Exhibit 4.3
SUPPLEMENTAL INDENTURE NO. 3
Dated as of July 30, 1999
THIS SUPPLEMENTAL INDENTURE NO. 3 to the Indenture referred
to below is dated as of July 30, 1999 (this "Supplemental Indenture No. 3")
between Armco Inc., an Ohio corporation (the "Company"), and FIFTH THIRD BANK,
as trustee (the "Trustee").
The Company and the Trustee are parties to an Indenture,
dated as of October 1, 1992 (the "Base Indenture"), as amended and supplemented,
including by Supplemental Indenture No. 2 dated as of September 1, 1997
("Supplemental Indenture No. 2" and, together with the Base Indenture, as so
amended and supplemented, the "Indenture") providing, among other things, for
the authentication, delivery and administration of the Company's 9% Senior Notes
due 2007 (the "Notes").
The Company has solicited consents from Holders (as defined
below) of the Notes to certain amendments to the Indenture described in Article
II hereof (the "Proposed Amendments").
Pursuant to Section 10.02 of the Base Indenture, the
Holders of not less than a majority in aggregate principal amount of the
outstanding Notes have approved the Proposed Amendments.
The Company has directed the Trustee to execute and deliver
this Supplemental Indenture No. 3 in accordance with the terms of the Indenture.
In consideration of the foregoing premises, the parties
mutually agree as follows for the benefit of each other and for the equal and
ratable benefit of the Holders of the Notes:
Article I
Definitions and effectiveness
Section 1.1 Definitions. Except as otherwise defined
herein, capitalized terms defined in the Indenture are used herein as therein
defined.
Section 1.2 Condition to Effectiveness. The Proposed
Amendments will become effective upon (the "Effective Time") the consummation of
the merger contemplated by the Agreement and Plan of Merger, dated as of May 20,
1999, as it may be amended, among AK Steel Corporation, AK Steel Holding
Corporation and the Company.
ARTICLE II
AMENDMENTS TO INDENTURE
Section 2.1 Amendments to Indenture. On and after the
Effective Time, the Indenture shall be amended as follows:
(a) Section 203 of Supplemental Indenture No. 2 shall be
amended to add the following definitions in proper alphabetical
order:
NY2:\841142\01\$11201!.DOC\38055.0020
(i) "`Accounts Receivable' or `accounts
receivable' of any Person means any and all accounts,
contract rights, chattel paper, instruments, documents,
general intangibles and other obligations of any kind
relating to the sale or lease of goods and the rendering of
services by such Person, all rights relating thereto, all
deposit accounts containing the proceeds thereof, all books
and records relating thereto and the proceeds thereof.";
(ii) "`Inventory' of any Person means any and all
inventory of any kind of such Person, including without
limitation, any or all of the following: inventory,
merchandise, goods and other tangible personal property
that are held for sale or lease by such Person; all
materials used or consumed in the business of such Person,
but excluding from the foregoing equipment of such Person;
all trademarks, servicemarks, trade names and similar
intangible property owned or used by such Person in its
business, together with the goodwill of the business
symbolized thereby and all rights relating thereto
("Intangible Property"); and all books and records relating
to the foregoing and the proceeds thereof.";
(iii) "`Normal Replacement Assets' means any
assets other than Special Assets."; and
(iv) "`Special Assets' means a capital asset, or
series of related capital assets, with an aggregate
purchase price in excess of $20.0 million that enhances the
competitiveness or productivity of the business of the
Company and its Subsidiaries or is required so that the
Company and its Subsidiaries will be able to remain in
compliance with all material requirements of applicable
law."
(b) The definition of "Capital Expenditure Indebtedness"
contained in Section 203 of Supplemental Indenture No. 2 shall be
amended as follows:
(i) the word "and" shall be inserted at the end
of clause (i) thereof; and
(ii) the words "the acquisition or construction
of such Property is not part of any acquisition of a Person
or business unit, and (iii)" shall be deleted.
(c) The definition of "Consolidated Net Income" contained
in Section 203 of Supplemental Indenture No. 2 shall be amended as
follows:
(i) the word "and" at the end of clause (vii)
thereof shall be deleted; and
(ii) a new clause (ix) shall be inserted after
clause (viii) thereof which clause shall read in its
entirety as follows:
"and (ix) solely for purposes of
Section 302 hereof, special charges, costs and
other expenses (including restructuring charges
and associated investment banking, legal,
accounting, printing and related fees and
expenses) recorded by such Person and its
Restricted Subsidiaries (and related tax effects)
in connection with the merger of the Company with
and into AK Steel Corporation pursuant to an
Agreement and Plan of Merger dated as of May 20,
1999, as it may be amended, among AK Steel
Holding Corporation, AK Steel Corporation and the
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Company and any other merger or other business
combination transaction involving such Person or
any of its Restricted Subsidiaries, to the extent
that such charges, costs and other expenses are
not permitted under generally accepted accounting
principles to be capitalized and amortized over
future periods, in each case in respect of which
such Person has delivered to the Trustee an
Officers' Certificate, made in good faith by
responsible financial or accounting officers of
such Person, at the time such special charges,
costs and other expenses are recorded, setting
forth in reasonable detail such special charges,
costs and other expenses".
(d) The definition of "Credit Facilities" contained in
Section 203 of Supplemental Indenture No. 2 shall be amended in its
entirety and replaced with the following:
"`Credit Facilities' means any
agreement or agreements providing for (i) the
making of a loan or the advancing of credit, (ii)
the sale of Accounts Receivable of the Company or
any Significant Restricted Subsidiary under any
asset securitization facility or other financing
facility for the financing of Accounts Receivable
of the Company or any Significant Restricted
Subsidiary or (iii) the issuance of letters of
credit and/or the creation of bankers'
acceptances, under which the aggregate amount
that may be issued or otherwise obtained, in the
case of clauses (i), (ii) and (iii), is based
upon eligible Accounts Receivable and eligible
Inventory and the aggregate principal amount of
Indebtedness, or (in the case of clause (ii))
aggregate Investments outstanding, shall not at
any time exceed the greater of (A) $75.0 million
and (B) an amount equal to (1) 100% of the book
value of the consolidated Accounts Receivable of
the Company and its Significant Restricted
Subsidiaries plus (2) 100% of the book value
(excluding last-in-first-out reserves) of the
consolidated Inventory of the Company and its
Significant Restricted Subsidiaries, minus (3)
the aggregate principal amount of outstanding
Indebtedness secured by any Accounts Receivable
or Inventory of the Company or any of its
Subsidiaries, other than Indebtedness outstanding
under any Credit Facility, minus (4) other
outstanding Investments (other than Indebtedness
under a Credit Facility or, Indebtedness
described in clause (3) above) under any asset
securitization or similar facility in respect of
Accounts Receivable or Inventory of the Company
or any of its Subsidiaries."
(e) Section 303 of Supplemental Indenture No. 2 shall be
amended as follows:
(i) the words ", provided that the aggregate
principal amount of all Indebtedness Incurred under this
clause (i) at any one time outstanding does not exceed the
greater of (A) $225,000,000 and (B) the sum of (1) 80% of
the book value of the accounts receivable of the Company
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and its Restricted Subsidiaries and (2) 50% of the book
value of the inventory of the Company and its Restricted
Subsidiaries, in the case of clauses (B)(1) and (B)(2) of
this proviso, as of the end of the most recent fiscal
quarter for which financial information in respect thereof
is available immediately prior to the date of such
Incurrence, determined in accordance with GAAP" in clause
(b)(i) thereof shall be deleted; and
(ii) clause (b)(iii) thereof shall be amended in its
entirety and replaced with the following:
"(iii)(A) Indebtedness of the Company
in respect of Capital Lease Obligations or (B)
Capital Expenditure Indebtedness directly
Incurred by the Company, provided that the
aggregate of Indebtedness Incurred under this
clause (iii) and Indebtedness Incurred under
Section 304(a)(iv) in any calendar year shall not
exceed in aggregate principal amount the sum of
(A) $50.0 million for each of 1999, 2000 and
2001, and $35.0 million for each calendar year
from and including 2002 to and including 2008
plus (B) the excess of the aggregate principal
amount otherwise permitted to be Incurred under
this clause (iii) in all previous calendar years
to and including 1999 over the aggregate
principal amount actually Incurred by the Company
during such period under this clause (iii);".
(f) Section 304 of Supplemental Indenture No. 2 shall be
amended as follows:
(i) clause (a)(iv)(B) thereof shall be amended in
its entirety and replaced with the following:
"(B) Capital Expenditure Indebtedness
directly Incurred by a Restricted Subsidiary,
provided that the aggregate of Indebtedness
Incurred under this clause (iv) and Indebtedness
Incurred under Section 303(b)(iii) in any
calendar year shall not exceed in aggregate
principal amount the sum of (A) $50.0 million for
each of 1999, 2000 and 2001, and $35.0 million
for each calendar year from and including 2002 to
and including 2008 plus (B) the excess of the
aggregate principal amount otherwise permitted to
be Incurred under this clause (iv) in all
previous calendar years to and including 1999
over the aggregate principal amount actually
Incurred by such Restricted Subsidiary during
such period under this clause (iv);";
(ii) the text "; and" shall replace the "." at
the end of clause (v) thereof; and
(iii) a new clause (vi) shall be inserted after
clause (v) thereof which clause shall read in its entirety
as follows:
"(vi) Guarantees Incurred by any
Restricted Subsidiary of any Indebtedness
Incurred by the Company permitted under Section
303; provided that, concurrently with the
Incurrence of any such Guarantee, the Company
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shall cause such Restricted Subsidiary to issue a
Guarantee (a "Note Guarantee") with respect to
the Notes that ranks pari passu with, and
otherwise has substantially the same terms as,
such Guarantee by executing and delivering to the
Trustee (A) a supplemental indenture, in form and
substance satisfactory to the Trustee, which sets
forth the terms and provisions of such Note
Guarantee, including with respect to the release
thereof, and matters relating to the issuance of
such Note Guarantee by such Restricted Subsidiary
and (ii) an Opinion of Counsel to the effect that
such supplemental indenture has been duly
authorized and executed by such Restricted
Subsidiary and constitutes the legal, valid,
binding and enforceable obligation of such
Restricted Subsidiary (subject to such customary
exceptions concerning creditors' rights and
equitable principles as may be acceptable to the
Trustee in its discretion)."
(g) Clause (a)(i) of Section 307 of Supplemental Indenture
No. 2 shall be amended in its entirety and replaced with the
following:
"(i) any Lien on the Inventory or Accounts
Receivable of the Company or any Significant Restricted
Subsidiary securing Indebtedness permitted under Section
303(b)(i) provided that any Lien on Intangible Property
shall limit the rights of the holder of such Lien to the
use of such Intangible Property to manufacture, process and
sell the Inventory with respect to which such holder has a
Lien;".
(h) Section 310 of Supplemental Indenture No. 2 shall be
amended as follows:
(i) clause (c) thereof shall be deleted; and
(ii) the reference to "(d)" therein shall be
replaced with "(c)".
(i) Section 10.1 of the Base Indenture shall be amended as
follows:
(i) the word "and" at the end of clause (k)
thereof shall be deleted;
(ii) the text "; and" shall replace the "." at
the end of clause (l) thereof; and
(iii) the words "(m) to provide for any Person
issuing a Guarantee with respect to any series of the Debt
Securities, or the release of such Person from such
Guarantee." shall be inserted after clause (l) thereof.
Section 2.2 Notification to Holders. The Company shall notify the
Holders of the execution of this Supplemental Indenture No. 3. Any failure of
the Company to give such notice to all Holders, or any defect therein, shall not
impair or affect the validity of this Supplemental Indenture No. 3.
Section 2.3 Receipt by Trustee. In accordance with Sections 10.03 and
14.04 of the Base Indenture, the parties acknowledge that the Trustee has
received an Officers' Certificate and an Opinion of Counsel as conclusive
evidence that this Supplemental Indenture No. 3 complies with the Indenture.
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Article III
Miscellaneous
Section 3.1 Parties. Nothing expressed or mentioned herein is
intended or shall be construed to give any Person, other than the Holders and
the Trustee, any legal or equitable right, remedy or claim under or in respect
of this Supplemental Indenture No. 3 or the Indenture or any provision herein or
therein contained.
Section 3.2 Governing Law. This Supplemental Indenture No. 3 shall be
deemed to be a contract made under the laws of the State of New York, and for
all purposes shall be construed in accordance with the laws of said State,
without reference to principles of conflicts of law.
Section 3.3 Separability Clause. In case any one or more of the
provisions contained in this Supplemental Indenture No. 3 should be invalid,
illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein shall not in any way
be affected, impaired, prejudiced or disturbed thereby.
Section 3.4 Ratification of Indenture; Supplemental Indenture No. 3
Part of Indenture. Except as expressly supplemented hereby, the Indenture is in
all respects ratified and confirmed and all the terms, conditions, and
provisions thereof shall remain in full force and effect. This Supplemental
Indenture No. 3 shall form a part of the Indenture for all purposes, and every
Holder of Notes heretofore or hereafter authenticated and delivered shall be
bound hereby. The Trustee makes no representation or warranty as to the validity
or sufficiency of this Supplemental Indenture No. 3.
Section 3.5 Counterparts. This Supplemental Indenture No. 3 may be
simultaneously executed in several counterparts, and all such counterparts
executed and delivered, each as an original, shall constitute one and the same
instrument.
Section 3.6 Headings. The descriptive headings of the several
Articles of this Supplemental Indenture No. 3 were formulated, used and inserted
in this Supplemental Indenture No. 3 for convenience only and shall not be
deemed to affect the meaning or construction of any of the provisions hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture No. 3 to be duly executed as of the date first above written.
ARMCO INC.
By: /s/ X. X. Xxxxxxx
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Name: X. X. Xxxxxxx
Title: Vice President
FIFTH THIRD BANK,
as Trustee
By: /s/ Xxxxxxx X. Xxxx
------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Assistant Vice President
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