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EXHIBIT 4(h)
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THIRD SUPPLEMENTAL INDENTURE
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THIRD SUPPLEMENTAL INDENTURE, dated as of October 13, 1998, among WORTHINGTON
INDUSTRIES, INC., a corporation duly organized and existing under the laws of
the State of Delaware, having its principal office at 0000 Xxxxxxxx Xxxxx,
Xxxxxxxx, Xxxx 00000 (the "Company"), 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
("Worthington Ohio"), and 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, as Trustee (the "Trustee").
R E C I T A L S
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 and a Second Supplemental Indenture thereto dated
as of December 12, 1997 (collectively, the "Indenture"), providing for the
issuance by the Company of an unlimited amount of its unsecured debentures,
notes, bonds or other evidences of indebtedness (the "Debt Securities"); and
WHEREAS, pursuant to an Agreement of Merger, dated as of August 20, 1998
(the "Merger Agreement"), between the Company and Worthington Ohio, the Company
is merging (the "Merger") with and into Worthington Ohio effective October 13,
1998 (the "Effective Date") with Worthington Ohio being the surviving
corporation in the Merger; and
WHEREAS, Section 10.01 of the Indenture provides that, in the event the
Company shall consolidate with or merge into any other corporation, the
Successor Company shall expressly assume, by an indenture supplemental to the
Indenture, executed and delivered to the Trustee, in form satisfactory to the
Trustee, all of the obligations of the Company under the Debt Securities
according to their tenor, and the Indenture; and
WHEREAS, Section 9.01 of the Indenture provides that the Company, when
authorized by a resolution of the Board of Directors, and the Trustee may enter
into a supplemental indenture without the consent of any Holders to evidence the
succession pursuant to Article X of the Indenture of another corporation to the
Company and the assumption by the Successor Company of the covenants, agreements
and obligations of the Company in the Indenture and in the Debt Securities; and
WHEREAS, immediately after giving effect to the Merger, no Default or
Event of Default would occur or be continuing; and
WHEREAS, all things necessary to authorize the assumption by Worthington
Ohio of the Company's obligations under the Indenture and to make this Third
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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. Assumption of Obligations. Worthington Ohio hereby expressly
assumes, from and after the Effective Date, all the obligations of the Company
under the Debt Securities according to their tenor, and the Indenture. The
Holder of each Debt Security outstanding as of the date hereof shall have the
right hereafter to receive on the Exchange Date for such Debt Security
securities of Worthington Ohio of like tenor, series, Stated Maturity and
principal amount and with a market value equal to the principal amount of such
Debt Security.
SECTION 2. Succession and Substitution. Worthington Ohio, from and after
the Effective Date, by virtue of the aforesaid assumption and the delivery of
this Third Supplemental Indenture, shall succeed to and be substituted for and
may exercise every right and power of the Company under the Indenture with the
same effect as if Worthington Ohio had been named as the Company in the
Indenture.
SECTION 3. Representations and Warranties. Worthington Ohio, as of the
date of execution of this Third Supplemental Indenture, represents and warrants
that: (i) it is a corporation organized and existing under the laws of the State
of Ohio; (ii) it has full corporate power and authority to execute and deliver
this Third Supplemental Indenture and to perform its obligations under this
Third Supplemental Indenture in accordance with its terms; and (iii) the
execution, delivery and performance of this Third 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, and will not
result in the creation of any Lien on any of its assets.
SECTION 4. Covenants. All covenants and agreements in this Third
Supplemental Indenture by Worthington Ohio shall bind its respective successors
and assigns, whether so expressed or not.
SECTION 5. Required Notices or Demands. Pursuant to Section 12.03 of the
Indenture, any notice or demand which by any provision of the Indenture is
required or permitted to be given or served by the Trustee or by the Holders to
or on the Company shall be addressed to Worthington Ohio at 0000 Xxxxxxxx Xxxxx,
Xxxxxxxx, Xxxx 00000 or at any other address previously furnished in writing to
the Trustee by Worthington Ohio.
SECTION 6. Severability. In case any provision in this Third Supplemental
Indenture shall be invalid, illegal or unenforceable, the validity, legality and
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enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
SECTION 7. No Third Party Benefits. Nothing in this Third 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 the
Debt Securities, any benefit or any legal or equitable right, remedy or claim
under the Indenture.
SECTION 8. Continuance of Indenture. This Third Supplemental Indenture
supplements the Indenture and shall be a part of and subject to all the terms
thereof. The Indenture, as supplemented by this Third Supplemental Indenture,
shall continue in full force and effect. This Third Supplemental Indenture shall
become effective at the Effective Date.
SECTION 9. The Trustee. The Trustee shall not be responsible in any
manner for or in respect of the validity or sufficiency of this Third
Supplemental Indenture, or for or in respect of the recitals contained herein,
all of which recitals are made by the Company and Worthington Ohio solely.
SECTION 10. Governing Law. This Third 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 11. Defined Terms. All capitalized terms used in this Third
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 12. Counterparts. This Third 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 Third
Supplemental Indenture to be duly executed as of the date first above written.
WORTHINGTON INDUSTRIES, INC.,
a Delaware corporation
By:/s/ Xxxx X. XxXxxxxxx
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Name: Xxxx X. XxXxxxxxx
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Title: Chairman and CEO
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Attest:
/s/ Xxxx X. Xxxxxxxx
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Name: Xxxx X. Xxxxxxxx
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Title: Asst. Secretary
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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 and CEO
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Attest:
/s/ Xxxx X. Xxxxxxxx
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Name: Xxxx X. Xxxxxxxx
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Title: Asst. Secretary
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PNC BANK, NATIONAL ASSOCIATION
(formerly known as PNC Bank, Ohio,
National Association),as Trustee
By:/s/ Sheetal Shal
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Name: Sheetal Shal
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Title: Bank Officer
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Attest:
/s/ Xxxx Xxxxxx
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Name: Xxxx X. Xxxxxx
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Title: Assistant Vice President Corporate Trust
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STATE OF OHIO )
) SS:
COUNTY OF FRANKLIN )
On the 14th day of October, 1998, before me personally came Xxxx X.
XxXxxxxxx, to me known, who, being by me duly sworn, did depose and say that
she/he is the Chairman/CEO of WORTHINGTON INDUSTRIES, INC., a Delaware
corporation, one of the corporations 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 corporation.
/s/ Xxxxxxx X. Xxxxxx
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Notary Public
XXXXXXX X. XXXXXX
SEAL NOTARY PUBLIC, STATE OF OHIO
MY COMMISSION EXPIRES OCT. 6, 2002
STATE OF OHIO )
) SS:
COUNTY OF FRANKLIN )
On the 14th day of October, 1998, before me personally came Xxxx X.
XxXxxxxxx, to me known, who, being by me duly sworn, did depose and say that
she/he is the Chairman/CEO of WORTHINGTON INDUSTRIES, INC., an Ohio corporation,
one of the corporations 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 corporation.
/s/ Xxxxxxx X. Xxxxxx
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Notary Public
XXXXXXX X. XXXXXX
SEAL NOTARY PUBLIC, STATE OF OHIO
MY COMMISSION EXPIRES OCT. 6, 0000
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XXXXX XX XXXX )
) SS:
COUNTY OF XXXXXXXX )
On the ___ day of October, 1998, before me personally came Xxxxxxx Xxxx
_________________, to me known, who, being by me duly sworn, did depose and say
that she/he is the ___________ of PNC BANK, NATIONAL ASSOCIATION (formerly known
as PNC Bank, Ohio, 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. Xxxxxx
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Notary Public
XXXXXX X. XXXXXX
SEAL Notary Public, State of Ohio
My Commission Expires Oct. 17, 1999
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