EXHIBIT 4(h)
FOURTH SUPPLEMENTAL INDENTURE
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THIS FOURTH SUPPLEMENTAL INDENTURE, dated as of May 10, 2002, among
WORTHINGTON INDUSTRIES, INC., a corporation duly organized and existing under
the laws of the State of Ohio, having its principal office at 0000 Xxxxxxxx
Xxxxx, Xxxxxxxx, Xxxx 00000 (the "Company"), and X.X. XXXXXX TRUST COMPANY,
NATIONAL ASSOCIATION, as successor trustee to Chase Manhattan Trust Company,
National Association (successor Trustee to PNC Bank, National Association,
formerly known as PNC Bank, Ohio, National Association), a national banking
association duly organized and existing under the laws of the United States of
America, as Trustee (the "Trustee").
RECITALS
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WHEREAS, the Company has heretofore executed and delivered to the
Trustee an Indenture, dated as of May 15, 1996, a First Supplemental Indenture
thereto, dated as of February 27, 1997, a Second Supplemental Indenture thereto,
dated as of December 12, 1997, and a Third Supplemental Indenture thereto, dated
as of October 13, 1998 (collectively, the "Indenture"), providing for the
issuance by the Company of an unlimited amount of its Debt Securities; and
WHEREAS, simultaneously with the execution and delivery of this Fourth
Supplemental Indenture, the Company is entering into a Five-Year Revolving
Credit Agreement and a 364-Day Revolving Credit Agreement (collectively, the
"Credit Agreements"), each dated May 10, 2002, with certain lenders as
identified therein (the "Lenders") and certain other parties; and
WHEREAS, as a condition to the making of the loans pursuant to the
Credit Agreements, the Lenders are requiring the Company to pledge, pursuant to
that certain Pledge Agreement (the "Pledge Agreement"), dated as of even date
herewith, to Xxxxx Fargo Bank Minnesota, National Association, as Collateral
Agent, certain collateral, consisting primarily of certain promissory notes
issued by certain subsidiaries of the Company in favor of the Company; and
WHEREAS, Section 4.10 of the Indenture would otherwise prohibit such
pledge, unless the Company contemporaneously secures the Debt Securities now or
hereafter outstanding equally and ratably with the other obligations secured
thereby; and
WHEREAS, Section 9.01 of the Indenture provides that the Company, when
authorized by a resolution of the Board of Directors of the Company, and the
Trustee may enter into a supplemental Indenture without the consent of any
Holders for the purpose of conveying, transferring, assigning, mortgaging or
pledging any property to or with the Trustee, or making such other provisions in
regard to matters or questions arising under the Indenture as shall not
adversely affect the interests of any Holders of Debt Securities of any series;
and
WHEREAS, the Pledge Agreement provides for the pledge of the Collateral
(as defined in the Pledge Agreement) for the equal and ratable benefit of the
Lenders and the Trustee
for the benefit of the Holders of the Debt Securities and does not adversely
affect the interests of any Holders of the Debt Securities of any series; and
WHEREAS, immediately after giving effect to the terms of this Fourth
Supplemental Indenture, no Default or Event of Default would occur or be
continuing; and
WHEREAS, all things necessary to make this Fourth Supplemental
Indenture, when executed by the parties hereto, a valid and binding supplement
to the Indenture have been done and performed;
NOW, THEREFORE, for and in consideration of the premises and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto do hereby mutually covenant and agree as
follows:
SECTION 1. ACKNOWLEDGEMENT OF, AGREEMENT TO AND ACCEPTANCE OF PLEDGE.
The Company hereby expressly acknowledges, represents, warrants, covenants and
agrees that it (i) has duly authorized, executed and delivered the Pledge
Agreement in favor of Xxxxx Fargo Bank Minnesota, National Association, as
collateral agent (the "Collateral Agent"), for the equal and ratable benefit of
each of the Lenders and the Holders of Debt Securities (collectively, the
"Secured Parties") and, pursuant to the terms and conditions of the Pledge
Agreement, pledged to the Secured Parties and granted to the Secured Parties a
continuing security interest in all of the Collateral (as defined in the Pledge
Agreement), (ii) has deposited with the Collateral Agent all of the promissory
notes described on Exhibit A attached to the Pledge Agreement, together with all
necessary instruments of transfer or assignment, duly executed in blank, and
(iii) has delivered to the Trustee a fully-executed copy of the Pledge
Agreement. On behalf of Holders of Debt Securities, the Trustee hereby expressly
accepts the benefit of such pledge.
SECTION 2. CERTAIN DELIVERIES BY COMPANY. On and as of the date hereof,
the Company shall have delivered to the Trustee, as provided in Section 12.05 of
the Indenture, the requisite Officers' Certificate and an opinion or opinions of
counsel, which Officers' Certificate and opinion(s) of counsel shall comply with
the requirements of such Section 12.05.
SECTION 3. AUTHORIZATION TO EXECUTE ADDITIONAL DOCUMENTS. The Company
hereby expressly acknowledges and approves the execution and delivery by the
Trustee of the Pledge Agreement and the Trust Agreement (as defined in the
Pledge Agreement), together with any and all other documents, certificates and
instruments executed and delivered by the Trustee in accordance with the
provisions thereof.
SECTION 4. NO CONFLICT. The Company, as of the date of execution of
this Fourth Supplemental Indenture, represents and warrants that the execution,
delivery and performance of this Fourth Supplemental Indenture, will not
violate, conflict with or constitute a breach of, or a default under, its
Amended Articles of Incorporation or any other material agreement or instrument
to which it is a party or which is binding on it or its assets.
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SECTION 5. SEVERABILITY. In case any provision of this Fourth
Supplemental Indenture shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
SECTION 6. NO THIRD PARTY BENEFITS. Nothing in this Fourth Supplemental
Indenture, expressed or implied, shall give to any Person, other than the
parties hereto and their successors under the Indenture, and the Holders of Debt
Securities, any benefit or any legal or equitable right, remedy or claim under
the Indenture.
SECTION 7. CONTINUING OF INDENTURE. This Fourth Supplemental Indenture
supplements the Indenture and shall be a part of and subject to all the terms
thereof. The Indenture, as supplemented by this Fourth Supplemental Indenture,
shall continue in full force and effect.
SECTION 8. THE TRUSTEE. The Trustee shall not be responsible in any
manner for or in respect of the validity or sufficiency of this Fourth
Supplemental Indenture, or for or in respect of the recitals contained herein,
all of which recitals are made by the Company solely.
SECTION 9. GOVERNING LAW. This Fourth Supplemental Indenture shall be
construed in accordance with the laws of the State of New York (without
reference to principles of conflicts of law).
SECTION 10. DEFINED TERMS. All capitalized terms used in this Fourth
Supplemental Indenture which are defined in the Indenture but not otherwise
defined herein shall have the same meanings assigned to them in the Indenture.
SECTION 11. COUNTERPARTS. This Fourth Supplemental Indenture may be
executed in any number of counterparts, each of which shall be an original, but
all such counterparts shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Fourth
Supplemental Indenture to be duly executed as of the date first above written.
WORTHINGTON INDUSTRIES, INC.,
an Ohio corporation
By /s/Xxxx X. XxXxxxxxx
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Name: Xxxx X. XxXxxxxxx
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Title: Chairman & Chief Executive Officer
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Attest:
/s/Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx
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Title: Vice President & Chief Financial Officer
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X.X. XXXXXX TRUST COMPANY, NATIONAL
ASSOCIATION, as Trustee
By /s/Xxxxxx X. XxXxxxx
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Name: Xxxxxx X. XxXxxxx
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Title: Vice President
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Attest:
/s/X. X. Xxxxxxx
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Name: X. X. Xxxxxxx
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Title: Assistant Vice President
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STATE OF OHIO )
) SS:
COUNTY OF FRANKLIN )
On the 10th day of May, 2002, before me personally came Xxxx X.
XxXxxxxxx, to me known, who, being by me duly sworn, did depose and say that he
is the Chairman and Chief Executive Officer of WORTHINGTON INDUSTRIES, INC., an
Ohio corporation, one of the entities described in and which executed the
foregoing instrument; and that he signed his name thereto by authority of the
Board of Directors of said corporation.
/s/Xxxxxxx X. Xxxxxx
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Notary Public, Xxxxxxx X. Xxxxxx,
Notary Public, State of Ohio
My Commission expires October 5, 0000
XXXX
XXXXX XX XXXXXXXXXXXX )
) SS:
COUNTY OF ALLEGHENY )
On the 10th day of May, 2002, before me personally came Xxxxxx X.
XxXxxxx, to me known, who, being by me duly sworn, did depose and say that he is
the Vice President of X.X. XXXXXX TRUST COMPANY, NATIONAL ASSOCIATION, a
national banking association, one of the entities described in and which
executed the foregoing instrument; and that she/he signed her/his name thereto
by authority of the Board of Directors of said national banking association.
/s/Xxxxxx X. XxXxxxxxx
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Notary Public, Xxxxxx X. XxXxxxxxx, Notary Public
City of Pittsburgh, Allegheny County
My Commission Expires Nov. 26, 2005
Member, Pennsylvania Association of Notaries
SEAL
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