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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 12, 1999
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
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USX CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C>
DELAWARE 25-0996816
(STATE OR OTHER JURISDICTION OF INCORPORATION OR (I.R.S. EMPLOYER IDENTIFICATION NO.)
ORGANIZATION)
</TABLE>
600 GRANT STREET, PITTSBURGH, PENNSYLVANIA 15219-4776 (412) 433-1121
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
PRINCIPAL EXECUTIVE OFFICES)
DAN D. SANDMAN, ESQ.
GENERAL COUNSEL, SECRETARY AND SENIOR VICE PRESIDENT--HUMAN RESOURCES & PUBLIC
AFFAIRS
600 GRANT STREET
PITTSBURGH, PENNSYLVANIA 15219-4776
(412) 433-1121
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO PUBLIC: After the
effective date of this registration statement and as determined by market
conditions.
If only securities being registered on this Form are being offered pursuant
to dividend or interest reinvestment plans, please check the following box. [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, please check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
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If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
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If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
AMOUNT PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF EACH CLASS OF TO BE OFFERING PRICE AGGREGATE REGISTRATION
SECURITIES TO BE REGISTERED REGISTERED(1) PER UNIT OFFERING PRICE(2) FEE
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<S> <C> <C> <C> <C>
USX Corporation Debt Securities.........
USX Corporation Preferred Stock.........
USX-Marathon Group Common Stock of USX
Corporation...........................
USX-U. S. Steel Group Common Stock of
USX Corporation....................... $1,000,000,000 $1,000,000,000 $278,000
Warrants to Purchase USX Corporation
Debt Securities, Preferred Stock,
USX-Marathon Group Common Stock or
USX-U. S. Steel Group Common Stock....
</TABLE>
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(1) The amount to be registered consists of up to $1,000,000,000 market value
of Debt Securities, each of the classes of equity securities and warrants
individually, but not more than such amount for all registered securities
in the aggregate. The Debt Securities and Preferred Stock may include
provisions to convert such securities into USX Common Stock. This
registration statement will also relate to the common stock into which such
securities are convertible and any securities issuable upon exercise of any
Warrants. Foreign currency denominated securities are included on a U.S.
dollar basis. For Debt Securities issued with an original issue discount,
the amount to be registered is calculated as the initial accreted value of
such Debt Securities.
(2) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457 under the Securities Act of 1933. Excludes an
aggregate of $685,719,300 unsold Debt Securities and equity securities
included in Registration Statement, Number 333-56867, for which a
registration fee was paid in connection with the filing thereof. The above
excluded securities are covered by the Prospectus included in this
Registration Statement pursuant to Rule 429. As a result, up to an
aggregate of $1,685,719,300 of all of the securities referred to in this
table may be sold pursuant to the Prospectus included in this Registration
Statement. The amount of the filing fee associated with the above excluded
securities previously paid with the above mentioned registration statement
is $202,287.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
PURSUANT TO RULE 429 UNDER THE SECURITIES ACT OF 1933, THE PROSPECTUS
INCLUDED IN THIS REGISTRATION STATEMENT WILL ALSO BE USED FOR PURPOSES OF
SECTION 10(a)(3) OF THE ACT IN CONNECTION WITH SECURITIES REGISTERED ON FORM
S-3, REGISTRATION NUMBER 333-56867.
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PROSPECTUS
USX LOGO
USX CORPORATION
600 Grant Street
Pittsburgh, PA 15219-4776
(412) 433-1121
$1,685,719,300
Debt Securities
Preferred Stock
USX-Marathon Group Common Stock
USX-U. S. Steel Group Common Stock
Warrants
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We will provide specific terms of these securities in supplements to this
prospectus.
You should read this prospectus and any supplement carefully before you invest.
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These securities have not been approved by the SEC or any state securities
commission, nor have these organizations determined that this prospectus is
accurate or complete.
Any representation to the contrary is a criminal offense.
This prospectus is dated October , 1999.
<PAGE> 3
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with the
SEC utilizing a "shelf" registration process. Under this shelf process, we may
sell any combination of the securities described in this prospectus in one or
more offerings up to the total dollar amount shown on the cover page. This
prospectus provides you with a general description of the securities we may
offer. Each time we sell securities, we will provide a prospectus supplement
that will contain specific information about the terms of that offering. The
prospectus supplement may also add, update or change information contained in
this prospectus. You should read both this prospectus and any prospectus
supplement together with additional information described below under the
heading "WHERE YOU CAN FIND MORE INFORMATION".
This prospectus and the prospectus supplement will not discuss all of the
details of the securities offered. To see more details concerning the terms of
the securities, you should read the exhibits filed with this registration
statement.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly, current reports, proxy statements and other
information with the SEC. Our SEC filings are available to the public over the
Internet at the SEC's web site at http://www.sec.gov. You may also read and copy
any document we file at the SEC's public reference rooms in Washington, D.C.,
New York, New York and Chicago, Illinois. You may call the SEC at 1-800-SEC-0330
for further information on their public reference rooms.
The SEC allows us to "incorporate by reference" in this prospectus the
information in the documents we file with them. Important information concerning
our business and financial results is included in those documents. The
information incorporated by reference is an important part of this prospectus,
and information that we file later with the SEC will automatically update and
supersede information previously filed.
We incorporate by reference the documents listed below and any future
filings made with the SEC under Sections 13(a), 13(c), 14, or 15(d) of the
Securities Exchange Act of 1934 until we sell all of the securities covered by
this prospectus.
-- Annual Report on Form 10-K for the year ended December 31, 1998.
-- Quarterly Reports on Form 10-Q for the quarters ended March 31, and June
30, 1999.
-- Current Reports on Form 8-K dated January 22, January 26, January 27, and
September 28, 1999 and on Form 8-K/A dated January 22, 1999.
-- The description of the USX-Marathon Group Common Stock included in USX's
Form 8 Amendment to a Form 8-B filed on April 11, 1991.
-- The description of the USX-U. S. Steel Group Common Stock included in
USX's Form 8-A filed on April 11, 1991.
-- The Rights Agreement included in USX's Form 8-A filed on September 28,
1999.
You may request a copy of these filings at no cost, by writing or
telephoning us at the following address:
Corporate Secretary
USX Corporation
600 Grant Street
Pittsburgh, Pennsylvania 15219-4776
(412) 433-4801
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You should rely only on the information incorporated by reference or
provided in this prospectus or any prospectus supplement. We have not authorized
anyone else to provide you with different information. We are not making an
offer of these securities in any state where the offer is not permitted. You
should not assume that the information in this prospectus or any prospectus
supplement is accurate as of any date other than the date on the front of those
documents.
THE COMPANY
USX Corporation, is principally engaged in the energy business through its
Marathon Group and in the steel business through its U. S. Steel Group. It has
two classes of common stock, USX-Marathon Group Common Stock ("Marathon Stock")
and USX-U. S. Steel Group Common Stock ("Steel Stock"). Each is intended to
reflect the performance of the related group.
-- The Marathon Group includes Marathon Oil Company ("Marathon") and certain
other subsidiaries of USX, which are engaged in worldwide exploration and
production of crude oil and natural gas; domestic refining, marketing and
transportation of petroleum products primarily through Marathon Ashland
Petroleum LLC ("MAP"), owned 62 percent by Marathon; and other energy
related businesses. Marathon Group revenues as a percentage of total USX
consolidated revenues were 78% in 1998, 69% in 1997 and 71% in 1996.
-- The U. S. Steel Group includes U. S. Steel, which is engaged in the
production and sale of steel mill products, coke, and taconite pellets; the
management of mineral resources; domestic coal mining; real estate
development; and engineering and consulting services. Certain business
activities are conducted through joint ventures and partially owned
companies. U. S. Steel Group revenues as a percentage of total USX
consolidated revenues were 22% in 1998, 31% in 1997 and 29% in 1996.
USE OF PROCEEDS
The net proceeds from the sale of the offered securities will be used for
general corporate purposes unless we specify otherwise in the prospectus
supplement applicable to a particular offering.
RATIOS OF EARNINGS TO FIXED CHARGES AND EARNINGS TO COMBINED FIXED CHARGES AND
PREFERRED STOCK DIVIDENDS
CONTINUING OPERATIONS TOTAL ENTERPRISE BASIS -- (UNAUDITED)
The ratios of earnings to fixed charges and earnings to combined fixed
charges and preferred stock dividends for each of the periods indicated is as
follows:
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<CAPTION>
YEAR ENDED DECEMBER 31
-------------------------------- SIX MONTHS ENDED
1994 1995 1996 1997 1998 JUNE 30, 1999
---- ---- ---- ---- ---- ----------------
<S> <C> <C> <C> <C> <C> <C>
Ratio of earnings to fixed charges..................... 2.18 1.62 3.90 4.11 3.47 4.00
==== ==== ==== ==== ==== =====
Ratio of earnings to combined fixed charges and
preferred stock dividends............................ 2.01 1.49 3.62 3.92 3.36 3.89
==== ==== ==== ==== ==== =====
</TABLE>
The term "earnings" is the amount resulting from adding the following
items:
(a) pre-tax income of USX and its consolidated subsidiaries from
continuing operations before adjustment for minority interests in
consolidated subsidiaries or in-
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come or loss from equity investees,
(b) fixed charges,
(c) amortization of capitalized interest,
(d) distributed income of equity investees, and
(e) share of pre-tax losses of equity investees for which charges arising
from guarantees are included in fixed charges;
and subtracting from the total the following:
(x) interest capitalized and
(y) preference security dividend requirements of consolidated
subsidiaries.
For this purpose, "total fixed charges" consists of
(1) interest on all indebtedness and amortization of debt discount and
expense,
(2) interest capitalized,
(3) an interest factor attributable to rentals,
(4) pre-tax earnings required to cover preferred stock dividend
requirements, and
(5) fixed charges from debt of any entity less than 50% owned which is
guaranteed by USX if it is probable that USX will have to satisfy the
guarantee.
DESCRIPTION OF THE DEBT SECURITIES
The Debt Securities will be our general unsecured obligations. Unless
otherwise stated in the prospectus supplement, the Debt Securities will be
senior debt which will rank equally with all of our other senior and
unsubordinated debt. Senior and unsubordinated debt includes obligations to our
institutional lenders and suppliers.
We conduct many of our operations through our subsidiaries. Our rights and
the rights of our creditors, including Holders of these Debt Securities, to the
assets of any subsidiary of ours upon that subsidiary's liquidation or
reorganization or otherwise would be subject to the prior claims of that
subsidiary's creditors, except to the extent that we may be a creditor with
recognized claims against the subsidiary. Our subsidiaries' creditors would
include trade creditors, debt holders, secured creditors and taxing authorities.
The Debt Securities and the indentures governing the Debt Securities will not
restrict us or any of our subsidiaries from incurring indebtedness.
The senior Debt Securities will be issued under an Indenture, dated as of
, , between Harris Trust and Savings Bank (the "Trustee")
and USX (the "Indenture"). We have summarized certain provisions of the
Indenture below. For a complete understanding of these provisions as well as
other provisions, you should refer to the Indenture which is filed as an exhibit
to the Registration Statement. Capitalized terms used in the summary are defined
in the Indenture. We have included section numbers from the Indenture in many of
the summaries to help you locate the provisions being summarized.
We may also issue subordinated Debt Securities under an indenture relating
to subordinated Debt Securities, a form of which is also filed as an exhibit to
the Registration Statement. A description of the subordinated Debt Securities is
provided below under "--Subordinated Debt Securities," beginning on page 12. The
specific terms of the subordinated Debt
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Securities will be provided in the related Prospectus Supplement. For a complete
understanding of the provisions pertaining to the subordinated Debt Securities,
you should refer to the indenture relating to subordinated Debt Securities
attached as an exhibit to the Registration Statement.
The following description of Debt Securities pertains to those securities
issued pursuant to the Indenture relating to senior Debt Securities.
GENERAL
The Indenture does not limit the principal amount of Debt Securities which
we may issue.
We may issue the Debt Securities of any series in definitive form or as a
book-entry security in the form of a Global Security registered in the name of a
Depositary designated by us.
We may issue Debt Securities in foreign currency or units based on foreign
currencies. We may issue the Debt Securities in one or more series with various
maturities. They may be sold at par, at a premium or with an original issue
discount.
The Prospectus Supplement for a particular series will include the
specific terms of the Debt Securities being offered. These terms will include
some or all of the following:
-- the title of the Debt Securities;
-- any limit on the aggregate principal amount of the Debt Securities;
-- the person or entity to whom any interest will be payable, if such
person or entity is not the registered owner of the Debt Securities;
-- the date or dates on which the principal and any premium on the Debt
Securities will be payable;
-- the rates, which may be fixed or variable, per annum at which the
Debt Securities will bear interest, if any, and the date or dates
from which any interest will accrue;
-- the dates on which the interest, if any, on the Debt Securities will
be payable, and the regular record dates for the interest payment
dates or the method for determining such dates;
-- the place or places where the principal, any premium and any interest
on the Debt Securities will be payable;
-- the terms and conditions upon which the Debt Securities may, pursuant
to any optional or mandatory redemption provisions, be redeemed;
-- any mandatory or optional sinking fund or similar provisions or
provisions for mandatory redemption or purchase at the option of the
Holder;
-- if other than denominations of $1,000 or any multiple of such amount,
the denominations in which the Debt Securities will be issuable;
-- if the principal amount payable at the maturity will not be
determinable as of one or more dates prior to maturity, the amount
which shall be deemed to be the principal amount as of any such date;
-- any index, formula or other method used to determine the amount of
payment of principal, any premium or interest on the Debt Securities;
-- if other than the currency of the United States of America, the
currency of payment of principal or
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any premium or interest on the Debt Securities;
-- if, at the election of USX or the Holder, the principal or any
premium or interest on any Debt Securities is to be payable in one or
more currencies or currency units other than those in which the Debt
Securities are stated to be payable, the terms and conditions upon
which such election is to be made and the amount so payable;
-- if other than the full principal amount of the Debt Securities, the
portion of the principal amount of such Debt Securities which will be
payable upon the declaration of acceleration of the maturity thereof;
-- the applicability of the defeasance provisions described below under
"--Satisfaction and Discharge; Defeasance and Covenant Defeasance,"
(page 12) and the conditions under which such provisions will apply;
-- if the Debt Securities will be issuable only in the form of a Global
Security as described below under "--Global Securities," (page 12)
the depositary with respect to the Debt Securities;
-- any Event of Default with respect to the Debt Securities of such
series, in addition to ones set forth in the Indenture;
-- any additional, modified or different covenants applicable to the
Debt Securities;
-- the Change of Control Purchase Price or Prices applicable to a Change
in Control described below under "--Purchase of senior Debt
Securities upon a Change of Control" (page 8); and
-- any other terms of the Debt Securities.
TRANSFER
You may present your Debt Securities for exchange or registration of
transfer in the manner and at the places described in the Prospectus Supplement.
These services will be provided without charge, other than any tax or other
governmental charge that may be payable.
CERTAIN COVENANTS OF SENIOR DEBT SECURITIES
Senior Debt Securities have the following covenants:
CREATION OF CERTAIN LIENS
If we mortgage or encumber as security for money borrowed
(1) 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
(2) 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
USX in its discretion,
we will secure each series of senior debt equally and ratably with all
obligations secured by the Mortgage then being given. This covenant will not
apply in the case of any Mortgage:
-- existing on the date of the Indenture;
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-- incurred in connection with the acquisition or construction of any
property; the assumption of any Mortgage previously existing on
acquired property or any Mortgage existing on the property of any
entity when it becomes a subsidiary of USX;
-- in favor of the United States, or any State, or instrumentality of
either, to secure payments to USX pursuant to the provisions of any
contract or any statute;
-- in favor of the United States, any State, or instrumentality of
either, to secure borrowings for the purchase or construction of the
property Mortgaged;
-- in connection with a transfer of oil or gas in place for a period of
time commonly referred to as an "oil payment" or "production
payment";
-- to secure the cost of the repair, construction, improvement,
alteration, exploration, development or drilling of such property;
-- on various facilities and personal property relating to oil and gas
properties described in (2) above;
-- on any property included under clause (2) above arising in connection
with the sale of accounts receivable resulting from the sale of oil
or gas at the wellhead; or
-- that is a renewal of or substitution for any Mortgage permitted under
the preceding clauses.
In addition to the foregoing, we may grant Mortgages or incur liens on
property covered by the restriction described above so long as the net book
value of the property so encumbered, together with all property subject to the
restriction on certain sale and leasebacks described below, does not at the time
such Mortgage or lien is granted exceed five percent (5%) of Consolidated Net
Tangible Assets. (Section 1005).
"Consolidated Net Tangible Assets" means the aggregate value of all assets
of USX and its subsidiaries after deducting:
(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 USX's most recent audited consolidated financial statements).
(Section 101).
LIMITATIONS ON CERTAIN SALE AND LEASEBACKS
We are generally prohibited from selling and leasing back the properties
described in clauses (1) and (2) above under "--Creation of Certain Liens" (page
6). However, this covenant will not apply if:
-- the lease is to a subsidiary (or to USX in the case of a subsidiary);
-- the lease is for a temporary period and will not be renewed;
-- we could Mortgage such property without equally and ratably securing
the senior Debt Securities;
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-- the transfer is incident to or necessary to effect any operating,
farm out, farm in, unitization, or other agreement of the same
general nature relating to the acquisition, exploration, maintenance,
development and operation of oil and gas properties in the ordinary
course of business or as required by regulatory agencies having
jurisdiction over the property; or
-- we promptly inform the Trustee of the sale, the net proceeds of such
sale are at least equal to the fair value of the property and within
180 days of the sale the net proceeds are applied to the retirement
or in-substance defeasance of our funded debt (subject to reduction,
under specified circumstances). (Section 1006).
As of the date of this Prospectus, neither USX nor any subsidiary of USX
has any property referred to in either clause (1) or (2) above under "--Creation
of Certain Liens" (page 6) which has been determined by the Board of Directors
of USX to be a principal property.
MERGER AND CONSOLIDATION
We may not merge or consolidate with any other entity or sell or convey
all or substantially all of our assets except as follows:
(a) USX shall be the continuing corporation or the successor corporation
(if other than USX) shall be a U. S. corporation which expressly
assumes the obligations of USX under the Indenture and the Debt
Securities, and
(b) Immediately after such merger, consolidation, sale or conveyance, no
Event of Default shall have occurred and be continuing. (Section 801).
Upon the assumption by the successor of the obligations under the
Indenture, the successor will be substituted for USX which will be relieved of
any further obligation under the Indenture and the Debt Securities. (Section
802).
PURCHASE OF SENIOR DEBT SECURITIES UPON A CHANGE IN CONTROL
In the event of any Change in Control (as defined below) of USX, each
Holder of Debt Securities will have the right to require USX to purchase all of
that Holder's senior Debt Securities. We must purchase the senior Debt
Securities 35 Business Days after the Change in Control (the "Change in Control
Purchase Date") at a cash price equal to:
(1) 100% of the principal amount together with accrued interest to such
Change in Control Purchase Date; or
(2) such other price as may be specified in the terms of such senior Debt
Securities (the "Change in Control Purchase Price").
A "Change in Control" of USX is deemed to have occurred if:
(x) any "person" or "group" of persons acquire beneficial ownership of at
least 35% of the outstanding Voting Power of USX,
(y) during any period of twenty-five consecutive months, individuals who
at the beginning of such period were directors of USX cease to
constitute a majority of the board of directors of USX, or
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(z) any person or group of related persons shall acquire all or
substantially all of the assets of USX.
A Change in Control shall not be deemed to have occurred if USX shall have
merged or consolidated with or transferred all or substantially all of its
assets to another entity in compliance with the provisions of Section 801 of the
Indenture (relating to when USX may merge or transfer assets) and the surviving
or successor or transferee entity is no more leveraged than was USX immediately
prior to such event. (Section 1007).
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 (or members'
equity, as the case may be), 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.
The term "substantially all" in clause (z) above has not been quantified
in the Indenture for purposes of defining Change in Control and, depending upon
the factual circumstances, there may be uncertainty as to when a Change in
Control has occurred for purposes of determining the rights of Holders of senior
Debt Securities pursuant to this provision.
In the event a Change in Control occurs, USX intends to comply with any
applicable securities laws or regulations, including any applicable requirements
of Rule 14e-1 under the Exchange Act. The Change in Control purchase feature of
the senior Debt Securities may in certain circumstances make more difficult or
discourage a takeover of USX.
The Change in Control purchase feature, however, is not the result of
management's knowledge of any specific effort to accumulate shares of Common
Stock or to obtain control of USX by means of a merger, tender offer,
solicitation or otherwise, or part of a plan by management to adopt a series of
anti-takeover provisions.
The Change in Control purchase feature is similar to that contained in
other debt offerings of USX as a result of negotiations between USX and the
underwriters thereof.
Except as described above, the Change in Control purchase feature does not
afford Holders of the senior Debt Securities protection against possible adverse
effects of a reorganization, restructuring, merger or similar transaction
involving USX.
Although USX's existing indebtedness does not limit USX's ability to
purchase senior Debt Securities, USX's ability to purchase senior Debt
Securities in the future may be limited by the terms of any then existing
borrowing arrangements and by its financial resources.
EVENTS OF DEFAULT
An Event of Default is defined in the Indenture as being:
(1) failure to pay interest when due, continuing for 30 days;
(2) failure to pay the principal of or premium when due and payable;
(3) failure to pay the Change in Control Purchase Price when due and
payable;
(4) failure to deposit any sinking fund payment when due;
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(5) failure in the performance of any other covenant or warranty not
specifically dealt with in this section for a period of 90 days after
notice to us of such failure as provided in the Indenture;
(6) the occurrence of specified events of bankruptcy, insolvency, or
reorganization with respect to USX; or
(7) any other Event of Default provided with respect to the Debt
Securities of that series. (Section 501).
The Trustee is required to give Holders of the Debt Securities of any
series written notice of a default with respect to such series as provided by
the Trust Indenture Act. In the case of any default of the character described
above in clause (5) of this section, no such notice to Holders shall be given
until at least 60 days after the occurrence of such default. (Section 602).
USX is required annually to deliver to the Trustee an officer's
certificate stating whether or not the signers have any knowledge of any default
by USX in its performance and observance of any terms, provisions and conditions
of the Indenture. (Section 1004).
In case an Event of Default (other than an Event of Default specified
under clause (6) above) shall occur and be continuing with respect to any
series, the Trustee or the Holders of not less than 25% in principal amount of
the Debt Securities of such series then Outstanding may declare the Debt
Securities of such series to be due and payable. (Section 502).
Any past default with respect to a series of Debt Securities may be waived
on behalf of all Holders of the series of Debt Securities by at least a majority
(in principal amount) of the Holders of the Outstanding Debt Securities of that
series, except a default
(A) in the payment of principal, premium or interest on any Debt Security
of the series, or
(B) respecting a covenant which cannot be modified without the consent of
the Holder of each Outstanding Debt Security of the series affected.
Any default which is so waived will cease to exist and any Event of Default
arising from this default will be deemed to be cured for every purpose under the
Indenture; but no such waiver will extend to any subsequent or other default or
impair any right arising from a subsequent or other default. (Section 513).
With respect to the Indenture, no Holder may sue unless
(a) the Holder has given prior written notice to the Trustee of a
continuing Event of Default with respect to a series of Debt
Securities held by the Holder;
(b) not less than 25% (in principal amount) of the Holders of Debt
Securities of that series have made a written request to the Trustee
to sue respecting the Event of Default;
(c) reasonable indemnity against costs, expenses and liabilities to be
incurred with the above request has been offered by the Holders making
the request;
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(d) the Trustee for 60 days after its receipt of the above notice, request
and offer of indemnity has failed to sue; and
(e) no direction inconsistent with the above request has been given to the
Trustee during the above 60 day period by the Holders of a majority
(in principal amount) of the Debt Securities of that series.
It is intended that rights provided for Holders under the Indenture are for the
equal and ratable benefit of all such Holders. (Section 507).
MODIFICATION OF THE INDENTURE
We and the Trustee may modify the Indenture without the consent of the
Holders of the Debt Securities for one or more of the following purposes:
(1) to evidence the succession of another person to USX;
(2) to add to covenants or provisions for the benefit of the Holders of
Debt Securities or to surrender any right or power conferred upon USX
by the Indenture;
(3) to add additional events of default for the benefit of Holders of all
or any series of Debt Securities;
(4) to add or change provisions of the Indenture to allow the issuance of
Debt Securities in other forms;
(5) to add to, change or eliminate any of the provisions of the Indenture
respecting one or more series of Debt Securities under certain
conditions specified in the Indenture;
(6) to secure the Debt Securities pursuant to the requirements of the
Indenture or otherwise;
(7) to establish the form or terms of Debt Securities of any series as
permitted by the Indenture;
(8) to evidence the appointment of a successor Trustee; or
(9) to cure any ambiguity or to correct or supplement any provision of the
Indenture which may be defective or inconsistent with any other
provision in the Indenture, or to make any other provisions with
respect to matters arising under the Indenture as shall not adversely
affect the interests of the Holders of Securities of any series in any
material respect. (Section 901).
USX and the Trustee may otherwise modify the Indenture or any supplemental
indenture with the consent of the Holders of not less than 66 2/3% in aggregate
principal amount of each series of Debt Securities affected. However, without
the consent of the Holder of each Outstanding Debt Security affected, no
modification may:
(a) change the fixed maturity or reduce the principal amount, reduce the
rate or extend the time of payment of any premium or interest hereon,
or change the currency in which the Debt Securities are payable, or
adversely affect any right of the Holder of any Debt Security to
require USX to repurchase the Debt Security, or
(b) reduce the percentage of Debt Securities required for consent to any
such modifications or supplemental indenture. (Section 902).
11
<PAGE> 13
SATISFACTION AND DISCHARGE; DEFEASANCE AND COVENANT DEFEASANCE
The Indenture shall be satisfied and discharged if:
(1) USX delivers to the Trustee all Debt Securities then outstanding for
cancellation; or
(2) all Debt Securities have become due and payable or are to become due
and payable within one year or are to be called for redemption within
one year and USX deposits an amount of cash sufficient to pay the
principal, premium, if any, and interest to the date of maturity or
redemption. (Section 401).
The Indenture provides that a defeasance provision may be made applicable
to the Debt Securities of a series. If applicable, we may elect either:
(A) to defease and be discharged from our obligations with respect to any
Debt Security of such series ("Defeasance"); or
(B) to be released from certain of our obligations with respect to any
Debt Security of such series ("Covenant Defeasance")
upon the deposit with the Trustee of money and/or U.S. or Foreign Government
Obligations in an amount sufficient to pay the principal, any premium and any
interest on such Debt Security, on the scheduled due dates therefor. In the case
of Defeasance, the Holders of such Debt Securities are entitled to receive
payments in respect of such Debt Securities solely from such Trust. (Article
Thirteen).
GLOBAL SECURITIES
The Debt Securities of a series may be issued in whole or in part in the
form of one or more global certificates that will be deposited with a depositary
identified in a prospectus supplement. Unless it is exchanged in whole or in
part for Debt Securities in definitive form, a global certificate may generally
be transferred only as a whole unless it is being transferred to certain
nominees of the depositary.
Unless otherwise stated in any prospectus supplement, The Depositary Trust
Company, New York, New York ("DTC") will act as depositary. Beneficial interests
in global certificates will be shown on, and transfers of global certificates
will be effected only through, records maintained by DTC and its participants.
SUBORDINATED DEBT SECURITIES
Although the Indenture and the indenture relating to subordinated Debt
Securities are generally similar and many of the provisions discussed above
pertain to both senior and subordinated Debt Securities, there are many
substantive differences between the two. This section discusses some of those
differences.
SUBORDINATION
Subordinated Debt Securities will be subordinate, in right of payment, to
all Senior Debt. "Senior Debt" is defined to mean, with respect to USX, the
principal, premium, if any, and interest on
(1) all indebtedness of USX, whether outstanding on the date hereof or
hereafter created, incurred or assumed, which is for money borrowed,
or evidenced by a note or similar instrument given in connection with
the acquisition of
12
<PAGE> 14
any business, properties or assets, including securities,
(2) any indebtedness of others of the kinds described in the preceding
clause (1) for the payment of which USX is responsible or liable
(directly or indirectly, contingently or otherwise) as guarantor or
otherwise and
(3) amendments, renewals, extensions and refundings of any indebtedness
described in the preceding clauses (1) or (2), unless in any
instrument or instruments evidencing or securing such indebtedness or
pursuant to which the same is outstanding, or in any such amendment,
renewal, extension or refunding, it is expressly provided that such
indebtedness is not superior in right of payment to the Debt
Securities of any series.
DIFFERENCE BETWEEN SUBORDINATED AND SENIOR DEBT COVENANTS AND EVENTS OF
DEFAULT
Debt Securities issued pursuant to the indenture relating to subordinated
Debt Securities will not have the advantage of all of the covenants and Events
of Default provided in the Indenture relating to the senior Debt Securities. For
example, all of the covenants discussed under "--Certain Covenants of senior
Debt Securities" (beginning on page 6) and "--Purchase of senior Debt Securities
upon a Change in Control" (beginning on page 8) are not applicable to securities
issued pursuant to the indenture relating to subordinated Debt Securities. Also,
the event of default discussed in clause (3) under "--Events of Default" (page
9) is not available to Debt Securities issued pursuant to the indenture relating
to subordinated Debt Securities.
TERMS OF SUBORDINATED DEBT SECURITIES MAY CONTAIN CONVERSION OR EXCHANGE
PROVISIONS
The Prospectus Supplement for a particular series of subordinated Debt
Securities will include some or all of the specific terms discussed above under
"--General." Additionally, the Prospectus Supplement may contain subordination
provisions (to the extent that such provisions might differ from those provided
in the indenture relating to subordinated Debt Securities) and, if applicable,
conversion or exchange provisions. See "Convertible or Exchangeable Securities,"
below (page 31).
MODIFICATION OF THE INDENTURE RELATING TO SUBORDINATED DEBT SECURITIES
The indenture relating to subordinated Debt Securities may be modified by
USX and the Trustee without the consent of the Holders of the subordinated Debt
Securities for one or more of the purposes discussed above under "--Modification
of the Indenture," (page 11). Additionally, USX and the Trustee may modify the
indenture relating to subordinated Debt Securities to make provision with
respect to any conversion or exchange rights as contemplated in that indenture.
DEFEASANCE OF SUBORDINATED DEBT SECURITIES
The subordination of the Debt Securities is expressly made subject to the
provisions for defeasance and covenant defeasance (for similar provisions, see
"--Satisfaction and Discharge; Defeasance and Covenant Defeasance," page 12).
Upon the effectiveness of any such defeasance or covenant defeasance, the Debt
Securities then outstanding shall cease to be subordinated.
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<PAGE> 15
GOVERNING LAW
The Indenture and the Debt Securities will be governed by, and interpreted
according to, the law of the State of New York.
CONCERNING THE TRUSTEES
Harris Trust and Savings Bank will be the Trustee under each of the
indentures (the Indenture and the indenture relating to subordinated Debt
Securities). USX and its subsidiaries maintain ordinary banking relationships,
including loans and deposit accounts, with the Trustee and anticipate that they
will continue to do so.
If a Trustee has, or acquires, a conflicting interest, the Trustee must
eliminate the conflicting interest or resign. (Section 608). The Indenture and
the indenture relating to subordinated Debt Securities contain provisions
regarding the resignation and removal of the Trustee and the appointment of a
successor Trustee. (Sections 610 and 611).
USX CAPITAL STOCK OVERVIEW
The following is an overview of the outstanding capital stock of USX.
Descriptions of USX's Preferred Stock and Common Stock follow this Section. For
complete descriptions, you should read the Restated Certificate of Incorporation
and the Rights Agreement between USX and ChaseMellon Shareholder Services,
L.L.C., a New Jersey limited liability company, as Rights Agent, which have been
filed as exhibits to the Registration Statement of which this Prospectus is a
part.
The authorized and outstanding capital stock on September 30, 1999
consists of:
<TABLE>
<CAPTION>
AUTHORIZED OUTSTANDING
----------- -----------
<S> <C> <C>
PREFERRED STOCK......... 40 Million
6.50% Cumulative
Convertible
Preferred........... 3 Million 2.8 million
Series A Junior
Preferred........... 8 Million None
COMMON STOCK............ 800 Million
Marathon.............. 550 Million 310 million
Steel................. 200 Million 88 million
Delhi................. 50 Million None
</TABLE>
The outstanding Delhi Stock was redeemed in January 1998, and will not be
used in the future, so we have not included any further discussion of it.
The Series A Junior Preferred Stock is authorized in connection with our
Stockholders Rights Plan which is discussed below under "Description of the
Common Stock--Rights Agreement" (beginning on page 21).
There are also securities issued by USX subsidiaries that are convertible
into USX securities and are outstanding at September 30, 1999:
(1) 3.9 million shares of 6.75% Mandatorily Redeemable Convertible
Preferred Securities of a subsidiary trust that are convertible into
4.3 million shares of Steel Stock; and
(2) 293,811 exchangeable shares of a Canadian subsidiary of Marathon Oil
Company, exchangeable on a one-for-one basis into Marathon Stock. The
exchangeable shares were issued in connection with the acquisition of
Tarragon Oil and Gas (now named Marathon Canada Limited) in August
1998.
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<PAGE> 16
DESCRIPTION OF THE PREFERRED STOCK
The authorized Preferred Stock may be issued without the approval of the
holders of Common Stock in one or more series. Each series will have the
designation, powers, preferences and other rights and limitations as stated in a
resolution adopted by the Board and as described in the appropriate Prospectus
Supplement.
The future issuance of Preferred Stock may have the effect of delaying,
deferring or preventing a change in control of USX.
Holders of the 6.50% Cumulative Convertible Preferred Stock ("6.50%
Preferred") are entitled to receive cumulative annual dividends at the rate of
$3.25 per share, payable quarterly. It is currently redeemable at the option of
USX, in whole or in part, for cash, at a price of $51.30 per share, and at
prices declining annually on each April 1 to an amount equal to $50.00 per share
on and after April 1, 2003, plus, in each case, an amount equal to accrued and
unpaid dividends to the redemption date.
If USX disposes of the U. S. Steel Group or substantially all of its
assets, all of the 6.50% Preferred is required to be redeemed for $50.00 per
share, plus dividends accrued and unpaid to the redemption date. It is also
required to be redeemed under certain other limited circumstances.
The shares of 6.50% Preferred are convertible at any time at the option of
the holder into shares of Steel Stock at a conversion price of $46.125 per share
of Steel Stock (equivalent to a conversion rate of 1.084 shares of Steel Stock
for each share of 6.50% Preferred), subject to adjustment in certain
circumstances.
The holders of the 6.50% Preferred have no vote except certain class votes
in limited circumstances.
Upon the dissolution, liquidation or winding-up of USX, the holders of the
6.50% Preferred are entitled to receive $50 per share, plus all accrued and
unpaid dividends, out of the assets of USX available for distribution to
stockholders, before any payment or distribution is made on Common Stock.
15
<PAGE> 17
USX COMMON STOCK SUMMARY
The following is a summary of the terms of the Common Stock. A more
detailed description of certain of the terms follows and a complete description
can be found in the Restated Certificate of Incorporation and other documents
incorporated by reference in this Prospectus. Capitalized terms used in this
summary have the respective meanings ascribed to them elsewhere in this
Prospectus.
<TABLE>
<CAPTION>
USX COMMON STOCK
--------------------------------------------------------------------------
USX-MARATHON GROUP USX-U. S. STEEL GROUP
COMMON STOCK COMMON STOCK
------------------------------------ ------------------------------------
<S> <C> <C>
BUSINESS: Energy business. Steel business.
NUMBER OF SHARES 310,078,463 88,369,115
OUTSTANDING AS OF
SEPTEMBER 30, 1999:
DIVIDENDS: Dividends on the Marathon Stock will Dividends on the Steel Stock will be
be paid at the discretion of the paid at the discretion of the Board
Board based primarily upon the based primarily upon the long-term
long-term earnings and cash flow earnings and cash flow capabilities
capabilities of the Marathon Group, of the U. S. Steel Group, as well as
as well as on the dividend policies on the dividend policies of publicly
of publicly traded energy companies. traded steel companies. Dividends
Dividends will be payable out of all will be payable out of the lesser of
funds of USX legally available (1) all funds of USX legally
therefor. available therefor and (2) the
Available Steel Dividend Amount.
EXCHANGE AND REDEMPTION: USX may exchange the Marathon Stock USX may exchange the Steel Stock for
for shares of a wholly owned shares of a wholly owned subsidiary
subsidiary that holds all the assets that holds all the assets and
and liabilities of the Marathon liabilities of the U. S. Steel
Group. The effect of this exchange Group. The effect of this exchange
would be to spin off the Marathon would be to spin off the U. S. Steel
Group to holders of Marathon Stock. Group to holders of Steel Stock.
If USX sells all or substantially
all of the properties and assets of
the U. S. Steel Group, USX must
either: (1) pay a special dividend
to holders of Steel Stock equal to
the Net Proceeds; or (2) redeem
shares of Steel Stock having an
aggregate market Value closest to
the value of the Net Proceeds for an
amount equal to the Net Proceeds; or
(3) exchange each share of Steel
Stock for a number of shares of
Marathon Stock equal to 110% of the
ratio of the Market Values of one
share of Steel Stock to one share of
Marathon Stock.
VOTING RIGHTS: Except as otherwise described Except as otherwise described
herein, the Marathon Stock will vote herein, the Steel Stock will vote as
as a single class with the Steel a single class with the Marathon
Stock. The Marathon Stock will have Stock. Each share of Steel Stock
one vote per share. will have a variable number of votes
based upon the relative Market
Values of one share of Steel Stock
and one share of Marathon Stock, and
may have more than, less than or
exactly one vote per share.
LIQUIDATION: In the event of the liquidation of In the event of the liquidation of
USX, holders of Marathon Stock will USX, holders of Steel Stock will
share the funds, if any, remaining share the funds, if any, remaining
for distribution to common for distribution to common
stockholders with holders of Steel stockholders with holders of
Stock based upon the relative market Marathon Stock based upon the
capitalizations of each. relative market capitalizations of
each.
LISTING: NYSE under the symbol "MRO". NYSE under the symbol "X".
</TABLE>
16
<PAGE> 18
DESCRIPTION OF THE COMMON STOCK
GENERAL
See "USX Common Stock Summary" on the preceding page for a summary of
USX's Common Stocks.
As used in this discussion of USX's Common Stock:
"Market Value" of either class of Common Stock on any Business Day means
generally the average of the high and low reported sales prices on a Business
Day.
"Business Day" means each weekday on which any relevant class of Common
Stock is traded on a national stock exchange.
"Net Proceeds," as of any date, from any Disposition of any of the
properties and assets of the U. S. Steel Group means the gross proceeds of such
Disposition after reasonable provision for:
(a) any taxes payable by USX in respect of such Disposition,
(b) any taxes payable by USX in respect of any dividend or redemption
pursuant to a dividend or redemption paid to holders of Steel Stock in
connection with such Disposition,
(c) any transaction costs, and
(d) any liabilities (contingent or otherwise) of, or allocated to, the U.
S. Steel Group.
To the extent the proceeds of any Disposition include any securities or other
property other than cash, the Board of Directors will determine the value of
such securities or property. The Board will determine the amount needed to make
reasonable provision for the items listed above.
COMMON STOCK TERMS
DIVIDENDS--DIVIDENDS ON EACH CLASS OF COMMON STOCK ARE INTENDED TO BE PAID
BASED ON THE FINANCIAL CONDITION AND RESULTS OF OPERATIONS OF THE
RESPECTIVE GROUP.
The Board may, in its sole discretion, declare and pay dividends
exclusively on the Marathon Stock, or exclusively on the Steel Stock, or on both
classes in equal or unequal amounts, notwithstanding the respective amount of
funds available for dividends on each class, the respective voting and
liquidation rights of each class, the amount or prior dividends declared on each
class or any other factor.
Dividends may be paid on the Marathon Stock as determined by the Board out
of legally available funds of USX.
Dividends on the Steel Stock may be declared and paid only out of the
lesser of (1) legally available funds of USX and (2) the Available Steel
Dividend Amount.
The "Available Steel Dividend Amount," on any date, means either (a) or
(b):
(a) The greater of (1) or (2):
(1) an amount equal to
(x) $2.244 billion, the amount of stockholders' equity of USX at
December 31, 1990, assigned to the U. S. Steel Group, increased or
decreased after that date, as appropriate, to reflect:
-- Steel Net Income
-- any dividends or other distributions
-- repurchases or issuances of any shares of Steel Stock
17
<PAGE> 19
or any shares of Preferred Stock attributed to the U. S.
Steel Group, and
-- any other adjustments to stockholders' equity of the U. S.
Steel Group made in accordance with generally accepted
accounting principles,
less
(y) the sum of the aggregate par value of all outstanding Steel Stock
and the aggregate stated capital of all outstanding Preferred
Stock attributed to the U. S. Steel Group;
or
(2) the excess of the fair market value of the net assets of the U. S.
Steel Group over the sum of the aggregate par value of all
outstanding Steel Stock and the aggregate stated capital of all
outstanding Preferred Stock attributed to the U. S. Steel Group.
In the case of each of clauses (1) and (2) the amount is increased by an
amount equal to the effects of the recognition of the transition
obligation upon the adoption of SFAS No. 106 (including any amendments
thereto) and any cumulative effects of the adoption of SFAS No. 109
(including any amendments thereto) in 1992.
(b) In case there shall be no such amount, an amount equal to Steel Net
Income (if positive) for the fiscal year in which the dividend is
declared and/or the preceding fiscal year.
The Available Steel Dividend Amount as of June 30, 1999 was at least
$3.323 billion, as calculated under the preceding clause (a)(1).
Although net income and stockholders' equity of the U. S. Steel Group was
reduced by approximately $1.335 billion when USX adopted the accounting changes
required by SFAS No. 106 and SFAS No. 109 in 1992, such changes did not affect
cash flows of the U. S. Steel Group. Our Restated Certificate of Incorporation
provides that the amounts in each of clause (a)(1) and clause (a)(2) of the
definition of "Available Steel Dividend Amount" were adjusted to eliminate the
effects of such changes, as set forth above.
Clause (b) in the definition of "Available Steel Dividend Amount" will
permit the payment of dividends on the Steel Stock in any fiscal year if there
is positive Steel Net Income (as defined below) in such fiscal year or in the
preceding fiscal year or if the sum of Net Income, if any, in both such years is
positive. Any loss in either such year would not reduce positive Steel Net
Income, if any, in the other year for purposes of determining the applicable
limitation on dividends.
Such provision is comparable to Section 170 of the Delaware General
Corporation Law, which allows the payment of dividends on common stock of any
Delaware corporation in any fiscal year to the extent of consolidated net income
of the corporation for such fiscal year and/or the preceding fiscal year.
As used in this discussion of USX's Common Stocks, "Steel Net Income"
means the net income or loss of the U. S. Steel Group determined in accordance
with generally accepted accounting principles, including income and expenses of
USX attributed to the U. S. Steel
18
<PAGE> 20
Group, on a substantially consistent basis, including, without limitation,
corporate administrative costs, net interest and other financial costs and
income taxes.
EXCHANGE AND REDEMPTION--MARATHON STOCK MAY BE EXCHANGED FOR SHARES OF A
SUBSIDIARY OF USX TO WHICH USX WOULD HAVE TRANSFERRED ALL OF THE ASSETS
AND LIABILITIES OF THE MARATHON GROUP.
At any time after the transfer of all the assets and liabilities of the
Marathon Group to a wholly owned subsidiary of USX (the "Marathon Group
Subsidiary"), the Board may, in its sole discretion and by a majority vote of
the directors then in office, provided that there are sufficient legally
available funds of USX, exchange all of the outstanding shares of Marathon Stock
for all of the outstanding shares of the common stock of the Marathon Group
Subsidiary (the "Marathon Group Subsidiary Stock"), on a pro rata basis.
EXCHANGE AND REDEMPTION--STEEL STOCK MAY BE EXCHANGED FOR SHARES OF A
SUBSIDIARY OF USX TO WHICH USX WOULD HAVE TRANSFERRED ALL OF THE ASSETS
AND LIABILITIES OF THE U. S. STEEL GROUP. IN THE EVENT OF A DISPOSITION OF
ALL OR SUBSTANTIALLY ALL OF THE ASSETS OF THE U. S. STEEL GROUP, USX IS
REQUIRED TO (1) PAY A DIVIDEND, (2) REDEEM STEEL STOCK, OR (3) EXCHANGE
STEEL STOCK FOR MARATHON STOCK.
If USX transfers all the assets and liabilities of the U. S. Steel Group
to a wholly owned subsidiary of USX (the "U. S. Steel Group Subsidiary"), Steel
Stock may be exchanged, at the sole discretion of the Board, for all of the
outstanding stock of the U. S. Steel Group Subsidiary, on a pro rata basis.
In addition, upon the Disposition of substantially all of the properties
and assets of the U. S. Steel Group to any person, entity or group, USX shall,
within 60 days following the consummation of such Disposition:
(1) declare and pay a dividend to the holders of the Steel Stock in an
amount equal to the Net Proceeds of such Disposition,
(2) redeem the number of whole shares of Steel Stock having an aggregate
average Market Value in an amount equal to the Net Proceeds, or
(3) exchange each outstanding share of Steel Stock for a number of shares
of Marathon Stock equal to 110% of the average daily ratio of the
Market Value of one share of Steel Stock to the Market Value of one
share of Marathon Stock during such period.
For the purposes of this provision, "Substantially all of the properties
and assets of the U. S. Steel Group," as of any date, means a portion of such
properties and assets that represents at least 80% of either of the then-current
market value of, or the aggregate revenues for the immediately preceding twelve
fiscal quarterly periods of USX derived from, the properties and assets of the
U. S. Steel Group as of such date.
After any such special dividend or redemption pursuant to clauses (1) or
(2) in the second preceding paragraph, the Board may, by a majority vote of the
directors then in office, exchange each outstanding share of Steel Stock for a
number of shares of Marathon Stock equal to 110% of the Market Value Ratio.
19
<PAGE> 21
"Market Value Ratio," as of any date, means the highest of three formulas
for calculating the ratio of the Market Value of one share of the Steel Stock to
the Market Value of one share of the Marathon Stock.
In determining whether to effect such an exchange, the Board, in addition
to other matters, would likely consider whether the remaining properties and
assets of the U. S. Steel Group constitute a viable business. Other
considerations could include the number of shares of Steel Stock remaining
outstanding following any such redemption, the per share market price of the
Steel Stock following the payment of such a dividend or such a redemption and
the cost of maintaining stockholder accounts.
VOTING--SHARES OF MARATHON STOCK HAVE ONE VOTE PER SHARE. SHARES OF STEEL
STOCK WILL, WHEN VOTING WITH MARATHON STOCK, HAVE A NUMBER OF VOTES PER
SHARE BASED UPON THE TIME WEIGHTED AVERAGE RATIOS OF THE MARKET VALUE OF A
SHARE OF STEEL STOCK TO THE MARKET VALUE OF A SHARE OF MARATHON STOCK.
Except as set forth below, holders of both classes of Common Stock vote
together as a single class on all matters as to which all holders of Common
Stock are entitled to vote. See "--Special Considerations--Limited Separate
Voting Rights," page 27.
The approval of the holders of at least 66 2/3% of the outstanding shares
of each class, voting as a separate class, is necessary to:
(1) make any payment or distribution on the other class of Common Stock,
with
(A) proceeds from the disposition or any of the properties and
assets of the group to which the class relates, or
(B) any portion of an equity interest in a person, entity or group
that owns any of the properties and assets of the group to which
the class relates;
or
(2) use any proceeds from the Disposition of any of the properties and
assets of the group to which the class relates in any business of the
Corporation other than the group to which the class relates.
In spite of the foregoing, a vote is not required if proceeds are loaned at a
rate representative of actual borrowings and short-term investments by USX.
The vote or consent of the holders of a majority of all of the outstanding
shares of any class of Common Stock, voting as a separate class, is currently
required under Delaware law for any amendment to the Restated Certificate of
Incorporation that would increase or decrease the par value of the shares of
such class or alter or change the powers or special rights of the shares of such
class so as to affect them adversely.
The Restated Certificate of Incorporation provides that neither the
increase nor decrease of the authorized number of shares of any class of Common
Stock shall require a separate vote of any class. Thus, it is possible that the
holders of a majority of one class of Common Stock could constitute a majority
of the voting power of both classes and approve the increase or decrease of the
authorized amount of the other class of Common Stock without the approval of the
holders of such other class of Common Stock.
20
<PAGE> 22
The Restated Certificate of Incorporation also provides that unless the
vote or consent of a greater number of shares is required by law, the approval
of the holders of a majority of the outstanding shares of any class of Common
Stock, voting as a separate class, will be necessary to authorize the merger or
consolidation of USX into or with any other corporation if the merger or
consolidation would adversely affect the powers or special rights of such class
of Common Stock, either directly or indirectly.
LIQUIDATION--IN THE EVENT OF THE LIQUIDATION OF USX, HOLDERS OF EITHER
CLASS OF COMMON STOCK WILL BE ENTITLED TO RECEIVE A PORTION OF THE FUNDS
DISTRIBUTABLE TO HOLDERS OF BOTH CLASSES OF COMMON STOCK BASED UPON THE
RELATIVE MARKET CAPITALIZATION OF EACH.
The Restated Certificate of Incorporation provides that, in the event of a
dissolution, liquidation or winding-up of USX, whether voluntary or involuntary,
after payment of creditors and preferential amounts to holders of Preferred
Stock, the holders of outstanding shares of each class of Common Stock will
share the funds remaining for distribution to the holders of Common Stock based
upon the time-weighted average aggregate market capitalization of each such
class of Common Stock to the aggregate market capitalization of both classes of
Common Stock.
For purposes of the preceding sentence, "Market Capitalization" of any
class of Common Stock on any day shall mean the product of (1) the Market Value
of such class of Common Stock on such day and (2) the number of shares of such
class of Common Stock outstanding on such day.
DETERMINATIONS BY BOARD
Any determinations made by the Board under the foregoing provisions will
be final and binding on all stockholders of USX.
OTHER RIGHTS
The holders of Common Stock do not have any preemptive rights or any
rights to convert their shares into any other securities of USX.
STOCK TRANSFER AGENT AND REGISTRAR
USX maintains its own stock transfer department at the following address:
USX Corporation, Shareholders Services Department, 600 Grant Street, Room 611,
Pittsburgh, PA 15219-4776. Certificates representing shares can also be
presented for registration of transfer at ChaseMellon Shareholder Services, 120
Broadway, 13th Floor, New York, NY 10021.
ChaseMellon Shareholder Services, 4 Station Square, Pittsburgh, PA 15219
is the Registrar for all the Common Stock.
RIGHTS AGREEMENT
The following is a description of the terms of the Stockholders Rights
Plan set forth in the Rights Agreement between USX and ChaseMellon Shareholder
Services, L.L.C., a New Jersey limited liability company, as Rights Agent.
On September 28, 1999, the Board of Directors of USX adopted the
Stockholder Rights Plan and declared a dividend distribution of (a) one Steel
Right for each outstanding share of Steel Stock and (b) one Marathon Right for
each share of Marathon Stock to stockholders of record at the close of business
on October 9, 1999. Each Right entitles the registered holder to purchase from
USX a Unit consisting of one one-hundredth of a share
21
<PAGE> 23
of Series A Junior Preferred Stock, no par value, at a Purchase Price of $110 in
cash per Unit, subject to adjustment.
Initially, the Marathon Rights will be attached to all certificates
representing shares of Marathon Stock then outstanding and the Steel Rights will
be attached to all certificates representing shares of Steel Stock then
outstanding. Subject to certain exceptions specified in the Rights Agreement,
the Marathon Rights will separate from the certificates representing shares of
Marathon Stock and the Steel Rights will separate from the certificates
representing shares of Steel Stock when a Distribution Date occurs. Subject to
the exceptions specified in the Rights Agreement, a Distribution Date will occur
upon the earlier of
(1) 10 business days following the Stock Acquisition Date (which is the
date of a public announcement that an Acquiring Person has acquired,
or obtained the right to acquire, beneficial ownership of Voting
Stock -- Marathon Stock and Steel Stock are together referred to as
the Voting Stock -- representing 15% or more of the outstanding Voting
Power represented by the outstanding Voting Stock of USX), unless the
15% ownership occurs as a result of
(a) USX's calculation from time to time of the relative voting
rights of the Marathon Stock and Steel Stock,
(b) repurchases of stock by USX or
(c) certain inadvertent actions by institutional or certain other
stockholders,
or
(2) 10 business days (or a later date determined by the Board of
Directors) following the commencement of a tender offer or exchange
offer that would result in a person or group becoming an Acquiring
Person.
Until the Distribution Date,
(a) the Marathon Rights will be evidenced by the certificates representing
shares of Marathon Stock and the Steel Rights will be evidenced by the
certificates representing shares of Steel Stock and such Rights will
be transferred with and only with such certificates,
(b) new Marathon Stock and Steel Stock certificates issued after October
9, 1999 will contain a notation incorporating the Rights Agreement by
reference and
(c) the surrender for transfer of any certificates for Marathon Stock
outstanding will also constitute the transfer of the Marathon Rights
associated with the Marathon Stock represented by such certificate and
the surrender for transfer of any certificates for Steel Stock
outstanding will also constitute the transfer of the Steel Rights
associated with the Steel Stock represented by such certificate.
The Rights are not exercisable until the Distribution Date and will expire
at the close of business on October 9, 2009, unless this date is extended or the
Rights are earlier redeemed or exchanged by USX as described below. In the
Rights Agreement, USX reserves the right to require prior to the occurrence of a
Triggering
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<PAGE> 24
Event (discussed below) that, when Rights are exercised, a number of Rights be
exercised so that only whole shares (or fractions which are integral multiples
of one one-hundredth of a share) of Series A Junior Preferred Stock will be
issued.
As soon as practicable after the Distribution Date, Certificates for
Marathon Rights and Steel Rights will be mailed to holders of record of such
stock as of the close of business on the Distribution Date and, thereafter, the
separate Certificates for Marathon Rights alone will represent the Marathon
Rights and the separate Certificates for Steel Rights alone will represent the
Steel Rights. Except as otherwise determined by the Board of Directors, Rights
will be issued in connection with all shares of Voting Stock issued by USX,
including shares of Voting Stock issued upon the exercise of employee stock
options or the conversion of convertible securities issued after October 9, 1999
but prior to the Distribution Date.
In the event that a Person becomes an Acquiring Person, except pursuant to
a Qualifying Offer (discussed below), each holder of a Marathon Right or Steel
Right (other than the Acquiring Person and certain related parties) will
thereafter have the right to receive, upon exercise, Marathon Stock or Steel
Stock, respectively (or, in certain circumstances, cash, property or other
securities of USX) having a value equal to two times the exercise price of the
Marathon Right or Steel Right. However, Rights are not exercisable until the
Rights are no longer redeemable by USX, as discussed below. A Qualifying Offer
is an all-cash tender offer for all outstanding Marathon Stock and Steel Stock
that
(1) is fully financed,
(2) remains open for a period of at least 45 Business Days,
(3) results in the offeror owning shares of Voting Stock representing a
majority of the Voting Power as of the day immediately prior to the
date of announcement of such offer,
(4) assures a prompt second-step acquisition of shares not purchased in
the initial offer at the same price as the initial offer and
(5) meets certain other requirements.
For example, at an exercise price of $110 per Right, each Marathon Right
not owned by an Acquiring Person (or by certain related parties) following an
event set forth in the preceding paragraph would entitle its holder to purchase
$220 worth of Marathon Stock (or other consideration, as noted above), for $110.
Assuming that the Marathon Stock had a per share value of $55 at such time, the
holder of each valid Marathon Right would be entitled to purchase four shares of
Marathon Stock for $110. Similarly, holders of Steel Rights would be entitled to
purchase Steel Stock using the price of Steel Stock at the time in the above
formula.
If, at any time following the Stock Acquisition Date,
(a) USX engages in a merger or other business combination transaction in
which USX is not the surviving corporation,
(b) USX engages in a merger or other business transaction in which USX is
the surviving corporation and the Voting Stock is changed or
exchanged, or
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<PAGE> 25
(c) 50% or more of USX's assets or earning power is sold or transferred,
each holder of a Right (other than Rights that previously have been voided as
discussed above) shall have the right to receive, upon exercise, common stock of
the acquiring company having a value equal to two times the exercise price of
the Right. The events discussed in this paragraph and in the paragraph above
discussing a Qualifying Offer are referred to as the Triggering Events.
Up to and including the tenth business day after the Stock Acquisition
Date (subject to extension), USX may redeem the Rights in whole, but not in
part, at a price of $.01 per Right payable in stock or cash or any other form of
consideration deemed appropriate by the Board of Directors. This price is
referred to as the Redemption Price. Immediately upon the action of the Board of
Directors ordering redemption of the Rights, the Rights will terminate and the
only right of the holders of Rights will be to receive the Redemption Price.
The Board of Directors may, at its option, at any time after any Person
becomes an Acquiring Person, exchange all or part of the outstanding and
exercisable Marathon Rights (other than Rights held by the Acquiring Person and
certain related parties) for shares of Marathon Stock at an exchange ratio of
one share of Marathon Stock per Marathon Right (subject to certain anti-dilution
adjustments) and exchange all or part of the outstanding and exercisable Steel
Rights (other than Rights held by the Acquiring Person and certain related
parties) for shares of Steel Stock at an exchange ratio of one share of Steel
Stock per Steel Right (subject to certain anti-dilution adjustments). However,
the Board of Directors may not effect such an exchange at any time any Person or
group owns Voting Stock representing 50% or more of the Voting Power of USX then
outstanding. Immediately after the Board of Directors orders such an exchange,
the right to exercise the Marathon Rights and Steel Rights shall terminate and
the holders of Marathon Rights shall only be entitled to receive shares of
Marathon Stock at the applicable exchange ratio and the holders of Steel Rights
shall only be entitled to receive shares of Steel Stock at the applicable
exchange ratio.
Until a Right is exercised, the holder will have no rights as a
stockholder of USX, including, without limitation, the right to vote or to
receive dividends. While the distribution of the Rights will not be taxable to
stockholders or to USX, stockholders may, depending upon the circumstances,
recognize taxable income in the event that the Marathon Rights become
exercisable for Marathon Stock (or other consideration) of USX or for common
stock of the acquiring company as discussed above and the Steel Rights become
exercisable for Steel Stock (or other consideration) of USX or for common stock
of the acquiring company as discussed above.
Any of the provisions of the Rights Agreement may be amended by the Board
of Directors prior to the Distribution Date. After the Distribution Date, the
provisions of the Rights Agreement may be amended by the Board of Directors in
order to cure any ambiguity, to make changes which do not adversely affect the
interests of holders of Rights, or to shorten or lengthen any time period under
the Rights Agreement. No amendment may be made when the Rights are not
redeemable.
On October 9, 1999, each share of Marathon Stock outstanding received one
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<PAGE> 26
Marathon Right and each share of Steel Stock outstanding received one Steel
Right. So long as the Rights are attached to the Voting Stock of USX, additional
Rights shall be deemed to be delivered with Voting Stock issued or transferred
by USX in the future. Following the Distribution Date (when the Rights have
separated from the Voting Stock) and prior to the expiration or redemption of
the Rights, USX may issue Rights
(1) when it issues Voting Stock only if the Board deems it to be necessary
or appropriate, or
(2) in connection with the issuance of shares of Voting Stock
(a) pursuant to the exercise of stock options or
(b) under employee plans or
(c) upon the exercise, conversion or exchange of certain securities
of USX.
Eight million shares of Series A Junior Preferred Stock are reserved for
issuance upon exercise of the Rights.
The Rights may have certain anti-takeover effects. The Rights will cause
substantial dilution to a person or group that attempts to acquire USX in a
manner which causes the Rights to become discount Rights unless the offer is
conditional on a substantial number of Rights being acquired. The Rights,
however, should not affect any prospective offeror willing to make an offer at a
price that is fair and not inadequate and otherwise in the best interest of USX
and its stockholders. The Rights should not interfere with any merger or other
business combination approved by the Board of Directors since the Board of
Directors may, at its option, at any time until ten days following the Stock
Acquisition Date redeem all but not less than all of the then outstanding Rights
at the Redemption Price.
SPECIAL CONSIDERATIONS
The following discussion explains special factors arising from a capital
structure with separate classes of common stock that should be considered in
making an investment in the Marathon Stock or Steel Stock.
STOCKHOLDERS OF ONE COMPANY: FINANCIAL IMPACTS FROM ONE GROUP COULD AFFECT THE
OTHER GROUP
You will be a stockholder of one company. Financial impacts from one group
could adversely affect the other group. The financial statements of the Marathon
Group and the U. S. Steel Group separately report the assets, liabilities
(including contingent liabilities) and stockholders' equity of USX attributed to
each group. This attribution for the purpose of preparing the financial
statements for each group does not affect legal title to such assets or
responsibility for such liabilities. Holders of Marathon Stock and Steel Stock
are holders of Common Stock of USX, and continue to be subject to all of the
risks associated with an investment in USX and all of its businesses and
liabilities.
Financial impacts arising from one group that affect the overall cost of
USX's capital could affect the results of operations and financial condition of
the other group. In addition, net losses of either group, as well as dividends
and distributions on either class of Common Stock or any series of Preferred
Stock and repurchases of either class of Common Stock or any series of Preferred
Stock, will reduce the funds legally available for payment of dividends on the
Common Stock of both groups.
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<PAGE> 27
Accordingly, you are urged to read the USX consolidated financial
information in connection with the group financial information.
NO RIGHTS OR ADDITIONAL DUTIES WITH RESPECT TO THE GROUPS; POTENTIAL
CONFLICTS
Holders of Marathon Stock and Steel Stock have only the rights of
stockholders of USX, and, except as described under "Description of the Common
Stock" (beginning on page 17), holders of Common Stock are not provided any
rights specifically related to either group.
The existence of separate classes of Common Stock may give rise to
occasions when the interests of holders of Marathon Stock and Steel Stock may
diverge or appear to diverge. Examples include:
-- the optional exchange of the Steel Stock for the Marathon Stock at
the 10% premium;
-- the determination of the record date of any such exchange or for the
redemption of any Steel Stock;
-- the establishing of the date for public announcement of the
liquidation of USX;
-- the commitment of capital between the Marathon Group and the U. S.
Steel Group; and
-- the payment of dividends on one or both classes of Common Stock.
USX is not aware of any precedent involving the fiduciary duties of
directors of corporations having classes of common stock or separate classes or
series of capital stock, the rights of which are defined by reference to
specified operations of the corporation.
Principles of Delaware law established in cases involving differing
treatment of classes of capital stock or groups of holders of the same class of
capital stock provide that a board of directors owes an equal duty to all
stockholders regardless of class or series and does not have separate or
additional duties to any group of stockholders. Under these principles of
Delaware law and the "business judgment rule," absent abuse of discretion, a
good faith determination made by a disinterested and adequately informed USX
Board of Directors with respect to any matter having disparate impacts upon
holders of Marathon Stock and holders of Steel Stock would be a defense to any
challenge to such determination made by or on behalf of the holders of either
class of Common Stock.
Because the Board owes an equal duty to all stockholders regardless of
class, the Board is the appropriate body to deal with these matters. In order to
assist the Board in this regard, USX has formulated policies to serve as
guidelines for the resolution of matters involving a conflict or a potential
conflict, including policies dealing with
-- the payment of dividends,
-- limiting capital investment in the U. S. Steel Group over the long
term to its internally generated cash flow, and
-- allocation of corporate expenses and other matters.
The Board has been advised concerning the applicable law relating to the
discharge of its fiduciary duties to the common stockholders in the context of
the separate classes of Common Stock and has delegated to the Audit Committee of
the Board the responsibility to review matters which relate to this subject and
report to the Board.
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<PAGE> 28
LIMITED SEPARATE VOTING RIGHTS
Holders of shares of Marathon Stock and Steel Stock vote together as a
single class on all matters as to which all USX common stockholders are entitled
to vote. Holders of Marathon Stock and Steel Stock will have no rights to vote
on matters as a separate group except as described under "USX Common Stock" and
in certain limited circumstances as currently provided under Delaware law.
Separate meetings for the holders of each class of Common Stock will not be
held.
Accordingly, subject to certain exceptions, holders of shares of Marathon
Stock or shares of Steel Stock cannot bring a proposal to a vote of the holders
of Marathon Stock or holders of Steel Stock only, but are required to bring any
proposal to a vote of all holders of capital stock of USX entitled to vote
generally voting together as a single class.
The interests of the holders of the Marathon Stock and Steel Stock may
diverge or appear to diverge with respect to certain matters as to which such
holders are entitled to vote.
When a stockholder vote is taken on any matter as to which a separate vote
by any class would not be required, the holders of one class of Common Stock
could have more than the number of votes required to approve the matter and
could control the outcome of the vote.
The Restated Certificate of Incorporation provides that neither the
increase nor the decrease of the authorized number of shares of either class of
Common Stock requires a separate vote of either such class. Thus, it is possible
that the holders of a majority of either class of Common Stock could constitute
a majority of the voting power of both classes of Common Stock and approve the
increase or decrease of the authorized amount of the other class of Common Stock
without the approval of the holders of such other class of Common Stock.
On all matters where the holders of Common Stock vote together as a single
class, a share of Marathon Stock will have one vote and each share of Steel
Stock will have a fluctuating vote per share based on time-weighted average
ratios of their Market Values.
Assuming that the time-weighted averages of the Market Values of Marathon
Stock and Steel Stock were $27 and $25, respectively, the per share voting
rights of Marathon Stock and Steel Stock would be one vote and .926 votes per
share, respectively. If the Marathon Stock and the Steel Stock had those voting
rights as of September 30, 1999, the holders of Marathon Stock and Steel Stock
would have approximately 79% and 21%, respectively, of the total voting power of
USX.
LIMITATIONS ON POTENTIAL UNSOLICITED ACQUISITIONS
If the Marathon Group and the U. S. Steel Group were separate companies,
any person interested in acquiring one of them without negotiating with
management could seek to obtain control of it by means of a tender offer or
proxy contest. Because each group is not a separate company, any person
interested in acquiring only one group without negotiating with USX management
would be required to seek control of the voting power representing all of the
outstanding capital stock of USX entitled to vote on such acquisition. See
"Limited Separate Voting Rights" above (this page).
Because of fluctuations in the relative Market Values of shares of the
classes of Common Stock, the voting power of a
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<PAGE> 29
particular stockholder may be increased or decreased from that held at the time
the stockholder acquired the stock or from that held at the time of the previous
vote. The fluctuating voting powers of the classes of Common Stock may influence
a purchaser interested in acquiring and maintaining control of USX to acquire
holdings in both classes of Common Stock.
DIVIDENDS AND EARNINGS PER SHARE
The Board intends to declare and pay dividends on the Marathon Stock and
Steel Stock based on the financial condition and results of operations of the
respective group. Subject to any prior rights of the holders of Preferred Stock:
(a) dividends on Marathon Stock will be payable out of legally available
funds of USX (as defined under Delaware law); and
(b) dividends on Steel Stock will be payable out of the lesser of
(1) the Available Steel Dividend Amount and
(2) legally available funds.
In making its dividend decisions, the Board will rely on the financial
statements of each group. In determining its dividend policy, the Board will
consider, among other things, the long-term earnings and cash flow capabilities
of each group, as well as the dividend policies of similar publicly traded
companies.
The method of calculating earnings per share for the Marathon Stock and
the Steel Stock reflects the Board's intent that the separately reported
earnings and surplus of the Marathon Group and the U. S. Steel Group as
determined consistent with the Restated Certificate of Incorporation, are
available for payment of dividends to the respective classes of stock, although
legally available funds and liquidation preferences of these classes of stock do
not necessarily correspond with these amounts.
Delaware law requires that dividends on all classes of Preferred Stock and
Common Stock be limited to legally available funds of USX, which is determined
on the basis of the entire Corporation.
Distributions on the Marathon Stock and the Steel Stock would be precluded
if USX failed to pay dividends on any series of Preferred Stock. Net losses of
either group as well as dividends and distributions on either class of Common
Stock or any series of Preferred Stock and repurchases of either class of Common
Stock or any series of Preferred Stock, will reduce the funds of USX legally
available for payment of dividends on both classes of Common Stock.
Under Delaware law, a corporation may declare and pay dividends on its
capital stock either
(1) out of its surplus or
(2) in case there is no surplus, out of its net profits for the year in
which the dividend is declared and/or the preceding fiscal year.
"Surplus" is the amount by which the total assets of the corporation
exceed total liabilities and capital.
Capital for USX is the sum of
(a) the aggregate par value of the outstanding shares of Common Stock
(equal to $1 per share) and
(b) the aggregate stated capital of the outstanding shares of 6.50%
Preferred ($1 per share).
If the capital of a corporation is diminished by depreciation in the value
of its properties, or by losses, or otherwise, to an amount less than the
aggregate amount
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of capital represented by the outstanding stock of all classes having a
preference upon the distribution of assets, dividends may not be paid out of net
profits (that is pursuant to clause (2) above) until the deficiency in capital
shall have been repaired.
For purposes of determining surplus, the assets and liabilities of a
corporation are to be valued on the basis of market value.
POTENTIAL EFFECTS OF EXCHANGE AND REDEMPTION OF COMMON STOCK
Under various conditions, the Steel Stock may be exchanged at USX's option
for shares of Marathon Stock at a 10% premium. Any exchange of Steel Stock for
Marathon Stock would preclude holders of Steel Stock from retaining their
investment in a security reflecting USX's steel business.
MANAGEMENT AND ACCOUNTING POLICIES
MANAGEMENT POLICIES
The Board has adopted certain policies with respect to the Marathon Group
and the U. S. Steel Group including, without limitation, the intention to:
(1) limit capital expenditures of the U. S. Steel Group over the long term
to an amount equal to the internally generated cash flow of the U.S.
Steel Group, including funds generated by sales of assets of the U. S.
Steel Group,
(2) sell assets and provide services between the groups only on an
arm's-length basis, and
(3) treat funds generated by sale of Marathon Stock and Steel Stock and
securities convertible into such stock as assets of the respective
group.
ACCOUNTING MATTERS AND POLICIES
The Marathon Group and the U. S. Steel Group financial statements are
prepared in accordance with generally accepted accounting principles, and these
financial statements, taken together, comprise all of the accounts included in
the corresponding consolidated financial statements of USX.
The financial statements of the Marathon Group and the U. S. Steel Group
principally reflect the financial position and results of operations of the
businesses included in the group.
Consistent with the Restated Certificate of Incorporation and related
policies, group financial statements also include portions of USX's corporate
assets and liabilities (including contingent liabilities). Principal corporate
activities attributed to the groups and reflected in their financial statements
include financial activities, corporate general and administrative costs, common
stock transactions and income taxes.
MANAGEMENT AND ACCOUNTING POLICIES SUBJECT TO CHANGE
These policies may be modified or rescinded in the sole discretion of the
Board without approval of stockholders, although there is no present intention
to do so.
The Board may also adopt additional policies depending upon the
circumstances. Any determination of the Board to modify or rescind such
policies, or to adopt additional policies, including any decision that would
have disparate impacts upon holders of Marathon Stock or Steel Stock, would be
made by the Board in good faith
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<PAGE> 31
and in the honest belief that such decision is in the best interests of all
stockholders of USX. In addition, generally accepted accounting principles
require that any change in accounting policy be preferable to the previous
policy.
DESCRIPTION OF THE WARRANTS
USX may issue Warrants for the purchase of Debt Securities, Preferred
Stock, Marathon Stock or Steel Stock (each a "USX Security," and together the
"USX Securities"). Warrants may be issued independently or together with any USX
Security offered by any Prospectus Supplement and may be attached to or separate
from any such USX Security.
Each series of Warrants will be issued under a separate Warrant Agreement
to be entered into between USX and a bank or trust company, as Warrant Agent.
The Warrant Agent will act solely as an agent of USX in connection with the
Warrants and will not assume any obligation or relationship of agency or trust
for or with any holders or beneficial owners of Warrants. The following is a
summary of certain provisions of the Warrants. For a complete understanding of
the provisions of the Warrants, read the Warrant Agreement that will be filed
with the SEC in connection with the offering of such Warrants.
DEBT WARRANTS
The Prospectus Supplement relating to a particular issue of Warrants to
issue Debt Securities ("Debt Warrants") will describe the terms of such Debt
Warrants, including the following (if applicable):
(a) the title of such Debt Warrants;
(b) the offering price for such Debt Warrants;
(c) the aggregate number of such Debt Warrants;
(d) the designation and terms of the Debt Securities purchasable upon
exercise of such Debt Warrants;
(e) the designation and terms of the Debt Securities with which such Debt
Warrants are issued and the number of such Debt Warrants issued with
each such Debt Security;
(f) the date from and after which such Debt Warrants and any Debt
Securities issued therewith will be separately transferable;
(g) the principal amount of Debt Securities purchasable upon exercise of a
Debt Warrant and the price at which such principal amount of Debt
Securities may be purchased upon exercise (which price may be payable
in cash, securities, or other property);
(h) the date on which the right to exercise such Debt Warrants shall
commence and the date on which such right shall expire;
(i) the minimum or maximum amount of such Debt Warrants that may be
exercised at any one time;
(j) whether the Debt Warrants represented by the Debt Warrant
certificates, or Debt Securities that may be issued upon exercise of
the Debt Warrants, will be issued in registered or bearer form;
(k) information with respect to book-entry procedures;
(l) the currency, if other than U.S. dollars, in which the offering
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<PAGE> 32
price and the exercise price are payable;
(m) a discussion of material United States federal income tax
considerations;
(n) the redemption or call provisions applicable to such Debt Warrants;
and
(o) any additional terms of the Debt Warrants, including terms,
procedures, and limitations relating to the exchange and exercise of
such Debt Warrants.
STOCK WARRANTS
The Prospectus Supplement relating to any particular issue of Warrants to
issue Preferred Stock, Marathon Stock or Steel Stock will describe the terms of
such Warrants, including the following (if applicable):
(a) the title of such Warrants;
(b) the offering price for such Warrants;
(c) the aggregate number of such Warrants;
(d) the designation and terms of the Preferred Stock, Marathon Stock or
Steel Stock purchasable upon exercise of such Warrants;
(e) the designation and terms of the USX Securities with which such
Warrants are issued and the number of such Warrants issued with each
such USX Security;
(f) the date from and after which such Warrants and any USX Securities
issued therewith will be separately transferable;
(g) the number of shares of Preferred Stock, Marathon Stock or Steel Stock
purchasable upon exercise of a Warrant and the price at which such
shares may be purchased upon exercise;
(h) the date on which the right to exercise such Warrants shall commence
and the date on which such right shall expire;
(i) the minimum or maximum amount of such Warrants that may be exercised
at any one time;
(j) the currency, if other than U.S. dollars, in which the offering price
and the exercise price are payable;
(k) a discussion of material United States federal income tax
considerations;
(l) the antidilution provisions of such Warrants;
(m) the redemption or call provisions applicable to such Warrants; and
(n) any additional terms of the Warrants, including terms, procedures, and
limitations relating to the exchange and exercise of such Warrants.
CONVERTIBLE OR EXCHANGEABLE SECURITIES
If any Debt Security, Preferred Stock or Warrant is converted or exchanged
into any other security the conversion or exchange terms thereof will be set
forth in the Prospectus Supplement issued for the sale of such convertible or
exchangeable security. These terms will include some or all of the terms
described for Warrants.
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<PAGE> 33
PLAN OF DISTRIBUTION
USX may issue the offered securities to or through underwriters or
directly to purchasers, agents or dealers or through brokers. Offers to purchase
offered securities may be solicited directly by USX or brokers or dealers
designated by USX from time to time. Any such broker or dealer may be deemed to
be an underwriter as that term is defined in the Securities Act, and will be
named in the Prospectus Supplement, together with the compensation payable
thereto by USX in connection with the sale of the Offered Securities.
Underwriters, agents, brokers and dealers may be entitled under agreements
which may be entered into with USX to indemnification by USX against certain
civil liabilities, including liabilities under the Securities Act. Such
underwriters, agents, brokers and dealers may engage in transactions with, or
perform services for, USX in the ordinary course of business.
Also, USX may issue the offered securities in connection with
acquisitions. The Prospectus may be used in connection with the re-offering of
the offered securities by persons receiving such securities in connection with
an acquisition who may be deemed underwriters under the Securities Act of 1933.
The place and time of delivery for the offered securities in respect of
which this Prospectus is delivered will be set forth in the accompanying
Prospectus Supplement.
VALIDITY OF SECURITIES
The validity of the issuance of the offered securities will be passed upon
for USX by D. D. Sandman, Esq., General Counsel, Secretary and Senior Vice
President--Human Resources & Public Affairs of USX or by J. A. Hammerschmidt,
Esq., Assistant General Counsel--Corporate and Assistant Secretary of USX.
Messrs. Sandman and Hammerschmidt, in their respective capacities as set forth
above, are paid salaries by USX, participate in various employee benefit plans
offered by USX and own common stock of USX.
EXPERTS
The consolidated financial statements of USX as of December 31, 1998 and
1997 and for each of the three years in the period ended December 31, 1998
incorporated in this Prospectus by reference to USX's Annual Report on Form 10-K
for the year ended December 31, 1998 have been so incorporated in reliance on
the reports of PricewaterhouseCoopers LLP, independent accountants, given on the
authority of said firm as experts in auditing and accounting.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
<TABLE>
<S> <C>
Securities and Exchange Commission filing fee............... $278,000
Costs of printing and engraving............................. 100,000
Accounting fees and expenses................................ 10,000
Miscellaneous expenses...................................... 100,000
--------
Total.................................................. $488,000
========
</TABLE>
All of the foregoing expenses are estimated except for the Securities and
Exchange Commission filing fee.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article V of the Corporation's By-Laws provides that the Corporation shall
indemnify to the fullest extent permitted by law any person who is made or is
threatened to be made a party or is involved in any action, suit, or proceeding
whether civil, criminal, administrative or investigative by reason of the fact
that he is or was a director, officer, employee or agent of the Corporation or
is or was serving at the request of the Corporation as an officer, director,
employee or agent of another corporation, partnership, joint venture, trust,
enterprise, or nonprofit entity.
The Corporation is empowered by Section 145 of the Delaware General
Corporation Law, subject to the procedures and limitations stated therein, to
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative (other than an action by or in
the right of the Corporation) by reason of the fact that such person is or was
an officer, employee, agent or director of the Corporation, or is or was serving
at the request of the Corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by such person in connection with
such action, suit or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The Corporation may
indemnify any such person against expenses (including attorneys' fees) in an
action by or in the right of the Corporation under the same conditions, except
that no indemnification is permitted without judicial approval if such person is
adjudged to be liable to the Corporation. To the extent a director or officer is
successful on the merits or otherwise in the defense of any action referred to
above, the Corporation must indemnify him against the expenses which he actually
and reasonably incurred in connection therewith.
Policies of insurance are maintained by the Corporation under which
directors and officers of the Corporation are insured, within the limits and
subject to the limitations of the policies, against certain expenses in
connection with the defense of actions, suits or proceedings, and certain
liabilities which might be imposed as a result of such actions,
II-1
<PAGE> 35
suits or proceedings, to which they are parties by reason of being or having
been such directors or officers.
The Corporation's Restated Certificate of Incorporation provides that no
director shall be personally liable to the Corporation or its stockholders for
monetary damages for any breach of fiduciary duty by such director as a
director, except (i) for breach of the director's duty of loyalty to the
Corporation or its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii)
pursuant to Section 174 of the Delaware General Corporation Law, or (iv) for any
transaction from which the director derived an improper personal benefit.
ITEM 16. LIST OF EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(a) See Exhibit Index.
(b) All schedules are omitted because they are not applicable or the
required information is contained in the respective financial statements or
notes thereto.
ITEM 17. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to the registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement.
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
Provided however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed by
the registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference
herein.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the bona fide offering thereof.
(3) To remove from registration by means of post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) USX hereby undertakes that, for purposes of determining any liability
under the Securities Act of 1933, each filing of USX's annual report pursuant to
Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 that is
incorporated by reference in
II-2
<PAGE> 36
the Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
USX pursuant to the foregoing provisions, or otherwise, USX has been advised
that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act of
1933 and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by USX of
expenses incurred or paid by a director, officer or controlling person of USX in
the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, USX will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification is against public policy as expressed
in the Securities Act of 1933 and will be governed by the final adjudication of
such issue.
II-3
<PAGE> 37
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE REGISTRANT
CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL OF THE
REQUIREMENTS FOR FILING ON FORM S-3 AND HAS DULY CAUSED THIS REGISTRATION
STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY
AUTHORIZED, IN THE CITY OF PITTSBURGH, COMMONWEALTH OF PENNSYLVANIA, ON OCTOBER
12, 1999.
USX CORPORATION
(Registrant)
By /s/ KENNETH L. MATHENY
------------------------------------
Kenneth L. Matheny, Vice President
& Comptroller
Pittsburgh, Pennsylvania
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT, THIS REGISTRATION
STATEMENT HAS BEEN SIGNED BELOW BY THE FOLLOWING PERSONS IN THE CAPACITIES
INDICATED ON OCTOBER 12, 1999.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<S> <C>
* Chairman of the Board of Directors,
- ------------------------------------------ Chief Executive Officer and Director
Thomas J. Usher (Principal Executive Officer)
Vice Chairman
* & Chief Financial Officer
- ------------------------------------------ and Director
Robert M. Hernandez (Principal Financial Officer)
/s/ KENNETH L. MATHENY Vice President & Comptroller
- ------------------------------------------ (Principal Accounting Officer)
Kenneth L. Matheny
* Director
- ------------------------------------------
Neil A. Armstrong
* Director
- ------------------------------------------
Victor G. Beghini
* Director
- ------------------------------------------
Jeanette Grasselli Brown
Director
- ------------------------------------------
J. Gary Cooper
* Director
- ------------------------------------------
Charles A. Corry
* Director
- ------------------------------------------
Charles R. Lee
</TABLE>
II-4
<PAGE> 38
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<S> <C>
* Director
- ------------------------------------------
Paul E. Lego
Director
- ------------------------------------------
Ray Marshall
* Director
- ------------------------------------------
John F. McGillicuddy
* Director
- ------------------------------------------
John M. Richman
* Director
- ------------------------------------------
Seth E. Schofield
* Director
- ------------------------------------------
John W. Snow
* Director
- ------------------------------------------
Paul J. Wilhelm
* Director
- ------------------------------------------
Douglas C. Yearley
</TABLE>
*By /s/ KENNETH L. MATHENY
-----------------------------------------
Kenneth L. Matheny, Attorney-in-Fact
II-5
<PAGE> 39
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER
- -------
<S> <C>
1. Form of Underwriting Agreement.
4.1 Restated Certificate of Incorporation of USX dated May 1,
1999 as currently in effect. (Incorporated by reference to
Exhibit 3.1 to USX's Report on Form 10-Q for the quarter
ended June 30, 1999.)
4.2 By-laws of USX dated May 1, 1999, as amended and currently
in effect. (Incorporated by reference to Exhibit 3.2 to
USX's Report on Form 10-Q for the quarter ended June 30,
1999.)
4.3(a) Form of Indenture relating to senior Debt Securities with
Form of senior Debt Securities.
4.3(b) Form of Indenture relating to subordinated Debt Securities
with Form of subordinated Debt Securities.
4.4 Rights Agreement. (Incorporated by reference to the USX Form
8-A filed on September 28, 1999. File No. 1-5153.)
5. Opinion and consent of J.A. Hammerschmidt, Esq.
12.1 Computation of Ratio of Earnings to Combined Fixed Charges
and Preferred Stock Dividends. (Incorporated by reference to
USX's Report on Form 10-K for year ended December 31, 1998
and USX's Report on Form 10-Q for the quarter ended June 30,
1999.)
12.2 Computation of Ratio of Earnings to Fixed Charges.
(Incorporated by Reference to USX's Report on Form 10-K for
year ended December 31, 1998 and USX's Report on Form 10-Q
for the quarter ended June 30, 1999.)
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of J.A. Hammerschmidt, Esq. (Included in Exhibit 5.)
24. Powers of Attorney.
25. Form T-1 Statement of Eligibility under the Trust Indenture
Act of 1939, as amended, of Harris Trust and Savings Bank,
as Trustee with respect to the Indenture relating to senior
Debt Securities and as Trustee with respect to the Indenture
relating to subordinated Debt Securities.
</TABLE>
II-6
<PAGE> 1
Exhibit 1.
USX CORPORATION
DEBT SECURITIES
------------------------
UNDERWRITING AGREEMENT
[Name(S) and address(es) of
Representative(s)]
, 20__
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.
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
<PAGE> 2
"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:
(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
-2-
<PAGE> 3
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
Item 12 of Form S-3 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 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
-3-
<PAGE> 4
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 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
-4-
<PAGE> 5
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 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
-5-
<PAGE> 6
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 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 Restated 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
-6-
<PAGE> 7
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 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 electronic funds
transfer 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
-7-
<PAGE> 8
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 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
-8-
<PAGE> 9
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
(e) Except for debt securities which the Company has advised
the Representatives in writing prior to the date of the Pricing
Agreement for such Designated Securities, 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
-9-
<PAGE> 10
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 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.
-10-
<PAGE> 11
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 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:
-11-
<PAGE> 12
(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 as amended
or supplemented 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 counsel's knowledge, no
such proceedings are threatened by governmental authorities or
by others;
(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;
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<PAGE> 13
(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 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;
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<PAGE> 14
(ix) The documents incorporated by reference in the
Prospectus as amended or supplemented (other than the
financial statements and related schedules therein and other
financial data therein derived from the Company's accounting
records, 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
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 and other
financial data therein derived from the Company's accounting
records, 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; such counsel has no reason
to believe that, as of the effective date of the Registration
Statement, either the Registration Statement or the Prospectus
or, as of its date, any amendment or supplement thereto made
by the Company prior to the Time of Delivery (other than the
financial statements and related schedules therein and other
financial data therein derived
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<PAGE> 15
from the Company's accounting records, 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,
either the Registration Statement or the Prospectus, each 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 and other financial data therein derived from the
Company's accounting records, 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
the Time of Delivery (other than the financial statements and
related schedules therein and other financial data therein
derived from the Company's accounting records, 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
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<PAGE> 16
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 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
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<PAGE> 17
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
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
-17-
<PAGE> 18
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 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; provided, further, that the foregoing
indemnification, to the extent it relates to any actual or alleged untrue
statement or omission made in or from any Preliminary Prospectus but eliminated
or remedied in the Prospectus, shall not inure to the benefit of any
Underwriter from whom the person asserting such untrue statement or omission
purchased offered Securities if a copy of the Prospectus (excluding documents
incorporated therein by reference) was not sent or given to such person at or
prior to the written confirmation of the sale of such offered Securities to such
person if the Company has previously furnished copies thereof to such
Underwriter.
(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
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<PAGE> 19
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
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 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 case 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 this Section 8
consist of any Underwriter or any of
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<PAGE> 20
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 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
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<PAGE> 21
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 by reason of such untrue or alleged
untrue statement or omission or alleged omission. No person guilty of
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
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<PAGE> 22
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 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
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<PAGE> 23
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 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
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<PAGE> 24
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 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.
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<PAGE> 25
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.
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> 26
If the foregoing is in accordance with your understanding, please sign
and return to us _____ counterparts hereof.
Very truly yours,
USX Corporation
By:
-------------------------------
Name:
Title:
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<PAGE> 27
Accepted as of the date hereof:
BY:
-------------------
Name:
Title:
-27-
<PAGE> 28
PRICING AGREEMENT
, 20__
[Name(s) and Address(es)
of Representative(s)]
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 __________, 20__ (the "Underwriting Agreement"), between the
Company on the one hand and _______________________________, 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 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,
<PAGE> 29
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.
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<PAGE> 30
If the foregoing is in accordance with your understanding, please sign
and return to us ______ 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 request, but without warranty on the part of
the Representatives as to the authority of the signers thereof.
Very truly yours,
USX Corporation
By:
--------------------------------
Name:
Title:
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<PAGE> 31
Accepted as of the date hereof by:
[Name(s) and Signature(s) of Representative(s)]
BY:
---------------------
Name:
Title:
-4-
<PAGE> 32
SCHEDULE I
UNDERWRITER PRINCIPAL AMOUNT
OF DESIGNATED
SECURITIES TO BE
PURCHASED
----------------
[Name(s) of Underwriter(s)]
--------------
Total....................................
--------------
-5-
<PAGE> 33
SCHEDULE II
TITLE OF DESIGNATED SECURITIES:
Aggregate principal amount
PRICE TO PUBLIC:
% of the principal amount of the Designated
Securities[, plus accrued interest from ____ to ____ and accrued amortization,
if any, from ____ to ____].
SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE:
Immediately Available Funds
FORM OF DESIGNATED SECURITY:
INDENTURE:
Indenture, dated as of ______________, between the Company and Harris
Trust and Savings Bank, as Trustee.
MATURITY:
INTEREST RATE: %
INTEREST PAYMENT DATES:
REDEMPTION PROVISIONS:
SINKING FUND PROVISIONS:
DEFEASANCE PROVISIONS:
OTHER PROVISIONS:
TIME OF DELIVERY:
CLOSING LOCATION:
-6-
<PAGE> 34
NAMES AND ADDRESSES OF REPRESENTATIVES:
-7-
<PAGE> 35
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 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;
-1-
<PAGE> 36
(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 10-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 1O-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 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;
-2-
<PAGE> 37
(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 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 case as
compared with the comparable period of the preceding year and
with any other period of corresponding length specified by the
-3-
<PAGE> 38
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.
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.
-4-
<PAGE> 1
Exhibit 4.3(a)
USX CORPORATION, Issuer
AND
HARRIS TRUST AND SAVINGS BANK, Trustee
------------------------
INDENTURE
Dated as of ,
------------------------
Senior Debt Securities
<PAGE> 2
------------------------
CERTAIN SECTIONS OF THIS INDENTURE RELATING TO SECTIONS 310 THROUGH 318,
INCLUSIVE,
OF THE TRUST INDENTURE ACT OF 1939:
<TABLE>
<CAPTION>
TRUST INDENTURE
ACT SECTION INDENTURE SECTION
--------------- -----------------
<S> <C> <C>
sec. 310(a)(1).................................................... 609
(a)(2)...................................................... 609
(a)(3)...................................................... Not Applicable
(a)(4)...................................................... Not Applicable
(a)(5)...................................................... 609
(b)......................................................... 608
610
sec. 311(a)....................................................... 613
(b)......................................................... 613
sec. 312(a)....................................................... 701
702
(b)......................................................... 702
(c)......................................................... 702
sec. 313(a)....................................................... 703
(b)......................................................... 703
(c)......................................................... 703
(d)......................................................... 703
sec. 314(a)....................................................... 704
(a)(4)...................................................... 101
1004
(b)......................................................... Not Applicable
(c) (1)..................................................... 102
(c) (2)..................................................... 102
(c) (3)..................................................... Not Applicable
(d)......................................................... Not Applicable
(e)......................................................... 102
sec. 315(a)....................................................... 601
603
(b)......................................................... 602
(c)......................................................... 601
(d)(1)...................................................... 601
(d)(2)...................................................... 601
603
(d)(3)...................................................... 601
603
(e)......................................................... 514
sec. 316(a)....................................................... 101
(a)(1)(A)................................................... 502
512
(a) (1)(B).................................................. 513
(a) (2)..................................................... Not Applicable
(b)......................................................... 508
(c)......................................................... 104
sec. 317(a)(1).................................................... 503
(a)(2)...................................................... 504
(b)......................................................... 1003
sec. 318(a)....................................................... 107
(b)......................................................... 107
(c)......................................................... 101
107
</TABLE>
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to
be a part of the Indenture.
<PAGE> 3
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
PARTIES..................................................... 1
Recitals of the Company..................................... 1
ARTICLE ONE Definitions and Other Provisions of General
Application............................................... 1
SECTION 101. Definitions.................................... 1
"Act"..................................................... 1
"Affiliate"............................................... 1
"Authenticating Agent".................................... 2
"Board of Directors"...................................... 2
"Board Resolution"........................................ 2
"Business Day"............................................ 2
"Change in Control"....................................... 2
"Change in Control Purchase Date"......................... 2
"Change in Control Purchase Price"........................ 2
"Commission".............................................. 2
"Company"................................................. 2
"Company Request" or "Company Order"...................... 2
"Consolidated Net Tangible Assets"........................ 2
"Corporate Trust Office".................................. 2
"Corporation"............................................. 2
"Covenant Defeasance"..................................... 2
"Defaulted Interest"...................................... 2
"Defeasance".............................................. 2
"Depositary".............................................. 2
"Dollar".................................................. 2
"Establishment Action".................................... 2
"Event of Default"........................................ 3
"Exchange Act"............................................ 3
"Foreign Currency"........................................ 3
"Foreign Government Obligations".......................... 3
"Global Security"......................................... 3
"Holder".................................................. 3
"Indenture"............................................... 3
"Interest"................................................ 3
"Interest Payment Date"................................... 3
"Maturity"................................................ 3
"Mortgage"................................................ 3
"Notice of Default"....................................... 3
"Officers' Certificate"................................... 3
"Opinion of Counsel"...................................... 3
"Original Issue Discount Security"........................ 4
"Outstanding"............................................. 4
"Paying Agent"............................................ 4
"Person".................................................. 5
"Place of Payment"........................................ 5
"Predecessor Security".................................... 5
"Redemption Date"......................................... 5
"Redemption Price"........................................ 5
"Regular Record Date"..................................... 5
</TABLE>
i
<PAGE> 4
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
"Securities".............................................. 5
"Securities Act".......................................... 5
"Security Register" and "Security Registrar".............. 5
"Special Record Date"..................................... 5
"Stated Maturity"......................................... 5
"Subsidiary".............................................. 5
"Trust Indenture Act"..................................... 5
"Trustee"................................................. 5
"United States"........................................... 5
"U.S. Government Obligation".............................. 5
"Vice President".......................................... 5
"Voting Power"............................................ 6
"Voting Stock"............................................ 6
SECTION 102. Compliance Certificates and Opinions........... 6
SECTION 103. Form of Documents Delivered to Trustee......... 6
SECTION 104. Acts of Holders; Record Dates.................. 6
SECTION 105. Notices, Etc., to Trustee and Company.......... 7
SECTION 106. Notice to Holders; Waiver...................... 7
SECTION 107. Conflict with Trust Indenture Act.............. 8
SECTION 108. Effect of Headings and Table of Contents....... 8
SECTION 109. Successors and Assigns......................... 8
SECTION 110. Separability Clause............................ 8
SECTION 111. Benefits of Indenture.......................... 8
SECTION 112. Governing Law.................................. 8
SECTION 113. Legal Holidays................................. 8
ARTICLE TWO Security Forms.................................. 9
SECTION 201. Forms Generally................................ 9
SECTION 202. Form of Face of Security....................... 9
SECTION 203. Form of Reverse of Security.................... 10
SECTION 204. Form of Legend for Global Securities........... 13
SECTION 205. Form of Trustee's Certificate of
Authentication................................. 14
ARTICLE THREE The Securities................................ 14
SECTION 301. Amount Unlimited; Issuable in Series........... 14
SECTION 302. Denominations.................................. 16
SECTION 303. Execution, Authentication, Delivery and
Dating......................................... 16
SECTION 304. Temporary Securities........................... 17
SECTION 305. Registration, Registration of Transfer and
Exchange....................................... 17
SECTION 306. Mutilated, Destroyed, Lost and Stolen
Securities..................................... 19
SECTION 307. Payment of Interest; Interest Rights
Preserved...................................... 19
SECTION 308. Persons Deemed Owners.......................... 20
SECTION 309. Cancellation................................... 20
SECTION 310. Computation of Interest........................ 20
ARTICLE FOUR Satisfaction and Discharge..................... 21
SECTION 401. Satisfaction and Discharge of Indenture........ 21
SECTION 402. Application of Trust Money..................... 21
</TABLE>
ii
<PAGE> 5
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
ARTICLE FIVE Remedies....................................... 22
SECTION 501. Events of Default.............................. 22
SECTION 502. Acceleration of Maturity; Rescission and
Annulment...................................... 23
SECTION 503. Collection of Indebtedness and Suits for
Enforcement by Trustee......................... 24
SECTION 504. Trustee May File Proofs of Claim............... 24
SECTION 505. Trustee May Enforce Claims Without Possession
of Securities.................................. 24
SECTION 506. Application of Money Collected................. 25
SECTION 507. Limitation on Suits............................ 25
SECTION 508. Unconditional Right of Holders to Receive
Principal, Premium and Interest................ 26
SECTION 509. Restoration of Rights and Remedies............. 26
SECTION 510. Rights and Remedies Cumulative................. 26
SECTION 511. Delay or Omission Not Waiver................... 26
SECTION 512. Control by Holders............................. 26
SECTION 513. Waiver of Past Defaults........................ 26
SECTION 514. Undertaking for Costs.......................... 27
SECTION 515. Waiver of Usury, Stay or Extension Laws........ 27
ARTICLE SIX The Trustee..................................... 27
SECTION 601. Certain Duties and Responsibilities............ 27
SECTION 602. Notice of Defaults............................. 27
SECTION 603. Certain Rights of Trustee...................... 27
SECTION 604. Not Responsible for Recitals or Issuance of
Securities..................................... 28
SECTION 605. May Hold Securities............................ 28
SECTION 606. Money Held in Trust............................ 28
SECTION 607. Compensation, Reimbursement, Indemnification... 29
SECTION 608. Conflicting Interests.......................... 29
SECTION 609. Corporate Trustee Required; Eligibility........ 29
SECTION 610. Resignation and Removal; Appointment of
Successor...................................... 30
SECTION 611. Acceptance of Appointment by Successor......... 31
SECTION 612. Merger, Conversion, Consolidation or Succession
to Business.................................... 31
SECTION 613. Preferential Collection of Claims Against
Company........................................ 32
SECTION 614. Appointment of Authenticating Agent............ 32
ARTICLE SEVEN Holders' Lists and Reports by Trustee and
Company................................................... 33
SECTION 701. Company to Furnish Trustee Names and Addresses
of Holders..................................... 33
SECTION 702. Preservation of Information; Communications to
Holders........................................ 34
SECTION 703. Reports by Trustee............................. 34
SECTION 704. Reports by Company............................. 34
ARTICLE EIGHT Consolidation, Merger, Conveyance, Transfer or
Lease..................................................... 34
SECTION 801. Company May Consolidate, Etc., Only on Certain
Terms.......................................... 34
SECTION 802. Successor Substituted.......................... 35
SECTION 803. Secure with Lien on Property................... 35
SECTION 804. Trustee Entitled to Opinion.................... 35
ARTICLE NINE Supplemental Indentures........................ 36
SECTION 901. Supplemental Indentures Without Consent of
Holders........................................ 36
SECTION 902. Supplemental Indentures With Consent of
Holders........................................ 37
SECTION 903. Execution of Supplemental Indentures........... 37
SECTION 904. Effect of Supplemental Indentures.............. 37
SECTION 905. Conformity with Trust Indenture Act............ 38
SECTION 906. Reference in Securities to Supplemental
Indentures..................................... 38
</TABLE>
iii
<PAGE> 6
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
ARTICLE TEN Covenants....................................... 38
SECTION 1001. Payment of Principal, Premium and Interest.... 38
SECTION 1002. Maintenance of Office or Agency............... 38
SECTION 1003. Money for Securities Payments to Be Held in
Trust......................................... 38
SECTION 1004. Statement by Officers as to Default........... 39
SECTION 1005. Mortgage of Certain Property.................. 39
SECTION 1006. Sales and Lease Back of Certain Properties.... 40
SECTION 1007. Change in Control............................. 41
SECTION 1008. Change in Control Purchase Price.............. 44
SECTION 1009. Deposit of Change in Control Purchase Price... 44
SECTION 1010. Waiver of Certain Covenants................... 44
ARTICLE ELEVEN Redemption of Securities..................... 44
SECTION 1101. Applicability of Article...................... 44
SECTION 1102. Election to Redeem; Notice to Trustee......... 45
SECTION 1103. Selection by Trustee of Securities to Be
Redeemed...................................... 45
SECTION 1104. Notice of Redemption.......................... 45
SECTION 1105. Deposit of Redemption Price................... 46
SECTION 1106. Securities Payable on Redemption Date......... 46
SECTION 1107. Securities Redeemed in Part................... 46
ARTICLE TWELVE Sinking Funds................................ 46
SECTION 1201. Applicability of Article...................... 46
SECTION 1202. Satisfaction of Sinking Fund Payments with
Securities.................................... 47
SECTION 1203. Redemption of Securities for Sinking Fund..... 47
ARTICLE THIRTEEN Defeasance and Covenant Defeasance......... 47
SECTION 1301. Company's Option to Effect Defeasance or
Covenant Defeasance........................... 47
SECTION 1302. Defeasance and Discharge...................... 47
SECTION 1303. Covenant Defeasance........................... 48
SECTION 1304. Conditions to Defeasance or Covenant
Defeasance.................................... 48
SECTION 1305. Deposited Money and U.S. Government
Obligations to Be Held in Trust; Miscellaneous
Provisions.................................... 50
SECTION 1306. Reinstatement................................. 51
SIGNATURES AND SEALS........................................ 52
ACKNOWLEDGEMENTS............................................ 53
EXHIBIT A -- CHANGE IN CONTROL PURCHASE NOTICE.............. A-1
EXHIBIT B -- NOTICE OF WITHDRAWAL OF CHANGE IN CONTROL
PURCHASE NOTICE................................ B-1
</TABLE>
iv
<PAGE> 7
INDENTURE, dated as of , ,
between USX CORPORATION, a corporation duly organized and existing under the
laws of the State of Delaware (herein called the "Company"), having its
principal office at 600 Grant Street, Pittsburgh, Pennsylvania 15219-4776, and
HARRIS TRUST AND SAVINGS BANK, a banking corporation duly organized and existing
under the laws of the State of Illinois, as Trustee (herein called the
"Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its debentures, notes
or other evidences of indebtedness (herein called the "Securities"), to be
issued in one or more series as in this Indenture provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities
by the Holders thereof, it is mutually agreed, for the equal and proportionate
benefit of all Holders of the Securities or of series thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. DEFINITIONS.
For all purposes of this Indenture, except as otherwise expressly provided
or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the
singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles, and, except as otherwise expressly provided
herein, the term "generally accepted accounting principles" with
respect to any computation required or permitted hereunder shall
mean such accounting principles as are generally accepted at the
date of such computation;
(4) unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as the
case may be, of this Indenture; and
(5) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
"Act", when used with respect to any Holder, has the meaning specified in
Section 104.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
<PAGE> 8
"Authenticating Agent" means any Person authorized by the Trustee pursuant
to Section 614 to act on behalf of the Trustee to authenticate Securities of one
or more series.
"Board of Directors" means the board of directors of the Company or any
duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Company to have been duly adopted by the Board
of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day", when used with respect to any Place of Payment, means each
Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in that Place of Payment are authorized or obligated by law
or executive order to close.
"Change in Control" shall have the meaning assigned to it in Section
1007(a).
"Change in Control Purchase Date" shall have the meaning assigned to it in
Section 1007(a).
"Change in Control Purchase Price" shall have the meaning assigned to it in
Section 1007(a).
"Commission" means the Securities and Exchange Commission.
"Company" means USX Corporation or its successor.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, any Vice
Chairman of the Board, Chief Executive Officer, President, Chief Operating
Officer, Chief Financial Officer or any Vice President, and by its Treasurer,
any Assistant Treasurer, the Comptroller, any Assistant Comptroller, its
Secretary or any Assistant Secretary, and delivered to the Trustee.
"Consolidated Net Tangible Assets" means 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, patents and trademarks, unamortized debt
discounts 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).
"Corporate Trust Office" means the principal office of the Trustee at which
at any particular time its corporate trust business shall be administered, which
at the date of original execution of this Indenture is located at Harris Trust
and Savings Bank, 311 West Monroe, 12th Floor, Chicago, Illinois, 60606,
Attention: Indenture Trust Division, except that, with respect to presentation
of securities for payment or registration of transfers or exchanges, such term
means the office or agency of the affiliate of the Trustee located at c/o Harris
Trust Company of New York, 88 Pine Street, New York, New York 10005.
"corporation" includes associations, corporations, companies, limited
liability companies, and business trusts.
"Covenant Defeasance" has the meaning specified in Section 1303.
"Defaulted Interest" has the meaning specified in Section 307.
"Defeasance" has the meaning specified in Section 1302.
"Depositary" means, with respect to 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 Exchange Act that is designated to act as
Depositary for such Securities as contemplated by Section 301.
"Dollar" means the coin or currency of the United States as at the time of
payment is legal tender for the payment of public and private debts.
"Establishment Action" shall mean
2
<PAGE> 9
(i) a resolution duly adopted by the Company's Board of Directors
establishing one or more series of Securities and authorizing the
issuance of any Security or,
(ii) a resolution or action by a committee, officer or employee of the
Company, establishing one or more series of Securities and/or
authorizing the issuance of any Security, in each case, pursuant
to a resolution duly adopted by the Company's Board of Directors.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934 and any statute
successor thereto, in each case as amended from time to time.
"Foreign Currency" means a currency of the government, or governments, of
any country, or countries, other than the United States of America.
"Foreign Government Obligations" means, with respect to the Securities of
any series that are denominated in a Foreign Currency, securities that are
(i) direct obligations of the government, or governments, that issued
or caused to be issued such currency for the payment of which
obligations its, or their, full faith and credit is pledged or,
(ii) obligations of a Person controlled or supervised by and acting as
an agency or instrumentality of such government, or governments,
the timely payment of which is unconditionally guaranteed as a
full faith and credit obligation by such government, or
governments,
which, in either case under clauses (i) or (ii), are not callable or
redeemable at the option of the issuer thereof.
"Global Security" means a Security that evidences all or part of the
Securities of any series and bears the legend set forth in Section 204 (or such
legend as may be specified as contemplated by Section 301 for such Securities).
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Indenture" means this instrument as originally executed and as it may from
time to time be supplemented or amended by one or more indentures supplemental
hereto.
"interest", when used with respect to an Original Issue Discount Security
which by its terms bears interest only after Maturity, means interest payable
after Maturity.
"Interest Payment Date", when used with respect to any Security, means the
Stated Maturity of an installment of interest on such Security.
"Maturity", when used with respect to any Security, means the date on which
the principal of such 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.
"Mortgage" means, as the context may require, (i) to mortgage, pledge,
encumber or subject to a lien or (ii) a mortgage, pledge, encumbrance or lien.
"Notice of Default" means a written notice of the kind specified in Section
501(5).
"Officers' Certificate" means a certificate signed by the Chairman of the
Board, any Vice Chairman of the Board, Chief Executive Officer, President, Chief
Operating Officer, Chief Financial Officer or any Vice President, and by the
Treasurer, any Assistant Treasurer, the Comptroller, any Assistant Comptroller,
the Secretary or any Assistant Secretary, of the Company, and delivered to the
Trustee. One of the officers signing an Officers' Certificate given pursuant to
Section 1004 shall be the principal executive, financial or accounting officer
of the Company.
"Opinion of Counsel" means a written opinion of counsel, who may be an
employee of, or counsel to, the Company, and who shall be acceptable to the
Trustee.
3
<PAGE> 10
"Original Issue Discount Security" means any 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 502.
"Outstanding", when used with respect to Securities, means, as of the date
of determination, all Securities theretofore authenticated and delivered under
this Indenture, except:
(1) Securities theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(2) Securities for whose payment or redemption money in the necessary
amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company shall act as
its own Paying Agent) for the Holders of such Securities; provided
that, if such Securities are to be redeemed, notice of such
redemption has been duly given pursuant to this Indenture or
provision therefor satisfactory to the Trustee has been made;
(3) Securities as to which Defeasance has been effected pursuant to
Section 1302; and
(4) Securities which have been paid pursuant to Section 306 or issued
in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than
any such Securities in respect of which there shall have been
presented to the Trustee proof satisfactory to it that such
Securities are held by a bona fide purchaser in whose hands such
Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given, made or taken any
request, demand, authorization, direction, notice, consent, waiver or other
action hereunder as of any date,
(A) the principal amount of an Original Issue Discount Security which
shall be deemed to be Outstanding shall be the amount of the
principal thereof which would be due and payable as of such date
of such determination upon acceleration of the Maturity thereof to
such date pursuant to Section 502,
(B) if, as of such date, the principal amount payable at the Stated
Maturity of a Security is not determinable, the principal amount
of such Security which shall be deemed to be Outstanding shall be
the amount as specified or determined as contemplated by Section
301,
(C) the principal amount of a Security denominated in one or more
foreign currencies or currency units which shall be deemed to be
Outstanding shall be the U.S. dollar equivalent, determined as of
such date in the manner provided as contemplated by Section 301,
of the principal amount of such Security (or, in the case of a
Security described in Clause (A) or (B) above, of the amount
determined as provided in such Clause), and
(D) Securities owned by the Company or any other obligor upon the
Securities or any Affiliate of the Company or of such other
obligor shall be disregarded and deemed not to be Outstanding,
except that, in determining whether the Trustee shall be protected
in relying upon any such request, demand, authorization,
direction, notice, consent, waiver or other action, only
Securities which the Trustee knows to be so owned shall be so
disregarded.
Securities so owned which have been pledged in good faith may be regarded
as Outstanding if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to such Securities and that the pledgee
is not the Company or any other obligor upon the Securities or any Affiliate of
the Company or of such other obligor.
"Paying Agent" means the Company or any Person authorized by the Company to
pay the principal of and/or any premium or interest on any Securities on behalf
of the Company.
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<PAGE> 11
"Person" means any individual, association, corporation, partnership, joint
venture, limited liability company, joint-stock company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
"Place of Payment", when used with respect to the Securities of any series,
means the place or places where the principal of and/or any premium or interest
on the Securities of that series are payable as specified as contemplated by
Section 301 (6).
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Redemption Date", when used with respect to any Security to be redeemed,
means the date fixed for such redemption by or pursuant to this Indenture.
"Redemption Price", when used with respect to any Security to be redeemed,
means the price at which it is to be redeemed pursuant to this Indenture.
"Regular Record Date" for the interest payable on any Interest Payment Date
on the Securities of any series means the date specified for that purpose as
contemplated by Section 301.
"Securities" has the meaning stated in the first recital of this Indenture
and more particularly means any Securities authenticated and delivered under
this Indenture.
"Securities Act" means the Securities Act of 1933 and any statute successor
thereto, in each case as amended from time to time.
"Security Register" and "Security Registrar" have the respective meanings
specified in Section 305.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security as the fixed date on which the principal of such Security or
such installment of principal or interest is due and payable.
"Subsidiary" means a corporation more than 50% of the outstanding Voting
Stock of which is owned, directly or indirectly, by the Company or by one or
more other Subsidiaries, or by the Company and one or more other Subsidiaries.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force at
the date as of which this instrument was executed; provided, however, that in
the event the Trust Indenture Act of 1939 is amended after such date, "Trust
Indenture Act" means, to the extent required by any such amendment, the Trust
Indenture Act of 1939 as so amended.
"Trustee" means the Person named as the "Trustee" in the first paragraph of
this instrument until a successor Trustee shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Trustee" shall mean or
include each Person who is then a Trustee hereunder, and if at any time there is
more than one such Person, "Trustee" as used with respect to the Securities of
any series shall mean the Trustee with respect to Securities of that series.
"United States" means the United States of America (including the states
and the District of Columbia) and its possessions at the relevant date. As of
the date of this Indenture, the possessions of the United States include Puerto
Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island, and the
Northern Mariana Island.
"U.S. Government Obligation" has the meaning specified in Section 1304.
"Vice President", when used with respect to the Company or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "vice president".
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<PAGE> 12
"Voting Power" means the total voting power represented by all outstanding
shares of all classes of Voting Stock.
"Voting Stock" means a corporation's stock of any class or classes (however
designated), including membership interests, membership shares or other similar
equity interests, 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.
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS.
Upon any application or request by the Company to the Trustee to take any
action under any provision 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 requirements set forth in
this Indenture.
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture (except for certificates provided for in
Section 1004) shall include,
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions
herein relating thereto;
(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 each such individual, 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, in the opinion of each such individual,
such condition or covenant has been complied with.
SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or opinion of counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. ACTS OF HOLDERS; RECORD DATES.
Any request, demand, authorization, direction, notice, consent, waiver or
other action provided or permitted by this Indenture to be given, made or taken
by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by, an agent
duly appointed in
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<PAGE> 13
writing; and, except as herein otherwise expressly provided, such action shall
become effective when such instrument or instruments are delivered to the
Trustee and, where it is herein expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 601) conclusive in favor of the Trustee and
the Company, if made in the manner provided in this Section.
The fact and date of the execution by any Person of any such instrument or
writing may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. Where such execution is by
a signer acting in a capacity other than his individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his
authority. The fact and date of the execution of any such instrument or writing,
or the authority of the Person executing the same, may also be proved in any
other manner which the Trustee deems sufficient.
The ownership of Securities shall be proved by the Security Register.
Any request, demand, authorization, direction, notice, consent, waiver or
other Act of the Holder of any Security shall bind every future Holder of the
same Security and the Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee or the Company in
reliance thereon, whether or not notation of such action is made upon such
Security.
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
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 Securities. If not
set by the Company prior to the first solicitation of a Holder of 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 Securities on such date (or
their duly designated proxies) shall be entitled to give or take, or vote on,
the relevant action.
SECTION 105. NOTICES, ETC., TO TRUSTEE AND COMPANY.
Any request, demand, authorization, direction, notice, consent, waiver or
Act of Holders or other document provided or permitted by this Indenture to be
made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder if made, given, furnished or filed in
writing to or with the Trustee at its Corporate Trust Office, or
(2) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid,
to the Company addressed to: the address last furnished in writing
to the Trustee by the Company, or, if no such address has been
furnished, Treasurer, USX Corporation, 600 Grant Street,
Pittsburgh, Pennsylvania 15219-4776.
SECTION 106. NOTICE TO HOLDERS; WAIVER.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at the address as it appears in the Security Register, not later
than the latest date (if any), and not earlier than the earliest date (if any),
prescribed for the giving of such notice. In any case where notice to Holders is
given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder shall affect the sufficiency of such
notice with respect to other Holders. Where this Indenture provides for notice
in any manner, such notice may be waived in writing by the Person entitled to
receive such
7
<PAGE> 14
notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by reason of
any other cause it shall be impracticable to give such notice by mail, then such
notification as shall be made with the approval of the Trustee shall constitute
a sufficient notification for every purpose hereunder.
SECTION 107. CONFLICT WITH TRUST INDENTURE ACT.
If any provision hereof limits, qualifies or conflicts with a provision of
the Trust Indenture Act which 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
which 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 108. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
SECTION 109. SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the Company shall bind
its successors and assigns, whether so expressed or not.
SECTION 110. SEPARABILITY CLAUSE.
In case any provision in this Indenture or in the 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.
SECTION 111. BENEFITS OF INDENTURE.
Nothing in this Indenture or in the Securities, express or implied, shall
give to any Person, other than the parties hereto and their successors hereunder
and the Holders, any benefit or any legal or equitable right, remedy or claim
under this Indenture.
SECTION 112. GOVERNING LAW.
This Indenture and the Securities shall be governed by and construed in
accordance with the law of the State of New York.
SECTION 113. LEGAL HOLIDAYS.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day at any Place of Payment,
then (notwithstanding any other provision of this Indenture or of the Securities
(other than a provision of any Security which specifically states that such
provision shall apply in lieu of this Section)) payment of interest or principal
(and premium, if any) need not be made at such Place of Payment on such date,
but may be made on the next succeeding Business Day at such Place of Payment
with the same force and effect as if made on the Interest Payment Date or
Redemption Date, or at the Stated Maturity.
8
<PAGE> 15
ARTICLE TWO
SECURITY FORMS
SECTION 201. FORMS GENERALLY.
The Securities of each series shall be in substantially the form set forth
in this Article, or in such other form as shall be established by 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 Depositary therefor or as may, consistently herewith, be
determined by the officers executing such Securities, as evidenced by their
execution thereof. If the form of Securities of any series is established by
action taken pursuant to a Board Resolution, 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 Company
Order contemplated by Section 303 for the authentication and delivery of such
Securities.
The definitive 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 Securities, as evidenced by their execution of
such Securities.
SECTION 202. FORM OF FACE OF SECURITY.
[Insert any legend required by the Internal Revenue Code and the
regulations thereunder.]
USX CORPORATION
[Insert title of the Series]
No.____________$____________
USX CORPORATION, a corporation duly organized and existing under the laws
of the State of Delaware (herein called the "Company", which term includes any
successor Person 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 -- , provided that any principal and premium, and any such
installment of interest, which is overdue shall bear interest at the rate of
____% per annum (to the extent that the payment of such interest shall be
legally enforceable), from the dates such amounts are due until they are paid or
made available for payment, and such interest shall be payable on demand]. 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 (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest, which shall be
the ________________ or ________________ (whether or not a Business Day), 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 (or one or more Predecessor Securities) 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 10 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 and any overdue premium shall
bear interest at the rate of ____%
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<PAGE> 16
per annum (to the extent that the payment of such interest shall be legally
enforceable), from the dates such amounts are due until they are paid or made
available for payment. Interest on any overdue principal or premium shall be
payable on demand. [Any such interest on overdue principal or premium which is
not paid on demand shall bear interest at the rate of % per annum (to the
extent that the payment of such interest on interest shall be legally
enforceable), from the date of such demand until the amount so demanded is paid
or made available for payment. Interest on any overdue interest shall 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] [Foreign Currency, consistent
with the provisions below,] 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 Security Register or by electronic funds transfer to an account
maintained by the Person entitled thereto as specified in the Security Register,
provided that such Person shall have given the Trustee written instructions].
[If the security is payable in a foreign currency, insert the appropriate
provision.]
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:
-------------------------------
SECTION 203. FORM OF REVERSE OF 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 ________________________,(herein called
the "Indenture", which term shall have the meaning assigned to it in such
instrument), between the Company and Harris Trust and Savings Bank, as Trustee
(herein called the "Trustee", which term includes any successor trustee under
the Indenture), and reference is hereby made to the Indenture for a statement of
the respective 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 [if applicable,
insert -- , 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 [if applicable, insert -- on or after ________________, 20____], 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 [if
10
<PAGE> 17
applicable, insert -- on or before ______________________ , ____%, and if
redeemed] during the 12-month period beginning ________________ of the years
indicated,
<TABLE>
<CAPTION>
REDEMPTION REDEMPTION
YEAR PRICE YEAR PRICE
- ---- ---------- ---- ----------
<S> <C> <C> <C>
</TABLE>
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,
or one or more Predecessor 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 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,
<TABLE>
<CAPTION>
REDEMPTION PRICE REDEMPTION PRICE FOR
FOR REDEMPTION REDEMPTION OTHERWISE
THROUGH OPERATION THAN THROUGH OPERATION
YEAR OF THE SINKING FUND OF THE SINKING FUND
- ---- ------------------- ----------------------
<S> <C> <C>
</TABLE>
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, or one or more
Predecessor Securities, of record at the close of business on the relevant
Regular Record Dates or Special 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 [if applicable,
insert -- mandatory] sinking fund payments may be credited against subsequent
[if applicable, insert -- mandatory] sinking fund payments otherwise required to
be made [if applicable, insert -- , in the inverse order in which they become
due].]
[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.]
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<PAGE> 18
[If applicable, insert -- The Indenture contains provisions for defeasance
at any time of [the entire indebtedness of this Security] [or] [certain
restrictive covenants 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,
insert -- 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, insert -- 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, premium and 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 premium and interest, if any, on the Securities of this series
shall terminate.]
[If applicable, insert a paragraph regarding the indexing of the Security.]
The Indenture contains provisions permitting the Company and the Trustee to
modify the Indenture or any supplemental indenture without the consent of the
Holders for one or more of the following purposes: (1) to evidence the
succession of another corporation to the Company; (2) to add to the covenants of
the Company further covenants, restrictions, conditions or provisions; (3) to
add additional events of default for the benefit of Holders of all or any series
of Securities; (4) to add to or change provisions of the Indenture to allow the
issuance of Securities in other forms; (5) to add to, change or eliminate any of
the provisions of the Indenture in respect of one or more series of Securities
thereunder, under certain conditions specified therein; (6) to secure the
Securities pursuant to the requirements of Section 1005 of the Indenture or
otherwise; (7) to establish the form or terms of Securities of any series as
permitted by Sections 201 and 301 of the Indenture; (8) to evidence the
appointment of a successor Trustee; and (9) to cure any ambiguity, to correct or
supplement any provision of the Indenture which may be defective or inconsistent
with any other provision of the Indenture, or to make any other provisions with
respect to matters or questions arising under the Indenture as shall not
adversely affect the interests of the Holders in any material respect.
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
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principal amount of the Securities of this series at the time Outstanding shall
have made written request to the Trustee to institute proceedings in respect of
such Event of Default 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 any
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 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 Sections 1007 and 1008 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 any premium 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 Security Register,
upon surrender of this Security for registration of transfer at the office or
agency of the Company in any place where the principal of and any premium 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
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 or the Trustee 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.
SECTION 204. FORM OF LEGEND FOR GLOBAL SECURITIES.
Unless otherwise specified as contemplated by Section 301 for the
Securities evidenced thereby, every Global Security authenticated and delivered
hereunder shall 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 thereof. This Security may not be exchanged in whole or in part for a
Security registered, and no transfer of this Security in whole or in part may be
registered, in the name of any Person other than such Depositary or a nominee
thereof, except in the limited circumstances described in the Indenture.
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SECTION 205. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
The Trustee's certificates of authentication shall be in substantially the
following form:
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
HARRIS TRUST AND SAVINGS BANK,
As Trustee
By
--------------------------------------
Authorized Officer
ARTICLE THREE
THE SECURITIES
SECTION 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES.
The aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited.
The Securities may be issued from time to time in one or more series. The
terms of each series of Securities shall be either
(i) established in an Establishment Action or
(ii) established in one or more indentures supplemental hereto, prior
to the issuance of Securities of any series.
Such Establishment Action or supplemental indenture shall provide:
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from Securities of any
other series) and a statement that the Securities will be offered
pursuant to this Indenture;
(2) any limit upon the aggregate principal amount of the Securities
of the series which may be authenticated and delivered under this
Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of,
other Securities of the series pursuant to Section 304, 305, 306,
906 or 1107 and except for any Securities which, pursuant to
Section 303, are deemed never to have been authenticated and
delivered hereunder) and the price (expressed as a percentage of
the aggregate principal amount thereof) at which the Securities
of the series will be issued;
(3) the Person to whom any interest on a Security of the series shall
be payable, if other than the Person in whose name that Security
(or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest;
(4) the date or dates on which the principal of any Securities of the
series is payable;
(5) the rate or rates at which any Securities of the series shall
bear interest, if any, the date or dates from which any such
interest shall accrue, the Interest Payment Dates on which any
such interest shall be payable and the Regular Record Date for
any such interest payable on any Interest Payment Date;
(6) the place or places where the principal of and/or any premium or
interest on any Securities of the series shall be payable;
(7) the period or periods within which, the price or prices at which,
the currency or currencies (including currency units) in which
and the other terms and conditions upon which any Securities
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of the series may be redeemed, in whole or in part, at the option of
the Company and, if other than by a Board Resolution, the manner in
which any election by the Company to redeem the Securities shall be
evidenced;
(8) the obligation, if any, of the Company to redeem or purchase any
Securities of the series pursuant to any sinking fund or
analogous provisions or at the option of the Holder thereof and
the period or periods within which, the price or prices at which
and the terms and conditions upon which any Securities of the
series shall be redeemed or purchased, in whole or in part,
pursuant to such obligation;
(9) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which any Securities of the series
shall be issuable;
(10) if the amount of principal of or any premium or interest on any
Securities of the series may be determined with reference to an
index, pursuant to a formula or other method, the manner in which
such amounts shall be determined;
(11) if other than the currency of the United States of America, the
currency, currencies or currency units in which the principal of
or any premium or interest on any Securities of the series shall
be payable and the manner of determining the equivalent thereof
in the currency of the United States of America for any purpose,
including for purposes of the definition of "Outstanding" in
Section 101;
(12) if the principal of or any premium or interest on any Securities
of the series is to be payable, at the election of the Company or
the Holder thereof, in one or more currencies or currency units
other than that or those in which such Securities are stated to
be payable, the currency, currencies or currency units in which
the principal of or any premium or interest on such Securities as
to which such election is made shall be payable, the periods
within which and the terms and conditions upon which such
election is to be made and the amount so payable (or the manner
in which such amount shall be determined);
(13) if other than the entire principal amount thereof, the portion of
the principal amount of any Securities of the series which shall
be payable upon declaration of acceleration of the Maturity
thereof pursuant to Section 502;
(14) if the principal amount payable at the Stated Maturity of any
Securities of the series will not be determinable as of any one
or more dates prior to the Stated Maturity, the amount which
shall be deemed to be the principal amount of such Securities as
of any such date for any purpose thereunder or hereunder,
including the principal amount thereof which shall be due and
payable upon any Maturity other than the Stated Maturity or which
shall be deemed to be Outstanding as of any date prior to the
Stated Maturity (or, in any such case, the manner in which such
amount deemed to be the principal amount shall be determined);
(15) if applicable, that the Securities of the series, in whole or any
specified part, shall be defeasible pursuant to Section 1302 or
Section 1303 or both such Sections (or, if defeasible by another
method, such other method) and, if other than by an action
pursuant to a Board Resolution, the manner in which any election
by the Company to defease such Securities shall be evidenced;
(16) if applicable, that any Securities of the series shall be
issuable in whole or in part in the form of one or more Global
Securities and, in such case, the respective Depositaries for
such Global Securities, the form of any legend or legends which
shall be borne by any such Global Security in addition to or in
lieu of that set forth in Section 204 and any circumstances in
addition to or in lieu of those set forth in Clause (2) of the
last paragraph of Section 305 in which any such Global Security
may be exchanged in whole or in part for Securities registered,
and any transfer of such Global Security in whole or in part may
be registered, in the name or names of Persons other than the
Depositary for such Global Security or a nominee thereof;
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(17) any addition to or change in the Events of Default which applies
to any Securities of the series and any change in the right of
the Trustee or the requisite Holders of such Securities to
declare the principal amount thereof due and payable pursuant to
Section 502;
(18) any addition to or change in the covenants set forth in Article
Ten which applies to Securities of the series;
(19) if other than 100% of the principal amount thereof plus accrued
interest, the Change of Control Purchase Price or Prices
applicable to purchases of Securities of the series pursuant to
Section 1007; and
(20) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture, except as
permitted by Section 901(5)).
All Securities of any one series shall be substantially identical except as
to denomination and except as may otherwise be provided in the Establishment
Action referred to above or in any indenture supplemental hereto. The Company
shall provide to the Trustee a copy of any such Establishment Action.
SECTION 302. DENOMINATIONS.
The Securities of each series shall be issuable only in registered form
without coupons and only in such denominations as shall be specified as
contemplated by Section 301. In the absence of any such specified denomination
with respect to the Securities of any series, the Securities of such series
shall be issuable in denominations of $1,000 and any integral multiple thereof.
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
The Securities shall be executed on behalf of the Company by its Chairman
of the Board, any Vice Chairman of the Board, its President or one of its Vice
Presidents, under its corporate seal reproduced thereon attested by its
Treasurer or an Assistant Treasurer or its Secretary or one of its Assistant
Secretaries. The signature of any of these officers on the Securities may be
manual or facsimile. 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
Security.
Securities bearing the manual or facsimile signatures of individuals who
were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities of any series executed by the
Company to the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee in accordance
with the Company Order shall authenticate and deliver such Securities. If the
form or terms of the Securities of the series have been established by one or
more Establishment Actions as permitted by Sections 201 and 301, in
authenticating such Securities, and accepting the additional responsibilities
under this Indenture in relation to such Securities, the Trustee shall be
entitled to receive, and (subject to Section 601) shall be fully protected in
relying upon, an Opinion of Counsel stating,
(1) if the form of such Securities has been established by an
Establishment Action as permitted by Section 201, that such form
has been established in conformity with the provisions of this
Indenture;
(2) if the terms of such Securities have been established by an
Establishment Action as permitted by Section 301, that such terms
have been established in conformity with the provisions of this
Indenture; and
(3) that such Securities, when authenticated and delivered by the
Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute
valid
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and legally binding obligations of the Company enforceable in
accordance with their terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights and
to general equity principles.
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 and of the preceding
paragraph, if all Securities of a series are not to be originally issued at one
time, it shall not be necessary to deliver the Establishment Action otherwise
required pursuant to Section 301 or the Company Order and Opinion of Counsel
otherwise required pursuant to such preceding paragraph at or prior to the
authentication of each Security of such series if such documents are delivered
at or prior to the authentication upon original issuance of the first Security
of such series to be issued.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder. Notwithstanding the
foregoing, if any Security shall have been authenticated and delivered hereunder
but never issued and sold by the Company, and the Company shall deliver such
Security to the Trustee for cancellation as provided in Section 309, for all
purposes of this Indenture such Security shall be deemed never to have been
authenticated and delivered hereunder and shall never be entitled to the
benefits of this Indenture.
SECTION 304. TEMPORARY SECURITIES.
Pending the preparation of definitive Securities of any series, the Company
may execute, and upon Company Order the Trustee shall authenticate and deliver,
temporary Securities which are printed, lithographed, typewritten, mimeographed
or otherwise produced, in any authorized denomination, substantially of the
tenor of the definitive Securities in lieu of which they are issued and with
such appropriate insertions, omissions, substitutions and other variations as
the officers executing such Securities may determine, as evidenced by their
execution of such Securities.
If temporary Securities of any series are issued, the Company will cause
definitive Securities of that series to be prepared without unreasonable delay.
After the preparation of definitive Securities of such series, the temporary
Securities of such series shall be exchangeable for definitive Securities of
such series upon surrender of the temporary Securities of such series at the
office or agency of the Company in a Place of Payment for that series, without
charge to the Holder. Upon surrender for cancellation of any one or more
temporary Securities of any series, the Company shall execute and the Trustee
shall authenticate and deliver in exchange therefor one or more definitive
Securities of the same series, of any authorized denominations and of like tenor
and aggregate principal amount. Until so exchanged, the temporary Securities of
any series shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities of such series and tenor.
SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.
The Company shall cause to be kept in an office or agency of the Company in
a Place of Payment a register (the register maintained in any such office or
agency of the Company in a Place of Payment being herein sometimes collectively
referred to as the "Security Register") in which, subject to such reasonable
regulations as it may prescribe, the Company shall provide for the registration
of Securities and of transfers of Securities. The Trustee, or any other party
serving in such capacity with the Trustee's consent, is hereby appointed
"Security Registrar" for the purpose of registering Securities and transfers of
Securities as herein provided.
Upon surrender for registration of transfer of any Security of a series at
the office or agency of the Company in a Place of Payment for that series, the
Company shall execute, and the Trustee shall authenticate and deliver, in
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the name of the designated transferee or transferees, one or more new Securities
of the same series, of any authorized denominations and of like tenor and
aggregate principal amount.
At the option of the Holder, Securities of any series may be exchanged for
other Securities of the same series, of any authorized denominations and of like
tenor and aggregate principal amount, upon surrender of the Securities to be
exchanged at such office or agency. Whenever any Securities are so surrendered
for exchange, the Company shall execute, and the Trustee shall authenticate and
deliver, the Securities which the Holder making the exchange is entitled to
receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or for
exchange shall (if so required by the Company or the Trustee) be duly endorsed,
or be accompanied by a written instrument of transfer in form satisfactory to
the Company and the Security Registrar duly executed, by the Holder thereof or
his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of 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
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 304, 906 or 1107 not involving any transfer.
If the Securities of any series (or of any series and specified tenor) are
to be redeemed in part, the Company shall not be required (A) to issue, register
the transfer of or exchange any Securities of that series (or of that series and
specified tenor, as the case may be) during a period beginning at the opening of
business 15 days before the day of the mailing of a notice of redemption of any
such Securities selected for redemption under Section 1103 and ending at the
close of business on the day of such mailing, or (B) to register the transfer of
or exchange any Security so selected for redemption in whole or in part, except
the unredeemed portion of any Security being redeemed in part.
The provisions of the following clauses shall apply only to Global
Securities:
(1) Each Global Security authenticated under this Indenture shall be
registered in the name of the Depositary designated for such
Global Security or a nominee thereof and delivered to such
Depositary or a nominee thereof or custodian therefor, and each
such Global Security shall constitute a single Security for all
purposes of this Indenture.
(2) Notwithstanding any other provision in this Indenture, no Global
Security may be exchanged in whole or in part for Securities
registered, and no transfer of a Global Security in whole or in
part may be registered, in the name of any Person other than the
Depositary for such Global Security or a nominee thereof unless
(A) such Depositary
(i) has notified the Company that it is unwilling or unable to
continue as Depositary for such Global Security or
(ii) has ceased to be a clearing agency registered under the
Exchange Act,
(B) there shall have occurred and be continuing an Event of Default
with respect to such Global Security or
(C) there shall exist such circumstances, if any, in addition to or
in lieu of the foregoing as have been specified for this
purpose as contemplated by Section 301.
(3) Subject to Clause (2) above, any exchange of a Global Security for
other Securities may be made in whole or in part, and all
Securities issued in exchange for a Global Security or any portion
thereof shall be registered in such names as the Depositary for
such Global Security shall direct.
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(4) Every Security authenticated and delivered upon registration of
transfer of, or in exchange for or in lieu of, a Global Security
or any portion thereof, whether pursuant to this Section, Section
304, 306, 906 or 1107 or otherwise, shall be authenticated and
delivered in the form of, and shall be, a Global Security, unless
such Security is registered in the name of a Person other than the
Depositary for such Global Security or a nominee thereof.
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES.
If any mutilated Security is surrendered to the Trustee, the Company shall
execute and the Trustee shall authenticate and deliver in exchange therefor a
new Security of the same series and of like tenor and principal amount and
bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee
(i) evidence to their satisfaction of the destruction, loss or theft
of any Security and
(ii) such security or indemnity as may be required by them to save
each of them and any agent of either of them harmless,
then, in the absence of notice to the Company or the Trustee that such Security
has been acquired by a bona fide purchaser, the Company shall execute and the
Trustee shall authenticate and deliver, in lieu of any such destroyed, lost or
stolen Security, a new Security of the same series and of like tenor and
principal amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has become
or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, 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 (including
the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in lieu of
any destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities of that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
Except as otherwise provided as contemplated by Section 301 with respect to
any series of Securities, interest on any Security which is payable, and is
punctually paid or duly provided for, on any Interest Payment Date shall be paid
to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest.
Any interest on any Security of any series which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Securities of such series (or their
respective Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such
Defaulted Interest, which shall be fixed in the following manner.
The Company shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on each Security of such
series and the date of the proposed payment, and at the same time
the Company shall deposit with the Trustee an amount of money
equal to the aggregate amount proposed to be paid in respect of
such Defaulted Interest or shall
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<PAGE> 26
make arrangements satisfactory to the Trustee for such deposit prior
to the date of the proposed payment, such money when deposited to be
held in trust for the benefit of the Persons entitled to such
Defaulted Interest as in this Clause provided. Thereupon the Trustee
shall fix a Special Record Date for the payment of such Defaulted
Interest which shall be not more than 15 days and not less than 10
days prior to the date of the proposed payment and not less than 10
days after the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the Company of such Special
Record Date and, in the name and at the expense of the Company, shall
cause notice of the proposed payment of such Defaulted Interest and
the Special Record Date therefor to be given to each Holder of
Securities of such series in the manner set forth in Section 106, not
less than 10 days prior to such Special Record Date. Notice of the
proposed payment of such Defaulted Interest and the Special Record
Date therefor having been so mailed, such Defaulted Interest shall be
paid to the Persons in whose names the Securities of such series (or
their respective Predecessor Securities) are registered at the close
of business on such Special Record Date and shall no longer be payable
pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest on the
Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on
which such Securities may be listed, and upon such notice as may
be required by such exchange, if, after notice given by the
Company to the Trustee of the proposed payment pursuant to this
Clause, such manner of payment shall be deemed practicable by the
Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
SECTION 308. PERSONS DEEMED OWNERS.
Prior to due presentment of a 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 such Security is registered as the owner of such Security
for the purpose of receiving payment of principal of and any premium and
(subject to Section 307) any interest on such Security and for all other
purposes whatsoever, whether or not such Security be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
SECTION 309. CANCELLATION.
All Securities surrendered for payment, redemption, registration of
transfer or exchange or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee
and shall be promptly cancelled by it. The Company may at any time deliver to
the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and may deliver to the Trustee (or to any other Person for delivery
to the Trustee) for cancellation any Securities previously authenticated
hereunder which the Company has not issued and sold, and all Securities so
delivered shall be promptly cancelled by the Trustee. No Securities shall be
authenticated in lieu of or in exchange for any Securities cancelled as provided
in this Section, except as expressly permitted by this Indenture. Until directed
otherwise by a Company Order, all cancelled Securities held by the Trustee shall
be conspicuously marked as such and, if destroyed, the Trustee shall deliver to
the Company a certificate with respect to such destruction.
SECTION 310. COMPUTATION OF INTEREST.
Except as otherwise specified as contemplated by Section 301 for Securities
of any series, interest on the Securities of each series shall be computed on
the basis of a 360-day year of twelve 30-day months.
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ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall upon Company Request cease to be of further effect
with respect to any (or all) series of Securities (except as to any surviving
rights of registration of transfer or exchange of Securities herein expressly
provided for), and the Trustee, at the expense of the Company, shall execute
proper instruments acknowledging satisfaction and discharge of this Indenture
with respect to such Securities, when
(1) either
(A) all such Securities theretofore authenticated and delivered
(other than
(i) Securities which have been destroyed, lost or stolen and
which have been replaced or paid as provided in Section 306
and
(ii) Securities for whose payment money has theretofore been
deposited in trust or segregated and held in trust by the
Company and thereafter repaid to the Company or discharged
from such trust, as provided in Section 1003)
have been delivered to the Trustee for cancellation; or
(B) all such Securities not theretofore delivered to the Trustee
for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity
within one year, or
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of
notice of redemption by the Trustee in the name, and at
the expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has
deposited or caused to be deposited with the Trustee as trust
funds in trust for the purpose money in an amount sufficient to
pay and discharge the entire indebtedness on such Securities not
theretofore delivered to the Trustee for cancellation, for
principal and any premium and interest to the date of such
deposit (in the case of Securities which have become due and
payable) or to the Stated Maturity or Redemption Date, as the
case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and
discharge of this Indenture with respect to such Securities have
been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 607, the obligations of
the Trustee to any Authenticating Agent under Section 614 and, if money shall
have been deposited with the Trustee pursuant to subclause (B) of Clause (1) of
this Section, the obligations of the Trustee under Section 402, Article Six and
the last paragraph of Section 1003 shall survive.
SECTION 402. APPLICATION OF TRUST MONEY.
Subject to the provisions of the last paragraph of Section 1003, all money
deposited with the Trustee pursuant to Section 401 shall be held in trust and
applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal and any premium and
interest for whose payment such money has been deposited with the Trustee.
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ARTICLE FIVE
REMEDIES
SECTION 501. EVENTS OF DEFAULT.
"Event of Default", wherever used herein with respect to Securities of any
series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(1) default in the payment of any interest upon any Security of that
series when it becomes due and payable, and continuance of such
default for a period of 30 days; or
(2) default in the payment of the principal of or any premium on any
Security of that series at its Maturity; or
(3) default in the payment of the Change in Control Purchase Price of
any of the Securities of such series as and when the same shall
become due and payable pursuant to Section 1007; or
(4) default in the deposit of any sinking fund payment, when and as
due by the terms of a Security of that series; or
(5) default in the performance, or breach, of any covenant or warranty
of the Company in this Indenture (other than a covenant or
warranty a default in whose performance or whose breach is
elsewhere in this Section specifically dealt with or which has
expressly been included in this Indenture solely for the benefit
of series of Securities other than that series), and continuance
of such default or breach for a period of 90 days after there has
been given, by registered or certified mail, to the Company by the
Trustee or to the Company and the Trustee by the Holders of at
least 25% in principal amount of the Outstanding Securities of
that series a written notice specifying such default or breach and
requiring it to be remedied and stating that such notice is a
"Notice of Default" hereunder; or
(6) the entry by a court having jurisdiction in the premises of a
decree or order
(A) for relief in respect of the Company in an involuntary case or
proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law;
(B) adjudging the Company a bankrupt or insolvent or approving as
properly filed a petition seeking reorganization, arrangement,
adjustment or composition of or in respect of the Company under
any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law;
(C) appointing a custodian, receiver, liquidator, assignee,
trustee, sequestrator or other similar official of the Company
or of any substantial part of its property; or
(D) ordering the winding up or liquidation of its affairs, and the
continuance of any such decree or order for relief or any such
other decree or order unstayed and in effect for a period of 60
consecutive days;
or
(7) (A) the commencement by the Company of a voluntary case or
proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law to be adjudicated
a bankrupt or insolvent;
(B) the consent by the Company to the entry of a decree or order
for relief in respect of it in an involuntary case or
proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or the consent
by it to the commencement of any bankruptcy or insolvency case
or proceeding against it;
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(C) the filing by the Company of a petition or answer or consent
seeking reorganization or relief under any applicable Federal
or State bankruptcy, insolvency, reorganization or other
similar law, or the consent by the Company to the filing of
such petition;
(D) the consent by the Company to the appointment of or taking
possession by a custodian, receiver, liquidator, assignee,
trustee, sequestrator or other similar official of the Company
or of any substantial part of its property;
(E) the making by the Company of an assignment for the benefit of
creditors;
(F) the admission by the Company in writing of its inability to pay
its debts generally as they become due; or,
(G) the taking of corporate action by the Company in furtherance of
any such action;
or
(8) any other Event of Default provided with respect to Securities of
that series.
SECTION 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default (other than an Event of Default specified in Section
501(6) or 501(7)) with respect to Securities of any series at the time
Outstanding occurs and is continuing, then in every such case the Trustee or the
Holders of not less than 25% in principal amount of the Outstanding Securities
of that series may declare the principal amount of all the Securities of that
series (or, if any Securities of that series are Original Issue Discount
Securities, such portion of the principal amount of such Securities as may be
specified by the terms thereof) to be due and payable immediately, by a notice
in writing to the Company (and to the Trustee if given by Holders), and upon any
such declaration such principal amount (or specified amount) shall become
immediately due and payable. If an Event of Default specified in Section 501(6)
or 501(7) with respect to Securities of any series at the time Outstanding
occurs, the principal amount of all the Securities of that series (or, if any
Securities of that series are Original Issue Discount Securities, such portion
of the principal amount of such Securities as may be specified by the terms
thereof) shall automatically, and without any declaration or other action on the
part of the Trustee or any Holder, become immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest on all Securities of that series,
(B) the principal of (and premium, if any, on) any Securities of
that series which have become due otherwise than by such
declaration of acceleration and any interest thereon at the
rate or rates prescribed therefor in such Securities,
(C) to the extent that payment of such interest is lawful, interest
upon overdue interest at the rate or rates prescribed therefor
in such Securities, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel;
and
(2) all Events of Default with respect to Securities of that series,
other than the non-payment of the principal of Securities of that
series which have become due solely by such declaration of
acceleration, have been cured or waived as provided in Section
513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
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SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY TRUSTEE.
The Company covenants that if
(1) default is made in the payment of any interest on any Security
when such interest becomes due and payable and such default
continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or premium, if
any, on) any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal and any premium and interest and, to the extent that
payment of such interest shall be legally enforceable, interest on any overdue
principal and premium and on any overdue interest, at the rate or rates (or
yield to maturity in the case of Original Issue Discount Securities) prescribed
therefor in such Securities, and, in addition thereto, such further amount as
shall be sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, except as a result of the Trustee's negligence or bad
faith.
If an Event of Default with respect to Securities of any series occurs and
is continuing, the Trustee may in its discretion proceed to protect and enforce
its rights and the rights of the Holders of Securities of such series by such
appropriate judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any such rights, whether for the specific enforcement of any
covenant or agreement in this Indenture or in aid of the exercise of any power
granted herein, or to enforce any other proper remedy.
SECTION 504. TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of any judicial proceeding relative to the Company (or any other
obligor upon the Securities), its property or its creditors, the Trustee shall
be entitled and empowered, by intervention in such proceeding 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 custodian, receiver, assignee, trustee, liquidator, sequestrator
or other similar official in any such judicial proceeding is hereby authorized
by each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to
pay to the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 607 except as a result of its negligence
or bad faith.
No provision of this Indenture shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding; provided, however,
that the Trustee may, on behalf of the Holders, vote for the election of a
trustee in bankruptcy or similar official and be a member of a creditors' or
other similar committee.
SECTION 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES.
All rights of action and claims under this Indenture or the Securities may
be prosecuted and enforced by the Trustee without the possession of any of the
Securities or the production thereof in any proceeding relating thereto, and any
such proceeding instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment shall, after provision
for the payment of the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel (except no such provision shall
be made respecting compensation, expenses, disbursements and advances made as a
result of Trustee's negligence), be for the ratable benefit of the Holders of
the Securities in respect of which such judgment has been recovered.
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SECTION 506. APPLICATION OF MONEY COLLECTED.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal or any premium
or interest, upon presentation of the Securities and the notation thereon of 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 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 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) specified on the 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 Securities of any series in
respect of which such moneys have been collected shall have become due, by
declaration, or otherwise, to the payment of the whole amount then owing and
unpaid upon the 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 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 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), or of any installment of interest over any
other installment of interest, or of any Security of such series over any other
Security of such series, ratably to the aggregate of such principal and accrued
and unpaid interest.
SECTION 507. LIMITATION ON SUITS.
No Holder of any Security of any series shall have any right to institute
any proceeding, judicial or otherwise, with respect to this Indenture, or for
the appointment of a receiver or trustee, or for any other remedy hereunder,
unless
(1) such Holder has previously given written notice to the Trustee of
a continuing Event of Default with respect to the Securities of
that series;
(2) The Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written
request to the Trustee to institute proceedings in respect of such
Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has been given
to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Securities of that
series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
Holders.
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SECTION 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL, PREMIUM AND
INTEREST.
Notwithstanding any other provision in this Indenture, the Holder of any
Security shall have the right, which is absolute and unconditional, to receive
payment of the principal of and any premium and (subject to Section 307)
interest on such Security on the respective Stated Maturities expressed in such
Security (or, in the case of redemption, on the Redemption Date) and to
institute suit for the enforcement of any such payment, and such rights shall
not be impaired without the consent of such Holder.
SECTION 509. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to the Trustee or
to such Holder, then and in every such case, subject to any determination in
such proceeding, the Company, the Trustee and the Holders shall be restored
severally and respectively to their former positions hereunder and thereafter
all rights and remedies of the Trustee and the Holders shall continue as though
no such proceeding had been instituted.
SECTION 510. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities in the last paragraph of Section
306, no right or remedy herein conferred upon or reserved to the Trustee or to
the Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 511. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder of any Securities to
exercise any right or remedy accruing upon any Event of Default shall impair any
such right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article or by law to
the Trustee or to the Holders may be exercised from time to time, and as often
as may be deemed expedient, by the Trustee or by the Holders, as the case may
be.
SECTION 512. CONTROL BY HOLDERS.
The Holders of a majority in principal amount of the Outstanding Securities
of any series 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 Securities of
such series, provided that
(1) such direction shall not be in conflict with any rule of law or
with this Indenture, and
(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction.
SECTION 513. WAIVER OF PAST DEFAULTS.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series may on behalf of the Holders of all the
Securities of such series waive any past default hereunder with respect to such
series and its consequences, except a default
(1) in the payment of the principal of or any premium or interest on
any Security of such series, or
(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Security of such series affected.
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Upon any such waiver, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
default or impair any right consequent thereon.
SECTION 514. UNDERTAKING FOR COSTS.
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, suffered 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 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 such an undertaking or to make
such an assessment in any suit instituted by the Company.
SECTION 515. WAIVER OF USURY, STAY OR EXTENSION LAWS.
The Company covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, or plead, or in any manner whatsoever claim or
take the benefit or advantage of, any usury, stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE SIX
THE TRUSTEE
SECTION 601. CERTAIN DUTIES AND RESPONSIBILITIES.
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 it shall have 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 602. NOTICE OF DEFAULTS.
If a default occurs hereunder with respect to Securities of any series, the
Trustee shall give the Holders of Securities of such series notice of such
default as and to the extent provided by the Trust Indenture Act; provided,
however, that in the case of any default of the character specified in Section
501(5) with respect to Securities of such series, no such notice to Holders
shall be given until at least 60 days after the occurrence thereof. For the
purpose of this Section, the term "default" means any event or events, as the
case may be, specified in Section 501, not including periods of grace, if any,
provided for therein.
SECTION 603. CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of Section 601:
(1) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, action, certificate,
statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence
of indebtedness or other paper or document believed by it to be
genuine and to have been signed or presented by the proper party
or parties;
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(2) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order, and
any resolution of the Board of Directors or Establishment Action
may be sufficiently evidenced by a Board Resolution or
Establishment Action, as the case may be;
(3) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee
(unless other evidence be herein specifically prescribed) may, in
the absence of bad faith on its part, rely upon an Officers'
Certificate;
(4) the Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance
thereon;
(5) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless
such Holders shall have offered to the Trustee reasonable security
or indemnity against the costs, expenses and liabilities which
might be incurred by it in compliance with such request or
direction;
(6) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, action, certificate,
statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence
of indebtedness or other paper or document, but the Trustee, in
its discretion, may make such further inquiry or investigation
into such facts or matters as it may see fit, and, if the Trustee
shall determine to make such further inquiry or investigation, it
shall be entitled to examine the books, records and premises of
the Company, personally or by agent or attorney;
(7) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through
agents or attorneys and the Trustee shall not be responsible for
any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder; and
(8) 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 604. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.
The recitals contained herein and in the Securities, except the Trustee's
certificates of authentication, shall be taken as the statements of the Company,
and neither the Trustee nor any Authenticating Agent assumes any responsibility
for their correctness. The Trustee makes no representations as to the validity
or sufficiency of this Indenture or of the Securities. Neither the Trustee nor
any Authenticating Agent shall be accountable for the use or application by the
Company of Securities or the proceeds thereof.
SECTION 605. MAY HOLD SECURITIES.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to Sections
608 and 613, may otherwise deal with the Company with the same rights it would
have if it were not Trustee, Authenticating Agent, Paying Agent, Security
Registrar or such other agent.
SECTION 606. MONEY HELD IN TRUST.
Money held by the Trustee, or any Paying Agent, in trust hereunder 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
money received by it hereunder except as otherwise agreed in writing with the
Company.
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SECTION 607. COMPENSATION, REIMBURSEMENT, INDEMNIFICATION.
The Company agrees
(1) to pay to the Trustee from time to time reasonable compensation as
shall be agreed in writing between the Company and the Trustee for
all services rendered by it hereunder (which compensation shall
not be limited by any provision of law in regard to the
compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its
agents and counsel), except any such expense, disbursement or
advance as may be attributable to its negligence or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless against, any
loss, liability or expense incurred without negligence or bad
faith on its part, arising out of or in connection with the
acceptance or administration of the trust or trusts hereunder,
including the costs and expenses of defending itself against any
claim or liability in connection with the exercise or performance
of any of its powers or duties hereunder and the costs and
expenses of enforcing this right to indemnification.
In the event any action, suit or proceeding is brought against any Trustee
in connection with any claim for which it is entitled to indemnity hereunder, it
shall promptly (but no later than ten days following service) notify the Company
in writing enclosing a copy of all papers served. All counsel employed to defend
any such claim shall be retained directly by the Company and may serve as
counsel to the Company and/or one or more Trustees. Absent a conflict of
interest, the Company shall not be required to pay the fees and expenses of more
than one law firm in connection with its obligations hereunder. A Trustee
entitled to indemnification may, in addition to counsel engaged by the Company,
engage counsel to represent such party at that party's sole expense.
Notwithstanding any other provision of this Indenture, the Company shall not be
liable to pay any settlement agreed to without its written consent.
SECTION 608. CONFLICTING INTERESTS.
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 this Indenture with respect to
Securities of more than one series or a trustee under the indenture dated
____________, ______ between the Company and the Trustee respecting debt of USX
which is subordinated in right of payment to debt issued pursuant to this
Indenture.
SECTION 609. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be one (and only one) Trustee hereunder with
respect to the Securities of each series, which may be Trustee hereunder for
Securities of one or more other series. Each Trustee shall be a Person that is
eligible pursuant to the Trust Indenture Act to act as such and has a combined
capital and surplus of at least $50,000,000. If any such Person publishes
reports of condition at least annually, pursuant to law or to the requirements
of its supervising or examining authority, then for the purposes of this Section
and to the extent permitted by the Trust Indenture Act, the combined capital and
surplus of such Person 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
the Trustee with respect to the Securities of any series shall cease to be
eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.
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SECTION 610. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until
the acceptance of appointment by the successor Trustee in accordance
with the applicable requirements of Section 611.
(b) The Trustee may resign at any time with respect to the Securities of
one or more series by giving written notice thereof to the Company. If
the instrument of acceptance by a successor Trustee required by Section
611 shall not have been delivered to the Trustee within 30 days after
the giving of such notice of resignation, the resigning Trustee may
petition any court of competent jurisdiction for the appointment of a
successor Trustee with respect to the Securities of such series.
(c) The Trustee may be removed at any time with respect to the Securities
of any series by Act of the Holders of a majority in principal amount
of the Outstanding Securities of such series, delivered to the Trustee
and to the Company. If the instrument of acceptance by a successor
Trustee required by Section 611 shall not have been delivered to the
Trustee within 30 days after the giving of such notice of removal, the
Trustee being removed may petition any court of competent jurisdiction
for the appointment of a successor Trustee with respect to the
Securities of such series.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608 after written
request therefor by the Company or by any Holder who has been a
bona fide Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609 and shall
fail to resign after written request therefor by the Company or by
any such Holder, 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,
(A) the Company by a Board Resolution may remove the Trustee with
respect to all Securities, or
(B) subject to Section 514, any Holder who has been a bona fide Holder
of a 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 with respect to all
Securities and the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of acting,
or if a vacancy shall occur in the office of Trustee for any cause,
with respect to the Securities of one or more series, the Company, by a
Board Resolution, shall promptly appoint a successor Trustee or
Trustees with respect to the Securities of that or those series (it
being understood that any such successor Trustee may be appointed with
respect to the Securities of one or more or all of such series and that
at any time there shall be only one Trustee with respect to the
Securities of any particular series) and shall comply with the
applicable requirements of Section 611. If, within one year after such
resignation, removal or incapability, or the occurrence of such
vacancy, a successor Trustee with respect to the Securities of any
series shall be appointed by Act of the Holders of a majority in
principal amount of the Outstanding Securities of such series delivered
to the Company and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such appointment in
accordance with the applicable requirements of Section 611, become the
successor Trustee with respect to the Securities of such series and to
that extent supersede the successor Trustee appointed by the Company.
If no successor Trustee with respect to the Securities of any series
shall have been so appointed by the Company or the Holders and accepted
appointment in the manner required by Section 611, any Holder who has
been a bona fide Holder of a Security of such series for at least six
months may, on behalf of himself and all others similarly situated,
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petition any court of competent jurisdiction for the appointment of a
successor Trustee with respect to the Securities of such series.
(f) The Company shall give notice of each resignation and each removal of
the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee with respect to the Securities of
any series to all Holders of Securities of such series in the manner
provided in Section 106. Each notice shall include the name of the
successor Trustee with respect to the Securities of such series and the
address of its Corporate Trust Office.
SECTION 611. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
In case of the appointment hereunder of a successor Trustee with respect to
all Securities, every such successor Trustee so appointed shall execute,
acknowledge and deliver to the Company and to the retiring Trustee an instrument
accepting such appointment, and thereupon the resignation or removal of the
retiring Trustee shall become effective and such successor Trustee, without any
further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee; but, on the request of the
Company or the successor Trustee, such retiring Trustee shall, upon payment of
its charges, execute and deliver an instrument transferring to such successor
Trustee all the rights, powers and trusts of the retiring Trustee and shall duly
assign, transfer and deliver to such successor Trustee all property and money
held by such retiring Trustee hereunder.
In case of the appointment hereunder of a successor Trustee with respect to
the Securities of one or more (but not all) series, the Company, the retiring
Trustee and each successor Trustee with respect to the Securities of one or more
series shall execute and deliver an indenture supplemental hereto wherein each
successor Trustee shall accept such appointment and which (1) shall contain such
provisions as shall be necessary or desirable to transfer and confirm to, and to
vest in, each successor Trustee all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series to which
the appointment of such successor Trustee relates, (2) if the retiring Trustee
is not retiring with respect to all Securities, shall contain such provisions as
shall be deemed necessary or desirable to confirm that all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series as to which the retiring Trustee is not retiring shall continue
to be vested in the retiring Trustee, and (3) shall 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, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Trustee; and upon
the execution and delivery of such supplemental indenture the resignation or
removal of the retiring Trustee shall become effective to the extent provided
therein and each such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of that or those series
to which the appointment of such successor Trustee relates; but, on request of
the Company or any successor Trustee, such retiring Trustee shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates.
Upon request of any such successor Trustee, the Company shall execute any
and all instruments for more fully and certainly vesting in and confirming to
such successor Trustee all such rights, powers and trusts referred to in the
first or second preceding paragraph, as the case may be.
No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be qualified and eligible under
this Article.
SECTION 612. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.
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 all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this
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Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
SECTION 613. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
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 614. APPOINTMENT OF AUTHENTICATING AGENT.
The Trustee may appoint an Authenticating Agent or Agents with respect to
one or more series of Securities which shall be authorized to act on behalf of
the Trustee to authenticate Securities of such series issued upon original issue
and upon exchange, registration of transfer or partial redemption thereof or
pursuant to Section 306, and Securities so authenticated shall be entitled to
the benefits of this Indenture and shall be valid and obligatory for all
purposes as if authenticated by the Trustee hereunder. Wherever reference is
made in this Indenture to the authentication and delivery of Securities by the
Trustee or the Trustee's certificate of authentication, such reference shall be
deemed to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent must be
acceptable to the Company and shall at all times be a corporation organized and
doing business under the laws of the United States of America, any State thereof
or the District of Columbia, authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of not less than $50,000,000 and
subject to supervision or examination by Federal or State authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
Authenticating Agent 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
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to all or substantially all of
the corporate agency or corporate trust business of an Authenticating Agent,
shall continue to be an Authenticating Agent, provided such corporation shall be
otherwise eligible under this Section, without the execution or filing of any
paper or any further act on the part of the Trustee or the Authenticating Agent.
In case at the time such successor to any Authenticating Agent with respect
to any series shall succeed to such Authenticating Agent, any of the Securities
of such series shall have been authenticated but not delivered, any such
successor to such Authenticating Agent may adopt the certificate of
authentication of any predecessor Authenticating Agent and deliver such
Securities so authenticated; and in case at that time any of the Securities of
such series shall not have been authenticated, any successor to any
Authenticating Agent may authenticate such Securities either in the name of any
predecessor hereunder or in the name of successor Authenticating Agent; and in
all such cases such certificate shall have the full force which it is anywhere
in the Securities of such series or in this Indenture provided that the
certificate of the predecessor Authenticating Agent shall have; provided,
however, that the right to adopt the certificate of authentication of any
predecessor Authenticating Agent or to authenticate Securities in the name of
any predecessor Authenticating Agent shall apply only to its successor or
successors by merger, conversion or consolidation.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Company. The Trustee may at any time terminate
the agency of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon
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such a termination, or in case at any time such Authenticating Agent shall cease
to be eligible in accordance with the provisions of this Section, the Trustee
may appoint a successor Authenticating Agent which must be acceptable to the
Company and shall give notice of such appointment in the manner provided in
Section 106 to all Holders of Securities of the series with respect to which
such Authenticating Agent will serve. Any successor Authenticating 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 if
originally named as an Authenticating Agent. No successor Authenticating Agent
shall be appointed unless eligible under the provisions of this Section.
Any Authenticating 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 Authenticating 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 Authenticating
Agent and will furnish the Trustee such other information and reports as the
Trustee may reasonably require; it is eligible for appointment as Authenticating
Agent under this Section 614 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 of acts or failures to act of the Authenticating
Agent but it shall have no liability for any action taken by it at the specific
written direction of the Trustee.
The Trustee agrees to pay to each Authenticating Agent from time to time
reasonable compensation for its services under this Section, and the Trustee
shall be entitled to be reimbursed for such payments, subject to the provisions
of Section 607.
If an appointment with respect to one or more series is made pursuant to
this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternative
certificate of authentication in the following form:
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
HARRIS TRUST AND SAVINGS BANK,
As Trustee
By
------------------------------------
As Authenticating Agent
By
------------------------------------
Authorized Officer
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS.
The Company will furnish or cause to be furnished to the Trustee
(1) semi-annually, not later than June 30 and December 31 in each
year, a list, in such form as the Trustee may reasonably require,
of the names and addresses of the Holders of Securities of each
series as of a date no more than 15 days prior to the date such
list is furnished, and
(2) 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;
excluding from any such list names and addresses received by the Trustee in its
capacity as Security Registrar.
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SECTION 702. PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS.
The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 701 and the names and
addresses of Holders received by the Trustee, or its designee, in its capacity
as Security Registrar. The Trustee may destroy any list furnished to it as
provided in Section 701 upon receipt of a new list so furnished.
The rights of Holders to communicate with other Holders with respect to
their rights under this Indenture or under the Securities, and the corresponding
rights and privileges of the Trustee, shall be as provided by the Trust
Indenture Act.
Every Holder of 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 made pursuant to the Trust
Indenture Act.
SECTION 703. REPORTS BY TRUSTEE.
The Trustee shall transmit to Holders 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.
Reports so required to be transmitted at stated intervals of not more than
12 months shall be transmitted no later than sixty days after each May 1
following the date of first issuance.
A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Trustee with each stock exchange upon which any
Securities are listed, with the Commission and with the Company. (The Company
will notify the Trustee when any Securities are listed on any stock exchange
pursuant to Section 704.)
SECTION 704. REPORTS BY COMPANY.
The Company shall file with the Trustee and the Commission, and transmit to
Holders, 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; provided that any such information,
documents or reports required to be filed with the Commission pursuant to
Section 13 or 15(d) of the Exchange Act shall be filed with the Trustee within
15 days after the same is so required to be filed with the Commission.
The Company shall notify the Trustee when any Securities are listed on any
stock exchange.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS.
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
(1) (a) the Company shall be the continuing corporation or
(b) (i) 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
(ii) such corporation shall expressly assume the due and
punctual payment of the principal of and any premium and
interest on all the 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
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(2) 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 801, "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 802. SUCCESSOR SUBSTITUTED.
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 Securities in accordance with Section 801, 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
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 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 Indenture prescribed, the Trustee shall authenticate and shall deliver
any Securities which previously shall have been signed and delivered by the
officers of the Company to the Trustee for authentication and any Securities
which such successor corporation thereafter shall cause to be signed and
delivered to the Trustee for that purpose. All the Securities so issued shall in
all respects have the same legal rank and benefit under this Indenture as the
Securities theretofore or thereafter issued in accordance with the terms of this
Indenture as though all of such 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 Securities
thereafter to be issued as may be appropriate.
SECTION 803. SECURE WITH LIEN ON PROPERTY.
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 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 804. TRUSTEE ENTITLED TO OPINION.
The Trustee, subject to the provisions of Sections 601 and 603, 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 Eight.
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ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holders, the Company, when authorized by its
Board of Directors, and the Trustee, at any time and from time to time, may
enter into one or more indentures supplemental hereto, in form satisfactory to
the Trustee, for one or more of the following purposes:
(1) to evidence the succession of another Person to the Company and
the assumption by any such successor of the covenants of the
Company herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (and if such covenants
are to be for the benefit of less than all series of 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; or
(3) to add any additional Events of Default for the benefit of the
Holders of all or any series of Securities (and if such additional
Events of Default are to be for the benefit of less than all
series of Securities, stating that such additional Events of
Default are expressly being included solely for the benefit of
such series); or
(4) to add to or change any of the provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the
issuance of Securities in bearer form, registrable or not
registrable as to principal, and with or without interest coupons,
or to permit or facilitate the issuance of Securities in
uncertificated form; or
(5) To add to, change or eliminate any of the provisions of this
Indenture in respect of one or more series of Securities, provided
that any such addition, change or elimination
(A) shall neither
(i) apply to any Security of any series created prior to the
execution of such supplemental indenture and entitled to
the benefit of such provision nor
(ii) modify the rights of the Holder of any such Security with
respect to such provision
or
(B) shall become effective only when there is no such Security
Outstanding;
or
(6) to secure the Securities pursuant to the requirements of Section
1005 or to otherwise secure the Securities of any series; or
(7) to establish the form or terms of Securities of any series as
permitted by Sections 201 and 301; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of
one or more series 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 the requirements of Section 611; or
(9) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other
provision herein, or to make any other provisions with respect to
matters or questions arising under this Indenture, provided that
such action pursuant to this Clause (9) shall not adversely affect
the interests of the Holders of Securities of any series in any
material respect.
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SECTION 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
With the consent of the Holders of not less than 66 2/3% in principal
amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by its Board of Directors, and the Trustee
may enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of Securities of such series under this Indenture; provided, however,
that no such supplemental indenture shall, without the consent of the Holder of
each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any installment
of principal of or interest on, any Security, or reduce the
principal amount thereof or the rate of interest thereon or any
premium payable upon the redemption thereof, or reduce the amount
of the principal of an Original Issue Discount Security or any
other Security which would be due and payable upon a declaration
of acceleration of the Maturity thereof pursuant to Section 502,
or change the coin or currency in which any Security or any
premium or interest thereon is payable, or impair the right to
institute suit for the enforcement of any such payment on or after
the Stated Maturity thereof (or, in the case of redemption, on or
after the Redemption Date), or adversely affect any right of the
Holder of any Security to require the Company to repurchase such
Security
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required
for any such supplemental indenture, or the consent of whose
Holders is required for any waiver (of compliance with certain
provisions of this Indenture or certain defaults hereunder and
their consequences) provided for in this Indenture, or
(3) modify any of the provisions of this Section, Section 513 or
Section 1010, except to increase any percentage set forth in such
Sections or to provide that certain other provisions of this
Indenture cannot be modified or waived without the consent of the
Holder of each Outstanding Security affected thereby; provided,
however, that this clause shall not be deemed to require the
consent of any Holder with respect to changes in the references to
"the Trustee" and concomitant changes in this Section and Section
1010, or the deletion of this proviso, in accordance with the
requirements of Sections 611 and 901(8).
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
SECTION 903. EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 601) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
SECTION 904. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this Article, this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
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SECTION 905. CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act.
SECTION 906. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES.
Securities of any series authenticated and delivered after the execution of
any supplemental indenture pursuant to this Article may, and shall if required
by the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Securities of any series so modified as to conform, in the opinion of the
Trustee and the Company, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by the Trustee in
exchange for Outstanding Securities of such series.
ARTICLE TEN
COVENANTS
SECTION 1001. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.
The Company covenants and agrees for the benefit of each series of
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
any premium and interest on each of the Securities of such series at the Place
of Payment, at the respective times and in the manner provided in the Securities
and this Indenture. The principal of, premium, and interest on the Securities
shall be payable only in accordance with the terms of the relevant Security.
SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY.
The Company will maintain in the Borough of Manhattan, The City of New
York, and in each other Place of Payment for any series of Securities an office
or agency where Securities of that series may be presented or surrendered for
payment, where Securities of that series may be surrendered for registration of
transfer or exchange and where notices and demands to or upon the Company in
respect of the Securities of that series and this Indenture may be served. The
Company will give prompt written notice to the Trustee of the location, and any
change in the location, of such office or agency. If at any time the Company
shall fail to maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the Corporate Trust Office of the
Trustee, or an affiliate of the Trustee, and the Company hereby appoints the
Trustee as its agent to receive all such presentations, surrenders, notices and
demands.
The Company may also from time to time designate one or more other offices
or agencies where the Securities of one or more series may be presented or
surrendered for any or all such purposes and may from time to time rescind such
designations; provided, however, that no such designation or rescission shall in
any manner relieve the Company of its obligation to maintain an office or agency
in the Borough of Manhattan, The City of New York, and in each other Place of
Payment for Securities of any series for such purposes. The Company will give
prompt written notice to the Trustee of any such designation or rescission and
of any change in the location of any such other office or agency.
SECTION 1003. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST.
If the Company shall at any time act as its own Paying Agent with respect
to any series of Securities, it will, on or before each due date of the
principal of or any premium or interest on any of the Securities of that series,
segregate and hold in trust for the benefit of the Persons entitled thereto a
sum sufficient to pay the principal and any premium and interest so becoming due
until such sums shall be paid to such Persons or otherwise disposed of as herein
provided and will promptly notify the Trustee of its action or failure so to
act.
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Whenever the Company shall have one or more Paying Agents for any series of
Securities, it will, prior to each due date of the principal of or any premium
or interest on any Securities of that series, deposit with a Paying Agent a sum
sufficient to pay such amount, such sum to be held as provided by the Trust
Indenture Act, and (unless such Paying Agent is the Trustee) the Company will
promptly notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent, other than the Trustee or the
Company, for any series of Securities 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, 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 Securities of that series) in the making of any payment in respect of the
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 Securities of that series. Each of the Company and the Trustee,
having agreed to the foregoing on its behalf as a Paying Agent by its execution
and delivery of this instrument, has hereby satisfied the provisions of this
paragraph with respect to itself as a Paying Agent.
The Company may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or by Company
Order direct any Paying Agent to pay, to the Trustee all sums held in trust by
the Company or such Paying Agent, such sums to be held by the Trustee upon the
same trusts as those upon which such sums were held by the Company or such
Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such
Paying Agent shall be released from all further liability with respect to such
money.
Any money deposited with the Trustee or any Paying Agent, or then held by
the Company, in trust for the payment of the principal of or any premium or
interest on any Security of any series and remaining unclaimed for two years
after such principal, premium or interest has become due and payable shall be
paid to the Company on Company Request, or (if then held by the Company) shall
be discharged from such trust; and the Holder of such Security shall thereafter,
as an unsecured general creditor, look only to the Company for payment thereof,
and all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, 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, in a newspaper published in the English language, customarily
published on each Business Day and of general circulation in New York, New York,
notice that such money remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of such publication,
any unclaimed balance of such money then remaining will be repaid to the Company
free of the trust formerly impressed upon it.
SECTION 1004. STATEMENT BY OFFICERS AS TO DEFAULT.
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 1005. MORTGAGE OF CERTAIN PROPERTY
If the Company or any Subsidiary of the Company shall Mortgage 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 in its discretion, the Company
will secure or will cause such Subsidiary to secure each series of the
Securities equally and ratably with all indebtedness or obligations secured by
the Mortgage then being given and
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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
(1) 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
(2) 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) 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 1005,
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 1005 does not at the
time such lien or Mortgage is granted exceed five percent (5%) of Consolidated
Net Tangible Assets.
SECTION 1006. SALES AND LEASE BACK OF CERTAIN PROPERTIES.
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 part of a plant which includes such a
facility, or
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(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 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 1005, Mortgage such property without equally and
ratably securing the 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) (i) the Company promptly informs the Trustee of such sale,
(ii) 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 such property and
(iii) 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) 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 1006), 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 referred to
in the parenthetical phrase contained in subclause (e)(ii) of this Section 1006
and an Officers' Certificate setting forth all material facts under this Section
1006. For the purposes of this Section 1006 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 1007. CHANGE IN CONTROL.
(a) If there shall have occurred a Change in Control, 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
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(i) unless otherwise specified in the terms of such 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 Securities of record at the close of business on
the relevant record dates according to their terms and the
provisions of Section 307), or
(ii) such other price or prices as may be specified in the terms of
such 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 1007(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
Exchange Act, 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 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 801
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 (or
members' equity, as the case may be), 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 1007, 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
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beneficial owners as required by applicable law) of 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 1007 must be given;
(3) the Change in Control Purchase Date;
(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 Security of such
series surrendered in accordance with this Section 1007 and the
terms of such 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 1007, 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 1007 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 Securities of any series may exercise its rights specified
in Section 1007(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
1007(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 Security or Securities
which the Holder will deliver to be purchased; and
(2) that such Security or Securities shall be purchased pursuant to
the terms and conditions specified herein and in the Company's
notice pursuant to Section 1007(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 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 be so paid pursuant to this Section 1007 only if the
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 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 1007
with respect to less than all such beneficial owners.
Any purchase by the Company contemplated pursuant to the provisions of
this Section 1007 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
Security.
Notwithstanding anything herein to the contrary, any Holder of
Securities of a series delivering to the Paying Agent for such series
the Change in Control Purchase Notice contemplated by this Section
1007(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 1008. A Holder may, but is
not required
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to, use the Form of Notice of Withdrawal of Change in Control Purchase
Notice attached hereto as Exhibit B.
SECTION 1008. CHANGE IN CONTROL PURCHASE PRICE.
Upon receipt by the Company of the Change in Control Purchase Notice
specified in Section 1007(c), the Holder of the 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 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 Security
(provided the conditions in Section 1007(c) have been satisfied)
and
(y) the time of delivery of such Security to the Paying Agent therefor
by the Holder thereof in the manner required by Section 1007(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 1007(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 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.
SECTION 1009. DEPOSIT OF CHANGE IN CONTROL PURCHASE PRICE.
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 1003)
an amount of money sufficient to pay the aggregate Change in Control Purchase
Price of all the Securities which are to be purchased as of the Change in
Control Purchase Date.
SECTION 1010. WAIVER OF CERTAIN COVENANTS.
Except as otherwise specified as contemplated by Section 301 for Securities
of such series, the Company may, with respect to the Securities of any series,
omit in any particular instance to comply with any term, provision or condition
set forth in any covenant provided pursuant to Section 301(18), 901(2) or 901(7)
for the benefit of the Holders of such series or in any of Sections 1005 through
1009, inclusive, if before the time for such compliance the Holders of at least
a majority in principal amount of the Outstanding Securities of such series
shall, by Act of such Holders, either waive such compliance in such instance or
generally waive compliance with such term, provision or condition, but no such
waiver shall extend to or affect such term, provision or condition except to the
extent so expressly waived, and, until such waiver shall become effective, the
obligations of the Company and the duties of the Trustee in respect of any such
term, provision or condition shall remain in full force and effect.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. APPLICABILITY OF ARTICLE.
Securities of any series which are redeemable before their Stated Maturity
shall be redeemable in accordance with their terms and (except as otherwise
specified as contemplated by Section 301 for such Securities) in accordance with
this Article.
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SECTION 1102. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem any Securities shall be evidenced by
a Board Resolution or in another manner specified as contemplated by Section 301
for such Securities. In case of any redemption at the election of the Company of
less than all the Securities of any series (including any such redemption
affecting only a single Security), the Company shall, at least 60 days prior to
the Redemption Date fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee of such Redemption Date, of the
principal amount of Securities of such series to be redeemed and, if applicable,
of the tenor of the Securities to be redeemed. In the case of any redemption of
Securities prior to the expiration of any restriction on such redemption
provided in the terms of such Securities or elsewhere in this Indenture, the
Company shall furnish the Trustee with an Officers' Certificate evidencing
compliance with such restriction.
SECTION 1103. SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED.
If less than all the Securities of any series are to be redeemed (unless
all the Securities of such series and of a specified tenor are to be redeemed or
unless such redemption affects only a single Security), the particular
Securities to be redeemed shall be selected not more than 60 days prior to the
Redemption Date by the Trustee, from the Outstanding Securities of such series
not previously called for redemption, by such method as the Trustee shall deem
fair and appropriate and which may provide for the selection for redemption of a
portion of the principal amount of any Security of such series, provided that
the unredeemed portion of the principal amount of any Security shall be in an
authorized denomination (which shall not be less than the minimum authorized
denomination or any integral multiple thereof) for such Security. If less than
all the Securities of such series and of a specified tenor are to be redeemed
(unless such redemption affects only a single Security), the particular
Securities to be redeemed shall be selected not more than 60 days prior to the
Redemption Date by the Trustee, from the Outstanding Securities of such series
and specified tenor not previously called for redemption in accordance with the
preceding sentence.
The Trustee shall promptly notify the Company in writing of the Securities
selected for redemption as aforesaid and, in case of any Securities selected for
partial redemption as aforesaid, the principal amount thereof to be redeemed.
The provisions of the two preceding paragraphs shall not apply with respect
to any redemption affecting only a single Security, whether such Security is to
be redeemed in whole or in part. In the case of any such redemption in part, the
unredeemed portion of the principal amount of the Security shall be in an
authorized denomination (which shall not be less than the minimum authorized
denomination) for such Security.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities shall relate, in the
case of any Securities redeemed or to be redeemed only in part, to the portion
of the principal amount of such Securities which has been or is to be redeemed.
SECTION 1104. NOTICE OF REDEMPTION.
Notice of redemption shall be given by first-class mail, postage prepaid,
mailed not less than 30 nor more than 60 days prior to the Redemption Date, to
each Holder of Securities to be redeemed, at his address appearing in the
Security Register.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of any series
consisting of more than a single Security are to be redeemed, the
identification (and, in the case of partial redemption of any such
Securities, the principal amounts) of the particular Securities to
be redeemed and, if less than all the Outstanding Securities of
any series consisting of a single Security are to be redeemed, the
principal amount of the particular Security to be redeemed,
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(4) that on the Redemption Date the Redemption Price will become due
and payable upon each such Security to be redeemed and, if
applicable, that interest thereon will cease to accrue on and
after said date,
(5) the place or places where each such Security is to be surrendered
for payment of the Redemption Price, and
(6) that the redemption is for a sinking fund, if such is the case.
Notice of redemption of Securities to be redeemed at the election of the
Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company and shall be irrevocable.
SECTION 1105. DEPOSIT OF REDEMPTION PRICE.
Prior to any Redemption Date, the Company shall deposit with the Trustee or
with a Paying Agent (or, if the Company is acting as its own Paying Agent,
segregate and hold in trust as provided in Section 1003) an amount of money
sufficient to pay the Redemption Price of, and (except if the Redemption Date
shall be an Interest Payment Date) accrued interest on, all the Securities which
are to be redeemed on that date.
SECTION 1106. SECURITIES PAYABLE ON REDEMPTION DATE.
Notice of redemption having been given as aforesaid, the Securities so to
be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, such Security shall
be paid by the Company at the Redemption Price, together with accrued interest
to the Redemption Date; provided, however, that, unless otherwise specified as
contemplated by Section 301, installments of interest whose Stated Maturity is
on or prior to the Redemption Date will be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as such at the
close of business on the relevant Record Dates according to their terms and the
provisions of Section 307.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal and any premium shall, until paid, bear
interest from the Redemption Date at the rate prescribed therefor in the
Security.
SECTION 1107. SECURITIES REDEEMED IN PART.
Any Security which is to be redeemed only in part shall be surrendered at a
Place of Payment 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 Security without service
charge, a new Security or Securities of the same series and of like tenor, of
any authorized denomination as requested by such Holder, in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Security so surrendered.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. APPLICABILITY OF ARTICLE.
The provisions of this Article shall be applicable to any sinking fund for
the retirement of Securities of any series except as otherwise specified as
contemplated by Section 301 for such Securities.
The minimum amount of any sinking fund payment provided for by the terms of
any Securities is herein referred to as a "mandatory sinking fund payment", and
any payment in excess of such minimum amount
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provided for by the terms of such Securities is herein referred to as an
"optional sinking fund payment". If provided for by the terms of any Securities,
the cash amount of any sinking fund payment may be subject to reduction as
provided in Section 1202. Each sinking fund payment shall be applied to the
redemption of Securities as provided for by the terms of such Securities.
SECTION 1202. SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES.
The Company
(1) may deliver Outstanding Securities of a series (other than any
previously called for redemption) and
(2) may apply as a credit Securities of a series which have been
redeemed either at the election of the Company pursuant to the
terms of such Securities or through the application of permitted
optional sinking fund payments pursuant to the terms of such
Securities,
in each case in satisfaction of all or any part of any sinking fund payment with
respect to any Securities of such series required to be made pursuant to the
terms of such Securities as and to the extent provided for by the terms of such
Securities; provided that the Securities to be so credited have not been
previously so credited. The Securities to be so credited shall be received and
credited for such purpose by the Trustee at the Redemption Price, as specified
in the Securities so to be redeemed, for redemption through operation of the
sinking fund and the amount of such sinking fund payment shall be reduced
accordingly.
SECTION 1203. REDEMPTION OF SECURITIES FOR SINKING FUND.
Not less than 45 days prior to each sinking fund payment date for any
Securities, the Company will deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing sinking fund payment for such
Securities pursuant to the terms of such Securities, the portion thereof, if
any, which is to be satisfied by payment of cash and the portion thereof, if
any, which is to be satisfied by delivering and crediting Securities pursuant to
Section 1202 and will also deliver to the Trustee any Securities to be so
delivered. Not less than 15 nor more than 45 days prior to each such sinking
fund payment date, the Trustee shall select the Securities to be redeemed upon
such sinking fund payment date in the manner specified in Section 1103 and cause
notice of the redemption thereof to be given in the name of and at the expense
of the Company in the manner provided in Section 1104. Such notice having been
duly given, the redemption of such Securities shall be made upon the terms and
in the manner stated in Sections 1106 and 1107.
ARTICLE THIRTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1301. COMPANY'S OPTION TO EFFECT DEFEASANCE OR COVENANT DEFEASANCE.
The Company may elect, at its option at any time, to have Section 1302 or
Section 1303 applied to any Securities or any series of Securities, as the case
may be, designated pursuant to Section 301 as being defeasible pursuant to such
Section 1302 or 1303, in accordance with any applicable requirements provided
pursuant to Section 301 and upon compliance with the conditions set forth below
in this Article. Any such election shall be evidenced by a Board Resolution or
in another manner specified as contemplated by Section 301 for such Securities.
SECTION 1302. DEFEASANCE AND DISCHARGE.
Upon the Company's exercise of its option (if any) to have this Section
applied to any Securities or any series of Securities, as the case may be, the
Company shall be deemed to have been discharged from its obligations with
respect to such Securities as provided in this Section on and after the date the
conditions set forth in Section 1304 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 such
Securities and
47
<PAGE> 54
to have satisfied all its other obligations under such Securities and this
Indenture insofar as such Securities 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 such Securities to receive, solely from
the trust fund described in Section 1304 and as more fully set
forth in such Section, payments in respect of the principal of and
any premium and interest on such Securities when payments are due,
(2) the Company's obligations with respect to such Securities under
Sections 304, 305, 306, 1002 and 1003,
(3) the rights, powers, trusts, duties and immunities of the Trustee
hereunder and
(4) this Article.
Subject to compliance with this Article, the Company may exercise its
option (if any) to have this Section applied to any Securities notwithstanding
the prior exercise of its option (if any) to have Section 1303 applied to such
Securities.
SECTION 1303. COVENANT DEFEASANCE.
Upon the Company's exercise of its option (if any) to have this Section
applied to any Securities or any series of Securities, as the case may be,
(1) the Company shall be released from its obligations under Section
801(1)(b)(i), Section 803, Sections 1005 through 1007, inclusive,
Section 1009 and any covenants provided pursuant to Section
301(18), 901(2) or 901(7) for the benefit of the Holders of such
Securities, and
(2) the occurrence of any event specified in Sections 501(4), 501(5)
(with respect to any of Section 801(1)(b)(i), Section 803,
Sections 1005 through 1007, inclusive, Section 1009 and any such
covenants provided pursuant to Section 301(18), 901(2) or 901(7))
and 501(8) shall be deemed not to be or result in an Event of
Default,
in each case with respect to such Securities as provided in this Section on and
after the date the conditions set forth in Section 1304 are satisfied
(hereinafter called "Covenant Defeasance"). For this purpose, such Covenant
Defeasance means that, with respect to such Securities, 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 501(5)), 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 such Securities shall be unaffected thereby.
SECTION 1304. CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE.
The following shall be the conditions to the application of Section 1302 or
Section 1303 to any Securities or any series of Securities, as the case may be:
(1) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee which satisfies the
requirements contemplated by Section 609 and agrees to comply with
the provisions of this Article 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
benefits of the Holders of such Securities,
(A) money in an amount (in such currency, currencies or currency
unit or units in which the Securities of such series are
payable), or
(B) in the case of Securities denominated in Dollars, U.S.
Government Obligations, or, in the case of Securities
denominated in a Foreign Currency, Foreign Government
Obligations, which through the scheduled payment of principal
and interest in respect thereof in accordance with
48
<PAGE> 55
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 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 such Securities on the respective Stated
Maturities, in accordance with the terms of this Indenture and such
Securities. As used herein, "U.S. Government Obligation" means
(x) any security which is
(i) a direct obligation of the United States of America for the
payment of which the 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) as custodian with respect to any
U.S. Government Obligation which is specified in Clause (x)
above and held by such bank for the account of the holder of
such depositary receipt, or with respect to any specific
payment of principal of or interest on any U.S. Government
Obligation which is so specified and held, 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 event of an election to have Section 1302 apply to any
Securities or any series of Securities, as the case may be, 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 of this instrument, 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 such Securities 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
such Securities 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 event of an election to have Section 1303 apply to any
Securities or any series of Securities, as the case may be, the
Company shall have delivered to the Trustee an Opinion of Counsel
to the effect that the Holders of such Securities 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 such Securities 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 which is, or after notice or lapse of time or both would
become, an Event of Default with respect to such Securities or any
other Securities shall have occurred and be continuing at the time
49
<PAGE> 56
of such deposit or, with regard to any such event specified in
Sections 501(6) and (7), 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 (assuming all Securities are in default within the
meaning of such 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) 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 (and any
statute successor thereto) unless such trust shall be registered
under such Act or exempt from registration thereunder.
(8) At the time of such deposit, (A) no default in the payment of any
principal of or premium or interest on any Senior Debt shall have
occurred and be continuing, (B) no event of default with respect
to any Senior Debt shall have resulted in such Senior Debt
becoming, and continuing to be, due and payable prior to the date
on which it would otherwise have become due and payable (unless
payment of such Senior Debt has been made or duly provided for),
and (C) no other event of default with respect to any Senior Debt
shall have occurred and be continuing permitting (after notice or
lapse of time or both) the holders of such Senior Debt (or a
trustee on behalf of such holders) to declare such Senior Debt due
and payable prior to the date on which it would otherwise have
become due and payable.
(9) 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.
SECTION 1305. DEPOSITED MONEY AND U.S. GOVERNMENT OBLIGATIONS TO BE HELD IN
TRUST; MISCELLANEOUS PROVISIONS.
Subject to the provisions of the last paragraph of Section 1003, all money,
U.S. Government Obligations (including the proceeds thereof) and Foreign
Government Obligations (including the proceeds thereof) deposited with the
Trustee or other qualifying trustee (solely for purposes of this Section and
Section 1306, the Trustee and any such other trustee are referred to
collectively as the "Trustee") pursuant to Section 1304 in respect of any
Securities shall be held in trust and applied by the Trustee, in accordance with
the provisions of such Securities and this Indenture, to the payment, either
directly or through any such Paying Agent (including the Company acting as its
own Paying Agent) as the Trustee may determine, to the Holders of such
Securities, 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 and
Foreign Government Obligations deposited pursuant to Section 1304 or the
principal and interest received in respect thereof other than any such tax, fee
or other charge which by law is for the account of the Holders of Outstanding
Securities.
Anything in this Article to the contrary notwithstanding, the Trustee shall
deliver or pay to the Company from time to time upon Company Request any money,
U.S. Government Obligations or Foreign Government Obligations held by it as
provided in Section 1304 with respect to any Securities which, 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 which would then be required to be deposited to effect the
Defeasance or Covenant Defeasance, as the case may be, with respect to such
Securities.
50
<PAGE> 57
SECTION 1306. REINSTATEMENT.
If the Trustee or the Paying Agent is unable to apply any money in
accordance with this Article with respect to any Securities by reason of any
order or judgment of any court or governmental authority enjoining, restraining
or otherwise prohibiting such application, then the obligations under this
Indenture and such Securities from which the Company has been discharged or
released pursuant to Section 1302 or 1303 shall be revived and reinstated as
though no deposit had occurred pursuant to this Article with respect to such
Securities, until such time as the Trustee or Paying Agent is permitted to apply
all money held in trust pursuant to Section 1305 with respect to such Securities
in accordance with this Article; provided, however, that if the Company makes
any payment of principal of or any premium or interest on any such Security
following such reinstatement of its obligations, the Company shall be subrogated
to the rights (if any) of the Holders of such Securities to receive such payment
from the money so held in trust.
51
<PAGE> 58
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
USX CORPORATION
By
-----------------------------------
Attest:
- -------------------------------------------
HARRIS TRUST AND SAVINGS BANK
By
-----------------------------------
Attest:
- -------------------------------------------
52
<PAGE> 59
Commonwealth of Pennsylvania
County of Allegheny ss.:
On the day of , , before me personally came
, to me known, who, being by me duly sworn, did depose and say
that he/she is of USX Corporation, one of the corporations
described in and which executed the foregoing instrument; that he/she knows the
seal of said corporation; that the seal affixed to said instrument is such
corporate seal; that it was so affixed by authority of the Board of Directors of
said corporation; and that he/she signed his/her name thereto by like authority.
State of Illinois
County of Cook ss.:
On the day of , , before me personally came
, to me known, who, being by me duly sworn, did depose and say
that he/she is of Harris Trust and Savings Bank, one of the
corporations described in and which executed the foregoing instrument; that
he/she knows the seal of said corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed by authority of the
Board of Directors of said corporation; and that he/she signed his/her name
thereto by like authority.
53
<PAGE> 60
EXHIBIT A
CHANGE IN CONTROL PURCHASE NOTICE
[DATE]
USX Corporation
600 Grant Street
Room 611
Pittsburgh, PA 15219-4776
Ladies and Gentlemen:
This letter represents a Change in Control Purchase Notice as defined in
and pursuant to Section 1007(c) of the Indenture dated as of ,
between USX Corporation (the "Company") and Harris Trust and Savings
Bank, as Trustee (the "Trustee"), relating to Securities of the Company (the
"Securities").
1. The certificate number[s] of the Security or Securities which the
undersigned will deliver to be purchased [is/are]
2. The undersigned elects to exercise the undersigned's option to have the
above designated Security or Securities purchased pursuant to the terms
and conditions specified in the Securities.
Very truly yours,
A-1
<PAGE> 61
EXHIBIT B
NOTICE OF WITHDRAWAL OF CHANGE IN CONTROL
PURCHASE NOTICE
[DATE]
USX Corporation
600 Grant Street
Room 611
Pittsburgh, PA 15219-4776
Ladies and Gentlemen:
The undersigned hereby withdraws the Change in Control Purchase Notice as
defined in and pursuant to Section 1008 of the Indenture dated as of
, between USX Corporation (the "Company") and Harris Trust
and Savings Bank, as Trustee (the "Trustee"), relating to Securities of the
Company (the "Securities"), previously delivered to you by the undersigned.
The following information is supplied by the undersigned with respect to
the election of withdrawal:
The certificate number[s] of the Security or Securities in respect
of which such notice of withdrawal is being submitted [is/are]
Very truly yours,
B-1
<PAGE> 1
Exhibit 4.3(b)
USX CORPORATION, Issuer
AND
HARRIS TRUST AND SAVINGS BANK, Trustee
------------------------
INDENTURE
Dated as of ,
------------------------
Subordinated Debt Securities
<PAGE> 2
------------------------
Certain Sections of this Indenture relating to Sections 310 through 318,
inclusive,
of the Trust Indenture Act of 1939:
<TABLE>
<CAPTION>
TRUST INDENTURE
ACT SECTION INDENTURE SECTION
- --------------- -----------------
<C> <S> <C> <C>
sec.
310 (a)(1) ............................................................ 609
(a)(2) ............................................................ 609
(a)(3) ............................................................ Not Applicable
(a)(4) ............................................................ Not Applicable
(a)(5) ............................................................ 609
(b) ............................................................ 608
............................................................ 610
sec.
311 (a) ............................................................ 613
(b) ............................................................ 613
sec.
312 (a) ............................................................ 701
............................................................ 702
(b) ............................................................ 702
(c) ............................................................ 702
sec.313 (a) ............................................................ 703
(b) ............................................................ 703
(c) ............................................................ 703
(d) ............................................................ 703
sec.
314 (a) ............................................................ 704
(a)(4) ............................................................ 101
............................................................ 1004
(b) ............................................................ Not Applicable
(c)(1) ............................................................ 102
(c)(2) ............................................................ 102
(c)(3) ............................................................ Not Applicable
(d) ............................................................ Not Applicable
(e) ............................................................ 102
sec.
315 (a) ............................................................ 601
............................................................ 603
(b) ............................................................ 602
(c) ............................................................ 601
(d)(1) ............................................................ 601
(d)(2) ............................................................ 601
............................................................ 603
(d)(3) ............................................................ 601
............................................................ 603
(e) ............................................................ 514
sec.
316 (a) ............................................................ 101
(a)(1)(A) ............................................................ 502
............................................................ 512
(a)(1)(B) ............................................................ 513
(a)(2) ............................................................ Not Applicable
(b) ............................................................ 508
(c) ............................................................ 104
sec.
317 (a)(1) ............................................................ 503
(a)(2) ............................................................ 504
(b) ............................................................ 1003
sec.318 (a) ............................................................ 107
(b) ............................................................ 107
(c) ............................................................ 101
............................................................ 107
</TABLE>
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
<PAGE> 3
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
PARTIES..................................................... 1
Recitals of the Company..................................... 1
ARTICLE ONE Definitions and Other Provisions of General
Application............................................... 1
SECTION 101. Definitions.................................... 1
"Act"..................................................... 1
"Affiliate"............................................... 1
"Authenticating Agent".................................... 1
"Board of Directors"...................................... 2
"Board Resolution"........................................ 2
"Business Day"............................................ 2
"Commission".............................................. 2
"Company"................................................. 2
"Company Request" or "Company Order"...................... 2
"Corporate Trust Office".................................. 2
"corporation"............................................. 2
"Covenant Defeasance"..................................... 2
"Defaulted Interest"...................................... 2
"Defeasance".............................................. 2
"Depositary".............................................. 2
"Dollar".................................................. 2
"Establishment Action".................................... 2
"Event of Default"........................................ 2
"Exchange Act"............................................ 2
"Foreign Currency"........................................ 2
"Foreign Government Obligations".......................... 3
"Global Security"......................................... 3
"Holder".................................................. 3
"Indenture"............................................... 3
"Junior Securities"....................................... 3
"interest"................................................ 3
"Interest Payment Date"................................... 3
"Maturity"................................................ 3
"Notice of Default"....................................... 3
"Officers' Certificate"................................... 3
"Opinion of Counsel"...................................... 3
"Original Issue Discount Security"........................ 3
"Outstanding"............................................. 3
"Paying Agent"............................................ 4
"Person".................................................. 4
"Place of Payment"........................................ 4
"Predecessor Security".................................... 4
"Redemption Date"......................................... 4
"Redemption Price"........................................ 4
"Regular Record Date"..................................... 5
"Securities".............................................. 5
"Securities Act".......................................... 5
"Security Register" and "Security Registrar".............. 5
"Senior Debt"............................................. 5
"Special Record Date"..................................... 5
</TABLE>
i
<PAGE> 4
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
"Stated Maturity"......................................... 5
"Subsidiary".............................................. 5
"Trust Indenture Act"..................................... 5
"Trustee"................................................. 5
"United States"........................................... 5
"U.S. Government Obligation".............................. 5
"Vice President".......................................... 5
"Voting Power"............................................ 6
"Voting Stock"............................................ 6
SECTION 102. Compliance Certificates and Opinions........... 6
SECTION 103. Form of Documents Delivered To Trustee......... 6
SECTION 104. Acts of Holders; Record Dates.................. 6
SECTION 105. Notices, Etc., to Trustee and Company.......... 7
SECTION 106. Notice to Holders; Waiver...................... 7
SECTION 107. Conflict with Trust Indenture Act.............. 8
SECTION 108. Effect of Headings and Table of Contents....... 8
SECTION 109. Successors and Assigns......................... 8
SECTION 110. Separability Clause............................ 8
SECTION 111. Benefits of Indenture.......................... 8
SECTION 112. Governing Law.................................. 8
SECTION 113. Legal Holidays................................. 8
ARTICLE TWO Security Forms.................................. 9
SECTION 201. Forms Generally................................ 9
SECTION 202. Form of Face of Security....................... 9
SECTION 203. Form of Reverse of Security.................... 10
SECTION 204. Form of Legend for Global Securities........... 13
SECTION 205. Form of Trustee's Certificate of
Authentication................................. 14
ARTICLE THREE The Securities................................ 14
SECTION 301. Amount Unlimited; Issuable in Series........... 14
SECTION 302. Denominations.................................. 16
SECTION 303. Execution, Authentication, Delivery and
Dating......................................... 16
SECTION 304. Temporary Securities........................... 17
SECTION 305. Registration, Registration of Transfer and
Exchange....................................... 17
SECTION 306. Mutilated, Destroyed, Lost and Stolen
Securities..................................... 19
SECTION 307. Payment of Interest; Interest Rights
Preserved...................................... 19
SECTION 308. Persons Deemed Owners.......................... 20
SECTION 309. Cancellation................................... 20
SECTION 310. Computation of Interest........................ 21
ARTICLE FOUR Satisfaction and Discharge..................... 21
SECTION 401. Satisfaction and Discharge of Indenture........ 21
SECTION 402. Application of Trust Money..................... 22
ARTICLE FIVE Remedies....................................... 22
SECTION 501. Events of Default.............................. 22
SECTION 502. Acceleration of Maturity; Rescission and
Annulment...................................... 23
SECTION 503. Collection of Indebtedness and Suits for
Enforcement by Trustee......................... 24
SECTION 504. Trustee May File Proofs of Claim............... 24
SECTION 505. Trustee May Enforce Claims Without Possession
of Securities.................................. 25
SECTION 506. Application of Money Collected................. 25
SECTION 507. Limitation on Suits............................ 25
</TABLE>
ii
<PAGE> 5
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
SECTION 508. Unconditional Right of Holders to Receive
Principal, Premium and Interest................ 26
SECTION 509. Restoration of Rights and Remedies............. 26
SECTION 510. Rights and Remedies Cumulative................. 26
SECTION 511. Delay or Omission Not Waiver................... 26
SECTION 512. Control by Holders............................. 26
SECTION 513. Waiver of Past Defaults........................ 27
SECTION 514. Undertaking for Costs.......................... 27
SECTION 515. Waiver of Usury, Stay or Extension Laws........ 27
ARTICLE SIX The Trustee..................................... 27
SECTION 601. Certain Duties and Responsibilities............ 27
SECTION 602. Notice of Defaults............................. 27
SECTION 603. Certain Rights of Trustee...................... 28
SECTION 604. Not Responsible for Recitals or Issuance of
Securities..................................... 28
SECTION 605. May Hold Securities............................ 29
SECTION 606. Money Held in Trust............................ 29
SECTION 607. Compensation, Reimbursement and
Indemnification................................ 29
SECTION 608. Conflicting Interests.......................... 29
SECTION 609. Corporate Trustee Required; Eligibility........ 29
SECTION 610. Resignation and Removal; Appointment of
Successor...................................... 30
SECTION 611. Acceptance of Appointment by Successor......... 31
SECTION 612. Merger, Conversion, Consolidation or Succession
to Business.................................... 32
SECTION 613. Preferential Collection of Claims Against
Company........................................ 32
SECTION 614. Appointment of Authenticating Agent............ 32
ARTICLE SEVEN Holders' Lists and Reports by Trustee and
Company................................................... 34
SECTION 701. Company to Furnish Trustee Names and Addresses
of Holders..................................... 34
SECTION 702. Preservation of Information; Communications to
Holders........................................ 34
SECTION 703. Reports by Trustee............................. 34
SECTION 704. Reports by Company............................. 34
ARTICLE EIGHT Consolidation, Merger, Conveyance, Transfer or
Lease..................................................... 35
SECTION 801. Company May Consolidate, Etc., Only on Certain
Terms.......................................... 35
SECTION 802. Successor Substituted.......................... 35
SECTION 803. Secure With Lien on Property................... 35
SECTION 804. Trustee Entitled to Opinion.................... 36
ARTICLE NINE Supplemental indentures........................ 36
SECTION 901. Supplemental Indentures Without Consent of
Holders........................................ 36
SECTION 902. Supplemental Indentures With Consent of
Holders........................................ 37
SECTION 903. Execution of Supplemental Indentures........... 38
SECTION 904. Effect of Supplemental Indentures.............. 38
SECTION 905. Conformity With Trust Indenture Act............ 38
SECTION 906. Reference in Securities to Supplemental
Indentures..................................... 38
ARTICLE TEN Covenants....................................... 38
SECTION 1001. Payment of Principal, Premium and Interest.... 38
SECTION 1002. Maintenance of Office or Agency............... 38
SECTION 1003. Money for Securities Payments to be Held in
Trust......................................... 39
SECTION 1004. Statement by Officers as to Default........... 39
SECTION 1005. Waiver of Certain Covenants................... 40
</TABLE>
iii
<PAGE> 6
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
ARTICLE ELEVEN Redemption of Securities..................... 40
SECTION 1101. Applicability of Article...................... 40
SECTION 1102. Election to Redeem; Notice to Trustee......... 40
SECTION 1103. Selection by Trustee of Securities to be
Redeemed...................................... 40
SECTION 1104. Notice of Redemption.......................... 41
SECTION 1105. Deposit of Redemption Price................... 41
SECTION 1106. Securities Payable on Redemption Date......... 42
SECTION 1107. Securities Redeemed in Part................... 42
ARTICLE TWELVE Sinking Funds................................ 42
SECTION 1201. Applicability of Article...................... 42
SECTION 1202. Satisfaction of Sinking Fund Payments with
Securities.................................... 42
SECTION 1203. Redemption of Securities for Sinking Fund..... 43
ARTICLE THIRTEEN Defeasance and Covenant Defeasance......... 43
SECTION 1301. Company's Option to Effect Defeasance or
Covenant Defeasance........................... 43
SECTION 1302. Defeasance and Discharge...................... 43
SECTION 1303. Covenant Defeasance........................... 44
SECTION 1304. Conditions to Defeasance or Covenant
Defeasance.................................... 44
SECTION 1305. Deposited Money and U.S. Government
Obligations to be Held in Trust; Miscellaneous
Provisions.................................... 46
SECTION 1306. Reinstatement................................. 46
ARTICLE FOURTEEN Subordination of Securities................ 47
SECTION 1401. Securities Subordinate to Senior Debt......... 47
SECTION 1402. Payment Over of Proceeds upon Dissolution,
Etc. ......................................... 47
SECTION 1403. No Payment When Senior Debt in Default........ 47
SECTION 1404. Payment Permitted in Certain Situations....... 48
SECTION 1405. Subrogation to Rights of Holders of Senior
Debt.......................................... 48
SECTION 1406. Provisions Solely to Define Relative Rights... 48
SECTION 1407. Trustee to Effectuate Subordination........... 49
SECTION 1408. No Waiver of Subordination Provisions......... 49
SECTION 1409. Notice to Trustee............................. 49
SECTION 1410. Reliance on Judicial Order or Certificate of
Liquidating Agent............................. 50
SECTION 1411. Trustee Not Fiduciary for Holders of Senior
Debt.......................................... 50
SECTION 1412. Rights of Trustee as Holder of Senior Debt;
Preservation of Trustee's Rights.............. 50
SECTION 1413. Article Applicable to Paying Agents........... 50
SECTION 1414. Certain Conversions or Exchanges Deemed
Payment....................................... 50
SECTION 1415. Defeasance of This Article Fourteen........... 51
SIGNATURES AND SEALS........................................ 52
ACKNOWLEDGMENTS............................................. 53
</TABLE>
iv
<PAGE> 7
INDENTURE, dated as of , ,
between USX CORPORATION, a corporation duly organized and existing under the
laws of the State of Delaware (herein called the "Company"), having its
principal office at 600 Grant Street, Pittsburgh, Pennsylvania 15219-4776, and
HARRIS TRUST AND SAVINGS BANK, a banking corporation duly organized and existing
under the laws of the State of Illinois, as Trustee (herein called the
"Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its subordinated
debentures, notes or other evidences of indebtedness (herein called the
"Securities"), to be issued in one or more series as in this Indenture provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities
by the Holders thereof, it is mutually agreed, for the equal and proportionate
benefit of all Holders of the Securities or of series thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. DEFINITIONS.
For all purposes of this Indenture, except as otherwise expressly provided
or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the
singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles, and, except as otherwise expressly provided
herein, the term "generally accepted accounting principles" with
respect to any computation required or permitted hereunder shall
mean such accounting principles as are generally accepted at the
date of such computation;
(4) unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as the
case may be, of this Indenture; and
(5) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
"Act", when used with respect to any Holder, has the meaning specified in
Section 104.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any Person authorized by the Trustee pursuant
to Section 614 to act on behalf of the Trustee to authenticate Securities of one
or more series.
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"Board of Directors" means the board of directors of the Company or any
duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Company to have been duly adopted by the Board
of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day", when used with respect to any Place of Payment or place of
conversion or exchange, means each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in that Place of Payment
or place of conversion or exchange are authorized or obligated by law or
executive order to close.
"Commission" means the Securities and Exchange Commission.
"Company" means USX Corporation or its successor.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, any Vice
Chairman of the Board, Chief Executive Officer, President, Chief Operating
Officer, Chief Financial Officer or any Vice President, and by its Treasurer,
any Assistant Treasurer, the Comptroller, any Assistant Comptroller, its
Secretary or any Assistant Secretary, and delivered to the Trustee.
"Corporate Trust Office" means the principal office of the Trustee at which
at any particular time its corporate trust business shall be administered, which
at the date of original execution of this Indenture is located at Harris Trust
and Savings Bank, 311 West Monroe, 12th Floor, Chicago, Illinois, 60606,
Attention: Indenture Trust Division, except that, with respect to presentation
of securities for payment or registration of transfers or exchanges, such term
means the office or agency of the affiliate of the Trustee located at c/o Harris
Trust Company of New York, 88 Pine Street, New York, New York 10005.
"corporation" includes associations, corporations, companies, limited
liability companies, and business trusts.
"Covenant Defeasance" has the meaning specified in Section 1303.
"Defaulted Interest" has the meaning specified in Section 307.
"Defeasance" has the meaning specified in Section 1302.
"Depositary" means, with respect to 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 Exchange Act that is designated to act as
Depositary for such Securities as contemplated by Section 301.
"Dollar" means the coin or currency of the United States as at the time of
payment is legal tender for the payment of public and private debts.
"Establishment Action" shall mean
(i) a resolution duly adopted by the Company's Board of Directors
establishing one or more series of Securities and authorizing the
issuance of any Security or,
(ii) a resolution or action by a committee, officer or employee of the
Company, establishing one or more series of Securities and/or
authorizing the issuance of any Security, in each case, pursuant
to a resolution duly adopted by the Company's Board of Directors.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934 and any statute
successor thereto, in each case as amended from time to time.
"Foreign Currency" means a currency of the government, or governments, of
any country, or countries, other than the United States of America.
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"Foreign Government Obligations" means, with respect to the Securities of
any series that are denominated in a Foreign Currency, securities that are
(i) direct obligations of the government, or governments, that issued
or caused to be issued such currency for the payment of which
obligations its, or their, full faith and credit is pledged or,
(ii) obligations of a Person controlled or supervised by and acting as
an agency or instrumentality of such government, or governments,
the timely payment of which is unconditionally guaranteed as a
full faith and credit obligation by such government, or
governments,
which, in either case under clauses (i) or (ii), are not callable or
redeemable at the option of the issuer thereof.
"Global Security" means a Security that evidences all or part of the
Securities of any series and bears the legend set forth in Section 204 (or such
legend as may be specified as contemplated by Section 301 for such Securities).
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Indenture" means this instrument as originally executed and as it may from
time to time be supplemented or amended by one or more indentures supplemental
hereto.
"Junior Securities" has the meaning specified in Section 1414(a).
"interest", when used with respect to an Original Issue Discount Security
which by its terms bears interest only after Maturity, means interest payable
after Maturity.
"Interest Payment Date", when used with respect to any Security, means the
Stated Maturity of an installment of interest on such Security.
"Maturity", when used with respect to any Security, means the date on which
the principal of such 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.
"Notice of Default" means a written notice of the kind specified in Section
501(4).
"Officers' Certificate" means a certificate signed by the Chairman of the
Board, any Vice Chairman of the Board, Chief Executive Officer, President, Chief
Operating Officer, Chief Financial Officer or any Vice President, and by the
Treasurer, any Assistant Treasurer, the Comptroller, any Assistant Comptroller,
the Secretary or any Assistant Secretary, of the Company, and delivered to the
Trustee. One of the officers signing an Officers' Certificate given pursuant to
Section 1004 shall be the principal executive, financial or accounting officer
of the Company.
"Opinion of Counsel" means a written opinion of counsel, who may be an
employee of, or counsel to, the Company, and who shall be acceptable to the
Trustee.
"Original Issue Discount Security" means any 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 502.
"Outstanding", when used with respect to Securities, means, as of the date
of determination, all Securities theretofore authenticated and delivered under
this Indenture, except:
(1) Securities theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(2) Securities for whose payment or redemption money in the necessary
amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company shall act as
its own Paying Agent) for the Holders of such Securities; provided
that, if such Securities are to be redeemed, notice of such
redemption has been duly given pursuant to this Indenture or
provision therefor satisfactory to the Trustee has been made;
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(3) Securities as to which Defeasance has been effected pursuant to
Section 1302; and
(4) Securities which have been paid pursuant to Section 306 or issued
in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than
any such Securities in respect of which there shall have been
presented to the Trustee proof satisfactory to it that such
Securities are held by a bona fide purchaser in whose hands such
Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given, made or taken any
request, demand, authorization, direction, notice, consent, waiver or other
action hereunder as of any date,
(A) the principal amount of an Original Issue Discount Security which
shall be deemed to be Outstanding shall be the amount of the
principal thereof which would be due and payable as of such date
of such determination upon acceleration of the Maturity thereof to
such date pursuant to Section 502,
(B) if, as of such date, the principal amount payable at the Stated
Maturity of a Security is not determinable, the principal amount
of such Security which shall be deemed to be Outstanding shall be
the amount as specified or determined as contemplated by Section
301,
(C) the principal amount of a Security denominated in one or more
foreign currencies or currency units which shall be deemed to be
Outstanding shall be the U.S. dollar equivalent, determined as of
such date in the manner provided as contemplated by Section 301,
of the principal amount of such Security (or, in the case of a
Security described in Clause (A) or (B) above, of the amount
determined as provided in such Clause), and
(D) Securities owned by the Company or any other obligor upon the
Securities or any Affiliate of the Company or of such other
obligor shall be disregarded and deemed not to be Outstanding,
except that, in determining whether the Trustee shall be protected
in relying upon any such request, demand, authorization,
direction, notice, consent, waiver or other action, only
Securities which the Trustee knows to be so owned shall be so
disregarded.
Securities so owned which have been pledged in good faith may be regarded
as Outstanding if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to such Securities and that the pledgee
is not the Company or any other obligor upon the Securities or any Affiliate of
the Company or of such other obligor.
"Paying Agent" means the Company or any Person authorized by the Company to
pay the principal of and/or any premium or interest on any Securities on behalf
of the Company.
"Person" means any individual, association, corporation, partnership, joint
venture, limited liability company, joint-stock company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
"Place of Payment", when used with respect to the Securities of any series,
means the place or places where the principal of and/or any premium or interest
on the Securities of that series are payable as specified as contemplated by
Section 301 (6).
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Redemption Date", when used with respect to any Security to be redeemed,
means the date fixed for such redemption by or pursuant to this Indenture.
"Redemption Price", when used with respect to any Security to be redeemed,
means the price at which it is to be redeemed pursuant to this Indenture.
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"Regular Record Date" for the interest payable on any Interest Payment Date
on the Securities of any series means the date specified for that purpose as
contemplated by Section 301.
"Securities" has the meaning stated in the first recital of this Indenture
and more particularly means any Securities authenticated and delivered under
this Indenture.
"Securities Act" means the Securities Act of 1933 and any statute successor
thereto, in each case as amended from time to time.
"Security Register" and "Security Registrar" have the respective meanings
specified in Section 305.
"Senior Debt" shall mean, with respect to the Company, the principal,
premium, if any, and interest on
(i) all indebtedness of the Company, whether outstanding on the date
hereof or hereafter created, incurred or assumed, which is for
money borrowed, or evidenced by a note or similar instrument
given in connection with the acquisition of any business,
properties or assets, including securities,
(ii) any indebtedness of others of the kinds described in the
preceding clause (i) for the payment of which the Company is
responsible or liable (directly or indirectly, contingently or
otherwise) as guarantor or otherwise and
(iii) amendments, renewals, extensions and refundings of any such
indebtedness, unless in any instrument or instruments evidencing
or securing such indebtedness or pursuant to which the same is
outstanding, or in any such amendment, renewal, extension or
refunding, it is expressly provided that such indebtedness is
not superior in right of payment to the Securities of any
series.
The Senior Debt shall continue to be Senior Debt and entitled to the
benefits of the subordination provisions irrespective of any amendment,
modification or waiver of any term of the Senior Debt or extension or renewal of
the Senior Debt.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security as the fixed date on which the principal of such Security or
such installment of principal or interest is due and payable.
"Subsidiary" means a corporation more than 50% of the outstanding Voting
Stock of which is owned, directly or indirectly, by the Company or by one or
more other Subsidiaries, or by the Company and one or more other Subsidiaries.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force at
the date as of which this instrument was executed; provided, however, that in
the event the Trust Indenture Act of 1939 is amended after such date, "Trust
Indenture Act" means, to the extent required by any such amendment, the Trust
Indenture Act of 1939 as so amended.
"Trustee" means the Person named as the "Trustee" in the first paragraph of
this instrument until a successor Trustee shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Trustee" shall mean or
include each Person who is then a Trustee hereunder, and if at any time there is
more than one such Person, "Trustee" as used with respect to the Securities of
any series shall mean the Trustee with respect to Securities of that series.
"United States" means the United States of America (including the states
and the District of Columbia) and its possessions at the relevant date. As of
the date of this Indenture, the possessions of the United States include Puerto
Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island, and the
Northern Mariana Island.
"U.S. Government Obligation" has the meaning specified in Section 1304.
"Vice President", when used with respect to the Company or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "vice president".
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"Voting Power" means the total voting power represented by all outstanding
shares of all classes of Voting Stock.
"Voting Stock" means a corporation's stock of any class or classes (however
designated), including membership interests, membership shares or other similar
equity interests, 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.
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS.
Upon any application or request by the Company to the Trustee to take any
action under any provision 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 requirements set forth in
this Indenture.
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture (except for certificates provided for in
Section 1004) shall include,
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions
herein relating thereto;
(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 each such individual, 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, in the opinion of each such individual,
such condition or covenant has been complied with.
SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or opinion of counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. ACTS OF HOLDERS; RECORD DATES.
Any request, demand, authorization, direction, notice, consent, waiver or
other action provided or permitted by this Indenture to be given, made or taken
by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by, an agent
duly appointed in
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writing; and, except as herein otherwise expressly provided, such action shall
become effective when such instrument or instruments are delivered to the
Trustee and, where it is herein expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 601) conclusive in favor of the Trustee and
the Company, if made in the manner provided in this Section.
The fact and date of the execution by any Person of any such instrument or
writing may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. Where such execution is by
a signer acting in a capacity other than his individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his
authority. The fact and date of the execution of any such instrument or writing,
or the authority of the Person executing the same, may also be proved in any
other manner which the Trustee deems sufficient.
The ownership of Securities shall be proved by the Security Register.
Any request, demand, authorization, direction, notice, consent, waiver or
other Act of the Holder of any Security shall bind every future Holder of the
same Security and the Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee or the Company in
reliance thereon, whether or not notation of such action is made upon such
Security.
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
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 Securities. If not
set by the Company prior to the first solicitation of a Holder of 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 Securities on such date (or
their duly designated proxies) shall be entitled to give or take, or vote on,
the relevant action.
SECTION 105. NOTICES, ETC., TO TRUSTEE AND COMPANY.
Any request, demand, authorization, direction, notice, consent, waiver or
Act of Holders or other document provided or permitted by this Indenture to be
made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder if made, given, furnished or filed in
writing to or with the Trustee at its Corporate Trust Office, or
(2) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid,
to the Company addressed to: the address last furnished in writing
to the Trustee by the Company, or, if no such address has been
furnished, Treasurer, USX Corporation, 600 Grant Street,
Pittsburgh, Pennsylvania 15219-4776.
SECTION 106. NOTICE TO HOLDERS; WAIVER.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at the address as it appears in the Security Register, not later
than the latest date (if any), and not earlier than the earliest date (if any),
prescribed for the giving of such notice. In any case where notice to Holders is
given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder shall affect the sufficiency of such
notice with respect to other Holders. Where this Indenture provides for notice
in any manner, such notice may be waived in writing by the Person entitled to
receive such
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notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by reason of
any other cause it shall be impracticable to give such notice by mail, then such
notification as shall be made with the approval of the Trustee shall constitute
a sufficient notification for every purpose hereunder.
SECTION 107. CONFLICT WITH TRUST INDENTURE ACT.
If any provision hereof limits, qualifies or conflicts with a provision of
the Trust Indenture Act which 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
which 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 108. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
SECTION 109. SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the Company shall bind
its successors and assigns, whether so expressed or not.
SECTION 110. SEPARABILITY CLAUSE.
In case any provision in this Indenture or in the 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.
SECTION 111. BENEFITS OF INDENTURE.
Nothing in this Indenture or in the Securities, express or implied, shall
give to any Person, other than the parties hereto and their successors
hereunder, the holders of Senior Debt (to the extent contemplated herein) and
the Holders, any benefit or any legal or equitable right, remedy or claim under
this Indenture.
SECTION 112. GOVERNING LAW.
This Indenture and the Securities shall be governed by and construed in
accordance with the law of the State of New York.
SECTION 113. LEGAL HOLIDAYS.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day at any Place of Payment,
then (notwithstanding any other provision of this Indenture or of the Securities
(other than a provision of any Security which specifically states that such
provision shall apply in lieu of this Section)) payment of interest or principal
(and premium, if any) need not be made at such Place of Payment on such date,
but may be made on the next succeeding Business Day at such Place of Payment
with the same force and effect as if made on the Interest Payment Date or
Redemption Date, or at the Stated Maturity.
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ARTICLE TWO
SECURITY FORMS
SECTION 201. FORMS GENERALLY.
The Securities of each series shall be in substantially the form set forth
in this Article, or in such other form as shall be established by 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 Depositary therefor or as may, consistently herewith, be
determined by the officers executing such Securities, as evidenced by their
execution thereof. If the form of Securities of any series is established by
action taken pursuant to a Board Resolution, 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 Company
Order contemplated by Section 303 for the authentication and delivery of such
Securities.
The definitive 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 Securities, as evidenced by their execution of
such Securities.
SECTION 202. FORM OF FACE OF SECURITY.
[Insert any legend required by the Internal Revenue Code and the
regulations thereunder.]
USX CORPORATION
[Insert title of the Series]
No. ____________ $ ____________
USX CORPORATION, a corporation duly organized and existing under the laws
of the State of Delaware (herein called the "Company", which term includes any
successor Person 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 -- , provided that any principal and premium, and any such
installment of interest, which is overdue shall bear interest at the rate of
____% per annum (to the extent that the payment of such interest shall be
legally enforceable), from the dates such amounts are due until they are paid or
made available for payment, and such interest shall be payable on demand]. 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 (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest, which shall be
the ____ or ____ (whether or not a Business Day), 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 (or one or more Predecessor Securities) 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 10 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 and any overdue premium shall
bear interest at the rate of ____%
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per annum (to the extent that the payment of such interest shall be legally
enforceable), from the dates such amounts are due until they are paid or made
available for payment. Interest on any overdue principal or premium shall be
payable on demand. [Any such interest on overdue principal or premium which is
not paid on demand shall bear interest at the rate of ____% per annum (to the
extent that the payment of such interest on interest shall be legally
enforceable), from the date of such demand until the amount so demanded is paid
or made available for payment. Interest on any overdue interest shall 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] [Foreign Currency, consistent with the
provisions below,] 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
Security Register or by electronic funds transfer to an account maintained by
the Person entitled thereto as specified in the Security Register, provided that
such Person shall have given the Trustee written instructions].
[If the security is payable in a foreign currency, insert the appropriate
provision.]
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:
-----------------------------------
SECTION 203. FORM OF REVERSE OF 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 ________________ ____________, ________
(herein called the "Indenture", which term shall have the meaning assigned to it
in such instrument), between the Company and Harris Trust and Savings Bank, as
Trustee (herein called the "Trustee", which term includes any successor trustee
under the Indenture), and reference is hereby made to the Indenture for a
statement of the respective rights, limitations of rights, duties and immunities
thereunder of the Company, the Trustee the holders of Senior Debt (to the extent
contemplated in the Indenture) 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 [if applicable,
insert -- , 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 [if
applicable, insert -- on or after ________________,20____], 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 [if applicable,
insert -- on or
10
<PAGE> 17
before ________________, ________%, and if redeemed] during the 12-month period
beginning ________________ of the years indicated,
<TABLE>
<CAPTION>
REDEMPTION REDEMPTION
YEAR PRICE YEAR PRICE
- ---- ---------- ---- ----------
<S> <C> <C> <C>
</TABLE>
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, or one or more Predecessor 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 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,
<TABLE>
<CAPTION>
REDEMPTION PRICE REDEMPTION PRICE FOR
FOR REDEMPTION REDEMPTION OTHERWISE
THROUGH OPERATION THAN THROUGH OPERATION
YEAR OF THE SINKING FUND OF THE SINKING FUND
- ---- ------------------- ----------------------
<S> <C> <C>
</TABLE>
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, or one or more
Predecessor Securities, of record at the close of business on the relevant
Regular Record Dates or Special 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 [if
applicable, insert -- mandatory] sinking fund payments may be credited against
subsequent [if applicable, insert -- mandatory] sinking fund payments otherwise
required to be made [if applicable, insert -- , in the inverse order in which
they become due].]
[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.]
11
<PAGE> 18
The indebtedness evidenced by this Security is, to the extent provided in
the Indenture, subordinate and junior in right of payment to the prior payment
in full of all Senior Debt, and this Security is issued subject to the
provisions of the Indenture with respect thereto. Each Holder of this Security,
by accepting the same, (a) agrees to and shall be bound by such provisions, (b)
authorizes and directs the Trustee on his or her behalf to take such action as
may be necessary or appropriate to acknowledge or effectuate the subordination
so provided and (c) appoints the Trustee his or her attorney-in-fact for any and
all such purposes. Each Holder hereof, by his or her acceptance hereof, hereby
waives all notice of the acceptance of the subordination provisions contained
herein and in the Indenture by each holder of Senior Debt, whether now
outstanding or hereafter incurred, and waives reliance by each such Holder upon
said provisions.
[If applicable, insert -- The Securities shall [not be superior in right of
payment to, and shall] rank pari passu with[,]--insert description of existing
debt of the Company that is intended to rank on a parity with the Securities.]
[If applicable, insert -- The Indenture contains provisions for defeasance
at any time of [the entire indebtedness of this Security] [or] [certain
restrictive covenants and Events of Default with respect to this Security] [, in
each case] upon compliance with certain conditions set forth in the Indenture.]
[If the Security is an Original Issue Discount Security, insert -- 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, premium and 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 premium and interest, if any, on the Securities of this series
shall terminate.]
[If applicable, insert a paragraph regarding the indexing of the Security.]
[If applicable, insert a paragraph regarding conversion or exchange of the
Security.]
The Indenture contains provisions permitting the Company and the Trustee to
modify the Indenture or any supplemental indenture without the consent of the
Holders for one or more of the following purposes: (1) to evidence the
succession of another corporation to the Company; (2) to add to the covenants of
the Company further covenants, restrictions, conditions or provisions; (3) to
add additional events of default for the benefit of Holders of all or any series
of Securities; (4) to add to or change provisions of the Indenture to allow the
issuance of Securities in other forms; (5) to add to, change or eliminate any of
the provisions of the Indenture in respect of one or more series of Securities
thereunder, under certain conditions specified therein; (6) to secure the
Securities; (7) to establish the form or terms of Securities of any series as
permitted by Sections 201 and 301 of the Indenture; (8) to evidence the
appointment of a successor Trustee; (9) to make provision with respect to any
conversion or exchange rights as specified as contemplated pursuant to Section
301 of the Indenture; and (10) to cure any ambiguity, to correct or supplement
any provision of the Indenture which may be defective or inconsistent with any
other provision of the Indenture, or to make any other provisions with respect
to matters or questions arising under the Indenture as shall not adversely
affect the interests of the Holders in any material respect.
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.
12
<PAGE> 19
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 at the time Outstanding shall have made written
request to the Trustee to institute proceedings in respect of such Event of
Default 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 any 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 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.
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 any premium 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 Security Register,
upon surrender of this Security for registration of transfer at the office or
agency of the Company in any place where the principal of and any premium 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
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 or the Trustee 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.
SECTION 204. FORM OF LEGEND FOR GLOBAL SECURITIES.
Unless otherwise specified as contemplated by Section 301 for the
Securities evidenced thereby, every Global Security authenticated and delivered
hereunder shall 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 thereof. This Security may not be exchanged in whole or in part for a
Security registered, and no transfer of this Security in whole or in part may be
registered, in the name of any Person other than such Depositary or a nominee
thereof, except in the limited circumstances described in the Indenture.
13
<PAGE> 20
SECTION 205. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
The Trustee's certificates of authentication shall be in substantially the
following form:
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
HARRIS TRUST AND SAVINGS BANK,
As Trustee
By
---------------------------------------
Authorized Officer
ARTICLE THREE
THE SECURITIES
SECTION 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES.
The aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited.
The Securities may be issued from time to time in one or more series. The
terms of each series of Securities shall be either
(i)established in an Establishment Action or
(ii)established in one or more indentures supplemental hereto, prior
to the issuance of Securities of any series.
Such Establishment Action or supplemental indenture shall provide:
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from Securities of any
other series) and a statement that the Securities will be offered
pursuant to this Indenture;
(2) any limit upon the aggregate principal amount of the Securities
of the series which may be authenticated and delivered under this
Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of,
other Securities of the series pursuant to Section 304, 305, 306,
906 or 1107 and except for any Securities which, pursuant to
Section 303, are deemed never to have been authenticated and
delivered hereunder) and the price (expressed as a percentage of
the aggregate principal amount thereof) at which the Securities
of the series will be issued;
(3) the Person to whom any interest on a Security of the series shall
be payable, if other than the Person in whose name that Security
(or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest;
(4) the date or dates on which the principal of any Securities of the
series is payable;
(5) the rate or rates at which any Securities of the series shall
bear interest, if any, the date or dates from which any such
interest shall accrue, the Interest Payment Dates on which any
such interest shall be payable and the Regular Record Date for
any such interest payable on any Interest Payment Date;
(6) the place or places where the principal of and/or any premium or
interest on any Securities of the series shall be payable;
(7) the period or periods within which, the price or prices at which,
the currency or currencies (including currency units) in which
and the other terms and conditions upon which any Securities
14
<PAGE> 21
of the series may be redeemed, in whole or in part, at the option of
the Company and, if other than by a Board Resolution, the manner in
which any election by the Company to redeem the Securities shall be
evidenced;
(8) the obligation, if any, of the Company to redeem or purchase any
Securities of the series pursuant to any sinking fund or
analogous provisions or at the option of the Holder thereof and
the period or periods within which, the price or prices at which
and the terms and conditions upon which any Securities of the
series shall be redeemed or purchased, in whole or in part,
pursuant to such obligation;
(9) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which any Securities of the series
shall be issuable;
(10) if the amount of principal of or any premium or interest on any
Securities of the series may be determined with reference to an
index, pursuant to a formula or other method, the manner in which
such amounts shall be determined;
(11) if other than the currency of the United States of America, the
currency, currencies or currency units in which the principal of
or any premium or interest on any Securities of the series shall
be payable and the manner of determining the equivalent thereof
in the currency of the United States of America for any purpose,
including for purposes of the definition of "Outstanding" in
Section 101;
(12) if the principal of or any premium or interest on any Securities
of the series is to be payable, at the election of the Company or
the Holder thereof, in one or more currencies or currency units
other than that or those in which such Securities are stated to
be payable, the currency, currencies or currency units in which
the principal of or any premium or interest on such Securities as
to which such election is made shall be payable, the periods
within which and the terms and conditions upon which such
election is to be made and the amount so payable (or the manner
in which such amount shall be determined);
(13) if other than the entire principal amount thereof, the portion of
the principal amount of any Securities of the series which shall
be payable upon declaration of acceleration of the Maturity
thereof pursuant to Section 502;
(14) if the principal amount payable at the Stated Maturity of any
Securities of the series will not be determinable as of any one
or more dates prior to the Stated Maturity, the amount which
shall be deemed to be the principal amount of such Securities as
of any such date for any purpose thereunder or hereunder,
including the principal amount thereof which shall be due and
payable upon any Maturity other than the Stated Maturity or which
shall be deemed to be Outstanding as of any date prior to the
Stated Maturity (or, in any such case, the manner in which such
amount deemed to be the principal amount shall be determined);
(15) if applicable, that the Securities of the series, in whole or any
specified part, shall be defeasible pursuant to Section 1302 or
Section 1303 or both such Sections (or, if defeasible by another
method, such other method) and, if other than by an action
pursuant to a Board Resolution, the manner in which any election
by the Company to defease such Securities shall be evidenced;
(16) if applicable, that any Securities of the series shall be
issuable in whole or in part in the form of one or more Global
Securities and, in such case, the respective Depositaries for
such Global Securities, the form of any legend or legends which
shall be borne by any such Global Security in addition to or in
lieu of that set forth in Section 204 and any circumstances in
addition to or in lieu of those set forth in Clause (2) of the
last paragraph of Section 305 in which any such Global Security
may be exchanged in whole or in part for Securities registered,
and any transfer of such Global Security in whole or in part may
be registered, in the name or names of Persons other than the
Depositary for such Global Security or a nominee thereof;
15
<PAGE> 22
(17) any addition to or change in the Events of Default which applies
to any Securities of the series and any change in the right of
the Trustee or the requisite Holders of such Securities to
declare the principal amount thereof due and payable pursuant to
Section 502;
(18) any addition to or change in the covenants set forth in Article
Ten which applies to Securities of the series;
(19) if the Securities are subordinate other than in accordance with
Article Fourteen, such other subordination provisions,
(20) If the Securities of the series are convertible into, or
exchangeable for, other securities, the terms and conditions
pursuant to which the Securities of the series will be
convertible or exchangeable; and
(21) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture, except as
permitted by Section 901(5)).
All Securities of any one series shall be substantially identical except as
to denomination and except as may otherwise be provided in the Establishment
Action referred to above or in any indenture supplemental hereto. The Company
shall provide to the Trustee a copy of any such Establishment Action.
The Securities shall be subordinated in right of payment to Senior Debt as
provided in Article Fourteen and/or as specified as contemplated pursuant to
this section.
SECTION 302. DENOMINATIONS.
The Securities of each series shall be issuable only in registered form
without coupons and only in such denominations as shall be specified as
contemplated by Section 301. In the absence of any such specified denomination
with respect to the Securities of any series, the Securities of such series
shall be issuable in denominations of $1,000 and any integral multiple thereof.
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
The Securities shall be executed on behalf of the Company by its Chairman
of the Board, any Vice Chairman of the Board, its President or one of its Vice
Presidents, under its corporate seal reproduced thereon attested by its
Treasurer or an Assistant Treasurer or its Secretary or one of its Assistant
Secretaries. The signature of any of these officers on the Securities may be
manual or facsimile. 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
Security.
Securities bearing the manual or facsimile signatures of individuals who
were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities of any series executed by the
Company to the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee in accordance
with the Company Order shall authenticate and deliver such Securities. If the
form or terms of the Securities of the series have been established by one or
more Establishment Actions as permitted by Sections 201 and 301, in
authenticating such Securities, and accepting the additional responsibilities
under this Indenture in relation to such Securities, the Trustee shall be
entitled to receive, and (subject to Section 601) shall be fully protected in
relying upon, an Opinion of Counsel stating,
(1) if the form of such Securities has been established by an
Establishment Action as permitted by Section 201, that such form
has been established in conformity with the provisions of this
Indenture;
16
<PAGE> 23
(2) if the terms of such Securities have been established by an
Establishment Action as permitted by Section 301, that such terms
have been established in conformity with the provisions of this
Indenture; and
(3) that such Securities, when authenticated and delivered by the
Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute
valid and legally binding obligations of the Company enforceable
in accordance with their terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws
of general applicability relating to or affecting creditors'
rights and to general equity principles.
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 and of the preceding
paragraph, if all Securities of a series are not to be originally issued at one
time, it shall not be necessary to deliver the Establishment Action otherwise
required pursuant to Section 301 or the Company Order and Opinion of Counsel
otherwise required pursuant to such preceding paragraph at or prior to the
authentication of each Security of such series if such documents are delivered
at or prior to the authentication upon original issuance of the first Security
of such series to be issued.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder. Notwithstanding the
foregoing, if any Security shall have been authenticated and delivered hereunder
but never issued and sold by the Company, and the Company shall deliver such
Security to the Trustee for cancellation as provided in Section 309, for all
purposes of this Indenture such Security shall be deemed never to have been
authenticated and delivered hereunder and shall never be entitled to the
benefits of this Indenture.
SECTION 304. TEMPORARY SECURITIES.
Pending the preparation of definitive Securities of any series, the Company
may execute, and upon Company Order the Trustee shall authenticate and deliver,
temporary Securities which are printed, lithographed, typewritten, mimeographed
or otherwise produced, in any authorized denomination, substantially of the
tenor of the definitive Securities in lieu of which they are issued and with
such appropriate insertions, omissions, substitutions and other variations as
the officers executing such Securities may determine, as evidenced by their
execution of such Securities.
If temporary Securities of any series are issued, the Company will cause
definitive Securities of that series to be prepared without unreasonable delay.
After the preparation of definitive Securities of such series, the temporary
Securities of such series shall be exchangeable for definitive Securities of
such series upon surrender of the temporary Securities of such series at the
office or agency of the Company in a Place of Payment for that series, without
charge to the Holder. Upon surrender for cancellation of any one or more
temporary Securities of any series, the Company shall execute and the Trustee
shall authenticate and deliver in exchange therefor one or more definitive
Securities of the same series, of any authorized denominations and of like tenor
and aggregate principal amount. Until so exchanged, the temporary Securities of
any series shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities of such series and tenor.
SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.
The Company shall cause to be kept in an office or agency of the Company in
a Place of Payment a register (the register maintained in any such office or
agency of the Company in a Place of Payment being herein sometimes collectively
referred to as the "Security Register") in which, subject to such reasonable
regulations as it may prescribe, the Company shall provide for the registration
of Securities and of transfers of Securities. The
17
<PAGE> 24
Trustee, or any other party serving in such capacity with the Trustee's consent,
is hereby appointed "Security Registrar" for the purpose of registering
Securities and transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security of a series at
the office or agency of the Company in a Place of Payment for that series, the
Company shall execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Securities of
the same series, of any authorized denominations and of like tenor and aggregate
principal amount.
At the option of the Holder, Securities of any series may be exchanged for
other Securities of the same series, of any authorized denominations and of like
tenor and aggregate principal amount, upon surrender of the Securities to be
exchanged at such office or agency. Whenever any Securities are so surrendered
for exchange, the Company shall execute, and the Trustee shall authenticate and
deliver, the Securities which the Holder making the exchange is entitled to
receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or for
exchange shall (if so required by the Company or the Trustee) be duly endorsed,
or be accompanied by a written instrument of transfer in form satisfactory to
the Company and the Security Registrar duly executed, by the Holder thereof or
his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of 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
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 304, 906 or 1107 not involving any transfer.
If the Securities of any series (or of any series and specified tenor) are
to be redeemed in part, the Company shall not be required (A) to issue, register
the transfer of or exchange any Securities of that series (or of that series and
specified tenor, as the case may be) during a period beginning at the opening of
business 15 days before the day of the mailing of a notice of redemption of any
such Securities selected for redemption under Section 1103 and ending at the
close of business on the day of such mailing, or (B) to register the transfer of
or exchange any Security so selected for redemption in whole or in part, except
the unredeemed portion of any Security being redeemed in part.
The provisions of the following clauses shall apply only to Global
Securities:
(1) Each Global Security authenticated under this Indenture shall be
registered in the name of the Depositary designated for such
Global Security or a nominee thereof and delivered to such
Depositary or a nominee thereof or custodian therefor, and each
such Global Security shall constitute a single Security for all
purposes of this Indenture.
(2) Notwithstanding any other provision in this Indenture, no Global
Security may be exchanged in whole or in part for Securities
registered, and no transfer of a Global Security in whole or in
part may be registered, in the name of any Person other than the
Depositary for such Global Security or a nominee thereof unless
(A) such Depositary
(i) has notified the Company that it is unwilling or unable to
continue as Depositary for such Global Security or
(ii) has ceased to be a clearing agency registered under the
Exchange Act,
(B) there shall have occurred and be continuing an Event of Default
with respect to such Global Security or
(C) there shall exist such circumstances, if any, in addition to or
in lieu of the foregoing as have been specified for this
purpose as contemplated by Section 301.
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(3) Subject to Clause (2) above, any exchange of a Global Security for
other Securities may be made in whole or in part, and all
Securities issued in exchange for a Global Security or any portion
thereof shall be registered in such names as the Depositary for
such Global Security shall direct.
(4) Every Security authenticated and delivered upon registration of
transfer of, or in exchange for or in lieu of, a Global Security
or any portion thereof, whether pursuant to this Section, Section
304, 306, 906 or 1107 or otherwise, shall be authenticated and
delivered in the form of, and shall be, a Global Security, unless
such Security is registered in the name of a Person other than the
Depositary for such Global Security or a nominee thereof.
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES.
If any mutilated Security is surrendered to the Trustee, the Company shall
execute and the Trustee shall authenticate and deliver in exchange therefor a
new Security of the same series and of like tenor and principal amount and
bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee
(i) evidence to their satisfaction of the destruction, loss or
theft of any Security and
(ii) such security or indemnity as may be required by them to save
each of them and any agent of either of them harmless,
then, in the absence of notice to the Company or the Trustee that such Security
has been acquired by a bona fide purchaser, the Company shall execute and the
Trustee shall authenticate and deliver, in lieu of any such destroyed, lost or
stolen Security, a new Security of the same series and of like tenor and
principal amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has become
or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, 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 (including
the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in lieu of
any destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities of that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
Except as otherwise provided as contemplated by Section 301 with respect to
any series of Securities, interest on any Security which is payable, and is
punctually paid or duly provided for, on any Interest Payment Date shall be paid
to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest.
Any interest on any Security of any series which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Securities of such series (or their
respective Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such
Defaulted Interest, which shall be fixed
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in the following manner. The Company shall notify the Trustee in
writing of the amount of Defaulted Interest proposed to be paid on
each Security of such series and the date of the proposed payment, and
at the same time the Company shall deposit with the Trustee an amount
of money equal to the aggregate amount proposed to be paid in respect
of such Defaulted Interest or shall make arrangements satisfactory to
the Trustee for such deposit prior to the date of the proposed
payment, such money when deposited to be held in trust for the benefit
of the Persons entitled to such Defaulted Interest as in this Clause
provided. Thereupon the Trustee shall fix a Special Record Date for
the payment of such Defaulted Interest which shall be not more than 15
days and not less than 10 days prior to the date of the proposed
payment and not less than 10 days after the receipt by the Trustee of
the notice of the proposed payment. The Trustee shall promptly notify
the Company of such Special Record Date and, in the name and at the
expense of the Company, shall cause notice of the proposed payment of
such Defaulted Interest and the Special Record Date therefor to be
given to each Holder of Securities of such series in the manner set
forth in Section 106, not less than 10 days prior to such Special
Record Date. Notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor having been so mailed, such
Defaulted Interest shall be paid to the Persons in whose names the
Securities of such series (or their respective Predecessor Securities)
are registered at the close of business on such Special Record Date
and shall no longer be payable pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest on the
Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on
which such Securities may be listed, and upon such notice as may
be required by such exchange, if, after notice given by the
Company to the Trustee of the proposed payment pursuant to this
Clause, such manner of payment shall be deemed practicable by the
Trustee.
If the Securities of the series are convertible or exchangeable and unless
otherwise specified as contemplated by Section 301, in the case of any Security
of such series which is converted or exchanged after any Regular Record Date and
on or prior to the next succeeding Interest Payment Date (other than any
Security whose Maturity is prior to such Interest Payment Date), interest whose
Stated Maturity is on such Interest Payment Date shall be payable on such
Interest Payment Date notwithstanding such conversion or exchange, and such
interest (whether or not punctually paid or duly provided for) shall be paid to
the Person in whose name that Security (or one or more Predecessor Securities)
is registered at the close of business on such Regular Record Date. Except as
otherwise expressly provided in the immediately preceding sentence, in the case
of any Security which is converted or exchanged, interest whose Stated Maturity
is after the date of conversion or exchange of such Security shall not be
payable.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
SECTION 308. PERSONS DEEMED OWNERS.
Prior to due presentment of a 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 such Security is registered as the owner of such Security
for the purpose of receiving payment of principal of and any premium and
(subject to Section 307) any interest on such Security and for all other
purposes whatsoever, whether or not such Security be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
SECTION 309. CANCELLATION.
All Securities surrendered for payment, redemption, conversion, exchange,
registration of transfer or exchange or for credit against any sinking fund
payment shall, if surrendered to any Person other than the Trustee, be delivered
to the Trustee and shall be promptly cancelled by it. The Company may at any
time deliver to the Trustee for cancellation any Securities previously
authenticated and delivered hereunder which the
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Company may have acquired in any manner whatsoever, and may deliver to the
Trustee (or to any other Person for delivery to the Trustee) for cancellation
any Securities previously authenticated hereunder which the Company has not
issued and sold, and all Securities so delivered shall be promptly cancelled by
the Trustee. No Securities shall be authenticated in lieu of or in exchange for
any Securities cancelled as provided in this Section, except as expressly
permitted by this Indenture. Until directed otherwise by a Company Order, all
cancelled Securities held by the Trustee shall be conspicuously marked as such
and, if destroyed, the Trustee shall deliver to the Company a certificate with
respect to such destruction.
SECTION 310. COMPUTATION OF INTEREST.
Except as otherwise specified as contemplated by Section 301 for Securities
of any series, interest on the Securities of each series shall be computed on
the basis of a 360-day year of twelve 30-day months.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall upon Company Request cease to be of further effect
with respect to any (or all) series of Securities (except as to any surviving
rights of registration of transfer or exchange of Securities herein expressly
provided for), and the Trustee, at the expense of the Company, shall execute
proper instruments acknowledging satisfaction and discharge of this Indenture
with respect to such Securities, when
(1) either
(A) all such Securities theretofore authenticated and delivered
(other than
(i) Securities which have been destroyed, lost or stolen and
which have been replaced or paid as provided in Section 306
and
(ii) Securities for whose payment money has theretofore been
deposited in trust or segregated and held in trust by the
Company and thereafter repaid to the Company or discharged
from such trust, as provided in Section 1003)
have been delivered to the Trustee for cancellation; or
(B) all such Securities not theretofore delivered to the Trustee
for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity
within one year, or
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of
notice of redemption by the Trustee in the name, and at
the expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has
deposited or caused to be deposited with the Trustee as trust
funds in trust for the purpose money in an amount sufficient to
pay and discharge the entire indebtedness on such Securities not
theretofore delivered to the Trustee for cancellation, for
principal and any premium and interest to the date of such
deposit (in the case of Securities which have become due and
payable) or to the Stated Maturity or Redemption Date, as the
case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and
discharge of this Indenture with respect to such Securities have
been complied with.
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Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 607, the obligations of
the Trustee to any Authenticating Agent under Section 614 and, if money shall
have been deposited with the Trustee pursuant to subclause (B) of Clause (1) of
this Section, the obligations of the Trustee under Section 402, Article Six and
the last paragraph of Section 1003 shall survive.
SECTION 402. APPLICATION OF TRUST MONEY.
Subject to the provisions of the last paragraph of Section 1003, all money
deposited with the Trustee pursuant to Section 401 shall be held in trust and
applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal and any premium and
interest for whose payment such money has been deposited with the Trustee.
ARTICLE FIVE
REMEDIES
SECTION 501. EVENTS OF DEFAULT.
"Event of Default", wherever used herein with respect to Securities of any
series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be occasioned by the provisions of Article
Fourteen or be voluntary or involuntary or be effected by operation of law or
pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):
(1) default in the payment of any interest upon any Security of that
series when it becomes due and payable, and continuance of such
default for a period of 30 days; or
(2) default in the payment of the principal of or any premium on any
Security of that series at its Maturity; or
(3) default in the deposit of any sinking fund payment, when and as
due by the terms of a Security of that series; or
(4) default in the performance, or breach, of any covenant or warranty
of the Company in this Indenture (other than a covenant or
warranty a default in whose performance or whose breach is
elsewhere in this Section specifically dealt with or which has
expressly been included in this Indenture solely for the benefit
of series of Securities other than that series), and continuance
of such default or breach for a period of 90 days after there has
been given, by registered or certified mail, to the Company by the
Trustee or to the Company and the Trustee by the Holders of at
least 25% in principal amount of the Outstanding Securities of
that series a written notice specifying such default or breach and
requiring it to be remedied and stating that such notice is a
"Notice of Default" hereunder; or
(5) the entry by a court having jurisdiction in the premises of a
decree or order
(A) for relief in respect of the Company in an involuntary case or
proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law;
(B) adjudging the Company a bankrupt or insolvent or approving as
properly filed a petition seeking reorganization, arrangement,
adjustment or composition of or in respect of the Company under
any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law;
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(C) appointing a custodian, receiver, liquidator, assignee,
trustee, sequestrator or other similar official of the Company
or of any substantial part of its property; or
(D) ordering the winding up or liquidation of its affairs, and the
continuance of any such decree or order for relief or any such
other decree or order unstayed and in effect for a period of 60
consecutive days;
or
(6) (A) the commencement by the Company of a voluntary case or
proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law to be
adjudicated a bankrupt or insolvent;
(B) the consent by the Company to the entry of a decree or order for
relief in respect of it in an involuntary case or proceeding
under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or the consent by it to the
commencement of any bankruptcy or insolvency case or proceeding
against it;
(C) the filing by the Company of a petition or answer or consent
seeking reorganization or relief under any applicable Federal or
State bankruptcy, insolvency, reorganization or other similar
law, or the consent by the Company to the filing of such petition
;
(D) the consent by the Company to the appointment of or taking
possession by a custodian, receiver, liquidator, assignee,
trustee, sequestrator or other similar official of the Company or
of any substantial part of its property;
(E) the making by the Company of an assignment for the benefit of
creditors;
(F) the admission by the Company in writing of its inability to pay
its debts generally as they become due; or,
(G) the taking of corporate action by the Company in furtherance of
any such action;
or
(7) any other Event of Default provided with respect to Securities of
that series.
SECTION 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default (other than an Event of Default specified in Section
501(5) or 501(6)) with respect to Securities of any series at the time
Outstanding occurs and is continuing, then in every such case the Trustee or the
Holders of not less than 25% in principal amount of the Outstanding Securities
of that series may declare the principal amount of all the Securities of that
series (or, if any Securities of that series are Original Issue Discount
Securities, such portion of the principal amount of such Securities as may be
specified by the terms thereof) to be due and payable immediately, by a notice
in writing to the Company (and to the Trustee if given by Holders), and upon any
such declaration such principal amount (or specified amount) shall become
immediately due and payable. If an Event of Default specified in Section 501(5)
or 501(6) with respect to Securities of any series at the time Outstanding
occurs, the principal amount of all the Securities of that series (or, if any
Securities of that series are Original Issue Discount Securities, such portion
of the principal amount of such Securities as may be specified by the terms
thereof) shall automatically, and without any declaration or other action on the
part of the Trustee or any Holder, become immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest on all Securities of that series,
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(B) the principal of (and premium, if any, on) any Securities of
that series which have become due otherwise than by such
declaration of acceleration and any interest thereon at the
rate or rates prescribed therefor in such Securities,
(C) to the extent that payment of such interest is lawful, interest
upon overdue interest at the rate or rates prescribed therefor
in such Securities, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel;
and
(2) all Events of Default with respect to Securities of that series,
other than the non-payment of the principal of Securities of that
series which have become due solely by such declaration of
acceleration, have been cured or waived as provided in Section
513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY TRUSTEE.
The Company covenants that if
(1) default is made in the payment of any interest on any Security
when such interest becomes due and payable and such default
continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or premium, if
any, on) any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal and any premium and interest and, to the extent that
payment of such interest shall be legally enforceable, interest on any overdue
principal and premium and on any overdue interest, at the rate or rates (or
yield to maturity in the case of Original Issue Discount Securities) prescribed
therefor in such Securities, and, in addition thereto, such further amount as
shall be sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, except as a result of the Trustee's negligence or bad
faith.
If an Event of Default with respect to Securities of any series occurs and
is continuing, the Trustee may in its discretion proceed to protect and enforce
its rights and the rights of the Holders of Securities of such series by such
appropriate judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any such rights, whether for the specific enforcement of any
covenant or agreement in this Indenture or in aid of the exercise of any power
granted herein, or to enforce any other proper remedy.
SECTION 504. TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of any judicial proceeding relative to the Company (or any other
obligor upon the Securities), its property or its creditors, the Trustee shall
be entitled and empowered, by intervention in such proceeding 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 custodian, receiver, assignee, trustee, liquidator, sequestrator
or other similar official in any such judicial proceeding is hereby authorized
by each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to
pay to the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 607 except as a result of its negligence
or bad faith.
No provision of this Indenture shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any
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Holder in any such proceeding; provided, however, that the Trustee may, on
behalf of the Holders, vote for the election of a trustee in bankruptcy or
similar official and be a member of a creditors' or other similar committee.
SECTION 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES.
All rights of action and claims under this Indenture or the Securities may
be prosecuted and enforced by the Trustee without the possession of any of the
Securities or the production thereof in any proceeding relating thereto, and any
such proceeding instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment shall, after provision
for the payment of the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel (except no such provision shall
be made respecting compensation, expenses, disbursements and advances made as a
result of Trustee's negligence), be for the ratable benefit of the Holders of
the Securities in respect of which such judgment has been recovered.
SECTION 506. APPLICATION OF MONEY COLLECTED.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal or any premium
or interest, upon presentation of the Securities and the notation thereon of 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: Subject to Article Fourteen, in case the principal of the
outstanding 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
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) specified
on the Securities of such series, such payments to be made ratably to the
persons entitled thereto, without discrimination or preference.
THIRD: Subject to Article Fourteen, in case the principal of the
outstanding Securities of any series in respect of which such moneys have been
collected shall have become due, by declaration, or otherwise, to the payment of
the whole amount then owing and unpaid upon the 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 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
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), or of any installment of interest over any other installment of interest,
or of any Security of such series over any other Security of such series,
ratably to the aggregate of such principal and accrued and unpaid interest.
SECTION 507. LIMITATION ON SUITS.
No Holder of any Security of any series shall have any right to institute
any proceeding, judicial or otherwise, with respect to this Indenture, or for
the appointment of a receiver or trustee, or for any other remedy hereunder,
unless
(1) such Holder has previously given written notice to the Trustee of
a continuing Event of Default with respect to the Securities of
that series;
(2) The Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written
request to the Trustee to institute proceedings in respect of such
Event of Default in its own name as Trustee hereunder;
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(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has been given
to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Securities of that
series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
Holders.
SECTION 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL, PREMIUM AND
INTEREST.
Notwithstanding any other provision in this Indenture, the Holder of any
Security shall have the right, which is absolute and unconditional, to receive
payment of the principal of and any premium and (subject to Section 307)
interest on such Security on the respective Stated Maturities expressed in such
Security (or, in the case of redemption, on the Redemption Date) and to
institute suit for the enforcement of any such payment, and such rights shall
not be impaired without the consent of such Holder.
SECTION 509. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to the Trustee or
to such Holder, then and in every such case, subject to any determination in
such proceeding, the Company, the Trustee and the Holders shall be restored
severally and respectively to their former positions hereunder and thereafter
all rights and remedies of the Trustee and the Holders shall continue as though
no such proceeding had been instituted.
SECTION 510. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities in the last paragraph of Section
306, no right or remedy herein conferred upon or reserved to the Trustee or to
the Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 511. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder of any Securities to
exercise any right or remedy accruing upon any Event of Default shall impair any
such right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article or by law to
the Trustee or to the Holders may be exercised from time to time, and as often
as may be deemed expedient, by the Trustee or by the Holders, as the case may
be.
SECTION 512. CONTROL BY HOLDERS.
The Holders of a majority in principal amount of the Outstanding Securities
of any series 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 Securities of
such series, provided that
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(1) such direction shall not be in conflict with any rule of law or
with this Indenture, and
(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction.
SECTION 513. WAIVER OF PAST DEFAULTS.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series may on behalf of the Holders of all the
Securities of such series waive any past default hereunder with respect to such
series and its consequences, except a default
(1) in the payment of the principal of or any premium or interest on
any Security of such series, or
(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
default or impair any right consequent thereon.
SECTION 514. UNDERTAKING FOR COSTS.
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, suffered 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 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 such an undertaking or to make
such an assessment in any suit instituted by the Company.
SECTION 515. WAIVER OF USURY, STAY OR EXTENSION LAWS.
The Company covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, or plead, or in any manner whatsoever claim or
take the benefit or advantage of, any usury, stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE SIX
THE TRUSTEE
SECTION 601. CERTAIN DUTIES AND RESPONSIBILITIES.
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 it shall have 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 602. NOTICE OF DEFAULTS.
If a default occurs hereunder with respect to Securities of any series, the
Trustee shall give the Holders of Securities of such series notice of such
default as and to the extent provided by the Trust Indenture Act; provided,
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however, that in the case of any default of the character specified in Section
501(4) with respect to Securities of such series, no such notice to Holders
shall be given until at least 60 days after the occurrence thereof. For the
purpose of this Section, the term "default" means any event or events, as the
case may be, specified in Section 501, not including periods of grace, if any,
provided for therein.
SECTION 603. CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of Section 601:
(1) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, action, certificate,
statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence
of indebtedness or other paper or document believed by it to be
genuine and to have been signed or presented by the proper party
or parties;
(2) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order, and
any resolution of the Board of Directors or Establishment Action
may be sufficiently evidenced by a Board Resolution or
Establishment Action, as the case may be;
(3) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee
(unless other evidence be herein specifically prescribed) may, in
the absence of bad faith on its part, rely upon an Officers'
Certificate;
(4) the Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance
thereon;
(5) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless
such Holders shall have offered to the Trustee reasonable security
or indemnity against the costs, expenses and liabilities which
might be incurred by it in compliance with such request or
direction;
(6) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, action, certificate,
statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence
of indebtedness or other paper or document, but the Trustee, in
its discretion, may make such further inquiry or investigation
into such facts or matters as it may see fit, and, if the Trustee
shall determine to make such further inquiry or investigation, it
shall be entitled to examine the books, records and premises of
the Company, personally or by agent or attorney;
(7) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through
agents or attorneys and the Trustee shall not be responsible for
any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder; and
(8) 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 604. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.
The recitals contained herein and in the Securities, except the Trustee's
certificates of authentication, shall be taken as the statements of the Company,
and neither the Trustee nor any Authenticating Agent assumes any responsibility
for their correctness. The Trustee makes no representations as to the validity
or sufficiency of this Indenture or of the Securities. Neither the Trustee nor
any Authenticating Agent shall be accountable for the use or application by the
Company of Securities or the proceeds thereof.
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SECTION 605. MAY HOLD SECURITIES.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to Sections
608 and 613, may otherwise deal with the Company with the same rights it would
have if it were not Trustee, Authenticating Agent, Paying Agent, Security
Registrar or such other agent.
SECTION 606. MONEY HELD IN TRUST.
Money held by the Trustee, or any Paying Agent, in trust hereunder 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
money received by it hereunder except as otherwise agreed in writing with the
Company.
SECTION 607. COMPENSATION, REIMBURSEMENT AND INDEMNIFICATION.
The Company agrees
(1) to pay to the Trustee from time to time reasonable compensation as
shall be agreed in writing between the Company and the Trustee for
all services rendered by it hereunder (which compensation shall
not be limited by any provision of law in regard to the
compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its
agents and counsel), except any such expense, disbursement or
advance as may be attributable to its negligence or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless against, any
loss, liability or expense incurred without negligence or bad
faith on its part, arising out of or in connection with the
acceptance or administration of the trust or trusts hereunder,
including the costs and expenses of defending itself against any
claim or liability in connection with the exercise or performance
of any of its powers or duties hereunder and the costs and
expenses of enforcing this right to indemnification.
In the event any action, suit or proceeding is brought against any Trustee
in connection with any claim for which it is entitled to indemnity hereunder, it
shall promptly (but no later than ten days following service) notify the Company
in writing enclosing a copy of all papers served. All counsel employed to defend
any such claim shall be retained directly by the Company and may serve as
counsel to the Company and/or one or more Trustees. Absent a conflict of
interest, the Company shall not be required to pay the fees and expenses of more
than one law firm in connection with its obligations hereunder. A Trustee
entitled to indemnification may, in addition to counsel engaged by the Company,
engage counsel to represent such party at that party's sole expense.
Notwithstanding any other provision of this Indenture, the Company shall not be
liable to pay any settlement agreed to without its written consent.
SECTION 608. CONFLICTING INTERESTS.
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 this Indenture with respect to
Securities of more than one series or a trustee under the indenture dated
____________, ________ between the Company and the Trustee respecting Senior
Debt of USX.
SECTION 609. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be one (and only one) Trustee hereunder with
respect to the Securities of each series, which may be Trustee hereunder for
Securities of one or more other series. Each Trustee shall be a Person that is
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eligible pursuant to the Trust Indenture Act to act as such and has a combined
capital and surplus of at least $50,000,000. If any such Person publishes
reports of condition at least annually, pursuant to law or to the requirements
of its supervising or examining authority, then for the purposes of this Section
and to the extent permitted by the Trust Indenture Act, the combined capital and
surplus of such Person 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
the Trustee with respect to the Securities of any series shall cease to be
eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.
SECTION 610. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until
the acceptance of appointment by the successor Trustee in accordance
with the applicable requirements of Section 611.
(b) The Trustee may resign at any time with respect to the Securities of
one or more series by giving written notice thereof to the Company. If
the instrument of acceptance by a successor Trustee required by Section
611 shall not have been delivered to the Trustee within 30 days after
the giving of such notice of resignation, the resigning Trustee may
petition any court of competent jurisdiction for the appointment of a
successor Trustee with respect to the Securities of such series.
(c) The Trustee may be removed at any time with respect to the Securities
of any series by Act of the Holders of a majority in principal amount
of the Outstanding Securities of such series, delivered to the Trustee
and to the Company. If the instrument of acceptance by a successor
Trustee required by Section 611 shall not have been delivered to the
Trustee within 30 days after the giving of such notice of removal, the
Trustee being removed may petition any court of competent jurisdiction
for the appointment of a successor Trustee with respect to the
Securities of such series.
(d)If at any time:
(1) the Trustee shall fail to comply with Section 608 after written
request therefor by the Company or by any Holder who has been a
bona fide Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609 and shall
fail to resign after written request therefor by the Company or by
any such Holder, 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,
(A) the Company by a Board Resolution may remove the Trustee with
respect to all Securities, or
(B) subject to Section 514, any Holder who has been a bona fide Holder
of a 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 with respect to all
Securities and the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of acting,
or if a vacancy shall occur in the office of Trustee for any cause,
with respect to the Securities of one or more series, the Company, by a
Board Resolution, shall promptly appoint a successor Trustee or
Trustees with respect to the Securities of that or those series (it
being understood that any such successor Trustee may be appointed with
respect to the Securities of one or more or all of such series and that
at any time there shall be only one Trustee with respect to the
Securities of any particular series) and shall comply with the
applicable requirements of Section 611. If, within one year after such
resignation, removal or incapability, or the occurrence of such
vacancy, a successor Trustee with respect to the Securities of any
series shall be appointed by Act of the Holders of a majority in
principal amount of the Outstanding Securities of such
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series delivered to the Company and the retiring Trustee, the successor
Trustee so appointed shall, forthwith upon its acceptance of such
appointment in accordance with the applicable requirements of Section
611, become the successor Trustee with respect to the Securities of
such series and to that extent supersede the successor Trustee
appointed by the Company. If no successor Trustee with respect to the
Securities of any series shall have been so appointed by the Company or
the Holders and accepted appointment in the manner required by Section
611, any Holder who has been a bona fide Holder of a Security of such
series for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for
the appointment of a successor Trustee with respect to the Securities
of such series.
(f) The Company shall give notice of each resignation and each removal of
the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee with respect to the Securities of
any series to all Holders of Securities of such series in the manner
provided in Section 106. Each notice shall include the name of the
successor Trustee with respect to the Securities of such series and the
address of its Corporate Trust Office.
SECTION 611. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
In case of the appointment hereunder of a successor Trustee with respect to
all Securities, every such successor Trustee so appointed shall execute,
acknowledge and deliver to the Company and to the retiring Trustee an instrument
accepting such appointment, and thereupon the resignation or removal of the
retiring Trustee shall become effective and such successor Trustee, without any
further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee; but, on the request of the
Company or the successor Trustee, such retiring Trustee shall, upon payment of
its charges, execute and deliver an instrument transferring to such successor
Trustee all the rights, powers and trusts of the retiring Trustee and shall duly
assign, transfer and deliver to such successor Trustee all property and money
held by such retiring Trustee hereunder.
In case of the appointment hereunder of a successor Trustee with respect to
the Securities of one or more (but not all) series, the Company, the retiring
Trustee and each successor Trustee with respect to the Securities of one or more
series shall execute and deliver an indenture supplemental hereto wherein each
successor Trustee shall accept such appointment and which (1) shall contain such
provisions as shall be necessary or desirable to transfer and confirm to, and to
vest in, each successor Trustee all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series to which
the appointment of such successor Trustee relates, (2) if the retiring Trustee
is not retiring with respect to all Securities, shall contain such provisions as
shall be deemed necessary or desirable to confirm that all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series as to which the retiring Trustee is not retiring shall continue
to be vested in the retiring Trustee, and (3) shall 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, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Trustee; and upon
the execution and delivery of such supplemental indenture the resignation or
removal of the retiring Trustee shall become effective to the extent provided
therein and each such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of that or those series
to which the appointment of such successor Trustee relates; but, on request of
the Company or any successor Trustee, such retiring Trustee shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates.
Upon request of any such successor Trustee, the Company shall execute any
and all instruments for more fully and certainly vesting in and confirming to
such successor Trustee all such rights, powers and trusts referred to in the
first or second preceding paragraph, as the case may be.
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No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be qualified and eligible under
this Article.
SECTION 612. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.
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 all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities.
SECTION 613. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
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 614. APPOINTMENT OF AUTHENTICATING AGENT.
The Trustee may appoint an Authenticating Agent or Agents with respect to
one or more series of Securities which shall be authorized to act on behalf of
the Trustee to authenticate Securities of such series issued upon original issue
and upon exchange, registration of transfer or partial redemption thereof or
pursuant to Section 306, and Securities so authenticated shall be entitled to
the benefits of this Indenture and shall be valid and obligatory for all
purposes as if authenticated by the Trustee hereunder. Wherever reference is
made in this Indenture to the authentication and delivery of Securities by the
Trustee or the Trustee's certificate of authentication, such reference shall be
deemed to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent must be
acceptable to the Company and shall at all times be a corporation organized and
doing business under the laws of the United States of America, any State thereof
or the District of Columbia, authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of not less than $50,000,000 and
subject to supervision or examination by Federal or State authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
Authenticating Agent 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
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to all or substantially all of
the corporate agency or corporate trust business of an Authenticating Agent,
shall continue to be an Authenticating Agent, provided such corporation shall be
otherwise eligible under this Section, without the execution or filing of any
paper or any further act on the part of the Trustee or the Authenticating Agent.
In case at the time such successor to any Authenticating Agent with respect
to any series shall succeed to such Authenticating Agent, any of the Securities
of such series shall have been authenticated but not delivered, any such
successor to such Authenticating Agent may adopt the certificate of
authentication of any predecessor Authenticating Agent and deliver such
Securities so authenticated; and in case at that time any of the Securities of
such series shall not have been authenticated, any successor to any
Authenticating Agent may authenticate such Securities either in the name of any
predecessor hereunder or in the name of successor Authenticating Agent; and
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in all such cases such certificate shall have the full force which it is
anywhere in the Securities of such series or in this Indenture provided that the
certificate of the predecessor Authenticating Agent shall have; provided,
however, that the right to adopt the certificate of authentication of any
predecessor Authenticating Agent or to authenticate Securities in the name of
any predecessor Authenticating Agent shall apply only to its successor or
successors by merger, conversion or consolidation.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Company. The Trustee may at any time terminate
the agency of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which must be acceptable to the Company and shall give notice of such
appointment in the manner provided in Section 106 to all Holders of Securities
of the series with respect to which such Authenticating Agent will serve. Any
successor Authenticating 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 if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
Any Authenticating 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 Authenticating 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 Authenticating
Agent and will furnish the Trustee such other information and reports as the
Trustee may reasonably require; it is eligible for appointment as Authenticating
Agent under this Section 614 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 of acts or failures to act of the Authenticating
Agent but it shall have no liability for any action taken by it at the specific
written direction of the Trustee.
The Trustee agrees to pay to each Authenticating Agent from time to time
reasonable compensation for its services under this Section, and the Trustee
shall be entitled to be reimbursed for such payments, subject to the provisions
of Section 607.
If an appointment with respect to one or more series is made pursuant to
this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternative
certificate of authentication in the following form:
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
HARRIS TRUST AND SAVINGS BANK,
As Trustee
By
--------------------------------------
As Authenticating Agent
By
--------------------------------------
Authorized Officer
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ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS.
The Company will furnish or cause to be furnished to the Trustee
(1) semi-annually, not later than June 30 and December 31 in each
year, a list, in such form as the Trustee may reasonably require,
of the names and addresses of the Holders of Securities of each
series as of a date no more than 15 days prior to the date such
list is furnished, and
(2) 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;
excluding from any such list names and addresses received by the Trustee in its
capacity as Security Registrar.
SECTION 702. PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS.
The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 701 and the names and
addresses of Holders received by the Trustee, or its designee, in its capacity
as Security Registrar. The Trustee may destroy any list furnished to it as
provided in Section 701 upon receipt of a new list so furnished.
The rights of Holders to communicate with other Holders with respect to
their rights under this Indenture or under the Securities, and the corresponding
rights and privileges of the Trustee, shall be as provided by the Trust
Indenture Act.
Every Holder of 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 made pursuant to the Trust
Indenture Act.
SECTION 703. REPORTS BY TRUSTEE.
The Trustee shall transmit to Holders 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.
Reports so required to be transmitted at stated intervals of not more than
12 months shall be transmitted no later than sixty days after each May 1
following the date of first issuance.
A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Trustee with each stock exchange upon which any
Securities are listed, with the Commission and with the Company. (The Company
will notify the Trustee when any Securities are listed on any stock exchange
pursuant to Section 704.)
SECTION 704. REPORTS BY COMPANY.
The Company shall file with the Trustee and the Commission, and transmit to
Holders, 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; provided that any such information,
documents or reports required to be filed with the Commission pursuant to
Section 13 or 15(d) of the Exchange Act shall be filed with the Trustee within
15 days after the same is so required to be filed with the Commission.
The Company shall notify the Trustee when any Securities are listed on any
stock exchange.
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ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS.
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
(1) (a) the Company shall be the continuing corporation or
(b) (i) 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
(ii) such corporation shall expressly assume the due and
punctual payment of the principal of and any premium and
interest on all the 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
(2) 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 801, "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 802. SUCCESSOR SUBSTITUTED.
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 Securities in accordance with Section 801, 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
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 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 Indenture prescribed, the Trustee shall authenticate and shall deliver
any Securities which previously shall have been signed and delivered by the
officers of the Company to the Trustee for authentication and any Securities
which such successor corporation thereafter shall cause to be signed and
delivered to the Trustee for that purpose. All the Securities so issued shall in
all respects have the same legal rank and benefit under this Indenture as the
Securities theretofore or thereafter issued in accordance with the terms of this
Indenture as though all of such 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 Securities
thereafter to be issued as may be appropriate.
SECTION 803. SECURE WITH LIEN ON PROPERTY.
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
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encumbrance, the Company, prior to such consolidation, merger, sale, conveyance
or acquisition, will secure the 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 804. TRUSTEE ENTITLED TO OPINION.
The Trustee, subject to the provisions of Sections 601 and 603, 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 Eight.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holders, the Company, when authorized by its
Board of Directors, and the Trustee, at any time and from time to time, may
enter into one or more indentures supplemental hereto, in form satisfactory to
the Trustee, for one or more of the following purposes:
(1) to evidence the succession of another Person to the Company and
the assumption by any such successor of the covenants of the
Company herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (and if such covenants
are to be for the benefit of less than all series of 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; or
(3) to add any additional Events of Default for the benefit of the
Holders of all or any series of Securities (and if such
additional Events of Default are to be for the benefit of less
than all series of Securities, stating that such additional
Events of Default are expressly being included solely for the
benefit of such series); or
(4) to add to or change any of the provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the
issuance of Securities in bearer form, registrable or not
registrable as to principal, and with or without interest
coupons, or to permit or facilitate the issuance of Securities in
uncertificated form; or
(5) To add to, change or eliminate any of the provisions of this
Indenture in respect of one or more series of Securities,
including, without limitation, with respect to any of the
provisions set forth in Article Fourteen; provided that any such
addition, change or elimination
(A) shall neither
(i) apply to any Security of any series created prior to the
execution of such supplemental indenture and entitled to
the benefit of such provision nor
(ii) modify the rights of the Holder of any such Security with
respect to such provision
or
(B) shall become effective only when there is no such Security
Outstanding;
or
(6) to secure the Securities of any series; or
(7) to establish the form or terms of Securities of any series as
permitted by Sections 201 and 301; or
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(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities
of one or more series 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 the requirements of Section 611; or
(9) to make provision with respect to any conversion or exchange
rights as contemplated by Section 301; or
(10) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other
provision herein, or to make any other provisions with respect to
matters or questions arising under this Indenture, provided that
such action pursuant to this Clause (10) shall not adversely
affect the interests of the Holders of Securities of any series
in any material respect.
SECTION 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
With the consent of the Holders of not less than 66 2/3% in principal
amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by its Board of Directors, and the Trustee
may enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of Securities of such series under this Indenture; provided, however,
that no such supplemental indenture shall, without the consent of the Holder of
each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any installment
of principal of or interest on, any Security, or reduce the
principal amount thereof or the rate of interest thereon or any
premium payable upon the redemption thereof, or reduce the amount
of the principal of an Original Issue Discount Security or any
other Security which would be due and payable upon a declaration
of acceleration of the Maturity thereof pursuant to Section 502,
or change the coin or currency in which any Security or any
premium or interest thereon is payable, or impair the right to
institute suit for the enforcement of any such payment on or after
the Stated Maturity thereof (or, in the case of redemption, on or
after the Redemption Date), or adversely affect any right of the
Holder of any Security to require the Company to repurchase such
Security or adversely affect any right to convert or exchange any
Security as specified as contemplated by Section 301, or modify
the provisions of this Indenture with respect to the subordination
of the Securities in a manner adverse to the Holders, or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required
for any such supplemental indenture, or the consent of whose
Holders is required for any waiver (of compliance with certain
provisions of this Indenture or certain defaults hereunder and
their consequences) provided for in this Indenture, or
(3) modify any of the provisions of this Section, or Section 513 or
Section 1005, except to increase any percentage set forth in such
Sections or to provide that certain other provisions of this
Indenture cannot be modified or waived without the consent of the
Holder of each Outstanding Security affected thereby; provided,
however, that this clause shall not be deemed to require the consent
of any Holder with respect to changes in the references to "the
Trustee" and concomitant changes in this Section and Section 1005,
or the deletion of this proviso, in accordance with the requirements
of Sections 611 and 901(8).
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
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SECTION 903. EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 601) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
SECTION 904. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this Article, this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
SECTION 905. CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act.
SECTION 906. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES.
Securities of any series authenticated and delivered after the execution of
any supplemental indenture pursuant to this Article may, and shall if required
by the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Securities of any series so modified as to conform, in the opinion of the
Trustee and the Company, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by the Trustee in
exchange for Outstanding Securities of such series.
ARTICLE TEN
COVENANTS
SECTION 1001. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.
The Company covenants and agrees for the benefit of each series of
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
any premium and interest on each of the Securities of such series at the Place
of Payment, at the respective times and in the manner provided in the Securities
and this Indenture. The principal of, premium, and interest on the Securities
shall be payable only in accordance with the terms of the relevant Security.
SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY.
The Company will maintain in the Borough of Manhattan, The City of New
York, and in each other Place of Payment for any series of Securities an office
or agency where Securities of that series may be presented or surrendered for
payment, where Securities of that series may be surrendered for registration of
transfer or exchange and where notices and demands to or upon the Company in
respect of the Securities of that series and this Indenture may be served. The
Company will give prompt written notice to the Trustee of the location, and any
change in the location, of such office or agency. If at any time the Company
shall fail to maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the Corporate Trust Office of the
Trustee, or an affiliate of the Trustee, and the Company hereby appoints the
Trustee as its agent to receive all such presentations, surrenders, notices and
demands.
The Company may also from time to time designate one or more other offices
or agencies where the Securities of one or more series may be presented or
surrendered for any or all such purposes and may from time
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to time rescind such designations; provided, however, that no such designation
or rescission shall in any manner relieve the Company of its obligation to
maintain an office or agency in the Borough of Manhattan, The City of New York,
and in each other Place of Payment for Securities of any series for such
purposes. The Company will give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any such other
office or agency.
SECTION 1003. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST.
If the Company shall at any time act as its own Paying Agent with respect
to any series of Securities, it will, on or before each due date of the
principal of or any premium or interest on any of the Securities of that series,
segregate and hold in trust for the benefit of the Persons entitled thereto a
sum sufficient to pay the principal and any premium and interest so becoming due
until such sums shall be paid to such Persons or otherwise disposed of as herein
provided and will promptly notify the Trustee of its action or failure so to
act.
Whenever the Company shall have one or more Paying Agents for any series of
Securities, it will, prior to each due date of the principal of or any premium
or interest on any Securities of that series, deposit with a Paying Agent a sum
sufficient to pay such amount, such sum to be held as provided by the Trust
Indenture Act, and (unless such Paying Agent is the Trustee) the Company will
promptly notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent, other than the Trustee or the
Company, for any series of Securities 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, 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 Securities of that series) in the making of any payment in respect of the
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 Securities of that series. Each of the Company and the Trustee,
having agreed to the foregoing on its behalf as a Paying Agent by its execution
and delivery of this instrument, has hereby satisfied the provisions of this
paragraph with respect to itself as a Paying Agent.
The Company may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or by Company
Order direct any Paying Agent to pay, to the Trustee all sums held in trust by
the Company or such Paying Agent, such sums to be held by the Trustee upon the
same trusts as those upon which such sums were held by the Company or such
Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such
Paying Agent shall be released from all further liability with respect to such
money.
Any money deposited with the Trustee or any Paying Agent, or then held by
the Company, in trust for the payment of the principal of or any premium or
interest on any Security of any series and remaining unclaimed for two years
after such principal, premium or interest has become due and payable shall be
paid to the Company on Company Request, or (if then held by the Company) shall
be discharged from such trust; and the Holder of such Security shall thereafter,
as an unsecured general creditor, look only to the Company for payment thereof,
and all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, 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, in a newspaper published in the English language, customarily
published on each Business Day and of general circulation in New York, New York,
notice that such money remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of such publication,
any unclaimed balance of such money then remaining will be repaid to the Company
free of the trust formerly impressed upon it.
SECTION 1004. STATEMENT BY OFFICERS AS TO DEFAULT.
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)
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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 1005. WAIVER OF CERTAIN COVENANTS.
Except as otherwise specified as contemplated by Section 301 for Securities
of such series, the Company may, with respect to the Securities of any series,
omit in any particular instance to comply with any term, provision or condition
set forth in any covenant provided pursuant to Section 301(18), 901(2) or 901(7)
for the benefit of the Holders of such series if before the time for such
compliance the Holders of at least a majority in principal amount of the
Outstanding Securities of such series shall, by Act of such Holders, either
waive such compliance in such instance or generally waive compliance with such
term, provision or condition, but no such waiver shall extend to or affect such
term, provision or condition except to the extent so expressly waived, and,
until such waiver shall become effective, the obligations of the Company and the
duties of the Trustee in respect of any such term, provision or condition shall
remain in full force and effect.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. APPLICABILITY OF ARTICLE.
Securities of any series which are redeemable before their Stated Maturity
shall be redeemable in accordance with their terms and (except as otherwise
specified as contemplated by Section 301 for such Securities) in accordance with
this Article.
SECTION 1102. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem any Securities shall be evidenced by
a Board Resolution or in another manner specified as contemplated by Section 301
for such Securities. In case of any redemption at the election of the Company of
less than all the Securities of any series (including any such redemption
affecting only a single Security), the Company shall, at least 60 days prior to
the Redemption Date fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee of such Redemption Date, of the
principal amount of Securities of such series to be redeemed and, if applicable,
of the tenor of the Securities to be redeemed. In the case of any redemption of
Securities prior to the expiration of any restriction on such redemption
provided in the terms of such Securities or elsewhere in this Indenture, the
Company shall furnish the Trustee with an Officers' Certificate evidencing
compliance with such restriction.
SECTION 1103. SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED.
If less than all the Securities of any series are to be redeemed (unless
all the Securities of such series and of a specified tenor are to be redeemed or
unless such redemption affects only a single Security), the particular
Securities to be redeemed shall be selected not more than 60 days prior to the
Redemption Date by the Trustee, from the Outstanding Securities of such series
not previously called for redemption, by such method as the Trustee shall deem
fair and appropriate and which may provide for the selection for redemption of a
portion of the principal amount of any Security of such series, provided that
the unredeemed portion of the principal amount of any Security shall be in an
authorized denomination (which shall not be less than the minimum authorized
denomination or any integral multiple thereof) for such Security. If less than
all the Securities of such series and of a specified tenor are to be redeemed
(unless such redemption affects only a single Security), the particular
Securities to be redeemed shall be selected not more than 60 days prior to the
Redemption Date by the Trustee, from the Outstanding Securities of such series
and specified tenor not previously called for redemption in accordance with the
preceding sentence.
The Trustee shall promptly notify the Company in writing of the Securities
selected for redemption as aforesaid and, in case of any Securities selected for
partial redemption as aforesaid, the principal amount thereof to be redeemed.
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The provisions of the two preceding paragraphs shall not apply with respect
to any redemption affecting only a single Security, whether such Security is to
be redeemed in whole or in part. In the case of any such redemption in part, the
unredeemed portion of the principal amount of the Security shall be in an
authorized denomination (which shall not be less than the minimum authorized
denomination) for such Security.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities shall relate, in the
case of any Securities redeemed or to be redeemed only in part, to the portion
of the principal amount of such Securities which has been or is to be redeemed.
SECTION 1104. NOTICE OF REDEMPTION.
Notice of redemption shall be given by first-class mail, postage prepaid,
mailed not less than 30 nor more than 60 days prior to the Redemption Date, to
each Holder of Securities to be redeemed, at his address appearing in the
Security Register.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of any series
consisting of more than a single Security are to be redeemed, the
identification (and, in the case of partial redemption of any such
Securities, the principal amounts) of the particular Securities to
be redeemed and, if less than all the Outstanding Securities of
any series consisting of a single Security are to be redeemed, the
principal amount of the particular Security to be redeemed,
(4) that on the Redemption Date the Redemption Price will become due
and payable upon each such Security to be redeemed and, if
applicable, that interest thereon will cease to accrue on and
after said date,
(5) the place or places where each such Security is to be surrendered
for payment of the Redemption Price,
(6) that the redemption is for a sinking fund, if such is the case,
and
(7) if applicable, the conversion price or exchange rate, the date on
which the right to convert or exchange the Securities to be
redeemed shall terminate and the place or places where such
Securities may be surrendered for conversion or exchange, as the
case may be.
Notice of redemption of Securities to be redeemed at the election of the
Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company and shall be irrevocable.
SECTION 1105. DEPOSIT OF REDEMPTION PRICE.
Prior to any Redemption Date, the Company shall deposit with the Trustee or
with a Paying Agent (or, if the Company is acting as its own Paying Agent,
segregate and hold in trust as provided in Section 1003) an amount of money
sufficient to pay the Redemption Price of, and (except if the Redemption Date
shall be an Interest Payment Date) accrued interest on, all the Securities which
are to be redeemed on that date other than any Securities called for redemption
on that date which have been converted or exchanged prior to the date of such
deposit.
If any Security called for redemption is converted or exchanged, any money
deposited with the Trustee or with any Paying Agent or so segregated and held in
trust for the redemption of such Security shall (subject to any right of the
Holder of such Security or any Predecessor Security to receive interest as
provided in the last paragraph of Section 307) be paid to the Company upon
Company Request or, if then held by the Company, shall be discharged from such
trust.
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SECTION 1106. SECURITIES PAYABLE ON REDEMPTION DATE.
Notice of redemption having been given as aforesaid, the Securities so to
be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, such Security shall
be paid by the Company at the Redemption Price, together with accrued interest
to the Redemption Date; provided, however, that, unless otherwise specified as
contemplated by Section 301, installments of interest whose Stated Maturity is
on or prior to the Redemption Date will be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as such at the
close of business on the relevant Record Dates according to their terms and the
provisions of Section 307.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal and any premium shall, until paid, bear
interest from the Redemption Date at the rate prescribed therefor in the
Security.
SECTION 1107. SECURITIES REDEEMED IN PART.
Any Security which is to be redeemed only in part shall be surrendered at a
Place of Payment 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 Security without service
charge, a new Security or Securities of the same series and of like tenor, of
any authorized denomination as requested by such Holder, in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Security so surrendered.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. APPLICABILITY OF ARTICLE.
The provisions of this Article shall be applicable to any sinking fund for
the retirement of Securities of any series except as otherwise specified as
contemplated by Section 301 for such Securities.
The minimum amount of any sinking fund payment provided for by the terms of
any Securities is herein referred to as a "mandatory sinking fund payment", and
any payment in excess of such minimum amount provided for by the terms of such
Securities is herein referred to as an "optional sinking fund payment". If
provided for by the terms of any Securities, the cash amount of any sinking fund
payment may be subject to reduction as provided in Section 1202. Each sinking
fund payment shall be applied to the redemption of Securities as provided for by
the terms of such Securities.
SECTION 1202. SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES.
The Company
(1) may deliver Outstanding Securities of a series (other than any
previously called for redemption) and
(2) may apply as a credit Securities of a series which have been
redeemed either at the election of the Company pursuant to the
terms of such Securities or through the application of permitted
optional sinking fund payments pursuant to the terms of such
Securities,
in each case in satisfaction of all or any part of any sinking fund payment with
respect to any Securities of such series required to be made pursuant to the
terms of such Securities as and to the extent provided for by the terms of such
Securities; provided that the Securities to be so credited have not been
previously so credited. The Securities to be so credited shall be received and
credited for such purpose by the Trustee at the Redemption
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Price, as specified in the Securities so to be redeemed, for redemption through
operation of the sinking fund and the amount of such sinking fund payment shall
be reduced accordingly.
SECTION 1203. REDEMPTION OF SECURITIES FOR SINKING FUND.
Not less than 45 days prior to each sinking fund payment date for any
Securities, the Company will deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing sinking fund payment for such
Securities pursuant to the terms of such Securities, the portion thereof, if
any, which is to be satisfied by payment of cash and the portion thereof, if
any, which is to be satisfied by delivering and crediting Securities pursuant to
Section 1202 and will also deliver to the Trustee any Securities to be so
delivered. Not less than 15 nor more than 45 days prior to each such sinking
fund payment date, the Trustee shall select the Securities to be redeemed upon
such sinking fund payment date in the manner specified in Section 1103 and cause
notice of the redemption thereof to be given in the name of and at the expense
of the Company in the manner provided in Section 1104. Such notice having been
duly given, the redemption of such Securities shall be made upon the terms and
in the manner stated in Sections 1106 and 1107.
ARTICLE THIRTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1301. COMPANY'S OPTION TO EFFECT DEFEASANCE OR COVENANT DEFEASANCE.
The Company may elect, at its option at any time, to have Section 1302 or
Section 1303 applied to any Securities or any series of Securities, as the case
may be, designated pursuant to Section 301 as being defeasible pursuant to such
Section 1302 or 1303, in accordance with any applicable requirements provided
pursuant to Section 301 and upon compliance with the conditions set forth below
in this Article. Any such election shall be evidenced by a Board Resolution or
in another manner specified as contemplated by Section 301 for such Securities.
With respect to any series subject to conversion or exchange, the terms of any
defeasance shall be specified pursuant to Section 301.
SECTION 1302. DEFEASANCE AND DISCHARGE.
Upon the Company's exercise of its option (if any) to have this Section
applied to any Securities or any series of Securities, as the case may be, the
Company shall be deemed to have been discharged from its obligations, and the
provisions of Article Fourteen shall cease to be effective, with respect to such
Securities as provided in this Section on and after the date the conditions set
forth in Section 1304 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 such Securities and to have
satisfied all its other obligations under such Securities and this Indenture
insofar as such Securities 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 such Securities to receive, solely from
the trust fund described in Section 1304 and as more fully set
forth in such Section, payments in respect of the principal of and
any premium and interest on such Securities when payments are due,
(2) the Company's obligations with respect to such Securities under
Sections 304, 305, 306, 1002 and 1003,
(3) the rights, powers, trusts, duties and immunities of the Trustee
hereunder and
(4) this Article.
Subject to compliance with this Article, the Company may exercise its
option (if any) to have this Section applied to any Securities notwithstanding
the prior exercise of its option (if any) to have Section 1303 applied to such
Securities.
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SECTION 1303. COVENANT DEFEASANCE.
Upon the Company's exercise of its option (if any) to have this Section
applied to any Securities or any series of Securities, as the case may be,
(1) the Company shall be released from its obligations under Section
801(1)(b)(i), Section 803 and any covenants provided pursuant to
Section 301(18), 901(2) or 901(7) for the benefit of the Holders
of such Securities
(2) the occurrence of any event specified in Sections 501(3), 501(4)
(with respect to any of Section 801(1)(b)(i), Section 803 and any
such covenants provided pursuant to Section 301(18), 901(2) or
901(7)) and 501(7) shall be deemed not to be or result in an Event
of Default and
(3) the provisions of Article Fourteen shall cease to be effective,
in each case with respect to such Securities as provided in this Section on and
after the date the conditions set forth in Section 1304 are satisfied
(hereinafter called "Covenant Defeasance"). For this purpose, such Covenant
Defeasance means that, with respect to such Securities, 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 501(4)) or Article Fourteen, whether directly or
indirectly by reason of any reference elsewhere herein to any such Section or
Article or by reason of any reference in any such Section or Article to any
other provision herein or in any other document, but the remainder of this
Indenture and such Securities shall be unaffected thereby.
SECTION 1304. CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE.
The following shall be the conditions to the application of Section 1302 or
Section 1303 to any Securities or any series of Securities, as the case may be:
(1) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee which satisfies the
requirements contemplated by Section 609 and agrees to comply with
the provisions of this Article 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
benefits of the Holders of such Securities,
(A) money in an amount (in such currency, currencies or currency
unit or units in which the Securities of such series are
payable), or
(B) in the case of Securities denominated in Dollars, U.S.
Government Obligations, or, in the case of Securities
denominated in a Foreign Currency, Foreign Government
Obligations, which 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 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 such Securities on the respective Stated
Maturities, in accordance with the terms of this Indenture and such
Securities. As used herein, "U.S. Government Obligation" means
(x) any security which is
(i) a direct obligation of the United States of America for the
payment of which the full faith and credit of the United
States of America is pledged or
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(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) as custodian with respect to any
U.S. Government Obligation which is specified in Clause (x)
above and held by such bank for the account of the holder of
such depositary receipt, or with respect to any specific
payment of principal of or interest on any U.S. Government
Obligation which is so specified and held, 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 event of an election to have Section 1302 apply to any
Securities or any series of Securities, as the case may be, 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 of this instrument, 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 such Securities 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
such Securities 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 event of an election to have Section 1303 apply to any
Securities or any series of Securities, as the case may be, the
Company shall have delivered to the Trustee an Opinion of Counsel
to the effect that the Holders of such Securities 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 such Securities 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 which is, or after notice or lapse of time or both would
become, an Event of Default with respect to such Securities or any
other Securities shall have occurred and be continuing at the time
of such deposit or, with regard to any such event specified in
Sections 501(5) and (6), 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 (assuming all Securities are in default within the
meaning of such 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) 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 (and any
statute successor thereto) unless such trust shall be registered
under such Act or exempt from registration thereunder.
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(8) At the time of such deposit, (A) no default in the payment of any
principal of or premium or interest on any Senior Debt shall have
occurred and be continuing, (B) no event of default with respect
to any Senior Debt shall have resulted in such Senior Debt
becoming, and continuing to be, due and payable prior to the date
on which it would otherwise have become due and payable (unless
payment of such Senior Debt has been made or duly provided for),
and (C) no other event of default with respect to any Senior Debt
shall have occurred and be continuing permitting (after notice or
lapse of time or both) the holders of such Senior Debt (or a
trustee on behalf of such holders) to declare such Senior Debt due
and payable prior to the date on which it would otherwise have
become due and payable.
(9) 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.
SECTION 1305. DEPOSITED MONEY AND U.S. GOVERNMENT OBLIGATIONS TO BE HELD IN
TRUST; MISCELLANEOUS PROVISIONS.
Subject to the provisions of the last paragraph of Section 1003, all money,
U.S. Government Obligations (including the proceeds thereof) and Foreign
Government Obligations (including the proceeds thereof) deposited with the
Trustee or other qualifying trustee (solely for purposes of this Section and
Section 1306, the Trustee and any such other trustee are referred to
collectively as the "Trustee") pursuant to Section 1304 in respect of any
Securities shall be held in trust and applied by the Trustee, in accordance with
the provisions of such Securities and this Indenture, to the payment, either
directly or through any such Paying Agent (including the Company acting as its
own Paying Agent) as the Trustee may determine, to the Holders of such
Securities, 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. Money, U.S. Government
Obligations and Foreign Government Obligations so held in trust shall not be
subject to the provisions of Article Fourteen.
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 and
Foreign Government Obligations deposited pursuant to Section 1304 or the
principal and interest received in respect thereof other than any such tax, fee
or other charge which by law is for the account of the Holders of Outstanding
Securities.
Anything in this Article to the contrary notwithstanding, the Trustee shall
deliver or pay to the Company from time to time upon Company Request any money,
U.S. Government Obligations or Foreign Government Obligations held by it as
provided in Section 1304 with respect to any Securities which, 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 which would then be required to be deposited to effect the
Defeasance or Covenant Defeasance, as the case may be, with respect to such
Securities.
SECTION 1306. REINSTATEMENT.
If the Trustee or the Paying Agent is unable to apply any money in
accordance with this Article with respect to any Securities by reason of any
order or judgment of any court or governmental authority enjoining, restraining
or otherwise prohibiting such application, then the obligations under this
Indenture and such Securities from which the Company has been discharged or
released pursuant to Section 1302 or 1303 shall be revived and reinstated as
though no deposit had occurred pursuant to this Article with respect to such
Securities, until such time as the Trustee or Paying Agent is permitted to apply
all money held in trust pursuant to Section 1305 with respect to such Securities
in accordance with this Article; provided, however, that if the Company makes
any payment of principal of or any premium or interest on any such Security
following such reinstatement of its obligations, the Company shall be subrogated
to the rights (if any) of the Holders of such Securities to receive such payment
from the money so held in trust.
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ARTICLE FOURTEEN
SUBORDINATION OF SECURITIES
SECTION 1401. SECURITIES SUBORDINATE TO SENIOR DEBT.
The Company covenants and agrees, and each Holder of Securities of any
series by the Holder's acceptance thereof, likewise covenants and agrees, that,
to the extent and in the manner hereinafter set forth in this Article, subject
to the provisions of Article Four and Article Thirteen and except as may
otherwise be specified as contemplated by Section 301 and set forth in the
Securities of a series, the indebtedness represented by the Securities of such
series and the payment of the principal of and any premium and interest on each
and all of the Securities of such series are hereby expressly made subordinate
and junior in right of payment to the prior payment in full of all amounts then
due and payable in respect of all Senior Debt of the Company, to the extent and
in the manner herein set forth (unless a different manner is set forth in the
Securities of such series). No provision of this Article shall prevent the
occurrence of any default or Event of Default hereunder.
Senior Debt shall not be deemed to have been paid in full unless the
holders thereof shall have received cash, securities or other property equal to
the amount of such Senior Debt then outstanding.
SECTION 1402. PAYMENT OVER OF PROCEEDS UPON DISSOLUTION, ETC.
In the event of
(i) any insolvency, bankruptcy, receivership, liquidation,
reorganization, readjustment, composition or other similar
proceeding relating to the Company, its creditors or its
property,
(ii) any proceeding for the liquidation, dissolution or other winding
up of the Company, whether voluntary or involuntary, or
bankruptcy proceedings,
(iii) any assignment by the Company for the benefit of its creditors,
(iv) any other marshalling of the assets of the Company,
all Senior Debt shall first be paid in full before any payment or distribution,
whether in cash, securities or other property, shall be made by the Company on
account of the Securities of any series. Any payment or distribution, whether in
cash, securities or other property (other than securities of the Company or any
other corporation provided for by a plan or reorganization or a readjustment,
the payment of which is subordinate, at least to the extent provided in these
subordination provisions with respect to the indebtedness evidenced by the
Securities of any series, to the payment of all Senior Debt at the time
outstanding and to any securities issued in respect thereof under any such plan
of reorganization or readjustment), which would otherwise (but for these
subordination provisions) be payable or deliverable in respect to the Securities
of any series shall be paid or delivered directly to the holders of Senior Debt
in accordance with the priorities then existing among such holders until all
Senior Debt shall have been paid in full. No present or future holder of any
Senior Debt shall be prejudiced in the right to enforce subordination of the
indebtedness constituting the Securities of any series by any act of failure to
act on the part of the Company.
SECTION 1403. NO PAYMENT WHEN SENIOR DEBT IN DEFAULT.
In the event that
(i) the Company shall default in the payment of any principal, or
premium, if any, or interest on any Senior Debt when the same
becomes due and payable, whether at maturity or at a date fixed
for prepayment or declaration or otherwise; or
(ii) an event of default occurs with respect to any Senior Debt
permitting the holders thereof to accelerate the maturity
thereof and written notice describing such event of default and
requesting commencement of payment blockage on transactions as
thereinafter described is given to the Company by the holders of
Senior Debt,
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<PAGE> 54
then unless and until such default in payment and event of default shall have
been cured or waived or shall have ceased to exist, no direct or indirect
payment (in cash, property, securities, by set-off or otherwise) shall be made
or agreed to be made on account of the Securities of any series or any interest
thereon in respect of any repayment, redemption, retirement, purchase or other
acquisition of the Securities of any series.
SECTION 1404. PAYMENT PERMITTED IN CERTAIN SITUATIONS.
Nothing contained in this Article or elsewhere in this Indenture or in any
of the Securities of any series shall prevent
(a) the Company, at any time except during the pendency of any
dissolution, winding-up, liquidation or reorganization of the
Company, whether voluntary or involuntary or any bankruptcy,
insolvency, receivership or other proceedings of the Company
referred to in Section 1402 or under the conditions described in
Section 1403, from making payments at any time of principal of, or
premium, if any, or interest on the Securities of such series, or
(b) the application by the Trustee of any money deposited with it
hereunder to the payment of or on account of the principal of, or
premium, if any, or interest on the Securities of such series or
the retention of such payment by the Holders, if, at the time of
such application by the Trustee, it did not have knowledge that
such payment would have been prohibited by the provisions of this
Article.
SECTION 1405. SUBROGATION TO RIGHTS OF HOLDERS OF SENIOR DEBT.
Upon the payment in full of all Senior Debt, the rights of the holders of
Securities of any series shall be subrogated to all the rights of any holders of
Senior Debt to receive any further payments or distributions applicable to the
Senior Debt until the Securities of any series shall have been paid in full, and
such payments or distributions received by the Holders of Securities of any
series by reason of such subrogation, of cash, securities or other property
which otherwise would be paid or distributed to the holders of Senior Debt,
shall, as between the Company and its creditors other than the holders of Senior
Debt, on the one hand, and the Holders of Securities of any series, on the
other, be deemed to be a payment by the Company on account of Senior Debt, and
not on account of the Securities of any series.
SECTION 1406. PROVISIONS SOLELY TO DEFINE RELATIVE RIGHTS.
The provisions of this Article are and are intended solely for the purpose
of defining the relative rights of the Holders of Securities of any series on
the one hand and the holders of Senior Debt on the other hand. Nothing contained
in this Article or elsewhere in the Indenture or in the Securities of such
series is intended to or shall
(a) impair, as among the Company, its creditors other than holders of
Senior Debt and the Holders of Securities of such series, the
obligation of the Company, which is absolute and unconditional
(and which, subject to the rights under this Article of the
holders of Senior Debt, is intended to rank equally with all other
general obligations of the Company), to pay to the Holders of
Securities of such series the principal of (and premium, if any)
and interest on, the Securities of such series as and when the
same shall become due and payable in accordance with their terms;
or
(b) affect the relative rights against the Company of the Holders of
Securities of such series and creditors of the Company, as the
case may be, other than the holders of Senior Debt; or
(c) prevent the Trustee or the Holder of any Securities of such series
from exercising all remedies otherwise permitted by applicable law
upon default under this Indenture, subject to the rights, if any,
under this Article of the holders of Senior Debt to receive cash,
property and securities otherwise payable or deliverable to the
Trustee or such Holder.
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SECTION 1407. TRUSTEE TO EFFECTUATE SUBORDINATION.
Each Holder of Securities of any series by such Holder's acceptance thereof
authorizes and directs the Trustee on such Holder's behalf to take such action
as may be necessary or appropriate to effectuate the subordination provided in
this Article and appoints the Trustee his attorney-in-fact for any and all such
purposes.
SECTION 1408. NO WAIVER OF SUBORDINATION PROVISIONS.
No right of any present or future holder of any Senior Debt to enforce
subordination as herein provided shall at any time in any way be prejudiced or
impaired by any act or failure to act on the part of the Company or by any act
or failure to act, in good faith, by any such holder, or by any noncompliance by
the Company with the terms, provisions and covenants of this Indenture,
regardless of any knowledge thereof any such holder may have or be otherwise
charged with.
Without in any way limiting the generality of the foregoing paragraph, the
holders of Senior Debt may, at any time and from time to time, without the
consent of or notice to the Trustee or the Holders of the Securities of any
series, without incurring responsibility to the Holders of the Securities of
such series and without impairing or releasing the subordination provided in
this Article or the obligations hereunder of the Holders of Securities of such
series to the holders of Senior Debt, do any one or more of the following:
(a) change the manner, place or terms of payment or extend the time of
payment of, or renew or alter, Senior Debt, or otherwise amend or
supplement in any manner Senior Debt or any instrument evidencing
the same or any agreement under which Senior Debt is outstanding;
(b) sell, exchange, release or otherwise deal with any property
pledged, mortgaged or otherwise securing Senior Debt;
(c) release any Person liable in any manner for the collection of
Senior Debt; and
(d) exercise or refrain from exercising any rights against the Company
and any other Person.
SECTION 1409. NOTICE TO TRUSTEE.
The Company shall give prompt written notice to the Trustee of any fact
known to the Company which would prohibit the making of any payment to or by the
Trustee in respect of the Securities of any series pursuant to the provisions of
this Article. Notwithstanding the provisions of this Article or any other
provision of the Indenture, the Trustee shall not be charged with knowledge of
the existence of any facts which would prohibit the making of any payment to or
by the Trustee in respect of any Securities of any series pursuant to the
provisions of this Article, unless and until the Trustee shall have received
written notice thereof from the Company or a holder or holders of Senior Debt or
from any trustee therefor; and, prior to the receipt of any such written notice,
the Trustee, subject to the provisions of Section 603, shall be entitled in all
respects to assume that no such facts exist; provided, however,that if the
Trustee shall not have received the notice provided for in this Section at least
two Business Days prior to the date upon which by the terms hereof any money may
become payable for any purpose (including, without limitation, the payment of
the principal of (or premium, if any) or interest on any Securities of any
series), then, anything herein contained to the contrary notwithstanding, the
Trustee shall have full power and authority to receive such moneys and to apply
the same to the purpose for which they were received and shall not be affected
by any notice to the contrary that may be received by it within two Business
Days prior to such date.
Subject to the provisions of Section 603, the Trustee shall be entitled to
rely on the delivery to it of a written notice by a Person representing himself
to be a holder of Senior Debt (or a trustee therefor) to establish that such
notice has been given by a holder of Senior Debt (or a trustee therefor). In the
event that the Trustee determines in good faith that further evidence is
required with respect to the right of any Person as a holder of Senior Debt to
participate in any payment or distribution pursuant to this Article, the Trustee
may request such Person to furnish evidence to the reasonable satisfaction of
the Trustee as to the amount of Senior Debt held by such Person, the extent to
which such Person is entitled to participate in such payment or distribution and
any other facts pertinent
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to the rights of such Person under this Article, and if such evidence is not
furnished, the Trustee may defer any payment to such Person pending judicial
determination as to the right of such Person to receive such payment.
SECTION 1410. RELIANCE ON JUDICIAL ORDER OR CERTIFICATE OF LIQUIDATING AGENT.
Upon any payment or distribution of assets of the Company referred to in
this Article, the Trustee, subject to the provisions of Section 603, and the
Holders of Securities of any series shall be entitled to conclusively rely upon
any order or decree entered by any court of competent jurisdiction in which such
insolvency, bankruptcy, receivership, liquidation, reorganization, dissolution,
winding up or similar case or proceeding is pending, or a certificate of the
trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee for
the benefit of creditors, agent or other Person making such payment or
distribution, delivered to the Trustee or to the Holders of Securities of such
series, for the purpose of ascertaining the Persons entitled to participate in
such payment or distribution, the holders of the Senior Debt and other
indebtedness of the Company, as the case may be, the amount thereof or payable
thereon, the amount or amounts paid or distributed thereon and all other facts
pertinent thereto or to this Article.
SECTION 1411. TRUSTEE NOT FIDUCIARY FOR HOLDERS OF SENIOR DEBT.
With respect to the holders of Senior Debt, the Trustee undertakes to
perform or to observe only such of its covenants and obligations as are
specifically set forth in this Article, and no implied covenants or obligations
with respect to the holders of such Senior Debt shall be read into this
Indenture against the Trustee. The Trustee shall not be deemed to owe any
fiduciary duty to the holders of Senior Debt with respect to its obligations and
duties created hereunder and shall not be liable to any such holders or
creditors if it shall in good faith pay over or distribute to Holders of
Securities of any series or to the Company or to any other Person cash, property
or securities to which any holders of Senior Debt shall be entitled by virtue of
this Article or otherwise.
SECTION 1412. RIGHTS OF TRUSTEE AS HOLDER OF SENIOR DEBT; PRESERVATION OF
TRUSTEE'S RIGHTS.
The Trustee in its individual capacity shall be entitled to all the rights
set forth in this Article with respect to any Senior Debt which may at any time
be held by it, to the same extent as any other holder of Senior Debt, and
nothing in the Indenture shall deprive the Trustee of any of its rights as such
holder.
Nothing in this Article shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 607.
SECTION 1413. ARTICLE APPLICABLE TO PAYING AGENTS.
In case at any time any Paying Agent other than the Trustee shall have been
appointed by the Company and be then acting hereunder, the term "Trustee" as
used in this Article shall in such case (unless the context otherwise requires)
be construed as extending to and including such Paying Agent within its meaning
as fully for all intents and purposes as if such Paying Agent were named in this
Article in addition to or in place of the Trustee; provided, however, that this
Section shall not apply to the Company or any Affiliate of the Company if it or
such Affiliate acts as Paying Agent.
SECTION 1414. CERTAIN CONVERSIONS OR EXCHANGES DEEMED PAYMENT.
For the purposes of this Article only, (a) the issuance and delivery of
securities which are subordinate in right of payment to all then outstanding
Senior Debt to substantially the same extent as the Securities are so
subordinate ("Junior Securities") (or cash paid in lieu of fractional shares)
upon conversion or exchange of Securities of any series as contemplated by
Section 301, shall not be deemed to constitute a payment or distribution on
account of the principal of or premium or interest on Securities of such series
or on account of the purchase or other acquisition of Securities of such series
and (b) the payment, issuance or delivery of cash, property or securities (other
than Junior Securities and cash paid in lieu of fractional shares) upon
conversion or exchange of Securities of any series shall be deemed to constitute
payment on account of the principal of such Securities of such series. Nothing
contained in this Article or elsewhere in the Indenture or in the Securities of
any series is intended to or shall impair, as among the Company, its creditors
other than holders of Senior Debt
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and the Holders of Securities of such series the right, which is absolute and
unconditional, of the Holder of any Securities of such series to convert or
exchange such Securities of such series in accordance with the terms specified
as contemplated by Section 301.
SECTION 1415. DEFEASANCE OF THIS ARTICLE FOURTEEN.
The subordination of the Securities provided by this Article Fourteen is
expressly made subject to the provisions for defeasance or covenant defeasance
in Article Thirteen hereof and, anything herein to the contrary notwithstanding,
upon the effectiveness of any such defeasance or covenant defeasance, the
Securities then outstanding shall thereupon cease to be subordinated pursuant to
this Article Fourteen.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
USX CORPORATION
By
-----------------------------------
Attest:
- --------------------------------------
HARRIS TRUST AND SAVINGS BANK
By
-----------------------------------
Attest:
- --------------------------------------
52
<PAGE> 59
Commonwealth of Pennsylvania
County of Allegheny ss.:
On the day of , , before me personally came
, to me known, who, being by me duly sworn, did depose and say
that he/she is of USX Corporation, one of the corporations
described in and which executed the foregoing instrument; that he/she knows the
seal of said corporation; that the seal affixed to said instrument is such
corporate seal; that it was so affixed by authority of the Board of Directors of
said corporation; and that he/she signed his/her name thereto by like authority.
State of Illinois
County of Cook ss.:
On the day of , , before me personally came
, to me known, who, being by me duly sworn, did depose and say
that he/she is of Harris Trust and Savings Bank, one of the
corporations described in and which executed the foregoing instrument; that
he/she knows the seal of said corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed by authority of the
Board of Directors of said corporation; and that he/she signed his/her name
thereto by like authority.
53
<PAGE> 1
EXHIBIT 5
October 12, 1999
Securities and Exchange Commission
450 Fifth Street, N. W.
Washington, D.C. 20549
Ladies and Gentlemen:
I am Assistant General Counsel-Corporate and Assistant Secretary of USX
Corporation, a Delaware corporation (hereinafter the "Corporation"), and have
served as counsel to the Corporation in connection with the preparation of the
Registration Statement on Form S-3 (hereinafter the "Registration Statement")
for the proposed issue of the Corporation's: (1) Debt Securities (the "Debt
Securities"), (2) Preferred Stock, (3) USX-Marathon Group Common Stock
("Marathon Stock"), (4) USX-U. S. Steel Group Common Stock ("Steel Stock"), or
(5) Warrants to purchase Debt Securities, Preferred Stock, Marathon Stock or
Steel Stock (the "Warrants") or any combination of the foregoing at an aggregate
public offering price of $1,000,000,000. The Preferred Stock, the Marathon Stock
and the Steel Stock are collectively referred to as the "Shares." The Warrants
are to be issued pursuant to a warrant agreement between the Corporation and a
warrant agent (the "Warrant Agreement").
As Assistant General Counsel-Corporate and Assistant Secretary, I am familiar
with the Corporation's Certificate of Incorporation and its By-laws. I have also
examined, or caused those acting under my supervision to have examined, the
Registration Statement, the form of the Indenture between the Corporation and
Harris Trust and Savings Bank, pursuant to which the senior Debt Securities will
be issued, the form of the Indenture between the Corporation and Harris Trust
and Savings Bank, pursuant to which the subordinated Debt Securities will be
issued (the Indentures are individually referred to as the "Indenture" and
collectively as the "Indentures"), and such other records and documents,
including certificates of government officials and corporate officers, that I
have deemed necessary or desirable in rendering the opinion set forth below. In
rendering such opinion, I have presumed the genuineness of all documents
examined and the accuracy of all statements of fact contained therein.
Based upon the foregoing, I am of the opinion that:
1. When the Indentures have been executed and delivered by the Corporation and
the Debt Securities have been duly authorized and are executed and
authenticated in accordance with the terms of the applicable Indenture and
delivered to holders against receipt of payment, the Debt Securities will
be legal, valid and binding obligations of the Corporation enforceable
against it in accordance with the terms thereof.
<PAGE> 2
Securities and Exchange Commission
Page 2
October 12, 1999
2. When the Shares have been duly authorized and executed by the Corporation
and delivered against receipt of payment, the Shares will be legally
issued, fully paid and non-assessable.
3. When a Warrant Agreement has been prepared, executed and delivered by the
Corporation and the Warrants have been duly authorized and duly executed in
accordance with such Warrant Agreement and when duly paid for and delivered
in accordance with the procedures described in the Registration Statement
and any prospectus supplement relating to such sale, the Warrants will be
legal, valid and binding obligations of the Corporation enforceable against
it in accordance with and subject to the terms thereof and of such Warrant
Agreement.
The opinions set forth above are qualified to the extent such enforceability may
be limited by any bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or affecting
creditors' rights and by general principles of equity.
I hereby consent to the filing of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
/s/ John A. Hammerschmidt
John A. Hammerschmidt
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-3 of our reports dated February 9, 1999 relating to the
consolidated financial statements of USX Corporation, the financial statements
of the Marathon Group, and the financial statements of the U.S. Steel Group,
appearing on pages U-1, M-1, and S-1, respectively, in USX Corporation's Annual
Report on Form 10-K for the year ended December 31, 1998. We also consent to the
reference to us under the heading "Experts" in such Registration Statement.
/s/ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
Pittsburgh, Pennsylvania
October 12, 1999
<PAGE> 1
Exhibit 24
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS:
That the undersigned does hereby make, constitute and appoint Robert M.
Hernandez, Edward F. Guna, and Kenneth L. Matheny, or any one of them, my true
and lawful attorneys-in-fact to sign and execute for me and on my behalf a
registration statement on Form S-3 to be filed by USX Corporation ("USX") with
the Securities and Exchange Commission in connection with the issuance of up to
$1 billion in debt securities, and any and all amendments to such registration
statement to be filed with the Securities and Exchange Commission pursuant to
the Securities Act of 1933, as amended, in such form as they or any one or more
of them may approve, and to do any and all other acts which said attorneys-in-
fact may deem necessary or desirable to enable USX Corporation to comply with
said Act and the rules and regulations thereunder.
IN WITNESS WHEREOF, I have hereunto set my hand this 23rd day of February,
1999.
/s/ NEIL A. ARMSTRONG
---------------------
<PAGE> 2
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS:
That the undersigned does hereby make, constitute and appoint Robert M.
Hernandez, Edward F. Guna, and Kenneth L. Matheny, or any one of them, my true
and lawful attorneys-in-fact to sign and execute for me and on my behalf a
registration statement on Form S-3 to be filed by USX Corporation ("USX") with
the Securities and Exchange Commission in connection with the issuance of up to
$1 billion in debt securities, and any and all amendments to such registration
statement to be filed with the Securities and Exchange Commission pursuant to
the Securities Act of 1933, as amended, in such form as they or any one or more
of them may approve, and to do any and all other acts which said attorneys-in-
fact may deem necessary or desirable to enable USX Corporation to comply with
said Act and the rules and regulations thereunder.
IN WITNESS WHEREOF, I have hereunto set my hand this 23rd day of February,
1999.
/s/ VICTOR G. BEGHINI
---------------------
<PAGE> 3
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS:
That the undersigned does hereby make, constitute and appoint Robert M.
Hernandez, Edward F. Guna, and Kenneth L. Matheny, or any one of them, my true
and lawful attorneys-in-fact to sign and execute for me and on my behalf a
registration statement on Form S-3 to be filed by USX Corporation ("USX") with
the Securities and Exchange Commission in connection with the issuance of up to
$1 billion in debt securities, and any and all amendments to such registration
statement to be filed with the Securities and Exchange Commission pursuant to
the Securities Act of 1933, as amended, in such form as they or any one or more
of them may approve, and to do any and all other acts which said attorneys-in-
fact may deem necessary or desirable to enable USX Corporation to comply with
said Act and the rules and regulations thereunder.
IN WITNESS WHEREOF, I have hereunto set my hand this 23rd day of February,
1999.
/s/ JEANETTE GRASSELLI BROWN
----------------------------
<PAGE> 4
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS:
That the undersigned does hereby make, constitute and appoint Robert M.
Hernandez, Edward F. Guna, and Kenneth L. Matheny, or any one of them, my true
and lawful attorneys-in-fact to sign and execute for me and on my behalf a
registration statement on Form S-3 to be filed by USX Corporation ("USX") with
the Securities and Exchange Commission in connection with the issuance of up to
$1 billion in debt securities, and any and all amendments to such registration
statement to be filed with the Securities and Exchange Commission pursuant to
the Securities Act of 1933, as amended, in such form as they or any one or more
of them may approve, and to do any and all other acts which said attorneys-in-
fact may deem necessary or desirable to enable USX Corporation to comply with
said Act and the rules and regulations thereunder.
IN WITNESS WHEREOF, I have hereunto set my hand this 23rd day of February,
1999.
/s/ CHARLES A. CORY
-------------------
<PAGE> 5
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS:
That the undersigned does hereby make, constitute and appoint Robert M.
Hernandez, Edward F. Guna, and Kenneth L. Matheny, or any one of them, my true
and lawful attorneys-in-fact to sign and execute for me and on my behalf a
registration statement on Form S-3 to be filed by USX Corporation ("USX") with
the Securities and Exchange Commission in connection with the issuance of up to
$1 billion in debt securities, and any and all amendments to such registration
statement to be filed with the Securities and Exchange Commission pursuant to
the Securities Act of 1933, as amended, in such form as they or any one or more
of them may approve, and to do any and all other acts which said attorneys-in-
fact may deem necessary or desirable to enable USX Corporation to comply with
said Act and the rules and regulations thereunder.
IN WITNESS WHEREOF, I have hereunto set my hand this 23rd day of February,
1999.
/s/ ROBERT M. HERNANDEZ
-----------------------
<PAGE> 6
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS:
That the undersigned does hereby make, constitute and appoint Robert M.
Hernandez, Edward F. Guna, and Kenneth L. Matheny, or any one of them, my true
and lawful attorneys-in-fact to sign and execute for me and on my behalf a
registration statement on Form S-3 to be filed by USX Corporation ("USX") with
the Securities and Exchange Commission in connection with the issuance of up to
$1 billion in debt securities, and any and all amendments to such registration
statement to be filed with the Securities and Exchange Commission pursuant to
the Securities Act of 1933, as amended, in such form as they or any one or more
of them may approve, and to do any and all other acts which said attorneys-in-
fact may deem necessary or desirable to enable USX Corporation to comply with
said Act and the rules and regulations thereunder.
IN WITNESS WHEREOF, I have hereunto set my hand this 23rd day of February,
1999.
/s/ CHARLES R. LEE
------------------
<PAGE> 7
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS:
That the undersigned does hereby make, constitute and appoint Robert M.
Hernandez, Edward F. Guna, and Kenneth L. Matheny, or any one of them, my true
and lawful attorneys-in-fact to sign and execute for me and on my behalf a
registration statement on Form S-3 to be filed by USX Corporation ("USX") with
the Securities and Exchange Commission in connection with the issuance of up to
$1 billion in debt securities, and any and all amendments to such registration
statement to be filed with the Securities and Exchange Commission pursuant to
the Securities Act of 1933, as amended, in such form as they or any one or more
of them may approve, and to do any and all other acts which said attorneys-in-
fact may deem necessary or desirable to enable USX Corporation to comply with
said Act and the rules and regulations thereunder.
IN WITNESS WHEREOF, I have hereunto set my hand this 23rd day of February,
1999.
/s/ PAUL E. LEGO
----------------
<PAGE> 8
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS:
That the undersigned does hereby make, constitute and appoint Robert M.
Hernandez, Edward F. Guna, and Kenneth L. Matheny, or any one of them, my true
and lawful attorneys-in-fact to sign and execute for me and on my behalf a
registration statement on Form S-3 to be filed by USX Corporation ("USX") with
the Securities and Exchange Commission in connection with the issuance of up to
$1 billion in debt securities, and any and all amendments to such registration
statement to be filed with the Securities and Exchange Commission pursuant to
the Securities Act of 1933, as amended, in such form as they or any one or more
of them may approve, and to do any and all other acts which said attorneys-in-
fact may deem necessary or desirable to enable USX Corporation to comply with
said Act and the rules and regulations thereunder.
IN WITNESS WHEREOF, I have hereunto set my hand this 23rd day of February,
1999.
/s/ JOHN F. MCGILLICUDDY
------------------------
<PAGE> 9
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS:
That the undersigned does hereby make, constitute and appoint Robert M.
Hernandez, Edward F. Guna, and Kenneth L. Matheny, or any one of them, my true
and lawful attorneys-in-fact to sign and execute for me and on my behalf a
registration statement on Form S-3 to be filed by USX Corporation ("USX") with
the Securities and Exchange Commission in connection with the issuance of up to
$1 billion in debt securities, and any and all amendments to such registration
statement to be filed with the Securities and Exchange Commission pursuant to
the Securities Act of 1933, as amended, in such form as they or any one or more
of them may approve, and to do any and all other acts which said attorneys-in-
fact may deem necessary or desirable to enable USX Corporation to comply with
said Act and the rules and regulations thereunder.
IN WITNESS WHEREOF, I have hereunto set my hand this 23rd day of February,
1999.
/s/ JOHN M. RICHMAN
-------------------
<PAGE> 10
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS:
That the undersigned does hereby make, constitute and appoint Robert M.
Hernandez, Edward F. Guna, and Kenneth L. Matheny, or any one of them, my true
and lawful attorneys-in-fact to sign and execute for me and on my behalf a
registration statement on Form S-3 to be filed by USX Corporation ("USX") with
the Securities and Exchange Commission in connection with the issuance of up to
$1 billion in debt securities, and any and all amendments to such registration
statement to be filed with the Securities and Exchange Commission pursuant to
the Securities Act of 1933, as amended, in such form as they or any one or more
of them may approve, and to do any and all other acts which said attorneys-in-
fact may deem necessary or desirable to enable USX Corporation to comply with
said Act and the rules and regulations thereunder.
IN WITNESS WHEREOF, I have hereunto set my hand this 23rd day of February,
1999.
/s/ SETH E. SCHOFIELD
---------------------
<PAGE> 11
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS:
That the undersigned does hereby make, constitute and appoint Robert M.
Hernandez, Edward F. Guna, and Kenneth L. Matheny, or any one of them, my true
and lawful attorneys-in-fact to sign and execute for me and on my behalf a
registration statement on Form S-3 to be filed by USX Corporation ("USX") with
the Securities and Exchange Commission in connection with the issuance of up to
$1 billion in debt securities, and any and all amendments to such registration
statement to be filed with the Securities and Exchange Commission pursuant to
the Securities Act of 1933, as amended, in such form as they or any one or more
of them may approve, and to do any and all other acts which said attorneys-in-
fact may deem necessary or desirable to enable USX Corporation to comply with
said Act and the rules and regulations thereunder.
IN WITNESS WHEREOF, I have hereunto set my hand this 23rd day of February,
1999.
/s/ JOHN W. SNOW
----------------
<PAGE> 12
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS:
That the undersigned does hereby make, constitute and appoint Robert M.
Hernandez, Edward F. Guna, and Kenneth L. Matheny, or any one of them, my true
and lawful attorneys-in-fact to sign and execute for me and on my behalf a
registration statement on Form S-3 to be filed by USX Corporation ("USX") with
the Securities and Exchange Commission in connection with the issuance of up to
$1 billion in debt securities, and any and all amendments to such registration
statement to be filed with the Securities and Exchange Commission pursuant to
the Securities Act of 1933, as amended, in such form as they or any one or more
of them may approve, and to do any and all other acts which said attorneys-in-
fact may deem necessary or desirable to enable USX Corporation to comply with
said Act and the rules and regulations thereunder.
IN WITNESS WHEREOF, I have hereunto set my hand this 23rd day of February,
1999.
/s/ THOMAS J. USHER
-------------------
<PAGE> 13
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS:
That the undersigned does hereby make, constitute and appoint Robert M.
Hernandez, Edward F. Guna, and Kenneth L. Matheny, or any one of them, my true
and lawful attorneys-in-fact to sign and execute for me and on my behalf a
registration statement on Form S-3 to be filed by USX Corporation ("USX") with
the Securities and Exchange Commission in connection with the issuance of up to
$1 billion in debt securities, and any and all amendments to such registration
statement to be filed with the Securities and Exchange Commission pursuant to
the Securities Act of 1933, as amended, in such form as they or any one or more
of them may approve, and to do any and all other acts which said attorneys-in-
fact may deem necessary or desirable to enable USX Corporation to comply with
said Act and the rules and regulations thereunder.
IN WITNESS WHEREOF, I have hereunto set my hand this 23rd day of February,
1999.
/s/ PAUL J. WILHELM
-------------------
<PAGE> 14
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS:
That the undersigned does hereby make, constitute and appoint Robert M.
Hernandez, Edward F., and Kenneth L. Matheny, or any one of them, my true
and lawful attorneys-in-fact to sign and execute for me and on my behalf a
registration statement on Form S-3 to be filed by USX Corporation ("USX") with
the Securities and Exchange Commission in connection with the issuance of up to
$1 billion in debt securities, and any and all amendments to such registration
statement to be filed with the Securities and Exchange Commission pursuant to
the Securities Act of 1933, as amended, in such form as they or any one or more
of them may approve, and to do any and all other acts which said attorneys-in-
fact may deem necessary or desirable to enable USX Corporation to comply with
said Act and the rules and regulations thereunder.
IN WITNESS WHEREOF, I have hereunto set my hand this 23rd day of February,
1999.
/s/ DOUGLAS C. YEARLEY
----------------------
<PAGE> 1
Exhibit 25
333- _____
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
Statement of Eligibility
Under the Trust Indenture Act of 1939
of a Corporation Designated to Act as Trustee
Check if an Application to Determine Eligibility
of a Trustee Pursuant to Section 305(b)(2) X
---
HARRIS TRUST AND SAVINGS BANK
(Name of Trustee)
Illinois 36-1194448
(State of Incorporation) (I.R.S. Employer Identification No.)
111 West Monroe Street, Chicago, Illinois 60603
(Address of principal executive offices)
Daniel G. Donovan, Harris Trust and Savings Bank,
311 West Monroe Street, Chicago, Illinois, 60606
(312) 461-2908 phone (312) 461-3525 facsimile
(Name, address and telephone number for agent for service)
USX CORPORATION
(Obligor)
Delaware 25-09996816
(State of Incorporation) (I.R.S. Employer Identification No.)
600 Grant Street
Pittsburgh, PA 15219-4776
(Address of principal executive offices)
Debt Securities
(Title of indenture securities)
<PAGE> 2
1. GENERAL INFORMATION. Furnish the following information as to the
Trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
Commissioner of Banks and Trust Companies, State of Illinois,
Springfield, Illinois; Chicago Clearing House Association, 164
West Jackson Boulevard, Chicago, Illinois; Federal Deposit
Insurance Corporation, Washington, D.C.; The Board of
Governors of the Federal Reserve System, Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
Harris Trust and Savings Bank is authorized to exercise
corporate trust powers.
2. AFFILIATIONS WITH OBLIGOR. If the Obligor is an affiliate of the
Trustee, describe each such affiliation.
The Obligor is not an affiliate of the Trustee.
3. through 15.
NO RESPONSE NECESSARY
16. LIST OF EXHIBITS.
1. A copy of the articles of association of the Trustee as now in
effect which includes the authority of the trustee to commence
business and to exercise corporate trust powers.
A copy of the Certificate of Merger dated April 1, 1972 between
Harris Trust and Savings Bank, HTS Bank and Harris Bankcorp, Inc.
which constitutes the articles of association of the Trustee as
now in effect and includes the authority of the Trustee to
commence business and to exercise corporate trust powers was filed
in connection with the Registration Statement of Louisville Gas
and Electric Company, File No. 2-44295, and is incorporated herein
by reference.
2. A copy of the existing by-laws of the Trustee.
A copy of the existing by-laws of the Trustee was filed in
connection with the Registration Statement of Commercial Federal
Corporation, File No. 333-20711, and is incorporated herein by
reference.
3. The consents of the Trustee required by Section 321(b) of the Act.
(included as Exhibit A on page 2 of this statement)
4. A copy of the latest report of condition of the Trustee published
pursuant to law or the requirements of its supervising or
examining authority.
(included as Exhibit B on page 3 of this statement)
1
<PAGE> 3
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the Trustee,
HARRIS TRUST AND SAVINGS BANK, a corporation organized and existing under the
laws of the State of Illinois, has duly caused this statement of eligibility to
be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of Chicago, and State of Illinois, on the 23rd day of September, 1999.
HARRIS TRUST AND SAVINGS BANK
By: /S/ DGDONOVAN
------------------------------
D. G. Donovan
Assistant Vice President
2
<PAGE> 4
EXHIBIT A
The consents of the trustee required by Section 321(b) of the Act.
Harris Trust and Savings Bank, as the Trustee herein named, hereby consents that
reports of examinations of said trustee by Federal and State authorities may be
furnished by such authorities to the Securities and Exchange Commission upon
request therefor.
HARRIS TRUST AND SAVINGS BANK
By: /S/ DGDONOVAN
------------------------------
D. G. Donovan
Assistant Vice President
3
<PAGE> 5
EXHIBIT B
Attached is a true and correct copy of the statement of condition of Harris
Trust and Savings Bank as of June 30, 1999, as published in accordance with a
call made by the State Banking Authority and by the Federal Reserve Bank of the
Seventh Reserve District.
[HARRIS BANK LOGO]
Harris Trust and Savings Bank
111 West Monroe Street
Chicago, Illinois 60603
of Chicago, Illinois, And Foreign and Domestic Subsidiaries, at the close of
business on June 30, 1999, a state banking institution organized and operating
under the banking laws of this State and a member of the Federal Reserve System.
Published in accordance with a call made by the Commissioner of Banks and Trust
Companies of the State of Illinois and by the Federal Reserve Bank of this
District.
Bank's Transit Number 71000288
<TABLE>
<CAPTION>
THOUSANDS
ASSETS OF DOLLARS
<S> <C> <C>
Cash and balances due from depository institutions:
Non-interest bearing balances and currency and coin ............................ $ 1,223,957
Interest bearing balances ...................................................... $ 159,159
Securities:
a. Held-to-maturity securities .............................................................. $ 0
b. Available-for-sale securities ............................................................ $ 5,664,104
Federal funds sold and securities purchased under agreements to resell ....................... $ 193,550
Loans and lease financing receivables:
Loans and leases, net of unearned income ....................................... $9,665,676
LESS: Allowance for loan and lease losses ..................................... $ 110,414
----------
Loans and leases, net of unearned income, allowance, and reserve
(item 4.a minus 4.b) ........................................................... $ 9,555,262
Assets held in trading accounts .............................................................. $ 126,028
Premises and fixed assets (including capitalized leases) ..................................... $ 268,415
Other real estate owned ...................................................................... $ 644
Investments in unconsolidated subsidiaries and associated companies .......................... $ 80
Customer's liability to this bank on acceptances outstanding ................................. $ 45,535
Intangible assets ............................................................................ $ 249,724
Other assets ................................................................................. $ 1,268,631
-----------
TOTAL ASSETS $18,755,089
===========
</TABLE>
4
<PAGE> 6
<TABLE>
<CAPTION>
THOUSANDS
LIABILITIES OF DOLLARS
<S> <C> <C>
Deposits:
In domestic offices ..................................................................... $ 9,627,629
Non-interest bearing ........................................................... $3,074,637
Interest bearing ............................................................... $6,552,992
In foreign offices, Edge and Agreement subsidiaries, and IBF's .......................... $ 1,940,306
Non-interest bearing ........................................................... $ 25,877
Interest bearing ............................................................... $1,914,429
Federal funds purchased and securities sold under agreements to repurchase in domestic
offices of the bank and of its Edge and Agreement subsidiaries, and in IBF's:
Federal funds purchased & securities sold under agreements to repurchase ..................... $ 3,592,929
Trading Liabilities 41,548
Other borrowed money: ........................................................................ $ 1,634,473
a. With remaining maturity of one year or less .............................................. $ 0
b. With remaining maturity of more than one year ............................................
Bank's liability on acceptances executed and outstanding ..................................... $ 45,535
Subordinated notes and debentures ............................................................ $ 225,000
Other liabilities ............................................................................ $ 396,941
-----------
TOTAL LIABILITIES ............................................................................ $17,504,361
===========
EQUITY CAPITAL
Common stock ................................................................................. $ 100,000
Surplus ...................................................................................... $ 609,314
a. Undivided profits and capital reserves ................................................... $ 636,420
b. Net unrealized holding gains (losses) on available-for-sale securities ................... $ (95,006)
-----------
TOTAL EQUITY CAPITAL $ 1,250,728
===========
Total liabilities, limited-life preferred stock, and equity capital .......................... $18,755,089
===========
</TABLE>
I, Christy Wipper, Vice President of the above-named bank, do hereby
declare that this Report of Condition has been prepared in conformance with the
instructions issued by the Board of Governors of the Federal Reserve System and
is true to the best of my knowledge and belief.
CHRISTY WIPPER
7/28/99
We, the undersigned directors, attest to the correctness of this Report
of Condition and declare that it has been examined by us and, to the best of our
knowledge and belief, has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and the
Commissioner of Banks and Trust Companies of the State of Illinois and is true
and correct.
ALAN G. McNALLY,
EDWARD W. LYMAN,
LEO M. HENIKOFF
Directors.
5
