AMENDMENT NO. 4 Dated as of February 28, 2011 to PURCHASE AND SALE AGREEMENT Dated as of November 30, 2000
Exhibit 10.4
EXECUTION COPY
AMENDMENT NO. 4
Dated as of February 28, 2011
to
Dated as of November 30, 2000
This AMENDMENT NO. 4 (this “Amendment”), dated as of February 28, 2011, is entered into among the VARIOUS ENTITIES LISTED ON SCHEDULE I HERETO AS ORIGINATORS (each, a “Remaining Originator”; and collectively, the “Remaining Originators”), XXXXXXXX INDUSTRIES, INC., a Pennsylvania corporation (the “Released Originator”), and WORTHINGTON RECEIVABLES CORPORATION, a Delaware corporation (the “Company”).
RECITALS
WHEREAS, the Remaining Originators and the Released Originator have entered into that certain Purchase and Sale Agreement dated as of November 30, 2000 (as amended, supplemented or otherwise modified through the date hereof, 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 (including terms incorporated therein by reference).
SECTION 2. Amendments to Agreement. The Agreement is hereby amended as follows:
2.1 The parties hereto hereby agree that upon the effectiveness of this Amendment, the Released Originator shall no longer be party to the Agreement or any other Transaction Document and shall no longer have any obligations or rights thereunder (other than such obligations which by their express terms survive termination of the Agreement or such other Transaction Document, as applicable).
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 5.15 of the Agreement is hereby amended and restated in its entirety as set forth on Schedule 5.15 attached hereto.
2.4 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.
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SECTION 3. Authorization to File Financing Statements. Upon the effectiveness of this Amendment, each of the Released Originator and the Company hereby authorizes the Administrator to file (at the expense of the Company) one or more UCC-3 amendments in the form of Exhibit A hereto.
SECTION 4. Miscellaneous.
4.1 Representations and Warranties.
(a) Each Remaining Originator and the Company hereby makes, with respect to itself, the following representations and warranties to the other parties hereto, the Administrator and each member of each Purchaser Group:
(i) Representations and Warranties. The representations and warranties contained in Article V of the Agreement of such Remaining 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);
(ii) 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; and
(iii) Termination Event. No Purchase and Sale Termination Event or Unmatured Purchase and Sale Termination Event has occurred and is continuing.
(b) The Company hereby represents and warrants to the other parties hereto, the Administrator and each member of each Purchaser Group, with respect to itself, that:
(i) Representations and Warranties. Its representations and warranties contained in Exhibit III of the Receivables Purchase 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); and
(ii) 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.
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4.2 Effectiveness. This Amendment shall become effective as of the date hereof upon (i) receipt by the Company and the Administrator of: (a) counterparts of this Amendment, (b) counterparts of the Assignment Agreement, dated as of the date hereof, between the Seller and Xxxxxxxx Industries, Inc. (and acknowledged and consented to by PNC and the Purchaser), in each case (whether by facsimile or otherwise) executed by each of the other parties hereto or thereto, as applicable, and (c) such other documents, agreements, instruments and opinions as the Administrator may request and (ii) the cancellation and return to the Company (with a copy to the Administrator) of the original Company Note in favor of the Released Originator.
4.3 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.
4.4 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.
4.5 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.
4.6 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 conflicts of law principles thereof other than Sections 5-1401 and 5-1402 of the New York General Obligations Law).
4.7 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.
4.8 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.
4.9 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.
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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/ Xxxx Xxxxxxx | |||
Name: | Xxxx Xxxxxxx | |||
Title: | Treasurer |
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REMAINING ORIGINATORS: | ||||
THE GERSTENSLAGER COMPANY | ||||
By: | /s/ Xxxx Xxxxxxxx | |||
Name: | Xxxx Xxxxxxxx | |||
Title: | Vice President | |||
THE WORTHINGTON STEEL COMPANY, a Delaware corporation | ||||
By: | /s/ Xxxx Xxxxxxxx | |||
Name: | Xxxx Xxxxxxxx | |||
Title: | Vice President | |||
THE WORTHINGTON STEEL COMPANY, a North Carolina corporation | ||||
By: | /s/ Xxxx Xxxxxxxx | |||
Name: | Xxxx Xxxxxxxx | |||
Title: | Vice President | |||
THE WORTHINGTON STEEL COMPANY, an Ohio corporation | ||||
By: | /s/ Xxxx Xxxxxxxx | |||
Name: | Xxxx Xxxxxxxx | |||
Title: | Vice President |
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WORTHINGTON CYLINDERS CORPORATION | ||||
By: | /s/ Xxxx Xxxxxxxx | |||
Name: | Xxxx Xxxxxxxx | |||
Title: | Vice President | |||
WORTHINGTON CYLINDERS WISCONSIN, LLC | ||||
By: | /s/ Xxxx Xxxxxxxx | |||
Name: | Xxxx Xxxxxxxx | |||
Title: | Vice President | |||
WORTHINGTON STEEL COMPANY OF DECATUR, L.L.C. | ||||
By: | /s/ Xxxx Xxxxxxxx | |||
Name: | Xxxx Xxxxxxxx | |||
Title: | Vice President | |||
WORTHINGTON STEEL COMPANY OF KENTUCKY LLC | ||||
By: | /s/ Xxxx Xxxxxxxx | |||
Name: | Xxxx Xxxxxxxx | |||
Title: | Vice President | |||
WORTHINGTON STEEL OF MICHIGAN, INC. | ||||
By: | /s/ Xxxx Xxxxxxxx | |||
Name: | Xxxx Xxxxxxxx | |||
Title: | Vice President |
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RELEASED ORIGINATOR:
XXXXXXXX INDUSTRIES, INC. | ||||
By: | /s/ Xxxx Xxxxxxxx | |||
Name: | Xxxx Xxxxxxxx | |||
Title: | Vice President |
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SCHEDULE I
Schedule I
LIST OF ORIGINATORS
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 Cylinders Corporation, an Ohio corporation
Sch. I-1 | 4th Amendment to the | |||
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SCHEDULE 5.15
Schedule 5.15
TRADE NAMES
Legal Name |
Trade Names | |
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 |
Sch. 5.15-1 | 4th Amendment to the | |||
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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 | 4th Amendment to the | |||
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SCHEDULE 6.1(f)
Schedule 6.1(f)
LOCATION OF EACH ORIGINATOR
Originator |
Location | |
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 |
Sch. 6.1(f)-1 | 4th Amendment to the | |||
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LOCATION OF CHIEF EXECUTIVE OFFICE AND PRINCIPAL PLACE OF
BUSINESS OF EACH ORIGINATOR
Originator |
Location | |
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 | |
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 | ||
000 Xxxx Xxxxx Xxxxxx | ||
Xxxxxxx, XX 00000 |
Sch. 6.1(f)-2 | 4th Amendment to the | |||
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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 | |
Worthington Steel of Michigan, Inc. | 000 Xxx Xxxxxx Xxxxxx Xxxx Xxxxxxxx, Xxxx 00000 |
Sch. 6.1(f)-3 | 4th Amendment to the | |||
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LOCATION OF BOOKS AND RECORDS OF ORIGINATORS
Originator |
Location | |
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 | |
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 | ||
0000 Xxx Xxx Xxxx, X.X. | ||
Xxxxxxx, Xxxxxxx 00000 |
Sch. 6.1(f)-4 | 4th Amendment to the | |||
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Worthington Steel Company of Kentucky, L.L.C. | 000 Xxx Xxxxxx Xxxxxx Xxxx | |
Xxxxxxxx, Xxxx 00000 | ||
Worthington Steel of Michigan, Inc. | 000 Xxx Xxxxxx Xxxxxx Xxxx | |
Xxxxxxxx, Xxxx 00000 |
Sch. 6.1(f)-5 | 4th Amendment to the | |||
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EXHIBIT A
UCC-3s TO BE FILED
(attached)
Exh. A-1 | 4th Amendment to the | |||
Purchase and Sale Agreement |
UCC FINANCING STATEMENT AMENDMENT
FOLLOW INSTRUCTIONS (front and back) CAREFULLY
A. NAME & PHONE OF CONTACT AT FILER [optional]
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B. SEND ACKNOWLEDGMENT TO: (Name and Address) | ||||||||||
THE ABOVE SPACE IS FOR FILING OFFICE USE ONLY |
1a. INITIAL FINANCING STATEMENT FILE # 33970639 Filed 5/21/2001 |
1b. ¨ |
This FINANCING STATEMENT AMENDMENT is to be filed [for record] (or recorded) in the REAL ESTATE RECORDS. |
2. x | TERMINATION: Effectiveness of the Financing Statement identified above is terminated with respect to security interest(s) of the Secured Party authorizing this Termination Statement. | |||||||||||||||
3. ¨ | CONTINUATION: Effectiveness of the Financing Statement identified above with respect to security interest(s) of the Secured Party authorizing this Continuation Statement is continued for the additional period provided by applicable law. | |||||||||||||||
4. ¨ | ASSIGNMENT (full or partial): Give name of assignee in item 7a or 7b and address of assignee in item 7c; and also give name of assignor in item 9. | |||||||||||||||
5. | AMENDMENT (PARTY INFORMATION): This Amendment affects ¨ Debtor or ¨ Secured Party of record. Check only one, of these two boxes.
Also check one of the following three boxes and provide appropriate information in items 6 and/or 7. |
¨ | CHANGE name and/or address: Please refer to the detailed instructions in regards to changing the name/address of a party.
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¨ | DELETE name: Give record name to be deleted in item 6a or 6b. | ¨ | ADD name: Complete item 7a or 7b, and also item 7c, also complete items 7e-7g (if applicable). |
6. | CURRENT RECORD INFORMATION: |
OR | 6a. ORGANIZATION’S NAME
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6b. INDIVIDUAL’S LAST NAME
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FIRST NAME | MIDDLE NAME | SUFFIX | |||||||||||||
7. | CHANGED (NEW) OR ADDED INFORMATION: | |||||||||||||||
OR | 7a. ORGANIZATION’S NAME
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7b. INDIVIDUAL’S LAST NAME
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FIRST NAME | MIDDLE NAME | SUFFIX | |||||||||||||
7c. | MAILING ADDRESS
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CITY | STATE | POSTAL CODE | COUNTRY | |||||||||||
7d. | SEE INSTRUCTIONS
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ADD’L INFO RE ORGANIZATION DEBTOR |
7e. TYPE OF ORGANIZATION | 7f. JURISDICTION OF ORGANIZATION | 7g. ORGANIZATIONAL ID #, if any | ¨NONE | ||||||||||
8. | AMENDMENT (COLLATERAL CHANGE): check only one box. | |||||||||||||||
Describe collateral ¨ deleted of ¨ added, or give entire ¨ restated collateral description, or describe collateral ¨ assigned.
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9. | NAME OF SECURED PARTY OF RECORD AUTHORIZING THIS AMENDMENT (name of assignor, if this is an Assignment). If this is an Amendment authorized by a Debtor which adds collateral or adds the authorizing Debtor, or if this is a Termination authorized by a Debtor, check here ¨ and enter name of DEBTOR authorizing this Amendment. | |||||||||||||||
OR | 9a. ORGANIZATION’S NAME PNC Bank, National Association, as Agent | |||||||||||||||
9b. INDIVIDUAL’S LAST NAME
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FIRST NAME | MIDDLE NAME | SUFFIX | |||||||||||||
10. | OPTIONAL FILER REFERENCE DATA File with SOS/Pennsylvania (Debtor: Xxxxxxxx Industries, Inc.) (00691175-116) #700014582 |
FILING OFFICE COPY — UCC FINANCING STATEMENT AMENDMENT (FORM UCC3) (REV. 05/22/02)