EXHIBIT 10(i)f
SECOND AMENDMENT TO CREDIT AGREEMENT
THIS SECOND AMENDMENT TO CREDIT AGREEMENT (this "Second Amendment"),
dated as of October 7, 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, as amended by that certain First
Amendment to Credit Agreement, dated as of March 15, 2004 (said Credit
Agreement, as amended, 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. The definition of "Letter of Credit Sublimit" set
forth in Section 1.01 of the Credit Agreement is hereby amended to read as
follows:
"Letter of Credit Sublimit" means an amount equal to
$40,000,000. The Letter of Credit Sublimit is part of, and not in
addition to, the Aggregate Commitments.
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;
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(c) (i) the Borrower has full power and authority to execute and
deliver this Second Amendment, (ii) this Second Amendment has been duly executed
and delivered by the Borrower, and (iii) this Second 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 Second
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
(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 Second Amendment.
3. CONDITIONS TO EFFECTIVENESS. This Second Amendment shall be
effective upon satisfaction or completion of the following:
(a) the Administrative Agent shall have received counterparts of
this Second Amendment executed by the Required Lenders;
(b) the Administrative Agent shall have received counterparts of
this Second 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 Second 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 Second 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).
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6. EXECUTION IN COUNTERPARTS. This Second 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 Second 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 Second 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 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 Second Amendment are
included herein for convenience of reference only and shall not constitute a
part of this Second Amendment for any other purpose.
9. ENTIRE AGREEMENT. THE CREDIT AGREEMENT, AS AMENDED BY THIS
SECOND 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 Second 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/ Kendra Chase
-------------------------------------
Name: /s/ Kendra Chase
--------------------------------
Title: Vice President
-------------------------------
BANK OF AMERICA, N.A., as a Lender
By: /s/ Sanjay H. Gurnani
-------------------------------------
Name: Sanjay H. Gurnani
--------------------------------
Title: Vice President
-------------------------------
THE BANK OF TOKYO-MITSUBISHI, LTD.,
as Co-Syndication Agent and as a Lender
By: /s/ D. Barnell
-------------------------------------
Name: D. Barnell
--------------------------------
Title: Vice President
-------------------------------
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/ Ignacio Pineros
-------------------------------------
Name: Ignacio Pineros
--------------------------------
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/ Brad Ellis
-------------------------------------
Name: Brad Ellis
--------------------------------
Title: Associate
-------------------------------
By: /s/ Aurora L. Abella
-------------------------------------
Name: Aurora L. Abella
--------------------------------
Title: Vice President
-------------------------------
COMERICA BANK, as a Lender
By: /s/ Janet Wheeler
-------------------------------------
Name: Janet Wheeler
--------------------------------
Title: Corporate Banking Officer
-------------------------------
AUSTRALIA AND NEW ZEALAND BANKING GROUP
LIMITED
By: /s/ Damodar P. Menon
-------------------------------------
Name: Damodar P. Menon
--------------------------------
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. Tashjian
-------------------------------------
Name: Craig A. Tashjian
--------------------------------
Title: Managing Director
-------------------------------
By: /s/ Laurence Lemesle
-------------------------------------
Name: Laurence Lemesle
--------------------------------
Title: Vice President
-------------------------------
WELLS FARGO BANK, N.A.
By: /s/ John W. Johnson
-------------------------------------
Name: John W. Johnson
--------------------------------
Title: Vice President
-------------------------------
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/ Cristina E. Roberts
-------------------------------------
Name: Cristina E. Roberts
--------------------------------
Title: Managing Director
Fortis Capital Corp.
-------------------------------
HIBERNIA NATIONAL BANK
By: /s/ Laura Watts
-------------------------------------
Name: Laura Watts
--------------------------------
Title: Vice President
-------------------------------
HSBC BANK USA, NATIONAL ASSOCIATION
By: /s/ George Linhart
-------------------------------------
Name: George Linhart
--------------------------------
Title: Senior Vice President
-------------------------------
SOUTHWEST BANK OF TEXAS, N.A.
By: /s/ Melinda N. Jackson
-------------------------------------
Name: Melinda N. Jackson
--------------------------------
Title: Senior Vice President
-------------------------------