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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): SEPTEMBER 30, 1999
AK STEEL HOLDING CORPORATION
(Exact name of Registrant as specified in its charter)
DELAWARE 001-13696 31-1401455
(State or Other Jurisdiction (Commission (I.R.S. Employer
of Incorporation) File Number) Identification No.)
703 CURTIS STREET
MIDDLETOWN, OHIO 45043-0001
(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code (513) 425-5000
NOT APPLICABLE
(Former Name or Former Address, if Changed Since Last Report)
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ITEM 1-4. NOT APPLICABLE.
ITEM 5. OTHER EVENTS.
As previously reported, AK Steel Holding Corporation
completed its acquisition of Armco Inc. ("Armco") on September 30, 1999. The
acquisition was effected by the merger of Armco with and into AK Steel
Corporation ("AK Steel"), pursuant to an Agreement and Plan of Merger, dated as
of May 20, 1999.
Prior to the merger, each of the indentures governing the
senior unsecured notes of AK Steel and Armco, and the note purchase agreements
relating to AK Steel's senior secured notes, were amended. These amendments
became effective upon the consummation of the merger and were intended to
facilitate the orderly conduct of business, including the regular payment of
dividends, by AK Steel following the consummation of the merger. In connection
with the merger, AK Steel assumed all of Armco's obligations under the
indentures governing Armco's senior unsecured notes.
As a result of the merger, Douglas Dynamics, L.L.C., a
former subsidiary of Armco ("Douglas Dynamics"), became a restricted subsidiary
of AK Steel and, pursuant to the terms of each of the indentures and note
purchase agreements, guaranteed the secured and unsecured senior notes,
including the notes originally issued by Armco. In addition, AK Steel Holding
Corporation, which had previously guaranteed AK Steel's senior secured and
unsecured notes, guaranteed the senior unsecured notes originally issued by
Armco that were assumed by AK Steel.
ITEM 6. NOT APPLICABLE.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND
EXHIBITS.
(c) Exhibits.
4.1 Indenture, dated as of October 1, 1992, relating to the 9%
Senior Notes Due 2007 of AK Steel, as successor to Armco (the
"9% Notes"). (Incorporated herein by reference to Exhibit 4 to
Armco's Registration Statement on Form S-3 (Registration No.
33-51806), as filed with the Commission on September 9, 1992.)
4.2 Supplemental Indenture No. 2, dated as of September 1, 1997,
relating to the 9% Notes. (Incorporated herein by reference to
Exhibit 4.4 to Armco's Registration Statement on Form S-4
(Registration No. 333-36691), as filed with the Commission on
September 30, 1997.)
* 4.3 Supplemental Indenture No. 3, dated as of July 30, 1999,
relating to the 9% Notes.
* 4.4 Supplemental Indenture No. 4, dated as of September 30, 1999,
relating to the 9% Notes.
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* 4.5 Supplemental Indenture No. 5, dated as of October 1, 1999,
relating to the 9% Notes.
4.6 Indenture, dated as of November 1, 1993, relating to the
8-7/8% Senior Notes Due 2008 of AK Steel, as successor to
Armco (the "8-7/8% Notes). (Incorporated herein by reference
to Exhibit 4 to Armco's Registration Statement on Form S-3
(Registration No. 33-50205), as filed with the Commission on
September 9, 1993.)
4.7 Supplemental Indenture No. 2, dated as of December 15, 1998,
relating to the 8-7/8% Notes. (Incorporated herein by
reference to Exhibit 4.3 to Armco's Registration Statement on
Form S-4 (Registration No. 333-71203), as filed with the
Commission on January 26, 1999.)
* 4.8 Supplemental Indenture No. 3, dated as of July 30, 1999,
relating to the 8-7/8% Notes.
* 4.9 Supplemental Indenture No. 4, dated as of September 30, 1999,
relating to the 8-7/8% Notes.
* 4.10 Supplemental Indenture No. 5, dated as of October 1, 1999,
relating to the 8-7/8% Notes.
* 4.11 First Supplemental Indenture, dated as of August 6, 1999,
relating to the 9-1/8% Senior Notes Due 2006.
* 4.12 Second Supplemental Indenture, dated as of October 1, 1999,
relating to AK Steel's 9-1/8% Senior Notes Due 2006.
* 4.13 First Supplemental Indenture, dated as of August 6, 1999,
relating to AK Steel's 7-7/8% Senior Notes Due 2009.
* 4.14 Second Supplemental Indenture, dated as of October 1, 1999,
relating to AK Steel's 7-7/8% Senior Notes Due 2009.
* 4.15 Supplemental Agreement, dated as of July 28, 1999, amending
the Note Purchase Agreements, dated as of December 17, 1996,
relating to AK Steel's Senior Secured Notes, Series A-E, due
2004.
* 4.16 Guarantee Agreement, dated as of September 30, 1999, by
Douglas Dynamics, L.L.C. pursuant to the Note Purchase
Agreements, dated as of December 17, 1996, as amended,
relating to AK Steel's Senior Secured Notes, Series A-E, due
2004.
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* Filed herewith.
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act
of 1934, the Registrant has duly caused this report to be signed on its behalf
by the undersigned thereto duly authorized.
AK STEEL HOLDING CORPORATION
Dated: October 21, 1999 By: /s/ John G. Hritz
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Name: John G. Hritz
Title: Executive Vice President
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EXHIBIT INDEX
EXHIBIT
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4.1 Indenture, dated as of October 1, 1992, relating to the 9%
Senior Notes Due 2007 of AK Steel, as successor to Armco (the
"9% Notes"). (Incorporated herein by reference to Exhibit 4 to
Armco's Registration Statement on Form S-3 (Registration No.
33-51806), as filed with the Commission on September 9, 1992.)
4.2 Supplemental Indenture No. 2, dated as of September 1, 1997,
relating to the 9% Notes. (Incorporated herein by reference to
Exhibit 4.4 to Armco's Registration Statement on Form S-4
(Registration No. 333-36691), as filed with the Commission on
September 30, 1997.)
* 4.3 Supplemental Indenture No. 3, dated as of July 30, 1999,
relating to the 9% Notes.
* 4.4 Supplemental Indenture No. 4, dated as of September 30, 1999,
relating to the 9% Notes.
* 4.5 Supplemental Indenture No. 5, dated as of October 1, 1999,
relating to the 9% Notes.
4.6 Indenture, dated as of November 1, 1993, relating to the
8-7/8% Senior Notes Due 2008 of AK Steel, as successor to
Armco (the "8-7/8% Notes). (Incorporated herein by reference
to Exhibit 4 to Armco's Registration Statement on Form S-3
(Registration No. 33-50205), as filed with the Commission on
September 9, 1993.)
4.7 Supplemental Indenture No. 2, dated as of December 15, 1998,
relating to the 8-7/8% Notes. (Incorporated herein by
reference to Exhibit 4.3 to Armco's Registration Statement on
Form S-4 (Registration No. 333-71203), as filed with the
Commission on January 26, 1999.)
* 4.8 Supplemental Indenture No. 3, dated as of July 30, 1999,
relating to the 8-7/8% Notes.
* 4.9 Supplemental Indenture No. 4, dated as of September 30, 1999,
relating to the 8-7/8% Notes.
* 4.10 Supplemental Indenture No. 5, dated as of October 1, 1999,
relating to the 8-7/8% Notes.
* 4.11 First Supplemental Indenture, dated as of August 6, 1999,
relating to the 9-1/8% Senior Notes Due 2006.
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* 4.12 Second Supplemental Indenture, dated as of October 1, 1999,
relating to AK Steel's 9-1/8% Senior Notes Due 2006.
* 4.13 First Supplemental Indenture, dated as of August 6, 1999,
relating to AK Steel's 7-7/8% Senior Notes Due 2009.
* 4.14 Second Supplemental Indenture, dated as of October 1, 1999,
relating to AK Steel's 7-7/8% Senior Notes Due 2009.
* 4.15 Supplemental Agreement, dated as of July 28, 1999, amending
the Note Purchase Agreements, dated as of December 17, 1996,
relating to AK Steel's Senior Secured Notes, Series A-E, due
2004.
* 4.16 Guarantee Agreement, dated as of September 30, 1999, by
Douglas Dynamics, L.L.C. pursuant to the Note Purchase
Agreements, dated as of December 17, 1996, as amended,
relating to AK Steel's Senior Secured Notes, Series A-E, due
2004.
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* Filed herewith.
6
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:
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(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/ J. L. Bertsch
------------------------------------
Name: J. L. Bertsch
Title: Vice President
FIFTH THIRD BANK,
as Trustee
By: /s/ Gregory R. Hahn
------------------------------------
Name: Gregory R. Hahn
Title: Assistant Vice President
7
Exhibit 4.4
SUPPLEMENTAL INDENTURE NO. 4
DATED AS OF SEPTEMBER 30, 1999
THIS SUPPLEMENTAL INDENTURE NO. 4 to the Indenture referred to below
is dated as of September 30, 1999 (this "Supplemental Indenture No. 4") among
ARMCO INC., an Ohio Corporation ("Armco"), AK STEEL CORPORATION, a Delaware
corporation ("AK Steel"), and FIFTH THIRD BANK, as trustee (the "Trustee").
Armco 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 by Supplemental Indenture No. 3, dated as of July 30, 1999
("Supplemental Indenture No. 3" and, together with the Base Indenture and
Supplemental Indenture No. 2, as so amended and supplemented, the "Indenture")
providing, among other things, for the authentication, delivery and
administration of Armco's 9% Senior Notes due 2007 (the "Notes").
Pursuant to an Agreement and Plan of Merger, dated as of May 20, 1999
(the "Merger Agreement"), among Armco, AK Steel Holding Corporation, a Delaware
corporation ("AK Holding"), and AK Steel, on or about September 30, 1999 Armco
shall be merged with and into AK Steel, with AK Steel as the surviving
corporation.
Pursuant to Section 310 of Supplemental Indenture No. 2, upon a
merger as described above, the surviving entity of such merger shall expressly
assume all of the obligations of Armco in respect of the Notes and the Indenture
pursuant to a supplemental indenture satisfactory to the Trustee.
Armco has directed the Trustee to execute and deliver this
Supplemental Indenture No. 4 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:
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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 Effectiveness. This Supplemental Indenture No. 4 shall
become effective upon (i) the execution and delivery hereof by Armco, AK Steel
and the Trustee and (ii) the consummation of the merger contemplated by the
Merger Agreement (the "Effective Time").
Article II
assumption of obligations
Section 2.1 Assumption of Obligations. In accordance with Section 310
of Supplemental Indenture No. 2, on and after the Effective Time, AK Steel
shall, and by this Supplemental Indenture No. 4 does, hereby assume the due and
punctual payment of the principal of, premium, if any, and interest on all the
Notes, according to their tenor, and the due and punctual performance and
observance of all of the covenants and conditions of the Indenture to be
performed by Armco.
Section 2.2 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. 4 complies with 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 Supplemental Indenture No. 4 or the Indenture or any provision herein or
therein contained.
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Section 3.2 Governing Law. This Supplemental Indenture No. 4 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. 4 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. 4
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. 4 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. 4.
Section 3.5 Counterparts. This Supplemental Indenture No. 4 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. 4 were formulated, used and inserted
in this Supplemental Indenture No. 4 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. 4 to be duly executed as of the date first above written.
ARMCO INC.
By: /s/ Jerry W. Albright
----------------------------------------
Name: Jerry W. Albright
Title: Vice President
and Chief Financial Officer
AK STEEL CORPORATION
By: /s/ John G. Hritz
----------------------------------------
Name: John G. Hritz
Title: Executive Vice President
and General Counsel
FIFTH THIRD BANK,
as Trustee
By: /s/ Gregory R. Hahn
----------------------------------------
Name: Gregory R. Hahn
Title: Assistant Vice President
4
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"), DOUGLAS DYNAMICS, L.L.C., a Delaware limited
liability company ("Douglas 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, Douglas
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
<PAGE>
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:
"Douglas Dynamics" means Douglas 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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<PAGE>
(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, Douglas
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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<PAGE>
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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<PAGE>
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
5
<PAGE>
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
6
<PAGE>
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.
7
<PAGE>
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/ John G. Hritz
-------------------------------------
Name: John G. Hritz
Title: Executive Vice President
AK STEEL HOLDING CORPORATION,
as Guarantor
By: /s/ John G. Hritz
-------------------------------------
Name: John G. Hritz
Title: Executive Vice President
DOUGLAS DYNAMICS, L.L.C.,
as Guarantor
By: AK Steel Corporation,
as Manager
By: /s/ John G. Hritz
------------------------------
Name: John G. Hritz
Title: Executive Vice President
FIFTH THIRD BANK,
as Trustee
By: /s/ Gregory R. Hahn
-------------------------------------
Name: Gregory R. Hahn
Title: Assistant Vice President
8
Exhibit 4.8
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 STAR BANK, as
trustee (the "Trustee").
The Company and the Trustee are parties to an Indenture,
dated as of November 1, 1993 (the "Base Indenture"), as amended and
supplemented, including by Supplemental Indenture No. 2 dated as of December 15,
1998 ("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 8-7/8% Senior
Notes due 2008 (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:
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<PAGE>
(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
2
<PAGE>
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
3
<PAGE>
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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<PAGE>
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.
5
<PAGE>
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.
6
<PAGE>
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/ J. L. Bertsch
-----------------------------------
Name: J. L. Bertsch
Title: Vice President
STAR BANK,
as Trustee
By: /s/ Robert T. Jones
-----------------------------------
Name: Robert T. Jones
Title: Vice President and Trust Officer
7
Exhibit 4.9
SUPPLEMENTAL INDENTURE NO. 4
DATED AS OF SEPTEMBER 30, 1999
THIS SUPPLEMENTAL INDENTURE NO. 4 to the Indenture referred to below
is dated as of September 30, 1999 (this "Supplemental Indenture No. 4") among
ARMCO INC., an Ohio Corporation ("Armco"), AK STEEL CORPORATION, a Delaware
corporation ("AK Steel"), and FIRSTSTAR BANK, N.A. (formerly known as Star Bank,
N.A.), as trustee (the "Trustee").
Armco and the Trustee are parties to an Indenture, dated as of
November 1, 1993 (the "Base Indenture"), as amended and supplemented, including
by Supplemental Indenture No. 2, dated as of December 15, 1998 ("Supplemental
Indenture No. 2") and by Supplemental Indenture No. 3, dated as of July 30, 1999
("Supplemental Indenture No. 3" and, together with the Base Indenture and
Supplemental Indenture No. 2, as so amended and supplemented, the "Indenture")
providing, among other things, for the authentication, delivery and
administration of Armco's 8-7/8% Senior Notes due 2008 (the "Notes").
Pursuant to an Agreement and Plan of Merger, dated as of May 20, 1999
(the "Merger Agreement"), among Armco, AK Steel Holding Corporation, a Delaware
corporation ("AK Holding"), and AK Steel, on or about September 30, 1999 Armco
shall be merged with and into AK Steel, with AK Steel as the surviving
corporation.
Pursuant to Section 310 of Supplemental Indenture No. 2, upon a
merger as described above, the surviving entity of such merger shall expressly
assume all of the obligations of Armco in respect of the Notes and the Indenture
pursuant to a supplemental indenture satisfactory to the Trustee.
Armco has directed the Trustee to execute and deliver this
Supplemental Indenture No. 4 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:
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<PAGE>
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 Effectiveness. This Supplemental Indenture No. 4 shall
become effective upon (i) the execution and delivery hereof by Armco, AK Steel
and the Trustee and (ii) the consummation of the merger contemplated by the
Merger Agreement (the "Effective Time").
Article II
Assumption of Obligations
Section 2.1 Assumption of Obligations. In accordance with Section 310
of Supplemental Indenture No. 2, on and after the Effective Time, AK Steel
shall, and by this Supplemental Indenture No. 4 does, hereby assume the due and
punctual payment of the principal of, premium, if any, and interest on all the
Notes, according to their tenor, and the due and punctual performance and
observance of all of the covenants and conditions of the Indenture to be
performed by Armco.
Section 2.2 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. 4 complies with 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 Supplemental Indenture No. 4 or the Indenture or any provision herein or
therein contained.
2
<PAGE>
Section 3.2 Governing Law. This Supplemental Indenture No. 4 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. 4 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. 4
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. 4 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. 4.
Section 3.5 Counterparts. This Supplemental Indenture No. 4 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. 4 were formulated, used and inserted
in this Supplemental Indenture No. 4 for convenience only and shall not be
deemed to affect the meaning or construction of any of the provisions hereof.
3
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture No. 4 to be duly executed as of the date first above written.
ARMCO INC.
By: /s/ Jerry W. Albright
---------------------------------------
Name: Jerry W. Albright
Title: Vice President
and Chief Financial Officer
AK STEEL CORPORATION
By: /s/ James L. Wainscott
---------------------------------------
Name: James L. Wainscott
Title: Vice President, Treasurer
and Chief Financial Officer
FIRSTSTAR BANK, N.A.,
as Trustee
By: /s/ Robert T. Jones
---------------------------------------
Name: Robert T. Jones
Title: Vice President
and Trust Officer
4
Exhibit 4.10
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"), DOUGLAS DYNAMICS, L.L.C., a Delaware limited
liability company ("Douglas Dynamics" and, together with AK Holding, the
"Guarantors"), and FIRSTSTAR BANK, N.A. (formerly known as Star Bank, N.A.), 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 November 1, 1993 (the
"Base Indenture"), as previously amended and supplemented by Supplemental
Indenture No. 2, dated as of December 15, 1998, 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 8-7/8% Senior Notes Due 2008
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, Douglas
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.
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<PAGE>
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:
"Douglas Dynamics" means Douglas 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.
2
<PAGE>
(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, Douglas
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
3
<PAGE>
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
4
<PAGE>
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
5
<PAGE>
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
6
<PAGE>
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.
7
<PAGE>
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/ John G. Hritz
-----------------------------------------
Name: John G. Hritz
Title: Executive Vice President
AK STEEL HOLDING CORPORATION,
as Guarantor
By: /s/ John G. Hritz
-----------------------------------------
Name: John G. Hritz
Title: Executive Vice President
DOUGLAS DYNAMICS, L.L.C.,
as Guarantor
By: AK Steel Corporation,
as Manager
By: /s/ John G. Hritz
----------------------------------
Name: John G. Hritz
Title: Executive Vice President
FIRSTSTAR BANK, N.A,
as Trustee
By: /s/ Robert T. Jones
-----------------------------------------
Name: Robert T. Jones
Title: Vice President
and Trust Officer
8
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:
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<PAGE>
(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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<PAGE>
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:
3
<PAGE>
(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:
4
<PAGE>
(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;
5
<PAGE>
(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.
6
<PAGE>
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/ James L. Wainscott
--------------------------------------
Name: James L. Wainscott
Title: Vice President, Treasurer
and Chief Financial Officer
AK STEEL HOLDING CORPORATION,
as Guarantor
By: /s/ James L. Wainscott
--------------------------------------
Name: James L. Wainscott
Title: Vice President, Treasurer
and Chief Financial Officer
FIFTH THIRD BANK,
as Trustee
By: /s/ Gregory R. Hahn
--------------------------------------
Name: Gregory R. Hahn
Title: Assistant Vice President
7
Exhibit 4.12
SECOND SUPPLEMENTAL INDENTURE
DATED AS OF OCTOBER 1, 1999
THIS SECOND SUPPLEMENTAL INDENTURE 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"), DOUGLAS DYNAMICS, L.L.C., a Delaware limited
liability company ("Douglas Dynamics"), and FIFTH THIRD BANK, as successor
trustee to The Bank of New York (the "Trustee").
AK Steel, AK Holding and the Trustee are parties to an Indenture,
dated as of December 17, 1996, as amended and supplemented by the First
Supplemental Indenture, dated as of August 6, 1999 (as so amended and
supplemented, the "Indenture"). This Indenture relates to the 9-1/8% Senior
Notes Due 2006 of AK Steel (the "Notes"). Except as otherwise defined herein,
capitalized terms defined in the Indenture are used herein as therein defined.
As a result of the merger of Armco Inc., an Ohio corporation, with
and into AK Steel, Douglas Dynamics became a Restricted Subsidiary of AK Steel
and, as such, is required pursuant to Section 10.4 of the Indenture to
unconditionally guarantee the obligations of AK Steel under the Notes and the
Indenture on the terms set forth in Article 10 of the Indenture.
Pursuant to Section 9.1 of the Indenture, AK Steel, AK Holding and
the Trustee are permitted to amend the Indenture or the Notes without notice to
or consent of any Holder to add guarantees with respect to the Notes.
AK Steel has directed the Trustee to execute and deliver this Second
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
ADDITION OF GUARANTOR
Section 1.1 Unconditional Senior Note Guarantee. Douglas Dynamics
hereby jointly and severally with each of the Guarantors, unconditionally
guarantees to each Holder of a Security 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 "Senior Note Guarantee") 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 Senior Note Guarantee. In
case of the failure of AK Steel punctually to perform or make any such payment,
Douglas Dynamics hereby jointly and severally with each other Guarantor agrees
to cause such payment and performance to be made punctually.
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<PAGE>
Section 1.2. Guarantor Bound by Terms of Indenture. In accordance
with Section 10.4 of the Indenture, Douglas Dynamics hereby acknowledges and
agrees that it is subject to the provisions (including, without limitation, the
representations and warranties contained in Article 10 and Article 11 and the
limitations set forth in Section 10.2) of the Indenture as a Guarantor
Subsidiary.
Section 1.3 Notification to Holders. AK Steel shall notify the
Holders in accordance with Section 9.1 of the Indenture of the execution of this
Second 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 Second Supplemental Indenture.
Section 1.4 Receipt by Trustee. In accordance with Sections 9.6, 10.4
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 Second Supplemental Indenture complies with the applicable requirements of
the Indenture.
ARTICLE II
MISCELLANEOUS
Section 2.1 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 Second Supplemental Indenture or the Indenture or any provision herein
or therein contained.
Section 2.2 Governing Law. The rights and duties of AK Steel, AK
Holding, Douglas Dynamics and the Trustee under this Second 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 2.3 Separability Clause. In case any provision in this Second
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 2.4 Ratification of Indenture; Second 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 Second
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 Second Supplemental Indenture.
Section 2.5 Multiple Originals. The parties may sign any number of
copies of this Second 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 Second Supplemental Indenture.
2
<PAGE>
Section 2.6 Headings. The headings of the Articles and Sections of
this Second 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.
IN WITNESS WHEREOF, the parties hereto have caused this Second
Supplemental Indenture to be duly executed as of the date first written above.
AK STEEL CORPORATION
By: /s/ John G. Hritz
-----------------------------------------
Name: John G. Hritz
Title: Executive Vice President
AK STEEL HOLDING CORPORATION,
as Guarantor
By: /s/ John G. Hritz
-----------------------------------------
Name: John G. Hritz
Title: Executive Vice President
DOUGLAS DYNAMICS, L.L.C.,
as Guarantor
By: AK Steel Corporation,
as Manager
By: /s/ John G. Hritz
-----------------------------------
Name: John G. Hritz
Title: Executive Vice President
FIFTH THIRD BANK,
as Trustee
By: /s/ Gregory R. Hahn
-----------------------------------------
Name: Gregory R. Hahn
Title: Assistant Vice President
3
Exhibit 4.13
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 trustee
(the "Trustee").
AK Steel, Holding and the Trustee are parties to an Indenture, dated
as of February 10, 1999 (the "Indenture"), providing among other things, for the
authentication, delivery and administration of AK Steel's 7-7/8% Senior Notes
due 2009 (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:
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<PAGE>
(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
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
2
<PAGE>
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 4.7 of the Indenture shall be amended by
inserting the word "Restricted" immediately before the first
reference to the word "Subsidiary".
(i) Section 4.11 of the Indenture shall be amended by
inserting the word "Restricted" immediately before the first
reference to the word "Subsidiary" therein.
(j) Section 4.12 of the Indenture shall be amended by
replacing the word "Guarantor" with the word "Restricted" in clause
(e) thereof.
(k) Section 4.14 of the Indenture shall be amended by
replacing the word "Guarantor" with the word "Restricted" therein.
(l) 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."
3
<PAGE>
(m) 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.
(n) Section 4.19 of the Indenture shall be amended by
replacing the word "Guarantor" with the word "Restricted" therein.
(o) 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:
(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
4
<PAGE>
(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."
(p) 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.
(q) 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;
(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.
5
<PAGE>
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.
6
<PAGE>
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/ James L. Wainscott
------------------------------------------
Name: James L. Wainscott
Title: Vice President, Treasurer and
Chief Financial Officer
AK STEEL HOLDING CORPORATION,
as Guarantor
By: /s/ James L. Wainscott
------------------------------------------
Name: James L. Wainscott
Title: Vice President, Treasurer and
Chief Financial Officer
FIFTH THIRD BANK,
as Trustee
By: /s/ Gregory R. Hahn
------------------------------------------
Name: Gregory R. Hahn
Title: Assistant Vice President
7
Exhibit 4.14
SECOND SUPPLEMENTAL INDENTURE
DATED AS OF OCTOBER 1, 1999
THIS SECOND SUPPLEMENTAL INDENTURE 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"), DOUGLAS DYNAMICS, L.L.C., a Delaware limited
liability company ("Douglas Dynamics"), and FIFTH THIRD BANK, as trustee (the
"Trustee").
AK Steel, AK Holding and the Trustee are parties to an Indenture,
dated as of February 10, 1999, as amended and supplemented by the First
Supplemental Indenture, dated as of August 6, 1999 (as so amended and
supplemented, the "Indenture"). This Indenture relates to the 7-7/8% Senior
Notes Due 2009 of AK Steel (the "Notes"). Except as otherwise defined herein,
capitalized terms defined in the Indenture are used herein as therein defined.
As a result of the merger of Armco Inc., an Ohio corporation, with
and into AK Steel, Douglas Dynamics became a Restricted Subsidiary of AK Steel
and, as such, is required pursuant to Section 10.4 of the Indenture to
unconditionally guarantee the obligations of AK Steel under the Notes and the
Indenture on the terms set forth in Article 10 of the Indenture.
Pursuant to Section 9.1 of the Indenture, AK Steel, AK Holding and
the Trustee are permitted to amend the Indenture or the Notes without notice to
or consent of any Holder to add guarantees with respect to the Notes.
AK Steel has directed the Trustee to execute and deliver this Second
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
ADDITION OF GUARANTOR
Section 1.1 Unconditional Senior Note Guarantee. Douglas Dynamics
hereby jointly and severally with each of the Guarantors, unconditionally
guarantees to each Holder of a Security 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 "Senior Note Guarantee") 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 Senior Note Guarantee. In
case of the failure of AK Steel punctually to perform or make any such payment,
Douglas Dynamics hereby jointly and severally with each other Guarantor agrees
to cause such payment and performance to be made punctually.
NY2:\819707\06\HKHN06!.DOC\38055.0020
<PAGE>
Section 1.2. Guarantor Bound by Terms of Indenture. In accordance
with Section 10.4 of the Indenture, Douglas Dynamics hereby acknowledges and
agrees that it is subject to the provisions (including, without limitation, the
representations and warranties contained in Article 10 and Article 11 and the
limitations set forth in Section 10.2) of the Indenture as a Guarantor
Subsidiary.
Section 1.3 Notification to Holders. AK Steel shall notify the
Holders in accordance with Section 9.1 of the Indenture of the execution of this
Second 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 Second Supplemental Indenture.
Section 1.4 Receipt by Trustee. In accordance with Sections 9.6, 10.4
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 Second Supplemental Indenture complies with the applicable requirements of
the Indenture.
ARTICLE II
MISCELLANEOUS
Section 2.1 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 Second Supplemental Indenture or the Indenture or any provision herein
or therein contained.
Section 2.2 Governing Law. The rights and duties of AK Steel, AK
Holding, Douglas Dynamics and the Trustee under this Second 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 2.3 Separability Clause. In case any provision in this Second
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 2.4 Ratification of Indenture; Second 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 Second
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 Second Supplemental Indenture.
Section 2.5 Multiple Originals. The parties may sign any number of
copies of this Second 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 Second Supplemental Indenture.
2
<PAGE>
Section 2.6 Headings. The headings of the Articles and Sections of
this Second 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.
IN WITNESS WHEREOF, the parties hereto have caused this Second
Supplemental Indenture to be duly executed as of the date first written above.
AK STEEL CORPORATION
By: /s/ John G. Hritz
-------------------------------------------
Name: John G. Hritz
Title: Executive Vice President
AK STEEL HOLDING CORPORATION,
as Guarantor
By: /s/ John G. Hritz
-------------------------------------------
Name: John G. Hritz
Title: Executive Vice President
DOUGLAS DYNAMICS, L.L.C.,
as Guarantor
By: AK Steel Corporation,
as Manager
By: /s/ John G. Hritz
-------------------------------------
Name: John G. Hritz
Title:Executive Vice President
FIFTH THIRD BANK,
as Trustee
By: /s/ Gregory R. Hahn
-------------------------------------------
Name: Gregory R. Hahn
Title: Assistant Vice President
3
Exhibit 4.15
AK STEEL CORPORATION
(AK STEEL HOLDING CORPORATION, as Guarantor)
------------------------
SUPPLEMENTAL AGREEMENT
Dated as of July 28, 1999
amending the
Note Purchase Agreements dated as of December 17, 1996
------------------------
Senior Secured Notes, Series A-E, due 2004
NY2:\830467\01\HSSJ01!.DOC\38055.0020
<PAGE>
AK STEEL CORPORATION
AK STEEL HOLDING CORPORATION
SUPPLEMENTAL AGREEMENT
as of July 28, 1999
Re: Senior Secured Notes, Series A-E, due 2004
TO THE SEVERAL NOTEHOLDERS WHOSE
NAMES APPEAR IN THE ACCEPTANCE
FORM AT THE END HEREOF
Ladies and Gentlemen:
AK STEEL CORPORATION, a Delaware corporation (the
"COMPANY"), and AK STEEL HOLDING CORPORATION, a Delaware corporation ("HOLDING"
and, together with the Company, individually an "OBLIGOR" and collectively the
"OBLIGORS"), hereby agree with you as follows:
SECTION 1. Original Note Purchase Agreements and the Notes;
Proposed Amendments. Pursuant to the several Note Purchase Agreements dated as
of December 17, 1996 (the "ORIGINAL NOTE PURCHASE AGREEMENTS") entered into by
the Obligors with the institutional investors named in Schedule A thereto, the
Company issued and sold $250,000,000 aggregate principal amount of its Senior
Secured Notes, Series A-E, due 2004 (the "NOTES"), all of which remain
outstanding on the date hereof. Unless the context otherwise requires,
capitalized terms used herein without definition have the respective meanings
ascribed thereto in the Original Note Purchase Agreements.
The Obligors have entered into an Agreement and Plan of
Merger, dated as of May 20, 1999, as amended (the "MERGER AGREEMENT"), with
Armco Inc. ("ARMCO") pursuant to which Armco will be merged with and into the
Company and the separate corporate existence of Armco will cease (the "MERGER").
In connection therewith the Company has solicited consents from the holders of
its 9 1/8% Senior Notes Due 2006 and its 7 7/8% Senior Notes Due 2009 pursuant
to a Consent Solicitation Statement dated July 19, 1999 (THE "HIGH YIELD NOTES
CONSENT SOLICITATION"). In connection therewith the Obligors also propose to
amend the Original Note Purchase Agreements as hereinafter set forth (the
Original Note Purchase Agreements as so amended are sometimes called the
"AMENDED NOTE PURCHASE AGREEMENTS"), to permit certain adjustments to
Consolidated Net Income in connection with permitted Restricted Payments, to
eliminate the requirement that certain Subsidiaries execute and deliver
Subsidiary Guarantees and to permit the Company and its Subsidiaries to continue
to engage in certain lines of business after giving effect to the Merger.
SECTION 2. Representations and Warranties of the Obligors.
The Obligors jointly and severally represent and warrant to you as follows:
<PAGE>
Section 2.1. Organization, Authorization, Etc. Each Obligor
is a corporation duly organized, validly existing and in good standing under the
laws of Delaware, and has all requisite power and authority to execute, deliver
and perform its obligations under this Supplemental Agreement and the Amended
Note Purchase Agreements.
The execution and delivery of this Supplemental Agreement
and the performance of this Supplemental Agreement and the Amended Note Purchase
Agreements have been duly authorized by all necessary action on the part of each
Obligor. This Supplemental Agreement and the Amended Note Purchase Agreements
are legal, valid and binding obligations of the Obligors, enforceable against
the Obligors in accordance with their respective terms, except as enforceability
may be limited by (a) applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or other similar laws affecting the enforcement of
creditors' rights and remedies generally and (b) general principles of equity,
including principles of commercial reasonableness, good faith and fair dealing
(regardless of whether such enforceability is considered in a proceeding in
equity or at law).
Section 2.2. Compliance with Laws, Other Instruments, Etc.
The execution, delivery and performance by the Obligors of this Supplemental
Agreement and the Amended Note Purchase Agreements do not and will not (A)
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 Obligors or any of
their respective Subsidiaries under, any indenture, mortgage, deed of trust,
loan, purchase or credit agreement, lease, corporate charter or by-laws, or any
other agreement or instrument to which the Obligors or any of their respective
Subsidiaries is bound or by which the Obligors or any of their respective
Subsidiaries or any of their respective properties may be bound or affected, (B)
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 Obligors or any of their respective
Subsidiaries or (C) violate any provision of any statute or other rule or
regulation of any Governmental Authority applicable to the Obligors or any of
their respective Subsidiaries.
Section 2.3. Governmental Authorizations, Etc. No consent,
approval or authorization of, or registration, filing or declaration with, any
Governmental Authority is required for the validity of the execution, delivery
or performance by either of the Obligors of this Supplemental Agreement.
Section 2.4. No Default, etc. No Event of Default or
Default has occurred and is continuing, and neither Obligor nor any of their
respective Subsidiaries is in default (whether or not waived) in the performance
or observance of any of the terms, covenants or conditions contained in any
instrument evidencing any Indebtedness and there is no pending request by the
Obligors (except pursuant to this Supplemental Agreement and the High Yield
Notes Consent Solicitation) or any of their respective Subsidiaries for any
amendment or waiver in respect of any contemplated or possible default with
respect to such Indebtedness and no event has occurred and is continuing which,
with notice or lapse of time or both, would become such a default.
Section 2.5. No Undisclosed Fees. Neither Obligor has,
directly or indirectly, paid or caused to be paid any consideration (as
supplemental or additional interest, a fee or otherwise) to any holder of Notes
2
<PAGE>
or other Indebtedness in order to induce such holder to enter into this
Supplemental Agreement or give its consent as requested by the High Yield Notes
Consent Solicitation or take any other action in connection with the
transactions contemplated hereby, nor has either Obligor agreed to make any such
payment, except as contemplated by the High Yield Notes Consent Solicitation and
Section 5.7 of this Supplemental Agreement.
SECTION 3.Representation of the Noteholder. You represent
to the Obligors that you are the beneficial owner of Notes of the series and in
the aggregate unpaid principal amount or amounts set forth below your name in
the acceptance form of this Supplemental Agreement.
Section 4.Amendments of Original Note Purchase Agreements,
Etc. The Original Note Purchase Agreements are amended pursuant to Section 18
thereof, as follows:
A. Section 1.3(b) is amended to read as follows:
"(b) The obligations of the Obligors hereunder
and under the Other Agreements (including without
limitation the obligations of Holding under the Parent
Guarantee) and the Notes will be unconditionally guaranteed
from time to time by certain Subsidiaries as provided in
Section 9.6, in each case pursuant to a subsidiary
guarantee substantially in the form of Exhibit 1.3
(individually a `SUBSIDIARY GUARANTEE' and collectively the
`SUBSIDIARY GUARANTEES')."
B. Section 9.6 is amended by changing the first sentence
thereof to read as follows:
"Forthwith after any Person becomes a Subsidiary (other than a
Non-Recourse Subsidiary or a Non-Guarantor Subsidiary) after July 1,
1999 or any other Subsidiary that at the time is a Non-Guarantor
Subsidiary becomes a guarantor of any Debt of an Obligor, the Company
will cause such Person or Subsidiary to execute and deliver a
Subsidiary Guarantee and promptly and in any event within ten
Business Days thereafter the Company will furnish each holder of the
Notes with a counterpart of such executed Subsidiary Guarantee,
together with an opinion of Weil Gotshal & Manges LLP or other
counsel reasonably satisfactory to the Required Holders (which
opinion shall be reasonably satisfactory to the Required Holders and
may be subject to customary exceptions, qualifications and
limitations under the circumstances) to the effect that such
Subsidiary Guarantee has been duly authorized, executed and delivered
by such Subsidiary and is valid, binding and enforceable in
accordance with its terms."
C. A new Section 9.8 is added to read as follows:
"9.8. Lines of Business.
The Company and its Subsidiaries taken as a whole
will at all times remain principally engaged in the
business, or any business reasonably related thereto, in
which the Company and its Subsidiaries were engaged on the
date of this Agreement."
3
<PAGE>
D. Clause (i) of Section 10.6(b) is amended by changing
"Consolidated Net Income", appearing twice in said clause, to
"Adjusted Consolidated Net Income".
E. Section 10.7(d) is amended to read as follows:
"(d) in the case of any such transaction involving
a Subsidiary, if the surviving corporation is not the
Company or such Subsidiary, the surviving corporation (i)
shall be Controlled by the Company at least to the same
extent as such Subsidiary and (ii) shall either qualify as
a Non-Guarantor Subsidiary or have executed and delivered
to each holder of the Notes a Subsidiary Guarantee and
otherwise complied with the requirements of Section 9.6;"
F. Section 10.9 is amended to read as follows:
"10.9. Holding Business and Ownership of Assets.
Holding will not engage in any business and
will not own any assets other than the outstanding
common stock of the Company."
G. Schedule B is amended by adding new definitions of
"Adjusted Consolidated Net Income" and "Non-Guarantor Subsidiary" to
read respectively as follows:
"`ADJUSTED CONSOLIDATED NET INCOME' for any period
means Consolidated Net Income plus any amounts deducted
from gross revenues in determining such Consolidated Net
Income on account of special charges, costs and other
expenses (including restructuring charges and associated
investment banking, legal, accounting, printing and related
fees and expenses) recorded by the Company or any of its
Subsidiaries (other than Non-Recourse Subsidiaries), and
related tax effects, in connection with the merger of Armco
Inc. with and into the Company pursuant to an Agreement and
Plan of Merger dated as of May 20, 1999, as it may be
amended, among Holding, the Company and Armco Inc. and any
other merger or other business combination transaction
involving the Company or any Subsidiary (other than a
Non-Recourse Subsidiary), to the extent that any such
charges, costs and other expenses are not permitted under
GAAP to be capitalized and amortized over future periods,
in each case in respect of which the Company or Holding has
delivered to the holders of all Notes, at the time such
special charges, costs and other expenses are recorded, an
Officer's Certificate setting forth in reasonable detail
such special charges, costs and other expenses."
* * * *
"`NON-GUARANTOR SUBSIDIARY' means, at any date, a
Subsidiary (other than a Non-Recourse Subsidiary)
that is not a guarantor of any Debt of an Obligor."
4
<PAGE>
Section 5. Effectiveness of this Supplemental Agreement.
This Supplemental Agreement will become effective on the date (the "Effective
Date") on which all of the following conditions precedent shall have been
satisfied:
Section 5.1. Proceedings. All proceedings taken by the
Obligors in connection with the transactions contemplated hereby and all
documents and papers incident thereto shall be satisfactory to you, and you and
your special counsel shall have received all such counterpart originals or
certified or other copies of such documents and papers, all in form and
substance satisfactory to you, as you or they may reasonably request in
connection therewith.
Section 5.2. Execution of this Supplemental Agreement.
Counterparts of this Supplemental Agreement shall have been executed and
delivered by the Obligors and the Required Holders.
Section 5.3. Representations and Warranties. The
representations and warranties of the Obligors contained in Section 2 of this
Supplemental Agreement shall be true on and as of the Effective Date as though
such representations and warranties had been made on and as of the Effective
Date, and you shall have received a certificate of a senior financial officer of
each Obligor, dated the Effective Date, to such effect.
Section 5.4. Consummation of Merger. The Merger shall have
been consummated substantially in accordance with the terms of the Merger
Agreement.
Section 5.5. New Subsidiary Guarantee. A Subsidiary
Guarantee, dated on or before the Effective Date, shall have been executed and
delivered to you by Douglas Dynamics, L.L.C., substantially in the form of
Exhibit 1.3 to the Original Note Purchase Agreements, and the Company shall have
complied with the requirements of Section 9.6 of the Amended Note Purchase
Agreements in connection therewith.
Section 5.6. Opinion of Counsel. You shall have received an
opinion, dated the Effective Date, addressed to you and otherwise satisfactory
in scope and substance to you, from Weil, Gotshal & Manges LLP, substantially in
the form set forth in Annex A attached hereto, and covering such other matters
incident to the transactions contemplated hereby as you may reasonably request.
Section 5.7. Payment of Fees. The Company shall have paid
(a) to you and each other holder of a Note, by wire transfer as provided in
Schedule A to the Original Note Purchase Agreements (or to you in such other
manner or to such other address as you shall have specified in writing to the
Company at least one Business Day before the Effective Date) an amendment fee
equal to the greater of (i) 0.125% of the unpaid principal amount of the Notes
respectively held by you and such other holder as set forth below your and their
names in the acceptance form of this Supplemental Agreement and (ii) the highest
consent fee (expressed as a percentage of the unpaid principal amount of the
affected senior notes) paid by either Obligor in connection with the High Yield
Note Consent Solicitations, and (b) the fees and disbursements of your special
counsel as contemplated by Section 6 of this Supplemental Agreement.
At least one Business Day prior to the date on which the
Company proposes to pay the amendment fee pursuant to this Section 5.7, the
Company will advise Credit Suisse First Boston ("CFSB") of the date of such
5
<PAGE>
anticipated payment and request that CFSB communicate that information (either
orally or in any manner contemplated by Section 19 of the Original Note Purchase
Agreements) to you and each other holder of a Note, provided that (a) the
communication of that information shall not be deemed a condition precedent to
the effectiveness of this Supplemental Agreement and (b) the failure on the part
of the Company to so advise CFSB or CFSB to communicate that information to the
holders of the Notes shall not, in either case, be deemed to constitute a breach
of this Supplemental Agreement or the Amended Note Purchase Agreement for any
purpose whatsoever or otherwise give rise to any liability on the part of the
Company or CFSB in favor of you or any other holder of the Notes.
Section 6.Expenses. Without limiting the generality of
Section 16.1 of the Amended Note Purchase Agreements, the Company agrees,
whether or not the transactions contemplated hereby are consummated, to pay the
reasonable fees and disbursements of Willkie Farr & Gallagher, your special
counsel, for their services rendered in connection with such transactions and
with respect to this Supplemental Agreement and any other document delivered
pursuant to this Supplemental Agreement and reimburse you for your reasonable
out-of-pocket expenses in connection with the foregoing.
In furtherance of the foregoing, on the Effective Date the
Company will pay or cause to be paid the reasonable fees and disbursements of
Willkie Farr & Gallagher which are reflected in the statement of Willkie Farr &
Gallagher delivered to the Company prior to the Effective Date. The Company will
also pay promptly upon receipt of supplemental statements therefor, reasonable
additional fees, if any, and disbursements of Willkie Farr & Gallagher in
connection with the transactions contemplated hereby (including disbursements
unposted as of the Effective Date).
Section 7.Ratification. Except as amended hereby, the
Original Note Purchase Agreements are in all respects ratified and confirmed and
the provisions thereof shall remain in full force and effect.
Section 8.Counterparts. This Supplemental Agreement may be
executed in two or more counterparts, each of which shall be deemed an original,
but all of which together shall constitute one and the same instrument.
Section 9.Governing Law. This Supplemental Agreement shall
be governed by and construed in accordance with the laws of the State of New
York.
6
<PAGE>
If you are in agreement with the foregoing, please sign the
form of acceptance in the space below provided, whereupon this Supplemental
Agreement shall become a binding agreement between you and the Company and
Holding, subject to becoming effective as hereinabove provided.
AK STEEL CORPORATION
By /s/ James L. Wainscott
--------------------------------------
Vice President, Treasurer
and Chief Financial Officer
AK STEEL HOLDING CORPORATION
By /s/ James L. Wainscott
--------------------------------------
Vice President, Treasurer
and Chief Financial Officer
ACCEPTED AND AGREED:
NOTEHOLDERS:
TEACHERS INSURANCE AND ANNUITY ASSOCIATION OF AMERICA
By /s/ Steve Brausa
--------------------------------------
Managing Director
Principal Amount of Notes Held: $50,000,000 (Series A)
Principal Amount of Notes Held: $50,000,000 (Series E)
MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY
By /s/ Mark A. Ahmed
--------------------------------------
Managing Director
Principal Amount of Notes Held: $9,875,000 (Series B)
Principal Amount of Notes Held: $9,875,000 (Series E)
7
<PAGE>
MASSMUTUAL CORPORATE VALUE PARTNERS LIMITED
By MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY, ITS INVESTMENT MANAGER
By /s/ Mark A. Ahmed
--------------------------------------
Managing Director
Principal Amount of Notes Held: $1,500,000 (Series B)
Principal Amount of Notes Held: $1,500,000 (Series E)
CM LIFE INSURANCE COMPANY
By /s/ Mark A. Ahmed
--------------------------------------
Managing Director
Principal Amount of Notes Held: $1,125,000 (Series B)
Principal Amount of Notes Held: $1,125,000 (Series E)
THE NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY
By /s/ Richard A. Strait
--------------------------------------
Authorized Representative
Principal Amount of Notes Held: $12,500,000 (Series A)
Principal Amount of Notes Held: $12,500,000 (Series E)
LIFE INSURANCE COMPANY OF GEORGIA
By ING INVESTMENT MANAGEMENT LLC, ITS AGENT
By /s/ Randal W. Ralph
--------------------------
Vice President
Principal Amount of Notes Held: $2,500,000 (Series A)
Principal Amount of Notes Held: $2,500,000 (Series D)
SOUTHLAND LIFE INSURANCE COMPANY
By ING INVESTMENT MANAGEMENT LLC, ITS AGENT
By /s/ Randal W. Ralph
--------------------------
Vice President
Principal Amount of Notes Held: $2,500,000 (Series A)
Principal Amount of Notes Held: $2,500,000 (Series D)
8
<PAGE>
SECURITY LIFE OF DENVER INSURANCE COMPANY
By ING INVESTMENT MANAGEMENT LLC, ITS AGENT
By /s/ Randal W. Ralph
--------------------------
Vice President
Principal Amount of Notes Held: $2,500,000 (Series A)
Principal Amount of Notes Held: $2,500,000 (Series D)
Principal Amount of Notes Held: $6,000,000 (Series E)
THE VARIABLE ANNUITY LIFE INSURANCE COMPANY
By /s/ C. Scott Inglis
--------------------------------------
Investment Officer
Principal Amount of Notes Held: $2,500,000 (Series C)
Principal Amount of Notes Held: $12,500,000 (Series E)
THE FRANKLIN LIFE INSURANCE COMPANY
By /s/ C. Scott Inglis
--------------------------------------
Investment Officer
Principal Amount of Notes Held: $10,000,000 (Series C)
ALLSTATE LIFE INSURANCE COMPANY
By /s/ Jerry D. Zinkula
--------------------------------------
Authorized Signatory
By /s/ Patricia W. Wilson
--------------------------------------
Authorized Signatory
Principal Amount of Notes Held: $15,000,000 (Series E)
9
<PAGE>
CONNECTICUT GENERAL LIFE INSURANCE COMPANY
By CIGNA INVESTMENTS, INC.
By /s/ Thomas P. Shea
--------------------------------------
Managing Director
Principal Amount of Notes Held: $3,500,000 (Series C)
Principal Amount of Notes Held: $3,500,000 (Series E)
LIFE INSURANCE COMPANY OF NORTH AMERICA
By CIGNA INVESTMENTS, INC.
By /s/ Thomas P. Shea
--------------------------
Managing Director
Principal Amount of Notes Held: $1,000,000 (Series C)
Principal Amount of Notes Held: $1,000,000 (Series E)
JOHN HANCOCK MUTUAL LIFE INSURANCE COMPANY
By /s/ Anthony C. Urick
--------------------------------------
Second Vice President
Principal Amount of Notes Held: $4,000,000 (Series E)
PRINCIPAL MUTUAL LIFE INSURANCE COMPANY
By /s/ Debra Svoboda Epp
--------------------------------------
Counsel
By /s/ Clint Woods
--------------------------------------
Counsel
Principal Amount of Notes Held: $10,000,000 (Series A)
Principal Amount of Notes Held: $10,000,000 (Series E)
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THE LINCOLN NATIONAL LIFE INSURANCE COMPANY
By: Lincoln Investment Management Inc.,
its Attorney-in-Fact
By /s/ Matthew Toms
--------------------------------------
Second Vice President
Principal Amount of Notes Held: $3,000,000 (Series C)
Principal Amount of Notes Held: $3,000,000 (Series E)
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ANNEX A
(to Supplemental Agreement)
OPINION OF COUNSEL FOR THE COMPANY
The following opinions are to be provided by counsel for
the Company, subject to customary assumptions, limitations and qualifications.
All capitalized terms used herein without definition shall have the meanings
ascribed thereto in the Supplemental Agreement.
Each Obligor is a corporation validly existing
under the laws of the State of Delaware and has all
requisite power and authority to execute and deliver the
Supplemental Agreement and to perform the provisions
thereof.
The Supplemental Agreement has been duly
authorized, executed and delivered by the Obligors and
constitutes a legal, valid and binding agreement of the
Obligors, enforceable against the Obligors in accordance
with its terms.
No consent, approval or authorization of, or
registration, filing or declaration with, any Governmental
Body is required on the part of either Obligor for the
validity of the execution and delivery or for the
performance by the Company of the Supplemental Agreement,
except for federal and state securities or blue sky laws,
as to which we express no opinion, and those already
obtained.
The consummation of the transactions contemplated
by the Supplemental Agreement and the performance of the
terms and provisions of the Supplemental Agreement do not
and will not (i) conflict with the Certificate of
Incorporation or by-laws of either Obligor or their
respective Subsidiaries, (ii) result in any breach of, or
constitute a default under, or result in the creation of
any Lien in respect of any property of either Obligor or
their respective Subsidiaries under, any material
indenture, mortgage, deed of trust, bank loan or credit
agreement, or other material agreement or instrument known
to us, after due inquiry, to which either Obligor or their
respective Subsidiaries is a party or by which either
Obligor or their respective Subsidiaries or any of their
respective properties may be bound or affected, or (iii)
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 either Obligor or their respective
Subsidiaries and known to us or violate any provision of
any law, statute, rule or regulation of any Governmental
Authority applicable to either Obligor or their respective
Subsidiaries.
[Opinions pursuant to Section 9.6 regarding the
Subsidiary Guarantee of Douglas Dynamics, L.L.C.]
* * * *
This opinion is given solely for your benefit, and for the
benefit of the institutional investor holders from time to time of the Notes
held by you, in connection with the transactions contemplated by the
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Supplemental Agreement, and may not be relied upon by any other person for any
purpose without our prior written consent.
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Exhibit 4.16
GUARANTEE AGREEMENT
GUARANTEE AGREEMENT dated as of September 30, 1999 made by
Douglas 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
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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.
DOUGLAS DYNAMICS, L.L.C.
By: /s/ James L. Wainscott
------------------------------------------
James L. Wainscott
Vice President and Chief Financial Officer
Address: Douglas Dynamics LLC
c/o AK Steel Holding Corporation
703 Curtis Street
Middletown, Ohio 45043-0001
Attention: John G. Hritz, General Counsel
Facsimile: (513) 425-5607
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