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Exhibit-10(h)(ii)
AMENDMENT NO. 1 TO RECEIVABLES PURCHASE AGREEMENT
THIS AMENDMENT NO. 1 TO RECEIVABLES PURCHASE AGREEMENT (this
"AMENDMENT") dated as of May 18, 2001, is entered into among WORTHINGTON
RECEIVABLES CORPORATION (the "SELLER"), WORTHINGTON INDUSTRIES, INC. (the
"SERVICER"), THE MEMBERS OF THE VARIOUS PURCHASER GROUPS FROM TIME TO TIME PARTY
THERETO (the "PURCHASER GROUPS"), and PNC BANK, NATIONAL ASSOCIATION, as
Administrator (the "ADMINISTRATOR").
RECITALS
The Seller, the Servicer, the Purchaser Groups and Administrator are
parties to the Receivables Purchase Agreement dated as of November 30, 2000 (the
"AGREEMENT"); and
The parties hereto desire to amend the Agreement as hereinafter set
forth.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. CERTAIN DEFINED TERMS. Capitalized terms that are used herein
without definition and that are defined in EXHIBIT I to the Agreement shall have
the same meanings herein as therein defined.
2. AMENDMENTS TO AGREEMENT.
2.1 SECTION 1.2(a) of the Agreement is hereby amended by
replacing the amount "$3,000,000" with the following: "$1,000,000 or
such lesser amount as may be consented to by the Administrator"
therein.
2.2 EXHIBIT I of the Agreement is hereby amended by adding the
following definition, as alphabetically appropriate:
"SPECIFICALLY RESERVED DILUTION AMOUNT' means, for any
calendar month, the sum of the amounts reserved in the balance sheet of
each Originator for volume rebates."
2.3 The definition of "Dilution Reserve Percentage" set forth
in EXHIBIT I to the Agreement is hereby amended in its entirety as
follows:
"DILUTION RESERVE PERCENTAGE" means, on any date, the greater
of (a) 7.0%, or (b) the percentage determined by the following formula:
[[(2.0 x ED) + ((DS-ED) x DS/ED))] x DHR] + (0.50% x CS)
ED = the "Expected Dilution," which shall be equal to the 12-month
rolling average Dilution Ratio, expressed as a percentage;
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DS = the "Dilution Spike," which shall be equal to the highest one
month Dilution Ratio over the immediately preceding 12 months,
expressed as a percentage; and
CS = the aggregate credit sales made by the Originators during the
most recent calendar month divided by the Net Receivables Pool
Balance for such calendar month.
DHR = the "Dilution Horizon Ratio," which shall be equal to the
aggregate credit sales made by the Originators during the
three preceding calendar months divided by the Net Receivables
Pool Balance as of the last day of the most recent calendar
month.
2.4 CLAUSE (c) of the definition of "Eligible Receivable" set
forth in EXHIBIT I to the Agreement is hereby amended by replacing the
percentage "35%" with the percentage "20.0%" therein.
2.5 The definition of "Loss Reserve" set forth in EXHIBIT I to
the Agreement is hereby amended in its entirety as follows:
"LOSS RESERVE' means, on any date, an amount equal to (a) the
Aggregate Investment at the close of business of the Servicer on such
date MULTIPLIED by (b) (i) the Loss Reserve Percentage on such date,
DIVIDED by (ii) 100% minus the Loss Reserve Percentage on such date."
2.6 The definition of "Loss Reserve Percentage" set forth in
EXHIBIT I to the Agreement is hereby amended in its entirety as
follows:
"LOSS RESERVE PERCENTAGE' means, on any date, the greater of,
(a) 6.0% and (b) the product of (i) 2 TIMES (ii) the highest average of
the Default Ratios for any three consecutive calendar months during the
twelve most recent calendar months MULTIPLIED by (iii) (1) (A) at all
times during which the Current Days' Sales Outstanding is less than or
equal to 40, the aggregate credit sales made by the Originators during
the five most recent calendar months, and (B) at all other times, the
aggregate credit sales made by the Originators during the six most
recent calendar months DIVIDED by (2) the Net Receivables Pool Balance
as of such date."
2.7 The definition of "Net Receivables Pool Balance" set forth
in EXHIBIT I to the Agreement is hereby amended to add the following at
end thereof:
"minus (c) the Specifically Reserved Dilution Amount."
2.8 The definition of "Purchaser Limit" set forth in EXHIBIT I
to the Agreement is hereby amended by replacing the amount
"$120,000,000" with the amount "$190,000,000" therein.
2.9 PARAGRAPH (i) of SECTION 1 of EXHIBIT III to the Agreement
is hereby amended in it entirety as follows:
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"(i) The Seller has filed all tax returns and reports required
by law to have been filed by it and has paid all taxes and governmental
charges thereby shown to be owing, except any such taxes or charges
which are being diligently contested in good faith by appropriate
proceedings and for which adequate reserves in accordance with GAAP
shall have been set aside on its books."
2.10 SECTION 2 of EXHIBIT III to the Agreement is hereby
amended to add the following at the end thereof:
"(q) United States Federal income tax returns of Worthington
and its consolidated Subsidiaries have been examined and closed through
fiscal year ended May 31, 2000. Worthington and its consolidated
Subsidiaries have filed all United States Federal income tax returns
and all other material tax returns which are required to be filed by
them and have paid all taxes due pursuant to such returns or pursuant
to any assessment received by Worthington or any consolidated
Subsidiary. The charges, accruals and reserves on the books of
Worthington and its consolidated Subsidiaries in respect of taxes or
other governmental charges are, in the opinion of Worthington,
adequate."
2.11 CLAUSE (iii) of PARAGRAPH (m) of SECTION 1 of EXHIBIT IV
to the Agreement is hereby amended by replacing the amount
"$10,000,000" with the amount "$16,000,000" therein.
2.12 PARAGRAPH (p) of SECTION 1 of EXHIBIT IV to the Agreement
is hereby amended by replacing the amount "$10,000,000" with the amount
"$16,000,000" therein.
2.13 CLAUSE (i)(B) of PARAGRAPH (g) of EXHIBIT V to the
Agreement is hereby amended by replacing the percentage "5.50%" with
the percentage "8.00%" therein.
2.14 CLAUSE (ii)(A) of PARAGRAPH (g) of EXHIBIT V to the
Agreement is hereby amended by replacing the percentage "1.00%" with
the percentage "1.25%" therein.
2.15 CLAUSE (ii)(B) of PARAGRAPH (g) of EXHIBIT V to the
Agreement is hereby amended by replacing the percentage "4.50%" with
the percentage "7.00%" therein.
2.16 SCHEDULE II to the Agreement is hereby amended to add the
following:
"Lock-box Bank Lock-Box Account
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Mellon Bank, N.A. 40087 1930736
360943
National City Bank 510 840819190
Wachovia Bank, N.A. 751621 8739069463"
3. REPRESENTATIONS AND WARRANTIES. The Seller hereby represents and
warrants to the Administrator and each member of the various Purchaser Groups
from time to time party thereto as follows:
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(a) REPRESENTATIONS AND WARRANTIES. The representations and
warranties contained in Exhibit III of the Agreement are true and
correct as of the date hereof (unless stated to relate solely to an
earlier date, in which case such representations or warranties were
true and correct as of such earlier date).
(b) ENFORCEABILITY. The execution and delivery by each of the
Seller and the Servicer of this Amendment, and the performance of each
of its obligations under this Amendment and the Agreement, as amended
hereby, are within each of its corporate powers and have been duly
authorized by all necessary corporate action on each of its parts. This
Amendment and the Agreement, as amended hereby, are each of the
Seller's and the Servicer's valid and legally binding obligations,
enforceable in accordance with its terms.
(c) NO DEFAULT. Both before and immediately after giving
effect to this Amendment and the transactions contemplated hereby, no
Termination Event or Unmatured Termination Event exists or shall exist.
4. EFFECT OF AMENDMENT. All provisions of the Agreement, as expressly
amended and modified by this Amendment, shall remain in full force and effect.
After this Amendment becomes effective, all references in the Agreement (or in
any other Transaction Document) to "this Agreement", "hereof", "herein" or words
of similar effect referring to the Agreement shall be deemed to be references to
the Agreement as amended by this Amendment. This Amendment shall not be deemed,
either expressly or impliedly, to waive, amend or supplement any provision of
the Agreement other than as set forth herein.
5. EFFECTIVENESS. This Amendment shall become effective as of the date
hereof upon receipt by the Administrator of counterparts of this Amendment
(whether by facsimile or otherwise) executed by each of the other parties
hereto, in form and substance satisfactory to the Administrator in its sole
discretion.
6. COUNTERPARTS. This Amendment may be executed in any number of
counterparts and by different parties on separate counterparts, each of which
when so executed shall be deemed to be an original and all of which when taken
together shall constitute but one and the same instrument.
7. GOVERNING LAW. This Amendment shall be governed by, and construed in
accordance with, the internal laws of the State of New York (without regard to
any otherwise applicable principles of conflicts of law).
8. SECTION HEADINGS. The various headings of this Amendment are
included for convenience only and shall not affect the meaning or interpretation
of this Amendment, the Agreement or any provision hereof or thereof.
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IN WITNESS WHEREOF, the parties have executed this Amendment as of the
date first written above.
WORTHINGTON RECEIVABLES
CORPORATION, as Seller
By /s/ Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx
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Title: Vice President
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WORTHINGTON INDUSTRIES, INC.,
as Servicer
By /s/ Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx
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Title: Vice President and Chief Financial Officer
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MARKET STREET FUNDING CORPORATION,
as a Purchaser
By /s/ Xxxxxx Xxxxxxxxxx
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Name: Xxxxxx Xxxxxxxxxx
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Title: Vice President
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PNC BANK, NATIONAL ASSOCIATION,
as Administrator and as a Purchaser Agent
By: /s/ Xxxx X. Xxxxxxxx
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Name: Xxxx X. Xxxxxxxx
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Title: Vice President
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