EXHIBIT 4(k)
PLEDGE AGREEMENT
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THIS PLEDGE AGREEMENT (this "PLEDGE AGREEMENT"), dated as of May 10,
2002, made by WORTHINGTON INDUSTRIES, INC., an Ohio corporation (the "PLEDGOR"),
in favor of WELLS FARGO BANK MINNESOTA, NATIONAL ASSOCIATION, as Collateral
Agent (as defined below) for the Secured Parties (as defined in the Trust
Agreement referred to below).
STATEMENT OF PURPOSE:
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Pursuant to the Trust Agreement, dated as of May 10, 2002 (as amended,
restated, supplemented or otherwise modified from time to time, the "TRUST
AGREEMENT"; capitalized terms used but not defined herein have the respective
meanings assigned thereto in the Trust Agreement), Wells Fargo Bank Minnesota,
National Association has agreed to act as trustee (together with any
successor(s) thereto in such capacity, the "TRUSTEE") on behalf of the Secured
Parties.
The Pledgor has agreed to grant to the Collateral Agent, for the
benefit of the Secured Parties, a security interest in certain of its assets as
more fully described below.
NOW THEREFORE, for good and valuable consideration the receipt of which
is hereby acknowledged, the Pledgor agrees, for the benefit of each Secured
Party, as set out below.
ARTICLE I
DEFINITIONS
SECTION 1.1 CERTAIN TERMS. The following terms when used in this Pledge
Agreement, including its preamble and recitals, shall have the following
meanings (such definitions to be equally applicable to the singular and plural
forms thereof):
"COLLATERAL" is defined in SECTION 2.1.
"COLLATERAL AGENT" means Wells Fargo Bank Minnesota, National
Association, as collateral agent for the benefit of the Secured Parties
hereunder, together with its successors and permitted assigns.
"CREDIT AGREEMENTS" means, collectively, (i) the 364-Day Revolving
Credit Agreement, dated as of May 10, 2002, among the Pledgor, as Borrower, the
Lenders party thereto and PNC Bank, National Association, in its capacity as
Issuing Lender, Swingline Lender and Administrative Agent, and (ii) the Five
Year Revolving Credit Agreement, dated as of May 10, 2002, among the Pledgor, as
Borrower, the Lenders party thereto and PNC Bank, National Association, in its
capacity as Administrative Agent, in each case as the same may be amended,
restated, supplemented or otherwise modified from time to time.
"PLEDGE AGREEMENT" is defined in the PREAMBLE.
"PLEDGED NOTE ISSUER" means each Person identified on SCHEDULE A hereto
as the issuer of the Pledged Note identified opposite the name of such Person.
"PLEDGED NOTES" means all promissory notes of any Pledged Note Issuer
in the form or substantially the form of EXHIBIT A hereto which are delivered by
the Pledgor to the Collateral Agent as Pledged Property hereunder, as such
promissory notes, in accordance with SECTION 4.3, are amended, modified or
supplemented from time to time and together with any promissory note of any
Pledged Note Issuer taken in extension or renewal thereof or substitution
therefor.
"PLEDGED PROPERTY" means all Pledged Notes, and all other pledged
promissory notes, all other securities, all amounts due or to become due under
the Pledged Notes, all other instruments which are now being delivered by the
Pledgor to the Collateral Agent or may from time to time hereafter be delivered
by the Pledgor to the Collateral Agent for the purpose of pledge under this
Pledge Agreement, and all proceeds of any of the foregoing.
"PLEDGOR" is defined in the PREAMBLE.
"SECURED OBLIGATIONS" means collectively (i) the Public Debt
Obligations, (ii) the Credit Agreement Obligations, (iii) all sums payable by
the Company under the Trust Agreement or this Pledge Agreement (including,
without limitation, Trustee Fees) and (iv) all sums payable by the Company in
connection with the Indebtedness and the obligations of the Company with respect
to the Additional Senior Indebtedness.
"SECURED PARTIES" means collectively (i) the Holders and the Public
Debt Trustee, (ii) the Lenders and the Administrative Agent, (iii) the
Collateral Agent, (iv) the Trustee and (v) the Holders of Additional Senior
Indebtedness.
"SECURITIES ACT" is defined in SECTION 6.2.
"U.C.C." means the Uniform Commercial Code as in effect in the State of
New York.
SECTION 1.2 U.C.C. DEFINITIONS. Unless otherwise defined herein or the
context otherwise requires, terms for which meanings are provided in the U.C.C.
are used in this Pledge Agreement, including its preamble and recitals, with
such meanings.
ARTICLE II
PLEDGE
SECTION 2.1 GRANT OF SECURITY INTEREST. The Pledgor hereby pledges,
hypothecates, assigns, charges, mortgages, delivers, and transfers to the
Collateral Agent, for the equal and ratable benefit of each of the Secured
Parties, a continuing security interest in, all of the following property (the
"COLLATERAL"):
(a) all Pledged Notes identified on SCHEDULE A hereto;
(b) all other Pledged Notes issued from time to time;
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(c) all other Pledged Property, whether now or hereafter
delivered to the Collateral Agent in connection with this Pledge
Agreement;
(d) all principal, interest and other payments and rights with
respect to any Pledged Property; and
(e) all proceeds of any of the foregoing.
SECTION 2.2 SECURITY FOR OBLIGATIONS. This Pledge Agreement secures the
payment in full of all Secured Obligations of the Pledgor now or hereafter
existing.
SECTION 2.3 DELIVERY OF PLEDGED PROPERTY. All certificates or
instruments representing or evidencing any Collateral, including all Pledged
Notes, shall be delivered to and held by or on behalf of (and endorsed to the
order of) the Collateral Agent pursuant hereto, shall be in suitable form for
transfer by delivery, and shall be accompanied by all necessary instruments of
transfer or assignment, duly executed in blank.
SECTION 2.4 VOTING RIGHTS, PAYMENTS, ETC. (a) Notwithstanding the
provisions of SECTION 5.1, so long as neither the Administrative Agent nor the
Public Debt Trustee has given the notice referred to in PARAGRAPH (b) below:
(i) Subject to SECTION 2.4(b), the Pledgor shall be entitled to
exercise any and all voting or consensual rights and powers relating
or pertaining to the Collateral or any part thereof for any purpose;
PROVIDED that the Pledgor agrees that it will not exercise any such
right or power in any manner which would have a material adverse
effect on the Collateral Agent's or any other Secured Party's rights
with respect to any material portion of the Collateral.
(ii) Subject to SECTION 2.4(b), the Pledgor shall be entitled to
receive and retain any and all principal and interest payments made in
cash by any Pledged Note Issuer, but all distributions in respect of
the Collateral or any part thereof made in shares of stock or
securities or other property or representing any return of capital,
whether resulting from a subdivision, combination or reclassification
of Collateral or any part thereof or received in exchange for
Collateral or any part thereof or as a result of any merger,
consolidation, acquisition or other exchange of assets to which any
Pledged Note Issuer may be a party or otherwise or as a result of any
exercise of any stock purchase or subscription right, shall be and
become part of the Collateral hereunder and, if received by the
Pledgor, shall be forthwith delivered to the Collateral Agent in due
form for transfer (i.e., endorsed in blank or accompanied by stock or
bond powers executed in blank) to be held for the purposes of this
Pledge Agreement.
(iii) The Collateral Agent shall execute and deliver, or cause to
be executed and delivered, to the Pledgor, all such powers of attorney
and other instruments as the Pledgor may reasonably request for the
purpose of enabling the Pledgor to exercise the rights and powers
which it is entitled to exercise pursuant to CLAUSE (i) above and to
receive the payments which it is authorized to retain pursuant to
CLAUSE (ii) above.
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(b) When a Notice of Acceleration is in effect, and so long as
the same shall be continuing, all rights and powers which the Pledgor
is entitled to exercise pursuant to SECTION 2.4(a)(i), and all rights
of the Pledgor to receive and retain payments pursuant to SECTION
2.4(a)(ii), shall forthwith cease, and all such rights and powers
shall thereupon become vested in the Collateral Agent which shall
have, when a Notice of Acceleration is in effect, the sole and
exclusive authority to exercise such rights and powers and to receive
such payments. Any and all money and other property paid over to or
received by the Collateral Agent pursuant to this PARAGRAPH (b) shall
be retained by the Collateral Agent as additional Collateral hereunder
and applied in accordance with the provisions hereof and the Trust
Agreement.
SECTION 2.5 CONTINUING SECURITY INTEREST; TRANSFER OF NOTE. This Pledge
Agreement shall create a continuing pledge of and security interest in the
Collateral and shall:
(a) Subject to SECTION 7.7 of this Pledge Agreement, remain in
full force and effect until payment in full of all Secured Obligations
and the termination of all Commitments (as defined in the Credit
Agreements);
(b) be binding upon the Pledgor and its successors, transferees
and assigns; and
(c) inure, together with the rights and remedies of the
Collateral Agent hereunder, to the benefit of the Collateral Agent and
each other Secured Party.
Without limiting the foregoing CLAUSE (c), any Lender, Holder or Holder
of Additional Senior Indebtedness may assign or otherwise transfer (in whole or
in part) any Loan (as defined in the Credit Agreements) or securities
representing any Public Debt Security held by it or instruments evidencing any
Additional Senior Indebtedness held by it to any other Person or entity, and
such other Person or entity shall thereupon become vested with all the rights
and benefits in respect thereof granted to such (i) Lender under any Loan
Document (as defined in the Credit Agreements), (ii) Holder under the Indenture
or (iii) Holder of Additional Senior Indebtedness, in each case including this
Pledge Agreement, subject, however, to any contrary provisions in such
assignment or transfer, and to the provisions of SECTION 10.06 of the Credit
Agreement with respect to the Lenders and SECTION 2.07 of the Indenture with
respect to the Holders of Public Debt Securities. Upon the earlier to occur of
(i) payment in full of all Secured Obligations and the termination of all
Commitments (as defined in the Credit Agreements) or (ii) the termination of
this Pledge Agreement pursuant to SECTION 6.9 of the Trust Agreement, the
security interest granted herein shall terminate and all rights to the
Collateral shall revert to the Pledgor. Upon any such termination, the
Collateral Agent will, at the Pledgor's sole expense, deliver to the Pledgor,
without any representations, warranties or recourse of any kind whatsoever, all
certificates and instruments representing or evidencing all Pledged Notes,
together with all other Collateral held by the Collateral Agent hereunder, and
execute and deliver to the Pledgor such documents as the Pledgor shall
reasonably request to evidence such termination.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.1 WARRANTIES, ETC. The Pledgor represents and warrants unto
each Secured Party, as at the date of each pledge and delivery hereunder
(including each pledge and delivery of a Pledged Note) by the Pledgor to the
Collateral Agent of any Collateral, as set forth in this Article III.
SECTION 3.2 OWNERSHIP, NO LIENS, ETC. The Pledgor is the legal and
beneficial owner of, and has title to (and has full right and authority to
pledge and assign) such Collateral, free and clear of all liens, security
interests, options, or other charges or encumbrances, except any lien or
security interest granted pursuant hereto in favor of the Collateral Agent.
SECTION 3.3 VALID SECURITY INTEREST. The possession of such Collateral
by the Collateral Agent is effective to create a valid, perfected, first
priority security interest securing the Secured Obligations in such Collateral
and all proceeds thereof. No filing or other action is or will be necessary to
perfect, continue or protect such security interest.
SECTION 3.4 AS TO PLEDGED NOTES. In the case of each Pledged Note, all
of such Pledged Notes have been duly authorized, executed, endorsed, issued and
delivered, and are the legal, valid and binding obligations of the respective
Pledged Note Issuers, and are not in default.
SECTION 3.5 AUTHORIZATION, APPROVAL, ETC. No authorization, approval,
or other action by, and no notice to or filing with, any governmental authority,
regulatory body or any other Person is required either:
(a) for the pledge by the Pledgor of any Collateral pursuant to
this Pledge Agreement or for the execution, delivery, and performance
of this Pledge Agreement by the Pledgor, or
(b) for the exercise by the Collateral Agent of the rights
provided for in this Pledge Agreement or any remedies in respect of
the Collateral pursuant to this Pledge Agreement or under applicable
law.
SECTION 3.6 COMPLIANCE WITH LAWS. The Pledgor is in compliance with the
requirements of all applicable laws, rules, regulations and orders of every
governmental authority, the non-compliance with which might materially adversely
affect the business, properties, assets, operations, condition (financial or
otherwise) or prospects of the Pledgor or the value of the Collateral or the
worth of the Collateral as collateral security.
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ARTICLE IV
COVENANTS
SECTION 4.1 PROTECT COLLATERAL; FURTHER ASSURANCES, ETC. The Pledgor
will not (i) sell, assign, transfer, pledge, or encumber in any other manner the
Collateral (except in favor of the Collateral Agent hereunder), (ii) perform any
act which would prevent the Collateral Agent from enforcing any of the terms and
conditions of this Pledge Agreement or would limit the Collateral Agent in any
such enforcement or (iii) become a party to or otherwise bound by any agreement,
other than this Pledge Agreement and the Trust Agreement, which restricts in any
manner the rights of the Collateral Agent with respect to the Collateral. The
Pledgor will warrant and defend the right and title herein granted unto the
Collateral Agent in and to the Collateral (and all right, title, and interest
represented by the Collateral) against the claims and demands of all Persons
whomsoever. The Pledgor agrees that at any time, and from time to time, at the
expense of the Pledgor, the Pledgor will promptly execute and deliver all
further instruments (including, without limitation, Uniform Commercial Code
financing statements), and take all further action, that may be necessary or
desirable, or that the Collateral Agent may reasonably request, in order to
perfect, continue and protect any security interest or pledge granted or
purported to be granted hereby or to enable the Collateral Agent to exercise and
enforce its rights and remedies hereunder with respect to any Collateral.
SECTION 4.2 CONTINUOUS PLEDGE. Subject to SECTION 2.4 AND 7.7 of this
Agreement and SECTION 6.9 of the Trust Agreement, the Pledgor will, at all
times, keep pledged to the Collateral Agent pursuant hereto all Pledged Notes,
all interest, principal and other proceeds received by the Collateral Agent with
respect to the Pledged Notes, and all other Collateral and other securities,
instruments, proceeds, and rights from time to time received by or distributable
to the Pledgor in respect of any Collateral.
SECTION 4.3 ADDITIONAL UNDERTAKINGS. The Pledgor will not, without the
prior written consent of the Collateral Agent (except as otherwise provided in
the Credit Agreements):
(a) enter into any agreement amending, supplementing, or waiving
any provision of any Pledged Note or compromising or releasing or
extending the time for payment of any obligation of the maker thereof;
or
(b) except in connection with complying with the terms and
provisions of the Pledged Notes prior to a Notice of Acceleration
being in effect, take or omit to take any action the taking or the
omission of which would result in any impairment or alteration under
any obligation of the maker of any Pledged Note or other instrument
constituting Collateral.
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ARTICLE V
THE COLLATERAL AGENT
SECTION 5.1 COLLATERAL AGENT APPOINTED ATTORNEY-IN-FACT. The Pledgor
hereby irrevocably appoints the Collateral Agent the Pledgor's attorney-in-fact,
with full authority in the place and stead of the Pledgor and in the name of the
Pledgor or otherwise, from time to time in the Collateral Agent's discretion, to
take any action and to execute any instrument which the Collateral Agent may
deem necessary or advisable to accomplish the purposes of this Pledge Agreement,
including without limitation:
(a) during the effectiveness of a Notice of Acceleration, to ask,
demand, collect, sue for, recover, compromise, receive and give
acquittance and receipts for moneys due and to become due under or in
respect of any of the Collateral;
(b) to receive, endorse, and collect any drafts or other
instruments, documents and chattel paper, in connection with CLAUSE
(a) above; and
(c) during the effectiveness of a Notice of Acceleration, to file
any claims or take any action or institute any proceedings which the
Collateral Agent may deem necessary or desirable for the collection of
any of the Collateral or otherwise to enforce the rights of the
Collateral Agent with respect to any of the Collateral.
The Pledgor hereby acknowledges, consents and agrees that the power of attorney
granted pursuant to this Section is irrevocable and coupled with an interest.
SECTION 5.2 COLLATERAL AGENT MAY PERFORM. If the Pledgor fails to
perform any agreement contained herein, the Collateral Agent may itself perform,
or cause performance of, such agreement, and the expenses of the Collateral
Agent incurred in connection therewith shall be payable by the Pledgor pursuant
to SECTION 6.4.
SECTION 5.3 COLLATERAL AGENT HAS NO DUTY. The powers conferred on the
Collateral Agent hereunder are solely to protect its interest (on behalf of the
Secured Parties) in the Collateral and shall not impose any duty on it to
exercise any such powers. Except for reasonable care of any Collateral in its
possession and the accounting for moneys actually received by it hereunder, the
Collateral Agent shall have no duty as to any Collateral or responsibility for
(a) ascertaining or taking action with respect to calls, conversions, exchanges,
maturities, tenders or other matters relative to any Pledged Property or
Collateral, whether or not the Collateral Agent has or is deemed to have
knowledge of such matters, or (b) taking any necessary steps to preserve rights
against prior parties or any other rights pertaining to any Pledged Property or
Collateral.
SECTION 5.4 REASONABLE CARE. The Collateral Agent is required to
exercise reasonable care in the custody and preservation of any of the
Collateral in its possession; PROVIDED, HOWEVER, the Collateral Agent shall be
deemed to have exercised reasonable care in the custody and preservation of any
of the Collateral in its possession if such Collateral is accorded treatment
substantially equal to that which the Collateral Agent accords its own property.
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ARTICLE VI
REMEDIES
SECTION 6.1 CERTAIN REMEDIES. Whenever a Notice of Acceleration is in
effect:
(a) Subject to the Trust Agreement, the Collateral Agent may
exercise in respect of the Collateral, in addition to other rights and
remedies provided for herein or otherwise available to it, all the
rights and remedies of a secured party on default under the U.C.C.
(whether or not the U.C.C. applies to the affected Collateral) and
also may, without notice except as specified below, (i) sell the
Collateral or any part thereof in one or more parcels at public or
private sale, at any of the Collateral Agent's offices or elsewhere,
for cash, on credit or for future delivery, and upon such other terms
as the Collateral Agent may deem commercially reasonable, and (ii) bid
for and purchase any or all of the Collateral at any such public sale.
The Pledgor agrees that, to the extent notice of sale shall be
required by law, at least ten days' prior notice to the Pledgor of the
time and place of any public sale or the time after which any private
sale is to be made shall constitute reasonable notification. The
Collateral Agent shall not be obligated to make any sale of Collateral
regardless of notice of sale having been given. The Collateral Agent
may adjourn any public or private sale from time to time by
announcement at the time and place fixed therefor, and such sale may,
without further notice, be made at the time and place to which it was
so adjourned.
(b) The Collateral Agent may:
(i) transfer all or any part of the Collateral into the name
of the Collateral Agent or its nominee, with or without
disclosing that such Collateral is subject to the pledge and the
lien and security interest hereunder,
(ii) notify the parties obligated on any of the Collateral
to make payment to the Collateral Agent of any amount due or to
become due thereunder,
(iii) enforce collection of any of the Collateral by suit or
otherwise, and surrender, release or exchange all or any part
thereof, or compromise or extend or renew for any period (whether
or not longer than the original period) any obligations of any
nature of any party with respect thereto,
(iv) endorse any checks, drafts, or other writings in the
Pledgor's name to allow collection of the Collateral,
(v) take control of any proceeds of the Collateral, and
(vi) execute (in the name, place and stead of the Pledgor)
endorsements, assignments, stock powers and other instruments of
conveyance or transfer with respect to all or any of the
Collateral.
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SECTION 6.2 SECURITIES LAWS. If the Collateral Agent shall determine to
exercise its right to sell all or any of the Collateral pursuant to SECTION 6.1,
the Pledgor agrees that, upon request of the Collateral Agent, the Pledgor will,
at its own expense:
(a) execute and deliver, and cause each Pledged Note Issuer with
respect to the Collateral contemplated to be sold and the directors
and officers thereof to execute and deliver, all such instruments and
documents, and do or cause to be done all such other acts and things,
as may be necessary or, in the opinion of the Collateral Agent,
advisable to register such Collateral under the provisions of the
Securities Act of 1933, as from time to time amended (the "SECURITIES
ACT") or procure any exemption from such registration deemed
potentially applicable by the Collateral Agent, and to cause the
registration statement or exemption relating thereto to become
effective and to remain effective for such period as prospectuses are
required by law to be furnished, and to make all amendments and
supplements thereto and to the related prospectus which, in the
opinion of the Collateral Agent, are necessary or advisable, all in
conformity with the requirements of the Securities Act and the rules
and regulations of the Securities and Exchange Commission applicable
thereto;
(b) use its best efforts to qualify the Collateral under the
state securities or "Blue Sky" laws and to obtain all necessary
governmental approvals for the sale of the Collateral, as requested by
the Collateral Agent;
(c) cause each such Pledged Note Issuer to make available to its
security holders, as soon as practicable, an earnings statement that
will satisfy the provisions of Section 11(a) of the Securities Act;
and
(d) do or cause to be done all such other acts and things as may
be necessary to make such sale of the Collateral or any part thereof
valid and binding and in compliance with applicable law.
The Pledgor further acknowledges the impossibility of ascertaining the amount of
damages that would be suffered by the Collateral Agent or the Secured Parties by
reason of the failure by the Pledgor to perform any of the covenants contained
in this SECTION 6.2 and, consequently, agrees that, if the Pledgor shall fail to
perform any of such covenants, it shall pay, as liquidated damages and not as a
penalty, an amount equal to the value (as determined by the Collateral Agent) of
the Collateral on the date the Collateral Agent shall demand compliance with
this Section.
SECTION 6.3 COMPLIANCE WITH RESTRICTIONS. The Pledgor agrees that in
any sale of any of the Collateral during the effectiveness of a Notice of
Acceleration, the Collateral Agent is hereby authorized to comply with any
limitation or restriction in connection with such sale as it may be advised by
counsel is necessary in order to avoid any violation of applicable law
(including compliance with such procedures as may restrict the number of
prospective bidders and purchasers, require that such prospective bidders and
purchasers have certain qualifications, and restrict such prospective bidders
and purchasers to persons who will represent and agree that they are purchasing
for their own account for investment and not with a view to the distribution or
resale of such Collateral), or in order to obtain any required approval of the
sale or of the purchaser by any governmental regulatory authority or official,
and the Pledgor further agrees
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that such compliance shall not result in such sale being considered or deemed
not to have been made in a commercially reasonable manner, nor shall the
Collateral Agent be liable nor accountable to the Pledgor for any discount
allowed by the reason of the fact that such Collateral is sold in compliance
with any such limitation or restriction.
SECTION 6.4 APPLICATION OF PROCEEDS. All cash proceeds received by the
Collateral Agent in respect of any sale of, collection from, or other
realization upon, all or any part of the Collateral may, in the discretion of
the Secured Parties, be held by the Collateral Agent as additional collateral
security for, or then or at any time thereafter be applied in accordance with
the provisions of the Trust Agreement.
SECTION 6.5 INDEMNITY AND EXPENSES. The Pledgor hereby indemnifies and
holds harmless the Collateral Agent from and against any and all claims, losses,
and liabilities arising out of or resulting from this Pledge Agreement
(including enforcement of this Pledge Agreement), except claims, losses, or
liabilities resulting from the Collateral Agent's gross negligence or willful
misconduct. Upon demand, the Pledgor will pay to the Collateral Agent the amount
of any and all reasonable expenses, including the reasonable fees and
disbursements of its counsel and of any experts and agents, which the Collateral
Agent may incur in connection with:
(a) the administration of this Pledge Agreement, the Credit Agreement
or the Indenture;
(b) the custody, preservation, use, or operation of, or the sale of,
collection from, or other realization upon, any of the Collateral;
(c) the exercise or enforcement of any of the rights of the Collateral
Agent hereunder; or
(d) the failure by the Pledgor to perform or observe any of the
provisions hereof.
ARTICLE VII
MISCELLANEOUS PROVISIONS
SECTION 7.1 BENEFIT OF AGREEMENT. This Pledge Agreement shall (unless
otherwise expressly indicated herein) be construed, administered and applied for
the benefit of the Secured Parties. Nothing in this Pledge Agreement shall
amend, supplement or modify, expressly or by implication, the Indenture or alter
adversely any of the rights or benefits of the Trustee or Holders of Public Debt
Securities or alter the duties or obligations of the Company thereunder, all of
which shall be and remain in full force and effect.
SECTION 7.2 AMENDMENTS, ETC. No amendment to or waiver of any provision
of this Pledge Agreement nor consent to any departure by the Pledgor herefrom
shall in any event be effective unless the same shall be in writing and signed
by the parties hereto, and then such waiver or consent shall be effective only
in the specific instance and for the specific purpose for which it is given.
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SECTION 7.3 PROTECTION OF COLLATERAL. The Collateral Agent may from
time to time, at its option, perform any act which the Pledgor agrees hereunder
to perform and which the Pledgor shall fail to perform after being requested in
writing so to perform (it being understood that no such request need be given
during the effectiveness of a Notice of Acceleration) and the Collateral Agent
may from time to time take any other action which the Collateral Agent
reasonably deems necessary for the maintenance, preservation or protection of
any of the Collateral or of its security interest therein.
SECTION 7.4 ADDRESSES FOR NOTICES. All notices and other communications
provided for hereunder shall be in writing (including telegraphic communication)
and, if to the Pledgor, mailed or telegraphed or delivered to it at the address
set forth below its signature hereto, if to the Collateral Agent, mailed or
delivered to it, addressed to it at the address set forth below its signature
hereto or, as to either party, at such other address as shall be designated by
such party in a written notice to each other party complying as to delivery with
the terms of this Section. All such notices and other communications shall, when
mailed or telegraphed, respectively, be effective when deposited in the mails or
delivered to the telegraph company, respectively, addressed as aforesaid.
SECTION 7.5 SECTION CAPTIONS. Section captions used in this Pledge
Agreement are for convenience of reference only, and shall not affect the
construction of this Pledge Agreement.
SECTION 7.6 SEVERABILITY. Wherever possible each provision of this
Pledge Agreement shall be interpreted in such manner as to be effective and
valid under applicable law, but if any provision of this Pledge Agreement shall
be prohibited by or invalid under such law, such provision shall be ineffective
to the extent of such prohibition or invalidity, without invalidating the
remainder of such provision or the remaining provisions of this Pledge
Agreement.
SECTION 7.7 RELEASE OF COLLATERAL. The Collateral Agent shall release
any Collateral from the liens hereunder as permitted by, and pursuant to the
terms of, SECTION 6.9 of the Trust Agreement.
SECTION 7.8 GOVERNING LAW, ENTIRE AGREEMENT, ETC. THIS PLEDGE AGREEMENT
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE
STATE OF OHIO, EXCEPT TO THE EXTENT THAT THE VALIDITY OR PERFECTION OF THE
SECURITY INTEREST HEREUNDER, OR REMEDIES HEREUNDER, IN RESPECT OF ANY PARTICULAR
COLLATERAL ARE GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN THE STATE OF
OHIO. THIS PLEDGE AGREEMENT, THE TRUST AGREEMENT, THE INDENTURE AND THE CREDIT
AGREEMENTS CONSTITUTE THE ENTIRE UNDERSTANDING AMONG THE PARTIES HERETO WITH
RESPECT TO THE SUBJECT MATTER HEREOF AND SUPERSEDE ANY PRIOR AGREEMENTS, WRITTEN
OR ORAL, WITH RESPECT THERETO.
SECTION 7.9 WAIVER OF JURY TRIAL. THE SECURED PARTIES AND THE PLEDGOR
HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHTS THEY MAY HAVE
TO A TRIAL BY JURY IN RESPECT OF
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ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH,
THIS PLEDGE AGREEMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS
(WHETHER VERBAL OR WRITTEN) OR ACTIONS OF THE SECURED PARTIES OR THE PLEDGOR.
THE PLEDGOR ACKNOWLEDGES AND AGREES THAT IT HAS RECEIVED FULL AND SUFFICIENT
CONSIDERATION FOR THIS PROVISION (AND EACH OTHER PROVISION OF EACH OTHER LOAN
DOCUMENT TO WHICH IT IS A PARTY) AND THAT THIS PROVISION IS A MATERIAL
INDUCEMENT FOR THE SECURED PARTIES ENTERING INTO THE CREDIT AGREEMENT AND EACH
SUCH OTHER LOAN DOCUMENT. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN
THIS PLEDGE AGREEMENT, NOTHING IN THIS PLEDGE AGREEMENT SHALL BE DEEMED OR
CONSTRUED TO RESTRICT OR LIMIT ANY OF THE RIGHTS OF THE HOLDERS OF THE PUBLIC
DEBT SECURITIES.
12
IN WITNESS WHEREOF, the parties hereto have caused this Pledge
Agreement to be duly executed and delivered by their respective officers
thereunto duly authorized as of the day and year first above written.
WORTHINGTON INDUSTRIES, INC., as Pledgor
By /s/John T. Baldwin
-------------------------------------------------
Name: John T. Baldwin
Title: Vice President & Chief Financial Officer
Worthington Industries, Inc.
1205 Dearborn Drive
Columbus, Ohio 43085
Attention: General Counsel
WELLS FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION, as Collateral Agent
By /s/Michael G. Slade
-------------------------------------------------
Name: Michael G. Slade
Title: Corporate Trust Officer
Wells Fargo Bank Minnesota, N.A.
Corporate Trust Services
MAC N9303-110
Sixth and Marquette Avenue
Minneapolis, Minnesota 55479
Attention: Michael G. Slade
13
AGREED AND ACCEPTED
this 10th day of May, 2002
PNC BANK, NATIONAL ASSOCIATION,
as Administrative Agent
By: /s/David B. Gookin
---------------------------------------
Name: David B. Gookin
Title: Vice President
J.P. MORGAN TRUST COMPANY,
NATIONAL ASSOCIATION
(SUCCESSOR TO CHASE MANHATTAN
TRUST COMPANY, N.A.),
as Public Debt Trustee
By: /s/Ronald J. Mckenna
---------------------------------------
Name: Ronald J. McKenna
Title: Vice President
14
SCHEDULE A
to
Pledge Agreement
PLEDGED NOTES
PLEDGED NOTE ISSUER NOTE AMOUNT:
- --------------------------------------------------------------------------------
Worthington Steel of Michigan, Inc. (MI) $ 18,992,659
Worthington Steel Company (OH) $203,435,022
Worthington Cylinder Corp. (OH) $ 50,413,352
Worthington Steel Company of Kentucky, LLC (KY) $ 2,520,330
Worthington Acetylene Cylinders, Inc. (AL) $ 4,647,752
Worthington Steel Company of Decatur, LLC (AL) $198,633,794
Gerstenslager Co.(OH) $ 66,665,361
Dietrich Industries, Inc. (PA) $192,435,278
Worthington Steel Company (DE) $ 19,530,498
Worthington Steel Company (NC) $ 7,600,739