Exhibit 4.1
UNITED STATES STEEL CORPORATION,
Issuer
and
THE BANK OF NEW YORK MELLON,
Trustee
THIRD SUPPLEMENTAL INDENTURE
DATED AS OF MAY 4, 2009
TO INDENTURE
DATED AS OF MAY 21, 2007
Relating To
$862,500,000 Principal Amount
4.00% Senior Convertible Notes due May 15, 2014
THIRD SUPPLEMENTAL INDENTURE
THIRD SUPPLEMENTAL INDENTURE, dated
as of May 4, 2009 (this "Supplemental
Indenture"), to the Indenture
(defined below) among United States
Steel
Corporation (the "Company"), a Delaware corporation, and The
Bank of New York
Mellon, a New York banking corporation, as Trustee (the
"Trustee").
RECITALS
WHEREAS, the Company has heretofore
executed and delivered to the Trustee
an Indenture, dated as of May 21, 2007 (the "Base Indenture"),
providing for the
issuance from time to time of its notes and other
evidences of senior debt
securities, to be issued
in one or more series as
therein provided
("Securities");
WHEREAS, pursuant to the terms of
the Base Indenture, the Company desires
to provide for the establishment of a new series of its
Securities to be known
as its 4.00% Senior Convertible Notes due 2014
(the "Notes"), the form and
substance of such Notes and the terms, provisions and conditions
thereof to be
set forth as provided in the Base Indenture
and this Supplemental Indenture
(together, the "Indenture"); and
WHEREAS, the Company has
requested that the Trustee execute and deliver
this Supplemental Indenture, and all
requirements necessary to make this
Supplemental Indenture a valid instrument in accordance with its
terms, and to
make the Notes, when executed by the Company and authenticated and
delivered by
the Trustee, the valid and legally binding obligations of the
Company, and all
acts and things necessary, have
been done and performed to make
this
Supplemental Indenture enforceable in
accordance with its terms, and
the
execution and delivery of this Supplemental Indenture has
been duly authorized
in all respects.
WITNESSETH:
NOW, THEREFORE, for and in
consideration of the premises contained herein,
each party agrees for the benefit of each other party
and for the equal and
ratable benefit of the Holders of the Notes, as follows:
ARTICLE ONE
DEFINITIONS
SECTION 1.01. Capitalized terms used
but not defined in this
Supplemental Indenture shall have the meanings ascribed to them in
the Base
Indenture.
Section 1.02. References in this
Supplemental Indenture to article
and section numbers shall be deemed to be references to article and
section
numbers of this Supplemental Indenture unless otherwise
specified.
Section 1.03. For purposes of this
Supplemental Indenture, the following
terms have the meanings ascribed to them as follows:
"Additional Interest" means all amounts,
if any, payable pursuant to
Section 6.02.
"Additional Shares" has the meaning
provided in Section 5.04(a).
"Adjustment Event" has the meaning
provided in Section 5.02(l).
"Attributable Debt"
means, with respect to any sale
and leaseback
transaction, at the time of determination, the lesser of (1) the
sale price of
the property so leased multiplied by a fraction the numerator
of which is the
remaining portion of the base term of the lease included in such
transaction and
the denominator of which is the base term of such
lease, and (2) the total
obligation (discounted to the present value at the
implicit interest factor,
determined in accordance with GAAP, included in the
rental payments) of the
lessee for rental payments (other than amounts required to be paid
on account of
property taxes as well as maintenance, repairs, insurance, water
rates and other
items which do not constitute payments for property rights) during
the remaining
portion of the base term of the lease included in such
transaction.
"Base Indenture" has the meaning provided
in the recitals.
"Beneficial Owner" means any person who is
considered a Beneficial Owner of
a security in accordance with Rule 13d-3
promulgated by the SEC under the
Exchange Act.
"Business Day" means any day other than a
Saturday, a Sunday or a day on
which the Federal Reserve Bank of New York is authorized or
required by law or
executive order to close or be closed.
"Clearstream" means Clearstream Banking
S.A.
"Common Stock" means the Common
Stock, par value $1.00 per share, of the
Company existing on the Issue Date or any other shares
of capital stock into
which such Common Stock shall be reclassified or changed.
"Company Notice" has the meaning provided
in Section 4.01(b).
"Company Notice Date" has the meaning
provided in Section 4.01(b).
"Consolidated Net Tangible Assets"
means, as of the time of determination,
the aggregate amount of the assets of the
Company and the assets of its
consolidated subsidiaries after deducting
(1) all goodwill, trade names,
trademarks, service marks, patents, unamortized debt discount
and expense and
other intangible assets and (2) all current
liabilities, as reflected on the
most recent consolidated balance sheet prepared by the
Company in accordance
with GAAP contained in an annual report on Form 10-K or
a quarterly report on
Form 10-Q timely filed or any amendment thereto (and not
subsequently disclaimed
as not being reliable by the Company) pursuant to
the Exchange Act by the
Company prior to the time as of which
"Consolidated Net Tangible Assets" is
being determined.
"Conversion Agent" means the
office or agency appointed by the Company
where Notes may be presented for conversion. The Conversion
Agent appointed by
the Company shall initially be the Trustee.
"Conversion Date" has the meaning provided
in Section 5.01(a).
"Conversion Price" means, in
respect of each $1,000 principal amount of
Notes, $1,000 divided by the Conversion Rate, as may be
adjusted from time to
time as set forth herein, and initially shall be $31.875.
"Conversion Rate" means, in
respect of each $1,000 principal amount of
Notes, initially 31.3725 shares of Common Stock, subject to
adjustment as set
forth herein.
"Depositary" has the meaning provided in
Section 2.05.
"Determination Date" has the meaning
provided in Section 5.02(l).
"Effective Date" has the meaning provided
in Section 5.04(c).
"Euroclear" means Euroclear Bank
S.A./N.V., as operator of the Euroclear
System.
"Ex-Dividend Date" means the first
date upon which a sale of the Common
Stock does not automatically transfer
the right to receive the relevant
dividend, issuance or distribution from the seller of the
Common Stock to its
buyer.
"Expiration Time" has the meaning provided
in Section 5.02(e).
"Fair Market Value" means the
amount that a willing buyer would pay a
willing seller in an arm's length transaction.
"Fundamental Change" shall be deemed to
have occurred at the time after the
Notes are originally issued that any of the following occurs:
(1) a "Person" or
"Group" within the meaning of Section 13(d) of
the
Exchange Act other than the Company, a Subsidiary of
the Company or
any
employee benefit plans of the Company or a
Subsidiary of the
Company files a Schedule 13D or
Schedule TO (or any successor
schedule,
form or report) pursuant to the Exchange Act disclosing that
such
person has become the direct or indirect "Beneficial Owner,"
as
defined in
Rule 13d-3 under the Exchange Act, of the Company's
common
equity
representing more than 50% of the voting power of all shares of
the
Company's common equity entitled to vote generally in the
election
of
directors, unless such Beneficial Ownership arises as a result of
a
revocable proxy delivered in response to a public
proxy or consent
solicitation made pursuant to the applicable
rules and regulations
under the
Exchange Act; and provided that no person or group shall
be
deemed
to be the Beneficial Owner of any securities tendered pursuant
to a
tender or exchange offer made by or on behalf of such person
or
group
until such tendered securities are accepted for
purchase or
exchange
under such offer;
(2) consummation of (A) any
recapitalization, reclassification or change
of
Common Stock (other than changes resulting from a
subdivision or
combination) as a result of which Common Stock
would be converted
into,
or exchanged for, stock, other securities, other
property or
assets
or (B) any statutory share exchange, consolidation or
merger
involving the Company pursuant to
which Common Stock shall be
converted into cash, securities or other property or any
sale, lease
or
other transfer in one transaction or a series of
transactions of
all or
substantially all of the consolidated assets of the Company and
the
Company's Subsidiaries, taken as a whole, to any person other
than
one or more
of the Company's Subsidiaries, other than any transaction:
(a) involving a consolidation or merger that does not
result in
a reclassification, conversion, exchange or cancellation
of
outstanding Common Stock;
(b) where the Holders of more than 50% of all
classes of the
Company's common equity
immediately prior to such
transaction that is
a statutory share
exchange,
consolidation or merger own, directly or
indirectly, more
than 50% of all classes of common equity of the
continuing
or surviving entity or transferee or
the parent entity
thereof immediately after such transaction; or
(c) that is effected solely to change the Company's
jurisdiction
of incorporation and results
in a reclassification,
conversion or exchange of outstanding shares of Common Stock
solely into shares of Common Stock of the surviving
entity;
or
(3) the Company's
Common Stock (or other capital stock
or American
Depositary
Receipts into which the Notes are then convertible pursuant
to the terms
of this Supplemental Indenture) ceases to be listed on a
United
States national or regional securities exchange;
provided, however, that a Fundamental Change as a result
of clause (2) above
shall not be deemed to have occurred
if 90% or more of the consideration
received or to be received by the Holders
of Common Stock (excluding cash
payments for fractional shares and cash payments made
pursuant to dissenters'
appraisal rights) in connection
with the transaction or
transactions
constituting the Fundamental Change consists of
shares of capital stock or
American Depositary Receipts traded on a United
States national or regional
securities exchange or which shall be so traded when
issued or exchanged in
connection with the transaction that would otherwise be
a Fundamental Change
(these securities being referred to as "Publicly Traded
Securities") and as a
result of this transaction or transactions the
Notes become convertible into
such Publicly Traded Securities, excluding cash payments for
fractional shares.
"Fundamental Change Purchase
Date" has the meaning provided in Section
4.01(a).
"Fundamental Change Purchase Notice"
has the meaning provided in Section
4.01(c).
"Fundamental Change Purchase
Price" has the meaning provided in Section
4.01(a).
"GAAP" means generally
accepted accounting principles set forth in
the
opinions and pronouncements of the Accounting Principles
Board of the American
Standards Board or in such other statements by such other
entity as have been
approved by a significant segment of the accounting profession as
in effect from
time to time.
"Guarantee" means any obligation,
contingent or otherwise, of any Person
directly or indirectly guaranteeing any Indebtedness of any other
Person and any
obligation, direct or indirect, contingent or otherwise, of such
Person (1) to
purchase or pay (or advance or supply funds for the purchase or
payment of) such
Indebtedness of such other Person (whether
arising by virtue of partnership
arrangements, or by agreement to
keep well, to purchase assets,
goods,
securities or services, to take or pay or
to maintain financial statement
conditions or otherwise) or (2) entered into for
purposes of assuring in any
other manner the obligee of such Indebtedness of
the payment thereof or to
protect such obligee against loss in respect thereof
(in whole or in part);
provided, however, that the term "guarantee" shall not include
endorsements for
collection or deposit in the ordinary course of business. The
term "guarantee,"
when used as a verb, has a correlative meaning.
"Holder" means the Person in whose
name a Note of any series is registered
on the security register books.
"Incur" means issue,
assume, Guarantee or otherwise become liable
for
Indebtedness.
"Indebtedness" means,
with respect to any Person, obligations of
such
Person for borrowed money (including
without limitation, indebtedness for
borrowed money evidenced by notes, bonds, debentures or similar
instruments).
"Indenture" has the meaning provided in
the recitals.
"Initial Dividend Threshold" has the
meaning provided in Section 5.02(d).
"Interest Payment Date" has the meaning
provided in Section 2.06(a).
"Issue Date" means May 4, 2009.
"Last Reported Sale Price" of the Common
Stock on any Trading Day means the
closing sale price per share (or if no closing
sale price is reported, the
average of the bid and ask prices or, if more
than one in either case, the
average of the average bid and average ask prices) of the
Common Stock on that
Trading Day as reported in composite transactions
for the principal United
States national or regional securities exchange on
which the Common Stock is
traded or, if the Common Stock is not listed for
trading on a United States
national or regional securities exchange on the relevant
Trading Day, the Last
Reported Sale Price shall be the last quoted bid price for
the Common Stock in
the over-the-counter market on the relevant Trading
Day as reported by the
National Quotation Bureau or similar organization selected by
the Company. If
the Common Stock is not so listed or quoted, the Last
Reported Sale Price shall
be the average of the mid-point of the last bid and ask
prices for the Common
Stock on the relevant date from each of at least
three nationally recognized
independent investment banking firms selected by the Company for
such purpose.
"Liens" has the meaning provided in
Section 3.01.
"Notes" has the meaning provided in the
recitals.
"Officer" means the Chairman of the Board,
the Chief Executive Officer, the
President, the Chief Financial Officer, any Vice President, the
Treasurer or the
Secretary of the Company.
"Paying Agent" has the meaning provided in
Section 2.05.
"Person" means any individual,
corporation, partnership, limited liability
company, joint venture, association, joint-stock company,
trust, unincorporated
organization or government or political subdivision thereof.
"Principal Property" means any blast
furnace, steel producing facility, or
casters that are part of a plant that includes such a
facility, in each case
located in the United States, having a net book
value in excess of 1% of
Consolidated Net Tangible Assets at the time of determination.
"Publicly Traded Securities" has the
meaning provided in the definition of
Fundamental Change in this Section 1.03.
"Record Date" means, in respect of a
dividend or distribution to holders of
Common Stock, the date fixed for
determination of holders of Common Stock
entitled to receive such dividend or distribution.
"Reference Property" has the meaning
provided in Section 5.03(a).
"Regular Record Date" for the
payment of interest on the Notes (including
Additional Interest, if any), means the May 1 (whether or not
a Business Day)
immediately preceding the Interest Payment Date on May 15
and the November 1
(whether or not a Business Day) immediately preceding the Interest
Payment Date
on November 15.
"Reorganization Event" has the meaning
provided in Section 5.03(a).
"Scheduled Trading Day" means a day
that is scheduled to be a Trading Day
on the primary securities exchange or market on which the Common
Stock is listed
or admitted to trading. If the Common Stock is
not so listed or admitted to
trading, "Scheduled Trading Day" means a Business Day.
"Securities" has the meaning provided in
the recitals.
"Security Register" means the
books and records, whether electronic or
physical, maintained by the Security Registrar
detailing the identities and
other information concerning the Holders.
"Security Registrar" means the
Trustee.
"Settlement Date" has the meaning provided
in Section 5.01(a).
"Spin-Off" has the meaning provided in
Section 5.02(c).
"Stated Maturity" means May 15, 2014.
"Stock Price" means, with respect to
a Fundamental Change, the price per
share of Common Stock paid in connection with such
Fundamental Change, which
shall be equal to (i) if such Fundamental Change is a
transaction described in
clause (1) or (2) of the definition thereof and holders of
Common Stock receive
only cash as a result of such Fundamental Change, and (ii) in
all other cases,
the average of the Last Reported Sale Prices of the
Common Stock for the 10
consecutive Trading-Day period ending on the Trading Day
immediately preceding
the Effective Date.
"Subsidiary" means, with respect to any
Person (the "parent") at any date,
any corporation, limited liability company, partnership,
association or other
entity owning a majority of the shares of securities or other
interests having
ordinary voting power for the election of directors or
another governing body
(other than securities or interests having such power
only by reason of the
happening of a contingency) are at the time
beneficially owned directly or
indirectly through one or more intermediaries, or both by the
parent.
"Supplemental Indenture" has the meaning
provided in the preamble.
"Trading Day" means a
day during which trading in securities generally
occurs on the principal United States national or regional
securities exchange
on which the Common Stock is then listed or
admitted to trading or, if the
Common Stock is not then listed or admitted to
trading on a United States
national or regional securities exchange, in the principal other
market on which
the Common Stock is then traded; provided that if the Common
Stock is not so
listed or traded, "Trading Day" means a Business Day.
"Trust Officer" means, when used
with respect to the Trustee, any officer
within the corporate trust department of
the Trustee, including any vice
president, assistant vice president, assistant secretary,
assistant treasurer,
trust officer or any other officer of the
Trustee who customarily performs
functions similar to those performed by the Persons who at
the time shall be
such officers, respectively, or to whom any corporate trust
matter is referred
because of such person's knowledge of and
familiarity with the particular
subject and having direct
responsibility for the administration
of this
Supplemental Indenture.
"Withholding Agent" means the office or
agency appointed by the Company to
withhold the appropriate amount from any payment, to which
withholding applies,
made by the Company to a Holder in respect of the
Notes. The Withholding Agent
appointed by the Company shall initially be the Trustee.
"$" means United States dollars.
ARTICLE TWO
GENERAL TERMS AND CONDITIONS OF THE NOTES
SECTION 2.01. Designation and
Principal Amount.
The Notes are
hereby authorized and are designated the
4.00% Senior
Convertible Notes due 2014, unlimited in aggregate principal
amount. The Notes
issued on the date hereof pursuant to the terms of this Indenture
shall be in an
aggregate principal amount of $862,500,000, which amount shall be
set forth in
the written order of the Company for the authentication
and delivery of the
Notes pursuant to Section 3.03 of the Base Indenture.
In addition, the Company
may issue, from time to time in
accordance with the provisions of
this
Indenture, additional Notes having the same terms and
conditions as the Notes
issued on the date hereof in all respects (except for
the payment of interest
accruing prior to the issue date of such
additional Notes), so that such
additional Notes shall be consolidated and form a single series
with the Notes
issued on the date hereof and shall be governed by the terms of the
Indenture.
Section 2.02. Maturity.
The principal amount of the Notes shall be
payable on May 15, 2014.
Section 2.03. No Optional
Redemption.
The Notes issued under this
Supplemental Indenture shall not be redeemable
at the election of the Company prior to their Stated Maturity.
Section 2.04. Defeasance.
The Notes issued under this Supplemental
Indenture shall not be subject to
Article XIII of the Base Indenture.
Section 2.05. Form and Payment.
The Notes shall be issued as
global notes, in fully registered book-entry
form without coupons in denominations of $2,000 and integral
multiples of $1,000
in excess thereof.
Principal, premium, if any, and/or
interest, if any, on the global notes
representing the Notes shall be made to The Depository
Trust Company, or DTC
(the "Depositary").
The global notes representing
the Notes shall be deposited with, or on
behalf of, the Depositary and shall be
registered, at the request of the
Depositary, in the name of Cede & Co. No global note may
be transferred except
as a whole by a nominee of the Depositary to another
nominee of the Depositary
or to a successor of the Depositary or a nominee of such
successor.
The Trustee shall act as Paying
Agent for the Notes (the "Paying Agent").
The Company may choose to pay interest by mailing checks or making
wire or other
electronic funds transfers. All money paid by the Company to
any Paying Agent
that remains unclaimed at the end of two years after
the amount is due to
Holders shall be repaid to the Company. After such two-year period,
Holders may
look only to the Company for payment and not to the
Trustee, any other Paying
Agent or anyone else. The Company may
also arrange for additional payment
offices, and may cancel or change these offices,
including any use of the
Trustee's corporate trust office. The Company may appoint and
change the Paying
Agent without prior notice to the Holders.
Section 2.06. Interest.
(a) Interest on the Notes shall
accrue at the rate of 4.00% per annum from
and including the date specified on the face of such Notes
until the principal
thereof is paid, deemed paid, or made available for
payment. Interest on the
Notes shall be payable semiannually in arrears on
May 15 and November 15,
commencing on November 15, 2009 (each an "Interest Payment
Date"). Interest on
the Notes shall be computed on the basis of a 360-day year
comprised of twelve
30-day months. If any Interest Payment Date (other than an Interest
Payment Date
coinciding with the Stated Maturity or earlier required repurchase
date upon a
Fundamental Change) of a Note falls on a day that is not a
Business Day, such
Interest Payment Date shall be postponed to the next succeeding
Business Day and
no interest on such payment shall accrue
for the period from the Interest
Payment Date to the next succeeding Business Day. If the
Stated Maturity falls
on a day that is not a Business Day, any
required payments of interest and
principal shall be made on the next succeeding Business Day
and no interest on
such payment shall accrue for the period from and after the
Stated Maturity to
such next succeeding Business Day. If a Fundamental
Change Purchase Date falls
on a day that is not a Business Day,
the Company shall purchase the Notes
tendered for purchase on the next succeeding Business
Day and no interest or
Additional Interest on such Notes shall accrue for the period from
and after the
earlier Fundamental Change Purchase Date to such next succeeding
Business Day.
(b) A Holder of
any Notes after 5:00 p.m., New York City time, on
a
Regular Record Date shall be entitled
to receive interest (including any
Additional Interest), on such Notes on the corresponding Interest
Payment Date.
Holders of Notes at 5:00 p.m., New York City
time, on a Regular Record Date
shall receive payment of interest (including any Additional
Interest) payable on
the corresponding Interest Payment Date notwithstanding the
conversion of such
Notes at any time after 5:00 p.m., New York City
time on such Regular Record
Date. Notes surrendered for conversion during the period
after 5:00 p.m., New
York City time, on any Regular Record Date to 9:00 a.m., New York
City time, on
the corresponding Interest Payment Date must be accompanied
by payment of an
amount equal to the interest (including any Additional Interest)
that the Holder
is to receive on the Notes on such Interest Payment Date;
provided that no such
payment need be made (i) for conversions
following the Regular Record Date
immediately preceding Stated Maturity; (ii) if
the Company has specified a
Fundamental Change Purchase Date that is after a Regular Record
Date and on or
prior to the corresponding Interest Payment Date or (iii) to
the extent of any
overdue interest (including any overdue Additional
Interest), if any overdue
interest exists at the time of conversion with
respect to such Note. The
Company's delivery to the Holder of the shares of Common
Stock, together with
any cash payment for any fractional shares into which a
Note is convertible,
shall be deemed to satisfy in full the Company's
obligation to pay (i) the
principal amount of the Note and (ii) accrued and unpaid interest
and Additional
Interest, if any, to, but not including, the Conversion Date.
ARTICLE THREE
ADDITIONAL COVENANTS
SECTION 3.01. Limitation on
Liens.
The Company shall not Incur,
and shall not permit any of its Subsidiaries
to Incur, any Indebtedness for borrowed money secured
by a mortgage, security
interest, pledge, lien, charge or other
similar encumbrance (collectively,
"Liens") upon (a) any Principal Property of
the Company or any Principal
Property of a Subsidiary or (b) any shares of stock or other equity
interests or
Indebtedness of any Subsidiary that owns a
Principal Property (whether such
Principal Property, shares of stock or other equity interests or
Indebtedness is
now existing or owned or hereafter created or
acquired), in each case, unless
prior to or at the same time, the Notes (together with,
at the option of the
Company, any other Indebtedness of the Company or any Subsidiary
ranking equally
in right of payment with the Notes) are equally and ratably
secured with or, at
the option of the Company, prior to, such Indebtedness.
Any Lien created for the
benefit of Holders pursuant to the preceding
sentence shall provide by its terms that such Lien
shall be automatically and
unconditionally released and discharged upon the release and
discharge of such
Lien.
The foregoing restriction does not
apply, with respect to any Person, to
any of the following:
(i) leases to which such Person is a
party, or deposits to secure public
or
statutory obligations of such Person or deposits of cash or
United
States
government bonds to secure surety or appeal bonds to which such
Person
is a party, or deposits as security for contested
taxes or
import
duties or for the payment of rent, in each case Incurred in the
ordinary
course of business;
(ii) Liens imposed by law, such as
carriers', warehousemen's and mechanics'
liens,
in each case for sums not yet overdue by more than 30 days
or
being
contested in good faith by appropriate
proceedings or other
Liens
arising out of judgments or awards against such
Person with
respect to which such Person shall then be proceeding with
an appeal
or
other proceedings for review and Liens arising solely by virtue
of
any
statutory or common law provision relating to
banker's Liens,
rights
of set-off or similar rights and
remedies as to deposit
accounts or other funds
maintained with a creditor depository
institution;
provided, however, that (A) such deposit account is not a
dedicated cash collateral account and is not subject to
restrictions
against access by the Company in
excess of those set forth by
regulations promulgated by the Federal Reserve
Board and (B) such
deposit account is not intended by the Company to
provide collateral
to the
Depositary;
(iii) Liens for property taxes not yet
subject to penalties for non-
payment or which are being contested in good
faith by appropriate
proceedings;
(iv) minor survey exceptions, minor
encumbrances, easements or reservations
of, or
rights of others for, licenses, rights-of-way, sewers, electric
lines,
telegraph and telephone lines and other similar
purposes, or
zoning
or other restrictions as to the use of real property or
Liens
incidental to the conduct of the business of such
Person or to the
ownership of
its properties which were not Incurred in connection with
Indebtedness and which do not in the aggregate
materially adversely
affect the
value of said properties or materially impair their use
in
the
operation of the business of such Person;
(v) Liens securing
Indebtedness Incurred to finance the
construction,
purchase or lease of, or repairs,
improvements or additions to,
property, plant or equipment of such Person; provided,
however, that
the Lien may
not extend to any other property owned by such Person at
the
time the Lien is Incurred (other than assets and property
affixed
or
appurtenant thereto), and the Indebtedness (other than any
interest
thereon) secured by the Lien may not be Incurred more
than 180 days
after
the later of the acquisition,
completion of construction,
repair,
improvement, addition or commencement of full operation of the
property
subject to the Lien;
(vi) Liens existing on the issue date of
the Notes;
(vii) Liens on property or shares of capital
stock of another Person at
the
time such other Person becomes a Subsidiary
of such Person;
provided,
however, that the Liens may not extend to any other property
owned
by such Person (other than assets and
property affixed or
appurtenant
thereto);
(viii) Liens securing industrial revenue
or pollution control bonds
issued for
the benefit of the Company;
(ix) Liens on property at the
time such Person or any of its Subsidiaries
acquires the
property, including any acquisition by means of a merger
or
consolidation with or into such Person or a
Subsidiary of such
Person;
provided, however, that the Liens may not extend to any
other
property
owned by such Person (other than assets and property
affixed
or
appurtenant thereto);
(x) Liens securing
Indebtedness or other obligations of a Subsidiary
of
such
Person owing to such Person or a wholly-owned Subsidiary of
such
Person;
(xi) Liens to secure any
Refinancing (or successive Refinancings) as a
whole, or in
part, of any Indebtedness secured by any Lien referred to
in
the foregoing clauses (v), (vi), (vii), (viii) or (ix);
provided,
however, that: (a) such new Lien shall be limited to all
or part of
the
same property and assets that secured or,
under the written
agreements
pursuant to which the original Lien arose, could secure the
original Lien (plus improvements and accessions to, such
property or
proceeds or distributions thereof); and (b) the
Indebtedness secured
by
such Lien at such time is not increased to any amount greater
than
the
sum of (x) the outstanding principal amount
or, if greater,
committed amount of the Indebtedness under clauses (v),
(vi), (vii),
(viii)
or (ix) at the time the original Lien became a Lien
permitted
under
the Indenture and (y) an amount necessary to pay any
fees and
expenses, including premiums, related to such Refinancing,
refunding,
extension,
renewal or replacement; and
(xii) Liens on assets subject
to a sale and leaseback transaction
securing Attributable Debt permitted to
be Incurred pursuant to
Section
3.02.
Notwithstanding
the foregoing restrictions, the
Company and its
Subsidiaries shall be permitted to Incur Indebtedness secured
by a Lien which
would otherwise be subject to the foregoing
restrictions without equally and
ratably securing the Notes, if any, provided that after
giving effect to such
Indebtedness, the aggregate amount of all Indebtedness
secured by Liens (not
including Liens permitted under clauses (i) through (xii) above),
together with
all Attributable Debt outstanding pursuant to the second
paragraph of Section
3.02, does not exceed 15% of the Consolidated Net Tangible Assets
of the Company
calculated as of the date of the creation or incurrence of the
Lien. The Company
and its Subsidiaries also may, without equally and ratably
securing the Notes,
create or Incur Liens that extend, renew,
substitute or replace (including
successive extensions, renewals, substitutions or replacements), in
whole or in
part, any Lien permitted pursuant to the preceding sentence.
Section 3.02. Limitation on Sale and
Leaseback Transactions.
The Company shall not directly or
indirectly, and shall not permit any of
its Subsidiaries that own a Principal Property directly or
indirectly to, enter
into any sale and leaseback transaction for the sale
and leasing back of any
Principal Property, whether now owned or hereafter acquired,
unless:
(i) such transaction was entered
into prior to the date of issuance of the
Notes (other
than any additional Notes);
(ii) such transaction was for the sale and
leasing back to the Company
or
one of its Subsidiaries of any property by the Company or
one of
its
Subsidiaries;
(iii) such transaction involves a lease
for not more than three years
(or
which may be terminated by the Company or its Subsidiaries
within
a period of
not more than three years),
(iv) the Company would be entitled
to Incur Indebtedness secured by a Lien
with
respect to such sale and leaseback transaction without
equally
and
ratably securing the Notes pursuant to the
last paragraph of
Section
3.01; or
(v) the Company applies an
amount equal to the net proceeds from the sale
of
such property to the purchase of other property or assets
used or
useful
in its business or to the retirement of long-term Indebtedness
within
365 days before or after the effective date of any such
sale
and
leaseback transaction; provided that in lieu of
applying such
amount
to the retirement of long-term Indebtedness, the
Company may
deliver Notes of both series to the Trustee for
cancellation, such
Notes to be
credited at the cost thereof to it.
Notwithstanding the restrictions set forth
in the preceding paragraph, the
Company and its Subsidiaries may enter into any sale
and leaseback transaction
which would otherwise be subject to the foregoing
restrictions, if after giving
effect thereto the aggregate amount of all Attributable
Debt with respect to
such transactions, together with all Indebtedness outstanding
pursuant to the
last paragraph of Section 3.01, does not exceed
15% of the Consolidated Net
Tangible Assets of the Company calculated as of the closing date of
the sale and
leaseback transaction.
ARTICLE FOUR
PURCHASE OF NOTES AT THE OPTION OF HOLDERS
UPON A FUNDAMENTAL CHANGE
SECTION 4.01. Purchase of
Notes at the Option of Holders Upon a
Fundamental
Change.
(a) Purchase of
Notes at the Option of the Holder. If
a Fundamental
Change occurs at any time, each Holder shall have the
right, at such Holder's
option, to require the Company to purchase any or all of the
Holder's Notes, or
any portion of the principal amount thereof, that
is equal to $1,000 or an
integral multiple thereof at a purchase price equal to
100% of the principal
amount of the Notes to be purchased plus accrued and unpaid
interest, including
Additional Interest, if any, to but excluding the
Fundamental Change Purchase
Date (the "Fundamental Change Purchase Price"); provided that if
the Fundamental
Change Purchase Date occurs after a Regular Record Date and
on or prior to the
corresponding Interest Payment Date, the Company shall pay
accrued and unpaid
interest plus Additional Interest, if any, to but
excluding the Fundamental
Change Purchase Date to the
record Holder on the Regular
Record Date
corresponding to such Interest Payment Date and the Fundamental
Change Purchase
Price payable to the Holder who presents the Note for
repurchase shall be 100%
of the principal amount of such Note. The Fundamental Change
Purchase Date shall
be a Business Day specified by the Company
that is no later than the 35th
calendar day following the date of the Company Notice
delivered in connection
with such Fundamental Change pursuant to Section
4.01(b) (subject to extension
to comply with applicable law, as provided in Section 4.02(d)) (the
"Fundamental
Change Purchase Date"). Any Notes purchased by the Company shall be
paid for in
cash.
(b) Notice of Fundamental
Change. The Company shall deliver, or cause to
be delivered in accordance with the last
paragraph of this Section 4.01(b),
notices of the occurrence of a Fundamental Change
and of the purchase rights
arising as a result thereof (each, a "Company Notice") to the
Holders at their
addresses shown in the Security Register maintained by the
Security Registrar,
and to the Trustee and the Paying Agent, on or
before the 20th calendar day
after the occurrence of the Fundamental Change (each
such date of delivery, a
"Company Notice Date"). Each Company Notice shall include a
form of Fundamental
Change Purchase Notice to be completed by a Holder and shall
state:
(i)
the events causing the Fundamental Change;
(ii) the
date of the Fundamental Change;
(iii) the last
date on which a Holder may exercise its repurchase
rights under Section 4.01;
(iv) the
Fundamental Change Purchase Price;
(v)
the Fundamental Change Purchase Date;
(vi)
the name and address of the Paying Agent
and the Conversion
Agent, if applicable;
(vii) if
applicable, the applicable Conversion Rate
and, if
applicable, any adjustments to the applicable Conversion Rate
as
a result of such Fundamental Change;
(viii) if
applicable, that the Notes with respect to
which a
Fundamental Change Purchase Notice has been delivered by a
Holder
may be converted only if the Holder withdraws
the Fundamental
Change Purchase Notice in accordance with
the terms of this
Supplemental Indenture; and
(ix) the
procedures that Holders must follow to require the Company to
purchase its Notes pursuant to Section 4.01.
Simultaneously with
providing such Company Notice, the
Company shall
publish a notice containing the information
in such Company Notice in a
newspaper of general circulation in The City
of New York or publish such
information on its then existi
