Exhibit 4.5
SUPPLEMENTAL INDENTURE NO. 5
DATED AS OF OCTOBER 1, 1999
THIS SUPPLEMENTAL INDENTURE NO. 5 to the Indenture referred to below
is dated as of October 1, 1999, and is made by and among AK STEEL CORPORATION, a
Delaware corporation ("AK Steel"), AK STEEL HOLDING CORPORATION, a Delaware
Corporation ("AK Holding"), XXXXXXX DYNAMICS, L.L.C., a Delaware limited
liability company ("Xxxxxxx Dynamics" and, together with AK Holding, the
"Guarantors"), and FIFTH THIRD BANK, as trustee (the "Trustee").
Pursuant to Supplemental Indenture No. 4, dated as of September 30,
1999, to the Indenture referred to below, AK Steel, as successor by merger to
Armco Inc., an Ohio corporation ("Armco"), expressly assumed all of the
obligations of Armco under the Indenture, dated as of October 1, 1992 (the "Base
Indenture"), as previously amended and supplemented by Supplemental Indenture
No. 2, dated as of September 1, 1997, and by Supplemental Indenture No. 3, dated
as of July 30, 1999. The Base Indenture as so amended and supplemented (the
"Indenture"), relates to the 9% Senior Notes Due 2007 previously issued by Armco
and assumed by AK Steel (the "Notes"). Except as otherwise defined herein,
capitalized terms defined in the Indenture are used herein as therein defined
and, pursuant to and as contemplated by Section 1.01 of the Indenture, the term
"Company" as used herein shall mean AK Steel.
As a result of the merger of Armco with and into AK Steel, Xxxxxxx
Dynamics became a Restricted Subsidiary of AK Steel and, as such, is required,
pursuant to Section 304(a)(vi) of the Indenture, to issue a Guarantee of the
Notes. In addition, AK Steel and AK Holding wish to provide for the issuance by
AK Holding of a Guarantee of the Notes on the terms provided herein.
Pursuant to Section 10.01 of the Indenture, the Company and the
Trustee are permitted to amend the Indenture, without the consent of the holders
of the Notes, to provide for the issuance by any Person of a Guarantee of the
Notes.
The Company has directed the Trustee to execute and deliver this
Supplemental Indenture No. 5 in accordance with the terms of the Indenture.
NY2:\819728\06\HK$806!.DOC\38055.0020
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
AMENDMENTS TO INDENTURE
Section 1.1 Amendments to Indenture.
Effective as of the date first above written, the Indenture shall be amended as
follows:
(a) Section 203 of the Indenture shall be amended to add the
following definitions in proper alphabetical order:
"Xxxxxxx Dynamics" means Xxxxxxx Dynamics, L.L.C., a
Delaware limited liability company.
"Guarantors" means Holding and each Guarantor Subsidiary.
"Guarantor Subsidiary" means any Restricted Subsidiary that
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.
"Holding" means AK Steel Holding Corporation, a Delaware
corporation.
"Obligations" means the principal of, premium, if any, and
interest on the Notes and all other amounts due and payable
under the Indenture and the Notes and all other obligations
and liabilities of the Company whether direct or indirect,
absolute or contingent, due or to become due, now existing
or hereafter issued, which may arise, under, out of or in
connection with the Indenture and the Notes or any other
documents made, delivered or given in connection therewith,
whether on account of principal, premium, if any, interest,
reimbursement obligations, fees, indemnities, costs,
expenses (including without limitation all fees and
disbursements of counsel to the Trustee or the holders for
which AK Steel has become obligated pursuant to the terms
of the Indenture) or otherwise whether or not an allowable
claim against AK Steel under the Bankruptcy Code or
otherwise enforceable against AK Steel, and including, in
any event, interest and other liabilities accruing or
arising after the filing by or against AK Steel of a
petition under the Bankruptcy Code or that would have so
accrued or arisen but for the filing of such a petition.
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(b) There shall be added to the Indenture a new Article XV, to read
as follows:
ARTICLE XV
NOTE GUARANTEES
Section 15.01 Unconditional Note Guarantees.
(a) Each Guarantor, which shall include Holding, Xxxxxxx
Dynamics and each Restricted Subsidiary that shall hereafter
become a Guarantor Subsidiary, hereby jointly and severally
unconditionally Guarantees to each Holder of a Note
authenticated and delivered by the Trustee, and to the Trustee
on behalf of such Holder, the due and punctual payment and
performance of the Obligations (the "Note Guarantees") and
further agrees to pay any and all expenses (including, without
limitation, all fees and disbursements of counsel) that may be
paid or incurred by the Trustee or the Holders in enforcing
their rights under the Note Guarantees. In case of the failure
of the Company punctually to perform or make any such payment,
each Guarantor hereby jointly and severally agrees to cause
such payment and performance to be made punctually.
(b) Each Guarantor hereby jointly and severally agrees that
its obligations hereunder shall be unconditional, irrespective
of the validity, regularity or enforceability of such Note or
this Indenture, the absence of any action to enforce the same,
any exchange, or any release or amendment or waiver of any
term of any other Guarantee of, or any consent to departure
from any requirement of any other Guarantee of all or of any
of the Notes, the election by the Trustee or any of the
Holders in any proceeding under Chapter 11 of the Bankruptcy
Code of the application of Section 1111(b)(2) of the
Bankruptcy Code, any borrowing or grant of a Note interest by
AK Steel, as debtor-in-possession, under Section 364 of the
Bankruptcy Code, the disallowance, under Section 502 of the
Bankruptcy Code, of all or any portion of the claims of the
Trustee or any of the Holders for payment of any of the Notes,
any waiver or consent by the Holder of such Notes or by the
Trustee or either of them with respect to any provisions
thereof or of this Indenture, the obtaining of any judgment
against the Company or any action to enforce the same or any
other circumstances which might otherwise constitute a legal
or equitable discharge or defense of a guarantor. Each
Guarantor hereby waives the benefits of diligence,
presentment, demand of payment, or exhausts any right or take
any action against the Company or any other Person, filing of
claims with a court in the event of insolvency or bankruptcy
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of the Company, any right to require a proceeding first
against the Company, protest or notice with respect to such
Note or the Indebtedness evidenced thereby and all demands
whatsoever, and covenants that this Note Guarantee will not be
discharged except by complete performance of the obligations
contained in such Note and in this Note Guarantee. Each
Guarantor hereby agrees that, in the event of a default in
payment of principal (or premium, if any) or interest on such
Note, whether at the first scheduled maturity thereof, by
acceleration, call for redemption, purchase or otherwise,
legal proceedings may be instituted by the Trustee on behalf
of, or by, the Holder of such Note, subject to the terms and
conditions set forth in this Indenture, directly against each
Guarantor to enforce this Note Guarantee without first
proceeding against the Company. Each Guarantor agrees that if,
after the occurrence and during the continuance of an Event of
Default, the Trustee or any of the Holders are prevented by
applicable law from exercising their respective rights to
accelerate the maturity of the Notes, to collect interest on
the Notes, or to enforce or exercise any other right or remedy
with respect to the Notes, such Guarantor agrees to pay to the
Trustee for the account of the Holders, upon demand therefor,
the amount that would otherwise have been due and payable had
such rights and remedies been permitted to be exercised by the
Trustee or any of the Holders.
(c) Each Guarantor shall be subrogated to all rights of the
Holders of the Notes against the Company in respect of any
amounts paid by such Guarantor on account of such Note
pursuant to the provisions of its Note Guarantee or this
Indenture; provided, however, that no Guarantor shall be
entitled to enforce or to receive any payments arising out of,
or based upon, such right of subrogation until the principal
of (and premium, if any) and interest on all Notes issued
hereunder shall have been paid in full.
(d) Each Note Guarantee shall remain in full force and effect
and continue to be effective should any petition be filed by
or against the Company for liquidation or reorganization,
should the Company become insolvent or make an assignment for
the benefit of creditors or should a receiver or trustee be
appointed for all or any significant part of the Company's
assets, and shall, to the fullest extent permitted by law,
continue to be effective or be reinstated, as the case may be,
if at any time payment and performance of the Notes, is,
pursuant to applicable law, rescinded or reduced in amount, or
must otherwise be restored or returned by any obligee on the
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Notes, whether as a "voidable preference," "fraudulent
transfer," or otherwise, all as though such payment or
performance had not been made. In the event that any payment,
or any part thereof, is rescinded, reduced, restored or
returned, the Notes shall, to the fullest extent permitted by
law, be reinstated and deemed reduced only by such amount paid
and not so rescinded, reduced, restored or returned.
(e) Each Guarantor shall have the right to seek contribution
from any non-paying Guarantor so long as the exercise of such
right does not impair the rights of the Holders under such
Guarantor's Note Guarantee.
Section 15.02 Limitation of Guarantor's Liability. Each
Guarantor and, by its acceptance hereof, each Holder confirms that
it is the intention of all such parties that the guarantee by such
Guarantor pursuant to its Guarantee not constitute a fraudulent
transfer or conveyance for purposes of any Federal, state or
foreign law. To effectuate the foregoing intention, the Holders and
each Guarantor hereby irrevocably agree that the obligations of
each Guarantor under its Guarantee shall be limited to the maximum
amount as will, after giving effect to all other contingent and
fixed liabilities of such Guarantor and after giving effect to any
collections from payments made by or on behalf of any other
Guarantor in respect of the obligations of such other Guarantor
under its Guarantee pursuant to subsection (e) of Section 15.01
hereof, result in the obligations of such Guarantor under its
Guarantee not constituting a fraudulent conveyance or fraudulent
transfer under Federal, state or foreign law.
Section 15.03 Release of Note Guarantees.
(a) Notwithstanding anything to the contrary contained in this
Article 15, in the event that (i) any Guarantor shall cease to
be obligated under, or become entitled to be released from its
obligations in respect of, all Guarantees of Indebtedness of
the Company, other than the Notes, and (ii) no Default or
Event of Default shall have occurred and be continuing, then,
following compliance with the next following sentence, such
Guarantor shall be released from its obligations as a
Guarantor under this Indenture and the Note Guarantee of such
Guarantor shall be of no further force or effect. Upon
delivery by the Company to the Trustee of an Officers'
Certificate and an Opinion of Counsel with respect to the
matters set forth in clauses (i) and (ii) of the preceding
sentence, the Trustee shall execute any documents reasonably
required and reasonably acceptable in form and substance to
the Trustee to evidence the release of such Guarantor from its
obligations under its Note Guarantee.
(b) Concurrently with any sale or other disposition (other
than to Holding or any Subsidiary of Holding), whether by way
of merger, consolidation or otherwise, of all or substantially
all the assets and business or all of the capital stock of a
Guarantor permitted by and in accordance with the terms of
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this Indenture, and upon delivery by the Company to the
Trustee of an Officers' Certificate and an Opinion of Counsel
to the effect that such sale or other disposition was made by
the Company in accordance with the provisions of this
Indenture, the Trustee shall execute any documents reasonably
required and reasonably acceptable in form and substance to
the Trustee to evidence the release of such Guarantor from the
obligations under its Note Guarantee. Any Guarantor not
released from its obligations under its Note Guarantee and
under this Article 15 shall remain liable for the obligations
under its Note Guarantee and under this Article 15.
(c) Concurrently with the defeasance of the Notes under
Article 12 of the Indenture, the Guarantor Subsidiaries shall
be released from all of their obligations under their Note
Guarantees and under this Article 15, without any action on
the part of the Trustee or any Holder of Notes.
Article II
Miscellaneous
Section 2.1 Receipt by Trustee. In accordance with Sections
304(a)(vi), 10.03 and 14.04 of the 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. 5 complies with the
Indenture.
Section 2.2 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. 5 or the Indenture or any provision herein or
therein contained.
Section 2.3 Governing Law. This Supplemental Indenture No. 5 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 2.4 Separability Clause. In case any one or more of the
provisions contained in this Supplemental Indenture No. 5 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 2.5 Ratification of Indenture; Supplemental Indenture No. 5
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. 5 shall form a part of the Indenture for all purposes, and every
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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. 5.
Section 2.6 Counterparts. This Supplemental Indenture No. 5 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 2.7 Headings. The descriptive headings of the several
Articles of this Supplemental Indenture No. 5 were formulated, used and inserted
in this Supplemental Indenture No. 5 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. 5 to be duly executed as of the date first above written.
AK STEEL CORPORATION
By: /s/ Xxxx X. Xxxxx
-------------------------------------
Name: Xxxx X. Xxxxx
Title: Executive Vice President
AK STEEL HOLDING CORPORATION,
as Guarantor
By: /s/ Xxxx X. Xxxxx
-------------------------------------
Name: Xxxx X. Xxxxx
Title: Executive Vice President
XXXXXXX DYNAMICS, L.L.C.,
as Guarantor
By: AK Steel Corporation,
as Manager
By: /s/ Xxxx X. Xxxxx
------------------------------
Name: Xxxx X. Xxxxx
Title: Executive Vice President
FIFTH THIRD BANK,
as Trustee
By: /s/ Xxxxxxx X. Xxxx
-------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Assistant Vice President
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