exv10w2










EXHIBIT 10.2




     AMENDMENT TO SECOND AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT dated as of November
25, 2009 (this “Amendment”) among CMC RECEIVABLES, INC. (the “Seller”), COMMERCIAL METALS COMPANY
(the “Servicer”), LIBERTY STREET FUNDING LLC (“Liberty”), GOTHAM FUNDING CORPORATION (“Gotham”, and
together with Liberty, the “Buyers”), THE BANK OF NOVA SCOTIA (“Scotia”), THE BANK OF
TOKYO-MITSUBISHI UFJ, LTD., NEW YORK BRANCH (“BTMU”, and together with Scotia, the “Managing
Agents”) and THE BANK OF NOVA SCOTIA, as Administrative Agent (the “Administrative Agent”).



W I T N E S S E T H:




     WHEREAS, the Seller, the Servicer, the Buyers, the Managing Agents and the Administrative
Agent are parties to a Second Amended and Restated Receivables Purchase Agreement dated as of April
30, 2008 (as from time to time amended prior to the date hereof, the “RPA”);



     WHEREAS, the parties desire to amend the RPA;



     NOW, THEREFORE, the parties agree as follows:



SECTION 1. DEFINITIONS




     Defined terms used herein and not defined herein shall have the meanings assigned to such
terms in the RPA.



SECTION 2. AMENDMENT OF RPA




     The parties hereto agree that, effective as of November 25, 2009:




	 	(a)	 	The definition of “Commitment Termination Date” set forth in Section 1.01 of
the RPA shall be amended by replacing the date “December 18, 2009” set forth therein
with the date “November 24, 2010”.
	 
	 	(b)	 	The definition of “Expiration Date” set forth in Section 1.01 of the RPA shall
be amended by replacing the date “ December 18, 2009” set forth therein with the date
“November 24, 2010”.
	 
	 	(c)	 	The definition of “Liquidity Agreements” set forth in Section 1.01 of the RPA
shall be amended to read in its entirety as follows:
	 
	 	 	 	““Liquidity Agreements” shall mean (i) with respect to Gotham,
(a) the Liquidity Agreement dated as of April 1, 1994 between Gotham
and BTMU, and (b) the Asset Purchase Agreement dated as of




 









 






	 	 	 	November 25, 2009 between Gotham and BTMU, and (ii) with respect to
Liberty, the Liquidity Asset Purchase Agreement dated as of November
25, 2009 between Liberty and Scotia, as each may from time to time be
amended, supplemented, modified, replaced or superseded.”
	 
	 	(d)	 	Section 1.01 of the RPA shall be amended to add the following definitions in
proper alphabetical order:
	 
	 	 	 	““Cash and Cash Equivalents” means (a) cash, (b) marketable
obligations issued or unconditionally guaranteed by the government of
the United States of America or issued by any of its agencies and
backed by the full faith and credit of the United States of America,
in each case maturing within one year from the date of acquisition
(and investments in mutual funds investing primarily in those
obligations); (c) short-term investment grade domestic and eurodollar
certificates of deposit or time deposits that are fully insured by the
Federal Deposit Insurance Corporation or are issued by commercial
banks having combined capital, surplus, and undivided profits of not
less than $100,000,000 (as shown on its most recently published
statement of condition); (d) commercial paper and similar obligations
rated “P-1” or “P-2” by Moody’s; or “A-1+”, “A-1” or “A-2” by S&P; (e)
readily marketable tax-free municipal bonds of a domestic issuer rated
“Aaa” by Moody’s or “AAA” by S&P, and maturing within one year from
the date of issuance (and investments in mutual funds investing
primarily in those bonds); (f) money market mutual funds or similar
obligations rated Aaa by Moody’s or AAA by S&P; and (g) demand deposit
accounts maintained in the ordinary course of business.”
	 
	 	 	 	““Liquidity” means, for the Company and its Subsidiaries, as
of any date, the sum of (a)(i) Cash and Cash Equivalents as of such
date and (ii) the aggregate Purchase Availability Amount of Liberty
and Gotham hereunder, minus (b) then-outstanding “Loans” under, and as
defined in, that certain Second Amended and Restated Credit Agreement,
dated as of November 25, 2009, among the Company, as borrower, Bank of
America, N.A., as administrative agent, and the financial institutions
party thereto, as lenders (as the same may be renewed, extended,
amended or restated from time to time).”
	 
	 	 	 	““Subsidiary” of a Person means a corporation, partnership,
joint venture, limited liability company or other business entity of
which a majority of the shares of securities or other interests having
ordinary voting power for the election of directors or other governing
body (other than securities or interests having such power only by
reason of the happening of a contingency) are at the time




 









 






	 	 	 	beneficially owned, or the management of which is otherwise
controlled, directly, or indirectly through one or more
intermediaries, or both, by such Person.”
	 
	 	(e)	 	Section 9.03 of the RPA shall be amended to add the following clause at the end
thereof as a new clause (r):
	 
	 	 	 	“(r) Liquidity. For the period from and after November 25,
2009 to and including May 31, 2010, the Servicer shall maintain
Liquidity of at least $300,000,000 at all times during such period
unless the most recent financial statements and certificates delivered
during such period pursuant to the requirements of Section 9.03(a) or
(b), as the case may be, indicate that the Interest Coverage Ratio for
the then-most recently concluded period of four consecutive fiscal
quarters is at least 2.50 to 1.00.”
	 
	 	(f)	 	Section 9.04(d) and Section 9.04(e) of the RPA shall be amended to read in
their entirety as follows:
	 
	 	 	 	“(d) Interest Coverage Ratio. Permit the Interest Coverage
Ratio to be less than (a) 1.50 to 1.00 at any time during the period
from and including November 25, 2009 through and including May 31,
2010, and (b) 2.50 to 1.00 at any time after May 31, 2010.
	 
	 		 	(e) Debt to Capitalization Ratio. Permit the Debt to
Capitalization Ratio to be greater than 0.60 to 1.00 at any time.”
	 
	 	(g)	 	Exhibit F to the RPA shall be amended by replacing it in its entirety with
Annex A attached hereto.





SECTION 3. RENEWAL FEE





	 	(a)	 	The Seller agrees to pay to Scotia as Managing Agent on behalf of Liberty a
non-refundable, fully-earned fee (the “Liberty Renewal Fee”) in an amount equal
to $50,000. The Liberty Renewal Fee shall be payable on or prior to the date of this
Amendment.
	 
	 	(b)	 	The Seller agrees to pay to BTMU as Managing Agent on behalf of Gotham a
non-refundable, fully-earned fee (the “Gotham Renewal Fee”) in an amount equal
to $50,000. The Gotham Renewal Fee shall be payable on or prior to the date of this
Amendment.
	 
	 	(c)	 	For the avoidance of doubt, the failure of the Seller to pay the Liberty
Renewal Fee and/or the Gotham Renewal Fee in accordance with the foregoing paragraphs
of this Section 3 shall constitute a Termination Event for all purposes of the RPA and
the other Purchase Documents, and, in the event of any such failure, the




 









 






	 	 	 	Administrative Agent, the Buyers and the Managing Agents shall be entitled to exercise
all of their respective rights and remedies set forth in the RPA.





SECTION 4. GOVERNING LAW




     THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK INCLUDING ITS CONFLICTS OF LAWS RULES.



SECTION 5. EXECUTION IN COUNTERPARTS




     This Amendment may be executed in any number of counterparts and by different parties hereto
in separate counterparts, each of which, when so executed, shall be deemed to be an original and
all of which, when taken together, shall constitute one and the same Amendment. Delivery of an
executed counterpart of a signature page to this Amendment by facsimile shall be effective as
delivery of a manually executed counterpart of this Amendment.



SECTION 6. CONFIRMATION OF AGREEMENT




     Each of the parties to the RPA agree that, except as amended or waived hereby, the RPA
continues in full force and effect. The Seller and the Servicer hereby represent and warrant that,
after giving effect to the effectiveness of this Amendment, their respective representations and
warranties contained in the RPA are true and correct in all material respects upon and as of the
date hereof with the same force and effect as though made on and as of such date (except to the
extent that such representations and warranties relate solely to an earlier date). All references
in any Purchase Document to the RPA on and after the date hereof shall be deemed to refer to the
RPA as amended hereby.



[Signature Page Follows]





 









 








     IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed by their
authorized officers as of the date first above written.



	 	 	 	 	 	 	 	 	 	 	 
	CMC RECEIVABLES, INC.,

as Seller	 	 	 	COMMERCIAL METALS COMPANY,

as Servicer	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	By:

	 	/s/ Louis A. Federle
	 	 	 	By:
	 	/s/ Murray R. McClean	 	 
	 

	 	 
	 	 	 	 	 	 	 	 
	 

	 	Name: Louis A. Federle
	 	 	 	 	 	Name: Murray R. McClean	 	 
	 

	 	Title: Treasurer
	 	 	 	 	 	Title: President and Chief Executive Officer	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	THE BANK OF NOVA SCOTIA,

as Managing Agent and Administrative Agent	 	 	 	LIBERTY STREET FUNDING LLC,

as Buyer	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	By:

	 	/s/ Michael Eden
	 	 	 	By:
	 	/s/ Jill A. Russo	 	 
	 

	 	 
	 	 	 	 	 	 	 	 
	 

	 	Name: Michael Eden
	 	 	 	 	 	Name: Jill A. Russo	 	 
	 

	 	Title: Director
	 	 	 	 	 	Title: Vice President	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	THE BANK OF TOKYO-MITSUBISHI UFJ,
LTD., NEW YORK BRANCH,

as Managing Agent	 	 	 	GOTHAM FUNDING CORPORATION,
as Buyer	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	By:

	 	/s/ Aditya Reddy
	 	 	 	By:
	 	/s/ Frank B. Bilotta	 	 
	 

	 	 
	 	 	 	 	 	 	 	 
	 

	 	Name: Aditya Reddy
	 	 	 	 	 	Name: Frank B. Bilotta	 	 
	 

	 	Title: VP & Manager
	 	 	 	 	 	Title: President	 	 






Signature Page to RPA Extension Amendment

November 2009

SK 26326 0001 1045823 



 









 








	 	 	 	 	 	 	 	 	 
	Acknowledged and Agreed to by:	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	STRUCTURAL METALS, INC., d/b/a

CMC STEEL TEXAS	 	 	 	SMI STEEL, INC., d/b/a

CMC STEEL ALABAMA
	 
	 	 	 	 	 	 	 	 
	By:

	 	/s/ Murray R. McClean
	 	 	 	By:
	 	/s/ Murray R. McClean
	 

	 	 
	 	 	 	 	 	 
	 

	 	Authorized Signatory
	 	 	 	 	 	Authorized Signatory
	 
	 	 	 	 	 	 	 	 
	OWEN ELECTRIC STEEL COMPANY OF 
SOUTH
CAROLINA, d/b/a CMC 

STEEL SOUTH CAROLINA	 	 	 	CMC STEEL FABRICATORS, INC.,

d/b/a CMC JOIST
	 
	 	 	 	 	 	 	 	 
	By:

	 	/s/ Murray R. McClean
	 	 	 	By:
	 	/s/ Murray R. McClean
	 

	 	 
	 	 	 	 	 	 
	 

	 	Authorized Signatory
	 	 	 	 	 	Authorized Signatory
	 
	 	 	 	 	 	 	 	 
	HOWELL METAL COMPANY,

d/b/a CMC HOWELL METAL	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	By:

	 	/s/ Murray R. McClean	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	Authorized Signatory