Exhibit 10.1
AMENDMENT NO. 5 TO RECEIVABLES
PURCHASE AGREEMENT
THIS AMENDMENT NO. 5 TO RECEIVABLES
PURCHASE AGREEMENT (this “ Amendment ”), dated
as of January 22, 2009, is entered into among WORTHINGTON
RECEIVABLES CORPORATION, a Delaware corporation, as Seller (the
“ Seller ”), WORTHINGTON INDUSTRIES, INC., an
Ohio corporation, as Servicer (the “ Servicer
”), THE MEMBERS OF THE VARIOUS PURCHASER GROUPS FROM TIME TO
TIME PARTY TO THE AGREEMENT (as defined below) (each, a “
Purchaser Group ” and collectively, the “
Purchaser Groups ”), and PNC BANK, NATIONAL
ASSOCIATION, as Administrator (the “ Administrator
”).
RECITALS
The Seller, the Servicer, each
member of each of the Purchaser Groups and the Administrator are
parties to the Receivables Purchase Agreement, dated as of
November 30, 2000 (as amended, supplemented or otherwise
modified from time to time, 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 Clause (ii) of the
definition of “Concentration Percentage” set forth in
Exhibit I to the Agreement is hereby amended by deleting the
percentage “ 16.0%” therein and substituting the
percentage “12.0%” therefore.
2.2 The definition of
“Ineligible Elimination Amounts” set forth in
Exhibit I to the Agreement is hereby amended and restated in
its entirety to read as follows:
““ Ineligible
Elimination Amounts ” means amounts which are reported by
the Servicer as inputs to the Information Package as credit memos
or aged invoices which relate to Receivables which are not Eligible
Receivables, including without limitation, Receivables (a) the
Obligor of which is not United States resident, (b) the
Obligor of which is an Affiliate of Worthington, (c) related
to the resale program, (d) which are Steel Surcharge
Receivables, (e) which are fuel surcharge receivables or
(f) the Obligor of which is listed on Schedule V hereto
(together with its subsidiaries and affiliates); provided, however,
that such amounts which are reported by the Servicer as inputs to
the Information Package as credit memos or aged invoices with
respect to each such Obligor set forth on Schedule V shall
be deemed to be “Ineligible Elimination Amounts”
beginning with the Information Package due on or prior to
February 26, 2009 (containing the January 31, 2009 data)
and continuing thereafter until the Administrator consents
otherwise.”
2.3 The definition of
“Market Street Yield Rate” set forth in Exhibit I to
the Agreement is hereby amended by deleting the phrase “
at Seller’s option” therein and substituting the phrase
“at Administrator’s option” therefore.
2.4 Clause (i)(B) of paragraph
(g) set forth in Exhibit V to the Agreement is hereby amended
by deleting the percentage “ 8.00%” therein and
substituting the percentage “6.00%”
therefore.
2.5 Clause (ii)(B) of paragraph
(g) set forth in Exhibit V to the Agreement is hereby amended
by deleting the percentage “ 7.00%” therein and
substituting the percentage “5.00%”
therefore.
2.6 The Agreement is hereby amended
by inserting a new Schedule V to the Agreement in the form
of Exhibit A hereto.
3. Representations and
Warranties . The Seller and the Servicer each hereby represents
and warrants to the Administrator and each member of the various
Purchaser Groups from time to time party to the Agreement as
follows:
(a) Representations and
Warranties . Its 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;
and
(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.
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 other than
Section 5-1401 of the New York General Obligations
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.
