AMENDMENT TO
SECOND AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT AND
WAIVER dated as of May 26, 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 EVENTS
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 April 30, 2009 exceeding
3%.
The Administrative
Agent, the Managing Agents and the Buyers each hereby waive any
Termination Event arising under Section 10.01(s) of the RPA as
a result of the average Dilution Ratio for the three consecutive
Accounting Periods ended April 30, 2009 exceeding
5%.
The limited
waivers set forth in this Amendment and Waiver shall be effective
only in the specific instances and for the specific purposes 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 May 26, 2009:
