FORM OF GUARANTEE
Exhibit 4.4
GUARANTEE dated as of , 2008 (hereinafter sometimes called “this Guarantee”),
made by the undersigned (hereinafter individually called a “Guarantor” and collectively the
“Guarantors”), to (1) the holders of the Bonds (as hereinafter defined) and (2) THE BANK OF NEW
YORK, a New York banking corporation having its office in the City of New York, State of New York
(hereinafter sometimes called the “Corporate Trustee”), and
[ ] (hereinafter sometimes called the “Individual Trustee”), as successor
Trustees under the First Mortgage (as hereinafter defined) from ArcelorMittal USA Inc., a Delaware
corporation (hereinafter called the “Company”) to First Trust and Savings Bank and Xxxxxx X.
Xxxxxxx, as Trustees, dated April 1, 1928, parties of the second part (the Corporate Trustee and
the Individual Trustee being hereinafter collectively sometimes called the “Trustees”);
WHEREAS, the Company (originally known as “Inland Steel Company”) heretofore executed and
delivered to First Trust and Savings Bank and Xxxxxx X. Xxxxxxx, as Trustees (the Corporate Trustee
being the successor corporate trustee to said First Trust and Savings Bank and the Individual
Trustee being the successor individual trustee to said Xxxxxx X. Xxxxxxx), its First Mortgage
Indenture, dated April 1, 1928 (the term “First Mortgage” wherever used herein meaning and
including, unless the context shall otherwise require, said First Mortgage Indenture, dated April
1, 1928, as amended, and all indentures supplemental thereto), to secure the payment of the
principal of and interest on bonds of the Company to be known as the “First Mortgage Bonds” of the
Company (hereinafter sometimes called the “Bonds”);
WHEREAS, the Company and ArcelorMittal Financial Services LLC, a Delaware limited liability
company and affiliate of Company (hereinafter sometimes called the
“Issuer”), have entered into a
Fortieth Supplemental Indenture dated as of the date hereof (hereinafter sometimes call the
“Fortieth Supplemental Indenture”) to First Mortgage with the Trustees;
WHEREAS, the Company now desires, in furtherance of the provisions of the Fortieth
Supplemental Indenture, that each of the Guarantors enter into guaranties in favor of the Trustee
under this Guarantee under which each of them will guarantee the payment and performance of the
obligations of the Company under the Bonds; and
WHEREAS, this Guarantee has been duly authorized by all necessary corporate action on the part
of each of the Guarantors;
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable
consideration, the receipt of which is hereby acknowledged, each of the Guarantors covenants and
agrees for the equal and ratable benefit of the holders of the Bonds as follows:
ARTICLE ONE
DEFINITIONS
SECTION 1. Defined Terms. As used in this Guarantee, terms defined in the First
Mortgage or in the preamble or recital hereto are used herein as therein defined. The words
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“herein,” “hereof” and “hereby” and other words of similar import used in this Guarantee refer
to this Guarantee as a whole and not to any particular section hereof.
ARTICLE TWO
GUARANTEES OF BONDS
Section 1. Guarantee.
(a) Each of the Guarantors hereby jointly and severally, unconditionally guarantees to
each holder of a Bond and to the Corporate Trustee and its successors and assigns,
irrespective of the validity and enforceability of any other provision of the First
Mortgage, the Bonds or the obligations of the Company hereunder or thereunder, that:
(i) the principal of, premium, if any, and interest on, the Bonds will be
promptly paid in full when due, whether at maturity, by acceleration, redemption, or
otherwise, and interest on the overdue principal of and interest on the Bonds, if
any, if lawful, and all other obligations of the Company to the holders of the Bonds
or the Corporate Trustee under this Guarantee, the First Mortgage, or the Bonds will
be promptly paid in full or performed, all in accordance with the terms hereof and
thereof; and
(ii) in case of any extension of time of payment or renewal of any Bonds or any
of such other obligations, the same will be promptly paid in full when due or
performed in accordance with the terms of the extension or renewal, whether at
stated maturity, by acceleration or otherwise.
Failing payment when due of any amount so guaranteed or any performance so guaranteed for
whatever reason, each Guarantor will be obligated to pay the same immediately. Each
Guarantor agrees that this is a guarantee of payment and not a guarantee of collection.
(b) Each Guarantor hereby agrees that, to the fullest extent permitted by applicable
law, its obligations hereunder are unconditional, irrespective of the validity, regularity
or enforceability of any other provision of this Guarantee, the Bonds, or the First
Mortgage, the absence of any action to enforce the same, any waiver or consent by any holder
of the Bonds with respect to any provisions hereof or thereof, the recovery of any judgment
against the Company, any action to enforce the same or any other circumstance which might
otherwise constitute a legal or equitable discharge or defense of a Guarantor. Each
Guarantor hereby waives, to the fullest extent permitted by applicable law, diligence,
presentment, demand of payment, filing of claims with a court in the event of insolvency or
bankruptcy of the Company, any right to require a proceeding first against the Company,
protest, notice and all demands whatsoever and covenants that the obligations under this
Guarantee shall not be discharged except by complete performance of the obligations
contained in the Bonds, this Guarantee and the First Mortgage.
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(c) If any holder or the Corporate Trustee is required by any court or otherwise to
return to the Company, any Guarantor, or any custodian, trustee, liquidator or other similar
official acting in relation to either the Company or any Guarantor, any amount paid either
to the Corporate Trustee or such holder, the obligations under First Mortgage, to the extent
theretofore discharged, will be reinstated in full force and effect.
(d) It is the intention of each Guarantor and the Company that the obligations of each
Guarantor hereunder shall be in, but not in excess of, the maximum amount permitted by
applicable law. Accordingly, if the obligations in respect of any Guarantee would be
annulled, avoided or subordinated to the creditors of any Guarantor by a court of competent
jurisdiction in a proceeding actually pending before such court as a result of a
determination both that such Guarantee was made by such Guarantor without fair consideration
and, immediately after giving effect thereto, such Guarantor was insolvent or unable to pay
its debts as they mature or left with an unreasonably small capital, then the obligations of
such Guarantor under such Guarantee shall be reduced by such court if and to the extent such
reduction would result in the avoidance of such annulment, avoidance or subordination;
provided, however, that any reduction pursuant to this subsection (d) shall be made in the
smallest amount necessary as is necessary to reach such result. For purposes of this
subsection (d), “fair consideration,” “insolvency,” “unable to pay its debts as they
mature,” “unreasonably small capital,” and the effective times of reductions, if any,
required by this paragraph shall be determined in accordance with the applicable federal or
state law for the relief of debtors.
(e) Each Guarantor agrees that it will not be entitled to any right of subrogation in
relation to the holders of the Bonds in respect of any obligations guaranteed hereby until
payment in full of all obligations guaranteed hereby. Each Guarantor further agrees that,
as between it, on the one hand, and the holders and the Corporate Trustee, on the other
hand, (1) the maturity of the obligations guaranteed hereby may be accelerated as provided
in Article 6 of the First Mortgage for the purposes of this Guarantee, notwithstanding any
stay, injunction or other prohibition preventing such acceleration in respect of the
obligations guaranteed hereby, and (2) in the event of any declaration of acceleration of
such obligations as provided in Article 6 of the First Mortgage, such obligations (whether
or not due and payable) will forthwith become due and payable by the Guarantors for the
purposes of this Guarantee. The Guarantors will have the right to seek contribution from
any non-paying Guarantor so long as the exercise of such right does not impair the rights of
the Holders under the Guarantee.
SECTION 2. Ranking of Guarantees. The obligations of each Guarantor under this
Guarantee will be a general unsecured obligation of such Guarantor, will be equal in right of
payment with any existing and future senior unsecured indebtedness of such Guarantor and will be
senior in right of payment to any existing or future subordinated indebtedness of such Guarantor.
ARTICLE THREE
MISCELLANEOUS
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SECTION 1. This Guarantee shall be governed by, and construed in accordance with, the laws of
the State of New York.
SECTION 2. This Guarantee may be executed in two or more counterparts, each of which shall be
and shall be taken to be an original, and all collectively but one instrument.
IN WITNESS WHEREOF, the parties hereby have caused this Guarantee to be duly executed as of
the date first above written.
ARCELORMITTAL SERVICE INC. (formerly, Mittal Steel USA Service Inc.), as a Guarantor |
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By: | ||||||||
Name: | ||||||||
Title: | ||||||||
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ARCELORMITTAL MINORCA MINE INC. (formerly, Mittal Steel USA – Minorca Mine Inc.), as a Guarantor |
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By: | ||||||||
Name: | ||||||||
Title: | ||||||||
ARCELORMITTAL USA INCOAL INC. (formerly, Incoal Company), as a Guarantor | ||||||||
By: | ||||||||
Name: | ||||||||
Title: | ||||||||
XXXXXXX TRUCKING COMPANY, INC., as a Guarantor |
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By: | ||||||||
Name: | ||||||||
Title: | ||||||||
ARCELORMITTAL CLEVELAND INC. (formerly, ISG Cleveland
Inc.), as a Guarantor |
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By: | ||||||||
Name: | ||||||||
Title: | ||||||||
ARCELORMITTAL WEIRTON INC. (formerly, ISG Weirton
Inc.), as a Guarantor |
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By: | ||||||||
Name: | ||||||||
Title: | ||||||||
ARCELORMITTAL HENNEPIN INC. (formerly, ISG Hennepin Inc.), as a Guarantor | ||||||||
By: | ||||||||
Name: | ||||||||
Title: | ||||||||
ARCELORMITTAL INDIANA HARBOR LLC (formerly,
ArcelorMittal Indiana Harbor Inc.), as a Guarantor |
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By: | ||||||||
Name: | ||||||||
Title: | ||||||||
ARCELORMITTAL XXXXXX INC. (formerly, ISG Xxxxxx
Inc.), as a Guarantor |
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By: | ||||||||
Name: | ||||||||
Title: | ||||||||
ARCELORMITTAL RIVERDALE INC. (formerly, ISG Riverdale Inc.), as a Guarantor | ||||||||
By: | ||||||||
Name: | ||||||||
Title: | ||||||||
MITTAL STEEL USA-VENTURE INC. (formerly, ISG Venture
Inc.), as a Guarantor |
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By: | ||||||||
Name: | ||||||||
Title: | ||||||||
ARCELORMITTAL PLATE LLC (formerly, ISG Plate LLC), as a Guarantor | ||||||||
By: | ||||||||
Name: | ||||||||
Title: | ||||||||
ISG SPARROWS POINT LLC, as a Guarantor |
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By: | ||||||||
Name: | ||||||||
Title: | ||||||||
ARCELORMITTAL STEELTON LLC (formerly, ISG Steelton LLC), as a Guarantor | ||||||||
By: | ||||||||
Name: | ||||||||
Title: | ||||||||
ARCELORMITTAL LACKAWANNA LLC (formerly ISG Lackawanna LLC), as a Guarantor |
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By: | ||||||||
Name: | ||||||||
Title: | ||||||||
ARCELORMITTAL XXXXX HARBOR LLC | ||||||||
(formerly ISG Xxxxx Harbor LLC), as a Guarantor |
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By: | ||||||||
Name: | ||||||||
Title: | ||||||||
ARCELORMITTAL COLUMBUS LLC | ||||||||
(formerly Columbus Coatings LLC), as a Guarantor |
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By: | ||||||||
Name: | ||||||||
Title: | ||||||||
ARCELORMITTAL GEORGETOWN INC. | ||||||||
(formerly ISG Georgetown Inc.), as a Guarantor |
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By: | ||||||||
Name: | ||||||||
Title: | ||||||||
MITTAL STEEL USA-RAILWAYS INC. | ||||||||
(formerly, ISG Railways Inc.), as a Guarantor |
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By: | ||||||||
Name: | ||||||||
Title: | ||||||||
ARCELORMITTAL HIBBING INC. | ||||||||
(formerly, ISG Hibbing Inc.), as a Guarantor |
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By: | ||||||||
Name: | ||||||||
Title: | ||||||||
HIBBING TACONITE HOLDING INC., as a Guarantor |
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By: | ||||||||
Name: | ||||||||
Title: | ||||||||
ISG ACQUISITION INC., as a Guarantor |
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By: | ||||||||
Name: | ||||||||
Title: | ||||||||
ARCELORMITTAL REAL ESTATE INC. | ||||||||
(formerly, ISG Real Estate Inc.), as a Guarantor |
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By: | ||||||||
Name: | ||||||||
Title: | ||||||||
ARCELORMITTAL TOW PATH VALLEY BUSINESS PARK DEVELOPMENT COMPANY, as a Guarantor |
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By: | ||||||||
Name: | ||||||||
Title: | ||||||||
ARCELORMITTAL CALAND ORE COMPANY LIMITED, | ||||||||
as a Guarantor | ||||||||
By: | ||||||||
Name: | ||||||||
Title: | ||||||||
ARCELORMITTAL CHICAGO COLD ROLLING LLC, | ||||||||
as a Guarantor | ||||||||
By: | ||||||||
Name: | ||||||||
Title: | ||||||||
ARCELORMITTAL CLEVELAND WEST INC., as a Guarantor |
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By: | ||||||||
Name: | ||||||||
Title: | ||||||||
ARCELORMITTAL CLEVELAND WEST | ||||||||
PROPERTIES INC., as a Guarantor | ||||||||
By: | ||||||||
Name: | ||||||||
Title: | ||||||||
ARCELORMITTAL CLEVELAND WORKS | ||||||||
RAILWAY INC., as a Guarantor | ||||||||
By: | ||||||||
Name: | ||||||||
Title: | ||||||||
ARCELORMITTAL EGL HOLDINGS INC. II, as a Guarantor |
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By: | ||||||||
Name: | ||||||||
Title: | ||||||||
ARCELORMITTAL EMPIRE, INC., as a Guarantor |
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By: | ||||||||
Name: | ||||||||
Title: | ||||||||
ARCELORMITTAL HIBBING LAND CORPORATION, | ||||||||
as a Guarantor | ||||||||
By: | ||||||||
Name: | ||||||||
Title: | ||||||||
ARCELORMITTAL LSE HOLDING LLC as a Guarantor |
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By: | ||||||||
Name: | ||||||||
Title: | ||||||||
ARCELORMITTAL METAL PROCESSING, INC., | ||||||||
as a Guarantor | ||||||||
By: | ||||||||
Name: | ||||||||
Title: | ||||||||
ARCELORMITTAL MORTGAGE ACCEPTANCE INC., | ||||||||
as a Guarantor | ||||||||
By: | ||||||||
Name: | ||||||||
Title: | ||||||||
ARCELORMITTAL NMI CORP., as a Guarantor |
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By: | ||||||||
Name: | ||||||||
Title: | ||||||||
ARCELORMITTAL OBETZ LLC, as a Guarantor |
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By: | ||||||||
Name: | ||||||||
Title: | ||||||||
ARCELORMITTAL PIEDMONT LLC, as a Guarantor |
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By: | ||||||||
Name: | ||||||||
Title: | ||||||||
ARCELORMITTAL PRISTINE RESOURCES INC., as a Guarantor |
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By: | ||||||||
Name: | ||||||||
Title: | ||||||||
ARCELORMITTAL SOUTH CHICAGO & INDIANA HARBOR RAILWAY INC., as a Guarantor |
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By: | ||||||||
Name: | ||||||||
Title: | ||||||||
ARCELORMITTAL SUB PLAN LLC, as a Guarantor |
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By: | ||||||||
Name: | ||||||||
Title: | ||||||||
TECUMSEH REDEVELOPMENT INC., as a Guarantor |
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By: | ||||||||
Name: | ||||||||
Title: | ||||||||
ARCELORMITTAL EGL HOLDING INC., as a Guarantor |
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By: | ||||||||
Name: | ||||||||
Title: | ||||||||
ARCELORMITTAL EMPLOYMENT SERVICE, INC., as a Guarantor |
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By: | ||||||||
Name: | ||||||||
Title: | ||||||||
ARCELORMITTAL VINTON, INC., as a Guarantor |
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By: | ||||||||
Name: | ||||||||
Title: | ||||||||
BSRM HOLDINGS, INC., as a Guarantor |
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By: | ||||||||
Name: | ||||||||
Title: | ||||||||
BSTEEL PROPERTIES, LLC., as a Guarantor |
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By: | ||||||||
Name: | ||||||||
Title: | ||||||||
ISG TECHNOLOGIES INC., as a Guarantor |
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By: | ||||||||
Name: | ||||||||
Title: | ||||||||
ARCELORMITTAL XXXXXXX COUNTY IRON COMPANY, as a Guarantor |
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By: | ||||||||
Name: | ||||||||
Title: | ||||||||
METAL PRO PROPERTIES, LCC, as a Guarantor |
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By: | ||||||||
Name: | ||||||||
Title: | ||||||||
MITTAL STEEL USA — LANCASHIRE COAL INC., as a Guarantor |
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By: | ||||||||
Name: | ||||||||
Title: | ||||||||
V. I. HOLDING, INC., as a Guarantor |
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By: | ||||||||
Name: | ||||||||
Title: | ||||||||
ARCELORMITTAL S.A., as a Guarantor |
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By: | ||||
Name: | E.S. de Vries | |||
Title: | Treasurer | |||
By: | ||||
Name: X. X. Xxxxx | ||||
Title: | Vice President and Group General Counsel |
THE BANK OF NEW YORK, as Corporate Trustee | ||||||||
By: | ||||||||
Name: | ||||||||
Title: | ||||||||
Trustee |