UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
(Mark One)
☒ QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended August 31, 2022
or
☐ TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the transition period from ___________ to ___________
Commission File Number 001-08399
WORTHINGTON INDUSTRIES, INC.
(Exact name of registrant as specified in its charter)
Ohio |
|
31-1189815 |
(State or other jurisdiction of incorporation or organization) |
|
(I.R.S. Employer Identification No.) |
|
|
|
200 Old Wilson Bridge Road, Columbus, Ohio |
|
43085 |
(Address of principal executive offices) |
|
(Zip Code) |
(614) 438-3210 |
(Registrant’s telephone number, including area code) |
Not Applicable |
(Former name, former address and former fiscal year, if changed since last report) |
Securities registered pursuant to Section 12(b) of the Act:
Title of each class |
Trading Symbol(s) |
Name of each exchange on which registered |
Common Shares, Without Par Value |
WOR |
New York Stock Exchange |
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes ☒ No ☐
Indicate by check mark whether the registrant has submitted electronically every Interactive Data File required to be submitted pursuant to Rule 405 of Regulation S-T (§ 232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit such files). Yes ☒ No ☐
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
Large accelerated filer |
☒ |
|
Accelerated filer |
☐ |
Non-accelerated filer |
☐ |
|
Smaller reporting company |
☐ |
|
|
|
Emerging growth company |
☐ |
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). Yes ☐ No ☒
APPLICABLE ONLY TO CORPORATE ISSUERS:
Indicate the number of shares outstanding of each of the issuer’s classes of common stock, as of the latest practicable date. On September 30, 2022, the number of Common Shares, without par value, issued and outstanding was 49,711,335.
TABLE OF CONTENTS
|
ii |
|||
|
|
|
||
|
|
|||
|
|
|
|
|
|
Item 1. |
|
|
|
|
|
|
|
|
|
|
Consolidated Balance Sheets – August 31, 2022 and May 31, 2022 |
|
1 |
|
|
|
|
|
|
|
Consolidated Statements of Earnings – Three Months Ended August 31, 2022 and 2021 |
|
2 |
|
|
|
|
|
|
|
Consolidated Statements of Comprehensive Income – Three Months Ended August 31, 2022 and 2021 |
|
3 |
|
|
|
|
|
|
|
Consolidated Statements of Cash Flows – Three Months Ended August 31, 2022 and 2021 |
|
4 |
|
|
|
5 |
|
|
|
|
|
|
|
Item 2. |
Management’s Discussion and Analysis of Financial Condition and Results of Operations |
|
20 |
|
|
|
|
|
|
Item 3. |
|
28 |
|
|
|
|
|
|
|
Item 4. |
|
28 |
|
|
|
|
||
|
|
|||
|
|
|
|
|
|
Item 1. |
|
29 |
|
|
|
|
|
|
|
Item 1A. |
|
29 |
|
|
|
|
|
|
|
Item 2. |
|
29 |
|
|
|
|
|
|
|
Item 3. |
|
30 |
|
|
|
|
|
|
|
Item 4. |
|
30 |
|
|
|
|
|
|
|
Item 5. |
|
30 |
|
|
|
|
|
|
|
Item 6. |
|
31 |
|
|
|
|
||
|
33 |
i
Safe Harbor Statement
Selected statements contained in this Quarterly Report on Form 10-Q (this “Form 10-Q”), including, without limitation, in “PART I – Item 2. – Management’s Discussion and Analysis of Financial Condition and Results of Operations,” constitute “forward-looking statements” as that term is used in the Private Securities Litigation Reform Act of 1995 (the “PSLRA”). Forward-looking statements reflect our current expectations, estimates or projections concerning future results or events. These statements are often identified by the use of forward-looking words or phrases such as “believe,” “expect,” “anticipate,” “may,” “could,” “intend,” “estimate,” “plan,” “foresee,” “likely,” “will,” “should,” “forecast,” “project,” or other similar words or phrases. These forward-looking statements include, without limitation, statements relating to:
Because they are based on beliefs, estimates and assumptions, forward-looking statements are inherently subject to risks and uncertainties that could cause actual results to differ materially from those projected. Any number of factors could affect actual results, including, without limitation, those that follow:
ii
iii
We note these factors for investors as contemplated by the PSLRA. It is impossible to predict or identify all potential risk factors. Consequently, you should not consider the foregoing list to be a complete set of all potential risks and uncertainties. Any forward-looking statements in this Form 10-Q are based on current information as of the date of this Form 10-Q, and we assume no obligation to correct or update any such statements in the future, except as required by applicable law.
iv
PART I. FINANCIAL INFORMATION
Item 1. – Financial Statements
WORTHINGTON INDUSTRIES, INC.
CONSOLIDATED BALANCE SHEETS
(In thousands)
|
(Unaudited) |
|
|
|
|
||
|
August 31, |
|
|
May 31, |
|
||
|
2022 |
|
|
2022 |
|
||
Assets |
|
|
|
|
|
||
Current assets: |
|
|
|
|
|
||
Cash and cash equivalents |
$ |
35,768 |
|
|
$ |
34,485 |
|
Receivables, less allowances of $1,615 and $1,292 at August 31, 2022 |
|
|
|
|
|
||
and May 31, 2022, respectively |
|
818,332 |
|
|
|
857,493 |
|
Inventories: |
|
|
|
|
|
||
Raw materials |
|
357,926 |
|
|
|
323,609 |
|
Work in process |
|
178,472 |
|
|
|
255,019 |
|
Finished products |
|
190,737 |
|
|
|
180,512 |
|
Total inventories |
|
727,135 |
|
|
|
759,140 |
|
Income taxes receivable |
|
2,331 |
|
|
|
20,556 |
|
Assets held for sale |
|
21,491 |
|
|
|
20,318 |
|
Prepaid expenses and other current assets |
|
100,246 |
|
|
|
93,661 |
|
Total current assets |
|
1,705,303 |
|
|
|
1,785,653 |
|
Investments in unconsolidated affiliates |
|
252,609 |
|
|
|
327,381 |
|
Operating lease assets |
|
103,587 |
|
|
|
98,769 |
|
Goodwill |
|
411,902 |
|
|
|
401,469 |
|
Other intangible assets, net of accumulated amortization of $97,648 and |
|
|
|
|
|
||
$93,973 at August 31, 2022 and May 31, 2022, respectively |
|
326,634 |
|
|
|
299,017 |
|
Other assets |
|
26,604 |
|
|
|
34,394 |
|
Property, plant and equipment: |
|
|
|
|
|
||
Land |
|
49,771 |
|
|
|
51,483 |
|
Buildings and improvements |
|
299,586 |
|
|
|
303,269 |
|
Machinery and equipment |
|
1,199,664 |
|
|
|
1,196,806 |
|
Construction in progress |
|
63,672 |
|
|
|
59,363 |
|
Total property, plant and equipment |
|
1,612,693 |
|
|
|
1,610,921 |
|
Less: accumulated depreciation |
|
929,190 |
|
|
|
914,581 |
|
Total property, plant and equipment, net |
|
683,503 |
|
|
|
696,340 |
|
Total assets |
$ |
3,510,142 |
|
|
$ |
3,643,023 |
|
|
|
|
|
|
|
||
Liabilities and equity |
|
|
|
|
|
||
Current liabilities: |
|
|
|
|
|
||
Accounts payable |
$ |
580,509 |
|
|
$ |
668,438 |
|
Short-term borrowings |
|
15,554 |
|
|
|
47,997 |
|
Accrued compensation, contributions to employee benefit plans and related taxes |
|
83,662 |
|
|
|
117,530 |
|
Dividends payable |
|
17,453 |
|
|
|
15,988 |
|
Other accrued items |
|
67,094 |
|
|
|
70,125 |
|
Current operating lease liabilities |
|
12,141 |
|
|
|
11,618 |
|
Income taxes payable |
|
7,629 |
|
|
|
300 |
|
Current maturities of long-term debt |
|
248 |
|
|
|
265 |
|
Total current liabilities |
|
784,290 |
|
|
|
932,261 |
|
Other liabilities |
|
109,428 |
|
|
|
115,991 |
|
Distributions in excess of investment in unconsolidated affiliate |
|
84,994 |
|
|
|
81,149 |
|
Long-term debt |
|
690,011 |
|
|
|
696,345 |
|
Noncurrent operating lease liabilities |
|
92,760 |
|
|
|
88,183 |
|
Deferred income taxes, net |
|
101,687 |
|
|
|
115,132 |
|
Total liabilities |
|
1,863,170 |
|
|
|
2,029,061 |
|
Shareholders' equity - controlling interest |
|
1,512,600 |
|
|
|
1,480,752 |
|
Noncontrolling interests |
|
134,372 |
|
|
|
133,210 |
|
Total equity |
|
1,646,972 |
|
|
|
1,613,962 |
|
Total liabilities and equity |
$ |
3,510,142 |
|
|
$ |
3,643,023 |
|
See condensed notes to consolidated financial statements.
1
WORTHINGTON INDUSTRIES, INC.
CONSOLIDATED STATEMENTS OF EARNINGS
(In thousands, except per share amounts)
(Unaudited)
|
Three Months Ended |
|
|||||
|
August 31, |
|
|||||
|
2022 |
|
|
2021 |
|
||
Net sales |
$ |
1,408,665 |
|
|
$ |
1,110,818 |
|
Cost of goods sold |
|
1,239,291 |
|
|
|
891,444 |
|
Gross margin |
|
169,374 |
|
|
|
219,374 |
|
Selling, general and administrative expense |
|
103,448 |
|
|
|
95,851 |
|
Impairment of long-lived assets |
|
312 |
|
|
|
- |
|
Restructuring and other income, net |
|
(1,100 |
) |
|
|
(12,274 |
) |
Operating income |
|
66,714 |
|
|
|
135,797 |
|
Other income (expense): |
|
|
|
|
|
||
Miscellaneous income (expense), net |
|
(5,086 |
) |
|
|
630 |
|
Interest expense |
|
(8,598 |
) |
|
|
(7,718 |
) |
Equity in net income of unconsolidated affiliates |
|
31,712 |
|
|
|
52,916 |
|
Earnings before income taxes |
|
84,742 |
|
|
|
181,625 |
|
Income tax expense |
|
19,498 |
|
|
|
40,150 |
|
Net earnings |
|
65,244 |
|
|
|
141,475 |
|
Net earnings attributable to noncontrolling interests |
|
1,162 |
|
|
|
8,984 |
|
Net earnings attributable to controlling interest |
$ |
64,082 |
|
|
$ |
132,491 |
|
|
|
|
|
|
|
||
Basic |
|
|
|
|
|
||
Weighted average common shares outstanding |
|
48,478 |
|
|
|
50,852 |
|
Earnings per share attributable to controlling interest |
$ |
1.32 |
|
|
$ |
2.61 |
|
|
|
|
|
|
|
||
Diluted |
|
|
|
|
|
||
Weighted average common shares outstanding |
|
49,238 |
|
|
|
51,865 |
|
Earnings per share attributable to controlling interest |
$ |
1.30 |
|
|
$ |
2.55 |
|
|
|
|
|
|
|
||
Common shares outstanding at end of period |
|
48,526 |
|
|
|
50,438 |
|
|
|
|
|
|
|
||
Cash dividends declared per share |
$ |
0.31 |
|
|
$ |
0.28 |
|
See condensed notes to consolidated financial statements.
2
WORTHINGTON INDUSTRIES, INC.
CONSOLIDATED STATEMENTS OF COMPREHENSIVE INCOME
(In thousands)
(Unaudited)
|
Three Months Ended |
|
|||||
|
August 31, |
|
|||||
|
2022 |
|
|
2021 |
|
||
Net earnings |
$ |
65,244 |
|
|
$ |
141,475 |
|
Other comprehensive income (loss) |
|
|
|
|
|
||
Foreign currency translation, net of tax |
|
(10,100 |
) |
|
|
(3,975 |
) |
Pension liability adjustment, net of tax |
|
2,939 |
|
|
|
- |
|
Cash flow hedges, net of tax |
|
(13,301 |
) |
|
|
(299 |
) |
Other comprehensive loss |
|
(20,462 |
) |
|
|
(4,274 |
) |
Comprehensive income |
|
44,782 |
|
|
|
137,201 |
|
Comprehensive income attributable to noncontrolling interests |
|
1,162 |
|
|
|
8,984 |
|
Comprehensive income attributable to controlling interest |
$ |
43,620 |
|
|
$ |
128,217 |
|
See condensed notes to consolidated financial statements.
3
WORTHINGTON INDUSTRIES, INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS
(In thousands)
(Unaudited)
|
Three Months Ended |
|
|||||
|
August 31, |
|
|||||
|
2022 |
|
|
2021 |
|
||
Operating activities: |
|
|
|
|
|
||
Net earnings |
$ |
65,244 |
|
|
$ |
141,475 |
|
Adjustments to reconcile net earnings to net cash (used) provided by operating activities: |
|
|
|
|
|
||
Depreciation and amortization |
|
28,001 |
|
|
|
22,064 |
|
Impairment of long-lived assets |
|
312 |
|
|
|
- |
|
Provision for (benefit from) deferred income taxes |
|
(11,056 |
) |
|
|
1,366 |
|
Bad debt expense |
|
342 |
|
|
|
179 |
|
Equity in net income of unconsolidated affiliates, net of distributions |
|
42,845 |
|
|
|
(33,218 |
) |
Net gain on sale of assets |
|
(769 |
) |
|
|
(12,706 |
) |
Stock-based compensation |
|
4,236 |
|
|
|
3,303 |
|
Changes in assets and liabilities, net of impact of acquisitions: |
|
|
|
|
|
||
Receivables |
|
37,419 |
|
|
|
(31,868 |
) |
Inventories |
|
41,167 |
|
|
|
(163,682 |
) |
Accounts payable |
|
(101,581 |
) |
|
|
46,668 |
|
Accrued compensation and employee benefits |
|
(33,868 |
) |
|
|
(46,177 |
) |
Income taxes payable |
|
7,329 |
|
|
|
35,857 |
|
Other operating items, net |
|
1,417 |
|
|
|
(13,073 |
) |
Net cash provided (used) by operating activities |
|
81,038 |
|
|
|
(49,812 |
) |
|
|
|
|
|
|
||
Investing activities: |
|
|
|
|
|
||
Investment in property, plant and equipment |
|
(21,477 |
) |
|
|
(23,925 |
) |
Investment in non-marketable equity securities |
|
(110 |
) |
|
|
- |
|
Acquisitions, net of cash acquired |
|
(56,088 |
) |
|
|
(104,750 |
) |
Proceeds from sale of investment in ArtiFlex |
|
36,095 |
|
|
|
- |
|
Proceeds from sale of assets, net of selling costs |
|
11,755 |
|
|
|
26,685 |
|
Net cash used by investing activities |
|
(29,825 |
) |
|
|
(101,990 |
) |
|
|
|
|
|
|
||
Financing activities: |
|
|
|
|
|
||
Net repayments of short-term borrowings |
|
(32,443 |
) |
|
|
- |
|
Principal payments on long-term obligations |
|
(137 |
) |
|
|
(392 |
) |
Proceeds from issuance of common shares, net of tax withholdings |
|
(3,466 |
) |
|
|
(4,091 |
) |
Payments to noncontrolling interests |
|
- |
|
|
|
(9,197 |
) |
Repurchase of common shares |
|
- |
|
|
|
(60,885 |
) |
Dividends paid |
|
(13,884 |
) |
|
|
(14,698 |
) |
Net cash used by financing activities |
|
(49,930 |
) |
|
|
(89,263 |
) |
|
|
|
|
|
|
||
Increase (decrease) in cash and cash equivalents |
|
1,283 |
|
|
|
(241,065 |
) |
Cash and cash equivalents at beginning of period |
|
34,485 |
|
|
|
640,311 |
|
Cash and cash equivalents at end of period |
$ |
35,768 |
|
|
$ |
399,246 |
|
See condensed notes to consolidated financial statements.
4
WORTHINGTON INDUSTRIES, INC.
CONDENSED Notes to Consolidated Financial Statements
(Unaudited)
Note A – Basis of Presentation
The consolidated financial statements include the accounts of Worthington Industries, Inc. and consolidated subsidiaries (collectively, “we,” “our,” “Worthington,” or the “Company”). Investments in unconsolidated affiliates are accounted for using the equity method. Significant intercompany accounts and transactions have been eliminated.
We own controlling interests in the following four joint ventures: Spartan Steel Coating, L.L.C. (“Spartan”) (52%); TWB Company, L.L.C. (“TWB”) (55%); Worthington Samuel Coil Processing LLC (“Samuel” or “Samuel joint venture”) (63%); and Worthington Specialty Processing (“WSP”) (51%). These joint ventures are consolidated with the equity owned by the other joint venture members shown as noncontrolling interests in our consolidated balance sheets, and the other joint venture members’ portions of net earnings and other comprehensive income (“OCI”) shown as net earnings or comprehensive income attributable to noncontrolling interests in our consolidated statements of earnings and consolidated statements of comprehensive income, respectively. Investments in unconsolidated affiliates are accounted for using the equity method. See further discussion of our unconsolidated affiliates in “Note D – Investments in Unconsolidated Affiliates”.
These unaudited consolidated financial statements have been prepared in accordance with accounting principles generally accepted in the U.S. for interim financial information and with the instructions to Form 10-Q and Article 10 of Regulation S-X of the SEC. Accordingly, they do not include all of the information and notes required by accounting principles generally accepted in the U.S. (“U.S. GAAP”) for complete financial statements. In the opinion of management, all adjustments, which are of a normal and recurring nature except those which have been disclosed elsewhere in this Form 10-Q, necessary for a fair presentation of the consolidated financial statements for these interim periods, have been included. Operating results for the three months ended August 31, 2022 are not necessarily indicative of the results that may be expected for the fiscal year ending May 31, 2023 (“fiscal 2023”). For further information, refer to the consolidated financial statements and notes thereto included in the Annual Report on Form 10-K for the fiscal year ended May 31, 2022 (“fiscal 2022”) of Worthington Industries, Inc. (the “2022 Form 10-K”).
The preparation of consolidated financial statements in conformity with U.S. GAAP requires management to make estimates and assumptions that affect the amounts reported in the consolidated financial statements and accompanying notes. Actual results could differ from those estimates.
Note B – Inventory
Due to the recent decline in steel pricing, the net realizable value of our inventory was lower than the cost reflected in our records at August 31, 2022. Accordingly, we recorded a lower of cost or net realizable value adjustment during the first quarter of fiscal 2023 totaling $4,488,000 to reflect this lower value. The entire amount of the adjustment was attributed to our Steel Processing operating segment and was recorded in cost of goods sold in the consolidated statement of earnings for the three months ended August 31, 2022.
Note C – Revenue Recognition
The following table summarizes net sales by operating segment and product class for the periods presented:
|
Three Months Ended |
|
|||||
|
August 31, |
|
|||||
(in thousands) |
2022 |
|
|
2021 |
|
||
Steel Processing |
|
|
|
|
|
||
Direct |
$ |
1,002,135 |
|
|
$ |
788,028 |
|
Toll |
|
36,745 |
|
|
|
34,782 |
|
Total |
|
1,038,880 |
|
|
|
822,810 |
|
|
|
|
|
|
|
||
Consumer Products (1) |
|
188,703 |
|
|
|
147,783 |
|
Building Products (1) |
|
150,323 |
|
|
|
114,743 |
|
Sustainable Energy Solutions (1) |
|
30,759 |
|
|
|
25,482 |
|
Total |
$ |
1,408,665 |
|
|
$ |
1,110,818 |
|
(1) The products contained within each of these operating segments have similar production processes, require substantially the same raw materials, use similar equipment, and serve similar purposes. Therefore, we believe the products within each of these segments are appropriately combined for purposes of the disclosure requirements prescribed by ASC 280 and ASC 606.
5
The following table summarizes the over time revenue for the periods presented:
|
Three Months Ended |
|
|||||
|
August 31, |
|
|||||
(in thousands) |
2022 |
|
|
2021 |
|
||
Steel Processing - toll |
$ |
36,745 |
|
|
$ |
34,782 |
|
The following table summarizes the unbilled receivables at the dates indicated:
|
|
|
August 31, |
|
|
May 31, |
|
||
(in thousands) |
Balance Sheet Classification |
|
2022 |
|
|
2022 |
|
||
Unbilled receivables |
Receivables |
|
$ |
5,485 |
|
|
$ |
5,001 |
|
There were no contract assets at either of the dates indicated above.
We have elected the optional exemption, which allows for the exclusion of the amounts for remaining performance obligations that are a part of contracts with an expected duration of one year or less. As of August 31, 2022, there were no unsatisfied or partially satisfied performance obligations related to contracts with an expected duration greater than one year.
Note D – Investments in Unconsolidated Affiliates
Investments in affiliated companies that we do not control, either through majority ownership or otherwise, are accounted for using the equity method. At August 31, 2022, we held noncontrolling investments in the following affiliated companies: Clarkwestern Dietrich Building Systems LLC (“ClarkDietrich”) (25%); Serviacero Planos, S. de R. L. de C.V. (“Serviacero Worthington”) (50%); Taxi Workhorse Holdings, LLC (“Workhorse”) (20%); and Worthington Armstrong Venture (“WAVE”) (50%).
On August 3, 2022, the Company sold its 50% noncontrolling equity interest in ArtiFlex Manufacturing, LLC (“ArtiFlex”) to the unaffiliated joint venture member for approximately $42,086,000, after adjustments for closing debt and final net working capital. Approximately $6,000,000 of the total cash proceeds were attributed to real property in Wooster, Ohio, with a net book value of approximately $6,300,000. This real property was owned by Worthington and leased to ArtiFlex prior to closing of the transaction. The Company recognized a pre-tax loss of approximately $15,759,000 in equity income related to the equity portion of the transaction.
We received distributions from unconsolidated affiliates totaling $74,557,000 during the three months ended August 31, 2022. We have received cumulative distributions from WAVE in excess of our investment balance amounting to $84,994,000, which is shown as a separate liability on our consolidated balance sheet at August 31, 2022. In accordance with the applicable accounting guidance, we reclassified the negative investment balance to the liabilities section of our consolidated balance sheets. We will continue to record our equity in the net income of WAVE as a debit to the investment account, and if the investment balance becomes positive, it will again be shown as an asset on our consolidated balance sheets. If it becomes probable that any excess distribution may not be returned (upon joint venture liquidation or otherwise), we will recognize any negative investment balance classified as a liability as income immediately.
We use the “cumulative earnings” approach for determining cash flow presentation of distributions from our unconsolidated joint ventures. Distributions received are included in our consolidated statements of cash flows as operating activities, unless the cumulative distributions received, less distributions received in prior periods that were determined to be returns of investment, exceed our portion of the cumulative equity in the net earnings of the joint venture, in which case the excess distributions are deemed to be returns of the investment and are classified as investing activities in our consolidated statements of cash flows.
6
The following tables summarize combined financial information for our unconsolidated affiliates as of the dates, and for the periods presented:
|
August 31, |
|
|
May 31, |
|
||
(in thousands) |
2022 |
|
|
2022 |
|
||
|
|
|
|
|
|
||
Cash and cash equivalents |
$ |
18,675 |
|
|
$ |
68,563 |
|
Other current assets |
|
1,004,636 |
|
|
|
1,148,029 |
|
Noncurrent assets |
|
293,467 |
|
|
|
369,608 |
|
Total assets |
$ |
1,316,778 |
|
|
$ |
1,586,200 |
|
|
|
|
|
|
|
||
Current liabilities |
|
295,494 |
|
|
|
345,097 |
|
Short-term borrowings |
|
5,000 |
|
|
|
5,943 |
|
Current maturities of long-term debt |
|
33,923 |
|
|
|
33,054 |
|
Long-term debt |
|
303,838 |
|
|
|
306,814 |
|
Other noncurrent liabilities |
|
71,715 |
|
|
|
76,437 |
|
Equity |
|
606,808 |
|
|
|
818,855 |
|
Total liabilities and equity |
$ |
1,316,778 |
|
|
$ |
1,586,200 |
|
|
Three Months Ended |
|
|||||
|
August 31, |
|
|||||
(in thousands) |
2022 |
|
|
2021 |
|
||
Net sales |
$ |
823,942 |
|
|
$ |
744,995 |
|
Gross margin |
|
181,405 |
|
|
|
189,674 |
|
Operating income |
|
137,827 |
|
|
|
145,988 |
|
Depreciation and amortization |
|
8,188 |
|
|
|
3,215 |
|
Interest expense |
|
2,680 |
|
|
|
2,461 |
|
Income tax expense |
|
2,110 |
|
|
|
7,896 |
|
Net earnings |
|
133,238 |
|
|
|
138,888 |
|
Note E – Impairment of Long-Lived Assets
Impairment of Long-Lived Assets
During the first quarter of fiscal 2023, we committed to plans to liquidate certain fixed assets at our toll processing facility in Cleveland, Ohio. As all of the criteria for classification of assets held for sale were met during the current quarter, the net assets have been presented separately as assets held for sale in our consolidated balance sheet as of August 31, 2022. In accordance with the applicable accounting guidance, the net assets were recorded at the lower of net book value or fair market value less costs to sell. As a result, a pre-tax impairment of $312,000 was recognized during the current quarter of fiscal 2023.
Note F – Restructuring and Other Income, Net
We consider restructuring activities to be programs whereby we fundamentally change our operations, such as closing and consolidating manufacturing facilities or moving manufacturing of a product to another location. Restructuring activities may also involve substantial realignment of the management structure of a business unit in response to changing market conditions.
7
A progression of the liabilities associated with our restructuring activities, combined with a reconciliation to the restructuring and other income, net financial statement caption, in our consolidated statement of earnings for the three months ended August 31, 2022 is summarized below:
|
|
Balance, as of |
|
|
|
|
|
|
|
|
|
|
|
Balance, as of |
|
|||||
(in thousands) |
|
May 31, 2022 |
|
|
Income |
|
|
Payments |
|
|
Adjustments |
|
|
August 31, 2022 |
|
|||||
Early retirement and severance |
|
$ |
541 |
|
|
$ |
77 |
|
|
$ |
(422 |
) |
|
$ |
- |
|
|
$ |
196 |
|
Facility exit and other costs |
|
|
- |
|
|
|
- |
|
|
|
- |
|
|
|
- |
|
|
|
- |
|
|
|
$ |
541 |
|
|
$ |
77 |
|
|
$ |
(422 |
) |
|
$ |
- |
|
|
$ |
196 |
|
Net gain on sale of assets (1) |
|
|
|
|
|
(1,177 |
) |
|
|
|
|
|
|
|
|
|
||||
Restructuring and other income, net |
|
|
|
|
$ |
(1,100 |
) |
|
|
|
|
|
|
|
|
|
The total liability associated with our restructuring activities as of August 31, 2022 is expected to be paid in the next twelve months.
Note G – Contingent Liabilities and Commitments
Legal Proceedings
We are defendants in certain legal actions. In the opinion of management, the outcome of these actions, which is not clearly determinable at the present time, would not significantly affect our consolidated financial position or future results of operations. We also believe that environmental issues will not have a material effect on our capital expenditures, consolidated financial position or future results of operations.
Note H – Guarantees
We do not have guarantees that we believe are reasonably likely to have a material current or future effect on our consolidated financial condition, changes in financial condition, revenues or expenses, results of operations, liquidity, capital expenditures or capital resources. We had in place $16,637,000 of outstanding stand-by letters of credit issued to third-party service providers at August 31, 2022. No amounts were drawn against these letters of credit at August 31, 2022. We are also party to an operating lease for an aircraft in which we have guaranteed a residual value at lease termination. The maximum obligation under the terms of this guarantee was approximately $17,866,000 at August 31, 2022.
8
Note I – Debt
We maintain a $500,000,000 multi-year revolving credit facility (the “Credit Facility”) with a group of lenders. On August 20, 2021, we amended and restated the Credit Facility, extending the final maturity from February 16, 2023 to August 20, 2026 while keeping in place the $500,000,000 aggregate commitments under the Credit Facility. Borrowings under the Credit Facility have maturities of up to one year. We have the option to borrow at rates equal to an applicable margin over the Daily LIBOR Rate, the Prime Rate of PNC Bank, National Association or the Overnight Bank Funding Rate. The Credit Facility contains customary LIBOR benchmark replacement language. The applicable margin is determined by our credit rating. There were no borrowings outstanding under the Credit Facility at August 31, 2022, leaving $500,000,000 available for future use.
We also maintain a revolving trade accounts receivable securitization facility (the “AR Facility”). Pursuant to the terms of the AR Facility, certain of our subsidiaries sell or contribute all of their eligible accounts receivable and other related assets without recourse, on a revolving basis, to WRC, a wholly-owned, consolidated, bankruptcy-remote indirect subsidiary. In turn, WRC sells, on a revolving basis, up to $175,000,000 of undivided ownership interests in this pool of accounts receivable to a third-party bank. We retain an undivided interest in this pool and are subject to risk of loss based on the collectability of the receivables from this retained interest. Because the amount eligible to be sold excludes receivables more than 120 days past due, receivables offset by an allowance for doubtful accounts due to bankruptcy or other cause, concentrations over certain limits with specific customers and certain reserve amounts, we believe additional risk of loss is minimal. As of August 31, 2022, borrowings outstanding under the AR Facility totaled $11,200,000, leaving $163,800,000 available for future use.
Note J – Other Comprehensive Income (Loss)
The following table summarizes the tax effects on each component of OCI for the periods presented:
|
Three Months Ended |
|
|||||||||||||||||||||
|
August 31, 2022 |
|
|
August 31, 2021 |
|
||||||||||||||||||
|
Before-Tax |
|
|
Tax |
|
|
Net-of-Tax |
|
|
Before-Tax |
|
|
Tax |
|
|
Net-of-Tax |
|
||||||
(in thousands) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||||||
Foreign currency translation |
$ |
(9,519 |
) |
|
|
(581 |
) |
|
$ |
(10,100 |
) |
|
$ |
(3,617 |
) |
|
|
(358 |
) |
|
$ |
(3,975 |
) |
Pension liability adjustment |
|
3,725 |
|
|
|
(786 |
) |
|
|
2,939 |
|
|
|
- |
|
|
|
- |
|
|
|
- |
|
Cash flow hedges |
|
(17,097 |
) |
|
|
3,796 |
|
|
|
(13,301 |
) |
|
|
(199 |
) |
|
|
(100 |
) |
|
|
(299 |
) |
Other comprehensive income (loss) |
$ |
(22,891 |
) |
|
$ |
2,429 |
|
|
$ |
(20,462 |
) |
|
$ |
(3,816 |
) |
|
$ |
(458 |
) |
|
$ |
(4,274 |
) |
Note K – Changes in Equity
The following tables summarize the changes in equity by component and in total for the periods presented:
|
|
Controlling Interest |
|
|
|
|
|
|
|
|||||||||||||||
|
|
|
|
|
Accumulated |
|
|
|
|
|
|
|
|
|
|
|
|
|
||||||
|
|
|
|
|
Other |
|
|
|
|
|
|
|
|
|
|
|
|
|
||||||
|
|
Additional |
|
|
Comprehensive |
|
|
|
|
|
|
|
|
Non- |
|
|
|
|
||||||
|
|
Paid-in |
|
|
Loss, |
|
|
Retained |
|
|
|
|
|
controlling |
|
|
|
|
||||||
(in thousands) |
|
Capital |
|
|
Net of Tax |
|
|
Earnings |
|
|
Total |
|
|
Interests |
|
|
Total |
|
||||||
Balance at May 31, 2022 |
|
$ |
273,439 |
|
|
$ |
(22,850 |
) |
|
$ |
1,230,163 |
|
|
$ |
1,480,752 |
|
|
$ |
133,210 |
|
|
$ |
1,613,962 |
|
Net earnings |
|
|
- |
|
|
|
- |
|
|
|
64,082 |
|
|
|
64,082 |
|
|
|
1,162 |
|
|
|
65,244 |
|
Other comprehensive loss |
|
|
- |
|
|
|
(20,462 |
) |
|
|
- |
|
|
|
(20,462 |
) |
|
|
- |
|
|
|
(20,462 |
) |
Common shares issued, net of withholding tax |
|
|
(3,466 |
) |
|
|
- |
|
|
|
- |
|
|
|
(3,466 |
) |
|
|
- |
|
|
|
(3,466 |
) |
Common shares in non-qualified plans |
|
|
136 |
|
|
|
- |
|
|
|
- |
|
|
|
136 |
|
|
|
- |
|
|
|
136 |
|
Stock-based compensation |
|
|
6,976 |
|
|
|
- |
|
|
|
- |
|
|
|
6,976 |
|
|
|
- |
|
|
|
6,976 |
|
Cash dividends declared |
|
|
- |
|
|
|
- |
|
|
|
(15,418 |
) |
|
|
(15,418 |
) |
|
|
- |
|
|
|
(15,418 |
) |
Balance at August 31, 2022 |
|
$ |
277,085 |
|
|
$ |
(43,312 |
) |
|
$ |
1,278,827 |
|
|
$ |
1,512,600 |
|
|
$ |
134,372 |
|
|
$ |
1,646,972 |
|
9
|
|
Controlling Interest |
|
|
|
|
|
|
|
|||||||||||||||
|
|
|
|
|
Accumulated |
|
|
|
|
|
|
|
|
|
|
|
|
|
||||||
|
|
|
|
|
Other |
|
|
|
|
|
|
|
|
|
|
|
|
|
||||||
|
|
Additional |
|
|
Comprehensive |
|
|
|
|
|
|
|
|
Non- |
|
|
|
|
||||||
|
|
Paid-in |
|
|
Income, |
|
|
Retained |
|
|
|
|
|
controlling |
|
|
|
|
||||||
(in thousands) |
|
Capital |
|
|
Net of Tax |
|
|
Earnings |
|
|
Total |
|
|
Interests |
|
|
Total |
|
||||||
Balance at May 31, 2021 |
|
$ |
282,790 |
|
|
$ |
45,387 |
|
|
$ |
1,070,016 |
|
|
$ |
1,398,193 |
|
|
$ |
153,502 |
|
|
$ |
1,551,695 |
|
Net earnings |
|
|
- |
|
|
|
- |
|
|
|
132,491 |
|
|
|
132,491 |
|
|
|
8,984 |
|
|
|
141,475 |
|
Other comprehensive loss |
|
|
- |
|
|
|
(4,274 |
) |
|
|
- |
|
|
|
(4,274 |
) |
|
|
- |
|
|
|
(4,274 |
) |
Common shares issued, net of withholding tax |
|
|
(4,091 |
) |
|
|
- |
|
|
|
- |
|
|
|
(4,091 |
) |
|
|
- |
|
|
|
(4,091 |
) |
Common shares in non-qualified plans |
|
|
89 |
|
|
|
- |
|
|
|
- |
|
|
|
89 |
|
|
|
- |
|
|
|
89 |
|
Stock-based compensation |
|
|
6,324 |
|
|
|
- |
|
|
|
- |
|
|
|
6,324 |
|
|
|
- |
|
|
|
6,324 |
|
Purchases and retirement of common shares |
|
|
(5,477 |
) |
|
|
- |
|
|
|
(55,408 |
) |
|
|
(60,885 |
) |
|
|
- |
|
|
|
(60,885 |
) |
Cash dividends declared |
|
|
- |
|
|
|
- |
|
|
|
(14,504 |
) |
|
|
(14,504 |
) |
|
|
- |
|
|
|
(14,504 |
) |
Dividends to noncontrolling interests |
|
|
- |
|
|
|
- |
|
|
|
- |
|
|
|
- |
|
|
|
(9,197 |
) |
|
|
(9,197 |
) |
Balance at August 31, 2021 |
|
$ |
279,635 |
|
|
$ |
41,113 |
|
|
$ |
1,132,595 |
|
|
$ |
1,453,343 |
|
|
$ |
153,289 |
|
|
$ |
1,606,632 |
|
The following table summarizes the changes in accumulated other comprehensive income (loss) for the periods presented:
|
|
|
|
|
|
|
|
|
|
|
Accumulated |
|
||||
|
|
Foreign |
|
|
Pension |
|
|
|
|
|
Other |
|
||||
|
|
Currency |
|
|
Liability |
|
|
Cash Flow |
|
|
Comprehensive |
|
||||
(in thousands) |
|
Translation |
|
|
Adjustment |
|
|
Hedges |
|
|
Loss |
|
||||
Balance as of May 31, 2022 |
|
$ |
(15,310 |
) |
|
$ |
(6,244 |
) |
|
$ |
(1,296 |
) |
|
$ |
(22,850 |
) |
Other comprehensive loss before reclassifications |
|
|
(9,519 |
) |
|
|
(1,049 |
) |
|
|
(14,207 |
) |
|
|
(24,775 |
) |
Reclassification adjustments to net earnings (a) |
|
|
- |
|
|
|
4,774 |
|
|
|
(2,890 |
) |
|
|
1,884 |
|
Income tax effect |
|
|
(581 |
) |
|
|
(786 |
) |
|
|
3,796 |
|
|
|
2,429 |
|
Balance as of August 31, 2022 |
|
$ |
(25,410 |
) |
|
$ |
(3,305 |
) |
|
$ |
(14,597 |
) |
|
$ |
(43,312 |
) |
|
|
|
|
|
|
|
|
|
|
|
Accumulated |
|
||||
|
|
Foreign |
|
|
Pension |
|
|
|
|
|
Other |
|
||||
|
|
Currency |
|
|
Liability |
|
|
Cash Flow |
|
|
Comprehensive |
|
||||
(in thousands) |
|
Translation |
|
|
Adjustment |
|
|
Hedges |
|
|
Income |
|
||||
Balance as of May 31, 2021 |
|
$ |
1,779 |
|
|
$ |
(15,955 |
) |
|
$ |
59,563 |
|
|
$ |
45,387 |
|
Other comprehensive income (loss) before reclassifications |
|
|
(3,617 |
) |
|
|
- |
|
|
|
35,220 |
|
|
|
31,603 |
|
Reclassification adjustments to net earnings (a) |
|
|
- |
|
|
|
- |
|
|
|
(35,419 |
) |
|
|
(35,419 |
) |
Income tax effect |
|
|
(358 |
) |
|
|
- |
|
|
|
(100 |
) |
|
|
(458 |
) |
Balance as of August 31, 2021 |
|
$ |
(2,196 |
) |
|
$ |
(15,955 |
) |
|
$ |
59,264 |
|
|
$ |
41,113 |
|
10
Note L – Stock-Based Compensation
Non-Qualified Stock Options
During the three months ended August 31, 2022, we granted non-qualified stock options covering a total of 54,500 common shares under our stock-based compensation plans. The weighted average exercise price of $60.19 per share was equal to the market price of the underlying common shares at the grant date. The fair value of these stock options, based on the Black-Scholes option-pricing model, calculated at the grant date, was $19.73 per share. The calculated pre-tax stock-based compensation expense for these stock options is $1,075,080 and will be recognized on a straight-line basis over the three-year vesting period, net of any forfeitures. The following assumptions were used to value these stock options:
Dividend yield |
|
|
2.10 |
% |
Expected volatility |
|
|
41.62 |
% |
Risk-free interest rate |
|
|
1.11 |
% |
Expected term (years) |
|
|
6.0 |
|
Expected volatility is based on the historical volatility of Worthington Industries, Inc.’s common shares and the risk-free interest rate is based on the U.S. Treasury strip rate for the expected term of the stock options. The expected term was developed using historical exercise experience.
Service-Based Restricted Common Shares
During the three months ended August 31, 2022, we granted an aggregate of 126,800 service-based restricted common shares under our stock-based compensation plans, which generally vest three years after their grant date. The fair value of these restricted common shares was equal to the closing market price of the underlying common shares on the date of grant, or $47.10 per share. The calculated pre-tax stock-based compensation expense for these restricted common shares is $5,897,000 and will be recognized on a straight-line basis over the three-year service-based vesting period.
Market-Based Restricted Common Shares
On June 24, 2022, we granted 10,000 market-based restricted common shares to one key employee under one of our stock-based compensation plans. Vesting of these restricted common shares is contingent upon the average closing price of the common shares reaching $65.00 during any 90 consecutive day period during the five-year period following the date of grant and completion of a three-year service vesting period. The grant date fair value of these restricted common shares, as determined by a Monte Carlo simulation model, was $35.49 per share. The calculated pre-tax stock-based compensation expense for these market-based restricted common shares is $355,000 and will be recognized on a straight-line basis over the three-year service-based vesting period. The following assumptions were used to determine the grant-date fair value and the derived service period for these restricted common shares:
Performance Share Awards
We have awarded performance shares to certain key employees under our stock-based compensation plans. These performance shares are earned based on the level of achievement with respect to corporate targets for cumulative corporate economic value added, earnings per share growth and, in the case of business unit executives, a business unit adjusted earnings before interest and taxes target, in each case for the three-year periods ending May 31, 2023, 2024 and 2025. These performance share awards will be paid, to the extent earned, in common shares of Worthington Industries, Inc. in the fiscal quarter following the end of the applicable three-year performance period. The fair values of our performance shares are determined by the closing market prices of the underlying common shares at the respective grant dates of the performance shares and the pre-tax stock-based compensation expense is based on our periodic assessment of the probability of the targets being achieved and our estimate of the number of common shares that will ultimately be issued. During the three months ended August 31, 2022, we granted performance share awards covering an aggregate of 58,100 common shares (at target levels). The calculated pre-tax stock-based compensation expense for these performance shares is $2,695,000. The ultimate pre-tax stock-based compensation expense to be recognized over the three-year performance period on all tranches will vary based on our periodic assessment of the probability of the targets being achieved.
Note M – Income Taxes
Income tax expense for the three months ended August 31, 2022 and 2021 reflected estimated annual effective income tax rates of 23.9% and 23.3%, respectively, and exclude any impact from the inclusion of net earnings attributable to noncontrolling interests in our consolidated statements of earnings. Net earnings attributable to noncontrolling interests are a result of our Samuel, Spartan, TWB and WSP consolidated joint ventures. The net earnings attributable to the noncontrolling interests in Samuel, Spartan, TWB and WSP’s U.S. operations do not generate tax expense to Worthington since the investors in Samuel, Spartan, TWB and WSP’s U.S. operations are taxed directly based on the earnings attributable to them. The tax expense of TWB’s wholly-owned foreign corporations is reported in our consolidated income tax expense. Management is required to estimate the annual effective income tax rate based upon its forecast of annual pre-tax income for domestic and foreign operations. Our actual effective income tax rate for fiscal 2023 could be materially different from the forecasted rate as of August 31, 2022.
Note N – Earnings per Share
The following table sets forth the computation of basic and diluted earnings per share attributable to controlling interest for the periods presented:
|
Three Months Ended |
|
|||||
|
August 31, |
|
|||||
(in thousands, except per share amounts) |
2022 |
|
|
2021 |
|
||
Numerator (basic & diluted): |
|
|
|
|
|
||
Net earnings attributable to controlling interest - |
|
|
|
|
|
||
income available to common shareholders |
$ |
64,082 |
|
|
$ |
132,491 |
|
Denominator: |
|
|
|
|
|
||
Denominator for basic earnings per share attributable to |
|
|
|
|
|
||
controlling interest - weighted average common shares |
|
48,478 |
|
|
|
50,852 |
|
Effect of dilutive securities |
|
760 |
|
|
|
1,013 |
|
Denominator for diluted earnings per share attributable to |
|
|
|
|
|
||
controlling interest - adjusted weighted average common shares |
|
49,238 |
|
|
|
51,865 |
|
|
|
|
|
|
|
||
Basic earnings per share attributable to controlling interest |
$ |
1.32 |
|
|
$ |
2.61 |
|
Diluted earnings per share attributable to controlling interest |
$ |
1.30 |
|
|
$ |
2.55 |
|
Stock options covering an aggregate of 117,000 and 40,283 common shares for the three months ended August 31, 2022 and 2021, respectively, have been excluded from the computation of diluted earnings per share because the effect would have been anti-dilutive for the applicable period.
12
Note O – Segment Operations
The profit measure that the Company’s Chief Operating Decision Maker ("CODM") uses to assess segment performance and allocate resources is adjusted earnings (loss) before interest and taxes (“adjusted EBIT”). EBIT is calculated by adding interest expense and income tax expense to net earnings attributable to controlling interest. Adjusted EBIT excludes impairment and restructuring charges (gains), but may also exclude other items that management believes are not reflective of, and thus should not be included when evaluating, the performance of the Company’s ongoing operations. Adjusted EBIT is a non-GAAP financial measure and is used by management to evaluate segment performance, engage in financial and operational planning and determine incentive compensation because we believe that this financial measure provides additional perspective and, in some circumstances is more closely correlated to, the performance of the Company’s ongoing operations.
The following table presents summarized financial information for our reportable operating segments for the periods indicated.
|
Three Months Ended August 31, 2022 |
|
|||||||||||||||||||||
(in thousands) |
Steel Processing |
|
|
Consumer Products |
|
|
Building Products |
|
|
Sustainable Energy Solutions |
|
|
Other |
|
|
Consolidated |
|
||||||
Net sales |
$ |
1,038,880 |
|
|
$ |
188,703 |
|
|
$ |
150,323 |
|
|
$ |
30,759 |
|
|
$ |
- |
|
|
$ |
1,408,665 |
|
Impairment of long-lived assets |
|
312 |
|
|
|
- |
|
|
|
- |
|
|
|
- |
|
|
|
- |
|
|
|
312 |
|
Restructuring and other expense (income), net |
|
78 |
|
|
|
- |
|
|
|
- |
|
|
|
- |
|
|
|
(1,178 |
) |
|
|
(1,100 |
) |
Miscellaneous income (expense), net |
|
184 |
|
|
|
(35 |
) |
|
|
222 |
|
|
|
(86 |
) |
|
|
(5,371 |
) |
|
|
(5,086 |
) |
Equity in net income of unconsolidated affiliates |
|
1,770 |
|
|
|
- |
|
|
|
43,866 |
|
|
|
- |
|
|
|
(13,924 |
) |
|
|
31,712 |
|
Adjusted earnings (loss) before interest and taxes (1)(2) |
|
34,913 |
|
|
|
20,934 |
|
|
|
52,734 |
|
|
|
(1,393 |
) |
|
|
5,145 |
|
|
|
112,333 |
|
|
Three Months Ended August 31, 2021 |
|
|||||||||||||||||||||
(in thousands) |
Steel Processing |
|
|
Consumer Products |
|
|
Building Products |
|
|
Sustainable Energy Solutions |
|
|
Other |
|
|
Consolidated |
|
||||||
Net sales |
$ |
822,810 |
|
|
$ |
147,783 |
|
|
$ |
114,743 |
|
|
$ |
25,482 |
|
|
$ |
- |
|
|
$ |
1,110,818 |
|
Restructuring and other income, net |
|
(12,131 |
) |
|
|
- |
|
|
|
- |
|
|
|
(143 |
) |
|
|
- |
|
|
|
(12,274 |
) |
Miscellaneous income (expense), net |
|
30 |
|
|
|
49 |
|
|
|
(73 |
) |
|
|
(59 |
) |
|
|
683 |
|
|
|
630 |
|
Equity in net income of unconsolidated affiliates |
|
9,349 |
|
|
|
- |
|
|
|
42,993 |
|
|
|
- |
|
|
|
574 |
|
|
|
52,916 |
|
Adjusted earnings before interest and taxes (3) |
|
107,692 |
|
|
|
20,555 |
|
|
|
48,754 |
|
|
|
(2,554 |
) |
|
|
(416 |
) |
|
|
174,031 |
|
Total assets for each of our operating segments as of the dates indicated were as follows:
|
August 31, |
|
|
May 31, |
|
||
|
2022 |
|
|
2022 |
|
||
Total assets |
|
|
|
|
|
||
Steel Processing |
$ |
2,016,113 |
|
|
$ |
2,082,522 |
|
Consumer Products |
|
636,208 |
|
|
|
577,026 |
|
Building Products |
|
648,502 |
|
|
|
681,188 |
|
Sustainable Energy Solutions |
|
107,421 |
|
|
|
114,084 |
|
Other |
|
101,898 |
|
|
|
188,203 |
|
Total assets |
$ |
3,510,142 |
|
|
$ |
3,643,023 |
|
13
Note P – Acquisitions
Level5® Tools, LLC
On June 2, 2022, we acquired Level5® Tools, LLC ("Level5"), a leading provider of drywall tools and related accessories. The total purchase price was $59,321,000, including $2,000,000 attributed to an earnout agreement with the selling shareholders, that provides for up to an additional $25,000,000 of cash consideration should certain earnings targets be met annually through calendar 2024. The earnout agreement also requires continued employment of a selling shareholder during the duration of the earnout period. Accordingly, payments to this key employee, to the extent earned, will be accounted for as post-combination compensation expense. During the three months ended August 31, 2022, compensation expense of $525,000 has been accrued within selling, general, and administrative expense in the consolidated statements of earnings related to the earnout.
Level5 is being operated as part of the Consumer Products operating segment and its results have been included in our consolidated statements of earnings since the date of acquisition. Proforma results, including the acquired business since the beginning of fiscal 2022, would not be materially different from the reported results.
The information included herein has been based on the preliminary allocation of the purchase price using estimates of the fair value and useful lives of the assets acquired. The purchase price allocation is subject to further adjustment until all pertinent information regarding the assets acquired is fully evaluated by us, including but not limited to, the fair value accounting.
The assets acquired and liabilities assumed were recognized at their estimated acquisition-date fair values, with goodwill representing the excess of the purchase price over the fair value of the net identifiable assets acquired. In connection with the acquisition of Level5, we identified and valued the following intangible assets:
(in thousands) |
|
|
|
|
|
|
Category |
|
Amount |
|
|
Useful Life (Years) |
|
Tradename |
|
$ |
13,500 |
|
|
Indefinite |
Customer relationships |
|
|
13,300 |
|
|
10 |
Technological know-how |
|
|
6,500 |
|
|
20 |
Non-compete agreement |
|
|
280 |
|
|
3 |
Total acquired identifiable intangible assets |
|
$ |
33,580 |
|
|
|
The purchase price includes the fair values of other assets that were not identifiable, not separately recognizable under accounting rules (e.g., assembled workforce) or of immaterial value. The purchase price also includes strategic and synergistic benefits (investment value) specific to us, which resulted in a purchase price in excess of the fair value of the identifiable net assets. This additional investment value resulted in goodwill which will be deductible by us for income tax purposes.
The following table summarizes the consideration transferred and the estimated fair value assigned to the assets acquired and liabilities assumed at the acquisition date. These amounts reflect various preliminary fair value estimates and assumptions, including preliminary work performed by a third-party valuation specialist, and are subject to change within the measurement period as the valuation is finalized. The primary areas of preliminary purchase price allocation subject to change relate to the valuation of acquired tangible assets and liabilities, identification and valuation of residual goodwill and tax effects of acquired assets and assumed liabilities.
14
(in thousands) |
|
Preliminary |
|
|
Cash and cash equivalents |
|
$ |
1,515 |
|
Accounts receivable |
|
|
2,860 |
|
Inventories |
|
|
9,161 |
|
Prepaid expenses |
|
|
64 |
|
Property, plant and equipment |
|
|
273 |
|
Intangible assets |
|
|
33,580 |
|
Operating lease assets |
|
|
377 |
|
Total identifiable assets |
|
|
47,830 |
|
Accounts payable |
|
|
(3,175 |
) |
Accrued expenses |
|
|
(904 |
) |
Current operating lease liabilities |
|
|
(111 |
) |
Noncurrent operating lease liabilities |
|
|
(266 |
) |
Net identifiable assets |
|
|
43,374 |
|
Goodwill |
|
|
15,947 |
|
Total purchase price |
|
|
59,321 |
|
Less: Fair value of earnout |
|
|
(2,000 |
) |
Plus: Estimated net working capital deficit |
|
|
282 |
|
Cash purchase price |
|
$ |
57,603 |
|
Note Q – Derivative Financial Instruments and Hedging Activities
We utilize derivative financial instruments to primarily manage exposure to certain risks related to our ongoing operations. The primary risks managed through the use of derivative financial instruments include interest rate risk, foreign currency exchange rate risk and commodity price risk. While certain of our derivative financial instruments are designated as hedging instruments, we also enter into derivative financial instruments that are designed to hedge a risk, but are not designated as hedging instruments and, therefore, do not qualify for hedge accounting. These derivative financial instruments are adjusted to current fair value through earnings at the end of each period.
Interest Rate Risk Management – We are exposed to the impact of interest rate changes. Our objective is to manage the impact of interest rate changes on cash flows and the market value of our borrowings. We utilize a mix of debt maturities along with both fixed-rate and variable-rate debt to manage changes in interest rates. In addition, we enter into interest rate swaps and treasury locks to further manage our exposure to interest rate variations related to our borrowings and to lower our overall borrowing costs.
Foreign Currency Exchange Rate Risk Management – We conduct business in several major international currencies and are, therefore, subject to risks associated with changing foreign currency exchange rates. We enter into various contracts that change in value as foreign currency exchange rates change to manage this exposure. Such contracts limit exposure to both favorable and unfavorable currency exchange rate fluctuations. The translation of foreign currencies into U.S. dollars also subjects us to exposure related to fluctuating currency exchange rates; however, derivative financial instruments are not used to manage this risk.
Commodity Price Risk Management – We are exposed to changes in the price of certain commodities, including steel, natural gas, copper, zinc and other raw materials, and our utility requirements. Our objective is to reduce earnings and cash flow volatility associated with forecasted purchases and sales of these commodities to allow management to focus its attention on business operations. Accordingly, we enter into derivative financial instruments to manage the associated price risk.
We are exposed to counterparty credit risk on all of our derivative financial instruments. Accordingly, we have established and maintain strict counterparty credit guidelines. We have credit support agreements in place with certain counterparties to limit our credit exposure. These agreements require either party to post cash collateral if its cumulative market position exceeds a predefined liability threshold. Amounts posted to the margin accounts accrue interest at market rates and are required to be refunded in the period in which the cumulative market position falls below the required threshold. We do not have significant exposure to any one counterparty, and management believes the overall risk of loss is remote and, in any event, would not be material.
Refer to “Note R – Fair Value” for additional information regarding the accounting treatment for our derivative financial instruments, as well as how fair value is determined.
15
The following table summarizes the fair value of our derivative instruments and the respective lines in which they were recorded in the consolidated balance sheet at August 31, 2022:
|
|
Asset Derivatives |
|
|
Liability Derivatives |
|
||||||
|
|
Balance |
|
|
|
|
Balance |
|
|
|
||
|
|
Sheet |
|
Fair |
|
|
Sheet |
|
Fair |
|
||
(in thousands) |
|
Location |
|
Value |
|
|
Location |
|
Value |
|
||
Derivatives designated as hedging instruments: |
|
|
|
|
|
|
|
|
|
|
||
Commodity contracts |
|
Receivables |
|
$ |
20 |
|
|
Accounts payable |
|
$ |
11,378 |
|
|
|
Other assets |
|
|
- |
|
|
Other liabilities |
|
|
96 |
|
|
|
|
|
|
20 |
|
|
|
|
|
11,474 |
|
Foreign currency exchange contracts |
|
Other assets |
|
|
138 |
|
|
Accounts payable |
|
|
- |
|
Total |
|
|
|
$ |
158 |
|
|
|
|
$ |
11,474 |
|
|
|
|
|
|
|
|
|
|
|
|
||
Derivatives not designated as hedging instruments: |
|
|
|
|
|
|
|
|
||||
Commodity contracts |
|
Receivables |
|
$ |
8,034 |
|
|
Accounts payable |
|
$ |
5,893 |
|
|
|
Other assets |
|
|
153 |
|
|
Other liabilities |
|
|
73 |
|
|
|
|
|
|
8,187 |
|
|
|
|
|
5,966 |
|
Foreign currency exchange contracts |
|
Other assets |
|
|
- |
|
|
Accounts payable |
|
|
276 |
|
Total |
|
|
|
|
8,187 |
|
|
|
|
|
6,242 |
|
|
|
|
|
|
|
|
|
|
|
|
||
Total derivative instruments |
|
|
|
$ |
8,345 |
|
|
|
|
$ |
17,716 |
|
The amounts in the table above reflect the fair value of our derivative instruments on a net basis where allowable under master netting arrangements. Had these amounts been recognized on a gross basis, the impact would have been a $9,937,000 increase in “Receivables” with a corresponding increase in “Accounts payable.”
The following table summarizes the fair value of our derivative instruments and the respective lines in which they were recorded in the consolidated balance sheet at May 31, 2022:
|
|
Asset Derivatives |
|
|
Liability Derivatives |
|
||||||
|
|
Balance |
|
|
|
|
Balance |
|
|
|
||
|
|
Sheet |
|
Fair |
|
|
Sheet |
|
Fair |
|
||
(in thousands) |
|
Location |
|
Value |
|
|
Location |
|
Value |
|
||
Derivatives designated as hedging instruments: |
|
|
|
|
|
|
|
|
|
|
||
Commodity contracts |
|
Receivables |
|
$ |
1,040 |
|
|
Accounts payable |
|
$ |
4,517 |
|
|
|
Other assets |
|
|
- |
|
|
Other liabilities |
|
|
48 |
|
|
|
|
|
|
1,040 |
|
|
|
|
|
4,565 |
|
Foreign currency exchange contracts |
|
Receivables |
|
|
- |
|
|
Accounts payable |
|
|
- |
|
|
|
Other assets |
|
|
- |
|
|
Other liabilities |
|
|
17 |
|
|
|
|
|
|
- |
|
|
|
|
|
17 |
|
Total |
|
|
|
$ |
1,040 |
|
|
|
|
$ |
4,582 |
|
|
|
|
|
|
|
|
|
|
|
|
||
Derivatives not designated as hedging instruments: |
|
|
|
|
|
|
|
|
||||
Commodity contracts |
|
Receivables |
|
$ |
11,555 |
|
|
Accounts payable |
|
$ |
4,142 |
|
|
|
Other assets |
|
|
48 |
|
|
Other liabilities |
|
|
24 |
|
|
|
|
|
|
11,603 |
|
|
|
|
|
4,166 |
|
Foreign currency exchange contracts |
|
Receivables |
|
|
- |
|
|
Accounts payable |
|
|
255 |
|
Total |
|
|
|
$ |
11,603 |
|
|
|
|
$ |
4,421 |
|
Total derivative instruments |
|
|
|
$ |
12,643 |
|
|
|
|
$ |
9,003 |
|
The amounts in the table above reflect the fair value of our derivative instruments on a net basis where allowable under master netting arrangements. Had these amounts been recognized on a gross basis, the impact would have been a $6,300,000 increase in “Receivables” with a corresponding increase in “Accounts payable.”
16
Cash Flow Hedges
We enter into derivative financial instruments to hedge our exposure to changes in cash flows attributable to commodity price fluctuations associated with certain forecasted transactions. These derivative financial instruments are designated and qualify as cash flow hedges. The earnings effects of these derivative financial instruments are presented in the same statement of earnings line items as the earnings effects of the hedged items. For derivative financial instruments designated as cash flow hedges, we assess hedge effectiveness both at the onset of the hedge and at regular intervals throughout the life of the derivative financial instruments.
The following table summarizes our cash flow hedges outstanding at August 31, 2022:
|
|
Notional |
|
|
|
|
(in thousands) |
|
Amount |
|
|
Maturity Date |
|
Commodity contracts |
|
|
133,715 |
|
|
- |
Foreign currency exchange contracts |
|
|
14,705 |
|
|
- |
The following table summarizes the gain (loss) recognized in OCI and the gain (loss) reclassified from AOCI into net earnings for derivative financial instruments designated as cash flow hedges for the periods presented:
(in thousands) |
|
Gain (Loss) |
|
|
Location of Gain (Loss) |
|
Gain (Loss) Reclassified |
|
||
For the three months ended August 31, 2022: |
|
|||||||||
Commodity contracts |
|
$ |
(14,045 |
) |
|
Cost of goods sold |
|
$ |
2,869 |
|
Interest rate contracts |
|
|
- |
|
|
Interest expense |
|
|
(7 |
) |
Foreign currency exchange contracts |
|
|
(162 |
) |
|
Net sales/Cost of goods sold |
|
|
28 |
|
Total |
|
$ |
(14,207 |
) |
|
|
|
$ |
2,890 |
|
|
|
|
|
|
|
|
|
|
||
For the three months ended August 31, 2021: |
|
|||||||||
Commodity contracts |
|
$ |
35,220 |
|
|
Cost of goods sold |
|
$ |
35,459 |
|
Interest rate contracts |
|
|
- |
|
|
Interest expense |
|
|
(40 |
) |
Total |
|
$ |
35,220 |
|
|
|
|
$ |
35,419 |
|
The estimated net amount of the losses recognized in AOCI at August 31, 2022 expected to be reclassified into net earnings within the succeeding twelve months is $15,462,000 (net of tax of $4,438,000). This amount was computed using the fair value of the cash flow hedges at August 31, 2022, and will change before actual reclassification from OCI to net earnings during the fiscal years ending May 31, 2023 and May 31, 2024.
Economic (Non-designated) Hedges
We enter into foreign currency exchange contracts to manage our foreign currency exchange rate exposure related to inter-company and financing transactions that do not meet the requirements for hedge accounting treatment. We also enter into certain commodity contracts that do not qualify for hedge accounting treatment. Accordingly, these derivative financial instruments are adjusted to current market value at the end of each period through earnings (loss).
The following table summarizes our economic (non-designated) derivative financial instruments outstanding at August 31, 2022:
|
|
Notional |
|
|
|
|
(in thousands) |
|
Amount |
|
|
Maturity Date(s) |
|
Commodity contracts |
|
$ |
11,453 |
|
|
- |
17
The following table summarizes the gain (loss) recognized in earnings for economic (non-designated) derivative financial instruments for the periods presented:
|
|
|
|
Gain (Loss) Recognized |
|
|||||
|
|
|
|
In Earnings for the |
|
|||||
|
|
Location of Gain (Loss) |
|
Three Months Ended August 31, |
|
|||||
(in thousands) |
|
Recognized in Earnings |
|
2022 |
|
|
2021 |
|
||
Commodity contracts |
|
Cost of goods sold |
|
$ |
(1,577 |
) |
|
$ |
29,527 |
|
Foreign currency exchange contracts |
|
Miscellaneous income, net |
|
|
- |
|
|
|
339 |
|
Total |
|
|
|
$ |
(1,577 |
) |
|
$ |
29,866 |
|
Note R – Fair Value
Fair value is defined as the price that would be received to sell an asset or paid to transfer a liability in an orderly transaction between market participants at the measurement date. Fair value is an exit price concept that assumes an orderly transaction between willing market participants and is required to be based on assumptions that market participants would use in pricing an asset or a liability. Current accounting guidance establishes a three-tier fair value hierarchy as a basis for considering such assumptions and for classifying the inputs used in the valuation methodologies. This hierarchy requires entities to maximize the use of observable inputs and minimize the use of unobservable inputs. The three levels of inputs used to measure fair values are as follows:
Level 1 – Observable prices in active markets for identical assets and liabilities.
Level 2 – Inputs other than quoted prices included within Level 1 that are observable for the assets and liabilities, either directly or indirectly.
Level 3 – Unobservable inputs that are supported by little or no market activity and that are significant to the fair value of the assets and liabilities.
Recurring Fair Value Measurements
At August 31, 2022, our assets and liabilities measured at fair value on a recurring basis were as follows:
|
|
|
|
|
Significant |
|
|
|
|
|
|
|
||||
|
|
Quoted Prices |
|
|
Other |
|
|
Significant |
|
|
|
|
||||
|
|
in Active |
|
|
Observable |
|
|
Unobservable |
|
|
|
|
||||
|
|
Markets |
|
|
Inputs |
|
|
Inputs |
|
|
|
|
||||
(in thousands) |
|
(Level 1) |
|
|
(Level 2) |
|
|
(Level 3) |
|
|
Totals |
|
||||
Assets |
|
|
|
|
|
|
|
|
|
|
|
|
||||
Derivative financial instruments (1) |
|
$ |
- |
|
|
$ |
8,345 |
|
|
$ |
- |
|
|
$ |
8,345 |
|
Total assets |
|
$ |
- |
|
|
$ |
8,345 |
|
|
$ |
- |
|
|
$ |
8,345 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||||
Liabilities |
|
|
|
|
|
|
|
|
|
|
|
|
||||
Derivative financial instruments (1) |
|
$ |
- |
|
|
$ |
17,716 |
|
|
$ |
- |
|
|
$ |
17,716 |
|
Total liabilities |
|
$ |
- |
|
|
$ |
17,716 |
|
|
$ |
- |
|
|
$ |
17,716 |
|
At May 31, 2022, our assets and liabilities measured at fair value on a recurring basis were as follows:
|
|
|
|
|
Significant |
|
|
|
|
|
|
|
||||
|
|
Quoted Prices |
|
|
Other |
|
|
Significant |
|
|
|
|
||||
|
|
in Active |
|
|
Observable |
|
|
Unobservable |
|
|
|
|
||||
|
|
Markets |
|
|
Inputs |
|
|
Inputs |
|
|
|
|
||||
(in thousands) |
|
(Level 1) |
|
|
(Level 2) |
|
|
(Level 3) |
|
|
Totals |
|
||||
Assets |
|
|
|
|
|
|
|
|
|
|
|
|
||||
Derivative financial instruments (1) |
|
$ |
- |
|
|
$ |
12,643 |
|
|
$ |
- |
|
|
$ |
12,643 |
|
Total assets |
|
$ |
- |
|
|
$ |
12,643 |
|
|
$ |
- |
|
|
$ |
12,643 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||||
Liabilities |
|
|
|
|
|
|
|
|
|
|
|
|
||||
Derivative financial instruments (1) |
|
$ |
- |
|
|
$ |
9,003 |
|
|
$ |
- |
|
|
$ |
9,003 |
|
Total liabilities |
|
$ |
- |
|
|
$ |
9,003 |
|
|
$ |
- |
|
|
$ |
9,003 |
|
18
Non-Recurring Fair Value Measurements
At August 31, 2022, our assets measured at fair value on a non-recurring basis were as follows:
|
|
|
|
|
Significant |
|
|
|
|
|
|
|
||||
|
|
Quoted Prices |
|
|
Other |
|
|
Significant |
|
|
|
|
||||
|
|
in Active |
|
|
Observable |
|
|
Unobservable |
|
|
|
|
||||
|
|
Markets |
|
|
Inputs |
|
|
Inputs |
|
|
|
|
||||
(in thousands) |
|
(Level 1) |
|
|
(Level 2) |
|
|
(Level 3) |
|
|
Totals |
|
||||
Assets |
|
|
|
|
|
|
|
|
|
|
|
|
||||
Long-lived assets held for sale (1) |
|
$ |
- |
|
|
$ |
3,280 |
|
|
$ |
- |
|
|
$ |
3,280 |
|
Total assets |
|
$ |
- |
|
|
$ |
3,280 |
|
|
$ |
- |
|
|
$ |
3,280 |
|
At May 31, 2022, our assets measured at fair value on a non-recurring basis were as follows:
|
|
|
|
|
Significant |
|
|
|
|
|
|
|
||||
|
|
Quoted Prices |
|
|
Other |
|
|
Significant |
|
|
|
|
||||
|
|
in Active |
|
|
Observable |
|
|
Unobservable |
|
|
|
|
||||
|
|
Markets |
|
|
Inputs |
|
|
Inputs |
|
|
|
|
||||
(in thousands) |
|
(Level 1) |
|
|
(Level 2) |
|
|
(Level 3) |
|
|
Totals |
|
||||
Assets |
|
|
|
|
|
|
|
|
|
|
|
|
||||
Long-lived assets held for sale (1) |
|
$ |
- |
|
|
$ |
700 |
|
|
$ |
- |
|
|
$ |
700 |
|
Total assets |
|
$ |
- |
|
|
$ |
700 |
|
|
$ |
- |
|
|
$ |
700 |
|
The fair value of non-derivative financial instruments included in the carrying amounts of cash and cash equivalents, receivables, income taxes receivable, other assets, accounts payable, accrued compensation, contributions to employee benefit plans and related taxes, other accrued items, income taxes payable and other liabilities approximate carrying value due to their short-term nature. The fair value of long-term debt, including current maturities, based upon models utilizing market observable (Level 2) inputs and credit risk, was $654,294,000 and $684,830,000 at August 31, 2022 and May 31, 2022, respectively. The carrying amount of long-term debt, including current maturities, was $690,259,000 and $696,610,000 at August 31, 2022 and May 31, 2022, respectively.
Note S – Subsequent Events
On September 29, 2022, the Company announced a plan to separate into two independent, publicly-traded companies – one company is expected to be comprised of the Company’s Steel Processing operating segment, and the other company is expected to be comprised of the Company’s Consumer Products, Building Products and Sustainable Energy Solutions operating segments. The Separation transaction is expected to be completed by early 2024, but is subject to certain conditions, including, among other things, general market conditions, finalization of the capital structure of the two companies, completion of steps necessary to qualify the Separation as a tax-free transaction, receipt of regulatory approvals and final approval from the Company’s Board of Directors.
19
Item 2. – Management’s Discussion and Analysis of Financial Condition and Results of Operations
Selected statements contained in this “Item 2. – Management’s Discussion and Analysis of Financial Condition and Results of Operations” constitute “forward-looking statements” as that term is used in the Private Securities Litigation Reform Act of 1995. Such forward-looking statements are based, in whole or in part, on management’s beliefs, estimates, assumptions and currently available information. For a more detailed discussion of what constitutes a forward-looking statement and of some of the factors that could cause actual results to differ materially from such forward-looking statements, please refer to the “Safe Harbor Statement” in the beginning of this Form 10-Q and “Part I – Item 1A. – Risk Factors” of the 2022 Form 10-K.
Unless otherwise indicated, all Note references contained in this Part I – Item 2. refer to the Condensed Notes to Consolidated Financial Statements included in “Part I – Item 1. – Financial Statements” of this Form 10-Q.
Introduction
The following discussion and analysis of market and industry trends, business developments, and the results of operations and financial position of Worthington Industries, Inc., together with its subsidiaries (collectively, “we,” “our,” “us”, “Worthington,” or the “Company”), should be read in conjunction with our consolidated financial statements and notes thereto included in “Part I – Item 1. – Financial Statements” of this Form 10-Q. The 2022 Form 10-K includes additional information about Worthington, our operations and our consolidated financial position and should be read in conjunction with this Form 10-Q.
Our operations are managed principally on a products and services basis. Segment information is prepared on the same basis that our management reviews financial information for operational decision-making purposes. Factors used to identify reportable operating segments include the nature of the products and services provided by each business, the management reporting structure, the similarity of economic characteristics and certain quantitative measures, as prescribed by authoritative accounting guidance.
As of August 31, 2022, we held equity positions in eight joint ventures. Four of these joint ventures are consolidated within the Steel Processing operating segment with the equity owned by the other joint venture member(s) shown as noncontrolling interests in our consolidated balance sheets, and their portions of net earnings and other comprehensive income shown as net earnings or comprehensive income attributable to noncontrolling interests in our consolidated statements of earnings and consolidated statements of comprehensive income, respectively. The remaining four of our joint ventures are accounted for using the equity method.
Recent Business Developments
20
Market & Industry Overview
We sell our products and services to a diverse customer base and a broad range of end markets. The breakdown of net sales by end market for the first quarter of each of fiscal 2023 and fiscal 2022 is illustrated in the following chart:
The automotive industry is one of the largest consumers of flat-rolled steel, and thus the largest end market for our Steel Processing operating segment. Approximately 47% of Steel Processing’s net sales are to the automotive market. North American vehicle production, primarily by Ford, General Motors and Stellantis North America (the “Detroit Three automakers”), has a considerable impact on the activity within this operating segment. The majority of the net sales of one of our unconsolidated joint ventures, Serviacero Worthington, is also to the automotive market.
Approximately 17% of the net sales of our Steel Processing operating segment are to the construction market. The construction market is also the predominant end market for our unconsolidated joint ventures within our Building Products operating segment, WAVE and ClarkDietrich. While the market price of steel significantly impacts these businesses, there are other key indicators that are meaningful in analyzing construction market demand, including U.S. gross domestic product (“GDP”), the Dodge Index of construction contracts and, in the case of ClarkDietrich, trends in the relative price of framing lumber and steel.
Substantially all of the net sales of our Consumer Products, Building Products, and Sustainable Energy Solutions operating segments and approximately 36% of the net sales of our Steel Processing operating segment are to other markets such as agricultural, appliance, consumer products, heavy-truck, industrial products, lawn and garden. Given the many different products that make up these net sales and the wide variety of end markets, it is very difficult to detail the key market indicators that drive this portion of our business. However, we believe that the trend in U.S. GDP growth is a good economic indicator for analyzing the demand of these end markets.
We use the following information to monitor our costs and demand in our major end markets:
|
|
Three Months Ended |
|
|
|||||||||
|
|
August 31, |
|
|
|||||||||
|
|
2022 |
|
|
2021 |
|
|
Inc / (Dec) |
|
|
|||
U.S. GDP (% growth (decline) year-over-year) 1 |
|
|
2.3 |
% |
|
|
3.9 |
% |
|
|
(1.6 |
%) |
|
Hot-Rolled Steel ($ per ton) 2 |
|
$ |
978 |
|
|
$ |
1,762 |
|
|
$ |
(784 |
) |
|
Detroit Three Auto Build (000's vehicles) 3 |
|
|
1,761 |
|
|
|
1,374 |
|
|
|
386 |
|
|
No. America Auto Build (000's vehicles) 3 |
|
|
3,628 |
|
|
|
3,243 |
|
|
|
384 |
|
|
Zinc ($ per pound) 4 |
|
$ |
1.55 |
|
|
$ |
1.35 |
|
|
$ |
0.20 |
|
|
Natural Gas ($ per mcf) 5 |
|
$ |
7.87 |
|
|
$ |
3.68 |
|
|
$ |
4.19 |
|
|
On-Highway Diesel Fuel Prices ($ per gallon) 6 |
|
$ |
5.42 |
|
|
$ |
3.33 |
|
|
$ |
2.09 |
|
|
1 2021 figures based on revised actuals 2CRU Hot-Rolled Index; period average 3IHS Global 4LME Zinc; period average 5NYMEX Henry Hub Natural Gas; period average 6Energy Information Administration; period average
21
U.S. GDP growth rate trends are generally indicative of the strength in demand and, in many cases, pricing for our products. A year-over-year increase in U.S. GDP growth rates is indicative of a stronger economy, which generally increases demand and pricing for our products. Conversely, declining U.S. GDP growth rates generally indicate a weaker economy. Changes in U.S. GDP growth rates can also signal changes in conversion costs related to production and in selling, general and administrative (”SG&A”) expenses.
The market price of hot-rolled steel is one of the most significant factors impacting our selling prices and operating results. When steel prices fall, we typically have higher-priced material flowing through cost of goods sold, while selling prices compress to what the market will bear, negatively impacting our results. On the other hand, in a rising price environment, our results are generally favorably impacted, as lower-priced material purchased in previous periods flows through cost of goods sold, while our selling prices increase at a faster pace to cover current replacement costs.
The following table presents the average quarterly market price per ton of hot-rolled steel during fiscal 2023 (first quarter), fiscal 2022 and fiscal 2021:
|
|
Fiscal Year |
|
|||||||||
(Dollars per ton 1 ) |
|
2023 |
|
|
2022 |
|
|
2021 |
|
|||
1st Quarter |
|
$ |
978 |
|
|
$ |
1,762 |
|
|
$ |
475 |
|
2nd Quarter |
|
N/A |
|
|
$ |
1,888 |
|
|
$ |
625 |
|
|
3rd Quarter |
|
N/A |
|
|
$ |
1,421 |
|
|
$ |
1,016 |
|
|
4th Quarter |
|
N/A |
|
|
$ |
1,280 |
|
|
$ |
1,358 |
|
|
Annual Avg. |
|
$ |
978 |
|
|
$ |
1,588 |
|
|
$ |
869 |
|
1 CRU Hot-Rolled Index; period average
Sales to one Steel Processing customer in the automotive industry represented 11.2% and 13.8% of consolidated net sales during the first quarter of fiscal 2023 and fiscal 2022, respectively. While our automotive business is largely driven by the production schedules of the Detroit Three automakers, our customer base is much broader and includes other domestic manufacturers and many of their suppliers. During the first quarter of fiscal 2023, vehicle production for the Detroit Three automakers and the North American vehicle production were up 28% and 12%, respectively, from the first quarter of fiscal 2022.
Certain other commodities, such as zinc, natural gas and diesel fuel, represent a significant portion of our cost of goods sold, both directly through our plant operations and indirectly through transportation and freight expense.
Results of Operations
First Quarter – Fiscal 2023 Compared to Fiscal 2022
The following discussion provides a review of results for the periods indicated.
|
Three Months Ended |
|
|||||||||
|
August 31, |
|
|||||||||
(In millions, except per share amounts) |
2022 |
|
|
2021 |
|
|
Increase/ |
|
|||
Net sales |
$ |
1,408.7 |
|
|
$ |
1,110.8 |
|
|
$ |
297.9 |
|
Operating income |
|
66.7 |
|
|
|
135.8 |
|
|
|
(69.1 |
) |
Equity income |
|
31.7 |
|
|
|
52.9 |
|
|
|
(21.2 |
) |
Net earnings attributable to controlling interest |
|
64.1 |
|
|
|
132.5 |
|
|
|
(68.4 |
) |
Earnings per diluted share attributable to controlling interest |
|
1.30 |
|
|
|
2.55 |
|
|
|
(1.25 |
) |
22
Net Sales and Volume
The following table provides a breakdown of our consolidated net sales by reportable operating segment, along with the respective percentage of the total consolidated net sales of each, for the periods indicated.
|
Three Months Ended |
|
|
|||||||||||||||||
|
August 31, |
|
|
|||||||||||||||||
|
|
|
|
% of |
|
|
|
|
|
% of |
|
|
Increase/ |
|
|
|||||
(In millions) |
2022 |
|
|
Net sales |
|
|
2021 |
|
|
Net sales |
|
|
(Decrease) |
|
|
|||||
Steel Processing |
$ |
1,038.9 |
|
|
|
73.7 |
% |
|
$ |
822.8 |
|
|
|
74.1 |
% |
|
$ |
216.1 |
|
|
Consumer Products |
|
188.7 |
|
|
|
13.4 |
% |
|
|
147.8 |
|
|
|
13.3 |
% |
|
|
40.9 |
|
|
Building Products |
|
150.3 |
|
|
|
10.7 |
% |
|
|
114.7 |
|
|
|
10.3 |
% |
|
|
35.6 |
|
|
Sustainable Energy Solutions |
|
30.8 |
|
|
|
2.2 |
% |
|
|
25.5 |
|
|
|
2.3 |
% |
|
|
5.3 |
|
|
Consolidated Net Sales |
$ |
1,408.7 |
|
|
|
100.0 |
% |
|
$ |
1,110.8 |
|
|
|
100.0 |
% |
|
$ |
297.9 |
|
|
The following table provides volume by reportable operating segment for the periods presented.
|
Three Months Ended |
|
|||||||||
|
August 31, |
|
|||||||||
|
|
|
|
|
|
|
Increase/ |
|
|||
|
2022 |
|
|
2021 |
|
|
(Decrease) |
|
|||
Steel Processing (Tons) |
|
974,649 |
|
|
|
1,062,288 |
|
|
|
(87,639 |
) |
Consumer Products (Units) |
|
22,383,341 |
|
|
|
21,388,140 |
|
|
|
995,201 |
|
Building Products (Units) |
|
2,922,163 |
|
|
|
2,885,711 |
|
|
|
36,452 |
|
Sustainable Energy Solutions (Units) |
|
133,133 |
|
|
|
130,676 |
|
|
|
2,457 |
|
Gross Margin
|
Three Months Ended |
|
|||||||||||||||||
|
August 31, |
|
|||||||||||||||||
|
|
|
|
% of |
|
|
|
|
|
% of |
|
|
Increase/ |
|
|||||
(In millions) |
2022 |
|
|
Net sales |
|
|
2021 |
|
|
Net sales |
|
|
(Decrease) |
|
|||||
Gross Margin |
$ |
169.4 |
|
|
|
12.0 |
% |
|
$ |
219.4 |
|
|
|
19.8 |
% |
|
$ |
(50.0 |
) |
23
Selling, General and Administrative Expense
|
Three Months Ended |
|
|||||||||||||||||
|
August 31, |
|
|||||||||||||||||
|
|
|
|
% of |
|
|
|
|
|
% of |
|
|
Increase/ |
|
|||||
(In millions) |
2022 |
|
|
Net sales |
|
|
2021 |
|
|
Net sales |
|
|
(Decrease) |
|
|||||
Selling, general and administrative expense |
$ |
103.4 |
|
|
|
7.3 |
% |
|
$ |
95.9 |
|
|
|
8.6 |
% |
|
$ |
7.5 |
|
Other Operating Costs
|
Three Months Ended |
|
|||||||||
|
August 31, |
|
|||||||||
|
|
|
|
|
|
|
Increase/ |
|
|||
(In millions) |
2022 |
|
|
2021 |
|
|
(Decrease) |
|
|||
Impairment of long-lived assets |
$ |
0.3 |
|
|
$ |
- |
|
|
$ |
0.3 |
|
Restructuring and other income, net |
|
(1.1 |
) |
|
|
(12.3 |
) |
|
|
(11.2 |
) |
Equity Income
|
Three Months Ended |
|
|||||||||
|
August 31, |
|
|||||||||
|
|
|
|
|
|
|
Increase/ |
|
|||
(In millions) |
2022 |
|
|
2021 |
|
|
(Decrease) |
|
|||
WAVE |
$ |
23.8 |
|
|
$ |
25.7 |
|
|
$ |
(1.9 |
) |
ClarkDietrich |
|
20.1 |
|
|
|
17.3 |
|
|
|
2.8 |
|
Serviacero Worthington |
|
1.8 |
|
|
|
9.3 |
|
|
|
(7.5 |
) |
ArtiFlex |
|
(13.4 |
) |
|
|
1.2 |
|
|
|
(14.6 |
) |
Workhorse |
|
(0.5 |
) |
|
|
(0.6 |
) |
|
|
0.1 |
|
Total Equity Income |
$ |
31.7 |
|
|
$ |
52.9 |
|
|
$ |
(21.2 |
) |
24
Other income (expense)
|
Three Months Ended |
|
|||||||||
|
August 31, |
|
|||||||||
|
|
|
|
|
|
|
Increase/ |
|
|||
(In millions) |
2022 |
|
|
2021 |
|
|
(Decrease) |
|
|||
Miscellaneous income (expense), net |
$ |
(5.1 |
) |
|
$ |
0.6 |
|
|
$ |
(5.7 |
) |
Adjusted EBIT
We evaluate operating segment performance based on adjusted earnings before interest and taxes (“adjusted EBIT”). EBIT is calculated by adding interest expense and income tax expense to net earnings attributable to controlling interest. Adjusted EBIT excludes impairment and restructuring charges (gains), but may also exclude other items that management believes are not reflective of, and thus should not be included when evaluating, the performance of our ongoing operations. Adjusted EBIT is a non-GAAP measure and is used by management to evaluate segment performance, engage in financial and operational planning and determine incentive compensation because we believe that this measure provides additional perspective and, in some circumstances is more closely correlated to, the performance of our ongoing operations.
The following table provides a reconciliation of consolidated net earnings attributable to controlling interest to adjusted EBIT for the periods presented:
|
Three Months Ended |
|
|||||
|
August 31, |
|
|||||
(In millions) |
2022 |
|
|
2021 |
|
||
Net earnings attributable to controlling interest |
$ |
64.1 |
|
|
$ |
132.5 |
|
Interest expense |
|
8.6 |
|
|
|
7.7 |
|
Income tax expense |
|
19.5 |
|
|
|
40.2 |
|
Earnings before interest and taxes |
$ |
92.2 |
|
|
$ |
180.4 |
|
Incremental expense related to Level5 earnout |
|
0.5 |
|
|
|
- |
|
Impairment of long-lived assets (1) |
|
0.1 |
|
|
|
- |
|
Restructuring and other income, net (1) |
|
(1.1 |
) |
|
|
(6.3 |
) |
Pension settlement charge |
|
4.8 |
|
|
|
- |
|
Loss on sale of investment in ArtiFlex |
|
15.8 |
|
|
|
- |
|
Adjusted earnings before interest and taxes |
$ |
112.3 |
|
|
$ |
174.1 |
|
(1) Excludes the impact of the noncontrolling interests.
The following table provides a summary of adjusted EBIT by segment for the periods presented.
|
Three Months Ended |
|
|||||||||
|
August 31, |
|
|||||||||
|
|
|
|
|
|
|
Increase/ |
|
|||
(In millions) |
2022 |
|
|
2021 |
|
|
(Decrease) |
|
|||
Steel Processing |
$ |
34.9 |
|
|
$ |
107.7 |
|
|
$ |
(72.8 |
) |
Consumer Products |
|
20.9 |
|
|
|
20.6 |
|
|
|
0.3 |
|
Building Products |
|
52.7 |
|
|
|
48.7 |
|
|
|
4.0 |
|
Sustainable Energy Solutions |
|
(1.4 |
) |
|
|
(2.6 |
) |
|
|
1.2 |
|
Other |
|
5.1 |
|
|
|
(0.4 |
) |
|
|
5.5 |
|
Total Adjusted EBIT |
$ |
112.3 |
|
|
$ |
174.0 |
|
|
$ |
(61.7 |
) |
25
Interest Expense
|
Three Months Ended |
|
|||||||||
|
August 31, |
|
|||||||||
|
|
|
|
|
|
|
Increase/ |
|
|||
(In millions) |
2022 |
|
|
2021 |
|
|
(Decrease) |
|
|||
Interest Expense |
$ |
8.6 |
|
|
$ |
7.7 |
|
|
$ |
0.9 |
|
Income Taxes
|
Three Months Ended |
|
|||||||||||||||||
|
August 31, |
|
|||||||||||||||||
(In millions) |
2022 |
|
|
Effective Tax Rate |
|
|
2021 |
|
|
Effective Tax Rate |
|
|
Increase/ |
|
|||||
Income tax expense |
$ |
19.5 |
|
|
|
23.9 |
% |
|
$ |
40.2 |
|
|
|
23.3 |
% |
|
$ |
(20.7 |
) |
Liquidity and Capital Resources
During the three months ended August 31, 2022, we generated $81.0 million of cash from operating activities, invested $21.5 million in property, plant and equipment, spent $56.1 million to acquire Level5, and received $42.1 million of cash proceeds from the sale of our equity investment in ArtiFlex and related real property. Additionally, we repaid $32.4 million of borrowings outstanding under the AR Facility and paid dividends of $13.9 million on Worthington Industries, Inc.’s common shares. The following table summarizes our consolidated cash flows for the periods presented:
|
Three Months Ended |
|
|||||
|
August 31, |
|
|||||
(in millions) |
2022 |
|
|
2021 |
|
||
Net cash provided (used) by operating activities |
$ |
81.0 |
|
|
$ |
(49.8 |
) |
Net cash used by investing activities |
|
(29.8 |
) |
|
|
(102.0 |
) |
Net cash used by financing activities |
|
(49.9 |
) |
|
|
(89.3 |
) |
Increase (decrease) in cash and cash equivalents |
|
1.3 |
|
|
|
(241.1 |
) |
Cash and cash equivalents at beginning of period |
|
34.5 |
|
|
|
640.3 |
|
Cash and cash equivalents at end of period |
$ |
35.8 |
|
|
$ |
399.2 |
|
26
We believe that the available borrowing capacity of our committed line of credit is sufficient to meet the needs of our existing businesses for normal operating costs, mandatory capital expenditures, debt redemptions, dividend payments, and working capital, to the extent not funded by cash provided by operating activities, for at least 12 months and for the foreseeable future thereafter.
Although we do not currently anticipate a need, we believe that we could access the financial markets to be in a position to sell long-term debt or equity securities. However, lingering supply chain disruptions and other challenges caused by the COVID-19 pandemic and softening economic conditions could create uncertainty and volatility in the financial markets, which may impact our ability to access capital and the terms under which we can do so. As the impact of such challenges on the economy and our operations is evolving, we will continue to review our discretionary spending and other variable costs as well as our liquidity needs.
We routinely monitor current operational requirements, financial market conditions, and credit relationships and we may choose to seek additional capital by issuing new debt and/or equity securities to strengthen our liquidity or capital structure. However, should we seek such additional capital, there can be no assurance that we would be able to obtain such additional capital on terms acceptable to us, if at all, and such additional equity or debt financing could dilute the interests of our existing shareholders and/or increase our interest costs.
Operating Activities
Our business is cyclical and cash flows from operating activities may fluctuate during the year and from year to year due to economic and industry conditions. We rely on cash and short-term borrowings to meet cyclical increases in working capital needs. These needs generally rise during periods of increased economic activity or increasing raw material prices, requiring higher levels of inventory and accounts receivable. During economic slowdowns, or periods of decreasing raw material costs, working capital needs generally decrease as a result of the reduction of inventories and accounts receivable.
Net cash provided by operating activities was $81.0 million during the three months ended August 31, 2022, a difference of $130.8 million from the net cash used by operating activities in the prior year period. This change was primarily due to a $125.9 million decrease in operating working capital (accounts receivable, inventory, and accounts payable) requirements over the prior year quarter, mainly driven by lower average steel prices.
Investing Activities
Net cash used by investing activities was $29.8 million during the three months ended August 31, 2022 compared to $102.0 million in the prior year quarter. Net cash used by investing activities in the prior year quarter resulted primarily from cash used to acquire certain assets of the Shiloh Industries’ U.S BlankLight ® business on June 8, 2021, for $104.8 million. Net cash used by investing activities in the current year quarter resulted primarily from the purchase of the Level5 business on June 2, 2022, for $56.1 million, net of cash acquired, and capital expenditures of $21.4 million, partially offset by combined cash proceeds of $47.9 million from the sale of our equity investment in ArtiFlex and other long-lived assets, including the related real property that was owned by Worthington and leased to ArtiFlex.
Investment activities are largely discretionary, and future investment activities could be reduced significantly, or eliminated, as economic conditions warrant. We assess acquisition opportunities as they arise, and such opportunities may require additional financing. There can be no assurance, however, that any such opportunities will arise, that any such acquisition opportunities will be consummated, or that any needed additional financing will be available on satisfactory terms if required.
Financing Activities
Net cash used by financing activities was $49.9 million during the three months ended August 31, 2022 compared to $89.3 million in the prior year quarter. The change was primarily due to $32.4 million net repayments of short-term borrowings.
Long-term debt and short-term borrowings – As of August 31, 2022, we were in compliance with the financial covenants of our short-term and long-term financial debt agreements. Our debt agreements do not include credit rating triggers or material adverse change provisions. During the first quarter of fiscal 2023, our credit rating was upgraded from Baa3 to Baa2 by Moody’s Investors Service, Inc. Short-term borrowings consisted of $11.2 million drawn against our AR Facility, leaving $163.8 million available for future use. This is in addition to $500.0 million of short-term borrowing capacity available under our multi-year revolving credit facility.
Common shares – On September 28, 2022, the Worthington Industries Board declared a quarterly dividend of $0.31 per share payable on December 29, 2022, to shareholders of record on December 15, 2022.
27
On March 20, 2019, the Worthington Industries Board authorized the repurchase of up to 6,600,000 of Worthington Industries, Inc.’s outstanding common shares (the “common shares”).
On March 24, 2021, the Worthington Industries Board authorized the repurchase of up to an additional 5,618,464 common shares, increasing the total number of common shares then authorized for repurchase to 10,000,000. As of August 31, 2022, 6,065,000 common shares remained available for repurchase under these authorizations.
The common shares available for repurchase under the authorizations currently in effect may be repurchased from time to time, with consideration given to the market price of the common shares, the nature of other investment opportunities, cash flows from operations, general economic conditions and other relevant considerations. Repurchases may be made on the open market or through privately negotiated transactions.
Dividend Policy
We currently have no material contractual or regulatory restrictions on the payment of dividends. Dividends are declared at the discretion of the Worthington Industries Board. The Worthington Industries Board reviews the dividend quarterly and establishes the dividend rate based upon our consolidated financial condition, results of operations, capital requirements, current and projected cash flows, business prospects, and other relevant factors. While we have paid a dividend every quarter since becoming a public company in 1968, there is no guarantee that payments will continue in the future.
Critical Accounting Policies
The discussion and analysis of our financial condition and results of operations is based upon our consolidated financial statements, which have been prepared in accordance with U.S. GAAP. The preparation of these consolidated financial statements requires us to make estimates and assumptions that affect the reported amounts of assets and liabilities and the disclosure of contingent assets and liabilities at the date of the consolidated financial statements and the reported amounts of revenues and expenses during the reporting periods. We continually evaluate our estimates, including those related to our valuation of receivables, inventories, intangible assets, accrued liabilities, income and other tax accruals, contingencies and litigation, and business combinations. We base our estimates on historical experience and various other assumptions that we believe to be reasonable under the circumstances. These results form the basis for making judgments about the carrying values of assets and liabilities that are not readily apparent from other sources. Critical accounting policies are defined as those that reflect our significant judgments and uncertainties that could potentially result in materially different results under different assumptions and conditions. Although actual results historically have not deviated significantly from those determined using our estimates, our consolidated financial position or results of operations could be materially different if we were to report under different conditions or to use different assumptions in the application of such policies. Our critical accounting policies have not significantly changed from those discussed in “Part II – Item 7. – Management’s Discussion and Analysis of Financial Condition and Results of Operations – Critical Accounting Policies” of the 2022 Form 10-K.
Item 3. – Quantitative and Qualitative Disclosures About Market Risk
Market risks have not materially changed from those disclosed in “Part II – Item 7A. – Quantitative and Qualitative Disclosures About Market Risk” of the 2022 Form 10-K.
Item 4. – Controls and Procedures
Evaluation of Disclosure Controls and Procedures
We maintain disclosure controls and procedures [as defined in Rules 13a-15(e) and 15d-15(e) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)] that are designed to provide reasonable assurance that information required to be disclosed in the reports that Worthington Industries, Inc. files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the U.S. Securities and Exchange Commission’s rules and forms, and that such information is accumulated and communicated to our management, including Worthington Industries, Inc.’s principal executive officer and principal financial officer, as appropriate to allow timely decisions regarding required disclosure.
Management, under the supervision of and with the participation of Worthington Industries, Inc.’s principal executive officer and principal financial officer, performed an evaluation of the effectiveness of our disclosure controls and procedures as of the end of the period covered by this Form 10-Q (the quarterly period ended August 31, 2022). Based on that evaluation, Worthington Industries’ principal executive officer and principal financial officer have concluded that such disclosure controls and procedures were effective at a reasonable assurance level as of the end of the quarterly period covered by this Form 10-Q.
28
Changes in Internal Control Over Financial Reporting
There were no changes that occurred during the period covered by this Form 10-Q (the quarterly period ended August 31, 2022) in our internal control over financial reporting (as defined in Rules 13a-15(f) and 15d-15(f) under the Exchange Act) that have materially affected, or are reasonably likely to materially affect, our internal control over financial reporting.
PART II. OTHER INFORMATION
Item 1. – Legal Proceedings
We are involved in various judicial and administrative proceedings, as both plaintiff and defendant, arising in the ordinary course of business. We do not believe that any such proceedings will have a material adverse effect on our business, financial position, results of operation or cash flows.
Item 1A. – Risk Factors
There are certain risks and uncertainties in our business that could cause our actual results to differ materially from those anticipated. In “PART I – Item 1A. – Risk Factors” of the 2022 Form 10-K, as filed with the U.S. Securities and Exchange Commission on August 1, 2022, and available at www.sec.gov or at www.worthingtonindustries.com, we included a detailed discussion of our risk factors. Our risk factors have not changed significantly from those disclosed in the 2022 Form 10-K. These risk factors should be read carefully in connection with evaluating our business and in connection with the forward-looking statements and other information contained in this Form 10-Q. Any of the risks described in the 2022 Form 10-K could materially affect our business, consolidated financial condition or future results and the actual outcome of matters as to which forward-looking statements are made. The risk factors described in the 2022 Form 10-K are not the only risks we face. Additional risks and uncertainties not currently known to us, or that we currently deem to be immaterial, also may materially adversely affect our business, consolidated financial condition and/or future results.
Item 2. – Unregistered Sales of Equity Securities and Use of Proceeds
The following table provides information about purchases made by, or on behalf of, Worthington Industries, Inc. or any “affiliated purchaser” (as defined in Rule 10b-18(a) (3) under the Exchange Act, as amended) of common shares of Worthington Industries, Inc. during each month of the quarterly period ended August 31, 2022:
|
|
|
|
|
|
|
Total Number of |
|
|
|
|
||||
|
|
|
|
|
|
|
Common Shares |
|
|
|
|
||||
|
|
|
|
|
|
|
Purchased as |
|
|
Maximum Number of |
|
||||
|
Total Number |
|
|
Average Price |
|
|
Part of Publicly |
|
|
Common Shares that |
|
||||
|
of Common |
|
|
Paid per |
|
|
Announced |
|
|
May Yet Be |
|
||||
|
Shares |
|
|
Common |
|
|
Plans or |
|
|
Purchased Under the |
|
||||
Period |
Purchased |
|
|
Share |
|
|
Programs |
|
|
Plans or Programs (1) |
|
||||
June 1-30, 2022 (2) |
|
9,145 |
|
|
$ |
44.73 |
|
|
|
- |
|
|
|
6,065,000 |
|
July 1-31, 2022 |
|
- |
|
|
|
- |
|
|
|
- |
|
|
|
6,065,000 |
|
August 1-31, 2022 |
|
- |
|
|
|
- |
|
|
|
- |
|
|
|
6,065,000 |
|
Total |
|
9,145 |
|
|
$ |
44.73 |
|
|
|
- |
|
|
|
|
The common shares available for repurchase under the authorizations currently in effect may be repurchased from time to time, with consideration given to the market price of the common shares, the nature of other investment opportunities, cash flows from operations, general economic conditions and other relevant considerations. Repurchases may be made on the open market or through privately negotiated transactions.
29
Item 3. – Defaults Upon Senior Securities
Not applicable.
Item 4. – Mine Safety Disclosures
Not applicable.
Item 5. – Other Information
Not applicable.
30
Item 6. – Exhibits
Exhibit No. |
|
Description |
|
|
|
2.1 |
|
|
|
|
|
3.1 |
|
Amended Articles of Incorporation of Worthington Industries, Inc., as filed with the Ohio Secretary of State on October 13, 1998 (Incorporated herein by reference to Exhibit 3(a) to the Quarterly Report on Form 10-Q of Worthington Industries, Inc. for the quarterly period ended August 31, 1998 (SEC File No. 0-4016)) P |
|
|
|
3.2 |
|
|
|
|
|
10.1 |
|
|
|
|
|
10.2 |
|
|
|
|
|
10.3 |
|
|
|
|
|
10.4 |
|
|
|
|
|
31.1 |
|
Rule 13a - 14(a) / 15d - 14(a) Certifications (Principal Executive Officer) * |
|
|
|
31.2 |
|
Rule 13a - 14(a) / 15d - 14(a) Certifications (Principal Financial Officer) * |
|
|
|
32.1 |
|
|
|
|
|
32.2 |
|
|
|
|
|
101.INS |
|
XBRL Instance Document – the instance document does not appear in the Interactive Date File because its XBRL tags are embedded within the Inline XBRL document. |
|
|
|
101.SCH |
|
Inline XBRL Taxonomy Extension Schema Document # |
|
|
|
101.PRE |
|
Inline XBRL Taxonomy Extension Presentation Linkbase Document # |
|
|
|
101.LAB |
|
Inline XBRL Taxonomy Extension Label Linkbase Document # |
|
|
|
101.CAL |
|
Inline XBRL Taxonomy Extension Calculation Linkbase Document # |
|
|
|
101.DEF |
|
Inline XBRL Taxonomy Extension Definition Linkbase Document # |
|
|
|
104 |
|
Cover Page Interactive Data File – the cover page from this Quarterly Report on Form 10-Q for the quarterly period ended August 31, 2022, formatted in Inline XBRL (included within the Exhibit 101 attachments). |
31
* Filed herewith.
** Furnished herewith.
The Disclosure Schedules and Exhibits referenced in the Equity Interest Purchase Agreement have been omitted pursuant to Item 601(a)(5) of SEC Regulation S-K. Worthington Industries, Inc. will supplementally furnish a copy of any of the omitted Disclosure Schedules and Exhibits to the Securities and Exchange Commission on a confidential basis upon request.
# Attached as Exhibit 101 to this Quarterly Report on Form 10-Q of Worthington Industries, Inc. are the following documents formatted in Inline XBRL (Extensible Business Reporting Language):
32
Signatures
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.
|
|
WORTHINGTON INDUSTRIES, INC. |
|
|
|
Date: October 11, 2022 |
By: |
/s/ Joseph B. Hayek |
|
|
Joseph B. Hayek, |
|
|
Vice President and Chief Financial Officer |
|
|
(On behalf of the Registrant as Duly Authorized Officer and as Principal Financial Officer) |
|
|
|
33
Exhibit 10.3
WORTHINGTON INDUSTRIES, INC.
AMENDED AND RESTATED 1997 LONG-TERM INCENTIVE PLAN
RESTRICTED STOCK AWARD AGREEMENT
10,000 SHARES – STEVEN M. CARAVATI
This Restricted Stock Award Agreement (this “Agreement”) is made effective as of June 24, 2022 (the “Grant Date”) by and between Worthington Industries, Inc. (the “Company”) and Steven M. Caravati (the “Participant”).
Section 1. Award of Restricted Stock.
The Company hereby grants the Participant an award of 10,000 restricted common shares of the Company (the “Restricted Stock”). The Restricted Stock is subject to the terms and conditions described in the Worthington Industries, Inc. Amended and Restated 1997 Long-Term Incentive Plan (the “Plan”) and this Agreement.
Section 2. Vesting.
(a) General. Subject to Section 3, the Restricted Stock will vest if both the Time Based Vesting Condition and the Performance Condition are met within the Award Period (as defined below).
(b) Time Based Vesting Condition. The Time Based Vesting Condition will be met on the third annual anniversary of the Grant Date (June 24, 2025) or if later the date the Performance Condition is met; provided that the Participant has continuously remained an employee of the Company or a subsidiary of the Company (collectively, the “Worthington Companies”) through such date.
(c) Performance Based Vesting Condition. The Performance Condition will be met if during any 90-consecutive-calendar-day period falling within the Award Period (as defined below), the reported closing price of the Company’s Shares averages $65.00 per Share. Meeting of the Performance Condition is subject to certification by the Committee that the foregoing performance criteria have been established and the Performance Condition applicable to the Restricted Stock has been met on the date as of which such certification is made.
The Restricted Stock will be forfeited if the conditions for vesting set forth in Section 2 or Section 3 are not met by the end of the Award Period.
The “Award Period” is the period beginning on the Grant Date and ending on the fifth anniversary of the Grant Date.
1
Section 3. Accelerated Vesting.
(a) Death or Disability. Any unvested Restricted Stock generally is forfeited if the Participant terminates employment due to death or disability as determined by the Committee, but (i) the Committee, in its sole discretion, may cause all or a portion of the Restricted Stock to vest as of the date of termination due to death or disability, as determined by the Committee; and (ii) the Committee shall cause all of the Restricted Stock to vest as of the date of termination due to death or disability, as determined by the Committee, if the Performance Condition has been met, but not the Time Based Vesting Condition.
(b) Change in Control. If there is a Change in Control and within two years thereafter the Participant’s employment is terminated by the applicable Worthington Company without “cause” or by the Participant “due to an adverse change in the terms of the Participant’s employment” (as those terms are defined in rules adopted by the Committee), any unvested Restricted Stock (to the extent not then forfeited) will become fully vested on the date employment is terminated. The provisions of this Section 3(b) will apply in lieu of the provisions of Section 10 of the Plan. For purposes of clarity, no unvested Restricted Stock will vest if the Participant’s termination occurs after the end of the Award Period.
(c) Termination Without Cause. If the applicable Worthington Company terminates the Participant’s employment without “Cause” after the Performance Condition has been met, but before the Time Based Vesting Condition has been met, the Restricted Stock will fully vest as of the date of such termination of employment. “Cause” shall mean the Participant’s (i) willful and continued failure to substantially perform assigned duties; (ii) gross misconduct; (iii) material breach of any term of any material agreement with the Company or any subsidiary, including this Agreement; (iv) conviction of (or plea of no contest or nolo contendere to) (A) a felony or (B) a crime other than a felony, which involves a breach of trust or fiduciary duty owned to the Company or any subsidiary; or (v) material violation of the Company’s code of conduct or any other policy of the Company or any subsidiary that applies to the Participant.
Section 4. Restrictions on Transferability.
Until the Restricted Stock becomes vested as described in Section 2 or Section 3, the Restricted Stock may not be sold, transferred, pledged, assigned or otherwise alienated or hypothecated.
Section 5. Rights Before Vesting.
Before the Restricted Stock vests, (a) the Restricted Stock will be held in escrow by the Company; (b) the Participant may exercise full voting rights associated with the Restricted Stock; and (c) the Participant will be entitled to all dividends and other distributions paid with respect to the Restricted Stock, but such dividends and other distributions will be held in escrow by the Company and will be subject to the same restrictions, terms and conditions as the Restricted Stock to which they relate.
2
Section 6. Settlement.
If the applicable terms and conditions of this Agreement are satisfied, the Restricted Stock will be released from any transfer restrictions or delivered to the Participant with reasonable promptness after all applicable restrictions have lapsed. Any fractional shares of Restricted Stock will be settled in cash based upon the Fair Market Value of a Common Share on the settlement date.
The issuance of Shares will be subject to the satisfaction of the Company’s counsel that such issuance will be in compliance with applicable Federal and state securities laws. Any Shares delivered under the Plan will be subject to such stock-transfer orders and other restrictions as the Committee may deem advisable under the rules, regulations and other requirements of the Securities and Exchange Commission, any stock exchange upon which the Shares are then listed and any applicable Federal or state securities law, and the Committee may cause a legend or legends to be put on any certificates evidencing such Shares to make appropriate reference to such restrictions.
Section 7. Withholding.
The Company is authorized to withhold in respect of the Restricted Stock, the amount of withholding taxes due in respect of vesting of such Restricted Stock and to take such other action as may be necessary in the opinion of the Company to satisfy all obligations for the payment of such taxes. The Committee may establish procedures for election by the Participant to satisfy such withholding taxes by delivery of, or directing the Company to retain, Shares that would otherwise be deliverable upon vesting of the Restricted Stock.
Section 8. Non-Competition.
In the event that the Participant terminates employment with the Worthington Companies for any reason whatsoever, and within 18 months after the date thereof becomes associated with, employed by, renders services to, or owns any interest in (other than any nonsubstantial interest, as determined by the Committee), any business that is in competition with the Company or any subsidiary of the Company or with any business in which the Company or any subsidiary of the Company has a substantial interest as determined by the Committee, the Committee, in its sole discretion, may require the Participant to return to the Company the economic value of the Restricted Stock which is realized or obtained (measured as of the date on which the Restricted Stock vested) by the Participant at any time during the period beginning on that date which is six months prior to the date of the Participant’s termination of employment with the Worthington Companies.
Section 9. Other Terms and Conditions.
(a) Beneficiaries. The Participant may designate a beneficiary to receive any Restricted Stock that is unsettled in the event of the Participant’s death. If no beneficiary is designated, the Participant’s beneficiary will be the Participant’s surviving spouse and, if there is no surviving spouse, the Participant’s estate.
3
(b) No Guarantee of Employment. The granting of Restricted Stock will not confer upon the Participant any right to continued employment with any Worthington Company, nor will it interfere in any way with the right of any Worthington Company to terminate the employment of the Participant at any time, with or without cause.
(c) Governing Law. This Agreement will be governed by and construed in accordance with the laws (other than laws governing conflicts of laws) of the State of Ohio.
(d) Rights and Remedies Cumulative. All rights and remedies of the Company and of the Participant enumerated in this Agreement will be cumulative and, except as expressly provided otherwise in this Agreement, none will exclude any other rights or remedies allowed at law or in equity, and each of said rights or remedies may be exercised and enforced concurrently.
(e) Captions. The captions contained in this Agreement are included only for convenience of reference and do not define, limit, explain or modify this Agreement or its interpretation, construction or meaning and are in no way to be construed as a part of this Agreement.
(f) Severability. If any provision of this Agreement or the application of any provision hereof to any person or any circumstance will be determined to be invalid or unenforceable, then such determination will not affect any other provision of this Agreement or the application of said provision to any other person or circumstance, all of which other provisions will remain in full force and in effect.
(g) Entire Agreement. This Agreement, together with the Notice of Grant and the Plan, which are incorporated herein by reference, constitutes the entire agreement between the Company and the Participant in respect of the subject matter of this Agreement, and this Agreement supersedes all prior and contemporaneous agreements between the parties hereto in connection with the subject matter of this Agreement. No officer, director, employee or other servant or agent of the Company, and no servant or agent of the Participant, is authorized to make any representation, warranty or other promise not contained in this Agreement. No change, termination or attempted waiver of any of the provisions of this Agreement will be binding upon any party hereto unless contained in a writing signed by the party to be charged.
(h) Restricted Stock Subject to the Plan. The Restricted Stock is subject to the terms and conditions described in this Agreement and the Plan, which is incorporated by reference into and made a part of this Agreement. In the event of a conflict between the terms of the Plan and the terms of this Agreement, the terms of the Plan will govern except as specifically provided in this Agreement. The Committee has the sole responsibility for interpreting the Plan and this Agreement, and the Committee’s determination of the meaning of any provision in the Plan or this Agreement will be binding on the Participant. Capitalized terms that are not defined in this Agreement have the same meaning as in the Plan.
4
(i) Section 83(b) Election. The Participant may file an election pursuant to Section 83(b) of the Code to be taxed currently on the Fair Market Value of the Restricted Stock (less any purchase price paid for the Restricted Stock). The election will be made on a form provided by the Company and must be filed with the Internal Revenue Service no later than 30 days after the Grant Date. The Participant must seek the advice of the Participant’s own tax advisors as to the advisability of making such an election, the potential consequences of making such an election, the requirements for making such an election, and the other tax consequences of the Restricted Stock under federal, state, and any other laws, rules and regulations that may be applicable. The Company and its agents have not and are not providing any tax advice to the Participant.
Section 10. Application of Section 280G of the Code.
If the Company determines that any payment or benefit, including any accelerated vesting, due to the Participant under this Agreement in connection with a Change in Control, when combined with any other payment or benefit due to the Participant from the Company or any other entity in connection with such Change in Control, would be considered a “parachute payment” within the meaning of Section 280G of the Code, the payments and benefits due to the Participant under this Agreement may be reduced by the Company to $1.00 less than the amount that would otherwise be considered a “parachute payment” within the meaning of Section 280G of the Code, in accordance with rules and procedures which may be established by the Committee.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed effective as of the Grant Date set forth above.
PARTICIPANT WORTHINGTON INDUSTRIES, INC.
______________________________ By: __________________________
Signature Patrick J. Kennedy
Steven M. Caravati Its: Vice President – Secretary
Printed Name
Dated: ____________________, 2022 Dated: ____________________, 2022
5
EXHIBIT 10.4
EXECUTION VERSION
FIRST AMENDMENT TO THE
RECEIVABLES FINANCING AGREEMENT
This FIRST AMENDMENT TO THE RECEIVABLES FINANCING AGREEMENT (this “Amendment”), dated as of October 6, 2022, is entered into by and among the following parties:
(i) WORTHINGTON RECEIVABLES COMPANY, LLC, as Borrower;
(ii) PNC BANK, NATIONAL ASSOCIATION (“PNC”), as Administrator and a Lender;
(iii) WORTHINGTON INDUSTRIES, INC., as initial Servicer; and
(iv) PNC CAPITAL MARKETS LLC, as Structuring Agent.
Capitalized terms used but not otherwise defined herein (including such terms used above) have the respective meanings assigned thereto in the Receivables Financing Agreement described below.
BACKGROUND
NOW, THEREFORE, with the intention of being legally bound hereby, and in consideration of the mutual undertakings expressed herein, each party to this Amendment hereby agrees as follows:
749337247 22708133 |
|
|
749337247 22708133 |
2 |
|
749337247 22708133 |
3 |
|
[Signature Pages Follow]
749337247 22708133 |
4 |
|
IN WITNESS WHEREOF, the parties have executed this Amendment as of the date first written above.
|
WORTHINGTON RECEIVABLES COMPANY, LLC Printed Name: Marcus Rogier Title: Treasurer |
|
|
|
|
|
|
|
WORTHINGTON INDUSTRIES, INC., as initial Servicer Printed Name: Marcus Rogier Title: Treasurer |
|
|
|
|
|
|
|
|
S-1
749337247 22708133
|
PNC BANK, NATIONAL ASSOCIATION, Printed Name: Michael Brown Title: Executive Vice President
|
|
|
|
|
|
PNC BANK, NATIONAL ASSOCIATION,
Printed Name: Michael Brown Title: Executive Vice President |
|
|
PNC CAPITAL MARKETS LLC,
Printed Name: Michael Brown Title: Executive Vice President |
S-2
749337247 22708133
EXHIBIT A to Amendment No.1, dated October 6, 2022
RECEIVABLES FINANCING AGREEMENT
Dated as of May 19, 2022
by and among
WORTHINGTON RECEIVABLES COMPANY, LLC,
as Borrower,
THE PERSONS FROM TIME TO TIME PARTY HERETO,
as Lenders,
PNC BANK, NATIONAL ASSOCIATION,
as Administrator,
WORTHINGTON INDUSTRIES, INC.,
as initial Servicer,
and
PNC CAPITAL MARKETS LLC,
as Structuring Agent
749337247 22708133
Table of Contents
|
|
|
|
|
|
Page |
ARTICLE I |
DEFINITIONS |
1 |
||||
|
SECTION 1.01 |
Certain Defined Terms |
1 |
|||
|
SECTION 1.02 |
Other Interpretative Matters |
25 |
|||
|
SECTION 1.03 |
Benchmark Replacement Notification |
26 |
|||
|
SECTION 1.04 |
Conforming Changes Relating to SOFR or Daily Simple SOFR |
26 |
|||
|
|
|
|
|
|
|
ARTICLE II |
TERMS OF THE LOAN |
26 |
||||
|
SECTION 2.01 |
Loan Facility |
26 |
|||
|
SECTION 2.02 |
Making Loans; Repayment of Loans |
27 |
|||
|
|
|
|
|
|
|
ARTICLE III |
INTEREST RATES; FEES |
28 |
||||
|
SECTION 3.01 |
Interest Rate Options |
28 |
|||
|
SECTION 3.02 |
Interest Periods |
29 |
|||
|
SECTION 3.03 |
Interest After Default |
30 |
|||
|
SECTION 3.04 |
Rate Unascertainable; Increased Costs; Illegality; Benchmark Replacement Setting |
30 |
|||
|
SECTION 3.05 |
Selection of Interest Rate Options |
36 |
|||
|
SECTION 3.06 |
Interest Payment Dates |
36 |
|||
|
SECTION 3.07 |
Fees |
37 |
|||
|
SECTION 3.08 |
Records of Loans |
37 |
|||
|
SECTION 3.09 |
Defaulting Lenders |
37 |
|||
|
|
|
|
|
|
|
ARTICLE IV |
SETTLEMENT PROCEDURES AND PAYMENT PROVISIONS |
38 |
||||
|
SECTION 4.01 |
Settlement Procedures |
38 |
|||
|
SECTION 4.02 |
Payments and Computations, Etc |
40 |
|||
|
|
|
|
|
|
|
ARTICLE V |
INCREASED COSTS; FUNDING LOSSES; TAXES; ILLEGALITY AND SECURITY INTEREST |
41 |
||||
|
SECTION 5.01 |
Increased Costs |
41 |
|||
|
SECTION 5.02 |
Funding Losses |
42 |
|||
|
SECTION 5.03 |
Taxes |
42 |
|||
|
SECTION 5.04 |
Security Interest |
46 |
|||
|
SECTION 5.05 |
Mitigation Obligations; Replacement of Lenders |
47 |
|||
|
|
|
|
|
|
|
ARTICLE VI |
CONDITIONS TO EFFECTIVENESS AND CREDIT EXTENSIONS |
49 |
||||
|
SECTION 6.01 |
Conditions Precedent to Effectiveness and the Initial Credit Extension |
49 |
|||
|
SECTION 6.02 |
Conditions Precedent to All Credit Extensions |
49 |
|||
|
SECTION 6.03 |
Conditions Precedent to All Releases |
49 |
|||
|
|
|
|
|
|
|
i
749337247 22708133
TABLE OF CONTENTS |
||||||
(continued) |
||||||
|
|
|
|
|
|
|
ARTICLE VII |
REPRESENTATIONS AND WARRANTIES |
50 |
||||
|
SECTION 7.01 |
Representations and Warranties of the Borrower |
50 |
|||
|
SECTION 7.02 |
Representations and Warranties of the Servicer |
55 |
|||
|
|
|
|
|
|
|
ARTICLE VIII |
COVENANTS |
58 |
||||
|
SECTION 8.01 |
Covenants of the Borrower |
58 |
|||
|
SECTION 8.02 |
Covenants of the Servicer |
64 |
|||
|
SECTION 8.03 |
Separate Existence of the Borrower |
70 |
|||
|
|
|
|
|
|
|
ARTICLE IX |
ADMINISTRATION AND COLLECTION OF RECEIVABLES |
75 |
||||
|
SECTION 9.01 |
Appointment of the Servicer |
75 |
|||
|
SECTION 9.02 |
Duties of the Servicer |
76 |
|||
|
SECTION 9.03 |
Lock-Box Account Arrangements |
77 |
|||
|
SECTION 9.04 |
Enforcement Rights |
77 |
|||
|
SECTION 9.05 |
Responsibilities of the Borrower |
79 |
|||
|
SECTION 9.06 |
Servicing Fee |
79 |
|||
|
|
|
|
|
|
|
ARTICLE X |
EVENTS OF DEFAULT |
79 |
||||
|
SECTION 10.01 |
Events of Default |
80 |
|||
|
|
|
|
|
|
|
ARTICLE XI |
THE ADMINISTRATOR |
82 |
||||
|
SECTION 11.01 |
Appointment and Authority |
82 |
|||
|
SECTION 11.02 |
Rights as a Lender |
83 |
|||
|
SECTION 11.03 |
Exculpatory Provisions |
83 |
|||
|
SECTION 11.04 |
Reliance by Administrator |
84 |
|||
|
SECTION 11.05 |
Delegation of Duties |
84 |
|||
|
SECTION 11.06 |
Resignation of Administrator |
85 |
|||
|
SECTION 11.07 |
Non-Reliance on Administrator and Other Lenders |
85 |
|||
|
SECTION 11.08 |
No Other Duties, Etc |
86 |
|||
|
SECTION 11.09 |
Administrator May File Proofs of Claim |
86 |
|||
|
SECTION 11.10 |
No Reliance on Administrator’s Customer Identification Program |
86 |
|||
|
SECTION 11.11 |
Erroneous Payments |
87 |
|||
|
SECTION 11.12 |
Indemnification of Administrator |
89 |
|||
|
|
|
|
|
|
|
ARTICLE XII |
[RESERVED] |
89 |
||||
|
|
|
|
|
|
|
ARTICLE XIII |
INDEMNIFICATION |
89 |
||||
|
SECTION 13.01 |
Indemnities by the Borrower |
89 |
|||
|
SECTION 13.02 |
Indemnification by the Servicer |
92 |
|||
|
|
|
|
|
|
|
ii
749337247 22708133
TABLE OF CONTENTS |
||||
(continued) |
||||
|
||||
ARTICLE XIV |
MISCELLANEOUS |
93 |
||
|
SECTION 14.01 |
Amendments, Etc |
93 |
|
|
SECTION 14.02 |
Notices, Etc |
94 |
|
|
SECTION 14.03 |
Assignability; Addition of Lenders |
95 |
|
|
SECTION 14.04 |
Costs and Expenses |
97 |
|
|
SECTION 14.05 |
No Proceedings; Limitation on Payments |
97 |
|
|
SECTION 14.06 |
Confidentiality |
98 |
|
|
SECTION 14.07 |
GOVERNING LAW |
99 |
|
|
SECTION 14.08 |
Execution in Counterparts |
99 |
|
|
SECTION 14.09 |
Integration; Binding Effect; Survival of Termination |
100 |
|
|
SECTION 14.10 |
CONSENT TO JURISDICTION |
100 |
|
|
SECTION 14.11 |
WAIVER OF JURY TRIAL |
101 |
|
|
SECTION 14.12 |
Ratable Payments |
101 |
|
|
SECTION 14.13 |
Limitation of Liability |
101 |
|
|
SECTION 14.14 |
Intent of the Parties |
102 |
|
|
SECTION 14.15 |
USA Patriot Act |
102 |
|
|
SECTION 14.16 |
Right of Setoff |
102 |
|
|
SECTION 14.17 |
Severability |
102 |
|
|
SECTION 14.18 |
Mutual Negotiations |
102 |
|
|
SECTION 14.19 |
Captions and Cross References |
103 |
EXHIBITS |
|
|
|
|
|
EXHIBIT A |
– |
Form of Loan Request |
EXHIBIT B |
– |
Form of Reduction Notice |
EXHIBIT C |
– |
Form of Assignment and Acceptance Agreement |
EXHIBIT D |
– |
[Reserved] |
EXHIBIT E |
– |
Credit and Collection Policy |
EXHIBIT F |
– |
Form of Information Package |
EXHIBIT G |
– |
Form of Compliance Certificate |
EXHIBIT H |
– |
Closing Memorandum |
|
|
|
SCHEDULES |
|
|
|
|
|
SCHEDULE I |
– |
Commitments |
SCHEDULE II |
– |
Lock-Boxes, Lock-Box Accounts and Lock-Box Account Banks |
SCHEDULE III |
– |
Notice Addresses |
iii
749337247 22708133
This RECEIVABLES FINANCING AGREEMENT (as amended, restated, supplemented or otherwise modified from time to time, this “Agreement”) is entered into as of May 19, 2022, by and among the following parties:
(i) WORTHINGTON RECEIVABLES COMPANY, LLC, a Delaware limited liability company, as Borrower (together with its successors and assigns, the “Borrower”);
(ii) the Persons from time to time party hereto as Lenders;
(iii) PNC BANK, NATIONAL ASSOCIATION (“PNC”), as Administrator;
(iv) WORTHINGTON INDUSTRIES, INC., an Ohio corporation, in its individual capacity (“Worthington”) and as an initial Servicer (in such capacity, together with its successors and assigns in such capacity, the “Servicer”); and
(v) PNC CAPITAL MARKETS LLC, a Pennsylvania limited liability company, as Structuring Agent.
PRELIMINARY STATEMENTS
The Borrower has acquired, and will acquire from time to time, Receivables from the Originator(s) pursuant to the Sale Agreement. The Borrower has requested that the Lenders make Loans from time to time to the Borrower, on the terms, and subject to the conditions set forth herein, secured by, among other things, the Receivables.
In consideration of the mutual agreements, provisions and covenants contained herein, the sufficiency of which is hereby acknowledged, the parties hereto agree as follows:
“Accrual Period” means, with respect to each Loan, (a) prior to the Monthly Settlement Date occurring in October 2022, the Prior Accrual Period, (b) the Stub Period and (c) beginning on November 1, 2022, (i) before the Termination Date: (A) initially, the period commencing on the date such Loan is made pursuant to Section 2.01 and ending on (but not including) the last day of the Fiscal Month during which such Loan is made and (B) thereafter, each Fiscal Month and (ii) on and after the Termination Date or if an Event of Default has occurred and is continuing, such period (including a period of one day) selected from time to time by the Administrator (with the consent or at the direction of the Majority Lenders), or, in the absence of such selection, each calendar month.
1
749336112 22708133
“Administrator” means PNC, in its capacity as contractual representative for the Credit Parties, and any successor thereto in such capacity appointed pursuant to Article XI or Section 14.03(f).
“Adverse Claim” means a lien, security interest or other charge or encumbrance, or any other type of preferential arrangement; it being understood that any thereof in favor of the Administrator (for the benefit of the Lenders) shall not constitute an Adverse Claim.
“Advisors” has the meaning set forth in Section 14.06(c).
“Affected Person” means each Credit Party and each of their respective Affiliates.
“Affiliate” means, as to any Person: (a) any Person that, directly or indirectly, is in control of, is controlled by or is under common control with such Person, or (b) who is a director or officer: (i) of such Person or (ii) of any Person described in clause (a). For purposes of this definition, control of a Person shall mean the power, direct or indirect: (x) to vote 25% or more of the securities having ordinary voting power for the election of directors of such Person, or (y) to direct or cause the direction of the management and policies of such Person, in either case whether by ownership of securities, contract, proxy or otherwise.
“Aggregate Interest” means, at any time of determination, the aggregate accrued and unpaid Interest on the Loans of all Lenders at such time.
“Aggregate Principal” means, at any time of determination, the aggregate outstanding Principal of all Lenders at such time.
“Agreement” has the meaning set forth in the preamble to this Agreement.
“Anti-Corruption Laws” means the United States Foreign Corrupt Practices Act of 1977, as amended, the UK Bribery Act 2010, and any other similar anti-corruption Laws or regulations administered or enforced in any jurisdiction in which the Parent or any of its Subsidiaries conduct business.
“Anti-Terrorism Law” means any Law in force or hereinafter enacted related to terrorism, money laundering, or economic sanctions, including the Bank Secrecy Act, 31 U.S.C. § 5311 et seq., the USA PATRIOT Act, the International Emergency Economic Powers Act, 50 U.S.C. 1701, et seq., the Trading with the Enemy Act, 50 U.S.C. App. 1, et seq., 18 U.S.C. § 2332d, and 18 U.S.C. § 2339B.
“Applicable Law” means, with respect to any Person, (x) all provisions of law, statute, treaty, ordinance, rule, regulation, requirement, restriction, permit, certificate, decision, directive or order of any Governmental Authority applicable to such Person or any of its property and (y) all judgments, injunctions, orders, writs, decrees and awards of all courts and arbitrators in proceedings or actions in which such Person is a party or by which any of its property is bound. For the avoidance of doubt, FATCA shall constitute an “Applicable Law” for all purposes of this Agreement.
2
749336112 22708133
“Assignment and Acceptance Agreement” means an assignment and acceptance agreement entered into by a Lender, an Eligible Assignee and the Administrator, and, if required, the Borrower, pursuant to which such Eligible Assignee may become a party to this Agreement, in substantially the form of Exhibit C hereto.
“Attorney Costs” means and includes all reasonable and documented out of pocket fees, costs, expenses and disbursements of any law firm or other external counsel.
“Bankruptcy Code” means the United States Bankruptcy Reform Act of 1978 (11 U.S.C. § 101, et seq.), as amended from time to time.
“Base Rate” means, for any day, a rate per annum equal to the highest of (a) the Overnight Bank Funding Rate in effect on such day plus 0.50%, (b) the Prime Rate in effect on such day and (c) Daily Simple SOFR in effect on such day plus 1.00%. Any change in the Base Rate due to a change in the Overnight Bank Funding Rate, the Prime Rate or Daily Simple SOFR shall be effective from and including the effective date of such change in the Overnight Bank Funding Rate, the Prime Rate or the Daily Simple SOFR, respectively.
“Base Rate Option” means the option of the Borrower to have Loans bear interest at the rate and under the terms specified in Section 3.01(a)(ii)(B).
“Benchmark Replacement” has the meaning set forth in Section 3.04(d).
“Beneficial Owner” means, for the Borrower, each of the following: (a) each individual, if any, who, directly or indirectly, owns 25% or more of the Borrower’s Capital Stock; and (b) a single individual with significant responsibility to control, manage, or direct the Borrower.
“Benefit Plan” means any employee benefit pension plan as defined in Section 3(2) of ERISA in respect of which the Borrower, any Originator, Worthington or any ERISA Affiliate is, or at any time during the immediately preceding six years was, an “employer” as defined in Section 3(5) of ERISA.
“Bloomberg” means Bloomberg Index Services Limited (or a successor administrator).
“Borrower” has the meaning specified in the preamble to this Agreement.
“Borrower Indemnified Amounts” has the meaning set forth in Section 13.01(a).
“Borrower Indemnified Party” has the meaning set forth in Section 13.01(a).
“Borrower Obligations” means all present and future indebtedness, reimbursement obligations, and other liabilities and obligations (howsoever created, arising or evidenced, whether direct or indirect, absolute or contingent, or due or to become due) of the Borrower to any Credit Party, Borrower Indemnified Party and/or any Affected Person, arising under or in connection with this Agreement or any other Transaction Document or the transactions contemplated hereby or thereby, and shall include all Principal and Interest on the Loans, all Fees and all other amounts due or to become due under the Transaction Documents (whether in respect of fees, costs, expenses, indemnifications or otherwise), including interest, fees and other obligations that accrue
3
749336112 22708133
after the commencement of any Insolvency Proceeding with respect to the Borrower (in each case whether or not allowed as a claim in such proceeding).
“Borrower-Related Party” means each of Borrower, the Servicer, the Performance Guarantor, the Parent or any Originator.
“Borrowing Base” means, at any time of determination, the amount equal to the lesser of (a) the Facility Limit and (b) the amount equal to (i) the Net Receivables Pool Balance at such time, minus (ii) the Total Reserves at such time.
“Borrowing Base Deficit” means, at any time of determination, the amount, if any, by which (a) the Aggregate Principal at such time, exceeds (b) the Borrowing Base at such time.
“Borrowing Tranche” means specified portions of Loans consisting of simultaneous loans of the same Type, and in the case of Term Rate Loans, having the same Interest Period. For the avoidance of doubt, Daily Rate Loans of the same Type shall be considered one Borrowing Tranche.
“Breakage Fee” means (i) for any Interest Period for which Interest is computed by reference to Term SOFR and a reduction of Principal is made for any reason on any day other than the last day of the related Interest Period or (ii) to the extent that the Borrower shall for any reason, fail to borrow on the date specified by the Borrower in connection with any request for funding pursuant to Article II of this Agreement, the amount, if any, by which (A) the additional Interest (calculated without taking into account any Breakage Fee or any shortened duration of such Interest Period pursuant to the definition thereof) which would have accrued during such Interest Period on the reductions of Principal relating to such Interest Period had such reductions not been made (or, in the case of clause (ii) above, the amounts so failed to be borrowed or accepted in connection with any such request for funding by the Borrower), exceeds (B) the income, if any, received by the applicable Lender from the investment of the proceeds of such reductions of Principal (or such amounts failed to be borrowed by the Borrower). A certificate as to the amount of any Breakage Fee (including the computation of such amount) shall be submitted by the affected Lender to the Borrower and shall be conclusive and binding for all purposes, absent manifest error.
“Business Day” means any day other than (a) a Saturday, (b) Sunday or (c) a legal holiday on which commercial banks are authorized or required to be closed, or are in fact closed, for business in Pittsburgh, Pennsylvania; provided that, when used in connection with an amount that bears interest at a rate based on SOFR or any direct or indirect calculation or determination of SOFR, the term “Business Day” means any such day that is also a U.S. Government Securities Business Day.
“Capital Stock” means, with respect to any Person, any and all common shares, preferred shares, interests, participations, rights in or other equivalents (however designated) of such Person’s capital stock, partnership interests, limited liability company interests, membership interests or other equivalent interests and any rights (other than debt securities convertible into or exchangeable for capital stock), warrants or options exchangeable for or convertible into such capital stock or other equity interests.
4
749336112 22708133
“Certificate of Beneficial Ownership” means, for the Borrower, a certificate in form and substance acceptable to the Administrator (as amended or modified by the Administrator from time to time in its sole discretion), certifying, among other things, the Beneficial Owner of the Borrower.
“Change in Control” means the occurrence of any of the following:
(a) Worthington Steel Company ceases to own, directly, 100% of the issued and outstanding Capital Stock and all other equity interests of the Borrower free and clear of all Adverse Claims;
(b) the Parent ceases to own, directly or indirectly, 100% of the issued and outstanding Capital Stock, membership interests or other equity interests of any Originator; or
(c) with respect to Worthington:
(i) any “person” or “group” (within the meaning of Section 13(d) and 14(d) of the Exchange Act) (other than the spouses, siblings, descendants, spouses of any such siblings or descendants, trusts created exclusively for the benefit of such Persons, executors, administrators, guardians, or conservators of the estate of John H. McConnell, John P. McConnell, their respective Affiliates and Associates (as defined in Rule 12b-2 under the Exchange Act), or a group which the foregoing are a principal participant, or any profit sharing, employee stock ownership or other employee benefit plan of Worthington or any Subsidiary of Worthington or any trustee or fiduciary with respect to any such plan when acting in such capacity) has become the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act, except that a Person shall be deemed to have “beneficial ownership” of all securities that any such Person has the right to acquire, whether such right is exercisable immediately or only after the passage of time), by way of merger, consolidation or otherwise, of 30% or more of the Capital Stock of Worthington on a fully-diluted basis after giving effect to the conversion and exercise of all outstanding Equity Equivalents (whether or not such Equity Equivalents are then currently convertible or exercisable); or
(ii) during any period of 12 consecutive months, a majority of the members of the board of directors or other equivalent governing body of Worthington cease to be composed of individuals (A) who were members of that board or equivalent governing body on the first day of such period, (B) whose election or nomination to that board or equivalent governing body was approved by individuals referred to in clause (ii)(A) above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body or (C) whose election or nomination to that board or other equivalent governing body was approved by individuals referred to in clauses (ii)(A) and (B) above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body.
5
749336112 22708133
“Change in Law” means the occurrence, after the Closing Date, of any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation, implementation or application thereof by any Governmental Authority or (c) the making or issuance of any request, rule, guideline or directive (whether or not having the force of law) by any Governmental Authority; provided that notwithstanding anything herein to the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to the agreements reached by the Basel Committee on Banking Supervision in “Basel III: A Global Regulatory Framework for More Resilient Banks and Banking Systems”, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted or issued.
“Closing Date” means May 19, 2022.
“Collateral” has the meaning set forth in Section 5.04(a).
“Collections” means, with respect to any Pool Receivable: (a) all funds that are received by any Originator, the Borrower, the Servicer or any other Person on their behalf in payment of any amounts owed in respect of such Pool Receivable (including purchase price, service charges, finance charges, interest, fees and all other charges), or applied to amounts owed in respect of such Pool Receivable (including insurance payments, proceeds of drawings under supporting letters of credit and net proceeds of the sale or other disposition of repossessed goods or other collateral or property of the related Obligor or any other Person directly or indirectly liable for the payment of such Pool Receivable and available to be applied thereon), (b) all Deemed Collections, (c) all proceeds of all Related Security with respect to such Pool Receivable and (d) all other proceeds of such Pool Receivable.
“Commitment” means, with respect to any Lender, the maximum aggregate amount of Principal which such Person is obligated to lend or pay hereunder on account of all Loans, on a combined basis, as set forth on Schedule I or other agreement pursuant to which it became a Lender, as such amount may be modified in connection with any subsequent assignment pursuant to Section 14.03 or in connection with a reduction in the Facility Limit pursuant to Section 2.02(e). If the context so requires, “Commitment” also refers to a Lender’s obligation to make Loans hereunder in accordance with this Agreement.
“Company Note” has the meaning set forth in Section 3.1 of the Sale Agreement.
“Concentration Percentage” means (a) for any Group A Obligor, 20.0%, (b) for any Group B Obligor, 15.0%, (c) for any Group C Obligor, 10.0% and (d) for any Group D Obligor, 4.0%.
“Concentration Reserve Percentage” means, at any time of determination, the largest of: (a) the sum of the five (5) largest Obligor Percentages of the Group D Obligors, (b) the sum of the three (3) largest Obligor Percentages of the Group C Obligors, (c) the sum of the two (2) largest Obligor Percentages of the Group B Obligors and (d) the largest Obligor Percentage of the Group A Obligors.
6
749336112 22708133
“Conforming Changes” means, with respect to Term SOFR, Daily Simple SOFR or any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition of “Accrual Period,” the definition of “Base Rate,” the definition of “Business Day,” the definition of “Interest Period,” timing and frequency of determining rates and making payments of interest, timing of borrowing requests or prepayment, conversion or continuation notices, the applicability and length of lookback periods, the applicability of breakage provisions, and other technical, administrative or operational matters) that the Administrator decides may be appropriate to reflect the adoption and implementation of Term SOFR, Daily Simple SOFR or such Benchmark Replacement and to permit the administration thereof by the Administrator in a manner substantially consistent with market practice (or, if the Administrator decides that adoption of any portion of such market practice is not administratively feasible or if the Administrator determines that no market practice for the administration of Term SOFR, Daily Simple SOFR or the Benchmark Replacement exists, in such other manner of administration as the Administrator decides is reasonably necessary in connection with the administration of this Agreement and the other Transaction Documents).
“Contract” means, with respect to any Receivable, any and all contracts, instruments, agreements, leases, invoices, notes or other writings pursuant to which such Receivable arises or that evidence such Receivable or under which an Obligor becomes or is obligated to make payment in respect of such Receivable.
“Covered Entity” means (a) each Borrower-Related Party and its respective Subsidiaries, and (b) each Person that, directly or indirectly, controls a Person described in clause (a) above. For purposes of this definition, control of a Person means the direct or indirect (x) ownership of, or power to vote, 25% or more of the issued and outstanding equity interests having ordinary voting power for the election of directors of such Person or other Persons performing similar functions for such Person, or (y) power to direct or cause the direction of the management and policies of such Person whether by ownership of equity interests, contract or otherwise.
“Credit and Collection Policy” means, as the context may require, those receivables credit and collection policies and practices of the Originators and of Worthington in effect on the Closing Date and described in Exhibit E, as modified in compliance with this Agreement.
“Credit Extension” means the making of any Loan.
“Credit Party” means each Lender, the Structuring Agent and the Administrator.
“Cut-off Date” has the meaning set forth in the Sale Agreement.
“Daily Rate Loan” means a Loan that bears interest at a rate based on the (i) Base Rate or (ii) Daily Simple SOFR.
“Daily Rate Loan Option” means the option of the Borrower to have Loans bear interest at the rate and under the terms specified in Section 3.01(a)(ii).
7
749336112 22708133
“Daily Simple SOFR” means, for any day (a “SOFR Rate Day”), the sum of (a) the SOFR Adjustment, plus (b) the interest rate per annum determined by the Administrator by dividing (the resulting quotient rounded upwards, at the Administrator’s discretion, to the nearest 1/100th of 1%) (A) SOFR for the day (the “SOFR Determination Date”) that is two (2) Business Days prior to (i) such SOFR Rate Day if such SOFR Rate Day is a Business Day or (ii) the Business Day immediately preceding such SOFR Rate Day if such SOFR Rate Day is not a Business Day, by (B) a number equal to 1.00 minus the SOFR Reserve Percentage, in each case, as such SOFR is published by the Federal Reserve Bank of New York (or a successor administrator of the secured overnight financing rate) on the website of the Federal Reserve Bank of New York, currently at http://www.newyorkfed.org, or any successor source identified by the Federal Reserve Bank of New York or its successor administrator for the secured overnight financing rate from time to time. If Daily Simple SOFR as determined above would be less than the SOFR Floor, then Daily Simple SOFR shall be deemed to be the SOFR Floor. If SOFR for any SOFR Determination Date has not been published or replaced with a Benchmark Replacement by 5:00 p.m. (Pittsburgh, Pennsylvania time) on the second Business Day immediately following such SOFR Determination Date, then SOFR for such SOFR Determination Date will be SOFR for the first Business Day preceding such SOFR Determination Date for which SOFR was published in accordance with the definition of “SOFR”; provided that SOFR determined pursuant to this sentence shall be used for purposes of calculating Daily Simple SOFR for no more than three (3) consecutive SOFR Rate Days. If and when Daily Simple SOFR as determined above changes, any applicable rate of interest based on Daily Simple SOFR will change automatically without notice to the Borrower, effective on the date of any such change.
“Daily Simple SOFR Option” means the option of the Borrower to have Loans bear interest at the rate and under the terms specified in Section 3.01(a)(ii)(A).
“Days’ Sales Outstanding” means, for any Fiscal Month, an amount computed as of the last day of such Fiscal Month equal to: (a) the average of the aggregate Outstanding Balance of all Pool Receivables as of the last day of each of the three most recent Fiscal Months ended on the last day of such Fiscal Month, divided by (b) (i) the aggregate initial Outstanding Balance of all Pool Receivables generated by the Originators during the three most recent Fiscal Months ended on the last day of such Fiscal Month, divided by (ii) 90.
“Debt” means: (a) indebtedness for borrowed money, (b) obligations evidenced by bonds, debentures, notes or other similar instruments, (c) obligations to pay the deferred purchase price of property or services, (d) obligations as lessee under leases that shall have been or should be, in accordance with generally accepted accounting principles, recorded as capital leases, and (e) obligations under direct or indirect guaranties in respect of, and obligations (contingent or otherwise) to purchase or otherwise acquire, or otherwise to assure a creditor against loss in respect of, indebtedness or obligations of others of the kinds referred to in clauses (a) through (d).
“Debtor Relief Laws” means the Bankruptcy Code, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar Applicable law providing for debtor relief in the United States or other applicable jurisdictions from time to time in effect.
“Deemed Collections” has the meaning set forth in Section 4.01(d).
8
749336112 22708133
“Default Ratio” means the ratio (expressed as a percentage and rounded to the nearest 1/100th of 1%, with 5/1000th of 1% rounded upward) computed as of the last day of each Fiscal Month by dividing: (a) the aggregate Outstanding Balance of all Pool Receivables that became Defaulted Receivables during such Fiscal Month, by (b) the aggregate initial Outstanding Balance of all Pool Receivables generated by the Originators during the month that is five (5) Fiscal Months before such Fiscal Month.
“Defaulted Receivable” means a Receivable (without duplication):
(a) as to which any payment, or part thereof, remains unpaid for more than 120 days, in each case from the due date for such payment; or
(b) without duplication (i) as to which an Insolvency Proceeding shall have occurred with respect to the Obligor thereof or any other Person obligated thereon or owning any Related Security with respect thereto, (ii) that has been charged-off as uncollectible or (iii) that should have been charged-off as uncollectible pursuant to the Credit and Collection Policy.
The “Outstanding Balance” of any Defaulted Receivable shall be determined without regard to any credit memos or credit balances.
“Defaulting Lender” means any Lender that (a) has failed, within two (2) Business Days of the date required to be funded or paid, to (i) fund any portion of its Loans or (ii) pay over to the Borrower any other amount required to be paid by it hereunder, unless, in the case of clause (i) above, such Lender notifies the Administrator in writing that such failure is the result of such Lender's good faith determination that a condition precedent to funding (specifically identified and including the particular default, if any) has not been satisfied, (b) has notified the Borrower in writing, or has made a public statement to the effect, that it does not intend or expect to comply with any of its funding obligations under this Agreement (unless such writing or public statement indicates that such position is based on such Lender's good faith determination that a condition precedent (specifically identified and including the particular default, if any) to funding a Loan under this Agreement cannot be satisfied) or generally under other agreements in which it commits to extend credit or (c) has failed, within three (3) Business Days after request by the Borrower, acting in good faith, to provide a certification in writing from an authorized officer of such Lender that it will comply with its obligations (and is financially able to meet such obligations) to fund prospective Loans under this Agreement, provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon the Borrower’s receipt of such certification.
“Delinquency Ratio” means the ratio (expressed as a percentage and rounded to the nearest 1/100 of 1%, with 5/1000th of 1% rounded upward) computed as of the last day of each calendar month by dividing: (a) the aggregate Outstanding Balance of all Pool Receivables that were Delinquent Receivables (excluding Steel Surcharge Receivables and amounts reported by the Servicer as inputs to the Information Package as charge-backs and disputed receivables) on such day by (b) the aggregate Outstanding Balance of all Pool Receivables on such day.
“Delinquent Receivable” means a Receivable (a) as to which any payment, or part thereof, remains unpaid for more than 90 days from the due date for such payment or (b) without
9
749336112 22708133
duplication, which has been (or consistent with the Credit and Collection Policy, would be) classified as a Delinquent Receivable by the applicable Originator. The “Outstanding Balance” of any Delinquent Receivable shall be determined without regard to any credit memos or credit balances.
“Dilution Horizon Ratio” means, for any Fiscal Month, the ratio (expressed as a percentage and rounded to the nearest 1/100th of 1%, with 5/1000th of 1% rounded upward) computed as of the last day of such Fiscal Month by dividing: (a) the sum of (i) the aggregate initial Outstanding Balance of all Pool Receivables generated by the Originators during such Fiscal Month, plus (ii) 50% of the aggregate initial Outstanding Balance of all Pool Receivables generated by the Originators during the preceding Fiscal Month, by (b) the Net Receivables Pool Balance as of the last day of such Fiscal Month. Within thirty (30) days of the completion and the receipt by the Administrator of the results of any annual audit or field exam of the Receivables and the servicing and origination practices of the Servicer and the Originators, the numerator of the Dilution Horizon Ratio may be adjusted by the Administrator upon not less than ten (10) Business Days’ notice to the Borrower to reflect such number of Fiscal Months as the Administrator reasonably believes best reflects the business practices of the Servicer and the Originators and the actual amount of dilution and Deemed Collections that occur with respect to Pool Receivables based on the weighted average dilution lag calculation completed as part of such audit or field exam.
“Dilution Ratio” means, for any Fiscal Month, the ratio (expressed as a percentage and rounded to the nearest 1/100th of 1%, with 5/1000th of 1% rounded upward), computed as of the last day of each Fiscal Month by dividing: (a) the aggregate amount of Deemed Collections during such Fiscal Month, by (b) the aggregate initial Outstanding Balance of all Pool Receivables generated by the Originators during the prior Fiscal Month.
“Dilution Reserve Percentage” means, at any time of determination, the product (expressed as a percentage and rounded to the nearest 1/100th of 1%, with 5/1000th of 1% rounded upward) of (a) the Dilution Horizon Ratio, multiplied by (b) the sum of (x) 2.25 times the average of the Dilution Ratios for the twelve (12) most recent Fiscal Months and (y) the Dilution Volatility Component.
“Dilution Volatility Component” means, for any Fiscal Month, the product (expressed as a percentage) and rounded to the nearest 1/100th of 1%, with 5/1000th of 1% rounded upward) of:
(a) the positive difference, if any, between: (i) the highest Dilution Ratio for any Fiscal Month during the twelve (12) most recent Fiscal Months and (ii) the average of the Dilution Ratios for such twelve (12) Fiscal Months; multiplied by
(b) the quotient of (i) the highest Dilution Ratio for any Fiscal Month during the twelve (12) most recent Fiscal Months divided by (ii) the average of the Dilution Ratios for such twelve (12) Fiscal Months.
“Dollars” and “$” each mean the lawful currency of the United States of America.
10
749336112 22708133
“Eligible Assignee” means (i) any Lender or any of its Affiliates, (ii) any Person managed by a Lender or any of its Affiliates and (iii) any other financial or other institution. “Eligible Assignee” shall not include (a) a natural person or (b) a company, investment vehicle or trust for, or owned and operated for the primary benefit of, a natural person or relative(s) thereof.
“Eligible Foreign Obligor” means an Obligor which is a resident of any country (other than the United States of America or Canada) that is both (i) not a Sanctioned Jurisdiction and (ii) is an OECD Country.
“Eligible Receivable” means, at any time, a Pool Receivable:
11
749336112 22708133
“Embargoed Property” means any property; (a) beneficially owned, directly or indirectly, by a Sanctioned Person; (b) that is due to or from a Sanctioned Person; (c) in which a Sanctioned Person otherwise holds any interest; (d) that is located in a Sanctioned Jurisdiction; or (e) that otherwise would cause any actual or possible violation by any Credit Party of any applicable Anti-Terrorism Law if the Lenders or the Administrator were to obtain an encumbrance on, lien on, pledge of, or security interest in such property, or provide services in consideration of such property.
“Equity Equivalents” means with respect to any Person any rights, warrants, options, convertible securities, exchangeable securities, Debt or other rights, in each case exercisable for or convertible or exchangeable into, directly or indirectly, Capital Stock of such Person or securities exercisable for or convertible or exchangeable into Capital Stock of such Person, whether at the time of issuance or upon the passage of time or the occurrence of some future event.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time, and any successor statute of similar import, together with the regulations thereunder, in each case as in effect from time to time. References to sections of ERISA also refer to any successor sections.
12
749336112 22708133
“ERISA Affiliate” means: (a) any corporation that is a member of the same controlled group of corporations (within the meaning of Section 414(b) of the Internal Revenue Code) as the Borrower, any Originator or Worthington, (b) a trade or business (whether or not incorporated) under common control (within the meaning of Section 414(c) of the Internal Revenue Code) with the Borrower, any Originator or Worthington, or (c) a member of the same affiliated service group (within the meaning of Section 414(m) of the Internal Revenue Code) as the Borrower, any Originator, any corporation described in clause (a) or any trade or business described in clause (b).
“Erroneous Payment” has the meaning assigned to it in Section 11.11.
“Event of Default” has the meaning specified in Section 10.01. For the avoidance of doubt, any Event of Default that occurs shall be deemed to be continuing at all times thereafter unless and until waived in accordance with Section 14.01 or otherwise cured.
“Excess Concentration” means, on any date, the sum of the following amounts:
(i) the amount by which the Outstanding Balance of Eligible Receivables of each Obligor then in the Receivables Pool exceeds an amount equal to: (a) the applicable Concentration Percentage for such Obligor multiplied by (b) the Outstanding Balance of all Eligible Receivables then in the Receivables Pool on such date, plus
(ii) the amount by which (a) the aggregate Outstanding Balance of all Eligible Receivables then in the Receivables Pool the Obligor of which is an Eligible Foreign Obligor exceeds (b) 3.00% of the aggregate Outstanding Balance of all Eligible Receivables then in the Receivables Pool on such date, plus
(iii) the amount by which (a) the aggregate Outstanding Balance of all Eligible Receivables then in the Receivables Pool the Obligor of which is a resident of Canada exceeds (b) 5.00% of the aggregate Outstanding Balance of all Eligible Receivables then in the Receivables Pool on such date.
“Exchange Act” means the Securities Exchange Act of 1934.
“Excluded Obligor” means Metalsa, S.A. de C.V. and each Subsidiaries thereof.
“Excluded Receivable” means any Receivable (defined without giving effect to the proviso to the definition thereof), the Obligor of which is an Excluded Obligor.
13
749336112 22708133
“Excluded Taxes” means any of the following Taxes imposed on or with respect to a Credit Party or required to be withheld or deducted from a payment to a Credit Party: (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes and branch profits Taxes, in each case, (i) imposed as a result of such Credit Party being organized under the laws of, or having its principal office or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender, U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in the Loans or Commitment pursuant to a law in effect on the date on which (i) such Lender makes a Loan or its Commitment (other than pursuant to an assignment request by the Borrower under Section 5.05) or (ii) such Lender changes its lending office, except in each case to the extent that, pursuant to Section 5.03, amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its lending office, (c) Taxes attributable to a Credit Party’s failure to comply with Section 5.03(f) and (d) any U.S. federal withholding Taxes imposed pursuant to FATCA.
“Facility Limit” means $175,000,000 as reduced from time to time pursuant to Section 2.02(e). References to the unused portion of the Facility Limit shall mean, at any time of determination, an amount equal to (x) the Facility Limit at such time, minus (y) the Aggregate Principal at such time.
“FATCA” means Sections 1471 through 1474 of the Internal Revenue Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreements entered into pursuant to Section 1471(b)(1) of the Internal Revenue Code, any applicable intergovernmental agreement entered into between the United States and any other Governmental Authority in connection with the implementation of the foregoing and any fiscal or regulatory legislation, rules or official practices adopted pursuant to any such intergovernmental agreement, treaty or convention among Governmental Authorities and implementing such Sections of the Internal Revenue Code.
“Federal Reserve Board” means the Board of Governors of the Federal Reserve System, or any entity succeeding to any of its principal functions.
“Fee Letter” has the meaning specified in Section 3.07.
“Fees” has the meaning specified in Section 3.07.
“Final Maturity Date” means the date that (i) is ninety (90) days following the Scheduled Termination Date or (ii) such earlier date on which the Aggregate Principal and all other Borrower Obligations become due and payable pursuant to Section 10.01.
“Final Payout Date” means the date on or after the Termination Date when (i) the Aggregate Principal and Aggregate Interest have been paid in full, (ii) all Borrower Obligations shall have been paid in full, (iii) all other amounts owing to the Credit Parties and any other Borrower Indemnified Party or Affected Person hereunder and under the other Transaction Documents have been paid in full and (iv) all accrued Servicing Fees have been paid in full.
14
749336112 22708133
“Financial Officer” of any Person means, the chief executive officer, the chief financial officer, the chief accounting officer, the principal accounting officer, the controller, the treasurer or the assistant treasurer of such Person.
“Fiscal Month” means each calendar month.
“GAAP” means the generally accepted accounting principles and practices in the United States, consistently applied.
“Governmental Authority” means the government of the United States of America or any other nation, or of any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra-national bodies such as the European Union or the European Central Bank) and any group or body charged with setting financial accounting or regulatory capital rules or standards (including the Financial Accounting Standards Board, the Bank for International Settlements or the Basel Committee on Banking Supervision or any successor or similar authority to any of the foregoing).
“Group A Obligor,” “Group B Obligor” or “Group C Obligor” means any Obligor (or its parent or majority owner, as applicable, if such Obligor is not rated) with:
(a) a short-term rating of at least “A-1” (in the case of a Group A Obligor), “A-2” (in the case of a Group B Obligor) or “A-3” (in the case of a Group C Obligor), in any case, by S&P, or if such Obligor does not have a short-term rating from S&P, a rating of at least “A+” (in the case of a Group A Obligor), “BBB+” (in the case of a Group B Obligor) or “BBB-” (in the case of a Group C Obligor), in any case, or better by S&P on such Obligor’s, its parent’s, or its majority owner’s (as applicable) long-term senior unsecured and uncredit-enhanced debt securities, and
(b) a short-term rating of at least “P-1” (in the case of a Group A Obligor), “P-2” (in the case of a Group B Obligor) or “P-3” (in the case of a Group C Obligor), in any case, by Moody’s, or if such Obligor does not have a short-term rating from Moody’s, a rating of at least “A1” (in the case of a Group A Obligor), “Baa1” (in the case of a Group B Obligor) or “Baa3” (in the case of a Group C Obligor), in any case, or better by Moody’s on such Obligor’s, its parent’s or its majority owner’s (as applicable) long-term senior unsecured and uncredit-enhanced debt securities;
15
749336112 22708133
provided, however, if such Obligor is rated by only one of S&P or Moody’s, then such Obligor will be a Group A Obligor, Group B Obligor or Group C Obligor (as the case may be) if it satisfies either clause (a) or clause (b) above; provided, further, that if such Obligor (or its parent or majority owner, as applicable, if such Obligor is not rated) has split ratings from S&P and Moody’s, then such Obligor (or its parent or majority owner, as applicable) shall be deemed to have only the lower of the two ratings for the purpose of determining whether such Obligor satisfies clause (a) or (b) above. Notwithstanding the foregoing, any Obligor that is a Subsidiary of an Obligor that satisfies the definition of Group A Obligor, Group B Obligor or Group C Obligor (as the case may be) shall be deemed to be a Group A Obligor, Group B Obligor or Group C Obligor (as the case may be) and shall be aggregated with its parent Obligor that satisfies such definition for the purposes of determining the “Concentration Reserve Percentage” unless such Subsidiary Obligor separately satisfies the definition of Group A Obligor, Group B Obligor or Group C Obligor (as the case may be), in which case such Obligor shall be separately treated as a Group A Obligor, Group B Obligor or Group C Obligor (as the case may be), as the case may be, and shall be aggregated and combined for such purposes with any of its Subsidiaries that are also Obligors.
“Group D Obligor” means any Obligor that is not a Group A Obligor, Group B Obligor or Group C Obligor; provided, that any Obligor (or its parent or majority owner, as applicable, if such Obligor is unrated) that is not rated by either of Moody’s or S&P shall be a Group D Obligor.
“Indemnified Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of the Borrower or any of its Affiliates under any Transaction Document and (b) to the extent not otherwise described in clause (a) above, Other Taxes.
“Independent Manager” has the meaning set forth in Section 8.03(c).
“Information Package” means a report, in substantially the form of Exhibit F.
“Insolvency Proceeding” means: (a) any case, action or proceeding before any court or other Governmental Authority relating to bankruptcy, reorganization, insolvency, liquidation, receivership, dissolution, winding-up or relief of debtors, or (b) any general assignment for the benefit of creditors of a Person or, composition, marshaling of assets for creditors of a Person, or other, similar arrangement in respect of its creditors generally or any substantial portion of its creditors, in each of cases (a) and (b) undertaken under U.S. Federal, state or foreign law, including the Bankruptcy Code.
“Intended Tax Treatment” has the meaning set forth in Section 14.14.
“Interest” means, for each Loan for any day during any Accrual Period (or portion thereof), the amount of interest accrued on the Principal of such Loan during such Accrual Period (or portion thereof) in accordance with Article III.
16
749336112 22708133
“Interest Period” means a period of one Month. Such Interest Period shall commence on the effective date of such Term Rate Loan Option, which shall be (i) the date of such Loan if the Borrower is requesting new Loans, or (ii) the date of renewal of or conversion to the Term Rate Loan Option if the Borrower is renewing or converting to Term Rate Loan Option applicable to outstanding Loans. Notwithstanding the second sentence hereof: (A) any Interest Period which would otherwise end on a date which is not a Business Day shall be extended to the next succeeding Business Day unless such Business Day falls in the next calendar month, in which case such Interest Period shall end on the next preceding Business Day, and (B) the Borrower shall not select, convert to or renew an Interest Period for any portion of the Loans that would end after the Scheduled Termination Date.
“Interest Rate Option” means any Term Rate Loan Option or Daily Rate Loan Option.
“Internal Revenue Code” means the Internal Revenue Code of 1986, as amended from time to time, and any successor statute of similar import, together with the regulations thereunder, in each case as in effect from time to time. References to Sections of the Internal Revenue Code also refer to any successor Sections.
“Investment Company Act” means the Investment Company Act of 1940, as amended or otherwise modified from time to time.
“Law” means any law(s) (including common law), constitution, statute, treaty, regulation, rule, ordinance, opinion, issued guidance, release, ruling, order, executive order, injunction, writ, decree, bond, judgment, authorization or approval, lien or award of or any settlement arrangement, by agreement, consent or otherwise, with any Governmental Authority, foreign or domestic.
“LCR Security” means any commercial paper or security (other than equity securities issued to the Servicer or any Originator that is a consolidated subsidiary of Worthington under GAAP) within the meaning of Paragraph __.32(e)(viii) of the final rules titled Liquidity Coverage Ratio: Liquidity Risk Measurement Standards, 79 Fed. Reg. 197, 61440 et seq. (October 10, 2014).
“Lenders” means PNC and each other Person that is or becomes a party to this Agreement in the capacity of a “Lender”.
“Loan” means any loan made by a Lender pursuant to Section 2.02.
“Loan Request” means a letter in substantially the form of Exhibit A hereto executed and delivered by the Borrower to the Administrator and the Lenders pursuant to Section 2.02(a).
“Lock-Box” means each locked postal box with respect to any Lock-Box Account for the purpose of retrieving and processing payments made on the Receivables and which is listed on Schedule II (as such schedule may be modified from time to time in connection with the addition or removal of any Lock-Box in accordance with the terms hereof).
17
749336112 22708133
“Lock-Box Account” means each account listed on Schedule II to this Agreement (as such schedule may be modified from time to time in connection with the closing or opening of any Lock-Box Account in accordance with the terms hereof) (in each case, in the name of the Borrower) and maintained at a bank or other financial institution acting as a Lock-Box Account Bank pursuant to an Lock-Box Agreement for the purpose of receiving Collections.
“Lock-Box Account Bank” means any of the banks or other financial institutions holding one or more Lock-Box Accounts.
“Lock-Box Agreement” means each agreement, in form and substance satisfactory to the Administrator, among the Borrower, a Servicer (if applicable), the Administrator and a Lock-Box Account Bank, governing the terms of the related Lock-Box Accounts that provides the Administrator with control within the meaning of the UCC over the deposit accounts subject to such agreement.
“Loss Horizon Ratio” means, at any time of determination, the ratio (expressed as a percentage and rounded to the nearest 1/100th of 1%, with 5/1000th of 1% rounded upward) computed by dividing:
(a) the aggregate initial Outstanding Balance of all Pool Receivables generated by the Originators during the number of most recently ended Fiscal Months equal to the sum of 3.25, plus the Weighted Average Payment Terms; provided that with respect to any fraction of a Fiscal Month, the aggregate initial Outstanding Balance of all Pool Receivables generated by the Originators during such fraction of a Fiscal Month shall be calculated as a percentage of the aggregate initial Outstanding Balance of all Pool Receivables generated by the Originators during the applicable Fiscal Month; by
(b) the Net Receivables Pool Balance as of such date.
“Loss Reserve Percentage” means, at any time of determination, the product (expressed as a percentage and rounded to the nearest 1/100th of 1%, with 5/1000th of 1% rounded upward) of (a) 2.25, multiplied by (b) the highest average of the Default Ratios for any three (3) consecutive Fiscal Months during the twelve (12) most recent Fiscal Months, multiplied by (c) the Loss Horizon Ratio.
“Majority Lenders” means Lenders representing 2/3rds or more of the aggregate Commitments of all Lenders (or, if the Commitments have been terminated, Lenders representing 2/3rds or more of the aggregate outstanding Principal held by all the Lenders).
“Material Adverse Effect” means, with respect to any event or circumstance, a material adverse effect on:
18
749336112 22708133
(c) the validity or enforceability of this Agreement or any other Transaction Document, or the validity, enforceability or collectability of any material portion of the Pool Receivables; or
(d) the status, perfection, enforceability or priority of the Administrator’s security interest in the Collateral or any material portion thereof.
“Minimum Dilution Reserve Percentage” means, at any time of determination, the product (expressed as a percentage and rounded to the nearest 1/100th of 1%, with 5/1000th of 1% rounded upward) of (a) the average of the Dilution Ratios for the twelve (12) most recent Fiscal Months, multiplied by (b) the Dilution Horizon Ratio.
“Month”, with respect to an Interest Period under the Term Rate Loan Option, means the interval between the days in consecutive calendar months numerically corresponding to the first day of such Interest Period. If any Interest Period for a Term Rate Loan begins on a day of a calendar month for which there is no numerically corresponding day in the month in which such Interest Period is to end, the final month of such Interest Period shall be deemed to end on the last Business Day of such final month.
“Monthly Settlement Date” means the 20th day of each calendar month (or if such day is not a Business Day, the next occurring Business Day).
“Moody’s” means Moody’s Investors Service, Inc. and any successor thereto that is a nationally recognized statistical rating organization.
“Net Receivables Pool Balance” means, at any time of determination: (a) the aggregate Outstanding Balance of all Eligible Receivables then in the Receivables Pool, minus (b) the Excess Concentration.
“Non-Consenting Lender” means any Lender that does not approve any consent, waiver or amendment that (a) requires the approval of all or all affected Lenders in accordance with the terms of Section 14.01 and (b) has been approved by the Majority Lenders.
“Notice Event” means the delivery of an "Optional Termination Notice" (as defined in the Sale Agreement) in accordance with Section 8.2 of the Sale Agreement.
“Obligor” means, with respect to any Receivable, the Person obligated to make payments pursuant to the Contract relating to such Receivable.
19
749336112 22708133
“Obligor Percentage” means, at any time of determination, for each Obligor, a fraction, expressed as a percentage, (a) the numerator of which is the aggregate Outstanding Balance of the Eligible Receivables of such Obligor and its Affiliates less the amount (if any) then included in the calculation of the Excess Concentration with respect to such Obligor and its Affiliates and (b) the denominator of which is the aggregate Outstanding Balance of all Eligible Receivables at such time.
“OECD Country” means a country which is a member of the Organization for Economic Cooperation and Development.
“OFAC” means the U.S. Department of Treasury’s Office of Foreign Assets Control.
“Originator” has the meaning set forth in the Sale Agreement.
“Originator Assignment Certificate” means each assignment, in substantially the form of Exhibit C to the Sale Agreement, evidencing the Borrower’s ownership of the Receivables generated by the related Originator, as the same may be amended, supplemented, amended and restated, or otherwise modified from time to time in accordance with the Sale Agreement.
“Other Connection Taxes” means, with respect to any Affected Person, Taxes imposed as a result of a present or former connection between such Affected Person and the jurisdiction imposing such Tax (other than connections arising from such Affected Person having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Transaction Document, or sold or assigned an interest in any Loan or Transaction Document).
“Other Taxes” means any and all present or future stamp or documentary Taxes or any other excise or property Taxes, charges or levies or fees arising from any payment made hereunder or from the execution, delivery, filing, recording or enforcement of, or otherwise in respect of, this Agreement, the other Transaction Documents and the other documents or agreements to be delivered hereunder or thereunder, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 5.05).
“Outstanding Balance” of any Receivable at any time means the then outstanding principal balance thereof.
“Overnight Bank Funding Rate” means for any day, the rate comprised of both overnight federal funds and overnight eurocurrency borrowings by U.S.-managed banking offices of depository institutions, as such composite rate shall be determined by the Federal Reserve Bank of New York, as set forth on its public website from time to time, and as published on the next succeeding Business Day as the overnight bank funding rate by the Federal Reserve Bank of New York (or by such other recognized electronic source (such as Bloomberg) selected by the Administrator for the purpose of displaying such rate); provided, that if such day is not a Business Day, the Overnight Bank Funding Rate for such day shall be such rate on the immediately preceding Business Day; provided, further, that if such rate shall at any time, for any reason, no longer exist, a comparable replacement rate determined by the Administrator at such time (which determination shall be conclusive absent manifest error). If the Overnight Bank Funding Rate determined as above would be less than zero, then such rate shall be deemed to be zero. The rate
20
749336112 22708133
of interest charged shall be adjusted as of each Business Day based on changes in the Overnight Bank Funding Rate without notice to the Borrower.
“Parent” means Worthington.
“Parent Group” has the meaning set forth in Section 8.03(c).
“Participant” has the meaning set forth in Section 14.03(d).
“Participant Register” has the meaning set forth in Section 14.03(e).
“PATRIOT Act” has the meaning set forth in Section 14.15.
“Percentage” means, at any time of determination, with respect to any Lender, a fraction (expressed as a percentage), (a) the numerator of which is (i) prior to the termination of all Commitments hereunder, its Commitment at such time or (ii) if all Commitments hereunder have been terminated, the aggregate outstanding Principal of all Loans being funded by the Lenders at such time and (b) the denominator of which is (i) prior to the termination of all Commitments hereunder, the aggregate Commitments of all Lenders at such time or (ii) if all Commitments hereunder have been terminated, the Aggregate Principal at such time.
“Performance Guarantor” means Parent.
“Performance Guaranty” means the Performance Guaranty, dated as of the Closing Date, by the Performance Guarantor in favor of the Administrator for the benefit of the Secured Parties, as such agreement may be amended, restated, supplemented or otherwise modified from time to time.
“Permitted Lock-Box Bank” means any of the following Bank of America, N.A., Bank of Nova Scotia, The Bank of Tokyo-Mitsubishi UFJ, Ltd., JPMorgan Chase Bank, N.A., Citibank, Comerica Bank, The Huntington National Bank, KeyBank National Association, The Bank of New York Mellon, PNC Bank, BMO Harris Bank, N.A., Fifth Third Bank, National Association, The Northern Trust Company, U.S. Bank National Association, Wells Fargo Bank, National Association, Goldman Sachs Bank USA and any successor thereof, or Affiliate thereof or such other bank as may be consented to by the Administrator and the Simple Majority of Lenders.
“Person” means an individual, partnership, corporation (including a business trust), joint stock company, trust, unincorporated association, joint venture, limited liability company or other entity, or a government or any political subdivision or agency thereof.
“PNC” has the meaning set forth in the preamble to this Agreement.
“Pool Receivable” means a Receivable in the Receivables Pool.
21
749336112 22708133
“Prime Rate” means the interest rate per annum announced from time to time by the Administrator in Pittsburgh, Pennsylvania as its then prime rate, which rate may not be the lowest or most favorable rate then being charged to commercial borrowers or others by the Administrator and may not be tied to any external rate of interest or index. Any change in the Prime Rate shall take effect at the opening of business on the day such change is announced.
“Principal” means, with respect to any Lender, the aggregate amounts paid to, or on behalf of, the Borrower in connection with all Loans made by such Lender pursuant to Article II, as reduced from time to time by Collections or other funds of the Borrower that have been distributed to such Lender and applied as a repayment of Principal in accordance with this Agreement; provided, that if such Principal shall have been reduced by any distribution and thereafter all or a portion of such distribution is rescinded or must otherwise be returned for any reason, such Principal shall be increased by the amount of such rescinded or returned distribution as though it had not been made.
“Prior Accrual Period” means, with respect to each Loan, (i) initially, the period commencing on the date such Loan is made pursuant to Section 2.01 (or in the case of any fees payable hereunder, commencing on the Closing Date) and ending on (but not including) the next Settlement Date and (ii) thereafter, each period commencing on such Settlement Date and ending on (but not including) the next Settlement Date.
“Purchase and Sale Indemnified Amounts” has the meaning set forth in Section 9.1 of the Sale Agreement.
“Purchase and Sale Indemnified Party” has the meaning set forth in Section 9.1 of the Sale Agreement.
“Purchase and Sale Termination Date” has the meaning set forth in Section 1.4 of the Sale Agreement.
“Purchase and Sale Termination Event” has the meaning set forth in Section 8.1 of the Sale Agreement.
“Receivable” means any indebtedness and other obligations owed to the Borrower or any Originator by, or any right of the Borrower or any Originator to payment from or on behalf of, an Obligor, whether constituting an account, chattel paper, instrument or general intangible, arising in connection with the sale of goods or the rendering of services by an Originator, and includes the obligation to pay any finance charges, fees and other charges with respect thereto; provided however, that “Receivable” shall not include any Excluded Receivable. Indebtedness and other obligations arising from any one transaction, including indebtedness and other obligations represented by an individual invoice or agreement, shall constitute a Receivable separate from a Receivable consisting of indebtedness and other obligations arising from any other transaction.
“Receivables Pool” means, at any time of determination, all of the then outstanding Receivables transferred (or purported to be transferred) to the Borrower pursuant to the Sale Agreement prior to the Termination Date.
“Register” has the meaning set forth in Section 14.03(b).
22
749336112 22708133
“Related Parties” means, with respect to any specified Person, such Person’s Affiliates and the respective partners, directors, officers, employees, agents and advisors of such Person and of such Person’s Affiliates.
“Related Rights” has the meaning set forth in Section 1.1 of the Sale Agreement.
“Related Security” means, with respect to any Receivable:
(a) all of the Borrower’s and each Originator’s interest in any goods (including Returned Goods), and documentation of title evidencing the shipment or storage of any goods (including Returned Goods), the sale of which gave rise to such Receivable;
(b) all instruments and chattel paper that may evidence such Receivable;
(c) all letter of credit rights, other security interests or liens and property subject thereto from time to time purporting to secure payment of such Receivable, whether pursuant to the Contract related to such Receivable or otherwise, together with all UCC financing statements or similar filings relating thereto;
(d) solely to the extent applicable to such Receivable, all of the Borrower’s and each Originator’s rights, interests and claims under the related Contracts and all guaranties, indemnities, insurance and other agreements (including the related Contract) or arrangements of whatever character from time to time supporting or securing payment of such Receivable or otherwise relating to such Receivable, whether pursuant to the Contract related to such Receivable or otherwise;
(e) all books and records of the Borrower and each Originator to the extent related to any of the foregoing, and all rights, remedies, powers, privileges, title and interest (but not obligations) in and to each Lock-Box and Lock-Box Account, into which any Collections or other proceeds with respect to such Receivables may be deposited, and any related investment property acquired with any such Collections or other proceeds (as such term is defined in the applicable UCC);
(f) all of the Borrower’s rights, interests and claims under the Sale Agreement and the other Transaction Documents; and
(g) all Collections and other proceeds (as defined in the UCC) of any of the foregoing.
“Release” has the meaning set forth in Section 4.01(a).
“Relevant Governmental Body” means the Board of Governors of the Federal Reserve System or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the Board of Governors of the Federal Reserve System or the Federal Reserve Bank of New York, or any successor thereto.
23
749336112 22708133
“Reportable Compliance Event” means that: (a) any Covered Entity becomes a Sanctioned Person, or is charged by indictment, criminal complaint, or similar charging instrument, arraigned, custodially detained, penalized or the subject of an assessment for a penalty, or enters into a settlement with a Governmental Authority in connection with any economic sanctions or other Anti-Terrorism Law or Anti-Corruption law, or any predicate crime to any Anti-Terrorism Law or Anti-Corruption Law, or has knowledge of facts or circumstances to the effect that it is reasonably likely that any aspect of its operations represents a violation of any Anti-Terrorism Law or Anti-Corruption Law; (b) any Covered Entity engages in a transaction that has caused or may cause any Credit Party to be in violation of any Anti-Terrorism Laws, including a Covered Entity’s use of any proceeds of the Transaction Documents to fund any operations in, finance any investments or activities in, or, make any payments to, directly or indirectly, a Sanctioned Person or Sanctioned Jurisdiction; (c) any Collateral becomes Embargoed Property; or (d) any Covered Entity otherwise violates any of the representations, warranties or covenants set forth in Sections 7.01(x), 7.01(y), 7.02(t), 7.02(u), 8.01(s) or 8.02(j) of this Agreement.
“Representatives” has the meaning set forth in Section 14.06(c).
“Restricted Payments” has the meaning set forth in Section 8.01(n).
“Returned Goods” means all right, title and interest in and to returned, repossessed or foreclosed goods and/or merchandise the sale of which gave rise to a Receivable; provided that such goods shall no longer constitute Returned Goods after a Deemed Collection has been deposited in a Lock-Box Account with respect to the full Outstanding Balance of the related Receivables.
“S&P” means S&P Global Ratings, a division of S&P Global Inc., and any successor thereto that is a nationally recognized statistical rating organization.
“Sale Agreement” means the Purchase and Sale Agreement, dated as of the Closing Date, among the Borrower and the Originators as amended through the date of this Agreement and as such agreement may be amended, amended and restated, supplemented or otherwise modified from time to time.
“Sanctioned Jurisdiction” means any country, territory, or region that is the subject of sanctions administered by OFAC.
24
749336112 22708133
“Sanctioned Person” means (a) a Person that is the subject of sanctions administered by OFAC or the U.S. Department of State (“State”), including by virtue of being (i) named on OFAC’s list of “Specially Designated Nationals and Blocked Persons”; (ii) organized under the Laws of, ordinarily resident in, or physically located in a Sanctioned Jurisdiction; (iii) owned or controlled 50% or more in the aggregate, by one or more Persons that are the subject of sanctions administered by OFAC; (b) a Person that is the subject of sanctions maintained by the European Union (“E.U.”), including by virtue of being named on the E.U.’s “Consolidated list of persons, groups and entities subject to E.U. financial sanctions” or other, similar lists; (c) a Person that is the subject of sanctions maintained by the United Kingdom (“U.K.”), including by virtue of being named on the “Consolidated List Of Financial Sanctions Targets in the U.K.” or other, similar lists; or (d) a Person that is the subject of sanctions imposed by any Governmental Authority of a jurisdiction whose Laws apply to this Agreement.
“Scheduled Termination Date” means May 17, 2024.
“SEC” means the U.S. Securities and Exchange Commission or any governmental agencies substituted therefor.
“Secured Parties” means each Credit Party, each Borrower Indemnified Party and each Affected Person.
“Securities Act” means the Securities Act of 1933.
“Servicer” has the meaning set forth in the preamble to this Agreement.
“Servicer Indemnified Amounts” has the meaning set forth in Section 13.02(a).
“Servicer Indemnified Party” has the meaning set forth in Section 13.02(a).
“Servicing Fee” means the fee referred to in Section 9.06(a) of this Agreement.
“Servicing Fee Rate” means the rate referred to in Section 9.06(a) of this Agreement.
“Settlement Date” means with respect to any Loan for any Accrual Period or any Interest or Fees, (i) so long as no Event of Default has occurred and is continuing and the Termination Date has not occurred, the Monthly Settlement Date and (ii) on and after the Termination Date or if an Event of Default has occurred and is continuing, each day selected from time to time by the Administrator (with the consent or at the direction of the Majority Lenders) (it being understood that the Administrator (with the consent or at the direction of the Majority Lenders) may select such Settlement Date to occur as frequently as daily), or, in the absence of such selection, the Monthly Settlement Date.
“Simple Majority” means, at any time, Lenders whose Commitments aggregate 51% or more of the aggregate of the Commitments of all Lenders.
“SOFR” means, for any day, a rate equal to the secured overnight financing rate as administered by the Federal Reserve Bank of New York (or a successor administrator of the secured overnight financing rate).
25
749336112 22708133
“SOFR Adjustment” means, ten (10) basis points (0.10%).
“SOFR Floor” means a rate of interest per annum equal to 0.00%.
“SOFR Reserve Percentage” means, for any day, the maximum effective percentage in effect on such day, if any, as prescribed by the Board of Governors of the Federal Reserve System (or any successor) for determining the reserve requirements (including, without limitation, supplemental, marginal and emergency reserve requirements) with respect to SOFR funding.
“Solvent” means, with respect to any Person at any time, a condition under which:
For purposes of this definition:
“Steel Surcharge Receivable” means a Receivable which is associated with surcharges for coke shortages, utilities, fuel, freight and other costs from vendors of the related Originator.
26
749336112 22708133
“Stub Period” means the period commencing on the Monthly Settlement Date occurring in October 2022 and ending on (but not including) November 1, 2022.
“Structuring Agent” means PNC Capital Markets LLC, a Pennsylvania limited liability company.
“Subject Division” means, from the applicable Subject Division Commencement Date to the applicable Subject Division Termination Date, each division of an Originator resulting from the acquisition, merger, consolidation or other business combination of any Person into such Originator or the acquisition by any Originator of any Person’s assets.
“Subject Division Commencement Date” means, with respect to each Subject Division, the date in which the applicable Originator acquired such Subject Division’s assets.
“Subject Division Termination Date” means the date, if any, following the applicable Subject Division Commencement Date that the Administrator has received (A) such information and reports with respect to Receivables originated by such Subject Division, in form and substance reasonably satisfactory to the Administrator, as the Administrator has requested in writing from the Borrower or the Servicer and (B) either (1) evidence reasonably satisfactory to the Administrator that Borrower (or Servicer on its behalf) has instructed all Obligors of Receivables originated by such Subject Division to deliver payments on such Receivables to an existing Lock-Box Account or (2) a duly executed Lock-Box Agreement (or amendment thereto) reasonably satisfactory to the Administrator relating to each account to which Borrower (or Servicer on its behalf) has instructed Obligors of Receivables originated by such Subject Division to make payments along with a corresponding update to Schedule II to this Agreement.
“Subject Division Receivable” means any Receivable that was originated by the Subject Division.
“Sub-Servicer” has the meaning set forth in Section 9.01(d).
“Subsidiary” means, as to any Person, a corporation, partnership, limited liability company or other entity of which shares of stock of each class or other interests having ordinary voting power (other than stock or other interests having such power only by reason of the happening of a contingency) to elect a majority of the Board of Directors or other managers of such entity are at the time owned, or management of which is otherwise controlled: (a) by such Person, (b) by one or more Subsidiaries of such Person or (c) by such Person and one or more Subsidiaries of such Person.
“Tangible Net Worth” means, with respect to any Person, the tangible net worth of such Person as determined in accordance with GAAP.
“Taxes” means any and all present or future taxes, levies, imposts, duties, deductions, charges, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority and all interest, penalties, and additions to tax with respect thereto.
“Term Rate Loan” means a Loan that bears interest at a rate based on Term SOFR.
27
749336112 22708133
“Term Rate Loan Option” means the option of the Borrower to have Loans bear interest at the rate and under the terms specified in Section 3.01(a)(i).
“Term SOFR” means, with respect to any amount to which the Term SOFR Option applies, for any Interest Period, the sum of (a) the SOFR Adjustment, plus (b) the interest rate per annum determined by the Administrator by dividing (the resulting quotient rounded upwards, at the Administrator’s discretion, to the nearest 1/100th of 1%) (A) the Term SOFR Reference Rate for a tenor comparable to such Interest Period, as such rate is published by the Term SOFR Administrator on the day (the “Term SOFR Determination Date”) that is two (2) Business Days prior to the first day of such Interest Period, by (B) a number equal to 1.00 minus the SOFR Reserve Percentage. If the Term SOFR Reference Rate for the applicable tenor has not been published or replaced with a Benchmark Replacement by 5:00 p.m. (Pittsburgh, Pennsylvania time) on the Term SOFR Determination Date, then the Term SOFR Reference Rate, for purposes of clause (A) in the preceding sentence, shall be the Term SOFR Reference Rate for such tenor on the first Business Day preceding such Term SOFR Determination Date for which such Term SOFR Reference Rate for such tenor was published in accordance herewith, so long as such first preceding Business Day is not more than three (3) Business Days prior to such Term SOFR Determination Date. If Term SOFR, determined as provided above, would be less than the SOFR Floor, then Term SOFR shall be deemed to be the SOFR Floor. Term SOFR shall be adjusted automatically without notice to the Borrower on and as of (i) the first day of each Interest Period, and (ii) the effective date of any change in the SOFR Reserve Percentage.
“Term SOFR Administrator” means CME Group Benchmark Administration Limited (CBA) (or a successor administrator of the Term SOFR Reference Rate selected by the Administrator in its reasonable discretion).
“Term SOFR Loans” means a Loan that bears interest based on Term SOFR.
“Term SOFR Option” means the option of the Borrower to have Loans bear interest at the rate and under the terms specified in Section 3.01(a)(i)(A).
“Term SOFR Reference Rate” means the forward-looking term rate based on SOFR.
“Termination Date” means the earliest to occur of (a) the Scheduled Termination Date, (b) the date on which the “Termination Date” is declared or deemed to have occurred under Section 10.01, (c) the occurrence of a Notice Event and (d) the date selected by the Borrower on which all Commitments have been reduced to zero pursuant to Section 2.02(e).
“Total Reserves” means, at any time of determination, an amount equal to the product of (a) the sum of: (i) the Yield Reserve Percentage, plus (ii) the greater of (x) the sum of the Concentration Reserve Percentage, plus the Minimum Dilution Reserve Percentage and (y) the sum of the Loss Reserve Percentage, plus the Dilution Reserve Percentage, times (b) the Net Receivables Pool Balance at such time.
“Transaction Documents” means this Agreement, the Sale Agreement, the Lock-Box Agreements, the Fee Letter, the Company Note, the Performance Guaranty, and all other certificates, instruments, UCC financing statements, reports, notices, agreements and documents executed or delivered under or in connection with this Agreement.
28
749336112 22708133
“Type”, when used in reference to any Loan or Borrowing Tranche, refers to whether the rate of interest on such Loan, or on the Loans comprising such Borrowing Tranche, is determined by reference to (a) the Base Rate, (b) Term SOFR or (c) Daily Simple SOFR.
“UCC” means the Uniform Commercial Code as from time to time in effect in the applicable jurisdiction.
“Unbilled Receivable” means, at any time, any Receivable as to which the invoice or bill with respect thereto has not yet been sent to the Obligor thereof and the Contract relating thereto obligates the Obligor thereof to pay for the related services.
“Unmatured Event of Default” means an event that but for notice or lapse of time or both would constitute an Event of Default.
“Unmatured Purchase and Sale Termination Event” means any event which, with the giving of notice or lapse of time, or both, would become a Purchase and Sale Termination Event.
“U.S. Government Securities Business Day” means any day except for (a) a Saturday or Sunday or (b) a day on which the Securities Industry and Financial Markets Association recommends that the fixed income departments of its members be closed for the entire day for purposes of trading in United States government securities.
“U.S. Tax Compliance Certificate” has the meaning set forth in Section 5.03(f)(ii)(B)(3).
“Volcker Rule” means Section 13 of the U.S. Bank Holding Company Act of 1956, as amended, and the applicable rules and regulations thereunder.
“Weighted Average Payment Terms” means, on any date of determination, the weighted average payment terms (computed in days and calculated based on the difference between the original invoice date and the stated maturity date) of invoices for the Receivables in the Receivables Pool, divided by 30; provided such weighting shall be based on the Outstanding Balance on such date of such Receivables.
“Withholding Agent” means the Borrower and the Administrator.
“Worthington” has the meaning set forth in the preamble to this Agreement.
“Worthington Steel Company” means The Worthington Steel Company, an Ohio corporation.
“Yield Reserve Percentage” means at any time:
1.50 x DSO x (BR + SFR)
360
where:
BR = the Base Rate at such time;
29
749336112 22708133
DSO = the Days’ Sales Outstanding for the most recently ended Fiscal Month; and
SFR = the Servicing Fee Rate.
30
749336112 22708133
31
749336112 22708133
32
749336112 22708133
33
749336112 22708133
34
749336112 22708133
then the Administrator shall have the rights specified in Section 3.04(c).
35
749336112 22708133
36
749336112 22708133
37
749336112 22708133
“Available Tenor” means, as of any date of determination and with respect to the then-current Benchmark, as applicable, (x) if such Benchmark is a term rate or is based on a term rate, any tenor for such Benchmark (or component thereof) that is or may be used for determining the length of an Interest Period pursuant to this Agreement or (y) otherwise, any payment period for interest calculated with reference to such Benchmark (or component thereof) that is or may be used for determining any frequency of making payments of interest calculated with reference to such Benchmark pursuant to this Agreement, in each case, as of such date and not including, for the avoidance of doubt, any tenor of such Benchmark that is then-removed from the definition of “Interest Period” pursuant to clause (4) of this Section.
“Benchmark” means, initially, Term SOFR or Daily Simple SOFR; provided that if a Benchmark Transition Event has occurred with respect to Term SOFR, Daily Simple SOFR or the then current Benchmark, then “Benchmark” means the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate pursuant to this Section.
“Benchmark Replacement” means, with respect to any Benchmark Transition Event, the first alternative set forth in the order below that can be determined by the Administrator for the applicable Benchmark Replacement Date:
(1) Daily Simple SOFR; and
(2) the sum of (A) the alternate benchmark rate that has been selected by the Administrator and the Borrower giving due consideration to (i) any selection or recommendation of a replacement benchmark rate or the mechanism for determining such a rate by the Relevant Governmental Body or (ii) any evolving or then-prevailing market convention for determining a benchmark rate as a replacement to the then-current Benchmark, for Dollar-denominated syndicated credit facilities at such time and (B) the related Benchmark Replacement Adjustment (if any);
38
749336112 22708133
provided that if the Benchmark Replacement as determined pursuant to clause (2) above would be less than the Floor, the Benchmark Replacement will be deemed to be the Floor for the purposes of this Agreement and the other Transaction Documents; and provided further, that any Benchmark Replacement shall be administratively feasible as determined by the Administrator in its sole discretion.
“Benchmark Replacement Adjustment” means, with respect to any replacement of the then-current Benchmark with an Unadjusted Benchmark Replacement, the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) that may be selected by the Administrator and the Borrower giving due consideration to (a) any selection or recommendation of a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement by the Relevant Governmental Body or (b) any evolving or then-prevailing market convention for determining a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement for Dollar-denominated syndicated credit facilities at such time.
“Benchmark Replacement Date” means a date and time determined by the Administrator, which date shall be no later than the earliest to occur of the following events with respect to the then-current Benchmark:
(1) in the case of clause (1) or (2) of the definition of “Benchmark Transition Event,” the later of (A) the date of the public statement or publication of information referenced therein and (B) the date on which the administrator of such Benchmark (or the published component used in the calculation thereof) permanently or indefinitely ceases to provide all Available Tenors of such Benchmark (or such component thereof); or
(2) in the case of clause (3) of the definition of “Benchmark Transition Event,” the date determined by the Administrator, which date shall promptly follow the date of the public statement or publication of information referenced therein; or
For the avoidance of doubt, the “Benchmark Replacement Date” will be deemed to have occurred in the case of clause (1) or (2) with respect to any Benchmark upon the occurrence of the applicable event or events set forth therein with respect to all then-current Available Tenors of such Benchmark (or the published component used in the calculation thereof).
“Benchmark Transition Event” means the occurrence of one or more of the following events with respect to the then-current Benchmark:
39
749336112 22708133
(1) a public statement or publication of information by or on behalf of the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that such administrator has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof), permanently or indefinitely; provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof);
(2) a public statement or publication of information by a Governmental Authority having jurisdiction over the Administrator, by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof), the Federal Reserve Board, the Federal Reserve Bank of New York, an insolvency official with jurisdiction over the administrator for such Benchmark (or such component), a resolution authority with jurisdiction over the administrator for such Benchmark (or such component) or a court or an entity with similar insolvency or resolution authority over the administrator for such Benchmark (or such component), which states that the administrator of such Benchmark (or such component) has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof) permanently or indefinitely; provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof); or
(3) a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof) or a Governmental Authority having jurisdiction over the Administrator announcing that all Available Tenors of such Benchmark (or such component thereof) are not, or as of a specified future date will not be, representative.
For the avoidance of doubt, a “Benchmark Transition Event” will be deemed to have occurred with respect to any Benchmark if a public statement or publication of information set forth above has occurred with respect to each then-current Available Tenor of such Benchmark (or the published component used in the calculation thereof).
“Benchmark Unavailability Period” means the period (if any) (x) beginning at the time that a Benchmark Replacement Date has occurred if, at such time, no Benchmark Replacement has replaced the then-current Benchmark for all purposes hereunder and under any Transaction Document in accordance with this Section titled “Benchmark Replacement Setting” and (y) ending at the time that a Benchmark Replacement has replaced the then-current Benchmark for all purposes hereunder and under any Transaction Document in accordance with this Section titled “Benchmark Replacement Setting.”
40
749336112 22708133
“Floor” means the benchmark rate floor, if any, provided in this Agreement initially (as of the execution of this Agreement, the modification, amendment or renewal of this Agreement or otherwise) with respect to Term SOFR or, if no floor is specified, zero.
“Relevant Governmental Body” means the Board of Governors of the Federal Reserve System or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the Board of Governors of the Federal Reserve System or the Federal Reserve Bank of New York, or any successor thereto.
“Unadjusted Benchmark Replacement” means the applicable Benchmark Replacement excluding the related Benchmark Replacement Adjustment.
41
749336112 22708133
42
749336112 22708133
43
749336112 22708133
44
749336112 22708133
45
749336112 22708133
and the result of any of the foregoing shall be to increase the cost to such Affected Person of (A) acting as the Administrator, or a Lender hereunder, (B) funding or maintaining any Loan or (C) maintaining its obligation to fund or maintain any Loan, or to reduce the amount of any sum received or receivable by such Affected Person hereunder, then, upon request of such Affected Person, the Borrower shall pay to such Affected Person such additional amount or amounts as will compensate such Affected Person for such additional costs incurred or reduction suffered.
46
749336112 22708133
47
749336112 22708133
48
749336112 22708133
49
749336112 22708133
50
749336112 22708133
Each Credit Party agrees that if any form or certification it previously delivered pursuant to Section 5.03(f) or (g) expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrower and the Administrator in writing of its legal inability to do so.
51
749336112 22708133
52
749336112 22708133
53
749336112 22708133
A Lender shall not be required to make any such assignment or delegation if, prior thereto, as a result of a waiver or consent by such Lender or otherwise, the circumstances entitling the Borrower to require such assignment and delegation have ceased to apply.
54
749336112 22708133
55
749336112 22708133
56
749336112 22708133
57
749336112 22708133
58
749336112 22708133
59
749336112 22708133
60
749336112 22708133
61
749336112 22708133
62
749336112 22708133
63
749336112 22708133
64
749336112 22708133
65
749336112 22708133
66
749336112 22708133
67
749336112 22708133
68
749336112 22708133
69
749336112 22708133
70
749336112 22708133
71
749336112 22708133
72
749336112 22708133
73
749336112 22708133
74
749336112 22708133
75
749336112 22708133
76
749336112 22708133
The Borrower shall (A) give written notice to the Administrator of the election or appointment, or proposed election or appointment, of a new Independent Manager of the Borrower, which notice shall be given not later than ten (10) Business Days prior to the date such appointment or election would be effective (except when such election or appointment is necessary to fill a vacancy caused by the death, disability, or incapacity of the existing Independent Manager, or the failure of such Independent Manager to satisfy the criteria for an Independent Manager set forth in this clause (c), in which case the Borrower shall provide written notice of such election or appointment within one (1) Business Day) and (B) with any such written notice, certify to the Administrator that the Independent Manager satisfies the criteria for an Independent Manager set forth in this clause (c).
The Borrower’s Limited Liability Company Agreement shall provide that: (A) the Borrower’s managers shall not approve, or take any other action to cause the filing of, a voluntary bankruptcy petition with respect to the Borrower unless the Independent Manager shall approve the taking of such action in writing before the taking of such action and (B) such provision and each other provision requiring an Independent Manager cannot be amended without the prior written consent of the Independent Manager.
The Independent Manager shall not at any time serve as a trustee in bankruptcy for the Borrower, the Parent, the Performance Guarantor, any Originator, the Servicer or any of their respective Affiliates.
77
749336112 22708133
78
749336112 22708133
79
749336112 22708133
80
749336112 22708133
81
749336112 22708133
82
749336112 22708133
For the avoidance of doubt, the foregoing rights and remedies of the Administrator upon an Event of Default or a Notice Event are in addition to and not exclusive of the rights and remedies contained herein and under the other Transaction Documents.
83
749336112 22708133
84
749336112 22708133
85
749336112 22708133
86
749336112 22708133
then, and in any such event, the Administrator may (or, at the direction of the Majority Lenders shall) by notice to the Borrower (x) declare the Termination Date to have occurred (in which case the Termination Date shall be deemed to have occurred), (y) declare the Final Maturity Date to have occurred (in which case the Final Maturity Date shall be deemed to have occurred) and (z) declare the Aggregate Principal and all other Borrower Obligations to be immediately due and payable (in which case the Aggregate Principal and all other Borrower Obligations shall be immediately due and payable); provided that, automatically upon the occurrence of any event (without any requirement for the giving of notice) described in subsection (f) of this Section 10.01 with respect to the Borrower, the Termination Date shall occur and the Aggregate Principal and all other Borrower Obligations shall be immediately due and payable. Upon any such declaration or designation or upon such automatic termination, the Administrator and the other Secured Parties shall have, in addition to the rights and remedies which they may have under this Agreement and the other Transaction Documents, all other rights and remedies provided after default under the UCC and under other Applicable Law, which rights and remedies shall be cumulative. Any proceeds from liquidation of the Collateral shall be applied in the order of priority set forth in Section 4.01.
87
749336112 22708133
88
749336112 22708133
89
749336112 22708133
90
749336112 22708133
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Credit Party to make such payments to the Administrator and, in the event that the Administrator shall consent to the making of such payments directly to the Credit Party, to pay to the Administrator any amount due for the reasonable compensation, expenses, disbursements and advances of the Administrator and its agents and counsel, and any other amounts due the Administrator.
91
749336112 22708133
92
749336112 22708133
93
749336112 22708133
94
749336112 22708133
95
749336112 22708133
96
749336112 22708133
97
749336112 22708133
98
749336112 22708133
Notwithstanding the foregoing, (A) no amendment, waiver or consent shall increase any Lender’s Commitment hereunder without the consent of such Lender, (B) no amendment, waiver or consent shall reduce any Fees payable by the Borrower to any Lender or delay the dates on which any such Fees are payable, in either case, without the consent of such Lender and (C) at any time when more than one Lender is a party to this Agreement, no consent with respect to any amendment, waiver or other modification of this Agreement shall be required of any Defaulting Lender, except with respect to any amendment, waiver or other modification referred to in clause (i) through (vii) above and then only in the event such Defaulting Lender shall be directly affected by such an amendment, waiver or other modification.
99
749336112 22708133
Upon such execution, delivery, acceptance and recording from and after the effective date specified in such Assignment and Acceptance Agreement, (x) the assignee thereunder shall be a party to this Agreement, and to the extent that rights and obligations under this Agreement have been assigned to it pursuant to such Assignment and Acceptance Agreement, have the rights and obligations of a Lender hereunder and (y) the assigning Lender shall, to the extent that rights and obligations have been assigned by it pursuant to such Assignment and Acceptance Agreement, relinquish such rights and be released from such obligations under this Agreement (and, in the case of an Assignment and Acceptance Agreement covering all or the remaining portion of an assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto).
100
749336112 22708133
The Administrator, the Lenders, the Borrower and the Servicer shall have the right to continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. Each Participant (A) agrees to be subject to the provisions of Section 5.05 as if it were an assignee under paragraph (a) of this Section 14.03; and (B) shall not be entitled to receive any greater payment under Section 5.01 or 5.03, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation.
101
749336112 22708133
102
749336112 22708133
103
749336112 22708133
104
749336112 22708133
105
749336112 22708133
106
749336112 22708133
[Signature Pages Follow]
107
749336112 22708133
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their respective officers thereunto duly authorized, as of the date first above written
. |
WORTHINGTON RECEIVABLES COMPANY, LLC |
|
|
|
|
|
|
|
WORTHINGTON INDUSTRIES, INC., as the Servicer |
|
|
S-1
Receivables Financing Agreement
749336112 22708133
|
PNC BANK, NATIONAL ASSOCIATION, |
|
PNC BANK, NATIONAL ASSOCIATION, By: |
|
PNC CAPITAL MARKETS LLC, By: |
S-2
Receivables Financing Agreement
749336112 22708133
EXHIBIT A
Form of Loan Request
[Letterhead of Borrower]
[Date]
[Administrator]
[Lenders]
Re: Loan Request
Ladies and Gentlemen:
Reference is hereby made to that certain Receivables Financing Agreement, dated as of May 19, 2022 among Worthington Receivables Company, LLC (the “Borrower”), Worthington Industries, Inc., as Servicer (the “Servicer”), the Lenders party thereto, PNC Bank, National Association, as Administrator (in such capacity, the “Administrator”) and PNC Capital Markets LLC, as Structuring Agent (as amended, supplemented or otherwise modified from time to time, the “Agreement”). Capitalized terms used in this Loan Request and not otherwise defined herein shall have the meanings assigned thereto in the Agreement.
This letter constitutes a Loan Request pursuant to Section 2.02(a) of the Agreement. The Borrower hereby request a Loan in the aggregate amount of [$_______] to be made on [_____, 20__] (of which $[___] will be funded by PNC and $[___] will be funded by [___]. The proceeds of such Loan should be deposited to [Account number], at [Name, Address and ABA Number of Bank]. After giving effect to such Loan, the Aggregate Principal will be [$_______].
The Borrower hereby represents and warrants as of the date hereof, and after giving effect to such Credit Extension, as follows:
(i) the representations and warranties of the Borrower and the Servicer contained in Sections 7.01 and 7.02 of the Agreement are true and correct in all material respects on and as of the date of such Credit Extension as though made on and as of such date unless such representations and warranties by their terms refer to an earlier date, in which case they shall be true and correct in all material respects on and as of such earlier date;
(ii) no Event of Default or Unmatured Event of Default has occurred and is continuing, and no Event of Default or Unmatured Event of Default would result from such Credit Extension;
(iii) no Borrowing Base Deficit exists or would exist after giving effect to such Credit Extension;
(iv) the Aggregate Principal will not exceed the Facility Limit; and
Exhibit A-1
749336112 22708133
(v) the Termination Date has not occurred.
Exhibit A-2
749336112 22708133
IN WITNESS WHEREOF, the undersigned has executed this letter by its duly authorized officer as of the date first above written.
Very truly yours,
By:
Name:
Title:
Exhibit A-3
749336112 22708133
EXHIBIT B
Form of Reduction Notice
[Letterhead of Borrower]
[Date]
[Administrator]
[Lenders]
Re: Reduction Notice
Ladies and Gentlemen:
Reference is hereby made to that certain Receivables Financing Agreement, dated as of May 19, 2022, among Worthington Receivables Company, LLC, as borrower (the “Borrower”), Worthington Industries, Inc., as Servicer (the “Servicer”), the Lenders party thereto, PNC Bank, National Association, as Administrator (in such capacity, the “Administrator”) and PNC Capital Markets LLC, as Structuring Agent (as amended, supplemented or otherwise modified from time to time, the “Agreement”). Capitalized terms used in this Reduction Notice and not otherwise defined herein shall have the meanings assigned thereto in the Agreement.
This letter constitutes a Reduction Notice pursuant to Section 2.02(d) of the Agreement. The Borrower hereby notifies the Administrator and the Lenders that it shall prepay the outstanding Principal of the Lenders in the amount of [$_______] to be made on [_____, 20_]. After giving effect to such prepayment, the Aggregate Principal will be [$_______].
The Borrower hereby represents and warrants as of the date hereof, and after giving effect to such reduction, as follows:
(i) the representations and warranties of the Borrower and the Servicer contained in Sections 7.01 and 7.02 of the Agreement are true and correct in all material respects on and as of the date of such prepayment as though made on and as of such date unless such representations and warranties by their terms refer to an earlier date, in which case they shall be true and correct in all material respects on and as of such earlier date;
(ii) no Event of Default or Unmatured Event of Default has occurred and is continuing, and no Event of Default or Unmatured Event of Default would result from such prepayment;
(iii) no Borrowing Base Deficit exists or would exist after giving effect to such prepayment; and
(iv) the Termination Date has not occurred.
Exhibit B-1
749336112 22708133
In Witness Whereof, the undersigned has executed this letter by its duly authorized officer as of the date first above written.
Very truly yours,
WORTHINGTON RECEIVABLES COMPANY, LLC
By:
Name:
Title:
Exhibit B-2
749336112 22708133
EXHIBIT C
[Form of Assignment and Acceptance Agreement]
Dated as of ___________, 20__
Section 1.
Commitment assigned: |
$[_____] |
Assignor’s remaining Commitment: |
$[_____] |
Principal allocable to Commitment assigned: |
$[_____] |
Assignor’s remaining Principal: |
$[_____] |
Interest (if any) allocable to Principal assigned: |
$[_____] |
Interest (if any) allocable to Assignor’s remaining Principal: |
$[_____] |
Section 2.
Effective Date of this Assignment and Acceptance Agreement: [__________]
Upon execution and delivery of this Assignment and Acceptance Agreement by the assignee and the assignor and the satisfaction of the other conditions to assignment specified in Section 14.03(a) of the Agreement (as defined below), from and after the effective date specified above, the assignee shall become a party to, and, to the extent of the rights and obligations thereunder being assigned to it pursuant to this Assignment and Acceptance Agreement, shall have the rights and obligations of a Lender under that certain Receivables Financing Agreement, dated as of May 19, 2022 among Worthington Receivables Company, LLC, Worthington Industries, Inc., as Servicer, the Lenders party thereto, PNC Bank, National Association, as Administrator and PNC Capital Markets LLC, as Structuring Agent (as amended, supplemented or otherwise modified from time to time, the “Agreement”).
(Signature Pages Follow)
Exhibit C-1
749336112 22708133
ASSIGNOR: [_________]
By:
Name:
Title
ASSIGNEE: [_________]
By:
Name:
Title:
[Address]
Accepted as of date first above
written:
PNC BANK, NATIONAL ASSOCIATION,
as Administrator
By:
Name:
Title:
WORTHINGTON RECEIVABLES COMPANY, LLC,
as Borrower
By:
Name:
Title:
Exhibit C-2
749336112 22708133
EXHIBIT D
[Reserved]
Exhibit D-1
749336112 22708133
EXHIBIT E
Credit and Collection Policy
(Attached)
Exhibit E
749336112 22708133
EXHIBIT F
Form of Information Package
(Attached)
Exhibit F
749336112 22708133
EXHIBIT G
Form of Compliance Certificate
To: PNC Bank, National Association, as Administrator
This Compliance Certificate is furnished pursuant to that certain Receivables Financing Agreement, dated as of May 19, 2022, among Worthington Receivables Company, LLC (the “Borrower”), Worthington Industries, Inc., as Servicer (the “Servicer”), the Lenders party thereto, PNC Bank, National Association, as Administrator (in such capacity, the “Administrator”) and PNC Capital Markets LLC, as Structuring Agent (as amended, supplemented or otherwise modified from time to time, the “Agreement”). Capitalized terms used herein and not otherwise defined herein shall have the meanings assigned to them in the Agreement.
THE UNDERSIGNED HEREBY CERTIFIES THAT:
1. I am the duly elected ________________of the Servicer.
2. I have reviewed the terms of the Agreement and each of the other Transaction Documents and I have made, or have caused to be made under my supervision, a detailed review of the transactions and condition of the Borrower during the accounting period covered by the attached financial statements.
3. The examinations described in paragraph 2 above did not disclose, and I have no knowledge of, the existence of any condition or event which constitutes an Event of Default or an Unmatured Event of Default, as each such term is defined under the Agreement, during or at the end of the accounting period covered by the attached financial statements or as of the date of this Certificate[, except as set forth in paragraph 5 below].
4. Schedule I attached hereto sets forth financial statements of the Parent and its Subsidiaries for the period referenced on such Schedule I.
[5. Described below are the exceptions, if any, to paragraph 3 above by listing, in detail, the nature of the condition or event, the period during which it has existed and the action which Borrower has taken, is taking, or proposes to take with respect to each such condition or event:]
Exhibit G-1
749336112 22708133
The foregoing certifications are made and delivered this ______ day of ___________________, 20___.
[_________]
By:
Name:
Title:
Exhibit G-2
749336112 22708133
SCHEDULE I TO COMPLIANCE CERTIFICATE
A. Schedule of Compliance as of ___________________, 20__ with Section 8.02(i) of the Agreement. Unless otherwise defined herein, the terms used in this Compliance Certificate have the meanings ascribed thereto in the Agreement.
This schedule relates to the month ended: __________________.
B. The following financial statements of the Parent and its Subsidiaries for the period ending on ______________, 20__, are attached hereto:
Exhibit G-3
749336112 22708133
EXHIBIT H
Closing Memorandum
(Attached)
Exhibit H
749336112 22708133
SCHEDULE I
Commitments
PNC Bank, National Association |
||
Party |
Capacity |
Commitment |
PNC Bank, National Association |
Lender |
$175,000,000 |
Schedule I-1
749336112 22708133
SCHEDULE II
Lock-Boxes, Lock-Box Accounts and Lock-Box Account Banks
Lock-Box Account Bank |
Lock-Box Account Number |
Associated Lock-Box (if any) |
JPMorgan Chase Bank, N.A. |
557395865
|
27404
|
Schedule II-1
749336112 22708133
SCHEDULE III
Notice Addresses
(A) in the case of the Borrower, at the following address:
Worthington Receivables Company, LLC
200 Old Wilson Bridge Road
Columbus, Ohio 43085
Attention: Marcus Rogier
Telephone: (614) 840-4663
Facsimile: (614) 438-7508
(B) in the case of the Servicer, at the following address:
Worthington Industries, Inc.
200 Old Wilson Bridge Road
Worthington, Ohio 43085
Attention: Marcus Rogier
Telephone: (614) 840-4663
Facsimile: (614) 438-7508
(C) in the case of the Administrator, at the following address:
PNC Bank, National Association
The Tower at PNC Plaza
300 Fifth Avenue, 11th Floor
Pittsburgh, PA 15222
Attention: Brian Stanley
Telephone: 412-768-2001
Facsimile: 412-803-7142
Email: brian.stanley@pnc.com
ABFAdmin@pnc.com
(D) in the case of any other Person, at the address for such Person specified in the other Transaction Documents; in each case, or at such other address as shall be designated by such Person in a written notice to the other parties to this Agreement.
Schedule III-1
749336112 22708133
Exhibit 31.1
RULE 13a-14(a) / 15d-14(a)
CERTIFICATIONS (PRINCIPAL EXECUTIVE OFFICER)
CERTIFICATIONS
I, B. Andrew Rose, certify that:
Date: October 11, 2022 |
|
By: |
/s/ B. Andrew Rose |
|
|
|
B. Andrew Rose, |
|
|
|
Chief Executive Officer and President |
Exhibit 31.2
RULE 13a-14(a) / 15d-14(a)
CERTIFICATIONS (PRINCIPAL FINANCIAL OFFICER)
CERTIFICATIONS
I, Joseph B. Hayek, certify that:
Date: October 11, 2022 |
|
By: |
/s/ Joseph B. Hayek |
|
|
|
Joseph B. Hayek, |
|
|
|
Vice President and Chief Financial Officer |
Exhibit 32.1
CERTIFICATIONS OF PRINCIPAL EXECUTIVE OFFICER PURSUANT TO 18 U.S.C. SECTION 1350, AS ADOPTED PURSUANT TO SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002*
In connection with the Quarterly Report of Worthington Industries, Inc. (the “Company”) on Form 10-Q for the quarterly period ended August 31, 2022, as filed with the Securities and Exchange Commission on the date hereof (the “Report”), I, B. Andrew Rose, Chief Executive Officer and President of the Company, certify, pursuant to Section 1350 of Chapter 63 of Title 18 of the United States Code, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that, to the best of my knowledge:
|
|
|
/s/ B. Andrew Rose |
|
|
|
Printed Name: B. Andrew Rose |
|
|
|
Title: Chief Executive Officer and President |
Date: October 11, 2022 |
|
|
|
*These certifications are being furnished as required by Rule 13a-14(b) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and Section 1350 of Chapter 63 of Title 18 of the United States Code, and shall not be deemed “filed” for purposes of Section 18 of the Exchange Act or otherwise subject to the liability of that Section. These certifications shall not be deemed to be incorporated by reference into any filing under the Securities Act of 1933, as amended, or the Exchange Act, except to the extent that Worthington Industries, Inc. specifically incorporates these certifications by reference.
Exhibit 32.2
CERTIFICATIONS OF PRINCIPAL FINANCIAL OFFICER PURSUANT TO 18 U.S.C. SECTION 1350, AS ADOPTED PURSUANT TO SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002*
In connection with the Quarterly Report of Worthington Industries, Inc. (the “Company”) on Form 10-Q for the quarterly period ended August 31, 2022, as filed with the Securities and Exchange Commission on the date hereof (the “Report”), I, Joseph B. Hayek, Vice President and Chief Financial Officer of the Company, certify, pursuant to Section 1350 of Chapter 63 of Title 18 of the United States Code, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that, to the best of my knowledge:
|
|
|
/s/ Joseph B. Hayek |
|
|
|
Printed Name: Joseph B. Hayek |
|
|
|
Title: Vice President and Chief Financial Officer |
Date: October 11, 2022 |
|
|
|
*These certifications are being furnished as required by Rule 13a-14(b) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and Section 1350 of Chapter 63 of Title 18 of the United States Code, and shall not be deemed “filed” for purposes of Section 18 of the Exchange Act or otherwise subject to the liability of that Section. These certifications shall not be deemed to be incorporated by reference into any filing under the Securities Act of 1933, as amended, or the Exchange Act, except to the extent that Worthington Industries, Inc. specifically incorporates these certifications by reference.