AMENDMENT TO
SECOND AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT AND
WAIVER dated as of April 24, 2009 (this “Amendment and
Waiver”) 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”).
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:
Defined terms used
herein and not defined herein shall have the meanings assigned to
such terms in the RPA.
SECTION 2.
WAIVER OF TERMINATION EVENT
The Administrative
Agent, the Managing Agents and the Buyers each hereby waive any
Termination Event arising under Section 10.01(r) of the RPA as
a result of the average Default Ratio for the three consecutive
Accounting Periods ended March 31, 2009 exceeding 3%. The
limited waiver set forth in this Amendment and Waiver shall be
effective only in the specific instance and for the specific
purpose for which expressly given herein and shall not be deemed to
apply to any other event or circumstance.
SECTION 3.
AMENDMENT OF RPA
The parties hereto
agree that, effective as of April 24, 2009:
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(a)
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The
definition of “Commitment Termination Date” set forth
in Section 1.01 of the RPA shall be amended by replacing the
date “April 24, 2009” set forth therein with the
date “May 26, 2009”.
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(b)
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The
definition of “Expiration Date” set forth in
Section 1.01 of the RPA shall be amended by replacing the date
“April 24, 2009” set forth therein with the date
“May 26, 2009”.
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(c)
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Section 1.01 of the RPA shall
be amended by inserting the following definitions in proper
alphabetical order therein:
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““ Portfolio
Performance Reserve ” shall mean, as of any Settlement
Date, an amount equal to the product of (i) the aggregate
outstanding balance of Eligible Receivables in the Receivables Pool
as of the last day of the full Accounting Period immediately
preceding such Settlement Date, and (ii) .05.
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“ Reserve Period
” shall mean the period of time from and including
April 24, 2009 to but excluding May 26,
2009.”
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(d)
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Section 5.06 of the RPA shall
be amended to read it in its entirety as follows:
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“5.06 Deferred Purchase
Price. On the Initial Closing Date, and,
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