EXHIBIT 4(l)
EXECUTION COPY
TRUST AGREEMENT
Dated as of May 10, 2002
among
WORTHINGTON INDUSTRIES, INC.,
▇.▇. ▇▇▇▇▇▇ TRUST COMPANY, NATIONAL ASSOCIATION,
SUCCESSOR TO
CHASE MANHATTAN TRUST COMPANY, N.A.,
as Public Debt Trustee,
▇▇▇▇▇ FARGO BANK MINNESOTA, NATIONAL ASSOCIATION,
as Collateral Agent,
PNC BANK, NATIONAL ASSOCIATION,
as Administrative Agent,
and
▇▇▇▇▇ FARGO BANK MINNESOTA, NATIONAL ASSOCIATION,
as Trustee
TABLE OF CONTENTS
Page
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PREAMBLE ......................................................................................................1
DECLARATION OF TRUST:..........................................................................................1
SECTION 1. DEFINED TERMS.....................................................................................2
1.1 Definitions..................................................................................2
SECTION 2. ACCELERATION OF SECURED OBLIGATIONS...............................................................5
2.1 Notices of Acceleration........................................................................5
2.2 General Authority of the Trustee over the Collateral...........................................6
2.3 Right to Initiate Judicial Proceedings.........................................................6
2.4 Right to Appoint a Receiver....................................................................6
2.5 Exercise of Powers; Instructions of the Administrative Agent and the
Public Debt Trustee............................................................................7
2.6 Remedies Not Exclusive.........................................................................8
2.7 Waiver and Estoppel............................................................................8
2.8 Limitation on Trustee's Duty in Respect of Collateral..........................................9
2.9 Limitation by Law..............................................................................9
2.10 Rights of Secured Parties under Secured Instruments ...........................................9
SECTION 3. COLLATERAL ACCOUNT; DISTRIBUTIONS.................................................................9
3.1 The Collateral Account..........................................................................9
3.2 Control of Collateral Account..................................................................10
3.3 Investment of Funds Deposited in Collateral Account ...........................................10
3.4 Application of Moneys..........................................................................10
3.5 Application of Moneys Distributable to Public Debt Trustee.....................................12
3.6 Trustee's Calculations.........................................................................12
3.7 Pro Rata Sharing...............................................................................12
SECTION 4. AGREEMENTS WITH TRUSTEE............................................................... ...........13
4.1 Delivery of Secured Instruments................................................................13
4.2 Information as to Secured Parties, Administrative Agent and Public Debt
Trustee........................................................................................13
4.3 Compensation and Expenses......................................................................13
4.4 Stamp and Other Similar Taxes .................................................................14
4.5 Filing Fees, Excise Taxes, Etc.................................................................14
4.6 Indemnification................................................................................14
4.7 Trustee's Lien.................................................................................15
4.8 Further Assurances.............................................................................15
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SECTION 5. THE TRUSTEE.......................................................................................15
5.1 Acceptance of Trust............................................................................15
5.2 Exculpatory Provisions.........................................................................15
5.3 Delegation of Duties...........................................................................16
5.4 Reliance by Trustee............................................................................17
5.5 Limitations on Duties of Trustee...............................................................18
5.6 Moneys to be Held in Trust ....................................................................18
5.7 Resignation and Removal of the Trustee ........................................................18
5.8 Status of Successor Trustee....................................................................19
5.9 Merger of the Trustee..........................................................................19
5.10 Co-Trustee; Separate Trustee...................................................................19
5.11 Treatment of Payee or Endorsee by Trustee; Representatives of Secured
Parties........................................................................................21
SECTION 6. MISCELLANEOUS.....................................................................................21
6.1 Notices........................................................................................21
6.2 No Waivers.....................................................................................22
6.3 Amendments, Supplements and Waivers............................................................22
6.4 Headings.......................................................................................22
6.5 Severability...................................................................................22
6.6 Successors and Assigns.........................................................................22
6.7 Governing Law..................................................................................23
6.8 Counterparts...................................................................................23
6.9 Termination....................................................................................23
6.10 Inspection by Regulatory Agencies..............................................................24
6.11 Confidentiality................................................................................24
6.12 Submission to Jurisdiction; Waivers............................................................24
6.13 WAIVERS OF JURY TRIAL .........................................................................25
6.14 Indenture......................................................................................25
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EXHIBITS
A Form of Notice of Acceleration
B Form of Joinder Agreement
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TRUST AGREEMENT, dated as of May 10, 2002, among WORTHINGTON
INDUSTRIES, INC., an Ohio corporation (the "COMPANY"), ▇▇▇▇▇ FARGO BANK
MINNESOTA, NATIONAL ASSOCIATION, ▇.▇. ▇▇▇▇▇▇ TRUST COMPANY, NATIONAL
ASSOCIATION, (SUCCESSOR TO CHASE MANHATTAN TRUST COMPANY, N.A.), PNC BANK,
NATIONAL ASSOCIATION, as Administrative Agent, and ▇▇▇▇▇ FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION, as trustee (the "TRUSTEE").
WITNESSETH:
WHEREAS, pursuant to the Pledge Agreement, dated as of May 10, 2002 (as
amended, restated, supplemented or otherwise modified from time to time, the
"PLEDGE AGREEMENT"), between the Company and ▇▇▇▇▇ Fargo Bank Minnesota,
National Association, as collateral agent for the Secured Parties thereunder (in
such capacity, the "COLLATERAL AGENT"), the Company has granted to the
Collateral Agent, for the benefit of the Secured Parties thereunder, a security
interest in certain of its assets as more fully described in the Pledge
Agreement;
WHEREAS, the Trustee has agreed to hold the Pledge Agreement and the
Collateral provided for therein as security for the Secured Obligations for the
benefit of the Secured Parties on an equal and ratable basis;
NOW, THEREFORE, the parties hereto agree as follows:
DECLARATION OF TRUST:
In order to secure the payment of the Secured Obligations (such term
and certain other capitalized terms used hereinafter being defined in subsection
1.1) and in consideration of the premises and the mutual agreements set forth
herein, the Trustee does hereby declare that it holds and will hold as trustee
in trust under this Trust Agreement all of its right, title and interest in, to
and under the Pledge Agreement and the Collateral granted to the Trustee
thereunder whether now existing or hereafter arising (and the Company does
hereby consent thereto).
TO HAVE AND TO HOLD the Pledge Agreement and the entire Collateral (the
right, title and interest of the Trustee in the Pledge Agreement and the
Collateral being hereinafter referred to as the "TRUST ESTATE") unto the Trustee
and its successors in trust under this Trust Agreement and its assigns forever.
IN TRUST NEVERTHELESS, under and subject to the conditions herein set
forth and for the benefit of the Secured Parties, and for the enforcement of the
payment of all Secured Obligations, and as security for the payment and
performance of and compliance with the covenants and conditions of this Trust
Agreement, each of the Secured Instruments and the Pledge Agreement.
PROVIDED, HOWEVER, that these presents are upon the condition that if
the Company, its successors or assigns, shall satisfy the conditions set forth
in subsection 6.9(a), then this Trust Agreement, and the estates and rights
hereby assigned, shall cease, determine and be void; otherwise they shall remain
and be in full force and effect.
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IT IS HEREBY FURTHER COVENANTED AND DECLARED, that the Trust Estate is
to be held and applied by the Trustee, subject to the further covenants,
conditions and trusts hereinafter set forth.
SECTION 1.
DEFINED TERMS
1.1 Definitions. (a) Unless otherwise defined herein, capitalized terms
used herein which are defined in the Credit Agreements shall have the meanings
given to them in the Credit Agreements.
(b) The following terms shall have the respective meanings set forth
below:
"ADDITIONAL INDEBTEDNESS AGENT" shall mean any Person acting in a
representative capacity for the Holders of Additional Senior Indebtedness.
"ADDITIONAL SENIOR INDEBTEDNESS OBLIGATIONS" shall mean the unpaid
principal of, and premium, if any, and interest on, any Additional Senior
Indebtedness and all other fees, expenses, indemnification obligations and other
amounts of whatever nature now or hereafter payable by the Borrower under any
Secured Instrument evidencing the Additional Senior Indebtedness.
"BUSINESS DAY" shall have the meaning assigned thereto in the Credit
Agreements.
"ADMINISTRATIVE AGENT" shall mean, collectively, (i) PNC Bank, National
Association, in its capacity as administrative agent under the 364-Day Revolving
Credit Agreement and (ii) PNC Bank, National Association, in its capacity as
administrative agent under the Five Year Revolving Credit Agreement, and in
either case any successor administrative agent appointed thereunder.
"CASH EQUIVALENTS" shall have the meaning assigned thereto in the
Credit Agreements.
"COLLATERAL" shall have the meaning assigned thereto in the Pledge
Agreement.
"COLLATERAL ACCOUNT" shall have the meaning assigned in subsection
3.1.
"CREDIT AGREEMENTS" shall mean, collectively, the 364-Day Revolving
Credit Agreement and the Five Year Revolving Credit Agreement.
"CREDIT AGREEMENT OBLIGATIONS" shall mean, collectively, with respect
to each Credit Agreement, as applicable, the Obligations (as defined in the
applicable Credit Agreement) outstanding under each Credit Agreement, whether
direct or indirect, absolute or contingent, due or to become due, or now
existing or hereafter incurred, which may arise under, out of, or in connection
with, the Credit Agreements, this Trust Agreement, the Pledge Agreement, any
Note (as defined in the applicable Credit Agreement), any Letter of Credit (as
defined in the applicable Credit Agreement) or any other Loan Document (as
defined in the applicable Credit Agreement) or any other document made,
delivered or given in connection therewith.
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"DISTRIBUTION DATE" shall mean each date fixed by the Trustee pursuant
to the terms of this Trust Agreement for a distribution to the Secured Parties
of funds held in the Collateral Account.
"EVENT OF DEFAULT" has the meaning assigned thereto in each Credit
Agreement or in the Indenture.
"FIRST SUPPLEMENTAL INDENTURE" shall mean the First Supplemental
Indenture, dated as of February 27, 1997, between the Company and the Public
Debt Trustee, as amended, restated, supplemented or otherwise modified from time
to time.
"FIVE YEAR REVOLVING CREDIT AGREEMENT" shall mean the Five Year
Revolving Credit Agreement, dated as of May 10, 2002, among the Company, the
Lenders and PNC Bank, National Association, in its capacities as Issuing Lender,
Swingline Lender and Administrative Agent, as the same may be amended, amended
and restated, supplemented or otherwise modified from time to time.
"FOURTH SUPPLEMENTAL INDENTURE" shall mean the Fourth Supplemental
Indenture, dated as of May 10, 2002, between the Company and the Public Debt
Trustee, as amended, restated, supplemented or otherwise modified from time to
time.
"GOVERNMENTAL AUTHORITY" shall have the meaning assigned thereto in the
Credit Agreements.
"HOLDER REPRESENTATIVE" shall mean (i) in respect of the Public Debt
Obligations, the relevant Public Debt Trustee, (ii) in respect of the Credit
Agreement Obligations, the Administrative Agent and (iii) in respect of the
Additional Senior Indebtedness, the Additional Indebtedness Agent.
"HOLDERS" shall mean the holders of the Public Debt Securities
(including the relevant Public Debt Trustee acting on behalf of such holders).
"INDENTURE" shall mean, collectively, the Indenture, dated as of May
15, 1996, between the Company and the Public Debt Trustee, as amended by the
First Supplemental Indenture, the Second Supplemental Indenture, the Third
Supplemental Indenture and the Fourth Supplemental Indenture, as the same shall
be further amended, modified or supplemented from time to time.
"LENDER" shall mean any Lender referred to in the Credit Agreements.
"JOINDER AGREEMENT" means a Joinder Agreement among the Company and a
Holder of Additional Senior Indebtedness, substantially in the form of EXHIBIT B
hereto.
"NOTICE OF ACCELERATION" shall mean a notice delivered to the Trustee
by (i) the Administrative Agent with respect to the Credit Agreement
Obligations, stating that (a) any Credit Agreement Obligations have not been
paid in full at the stated final maturity thereof and any applicable grace
period has expired or (b) an Event of Default (as defined in the applicable
Credit Agreement) has occurred under the provisions of the applicable Credit
Agreement or in any Loan Documents (as defined in such applicable Credit
Agreement) related thereto and, as a
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result thereof, all Credit Agreement Obligations outstanding under such Secured
Instrument have become immediately due and payable and have not been paid, or
(ii) the Public Debt Trustee with respect to the Public Debt Obligations,
stating that (a) any Public Debt Obligations have not been paid in full at the
stated final maturity thereof and any applicable grace period has expired or (b)
an Event of Default (as defined in the Indenture) has occurred under the
provisions of the Indenture and, as a result thereof, all Public Debt
Obligations outstanding under such Secured Instrument have become or been
declared to be immediately due and payable and have not been paid. Each Notice
of Acceleration shall be in substantially the form of Exhibit A to this Trust
Agreement.
"OPINION OF COUNSEL" shall mean an opinion in writing signed by legal
counsel satisfactory to the Trustee, who may be counsel regularly retained by
the Trustee.
"PROCEEDS" shall mean all "proceeds" as such term is defined in Section
9-102(64) of the Uniform Commercial Code in effect in the State of Ohio on the
date hereof.
"PUBLIC DEBT OBLIGATIONS" shall mean the unpaid principal of, and
premium, if any, and interest on, the Public Debt Securities (including, without
limitation, interest accruing at the then applicable rate provided in the
instruments governing the Public Debt Securities after the maturity of the
Public Debt Securities and interest accruing at the then applicable rate
provided in such instruments after the filing of any petition in bankruptcy, or
the commencement of any insolvency, reorganization or like proceeding, relating
to the Company, whether or not a claim for post- filing or post-petition
interest is allowed in such proceeding), together with all indebtedness,
liabilities and obligations, including but not limited to all fees, expenses,
indemnification obligations and all other amounts of whatever nature now or
hereafter payable by the Borrower, whether direct or indirect, absolute or
contingent, due or to become due, or now existing or hereafter incurred, whic h
may arise under, out of or in connection with the Indenture or any Public Debt
Securities or any other document made, delivered or given in connection
therewith.
"PUBLIC DEBT SECURITIES" shall mean, collectively, Debt Securities as
defined in the Indenture.
"PUBLIC DEBT TRUSTEE" shall mean ▇.▇. ▇▇▇▇▇▇ Trust Company, National
Association (successor to Chase Manhattan Trust Company, N.A.), as successor to
PNC Bank, Ohio, National Association, as trustee under the Indenture, and any
successor trustee appointed under the Indenture.
"SECOND SUPPLEMENTAL INDENTURE" shall mean the Second Supplemental
Indenture, dated as of December 12, 1997, between the Company and the Public
Debt Trustee, as amended, restated, supplemented or otherwise modified from time
to time.
"SECURED INSTRUMENTS" shall mean at any time (i) the Indenture and the
Public Debt Securities, (ii) the Credit Agreements and the Notes and (iii) any
credit agreement, note or similar instrument evidencing Additional Senior
Indebtedness.
"SECURED OBLIGATIONS" shall mean, collectively (i) the Public Debt
Obligations, (ii) the Credit Agreement Obligations, (iii) all sums payable by
the Company under this Trust
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Agreement or the 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" shall mean, 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 and the Additional Indebtedness Agent.
"364-DAY REVOLVING CREDIT AGREEMENT" shall mean the 364-Day Revolving
Credit Agreement, dated as of May 10, 2002, among the Borrower, the Lenders and
PNC Bank, National Association, in its capacity as Administrative Agent, as the
same may be amended, amended and restated, supplemented or otherwise modified
from time to time.
"THIRD SUPPLEMENTAL INDENTURE" shall mean the Third Supplemental
Indenture, dated as of October 15, 1998, between the Company and the Public Debt
Trustee, as amended, restated, supplemented or otherwise modified from time to
time.
"TRUST AGREEMENT" shall mean this Trust Agreement as the same may from
time to time be amended, modified, supplemented, extended or renewed.
"TRUST EFFECTIVE DATE" shall mean May 10, 2002.
"TRUST ESTATE" shall have the meaning assigned in this Declaration of
Trust in this Trust Agreement.
"TRUSTEE" shall mean ▇▇▇▇▇ Fargo Bank Minnesota, National Association,
in its capacity as trustee under this Trust Agreement, and any successor trustee
appointed thereunder.
"TRUSTEE FEES" shall mean all fees, costs and expenses of the Trustee
of the types described in subsections 4.3, 4.4, 4.5 and 4.6.
(c) The words "hereof", "herein" and "hereunder" and words of similar
import when used in this Trust Agreement shall refer to this Trust Agreement as
a whole and not to any particular provision of this Trust Agreement, and Section
and subsection references are to this Trust Agreement unless otherwise
specified.
SECTION 2.
ACCELERATION OF SECURED OBLIGATIONS
2.1 NOTICES OF ACCELERATION. (a) Upon receipt by the Trustee of a
Notice of Acceleration, the Trustee shall immediately notify the Company, the
Administrative Agent and the Public Debt Trustee and each other Secured Party,
if any, of the receipt and contents thereof. So long as such Notice of
Acceleration is in effect, the Trustee shall exercise the rights and remedies
provided in this Trust Agreement and in the Pledge Agreement subject to the
joint direction of the Administrative Agent and the Public Debt Trustee as
provided herein. Except as otherwise provided in the last sentence of subsection
2.2, the Trustee is not empowered to exercise any remedy hereunder or thereunder
unless a Notice of Acceleration is in effect.
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(b) A Notice of Acceleration delivered by the Administrative Agent or
the Public Debt Trustee shall become effective upon receipt thereof by the
Trustee. A Notice of Acceleration, once effective, shall remain in effect unless
and until it is cancelled as provided in subsection 2.1(c).
(c) The Administrative Agent or the Public Debt Trustee, as the case
may be, shall be entitled to cancel its own Notice of Acceleration by delivering
a written notice of cancellation to the Trustee (i) before the Trustee takes any
action to exercise any remedy with respect to the Collateral or (ii) thereafter,
if the Trustee believes that all actions it has taken to exercise any remedy or
remedies with respect to the Collateral can be reversed without undue
difficulty; PROVIDED that no Notice of Acceleration shall be cancelled more than
60 days after it is received by the Trustee. The Trustee shall immediately
notify the Company, the Administrative Agent, the Public Debt Trustee and each
other Secured Party, if any, in writing as to the receipt and contents of any
such notice of cancellation.
2.2 GENERAL AUTHORITY OF THE TRUSTEE OVER THE COLLATERAL. The Company
hereby irrevocably constitutes and appoints the Trustee and any officer or agent
thereof, with full power of substitution, as its true and lawful attorney-
in-fact with full power and authority in its or his own name, from time to time
in the Trustee's discretion, subject to subsections 2.1 and 2.5(b), so long as
any Notice of Acceleration is in effect, to take any and all appropriate action
and to execute any and all documents and instruments which may be necessary or
desirable to carry out the terms of this Trust Agreement and the Pledge
Agreement and accomplish the purposes hereof and thereof and, without limiting
the generality of the foregoing, the Company hereby acknowledges that the
Trustee shall have all powers and remedies set forth in the Pledge Agreement,
subject to subsection 2.1. Notwithstanding the foregoing, so long as no Notice
of Acceleration is in effect, the Trustee shall take such actions and exercise
such remedies as are permitted by the Pledge Agreement in accordance with the
instructions of the Administrative Agent or the Public Debt Trustee delivered to
the Trustee. In the event that, pursuant to the terms of the Pledge Agreement,
the Credit Agreements or the Indenture, the Administrative Agent or the Public
Debt Trustee shall only be entitled to direct the Trustee upon a Notice of
Acceleration becoming effective, the Administrative Agent or the Public Debt
Trustee, as the case may be, shall certify in such direction that a Notice of
Acceleration is in effect.
2.3 RIGHT TO INITIATE JUDICIAL PROCEEDINGS. If a Notice of Acceleration
is in effect, the Trustee, subject to the provisions of subsection 2.5(b) and
Section 5 and upon receipt of a joint written direction from the Administrative
Agent and the Public Debt Trustee, (i) shall have the right and power to
institute and maintain such suits and proceedings as it may deem appropriate to
protect and enforce the rights vested in it by this Trust Agreement and the
Pledge Agreement and (ii) may proceed by suit or suits at law or in equity to
enforce such rights and to foreclose upon the Collateral and to sell all or,
from time to time, any of the Collateral under the judgment or decree of a court
of competent jurisdiction, in each case for the equal and ratable benefit of the
Secured Parties.
2.4 RIGHT TO APPOINT A RECEIVER. If a Notice of Acceleration is in
effect, upon the filing of a ▇▇▇▇ in equity or other commencement of judicial
proceedings to enforce the rights of the Trustee under this Trust Agreement or
the Pledge Agreement, the Trustee shall, to the extent permitted by law, with
notice to the Company, the Administrative Agent, the Public Debt
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Trustee and each other Secured Party, if any, but without notice to any party
claiming through the Company, without regard to the solvency or insolvency at
the time of any Person then liable for the payment of any of the Secured
Obligations, without regard to the then value of the Trust Estate, and without
requiring any bond from any complainant in such proceedings, be entitled as a
matter of right to the appointment of a receiver or receivers of the Trust
Estate, or any part thereof, and of the rents, issues, tolls, profits,
royalties, revenues and other income thereof, pending such proceedings, with
such powers as the court making such appointment shall confer, and to the entry
of an order directing that the rents, issues, tolls, profits, royalties,
revenues and other income of the property constituting the whole or any part of
the Trust Estate be segregated, sequestered and impounded for the benefit of the
Trustee and the Secured Parties, and the Company irrevocably consents to the
appointments of such receiver or receivers and to the entry of such order;
PROVIDED that, notwithstanding the appointment of any receiver, the Trustee
shall be entitled to retain possession and control of the Collateral, including,
without limitation, all cash and Cash Equivalents held by or deposited with it
pursuant to this Trust Agreement or the Pledge Agreement; PROVIDED FURTHER that,
if the Notice of Acceleration in effect when any such receiver or receivers is
or are, as the case may be, appointed pursuant to this subsection 2.4 is
cancelled in accordance with subsection 2.1(c), the Trustee shall promptly after
any such cancellation remove any such receiver or receivers.
2.5 EXERCISE OF POWERS; INSTRUCTIONS OF THE ADMINISTRATIVE AGENT AND
THE PUBLIC DEBT TRUSTEE. (a) All of the powers, remedies and rights of the
Trustee as set forth in this Trust Agreement may be exercised by the Trustee in
respect of the Pledge Agreement as though set forth in full therein and all of
the powers, remedies and rights of the Secured Parties as set forth in the
Pledge Agreement may be exercised from time to time as herein and therein
provided.
(b) While a Notice of Acceleration is in effect, the Administrative
Agent and the Public Debt Trustee shall have the right, by one or more
instruments in writing executed and delivered jointly by the Administrative
Agent and the Public Debt Trustee to the Trustee, to direct the time, method and
place of conducting any proceeding for any right or remedy available to the
Trustee, or of exercising any trust or power conferred on the Trustee, or for
the appointment of a receiver, or to direct the taking or the refraining from
taking of any action authorized by this Trust Agreement or the Pledge Agreement;
PROVIDED THAT (i) such direction shall not conflict with any provision of law or
of this Trust Agreement or of the Pledge Agreement and (ii) the Trustee shall be
adequately secured and indemnified as provided in subsection 5.4(d). Nothing in
this subsection 2.5(b) shall impair the right of the Trustee in its discretion
to take any action which it deems proper and which is not inconsistent with such
joint direction by the Administrative Agent and the Public Debt Trustee. In the
absence of such direction, the Trustee shall have no duty to take or refrain
from taking any action unless explicitly required herein.
(c) If, within 60 days after the Trustee receives a Notice of
Acceleration which has not been cancelled, the Trustee shall not have received
joint written directions from the Administrative Agent and the Public Debt
Trustee pursuant to subsection 2.5(b) for the exercise of rights or remedies by
the Trustee, the Trustee shall, until the Trustee receives joint written
directions from the Administrative Agent and the Public Debt Trustee with
respect to the exercise of the remedies set forth in the Pledge Agreement, (i)
notify each of the Pledged Note Issuers (as defined in the Pledge Agreement) to
direct payment of interest, principal and all other
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amounts payable in respect of any Collateral directly to the Trustee, (ii)
deposit any such amounts received in respect of the Collateral in the Collateral
Account (as defined below) pursuant to Section 3.1 of this Trust Agreement and
(iii) distribute any such amounts pursuant to Section 3.4 of this Trust
Agreement.
2.6 REMEDIES NOT EXCLUSIVE. (a) No remedy conferred upon or reserved to
the Trustee herein or in the Pledge Agreement is intended to be exclusive of any
other remedy or remedies, but every such remedy shall be cumulative and shall be
in addition to every other remedy conferred herein or in the Pledge Agreement or
now or hereafter existing at law or in equity or by statute.
(b) No delay or omission by the Trustee to exercise any right, remedy
or power hereunder or under the Pledge Agreement shall impair any such right,
remedy or power or shall be construed to be a waiver thereof, and every right,
power and remedy given by this Trust Agreement or the Pledge Agreement to the
Trustee may be exercised from time to time and as often as may be deemed
expedient by the Trustee.
(c) If the Trustee shall have proceeded to enforce any right, remedy or
power under this Trust Agreement or the Pledge Agreement and the proceeding for
the enforcement thereof shall have been discontinued or abandoned for any reason
or shall have been determined adversely to the Trustee, then the Company, the
Trustee and the Secured Parties shall, subject to any determination in such
proceeding, severally and respectively be restored to their former positions and
rights hereunder or thereunder with respect to the Trust Estate and in all other
respects, and thereafter all rights, remedies and powers of the Trustee shall
continue as though no such proceeding had been taken.
(d) All rights of action and of asserting claims upon or under this
Trust Agreement and the Pledge Agreement may be enforced by the Trustee without
the possession of any Secured Instrument or instrument evidencing any Secured
Obligation or the production thereof at any trial or other proceeding relative
thereto, and any suit or proceeding instituted by the Trustee shall be, subject
to subsections 5.5(c) and 5.10(b)(ii), brought in its name as Trustee and any
recovery of judgment shall be held as part of the Trust Estate.
2.7 WAIVER AND ESTOPPEL. (a) The Company agrees, to the extent it may
lawfully do so, that it will not at any time in any manner whatsoever claim, or
take the benefit or advantage of, any appraisement, valuation, stay, extension,
moratorium, turnover or redemption law, or any law permitting it to direct the
order in which the Collateral shall be sold, now or at any time hereafter in
force, which may delay, prevent or otherwise affect the performance or
enforcement of this Trust Agreement or the Pledge Agreement and hereby waives
all benefit or advantage of all such laws and covenants that it will not hinder,
delay or impede the execution of any power granted to the Trustee in this Trust
Agreement or the Pledge Agreement but will suffer and permit the execution of
every such power as though no such law were in force; PROVIDED that nothing
contained in this subsection 2.7(a) shall be construed as a waiver of any rights
of the Company under any applicable federal bankruptcy law or state insolvency
law.
(b) The Company, to the extent it may lawfully do so, on behalf of
itself and all who may claim through or under it, including without limitation
any and all subsequent creditors
8
(other than any Secured Party), vendees, assignees and lienors, waives and
releases all rights to demand or to have any marshalling of the Collateral upon
any sale, whether made under any power of sale granted herein or in the Pledge
Agreement or pursuant to judicial proceedings or upon any foreclosure or any
enforcement of this Trust Agreement or the Pledge Agreement and consents and
agrees that all the Collateral may at any such sale be offered and sold as an
entirety.
(c) The Company waives, to the extent permitted by applicable law,
presentment, demand, protest and any notice of any kind (except notices
explicitly required hereunder or under the Pledge Agreement) in connection with
this Trust Agreement and the Pledge Agreement and any action taken by the
Trustee with respect to the Collateral.
2.8 LIMITATION ON TRUSTEE'S DUTY IN RESPECT OF COLLATERAL. Beyond its
duties as to the custody thereof expressly provided herein or in the Pledge
Agreement and to account to the Secured Parties and the Company for moneys and
other property received by it hereunder or under the Pledge Agreement, the
Trustee shall not have any duty to the Company or to the Secured Parties as to
any Collateral in its possession or control or in the possession or control of
any of its agents or nominees, or any income thereon or as to the preservation
of rights against prior parties or any other rights pertaining thereto.
2.9 LIMITATION BY LAW. All rights, remedies and powers provided in this
Trust Agreement or the Pledge Agreement may be exercised only to the extent that
the exercise thereof does not violate any applicable provision of law, and all
the provisions hereof are intended to be subject to all applicable mandatory
provisions of law which may be controlling and to be limited to the extent
necessary so that they will not render this Trust Agreement invalid,
unenforceable in whole or in part or not entitled to be recorded, registered or
filed under the provisions of any applicable law.
2.10 RIGHTS OF SECURED PARTIES UNDER SECURED INSTRUMENTS.
Notwithstanding any other provision of this Trust Agreement or the Pledge
Agreement, the right of each Secured Party to receive payment of the Secured
Obligations held by such Secured Party when due (whether at the stated maturity
thereof, by acceleration or otherwise) as expressed in the related Secured
Instrument or other instrument evidencing or agreement governing a Secured
Obligation or to institute suit for the enforcement of such payment on or after
such due date, and the obligation of the Company to pay such Secured Obligation
when due, shall not be impaired or affected without the consent of such Secured
Party given in the manner prescribed by the Secured Instrument under which such
Secured Obligation is outstanding.
SECTION 3.
COLLATERAL ACCOUNT; DISTRIBUTIONS
3.1 THE COLLATERAL ACCOUNT. On the Trust Effective Date there was
established and, at all times thereafter until the trusts created by this Trust
Agreement shall have terminated, there shall be maintained with the Trustee at
the office of the Trustee's corporate trust division an account which is
entitled the "Worthington Industries Collateral Account" (the "COLLATERAL
ACCOUNT"). All moneys which are required by this Trust Agreement or the Pledge
Agreement to be delivered to the Trustee while a Notice of Acceleration is in
effect or which are received by the Trustee or any agent or nominee of the
Trustee in respect of the Collateral, whether in
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connection with the exercise of the remedies provided in this Trust Agreement or
the Pledge Agreement or otherwise, while a Notice of Acceleration is in effect
shall be deposited in the Collateral Account and held by the Trustee as part of
the Trust Estate and applied in accordance with the terms of this Trust
Agreement. Upon the cancellation of all Notices of Acceleration pursuant to
subsection 2.1(c), the Trustee shall (subject to subsection 3.4(a)) cause all
funds on deposit in the Collateral Account to be paid over to the Company.
3.2 CONTROL OF COLLATERAL ACCOUNT. All right, title and interest in and
to the Collateral Account shall vest in the Trustee for the benefit of the
Secured Parties, and funds on deposit in the Collateral Account shall constitute
part of the Trust Estate. The Collateral Account shall be subject to the
exclusive dominion and control of the Trustee.
3.3 INVESTMENT OF FUNDS DEPOSITED IN COLLATERAL ACCOUNT. The Trustee
shall invest and reinvest moneys on deposit in the Collateral Account at any
time in Cash Equivalents. All such investments and the interest and income
received thereon and the net proceeds realized on the sale or redemption thereof
shall be held in the Collateral Account as part of the Trust Estate. The Trustee
shall not be responsible for any diminution in funds resulting from such
investments or any liquidation prior to maturity. In the absence of such
directions, the Trustee shall have no obligation to invest or reinvest moneys.
3.4 APPLICATION OF MONEYS. (a) All moneys held by the Trustee in the
Collateral Account or received by the Trustee with respect to the Collateral
while a Notice of Acceleration is in effect shall, to the extent available for
distribution (it being understood that the Trustee may liquidate investments
prior to maturity in order to make a distribution pursuant to this subsection
3.4), be distributed (subject to the provisions of subsections 3.5 and 3.6) by
the Trustee on each Distribution Date in the following order of priority (with
such distributions being made by the Trustee to the respective Holder
Representatives, if applicable, for the Secured Parties entitled thereto as
provided in subsection 3.4(c), and each such Holder Representative shall be
responsible for insuring that amounts distributed to it are distributed to its
Secured Parties in the order of priority set forth below):
FIRST: to the Trustee for any unpaid Trustee Fees and then to any
Secured Party, which has theretofore advanced or paid any Trustee Fees
constituting administrative expenses allowable under Section 503(b) of
the Bankruptcy Code, an amount equal to the amount thereof so advanced
or paid by such Secured Party and for which such Secured Party has not
been reimbursed prior to such Distribution Date, and, if such moneys
shall be insufficient to pay such amounts in full, then ratably
(without priority of any one over any other) to such Secured Parties
in proportion to the amounts of such Trustee Fees advanced by the
respective Secured Parties and remaining unpaid on such Distribution
Date;
SECOND: to any Secured Party which has theretofore advanced or paid
any Trustee Fees other than such administrative expenses, an amount
equal to the amount thereof so advanced or paid by such Secured Party
and for which such Secured Party has not been reimbursed prior to such
Distribution Date, and, if such moneys shall be insufficient to pay
such amounts in full, then ratably (without priority of any one over
any other) to such Secured Parties in proportion to the
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amounts of such Trustee Fees advanced by the respective Secured
Parties and remaining unpaid on such Distribution Date;
THIRD: to the Secured Parties in an amount equal to the unpaid
principal (or, in the case of Public Debt Obligations that are
Original Issue Discount Securities (as defined in the Indenture), such
portion of the principal amount of such Public Debt Obligations as may
be specified by the Public Debt Trustee) and unpaid interest on such
Secured Obligations then outstanding whether or not then due and
payable, and, if such moneys shall be insufficient to pay such amounts
in full, then ratably (without priority of any one over any other) to
the Secured Parties in proportion to the unpaid amounts thereof on
such Distribution Date; provided, that if any amounts distributed
pursuant to this clause in respect of Credit Agreement Obligations
shall be insufficient to pay all principal and interest owing in
respect of the Credit Agreement Obligations, such amount shall be
distributed to the Administrative Agent with respect to each Credit
Agreement ratably (without priority of any one over any other) in
proportion to the unpaid amounts of Credit Agreement Obligations;
FOURTH: to the Secured Parties, amounts equal to all other sums which
constitute Secured Obligations, including without limitation the costs
and expenses of the Secured Parties and their representatives which
are due and payable under the relevant Secured Instruments and which
constitute Secured Obligations as of such Distribution Date, and, if
such moneys shall be insufficient to pay such amounts in full, then
ratably to the Secured Parties in proportion to the unpaid amounts
thereof on such Distribution Date; and
FIFTH: any surplus then remaining shall be paid to the Company or its
successors or assigns or to whomsoever may be lawfully entitled to
receive the same or as a court of competent jurisdiction may direct.
(b) The term "unpaid" as used in clause THIRD of subsections 3.4(a)
refers:
(i) in the absence of a bankruptcy proceeding with respect to the
Company, to all amounts of Public Debt Obligations, Credit Agreement
Obligations or Additional Senior Indebtedness Obligations, as the case
may be, outstanding as of a Distribution Date (and for the purpose of
this provision, the amount of the Credit Agreement Obligations then
outstanding shall include the undrawn face amount of, and any
unreimbursed drawings under, any Letter of Credit issued under the
Credit Agreements), and
(ii) during the pendency of a bankruptcy proceeding with respect to the
Company, to amounts allowed by the bankruptcy court in respect of
Public Debt Obligations or Credit Agreement Obligations, as the case
may be, as a basis for distribution (including estimated amounts, if
any, allowed in respect of contingent claims), to the extent that prior
distributions (whether actually distributed or set aside pursuant to
subsection 3.5) have not been made in respect thereof.
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(c) The Trustee shall make all payments and distributions under this
subsection 3.4: (i) on account of Credit Agreement Obligations to the
Administrative Agent, pursuant to directions of the Administrative Agent, for
re-distribution in accordance with the provisions of the Credit Agreement; (ii)
on account of Public Debt Obligations (subject to subsection 3.5) to the Public
Debt Trustee, pursuant to directions of the Public Debt Trustee, for
redistribution in accordance with the provisions of the Indenture; and (iii) on
account of Additional Senior Indebtedness Obligations, pursuant to directions of
the Additional Indebtedness Agent (or Holders of Additional Senior Indebtedness
if no Additional Indebtedness Agent exists), for redistribution in accordance
with the provisions of the Secured Instruments evidencing the Additional Senior
Indebtedness.
3.5 APPLICATION OF MONEYS DISTRIBUTABLE TO PUBLIC DEBT TRUSTEE. If at
any time any moneys collected or received by the Trustee pursuant to this Trust
Agreement are distributable pursuant to subsection 3.4 to the Public Debt
Trustee, and if the Public Debt Trustee shall notify the Trustee in writing that
no provision is made under the Indenture for the application by such Public Debt
Trustee of such moneys (whether because the Secured Obligations issued under the
Public Debt Indenture have not become due and payable or otherwise) and that the
Indenture does not effectively provide for the receipt and the holding by the
Public Debt Trustee of such moneys pending the application thereof, then the
Trustee, after receipt of such notification, shall, at the direction of such
Public Debt Trustee, invest such amounts in Cash Equivalents maturing within 90
days after they are acquired by the Trustee or, in the absence of such
direction, hold such moneys uninvested and shall hold all such amounts so
distributable and all such investments and the net proceeds thereof in trust
solely for such Public Debt Trustee (in its capacity as trustee) and for no
other purpose until such time as such Public Debt Trustee shall request in
writing the delivery thereof by the Trustee for application pursuant to such
Indenture.
3.6 TRUSTEE'S CALCULATIONS. In making the determinations and
allocations required by subsection 3.4, the Trustee may conclusively rely upon
information supplied by the Public Debt Trustee as to the amounts of unpaid
principal and interest and other amounts outstanding with respect to the Public
Debt Obligations in respect of the Indenture under which such Public Debt
Trustee is trustee, information supplied by the Administrative Agent as to the
amounts of unpaid principal and interest and other amounts outstanding with
respect to the Credit Agreement Obligations, information supplied by the
Additional Indebtedness Agent as to the amounts of unpaid principal and interest
and other amounts outstanding with respect to the Additional Senior Indebtedness
Obligations, and the Trustee shall have no liability to any of the Secured
Parties for actions taken in reliance on such information; PROVIDED that nothing
in this sentence shall prevent the Company from contesting any amounts claimed
by any Secured Party in any information so supplied. All distributions made by
the Trustee pursuant to subsection 3.4 shall be (subject to any decree of any
court of competent jurisdiction) final (absent manifest error), and the Trustee
shall have no duty to inquire as to the application by the Administrative Agent,
or the Public Debt Trustee of any amounts distributed to them.
3.7 PRO RATA SHARING. If, through the operation of any bankruptcy,
reorganization, insolvency or other laws or otherwise, the Trustee's security
interest hereunder and under the Pledge Agreement is enforced with respect to
some, but not all, of the Secured Obligations then outstanding, the Trustee
shall nonetheless apply the proceeds of the Collateral for the benefit of the
holders of all Secured Obligations in the proportions and subject to the
priorities specified
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herein. To the extent that the Trustee distributes Proceeds collected with
respect to Secured Obligations held by one holder to or on behalf of Secured
Obligations held by a second holder, the first holder shall be deemed to have
purchased a participation in the Secured Obligations held by the second holder,
or shall be subrogated to the rights of the second holder to receive any
subsequent payments and distributions made with respect to the portion thereof
paid or to be paid by the application of such Proceeds.
SECTION 4.
AGREEMENTS WITH TRUSTEE
4.1 DELIVERY OF SECURED INSTRUMENTS. On the Trust Effective Date, the
Company delivered to the Trustee true and complete copies of (i) the Public
Indentures and all amendments thereto, (ii) each of the Credit Agreements, (iii)
the Pledge Agreement and (iv) the other Secured Instruments, in each case as in
effect on the Trust Effective Date. The Company shall deliver to the Trustee,
promptly upon the execution thereof, a true and complete copy of all amendments,
modifications or supplements to any Secured Instrument entered into after the
Trust Effective Date.
4.2 INFORMATION AS TO SECURED PARTIES, ADMINISTRATIVE AGENT AND PUBLIC
DEBT TRUSTEE. The Company delivered to the Trustee, on the Trust Effective Date,
and shall deliver to the Trustee on each anniversary of the Trust Effective
Date, and from time to time upon request of the Trustee, a list setting forth as
of a date not more than 30 days prior to the date of such delivery, (i) the
aggregate unpaid principal amount of Credit Agreement Obligations outstanding
and the name and address of the Administrative Agent, (ii) the aggregate unpaid
principal amount of Public Debt Obligations outstanding and the name and address
of each Public Debt Trustee and (iii) the aggregate unpaid amount of Additional
Senior Indebtedness Obligations outstanding and the name and address of the
Additional Indebtedness Agent, if any. In addition, the Company will promptly
notify the Trustee of each change in the identity of the Administrative Agent,
the Public Debt Trustee or any Additional Indebtedness Agent. On or prior to the
Trust Effective Date, the Company will request each of the Administrative Agent,
and the Public Debt Trustee to deliver to the Trustee the names of the officers
of each thereof authorized to give directions hereunder on behalf of such
parties. The Company will request that each of the Administrative Agent, the Pub
lic Debt Trustee and any Additional Indebtedness Agent notify the Trustee of any
changes of the officers of each thereof authorized to give directions hereunder
on behalf of such parties prior to the date of any such changes. If the Trustee
does not receive the names of the officers of the Administrative Agent, the
Public Debt Trustee or any Additional Indebtedness Agent authorized to give
directions hereunder on behalf of such parties, the Trustee may rely on any
person purporting to be authorized to give directions hereunder on behalf of
such parties. If the Trustee is not informed of changes of the officers of the
Administrative Agent, the Public Debt Trustee or any Additional Indebtedness
Agent authorized to give directions hereunder on behalf of such parties, the
Trustee may rely on the information previously provided to the Trustee.
4.3 COMPENSATION AND EXPENSES. The Company agrees to pay to the
Trustee, from time to time upon demand, (i) reasonable compensation (which shall
not be limited by any provision of law in regard to compensation of fiduciaries
or of a trustee of an express trust) for its services hereunder and under the
Pledge Agreement and for administering the Trust Estate
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and (ii) all of the fees, costs and expenses of the Trustee (including, without
limitation, the reasonable fees and disbursements of its counsel, advisors and
agents) (A) arising in connection with the preparation, execution, delivery,
modification, and termination of this Trust Agreement and the Pledge Agreement
or the enforcement of any of the provisions hereof or thereof, (B) incurred or
required to be advanced in connection with the administration of the Trust
Estate, the sale or other disposition of Collateral pursuant to the Pledge
Agreement and the preservation, protection or defense of the Trustee's rights
under this Trust Agreement and the Pledge Agreement and in and to the Collateral
and the Trust Estate or (C) incurred by the Trustee in connection with the
removal of the Trustee pursuant to subsection 5.7(a). Such fees, costs and
expenses are intended to constitute expenses of administration under any
bankruptcy law relating to creditors rights generally. The obligations of the
Company under this subsection 4.3 shall survive the termination of the other
provisions of this Trust Agreement and the resignation or removal of the Trustee
hereunder.
4.4 STAMP AND OTHER SIMILAR TAXES. The Company agrees to indemnify and
hold harmless the Trustee, the Administrative Agent, the Public Debt Trustee and
each Secured Party from any present or future claim for liability for any stamp
or any other similar tax, and any penalties or interest with respect thereto,
which may be assessed, levied or collected by any jurisdiction in connection
with this Trust Agreement, the Pledge Agreement, the Trust Estate or any
Collateral. The obligations of the Company under this subsection 4.4 shall
survive the termination of the other provisions of this Trust Agreement and the
resignation or removal of the Trustee hereunder.
4.5 FILING FEES, EXCISE TAXES, ETC. The Company agrees to pay or to
reimburse the Trustee for any and all payments made by the Trustee in respect of
all search, filing, recording and registration fees, taxes, excise taxes and
other similar imposts which may be payable or determined to be payable in
respect of the execution and delivery of this Trust Agreement and the Pledge
Agreement. The obligations of the Company under this subsection 4.5 shall
survive the termination of the other provisions of this Trust Agreement and the
resignatio n or removal of the Trustee hereunder.
4.6 INDEMNIFICATION. The Company agrees to pay, indemnify, and hold the
Trustee, the Administrative Agent, the Public Debt Trustee and each other
Secured Party (and their respective directors, officers, agents and employees)
harmless from and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses (including, without
limitation, the reasonable fees and expenses of counsel, advisors and agents) or
disbursements of any kind or nature whatsoever with respect to the execution,
delivery, enforcement, performance and administration of this Trust Agreement
and the Pledge Agreement, unless arising from the gross negligence or willful
misconduct of the indemnified party, including for taxes in any jurisdiction in
which the Trustee is subject to tax by reason of actions hereunder or under the
Pledge Agreement, unless such taxes are imposed on or measured by compensation
paid to the Trustee under subsection 4.3. In any suit, proceeding or action
brought by the Trustee under or with respect to any contract, agreement,
interest or obligation constituting part of the Collateral for any sum owing
thereunder, or to enforce any provisions thereof, the Company will save,
indemnify and keep the Trustee, the Administrative Agent, the Public Debt
Trustee and the Secured Parties harmless from and against all expense, loss or
damage suffered by reason of any defense, setoff, counterclaim, recoupment or
reduction of
14
liability whatsoever of the obligor thereunder, arising out of a breach by the
Company of any obligation thereunder or arising out of any other agreement,
indebtedness or liability at any time owing to or in favor of such obligor or
its successors from the Company, and all such obligations of the Company shall
be and remain enforceable against and only against the Company and shall not be
enforceable against the Trustee, the Administrative Agent, the Public Debt
Trustee or any Secured Party. The agreements in this subsection 4.6 shall
survive the termination of the other provisions of this Trust Agreement and the
resignation or removal of the Trustee hereunder.
4.7 TRUSTEE'S LIEN. Notwithstanding anything to the contrary in this
Trust Agreement, as security for the payment of Trustee Fees (i) the Trustee is
hereby granted an equal and ratable lien upon all Collateral and (ii) the
Trustee shall have the right to use and apply any of the funds held by the
Trustee in the Collateral Account to cover such Trustee Fees.
4.8 FURTHER ASSURANCES. At any time and from time to time, upon the
written request of the Administrative Agent, the Public Debt Trustee or the
Trustee, and at the expense of the Company, the Company will promptly execute
and deliver any and all such further instruments and documents and take such
further action as is necessary or reasonably requested further to perfect, or to
protect the perfection of, the liens and security interests granted under the
Pledge Agreement, including, without limitation, the filing of any financing or
continuation statements under the Uniform Commercial Code in effect in any
jurisdiction. In addition to the foregoing, at any time and from time to time,
upon the written request of the Trustee (which shall be made only upon the
written direction of the Administrative Agent or the Public Debt Trustee), and
at the expense of the Company, the Company will promptly execute and deliver any
and all such further instruments and documents and take such further action as
the Trustee has been so directed is necessary or reasonably requested to obtain
the full benefits of this Trust Agreement and the Pledge Agreement and of the
rights and powers herein and therein granted, including, without limitation, the
filing of any financing or continuation statements under the Uniform Commercial
Code in effect in any jurisdiction with respect to the liens and security
interests granted by the Pledge Agreement. The Company also hereby authorizes
the Trustee to sign and the Administrative Agent, the Public Debt Trustee or the
Trustee to file any such financing or continuation statements without the
signature of the Company to the extent permitted by applicable law.
Notwithstanding the foregoing, in no event shall the Trustee have any obligation
to monitor the perfection or continuation of perfection or the sufficiency or
validity of any security interest in or related to the Collateral.
SECTION 5.
THE TRUSTEE
5.1 ACCEPTANCE OF TRUST. The Trustee, for itself and its successors,
hereby accepts the trusts created by this Trust Agreement upon the terms and
conditions hereof.
5.2 EXCULPATORY PROVISIONS. (a) The Trustee shall not be responsible in
any manner whatsoever for the correctness of any recitals, statements,
representations or warranties herein, all of which are made solely by the
Company. The Trustee makes no representations as to the value or condition of
the Trust Estate or any part thereof, or as to the title of the Company thereto
or as to the security afforded by this Trust Agreement or the Pledge Agreement,
or as to the validity, execution (except its execution), enforceability,
legality or sufficiency of this Trust
15
Agreement, the Pledge Agreement or the Secured Obligation, and the Trustee shall
incur no liability or responsibility in respect of any such matters.
(b) The Trustee shall not be required to ascertain or inquire as to the
performance by the Company of any of the covenants or agreements contained
herein or in the Pledge Agreement or Secured Instrument. Whenever it is
necessary, or in the opinion of the Trustee advisable, for the Trustee to
ascertain the amount of Secured Obligations then held by Secured Parties, the
Trustee may rely on a certificate of the Public Debt Trustee, in the case of
Public Debt Obligations, a certificate of the Administrative Agent, in the case
of Credit Agreement Obligations, or a certificate of the Additional Indebtedness
Agent, in the case of Additional Senior Indebtedness Obligations and, if the
Public Debt Trustee, the Administrative Agent or any Additional Indebtedness
Agent shall not give such information to the Trustee, it shall not be entitled
to receive distributions hereunder (in which case distributions to those Persons
who have supplied such information to the Trustee shall be calculated by the
Trustee using, for those Persons who have not supplied such information, the
list then most recently delivered by the Company pursuant to subsection 4.2 or
such Person, whichever is most recent), and the amount so calculated to be
distributed to the Person who fails to give such information shall be held in
trust for such Person until such Person does supply such information to the
Trustee, whereupon on the next Distribution Date the amount distributable to
such Person shall be recalculated using such information and distributed to it.
Nothing in the preceding sentence shall prevent the Company from contesting any
amounts claimed by any Secured Party in any certificate so supplied.
(c) The Trustee shall be under no obligation or duty to take any action
under this Trust Agreement or the Pledge Agreement if taking such action (i)
would subject the Trustee to a tax in any jurisdiction where it is not then
subject to a tax or (ii) would require the Trustee to qualify to do business in
any jurisdiction where it is not then so qualified, unless the Trustee receive
security or indemnity satisfactory to it against such tax (or equivalent
liability), or any liability resulting from such qualification, in each case as
results from the taking of such action under this Trust Agreement or the Pledge
Agreement.
(d) The Trustee shall have the same rights with respect to any Secured
Obligation held by it as any other Secured Party and may exercise such rights as
though it were not the Trustee hereunder, and may accept deposits from, lend
money to, and generally engage in any kind of banking or trust business with,
the Company as if it were not the Trustee.
(e) The Trustee shall not be liable for any action taken or omitted to
be taken in accordance with this Trust Agreement or the Pledge Agreement except
for its own gross negligence or willful misconduct.
5.3 DELEGATION OF DUTIES. The Trustee may execute any of the trusts or
powers hereof and perform any duty hereunder either directly or by or through
agents or attorneys- in-fact. The Trustee shall be entitled to advice of counsel
concerning all matters pertaining to such trusts, powers and duties. The Trustee
shall not be responsible for the negligence or misconduct of any agents or
attorneys- in-fact selected by it without gross negligence or willful
misconduct.
16
5.4 RELIANCE BY TRUSTEE. (a) Whenever in the administration of this
Trust Agreement or the Pledge Agreement the Trustee shall deem it necessary or
desirable that a factual matter be proved or established in connection with the
Trustee taking, suffering or omitting any action hereunder or thereunder, such
matter (unless other evidence in respect thereof is herein specifically
prescribed) may be deemed to be conclusively proved or established by a
certificate of a Responsible Officer delivered to the Trustee, and such
certificate shall be full warrant to the Trustee for any action taken, suffered
or omitted in reliance thereon, subject, however, to the provisions of
subsection 5.5.
(b) The Trustee may consult with counsel, and any Opinion of Counsel
shall be full and complete authorization and protection in respect of any action
taken or suffered by it hereunder or under the Pledge Agreement in accordance
therewith. The Trustee shall have the right at any time to seek instructions
concerning the administration of this Trust Agreement and the Pledge Agreement
from any court of competent jurisdiction.
(c) The Trustee may rely, and shall be fully protected in acting, upon
any resolution, statement, certificate, instrument, opinion, report, notice,
request, consent, order, bond or other paper or document which it has no reason
to believe to be other than genuine and to have been signed or presented by the
proper party or parties or, in the case of cables, telecopies and telexes, to
have been sent by the proper party or parties. In the absence of its own gross
negligence or willful misconduct, the Trustee may conclusively rely, as to the
truth of the statements and the correctness of the opinions expressed therein,
upon any certificates or opinions furnished to the Trustee and conforming to the
requirements of this Trust Agreement.
(d) The Trustee shall not be under any obligation to exercise any of
the rights or powers vested in the Trustee by this Trust Agreement and the
Pledge Agreement, at the request or direction of the Administrative Agent or the
Public Debt Trustee pursuant to this Trust Agreement or otherwise, unless the
Trustee shall have been provided adequate security and indemnity against the
costs, expenses and liabilities which may be incurred by the Trustee in comp
liance with such request or direction, including such reasonable advances as may
be requested by the Trustee.
(e) Upon any application or demand by the Company (except any such
application or demand which is expressly permitted to be made orally) to the
Trustee to take or permit any action under any of the provisions of this Trust
Agreement or the Pledge Agreement, the Company shall furnish to the Trustee a
certificate of a Responsible Officer stating that all conditions precedent, if
any, provided for in this Trust Agreement, in the Pledge Agreement or in the
Credit Agreements or in the Indenture relating to the proposed action have been
complied with, and in the case of any such application or demand as to which the
furnishing of any document is specifically required by any provision of this
Trust Agreement or the Pledge Agreement relating to such particular application
or demand, such additional document shall also be furnished.
(f) Any Opinion of Counsel may be based, insofar as it relates to
factual matters, upon a certificate of a Responsible Officer or representations
made by a Responsible Officer in a writing filed with the Trustee.
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5.5 LIMITATIONS ON DUTIES OF TRUSTEE. (a) Unless a Notice of
Acceleration is in effect, the Trustee shall be obligated to perform such duties
and only such duties as are specifically set forth in this Trust Agreement and
the Pledge Agreement, and no implied covenants or obligations shall be read into
this Trust Agreement or the Pledge Agreement against the Trustee. If and so long
as a Notice of Acceleration is in effect, the Trustee may, subject to the
provisions of subsection 2.5(b), exercise the rights and powers vested in the
Trustee by this Trust Agreement and the Pledge Agreement, and shall not be
liable with respect to any action taken, or omitted to be taken, in accordance
with the direction of the Administrative Agent or the Public Debt Trustee.
(b) Except as herein otherwise expressly provided, the Trustee shall
not be under any obligation to take any action which is discretionary with the
Trustee under the provisions hereof or of the Pledge Agreement except upon the
written request of the Administrative Agent or the Public Debt Trustee. The
Trustee shall make available for inspection and copying by the Administrative
Agent and the Public Debt Trustee each certificate or other paper furnished to
the Trustee by the Company under or in respect of this Trust Agreement or any of
the Collateral.
(c) No provision of this Trust Agreement or of the Pledge Agreement
shall be deemed to impose any duty or obligation on the Trustee to perform any
act or acts or exercise any right, power, duty or obligation conferred or
imposed on it, in any jurisdiction in which it shall be illegal, or in which the
Trustee shall be unqualified or incompetent, to perform any such act or acts or
to exercise any such right, power, duty or obligation or if such performance or
exercise would constitute doing business by the Trustee in such jurisdiction or
impose a tax on the Trustee by reason thereof or to risk its own funds or
otherwise incur any financial liability in the performance of its duties
hereunder.
5.6 MONEYS TO BE HELD IN TRUST. All moneys received by the Trustee
under or pursuant to any provision of this Trust Agreement or the Pledge
Agreement (except Trustee Fees) shall be held in trust for the purposes for
which they were paid or are held.
5.7 RESIGNATION AND REMOVAL OF THE TRUSTEE. (a) The Trustee may at any
time, by giving written notice to the Company, the Administrative Agent, the
Public Debt Trustee and each other Secured party, if any, resign and be
discharged of the responsibilities hereby created, such resignation to become
effective upon (i) the appointment of a successor Trustee, (ii) the acceptance
of such appointment by such successor Trustee and (iii) the approval of such
successor Trustee evidenced by one or more instruments signed by the
Administrative Agent and the Public Debt Trustee. If no successor Trustee shall
be appointed and shall have accepted such appointment wit hin 90 days after the
Trustee gives the aforesaid notice of resignation, the Trustee, the Company, the
Administrative Agent, the Public Debt Trustee or any Secured Party may apply to
any court of competent jurisdiction to appoint a successor Trustee to act until
such time, if any, as a successor Trustee shall have been appointed as provided
in this subsection 5.7. Any successor so appointed by such court shall
immediately and without further act be superseded by any successor Trustee
appointed by the Administrative Agent as provided in subsection 5.7(b). The
Administrative Agent or the Public Debt Trustee may, at any time upon giving 30
days' prior written notice thereof to the Trustee and the Public Debt Trustee,
remove the Trustee and appoint a successor Trustee, such removal to be effective
upon the acceptance of
18
such appointment by the successor. The Trustee shall be entitled to Trustee Fees
to the extent incurred or arising, or relating to events occurring, before such
resignation or removal.
(b) If at any time the Trustee shall resign or be removed or otherwise
become incapable of acting, or if at any time a vacancy shall occur in the
office of the Trustee for any other cause, a successor Trustee may be appointed
by the Administrative Agent or the Public Debt Trustee with the consent of the
Company, which consent shall not be unreasonably withheld. The powers, duties,
authority and title of the predecessor Trustee shall be terminated and cancelled
without procuring the resignation of such predecessor and without any other
formality (except as may be required by applicable law) than appointment and
designation of a successor in writing duly acknowledged and delivered to the
predecessor and the Company. Such appointment and designation shall be full
evidence of the right and authority to make the same and of all the fact therein
recited, and this Trust Agreement and the Pledge Agreement shall vest in such
successor, without any further act, deed or conveyance, all the estates,
properties, rights, powers, trusts, duties, authority and title of its
predecessor, but such predecessor shall, nevertheless, on the written request of
the Administrative Agent or the Public Debt Trustee, the Company, or the
successor, execute and deliver an instrument transferring to such successor all
the estates, properties, rights, powers, trusts, duties, authority and title of
such predecessor hereunder and under the Pledge Agreement and shall deliver all
Collateral held by it or its agents to such successor. Should any deed, conve
▇▇▇▇▇ or other instrument in writing from the Company be required by any
successor Trustee for more fully and certainly vesting in such successor the
estates, properties, rights, powers, trusts, duties, authority and title vested
or intended to be vested in the predecessor Trustee, any and all such deeds,
conveyances and other instruments in writing shall, on request of such
successor, be executed, acknowledged and delivered by the Company. If the
Company shall not have executed and delivered any such deed, conveyance or other
instrument within 10 days after it received a written request from the successor
Trustee to do so, or if a Notice of Acceleration is in effect, the predecessor
Trustee may execute the same on behalf of the Company. The Company hereby
appoints any predecessor Trustee as its agent and attorney to act for it as
provided in the next preceding sentence.
5.8 STATUS OF SUCCESSOR TRUSTEE. Every successor Trustee appointed
pursuant to subsection 5.7 shall be a bank or trust company in good standing and
having power to act as Trustee hereunder, incorporated under the laws of the
United States of America or any State thereof or the District of Columbia and
having its principal corporate trust office within the 48 contiguous States and
shall also have capital, surplus and undivided profits of not less than
$500,000,000.
5.9 MERGER OF THE TRUSTEE. Any corporation into which the Trustee may
be merged, or with which it may be consolidated, or any corporation resulting
from any merger or consolidation to which the Trustee shall be a party, shall be
Trustee under this Trust Agreement and the Pledge Agreement without the
execution or filing of any paper or any further act on the part of the parties
hereto.
5.10 CO-TRUSTEE; SEPARATE TRUSTEE. (a) If at any time or times it shall
be necessary or prudent in order to conform to any law of any jurisdiction in
which any of the Collateral shall be located, or to avoid any violation of law
or imposition on the Trustee of taxes by such
19
jurisdiction not otherwise imposed on the Trustee, or the Trustee shall be
advised by counsel, satisfactory to it, that it is necessary or prudent in the
interest of the Secured Parties, or the Administrative Agent or the Public Debt
Trustee shall in writing so request the Trustee and the Company, or the Trustee
shall deem it desirable for its own protection in the performance of its duties
hereunder or under the Pledge Agreement, the Trustee and the Company shall
execute and deliver all instruments and agreements necessary or proper to
constitute another bank or trust company, or one or more persons approved by the
Trustee and the Company, either to act as co-trustee or co-trustees of all or
any of the Collateral under this Trust Agreement or under the Pledge Agreement,
jointly with the Trustee originally named herein or therein or any successor
Trustee, or to act as separate trustee or trustees of any of the Collateral. If
the Company shall not have joined in the execution of such instruments and
agreements within 10 days after it receives a written request from the Trustee
to do so, or if a Notice of Acceleration is in effect, the Trustee may act under
the foregoing provisions of this subsection 5.10(a) without the concurrence of
the Company and execute and deliver such instruments and agreements on behalf of
the Company. The Company hereby appoints the Trustee as its agent and attorney
to act for it under the foregoing provisions of this subsection 5.10(a) in
either of such contingencies.
(b) Every separate trustee and every co-trustee, other than any
successor Trustee appointed pursuant to subsection 5.7, shall, to the extent
permitted by law, be appointed and act and be such, subject to the following
provisions and conditions:
(i) all rights, powers, duties and obligations conferred upon the
Trustee in respect of the custody, control and management of moneys, papers or
securities shall be exercised solely by the Trustee or any agent appointed by
the Trustee;
(ii) all rights, powers, duties and obligations conferred or imposed
upon the Trustee hereunder and under the Pledge Agreement shall be conferred or
imposed and exercised or performed by the Trustee and such separate trustee or
separate trustees or co-trustee or co-trustees, jointly, as shall be provided in
the instrument appointing such separate trustee or separate trustees or
co-trustee or co-trustees, except to the extent that under any law of any
jurisdiction in which any particular act or acts are to be performed the Trustee
shall be incompetent or unqualified to perform such act or acts, or unless the
performance of such act or acts would result in the imposition of any tax on the
Trustee which would not be imposed absent such joint act or acts, in which event
such rights, powers, duties and obligations shall be exercised and performed by
such separate trustee or separate trustees or co-trustee or co-trustees;
(iii) no power given hereby or by the Pledge Agreement to, or which it
is provided herein or therein may be exercised by, any such co-trustee or
co-trustees or separate trustee or separate trustees shall be exercised
hereunder or thereunder by such co-trustee or co-trustees or separate trustee or
separate trustees except jointly with, or with the consent in writing of, the
Trustee, anything contained herein to the contrary notwithstanding;
(iv) No trustee hereunder shall be personally liable by reason of any
act or omission of any other trustee hereunder; and
(v) the Company and the Trustee, at any time by an instrument in
writing executed by them jointly, may accept the resignation of or remove any
such separate trustee or co-trustee and,
20
in that case by an instrument in writing executed by them jointly, may appoint a
successor to such separate trustee or co-trustee, as the case may be, anything
contained herein to the contrary notwithstanding. If the Company shall not have
joined in the execution of any such instrument within 10 days after it receives
a written request from the Trustee to do so, or if a Notice of Acceleration is
in effect, the Trustee shall have the power to accept the resignation of or
remove any such separate trustee or co-trustee and to appoint a successor
without the concurrence of the Company, the Company hereby appointing the
Trustee its agent and attorney to act for it in such connection in such
contingency. If the Trustee shall have appointed a separate trustee or separate
trustees or co-trustee or co-trustees as above provided, the Trustee may at any
time, by an instrument in writing, accept the resignation of or remove any such
separate trustee or co-trustee and the successor to any such separate trustee or
co-trustee shall be appointed by the Company and the Trustee, or by the Trustee
alone pursuant to this subsection 5.10(b).
5.11 TREATMENT OF PAYEE OR ENDORSEE BY TRUSTEE; REPRESENTATIVES OF
SECURED PARTIES. (a) The Trustee may treat the registered holder or, if none,
the payee or endorsee of any promissory note or debenture evidencing a Secured
Obligation as the absolute owner thereof for all purposes and shall not be
affected by any notice to the contrary, whether such promissory note or
debenture shall be past due or not.
(b) Any Person (other than the Administrative Agent and the Public Debt
Trustee) which shall be designated as the duly authorized representative of one
or more Secured Parties to act as such in connection with any matters pertaining
to this Trust Agreement or the Collateral shall present to the Trustee such
documents, including, without limitation, Opinions of Counsel, as the Trustee
may reasonably require, in order to demonstrate to the Trustee the authority of
such Person to act as the representative of such Secured Parties (it being
understood that (i) the holders of Credit Agreement Obligations are represented
hereunder by the Administrative Agent, the holders of the Public Debt
Obligations are represented hereunder by relevant Public Debt Trustee and (ii)
such holders shall have no other rights pursuant to this subsection 5.11(b)).
The authority of the Administrative Agent and the Public Debt Trustee shall be
demonstrated by their inclusion as such in the lists from time to time delivered
pursuant to subsection 4.2.
SECTION 6.
MISCELLANEOUS
6.1 NOTICES. Unless otherwise specified herein, all notices, requests,
demands or other communications given to the Company, the Trustee, the
Administrative Agent, the Public Debt Trustee or other Secured Party, if any,
shall be given in writing or by facsimile transmission and shall be deemed to
have been duly given when personally delivered or when duly deposited in the
mails, registered or certified mail postage prepaid, or when transmitted by
facsimile transmission, addressed (i) if to the Company or the Trustee, to such
party at its address specified on the signature pages hereof or any other
address which such party shall have specified as its address for the purpose of
communications hereunder, by notice given in accordance with this subsection 6.1
to the party sending such communication or (ii) if to the Administrative Agent,
the Public Debt Trustee or such other Secured Party, to it at its address
specified from time to time in the list provided by the Company to the Trustee
pursuant to subsection 4.2; PROVIDED that any notice, request or demand to the
Trustee shall not be effective until received by the Trustee
21
in writing or by facsimile transmission in the corporate trust division at the
office designated by it pursuant to this subsection 6.1.
6.2 NO WAIVERS. No failure on the part of the Trustee, any co-trustee,
any separate trustee, the Administrative Agent, the Public Debt Trustee or any
Secured Party to exercise, no course of dealing with respect to, and no delay in
exercising, any right, power or privilege under this Trust Agreement or the
Pledge Agreement shall operate as a waiver thereof nor shall any single or
partial exercise of any such right, power or privilege preclude any other or
further exercise thereof or the exercise of any other right, power or privilege.
6.3 AMENDMENTS, SUPPLEMENTS AND WAIVERS. (a) With the written consent
of the Administrative Agent and the Public Debt Trustee, the Trustee and the
Company may, from time to time, enter into written agreements supplemental
hereto or to the Pledge Agreement for the purpose of adding to, or waiving any
provisions of, this Trust Agreement or the Pledge Agreement or changing in any
manner the rights of the Trustee, the Secured Parties (subject, in the case of
the Public Debt Securities, to the provisions of the Indenture) or the Company
hereunder or thereunder; PROVIDED that no such supplemental agreement shall,
except as provided in subsection 6.3(b), amend, modify or waive any provision of
subsection 3.4 or the definition of Secured Obligations without the written
consent of each Secured Party whose rights would be adversely affected thereby.
(b) Without the consent of the Administrative Agent, the Public Debt
Trustee or any Secured Party, the Trustee and the Company, at any time and from
time to time, may enter into one or more agreements supplemental hereto or to
the Pledge Agreement, in form satisfactory to the Trustee, (i) to add to the
covenants of the Company for the benefit of the Secured Parties or to surrender
any right or power herein conferred upon the Company, (ii) to mortgage or pledge
as Collateral (as defined in the Pledge Agreement) to the Trustee, or grant a
security interest in favor of the Trustee in, any property or assets as
additional security for the Secured Obligations, or (iii) to cure any ambiguity,
to correct or supplement any provision herein or in the Pledge Agreement which
may be defective or inconsistent with any other provision herein or therein, or
to make any other provision with respect to matters or questions arising
hereunder which shall not be inconsistent with any provision hereof; PROVIDED
that any such action contemplated by this clause (iii) shall not adversely
affect the interests of the Secured Parties.
6.4 HEADINGS. The table of contents and the headings of Sections and
subsections have been included herein and in the Pledge Agreement for
convenience only and should not be considered in interpreting this Trust
Agreement or the Pledge Agreement.
6.5 SEVERABILITY. Any provision of this Trust Agreement which is
prohibited or unenforceable in any jurisdiction shall not invalidate the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdic tion shall not invalidate or render unenforceable such provision in any
other jurisdiction.
6.6 SUCCESSORS AND ASSIGNS. This Trust Agreement shall be binding upon
and inure to the benefit of each of the parties hereto and their respective
successors and assigns and shall inure to the benefit of each of the Secured
Parties and their respective successors and assigns,
22
and nothing herein is intended or shall be construed to give any other Person
any right, remedy or claim under, to or in respect of this Trust Agreement or
any Collateral.
6.7 GOVERNING LAW. This Trust Agreement shall be governed by, and
construed and interpreted in accordance with, the laws of the State of Ohio.
6.8 COUNTERPARTS. This Trust Agreement may be signed in any number of
counterparts with the same effect as if the signatures thereto and hereto were
upon the same instrument.
6.9 TERMINATION. (a) Except for the period during which a Notice of
Acceleration is in effect, upon (i) receipt by the Trustee from the
Administrative Agent of (A) a written direction to cause the liens created by
subsection 4.7 and by the Pledge Agreement to be released and discharged as to
all Secured Parties or (B) a written notice stating that the Credit Agreements
have terminated in accordance with the terms thereof prior to the time any
Notice of Acceleration has been given by the Public Debt Trustee and remains in
effect, and (ii) payment in full of all Trustee Fees, the security interests
created by subsection 4.7 and by the Pledge Agreement shall terminate as to all
Secured Parties forthwith and all right, title and interest of the Trustee in
and to the Collateral shall revert to the Company, its successors and assigns.
(b) Upon the termination of the Trustee's security interest and the
release of the Collateral in accordance with subsection 6.9(a), the Trustee will
promptly, at the Company's written request and expense, (i) execute and deliver
to the Company such documents as the Company shall reasonably request to
evidence the termination of such security interest or the release of the
Collateral and (ii) deliver or cause to be delivered to the Company all property
of the Company then held by the Trustee or any agent thereof.
(c) Except for the period during which a Notice of Acceleration is in
effect, upon receipt by the Trustee from the Company of a certificate of the
Company that all or substantially all of the assets or all of the capital stock
of any maker of any promissory note constituting part of the Collateral has been
sold to a third party (which certificate shall be accompanied by a written
statement from the Administrative Agent that such sale is or will be in
accordance with the Credit Agreement), all right, title and interest of the
Trustee in and to any such promissory note constituting part of the Collateral
subject to the security interests created by the Pledge Agreement shall revert
to the Company, its successors and assigns. Upon any such termination, the
Trustee will promptly, at the Company's written request and at the Company's
expense, (y) execute and deliver to the Company such documents as the Company
shall reasonably request to evidence the termination of such security interest
or the release of such Collateral and (z) deliver or cause to be delivered to
the Company all such released Collateral then held by the Trustees or any agent
thereof.
(d) Except for the period during which a Notice of Acceleration is in
effect, the Company shall be entitled to request the release of, or the
substitution with a new promissory note from a Restricted Subsidiary of the
Company of, any promissory note constituting part of the Collateral and, upon
receipt by the Trustee from the Company of a certificate of the Company that
after giving effect thereto the Company is in compliance with Section 7.14(c) of
the Credit Agreements, all right, title and interest of the Trustee in and to
any such promissory
23
note being released or replaced by another promissory note constituting part of
the Collateral subject to the security interests created by the Pledge Agreement
shall revert to the Company, its successors and assigns. Upon any such
termination, the Trustee will promptly, at the Company's written request and at
the Company's expense, (y) execute and deliver to the Company such documents as
the Company shall reasonably request to evidence the termination of such
security interest or the release of such Collateral and (z) deliver or cause to
be delivered to the Company all such released Collateral then held by the
Trustee or any agent thereof.
(e) This Trust Agreement shall terminate when the security interest
granted under the Pledge Agreement has terminated and the Collateral has been
released; PROVIDED that the provisions of subsections 4.3, 4.4, 4.5 and 4.6
shall not be affected by any such termination.
(f) The Trustee will, at any time prior to the time any Notice of
Acceleration has been given by the Public Debt Trustee and remains in effect,
upon the written instruction of the Administrative Agent, at the sole expense of
the Company, prior to the time any Notice of Acceleration has been given by the
Public Debt Trustee and remains in effect, execute and deliver to the Company
all releases or other documents reasonably necessary or desirable for the
release of the Liens created by the Pledge Agreement on the Collateral specified
by the Administrative Agent in such instruction. The Administrative Agent may
give such instructions at any time prior to the time any Notice of Acceleration
has been given by the Public Debt Trustee and remains in effect, whether or not
at any such time any or all of the Secured Obligations are still outstanding so
long as the Liens created by the Pledge Agreement are released as to all Secured
Parties.
6.10 INSPECTION BY REGULATORY AGENCIES. The Trustee shall make
available, and shall cause each custodian and agent acting on its behalf in
connection with this Trust Agreement to make available, all Collateral in such
Person's possession at all times for inspection by any regulatory agency having
jurisdiction over the Company to the extent required by such regulatory agency
in its discretion.
6.11 CONFIDENTIALITY. The Trustee agrees to keep confidential any
written information (a) provided to it by or, on behalf of the Company or any of
its Subsidiaries pursuant to or in connection with the Trust Agreement or the
Pledge Agreement or (b) obtained by the Trustee based on a review of the books
and records of the Company or any of its Subsidiaries; PROVIDED that nothing
herein shall prevent the Trustee from disclosing any such information (i) to the
Administrative Agent or any other Lender, (ii) to employees, directors, agents,
attorneys, accountants and other professional advisors, (iii) upon the request
or demand of any Governmental Authority having jurisdiction over the Trustee or
as shall be required pursuant to any Requirement of Law, (iv) in response to any
order of any court or other Governmental Authority or as may otherwise be
required pursuant to any Requirement of Law, (v) in connection with any
litigation to which the Trustee is a party, (vii) which has been pub licly
disclosed other than in breach of the Trust Agreement, or (viii) to the extent
reasonably necessary, in connection with the exercise of any remedy hereunder.
6.12 SUBMISSION TO JURISDICTION; WAIVERS. The Company hereby
irrevocably and unconditionally:
24
(a) submits for itself and its property in any legal action or
proceeding relating to this Trust Agreement and the Pledge Agreement to which it
is a party, or for recognition and enforcement of any judgment in respect
thereof, to the non-exclusive general jurisdiction of the Courts of the State of
New York, the courts of the United States of America for the Southern District
of New York, and appellate courts from any thereof;
(b) to the extent permitted by applicable law, consents that any such
action or proceeding may be brought in such courts and waives any objection that
it may now or hereafter have to the venue of any such action or proceeding in
any such court or that such action or proceeding was brought in an inconvenient
court and agrees not to plead or claim the same;
(c) agrees that service of process in any such action or proceeding may
be effected by mailing a copy thereof by registered or certified mail (or any
substantially similar form of mail), postage prepaid, to the Company at its
address set forth in sub section 6.1 or at such other address of which the
Trustee shall have been notified pursuant thereto;
(d) agrees that nothing herein shall affect the right to effect service
of process in any other manner permitted by law or shall limit the right to ▇▇▇
in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any right it
may have to claim or recover in any legal action or proceeding referred to in
this subsection any special, exemplary, punitive or consequential damages.
6.13 WAIVERS OF JURY TRIAL. THE TRUSTEE AND THE COMPANY HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THIS TRUST AGREEMENT OR ANY THE PLEDGE AGREEMENT AND FOR
ANY COUNTERCLAIM THEREIN.
6.14 INDENTURE. It is the intention of the parties hereto to make this
Trust Agreement apply equally and ratably to the Administrative Agent, the
Public Debt Trustee and each other Secured Party. Nothing in this Trust
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.
25
IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement
to be duly executed by their respective authorized officers as of the day and
year first written above.
WORTHINGTON INDUSTRIES, INC.
By: /s/▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President &
Chief Financial Officer
Address for Notices:
Worthington Industries, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
Fax: ▇▇▇-▇▇▇-▇▇▇▇
▇▇▇▇▇ FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION, as Collateral Agent
By: /s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Corporate Trust Officer
Address for Notices:
▇▇▇▇▇ Fargo Bank Minnesota, National Association
Corporate Trust Services
MAC ▇▇▇▇▇-▇▇▇
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
▇▇▇▇▇ FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION, as Trustee
By: /s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Corporate Trust Officer
26
▇.▇. ▇▇▇▇▇▇ TRUST COMPANY, NATIONAL
ASSOCIATION (SUCCESSOR TO CHASE
MANHATTAN TRUST COMPANY, N.A.), as
Public Debt Trustee
By: /s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
PNC BANK, NATIONAL ASSOCIATION,
as Administrative Agent
By: /s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
27
EXHIBIT A
FORM OF NOTICE OF ACCELERATION
[Date]
To: ▇▇▇▇▇ Fargo Bank Minnesota, National Association, as Trustee
Re: Trust Agreement, dated as of May 10, 2002, among
Worthington Industries, Inc. (the "COMPANY"), and
▇▇▇▇▇ Fargo Bank Minnesota, National Association, as
Trustee (the "TRUST AGREEMENT").
[The Credit Agreement Obligations have not been paid in full at the
stated final maturity and any applicable grace period has expired.] [A default
has occurred under the provisions of the Credit Agreement and, as a result
thereof, the Credit Agreement Obligations have became due and payable prior to
the stated maturity thereof.)] [The Public Debt Obligations have not been paid
in full at the stated final maturity and any applicable grace period has
expired.] [A default has occurred under the provisions of the Indenture and, as
a result thereof, the Public Debt Obligations have became due and payable prior
to the stated maturity thereof.)]
Terms defined in the Trust Agreement and used herein shall have the
meanings given to them in the Trust Agreement.
[PNC BANK, NATIONAL ASSOCIATION, as
Administrative Agent]
[▇.▇. ▇▇▇▇▇▇ TRUST COMPANY, NATIONAL
ASSOCIATION (SUCCESSOR TO CHASE
MANHATTAN TRUST COMPANY, N.A.), as
Public Debt Trustee]
By:
-------------------------------------
Name:
Title:
A-1
EXHIBIT B
[FORM OF] JOINDER AGREEMENT
This Joinder Agreement ("JOINDER AGREEMENT") is executed as of
____________, 200__, between _________________________________, a(n)
_______________________ (the "JOINING PARTY"), and WORTHINGTON INDUSTRIES, INC.,
an Ohio corporation, and delivered to ▇▇▇▇▇ FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION, as collateral agent under the Credit Agreements referred to below,
and ▇▇▇▇▇ FARGO BANK MINNESOTA, NATIONAL ASSOCIATION, as trustee under the Trust
Agreement (as defined below)(in such capacity, the "TRUSTEE").
Reference is made to the Trust Agreement dated as of May 10, 2002,
among WORTHINGTON INDUSTRIES, INC., an Ohio corporation (the "COMPANY") and the
Trustee (the "TRUST AGREEMENT ") which was executed in connection with the
Credit Agreements (as defined therein) and the Pledge Agreement (as defined
therein). Terms used but not defined in this Joinder Agreement shall have the
meanings set forth in the Trust Agreement.
WITNESSETH:
WHEREAS, the Joining Party is becoming, pursuant to the terms hereof, a
Secured Party under the Trust Agreement;
WHEREAS, the Joining Party expects to realize direct and indirect
benefits as a result of its joinder of the Trust Agreement as a Secured Party.
NOW, THEREFORE, the Joining Party agrees as follows:
AGREEMENT
---------
1. JOINDER TO TRUST AGREEMENT. By this Joinder Agreement, the Joining
Party hereby becomes a "Secured Party" under the Trust Agreement with respect to
all of the benefits and obligations of a Secured Party thereunder, whether now
or hereafter incurred. The Joining Party agrees that it is and shall have all of
the benefits of, and shall be bound by, and hereby assumes, all representations,
warranties, covenants, terms, conditions, duties, obligations and waivers
applicable to, a Secured Party under the Trust Agreement.
2. REPRESENTATIONS AND WARRANTIES. The Joining Party represents and
warrants to the Trustee and the Collateral Agent that, as of the Effective Date
(as defined below), the representations and warranties of a Secured Party
contained in the Trust Agreement are true and correct in all material respects
as applied to the Joining Party as a Secured Party on and as of the Effective
Date as though made on that date.
3. FURTHER ASSURANCES. The Joining Party agrees to execute and deliver
such other instruments and documents and take such other action, as the Trustee
and the Collateral Agent may reasonably request, in connection with the
transactions contemplated by this Joinder Agreement.
4. GOVERNING LAW. THIS AGREEMENT SHALL BE DEEMED TO BE A CONTRACTUAL
OBLIGATION UNDER, AND SHALL BE GOVERNED BY AND
B-1
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF OHIO.
5. The effective date (the "EFFECTIVE DATE") of this Joinder Agreement
is __________, 200__.
JOINING PARTY:
---------------------------------, a(n)
----------------------------------
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
COMPANY:
WORTHINGTON INDUSTRIES, INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
ACKNOWLEDGED:
TRUSTEE:
▇▇▇▇▇ FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION
By:
---------------------------
Name:
-------------------------
Title:
------------------------
COLLATERAL AGENT:
▇▇▇▇▇ FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION
By:
---------------------------
Name:
-------------------------
Title:
------------------------
B-2