exv10w1






Exhibit 10.1




     AMENDMENT TO SECOND AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT dated as of June 12,
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 June 12, 2009:




	 	(a)	 	The definition of “Account Balance” set forth in Section 1.01 of the RPA shall
be amended by inserting the following parenthetical in its entirety immediately after
the words “on the accounting Records of an Originator and the Seller” set forth
therein:






“(after giving effect to the application of any contractual
right of set-off, rebate or discount, including without
limitation, any discount for prompt payment, any volume
rebate or any volume discount)”.




	 	(b)	 	The definition of “Commitment Termination Date” set forth in Section 1.01 of
the RPA shall be amended by replacing the date “June 12, 2009” set forth therein with
the date “December 18, 2009”.
	 
	 	(c)	 	The definition of “Credit Enhancement Floor” set forth in Section 1.01 of the
RPA shall be amended to read in its entirety as follows:




 









 












““Credit Enhancement Floor” shall mean, with respect
to any Settlement Date, the sum of (a) twenty percent (20%),
plus (b) the sum of the percentage for each Dilution Factor
determined by multiplying the Expected Dilution for such
Dilution Factor by the Dilution Horizon for such Dilution
Factor.”




	 	(d)	 	The definition of “Credit Loss Reserve” set forth in Section 1.01 of the RPA
shall be amended by replacing the number “2.0” set forth in clause (i) therein with the
number “2.5”.
	 
	 	(e)	 	The definition of “Defaulted Receivable” set forth in Section 1.01 of the RPA
shall be amended by replacing the number “60” set forth in clause (d) therein with the
number “61”.
	 
	 	(f)	 	The definition of “Dilution Reserve” set forth in Section 1.01 of the RPA shall
be amended by replacing the number “2.0” set forth in clause (a)(i) therein with the
number “2.5”.
	 
	 	(g)	 	The definition of “Eligible Receivable” set forth in Section 1.01 of the RPA
shall be amended as follows:






	 	(i)	 	clause (p) set forth therein shall be amended by
replacing it in its entirety with the following:






	 	“(p)	 	 is either (i) not
subject to a contractual right of set-off, or
(ii) subject to a contractual right of
set-off, the actual amount of which can at
all times be (A) expressly determined and (B)
tracked in a manner that would permit all
adjustments, calculations and reporting
requirements set forth in this Agreement to
be performed;”






	 	(ii)	 	the word “and” set forth at the end of clause (v)
therein shall be deleted,
	 
	 	(iii)	 	the language “; and” shall be added at the end
of clause (w) therein, and
	 
	 	(iv)	 	the following clauses shall be added at the end
thereof as new clauses (x) and (y):




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	 	“(x)	 	 has an Obligor
whose Defaulted Receivables have an aggregate
Account Balance (as defined in this Agreement
without giving effect to the exclusion of
Defaulted Receivables set forth therein) that
constitute no more than 25% of the aggregate
Account Balance of such Obligor’s
Receivables; and
	 
	 	(y)	 	if it is originated
by Howell Metal Company d/b/a CMC Howell
Metal, is either (i) not subject to any
volume rebate or any volume discount, or (ii)
subject to a volume rebate or volume
discount, the actual amount of which can at
all times be (A) expressly determined and (B)
tracked in a manner that would permit all
adjustments, calculations and reporting
requirements set forth in this Agreement to
be performed.”






	 	(h)	 	The definition of “Expiration Date” set forth in Section 1.01 of the RPA shall
be amended by replacing the date “June 12, 2009” set forth therein with the date
“December 18, 2009”.
	 
	 	(i)	 	The definition of “Gotham Maximum Net Investment” set forth in Section 1.01 of
the RPA shall be amended by replacing the amount “$100,000,000” set forth therein with
the amount “$50,000,000”.
	 
	 	(j)	 	The definition of “Liberty Maximum Net Investment” set forth in Section 1.01 of
the RPA shall be amended by replacing the amount “$100,000,000” set forth therein with
the amount “$50,000,000”.
	 
	 	(k)	 	The definition of “Operating Divisions” set forth in Section 1.01 of the RPA
shall be amended by deleting the words “, CMC Dallas Trading (formerly Dallas Trading
Division)” set forth therein.
	 
	 	(l)	 	The definitions of “Portfolio Performance Reserve” and “Reserve Period” set
forth in Section 1.01 of the RPA shall be deleted in their entirety.
	 
	 	(m)	 	Section 5.06 of the RPA shall be amended to read in its entirety as follows:






“5.06 Deferred Purchase Price. On the Initial
Closing Date, and, thereafter, in each Settlement Statement,
the Servicer shall calculate the Deferred Purchase Price as
of the last day of the full Accounting Period most recently
completed,




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	 	 	 	which shall be an amount equal to the sum of (1) the Credit
Enhancement Reserve, plus (2) the Yield Reserve, plus
(3) the Servicer’s Compensation Reserve; provided,
that if a Liquidation Day occurs, the Deferred Purchase
Price will thereafter be the amount of the Deferred Purchase
Price at the close of business on the day immediately
preceding such Liquidation Day.”






	 	(n)	 	Each of Section 9.01(i)(1) and Section 9.03(i)(1) of the RPA shall be amended
by (i) deleting the word “and” set forth at the end of clause (i) therein, and (ii)
adding the following at the end thereof as a new clause (iii):






	 	 	 	“, and (iii) if the Seller or the Servicer is unable to
place an appropriate code or notation in its Records with
respect to any Receivable which is or which will be included
in the Receivables Pool, a schedule, by Obligor, of all
Receivables in or to be included in the Receivables Pool, as
of the last day of the most recently completed Accounting
Period, and the Account Balance of each such Receivable as
of such date, in CD-ROM format or other written or
electronic format as requested by the Administrative Agent.”






	 	(o)	 	Section 10.01(r) and Section 10.01(s) of the RPA shall each be amended by
replacing them in their entirety with the following:






	 	“(r)	 	the average Default Ratio for
any three consecutive Accounting Periods is greater
than 2%; or






	 	(s)	 	the average Dilution Ratio for any three
consecutive
Accounting Periods is greater than 3.5%.”






	 	(p)	 	Section 12.08 of the RPA shall be amended by replacing it in its entirety with
the following:






	 	 	 	“12.08 Amendments and Waivers. The Administrative
Agent, the Managing Agents, the Buyers, the Company and the
Seller may from time to time enter into agreements amending,
modifying or supplementing this Agreement, and the
Administrative Agent, the Managing Agents and the Buyers, in
their sole discretion, may from time to time grant waivers
of the provisions of this Agreement or consents to a
departure from the due performance of the obligations of the
Seller or any Originator under this Agreement. Any such
agreement, waiver or consent must be in writing and shall be
effective only to the extent
specifically set forth in such writing. Any waiver of any




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	 	 	 	provision hereof, and any consent to a departure by the
Seller from any of the terms of this Agreement, shall be
effective only in the specific instance and for the specific
purpose for which given and if such amendment, waiver or
departure would have a material adverse effect on the rights
or obligations of the Administrative Agent, any Managing
Agent, any Buyer or any Affected Party, such amendment,
departure or waiver shall not be effective until consented
to by the Administrative Agent, such Managing Agent, such
Buyer or such Affected Party.”





SECTION 3. 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 4. 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 5. 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]





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     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

 	 
	 	By:  	/s/  Louis A. Federle
 	 
	 	 	Name:  	Louis A. Federle 	 
	 	 	Title:  	Treasurer 

	 
	 
	 	THE BANK OF NOVA SCOTIA,

as Managing Agent and Administrative Agent

 	 
	 	By:  	/s/  Norman Last
 	 
	 	 	Name:  	Norman Last 	 
	 	 	Title:  	Managing Director 	 
	 
	 	THE BANK OF TOKYO-MITSUBISHI UFJ, LTD.,

NEW YORK BRANCH,

as Managing Agent

 	 
	 	By:  	/s/  Aditya Reddy
 	 
	 	 	Name:  	Aditya Reddy 	 
	 	 	Title:  	VP and Manager 	 
	 






	 	 	 	 	 
	 	COMMERCIAL METALS COMPANY,

as Servicer

 	 
	 	By:  	  /s/  Murray R. McClean
 	 
	 	 	Name:  	Murray R. McClean 	 
	 	 	Title:  	President, Chief Executive Officer and

Chairman of the Board of Directors 	 
	 
	 	LIBERTY STREET FUNDING LLC,
as Buyer

 	 
	 	By:  	/s/  Jill A. Russo
 	 
	 	 	Name:  	Jill A. Russo 	 
	 	 	Title:  	Vice President 	 
	 
	 	GOTHAM FUNDING CORPORATION,

as Buyer


 	 
	 	By:  	/s/  Franklin P. Gilao
 	 
	 	 	Name:  	Franklin P. Gilao 	 
	 	 	Title:  	Secretary 	 
	 








Signature Page to RPA Extension Amendment
June 2009

















 







Acknowledged and Agreed to by:




	 	 	 	 	 
	 	STRUCTURAL METALS, INC., d/b/a 

CMC STEEL TEXAS

 	 
	 	By:  	/s/  Murray R. McClean
 	 
	 	 	Authorized Signatory                         	 
	 	 	 	 
	 
	 	OWEN ELECTRIC STEEL COMPANY OF SOUTH CAROLINA, d/b/a CMC STEEL SOUTH CAROLINA 

 	 
	 	By:  	/s/  Murray R. McClean
 	 
	 	 	Authorized Signatory 	 
	 	 	 	 
	 
	 	HOWELL METAL COMPANY,

d/b/a CMC HOWELL METAL

 	 
	 	By:  	/s/  Murray R. McClean
 	 
	 	 	Authorized Signatory 	 
	 	 	 	 
	 






	 	 	 	 	 
	 	

SMI STEEL, INC., d/b/a

CMC STEEL ALABAMA

 	 
	 	By:  	/s/  Murray R. McClean
 	 
	 	 	Authorized Signatory 	 
	 	 	 	 
	 
	 	CMC STEEL FABRICATORS, INC.,

d/b/a CMC JOIST

 	 
	 	By:  	/s/  Murray R. McClean
 	 
	 	 	Authorized Signatory 	 
	 	 	 	 
	 








Signature
Page to RPA Extension Amendment
June 2009