Exhibit 4.11
FIRST SUPPLEMENTAL INDENTURE
Dated as of August 6, 1999
THIS FIRST SUPPLEMENTAL INDENTURE to the Indenture referred to below
is dated as of August 6, 1999 (this "First Supplemental Indenture") among AK
STEEL CORPORATION, a Delaware corporation ("AK Steel"), AK STEEL HOLDING
CORPORATION, a Delaware corporation ("Holding"), and FIFTH THIRD BANK, as
successor trustee to The Bank of New York (the "Trustee").
AK Steel, Holding and the Trustee are parties to an Indenture, dated
as of December 17, 1996 (the "Indenture"), providing, among other things, for
the authentication, delivery and administration of AK Steel's 9-1/8% Senior
Notes due 2006 (the "Notes").
AK Steel 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 9.02 of the Indenture, the Holders of at least a
majority in principal amount of the outstanding Notes have consented in writing
to the Proposed Amendments
AK Steel has directed the Trustee to execute and deliver this First
Supplemental Indenture 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 Holding, AK Steel and Armco Inc.
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 1.1 of the Indenture shall be amended to add
the following definitions in proper alphabetical order:
NY2:\841137\01\$10X01!.DOC\38055.0020
(i) "`domestic' means, with respect to any
Person, that such Person is organized and existing under
the laws of the United States, any State thereof or the
District of Columbia."; and
(ii) "`Restricted Subsidiary' means any
Subsidiary of AK Steel that AK Steel has not designated as
a Non-Recourse Subsidiary (or, if AK Steel has so
designated such Subsidiary, has thereafter removed such
designation) pursuant to Section 4.22(a) hereof. For the
avoidance of ambiguity, a Restricted Subsidiary is any
Subsidiary other than a Non-Recourse Subsidiary."
(b) The definition of "Consolidated Net Income" contained
in Section 1.1 of the Indenture shall be amended as follows:
(i) the word "Restricted" shall be inserted
immediately before the first reference to the word
"Subsidiary" in clause (a) thereof;
(ii) the parenthetical clause "(other than a
Non-Recourse Subsidiary)" shall be deleted in clause (a)
thereof;
(iii) the word "and" at the end of clause (e)
thereof shall be deleted;
(iv) the text "; and" shall replace the "." at
the end of clause (f) thereof; and
(v) a new clause (g) shall be inserted after
clause (f) thereof as follows:
"(g) solely for purposes of Section
4.7 hereof, special charges, costs and other
expenses (including restructuring charges and
associated investment banking, legal, accounting,
printing and related fees and expenses) recorded
by Holding, AK Steel or any Restricted Subsidiary
(and related tax effects) in connection with the
merger of Armco Inc. with and into AK Steel
pursuant to an Agreement and Plan of Merger dated
as of May 20, 1999, as it may be amended, among
Holding, AK Steel and Armco Inc. and any other
merger or other business combination transaction
involving Holding, AK Steel or any Restricted
Subsidiary, 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 Holding has
delivered to the Trustee an Officers'
Certificate, made in good faith by responsible
financial or accounting Officers of Holding, at
the time such special charges, costs and other
expenses are recorded, setting forth in
reasonable detail such special charges, costs and
other expenses."
(c) The definition of "Guarantor Subsidiary" contained in
Section 1.1 of the Indenture shall be amended in its entirety and
replaced with the following:
"`Guarantor Subsidiary' means (a) any domestic
Restricted Subsidiary or (b) any other Restricted
Subsidiary that is a Significant Subsidiary of which 80% or
more of the total voting power of Equity Interests or other
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interests (including partnership interests) entitled
(without regard to the occurrence of any contingency) to
vote in the election of directors, managers or trustees
thereof is at the time owned or controlled, directly or
indirectly, through one or more intermediaries, or both, by
AK Steel, which in each case executes a supplement to this
Indenture pursuant to which such Restricted Subsidiary
jointly and severally unconditionally guarantees the due
and punctual payment and performance of the Obligations and
assumes the other obligations of a Guarantor Subsidiary
pursuant to this Indenture, in the manner provided by this
Indenture."
(d) The definition of "Non-Recourse Subsidiary" in Section
1.1 of the Indenture shall be amended in its entirety and replaced
with the following:
"`Non-Recourse Subsidiary' means a Subsidiary
of AK Steel that is not a Restricted Subsidiary."
(e) The definition of "Permitted Credit Facility" or
"Facilities" in Section 1.1 of the Indenture shall be amended by
replacing the two references to the word "Guarantor" with the word
"Restricted" therein.
(f) The definition of "Permitted Investments" contained in
Section 1.1 of the Indenture shall be amended as follows:
(i) a ";" shall be inserted at the end of clause
(d) thereof;
(ii) each of the five references to the word
"Guarantor" in clauses (e) and (f) thereof shall be
replaced with the word "Restricted";
(iii) the word "and" at the end of clause (e)
thereof shall be deleted; and
(iv) the text "; and" shall be inserted at the
end of clause (f) thereof.
(g) The definition of "Wholly Owned Guarantor Subsidiary"
in Section 1.1 of the Indenture shall be amended in its entirety and
replaced with the following:
"`Wholly Owned Guarantor Subsidiary' means any
Wholly Owned Subsidiary that is a Restricted Subsidiary
(whether or not a Guarantor Subsidiary). For the avoidance
of doubt, not all Wholly Owned Guarantor Subsidiaries are
required to be Guarantor Subsidiaries."
(h) Section 4.5 of the Indenture shall be amended as
follows:
(i) the reference to "(d)" in clause (c) thereof
shall be replaced by "(c)"; and
(ii) the words "in the ordinary course of
business" shall be deleted from clause (d) thereof.
(i) Section 4.7 of the Indenture shall be amended by
inserting the word "Restricted" immediately before the first
reference to the word "Subsidiary" therein.
(j) Section 4.11 of the Indenture shall be amended by
inserting the word "Restricted" immediately before the first
reference to the word "Subsidiary" therein.
(k) Section 4.12 of the Indenture shall be amended as
follows:
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(i) the words "in the ordinary course of
business" shall be deleted from clause (c) thereof; and
(ii) the word "Guarantor" shall be replaced by
the word "Restricted" in clause (e) thereof.
(l) Section 4.14 of the Indenture shall be amended by
replacing the word "Guarantor" with the word "Restricted" therein.
(m) Section 4.15 of the Indenture shall be amended in its
entirety and replaced with the following:
"SECTION 4.15. Lines of Business. AK Steel shall
be permitted to engage in any business, either directly or
through any Subsidiary, provided that AK Steel and its
Subsidiaries, taken as a whole, remain principally engaged
in the same business, or any business reasonably related
thereto, in which they were engaged on the date on which
the Initial Securities were originally issued."
(n) Section 4.18 of the Indenture shall be amended by
replacing the word "Guarantor" with the word "Restricted" and by
replacing each of the two references to the words "any Guarantor
Subsidiary" with the words "such Restricted Subsidiary" therein.
(o) Section 4.19 of the Indenture shall be amended by
replacing the word "Guarantor" with the word "Restricted" therein.
(p) Article 4 of the Indenture shall be amended by
inserting after Section 4.21 thereof a new Section 4.22 as follows:
"SECTION 4.22. Designation of Non-Recourse
Subsidiaries and Restricted Subsidiaries. (a) AK Steel may
designate any of its Subsidiaries (including an existing or
newly formed or acquired Subsidiary) as a Non-Recourse
Subsidiary if (i) such Subsidiary has total assets of
$1,000 or less or (ii) such designation is effective
immediately upon such Person becoming a Subsidiary of
either AK Steel or any of its Restricted Subsidiaries.
Unless so designated as a Non-Recourse Subsidiary, any
Person that becomes a Subsidiary of AK Steel shall be
classified as a Restricted Subsidiary. Subject to Section
4.22(b) hereof, the designation as a Non-Recourse
Subsidiary may be removed. The designation of a
Non-Recourse Subsidiary or the removal of such designation
in compliance with Section 4.22(b) hereof shall be made by
the Board of Directors pursuant to a resolution delivered
to the Trustee and shall be effective as of the date
specified in the applicable resolution, which shall not be
prior to the date such resolution is delivered to the
Trustee.
(b) AK Steel shall not, and shall not permit any
of its Restricted Subsidiaries to, take any action or enter
into any transaction or series of transactions that would
result in a Person becoming a Restricted Subsidiary
(whether through an acquisition, the removal of the
designation as a Non-Recourse Subsidiary or otherwise)
unless, after giving effect to such action, transaction or
series of transactions:
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(i) on a pro forma basis, AK Steel
could issue at least $1.00 of additional Debt
pursuant to the Consolidated EBITDA Coverage
Ratio as set forth in the first paragraph of
Section 4.5 hereof;
(ii) such Restricted Subsidiary could
then issue, pursuant to Section 4.6 hereof, all
Debt as to which it is obligated at such time;
(iii) no Default or Event of Default
would occur or be continuing; and
(iv) there exist no Liens with respect
to the property or assets of such Restricted
Subsidiary other than Liens permitted to be
incurred under Section 4.12 hereof.
(c) AK Steel shall not, and shall not permit any
of its Restricted Subsidiaries to, take any action or enter
into any transaction or series of transactions that would
result in any such Restricted Subsidiary ceasing to be a
Subsidiary (other than a merger or consolidation with AK
Steel or another Restricted Subsidiary) unless, after
giving effect to such action, transaction or series of
transactions, either:
(i) (A) neither AK Steel nor any of
its Affiliates (other than a Person that is an
Affiliate by virtue of its ownership of Equity
Interests or control of AK Steel) shall own any
Equity Interests of such former Restricted
Subsidiary or any successor in interest to the
business thereof, and (B) there shall not exist
any Debt of such former Restricted Subsidiary or
any successor in interest to the business thereof
in favor of AK Steel or any of its Restricted
Subsidiaries; or
(ii) AK Steel and its Restricted
Subsidiaries would be permitted to make a
Restricted Payment in the amount of the aggregate
Investment (excluding (A) any Investment to the
extent of cash or the Fair Market Value of
property or assets other than cash received by AK
Steel or its Restricted Subsidiary, as the case
may be, in respect of or as a repayment of such
Investment, and (B) the amount of Debt of such
former Restricted Subsidiary received by AK Steel
or its Restricted Subsidiaries as part of the
consideration for the acquisition of the Equity
Interests or assets of such former Restricted
Subsidiary), if any, made in such former
Restricted Subsidiary after October 1, 1996."
(q) Section 5.1 of the Indenture shall be amended
by (i) inserting the word "Guarantor" immediately before
the word "Subsidiary" and (ii) deleting the parenthetical
clause "(other than a Non-Recourse Subsidiary)", in each
case, in the last paragraph thereof.
(r) Clause (a) of Section 10.4 of the Indenture
shall be amended as follows:
(i) the word "Guarantor" shall be
inserted immediately before the first reference
to the word "Subsidiary" therein;
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(ii) the parenthetical clause "(other
than a Non-Recourse Subsidiary)" shall be
deleted; and
(iii) the words "become a Guarantor
Subsidiary with respect to the Securities by
executing and delivering" shall be deleted and
replaced with the words "execute and deliver"
therein.
Section 2.2 Notification to Holders. AK Steel shall notify the
Holders in accordance with Section 9.02 of the Indenture of the execution of
this First Supplemental Indenture. Any failure of AK Steel to give such notice
to all Holders, or any defect therein, shall not impair or affect the validity
of this First Supplemental Indenture.
Section 2.3 Receipt by Trustee. In accordance with Sections 9.6 and
11.4 of the Indenture, the parties acknowledge that the Trustee has received an
Officers' Certificate and an Opinion of Counsel as conclusive evidence that this
First Supplemental Indenture complies with the applicable requirements of the
Indenture, including that the Proposed Amendments are authorized or permitted by
the Indenture.
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 First Supplemental Indenture or the Indenture or any provision herein or
therein contained.
Section 3.2 Governing Law. The rights and duties of AK Steel, Holding
and the Trustee under this First Supplemental Indenture shall, pursuant to New
York General Obligations Law Section 5-1401, be governed by the laws of the
State of New York.
Section 3.3 Separability Clause. In case any provision in this First
Supplemental Indenture shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
Section 3.4 Ratification of Indenture; First Supplemental Indenture
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 First
Supplemental Indenture 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 First Supplemental Indenture.
Section 3.5 Multiple Originals. The parties may sign any number of
copies of this First Supplemental Indenture. Each signed copy shall be an
original, but all of them shall represent the same agreement. One signed copy is
enough to prove this First Supplemental Indenture.
Section 3.6 Headings. The headings of the Articles and Sections of
this First Supplemental Indenture have been inserted for convenience of
reference only, are not intended to be considered a part hereof and shall not
modify or restrict any of the terms or provisions hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed as of the date first written above.
AK STEEL CORPORATION
By: /s/ Xxxxx X. Xxxxxxxxx
--------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Vice President, Treasurer
and Chief Financial Officer
AK STEEL HOLDING CORPORATION,
as Guarantor
By: /s/ Xxxxx X. Xxxxxxxxx
--------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Vice President, Treasurer
and Chief Financial Officer
FIFTH THIRD BANK,
as Trustee
By: /s/ Xxxxxxx X. Xxxx
--------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Assistant Vice President
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