AMENDMENT NO. 2 Dated as of August 25, 2006 to PURCHASE AND SALE AGREEMENT Dated as of November 30, 2000
Exhibit 10.5
EXECUTION COPY
AMENDMENT NO. 2
Dated as of August 25, 2006
to
Dated as of November 30, 2000
This AMENDMENT NO. 2 (this “Amendment”) dated as of August 25, 2006 is entered into between the VARIOUS ENTITIES LISTED ON SCHEDULE I HERETO AS ORIGINATORS (each, an “Originator”; and collectively, the “Originators”), and WORTHINGTON RECEIVABLES CORPORATION, a Delaware corporation (the “Company”).
RECITALS
WHEREAS, the parties hereto have entered into a certain Purchase and Sale Agreement dated as of November 30, 2000 as amended by Amendment No. 1 dated May 18, 2001 (the “Agreement”);
WHEREAS, the parties hereto wish to make certain changes to the Agreement as herein provided;
NOW, THEREFORE, in consideration of the promises and the mutual agreements contained herein and in the Agreement, the parties hereto agree as follows:
SECTION 1. Definitions. All capitalized terms not otherwise defined herein are used as defined in the Agreement.
SECTION 2. Amendments to Agreement. The Agreement is hereby amended as follows:
2.1 Clause (f) of Section 6.3 of the Agreement is hereby amended and restated in its entirety as follows:
(f) Location and Offices. Change its “location” (as such term is defined in the UCC) or move its principal place of business and chief executive office and the offices where it keeps its records concerning or related to the Receivables, to a location or address other than the locations and addresses set forth on Schedule 6.3(f) or, upon 30 days’ prior written notice to the Company and the Administrator, at such other locations or addresses in jurisdictions where all action required by Section 7.3 shall have been taken and completed.
2.2 Schedule I of the Agreement is hereby amended and restated in its entirety as set forth on Schedule I attached hereto.
2.3 Schedule 5.6 of the Agreement is hereby amended and restated in its entirety as set forth on Schedule 5.6 attached hereto.
| 1 | Amendment to the |
2.4 Schedule 5.15 of the Agreement is hereby amended and restated in its entirety as set forth on Schedule 5.6 attached hereto.
2.5 Schedule 6.1(f) of the Agreement is hereby amended and restated in its entirety as set forth on Schedule 6.1(f) attached hereto.
SECTION 3. Miscellaneous.
3.1 Representations and Warranties. Each Originator and the Company hereby makes, with respect to itself, the representations and warranties as follows:
(a) Representations and Warranties. The representations and warranties contained in Article V of the Agreement of such Originators are true and correct as of the date hereof (unless stated to relate solely to an earlier date, in which case such representations and warranties were true and correct as of such earlier date).
(b) Enforceability. The execution and delivery by such Person of this Amendment, and the performance of its obligations under this Amendment and the Agreement, as amended hereby, are within its organizational powers and have been duly authorized by all necessary organizational action on its part. This Amendment and the Agreement, as amended hereby, are its valid and legally binding obligations, enforceable in accordance with its terms.
(c) Termination Event. No Purchase and Sale Termination Event or Unmatured Purchase and Sale Termination Event has occurred and is continuing.
3.2 References to Agreement. Upon the effectiveness of this Amendment, each reference in the Agreement to “this Agreement”, “hereunder”, “hereof”, “herein”, or words of like import shall mean and be a reference to the Agreement as amended hereby, and each reference to the Agreement in any other document, instrument or agreement executed and/or delivered in connection with the Agreement shall mean and be a reference to the Agreement as amended hereby.
3.3 Effect on the Agreement. Except as specifically amended above, the Agreement and all other documents, instruments and agreements executed and/or delivered in connection therewith shall remain in full force and effect and are hereby ratified and confirmed.
3.4 No Waiver. The execution, delivery and effectiveness of this Amendment shall not operate as a waiver of any right, power or remedy of any party under the Agreement or any other document, instrument or agreement executed in connection therewith, nor constitute a waiver of any provision contained therein, except as specifically set forth herein.
3.5 Governing Law. This Amendment, including the rights and duties of the parties hereto, shall be governed by, and construed in accordance with, the laws of the State of New York (without giving effect to the conflict of laws principles thereof).
| 2 | Amendment to the |
3.6 Successors and Assigns. This Amendment shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns.
3.7 Headings. The Section headings in this Amendment are inserted for convenience of reference only and shall not affect the meaning or interpretation of this Amendment or any provision hereof.
3.8 Counterparts. This Amendment may be executed by the parties hereto in several counterparts, each of which shall be deemed to be an original and all of which shall constitute together but one and the same agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
| 3 | Amendment to the |
IN WITNESS WHEREOF, the parties have caused this Amendment to be executed by their respective officers thereunto duly authorized, as of the date first above written.
| WORTHINGTON RECEIVABLES CORPORATION | ||
| By: | /s/ Xxxxxx X. Xxxx | |
| Name: | Xxxxxx X. Xxxx | |
| Title: | Treasurer | |
| S-1 | Amendment to the |
| ORIGINATORS: | ||
| XXXXXXXX INDUSTRIES, INC. | ||
| By: | /s/ Xxxxxx X. Xxxx | |
| Name: | Xxxxxx X. Xxxx | |
| Title: | Treasurer | |
| THE GERSTENSLAGER COMPANY | ||
| By: | /s/ Xxxxxx X. Xxxx | |
| Name: | Xxxxxx X. Xxxx | |
| Title: | Treasurer | |
| THE WORTHINGTON STEEL COMPANY, a Delaware corporation | ||
| By: | /s/ Xxxxxx X. Xxxx | |
| Name: | Xxxxxx X. Xxxx | |
| Title: | Treasurer | |
| THE WORTHINGTON STEEL COMPANY, a North Carolina corporation | ||
| By: | /s/ Xxxxxx X. Xxxx | |
| Name: | Xxxxxx X. Xxxx | |
| Title: | Treasurer | |
| THE WORTHINGTON STEEL COMPANY, an Ohio corporation | ||
| By: | /s/ Xxxxxx X. Xxxx | |
| Name: | Xxxxxx X. Xxxx | |
| Title: | Treasurer | |
| S-2 | Amendment to the |
| WORTHINGTON CYLINDERS CORPORATION | ||
| By: | /s/ Xxxxxx X. Xxxx | |
| Name: | Xxxxxx X. Xxxx | |
| Title: | Treasurer | |
| WORTHINGTON CYLINDERS WISCONSIN, LLC | ||
| By: | /s/ Xxxxxx X. Xxxx | |
| Name: | Xxxxxx X. Xxxx | |
| Title: | Treasurer | |
| WORTHINGTON STEEL COMPANY OF DECATUR, L.L.C. | ||
| By: | /s/ Xxxxxx X. Xxxx | |
| Name: | Xxxxxx X. Xxxx | |
| Title: | Treasurer | |
| WORTHINGTON STEEL COMPANY OF KENTUCKY, LLC | ||
| By: | /s/ Xxxxxx X. Xxxx | |
| Name: | Xxxxxx X. Xxxx | |
| Title: | Treasurer | |
| WORTHINGTON STEEL OF MICHIGAN, INC. | ||
| By: | /s/ Xxxxxx X. Xxxx | |
| Name: | Xxxxxx X. Xxxx | |
| Title: | Treasurer | |
| WORTHINGTON TAYLOR, INC. | ||
| By: | /s/ Xxxxxx X. Xxxx | |
| Name: | Xxxxxx X. Xxxx | |
| Title: | Treasurer | |
| S-3 | Amendment to the |
Schedule I
LIST OF ORIGINATORS
Xxxxxxxx Industries, Inc., a Pennsylvania Corporation
The Gerstenslager Company, a Michigan Corporation
The Worthington Steel Company, a Delaware corporation
The Worthington Steel Company, a North Carolina corporation
The Worthington Steel Company, an Ohio corporation
Worthington Cylinders Wisconsin, LLC, an Ohio limited liability company
Worthington Steel Company of Decatur, L.L.C., an Alabama limited liability company
Worthington Steel Company of Kentucky, LLC, a Kentucky limited liability company
Worthington Steel of Michigan, Inc., a Michigan corporation
Worthington Taylor, Inc., a Michigan corporation
Worthington Cylinders Corporation, an Ohio Corporation
| Sch. I-1 | Amendment to the |
Schedule 5.6
PROCEEDINGS
NONE
| Sch. 5.6-1 | Amendment to the |
Schedule 5.15
TRADE NAMES
| Legal Name |
Trade Names | |
| Xxxxxxxx Industries, Inc. | Cimple Steel Solutions Xxxxxxxx Design Xxxxxxxx Metal Framing Unimast Worthington Industries Worthington Steel | |
| The Gerstenslager Company | Gertenslager Company Worthington Industries Worthington Steel Company | |
| The Worthington Steel Company, a Delaware corporation | Worthington Steel – Malvern Worthington Steel Company | |
| The Worthington Steel Company, a North Carolina corporation | Worthington Steel - Rock Hill Worthington Steel Company | |
| The Worthington Steel Company, an Ohio corporation | Worthington Steel – Baltimore Worthington Steel – Columbus Worthington Steel – Delta Worthington Steel – Xxxxxx Xxxxxxxxxxx Steel – Xxxxxx Xxxxxxxxxxx Steel Company | |
| Worthington Cylinders Corporation | Worthington Cylinders Worthington Industries | |
| Worthington Cylinders Wisconsin, LLC | Worthington Cylinders Gerett Product Worthington Industries | |
| Worthington Steel Company of Decatur, L.L.C. | Worthington Steel – Decatur Worthington Steel Company The Worthington Steel Company | |
| Worthington Steel Company of Kentucky, LLC | Worthington Steel – Louisville Worthington Steel Company The Worthington Steel Company | |
| Worthington Steel of Michigan, Inc. | Worthington Steel – Xxxxxxx Xxxxxxxxxxx Steel Company The Worthington Steel Company | |
| Worthington Taylor, Inc. | Worthington Xxxxxx Xxxxxxxxxxx Steel Company Taylor Steel Worthington Steel Xxxxxx Xxxxxxxxxxx Industries | |
| Sch. 5.15-1 | Amendment to the Purchase and Sale Agreement |
The Worthington Steel Company, a Delaware corporation, was originally incorporated as Worthington Ventures, Inc., a Delaware corporation, in March 1992. The Worthington Steel Company, a Pennsylvania corporation, which held the Malvern, PA facility, merged with an into Worthington Ventures, Inc. on November 26, 1996 as part of a corporate reorganization. Worthington Ventures, Inc., a Delaware corporation, was the surviving entity and changed its name to The Worthington Steel Company.
The Worthington Steel Company, an Ohio corporation, was originally incorporated on February 10, 1998 as The Worthington Steel Company of Ohio, Inc. On May 22, 1998, as part of a corporate reorganization, its name was changed to the current name, The Worthington Steel Company.
| Sch. 5.15-2 | Amendment to the Purchase and Sale Agreement |
Schedule 6.3(f)
LOCATION OF EACH ORIGINATOR
| Originator |
Location | |
| Xxxxxxxx Industries, Inc. | Pennsylvania | |
| The Gerstenslager Company | Michigan | |
| The Worthington Steel Company, a Delaware corporation | Delaware | |
| The Worthington Steel Company, a North Carolina corporation | North Carolina | |
| The Worthington Steel Company, an Ohio corporation | Ohio | |
| Worthington Cylinders Corporation | Ohio | |
| Worthington Cylinders Wisconsin, LLC | Ohio | |
| Worthington Steel Company of Decatur, LLC | Alabama | |
| Worthington Steel Company of Kentucky, L.L.C. | Kentucky | |
| Worthington Steel Company of Michigan, Inc. | Michigan | |
| Worthington Taylor, Inc. | Michigan | |
| Sch. 6.3(f)-1 | Amendment to the Purchase and Sale Agreement |
LOCATION OF CHIEF EXECUTIVE OFFICE AND PRINCIPAL PLACE OF
BUSINESS OF EACH ORIGINATOR
| Originator |
Location | |
| Xxxxxxxx Industries, Inc. | 000 Xxxxx Xxxxxx, Xxxxx 0000 Xxxxxxxxxx, XX 00000 | |
| 0000 Xxxxxxxxx Xxxx. Xxxxxxxxx, XX 00000 | ||
| 0000 Xxxxxx Xx. Xxxxxx, XX 00000 | ||
| 0000 Xxxxxxxx Xx. Xxxxxx, XX 00000 | ||
| 0000 000xx Xx. Xxxxxxx, XX 00000 | ||
| 0000 Xxxx Xxxxxxxxxxx Xx. Xxxxxxxx, XX 00000 | ||
| 00-000 Xxxxx Xx. Xxxxxxx, XX 00000 | ||
| 000 Xxxxxxxxx Xx. XxXxxxx, XX 00000 | ||
| 00000 X. 000xx Xx. Xxxxxx, XX 00000 | ||
| 000 Xxxxxx Xx. Xxxxxxxxx, XX 00000 | ||
| 000 Xxxxxxxxx 000xx Xx. Xxxxx, XX 00000 | ||
| 000 Xxxxx 00xx Xxx. Xxxxxxx, XX 00000 | ||
| 0000 Xxxx Xxxxxx Xx. Xxxxxx, XX 00000 | ||
| 0000 Xxxx Xxxxxxx Xx. Xxxx Xxxx, XX 00000 | ||
| Sch. 6.3(f)-2 | Amendment to the Purchase and Sale Agreement |
| 0000 Xxxxx Xxxxxxx Xxx Xxxxxxxx, XX 00000 | ||
| 0000 Xxxxx Xxxxx Xxxx Xxxxxx, XX 00000 | ||
| 000 Xxxxxxxxxx Xx. Xxxxxxxx, XX 00000 | ||
| The Gerstenslager Company | 000 Xxx Xxxxxx Xxxxxx Xxxx Xxxxxxxx, XX 00000 | |
| 0000 Xxxx Xxxxxx Xxxxxx Xxxxxxx, XX 00000 | ||
| The Worthington Steel Company, a Delaware corporation | 000 Xxx Xxxxxx Xxxxxx Xxxx Xxxxxxxx, Xxxx 00000 | |
| The Worthington Steel Company, a North Carolina corporation | 000 Xxx Xxxxxx Xxxxxx Xxxx Xxxxxxxx, Xxxx 00000 | |
| 0000 Xxxx Xxxx Xxxx Xxxx, Xxxxx Xxxxxxxx 00000 | ||
| The Worthington Steel Company, an Ohio corporation | 000 Xxx Xxxxxx Xxxxxx Xxxx Xxxxxxxx, Xxxx 00000 | |
| 0000 Xxxxx Xxxxx Xxxxxxxxx, Xxxxxxxx 00000 | ||
| 0000 Xxxxxxxx Xxxxx Xxxxxxxx, Xxxx 00000 | ||
| 0000 Xxxxxx Xxxx 00 Xxxxx, Xxxx 00000 | ||
| 000 Xxxxxxxxxxx Xxxxx Xxxxxx, Xxxxxxx 00000 | ||
| 000 Xxxxxx Xxxxxx Xxxxxx, Xxxx 00000 | ||
| Worthington Cylinders Corporation | 000 Xxx Xxxxxx Xxxxxx Xxxx Xxxxxxxx, Xxxx 00000 | |
| 0000 Xxxxxxxx Xxxxx Xxxxxxxx, XX 00000 | ||
| Worthington Cylinders Wisconsin, LLC | 000 Xxx Xxxxxx Xxxxxx Xxxx Xxxxxxxx, XX 00000 | |
| Sch. 6.3(f)-3 | Amendment to the Purchase and Sale Agreement |
| 000 Xxxx Xxxxx Xxxxxx Xxxxxxx, XX 00000 | ||
| Worthington Steel Company of Decatur, LLC | 000 Xxx Xxxxxx Xxxxxx Xxxx Xxxxxxxx, Xxxx 00000 | |
| 0000 Xxx Xxx Xxxx, X.X. Xxxxxxx, Xxxxxxx 00000 | ||
| Worthington Steel Company of Kentucky, L.L.C. | 000 Xxx Xxxxxx Xxxxxx Xxxx Xxxxxxxx, Xxxx 00000 | |
| 0000 Xxxxxxxxxx Xxxxxxxxx Xxxxxxxxxx, Xxxxxxxx 00000 | ||
| Sch. 6.3(f)-4 | Amendment to the Purchase and Sale Agreement |
| Worthington Steel of Michigan, Inc. | 000 Xxx Xxxxxx Xxxxxx Xxxx Xxxxxxxx, Xxxx 00000 | |
| 000 Xxx Xxxxxx Xxxxxx Xxxx Xxxxxxxx, Xxxx 00000 | ||
| Worthington Taylor, Inc. | 000 Xxx Xxxxxx Xxxxxx Xxxx Xxxxxxxx, Xxxx 00000 | |
| 00000 Xxxxxxxxxxx Xxxxx Xxxxxx, XX 00000 | ||
| Sch. 6.3(f)-5 | Amendment to the Purchase and Sale Agreement |
LOCATION OF BOOKS AND RECORDS OF ORIGINATORS
| Originator |
Location | |
| Xxxxxxxx Industries, Inc. | 000 Xxxxx Xxxxxx, Xxxxx 0000 Xxxxxxxxxx, XX 00000 | |
| 0000 Xxxxxxxxx Xxxx. Xxxxxxxxx, XX 00000 | ||
| 0000 Xxxxxx Xx. Xxxxxx, XX 00000 | ||
| 0000 Xxxxxxxx Xx. Xxxxxx, XX 00000 | ||
| 0000 000xx Xx. Xxxxxxx, XX 00000 | ||
| 0000 Xxxx Xxxxxxxxxxx Xx. Xxxxxxxx, XX 00000 | ||
| 00-000 Xxxxx Xx. Xxxxxxx, XX 00000 | ||
| 000 Xxxxxxxxx Xx. XxXxxxx, XX 00000 | ||
| 00000 X. 000xx Xx. Xxxxxx, XX 00000 | ||
| 000 Xxxxxx Xx. Xxxxxxxxx, XX 00000 | ||
| 000 Xxxxxxxxx 000xx Xx. Xxxxx, XX 00000 | ||
| 000 Xxxxx 00xx Xxx. Xxxxxxx, XX 00000 | ||
| 0000 Xxxx Xxxxxx Xx. Xxxxxx, XX 00000 | ||
| 0000 Xxxx Xxxxxxx Xx. Xxxx Xxxx, XX 00000 | ||
| 0000 Xxxxx Xxxxxxx Xxx Xxxxxxxx, XX 00000 | ||
| 0000 Xxxxx Xxxxx Xx. Xxxxxx, XX 00000 | ||
| Sch. 6.3(f)-6 | Amendment to the Purchase and Sale Agreement |
| 000 Xxxxxxxxxx Xx. Xxxxxxxx, XX 00000 | ||
| The Gerstenslager Company | 000 Xxx Xxxxxx Xxxxxx Xxxx Xxxxxxxx, XX 00000 | |
| 0000 Xxxx Xxxxxx Xxxxxx Xxxxxxx, XX 00000 | ||
| The Worthington Steel Company, a Delaware corporation | 000 Xxx Xxxxxx Xxxxxx Xxxx Xxxxxxxx, Xxxx 00000 | |
| The Worthington Steel Company, a North Carolina corporation | 000 Xxx Xxxxxx Xxxxxx Xxxx Xxxxxxxx, Xxxx 00000 | |
| 0000 Xxxx Xxxx Xxxx Xxxx, Xxxxx Xxxxxxxx 00000 | ||
| The Worthington Steel Company, an Ohio corporation | 000 Xxx Xxxxxx Xxxxxx Xxxx Xxxxxxxx, Xxxx 00000 | |
| 0000 Xxxxx Xxxxx Xxxxxxxxx, Xxxxxxxx 00000 | ||
| 0000 Xxxxxxxx Xxxxx Xxxxxxxx, Xxxx 00000 | ||
| 0000 Xxxxxx Xxxx 00 Xxxxx, Xxxx 00000 | ||
| 000 Xxxxxxxxxxx Xxxxx Xxxxxx, Xxxxxxx 00000 | ||
| 000 Xxxxxx Xxxxxx Xxxxxx, Xxxx 00000 | ||
| Worthington Cylinders Corporation | 000 Xxx Xxxxxx Xxxxxx Xxxx Xxxxxxxx, XX 00000 | |
| 0000 Xxxxxxxx Xxxxx Xxxxxxxx, XX 00000 | ||
| Worthington Cylinders Wisconsin, LLC | 000 Xxx Xxxxxx Xxxxxx Xxxx Xxxxxxxx, Xxxx 00000 | |
| 000 Xxxx Xxxxx Xxxxxx Xxxxxxx, XX 00000 | ||
| Worthington Steel Company of Decatur, LLC | 000 Xxx Xxxxxx Xxxxxx Xxxx Xxxxxxxx, Xxxx 00000 | |
| Sch. 6.3(f)-7 | Amendment to the Purchase and Sale Agreement |
| 0000 Xxx Xxx Xxxx, X.X. Xxxxxxx, Xxxxxxx 00000 | ||
| Worthington Steel Company of Kentucky, L.L.C. | 000 Xxx Xxxxxx Xxxxxx Xxxx Xxxxxxxx, Xxxx 00000 | |
| 0000 Xxxxxxxxxx Xxxxxxxxx Xxxxxxxxxx, Xxxxxxxx 00000 | ||
| Worthington Steel of Michigan, Inc. | 000 Xxx Xxxxxx Xxxxxx Xxxx Xxxxxxxx, Xxxx 00000 | |
| 0000 X. Xxx Xxxxxx Xxxxxxx, Xxxxxxxx 00000 | ||
| Worthington Taylor, Inc. | 000 Xxx Xxxxxx Xxxxxx Xxxx Xxxxxxxx, Xxxx 00000 | |
| 00000 Xxxxxxxxxxx Xxxxx Xxxxxx, Xxxxxxxx 00000 | ||
| Sch. 6.3(f)-8 | Amendment to the Purchase and Sale Agreement |
