) no event has occurred and is continuing which constitutes a Default;



     (c) the Borrower has full power and authority to execute and deliver this First Amendment, and
this First Amendment and the Credit Agreement, as amended hereby, constitute the legal, valid and
binding obligations of the Borrower, enforceable against the Borrower in accordance with their
respective terms, except as enforceability may be limited by applicable Debtor Relief Laws;



     (d) neither the execution, delivery and performance of this First Amendment or the Credit
Agreement, as amended hereby, nor the consummation of any transaction contemplated herein or
therein, will conflict with any Law or Organization Document of the Borrower, or any indenture,
agreement or other instrument to which the Borrower or any of its properties are subject; and



     (e) no authorization, approval, consent, or other action by, notice to, or filing with, any
Governmental Authority or other Person (not already obtained), is required for the execution,
delivery or performance by the Borrower of this First Amendment.



     3. CONDITIONS OF EFFECTIVENESS. This First Amendment shall be effective as of
February 26, 2010 subject to the following:



 









 





     (a) the representations and warranties set forth in Section 2 of this First Amendment shall be
true and correct;



     (b) the Administrative Agent shall have received counterparts of this First Amendment executed
by the Required Lenders;



     (c) the Administrative Agent shall have received counterparts of this First Amendment executed
by the Borrower; and



     (d) the Administrative Agent shall have received all fees, in immediately available funds,
agreed to be paid by the Borrower in connection with this First Amendment.



     4. REFERENCE TO THE CREDIT AGREEMENT.



     (a) Upon and during the effectiveness of this First Amendment, each reference in the Credit
Agreement to “this Agreement”, “hereunder”, or words of like import shall mean and be a reference
to the Credit Agreement, as affected by this First Amendment.



     (b) Except as expressly set forth herein, this First Amendment shall not by implication or
otherwise limit, impair, constitute a waiver of, or otherwise affect the rights or remedies of the
Borrower or the Administrative Agent or the Lenders under the Credit Agreement or any of the other
Loan Documents, and shall not alter, modify, amend, or in any way affect the terms, conditions,
obligations, covenants, or agreements contained in the Credit Agreement or the other Loan
Documents, including, without limitation, compliance with Section 7.10 of the Credit
Agreement for the fiscal quarter ending February 28, 2010, all of which are hereby ratified and
affirmed in all respects and shall continue in full force and effect.



     5. COSTS AND EXPENSES. The Borrower shall be obligated to pay or reimburse the
Administrative Agent for all reasonable costs and expenses incurred by the Administrative Agent in
connection with the preparation, reproduction, execution and delivery of this First Amendment and
the other instruments and documents to be delivered hereunder.



     6. EXECUTION IN COUNTERPARTS. This First Amendment may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed to be an original and all of which when taken together shall
constitute but one and the same instrument. For purposes of this First Amendment, a counterpart
hereof (or signature page thereto) signed and transmitted by any Person party hereto to the
Administrative Agent (or its counsel) by facsimile machine, telecopier or electronic mail is to be
treated as an original. The signature of such Person thereon, for purposes hereof, is to be
considered as an original signature, and the counterpart (or signature page thereto) so transmitted
is to be considered to have the same binding effect as an original signature on an original
document.



 









 





     7. GOVERNING LAW; BINDING EFFECT. This First Amendment shall be governed by and
construed in accordance with the laws of the State of Texas applicable to agreements made and to be
performed entirely within such state (provided that the Administrative Agent and each Lender shall
retain all rights arising under federal law), and shall be binding upon the parties hereto and
their respective successors and assigns.



     8. HEADINGS. Section headings in this First Amendment are included herein for
convenience of reference only and shall not constitute a part of this First Amendment for any other
purpose.



     9. ENTIRE AGREEMENT. THE CREDIT AGREEMENT, AS AMENDED BY THIS FIRST AMENDMENT, AND
THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AS TO THE SUBJECT MATTER
THEREIN AND HEREIN AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT
ORAL AGREEMENTS BETWEEN THE PARTIES.



REMAINDER OF PAGE LEFT INTENTIONALLY BLANK










 









 








     IN WITNESS WHEREOF, the parties hereto have executed this First Amendment as of the date first
above written.



	 	 	 	 	 
	 	COMMERCIAL METALS COMPANY

 	 
	 	By:  	/s/ Murray R. McClean
 	 
	 	 	Name:  	Murray R. McClean 	 
	 	 	Title:  	Chairman of the Board, President and
CEO 	 
	 
	 	BANK OF AMERICA, N.A., as Administrative Agent

 	 
	 	By:  	/s/
Alan Tapley	 
	 	 	Name:  	 Alan Tapley	 
	 	 	Title:  	Assistant
Vice President	 
	 
	 	BANK OF AMERICA, N.A., as a Lender, Swing Line Lender
and an L/C Issuer

 	 
	 	By:  	/s/
David McCauley	 
	 	 	Name:  	David McCauley	 
	 	 	Title:  	Senior
Vice President	 
	 
	 	BNP PARIBAS

 	 
	 	By:  	/s/
Michael Kowalczuk	 
	 	 	Name:  	Michael
Kowalczuk	 
	 	 	Title:  	Vice
President	 
	 
	 	 	 
	 	By:  	
/s/ Berangere Allen
 	 
	 	 	Name:  	Berangere Allen	 
	 	 	Title:  	Vice
President	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	THE BANK OF TOKYO-MITSUBISHI UFJ, LTD.

 	 
	 	By:  	/s/
D. Barnell	 
	 	 	Name:  	D. Barnell	 
	 	 	Title:  	Authorized
Signatory	 
	 
	 	WELLS FARGO HSBC TRADE BANK

 	 
	 	By:  	/s/
John Peloubet	 
	 	 	Name:  	John Peloubet	 
	 	 	Title:  	Vice
President/Relationship Manager	 
	 
	 	JPMORGAN CHASE BANK, N.A.

 	 
	 	By:  	/s/
David
L. Howard	 
	 	 	Name:  	David
L. Howard	 
	 	 	Title:  	Managing
Director	 
	 
	 	COMPASS BANK

 	 
	 	By:  	/s/
Thomas Blake	 
	 	 	Name:  	Thomas Blake	 
	 	 	Title:  	Senior
Vice President	 
	 
	 	SCOTIABANC INC.

 	 
	 	By:  	/s/
J. F. Todd	 
	 	 	Name:  	J. F. Todd	 
	 	 	Title:  	Managing
Director	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	THE ROYAL BANK OF SCOTLAND plc

 	 
	 	By:  	/s/
Brian Williams	 
	 	 	Name:  	Brian Williams	 
	 	 	Title:  	Vice
President	 
	 
	 	THE BANK OF NEW YORK MELLON

 	 
	 	By:  	/s/
Timothy J. Glass	 
	 	 	Name:  	Timothy J. Glass	 
	 	 	Title:  	Vice
President	 
	 
	 	HSBC BANK USA, NATIONAL ASSOCIATION

 	 
	 	By:  	/s/
Steven F. Larsen	 
	 	 	Name:  	Steven F. Larsen	 
	 	 	Title:  	First Vice
President	 
	 
	 	NATIONAL AUSTRALIA BANK LIMITED

 	 
	 	By:  	/s/
Courtney A. Cloe	 
	 	 	Name:  	Courtney A. Cloe	 
	 	 	Title:  	Director	 
	 
	 	COMERICA BANK

 	 
	 	By:  	/s/
Catherine Young	 
	 	 	Name:  	Catherine Young	 
	 	 	Title:  	Vice
President	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	CITIBANK, N.A.

 	 
	 	By:  	/s/
David C. Hauglid	 
	 	 	Name:  	David C. Hauglid	 
	 	 	Title:  	Senior
Relationship Manager	 
	 
	 	STANDARD CHARTERED BANK

 	 
	 	By:  	/s/
Robert K. Reddington	 
	 	 	Name:  	Robert K. Reddington	 
	 	 	Title:  	AVP/Credit
Documentation Credit Risk Control	 
	 
	 	GOLDMAN SACHS BANK USA

 	 
	 	By:  	/s/
Andrew Caditz	 
	 	 	Name:  	Andrew Caditz	 
	 	 	Title:  	Authorized
Signatory	 
	 




 











 





EXHIBIT E




FORM OF COMPLIANCE CERTIFICATE




Financial Statement Date: _____________




To: Bank of America, N.A., as Administrative Agent




Ladies and Gentlemen:




     Reference is made to that certain Second Amended and Restated Credit Agreement, dated as of
November 24, 2009 (as amended, restated, extended, supplemented or otherwise modified in writing
from time to time, the “Agreement;” the terms defined therein being used herein as therein
defined), among Commercial Metals Company, a Delaware corporation (the “Borrower”), the
Lenders from time to time party thereto, and Bank of America, N.A., as Administrative Agent, Swing
Line Lender and an L/C Issuer.



     The undersigned Responsible Officer hereby certifies as of the date hereof that he/she
is the
                          of the Borrower, and that, as such, he/she is authorized to execute and deliver this Certificate to
the Administrative Agent on the behalf of the Borrower, and that:



[Use following paragraph 1 for fiscal year-end financial statements]




     1. Attached hereto as Schedule 1 are the year-end audited financial statements
required by Section 6.01(a) of the Agreement for the fiscal year of the Borrower ended as of the
above date, together with the report and opinion of an independent certified public accountant
required by such section.



[Use following paragraph 1 for fiscal quarter-end financial statements]




     1. Attached hereto as Schedule 1 are the unaudited financial statements required by
Section 6.01(b) of the Agreement for the fiscal quarter of the Borrower ended as of the
above date. Such financial statements fairly present the financial condition, results of
operations and cash flows of the Borrower and its Subsidiaries in accordance with GAAP as at such
date and for such period, subject only to normal year-end audit adjustments and the absence of
footnotes.



     2. The undersigned has reviewed and is familiar with the terms of the Agreement and has made,
or has caused to be made under his/her supervision, a detailed review of the transactions and
condition (financial or otherwise) of the Borrower during the accounting period covered by the
attached financial statements.



     3. A review of the activities of the Borrower during such fiscal period has been made under
the supervision of the undersigned with a view to determining whether during such fiscal period the
Borrower performed and observed all its Obligations under the Loan Documents, and



[select one:]




     [to the best knowledge of the undersigned during such fiscal period, the Borrower performed
and observed each covenant and condition of the Loan Documents applicable to it.]



—or—




 









 








     [the following covenants or conditions have not been performed or observed and the following
is a list of each such Default and its nature and status:]



     4. The representations and warranties of the Borrower contained in Article V of the
Agreement and each other Loan Document or in any document furnished at any time under or in
connection with the Loan Documents, are true and correct in all material respects (except that any
representation or warranty that is qualified as to “materiality” or “Material Adverse Effect” shall
be true and correct in all respects) on and as of the date hereof, except (a) to the extent that
such representations and warranties specifically refer to an earlier date, in which case they shall
be true and correct in all material (except that any representation or warranty that is qualified
as to “materiality” or “Material Adverse Effect” shall be true and correct in all respects) as of
such earlier date, (b) that for purposes of this Compliance Certificate, the representations and
warranties contained in subsection (a) of Section 5.06 of the Agreement shall be deemed to
refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of
Section 6.01 of the Agreement, except that to the extent such representations and
warranties refer to statements furnished pursuant to clause (b) of Section 6.01 of the
Agreement, the representations and warranties in subclauses (i) and (ii) of clause (a) of
Section 5.06 of the Agreement, shall be qualified by reference to the absence of footnotes
and shall be subject to year-end adjustments, and (c) the representations and warranties set forth
in Section 5.06(c) of the Agreement shall not be deemed to be made for purposes of this
Compliance Certificate during any time that the Borrower’s Debt Rating is an Investment Grade
Rating.



     5. The financial covenant analyses and information set forth on Schedule 2 attached
hereto are true and accurate on and as of the date of this Certificate.



     IN WITNESS WHEREOF, the undersigned has executed this Certificate as of ___, ___.



	 	 	 	 	 
	 	COMMERCIAL METALS COMPANY

 	 
	 	By:  	 	 
	 	 	Name: 
	 
	 	 	Title: 
	 



 









 







For the Quarter/Year ended __________________(“Statement Date”)




SCHEDULE 2

to the Compliance Certificate

($ in 000’s)




	 	 	 	 	 	 	 	 	 
	I.	 	Section 7.03(g) — Dispositions	 	 	 	 
	 	 	A.	 	30% of Consolidated Tangible Assets as of last day of immediately preceding fiscal year
	 	$	                    	 
	 	 	B.	 	Aggregate book value of assets Disposed (excluding Dispositions pursuant to clause (a) through (f) of Section 7.03) during existing fiscal year through Statement Date
	 	$	                    	 
	 	 	 	 	 
	 	 	 	 
	 	 	C.	 	Difference (A — B)
	 	$	                    	 
	 	 	 	 	 
	 	 	 	 
	II.	 	Section 7.08 — Interest Coverage Ratio*	 	 	 	 
	 	 	A.	 	Consolidated EBITDA for four consecutive fiscal quarters ending on Statement Date:
	 	 	 	 
	 	 	 	 	(1) Consolidated Net Income
	 	$	                    	 
	 	 	 	 	(2) Interest expense
	 	$	                    	 
	 	 	 	 	(3) Income taxes
	 	$	                    	 
	 	 	 	 	(4) Depreciation and Amortization
	 	$	                    	 
	 	 	 	 	(5) Consolidated EBITDA (Lines II.A.(1) + (2) + (3) + (4))
	 	$	                    	 
	 	 	B.	 	Consolidated Interest Expense for four consecutive fiscal quarters ending on Statement Date
	 	$	                    	 
	 	 	C.	 	Interest Coverage Ratio (Line II.A.(5)  ̧ Line II.B.)
	 	____ to ____
	 	 	D.	 	Minimum Required — 2.50 to 1.00 on May 31, 2010 and at the end of each fiscal quarter
thereafter
	 	 	 	 






 





									
	* 	 	 Note — For the fiscal quarter ending (a) May 31, 2010, Interest Coverage Ratio shall be calculated using
Consolidated EBITDA and Consolidated Interest Expense for the fiscal quarter ending May 31, 2010, (b)
August 31, 2010, Interest Coverage Ratio shall be calculated using Consolidated EBITDA and Consolidated
Interest Expense for the two consecutive fiscal quarters ending August 31, 2010, and (c) November 30, 2010,
shall be calculated using Consolidated EBITDA and Consolidated Interest Expense for the three consecutive
fiscal quarters ending November 30, 2010.








	 	 	 	 	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 
	III.	 	Section 7.09 — Debt to Capitalization Ratio	 	 	 	 
	 	 	A.	 	Consolidated Funded Debt at Statement Date:
	 	 	 	 
	 	 	 	 	(1) All indebtedness for borrowed money or which has been incurred in connection with acquisition of plant, property and equipment
	 	$	                    	 
	 	 	 	 	(2) All Capitalized Rentals
	 	$	                    	 
	 	 	 	 	(3) All Guaranties of Funded Debt
	 	$	                    	 
	 	 	 	 	(4) Total (Lines III.A.(1) + (2) + (3))
	 	$	                    	 






 









 






	 	 	 	 	 	 	 	 	 
	 	 	B.	 	Total Capitalization at Statement Date
	 	 	 	 
	 	 	 	 	(1) Line III.A.(4)
	 	$	                    	 
	 	 	 	 	(2) Consolidated Tangible Net Worth
	 	 	 	 
	 	 	 	 	(a) Shareholders’ equity
	 	$	                    	 
	 	 	 	 	(b) Intangible Assets
	 	$	                    	 
	 	 	 	 	(c) Total (a) — (b)
	 	$	                    	 
	 	 	 	 	(3) Total Capitalization (Line III.B.(1) + Line III.B.(2)(c))
	 	$	                    	 
	 	 	C.	 	Debt to Capitalization Ratio (Line III.A.(4) / (Line III.B.(3))
	 	_____ to 1
	 	 	 	 	Maximum Allowed
	 	 	0.60 to 1	 
	 	 	 	 	 
	 	 	 	 
	IV.	 	Section 7.10 — Liquidity (To be completed only if Interest Coverage Ratio on Line C of Section II above*
is less than 2.50 to 1.00)	 	 	 	 
	 	 	A.	 	Cash and Cash Equivalents at Statement Date
	 	$	                    	 
	 	 	B.	 	Availability at Statement Date under securitization facilities of the Borrower and the Securitizing Subsidiaries
	 	$	                    	 
	 	 	C.	 	Outstanding Amount of Loans at Statement Date
	 	$	                    	 
	 	 	D.	 	Liquidity ((Line IV.A. + Line IV.B.) — Line IV.C.)
	 	$	                    	 
	 	 	E.	 	Minimum Required
	 	$	300,000,000	 







 





									
	* 	 	 Note — For purposes of Section 7.10 of the Credit Agreement, Interest Coverage Ratio
shall be calculated at all times using Consolidated EBITDA and Consolidated Interest
Expense for four consecutive fiscal quarters ending on Statement Date; therefore, for the
fiscal quarters ending May 31, 2010, August 31, 2010 and November 30, 2010, the
calculation of Interest Coverage Ratio in this Section IV, with respect to Section 7.10 of
the Credit Agreement, will be different than the calculation of Interest Coverage Ratio in
Section II above.