EXHIBIT 10(i)e
FIRST AMENDMENT TO CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT (this "First Amendment"),
dated as of March 15, 2004, is entered into among COMMERCIAL METALS COMPANY, a
Delaware corporation (the "Borrower"), the lenders listed on the signature pages
hereof as Lenders (the "Lenders"). BANK OF AMERICA, N.A., as Administrative
Agent, THE BANK OF TOKYO-MITSUBISHI, LTD. and ABN AMRO BANK N.V., as
Co-Syndication Agents, and MELLON BANK, N.A. and BNP PARIBAS, as
Co-Documentation Agents.
BACKGROUND
A. The Borrower, the Lenders, the Co-Syndication Agents, the
Co-Documentation Agents and the Administrative Agent are parties to that certain
Credit Agreement, dated as of August 8, 2003 (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 has requested an amendment to the Credit
Agreement.
C. The Lenders, the Co-Syndication Agents, the Co-Documentation
Agents and the Administrative Agent hereby agree to amend the Credit Agreement,
subject to the terms and conditions set forth 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 Borrower, the
Lenders, the Co-Syndication Agents, the Co-Documentation Agents, and the
Administrative Agent covenant and agree as follows:
1. AMENDMENT. Section 7.03 of the Credit Agreement is hereby
amended to read as follows:
SECTION 7.03 MERGERS, CONSOLIDATIONS AND SALES OF ASSETS.
(a) The Borrower shall not, and shall not permit any
Material Subsidiary to, consolidate with or be a party to a merger with
any other corporation; except:
(i) any Material Domestic Subsidiary or any
Solvent Subsidiary may merge or consolidate with or into the
Borrower or any Material Domestic Subsidiary, so long as in
any merger or consolidation involving the Borrower, the
Borrower shall be the surviving or continuing corporation and
any merger or consolidation involving a Subsidiary that is not
a Material Domestic Subsidiary, the Borrower or the Material
Domestic Subsidiary shall be the surviving or continuing
corporation;
(ii) the Borrower may consolidate or merge with
any other corporation provided (A) the Borrower shall be the
surviving or
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continuing corporation, and (B) at the time of such
consolidation or merger and after giving effect thereto no
Default or Event of Default shall have occurred and be
continuing; and
(iii) any Material Domestic Subsidiary may sell,
lease or otherwise dispose of all or any substantial part of
its assets to the Borrower or any Material Domestic
Subsidiary.
(b) The Borrower shall not, and shall not permit any
Subsidiary to, sell any of its assets, except for full, fair and
reasonable consideration.
(c) The Borrower shall not, and shall not permit CMC
Steel Fabricators, Inc., d/b/a SMI Joist Co. (Hope, AR), Howell Metals
Company, Owen Electric Steel Company of South Carolina, SMI Steel,
Inc., and Structural Metals, Inc. (collectively, the "Securitizing
Subsidiaries") to, sell, securitize or otherwise transfer or encumber
accounts receivable resulting in funding aggregating more than
$160,000,000 at any one time outstanding, except as the same may be
permitted by Section 7.01, 7.03(a)(iii) or 7.03(b).
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:
(a) the representations and warranties contained in the Credit
Agreement and the other Loan Documents are true and correct on and as of the
date hereof as made on and as of such date;
(b) no event has occurred and is continuing which constitutes a
Default or an Event of Default;
(c) (i) the Borrower has full power and authority to execute and
deliver this First Amendment, (ii) this First Amendment has been duly executed
and delivered by the Borrower, and (iii) this First Amendment and the Credit
Agreement, as amended hereby, constitute the legal, valid and binding
obligations of the Borrower, enforceable in accordance with their respective
terms, except as enforceability may be limited by applicable Debtor Relief Laws
and by general principles of equity (regardless of whether enforcement is sought
in a proceeding in equity or at law) and except as rights to indemnity may be
limited by federal or state securities laws;
(d) neither the execution, delivery and performance of this First
Amendment or the Credit Agreement, as amended hereby, nor the consummation of
any transactions contemplated herein or therein, will conflict with any Law or
Organization Documents of the Borrower, or any indenture, agreement or other
instrument to which the Borrower or any of their properties are subject; and
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(e) no authorization, approval, consent, or other action by,
notice to, or filing with, any governmental authority or other Person (including
the board of directors of the Borrower) is required for the execution, delivery
or performance by the Borrower of this First Amendment.
3. CONDITIONS TO EFFECTIVENESS. This First Amendment shall be
effective upon satisfaction or completion of the following:
(a) the Administrative Agent shall have received counterparts of
this First Amendment executed by the Required Lenders;
(b) the Administrative Agent shall have received counterparts of
this First Amendment executed by the Borrower; and
(c) the Administrative Agent shall have received, in form and
substance satisfactory to the Administrative Agent and its counsel, such other
documents, certificates and instruments as the Administrative Agent shall
require.
4. REFERENCE TO THE CREDIT AGREEMENT.
(a) Upon 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 and
amended hereby.
(b) The Credit Agreement, as amended by the amendments referred to
above, shall remain in full force and effect and is hereby ratified and
confirmed.
5. COSTS, EXPENSES AND TAXES. The Borrower agrees to pay on
demand all costs and expenses of 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 (including the
reasonable fees and out-of-pocket expenses of counsel for the Administrative
Agent with respect thereto).
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 each party shall
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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 AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS BETWEEN THE PARTIES. THERE ARE NO
UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
REMAINDER OF PAGE LEFT INTENTIONALLY BLANK
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IN WITNESS WHEREOF, this First Amendment is executed as of the date
first set forth above.
COMMERCIAL METALS COMPANY
By: /s/ Stanley A. Rabin
------------------------------
Name: Stanley A. Rabin
Title: Chairman of the Board,
President and
Chief Executive Officer
BANK OF AMERICA, N.A., as Administrative
Agent
By: /s/ Brian D. Corum
-------------------------------------
Name: Brian D. Corum
Title: Managing Director
BANK OF AMERICA, N.A., as a Lender
By: /s/ Brian D. Corum
-------------------------------------
Name: Brian D. Corum
Title: Managing Director
THE BANK OF TOKYO-MITSUBISHI, LTD.,
as Co-Syndication Agent and as a Lender
By: /s/ D. Barnell /s/ J. Mearns
-------------------------------------
Name: D. Barnell J Mearns
Title: Vice President VP & Manager
ABN AMRO BANK N.V., as Co-Syndication
Agent and as a Lender
By: /s/ Angela Noique
-------------------------------------
Name: Angela Noique
Title: Group Vice President
By: /s/ Carla Sweet
-------------------------------------
Name: Carla Sweet
Title: Vice President
MELLON BANK, N.A., as Co-Documentation
Agent and as a Lender
By: /s/ William M. Feathers
-------------------------------------
Name: William M. Feathers
Title: Vice President
BNP PARIBAS, as Co-Documentation Agent
and as a Lender
By: /s/ Angela Arnold
-------------------------------------
Name: Angela Arnold
Title: Vice President
By: /s/ Craig Pierce
-------------------------------------
Name: Craig Pierce
Title: Vice President
COMERCIA BANK, as a Lender
By: /s/ Janet Wheeler
-------------------------------------
Name: Janet Wheeler
Title: Corporate Banking Officer
AUSTRALIA AND NEW ZEALAND
BANKING GROUP LIMITED
By: /s/ John Wade
-------------------------------------
Name: John Wade
Title: Director
NATIONAL AUSTRALIA BANK
By: /s/ Scott Tuhy
-------------------------------------
Name: Scott Tuhy
Title: Director
THE BANK OF NOVA SCOTIA
By: /s/ William E. Zarrett
-------------------------------------
Name: William E. Zarrett
Title: Managing Director
SOCIETE GENERALE
By: /s/ Craig A. Tashji /s/ Bourence Tenesle
-----------------------------------------
Name: Craig A. Tashji Bourence Tenesle
Title: Managing Director Vice President
WELLS FARGO BANK, N.A.
By: /s/ Yousuf Omar
-------------------------------------
Name: Yousuf Omar
Title: Senior Relationship Manager
HARRIS NESBITT FINANCING, INC.
(formerly known as BMO Nesbitt Burns
Financing, Inc.)
By: /s/ Joseph W. Linder
-------------------------------------
Name: Joseph W. Linder
Title: Vice President
FORTIS CAPITAL CORP.
By: /s/ Patrick Jaberg
-------------------------------------
Name: Patrick Jaberg
Title: Sr. Associate
By: /s/ Walter Vollebregt
-------------------------------------
Name: Walter Vollebregt
Title: Director
HIBERNIA NATIONAL BANK
By: /s/ Michael R. Geissler
-------------------------------------
Name: Michael R. Geissler
Title: Vice President
HSBC BANK USA
By: /s/ J.N. Wieser
-------------------------------------
Name: J.N. Wieser
Title: M.D.
SOUTHWEST BANK OF TEXAS, N.A.
By: /s/ Melinda N. Jackson
-------------------------------------
Name: Melinda N. Jackson
Title: Senior Vice President