UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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): January 29, 2020
AK STEEL HOLDING CORPORATION
(Exact name of registrant as specified in its charter)
Delaware |
1-13696 |
31-1401455 |
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(State of incorporation) |
(Commission File Number) |
(IRS Employer Identification No.) |
9227 Centre Pointe Drive
West Chester, OH
45069
(Address of principal executive offices)
(Zip Code)
(513) 425-5000
(Registrant’s telephone number, including area code)
N/A
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
☐ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
☐ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
☐ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
☐ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b) of the Act:
Title of each class |
Trading Symbol(s) |
Name of each exchange on which registered |
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Common stock, $0.01 Par Value |
AKS |
The New York Stock Exchange |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company ☐
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Item 1.01 | Entry into a Material Definitive Agreement |
Background
On January 29, 2020, AK Steel Corporation (the “Company”) and Cleveland-Cliffs Inc. (“Cliffs”) announced that, in connection with the previously announced exchange offers by Cliffs and consent solicitations (the “Consent Solicitations”) by the Company, the Company had received, on January 28, 2020, the requisite consents to adopt the proposed amendments (the “Proposed Amendments”) to amend (i) the indenture, dated May 11, 2010 (the “Base Indenture”), among the Company, AK Steel Holding Corporation, as parent guarantor (“Parent”), and U.S. Bank National Association, as trustee (the “Trustee”), as supplemented by that certain Seventh Supplemental Indenture, dated March 23, 2017 (the “Seventh Supplemental Indenture” and, together with the Base Indenture, the “2027 Notes Indenture”), among the Company, Parent, AK Tube LLC (“AK Tube”), AK Steel Properties, Inc. (“AK Steel Properties”) and Mountain State Carbon, LLC (“MSC” and, together with AK Tube and AK Steel Properties, the “Subsidiary Guarantors”), as subsidiary guarantors, and the Trustee, governing the Company’s 7.00% Senior Notes due 2027 (the “2027 Notes”), and (ii) the Base Indenture, as supplemented by that certain Eighth Supplemental Indenture, dated August 9, 2017 (the “Eighth Supplemental Indenture” and, together with the Base Indenture, the “2025 Notes Indenture” and, together with the Base Indenture and the 2027 Notes Indenture, the “Indentures”), among the Company, Parent, the Subsidiary Guarantors, and the Trustee, governing the Company’s 6.375% Senior Notes due 2025 (the “2025 Notes” and, together with the 2027 Notes, the “Notes”). The Consent Solicitations were conducted pursuant to the terms of, and subject to the conditions set forth in, the offering memorandum and consent solicitation statement, dated January 14, 2020 (as amended or supplemented from time to time, the “Offering Memorandum and Consent Solicitation Statement”). As previously announced, Cliffs and Parent entered into an agreement and plan of merger to provide for a subsidiary of Cliffs to merge with and into Parent, with Parent surviving as a wholly owned subsidiary of Cliffs (the “Merger”).
Entry into Supplemental Indentures
On January 29, 2020, the Company and the Trustee entered into the Ninth Supplemental Indenture with respect to the 2027 Notes Indenture (the “Ninth Supplemental Indenture”) and the Tenth Supplemental Indenture with respect to the 2025 Notes Indenture (the “Tenth Supplemental Indenture” and, together with the Ninth Supplemental Indenture, the “Supplemental Indentures”) giving effect to the Proposed Amendments. The Proposed Amendments to the Indentures implemented by the Supplemental Indentures will become operative with respect to the Notes only at such time as the following conditions are satisfied or otherwise waived, if applicable, by Cliffs or the Company: (1) Cliffs shall have delivered to The Depository Trust Company for the Eligible Holders (as defined in the Offering Memorandum and Consent Solicitation Statement) of such Notes the aggregate amount to be paid to such Eligible Holders as Consent Payments (as defined in the Offering Memorandum and Consent Solicitation Statement), upon the terms and subject to the conditions in the Offering Memorandum and Consent Solicitation Statement in respect of the consents deemed validly delivered and not revoked thereunder, and Cliffs or the Company shall have notified the Trustee in writing that such delivery has been made, which condition cannot be waived by Cliffs or the Company, (2) the Notes that are validly tendered (and not validly withdrawn) have been accepted for exchange by Cliffs in accordance with the terms of the Offering Memorandum and Consent Solicitation Statement, and (3) the other conditions to the Consent Solicitations set forth in the Offering Memorandum and Consent Solicitation Statement, including the consummation the Merger, have been satisfied. The condition as to the consummation of the Merger may not be waived by either Cliffs or the Company.
The Proposed Amendments delete in their entirety the following covenants from the applicable Indenture with respect to the applicable series of the Notes:
• | Section 4.05 of the Base Indenture (“Restrictions on the Activities of the Parent Guarantor”); |
• | Section 5.01 of the Base Indenture (“When Company and Parent Guarantor May Merge, Etc.”); |
• | Section 6.03 of the Base Indenture (“Reports by the Company”); |
• | Section 7.01(c) of the Base Indenture (“Events of Default”); |
• | Section 7.01(d) of the Base Indenture (“Events of Default”); |
• | Section 7.01(e) of the Base Indenture (“Events of Default”); |
• | Section 4.01 of the Seventh Supplemental Indenture and the Eighth Supplemental Indenture (“Redemption Upon Change of Control”); |
• | Section 5.01 of the Seventh Supplemental Indenture and the Eighth Supplemental Indenture (“Limitation On Liens”); |
• | Section 5.02 of the Seventh Supplemental Indenture and the Eighth Supplemental Indenture (“Limitation on Subsidiary Debt”); |
• | Section 5.03 of the Seventh Supplemental Indenture and the Eighth Supplemental Indenture (“Limitation on Sale and Leaseback”); and |
• | Section 7.02 of the Seventh Supplemental Indenture and the Eighth Supplemental Indenture (“Defaults and Remedies – Additional Provisions”). |
In addition, the Proposed Amendments reduce the minimum notice period required to optionally redeem the Notes by amending Section 3.02 (“Notice of Redemption; Partial Redemptions”) of the Base Indenture by replacing references to “30 days” with “three Business Days.”
The foregoing descriptions of the Ninth Supplemental Indenture and the Tenth Supplemental Indenture do not purport to be complete and are qualified in their entirety by reference to the full text of the Ninth Supplemental Indenture and the Tenth Supplemental Indenture, respectively, which are filed as Exhibits 4.1 and 4.2, respectively, to this Current Report on Form 8-K. The Ninth Supplemental Indenture and the Tenth Supplemental Indenture are incorporated by reference into this Item 1.01.
Item 9.01 | Financial Statements and Exhibits. |
(d) | Exhibits. |
Exhibit
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Description |
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4.1 |
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4.2 |
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104 |
Cover Page Interactive Data File (embedded within the Inline XBRL document) |
SIGNATURES
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 hereunto duly authorized.
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AK STEEL HOLDING CORPORATION |
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Dated: January 29, 2020 |
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By: |
/s/ Joseph C. Alter |
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Name: |
Joseph C. Alter |
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Title: |
Vice President, General Counsel and Corporate Secretary |
Exhibit 4.1
AK STEEL CORPORATION,
as Company
AND
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
NINTH SUPPLEMENTAL INDENTURE
Dated as of January 29, 2020
to
Indenture
Dated as of May 11, 2010
7.00% Senior Notes due 2027
NINTH SUPPLEMENTAL INDENTURE (this Ninth Supplemental Indenture), dated as of January 29, 2020, between AK Steel Corporation, a Delaware corporation (the Company), and U.S. Bank National Association, a national banking association, as trustee (the Trustee).
WHEREAS, the Company, AK Steel Holding Corporation, a Delaware corporation, as parent guarantor (the Parent Guarantor), and the Trustee executed and delivered an Indenture, dated as of May 11, 2010 (the Base Indenture), as supplemented by the Seventh Supplemental Indenture, dated March 23, 2017 (the Seventh Supplemental Indenture and, together with the Base Indenture, the Indenture), among the Company, the Parent Guarantor, AK Tube LLC, a Delaware limited liability company, AK Steel Properties, Inc., a Delaware corporation, and Mountain State Carbon, LLC, a Delaware limited liability company, and the Trustee, relating to the Companys 7.00% Senior Notes due 2027 (the Notes); and
WHEREAS, $391,632,000 aggregate principal amount of the Notes is currently outstanding; and
WHEREAS, Section 11.02 of the Base Indenture provides, among other things, that the Company and the Trustee may amend the Indenture and the Notes with the written consent of the holders of the Notes (the Holders) of a majority in Principal amount of the outstanding Notes affected by such amendment (subject to certain exceptions); and
WHEREAS, the Company proposes to amend the Indenture with respect to the Notes and has been soliciting consents (the Consent Solicitation) to this Ninth Supplemental Indenture from certain of the Holders, upon the terms and subject to the conditions set forth in the Offering Memorandum and Consent Solicitation Statement (herein so called) of Cleveland-Cliffs Inc. (Cliffs) and the Company, dated January 14, 2020 (which, including any amendments, modifications or supplements thereto, governs the Consent Solicitation with respect to the Notes); and
WHEREAS, the Company has received and delivered to the Trustee evidence of the consent of the Holders of at least a majority of the Principal amount of the Notes (excluding any Notes owned by the Parent Guarantor, the Company or any of their affiliates), and has delivered to the Trustee, simultaneously with the execution and delivery of this Ninth Supplemental Indenture, an Opinion of Counsel, relating to this Ninth Supplemental Indenture as contemplated by Sections 11.05, 13.03 and 13.04 of the Base Indenture, and an Officers Certificate, relating to this Ninth Supplemental Indenture as contemplated by Sections 13.03 and 13.04 of the Base Indenture; and
WHEREAS, all things necessary to make this Ninth Supplemental Indenture a legal and binding supplement to the Indenture in accordance with its terms and the terms of the Indenture have been done; and
WHEREAS, the Company has complied with all conditions precedent provided for in the Indenture relating to this Ninth Supplemental Indenture; and
WHEREAS, the Company desires and has requested the Trustee to join with it in entering into this Ninth Supplemental Indenture for the purpose of amending the Base Indenture and the Seventh Supplemental Indenture and the Notes in certain respects as permitted by Section 11.02 of the Base Indenture and Section 9.03 of the Seventh Supplemental Indenture.
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NOW, THEREFORE,
For and in consideration of the premises stated herein, the Company and the Trustee covenant and agree, for the equal and proportionate benefit of the Holders of the Notes, as follows:
ARTICLE I
SCOPE OF NINTH SUPPLEMENTAL INDENTURE
Section 1.01. Scope. This Ninth Supplemental Indenture constitutes a supplement to the Indenture and an integral part of the Indenture and shall be read together with the Base Indenture as though all the provisions thereof are contained in one instrument. Except as expressly amended by the Seventh Supplemental Indenture and this Ninth Supplemental Indenture, the terms and provisions of the Base Indenture shall remain in full force and effect. Notwithstanding the foregoing, this Ninth Supplemental Indenture shall only apply to the Notes.
ARTICLE II
DEFINITIONS
Section 2.01. Definitions and Other Provisions of General Application. For all purposes of this Ninth Supplemental Indenture, unless otherwise specified herein:
(a) All terms used in this Ninth Supplemental Indenture which are not otherwise defined herein shall have the meanings they are given in the Base Indenture and the Seventh Supplemental Indenture, as applicable;
(b) The provisions of general application stated in Section 1.04 of the Base Indenture shall apply to this Ninth Supplemental Indenture, except that the words herein, hereof, hereto and hereunder and other words of similar import refer to this Ninth Supplemental Indenture as a whole and not to the Base Indenture or any particular Article, Section or other subdivision of the Base Indenture or this Ninth Supplemental Indenture.
ARTICLE III
AMENDMENTS TO INDENTURE AND NOTES
Section 3.1 Amendments to Indenture.
(a) With respect to the Notes only, the Base Indenture and the Seventh Supplemental Indenture, as applicable, are hereby amended pursuant to Section 11.02 of the Base Indenture and in compliance with Section 9.03 of the Seventh Supplemental Indenture by deleting the following Sections of the Base Indenture or the Seventh Supplemental Indenture, as applicable, and all references and definitions related thereto in their entirety (collectively, the Proposed Amendments):
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Section 4.05 of the Base Indenture (Restrictions on the Activities of the Parent Guarantor); |
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Section 5.01 of the Base Indenture (When Company and Parent Guarantor May Merge, Etc.); |
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Section 6.03 of the Base Indenture (Reports by the Company); |
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Section 7.01(c) of the Base Indenture (Events of Default); |
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Section 7.01(d) of the Base Indenture (Events of Default); |
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Section 7.01(e) of the Base Indenture (Events of Default); |
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Section 4.01 of the Seventh Supplemental Indenture (Redemption Upon Change of Control); |
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Section 5.01 of the Seventh Supplemental Indenture (Limitation On Liens); |
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Section 5.02 of the Seventh Supplemental Indenture (Limitation on Subsidiary Debt); |
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Section 5.03 of the Seventh Supplemental Indenture (Limitation on Sale and Leaseback); and |
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Section 7.02 of the Seventh Supplemental Indenture (Defaults and Remedies Additional Provisions). |
(b) With respect to the Notes only, Section 3.02 of the Base Indenture is hereby amended pursuant to Section 11.02 of the Base Indenture and in compliance with Section 9.03 of the Seventh Supplemental Indenture by replacing references to 30 days with three Business Days.
Section 3.2 Amendments to Notes. The Notes are hereby amended to delete all provisions inconsistent with the amendments to the Base Indenture and the Seventh Supplemental Indenture effected by this Ninth Supplemental Indenture.
ARTICLE IV
WAIVERS
Section 4.1 Waiver of Defaults. As permitted by Section 7.04 of the Base Indenture, any and all Defaults and Events of Default arising therefrom under the Base Indenture (other than nonpayment of the principal of, premium, if any, or interest on any Note or in respect of a covenant or provision of the Base Indenture or Seventh Supplemental Indenture that pursuant to Article 11 of the Base Indenture or Article 9 of the Seventh Supplemental Indenture cannot be modified or amended without the consent of the Holder of each outstanding Note) relating to any of the covenants to be amended by the Proposed Amendments, which include any that may have resulted in connection with, or may result from and after the consummation of, the Merger or the Exchange Offers (each as defined in the Offering Memorandum and Consent Solicitation Statement), are hereby irrevocably waived.
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ARTICLE V
MISCELLANEOUS PROVISIONS
Section 5.1 Governing Law. The laws of the State of New York shall govern this Ninth Supplemental Indenture and the Notes.
Section 5.2 Successors. All agreements of the Company in this Ninth Supplemental Indenture and the Notes shall bind its successors. All agreements of the Trustee in this Ninth Supplemental Indenture and the Notes shall bind its successors.
Section 5.3 Duplicate Originals. All parties may sign any number of copies of this Ninth Supplemental Indenture. Each signed copy shall be an original, but all of them together shall represent the same agreement. It is the express intent of the parties to be bound by the exchange of signatures on this Ninth Supplemental Indenture via telecopy or other form of electronic transmission.
Section 5.4 Severability. In case any one or more of the provisions in this Ninth Supplemental Indenture or in the Notes shall be held invalid, illegal or unenforceable in any respect or for any reason, the validity, legality and enforceability of any such provision in every other respect and of the remaining provisions shall not in any way be affected or impaired thereby, it being intended that all of the provisions hereof shall be enforceable to the full extent permitted by law.
Section 5.5 Trustee Disclaimer. The Trustee accepts the amendments of the Indenture effected by this Ninth Supplemental Indenture and agrees to execute the trust created by the Indenture as hereby amended, but on the terms and conditions set forth in the Indenture, including the terms and provisions defining and limiting the liabilities and responsibilities of the Trustee, which terms and provisions shall in like manner define and limit its liabilities and responsibilities in the performance of the trust created by the Indenture as hereby amended. Without limiting the generality of the foregoing, the Trustee shall not be responsible in any manner whatsoever for or with respect to any of the recitals or statements contained herein, all of which recitals or statements are made solely by the Company, and the Trustee makes no representation with respect to any such matters. Additionally, the Trustee makes no representations as to the validity or sufficiency of this Ninth Supplemental Indenture, except that the Trustee represents that it is duly authorized to execute and deliver this Ninth Supplemental Indenture and to perform its obligations hereunder.
Section 5.6 Effectiveness. The provisions of this Ninth Supplemental Indenture shall be effective only upon execution and delivery of this instrument by the parties hereto. Notwithstanding the foregoing sentence, except as set forth below, the provisions of this Ninth Supplemental Indenture shall become operative with respect to the Notes only upon the closing of the Consent Solicitation and the related Exchange Offer, and at such time that the following conditions are satisfied or otherwise waived, if applicable, by Cliffs or the Company (collectively, the Conditions): (1) Cliffs shall have delivered to The Depository Trust Company for the Eligible Holders (as defined in the Offering Memorandum and Consent Solicitation Statement) of such Notes the aggregate amount to be paid to such Eligible Holders as Consent Payments (as defined in the Offering Memorandum and Consent Solicitation Statement), upon the terms and
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subject to the conditions in the Offering Memorandum and Consent Solicitation Statement in respect of the consents validly delivered and not revoked thereunder, and Cliffs or the Company shall have notified the Trustee in writing that such delivery has been made, which condition cannot be waived by Cliffs or the Company, (2) the Notes that are validly tendered (and not validly withdrawn) have been accepted for exchange by Cliffs in accordance with the terms of the Offering Memorandum and Consent Solicitation Statement, and (3) the other conditions to the Consent Solicitation set forth in the Offering Memorandum and Consent Solicitation Statement, including the consummation of the Merger, have been satisfied, with the result that the Proposed Amendments shall have no force or effect, unless and until all of the Conditions have been satisfied, and all terms and conditions as set forth in the Indenture immediately prior to the execution of this Ninth Supplemental Indenture shall continue to govern. Notwithstanding the foregoing, the deletion of Section 4.01 of the Seventh Supplemental Indenture (Redemption Upon a Change of Control) and all references and definitions relating thereto shall only become operative if, prior to the closing of the Consent Solicitation and the related Exchange Offer and upon satisfaction of all Conditions, no Change of Control Repurchase Event has occurred. The Company shall notify the Trustee promptly upon the occurrence of such closing and satisfaction of all Conditions or promptly after the Company shall determine that the satisfaction and/or waiver, as applicable, of such Conditions, or the closing, will not occur.
Section 5.7 Endorsement and Change of Form of Notes. Any Notes authenticated and delivered after the close of business on the date that this Ninth Supplemental Indenture becomes operative in substitution for Notes then outstanding and all Notes presented or delivered to the Trustee on and after that date for such purpose shall be stamped, imprinted or otherwise legended by the Company, with a notation as follows:
Certain restrictive covenants of the Company and certain Events of Default have been eliminated or limited, as provided in the Ninth Supplemental Indenture, dated as of January 29, 2020. Reference is hereby made to such Ninth Supplemental Indenture, copies of which are on file with the Trustee, for a description of the amendments made therein.
Section 5.8 Trust Indenture Act Controls. If any provision of this Ninth Supplemental Indenture limits, qualifies or conflicts with another provision that is required or deemed to be included in this Ninth Supplemental Indenture by the Trust Indenture Act, the required or deemed provision shall control.
Section 5.9 Effect of Headings. The Section headings herein are for convenience only and shall not affect the construction thereof.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have caused this Ninth Supplemental Indenture to be duly executed as of the day and year written above.
AK STEEL CORPORATION | ||
as the Company | ||
By: |
/s/ Joseph C. Alter |
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Name: | Joseph C. Alter | |
Title: | Vice President, General Counsel and Corporate Secretary |
Signature Page to Ninth Supplemental Indenture
U.S. BANK NATIONAL ASSOCIATION | ||
as Trustee | ||
By: |
/s/ William E. Sicking |
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Name: | William E. Sicking | |
Title: | Vice President & Trust Officer |
Signature Page to Ninth Supplemental Indenture
Exhibit 4.2
AK STEEL CORPORATION,
as Company
AND
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
TENTH SUPPLEMENTAL INDENTURE
Dated as of January 29, 2020
to
Indenture
Dated as of May 11, 2010
6.375% Senior Notes due 2025
TENTH SUPPLEMENTAL INDENTURE (this Tenth Supplemental Indenture), dated as of January 29, 2020, between AK Steel Corporation, a Delaware corporation (the Company), and U.S. Bank National Association, a national banking association, as trustee (the Trustee).
WHEREAS, the Company, AK Steel Holding Corporation, a Delaware corporation, as parent guarantor (the Parent Guarantor), and the Trustee executed and delivered an Indenture, dated as of May 11, 2010 (the Base Indenture), as supplemented by the Eighth Supplemental Indenture, dated August 9, 2017 (the Eighth Supplemental Indenture and, together with the Base Indenture, the Indenture), among the Company, the Parent Guarantor, AK Tube LLC, a Delaware limited liability company, AK Steel Properties, Inc., a Delaware corporation, and Mountain State Carbon, LLC, a Delaware limited liability company, and the Trustee, relating to the Companys 6.375% Senior Notes due 2025 (the Notes); and
WHEREAS, $270,232,000 aggregate principal amount of the Notes is currently outstanding; and
WHEREAS, Section 11.02 of the Base Indenture provides, among other things, that the Company and the Trustee may amend the Indenture and the Notes with the written consent of the holders of the Notes (the Holders) of a majority in Principal amount of the outstanding Notes affected by such amendment (subject to certain exceptions); and
WHEREAS, the Company proposes to amend the Indenture with respect to the Notes and has been soliciting consents (the Consent Solicitation) to this Tenth Supplemental Indenture from certain of the Holders, upon the terms and subject to the conditions set forth in the Offering Memorandum and Consent Solicitation Statement (herein so called) of Cleveland-Cliffs Inc. (Cliffs) and the Company, dated January 14, 2020 (which, including any amendments, modifications or supplements thereto, governs the Consent Solicitation with respect to the Notes); and
WHEREAS, the Company has received and delivered to the Trustee evidence of the consent of the Holders of at least a majority of the Principal amount of the Notes (excluding any Notes owned by the Parent Guarantor, the Company or any of their affiliates), and has delivered to the Trustee, simultaneously with the execution and delivery of this Tenth Supplemental Indenture, an Opinion of Counsel, relating to this Tenth Supplemental Indenture as contemplated by Sections 11.05, 13.03 and 13.04 of the Base Indenture, and an Officers Certificate, relating to this Tenth Supplemental Indenture as contemplated by Sections 13.03 and 13.04 of the Base Indenture; and
WHEREAS, all things necessary to make this Tenth Supplemental Indenture a legal and binding supplement to the Indenture in accordance with its terms and the terms of the Indenture have been done; and
WHEREAS, the Company has complied with all conditions precedent provided for in the Indenture relating to this Tenth Supplemental Indenture; and
WHEREAS, the Company desires and has requested the Trustee to join with it in entering into this Tenth Supplemental Indenture for the purpose of amending the Base Indenture and the Eighth Supplemental Indenture and the Notes in certain respects as permitted by Section 11.02 of the Base Indenture and Section 9.03 of the Eighth Supplemental Indenture.
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NOW, THEREFORE,
For and in consideration of the premises stated herein, the Company and the Trustee covenant and agree, for the equal and proportionate benefit of the Holders of the Notes, as follows:
ARTICLE I
SCOPE OF TENTH SUPPLEMENTAL INDENTURE
Section 1.01. Scope. This Tenth Supplemental Indenture constitutes a supplement to the Indenture and an integral part of the Indenture and shall be read together with the Base Indenture as though all the provisions thereof are contained in one instrument. Except as expressly amended by the Eighth Supplemental Indenture and this Tenth Supplemental Indenture, the terms and provisions of the Base Indenture shall remain in full force and effect. Notwithstanding the foregoing, this Tenth Supplemental Indenture shall only apply to the Notes.
ARTICLE II
DEFINITIONS
Section 2.01. Definitions and Other Provisions of General Application. For all purposes of this Tenth Supplemental Indenture, unless otherwise specified herein:
(a) All terms used in this Tenth Supplemental Indenture which are not otherwise defined herein shall have the meanings they are given in the Base Indenture and the Eighth Supplemental Indenture, as applicable;
(b) The provisions of general application stated in Section 1.04 of the Base Indenture shall apply to this Tenth Supplemental Indenture, except that the words herein, hereof, hereto and hereunder and other words of similar import refer to this Tenth Supplemental Indenture as a whole and not to the Base Indenture or any particular Article, Section or other subdivision of the Base Indenture or this Tenth Supplemental Indenture.
ARTICLE III
AMENDMENTS TO INDENTURE AND NOTES
Section 3.1 Amendments to Indenture.
(a) With respect to the Notes only, the Base Indenture and the Eighth Supplemental Indenture, as applicable, are hereby amended pursuant to Section 11.02 of the Base Indenture and in compliance with Section 9.03 of the Eighth Supplemental Indenture by deleting the following Sections of the Base Indenture or the Eighth Supplemental Indenture, as applicable, and all references and definitions related thereto in their entirety (collectively, the Proposed Amendments):
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Section 4.05 of the Base Indenture (Restrictions on the Activities of the Parent Guarantor); |
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Section 5.01 of the Base Indenture (When Company and Parent Guarantor May Merge, Etc.); |
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Section 6.03 of the Base Indenture (Reports by the Company); |
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Section 7.01(c) of the Base Indenture (Events of Default); |
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Section 7.01(d) of the Base Indenture (Events of Default); |
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Section 7.01(e) of the Base Indenture (Events of Default); |
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Section 4.01 of the Eighth Supplemental Indenture (Redemption Upon Change of Control); |
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Section 5.01 of the Eighth Supplemental Indenture (Limitation On Liens); |
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Section 5.02 of the Eighth Supplemental Indenture (Limitation on Subsidiary Debt); |
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Section 5.03 of the Eighth Supplemental Indenture (Limitation on Sale and Leaseback); and |
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Section 7.02 of the Eighth Supplemental Indenture (Defaults and Remedies Additional Provisions). |
(b) With respect to the Notes only, Section 3.02 of the Base Indenture is hereby amended pursuant to Section 11.02 of the Base Indenture and in compliance with Section 9.03 of the Eighth Supplemental Indenture by replacing references to 30 days with three Business Days.
Section 3.2 Amendments to Notes. The Notes are hereby amended to delete all provisions inconsistent with the amendments to the Base Indenture and the Eighth Supplemental Indenture effected by this Tenth Supplemental Indenture.
ARTICLE IV
WAIVERS
Section 4.1 Waiver of Defaults. As permitted by Section 7.04 of the Base Indenture, any and all Defaults and Events of Default arising therefrom under the Base Indenture (other than nonpayment of the principal of, premium, if any, or interest on any Note or in respect of a covenant or provision of the Base Indenture or Eighth Supplemental Indenture that pursuant to Article 11 of the Base Indenture or Article 9 of the Eighth Supplemental Indenture cannot be modified or amended without the consent of the Holder of each outstanding Note) relating to any of the covenants to be amended by the Proposed Amendments, which include any that may have resulted in connection with, or may result from and after the consummation of, the Merger or the Exchange Offers (each as defined in the Offering Memorandum and Consent Solicitation Statement), are hereby irrevocably waived.
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ARTICLE V
MISCELLANEOUS PROVISIONS
Section 5.1 Governing Law. The laws of the State of New York shall govern this Tenth Supplemental Indenture and the Notes.
Section 5.2 Successors. All agreements of the Company in this Tenth Supplemental Indenture and the Notes shall bind its successors. All agreements of the Trustee in this Tenth Supplemental Indenture and the Notes shall bind its successors.
Section 5.3 Duplicate Originals. All parties may sign any number of copies of this Tenth Supplemental Indenture. Each signed copy shall be an original, but all of them together shall represent the same agreement. It is the express intent of the parties to be bound by the exchange of signatures on this Tenth Supplemental Indenture via telecopy or other form of electronic transmission.
Section 5.4 Severability. In case any one or more of the provisions in this Tenth Supplemental Indenture or in the Notes shall be held invalid, illegal or unenforceable in any respect or for any reason, the validity, legality and enforceability of any such provision in every other respect and of the remaining provisions shall not in any way be affected or impaired thereby, it being intended that all of the provisions hereof shall be enforceable to the full extent permitted by law.
Section 5.5 Trustee Disclaimer. The Trustee accepts the amendments of the Indenture effected by this Tenth Supplemental Indenture and agrees to execute the trust created by the Indenture as hereby amended, but on the terms and conditions set forth in the Indenture, including the terms and provisions defining and limiting the liabilities and responsibilities of the Trustee, which terms and provisions shall in like manner define and limit its liabilities and responsibilities in the performance of the trust created by the Indenture as hereby amended. Without limiting the generality of the foregoing, the Trustee shall not be responsible in any manner whatsoever for or with respect to any of the recitals or statements contained herein, all of which recitals or statements are made solely by the Company, and the Trustee makes no representation with respect to any such matters. Additionally, the Trustee makes no representations as to the validity or sufficiency of this Tenth Supplemental Indenture, except that the Trustee represents that it is duly authorized to execute and deliver this Tenth Supplemental Indenture and to perform its obligations hereunder.
Section 5.6 Effectiveness. The provisions of this Tenth Supplemental Indenture shall be effective only upon execution and delivery of this instrument by the parties hereto. Notwithstanding the foregoing sentence, except as set forth below, the provisions of this Tenth Supplemental Indenture shall become operative with respect to the Notes only upon the closing of the Consent Solicitation and the related Exchange Offer, and at such time that the following conditions are satisfied or otherwise waived, if applicable, by Cliffs or the Company (collectively, the Conditions): (1) Cliffs shall have delivered to The Depository Trust Company for the Eligible Holders (as defined in the Offering Memorandum and Consent Solicitation Statement) of such Notes the aggregate amount to be paid to such Eligible Holders as Consent Payments (as defined in the Offering Memorandum and Consent Solicitation Statement), upon the terms and
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subject to the conditions in the Offering Memorandum and Consent Solicitation Statement in respect of the consents validly delivered and not revoked thereunder, and Cliffs or the Company shall have notified the Trustee in writing that such delivery has been made, which condition cannot be waived by Cliffs or the Company, (2) the Notes that are validly tendered (and not validly withdrawn) have been accepted for exchange by Cliffs in accordance with the terms of the Offering Memorandum and Consent Solicitation Statement, and (3) the other conditions to the Consent Solicitation set forth in the Offering Memorandum and Consent Solicitation Statement, including the consummation of the Merger, have been satisfied, with the result that the Proposed Amendments shall have no force or effect, unless and until all of the Conditions have been satisfied, and all terms and conditions as set forth in the Indenture immediately prior to the execution of this Tenth Supplemental Indenture shall continue to govern. Notwithstanding the foregoing, the deletion of Section 4.01 of the Eighth Supplemental Indenture (Redemption Upon a Change of Control) and all references and definitions relating thereto shall only become operative if, prior to the closing of the Consent Solicitation and the related Exchange Offer and upon satisfaction of all Conditions, no Change of Control Repurchase Event has occurred. The Company shall notify the Trustee promptly upon the occurrence of such closing and satisfaction of all Conditions or promptly after the Company shall determine that the satisfaction and/or waiver, as applicable, of such Conditions, or the closing, will not occur.
Section 5.7 Endorsement and Change of Form of Notes. Any Notes authenticated and delivered after the close of business on the date that this Tenth Supplemental Indenture becomes operative in substitution for Notes then outstanding and all Notes presented or delivered to the Trustee on and after that date for such purpose shall be stamped, imprinted or otherwise legended by the Company, with a notation as follows:
Certain restrictive covenants of the Company and certain Events of Default have been eliminated or limited, as provided in the Tenth Supplemental Indenture, dated as of January 29, 2020. Reference is hereby made to such Tenth Supplemental Indenture, copies of which are on file with the Trustee, for a description of the amendments made therein.
Section 5.8 Trust Indenture Act Controls. If any provision of this Tenth Supplemental Indenture limits, qualifies or conflicts with another provision that is required or deemed to be included in this Tenth Supplemental Indenture by the Trust Indenture Act, the required or deemed provision shall control.
Section 5.9 Effect of Headings. The Section headings herein are for convenience only and shall not affect the construction thereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Tenth Supplemental Indenture to be duly executed as of the day and year written above.
AK STEEL CORPORATION | ||
as the Company | ||
By: |
/s/ Joseph C. Alter |
|
Name: | Joseph C. Alter | |
Title: | Vice President, General Counsel and Corporate Secretary |
Signature Page to Tenth Supplemental Indenture
U.S. BANK NATIONAL ASSOCIATION | ||
as Trustee | ||
By: |
/s/ William E. Sicking |
|
Name: | William E. Sicking | |
Title: | Vice President & Trust Officer |
Signature Page to Tenth Supplemental Indenture