Exhibit 4.1
UNITED STATES STEEL CORPORATION,
Issuer
and
THE BANK OF NEW YORK,
Trustee
SECOND SUPPLEMENTAL INDENTURE
DATED AS OF DECEMBER 10, 2007
TO INDENTURE
DATED AS OF MAY 21, 2007
Relating To
$500,000,000 7.00% Senior Notes due February 1, 2018
SECOND SUPPLEMENTAL INDENTURE
SECOND SUPPLEMENTAL INDENTURE, dated as of December 10, 2007 (the
"Supplemental Indenture"), to the Indenture (defined below) among United States
Steel Corporation (the "Company"), a Delaware corporation, and The Bank of New
York, 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 7.00% Senior Notes due 2018 (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:
"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.
"Change of Control" has the meaning provided in Section 4.02.
"Change of Control Repurchase Event" has the meaning provided in Section
4.02.
"Comparable Treasury Issue" has the meaning provided in Section 4.01.
"Comparable Treasury Price" has the meaning provided in Section 4.01.
"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.
"Currency Agreement" means, in respect of a Person, any foreign exchange
contract, currency swap agreement or other similar agreement designed to protect
such Person against fluctuations in currency values.
"Depositary" has the meaning provided in Section 2.03.
"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.
"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.
"Hedging Obligation" means the obligations of any Person pursuant to any
Interest Rate Agreement or Currency Agreement.
"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).
"Independent Investment Banker" has the meaning provided in Section 4.01.
"Indenture" has the meaning provided in the recitals.
"Interest Payment Date" has the meaning provided in Section 2.04.
"Interest Rate Agreement" means, in respect of a Person, any interest rate
swap agreement, interest rate cap agreement or other financial agreement or
arrangement designed to protect such Person against fluctuations in interest
rates.
"Investment Grade" has the meaning provided in Section 4.02.
"Liens" has the meaning provided in Section 3.01.
"Xxxxx'x" has the meaning provided in Section 4.02.
"Notes" has the meaning provided in the recitals.
"Person" means any individual, corporation, partnership, limited liability
company, joint venture, association, joint-stock company, trust, unincorporated
organization or government or political subdivision thereof.
"Primary Treasury Dealer" has the meaning provided in Section 4.01.
"Principal Property" means any domestic blast furnace or 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.
"Rating Agency" has the meaning provided in Section 4.02.
"Rating Category" has the meaning provided in Section 4.02.
"Rating Date" has the meaning provided in Section 4.02.
"Ratings Event" has the meaning provided in Section 4.02.
"Reference Treasury Dealer" has the meaning provided in Section 4.01.
"Reference Treasury Dealer Quotations" has the meaning provided in Section
4.01.
"Refinance" means, in respect of any Indebtedness, to refinance, extend,
renew, refund, repay, prepay, redeem, defease or retire, or to issue other
Indebtedness in exchange or replacement for, such Indebtedness. "Refinanced" and
"Refinancing" shall have correlative meanings.
"S&P" has the meaning provided in Section 4.02.
"Securities" has the meaning provided in the recitals.
"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.
"Treasury Yield" has the meaning provided in Section 4.01.
"Voting Stock" has the meaning provided in Section 4.02.
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 7.00% Senior Notes
due 2018, 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 $500,000,000, 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 this Indenture.
Section 2.02. Maturity.
------------ --------
The principal amount of the Notes shall be payable on February 1, 2018.
Section 2.03. Form and Payment.
------------ ----------------
The Notes shall be issued as global notes, in fully registered book-entry
form without coupons in denominations of $1,000 and integral multiples 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 (the
"Depositary").
The global notes representing the Notes shall be deposited with, or on
behalf of, the Depositary and shall be registered in the name of the Depositary
or a nominee of the Depositary. No global note may be transferred except as a
whole by a nominee of the Depositary to the Depositary or to another nominee of
the Depositary, or by the Depositary or such nominee to a successor of the
Depositary or a nominee of such successor.
The Bank of New York shall act as Paying Agent for the Notes. The Company
may choose to pay interest by mailing checks or making wire 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 2.04. Interest.
------------ --------
Interest on the Notes shall accrue at the rate of 7.00% per annum.
Interest on the Notes shall accrue from December 10, 2007 or the most recent
interest payment date on which interest was paid. Interest on the Notes shall
be payable semiannually in arrears on February 1 and August 1, commencing on
August 1, 2008 (each an "Interest Payment Date"), to the Holders in whose names
the Notes are registered at the close of business on the January 15 and July 15
immediately preceding such Interest Payment Date. Interest on the Notes shall
be computed on the basis of a 360-day year comprised of twelve 30-day months.
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 Depository Trust Company, or DTC;
(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
(vi) 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
REDEMPTION OF THE NOTES
-----------------------
SECTION 4.01 Optional Redemption.
------------ -------------------
The Company may redeem the Notes, at its option, at any time in whole, or
from time to time in part, at a price equal to the greater of:
(i) 100% of the principal amount of the Notes to be redeemed; or
(ii) the sum of the present values of the remaining scheduled payments of
principal and interest on the Notes to be redeemed, exclusive of
interest accrued to the date of redemption, discounted to the date of
redemption on a semiannual basis (assuming a 360-day year consisting
of twelve 30-day months) at the applicable Treasury Yield plus 50
basis points, plus accrued interest to the date of redemption.
The Notes called for redemption become due on the date fixed for
redemption. Notices of redemption shall be mailed by first-class mail at least
30 but not more than 60 days before the redemption date to each Holder of Notes
to be redeemed at its registered address. The notice of redemption for the Notes
shall state the amount to be redeemed. On and after the redemption date,
interest shall cease to accrue on any Notes that are redeemed. If less than all
the Notes of any series are redeemed at any time, the Trustee shall select Notes
on a pro rata basis or by any other method the Trustee deems fair and
appropriate.
For purposes of determining the optional redemption price, the following
definitions are applicable:
"Comparable Treasury Issue" means the United States Treasury security
selected by an Independent Investment Banker as having a maturity comparable to
the remaining term of each series of the Notes that would be utilized, at the
time of selection and in accordance with customary financial practice, in
pricing new issues of corporate debt securities of comparable maturity to the
remaining terms of each series of the Notes.
"Comparable Treasury Price" means, with respect to any redemption date, the
average of the Reference Treasury Dealer Quotations obtained by the Company for
that redemption date, after excluding the highest and lowest of such Reference
Treasury Dealer Quotations, or, if the Company is unable to obtain at least four
such Reference Treasury Dealer Quotations, the average of all Reference Treasury
Dealer Quotations obtained by the Company.
"Independent Investment Banker" means Banc of America Securities LLC, X.X.
Xxxxxx Securities Inc. or Scotia Capital (USA) Inc., as selected the Company or,
if such firms are unwilling or unable to select the applicable Comparable
Treasury Issue, an independent investment banking institution of national
standing appointed by the Company.
"Reference Treasury Dealer" means Banc of America Securities LLC, X.X.
Xxxxxx Securities Inc. and their respective successors and at least two other
primary U.S. government securities dealers in New York City (each, a "Primary
Treasury Dealer") selected by the Independent Investment Banker; provided,
however, that if any of the foregoing shall cease to be a Primary Treasury
Dealer, the Company shall substitute therefor another Primary Treasury Dealer.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any redemption date for the Notes, an average, as
determined by the Company, of the bid and asked prices for the Comparable
Treasury Issue for the Notes, expressed in each case as a percentage of its
principal amount, quoted in writing to the Trustee by the Reference Treasury
Dealer at 3:30 p.m., New York City time, on the third business day preceding the
redemption date.
"Treasury Yield" means, with respect to any redemption date applicable to
the Notes, the rate per annum equal to the semiannual equivalent yield to
maturity, computed as of the third business day immediately preceding the
redemption date, of the Comparable Treasury Issue, assuming a price for the
Comparable Treasury Issue, expressed as a percentage of its principal amount,
equal to the applicable Comparable Treasury Price for the redemption date.
Section 4.02. Purchase of Notes Upon a Change of Control Repurchase Event.
------------ -----------------------------------------------------------
If a Change of Control Repurchase Event occurs, unless the Company has
exercised its right to redeem the Notes pursuant to the Indenture, the Company
shall be required to make an offer to each Holder of the Notes to repurchase all
or any part (in excess of $1,000 and in integral multiples of $1,000) of that
Holder's Notes at a repurchase price in cash equal to 101% of the aggregate
principal amount of the Notes repurchased plus any accrued and unpaid interest
on the Notes repurchased to, but not including, the date of repurchase. Within
30 days following any Change of Control Repurchase Event or, at the option of
the Company, prior to any Change of Control, but after the public announcement
of the Change of Control, the Company shall mail a notice to each Holder, with a
copy to the Trustee, describing the transaction or transactions that constitute
or may constitute the Change of Control Repurchase Event and offering to
repurchase the Notes on the payment date specified in the notice, which date
shall be no earlier than 30 days and no later than 60 days from the date such
notice is mailed. The notice shall, if mailed prior to the date of consummation
of the Change of Control, state that the offer to purchase is conditioned on a
Change of Control Repurchase Event occurring on or prior to the payment date
specified in the notice. The Company shall comply with the requirements of Rule
14e-1 under the Exchange Act, and any other securities laws and regulations
thereunder to the extent those laws and regulations are applicable in connection
with the repurchase of the Notes as a result of a Change of Control Repurchase
Event. To the extent that the provisions of any securities laws or regulations
conflict with the Change of Control Repurchase Event provisions of the Notes,
the Company shall comply with the applicable securities laws and regulations and
shall not be deemed to have breached its obligations under the Change of Control
Repurchase Event provisions of the Notes by virtue of such conflict.
On the repurchase date following a Change of Control Repurchase Event, the
Company shall, to the extent lawful:
(i) accept for payment all the Notes or portions of the Notes properly
tendered pursuant to its offer;
(ii) deposit with the Paying Agent an amount equal to the aggregate
purchase price in respect of all the Notes or portions of the Notes
properly tendered; and
(iii) deliver or cause to be delivered to the Trustee the Notes
properly accepted, together with an officers' certificate stating the
aggregate principal amount of Notes being purchased by the Company.
The Paying Agent shall promptly mail to each Holder of Notes properly
tendered, the purchase price for the Notes, and the Trustee shall promptly
authenticate and mail (or cause to be transferred by book-entry) to each Holder
a new Note equal in principal amount to any unpurchased portion of any Notes
surrendered.
The Company shall not be required to make an offer to repurchase the Notes
upon a Change of Control Repurchase Event if a third party makes such an offer
in the manner, at the times and otherwise in compliance with the requirements
for an offer made by the Company and such third party purchases all Notes
properly tendered and not withdrawn under its offer.
For purposes of this Section 4.02, the following definitions are
applicable:
"Change of Control" shall occur if: (1) any "person" (as such term is used
in Sections 13(d) and 14(d) of the Exchange Act) is or becomes the "beneficial
owner" (as defined in Rules 13d-3 and 13d-5 under the Exchange Act, except that
for purposes of this clause (1) such person shall be deemed to have "beneficial
ownership" of all shares that any such person has the right to acquire, whether
such right is exercisable immediately or only after the passage of time),
directly or indirectly, of more than 50% of the total voting power of the Voting
Stock of the Company; (2) individuals who on the issue date of the Notes
constituted the Board of Directors (together with any new directors whose
election by such Board of Directors or whose nomination for election by the
shareholders of the Company was approved by a vote of 66?% of the directors of
the Company then still in office who were either directors on the issue date of
the Notes or whose election or nomination for election was previously so
approved) cease for any reason to constitute a majority of the Board of
Directors then in office; (3) the adoption of a plan relating to the liquidation
or dissolution of the Company; or (4) the merger or consolidation of the Company
with or into another person or the merger of another person with or into the
Company, or the sale of all or substantially all the assets of the Company
(determined on a consolidated basis) to another person, other than a merger or
consolidation transaction in which Holders of securities that represented 100%
of the Voting Stock of the Company immediately prior to such transaction (or
other securities into which such securities are converted as part of such merger
or consolidation transaction) own directly or indirectly at least a majority of
the voting power of the Voting Stock of the surviving person in such merger or
consolidation transaction immediately after such transaction and in
substantially the same proportion as before the transaction.
"Change of Control Repurchase Event" means the occurrence of both a Change
of Control and a Ratings Event.
"Investment Grade" means a rating of Baa3 or better by Xxxxx'x (or its
equivalent under any successor Rating Categories of Xxxxx'x), a rating of BBB-
or better by S&P (or its equivalent under any successor Rating Categories of
S&P) and the equivalent Investment Grade credit rating from any additional
Rating Agency or Rating Agencies selected by the Company.
"Xxxxx'x" means Xxxxx'x Investors Service Inc.
"Rating Agency" means (1) each of Moody's and S&P and (2) if either of
Moody's or S&P ceases to rate the Notes or fails to make a rating of the Notes
publicly available for reasons outside of the control of the Company, a
"nationally recognized statistical rating organization" within the meaning of
Rule 15c3-l(e)(2)(vi)(F) under the Exchange Act, selected by the Company (as
certified by a resolution of the board of directors of the Company) as a
replacement agency for Moody's or S&P, or both, as the case may be.
"Rating Category" means (i) with respect to S&P, any of the following
categories: XXX, XX, X, XXX, XX, X and D (or equivalent successor categories);
(ii) with respect to Moody's, any of the following categories: Baa, Ba, B, Caa,
Ca, C and D (or equivalent successor categories); and (iii) the equivalent of
any such category of S&P or Moody's used by another Rating Agency. In
determining whether the rating of the Notes has decreased by one or more
gradations, gradations within Rating Categories (+ and - for S&P; 1, 2 and 3 for
Moody's; or the equivalent gradations for another Rating Agency) shall be taken
into account (e.g., with respect to S&P, a decline in a rating from BB+ to BB,
as well as from BB- to B+, shall constitute a decrease of one gradation).
"Rating Date" means the date that is 60 days prior to the earlier of (i) a
Change of Control or (ii) public notice of the occurrence of a Change of Control
or of the intention by the Company to effect a Change of Control.
"Ratings Event" means the occurrence of the events described in (a) or (b)
of this definition on, or within 60 days after the earlier of, (i) the
occurrence of a Change of Control or (ii) public notice of the occurrence of a
Change of Control or the intention by the Company to effect a Change of Control
(which period shall be extended so long as the rating of the Notes is under
publicly announced consideration for a possible downgrade by any of the Rating
Agencies): (a) if the Notes are rated by both Rating Agencies on the Rating Date
as Investment Grade, the rating of the Notes shall be reduced so that the Notes
are rated below Investment Grade by both Rating Agencies, or (b) if the Notes
are rated below Investment Grade by at least one Rating Agency, the ratings of
the Notes by both Rating Agencies shall be decreased by one or more gradations
(including gradations within Rating Categories, as well as between Rating
Categories) and the Notes are then rated below Investment Grade by both Rating
Agencies. Notwithstanding the foregoing, a Ratings Event otherwise arising by
virtue of a particular reduction in rating shall not be deemed to have occurred
in respect of a particular Change of Control (and thus shall not be deemed a
Ratings Event for purposes of the definition of Change of Control Repurchase
Event hereunder) if the Rating Agencies making the reduction in rating to which
this definition would otherwise apply do not announce or publicly confirm or
inform the Trustee in writing at its request that the reduction was the result,
in whole or in part, of any event or circumstance comprised of or arising as a
result of, or in respect of, the applicable Change of Control (whether or not
the applicable Change of Control shall have occurred at the time of the Ratings
Event).
"S&P" means Standard & Poor's, a division of The XxXxxx-Xxxx Companies,
Inc.
"Voting Stock" of any specified "person" (as that term is used in Section
13(d)(3) of the Exchange Act) as of any date means the capital stock of such
person that is at the time entitled to vote generally in the election of the
board of directors of such person.
ARTICLE FIVE
EVENTS OF DEFAULT
-----------------
In addition to the Events of Default set forth in Section 5.01 of the Base
Indenture, the Notes shall also be subject to the following Event of Default:
(i) a failure by the Company to repurchase Notes of such series tendered
for repurchase following the occurrence of a Change of Control
Repurchase Event in conformity with Section 4.02.
ARTICLE SIX
MISCELLANEOUS
-------------
SECTION 6.01. Form of Notes.
------------ -------------
The Notes and the Trustee's Certificates of Authentication to be endorsed
thereon are to be substantially in the form of Exhibit A, which forms are hereby
incorporated in and made a part of this Supplemental Indenture.
The terms and provisions contained in the Notes shall constitute, and are
hereby expressly made, a part of this Supplemental Indenture, and the Company
and the Trustee, by their execution and delivery of this Supplemental Indenture,
expressly agree to such terms and provisions and to be bound thereby.
Section 6.02. Ratification of Base Indenture.
------------ ------------------------------
The Base Indenture, as supplemented by this Supplemental Indenture, is in
all respects ratified and confirmed, and this Supplemental Indenture shall be
deemed part of the Base Indenture in the manner and to the extent herein and
therein provided.
Section 6.03. Trust Indenture Act Controls.
------------ ----------------------------
If any provision hereof limits, qualifies or conflicts with the duties
imposed by Section 310 through 317 of the Trust Indenture Act, the imposed
duties shall control.
Section 6.04. Conflict with Indenture.
------------ -----------------------
To the extent not expressly amended or modified by this Supplemental
Indenture, the Base Indenture shall remain in full force and effect. If any
provision of this Supplemental Indenture relating to the Notes is inconsistent
with any provision of the Base Indenture, the provision of this Supplemental
Indenture shall control.
Section 6.05. Governing Law.
------------ -------------
THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
Section 6.06. Successors.
------------ ----------
All agreements of the Company in the Base Indenture, this Supplemental
Indenture and the Notes shall bind its successors. All agreements of the
Trustee in the Base Indenture and this Supplemental Indenture shall bind its
successors.
Section 6.07. Counterparts.
------------ ------------
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
Section 6.08. Trustee Disclaimer.
------------ ------------------
The Trustee makes no representation as to the validity or sufficiency of
this Supplemental Indenture other than as to the validity of its execution and
delivery by the Trustee. The recitals and statements herein are deemed to be
those of the Company and not the Trustee.
IN WITNESS WHEREOF, the parties to this Supplemental Indenture have caused
it to be duly executed as of the day and year first above written.
UNITED STATES STEEL CORPORATION
By:/s/ Xxxxx X. Xxxxxxxx
---------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President & Treasurer
THE BANK OF NEW YORK, as Trustee
By:/s/ Xxxx XxXxxxxx
-----------------
Name: Xxxx XxXxxxxx
Title: Vice President
EXHIBIT A
Form of Global Note Representing the Notes
