Exhibit 4.16
GUARANTEE AGREEMENT
GUARANTEE AGREEMENT dated as of September 30, 1999 made by
Xxxxxxx Dynamics, a Delaware limited liability
company (the "GUARANTOR"), in favor of the holders from time to time of the
Notes referred to below (collectively the "OBLIGEES").
WHEREAS, AK Steel Corporation, a Delaware corporation (the
"COMPANY"), and AK Steel Holding Corporation, a
Delaware corporation, have entered into several Note Purchase Agreements dated
as of December 17, 1996 (as amended or otherwise modified from time to time,
collectively the "NOTE AGREEMENTS" and terms defined therein and not otherwise
defined herein are being used herein as so defined) with the institutional
purchasers listed in Schedule A thereto, pursuant to which the Company issued
previously and sold to such purchasers $250,000,000 aggregate principal amount
of its Senior Secured Notes due 2004 (the "NOTES"); and
WHEREAS, it is a requirement of the Note Agreements that
the Guarantor shall execute and deliver this Guarantee Agreement;
NOW, THEREFORE, in consideration of the premises the
Guarantor hereby agrees as follows:
SECTION 1. Guarantee. The Guarantor unconditionally and
irrevocably guarantees, as primary obligor and not merely as surety,
A. the punctual payment when due, whether at stated
maturity, by acceleration or otherwise, of all obligations of the
Company arising under the Notes and the Note Agreements, including
all extensions, modifications, substitutions, amendments and renewals
thereof, whether for principal, interest (including without
limitation interest on any overdue principal, premium and interest at
the rate specified in the Notes and interest accruing or becoming
owing both prior to and subsequent to the commencement of any
proceeding against or with respect to the Company under any chapter
of the Bankruptcy Code of 1978, 11 U.S.C. ss.101 et seq.), any
successor statute thereto or any similar state law, Make-Whole
Amount, fees, expenses, indemnification or otherwise, and
B. the due and punctual performance and observance by the
Company of all covenants, agreements and conditions on its part to be
performed and observed under the Notes and the Note Agreements;
(all such obligations are called the "GUARANTEED OBLIGATIONS"); provided that
the aggregate liability of the Guarantor hereunder in respect of the Guaranteed
Obligations shall not exceed at any time the lesser of (1) the amount of the
Guaranteed Obligations and (2) the maximum amount for which the Guarantor is
liable under this Guarantee Agreement without such liability being deemed a
fraudulent transfer under applicable Debtor Relief Laws (as hereinafter
defined), as determined by a court of competent jurisdiction. As used herein,
the term "DEBTOR RELIEF LAWS" means any applicable liquidation, conservatorship,
bankruptcy, moratorium, rearrangement, insolvency, reorganization or similar
NY2:\816862\02\H$@M02!.DOC\38055.0020
debtor relief laws affecting the rights of creditors generally from time to time
in effect.
The Guarantor also agrees to pay, in addition to the amount
stated above, any and all reasonable expenses (including reasonable counsel fees
and expenses) incurred by any Obligee in enforcing any rights under this
Guarantee Agreement or in connection with any amendment of this Guarantee
Agreement.
Without limiting the generality of the foregoing, this
Guarantee Agreement guarantees, to the extent provided herein, the payment of
all amounts which constitute part of the Guaranteed Obligations and would be
owed by any other Person to any Obligee but for the fact that they are
unenforceable or not allowable due to the existence of a bankruptcy,
reorganization or similar proceeding involving such Person.
SECTION 2. Guarantee Absolute. The obligations of the
Guarantor under Section 1 of this Guarantee Agreement constitute a present and
continuing guaranty of payment and not of collectability and the Guarantor
guarantees that the Guaranteed Obligations will be paid strictly in accordance
with the terms of the Notes and the Note Agreements, regardless of any law,
regulation or order now or hereafter in effect in any jurisdiction affecting any
of such terms or the rights of any Obligee with respect thereto. The obligations
of the Guarantor under this Guarantee Agreement are independent of the
Guaranteed Obligations, and a separate action or actions may be brought and
prosecuted against the Guarantor to enforce this Guarantee Agreement,
irrespective of whether any action is brought against the Company or any other
Person liable for the Guaranteed Obligations or whether the Company or any other
such Person is joined in any such action or actions. The liability of the
Guarantor under this Guarantee Agreement shall be primary, absolute,
irrevocable, and unconditional irrespective of:
A. any lack of validity or enforceability of any Guaranteed
Obligation, any Note, the Note Agreements or any agreement or
instrument relating thereto;
B. any change in the time, manner or place of payment of,
or in any other term of, all or any of the Guaranteed Obligations, or
any other amendment or waiver of or any consent to departure from any
Note, the Note Agreements or this Guarantee Agreement;
C. any taking, exchange, release or non-perfection of any
collateral, or any taking, release or amendment or waiver of or
consent to departure by the Guarantor or other Person liable, or any
other guarantee, for all or any of the Guaranteed Obligations;
D. any manner of application of collateral, or proceeds
thereof, to all or any of the Guaranteed Obligations, or any manner
of sale or other disposition of any collateral or any other assets of
the Company or any other Subsidiary;
E. any change, restructuring or termination of the
corporate structure or existence of the Company or any other
Subsidiary; or
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F. any other circumstance (including without limitation any
statute of limitations) that might otherwise constitute a defense,
offset or counterclaim available to, or a discharge of, the Company
or the Guarantor.
This Guarantee Agreement shall continue to be effective or
be reinstated, as the case may be, if at any time any payment of any of the
Guaranteed Obligations is rescinded or must otherwise be returned by any
Obligee, or any other Person upon the insolvency, bankruptcy or reorganization
of the Company or otherwise, all as though such payment had not been made.
SECTION 3. Waivers. The Guarantor hereby irrevocably
waives, to the extent permitted by applicable law:
A. promptness, diligence, presentment, notice of acceptance
and any other notice with respect to any of the Guaranteed
Obligations and this Guarantee Agreement;
B. any requirement that any Obligee or any other Person
protect, secure, perfect or insure any Lien or any property subject
thereto or exhaust any right or take any action against the Company
or any other Person or any collateral;
C. any defense, offset or counterclaim arising by reason of
any claim or defense based upon any action by any Obligee;
D. any duty on the part of any Obligee to disclose to the
Guarantor any matter, fact or thing relating to the business,
operation or condition of any Person and its assets now known or
hereafter known by such Obligee; and
E. any rights by which it might be entitled to require suit
on an accrued right of action in respect of any of the Guaranteed
Obligations or require suit against the Company or the Guarantor or
any other Person.
SECTION 4. Waiver of Subrogation and Contribution. The
Guarantor shall not assert, enforce, or otherwise exercise (A) any right of
subrogation to any of the rights, remedies, powers, privileges or liens of any
Obligee or any other beneficiary against the Company or any other obligor on the
Guaranteed Obligations or any collateral or other security, or (B) any right of
recourse, reimbursement, contribution, indemnification, or similar right against
the Company, and the Guarantor hereby waives any and all of the foregoing
rights, remedies, powers, privileges and the benefit of, and any right to
participate in, any collateral or other security given to any Obligee or any
other beneficiary to secure payment of the Guaranteed Obligations, until such
time as the Guaranteed Obligations have been paid in full.
SECTION 5. Representations and Warranties. The Guarantor
hereby represents and warrants as follows:
A. The Guarantor is a corporation duly organized, validly
existing and in good standing under the laws of its jurisdiction of
incorporation. The execution, delivery and performance of this
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Guarantee Agreement have been duly authorized by all necessary action
on the part of the Guarantor.
B. The execution, delivery and performance by the Guarantor
of this Guarantee Agreement will not (i) contravene, result in any
breach of, or constitute a default under, or result in the creation
of any Lien in respect of any property of the Guarantor or any
Subsidiary of the Guarantor under, any indenture, mortgage, deed of
trust, loan, purchase or credit agreement, lease, corporate charter
or by-laws, or any other material agreement or instrument to which
the Guarantor or any Subsidiary of the Guarantor is bound or by which
the Guarantor or any Subsidiary of the Guarantor or any of their
respective properties may be bound or affected, (ii) conflict with or
result in a breach of any of the terms, conditions or provisions of
any order, judgment, decree, or ruling of any court, arbitrator or
Governmental Authority applicable to the Guarantor or any Subsidiary
of the Guarantor or (iii) violate any provision of any statute or
other rule or regulation of any Governmental Authority applicable to
the Guarantor or any Subsidiary of the Guarantor.
C. The Guarantor and the Company are members of the same
consolidated group of companies and are engaged in related businesses
and the Guarantor will derive substantial direct and indirect benefit
from the execution and delivery of this Guarantee Agreement.
SECTION 6. Amendments, Etc. No amendment or waiver of any
provision of this Guarantee Agreement and no consent to any departure by the
Guarantor therefrom shall in any event be effective unless the same shall be in
writing and signed by the Required Holders, and then such waiver or consent
shall be effective only in the specific instance and for the specific purpose
for which given; provided that no amendment, waiver or consent shall, unless in
writing and signed by all Obligees, (i) limit the liability of or release the
Guarantor hereunder, (ii) postpone any date fixed for, or change the amount of,
any payment hereunder or (iii) change the percentage of Notes the holders of
which are, or the number of Obligees, required to take any action hereunder.
SECTION 7. Addresses for Notices. All notices and other
communications provided for hereunder shall be in writing and (A) by telecopy if
the sender on the same day sends a confirming copy of such notice by a
recognized overnight delivery service (charges prepaid), or (B) by registered or
certified mail with return receipt requested (postage prepaid), or (C) by a
recognized overnight delivery service (with charges prepaid). Such notice if
sent to the Guarantor shall be addressed to it at the address of the Guarantor
provided below its name on the signature page of this Guarantee Agreement or at
such other address as the Guarantor may hereafter designate by notice to each
holder of Notes, or if sent to any holder of Notes, shall be addressed to it as
set forth in the Note Agreements. Any notice or other communication herein
provided to be given to the holders of all outstanding Notes shall be deemed to
have been duly given if sent as aforesaid to each of the registered holders of
the Notes at the time outstanding at the address for such purpose of such holder
as it appears on the Note register maintained by the Company in accordance with
the provisions of Section 13.1 of the Note Agreements. Notices under this
Section 7 will be deemed given only when actually received.
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SECTION 8. No Waiver; Remedies. No failure on the part of
any Obligee to exercise, and no delay in exercising, any right hereunder shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right hereunder preclude any other or further exercise thereof or the exercise
of any other right. The remedies herein provided are cumulative and not
exclusive of any remedies provided by law.
SECTION 9. Continuing Guarantee. This Guarantee Agreement
is a continuing guarantee of payment and performance and shall (A) remain in
full force and effect until payment in full of the Guaranteed Obligations and
all other amounts payable under this Guarantee Agreement, (B) be binding upon
the Guarantor, its successors and assigns and (C) inure to the benefit of and be
enforceable by the Obligees and their successors, transferees and assigns.
SECTION 10. Jurisdiction and Process; Waiver of Jury Trial.
The Guarantor irrevocably submits to the non-exclusive in personam jurisdiction
of any New York State or federal court sitting in the Borough of Manhattan, The
City of New York, over any suit, action or proceeding arising out of or relating
to this Guarantee Agreement. To the fullest extent permitted by applicable law,
the Guarantor irrevocably waives and agrees not to assert, by way of motion, as
a defense or otherwise, any claim that it is not subject to the in personam
jurisdiction of any such court, any objection that it may now or hereafter have
to the laying of the venue of any such suit, action or proceeding brought in any
such court and any claim that any such suit, action or proceeding brought in any
such court has been brought in an inconvenient forum.
The Guarantor consents to process being served in any suit,
action or proceeding of the nature referred to in this Section by mailing a copy
thereof by registered or certified mail, postage prepaid, return receipt
requested, to the Guarantor at its address specified in Section 7 or at such
other address of which you shall then have been notified pursuant to said
Section. The Guarantor agrees that such service upon receipt (i) shall be deemed
in every respect effective service of process upon it in any such suit, action
or proceeding and (ii) shall, to the fullest extent permitted by applicable law,
be taken and held to be valid personal service upon and personal delivery to the
Guarantor. Notices hereunder shall be conclusively presumed received as
evidenced by a delivery receipt furnished by the United States Postal Service or
any recognized courier or overnight delivery service.
Nothing in this Section 10 shall affect the right of any
holder of a Note to serve process in any manner permitted by law, or limit any
right that the holders of any of the Notes may have to bring proceedings against
the Guarantor in the courts of any appropriate jurisdiction or to enforce in any
lawful manner a judgment obtained in one jurisdiction in any other jurisdiction.
THE GUARANTOR WAIVES TRIAL BY JURY IN ANY ACTION BROUGHT ON
OR WITH RESPECT TO THIS GUARANTEE AGREEMENT OR ANY OTHER DOCUMENT EXECUTED IN
CONNECTION HEREWITH.
SECTION 11. Governing Law. This Guarantee Agreement shall
be construed and enforced in accordance with, and the rights of the Guarantor
and the Obligees shall be governed by, the laws of the State of New York
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excluding choice-of-law principles of the law of such State that would require
the application of the laws of a jurisdiction other than such State.
[Signature on Following Page]
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IN WITNESS WHEREOF, the Guarantor has caused this Guarantee
Agreement to be duly executed and delivered as of the date first above written.
XXXXXXX DYNAMICS, L.L.C.
By: /s/ Xxxxx X. Xxxxxxxxx
------------------------------------------
Xxxxx X. Xxxxxxxxx
Vice President and Chief Financial Officer
Address: Xxxxxxx Dynamics LLC
c/o AK Steel Holding Corporation
000 Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxx 00000-0000
Attention: Xxxx X. Xxxxx, General Counsel
Facsimile: (000) 000-0000
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