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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
The Securities Exchange Act of 1934
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Date of Report (Date of earliest event reported): March 5, 1998
USX CORPORATION
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(Exact name of registration as specified in its charter)
DELAWARE 1-5153 25-0996816
State or other (Commission (IRS Employer
jurisdiction of File Number) Identification No.)
incorporation)
600 GRANT STREET, PITTSBURGH, PA 15219-4776
(Address of principal executive offices) (Zip Code)
(412) 433-1121
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(Registration telephone number,
including area code)
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ITEM 5. OTHER EVENTS.
On March 5, 1998 USX Corporation executed an Underwriting Agreement with
Goldman, Sachs & Co., Credit Suisse First Boston Corporation and J. P. Morgan
Securities Inc. in connection with the issuance of 6.85% Notes Due 2008 pursuant
to a shelf registration statement on Form S-3, File No. 33-52937.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
(c) Exhibits
1 Underwriting and Pricing Agreements dated March 5, 1998.
4.1 Establishment Action of the Terms and Rate Committees.
4.2 Indenture dated as of March 15, 1993.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
USX CORPORATION
By /s/ E. F. GUNA
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E. F. GUNA
Vice President & Treasurer
Dated: March 5, 1998
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Exhibit 1
USX CORPORATION
DEBT SECURITIES
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UNDERWRITING AGREEMENT
Goldman, Sachs & Co.,
Credit Suisse First Boston Corporation,
J.P. Morgan Securities Inc.,
c/o Goldman, Sachs & Co.,
85 Broad Street,
New York, New York 10004.
March 5, 1998
Dear Sirs:
From time to time USX Corporation, a Delaware corporation (the
"Company"), proposes to enter into one or more Pricing Agreements (each a
"Pricing Agreement") in the form of Annex I hereto, with such additions and
deletions as the parties thereto may determine, and, subject to the terms and
conditions stated herein and therein, to issue and sell to the firms named in
Schedule I to the applicable Pricing Agreement (such firms constituting the
"Underwriters" with respect to such Pricing Agreement and the securities
specified therein) certain of its debt securities (the "Securities") specified
in Schedule II to such Pricing Agreement (with respect to such Pricing
Agreement, the "Designated Securities").
The terms and rights of any particular issuance of Designated
Securities shall be as specified in the Pricing Agreement relating thereto and
in or pursuant to the indenture (the "Indenture") identified in such Pricing
Agreement.
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1. Particular sales of Designated Securities may be made from time to
time to the Underwriters of such Securities, for whom the firms designated as
representatives of the Underwriters of such Securities in the Pricing Agreement
relating thereto will act as representatives (the "Representatives"). The term
"Representatives" also refers to a single firm acting as sole representative of
the Underwriters and to Underwriters who act without any firm being designated
as their representative. This Underwriting Agreement shall not be construed as
an obligation of the Company to sell any of the Securities or as an obligation
of any of the Underwriters to purchase the Securities. The obligation of the
Company to issue and sell any of the Securities and the obligation of any of the
Underwriters to purchase any of the Securities shall be evidenced by the Pricing
Agreement with respect to the Designated Securities specified therein. Each
Pricing Agreement shall specify the aggregate principal amount of such
Designated Securities, the initial public offering price of such Designated
Securities, the purchase price to the Underwriters of such Designated
Securities, the names of the Underwriters of such Designated Securities, the
names of the Representatives of such Underwriter and the principal amount of
such Designated Securities to be purchased by each Underwriter and shall set
forth the date, time and manner of delivery of such Designated Securities and
payment therefor. The Pricing Agreement shall also specify (to the extent not
set forth in the Indenture and the registration statement and prospectus with
respect thereto) the terms of such Designated Securities. A Pricing Agreement
shall be in the form of an executed writing (which may be in counterparts), and
may be evidenced by an exchange of telegraphic communications or any other rapid
transmission device designed to produce a written record of communications
transmitted. The obligations of the Underwriters under this Agreement and each
Pricing Agreement shall be several and not joint.
2. The Company represents and warrants to, and agrees with, each of the
Underwriters that:
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(a) A registration statement in respect of the Securities has
been filed with the Securities and Exchange Commission (the
"Commission"); such registration statement and any post-effective
amendment thereto, each in the form heretofore delivered or to be
delivered to the Representatives and, excluding exhibits to such
registration statement, but including all documents incorporated by
reference in the prospectus contained therein, to the Representatives
for each of the other Underwriters, have been declared effective by the
Commission in such form; no other document with respect to such
registration statement and no other document required to be
incorporated by reference therein has heretofore been filed or
transmitted for filing with the Commission; and no stop order
suspending the effectiveness of such registration statement has been
issued and no proceeding for that purpose has been initiated or
threatened by the Commission (any preliminary prospectus included in
such registration statement or filed with the Commission pursuant to
Rule 424(a) of the rules and regulations of the Commission under the
Securities Act of 1933, as amended (the "Act"), being hereinafter
called a "Preliminary Prospectus"; the various parts of such
registration statement, including all exhibits thereto and the
documents incorporated by reference in the prospectus contained in the
registration statement at the time such part of the registration
statement became effective but excluding Form T-1, each as amended at
the time such part of the registration statement became effective,
being hereinafter called the "Registration Statement"; the prospectus
relating to the Securities, in the form in which it has most recently
been filed, or transmitted for filing, with the Commission on or prior
to the date of this Agreement, being hereinafter called the
"Prospectus"; any reference herein to any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to the applicable form under
the Act, as of the date of such Preliminary Prospectus or Prospectus,
as the case may be; any reference to any amendment or supplement to any
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Preliminary Prospectus or the Prospectus shall be deemed to refer to
and include any documents filed after the date of such Preliminary
Prospectus or Prospectus, as the case may be, under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and incorporated
by reference in such Preliminary Prospectus or Prospectus, as the case
may be; any reference to any amendment to the Registration Statement
shall be deemed to refer to and include any annual report of the
Company filed pursuant to Section 13(a) or 15(d) of the Exchange Act
after the effective date of the Registration Statement that is
incorporated by reference in the Registration Statement; and any
reference to the Prospectus as amended or supplemented shall be deemed
to refer to the Prospectus as amended or supplemented in relation to
the applicable Designated Securities in the form in which it is filed
with the Commission pursuant to Rule 424(b) under the Act in accordance
with Section 5(a)hereof, including any documents incorporated by
reference therein as of the date of such filing);
(b) The documents incorporated by reference in the Prospectus,
when they became effective or were filed with the Commission, as the
case may be, conformed in all material respects to the requirements of
the Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder, and none of such documents
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; and any further documents so filed
and incorporated by reference in the Prospectus or any further
amendment or supplement thereto, when such documents become effective
or are filed with the Commission, as the case may be, will conform in
all material respects to the requirements of the Act or the Exchange
Act, as applicable, and the rules and regulations of the Commission
thereunder and will not contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements therein not
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misleading; provided, however, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon
and in conformity with information furnished in writing to the Company
by an Underwriter of Designated Securities through the Representatives
expressly for use in the Prospectus as amended or supplemented relating
to such Securities;
(c) The Registration Statement and the Prospectus conform, and
any further amendments or supplements to the Registration Statement or
the Prospectus will conform, in all material respects to the
requirements of the Act and the Trust Indenture Act of 1939, as amended
(the "Trust Indenture Act"), and the rules and regulations of the
Commission thereunder and do not and will not, as of the applicable
effective date as to the Registration Statement and any amendment
thereto and as of the applicable filing date as to the Prospectus and
any amendment or supplement thereto, contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading;
provided, however, that this representation and warranty shall not
apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by an
Underwriter of Designated Securities through the Representatives
expressly for use in the Prospectus as amended or supplemented relating
to such Securities;
(d) Neither the Company nor any of its subsidiaries has
sustained since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus any material
loss or interference with its business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise
than as set forth in or contemplated by the Prospectus; and, since the
respective dates as of which information is given in the Registration
Statement and the Prospectus, there has not been any material change in
the capital
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stock or long-term debt of the Company or any of its subsidiaries or
any material adverse change, or any development likely to result in a
prospective material adverse change, in or affecting the general
affairs, management, financial position, stockholders' equity or
results of Operations of the Company and its subsidiaries, otherwise
than as set forth in or contemplated by the Prospectus;
(e) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of Delaware,
with all corporate power and authority to own its properties and
conduct its business as described in the Prospectus;
(f) The Company has an authorized capitalization as set forth
in the Prospectus, and all of the issued shares of capital stock of the
Company have been duly and validly authorized and issued and are fully
paid and non-assessable;
(g) The Securities have been duly authorized, and, when
Designated Securities are issued and delivered pursuant to this
Agreement and the Pricing Agreement with respect to such Designated
Securities, such Designated Securities will have been duly executed,
authenticated, issued and delivered and will constitute valid and
legally binding obligations of the Company entitled to the benefits
provided by the Indenture, which will be substantially in the form
filed as an exhibit to the Registration Statement; the Indenture has
been duly authorized and duly qualified under the Trust Indenture Act
and, at the Time of Delivery for such Designated Securities (as defined
in Section 4 hereof), the Indenture will constitute a valid and legally
binding instrument, enforceable in accordance with its terms, subject,
as to enforcement, to bankruptcy, insolvency, reorganization and other
laws of general applicability relating to or affecting creditors'
rights and to general equity principles; and the Indenture conforms,
and the Designated Securities will conform, to the descriptions thereof
contained in
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the Prospectus as amended or supplemented with respect to such
Designated Securities;
(h) The issue and sale of the Securities and the compliance by
the Company with all of the provisions of the Securities, the
Indenture, this Agreement and any Pricing Agreement, and the
consummation of the transactions herein and therein contemplated will
not conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company is a party or by which the Company is
bound or to which any of the property or assets of the Company is
subject, nor will such action result in any violation of the provisions
of the Certificate of Incorporation or By-laws of the Company or any
statute or any order, rule or regulation of any court or governmental
agency or body having jurisdiction over the Company or any of its
properties; and no consent, approval, authorization, order,
registration or qualification of or with any such court or governmental
agency or body is required for the issue and sale of the Securities or
the consummation by the Company of the transactions contemplated by
this Agreement or any Pricing Agreement or the Indenture, except such
as have been, or will have been prior to the Time of Delivery, obtained
under the Act and the Trust Indenture Act and such consents, approvals,
authorizations, registrations or qualifications as may be required
under state securities or Blue Sky laws in connection with the purchase
and distribution of the Securities by the Underwriters; and
(i) Other than as set forth in the Prospectus, there are no
legal or governmental proceedings pending to which the Company or any
of its subsidiaries is a party or of which any property of the Company
or any of its subsidiaries is the subject which, if determined
adversely to the Company or any of its subsidiaries, would have a
material adverse effect on the consolidated financial position,
stockholders' equity
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or results of operations of the Company and its subsidiaries; and, to
the best of the Company's knowledge, no such proceedings are threatened
by governmental authorities or by others.
3. Upon the execution of the Pricing Agreement applicable to any
Designated Securities and authorization by the Representatives of the release of
such Designated Securities, the several Underwriters propose to offer such
Designated Securities for sale upon the terms and conditions set forth in the
Prospectus as amended or supplemented.
4. Designated Securities to be purchased by each Underwriter pursuant
to the Pricing Agreement relating thereto, in definitive form to the extent
practicable, and in such authorized denominations and registered in such names
as the Representatives may request upon at least forty-eight hours prior notice
to the Company, shall be delivered by or on behalf of the Company to the
Representatives for the account of such Underwriter, against payment by such
Underwriter or on its behalf of the purchase price therefor by certified or
official bank check or checks, payable to the order of the Company in the funds
specified in such Pricing Agreement, all at the place and time and date
specified in such Pricing Agreement or at such other place and time and date as
the Representatives and the Company may agree upon in writing, such time and
date being herein called the "Time of Delivery" for such Securities.
5. The Company agrees with each of the Underwriters of any Designated
Securities:
(a) To prepare the Prospectus as amended and supplemented in
relation to the applicable Designated Securities in a form approved by
the Representatives and to file such Prospectus pursuant to Rule 424(b)
under the Act not later than the Commission's close of business on the
second business day following the execution and delivery of the Pricing
Agreement relating to the applicable Designated Securities or, if
applicable, such earlier time as may be required by Rule 424(b); to
make no further amendment or any
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supplement to the Registration Statement or Prospectus as amended or
supplemented after the date of the Pricing Agreement relating to such
Securities and prior to the Time of Delivery for such Securities which
shall be disapproved by the Representatives for such Securities
promptly after reasonable notice thereof, to advise the Representatives
promptly of any such amendment or supplement after such Time of
Delivery and furnish the Representatives with copies thereof; to file
promptly all reports and any definitive proxy or information statements
required to be filed by the Company with the Commission pursuant to
Section 13(a), 13(c), 14, or 15(d) of the Exchange Act for so long as
the delivery of a prospectus is required in connection with the
offering or sale of such Securities, and during such same period to
advise the Representatives, promptly after it receives notice thereof,
of the time when any amendment to the Registration Statement has been
filed or becomes effective or any supplement to the Prospectus or any
amended Prospectus has been filed with the Commission, of the issuance
by the Commission of any stop order or of any order preventing or
suspending the use of any prospectus relating to the Securities, of the
suspension of the qualification of such Securities for offering or sale
in any jurisdiction, of the initiation or threatening of any proceeding
for any such purpose, or of any request by the Commission for the
amending or supplementing of the Registration Statement or Prospectus
or for additional information; and, in the event of the issuance of any
such stop order or of any such order preventing or suspending the use
of any prospectus relating to the Securities or suspending any such
qualification, to use promptly its best efforts to obtain its
withdrawal;
(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify such Securities for
offering and sale under the securities laws of such jurisdictions as
the Representatives may request and to comply with such laws so as to
permit the continuance of sales and dealings therein in such
jurisdictions for as long as
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may be necessary to complete the distribution of such Securities,
provided that in connection therewith the Company shall not be required
to qualify as a foreign corporation or to file a general consent to
service of process in any jurisdiction;
(c) To furnish the Underwriters with copies of the Prospectus
as amended or supplemented in such quantities as the Representatives
may from time to time reasonably request, and, if the delivery of a
prospectus is required at any time in connection with the offering or
sale of the Securities and if at such time any event shall have
occurred as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact or
omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made when such Prospectus is delivered, not misleading, or, if for
any other reason it shall be necessary during such same period to amend
or supplement the Prospectus or to file under the Exchange Act any
document incorporated by reference in the Prospectus in order to comply
with the Act, the Exchange Act or the Trust Indenture Act, to notify
the Representatives and to file such document and to prepare and
furnish without charge to each Underwriter and to any dealer in
securities as many copies as the Representatives may from time to time
reasonably request of an amended Prospectus or a supplement to the
Prospectus which will correct such statement or omission or effect such
compliance;
(d) To make generally available to its security holders as
soon as practicable, but in any event not later than eighteen months
after the effective date of the Registration Statement (as defined in
Rule 158 (c)), an earning statement of the Company and its subsidiaries
(which need not be audited) complying with Section 11(a) of the Act and
the rules and regulations of the Commission thereunder (including at
the option of the Company Rule 158); and
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(e) During the period beginning from the date of the Pricing
Agreement for such Designated Securities and continuing to and
including the earlier of (i) the termination of trading restrictions
for such Designated Securities, as notified to the Company by the
Representatives, and (ii) the Time of Delivery for such Designated
Securities, not to offer, sell, contract to sell or otherwise dispose
of any debt securities of the Company which mature more than one year
after such Time of Delivery and which are substantially similar to such
Designated Securities, without the prior written consent of the
Representatives.
6. The Company covenants and agrees with the several Underwriters that
the Company will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Company's counsel and accountants in
connection with the registration of the Securities under the Act and all other
expenses in connection with the preparation, printing and filing of the
Registration Statement, any Preliminary Prospectus and the Prospectus and
amendments and supplements thereto and the mailing and delivering of copies
thereof to the Underwriters and dealers; (ii) the cost of printing or producing
any Agreement among Underwriters, this Agreement, any Pricing Agreement, any
Indenture, any Blue Sky and Legal Investment Memoranda and any other documents
in connection with the offering, purchase, sale and delivery of the Securities;
(iii) all expenses in connection with the qualification of the Securities for
offering and sale under state securities laws as provided in Section 5(b)
hereof, including the reasonable fees and disbursements of counsel for the
Underwriters in connection with such qualification and in connection with the
Blue Sky and legal investment surveys; (iv) any fees charged by securities
rating services for rating the Securities; (v) any filing fees incident to any
required review by the National Association of Securities Dealers, Inc. of the
terms of the sale of the Securities; (vi) the cost of preparing the Securities;
(vii) the fees and expenses of any Trustee and any agent of any Trustee and the
fees and disbursements of counsel for any Trustee in connection with any
Indenture and the Securities; and (viii) all other costs and expenses incident
to the
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performance of its obligations hereunder which are not otherwise specifically
provided for in this Section. It is understood, however, that, except as
otherwise agreed by the Company and the Underwriters and except as provided in
this Section, Section 8 and Section 11 hereof, the Underwriters will pay all of
their own costs and expenses, including the fees of their counsel, transfer
taxes on resale of any of the Securities by them, and any advertising expenses
connected with any offers they may make.
7. The obligations of the Underwriters of any Designated Securities
under the Pricing Agreement relating to such Designated Securities shall be
subject, in the discretion of the Representatives, to the condition that all
representations and warranties and other statements of the Company in or
incorporated by reference in the Pricing Agreement relating to such Designated
Securities are, at and as of the Time of Delivery for such Designated
Securities, true and correct, the condition that the Company shall have
performed all of its obligations hereunder theretofore to be performed, and the
following additional conditions:
(a) The Prospectus as amended or supplemented in relation to the
applicable Designated Securities shall have been filed with the
Commission pursuant to Rule 424(b) within the applicable time period
prescribed for such filing by the rules and regulations under the Act
and in accordance with Section 5(a) hereof, no stop order suspending
the effectiveness of the Registration Statement or any part thereof
shall have been issued and no proceeding for that purpose shall have
been initiated or threatened by the Commission; and all requests for
additional information on the part of the Commission shall have been
complied with to the Representatives' reasonable satisfaction;
(b) Counsel for the Underwriters shall have furnished to the
Representatives such opinion or opinions, dated the Time of Delivery
for such Designated Securities, with respect to the incorporation of
the Company, the validity of the Indenture, the Designated Securities,
the Registration
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Statement, the Prospectus as amended or supplemented and other related
matters as the Representatives may reasonably request, and such counsel
shall have received such papers and information as they may reasonably
request to enable them to pass upon such matters;
(c) The General Counsel or Assistant General Counsel for the
Company shall have furnished to the Representatives his written
opinion, dated the Time of Delivery for such Designated Securities, in
form and substance satisfactory to the Representatives, to the effect
that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of
Delaware, with all corporate power and authority to own its
properties and conduct its business as described in the
Prospectus as amended or supplemented;
(ii) The Company has an authorized capitalization as set
forth in the Prospectus as amended or supplemented and all of
the issued shares of capital stock of the Company have been
duly and validly authorized and issued and are fully paid and
non-assessable;
(iii) To the best of such counsel's knowledge, there are
no legal or governmental proceedings pending to which the
Company or any of its subsidiaries is a party or of which any
property of the Company or any of its subsidiaries is the
subject, other than as set forth in the Prospectus which, if
determined adversely to the Company or any of its
subsidiaries, would have a material adverse effect on the
consolidated financial position, stockholders' equity or
results of operations of the Company and its subsidiaries;
and, to the best of such counsels knowledge, no such
proceedings are threatened by governmental authorities or by
others;
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(iv) This Agreement and the Pricing Agreement with
respect to the Designated Securities have been duly
authorized, executed and delivered by the Company;
(v) The Designated Securities have been duly
authorized, executed, authenticated, issued and delivered and
constitute valid and legally binding obligations of the
Company, subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and
to general equity principles, entitled to the benefits
provided by the Indenture; and the Designated Securities and
the Indenture conform in all material respects to the
descriptions thereof in the Prospectus as amended or
supplemented;
(vi) The Indenture has been duly authorized, executed
and delivered by the parties thereto and constitutes a valid
and legally binding instrument, enforceable in accordance with
its terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and
to general equity principles; and the Indenture has been duly
qualified under the Trust Indenture Act;
(vii) The issue and sale of the Designated Securities and
the compliance by the Company with all of the provisions of
the Designated Securities, the Indenture, this Agreement and
the Pricing Agreement with respect to the Designated
Securities and the consummation of the transactions herein and
therein contemplated will not conflict with or result in a
breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument known
to such counsel to which the Company is a party or by which
the
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Company is bound or to which any of the property or assets of
the Company is subject, nor will such actions result in any
violation of the provisions of the Certificate of
Incorporation or By-laws of the Company or any statute or any
order, rule or regulation known to such counsel of any court
or governmental agency or body having jurisdiction over the
Company or any of its properties;
(viii) No consent, approval, authorization, order,
registration or qualification of or with any such court or
governmental agency or body is required for the issue and sale
of the Designated Securities or the consummation by the
Company of the transactions contemplated by this Agreement or
such Pricing Agreement or the Indenture, except such as have
been obtained under the Act and the Trust Indenture Act and
such consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or
Blue Sky laws in connection with the purchase and distribution
of the Designated Securities by the Underwriters;
(ix) The documents incorporated by reference in the
Prospectus as amended or supplemented (other than the
financial statements and related schedules therein, as to
which such counsel need express no opinion), when they became
effective or were filed with the Commission, as the case may
be, complied as to form in all material respects with the
requirements of the Act or the Exchange Act, as applicable,
and the rules and regulations of the Commission thereunder;
and he has no reason to believe that any of such documents,
when they became effective or were so filed, as the case may
be, contained, in the case of a registration statement which
became effective under the Act, an untrue statement of a
material fact or omitted to state a material fact required to
be stated therein or necessary to make the statements therein
not misleading or, in the case of other
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documents which were filed under the Act or the Exchange Act
with the Commission, an untrue statement of a material fact or
omitted to state a material fact necessary in order to make
the statements therein, in the light of the circumstances
under which they were made when such documents were so filed,
not misleading; and
(x) The Registration Statement and the Prospectus as
amended or supplemented and any further amendments and
supplements thereto made by the Company prior to the Time of
Delivery for the Designated Securities (other than the
financial statements and related schedules therein, as to
which such counsel need express no opinion) comply as to form
in all material respects with the requirements of the Act and
the Trust Indenture Act and the rules and regulations
thereunder; he has no reason to believe that, as of its
effective date, the Registration Statement or any further
amendment thereto made by the Company prior to the Time of
Delivery (other than the financial statements and related
schedules therein, as to which such counsel need express no
opinion) contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading or
that, as of its date, the Prospectus as amended or
supplemented or any further amendment or supplement thereto
made by the Company prior to the Time of Delivery (other than
the financial statements and related schedules therein, as to
which such counsel need express no opinion) contained an
untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements
therein, in light of the circumstances in which they were
made, not misleading or that, as of the Time of Delivery,
either the Registration Statement or the Prospectus as amended
or supplemented or any further amendment or supplement thereto
made by the Company prior to
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the Time of Delivery (other than the financial statements and
related schedules therein, as to which such counsel need
express no opinion) contains an untrue statement of a material
fact or omits to state a material fact necessary in order to
make the statements therein, in light of the circumstances in
which they were made, not misleading; and they do not know of
any amendment to the Registration Statement required to be
filed or any contracts or other documents of a character
required to be filed as an exhibit to the Registration
Statement or required to be incorporated by reference into the
Prospectus as amended or supplemented or required to be
described in the Registration Statement or the Prospectus as
amended or supplemented which are not filed or incorporated by
reference or described as required;
(d) on the date of the Pricing Agreement for such Designated
Securities and at the Time of Delivery for such Designated Securities,
the independent accountants of the Company who have certified the
financial statements of the Company and its subsidiaries included or
incorporated by reference in the Registration Statement shall have
furnished to the Representatives a letter, dated the effective date of
the Registration Statement or the date of the most recent report filed
with the Commission containing financial statements and incorporated by
reference in the Registration Statement, if the date of such report is
later than such effective date, and a letter dated such Time of
Delivery, respectively, to the effect set forth in Annex II hereto, and
with respect to such letter dated such Time of Delivery, as to such
other matters as the Representatives may reasonably request and in form
and substance satisfactory to the Representatives;
(e)(i) Neither the Company nor any of its subsidiaries shall
have sustained since the date of the latest audited financial
statements included or incorporated by reference in the Prospectus as
amended
-17-
<PAGE> 18
or supplemented any loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action,
order or decree, otherwise than as set forth in or contemplated by the
Prospectus as amended or supplemented, and (ii) since the respective
dates as of which information is given in the Prospectus as amended or
supplemented there shall not have been any change in the capital stock
or long-term debt of the Company or any of its subsidiaries or any
change, or any development likely to result in a prospective change, in
or affecting the general affairs, management, financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries, otherwise than as set forth in or contemplated by the
Prospectus as amended or supplemented, the effect of which, in any such
case described in Clause (i) or (ii) is in the reasonable judgment of
the Representatives so material and adverse as to make it impracticable
or inadvisable to proceed with the public offering or the delivery of
the Designated Securities on the terms and in the manner contemplated
by the Prospectus as amended or supplemented;
(f) On or after the date of the Pricing Agreement relating to
the Designated Securities (i) no downgrading shall have occurred in the
rating accorded the Company's debt securities by any "nationally
recognized statistical rating organization,"as that term is defined by
the Commission for purposes of Rule 436(g)(2) under the Act, and (ii)
no such organization shall have publicly announced that it has under
surveillance or review, with possible negative implications, its rating
of any of the Company's debt securities;
(g) On or after the date of the Pricing Agreement relating to
the Designated Securities there shall not have occurred any of the
following: (i) a suspension or material limitation in trading in
securities generally on the New York Stock Exchange; (ii) a general
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<PAGE> 19
moratorium on commercial banking activities in New York declared by
either Federal or New York State authorities; or (iii) the outbreak or
escalation of hostilities involving the United States or the
declaration by the United States of a national emergency or war, if the
effect of any such event specified in this clause in the judgment of
the Representatives makes it impracticable or inadvisable to proceed
with the public offering or the delivery of the Designated Securities
on the terms and in the manner contemplated by the Prospectus as
amended and supplemented; and
(h) The Company shall have furnished or caused to be furnished
to the Representatives at the Time of Delivery for the Designated
Securities a certificate or certificates of officers of the Company
satisfactory to the Representatives as to the accuracy of the
representations and warranties of the Company herein at and as of such
Time of Delivery, as to the performance by the Company of all of its
obligations hereunder to be performed at or prior to such Time of
Delivery, as to the matters set forth in subsections (a) and (e) of
this Section and as to such other matters as the Representatives may
reasonably request.
8. (a) The Company will indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or several, to which
such Underwriter may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, any preliminary
prospectus supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Securities, or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and will
reimburse each Underwriter for any legal or other expenses reasonably
-19-
<PAGE> 20
incurred by such Underwriter in connection with investigating or defending any
such action or claim as such expenses are incurred; provided, however, that the
Company shall not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in any Preliminary
Prospectus, any preliminary prospectus supplement, the Registration Statement,
the Prospectus as amended or supplemented and any other prospectus relating to
the Securities, or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by any Underwriter
of Designated Securities through the Representatives expressly for use in the
Prospectus as amended or supplemented relating to such Securities.
(b) Each Underwriter will indemnify and hold harmless the
Company and each director, officer and controlling person of the
Company against any losses, claims, damages or liabilities to which the
Company may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in any Preliminary Prospectus,
any preliminary prospectus supplement, the Registration Statement, the
Prospectus as amended or supplemented and any other prospectus relating
to the Securities, or any amendment or supplement thereto, or arise out
of or are based upon the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but only
to the extent, that such untrue statement or alleged untrue statement
or omission or alleged omission was made in any Preliminary Prospectus,
any preliminary prospectus supplement, the Registration Statement, the
Prospectus as amended or supplemented and any other prospectus relating
to the Securities, or any such amendment or supplement in reliance upon
and in conformity with written information furnished to the Company by
such
-20-
<PAGE> 21
Underwriter through the Representatives expressly for use therein; and
will reimburse the Company for any legal or other expenses reasonably
incurred by the Company in connection with investigating or defending
any such action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any
action, such indemnified party shall, if a claim in respect thereof is
to be made against the indemnifying party under such subsection, notify
the indemnifying party in writing of the commencement thereof; but the
failure as to notify the indemnifying party shall not relieve it from
any liability which it may have to any indemnified party otherwise than
under such subsection. In case any such action shall be brought against
any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it shall wish, jointly with
any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall
not, except with the consent of the indemnified party, be counsel to
the indemnifying party), and, after notice from the indemnifying party
to such indemnified party of its election so to assume the defense
thereof, the indemnifying party shall not be liable to such indemnified
party under such subsection for any legal expenses of other counsel or
any other expenses, in each ease subsequently incurred by such
indemnified party, in connection with the defense thereof other than
reasonable costs of investigation. No indemnifying party shall, in
connection with any one action or separate but substantially similar or
related actions in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the reasonable fees
and expenses of more than one separate firm of attorneys at any time
for all indemnified parties, which firm shall be designated in writing
by the Representatives if the indemnified parties under
-21-
<PAGE> 22
this Section 8 consist of any Underwriter or any of their respective
controlling persons, or by the Company, if the indemnified parties
under this Section 8 consist of the Company or any of the Company's
directors, officers or controlling persons. No, indemnifying party
shall, without the prior written consent of the indemnified party,
effect any settlement of any pending or threatened proceeding in
respect of which any indemnified party is or could have been a party
and indemnity could have been sought hereunder by such indemnified
party, unless such settlement (i)includes an unconditional release of
such indemnified party from all liability arising out of such action or
claim and (ii) does not include a statement as to or an admission of
fault, culpability or failure to act, by or on behalf of any
indemnified party.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party
under subsection (a) or (b) above in respect of any losses, claims,
damages or liabilities (or actions in respect thereof) referred to
therein, then each indemnifying party shall contribute to the amount
paid or payable by such indemnified party as a result of such losses,
claims, damages or liabilities (or actions in respect thereof)in such
proportion as is appropriate to reflect the relative benefits received
by the Company on the one hand and the Underwriters of the Designated
Securities on the other from the offering of the Designated Securities
to which such loss, claim, damage or liability (or action in respect
thereof) relates. If, however, the allocation provided by the
immediately preceding sentence is not permitted by applicable law or if
the indemnified party failed to give the notice required under
subsection (c) above, then each indemnifying party shall contribute to
such amount paid or payable by such indemnified party in such
proportion as is appropriate to reflect not only such relative benefits
but also the relative fault of the Company on the one hand and the
Underwriters of the Designated Securities
-22-
<PAGE> 23
on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities (or actions in
respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by the Company on the
one hand and such Underwriters on the other shall be deemed to be in
the same proportion as the total net proceeds from such offering
(before deducting expenses) received by the Company bear to the total
underwriting discounts and commissions received by such Underwriters.
The relative fault shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company on the one hand or such
Underwriters on the other and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such
statement or omission. The Company and the Underwriters agree that it
would not be just and equitable if contribution pursuant to this
subsection (d) were determined by pro rata allocation (even if the
Underwriters were treated as one entity for such purpose) or by any
other method of allocation which does not take account of the equitable
considerations referred to above in this subsection (d). The amount
paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred
to above in this subsection (d) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this subsection (d), no Underwriter
shall be required to contribute any amount in excess of the amount by
which the total price at which the applicable Designated Securities
underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages which such Underwriter has
otherwise been required to pay be reason of such untrue or alleged
untrue statement or omission or alleged omission. No person guilty of
-23-
<PAGE> 24
fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The obligations of the
Underwriters of Designated Securities in this subsection (d) to
contribute are several in proportion to their respective underwriting
obligations with respect to such Securities and not joint.
(e) The obligations of the Company under this Section 8 shall
be in addition to any liability which the Company may otherwise have
and shall extend, upon the same terms and conditions, to each person,
if any, who controls any Underwriter within the meaning of the Act; and
the obligations of the underwriters under this Section 8 shall be in
addition to any liability which the respective Underwriters may
otherwise have and shall extend, upon the same terms and conditions, to
each officer and director of the Company and to each person, if any,
who controls the Company within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to
purchase the Designated Securities which it has agreed to purchase under the
Pricing Agreement relating to such Designated Securities, the Representatives
may in their discretion arrange for themselves or another party or other parties
reasonably satisfactory to the Company to purchase such Designated Securities on
the terms contained herein. If within thirty-six hours after such default by any
Underwriter the Representatives do not arrange for the purchase of such
Designated Securities, then the Company shall be entitled to a further period of
thirty-six hours within which to procure another party or other parties
reasonably satisfactory to the Representatives to purchase such Designated
Securities on such terms. In the event that, within the respective prescribed
period, the Representatives notify the Company that they have so arranged for
the purchase of such Designated Securities, or the Company notifies the
Representatives that it has so arranged for the purchase of such Designated
Securities, the Representatives or the Company shall have the right to
-24-
<PAGE> 25
postpone the Time of Delivery for such Designated Securities for a period of not
more than seven days, in order to effect whatever changes may thereby be made
necessary in the Registration Statement or the Prospectus as amended or
supplemented, or in any other documents or arrangements, and the Company agrees
to file promptly any amendments or supplements to the Registration Statement or
the Prospectus which in the opinion of the Representatives may thereby be made
necessary. The term "Underwriter" as used in this Agreement shall include any
person substituted under this Section with like effect as if such person had
originally been a party to the Pricing Agreement with respect to such Designated
Securities.
(b) If, after giving effect to any arrangements for the
purchase of the Designated Securities of a defaulting Underwriter or
Underwriters by the Representatives and the Company as provided in
subsection (a) above, the aggregate principal amount of such Designated
Securities which remains unpurchased does not exceed one-eleventh of
the aggregate principal amount of the Designated Securities, then the
Company shall have the right to require each non-defaulting Underwriter
to purchase the principal amount of Designated Securities which such
underwriter agreed to purchase under the Pricing Agreement relating to
such Designated Securities and, in addition, to require each
non-defaulting Underwriter to purchase its pro rata share (based on the
principal amount of Designated Securities which such Underwriter agreed
to purchase under such Pricing Agreement) of the Designated Securities
of such defaulting Underwriter or Underwriters for which such
arrangements have not been made; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the
purchase of the Designated Securities of a defaulting Underwriter or
Underwriters by the Representatives and the Company as provided in
subsection (a) above, the aggregate principal amount of Designated
Securities which remains unpurchased exceeds
-25-
<PAGE> 26
one-eleventh of the aggregate principal amount of the Designated
Securities, as referred to in subsection (b) above, or if the Company
shall not exercise the right described in subsection (b) above to
require non-defaulting Underwriters to purchase Designated Securities
of a defaulting Underwriter or Underwriters, then the Pricing Agreement
relating to such Designated Securities shall thereupon terminate,
without liability on the part of any nondefaulting Underwriter or
Company, except for the expenses to be borne by the Company and the
Underwriters as provided in Section 6 hereof and the indemnity and
contribution agreements in Section 8 hereof; but nothing herein shall
relieve a defaulting Underwriter from liability for its default.
10. The respective indemnities, agreements, representations, warranties
and other statements of the Company and the several Underwriters, as set forth
in this Agreement or made by or on behalf of them, respectively, pursuant to
this Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter or any controlling person of any Underwriter, or the Company,
or any officer or director or controlling person of the Company, and shall
survive delivery of and payment for the Securities.
11. If any Pricing Agreement shall be terminated pursuant to Section 9
hereof, the Company shall not then be under any liability to any Underwriter
with respect to the Designated Securities covered by such pricing Agreement
except as provided in Section 6 and Section 8 hereof, but, if for any other
reason Designated Securities are not delivered by or on behalf of the Company as
provided herein, the Company will reimburse the Underwriters through the
Representatives for all out-of-pocket expenses approved in writing by the
Representatives, including fees and disbursements of counsel, reasonably
incurred by the Underwriters in making preparations for the purchase, sale and
delivery of such Designated Securities, but the Company shall then be under no
further liability to any Underwriter
-26-
<PAGE> 27
with respect to such Designated Securities except as provided in Section 6 and
Section 8 hereof.
12. In all dealings hereunder, the Representatives of the Underwriters
of Designated Securities shall act on behalf of each of such Underwriters, and
the parties hereto shall be entitled to act and rely upon any statement,
request, notice or agreement on behalf of any Underwriter made or given by such
Representatives jointly or by such of the Representatives, if any, as may be
designated for such purpose in the Pricing Agreement.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Representatives as set forth in the
Pricing Agreement; and if to the Company shall be delivered or sent by mail,
telex or facsimile transmission to the address of the Company set forth in the
Registration Statement: Attention: Secretary; provided, however, that any notice
to an Underwriter pursuant to Section 8(c) hereof shall be delivered or sent by
mail, telex or facsimile transmission to such Underwriter at its address set
forth in its Underwriters' Questionnaire, or telex constituting such
Questionnaire, which address will be supplied to the Company by the
Representatives upon request. Any such statements, requests, notices or
agreements shall take effect upon receipt thereof.
13. This Agreement and each Pricing Agreement shall be binding upon,
and inure solely to the benefit of, the Underwriters, the Company and, to the
extent provided in Section 8 and Section 10 hereof, the officers and directors
of the Company and each person who controls the Company or any Underwriter, and
their respective heirs, executors, administrators, successors and assigns, and
no other person shall acquire or have any right under or by virtue of this
Agreement or any such Pricing Agreement. No purchaser of any of the Securities
from any Underwriter shall be deemed a successor or assign by reason merely of
such purchase.
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<PAGE> 28
14. Time shall be of the essence of each Pricing Agreement. As used
herein, "business day" shall mean any day when the Commission's office in
Washington D.C. is open for business.
15. This Agreement and each Pricing Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
16. This Agreement and each Pricing Agreement may be executed by any
one or more of the parties hereto and thereto in any number of counterparts,
each of which shall be deemed to be an original, but all such respective
counterparts shall together constitute one and the same instrument.
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<PAGE> 29
If the foregoing is in accordance with your understanding, please sign
and return to us three counterparts hereof.
Very truly yours,
USX Corporation
By: /s/ E.F. GUNA
----------------------
Name: E.F. Guna
Title: Vice President & Treasurer
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<PAGE> 30
Accepted as of the date hereof:
GOLDMAN, SACHS & CO.
CREDIT SUISSE FIRST BOSTON CORPORATION
J.P. MORGAN SECURITIES INC.
By: /s/ GOLDMAN, SACHS & CO.
---------------------------------
(Goldman, Sachs & Co.)
On behalf of each of the Underwriters
-30-
<PAGE> 31
PRICING AGREEMENT
March 5, 1998
Goldman, Sachs & Co.,
Credit Suisse First Boston Corporation,
J.P. Morgan Securities Inc.,
c/o Goldman, Sachs & Co.,
85 Broad Street,
New York, New York 10004.
As Representatives of the several
Underwriters named in Schedule I hereto,
Dear Sirs:
USX Corporation, a Delaware corporation (the "Company"), proposes,
subject to the terms and conditions stated herein and in the Underwriting
Agreement, dated March 5, 1998 (the "Underwriting Agreement"), between the
Company on the one hand and Goldman, Sachs & Co., Credit Suisse First Boston
Corporation and J.P. Morgan Securities Inc. on the other hand, to issue and sell
to the Underwriters named in Schedule I hereto (the "Underwriters") the
Securities specified in Schedule II hereto (the "Designated Securities"). Each
of the provisions of the Underwriting Agreement is incorporated herein by
reference in its entirety, and shall be deemed to be a part of this Agreement to
the same extent as if such provisions had been set forth in full herein; and
each of the representations and warranties set forth therein shall be deemed to
have been made at and as of the date of this Pricing Agreement, except that each
representation and warranty which refers to the Prospectus in Section 2 of the
Underwriting Agreement shall be deemed to be a representation or warranty as of
the date of the Underwriting Agreement in relation to the Prospectus (as therein
defined), and also a representation and warranty as of the date of this Pricing
Agreement in relation to the
<PAGE> 32
Prospectus as amended or supplemented relating to the Designated Securities
which are the subject of this Pricing Agreement. Each reference to the
Representatives herein and in the provisions of the Underwriting Agreement so
incorporated by reference shall be deemed to refer to you. Unless otherwise
defined herein, terms defined in the Underwriting Agreement are used herein as
therein defined. The Representatives designated to act on behalf of the
Representatives and on behalf of each of the Underwriters of the Designated
Securities pursuant to Section 12 of the Underwriting Agreement and the address
of the Representatives referred to in such Section 12 are set forth at the end
of Schedule II hereto.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Securities, in the
form heretofore delivered to you is now proposed to be filed with the
Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, the Company agrees to
issue and sell to each of the Underwriters and each of the Underwriters agrees,
severally and not jointly, to purchase from the Company, at the time and place
and at the purchase price to the Underwriters set forth in Schedule II hereto,
the principal amount of Designated Securities set forth opposite the name of
such Underwriter in Schedule I hereto.
If the foregoing is in accordance with your understanding, please sign
and return to us five counterparts hereof, and upon acceptance hereof by you, on
behalf of each of the underwriters, this letter and such acceptance hereof,
including the provisions of the Underwriting Agreement incorporated herein by
reference, shall constitute a binding agreement between each of the Underwriters
and the Company. It is understood that your acceptance of this letter on behalf
of each of the Underwriters is or will be pursuant to the authority set forth in
a form of Agreement among Underwriters, the form of which shall be submitted to
the Company for examination upon
<PAGE> 33
request, but without warranty on the part of the Representatives as to the
authority of the signers thereof.
Very truly yours,
USX Corporation
By: /s/ E.F. GUNA
-----------------------------
Name: E.F. Guna
Title: Vice President & Treasurer
<PAGE> 34
GOLDMAN, SACHS & CO.
CREDIT SUISSE FIRST BOSTON CORPORATION
J.P. MORGAN SECURITIES INC.
By: /s/ GOLDMAN, SACHS & CO.
----------------------------------
(Goldman, Sachs & Co.)
<PAGE> 35
SCHEDULE I
PRINCIPAL AMOUNT
OF DESIGNATED
SECURITIES TO BE
UNDERWRITER PURCHASED
---------
Goldman, Sachs & Co. . . . . . . . . . . 134,000,000
Credit Suisse First
Boston Corporation. . . . . . . . . . . 133,000,000
J.P. Morgan Securities Inc. . . . . . . . 133,000,000
-----------
Total 400,000,000
-----------
<PAGE> 36
SCHEDULE II
TITLE OF DESIGNATED SECURITIES:
Aggregate principal amount 400,000,000
PRICE TO PUBLIC:
99.961% of the principal amount of the Designated Securities, plus
accrued interest from March 1, 1998 to March 10, 1998
SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE:
Immediately Available Funds
INDENTURE:
Indenture, dated March 15, 1993, between the Company and PNC Bank,
National Association, as Trustee.
MATURITY:
March 1, 2008
INTEREST RATE: 6.85%
INTEREST PAYMENT DATES: March 1 and September 1
REDEMPTION PROVISIONS: None
SINKING FUND PROVISIONS: None
DEFEASANCE PROVISIONS: Applicable
TIME OF DELIVERY: March 10, 1998
<PAGE> 37
CLOSING LOCATION: Sullivan & Cromwell
125 Broad Street
New York, New York 10004.
NAMES AND ADDRESSES OF REPRESENTATIVES:
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004.
Credit Suisse First Boston Corporation
11 Madison Avenue
New York, New York 10010-3629
J.P. Morgan Securities Inc.
60 Wall Street
New York, New York 10260-0060
<PAGE> 38
ANNEX II
Pursuant to Section 7(d) of the Underwriting Agreement, the accountants
shall furnish letters to the Underwriters to the effect, and to the extent
applicable, that:
(i) They are independent certified public accountants
with respect to the Company and its subsidiaries within the meaning of
the Act and the applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any
supplementary financial information and schedules audited (and, if
applicable, prospective financial statements and/or pro forma financial
information examined) by them and included or incorporated by reference
in the Registration Statement or the Prospectus comply as to form in
all material respects with the applicable accounting requirements of
the Act or the Exchange Act, as applicable, and the related published
rules and regulations thereunder ; and, if applicable, they have made a
review in accordance with standards established by the American
Institute of Certified Public Accountants of the consolidated interim
financial statements, selected financial data, pro forma financial
information, prospective financial statements and/or condensed
financial statements derived from audited financial statements of the
Company for the periods specified in such letter, as indicated in their
reports thereon, copies of which have been furnished to the
representatives of the Underwriters (the "Representatives");
(iii) The unaudited selected financial information with
respect to the consolidated results of operations and financial
position of the Company for the five most recent fiscal years included
in the Prospectus and included or incorporated by reference in Item 6
of the Company's Annual Report on Form 10-K for the most recent fiscal
year agrees with the
-1-
<PAGE> 39
corresponding amounts (after restatement where applicable) in the
audited consolidated financial statements for five such fiscal years
which were included or incorporated by reference in the Company's
Annual Reports on Form 10-K for such fiscal years;
(iv) On the basis of limited procedures, not
constituting an audit in accordance with generally accepted auditing
standards, consisting of a reading of the unaudited financial
statements and other information referred to below, a reading of the
latest available interim financial statements of the Company and its
subsidiaries, inspection of the minute books of the Company and its
subsidiaries since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus, inquiries of
officials of the Company and its subsidiaries responsible for financial
and accounting matters and such other inquiries and procedures as may
be specified in such letter, nothing came to their attention that
caused them to believe that:
(A) the unaudited condensed consolidated
statements of income, consolidated balance sheets and
consolidated statements of cash flows included or
incorporated by reference in the Company's Quarterly
Reports on Form IO-Q incorporated by reference in the
Prospectus do not comply as to form in all material
respects with the applicable accounting requirements of
the Exchange Act as it applies to Form IO-Q and the
related published rules and regulations thereunder or are
not stated on a basis substantially consistent with the
audited consolidated statements of income, consolidated
balance sheets and consolidated statements of cash flows
included or incorporated by reference in the Company's
Annual Report on Form 10-K for the most recent fiscal
year;
(B) any other unaudited income statement data and
balance sheet items included in the
-2-
<PAGE> 40
Prospectus do not agree with the corresponding items in the
unaudited consolidated financial statements from which such
data and items were derived, and any such unaudited data and
items were not determined on a basis substantially consistent
with the basis for the corresponding amounts in the audited
consolidated financial statements included or incorporated by
reference in the Company's Annual Report on Form 10-K for the
most recent fiscal year;
(C) the unaudited financial statements which were not
included in the Prospectus but from which were derived the
unaudited condensed financial statements referred to in clause
(A) and any unaudited income statement data and balance sheet
items included in the Prospectus and referred to in Clause (B)
were not determined on a basis substantially consistent with
the basis for the audited financial statements included or
incorporated by reference in the Company's Annual Report on
Form 10-K for the most recent fiscal year;
(D) as of a specified date not more than five days
prior to the date of such letter, there have been any changes
in the consolidated capital stock (other than issuance of
capital stock in connection with employee benefit plans,
dividend reinvestment plans, and upon exercise of options and
stock appreciation rights, upon earn-outs of performance
shares and upon conversions of convertible securities, in each
case which were outstanding on the date of the latest balance
sheet included or incorporated by reference in the Prospectus)
or any increase in the excess of $100 million in the
consolidated sum of short-term indebtedness and long-term debt
of the Company and its subsidiaries or any increases in any
items specified by the Representatives, in each case as
compared with amounts shown in the latest balance sheet
included or incorporated by
-3-
<PAGE> 41
reference in the Prospectus, except in each case for changes,
increases or decreases which the Prospectus discloses have
occurred or may occur or which are described in such letter;
and
(E) for the period from the date of the latest
financial statements included or incorporated by reference in
the Prospectus to the specified date referred to in Clause (D)
there were any decreases in consolidated net revenue or other
items specified by the Representatives, or any increases in
any items specified by the Representatives, in each cases as
compared with the comparable period of the preceding year and
with any other period of corresponding length specified by the
Representatives, except in each case for increases or
decreases which the Prospectus discloses have occurred or may
occur or which are described in such letter; and
(v) In addition to the audit referred to in their report(s)
included or incorporated by reference in the Prospectus and the limited
procedures, inspection of minute books, inquiries and other procedures
referred to in paragraphs (iii) and (iv) above, they have carried out
certain specified procedures, not constituting an audit in accordance
with generally accepted auditing standards, with respect to certain
amounts, percentages and financial information specified by the
Representatives which are derived from the general accounting records
of the Company and its subsidiaries, which appear in the Prospectus
(excluding documents incorporated by reference), or in Part II of, or
in exhibits and schedules to, the Registration Statements specified by
the Representatives or in documents incorporated by reference in the
Prospectus specified by the Representatives, and have compared certain
of such amounts, percentages and financial information with the
accounting records of the Company and its subsidiaries and have found
them to be in agreement.
-4-
<PAGE> 42
All references in this Annex II to the Prospectus shall be deemed to
refer to the Prospectus (including the documents incorporated by reference
therein) as defined in the Underwriting Agreement as of the date of the letter
delivered on the date of the Pricing Agreement for purposes of such letter and
to the Prospectus as amended or supplemented (including the documents
incorporated by reference therein) in relation to the applicable Designated
Securities for purposes of the letter delivered at the Time of Delivery for such
Designated Securities.
-5-
<PAGE> 1
Exhibit 4.1
USX CORPORATION
ESTABLISHMENT ACTION OF TERMS COMMITTEE AND RATE COMMITTEE
APPOINTED BY THE BOARD OF DIRECTORS OF USX CORPORATION
- ----------------------------------------------------------------------------
Resolutions of the Board of Directors (the "Board") of USX Corporation
(the "Issuer") adopted on March 29, 1994 (the "Board Resolutions"): (a)
authorized the issuance and sale of $1.0 billion of debt securities, (b)
appointed a Terms Committee to consist of the Chairman of the Board of
Directors, the Executive Vice President-Accounting & Finance & Chief Financial
Officer, and the Vice President & Treasurer and delineated the powers of such
committee, and (c) appointed a Rate Committee consisting of the members of the
Terms Committee plus any Assistant Treasurer and delineated the powers of such
committee. Officers of the Issuer have held discussions with Goldman, Sachs &
Co., Credit Suisse First Boston Corporation and J. P. Morgan Securities Inc.
(the "Underwriters") concerning a public offering of notes. On the basis of
such discussions, the Terms Committee and the Rate Committee hereby adopt the
following resolutions:
RESOLVED, that there be, and there is hereby, created, approved and
established under the Indenture (the "Indenture"), dated as of March 15, 1993,
between the Issuer and PNC Bank, National Association, as Trustee (the
"Trustee") a series of Debt Securities whose terms shall be as follows
(capitalized terms used herein and not otherwise defined herein having the
respective meanings ascribed to them in the Indenture):
(1) The Securities shall be titled the "6.85% Notes Due 2008" and bear
interest at the rate of 6.85% per year and mature on March 1, 2008 (the
"Notes"). The aggregate principal amount of the Notes which may be
authenticated and delivered under the Indenture is limited to $400,000,000
except for Notes authenticated and delivered upon registration or transfer of,
or in exchange for, or in lieu of, other Notes pursuant to the Indenture.
(2) Interest on the Notes shall accrue from March 1, 1998, and be payable
semi-annually on March 1 and September 1 of each year, commencing September 1,
1998, until the principal thereof is paid or made available for payment. Each
such March 1 or September 1 shall be an "Interest Payment Date" for the Notes.
The February 15 or August 15 (whether or not a Business Day), as the case may
be, next preceding an Interest Payment Date shall be the "Regular Record Date"
for the interest payable on such Interest Payment Date. The total amount of
principal
<PAGE> 2
and interest due on any Global Security representing one or more Notes on any
Interest Payment Date or at maturity shall be made available to the Trustee in
the City of Pittsburgh, Commonwealth of Pennsylvania on such date.
(3) The Notes shall be issued in the form of one or more fully registered
Global Securities which will be deposited with, or on behalf of, The Depository
Trust Company (the "Depositary") and will be registered in the name of the
Depositary or its nominee.
(4) The Notes shall not be redeemable prior to maturity and shall not
provide for any sinking fund.
(5) The provisions of Section 12.02(b) and Section 12.02(c) of the
Indenture with respect to defeasance of the Debt Securities of a Series and
covenant defeasance of the Debt Securities of a Series, respectively, shall be
applicable to the Notes.
(6) The public offering price of the Notes shall be 99.961% of the
principal amount thereof per Note or $999.61.
(7) The net proceeds to be paid to the issuer by the Underwriters for the
Notes shall be 99.311% of the principal amount thereof or $397,244,000.
Additionally, Issuer will be paid $685,000 for the accrued interest from March
1, 1998 to March 10, 1998.
(8) The net proceeds of the Notes shall be used for general corporate
purposes, including the payment of currently maturing debt obligations.
(9) The Notes will be issued only in registered form in denominations of
$1,000 and integral multiples thereof.
RESOLVED, the issuance of one or more Global Securities registered in the
name of the Depositary or its nominee and related Trustee's certificate of
authentication to be endorsed thereon shall be in substantially the form
included in the aforesaid form of Indenture, with such insertions, additions
and changes as shall be hereafter approved by the officers executing the same,
such approval to be conclusively evidenced by their execution thereof, and the
Chairman or any Vice Chairman of the Board of Directors or any Vice President,
and the Treasurer or any Assistant Treasurer of the Issuer, hereby is
authorized, in the name and on behalf of the Issuer, to execute and deliver up
to $400,000,000 aggregate principal amount of the Notes in the form of one or
more Global Securities, as required, to the Trustee for authentication and to
execute and deliver to the Trustee the written order of the Issuer for the
authentication and delivery thereof.
RESOLVED, the execution of Global Securities by the Chairman or any Vice
Chairman of the Board of Directors or any Vice President, and the
-2-
<PAGE> 3
Treasurer or any Assistant Treasurer by their respective facsimile signatures,
and the printing or engraving of the seal of the Issuer on the Global
Securities, hereby are authorized and approved as and for execution by the
Issuer, notwithstanding that any such officer may have ceased to occupy such
office at any time any Global Security is presented for authentication.
RESOLVED, the forms of Underwriting Agreement and Pricing Agreement between
the Issuer and the Underwriters, presented to the Committees, covering the sale
by the Issuer and the purchase by the Underwriters of the Notes, hereby are
approved, and the Chairman or any Vice Chairman of the Board of Directors or any
Vice President hereby is authorized, in the name and on behalf of the Issuer, to
execute and deliver an Underwriting Agreement and a Pricing Agreement in
substantially such form with such insertions, additions and changes as may be
hereafter approved by the officer executing and delivering the same, such
approval to be conclusively evidenced by the due execution thereof.
RESOLVED, each of the officers of the Issuer hereby is authorized to
execute, deliver and file any and all instruments and documents and amendments
thereto and to do any and all acts or things in the name and on behalf of the
Issuer by him deemed necessary or advisable in connection with the issuance,
sale and delivery of the Notes and for the purpose of carrying into effect any
of the transactions and matters contemplated by this Action.
TERMS COMMITTEE
/s/ R.M. HEMANDEZ
----------------------------
R.M. Hemandez
/s/ E.F. GUNA
----------------------------
E.F. Guna
RATE COMMITTEE
/s/ E.F. GUNA
----------------------------
E.F. Guna
/s/ P.C. REINBOLT
----------------------------
P.C. Reinbolt
Dated: March 5, 1998
-3-
<PAGE> 1
EXHIBIT 4.2
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
USX CORPORATION, Issuer
and
PNC Bank, National Association, Trustee
----------------
INDENTURE
Dated as of March 15, 1993
----------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE> 2
Certain Sections of this Indenture relating to Sections 310 through 318,
inclusive, of the Trust Indenture Act of 1939.
Trust Indenture Indenture
Act Section Section
--------------- ---------
(S)310(a)(1) 7.09
(2) 7.09
(3) NA
(4) NA
(5) 7.09
(b) 7.08, 7.10(b)
(c) NA
(S)311(a) 7.13
(b) 7.13
(c) NA
(S)312(a) 5.01, 5.02(a)
(b) 5.02(b)
(c) 5.02(c)
(S)313(a) 5.04
(b)(1) NA
(b)(2) 5.03(a)
(c) 5.03(a), 5.04
(d) 5.03(b)
(S)314(a)(1) 5.04
(a)(2) 5.04
(a)(3) 5.04
(a)(4) 5.04
(b) NA
(c)(1) 14.04
(2) 14.04
(3) NA
(d) NA
(e) 14.04
(f) NA
(S)315(a) 7.01, 7.02
(b) 6.07
(c) 7.01
(d)(1) 7.01
(d)(2) 7.01, 7.02
(d)(3) 7.01, 7.02
(e) 6.08
(S)316(a)(1) 6.06
(2) NA
(b) 6.04
(c) 14.05
(S)317(a)(1) 6.02
(a)(2) 6.02
(b) 4.05
(S)318(a) 14.07
(b) 14.07
(c) 1.01
<PAGE> 3
TABLE OF CONTENTS*
PAGE
----
Parties................................................................... 1
Recitals.................................................................. 1
ARTICLE ONE
Definitions
Section 1.01. Certain terms defined..................................... 1
Board of Directors........................................ 1
Business Day.............................................. 1
Change in Control......................................... 2
Change in Control Purchase Date........................... 2
Change in Control Purchase Price.......................... 2
Company................................................... 2
Consolidated Net Tangible Assets.......................... 2
Debt Security or Debt Securities; outstanding............. 2
Debt Security registrar................................... 3
Defaulted Interest........................................ 3
Depositary................................................ 4
Establishment Action...................................... 4
Event of Default.......................................... 4
Global Security or Global Securities...................... 4
Government Obligations.................................... 4
Holder.................................................... 5
Indenture................................................. 5
Interest Payment Date..................................... 5
Issuing Agent............................................. 5
Maturity.................................................. 5
Officers' Certificate..................................... 5
Opinion of Counsel........................................ 6
Original Issue Discount Security.......................... 6
Paying Agent.............................................. 6
Person.................................................... 6
Principal office of the Trustee........................... 6
Regular Record Date....................................... 6
Responsible officer....................................... 6
Series.................................................... 7
Special Record Date....................................... 7
Stated Maturity........................................... 7
Subsidiary................................................ 7
Trust Indenture Act....................................... 7
- --------
*This Table of Contents is not part of the Indenture.
<PAGE> 4
ii
PAGE
----
Voting Power.............................................. 7
Voting Stock.............................................. 7
ARTICLE TWO
Issue, Execution, Transfer and Exchange of Debt Securities
Section 2.01. Authentication and delivery of Debt Securities............ 8
Section 2.02. Creation of a Series of Debt Securities................... 8
Section 2.03. Form of Debt Securities and Trustee's Certificate......... 9
Section 2.04. Additional provisions required in Global Security......... 17
Section 2.05. Date of Debt Securities and Record Dates.................. 17
Section 2.06. Execution of Debt Securities.............................. 18
Section 2.07. Interest.................................................. 18
Section 2.08. Exchanges and transfers of Debt Securities................ 19
Section 2.09. Mutilated, destroyed, lost or stolen Debt Securities...... 20
Section 2.10. Cancellation of surrendered Debt Securities............... 21
Section 2.11. Temporary Certificates.................................... 21
ARTICLE THREE
Redemption of Debt Securities
Section 3.01. Redemption by Series...................................... 22
Redemption at option of Company........................... 22
Section 3.02. Mailing of notice of redemption........................... 22
Form of notice of redemption.............................. 22
Company to deposit funds on or prior to
redemption date......................................... 23
Selection of Debt Securities in case
less than all to be redeemed............................ 23
Section 3.03. When Debt Securities called for redemption
become due and payable; redemption
of Debt Securities in part.............................. 23
ARTICLE FOUR
Particular Covenants of the Company
Section 4.01. Payment of principal of, premium (if any)
and interest on Debt Securities......................... 24
Section 4.02. Maintenance of offices or agencies for transfer,
exchange and payment of Debt Securities................. 24
Section 4.03. Not to mortgage certain properties
in the United States without securing
Debt Securities ratably................................. 25
Section 4.04. Covenants affecting sales and lease back
of certain properties in the United States.............. 26
<PAGE> 5
iii
PAGE
----
Section 4.05. (a) Duties of Paying Agent............................... 27
(b) Company as Paying Agent.............................. 27
(c) Turnover to Trustee by Paying Agent
or Company........................................... 27
(d) Holding sums in trust................................ 28
Section 4.06. Annual review certificate................................ 28
Section 4.07. Purchase of Debt Securities at Option of the Holder
upon Change in Control................................. 28
Section 4.08. Effect of Change in Control Purchase Notice.............. 31
Section 4.09. Deposit of Change in Control Purchase Price.............. 32
ARTICLE FIVE
Debt Securityholders' List and Reports by the Company
and the Trustee
Section 5.01. Company to furnish Trustee information as to
names and addresses of Debt Securityholders............ 32
Section 5.02. (a) Trustee to preserve information as to names
and addresses of Debt Securityholders................ 32
Trustee may destroy list of Debt Securityholders
on certain conditions................................ 32
(b) Trustee to make information as to names and
addresses of Debt Securityholders available to
"applicants" or mail communications to Debt
Securityholders in certain circumstances............. 33
Procedure if Trustee elects not to make
information available to "applicants"................ 33
(c) Company and Trustee not accountable for
disclosure of information............................ 33
Section 5.03. Reports by Company:
(a) Annual and other reports to be filed by
Company with Trustee................................. 33
(b) Additional Information and reports to be filed
with Trustee and Securities and Exchange
Commission........................................... 33
Section 5.04. Reports by Trustee:
Copies of reports to be filed with stock
exchanges and the Securities and Exchange
Commission............................................. 33
<PAGE> 6
iv
PAGE
----
ARTICLE SIX
Remedies on Default
Section 6.01. Events of Default defined............................... 33
Acceleration of maturity upon Event of Default.......... 33
Waiver of default and rescission of declaration
of maturity........................................... 36
Section 6.02. Covenant of Company to pay to Trustee whole
amount due on Debt Securities on default in
payment of interest or principal...................... 36
Trustee may recover judgment for whole amount
due on Debt Securities on failure of Company
to pay................................................ 36
Trustee may file proof of debt in bankruptcy,
etc. proceedings...................................... 37
Rights of action and of asserting claims may be
enforced by Trustee without possession of Debt
Securities............................................ 37
Trustee may enforce rights vested in it by Indenture
by appropriate judicial proceedings................... 37
Section 6.03. Application of moneys collected by Trustee.............. 37
Section 6.04. Limitation on suits by holders of Debt Securities....... 38
Rights of holders not otherwise impaired................ 39
Section 6.05. Remedies cumulative; delay or omission in
exercise of rights not a waiver of default............ 39
Section 6.06. Rights of holders of majority in amount of Debt
Securities to direct Trustee or waive defaults........ 39
Section 6.07. Trustee to give notice of default, but may withhold
in certain circumstances.............................. 40
Section 6.08. Right of court to require undertaking to pay costs...... 40
ARTICLE SEVEN
Concerning the Trustee
Section 7.01. Duties and Responsibilities of the Trustee shall be as
provided in the Trust Indenture Act................... 41
Section 7.02. Except as otherwise provided in Section 7.01:
(a) Trustee may rely on documents believed
genuine and properly signed or presented............ 41
<PAGE> 7
v
PAGE
----
(b) Sufficient evidence by certain instruments
provided for......................................... 41
(c) Trustee may act on Opinion of Counsel................ 41
(d) Trustee may require indemnity from
noteholders.......................................... 41
(e) Trustee not liable for actions in good
faith believed to be authorized...................... 42
Section 7.03. Trustee not liable for recitals in Indenture
or in Debt Securities.................................. 42
No representations by Trustee as to validity
of Indenture or the Debt Securities.................... 42
Trustee not accountable for use of Debt
Securities or proceeds................................. 42
Section 7.04. Trustee, Paying Agent or Debt Security registrar
may become owner or pledgee
of Debt Securities..................................... 42
Section 7.05. Money received by Trustee to be held in trust
without interest....................................... 42
Section 7.06. Compensation and reimbursement of Trustee................ 42
Section 7.07. Right of Trustee to rely on Officers' Certificate
where no other evidence specifically prescribed........ 43
Section 7.08. Trustee acquiring conflicting interest to
eliminate conflict or resign........................... 43
Section 7.09. Requirements for eligibility of Trustee.................. 45
Section 7.10. (a) Resignation of Trustee............................... 46
(b) Removal of Trustee by Company or by
court on noteholder's application.................... 46
(c) Removal of Trustee by holders of majority in
amount of Debt Securities............................ 47
(d) Time when resignation or removal of Trustee
effective............................................ 47
Section 7.11. Acceptance by successor to Trustee....................... 47
Notice of succession of a trustee........................ 48
Section 7.12. Successor to Trustee by merger, consolidation or
succession to business................................. 48
Section 7.13. The Trustee as a creditor................................ 48
Section 7.14. Authenticating Agents.................................... 48
<PAGE> 8
vi
PAGE
----
ARTICLE EIGHT
Concerning the Debt Securityholders
Section 8.01. Evidence of action by Debt Securityholders............... 51
Section 8.02. Proof of execution of instruments and of holding
of Debt Securities..................................... 51
Section 8.03. Who may be deemed owners of Debt Securities.............. 52
Section 8.04. Debt Securities owned by the Company or
controlled or controlling companies deemed
not outstanding for certain purposes................... 52
Section 8.05. Right of revocation of action taken...................... 53
ARTICLE NINE
Meetings of Holders of Debt Securities
Section 9.01. Purposes for which meetings may be called................ 53
Section 9.02. Call of meetings by Trustee.............................. 54
Section 9.03. Call of meetings by Company or
Debt Securityholders................................... 54
Section 9.04. Who may vote at meetings................................. 54
Section 9.05. Regulations may be made by Trustee; conduct of
the meeting; voting rights; adjournment................ 55
Section 9.06. Manner of voting at meetings and record to be kept....... 56
Section 9.07. Rights of Trustee or Debt Securityholders
not delayed............................................ 56
ARTICLE TEN
Modification of Indenture;
Supplemental Indentures
Section 10.01. Purposes for which Indenture may be modified or
supplemental indentures may be entered into without
consent of Debt Securityholders........................ 56
Section 10.02. Modification of Indenture with consent of holders
of 66 2/3% in amount of Debt Securities................ 58
Section 10.03. Effect of supplemental indentures........................ 59
Opinion of Counsel to Trustee............................ 59
Section 10.04. Debt Securities may bear notation of changes by
supplemental indentures................................ 59
<PAGE> 9
vii
PAGE
----
ARTICLE ELEVEN
Consolidation, Merger, Sale or Conveyance
Section 11.01. Covenant not to merge, consolidate, sell or convey
property except under certain conditions............... 60
Section 11.02. Rights and duties of successor corporation............... 60
Appropriate changes may be made in form
of Debt Securities..................................... 61
Section 11.03. Covenant to secure Debt Securities....................... 61
Section 11.04. Opinion of Counsel to Trustee............................ 61
ARTICLE TWELVE
Satisfaction and Discharge of Indenture; Unclaimed Moneys
Section 12.01. Satisfaction and discharge of Indenture.................. 61
Section 12.02. Defeasance............................................... 62
Section 12.03. Application by Trustee of funds deposited for
payment of Debt Securities............................. 66
Section 12.04. Repayment of moneys held by Paying Agent................. 67
Section 12.05. Return of moneys held by Trustee and Paying
Agent unclaimed for one year........................... 67
ARTICLE THIRTEEN
Immunity of Incorporators, Stockholders,
Officers and Directors
Section 13.01. Incorporators, stockholders, officers and directors
of Company exempt from individual
liability.............................................. 67
ARTICLE FOURTEEN
Miscellaneous Provisions
Section 14.01. Provisions of Indenture and Debt Securities for
the sole benefit of parties and noteholders............ 68
Section 14.02. Successors and assigns of Company and
bound by Indenture..................................... 68
Section 14.03. Required notices or demands may be
served by mail......................................... 68
Section 14.04. Officers' Certificate and Opinion of Counsel
to be furnished upon applications or
demands by the Company................................. 68
<PAGE> 10
viii
PAGE
----
Statements to be included in each certificate
or opinion with respect to compliance with a
condition or covenant.................................. 68
Section 14.05. Setting the Record Date to determine Holders
of Debt Securities..................................... 69
Section 14.06. Payments due on Sundays and holidays..................... 69
Section 14.07. Provisions required by Trust Indenture
Act of 1939 to control................................. 69
Section 14.08. Governing law............................................ 69
Section 14.09. Indenture may be executed in counterparts................ 70
Section 14.10. Separability............................................. 70
Acceptance of Trust by Trustee........................................... 70
Testimonium.............................................................. 70
Signatures and Seals..................................................... 70
Acknowledgments.......................................................... 71
<PAGE> 11
1
THIS INDENTURE, dated as of the fifteenth of March, 1993, between USX
Corporation, a corporation duly organized and existing under the laws of the
State of Delaware (hereinafter sometimes called the "Company"), and PNC Bank,
National Association, a corporation duly organized and existing under the laws
of the United States of America (hereinafter sometimes called the "Trustee"):
Witnesseth:
Whereas, the Company desires to enter into an indenture with a trustee
pursuant to which it may issue one or more Series of debt securities (each of
which Series hereinafter sometimes called a "Series of Debt Securities" with the
individual debt securities comprising a Series of Debt Securities hereinafter
sometimes called the "Debt Securities"); and
In order to declare the terms and conditions upon which the Debt Securities
are authenticated, issued and delivered, and in consideration of the premises,
of the purchase and acceptance of the Debt Securities by the holders thereof and
of the sum of one dollar to the Company duly paid by the Trustee at the
execution of these presents, the receipt whereof is hereby acknowledged, it is
mutually covenanted and agreed, for the equal and proportionate benefit of the
respective holders from time to time of the Debt Securities, as follows:
ARTICLE ONE
Definitions
Section 1.01. The terms defined in this Section 1.01 (except as herein
otherwise expressly provided or unless the context otherwise requires) for all
purposes of this Indenture and of any indenture supplemental hereto shall have
the respective meanings specified in this Section 1.01.
Board of Directors:
The term "Board of Directors" when used with reference to the Company shall
mean the Board of Directors of the Company or any other committee of the Board
of Directors of the Company acting pursuant to authority delegated to such
committee by the Board of Directors.
Business Day:
The term "Business Day" shall mean each day of the year on which banking
institutions are not required or authorized to close in the City of Pittsburgh,
Pennsylvania or New York, New York.
<PAGE> 12
2
Change in Control:
The term "Change in Control" shall have the meaning assigned to it in Section
4.07(a).
Change in Control Purchase Date:
The term "Change in Control Purchase Date" shall have the meaning assigned to
it in Section 4.07(a).
Change in Control Purchase Price:
The term "Change in Control Purchase Price" shall have the meaning assigned to
it in Section 4.07(a).
Company:
The term "Company" shall mean USX Corporation, a Delaware corporation, and,
subject to the provisions of Article Eleven, shall include its successors and
assigns.
Consolidated Net Tangible Assets:
The term "Consolidated Net Tangible Assets" shall mean the aggregate value of
all assets of the Company and its subsidiaries after deducting therefrom (a) all
current liabilities (excluding all long-term debt due within one year), (b) all
investments in unconsolidated subsidiaries and all investments accounted for on
the equity basis and (c) all goodwill, patent and trademarks, unamortized debt
discount and other similar intangibles (all determined in conformity with
generally accepted accounting principles and calculated on a basis consistent
with the Company's most recent audited consolidated financial statements).
Debt Security or Debt Securities; outstanding:
The term "Debt Security" or "Debt Securities" shall mean any Debt Security or
Debt Securities, as the case may be, which are part of a Series of Debt
Securities authorized pursuant to an Establishment Action and authenticated and
delivered under this Indenture.
The term "outstanding", when used with reference to Debt Securities, shall,
subject to the provisions of Section 8.04, mean, as of any particular time, all
Debt Securities authenticated and delivered by the Trustee under this Indenture,
except
<PAGE> 13
3
(a) Debt Securities theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(b) Debt Securities in substitution for which other Debt Securities shall
have been authenticated and delivered pursuant to the terms of Section 2.08,
unless, in the case of allegedly stolen, lost or destroyed Debt Securities,
proof satisfactory to the Company and the Trustee is furnished that any such
Debt Securities are held by a bona fide purchaser; and
(c) Debt Securities, or portions thereof, for the payment or redemption of
which moneys in the necessary amount shall have been deposited in trust with
the Trustee or with any paying agent (other than the Company) or shall have
been set aside and segregated in trust by the Company (if the Company shall
act as its own paying agent); provided that if such Debt Securities, or
portions thereof, are to be redeemed prior to maturity thereof, notice of such
redemption shall have been given as provided in Article Three or provision
satisfactory to the Trustee shall have been made for giving such notice.
In determining whether the holders of the requisite principal amount of
outstanding Debt Securities of any or all Series have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, the principal
amount of an Original Issue Discount Security that shall be deemed to be
outstanding for such purposes shall be the amount of the principal thereof that
would be due and payable as of the date of such determination upon a declaration
of acceleration of the maturity thereof pursuant to Section 6.01 and the
principal amount of a Debt Security denominated in a foreign currency or
currencies that shall be deemed to be outstanding for such purposes shall be the
U.S. dollar equivalent, determined in the manner provided as contemplated by
Section 2.02, on the date of original issuance of such Debt Security, of the
principal amount (or, in the case of an Original Issue Discount Security, the
U.S. dollar equivalent on the date of original issuance of such Debt Security of
the amount determined as provided above) of such Debt Security.
Debt Security registrar:
The term "Debt Security registrar" with respect to a particular Series of Debt
Security shall mean the Trustee, or any other party serving in such capacity
with the Trustee's consent.
Defaulted Interest:
The term "Defaulted Interest" shall have the meaning specified in Section
2.05.
<PAGE> 14
4
Depositary:
The term "Depositary" shall mean, with respect to Debt Securities of any
Series issuable or issued in whole or in part in the form of one or more Global
Securities, a clearing agency registered under the Securities Exchange Act of
1934, as amended, that is designated to act as Depositary for such Debt
Securities as contemplated by Section 2.02.
Establishment Action:
The term "Establishment Action" shall mean a resolution of the Company's Board
of Directors establishing a Series of Debt Securities and authorizing the
issuance of any Debt Security or a resolution or action by a committee, officer
or employee of the Company, if the Board of Directors of the Company has
delegated to such committee, officer or employee the power to establish a Series
of Debt Securities or to authorize the issuance of any Debt Security.
Event of Default:
The term "Event of Default" shall have the meaning specified in Section 6.01.
Global Security or Global Securities:
The term "Global Security" or "Global Securities" shall mean a Debt Security
or Securities, as the case may be, in the form prescribed in Section 2.04
evidencing all or part of a Series of Debt Securities, issued to the Depositary
for such Series or its nominee, and registered in the name of such Depositary or
nominee.
Government Obligations:
The term "Government Obligations" shall mean securities that are direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged or obligations of a Person controlled or supervised
by and acting as an agency or instrumentality of the United States of America
the payment of which is unconditionally guaranteed as a full faith and credit
obligation of the United States of America.
<PAGE> 15
5
Holder:
The term "holder", "holder of Debt Securities" or "Debt Securityholder" shall
mean the Person or Persons in whose name or names the particular Debt Security
shall at the time be registered upon the books of the Company.
Indenture:
The term "Indenture" shall mean this instrument as originally executed or, if
amended or supplemented as herein provided, as so amended or supplemented,
including, for all purposes of this instrument and any supplemental indenture,
the provisions of the Trust Indenture Act that are deemed to be a part of and
govern this instrument and any such supplemental indenture, respectively. The
term "Indenture" shall also include the terms of particular Series of Debt
Securities established as contemplated by Section 2.02.
Interest Payment Date:
The term "Interest Payment Date", when used with respect to any Debt Security,
shall mean the Stated Maturity of an installment of interest on such Debt
Security.
Issuing Agent:
The term "Issuing Agent" shall mean the agent, if any, appointed and acting
pursuant to Section 7.14.
Maturity:
The term "Maturity", when used with respect to any Debt Security, shall mean
the date on which the principal of such Debt Security or an installment of
principal becomes due and payable as therein or herein provided, whether at the
Stated Maturity or by declaration of acceleration, call for redemption or
otherwise.
Officers' Certificate:
The term "Officers' Certificate" shall mean a certificate signed by the
Chairman of the Board of Directors, any Vice Chairman of the Board of Directors,
President or any Vice President and by the Treasurer or any Assistant Treasurer
or the Comptroller or any Assistant Comptroller or the Secretary or any
Assistant Secretary of the Company, as the case may be. Each such certificate
shall include the statements provided for in Section 14.04 if and to the extent
required by the provisions of such Section. One of the officers signing an
Officers' Certificate given pursuant to Section 4.06 shall be the principal
executive, financial or accounting officer of the Company.
<PAGE> 16
6
Opinion of Counsel:
The term "Opinion of Counsel" shall mean an opinion in writing signed by legal
counsel, who may be an employee of or counsel to the Company or other counsel
satisfactory to the Trustee. Each such opinion shall include the statements
provided for in Section 14.04 if and to the extent required by the provisions of
such Section.
Original Issue Discount Security:
The term "Original Issue Discount Security" shall mean any Debt Security which
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the maturity thereof pursuant to
Section 6.01.
Paying Agent:
The term "Paying Agent" shall mean the Company or any other Person designated
as such by the Company as provided for in Section 4.05.
Person:
The term "Person" shall mean any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
Principal office of the Trustee:
The term "principal office of the Trustee", or other similar term, shall mean
the principal office of the Trustee at which at any particular time its
corporate trust business shall be administered.
Regular Record Date:
The term "Regular Record Date" for the interest payable on any Interest
Payment Date on the Debt Securities of any Series shall mean the date specified
for that purpose as contemplated by Section 2.02.
Responsible officer:
The term "responsible officer" when used with respect to the Trustee shall
mean the chairman of the board of directors, the vice-chairman of the board of
directors, the chairman of the executive committee, the vice-chairman of the
executive committee, the chairman of the trust committee, the president, any
vice president, the cashier, the secretary, the treasurer, any trust officer,
any assistant trust officer, any second or assistant vice president, any
assistant cashier, any assistant secretary, any assistant treasurer, or any
other officer or assistant officer of the Trustee customarily performing
functions similar to
<PAGE> 17
7
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 his
knowledge of and familiarity with the particular subject.
Series:
The term "Series" or "Series of Debt Securities" shall mean a series or series
of debt securities established pursuant to Section 2.02 and authenticated
pursuant to this Indenture.
Special Record Date:
The term "Special Record Date" for the payment of any Defaulted Interest shall
mean a date fixed by the Trustee pursuant to Section 2.04.
Stated Maturity:
The term "Stated Maturity", when used with respect to any Debt Security or any
installment of principal thereof or interest thereon, means the date specified
in such Debt Security as the fixed date on which the principal of such Debt
Security or such installment of principal or interest is due and payable.
Subsidiary:
The term "Subsidiary" of a Person shall mean any corporation of which such
Person directly or indirectly owns or controls at the time, at least a majority
of the outstanding stock having under ordinary circumstances (not dependent upon
the happening of a contingency) voting power to elect a majority of the board of
directors of said corporation.
Trust Indenture Act:
The term "Trust Indenture Act" shall mean the Trust Indenture Act of 1939, as
amended, as in force at the date of this Indenture as originally executed;
provided, however, that in the event the Trust Indenture Act of 1939 is amended
after such date, "Trust Indenture Act" shall mean, to the extent required by any
such amendment, the Trust Indenture Act of 1939 as so amended.
Voting Power:
The term "Voting Power" shall mean the total voting power represented by all
outstanding shares of all classes of Voting Stock.
Voting Stock:
The term "Voting Stock" as applied to the stock of any corporation means stock
of any class or classes (however designated) having ordinary voting power for
the election of the directors of such corporation, other than stock having such
power only by reason of the happening of a contingency.
<PAGE> 18
8
ARTICLE TWO
Issue, Execution, Transfer and Exchange of Debt Securities
Section 2.01. Each Series of Debt Securities shall be designated by a title
established in an Establishment Action. The aggregate principal amount of Debt
Securities that may be issued hereunder is unlimited. All Series of Debt
Securities shall equally and ratably be entitled to the benefit of this
Indenture except as may be provided in the Establishment Action or the
supplemental Indenture relating to such Series.
Section 2.02. At or prior to the issuance of a Series of Debt Securities such
Series of Debt Securities shall be established by an Establishment Action. Such
an Establishment Action shall establish (a) the title of the Series of Debt
Securities (which shall distinguish the Series of the Debt Securities from any
other Series); (b) any limit on the aggregate principal amount of the Series of
Debt Securities so established; (c) the Person to whom any interest on a Debt
Security of the Series shall be payable, if other than the person in whose name
that Debt Security is registered at the close of business on the Regular Record
Date for such interest; (d) the rates at which the Debt Securities shall bear
interest (or the manner of calculation thereof), if any, the date or dates from
which interest shall accrue, the Interest Payment Dates on which interest shall
be payable and the Regular Record Date for the interest payable on any Interest
Payment Date; (e) if other than the principal amount thereof, the portion of the
principal amount of Debt Securities of the Series which shall be payable upon
declaration of acceleration of the maturity thereof pursuant to Section 6.01;
(f) if other than 100% of the principal amount thereof plus accrued interest,
the Change in Control Purchase Price or Prices applicable to purchases of Debt
Securities of the Series pursuant to Section 4.07; (g) if other than such coin
or currency of the United States of America as at the time of payment is legal
tender for payment of public or private debts, the coin or currency (including
any composite currency) in which payment of the principal (and premium, if any)
and interest on the Debt Securities of the Series shall be denominated or
payable and the manner of determining the equivalent thereof in the currency of
the United States of America for purposes of the definition of "outstanding" in
Section 1.01; (h) redemption provisions, if any; (i) sinking fund provision, if
any; (j) the denominations in which the Debt Securities of the Series may be
issued; (k) the date and place of payment of principal, interest and premium,
(if any); (l) whether Section 12.02 will apply to the Debt Securities of the
Series; (m) any Events of Default in addition to those set forth in Section
6.01; (n) if and as applicable, that Debt Securities of the Series shall be
issued in whole or in part in the form of one or more Global Securities and, in
such case, the Depositary or Depositaries for such Global Security or
Securities; (o) if the amount of payments of principal of or any
<PAGE> 19
9
premium or interest on any Debt Securities of the Series may be determined with
reference to an index, the manner in which such amounts shall be determined; and
(p) any other provisions of such Series (which provisions shall not be
inconsistent with the provisions of this Indenture except as permitted by
Section 10.01(d)). The Company shall provide to the Trustee a copy of such an
Establishment Action.
Section 2.03. The Debt Securities of each Series shall be in substantially the
form set forth in this Section 2.03, or in such other form as shall be
established by or pursuant to an Establishment Action or in one or more
indentures supplemental hereto, in each case with such appropriate insertions,
omissions, substitutions and other variations as are required or permitted by
this Indenture, and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the officers executing such Debt
Securities, as evidenced by their execution of the Debt Securities. If the form
of Debt Securities of any Series is established by an Establishment Action, a
copy of an appropriate record of such action shall be certified by the Secretary
or an Assistant Secretary of the Company and delivered to the Trustee at or
prior to the delivery of the authorization order contemplated by Section 2.04
for the authentication and delivery of such Debt Securities.
The Trustee's certificates of authentication shall be in substantially the
form set forth in this Section 2.03.
All Debt Securities comprising a Series of Debt Securities shall be
substantially identical except as to denominations, unless otherwise provided
for in the Establishment Action creating such a Series of Debt Securities.
The definitive Debt Securities shall be printed, lithographed or engraved on
steel engraved borders or may be produced in any other manner, all as determined
by the officers executing such Debt Securities, as evidenced by their execution
of such Debt Securities.
[FORM OF FACE OF DEBT SECURITY]
[If applicable, insert the following legend or such other legend as may be
required by the Internal Revenue Code or the regulations thereunder--For
purposes of Sections 1272, 1273 and 1275 of the United States Internal Revenue
Code of 1986, as amended, the amount of original issue discount on this security
is % of its principal amount, the issue date is , 19 [,] [and] the
yield to maturity is % [, the method used to determine the yield is
and
<PAGE> 20
10
the amount of original issue discount applicable to the short accrual period
of , 19 , to , 19 is % of the principal amount of this securi-
ty].]
USX CORPORATION
[Insert title of the Series]
No. $
USX Corporation, a corporation duly organized and existing under the laws of
Delaware (herein called the "Company", which term includes any successor
corporation under the Indenture hereinafter referred to), for value received,
hereby promises to pay to
, or registered assigns, the principal sum of Dollars on
[If the Security is to bear interest prior to Maturity, insert--, and to pay
interest thereon from or from the most
recent Interest Payment Date to which interest has been paid or duly provided
for, semi-annually on and in each year, commencing ,
at the rate of % per annum, until the principal hereof is paid or made
available for payment [If applicable, insert--, and (to the extent that the
payment of such interest shall be legally enforceable) at the rate of % per
annum on any overdue principal and premium and on any overdue installment of
interest]. The interest so payable, and punctually paid or duly provided for, on
any Interest Payment Date will, as provided in such Indenture, be paid to the
Person in whose name this Security is registered at the close of business on the
Regular Record Date for such interest, which shall be the or ,
as the case may be, next preceding such Interest Payment Date. Any such interest
not so punctually paid or duly provided for will forthwith cease to be payable
to the holder on such Regular Record Date and may either be paid to the Person
in whose name this Security is registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof shall be given to holders of Securities of this Series
not less than 15 days prior to such Special Record Date, or be paid at any time
in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities of this Series may be listed, and
upon such notice as may be required by such exchange, all as more fully provided
in said Indenture].
[If the Security is not to bear interest prior to Maturity, insert--The
principal of this Security shall not bear interest except in the case of a
default in payment of principal upon acceleration, upon redemption or at Stated
Maturity and in such case the overdue principal of this Security shall bear
interest at the rate of % per annum (to the extent that the payment of such
interest shall be
<PAGE> 21
11
legally enforceable), which shall accrue from the date of such default in
payment to the date payment of such principal has been made or duly provided
for. Interest on any overdue principal shall be payable on demand. Any such
interest on any overdue principal that is not so paid on demand shall bear
interest at the rate of % per annum (to the extent that the payment of such
interest shall be legally enforceable), which shall accrue from the date of such
demand for payment to the date payment of such interest has been made or duly
provided for, and such interest shall also be payable on demand.]
Payment of the principal of (and premium, if any) and [if applicable,
insert--any such] interest on this Security will be made at the office or agency
of the Company maintained for that purpose in ,
in such coin or currency of the United States of America as at the time of
payment is legal tender for payment of public and private debts [if applicable,
insert--; provided, however, that at the option of the Company payment of
interest may be made by check mailed to the address of the Person entitled
thereto as such address shall appear in the Debt Security register].
Reference is hereby made to the further provisions of this Security set forth
on the reverse hereof, which further provisions shall for all purposes have the
same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
In Witness Whereof, the Company has caused this instrument to be duly executed
under its corporate seal.
Dated: USX CORPORATION
By.....................................
Attest:
[FORM OF REVERSE OF DEBT SECURITY]
This Security is one of a duly authorized issue of securities of the Company
(herein called the "Securities"), issued and to be issued in one or more Series
under an Indenture, dated as of March 15, 1993 (herein called the "Indenture"),
between the Company and PNC Bank, National Association, as Trustee (herein
called the "Trustee", which term includes any successor trustee under the
Indenture), to which Indenture and all indentures supplemental thereto reference
is hereby made for a statement of the respective
<PAGE> 22
12
rights, limitations of rights, duties and immunities thereunder of the Company,
the Trustee and the holders of the Securities and of the terms upon which the
Securities are, and are to be, authenticated and delivered. This Security is one
of the Series designated on the face hereof [, limited in aggregate principal
amount to $ ].
[If applicable, insert--The Securities of this Series are subject to
redemption upon not less than 30 days' notice by mail, [If applicable,
insert--(1) on in any year commencing with the year and ending with
the year through operation of the sinking fund for this Series at a
redemption price equal to 100% of the principal amount, and (2)] at any time
[on or after , 19 ], as a whole or in part, at the election of the
Company, at the following redemption prices (expressed as percentages of the
principal amount): If redeemed [on or before , %, and if redeemed]
during the 12-month period beginning of the years indicated,
REDEMPTION REDEMPTION
YEAR PRICE YEAR PRICE
---- ---------- ----- ----------
and thereafter at a redemption price equal to % of the principal amount,
together in the case of any such redemption [if applicable, insert--(whether
through operation of the sinking fund or otherwise) with accrued interest to the
redemption date, but interest installments whose Stated Maturity is on or prior
to such redemption date will be payable to the holders of such Securities of
record at the close of business on the relevant record dates referred to on the
face hereof, all as provided in the Indenture].
<PAGE> 23
13
[If applicable, insert--The Securities of this Series are subject to
redemption upon not less than 30 days' notice by mail, (1) on
in any year commencing with the year and ending with the year
through operation of the sinking fund for this Series at the redemption prices
for redemption through operation of the sinking fund (expressed as percentages
of the principal amount) set forth in the table below, and (2) at any time
[If applicable, insert--on or after ], as a whole or in part, at the
election of the Company, at the redemption prices for redemption otherwise than
through operation of the sinking fund (expressed as percentages of the principal
amount) set forth in the table below: If redeemed during the 12-month period
beginning of the years indicated,
REDEMPTION PRICE
FOR REDEMPTION REDEMPTION PRICE FOR
THROUGH OPERATION REDEMPTION OTHERWISE
OF THE THAN THROUGH OPERATION
YEAR SINKING FUND OF THE SINKING FUND
----- ------------------ -----------------------
and thereafter at a redemption price equal to % of the principal amount,
together in the case of any such redemption (whether through operation of the
sinking fund or otherwise) with accrued interest to the redemption date, but
interest installments whose Stated Maturity is on or prior to such redemption
date will be payable to the holders of such Securities of record at the close of
business on the relevant record dates referred to on the face hereof, all as
provided in the Indenture.]
[If applicable, insert--The sinking fund for this Series provides for the
redemption on in each year beginning with the year and
ending with the year of [If applicable, insert--not less than $
("mandatory sinking fund") and not more than] $ aggregate principal
amount of Securities of this Series. Securities of this Series acquired or
redeemed by the Company otherwise than through [mandatory] sinking fund payments
may be credited against subsequent [mandatory] sinking fund pay-
<PAGE> 24
14
ments otherwise required to be made to be applied in such order as the Company
shall specify to the Trustee.]
[If the Security is subject to redemption of any kind, insert--In the event of
redemption of this Security in part only, a new Security or Securities of this
Series and of like tenor for the unredeemed portion hereof will be issued in the
name of the holder hereof upon the cancellation hereof.]
[If applicable, insert--The Indenture contains provisions for defeasance at
any time of (1) the entire indebtedness of this Security or (2) certain
covenants (including the Company's covenant to purchase this Security at the
option of the holder hereof in the event of a Change in Control) and Events of
Default with respect to this Security, in each case upon compliance with certain
conditions set forth in the Indenture.]
In the event of a Change in Control and subject to and upon compliance with
the terms and conditions of the Indenture, each holder of Securities of this
Series will have the right, at that holder's election made on or prior to the
Change in Control Purchase Date with respect to such Change in Control, to
require the Company to become obligated to purchase all of that holder's
Securities on the later of the Change in Control Purchase Date and the time of
delivery of this Security at a Change in Control Purchase Price equal to [100%
of the principal amount thereof, together with accrued interest to the Change in
Control Purchase Date, except that interest installments due prior to the Change
in Control Purchase Date will be payable to the holders of record at the close
of business on the relevant Record Dates referred to on the face hereof] [if
different price applies, insert description], all as provided in the Indenture.
[If the Security is not an Original Issue Discount Security,--If an Event of
Default with respect to Securities of this Series shall occur and be continuing,
the principal of the Securities of this Series may be declared due and payable
in the manner and with the effect provided in the Indenture].
[If the Security is an Original Issue Discount Security,--If an Event of
Default with respect to Securities of this Series shall occur and be continuing,
an amount of principal of the Securities of this Series may be declared due and
payable in the manner and with the effect provided in the Indenture. Such amount
shall be equal to--insert formula for determining the amount. Upon payment (i)
of the amount of principal so declared due and payable and (ii) of interest on
any overdue principal and overdue interest (in each case to the extent that the
payment of such interest shall be legally enforceable), all of the Company's
obligations in respect of the payment of the principal of and interest, if any,
on the Securities of this Series shall terminate].
<PAGE> 25
15
The Indenture contains provisions permitting the Company and the Trustee to
modify the Indenture or any supplemental indenture without the consent of the
holders of the Securities in regard to matters including, without limitation,
the following: (a) to evidence the succession of another corporation to the
Company; (b) to add to the covenants of the Company further covenants,
restrictions, conditions or provisions; (c) to cure any ambiguity in, or to
correct or supplement any provision of, the Indenture as shall not adversely
affect the interests of the holders of the Securities; (d) to add to, change or
eliminate any of the provisions of the Indenture in respect of one or more
series of Debt Securities thereunder, under certain conditions specified
therein; (e) to convey, transfer, assign, mortgage or pledge any property to or
with the Trustee; (f) to evidence the appointment of a successor Trustee; and
(g) to establish additional Series of Securities which may be issued pursuant to
the Indenture. The Indenture also permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the holders of the Securities of
each Series to be affected under the Indenture at any time by the Company and
the Trustee with the consent of the holders of 66-2/3% in principal amount of
the Securities at the time outstanding of each Series to be affected. The
Indenture also contains provisions permitting the holders of specified
percentages in principal amount of the Securities of each Series at the time
outstanding, on behalf of the holders of all Securities of such Series, to waive
compliance by the Company with certain provisions of the Indenture and certain
past defaults under the Indenture and their consequences. Any such consent or
waiver by the holder of this Security shall be conclusive and binding upon such
holder and upon all future holders of this Security and of any Security issued
upon the registration of transfer hereof or in exchange herefor or in lieu
hereof, whether or not notation of such consent or waiver is made upon this
Security.
As provided in and subject to the provisions of the Indenture, the holder of
this Security shall not have the right to institute any proceeding with respect
to the Indenture or for the appointment of a receiver or trustee or for any
other remedy thereunder, unless such holder shall have previously given the
Trustee written notice of a continuing Event of Default with respect to the
Securities of this series, the holders of not less than 25% in principal amount
of the Securities of this Series then outstanding shall have made written
request upon the Trustee to institute such proceeding as trustee and offered the
Trustee reasonable indemnity and the Trustee shall not have received from the
holders of a majority in principal amount of Securities of this Series at the
time outstanding a direction inconsistent with such request, and shall have
failed to institute such proceeding, for 60 days after receipt of such notice,
request and offer of indemnity. The foregoing shall not apply to any suit
instituted by the
<PAGE> 26
16
holder of this Security for the enforcement of any payment of principal hereof
or any premium or interest hereon on or after the respective due dates expressed
herein or, subject to compliance with the Indenture, the Change in Control
Purchase Price on or after the date as and when the same shall become due and
payable pursuant to Section 4.07 of the Indenture.
No reference herein to the Indenture and no provision of this Security or of
the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of (and premium, if any) and
interest on this Security at the times, place and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Security is registrable in the Debt Security
register, upon surrender of this Security for registration or transfer at the
office or agency of the Company in any place where the principal of (and
premium, if any) and interest on this Security are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Debt Security registrar duly executed by, the holder hereof or
his attorney duly authorized in writing, and thereupon one or more new
Securities of this Series and of like tenor, of authorized denominations and for
the same aggregate principal amount, will be issued to the designated transferee
or transferees.
The Securities of this Series are issuable only in registered form without
coupons in denominations of $ and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Securities of this Series are exchangeable for a like aggregate principal amount
of Securities of this Series and of like tenor of a different authorized
denomination, as requested by the holder surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
All terms used in this Security which are defined in the Indenture shall have
the meanings assigned to them in the Indenture.
<PAGE> 27
17
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the Securities of the Series designated therein referred to in
the within-mentioned Indenture.
PNC Bank, National Association
as Trustee
By.....................................
Authorized Officer
Section 2.04. Any Global Security issued hereunder shall, in addition to the
provisions contained in Section 2.03, bear a legend in substantially the
following form:
This Security is a Global Security within the meaning of the Indenture
hereinafter referred to and is registered in the name of a Depositary or a
nominee of a Depositary. This Security is exchangeable for Securities
registered in the name of a person other than the Depositary or its nominee
only in the limited circumstances described in the Indenture, and may not be
transferred except as a whole by the Depositary to a nominee of the Depositary
or by a nominee of the Depositary to the Depositary or another nominee of the
Depositary.
Section 2.05. The Debt Securities shall be issuable in registered form without
coupons, unless otherwise set forth in the Establishment Action, and shall be
numbered, lettered, or otherwise distinguished in such manner or in accordance
with such plans as the officers of the Company executing the same may determine
with the approval of the Trustee. The authorization of the issuance of any Debt
Security shall be evidenced by the execution by the Company of an authorization
order authorizing the Trustee or any Issuing Agent to authenticate and deliver
such Debt Security. Any such authorization order shall be signed on behalf of
the Company by any officer or employee authorized in the Establishment Action or
in any other manner authorized by the Board of Directors, from time to time.
Every Debt Security shall be dated the date of its authentication. The Persons
in whose names Debt Securities are registered at the close of business on any
Regular Record Date with respect to any Interest Payment Date shall be entitled
to receive the interest payable on such Interest Payment Date notwithstanding
the cancellation of any Debt Security upon any exchange or registration of
transfer subsequent to the Regular Record Date and prior to such Interest
Payment Date; provided, however, that, if and to the extent the Company shall
default in the payment of the interest on any Debt Securities of any Series due
on such Interest Payment Date (herein called "Defaulted
<PAGE> 28
18
Interest"), such Defaulted Interest shall be paid to the Persons in whose names
such outstanding Debt Securities (or their respective predecessor Debt
Securities) are registered on a Special Record Date established by notice given
by mail by or on behalf of the Company to the holders of such Debt Securities
not less than fifteen days preceding such Special Record Date, such Special
Record Date to be not less than five days prior to the date of payment of such
Defaulted Interest. If any Regular Record Date or Special Record Date shall be a
day on which banking institutions in The City of New York are authorized by law
to close or the office or agency of the Company at which the Debt Security
register is maintained is in fact closed, the Regular Record Date or Special
Record Date shall be the next preceding day which shall not be a day on which
such banking institutions are so authorized to close or such office is in fact
closed.
Section 2.06. The Debt Securities shall be signed on behalf of the Company by
its Chairman of the Board of Directors, President, a Vice Chairman of the Board
of Directors or a Vice President and by its Treasurer or an Assistant Treasurer
or its Secretary or an Assistant Secretary, under its corporate seal. Such
signatures may be the manual or facsimile signatures of such authorized officers
and may be imprinted or otherwise reproduced on the Debt Securities. The seal of
the Company may be in the form of a facsimile thereof and may be impressed,
affixed, imprinted or otherwise reproduced on the Debt Securities.
Only such Debt Securities as shall bear thereon a certificate of
authentication substantially in the form approved in the Establishment Action,
executed by the Trustee or the Issuing Agent by manual signature of one of its
authorized officers or employees, shall be entitled to the benefits of this
Indenture or be valid or obligatory for any purpose. Such certificate executed
by the Trustee upon any Debt Security executed by the Company shall be
conclusive evidence that the Debt Security so authenticated has been duly
authenticated and delivered hereunder and that the holder is entitled to the
benefits of this Indenture.
In case any officer of the Company who shall have signed any Debt Security
shall cease to be such officer before the Debt Security so signed shall have
been authenticated and delivered by the Trustee or disposed of by the Company,
such Debt Security nevertheless may be authenticated and delivered or disposed
of as though the person who signed such Debt Security had not ceased to be such
officer of the Company.
Section 2.07. Any interest which is payable shall be payable on the date or
dates established in the Establishment Action and upon the maturity of each Debt
Security commencing on the first such date, which is more than 15 days
<PAGE> 29
19
after the date of original issue of the Debt Security. Except as otherwise
specified in any Establishment Action or supplemental indenture, interest shall
be calculated on a basis of a 360 day year consisting of 12 months of 30 days
each.
Section 2.08. Any Debt Security or Debt Securities may be exchanged for a Debt
Security or Debt Securities of other authorized denominations of the same Series
of Debt Securities, in an equal aggregate principal amount with the same
issuance date, maturity date, interest rate and other terms as the Debt Security
or Debt Securities surrendered or exchanged. Debt Securities to be exchanged
shall be surrendered at the designated office or agency of the Company in the
Borough of Manhattan, The City of New York, State of New York, or, if so
provided in the Establishment Action, at the office or agency of the Company in
the City of Pittsburgh, Commonwealth of Pennsylvania, as provided in Section
4.02, and the Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor the Debt Security or Debt Securities which the
holder making the exchange shall be entitled to receive.
The Company shall keep, at said office or agency in The City of New York or,
if authorized in the Establishment Action at its option in the City of
Pittsburgh, a register or registers (herein sometimes called the "Debt Security
register") in which, subject to such reasonable regulations as it may prescribe,
the Company shall register the Debt Securities and the transfer of Debt
Securities as provided in this Article Two. The Debt Security register shall be
in written form or in any other form capable of being converted into written
form within a reasonable time. At all reasonable times the Debt Security
register shall be open for inspection by the Trustee. Upon the presentation for
registration of transfer of any Debt Security at such office or agency, the
Company shall execute and register and the Trustee shall authenticate and
deliver in the name of the transferee or transferees a new Debt Security or Debt
Securities of the same Series in authorized denominations, of like tenor and for
a like aggregate principal amount.
All Debt Securities presented or surrendered for exchange, registration of
transfer, redemption or payment shall (if so required by the Company or the
Trustee) be duly endorsed by, or be accompanied by a written instrument or
instruments of transfer in form satisfactory to the Company and the Trustee duly
executed by, the registered holder or his attorney duly authorized in writing.
No service charge shall be made for any exchange or registration of transfer
of Debt Securities, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
therewith.
<PAGE> 30
20
If Debt Securities of any Series are subject to optional redemption the
Company shall not be required to exchange or register a transfer of (a) any Debt
Security of such Series for a period of fifteen days next preceding the mailing
of any notice of redemption, or (b) any Debt Security selected, called or being
called for redemption except, in the case of any Debt Security to be redeemed in
part, the portion thereof not so to be redeemed.
Notwithstanding the foregoing, any Global Security of a Series shall be
exchangeable pursuant to this Section 2.08 for Debt Securities of such Series
registered in the names of Persons other than the Depositary for such Global
Security or its nominee only if (i) such Depositary notifies the Company that it
is unwilling or unable to continue as Depositary for such Global Security or if
at any time such Depositary ceases to be a clearing agency registered under the
Securities Exchange Act of 1934, as amended, (ii) the Company executes and
delivers to the Trustee a written order that such Global Security shall be so
exchangeable or (iii) there shall have occurred and be continuing an Event of
Default with respect to the Debt Securities of such Series. Any Global Security
that is exchangeable pursuant to the preceding sentence shall be exchangeable
for Debt Securities registered in such names as the Depositary shall direct.
Notwithstanding any other provision in this Indenture, a Global Security may
not be transferred except as a whole by the Depositary with respect to such
Global Security to a nominee of such Depositary or by a nominee of such
Depositary to such Depositary or another nominee of such Depositary.
Section 2.09. In case any Debt Securities shall become mutilated or be
destroyed, lost or stolen, the Company in the case of a mutilated Debt Security
shall, and in the case of a lost, stolen or destroyed Debt Security may in its
discretion, execute, and upon the Company's request the Trustee shall
authenticate and deliver, a new Debt Security of the same Series and of like
tenor, bearing a number not contemporaneously outstanding, in substitution for
the Debt Security so mutilated, destroyed, lost or stolen. In every case the
applicant for a substitute Debt Security shall furnish such security or
indemnity as may be required by the Company and the Trustee to save each of them
harmless, and, in every case of destruction, loss or theft, the applicant shall
also furnish evidence of the destruction, loss or theft of such Debt Security
and of the ownership thereof satisfactory to the Company and the Trustee. The
Trustee shall authenticate any such substitute Debt Security and deliver the
same upon the written request or authorization of any officer of the Company.
Upon the issuance of any substitute Debt Security, the Company may require the
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto and any other expenses connected
<PAGE> 31
21
therewith. In case any Debt Security which has matured or is about to mature or
has been called for redemption shall become mutilated or be destroyed, lost or
stolen, the Company may, instead of issuing a substitute Debt Security, pay or
authorize the payment of the same (without surrender thereof except in the case
of a mutilated Debt Security) if the applicant for such payment shall furnish
such security or indemnity as the Company and the Trustee may require to save
each of them harmless and, in case of destruction, loss or theft, evidence of
the destruction, loss or theft of such Debt Security and of the ownership
thereof satisfactory to the Company and the Trustee.
Every substitute Debt Security issued pursuant to the provisions of this
Section 2.09 by virtue of the fact that any Debt Security is destroyed, lost or
stolen shall constitute an additional contractual obligation of the Company,
whether or not the destroyed, lost or stolen Debt Security shall be found at any
time, and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Debt Securities duly issued hereunder.
All Debt Securities shall be held and owned upon the express condition (to the
extent lawful) that the foregoing provisions are exclusive with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Debt Securities
and shall preclude any and all other rights or remedies, notwithstanding any law
or statute existing or hereafter enacted to the contrary with respect to the
replacement or payment of negotiable instruments or other securities without
their surrender.
Section 2.10. All Debt Securities surrendered for payment, redemption,
exchange or registration of transfer shall, if surrendered to the Company or any
Paying Agent, be surrendered to the Trustee or Debt Security registrar for
cancellation, or, if surrendered to the Trustee, shall be cancelled by it, and
no Debt Securities shall be issued in lieu thereof except as expressly permitted
by any of the provisions of this Indenture. When and as requested by the
Company, the Trustee shall deliver to the Company cancelled Debt Securities held
by the Trustee or destroy cancelled Debt Securities held by the Trustee and
deliver a certificate of such destruction to the Company. If the Company shall
acquire any of the Debt Securities, however, such acquisition shall not operate
as a redemption or satisfaction of the indebtedness represented by such Debt
Securities unless and until the same are delivered to the Trustee for
cancellation.
Section 2.11. Pending the preparation of definitive Debt Securities, the
Company may execute and the Trustee shall authenticate and deliver temporary
Debt Securities (printed or lithographed). Temporary Debt Securities shall be
issuable in any authorized denomination and substantially in the form of the
definitive Debt Securities but with such omissions, insertions and varia-
<PAGE> 32
22
tions as may be appropriate for temporary Debt Securities, all as may be
determined by the Company. Every such temporary Debt Security shall be executed
by the Company and be authenticated by the Trustee upon the same conditions and
in substantially the same manner, and with like effect, as the definitive Debt
Securities. Without unreasonable delay the Company shall execute such definitive
Debt Securities for such temporary Debt Securities as it may have issued and
thereupon such temporary Debt Securities may be surrendered at any designated
office or agency of the Company and the Trustee shall authenticate and deliver
in exchange for such temporary Debt Securities without charge an equal aggregate
principal amount of definitive Debt Securities of the same Series and of like
tenor of authorized denominations. Until so exchanged the temporary Debt
Securities shall be entitled to the same benefits under this Indenture as
definitive Debt Securities.
ARTICLE THREE
Redemption of Debt Securities
Section 3.01. Any Series of Debt Securities may be redeemed by the Company to
the extent authorized in the Establishment Action establishing such Series of
Debt Securities. The Company may call for redemption one or more Series of Debt
Securities in whole or in part but in such event shall not be required to call
for redemption any other Series of Debt Securities or two or more Series of Debt
Securities pro rata.
Section 3.02. Notice of redemption shall be given by mail, at least thirty and
not more than sixty days prior to the date fixed for redemption, to the holders
of Debt Securities to be redeemed in whole or in part, at their last addresses
as they shall appear upon the Debt Security register. The notice, if mailed in
the manner herein provided, shall be conclusively presumed to have been duly
given, whether or not the holder receives such notice. In any case, failure to
give such notice by mail or any defect in the notice to the holder of any Debt
Security shall not affect the validity of the proceedings for the redemption of
any Debt Security held by any other holder.
The notice of redemption to each holder of Debt Securities to be redeemed
shall specify the Debt Securities held by such holder to be redeemed, the date
fixed for redemption, the redemption price, the place or places of payment, that
payment will be made upon presentation and surrender of such Debt Securities,
that interest accrued to the date fixed for redemption will be paid as specified
in said notice, and that on and after said date interest thereon or on the
portions thereof to be redeemed will cease to accrue. In case any Debt Security
is to be redeemed in part only, the notice of redemption shall state the portion
of the principal amount thereof to be redeemed and shall state that
<PAGE> 33
23
on and after the date fixed for redemption, upon surrender of such Debt
Security, a new Debt Security or Debt Securities of the same Series and of like
tenor in principal amount equal to the unredeemed portion thereof will be
issued.
On or prior to the redemption date specified in the notice of redemption given
as provided in this Section 3.02, the Company will deposit with the Trustee or
with one or more Paying Agents an amount of money equal to the redemption price
of the Debt Securities or portions of the Debt Securities called for redemption,
together with (unless the redemption date shall be an Interest Payment Date)
accrued interest to the date fixed for redemption. If less than all the Debt
Securities of a Series are to be redeemed, the Company will give the Trustee
notice not less than forty-five days prior to the redemption date, or such
lesser period as shall be satisfactory to the Trustee, as to the aggregate
principal amount of Debt Securities to be redeemed.
If less than all the Debt Securities of a Series are to be redeemed, the
Trustee shall select, in such manner as it shall deem appropriate and fair, the
particular Debt Securities or portions of Debt Securities of such Series to be
redeemed or, if deemed appropriate by the Trustee, the principal amounts of Debt
Securities of such Series held by holders thereof to be redeemed.
Section 3.03. If notice of redemption has been given as above provided, the
Debt Securities or portions of Debt Securities specified in such notice shall
become due and payable on the date and at the place or places stated in such
notice at the redemption price, together with interest accrued to the date fixed
for redemption, and on and after said date (unless the Company shall default in
the payment thereof at the redemption price, together with interest accrued to
said date) interest on the Debt Securities or portions of Debt Securities so
called for redemption shall cease to accrue. On presentation and surrender of
Debt Securities at a place of payment in said notice specified, the said Debt
Securities or the specified portions thereof shall be paid and redeemed by the
Company at the redemption price, together with (unless the redemption date shall
be an Interest Payment Date) interest accrued thereon to the date fixed for
redemption.
Any Debt Security which is to be redeemed only in part shall be surrendered at
a place of payment (as specified pursuant to Section 3.02) therefor (with, if
the Company or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company and the Trustee duly
executed by, the holder thereof or his attorney duly authorized in writing), and
the Company shall execute, and the Trustee shall authenticate and deliver to the
holder of such Debt Security without service charge, a new Debt Security or
Securities of the same Series and of like tenor, of any autho-
<PAGE> 34
24
rized denomination as requested by such holder, in aggregate principal amount
equal to and in exchange for the unredeemed portion of the principal of the Debt
Security so surrendered. If a Global Security is so surrendered, such new Debt
Security so issued shall be a new Global Security.
ARTICLE FOUR
Particular Covenants of the Company
Section 4.01. The Company covenants and agrees for the benefit of each Series
of Debt Securities that it will duly and punctually pay or cause to be paid the
principal of (including any amount in respect of original issue discount) and
premium, if any, and interest, if any, on each of the Debt Securities of such
Series at the place, at the respective times and in the manner provided in the
Debt Securities and this Indenture. The principal of, premium, and interest on
the Debt Securities shall be payable only to or upon the written order of the
holders thereof of record. Each installment of interest on the Debt Securities
may be paid by mailing checks for such interest payable to or upon the written
order of the holders of Debt Securities entitled thereto as the names and
addresses of such holders appear upon the Debt Security register.
Section 4.02. As long as any of the Debt Securities remain outstanding, the
Company will maintain, in the Borough of Manhattan, The City of New York, State
of New York, an office or agency where the Debt Securities may be presented for
exchange and registration of transfer as in this Indenture provided, and where
notices and demands to or upon the Company in respect of the Debt Securities or
of this Indenture may be served, and also an office or offices or agency or
agencies where the Debt Securities may be presented for payment. The Company
will give to the Trustee notice of the location of such offices or agencies and
of any change in the location thereof. In case the Company shall fail to
maintain such offices or agencies or shall fail to give such notice of the
location or of any change in the location thereof, presentations may be made and
notices and demands may be served at the principal office of the Trustee.
In addition to such required office or agency, the Company may also from time
to time designate one or more other offices or agencies where the Debt
Securities may be presented or surrendered for registration of transfer or
exchange and one or more other such offices or agencies where the Debt
Securities may be presented or surrendered for payment, and may from time to
time rescind such designations, as it may deem desirable or expedient; provided,
however, that no such designation or rescission shall in any manner relieve the
Company of the obligation to maintain an office or agency in the Borough of
Manhattan, The City of New York, State of New York, for such purposes.
<PAGE> 35
25
Section 4.03. If the Company or any Subsidiary of the Company shall mortgage,
pledge, encumber, or subject to a lien (hereinafter to "Mortgage" or a
"Mortgage", as the context may require) as security for any indebtedness for
money borrowed (i) any blast furnace facility or raw steel producing facility,
or rolling mills which are a part of a plant which includes such a facility, or
(ii) any property capable of producing oil or gas; and, which in either case, is
located in the United States and is determined to be a principal property by the
Board of Directors of the Company in its discretion, the Company will secure or
will cause such Subsidiary to secure each Series of the Debt Securities equally
and ratably with all indebtedness or obligations secured by the Mortgage then
being given and with any other indebtedness of the Company or such Subsidiary
then entitled thereto, provided, however, that this covenant shall not apply in
the case of: (a) any Mortgage existing on the date of this Indenture (whether or
not such Mortgage includes an after-acquired property provision); (b) any
Mortgage, including a purchase money Mortgage, incurred in connection with the
acquisition of any property (for purposes hereof the creation of any Mortgage
within one hundred eighty (180) days after the acquisition or completion of
construction of such property shall be deemed to be incurred in connection with
the acquisition of such property), the assumption of any Mortgage previously
existing on such acquired property or any Mortgage existing on the property of
any corporation when such corporation becomes a Subsidiary of the Company; (c)
any Mortgage on such property in favor of the United States of America, any
State, or any agency, department, political subdivision or other instrumentality
of either, to secure partial, progress or advance payments to the Company or any
Subsidiary of the Company pursuant to the provisions of any contract or any
statute; (d) any Mortgage on such property in favor of the United States of
America, any State, or any agency, department, political subdivision or other
instrumentality of either, to secure borrowings by the Company or any Subsidiary
of the Company for the purchase or construction of the property Mortgaged; (e)
any Mortgage in connection with a sale or other transfer of (I) oil or gas in
place for a period of time or in an amount such that the purchaser will realize
therefrom a specified amount of money or specified amount of minerals or (II)
any interest in property of the character commonly referred to as an "oil
payment" or "production payment"; (f) any Mortgage on any property arising in
connection with or to secure all or any part of the cost of the repair,
construction, improvement, alteration, exploration, development or drilling of
such property or any portion thereof; (g) any Mortgage on any pipeline,
gathering system, pumping or compressor station, pipeline storage facility,
other pipeline facility, drilling equipment, drilling platform, drilling barge,
any movable railway, marine or automotive equipment, gas plant, office building,
storage tank, or warehouse facility, any of which is located on any property
included under clause (ii)
<PAGE> 36
26
above; (h) any Mortgage on any equipment or other personal property used in
connection with any property included under clause (ii) above; (i) any Mortgage
on any property included under clause (ii) above arising in connection with the
sale of accounts receivable resulting from the sale of oil or gas at the
wellhead; or (j) any renewal of or substitution for any Mortgage permitted under
the preceding clauses. Notwithstanding the foregoing restriction contained in
this Section 4.03, the Company may and may permit its Subsidiaries to incur
liens or grant Mortgages on property covered by the restriction above so long as
the net book value of the property so encumbered together with all property
subject to the restriction on sale and leasebacks contained in Section 4.04 does
not at the time such lien or Mortgage is granted exceed five percent (5%) of
Consolidated Net Tangible Assets.
Section 4.04. The Company will not, nor will it permit any Subsidiary of the
Company to, sell or transfer (i) any blast furnace facility or raw steel
producing facility, or rolling mills which are a part of a plant which includes
such a facility, or (ii) any property capable of producing oil or gas; which in
either case is located in the United States and is determined to be a principal
property by the Board of Directors of the Company in its discretion, with the
intention of taking back a lease of such property, provided, however, this
covenant shall not apply if (a) the lease is to a Subsidiary of the Company (or
to the Company in the case of a Subsidiary), (b) the lease is for a temporary
period by the end of which it is intended that the use of such property by the
lessee will be discontinued; (c) the Company or a Subsidiary of the Company
could, in accordance with Section 4.03, Mortgage such property without equally
and ratably securing the Debt Securities; (d) the transfer is incident to or
necessary to effect any operating, farm out, farm in, unitization, acreage
exchange, acreage contributions, bottom hole or dry hole arrangements or pooling
agreement or any other agreement of the same general nature relating to the
acquisition, exploration, maintenance, development and operation of oil or gas
properties in the ordinary course of business or as required by regulatory
agencies having jurisdiction over the property; or (e) (A) the Company promptly
informs the Trustee of such sale, (B) the net proceeds of such sale are at least
equal to the fair value (as determined by resolution adopted by the Board of
Directors of the Company) of such property and (C) the Company shall, and in any
such case the Company covenants that it will, within one hundred and eighty
(180) days after such sale, apply an amount equal to the net proceeds of such
sale to the retirement of debt of the Company, or of a Subsidiary of the Company
in the case of property of such Subsidiary, maturing by its terms more than one
(1) year after the date on which it was originally incurred (herein called
"funded debt"); provided that the amount to be applied to the retirement of
funded debt of the Company or of a Subsidiary of the Company shall be reduced by
the amount below if, within seventy-five (75)
<PAGE> 37
27
days after such sale, the Company shall deliver to the Trustee an Officers'
Certificate (aa) stating that on a specified date after such sale the Company or
a Subsidiary of the Company, as the case may be, voluntarily retired a specified
principal amount of funded debt, (bb) stating that such retirement was not
effected by payment at maturity or pursuant to any applicable mandatory sinking
fund or prepayment provision (other than provisions requiring retirement of any
funded debt of the Company or a Subsidiary of the Company, as the case may be,
under the circumstances referred to in this Section 4.04), and (cc) stating the
then optional redemption or prepayment price applicable to the funded debt so
retired or, if there is no such price applicable, the amount applied by the
Company or a Subsidiary of the Company, as the case may be, to the retirement of
such funded debt.
In the event of such a sale or transfer the Company shall deliver to the
Trustee a certified copy of the resolution of the Board of Directors of the
Company referred to in the parenthetical phrase contained in subclause (e)(B) of
this Section 4.04 and an Officers' Certificate setting forth all material facts
under this Section 4.04. For purposes of this Section 4.04 the term retirement
of such funded debt shall include the "in substance defeasance" of such funded
debt in accordance with then applicable accounting rules.
Section 4.05. (a) Whenever the Company shall appoint a Paying Agent, other
than the Trustee, for any Series of Debt Securities, it will cause such Paying
Agent to execute and deliver to the Trustee an instrument in which such Paying
Agent shall agree with the Trustee, subject to the provisions of this Section
4.05, that such Paying Agent will (1) comply with the provisions of the Trust
Indenture Act applicable to it as a Paying Agent and (2) during the continuance
of any default by the Company (or any other obligor upon the Debt Securities of
that Series) in the making of any payment in respect of the Debt Securities of
that Series, upon the written request of the Trustee, forthwith pay to the
Trustee all sums held in trust by such Paying Agent for payment in respect of
the Debt Securities of that Series.
(b) If the Company shall act as its own Paying Agent for any Series of Debt
Securities it will, on or before each due date of the principal of or any
premium or interest on such Series of Debt Securities, set aside, segregate and
hold in trust for the benefit of the holders of such Debt Securities a sum
sufficient to pay such principal, premium or interest so becoming due. The
Company will promptly notify the Trustee of any failure to take such action.
(c) Anything in this Section 4.05 to the contrary notwithstanding, the Company
may, at any time, for the purpose of obtaining a satisfaction and discharge of
this Indenture, or for any other reason, pay or cause to be paid to the Trustee
all sums held in trust by it or any Paying Agent hereunder as
<PAGE> 38
28
required by this Section 4.05, such sums to be held by the Trustee upon the
trusts herein contained.
(d) Anything in this Section 4.05 to the contrary notwithstanding, the
agreement to hold sums in trust as provided in this Section 4.05 is subject to
the provisions of Sections 12.04 and 12.05.
Section 4.06. The Company will deliver to the Trustee, within 120 days after
the end of each fiscal year of the Company ending after the date hereof, an
Officers' Certificate, stating whether or not to the best knowledge of the
signers thereof the Company is in default in the performance and observance of
any of the terms, provisions and conditions of this Indenture (without regard to
any period of grace or requirement of notice provided hereunder) and, if the
Company shall be in default, specifying all such defaults and the nature and
status thereof of which they may have knowledge.
Section 4.07. (a) If there shall have occurred a Change in Control, Debt
Securities shall be purchased by the Company, at the option of the holder
thereof, at a purchase price (the "Change in Control Purchase Price") equal to
(i) unless otherwise specified in the terms of such Debt Securities, one hundred
percent (100%) of the principal amount thereof, together with accrued interest
to the Change in Control Purchase Date referred to below (except that interest
installments due prior to the Change in Control Purchase Date will be payable to
the holders of such Debt Securities of record at the close of business on the
relevant record dates according to their terms and the provisions of Section
2.07), or (ii) such other price or prices as may be specified in the terms of
such Debt Securities; in each case as of the date that is thirty-five (35)
Business Days after the occurrence of the Change in Control (the "Change in
Control Purchase Date"), subject to satisfaction by or on behalf of the holder
of the requirements set forth in Section 4.07(c).
A "Change in Control" shall be deemed to have occurred at such time as any of
the following events shall occur:
(1) any "person" or "group" of persons shall have acquired "beneficial
ownership" (within the meaning of Section 13(d) or 14(d) of the Securities
Exchange Act of 1934, as amended, and the applicable rules and regulations
thereunder) of shares of Voting Stock representing at least thirty-five
percent (35%) of the outstanding Voting Power of the Company, (2) during any
period of twenty-five (25) consecutive months, commencing before or after
the date of this Indenture, individuals who at the beginning of such
twenty-five month period were directors of the Company (together with any
replacement or additional directors whose election was recommended by
incumbent management of the Company or who were
<PAGE> 39
29
elected by a majority of directors then in office) cease to constitute a
majority of the board of directors of the Company, or (3) any person or
group of related persons shall acquire all or substantially all of the
assets of the Company; provided that a Change in Control shall not be deemed
to have occurred pursuant to clause (3) above if the Company shall have
merged or consolidated with or transferred all or substantially all of its
assets to another corporation in compliance with the provisions of Section
11.01 and the surviving or successor or transferee corporation is no more
leveraged than was the Company immediately prior to such event. For purposes
of this definition, the term "leveraged" when used with respect to any
corporation shall mean the percentage represented by the total assets of
that corporation divided by its stockholders' equity, in each case
determined and as would be shown in a consolidated balance sheet of such
corporation prepared in accordance with generally accepted accounting
principles in the United States of America.
Notwithstanding the foregoing provisions of this Section 4.07, a Change in
Control shall not be deemed to have occurred by virtue of: (i) the Company, any
Subsidiary of the Company, any employee stock ownership plan or any other
employee benefit plan of the Company or any such Subsidiary, or any person
holding Voting Stock for or pursuant to the terms of any such employee benefit
plan, acquiring beneficial ownership of shares of Voting Stock, whether
representing thirty-five percent (35%) or more of the outstanding Voting Power
of the Company or otherwise or (ii) any Person whose ownership of shares of
Voting Stock representing thirty-five percent (35%) or more of the outstanding
Voting Power of the Company results solely from the Company's calculation from
time to time of the relative voting rights of the classes of Voting Stock of the
Company.
(b) Within fifteen (15) Business Days after the occurrence of a Change in
Control, the Company shall mail a written notice of Change in Control by
first-class mail to the Trustee and to each holder (and to beneficial owners as
required by applicable law) of Debt Securities of any Series and shall cause a
copy of such notice to be published in a daily newspaper of national
circulation. The notice shall state:
(1) the events causing a Change in Control (specifying such events) and the
date of such Change in Control;
(2) the date by which the Change in Control Purchase Notice pursuant to this
Section 4.07 must be given;
(3) the Change in Control Purchase Date;
<PAGE> 40
30
(4) the Change in Control Purchase Price;
(5) the name and address of the Paying Agent for such Series;
(6) that on the Change in Control Purchase Date each Debt Security of such
Series surrendered in accordance with this Section 4.07 and the terms of such
Debt Security for payment at the Change in Control Purchase Price will be
purchased by the Company at such price and, if applicable, that interest
thereon will cease to accrue on and after such date;
(7) the procedures the holder must follow to exercise rights under this
Section 4.07, including procedures to be followed by a holder acting as a
holder of record on behalf of more than one beneficial owner in exercising
rights specified in this Section 4.07 with respect to less than all such
beneficial owners; and
(8) the procedures for withdrawing a Change in Control Purchase Notice.
(c) A holder of Debt Securities of any Series may exercise its rights
specified in Section 4.07(a) by delivering a written notice of purchase (a
"Change in Control Purchase Notice") to the Paying Agent for such Series at its
address set forth on the notice sent pursuant to Section 4.07(b)(5) at any time
prior to the close of business on the Change in Control Purchase Date with
respect to such Change of Control, stating:
(1) the certificate number or numbers of the Debt Security or Securities
which the holder will deliver to be purchased; and
(2) that such Debt Security or Securities shall be purchased pursuant to the
terms and conditions specified herein and in the Company's notice pursuant to
Section 4.07(b).
A holder may, but is not required to, use the Form of Change in Control
Purchase Notice attached hereto as Exhibit A.
The delivery of such Debt Security or Securities to such Paying Agent prior
to, on or after the Change in Control Purchase Date (together with all necessary
endorsements) at the offices of such Paying Agent shall be a condition to the
receipt by the holder of the Change in Control Purchase Price therefor,
provided, however, that such Change in Control Purchase Price shall
<PAGE> 41
31
be so paid pursuant to this Section 4.07 only if the Debt Security or Securities
so delivered to the Paying Agent shall conform in all respects to the
description thereof set forth in the related Change in Control Purchase Notice.
The Company shall establish procedures to permit a holder of a Debt Security
or Securities acting as a holder of record on behalf of more than one beneficial
owner to exercise the rights specified in this Section 4.07 with respect to less
than all such beneficial owners.
Any purchase by the Company contemplated pursuant to the provisions of this
Section 4.07 shall be consummated by the delivery of the consideration to be
received by the holder promptly following the later of the Change in Control
Purchase Date and the time of delivery of the Debt Security.
Notwithstanding anything herein to the contrary, any holder of Debt Securities
of a Series delivering to the Paying Agent for such Series the Change in Control
Purchase Notice contemplated by this Section 4.07(c) shall have the right to
withdraw such Change in Control Purchase Notice at any time prior to the close
of business on the Change in Control Purchase Date by delivery of a written
notice of withdrawal to such Paying Agent in accordance with Section 4.08. A
holder may, but is not required to, use the Form of Notice of Withdrawal of
Change in Control Purchase Notice attached hereto as Exhibit B.
Section 4.08. Upon receipt by the Company of the Change in Control Purchase
Notice specified in Section 4.07(c), the holder of the Debt Security in respect
of which such notice was given shall (unless such notice is withdrawn as
specified in the following two paragraphs) thereafter be entitled to receive
solely the Change in Control Purchase Price with respect to such Debt Security.
Such price shall be paid to such holder promptly following the later of (x) the
Change in Control Purchase Date with respect to such Debt Security (provided the
conditions in Section 4.07(c) have been satisfied) and (y) the time of delivery
of such Debt Security to the Paying Agent therefor by the holder thereof in the
manner required by Section 4.07(c).
A Change in Control Purchase Notice may be withdrawn by means of a written
notice of withdrawal signed by the holder delivered to the office of such Paying
Agent at its address set forth on the notice sent pursuant to Section 4.07(b)(5)
at any time prior to the close of business on the Change in Control Purchase
Date specifying the certificate number or numbers of the Debt Security or
Securities in respect of which such notice of withdrawal is being submitted.
A holder may, but is not required to, use the Form of Notice of Withdrawal of
Change in Control Purchase Notice attached hereto as Exhibit B.
<PAGE> 42
32
Section 4.09. On or before the Business Day following the Change in Control
Purchase Date, the Company shall deposit with the Trustee or with the Paying
Agent (or, if the Company or a Subsidiary or an Affiliate of either of them is
acting as the Paying Agent, shall segregate and hold in trust as provided in
Section 4.05) an amount of money sufficient to pay the aggregate Change in
Control Purchase Price of all the Debt Securities which are to be purchased as
of the Change in Control Purchase Date.
ARTICLE FIVE
Debt Securityholder Lists and Reports by the Company and the Trustee
Section 5.01. The Company covenants and agrees that it will furnish or cause
to be furnished to the Trustee
(a) semi-annually, not more than 15 days after each Interest Payment Date,
a list, for each Series of Debt Securities which bear interest, in such form
as the Trustee may reasonably require, of the names and addresses of the
holders of such Series of Debt Securities as of such Interest Payment Date,
(b) semi-annually, not more than 15 days after each August 1 and February
1, a list, for each Series of Debt Securities which do not bear interest, in
such form as the Trustee may reasonably require, of the names and addresses
of the holders of such Series of Debt Securities as of such August 1 or
February 1, as the case may be, and
(c) at such other times as the Trustee may request in writing, within 30
days after the receipt by the Company of any such request, a list of similar
form and content as of a date not more than 15 days prior to the time such
list is furnished;
provided, however, that no such list shall be required to be furnished so long
as the Trustee is the Debt Security registrar.
Section 5.02. (a) The Trustee shall preserve, in as current a form as is
reasonably practicable, all information as to the names and addresses of the
holders of the Debt Securities of any Series contained in the most recent list
furnished to it as provided in Section 5.01 and the names and addresses of the
holders of Debt Securities of such Series received by the Trustee in its
capacity as Debt Security registrar, if so acting. The Trustee may destroy any
list
<PAGE> 43
33
furnished to it as provided in Section 5.01 upon receipt of a new list so fur-
nished.
(b) The rights of holders of Debt Securities to communicate with other holders
of Debt Securities with respect to their rights under this Indenture or under
the Debt Securities, and the corresponding rights and duties of the Trustee,
shall be as provided by the Trust Indenture Act.
(c) Every holder of Debt Securities, by receiving and holding the same, agrees
with the Company and the Trustee that neither the Company nor the Trustee nor
any agent of either of them shall be held accountable by reason of any
disclosure of information as to names and addresses of holders of Debt
Securities made pursuant to the Trust Indenture Act.
Section 5.03. (a) The Trustee shall transmit to holders of Debt Securities
such reports concerning the Trustee and its actions under this Indenture as may
be required pursuant to the Trust Indenture Act at the times and in the manner
provided pursuant thereto.
(b) A copy of each such report shall, at the time of such transmission to
holders of Debt Securities, be filed by the Trustee with each stock exchange
upon which any Debt Securities are listed, with the Securities and Exchange
Commission and with the Company. The Company will notify the Trustee when any
Debt Securities are listed on any stock exchange.
Section 5.04. The Company shall file with the Trustee and the Securities and
Exchange Commission, and transmit to holders of Debt Securities, such
information, documents and other reports, and such summaries thereof, as may be
required pursuant to the Trust Indenture Act at the times and in the manner
provided pursuant to such Act.
ARTICLE SIX
Remedies on Default
Section 6.01. "Event of Default" wherever used herein with respect to Debt
Securities of any Series means any one of the following events which shall have
occurred and be continuing:
(a) default in the payment of the principal of (or premium, if any, on) any
of the Debt Securities of such Series as and when the same shall become due
and payable either at maturity, upon redemption, by declaration or otherwise;
or
<PAGE> 44
34
(b) default in the payment of any installment of interest upon any of the
Debt Securities of such Series as and when the same shall become due and
payable, and continuance of such default for a period of thirty days; or
(c) default in the payment of the Change in Control Purchase Price of any of
the Debt Securities of such Series as and when the same shall become due and
payable pursuant to Section 4.07; or
(d) default in the deposit of any sinking fund payment, when and as due by
the terms of a Debt Security of such Series; or
(e) failure on the part of the Company duly to observe or perform any other
of the covenants or agreements on the part of the Company in the Debt
Securities of such Series or in this Indenture (other than a covenant or
agreement a failure in whose observance or whose performance is elsewhere in
this Section specifically dealt with or which has expressly been included in
this Indenture solely for the benefit of a Series of Debt Securities other
than that Series) continued for a period of ninety days after the date on
which written notice of such failure, requiring the Company to remedy the
same, shall have been given to the Company by the Trustee by registered mail,
or to the Company and the Trustee by the holders of at least twenty-five per
cent in aggregate principal amount of the outstanding Debt Securities of such
Series; or
(f) a court having jurisdiction in the premises shall enter a decree or
order (i) for relief in respect of the Company in an involuntary case under
any applicable bankruptcy, insolvency or other similar law now or hereafter in
effect; (ii) adjudging the Company a bankrupt or insolvent or approving a
petition seeking reorganization, arrangement or composition in respect of the
Company under any applicable bankruptcy, insolvency or other similar law;
(iii) appointing a receiver, liquidator, assignee, custodian, trustee,
sequestrator (or similar official) of the Company or for any substantial part
of the property of the Company; or (iv) ordering the winding-up or liquidation
of its affairs, and such decree or order shall remain unstayed and in effect
for a period of 60 consecutive days; or
(g) the Company shall (i) commence a voluntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect to be
adjudicated a bankrupt or insolvent; (ii) shall consent to the entry of an
order for relief in an involuntary case under any such law; (iii) shall
consent to the appointment of or taking possession by a receiver, liquidator,
assignee, trustee, custodian, sequestrator (or similar official) of the
Company or for any substantial part of the property of the Company;
<PAGE> 45
35
(iv) shall make any general assignment for the benefit of creditors; (v) shall
fail generally to pay its debts as they become due; or (vi) shall take any
corporate action in furtherance of any of the foregoing; or
(h) any other Event of Default provided with respect to Debt Securities of
such Series.
If an Event of Default with respect to Debt Securities of any Series at the time
outstanding occurs and is continuing, then and in each and every such case,
unless the principal of all the Debt Securities of such Series shall have
already become due and payable, either the Trustee or the holders of not less
than twenty-five percent in aggregate principal amount of the Debt Securities of
such Series then outstanding hereunder, by notice in writing to the Company (and
to the Trustee if given by Debt Securityholders), may declare to be due and
payable immediately the principal amount (or, if any Debt Securities of that
Series are Original Issue Discount Securities, such portion of the principal
amount of such Debt Securities as may be specified in the terms thereof) of all
the Debt Securities of such Series. Upon any such declaration the same shall
become and shall be immediately due and payable, anything in this Indenture or
in the Debt Securities of such Series to the contrary notwithstanding.
This Section, however, is subject to the condition that if, at any time after
the principal (or, if any of the Debt Securities of that Series are Original
Issue Discount Securities, such portion of the principal amount of such
securities as may be specified in the terms thereof) of the Debt Securities of
any Series shall have been so declared due and payable, and before any judgment
or decree for the payment of the moneys due shall have been obtained or entered
as hereinafter provided, the Company shall pay or shall deposit with the Trustee
a sum sufficient to pay all matured installments of interest upon all the Debt
Securities of such Series, the principal and premium (if any) of any and all
Debt Securities of such Series which shall have become due otherwise than by
acceleration (with interest upon such principal, premium (if any) and, to the
extent that payment of such interest is enforceable under applicable law, on
overdue installments of interest, at the same rate of interest or yield to
maturity (in the case of Original Issue Discount Securities) specified on the
Debt Securities of such Series, to the date of such payment or deposit) and such
amount as shall be sufficient to cover reasonable compensation to the Trustee,
its agents, attorneys and counsel, and all other expenses and liabilities
incurred and all advances made by the Trustee except as a result of its
negligence or bad faith, and any and all defaults with respect to such Series
under this Indenture, other than the non-payment of the principal of Debt
Securities of such Series which shall have become due by acceleration, shall
have been remedied--then and in every such case the holders of a majority in
aggregate
<PAGE> 46
36
principal amount of the Debt Securities of such Series then outstanding, by
written notice to the Company and the Trustee, may waive all defaults with
respect to such Series and rescind and annul such declaration and its
consequences as to such Series; but no such waiver or rescission and annulment
shall extend to or shall affect any subsequent default or shall impair any right
consequent thereon.
In case the Trustee shall have proceeded to enforce any right under this
Indenture and such proceedings shall have been discontinued or abandoned because
of such rescission and annulment or for any other reason or shall have been
determined adversely to the Trustee, then and in every such case the Company,
the Trustee and the Debt Securityholders shall be restored respectively to their
former positions and rights hereunder, and all rights, remedies and powers of
the Company, the Trustee and the Debt Securityholders shall continue as though
no such proceedings had been taken.
Section 6.02. The Company covenants that (1) in case default shall be made in
the payment of any installment of interest on any of the Debt Securities of any
Series, as and when the same shall become due and payable and such default shall
have continued for a period of thirty days, or (2) in case default shall be made
in the payment of the principal and premium (if any) of any of the Debt
Securities of any Series, as and when the same shall have become due and
payable, whether upon maturity or upon redemption or upon declaration or
otherwise--then upon demand of the Trustee, the Company will pay to the Trustee,
for the benefit of the holders of the Debt Securities of that Series, the whole
amount that then shall have become due and payable on all such Debt Securities
for principal, premium (if any) or interest or any of them, as the case may be,
with interest upon the overdue principal, premium (if any) and (to the extent
that payment of such interest is enforceable under applicable law) upon overdue
installments of interest at the same rate or the yield to maturity (in the case
of Original Issue Discount Securities) specified on such Debt Securities; and,
in addition thereto, such further amount as shall be sufficient to cover
reasonable compensation to the Trustee, its agents, attorneys and counsel, and
all other expenses and liabilities incurred, and all advances made, by the
Trustee except as a result of its negligence or bad faith.
In case of any judicial proceedings relative to the Company, its property or
its creditors, the Trustee shall be entitled and empowered, by intervention in
such proceedings or otherwise, to take any and all actions authorized under the
Trust Indenture Act in order to have claims of the holders and the Trustee
allowed in any such proceeding. In particular, the Trustee shall be authorized
to collect and receive any moneys or other property payable or deliverable on
any such claims, and to distribute the same; and any receiver, assignee or
<PAGE> 47
37
trustee (or other similar official) is hereby authorized by each of the Debt
Securityholders to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of payments directly to the Debt
Securityholders, to pay to the Trustee such amount as shall be sufficient to
cover reasonable compensation to the Trustee, its agents, attorneys and counsel,
and all other expenses and liabilities incurred, and all advances made, by the
Trustee except as a result of its negligence or bad faith.
All rights of action and of asserting claims under this Indenture, or under
any of the Debt Securities of any Series, may be enforced by the Trustee without
the possession of any of the Debt Securities of such Series, or the production
thereof on any trial or other proceedings relative thereto, and any such action
or proceedings instituted by the Trustee shall be brought in its own name and as
trustee of an express trust, and any recovery of judgment shall be for the
ratable benefit of the holders of the Debt Securities of such Series.
In case of a default hereunder, the Trustee may in its discretion proceed to
protect and enforce the rights vested in it by this Indenture by such
appropriate judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any of such rights, either at law or in equity or in
bankruptcy or otherwise, whether for the specific enforcement of any covenant or
agreement contained in this Indenture or in aid of the exercise of any power
granted in this Indenture, or to enforce any other legal or equitable right
vested in the Trustee by this Indenture or by law.
Section 6.03. Any moneys collected by the Trustee pursuant to this Article Six
shall be applied in the order following, at the date or dates fixed by the
Trustee and, in case of the distribution of such moneys on account of principal
or interest, upon presentation of the several Debt Securities, and stamping
thereon the payment, if only partially paid, and upon surrender thereof, if
fully paid:
First: To the payment of costs and expenses of collection, reasonable
compensation to the Trustee, its agents, attorneys and counsel, and all other
expenses and liabilities incurred, and all advances made, by the Trustee
except as a result of its negligence or bad faith.
Second: In case the principal of the outstanding Debt Securities of any
Series in respect of which such moneys have been collected shall not have
become due, to the payment of interest on the Debt Securities of such Series,
in the order of maturity of the installments of such interest, with interest
(to the extent that such interest has been collected by the Trustee) upon the
overdue installments of interest at the same rate or the yield to maturity (in
the case of Original Issue Discount Securities)
<PAGE> 48
38
specified on the Debt Securities of such Series, such payments to be made
ratably to the persons entitled thereto, without discrimination or preference.
Third: In case the principal of the outstanding Debt Securities of any
Series in respect of which such monies have been collected shall have become
due, by declaration, or otherwise, to the payment of the whole amount then
owing and unpaid upon the Debt Securities of such Series for principal,
premium (if any) and interest, with interest upon the overdue principal,
premium (if any) and (to the extent that such interest has been collected by
the Trustee) upon overdue installments of interest at the same rate or the
yield to maturity (in the case of Original Issue Discount Securities)
specified on the Debt Securities of such Series; and in case such moneys shall
be insufficient to pay in full the whole amount so due and unpaid upon the
Debt Securities of such Series, then to the payment of such principal, premium
(if any) and interest, without preference or priority of principal and premium
(if any) over interest, or of interest over principal and premium (if any), or
of any installment of interest over any other installment of interest, or of
any Debt Security of such Series over any other Debt Security of such Series,
ratably to the aggregate of such principal and accrued and unpaid interest.
Section 6.04. Except as set forth in the second paragraph of this Section
6.04, no holder of any Debt Security of any Series shall have any right by
virtue or by availing of any provision of this Indenture to institute any action
or proceedings at law or in equity or in bankruptcy or otherwise, upon or under
or with respect to this Indenture, or for the appointment of a receiver or
trustee, or for any other remedy hereunder, unless such holder previously shall
have given to the Trustee written notice of default and of the continuance
thereof, as hereinbefore provided, and unless also the holders of not less than
twenty-five percent in aggregate principal amount of the Debt Securities of that
Series then outstanding shall have made written request upon the Trustee to
institute such action or proceedings in its own name as trustee hereunder and
shall have offered to the Trustee such reasonable indemnity as it may require
against the costs, expenses and liabilities to be incurred therein or thereby,
and the Trustee for a period of sixty days after its receipt of such notice,
request and offer of indemnity shall have failed to institute any such action or
proceedings and no direction inconsistent with such written request shall have
been given to the Trustee pursuant to Section 6.06 by the holders of a majority
in aggregate principal amount of the Debt Securities of that Series then
outstanding; it being understood and intended, and being expressly covenanted by
the holder of every Debt Security with every other holder and the Trustee, that
no one or more holders of Debt Securities of any Series shall have any
<PAGE> 49
39
right in any manner whatever by virtue or by availing himself of any provision
of this Indenture to affect, disturb or prejudice the rights of any other such
holder, or to obtain or seek to obtain priority over or preference to any other
such holder or to enforce any right under this Indenture, except in the manner
herein provided and for the equal, ratable and common benefit of all holders of
Debt Securities of such Series. For the protection and enforcement of the
provisions of this Section 6.04, each and every Debt Securityholder and the
Trustee shall be entitled to such relief as can be given either at law or in
equity.
Notwithstanding any other provisions in this Indenture, the right of any
holder of any Debt Security to receive payment of the principal of and any
premium and interest on such Debt Security on the respective due dates expressed
in such Debt Security (or, in the case of redemption, on the date fixed for
redemption) or, subject to compliance with Sections 4.07 and 4.08, receive the
Change in Control Purchase Price on the date as and when the same shall become
due and payable pursuant to Section 4.07, or to institute suit for the
enforcement of any such payment on or after such respective dates, shall not be
impaired or affected without the consent of such holder.
Section 6.05. All powers and remedies given by this Article Six to the Trustee
or to the Debt Securityholders shall, to the extent permitted by law, be deemed
cumulative and not exclusive of any thereof or of any other powers and remedies
available to the Trustee or the Debt Securityholders, by judicial proceedings or
otherwise, to enforce the performance or observance of the covenants and
agreements contained in this Indenture, and no delay or omission of the Trustee
or of any holder of any of the Debt Securities to exercise any right or power
accruing upon any default occurring and continuing as aforesaid shall impair any
such right or power or shall be construed to be a waiver of any such default or
an acquiescence therein; and, subject to the provisions of Section 6.04, every
power and remedy given by this Article Six or by law to the Trustee or to the
Debt Securityholders may be exercised from time to time, and as often as shall
be deemed expedient, by the Trustee or by the Debt Securityholders.
Section 6.06. The holders of a majority in aggregate principal amount of the
Debt Securities of any Series at the time outstanding shall have the right to
direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred on the
Trustee, with respect to the Debt Securities of such Series; provided, however,
that, subject to the provisions of Section 7.01, the Trustee shall have the
right to decline to follow any such direction if the Trustee shall be advised by
counsel that the action so directed may not lawfully be taken.
Prior to any declaration that the principal of the Debt Securities of any
Series is immediately due and payable, in the case of an Event of Default with
<PAGE> 50
40
respect to Debt Securities of such Series the holders of a majority in aggregate
principal amount of the Debt Securities of such Series then outstanding may
waive such default or Event of Default as to such Series, and its consequences,
except a default in the payment of principal of (including any amount in respect
of original issue discount) or any premium or interest on any Debt Securities of
such Series. In the case of any such waiver, the Company, the Trustee and the
holders of the Debt Securities of that Series shall be restored to their former
positions and rights hereunder, respectively; but no such waiver shall extend to
any subsequent or other default or impair any right consequent thereon. Whenever
any default or Event of Default hereunder shall have been waived as permitted by
this Section, said default or Event of Default shall for all purposes of the
Debt Securities of that Series and this Indenture be deemed to be cured and to
be not continuing.
The Company may, but shall not be obligated to, fix a record date for the
purpose of determining the Persons entitled to waive any past default hereunder.
If a record date is fixed, the holders on such record date, or their duly
designated proxies, and only such Persons, shall be entitled to waive any
default hereunder, whether or not such holders remain holders after such record
date; provided, that unless such majority in principal amount shall have been
obtained prior to the date which is 90 days after such record date, any such
waiver previously given shall automatically and without further action by any
holder be cancelled and of no further effect.
Section 6.07. If a default occurs hereunder with respect to Debt Securities of
any Series, the Trustee shall give the holders of Debt Securities of such Series
notice of such default as and to the extent provided by the Trust Indenture Act
(the terms "default" or "defaults" for the purposes of this Section 6.07 being
hereby defined to be any event or events, as the case may be, specified in
Section 6.01, not including periods of grace, if any, provided for therein).
Section 6.08. In any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action taken or
omitted by it as Trustee, a court may require any party litigant in such suit to
file an undertaking to pay the costs of such suit, and may assess costs against
any such party litigant in such suit, having due regard to the merits and good
faith of the claims or defenses made by such party litigant, in the manner and
to the extent provided in the Trust Indenture Act; provided that neither this
Section nor the Trust Indenture Act shall be deemed to authorize any court to
require an undertaking or to make such an assessment in any suit instituted by
the Company.
<PAGE> 51
41
ARTICLE SEVEN
Concerning the Trustee
Section 7.01. The duties and responsibilities of the Trustee shall be as
provided by the Trust Indenture Act. Notwithstanding the foregoing, no provision
of this Indenture shall require the Trustee to expend or risk its own funds or
otherwise incur any financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if there shall be
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it.
Whether or not therein expressly so provided, every provision of this Indenture
relating to the conduct or affecting the liability of or affording protection to
the Trustee shall be subject to the provisions of this Section.
Section 7.02. Except as otherwise provided in Section 7.01:
(a) the Trustee may rely and shall be protected in acting or refraining from
acting upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, consent, order, or other paper or document believed
by it to be genuine and to have been signed or presented by the proper party
or parties;
(b) any request, direction, order or demand of the Company mentioned herein
shall be sufficiently evidenced by an instrument signed in the name of the
Company, as the case may be, by its Chairman of the Board of Directors, any
Vice Chairman of the Board of Directors, President or any Vice President and
its Treasurer or an Assistant Treasurer or its Comptroller or an Assistant
Comptroller or its Secretary or an Assistant Secretary (unless other evidence
in respect thereof be herein specifically prescribed); and any resolution of
the Board of Directors of the Company may be evidenced to the Trustee by a
copy thereto certified by the Secretary or an Assistant Secretary of the
Company;
(c) the Trustee may consult with counsel and any Opinion of Counsel shall be
full and complete authorization and protection in respect of any action taken
or suffered by it hereunder in good faith and in accordance with such Opinion
of Counsel;
(d) the Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Indenture at the request, order or direction of
any of the holders of Debt Securities, pursuant to the provisions of this
Indenture, unless such holders of Debt Securities shall have offered to the
Trustee reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred therein or thereby;
<PAGE> 52
42
(e) the Trustee shall not be liable for any action taken by it in good faith
and believed by it to be authorized or within the discretion or rights or
powers conferred upon it by this Indenture.
Section 7.03. The recitals contained herein and in the Debt Securities (except
for the Trustee's certificates of authentication) shall be taken as the
statements of the Company and the Trustee assumes no responsibility for the
correctness of the same. The Trustee makes no representations as to the validity
or sufficiency of this Indenture or of the Debt Securities, provided that the
Trustee shall not be relieved of its duty to authenticate Debt Securities only
as authorized by this Indenture. The Trustee shall not be accountable for the
use or application by the Company of any of the Debt Securities or of the
proceeds thereof.
Section 7.04. The Trustee, any Issuing Agent, any Paying Agent or any Debt
Security registrar, in its individual or any other capacity, may become the
owner or pledgee of Debt Securities with the same rights it would have if it
were not Trustee, Issuing Agent, Paying Agent or Debt Security registrar.
Section 7.05. Subject to the provisions of Sections 12.03 and 12.04, all
moneys received by the Trustee or any Paying Agent shall, until used or applied
as herein provided, be held in trust for the purposes for which they were
received, but need not be segregated from other funds except to the extent
required by law. Neither the Trustee nor any Paying Agent shall be under any
liability for interest on any moneys received by it hereunder except such as it
may agree with the Company to pay thereon. So long as no Event of Default shall
have occurred and be continuing, all interest allowed on any such moneys shall
be paid from time to time upon the written order of the Company, signed by its
Chairman of the Board of Directors, any Vice Chairman of the Board of Directors,
its President or a Vice President or its Treasurer or an Assistant Treasurer.
Section 7.06. The Company covenants and agrees to pay to the Trustee from time
to time, and the Trustee shall be entitled to, reasonable compensation, and,
except as otherwise expressly provided, the Company will pay or reimburse the
Trustee upon its request for all reasonable expenses, disbursements and advances
incurred or made by the Trustee in accordance with any of the provisions of this
Indenture (including the reasonable compensation and the expenses and
disbursements of its counsel and all persons not regularly in its employ) except
any such expense, disbursement or advance as may arise from its negligence or
bad faith. If any property other than cash shall at any time be subject to the
lien of this Indenture, the Trustee, if and to the extent authorized by a
receivership or bankruptcy court of competent jurisdiction or by the
supplemental instrument subjecting such property to such lien, shall be
<PAGE> 53
43
entitled to make advances for the purpose of preserving such property or of
discharging tax liens or other prior liens or encumbrances thereon. The Company
also covenants to indemnify the Trustee for, and to hold it harmless against,
any loss, liability or expense incurred without negligence or bad faith on the
part of the Trustee, arising out of or in connection with the acceptance or
administration of this trust, including the costs and expenses of defending
itself against any claim of liability in the premises. The obligations of the
Company under this Section 7.06 to compensate the Trustee and to pay or
reimburse the Trustee for expenses, disbursements and advances shall constitute
additional indebtedness hereunder. Such additional indebtedness shall be secured
by a lien prior to that of the Debt Securities upon all property and funds held
or collected by the Trustee as such, except funds held in trust for the benefit
of the holders of particular Debt Securities.
Section 7.07. Except as otherwise provided in Section 7.01, whenever in the
administration of the provisions of this Indenture the Trustee shall deem it
necessary or desirable that a matter be proved or established prior to taking or
suffering any action to be taken hereunder, such matter (unless other evidence
in respect thereof be herein specifically prescribed) may, in the absence of
negligence or bad faith on the part of the Trustee, be deemed to be conclusively
proved and established by an Officers' Certificate delivered to the Trustee, and
such certificate, in the absence of negligence or bad faith on the part of the
Trustee, shall be full warrant to the Trustee for any action taken, suffered or
omitted by it under the provisions of this Indenture upon the faith thereof.
Section 7.08. If the Trustee has or shall acquire a conflicting interest
within the meaning of the Trust Indenture Act, the Trustee shall either
eliminate such interest or resign, to the extent and in the manner provided by,
and subject to the provisions of, the Trust Indenture Act and this Indenture. To
the extent permitted by such Act, the Trustee shall not be deemed to have a
conflicting interest by virtue of being a trustee under:
Marathon Oil Company 9-1/2% Guaranteed Notes due 1994.
Marathon Oil Company 9-3/4% Guaranteed Notes due 1999.
Allegheny County Industrial Development Authority Environmental Improvement
Revenue Bonds, 1977 Series B (United States Steel Corporation Project) dated
as of August 1, 1977, 5.70% due August 1, 2007.
Allegheny County Industrial Development Authority Environmental Improvement
Revenue Bonds, 1978 Series A (United States Steel Corporation Project) dated
as of February 1, 1978, 6% due February 1, 2008.
Allegheny County Industrial Development Authority Environmental Improvement
Revenue Bonds, 1978 Series B (United States Steel Corporation Project) dated
as of July 1, 1978, 6-7/8% due July 1, 2008.
<PAGE> 54
44
Bucks County Industrial Development Authority Environmental Improvement
Revenue Bonds, 1978 Series A (United States Steel Corporation Project) dated
as of December 1, 1978, 6.60%, due December 1, 2008.
County of Fremont Environmental Improvement Revenue Bonds, 1979 Series A
(United States Steel Corporation Project) dated as of January 1, 1979, 6-7/8%,
due January 1, 2009.
Allegheny County Industrial Development Authority Environmental Improvement
Revenue Bonds, 1979 Series A (United States Steel Corporation Project) dated
as of March 1, 1979, 6-3/4%, due March 1, 2004.
Allegheny County Industrial Development Authority Environmental Improvement
Revenue Bonds, 1979 Series B (United States Steel Corporation Project) dated
as of May 1, 1979, 6-3/4%, due May 1, 2009.
Allegheny County Industrial Development Authority Environmental Improvement
Revenue Bonds, 1979 Series C (United States Steel Corporation Project) dated
as of October 1, 1979, 7%, due October 1, 2009.
Bucks County Industrial Development Authority (Pennsylvania) Floating Rate
Environmental Improvement Revenue Bonds, 1980 Series A (United States Steel
Corporation Project) dated as of June 1, 1980, due June 1, 2010.
Utah County, Utah, Floating Rate Environmental Improvement Revenue Bonds,
1980 Series A (United States Steel Corporation Project) dated as of June
1, 1980, due June 1, 2010.
Ohio Air Quality Development Authority Environmental, State of Ohio Floating
Rate Environmental Improvement Revenue Bonds, 1980 Series A (United States
Steel Corporation Project) dated as of September 1, 1980, due September 1,
2010.
Ohio Air Quality Development Authority, State of Ohio Floating Rate
Environmental Improvement Revenue Bonds, 1980 Series B (United States Steel
Corporation Project) dated as of December 1, 1980, due December 1, 2010.
The Industrial Development Board of The City of Fairfield (Alabama) Floating
Rate Environmental Improvement Revenue Bonds, 1980 Series B (United States
Steel Corporation Project) dated as of December 1, 1980, due December 1, 2010.
Utah County, Utah, Floating Rate Environmental Improvement Revenue Bonds,
1980 Series B (United States Steel Corporation Project) dated as of De-
cember 1, 1980, due December 1, 2010.
<PAGE> 55
45
State of Ohio Variable Rate Demand Environmental Improvement Revenue
Bonds, Series 1984 (United States Steel Corporation Project) dated as of
December 1, 1984, due December 1, 2001.
Allegheny County Industrial Development Authority Customized Purchase
Environmental Improvement Revenue Refunding Bonds, Series 1985 (United States
Steel Corporation Project) dated as of October 1, 1985, due October 1, 2012.
Allegheny County Industrial Development Authority Customized Purchase
Environmental Improvement Revenue Refunding Bonds, Series 1986 (United States
Steel Corporation Project) dated as of May 1, 1986, due May 1, 2002.
Ohio Water Development Authority State of Ohio Customized Purchase
Environmental Improvement Revenue Refunding Bonds (United States Steel
Corporation Project) Series 1986, dated as of May 1, 1986, due May 1, 2011.
The following securities were issued under an Indenture between the Company
and the Trustee dated July 1, 1991:
$150,000,000 - USX Corporation Medium Term Notes
$150,000,000 - USX Corporation 8-7/8% Notes due September 15, 1997
$250,000,000 - USX Corporation 9.80% Notes due July 1, 2001
$150,000,000 - USX Corporation 9-5/8% Notes due August 15, 2003
$200,000,000 - USX Corporation 9-3/8% Debentures due February 15, 2012
$300,000,000 - USX Corporation 9-1/8% Notes due January 15, 2013
$150,000,000 - USX Corporation 9-3/8% Debentures due May 15, 2022
$150,000,000 - USX Corporation 8.50% Notes due March 1, 2023
Marathon Oil Company Monthly Interest Guaranteed Notes Due 2002, 9-3/4% to
March 1, 1994 and % Thereafter, to be issued under a Trust Indenture among
Marathon Oil Company, issuer, USX Corporation, guarantor and PNC Bank,
National Association, to be dated as of June 1, 1993.
Section 7.09. The Trustee hereunder shall at all times be a Person that is
eligible pursuant to the Trust Indenture Act as such and has at all times a
combined capital and surplus of not less than ten million dollars. If such
Person publishes reports of condition at least annually, pursuant to law or to
the requirements of the aforesaid supervising or examining authority, then for
the purposes of this Section 7.09, the combined capital and surplus of such
Person at any time shall be deemed to be its combined capital and surplus as set
forth in its most recent report of condition so published. In case at any time
the Trustee shall cease to be eligible in accordance with the provisions of this
Section 7.09, the Trustee shall resign immediately in the manner and with the
effect specified in Section 7.10.
<PAGE> 56
46
Section 7.10. (a) The Trustee, or any trustee or trustees hereafter appointed,
may at any time resign with respect to the Debt Securities of one or more Series
by giving written notice of resignation to the Company and by mailing notice of
resignation to the holders of Debt Securities of such Series, at their last
addresses as they shall appear upon the Debt Security register. Upon receiving
such notice of resignation and evidence satisfactory to it of such mailing, the
Company shall promptly appoint a successor trustee by written instrument, in
duplicate, one copy of which instrument shall be delivered to the resigning
trustee and one copy to the successor trustee. If no successor trustee shall
have been so appointed and have accepted appointment within thirty days after
the mailing of such notice of resignation, the resigning trustee may petition
any court of competent jurisdiction for the appointment of a successor trustee,
or any holder of Debt Securities of such Series who has been a bona fide holder
of such Debt Securities for at least six months may, subject to the provisions
of Section 6.08, on behalf of himself and all others similarly situated,
petition any such court for the appointment of a successor trustee. Such court
may thereupon, after such notice, if any, as it may deem proper and prescribe,
appoint a successor trustee.
(b) In case at any time any of the following shall occur--
(1) the Trustee shall fail to comply with the provisions of Section 7.08
after written request therefor by the Company or by any holder of a Debt
Security who has been a bona fide holder of a Debt Security for at least six
months, or
(2) the Trustee shall cease to be eligible in accordance with the provisions
of Section 7.09 and shall fail to resign after written request therefor by the
Company or by any holder of a Debt Security, or
(3) the Trustee shall become incapable of acting, or shall be adjudged a
bankrupt or insolvent, or a receiver of the Trustee or of its property shall
be appointed, or any public officer shall take charge or control of the
Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation,
then, in any such case, the Company may remove the Trustee and appoint a
successor trustee with respect to all Debt Securities, by written instrument, in
duplicate, one copy of which instrument shall be delivered to the Trustee so
removed and one copy to the successor trustee, or, subject to the provisions of
Section 6.08, any holder of a Debt Security who has been a bona fide holder of a
Debt Security for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the removal
of the Trustee and the appointment of a successor trustee. Such court may
<PAGE> 57
47
thereupon, after such notice, if any, as it may deem proper and prescribe,
remove the Trustee and appoint a successor trustee.
(c) The holders of a majority in aggregate principal amount of the Debt
Securities of a Series at the time outstanding may at any time remove the
Trustee with respect to such Series and nominate a successor trustee with
respect to such Series by written notice of such action to the Company and the
successor trustee which shall be deemed appointed as successor trustee with
respect to the Debt Securities of such Series, unless within ten days after such
nomination the Company objects thereto, in which case the Trustee so removed or
any holder of a Debt Security of such Series, upon the terms and conditions and
otherwise as in Section 7.10(a) provided, may petition any court of competent
jurisdiction for an appointment of a successor trustee with respect to such
Series of Debt Securities.
(d) Any resignation or removal of the Trustee and appointment of a successor
trustee pursuant to any of the provisions of this Section 7.10 shall become
effective upon acceptance of appointment by the successor trustee as provided in
Section 7.11.
Section 7.11. Any successor trustee appointed as provided in Section 7.10
shall execute, acknowledge and deliver to the Company, and to its predecessor
trustee an instrument accepting such appointment hereunder, and thereupon the
resignation or removal of the predecessor trustee shall become effective and
such successor trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, duties and obligations of its
predecessor hereunder, with like effect as if originally named as trustee
herein; but nevertheless, on the written request of the Company, or of the
successor trustee, the trustee ceasing to act shall, upon payment of any amounts
then due it pursuant to the provisions of Section 7.06, execute and deliver an
instrument transferring to such successor trustee all the rights and powers of
the trustee so ceasing to act. Upon request of any such successor trustee, the
Company shall execute any and all instruments in writing in order more fully and
certainly to vest in and confirm to such successor trustee all such rights and
powers. Any trustee ceasing to act shall, nevertheless, retain a lien upon all
property or funds held or collected by such trustee to secure any amounts then
due it pursuant to the provisions of Section 7.06.
No successor trustee shall accept appointment as provided in this Section 7.11
unless at the time of such acceptance such successor trustee shall be qualified
under the provisions of Section 7.08 and eligible under the provisions of
Section 7.09.
<PAGE> 58
48
Upon acceptance of appointment by a successor trustee with respect to the Debt
Securities of any Series as provided in this Section 7.11, the Company shall
mail notice of the succession of such trustee hereunder to the holders of Debt
Securities of such Series, at their last addresses as they shall appear upon the
Debt Security register. If the Company fails to mail such notice within ten days
after acceptance of appointment by the successor trustee, the successor trustee
shall cause such notice to be mailed at the expense of the Company.
Section 7.12. Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be qualified under the provisions of Section 7.08 and eligible
under the provisions of Section 7.09, without the execution or filing of any
paper or any further act on the part of any of the parties hereto, anything
herein to the contrary notwithstanding.
In case at the time such successor to the Trustee shall succeed to the trusts
created by this Indenture any of the Debt Securities shall have been
authenticated but not delivered, any such successor to the Trustee may adopt the
certificate of authentication of any predecessor trustee and deliver such Debt
Securities so authenticated; and in case at that time any of the Debt Securities
shall not have been authenticated, any successor to the Trustee may authenticate
such Debt Securities either in the name of any predecessor hereunder or in the
name of the successor trustee; and in all such cases such certificate shall have
the full force which it is anywhere in the Debt Securities or in this Indenture
provided that the certificate of the Trustee shall have; provided, however, that
the right to adopt the certificate of authentication of any predecessor trustee
or to authenticate Debt Securities in the name of any predecessor trustee shall
apply only to its successor or successors by merger, conversion or
consolidation.
Section 7.13. If and when the Trustee shall be or become a creditor of the
Company (or any other obligor upon the Securities), the Trustee shall be subject
to the provisions of the Trust Indenture Act regarding the collection of claims
against the Company (or any such other obligor).
Section 7.14. There may be an Issuing Agent or Issuing Agents appointed by the
Trustee and the Company from time to time with power to act on its behalf and
subject to the Trustee's direction in the authentication and delivery of Debt
Securities of one or more Series issued upon original issue and upon exchange,
registration of transfer or redemption thereof as fully to all intents and
purposes as though such Issuing Agent (or Issuing Agents) had
<PAGE> 59
49
been expressly authorized to authenticate and deliver Debt Securities of such
Series, and Debt Securities of such Series so authenticated shall be entitled to
the benefits of this Indenture and shall be valid and obligatory for all
purposes as though authenticated by the Trustee hereunder. For all purposes of
this Indenture the authentication and delivery of Debt Securities of a Series by
any Issuing Agent with respect to such Series pursuant to this Section 7.14
shall be deemed to be the authentication and delivery of such Debt Securities
"by the Trustee", and whenever this Indenture provides that "the Trustee shall
authenticate and deliver" Debt Securities or that Debt Securities "shall have
been authenticated and delivered by the Trustee", such authentication and
delivery of Debt Securities of any Series by any Issuing Agent with respect to
such Series shall be deemed to be authentication and delivery by the Trustee.
Any such Issuing Agent shall at all times be a corporation organized and doing
business under the laws of the United States of America or of any State or
Territory thereof or the District of Columbia, with a combined capital and
surplus of at least ten million dollars and authorized under such laws to act as
an issuing or authenticating agent, duly registered to act as such, if and to
the extent required by applicable law and subject to supervision or examination
by Federal, State, Territorial or District of Columbia authority. If such
corporation publishes reports of its condition at least annually pursuant to law
or the requirements of such authority, then for the purposes of this Section
7.14 the combined capital and surplus of such corporation shall be deemed to be
its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time an Issuing Agent shall cease to be
eligible in accordance with the provisions of this Section 7.14, or to be duly
registered if and to the extent required by applicable law and regulations, it
shall resign immediately in the manner and with the effect herein specified in
this Section 7.14.
Any corporation into which any Issuing Agent may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
consolidation or conversion to which any Issuing Agent shall be a party, or any
corporation succeeding to the authenticating agency business of any Issuing
Agent, shall be the successor of such Issuing Agent hereunder, if such successor
corporation is otherwise eligible under this Section 7.14, without the execution
or filing of any paper or any further act on the part of the parties hereto or
such Issuing Agent or such successor corporation.
In case at the time such successor to any Issuing Agent with respect to any
Series shall succeed to such Issuing Agent, any of the Debt Securities of such
Series shall have been authenticated but not delivered, any such successor to
such Issuing Agent may adopt the certificate of authentication of any
predecessor Issuing Agent and deliver such Debt Securities so authenticated; and
<PAGE> 60
50
in case at that time any of the Debt Securities of such Series shall not have
been authenticated, any successor to any Issuing Agent may authenticate such
Debt Securities either in the name of any predecessor hereunder or in the name
of successor Issuing Agent; and in all such cases such certificate shall have
the full force which it is anywhere in the Debt Securities of such Series or in
this Indenture provided that the certificate of the predecessor Issuing Agent
shall have; provided, however, that the right to adopt the certificate of
authentication of any predecessor Issuing Agent or to authenticate Debt
Securities in the name of any predecessor Issuing Agent shall apply only to its
successor or successors by merger, conversion or consolidation.
Any Issuing Agent may at any time resign by giving written notice of
resignation to the Trustee and the Company. The Trustee may at any time
terminate the agency of any Issuing Agent by giving written notice of
termination to such Issuing Agent and the Company. Upon receiving such a notice
of resignation or upon such a termination, or in case at any time any Issuing
Agent shall cease to be eligible under this Section 7.14, the Trustee may, and
shall, upon request of the Company, promptly use its best efforts to appoint a
successor Issuing Agent.
Upon the appointment, at any time after the original issuance of any of the
Debt Securities of a Series, of any successor, additional or new Issuing Agent
with respect to such Series the Trustee shall give written notice of such
appointment to the Company and shall at the expense of the Company mail notice
of such appointment to all holders of Debt Securities of such Series as the
names and addresses of such holders appear on the Debt Security register.
Any successor Issuing Agent upon acceptance of its appointment hereunder shall
become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as though originally named as an Issuing Agent
herein. No successor Issuing Agent shall be appointed unless eligible under the
provisions of this Section 7.14 and duly registered if and to the extent
required under applicable law and regulations.
Any Issuing Agent by the acceptance of its appointment shall be deemed to have
agreed with the Trustee that: it will perform and carry out the duties of an
Issuing Agent as herein set forth; it will keep and maintain and furnish to the
Trustee from time to time as requested by the Trustee appropriate records of all
transactions carried out by it as Issuing Agent and will furnish the Trustee
such other information and reports as the Trustee may reasonably require; it is
eligible for appointment as Issuing Agent under this Section 7.14 and will
notify the Trustee promptly if it shall cease to be so qualified; and it will
indemnify the Trustee against any loss, liability or expense incurred by the
Trustee and will defend any claim asserted against the Trustee by reason
<PAGE> 61
51
of acts or failures to act of the Issuing Agent but it shall have no liability
for any action taken by it at the specific written direction of the Trustee.
The Company agrees to pay to each Issuing Agent from time to time reasonable
compensation and expenses for its services, and the Trustee shall have no
liability for such payments.
The provisions of Sections 7.02(a), (b), (c) and (e), 7.03, 7.04, 7.06
(insofar as it pertains to indemnification), 8.01, 8.02, and 8.03 shall bind and
inure to the benefit of each Issuing Agent to the same extent that they bind and
inure to the benefit of the Trustee.
ARTICLE EIGHT
Concerning the Holders of Debt Securities
Section 8.01. Whenever in this Indenture it is provided that the holders of a
specified percentage in aggregate principal amount of the Debt Securities of any
Series may take any action (including the making of any demand or request, the
giving of any notice, consent or waiver or the taking of any other action), the
fact that at the time of taking any such action the holders of such specified
percentage have joined therein may be evidenced (a) by any instrument or any
number of instruments of similar tenor executed by such holders in person or by
agent or proxy appointed in writing, or (b) by the record of such holders voting
in favor thereof at any meeting of such holders duly called and held in
accordance with the provisions of Article Nine, or (c) by a combination of such
instrument or instruments and any such record of such a meeting of such holders.
Section 8.02. Subject to the provisions of Sections 7.01, 7.02, and 9.05,
proof of the execution of any instrument by a holder of Debt Securities or his
agent or proxy and proof of the holding by any person of any of the Debt
Securities shall be sufficient if made in the following manner:
(a) The fact and date of the execution by any such person of any instrument
may be proved by the certificate of any notary public or other officer of any
jurisdiction within the United States of America authorized to take
acknowledgments of deeds to be recorded in such jurisdiction that the person
executing such instrument acknowledged to him the execution thereof, or by an
affidavit of a witness to such execution sworn to before any such notary or
other such officer. If such execution is by an officer of a corporation or
association or a member of a partnership on behalf of such corporation,
association or partnership or by a fiduciary, such certificate or affidavit
shall also constitute sufficient proof of his authority.
<PAGE> 62
52
(b) The fact and date of the execution of any such instrument may also be
proved in any other manner which the Trustee may deem sufficient.
(c) The ownership of Debt Securities shall be proved by the registers of
such Debt Securities or by a certificate of the registrar thereof.
The Trustee may require such additional proof of any matter referred to in
this Section 8.02 as it shall deem necessary.
The record of any Debt Securityholders' meeting shall be proved in the manner
provided in Section 9.06.
Section 8.03. Prior to the due presentment of a Debt Security for registration
of transfer, the Company, the Trustee, any Issuing Agent, any Paying Agent and
any Debt Security registrar may deem and treat the person in whose name any Debt
Security shall be registered upon the books of the Company as the absolute owner
of such Debt Security (whether or not such Debt Security shall be overdue and
notwithstanding any notation of ownership or other writing thereon) for the
purpose of receiving payment of or on account of the principal of and interest
on such Debt Security, and for all other purposes, and neither the Company nor
the Trustee nor any Paying Agent nor any Debt Security registrar shall be
affected by any notice to the contrary. All such payments so made to any such
registered holder for the time being, or upon his order, shall be valid and, to
the extent of the sum or sums so paid, effectual to satisfy and discharge the
liability for money payable on any such Debt Security.
Section 8.04. In determining whether the holders of the requisite aggregate
principal amount of Debt Securities have concurred in any direction, consent or
waiver under this Indenture, Debt Securities which are owned by the Company, or
any other obligor on the Debt Securities, or by any Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Company, or any other obligor on the Debt Securities, shall be
disregarded and deemed not to be outstanding for the purpose of any such
determination, except that for the purpose of determining whether the Trustee
shall be protected in relying on any such direction, consent or waiver only Debt
Securities which the Trustee knows are so owned shall be so disregarded. Debt
Securities so owned which have been pledged in good faith may be regarded as
outstanding for the purposes of this Section 8.04, if the pledgee shall
establish to the satisfaction of the Trustee the pledgee's right to vote such
Debt Securities and that the pledgee is not the Company, any other obligor on
the Debt Securities, or a person directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company,
<PAGE> 63
53
or any such other obligor. In the case of a dispute as to such right, any
decision by the Trustee taken upon the advice of counsel shall be full
protection to the Trustee.
Section 8.05. At any time prior to the evidencing to the Trustee, as provided
in Section 8.01, of the taking of any action by the holders of the percentage in
aggregate principal amount of the Debt Securities specified in this Indenture in
connection with such action, any holder of a Debt Security which is shown by the
evidence to be included in the Debt Securities the holders of which have
consented to such action may, by filing written notice with the Trustee at its
corporate trust office and upon proof of holding as provided in Section 8.02,
revoke such action so far as concerns such Debt Security. Except as aforesaid
any such action taken by the holder of any Debt Security shall be conclusive and
binding upon such holder and upon all future holders and owners of such Debt
Security and of any Debt Security issued in exchange or substitution therefor,
irrespective of whether or not any notation in regard thereto is made upon such
Debt Security. Any action taken by the holders of the percentage in aggregate
principal amount of the Debt Securities of a Series specified in this Indenture
in connection with such action shall be conclusively binding upon the Company,
the Trustee and the holders of all the Debt Securities of such Series.
Section 8.06. The Trustee or the Company, as the case may be, may deem and
treat any Person appointed as proxy by an instrument in writing executed by a
registered holder of one or more Debt Securities as the holder of such Debt
Securities for the purposes set forth in such instrument. The signatures on all
such instruments shall be proven in the manner specified in Section 8.02 or by
having the signature of the person executing the proxy guaranteed by an
"eligible guarantor institution" (as that term is defined in Rule 17AD-15
promulgated under the Securities Exchange Act of 1934, as amended) which is a
participant in the Securities Transfer Agents Medallion Program.
ARTICLE NINE
Meetings of Holders of Debt Securities
Section 9.01. A meeting of holders of Debt Securities of any Series may be
called at any time and from time to time pursuant to the provisions of this
Article Nine for any of the following purposes:
(1) to give any notice to the Company or to the Trustee, or to give any
directions to the Trustee, or to waive any default hereunder and its
consequences, or to take any other action authorized to be taken by
<PAGE> 64
54
holders of Debt Securities of such Series pursuant to any of the provi-
sions of Article Six;
(2) to remove the Trustee and appoint a successor trustee with respect to
such Series pursuant to the provisions of Article Seven;
(3) to consent to the execution of an indenture or indentures supplemental
hereto pursuant to the provisions of Section 10.02; or
(4) to take any other action authorized to be taken by or on behalf of the
holders of any specified aggregate principal amount of the Debt Securities of
such Series under any other provision of this Indenture or under applicable
law.
Section 9.02. The Trustee may at any time call a meeting of holders of any
Series of Debt Securities to take any action specified in Section 9.01, to be
held at such time and at such place in the City of Pittsburgh, Commonwealth of
Pennsylvania, or in the Borough of Manhattan, The City of New York, State of New
York, as the Trustee shall determine. Notice of every meeting of Debt
Securityholders of any Series, setting forth the time and the place of such
meeting and in general terms the action proposed to be taken at such meeting,
shall be mailed to the holders of Debt Securities of such Series, at their last
addresses as they shall appear upon the Debt Security register.
Section 9.03. In case at any time the Company or the holders of at least ten
per cent in aggregate principal amount of the Debt Securities of any Series then
outstanding, shall have requested the Trustee to call a meeting of Debt
Securityholders of such Series to take any action authorized in Section 9.01, by
written request setting forth in reasonable detail the action proposed to be
taken at the meeting, and the Trustee shall not have mailed notice of such
meeting within thirty days after receipt of such request, then the Company, or
the holders of the Debt Securities of such Series in the amount above specified,
may determine the time and the place in said City of Pittsburgh or said Borough
of Manhattan for such meeting and may call such meeting by mailing notice
thereof as provided in Section 9.02.
Section 9.04. To be entitled to vote at any meeting of holders of Debt
Securities of a Series a Person shall (a) be a registered holder of one or more
Debt Securities of such Series; or (b) be a person appointed as proxy by an
instrument in writing executed by a registered holder of one or more such Debt
Securities in the manner set forth in Section 8.06. The only persons who shall
be entitled to be present or to speak at any meeting of Debt Securityholders
shall be the persons entitled to vote at such meeting and their counsel and any
<PAGE> 65
55
representatives of the Trustee and its counsel and any representatives of the
Company and its counsel.
Section 9.05. Notwithstanding any other provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable for any
meeting of Debt Securityholders, in regard to the appointment of proxies, and in
regard to the appointment and duties of inspectors of votes, the submission and
examination of proxies and other evidence of the right to vote, and such other
matters concerning the conduct of the meeting as it shall think fit. The holding
of Debt Securities shall be proved in the manner specified in Section 8.02 and,
except as otherwise permitted or required by any such regulations, the
appointment of any proxy shall be proved in the manner specified in said Section
8.02 or by having the signature of the person executing the proxy witnessed or
guaranteed by any bank, banker, trust company or New York Stock Exchange member
firm satisfactory to the Trustee.
The Trustee shall, by an instrument in writing, appoint a temporary chairman
of the meeting, unless the meeting shall have been called by the Company or by
Debt Securityholders as provided in Section 9.03, in which case the Company, or
the Debt Securityholders calling the meeting, as the case may be, shall in like
manner appoint a temporary chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by vote of the holders of a majority
in principal amount of the Debt Securities represented at the meeting and
entitled to vote.
Subject to the provisions of Section 8.04, at any meeting of holders of Debt
Securities of a Series each holder of Debt Securities of such Series or proxy
shall be entitled to one vote for each $1,000 principal amount (in the case of
Original Issue Discount Securities, such principal amount shall be deemed to be
the amount of the principal thereof that would be due and payable as of the date
of such determination upon a declaration of acceleration of the maturity thereof
pursuant to Section 6.01, rounded to the nearest $1,000, with $500 being rounded
upwards) of Debt Securities of such Series held or represented by him, provided,
however, that no vote shall be cast or counted at any meeting in respect of any
Debt Security challenged as not outstanding and ruled by the chairman of the
meeting to be not outstanding. The chairman of the meeting shall have no right
to vote except as a Debt Securityholder or proxy. Any meeting of Debt
Securityholders duly called pursuant to the provisions of Section 9.02 or 9.03
may be adjourned from time to time, and the meeting may be held as so adjourned
without further notice.
At any meeting of Debt Securityholders of a Series, the presence of persons
holding or representing Debt Securities of such Series in an aggregate principal
amount sufficient to take action on the business for the transaction
<PAGE> 66
56
of which such meeting was called shall constitute a quorum, but if less than a
quorum be present, the persons holding or representing a majority in aggregate
principal amount of the Debt Securities of such Series represented at the
meeting may adjourn such meeting with the same effect, for all intents and
purposes, as though a quorum had been present.
Section 9.06. The vote upon any resolution submitted to any meeting of holders
of Debt Securities of a Series shall be by written ballot on which shall be
subscribed the signatures of the Debt Securityholders of such Series or proxies
and on which shall be inscribed the identifying number or numbers or to which
shall be attached a list of identifying numbers of the Debt Securities of such
Series held or represented by them. The permanent chairman of the meeting shall
appoint two inspectors of votes who shall count all votes cast at the meeting
for or against any resolution and who shall make and file with the secretary of
the meeting their verified written reports in duplicate of all votes cast at the
meeting. A record in duplicate of the proceedings of each meeting of Debt
Securityholders shall be prepared by the secretary of the meeting and there
shall be attached to said record the original reports of the inspectors of votes
on any vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice of the meeting and
showing that said notice was mailed as provided in Section 9.02. The record
shall be signed and verified by the permanent chairman and secretary of the
meeting and one such copy shall be delivered to the Company, and the other to
the Trustee to be preserved by the Trustee, the latter to have attached thereto
the ballots voted at the meeting.
Any record so signed and verified shall be conclusive evidence of the matters
therein stated.
Section 9.07. Nothing in this Article Nine contained shall be deemed or
construed to authorize or permit, by reason of any call of a meeting of Debt
Securityholders or any rights expressly or impliedly conferred hereunder to make
such call, any hindrance or delay in the exercise of any right or rights
conferred upon or reserved to the Trustee or to the holders of Debt Securities
of any Series under any of the provisions of this Indenture or of the Debt
Securities of such Series.
ARTICLE TEN
Modification of Indenture; Supplemental Indenture
Section 10.01. The Company, when authorized by its Board of Directors, and the
Trustee may from time to time and at any time enter into an indenture or
indentures supplemental hereto (which shall conform to the re-
<PAGE> 67
57
quirements of the Trust Indenture Act) or modify this Indenture or such
supplemental indenture or indentures in regard to matters as shall not adversely
affect the interests of the holders of the Debt Securities, including, without
limitation, the following:
(a) to evidence the succession of another corporation to the Company, or
successive successions, and the assumption by the successor corporation of the
covenants, agreements and obligations of the Company pursuant to Article
Eleven;
(b) to add to the covenants of the Company such further covenants,
restrictions, conditions or provisions for the benefit or protection of the
holders of any or all Series of Debt Securities (and if such covenants are to
be for the benefit of less than all Series of Debt Securities, stating that
such covenants are expressly being included solely for the benefit of such
Series) or to surrender any right or power herein conferred upon the Company;
(c) to cure any ambiguity or to correct or supplement any provision
contained herein or in any supplemental indenture which may be defective or
inconsistent with any other provision contained herein or in any supplemental
indenture; to convey, transfer, assign, mortgage or pledge any property to or
with the Trustee; or to make such other provisions in regard to matters or
questions arising under this Indenture as shall not adversely affect the
interests of the holders of the Debt Securities then outstanding;
(d) to add to, change or eliminate any of the provisions of this Indenture
in respect of one or more Series of Debt Securities, provided that any such
addition, change or elimination (i) shall neither (A) apply to any Debt
Security of any Series created prior to the execution of such supplemental
indenture and entitled to the benefit of such provision nor (B) modify the
rights of the holder of any such Debt Security with respect to such provision
or (ii) shall become effective only when there is no such Debt Security
outstanding;
(e) to evidence the appointment and acceptance of appointment of a successor
trustee with respect to one or more Series of Debt Securities and to add to or
change any of the provisions of this Indenture as shall be necessary to
provide for or facilitate the administration of the trusts hereunder by more
than one trustee pursuant to Section 7.11;
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58
(f) to set forth the form and any terms of any Series of Debt Securities
which the Company and the Trustee deem necessary or desirable to include in a
supplemental indenture; and
(g) to add to or change any of the provisions of this Indenture to such
extent as shall be necessary or desirable to permit or facilitate the issuance
of Debt Securities in bearer form, registrable or not registrable as to
principal, and with or without interest coupons.
The Trustee is hereby authorized to join with the Company in the execution of
any such supplemental indenture, to make any further appropriate agreements and
stipulations which may be therein contained and to accept the conveyance,
transfer, assignment, mortgage or pledge of any property thereunder, but the
Trustee shall not be obligated to enter into any such supplemental indenture
which adversely affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise.
Any supplemental indenture and any modifications to this Indenture or any
supplemental indenture authorized by the provisions of this Section 10.01 may be
executed by the Company and the Trustee without the consent of the holders of
any of the Debt Securities at the time outstanding, notwithstanding any of the
provisions of Section 10.02.
Section 10.02. With the consent (evidenced as provided in Section 8.01) of the
holders of not less than 66-2/3% in aggregate principal amount of each Series of
Debt Securities affected thereby at the time outstanding, the Company, when
authorized by its Board of Directors, and the Trustee may from time to time and
at any time enter into an indenture or indentures supplemental hereto (which
shall conform to the requirements of the Trust Indenture Act) for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of any supplemental indenture or of modifying in
any manner the rights of the holders of the Debt Securities of such Series;
provided, however, that no such supplemental indenture shall (i) extend the
fixed maturity of any outstanding Debt Securities, or reduce the principal
amount thereof, or reduce the rate or extend the time of payment of any premium
or interest thereon, or make the principal thereof or any premium or interest
thereon payable in any coin or currency other than that hereinbefore provided,
without the consent of the holder of each Debt Security affected thereby, or
(ii) reduce the aforesaid percentage of Debt Securities of any Series, the
consent of the holders of which is required for any such modification or
supplemental indenture, without the consent of the holders of all Debt
Securities affected thereby then outstanding.
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Upon the request of the Company, accompanied by a copy of an authorizing
resolution certified by the Secretary or an Assistant Secretary of the Company
authorizing the execution of any such supplemental indenture, and upon the
filing with the Trustee of evidence of the consent of Debt Securityholders as
aforesaid, the Trustee shall join with the Company in the execution of such
supplemental indenture unless such supplemental indenture affects the Trustee's
own rights, duties or immunities under this Indenture or otherwise, in which
case the Trustee may in its discretion, but shall not be obligated to, enter
into such supplemental indenture.
It shall not be necessary for the consent of the Debt Securityholders under
this Section 10.02 to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of this Section 10.02, the
Company shall mail a notice, setting forth in general terms the substance of
such supplemental indenture, to the holders of Debt Securities affected thereby,
at their last addresses as they shall appear upon the Debt Security register.
Any failure of the Company to mail such notice, or any defect therein, shall
not, however, in any way impair or affect the validity of such supplemental
indenture.
Section 10.03. Upon the execution of any supplemental indenture pursuant to
the provisions of this Article Ten, this Indenture shall be and be deemed to be
modified and amended in accordance therewith and the respective rights,
limitations of rights, obligations, duties and immunities under this Indenture
of the Trustee, the Company and the holders of Debt Securities shall thereafter
be determined, exercised and enforced hereunder subject in all respects to such
modifications and amendments, and all the terms and conditions of any such
supplemental indenture shall be and be deemed to be part of the terms and
conditions of this Indenture for any and all purposes.
The Trustee, subject to the provisions of Sections 7.01 and 7.02, may receive
an Opinion of Counsel as conclusive evidence that any such supplemental
indenture complies with the provisions of this Article Ten.
Section 10.04. Debt Securities authenticated and delivered after the execution
of any supplemental indenture pursuant to the provisions of this Article Ten may
bear a notation in form approved by the Trustee as to any matter provided for in
such supplemental indenture. New Debt Securities so modified as to conform, in
the opinion of the Trustee and the Company, to any modification of this
Indenture contained in any such supplemental indenture may be
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prepared and executed by the Company, and such Debt Securities shall be
authenticated by the Trustee and delivered in exchange for the Debt Securities
then outstanding.
ARTICLE ELEVEN
Consolidation, Merger, Sale or Conveyance
Section 11.01. The Company covenants that it will not merge or consolidate
with any other corporation or sell or convey all or substantially all of its
assets to any person, firm or corporation, except that the Company may merge or
consolidate with, or sell or convey all or substantially all of its assets to,
any other corporation, provided that (i) the Company shall be the continuing
corporation or the successor corporation (if other than the Company) shall be a
corporation organized and existing under the laws of the United States of
America or a State thereof and such corporation shall expressly assume the due
and punctual payment of the principal of and any premium and interest on all the
Debt Securities, according to their tenor, and the due and punctual performance
and observance of all of the covenants and conditions of this Indenture to be
performed by the Company and (ii) the Company or such successor corporation, as
the case may be, shall not, immediately after such merger or consolidation, or
such sale or conveyance, be in default in the performance of any such covenant
or condition and no event which with the lapse of time, the giving of notice or
both would constitute an Event of Default shall have occurred and be continuing.
For purposes of this Section 11.01, "substantially all of its assets" shall
mean, at any date, a portion of the non-current assets reflected in the
Company's consolidated balance sheet as of the end of the most recent quarterly
period that represents at least sixty-six and two-thirds percent (66-2/3%) of
the total reported value of such assets.
Section 11.02. In case of any such consolidation, merger, sale or conveyance
and upon the assumption by the successor corporation of the obligations under
this Indenture and the Debt Securities in accordance with Section 11.01, such
successor corporation shall succeed to and be substituted for the Company, with
the same effect as if it had been named herein as a party hereto, and the
Company shall thereupon be relieved of any further obligations or liabilities
hereunder and upon the Debt Securities and the Company as the predecessor
corporation may thereupon or at any time thereafter be dissolved, wound-up or
liquidated. Such successor corporation thereupon may cause to be signed, and may
issue either in its own name or in the name of the predecessor corporation, any
or all of the Debt Securities issuable hereunder which theretofore shall not
have been signed by the Company and delivered to the Trustee and, upon the order
of such successor corporation, instead of the Company, and subject to all the
terms, conditions and limitations in this
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Indenture prescribed, the Trustee shall authenticate and shall deliver any Debt
Securities which previously shall have been signed and delivered by the officers
of the Company to the Trustee for authentication, and any Debt Securities which
such successor corporation thereafter shall cause to be signed and delivered to
the Trustee for that purpose. All the Debt Securities so issued shall in all
respects have the same legal rank and benefit under this Indenture as the Debt
Securities theretofore or thereafter issued in accordance with the terms of this
Indenture as though all of such Debt Securities had been issued at the date of
the execution hereof.
In case of any such consolidation, merger, sale or conveyance such changes in
phraseology and form (but not in substance) may be made in the Debt Securities
thereafter to be issued as may be appropriate.
Section 11.03. If, upon any such consolidation, merger, sale or conveyance, or
upon any acquisition by the Company, by purchase or otherwise of all or any part
of the property of any other corporation, any property of the Company, owned
immediately prior thereto would thereupon become subject to any mortgage, lien,
pledge, charge or encumbrance, the Company, prior to such consolidation, merger,
sale, conveyance or acquisition, will secure the Debt Securities (equally and
ratably with any other indebtedness of the Company then entitled thereto) by a
lien on all such property of the Company, prior to all liens, charges and
encumbrances other than any theretofore existing thereon.
Section 11.04. The Trustee, subject to the provisions of Sections 7.01 and
7.02, may receive an Opinion of Counsel as conclusive evidence that any such
consolidation, merger, sale or conveyance, and any such assumption, complies
with the provisions of this Article Eleven.
ARTICLE TWELVE
Satisfaction and Discharge of Indenture; Unclaimed Moneys
Section 12.01. If at any time the Company shall give written notice to the
Trustee that it desires this Indenture to be satisfied and discharged with
respect to any (or all) Series of Debt Securities and (a) the Company shall have
delivered to the Trustee for cancellation all Debt Securities of such Series
theretofore authenticated (other than any Debt Securities which shall have been
destroyed, lost or stolen and which shall have been replaced or paid as provided
in Section 2.09) and not theretofore cancelled; or (b) all such Debt Securities
of such Series not theretofore cancelled or delivered to the Trustee for
cancellation shall have become due and payable, or are by their terms to
<PAGE> 72
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become due and payable within one year or are to be called for redemption within
one year under arrangements satisfactory to the Trustee for the giving of notice
of redemption and the Company shall deposit or cause to be deposited with the
Trustee or one or more Paying Agents as trust funds the entire amount sufficient
to pay at maturity or upon redemption all such Debt Securities not theretofore
cancelled or delivered to the Trustee for cancellation, including principal,
premium (if any) and interest due or to become due to such date of maturity or
date fixed for redemption, as the case may be, and if in either case the Company
shall also pay or cause to be paid all other sums payable hereunder by the
Company, then this Indenture shall cease to be of further effect with respect to
such Series, and the Trustee, on demand of and at the cost and expense of the
Company and subject to Section 14.04, shall execute proper instruments
acknowledging satisfaction of and discharging this Indenture with respect to
such Series. The Company agrees to reimburse the Trustee for any costs or
expenses thereafter reasonably and properly incurred by the Trustee in
connection with this Indenture or the Debt Securities.
Section 12.02. (a) The Company may elect, at its option by resolution of the
Board of Directors at any time, to have either Section 12.02(b) or 12.02(c)
applied to the outstanding Debt Securities of any Series designated pursuant to
Section 2.02 as being defeasible pursuant to this Section 12.02 (hereinafter
called a "Defeasible Series"), upon compliance with the conditions set forth
below in this Section 12.02.
(b) Upon the Company's exercise of the option provided in Section 12.02(a) to
have this Section 12.02(b) applied to the outstanding Debt Securities of any
Defeasible Series, the Company shall be deemed to have been discharged from its
obligations with respect to the outstanding Debt Securities of such Series as
provided in this Section on and after the date the conditions set forth in
Section 12.02(d) are satisfied (hereinafter called "Defeasance"). For this
purpose, such Defeasance means that the Company shall be deemed to have paid and
discharged the entire indebtedness represented by the outstanding Debt
Securities of such Series and to have satisfied all its other obligations under
the Debt Securities of such Series and this Indenture insofar as the Debt
Securities of such Series are concerned (and the Trustee, at the expense of the
Company, shall execute proper instruments acknowledging the same), subject to
the following which shall survive until otherwise terminated or discharged
hereunder: (1) the rights of holders of Debt Securities of such Series to
receive, solely from the trust fund described in Section 12.02(d) and as more
fully set forth in such Section, payments in respect of the principal of and any
premium and interest on such Debt Securities of such Series when payments are
due, (2) the Company's obligations with respect to the Debt Securities of such
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Series under Sections 2.08, 2.09, 2.11, 4.02 and 4.05, (3) the rights, powers,
trusts, duties and immunities of the Trustee hereunder and (4) this Section
12.02. Subject to compliance with this Section 12.02, the Company may exercise
its option provided in Section 12.02(a) to have this Section 12.02(b) applied to
the outstanding Debt Securities of any Defeasible Series notwithstanding the
prior exercise of its option provided in Section 12.02(a) to have Section
12.02(c) applied to the outstanding Debt Securities of such Series.
(c) Upon the Company's exercise of the option provided in Section 12.02(a) to
have this Section 12.02(c) applied to the outstanding Debt Securities of any
Defeasible Series, (1) the Company shall be released from its obligations under
Sections 4.03, 4.04, 4.07, 4.09, 11.01 and 11.03 and (2) the occurrence of any
event specified in Sections 6.01(d), 6.01(e) (with respect to any of Sections
4.03, 4.04, 4.07, 4.09, 11.01 and 11.03) and 6.01(h) shall be deemed not to be
or result in an Event of Default, in each case with respect to the outstanding
Debt Securities of such Series as provided in this Subsection on and after the
date the conditions set forth in Section 12.02(d) are satisfied (hereinafter
called "Covenant Defeasance"). For this purpose, such Covenant Defeasance means
that the Company may omit to comply with and shall have no liability in respect
of any term, condition or limitation set forth in any such specified Section (to
the extent so specified in the case of Section 6.01(e)), whether directly or
indirectly by reason of any reference elsewhere herein to any such Section or by
reason of any reference in any such Section to any other provision herein or in
any other document, but the remainder of this Indenture and the Debt Securities
of such Series shall be unaffected thereby.
(d) The following shall be the conditions to application of either Section
12.02(b) or Section 12.02(c) to the outstanding Debt Securities of any
Defeasible Series:
(1) The Company shall irrevocably have deposited or caused to be deposited
with the Trustee (or another trustee that satisfies the requirements
contemplated by Section 7.09 and agrees to comply with the provisions of
this Section 12.02 applicable to it) as trust funds in trust for the purpose
of making the following payments, specifically pledged as security for, and
dedicated solely to, the benefit of the holders of outstanding Debt
Securities of such Series, (A) money in an amount, or (B) U.S. Government
Obligations that through the scheduled payment of principal and interest in
respect thereof in accordance with their terms will provide, not later than
one day before the due date of any payment, money in an amount, or (C) a
combination thereof, in each case sufficient, in the opinion of a nationally
recognized firm of independent public accountants
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expressed in a written certification thereof delivered to the Trustee, to
pay and discharge, and which shall be applied by the Trustee (or any such
other qualifying trustee) to pay and discharge, the principal of and any
premium and interest on the Securities of such Series on the respective due
dates in accordance with the terms of this Indenture and the Debt Securities
of such Series. As used herein, "U.S. Government Obligation" means (x) any
security that is (i) a direct obligation of the United States of America for
the payment of which full faith and credit of the United States of America
is pledged or (ii) an obligation of a Person controlled or supervised by and
acting as an agency or instrumentality of the United States of America the
payment of which is unconditionally guaranteed as a full faith and credit
obligation by the United States of America, which, in either case (i) or
(ii), is not callable or redeemable at the option of the issuer thereof, and
(y) any depositary receipt issued by a bank (as defined in Section 3(a)(2)
of the Securities Act of 1933, as amended) as custodian with respect to any
U.S. Government Obligation specified in clause (x) and held by such
custodian for the account of the holder of such depositary receipt, or with
respect to any specific payment of principal of or interest on any such U.S.
Government Obligation, provided that (except as required by law) such
custodian is not authorized to make any deduction from the amount payable to
the holder of such depositary receipt from any amount received by the
custodian in respect of the U.S. Government Obligation or the specific
payment of principal or interest evidenced by such depositary receipt.
(2) In the case of an election under Section 12.02(c), the Company shall
have delivered to the Trustee an Opinion of Counsel stating that (A) the
Company has received from, or there has been published by, the Internal
Revenue Service a ruling or (B) since the date first set forth hereinabove,
there has been a change in the applicable Federal income tax law, in either
case (A) or (B) to the effect that, and based thereon such opinion shall
confirm that, the holders of the outstanding Debt Securities of such Series
will not recognize gain or loss for Federal income tax purposes as a result
of the deposit, Defeasance and discharge to be effected with respect to the
Securities of such Series and will be subject to Federal income tax on the
same amount, in the same manner and at the same times as would be the case
if such deposit, Defeasance and discharge were not to occur.
(3) In the case of an election under Section 12.02 (c) the Company shall
have delivered to the Trustee an Opinion of Counsel to
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the effect that the holders of the outstanding Debt Securities of such
Series will not recognize gain or loss for Federal income tax purposes as a
result of the deposit and Covenant Defeasance to be effected with respect to
the Debt Securities of such Series and will be subject to Federal income tax
on the same amount, in the same manner and at the same times as would be the
case if such deposit and Covenant Defeasance were not to occur.
(4) No Event of Default or event that (after notice or lapse of time or
both) would become an Event of Default shall have occurred and be continuing
at the time of such deposit or, with regard to any Event of Default or any
such event specified in Sections 6.01(f) and (g), at any time on or prior to
the 90th day after the date of such deposit (it being understood that this
condition shall not be deemed satisfied until after such 90th day).
(5) Such Defeasance or Covenant Defeasance shall not cause the Trustee to
have a conflicting interest within the meaning of the Trust Indenture Act.
(6) Such Defeasance or Covenant Defeasance shall not result in a breach or
violation of, or constitute a default under, any other agreement or
instrument to which the Company is a party or by which it is bound.
(7) The Company shall have delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all conditions
precedent with respect to such Defeasance or Covenant Defeasance have been
complied with.
(8) Such Defeasance or Covenant Defeasance shall not result in the trust
arising from such deposit constituting an investment company within the
meaning of the Investment Company Act of 1940, as amended, unless such trust
shall be qualified under such Act or exempt from regulation thereunder.
(e) Subject to the provisions of Section 12.05, all money and U.S. Government
Obligations (including the proceeds thereof) deposited with the Trustee or other
qualifying trustee (solely for purposes of this Section 12.02(e) and Section
12.02(f), the Trustee and any such other trustee are referred to collectively as
the "Trustee") pursuant to Section 12.02(d) in respect of the Debt Securities of
any Defeasible Series shall be held in trust and applied by the Trustee, in
accordance with the provisions of the Debt Securities of such Series and this
Indenture, to the payment, either directly or through any such
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Paying Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the holders of Debt Securities of such Series, of all
sums due and to become due thereon in respect of principal and any premium and
interest, but money so held in trust need not be segregated from other funds
except to the extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee or other
charge imposed on or assessed against the U.S. Government Obligations deposited
pursuant to Section 12.02(d) or the principal and interest received in respect
thereof other than any such tax, fee or other charge that by law is for the
account of the holders of outstanding Debt Securities.
Anything in this Section 12.02 to the contrary notwithstanding, the Trustee
shall deliver or pay to the Company from time to time upon request by the
Company any money or U.S. Government Obligations held by it as provided in
Section 12.02(d) with respect to Debt Securities of any Defeasible Series that,
in the opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, are in
excess of the amount thereof that would then be required to be deposited to
effect an equivalent Defeasance or Covenant Defeasance with respect to the Debt
Securities of such Series.
(f) If the Trustee or the Paying Agent is unable to apply any money in
accordance with this Section 12.02 with respect to the Debt Securities of any
Series by reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, then the
Company's obligations under this Indenture and the Debt Securities of such
Series shall be revived and reinstated as though no deposit had occurred
pursuant to this Section 12.02 with respect to Debt Securities of such Series
until such time as the Trustee or Paying Agent is permitted to apply all money
held in trust pursuant to Section 12.02(d) with respect to Debt Securities of
such Series in accordance with this Section 12.02; provided, however, that if
the Company makes any payment of principal of or any premium or interest on any
Debt Security of such Series following the reinstatement of its obligations, the
Company shall be subrogated to the rights of the holders of Debt Securities of
such Series to receive such payment from the money so held in trust.
Section 12.03. All moneys deposited with the Trustee pursuant to Sections
12.01 and 12.02 shall be held in trust and applied by it to the payment, either
directly or through any Paying Agent (including the Company acting as its own
Paying Agent), to the holders of the particular Debt Securities for the payment
or redemption of which such moneys have been deposited with
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the Trustee, of all sums due and to become due thereon for principal and in-
terest.
Section 12.04. In connection with the satisfaction and discharge of this
Indenture all moneys then held by any Paying Agent under the provisions of this
Indenture shall, upon demand of the Company, be repaid to it or paid to the
Trustee and thereupon such Paying Agent shall be released from all further
liability with respect to such moneys.
Section 12.05. Any moneys deposited with or paid to the Trustee or any Paying
Agent for the payment of the principal of or premium or interest on any Debt
Security and not applied but remaining unclaimed for one year after the date
upon which such principal, premium or interest shall have become due and
payable, shall be repaid to the Company by the Trustee or such Paying Agent on
demand and the holder of such Debt Security shall thereafter look only to the
Company for any payment which such holder may be entitled to collect and all
liability of the Trustee or any Paying Agent with respect to such moneys shall
thereupon cease; provided, however, that the Trustee or such Paying Agent,
before being required to make any such repayment may at the expense of the
Company cause to be published once a week for two successive weeks (in each case
on any day of the week) in a newspaper in the Borough of Manhattan, The City of
New York, State of New York, a notice that said moneys have not been so applied
and that after a date named therein any unclaimed balance of said moneys then
remaining will be returned to the Company. It shall not be necessary for more
than one such publication to be made in the same newspaper.
ARTICLE THIRTEEN
Immunity of Incorporators, Stockholders, Officers and Directors
Section 13.01. No recourse under or upon any obligation, covenant or agreement
contained in this Indenture or in any indenture supplemental hereto, or in any
Debt Security, or because of any indebtedness evidenced thereby, shall be had
against any incorporator, or against any stockholder, officer or director, as
such, past, present or future, of the Company or of any predecessor or successor
corporation, either directly or through the Company or any predecessor or
successor corporation, under any rule of law, statute or constitutional
provision or by the enforcement of any assessment or by any legal or equitable
proceeding or otherwise, all such liability being expressly waived and released
by the acceptance of the Debt Securities by the holders thereof and as part of
the consideration for the issue of the Debt Securities.
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ARTICLE FOURTEEN
Miscellaneous Provisions
Section 14.01. Nothing in this Indenture or in the Debt Securities of any
Series, expressed or implied, shall give or be construed to give to any person,
firm or corporation, other than the parties hereto and the holders of the Debt
Securities of any Series, any legal or equitable right, remedy or claim under
this Indenture or under any covenant or provision herein contained, all its
covenants and provisions being for the sole benefit of the parties hereto and
the holders of such Debt Securities of any Series.
Section 14.02. All the covenants, stipulations, promises and agreements in
this Indenture contained by or on behalf of the Company shall bind their
respective successors and assigns, whether so expressed or not.
Section 14.03. Any notice or demand which by any provision of this Indenture
is required or permitted to be given or served by the Trustee or by the holders
of Debt Securities of any Series to or on the Company may be given or served by
being deposited postage prepaid in a post office letter box addressed (until
another address is filed by the Company with the Trustee), as follows: The
Treasurer, USX Corporation, 600 Grant Street, Pittsburgh, Pennsylvania
15219-4776. Any notice, direction, request, or demand by any Debt Securityholder
to or upon the Trustee, shall be deemed to have been sufficiently given or made,
for all purposes, if given or made in writing at the principal office of the
Trustee. Any notice required or permitted to be mailed to Debt Securityholders
of any Series shall be given by first class mail, postage prepaid. Any notice so
mailed within the time prescribed in this Indenture shall be conclusively
presumed to have been duly given, whether or not the Debt Securityholder
receives such notice.
Section 14.04. Except as otherwise expressly provided by this Indenture upon
any application or demand by the Company to the Trustee to take any action under
any of the provisions of this Indenture, the Company shall furnish to the
Trustee such certificates and opinions as may be required under the Trust
Indenture Act. Each such certificate or opinion shall be given in the form of an
Officers' Certificate, if to be given by an officer of the Company, or an
Opinion of Counsel, if to be given by counsel, and shall comply with the
requirements of the Trust Indenture Act and any other requirement set forth in
this Indenture.
Each certificate or opinion provided for in this Indenture and delivered to
the Trustee with respect to compliance with a condition or covenant provided for
in this Indenture shall include (1) a statement that the person making
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such certificate or opinion has read such covenant or condition; (2) a brief
statement as to the nature and scope of the examination or investigation upon
which the statements or opinions contained in such certificate or opinion are
based; (3) a statement that, in the opinion of such person, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and (4) a statement as to whether or not, in the opinion of such
person, such condition or covenant has been complied with.
Section 14.05. The Company may, in the circumstances permitted by the Trust
Indenture Act, fix any day as the record date for the purpose of determining the
Holders of Debt Securities entitled to give or take any request, demand,
authorization, direction, notice, consent, waiver or other action, or to vote on
any action, authorized or permitted to be given or taken by Holders of Debt
Securities. If not set by the Company prior to the first solicitation of a
Holder of Debt Securities made by any Person in respect of any such action, or,
in the case of any such vote, prior to such vote, the record date for any such
action or vote shall be the 30th day (or, if later, the date of the most recent
list of Holders required to be provided prior to such first solicitation or
vote, as the case may be. With regard to any record date, only the Holders of
Debt Securities on such date (or their duly designated proxies) shall be
entitled to give or take, or vote on, the relevant action.
Section 14.06. In any case where the date of payment of principal, premium (if
any) or interest of the Debt Securities or the date fixed for redemption of any
Debt Security shall be in the City of Pittsburgh or The City of New York a
Sunday or a legal holiday or a day on which banking institutions are authorized
by law to close, then such payment need not be made on such date but may be made
on the next succeeding business day with the same force and effect as if made on
the due date or the date fixed for redemption, and no interest shall accrue for
the period after such date.
Section 14.07. If and to the extent that any provision of this Indenture
limits, qualifies or conflicts with a provision of the Trust Indenture Act that
is required under such Act to be a part of and govern this Indenture, the latter
provision shall control. If any provision of this Indenture modifies or excludes
any provision of the Trust Indenture Act that may be so modified or excluded,
the latter provision shall be deemed to apply to this Indenture as so modified
or to be excluded, as the case may be.
Section 14.08. This Indenture and each Debt Security shall be deemed to be a
contract made under the law of the State of New York, and for all purposes shall
be governed by and construed in accordance with the laws of such State.
<PAGE> 80
70
Section 14.09. This Indenture may be executed in any number of counterparts,
each of which shall be an original; but such counterparts shall together
constitute but one and the same instrument.
Section 14.10. In case any provision in this Indenture or in the Debt
Securities shall be invalid, illegal or unenforceable, the validity, legality
and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
PNC Bank, National Association hereby accepts the trusts in this Indenture
declared and provided, upon the terms and conditions hereinabove set forth.
In Witness Whereof, USX Corporation has caused this Indenture to be signed and
acknowledged by its Chairman or one of its Vice Chairmen of the Board of
Directors or one of its Vice Presidents, and its corporate seal to be affixed
hereunto, and the same to be attested by its Secretary or an Assistant
Secretary; and PNC Bank, National Association has caused this Indenture to be
signed and acknowledged by one of its Vice Presidents, and its corporate seal to
be affixed hereunto, and the same to be attested by an Authorized Officer, all
as of the day and year first above written.
USX Corporation
[seal]
/s/ ROBERT M. HERNANDEZ
By.....................................
Executive Vice President
Accounting and Finance
& Chief Financial Officer
Attest:
/s/ R. E. HILTON
.......................................
Assistant Secretary
PNC Bank, National Association
[seal]
/s/ F. J. DERAMO
By.....................................
Vice President
Attest:
/s/ AMY R. HOWCROFT
.......................................
Assistant Vice President
<PAGE> 81
71
Commonwealth of Pennsylvania
County of Allegheny ss:
On the 7th day of June 1993 before me personally came Robert M. Hernandez, to
me known, who, being by me duly sworn, did depose and say that he is the
Executive Vice President-Accounting and Finance & Chief Financial Officer of USX
Corporation, one of the parties described in and which executed the above
instrument; that he knows the corporate seal of said corporation; that the seal
affixed to the said instrument is such corporate seal; that it was so affixed by
authority of the board of directors of said corporation, and that he signed his
name thereto by like authority.
[NOTARIAL SEAL]
/s/ DIANE E. GOLSAN
------------------------
Notary Public
NOTARIAL SEAL
DIANE E. GOLSAN, Notary Public
Pittsburgh, Allegheny County, PA
My Commission Expires March 7, 1994
Commonwealth of Pennsylvania
County of Allegheny ss:
On the 7th day of June 1993 before me personally came F. J. Deramo, to me
known, who, being by me duly sworn, did depose and say that he is a Vice
President of PNC Bank, National Association, one of the parties described in and
which executed the above instrument; that he knows the corporate seal of said
corporation; that the seal affixed to the said instrument is such corporate
seal; that it was so affixed by authority of the board of directors of said
corporation, and that he signed his name thereto by like authority.
[NOTARIAL SEAL]
/s/ MARK C. BAKER
-------------------------
Notary Public
NOTARIAL SEAL
MARK C. BAKER, Notary Public
Pittsburgh, Allegheny County
My Commission Expires July 13, 1996
Member, Pennsylvania Association of Notaries
