EXHIBIT 4.1
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XXXXXX XXXXXX STEEL LLC,
Issuer
and
USX CORPORATION,
Guarantor
[____]% Senior Quarterly Income Debt Securities due 2031 (SQUIDS)
=====================
FORM OF INDENTURE
Dated as of [__________] [__], 2001
====================
The Bank of New York,
Trustee
================================================================================
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE................ 1
SECTION 1.1. Definitions........................................... 1
SECTION 1.2. Other Definitions..................................... 7
SECTION 1.3. Incorporation by Reference of Trust Indenture Act..... 7
SECTION 1.4. Rules of Construction................................. 8
SECTION 1.5. One Class of Notes.................................... 8
ARTICLE II THE NOTES................................................ 9
SECTION 2.1. Form and Dating....................................... 9
SECTION 2.2. Execution and Authentication.......................... 10
SECTION 2.3. Registrar and Paying Agent............................ 10
SECTION 2.4. Paying Agent to Hold Money in Trust................... 11
SECTION 2.5. Lists of Holders of Notes............................. 11
SECTION 2.6. Transfer and Exchange................................. 11
SECTION 2.7. Replacement Notes..................................... 15
SECTION 2.8. Outstanding Notes..................................... 15
SECTION 2.9. Treasury Notes........................................ 15
SECTION 2.10. Temporary Notes...................................... 16
SECTION 2.11. Cancellation......................................... 16
SECTION 2.12. Defaulted Interest................................... 16
SECTION 2.13. CUSIP Numbers........................................ 17
ARTICLE III REDEMPTION.............................................. 17
SECTION 3.1. Notices to Trustee.................................... 17
SECTION 3.2. Selection of Notes to Be Redeemed..................... 17
SECTION 3.3. Notice of Redemption.................................. 17
SECTION 3.4. Effect of Notice of Redemption........................ 18
SECTION 3.5. Deposit of Redemption Price........................... 19
SECTION 3.6. Notes Redeemed in Part................................ 19
SECTION 3.7. Optional Redemption................................... 19
SECTION 3.8. Mandatory Redemption.................................. 20
ARTICLE IV COVENANTS................................................ 20
SECTION 4.1. Payment of Notes...................................... 20
SECTION 4.2. Maintenance of Office or Agency....................... 20
SECTION 4.3. Corporate Existence................................... 21
SECTION 4.4. SEC Reports........................................... 21
SECTION 4.5. Compliance Certificate................................ 21
SECTION 4.6. Stay, Extension and Usury Laws........................ 22
SECTION 4.7. Payment of Taxes and Other Claims..................... 22
SECTION 4.8. Maintenance of Properties and Insurance............... 22
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Page
SECTION 4.9. Conditions to Separation.............................. 23
SECTION 4.10. Change in Control.................................... 23
SECTION 4.11. Withdrawal of Change in Control Purchase Notice...... 26
SECTION 4.12. Limitation on Liens.................................. 26
SECTION 4.13. Limitation on Sale/Leaseback Transactions............ 27
SECTION 4.14. Exempted Liens and Sale/Leaseback Transactions....... 28
SECTION 4.15. Further Instruments and Acts........................ 29
ARTICLE V SUCCESSOR ISSUER AND SUCCESSOR GUARANTOR.................. 29
SECTION 5.1. When Issuer May Merge or Transfer Assets.............. 29
SECTION 5.2. When Guarantor May Merge or Transfer Assets........... 29
ARTICLE VI DEFAULTS AND REMEDIES.................................... 30
SECTION 6.1. Events of Default..................................... 30
SECTION 6.2. Acceleration.......................................... 32
SECTION 6.3. Other Remedies........................................ 32
SECTION 6.4. Waiver of Past Defaults............................... 32
SECTION 6.5. Control by Majority................................... 33
SECTION 6.6. Limitation on Suits................................... 33
SECTION 6.7. Rights of Holders to Receive Payment.................. 33
SECTION 6.8. Collection Suit by Trustee............................ 34
SECTION 6.9. Trustee May File Proofs of Claim...................... 34
SECTION 6.10. Priorities........................................... 34
SECTION 6.11. Undertaking for Costs................................ 34
ARTICLE VII TRUSTEE................................................. 35
SECTION 7.1. Duties of Trustee..................................... 35
SECTION 7.2. Rights of Trustee..................................... 36
SECTION 7.3. Individual Rights of Trustee.......................... 37
SECTION 7.4. Money Held in Trust................................... 37
SECTION 7.5. Trustee's Disclaimer.................................. 37
SECTION 7.6. Notice of Defaults.................................... 37
SECTION 7.7. Reports by Trustee to Holders......................... 37
SECTION 7.8. Compensation and Indemnity............................ 38
SECTION 7.9. Replacement of Trustee................................ 39
SECTION 7.10. Successor Trustee by Merger.......................... 39
SECTION 7.11. Eligibility; Disqualification........................ 40
SECTION 7.12. Preferential Collection of Claims Against Issuer..... 40
ARTICLE VIII DISCHARGE OF INDENTURE; DEFEASANCE..................... 40
SECTION 8.1. Discharge of Liability on Notes; Defeasance........... 40
SECTION 8.2. Conditions to Defeasance.............................. 41
SECTION 8.3. Application of Trust Money............................ 42
SECTION 8.4. Repayment to Issuer................................... 42
SECTION 8.5. Indemnity for Government Obligations.................. 43
SECTION 8.6. Reinstatement......................................... 43
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Page
ARTICLE IX AMENDMENTS............................................... 43
SECTION 9.1. Without Consent of Holders............................ 43
SECTION 9.2. With Consent of Holders............................... 44
SECTION 9.3. Compliance with Trust Indenture Act................... 45
SECTION 9.4. Revocation and Effect of Consents and Waivers......... 45
SECTION 9.5. Notation on or Exchange of Notes...................... 45
SECTION 9.6. Trustee to Sign Amendments............................ 45
SECTION 9.7. Payment for Consent................................... 46
ARTICLE X GUARANTEE................................................. 46
SECTION 10.1. Guarantee............................................ 46
SECTION 10.2. Release of Guarantor................................. 47
ARTICLE XI MISCELLANEOUS............................................ 47
SECTION 11.1. Trust Indenture Act Controls......................... 47
SECTION 11.2. Notices.............................................. 48
SECTION 11.3. Communication by Holders with Other Holders.......... 48
SECTION 11.4. Certificate and Opinion as to Conditions Precedent... 48
SECTION 11.5. Statements Required in Certificate or Opinion........ 49
SECTION 11.6. When Notes Disregarded............................... 49
SECTION 11.7. Rules by Trustee, Paying Agent and Registrar......... 49
SECTION 11.8. Legal Holidays....................................... 50
SECTION 11.9. GOVERNING LAW........................................ 50
SECTION 11.10. No Recourse Against Others.......................... 50
SECTION 11.11. Successors.......................................... 50
SECTION 11.12. Multiple Originals.................................. 50
SECTION 11.13. Table of Contents; Cross-Reference Sheet; Headings.. 50
SECTION 11.14. Severability........................................ 50
Exhibit A - Form of Note
Exhibit B - Form of Change in Control Purchase Notice
Exhibit C - Form of Notice of Withdrawal of Change in Control Purchase Notice
iii
CROSS-REFERENCE TABLE*
Trust Indenture Act Section Indenture Section
310(a)(1)......................................................... 7.9, 7.10
(a)(2)......................................................... N.A.
(a)(3)......................................................... N.A.
(a)(4)......................................................... N.A.
(a)(5)......................................................... N.A.
(b)............................................................ 7.10
(b)(1)......................................................... 7.10
(c)............................................................ N.A.
311(a)............................................................ 7.11
(b)............................................................ 7.11
(c)............................................................ N.A.
312(a)............................................................ N.A.
(b)............................................................ 11.3
(c)............................................................ 11.3
313(a)............................................................ 7.6
(b)............................................................ 7.6
(b)(1)......................................................... N.A.
(b)(2)......................................................... N.A.
(c)............................................................ N.A.
(d)............................................................ N.A.
314(a)(1)......................................................... N.A.
(a)(2)......................................................... N.A.
(a)(3)......................................................... N.A.
(a)(4)......................................................... 4.5.
(b)............................................................ N.A.
(c)(1)......................................................... N.A.
(c)(2)......................................................... N.A.
(c)(3)......................................................... N.A.
(e)............................................................ N.A.
(f)............................................................ N.A.
315(a)............................................................ N.A.
(b)............................................................ N.A.
(c)............................................................ N.A.
(d)............................................................ N.A.
(e)............................................................ N.A.
316(a)............................................................ N.A.
(a)(1)......................................................... N.A.
(a)(2)......................................................... N.A.
(b)............................................................ N.A.
(c)............................................................ N.A.
317(a)(1)......................................................... N.A.
(a)(2)......................................................... N.A.
(b)............................................................ N.A.
318(a)............................................................ N.A.
(b)............................................................ N.A.
(c)............................................................ N.A.
N.A. means not applicable.
*This Cross-Reference Table is not part of the Indenture.
i
INDENTURE, dated as of [_________] [__], 2001, among United States
Steel LLC, a Delaware limited liability company (the "Issuer"), to be converted
into United States Steel Corporation upon the Separation (as defined herein),
USX Corporation, a Delaware corporation (the "Guarantor"), and The Bank of New
York, a New York banking corporation, as trustee (the "Trustee").
Each party agrees as follows for the benefit of the other parties and
for the equal and ratable benefit of the Holders (as defined below) of the
Issuer's $[___________] aggregate principal amount at maturity of [___]% Senior
Quarterly Income Debt Securities due 2031 (the "Initial Notes", and together
with any Additional Notes (as defined herein) actually issued, the "Notes"):
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1. Definitions
-----------
"Additional Notes" means Notes (other than the Initial Notes) issued
under this Indenture in accordance with Section 2.1 hereof.
"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 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.
"Applicable Procedures" means, with respect to any transfer or
exchange of or for beneficial interests in any Global Note, the rules and
procedures of the Depositary that apply to such transfer or exchange.
"Board of Directors" means, until the Separation Date, the Board of
Directors of the Guarantor or any committee thereof duly authorized to act on
behalf of such Board, and after the Separation Date, the Board of Directors of
the Issuer or any committee thereof duly authorized to act on behalf of such
Board.
"Business Day" means a day other than a Saturday, Sunday or other day
on which banking institutions in New York State are authorized or required by
law to close.
"Capital Stock" of any Person means any and all shares, interests,
rights to purchase, warrants, options, participations or other equivalents of or
interests in (however designated) equity of such Person, including, without
limitation, membership interests in limited liability companies and any
preferred stock, but excluding any debt securities convertible into such equity.
"Change in Control" will be deemed to have occurred when any of the
following events shall occur:
2
(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 and the applicable rules and regulations thereunder) of
shares of Voting Stock representing at least 35% of the outstanding
Voting Power of the Issuer or, for as long as the Guarantee in
Article X remains in effect, the Guarantor;
(2) during any period of 25 consecutive months, commencing before or
after the Issue Date, individuals who at the beginning of such 25-
month period were directors of the Issuer or, for as long as the
Guarantee in Article X remains in effect, the Guarantor, together
with any replacement or additional directors whose election was
recommended by incumbent management of the Issuer or the Guarantor,
as applicable, or who were elected by a majority of directors then
in office, cease to constitute a majority of the Board of Directors
of the Issuer or the Guarantor, as applicable;
(3) any person or group of related persons shall acquire all or
substantially all of the assets of the Issuer or, for as long as the
Guarantee in Article X remains in effect, the Guarantor; or
(4) the disposition, transfer or sale of the interests held in the
Issuer by the Guarantor, except in accordance with the Separation
consummated in compliance with Section 4.9.
Notwithstanding the foregoing:
(i) in no event shall the Separation, as described in the Prospectus, or
any transfer or reorganization in connection with the Separation, be
deemed to be a Change in Control for purposes of this definition;
(ii) a Change in Control shall not be deemed to have occurred under
clause (3) of the previous paragraph if the Issuer or the Guarantor,
as applicable, shall have merged or consolidated with or transferred
all or substantially all of its assets to another Person in
compliance with the provisions of Article V and the surviving or
successor or transferee Person is no more leveraged than was the
Issuer or the Guarantor, as applicable, immediately prior to such
Change in Control and, in the event of a Change in Control with
respect to the Guarantor, such Change in Control does not result in
the Issuer being more leveraged; the term "leveraged", when used
with respect to any Person, shall mean the percentage represented by
the total assets of such Person divided by its stockholders' or
total equity, as applicable, in each case determined and as would be
shown in a consolidated balance sheet of such Person prepared in
accordance with GAAP; and
(iii) a Change in Control shall not be deemed to have occurred by virtue
of (a) the Issuer, the Guarantor, any of their respective
Subsidiaries, any employee stock ownership plan or any other
employee benefit plan of the Issuer, the Guarantor or any of their
respective Subsidiaries, or any person holding Voting Stock for or
pursuant to the terms of any such employee benefit plan, acquiring
beneficial
3
ownership of shares of Voting Stock, whether representing 35% or more
of the outstanding Voting Power of the Issuer or the Guarantor, as
applicable, or otherwise or (b) any person whose ownership of shares
of Voting Stock representing 35% or more of the outstanding Voting
Power of the Guarantor results solely from the Guarantor's calculation
from time to time of the relative voting rights of the classes of
Voting Stock of the Guarantor.
"Change in Control Offer" has the meaning ascribed to such term in
Section 4.10(a).
"Change in Control Purchase Date" has the meaning ascribed to such
term in Section 4.10(a).
"Change in Control Purchase Notice" has the meaning ascribed to such
term in Section 4.10(c).
"Change in Control Purchase Price" has the meaning ascribed to such
term in Section 4.10(a).
"Code" means the Internal Revenue Code of 1986, as amended.
"Consolidated Net Tangible Assets" means the aggregate value of all of
the assets of the Issuer and its consolidated subsidiaries after deducting from
such assets (1) all current liabilities, excluding all long-term debt due within
one year, (2) all investments in unconsolidated subsidiaries and all investments
accounted for on the equity basis and (3) all goodwill, patent and trademarks,
unamortized debt discount and other similar intangibles, all determined in
conformity with GAAP and calculated on a basis consistent with the Issuer's most
recent audited consolidated financial statements.
"Corporate Trust Office of the Trustee" means the address of the
Trustee specified in Section 11.2 hereof or such other address as to which the
Trustee may give notice to the Issuer.
"Default" means any event which is, or after notice or passage of time
or both would be, an Event of Default.
"Definitive Note" means a certificated Note registered in the name of
the Holder thereof and issued in accordance with Section 2.6 hereof in the form
of Exhibit A hereto, except that such Note shall not bear the Global Note Legend
and shall not have the "Schedule of Exchanges of Interests in the Global Note"
attached thereto.
"Depositary" means, with respect to the Notes issuable or issued in
whole or in part in global form, the Person specified in Section 2.3 hereof as
the Depositary with respect to the Notes, and any and all successors thereto
appointed as depositary hereunder and having become such pursuant to the
applicable provision of this Indenture.
4
"Directors" means, until the Separation Date, the persons who are
members of the Board of Directors of the Guarantor, and after the Separation
Date, the persons who are members of the Board of Directors of the Issuer.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Financial Matters Agreement" means the financial matters agreement to
be entered into by the Guarantor and the Issuer in connection with the
Separation, as described in the Prospectus.
"GAAP" means generally accepted accounting principles in the United
States of America as in effect as of the Issue Date, including those set forth
in (i) the opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants; (ii) statements and
pronouncements of the Financial Accounting Standards Board; (iii) such other
statements by such other entity as approved by a significant segment of the
accounting profession; and (iv) the rules and regulations of the SEC governing
the inclusion of financial statements (including pro forma financial statements)
in periodic reports required to be filed pursuant to Section 13 of the Exchange
Act, including opinions and pronouncements in staff accounting bulletins and
similar written statements from the accounting staff of the SEC.
"Global Notes" means a permanent global Note in the form of Exhibit A
attached hereto that bears the Global Note Legend and that is deposited with or
on behalf of and registered in the name of the Depositary.
"Global Note Legend" means the legend set forth in Section 2.6(f),
which is required to be placed on all Global Notes issued under this Indenture.
"Guarantee" means the guarantee of the Notes pursuant to Article X
herein.
"Guarantor" means USX Corporation or any successor thereto, so long as
the Guarantee of the Notes is in effect.
"Holder" means the Person in whose name a Note is registered on the
Registrar's books.
"Indenture" means this Indenture, as amended or supplemented from time
to time.
"Indirect Participant" means a Person who holds a beneficial interest
in a Global Note through a Participant.
"IRS" means the United States Internal Revenue Service.
"Issue Date" means the date on which the Notes are originally issued.
"Issuer" means United States Steel LLC, a Delaware limited liability
company, to be converted into United States Steel Corporation upon the
Separation, until a successor replaces it in accordance with the applicable
provisions of this Indenture, and thereafter, means such successor.
5
"Legal Holiday" has the meaning ascribed in Section 11.8.
"Lien" means any mortgage, pledge, security interest, encumbrance,
lien or charge of any kind (including any conditional sale or other title
retention agreement or lease in the nature thereof).
"Management and Allocation Policies" means the policies and procedures
adopted by the Board of Directors of the Guarantor or otherwise used by the
Guarantor for the purpose of preparing financial statements of the U. S. Steel
Group.
"Mortgage" has the meaning ascribed to such term in Section 4.12
hereof.
"Obligations" means, with respect to any indebtedness, all obligations
for principal, premium, interest, penalties, fees, indemnifications,
reimbursements and other amounts payable pursuant to the documentation governing
such indebtedness.
"Officer" means the Chairman of the Board, the President, the Chief
Executive Officer, any Vice President, the Chief Financial Officer, the
Treasurer or the Secretary of the Issuer.
"Officers' Certificate" means a certificate that meets the
requirements of Section 11.5 signed by any Officer of the Issuer.
"Opinion of Counsel" means a written opinion that meets the
requirements of Section 11.5 from legal counsel who is reasonably acceptable to
the Trustee. The counsel may be an employee of or counsel to the Issuer.
"Parent" means, until the Separation Date, the Guarantor.
"Participant" means, with respect to the Depositary, a Person who has
an account with the Depositary.
"Person" means any individual, corporation, partnership, joint
venture, limited liability company, association, joint-stock company, trust,
unincorporated organization, government or any agency or political subdivision
thereof or any other entity.
"Plan of Reorganization" means the Agreement and Plan of
Reorganization, dated as of July 31, 2001, between the Guarantor and the Issuer
providing for the Separation, as described in the Prospectus.
"Principal" of a Note means the principal of the Note plus the
premium, if any, payable on the Note which is due or overdue or is to become due
at the relevant time.
"Principal Property" means any blast furnace facility or steel
producing facility, or casters which are part of a plant which includes such a
facility, having a net book value in excess of 1% of Consolidated Net Tangible
Assets at the time of determination.
6
"Prospectus" means the final prospectus of the Issuer and the
Guarantor relating to the offering of the Notes.
"SEC" means the U.S. Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Separation" means the separation of the Issuer from the Guarantor
pursuant to the Plan of Reorganization.
"Separation Date" means the date the Separation occurs; provided such
date is on or prior to December 31, 2002.
"Separation Documents" means the Plan of Reorganization, the Financial
Matters Agreement and the Tax Sharing Agreement.
"Significant Subsidiary" means each Subsidiary that would be a
"Significant Subsidiary" of the Issuer within the meaning of Rule 1-02 under
Regulation S-X promulgated by the SEC.
"Stated Maturity" means, with respect to any security, the date
specified in such security as the fixed date on which the payment of principal
of such security is due and payable, including pursuant to any mandatory
redemption provision (but excluding any provision providing for the repurchase
of such security at the option of the holder thereof upon the happening of any
contingency beyond the control of the issuer unless such contingency has
occurred).
"Subsidiary" means, with respect to any Person, any other Person the
majority of the outstanding shares of Voting Stock of which are, directly or
indirectly, owned or controlled by such first Person or the management or
policies of which are otherwise, directly or indirectly, controlled by such
first Person.
"Tax Sharing Agreement" means the tax sharing agreement to be entered
into by the Guarantor and the Issuer in connection with the Separation, as
described in the Prospectus.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. Sections 77aaa-
77bbbb) as in effect on the date of this Indenture.
"Trustee" means the party named as such in this Indenture until a
successor replaces it and, thereafter, means such successor.
"Trust Officer" means, when used with respect to the Trustee, any
officer within the corporate trust department of the Trustee, including any vice
president, assistant vice president, assistant secretary, assistant treasurer,
trust officer or any other officer of the Trustee who customarily performs
functions similar to those performed by the Persons who at the time shall be
such officers, respectively, or to whom any corporate trust matter is referred
because of such person's knowledge of and familiarity with the particular
subject and who shall have direct responsibility for the administration of this
Indenture.
7
"Uniform Commercial Code" means the New York Uniform Commercial Code
as in effect from time to time.
"U.S. Government Obligations" means the direct obligations (or
certificates representing an ownership interest in such obligations) of the
United States of America (including any agency or instrumentality thereof) for
the payment of which the full faith and credit of the United States of America
is pledged and which are not callable or redeemable at the issuer's option.
"U.S. Steel Group" means the U.S. Steel Group of the Guarantor, as
defined in the Restated Certificate of Incorporation of the Guarantor.
"Value Transfer" has the meaning ascribed to such term in the
Prospectus.
"Voting Power" as applied to the stock of any Person means the total
voting power represented by all outstanding Voting Stock of such Person.
"Voting Stock" of a Person means all classes of Capital Stock or other
interests (including partnership interests) of such Person then outstanding and
normally entitled (without regard to the occurrence of any contingency) to vote
in the election of directors, managers, or trustees thereof.
SECTION 1.2. Other Definitions
-----------------
Defined in
Term Section
---- --------------
"Authenticating Agent"............... 2.2
"Authentication Order"............... 2.2
"Bankruptcy Law"..................... 6.1
"Change in Control Offer"............ 4.10(a)
"covenant defeasance option"......... 8.1(b)
"Custodian".......................... 6.1
"Event of Default"................... 6.1
"legal defeasance option"............ 8.1(b)
"Notice of Default".................. 6.1
"Paying Agent"....................... 2.3
"Registrar".......................... 2.3
"Successor Guarantor"................ 5.2
"Successor Issuer"................... 5.1
SECTION 1.3. Incorporation by Reference of Trust Indenture Act
-------------------------------------------------
The mandatory provisions of the TIA are incorporated by reference in
and made a part of this Indenture. The following TIA terms have the following
meanings:
"Commission" means the SEC.
8
"indenture securities" means the Notes.
"indenture security holder" means a Holder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means the Issuer and any other
obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by SEC rule have the
meanings assigned to them by such definitions.
SECTION 1.4. Rules of Construction
---------------------
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) "including" means including without limitation;
(5) words in the singular include the plural and words in the
plural include the singular;
(6) except as otherwise expressly provided, the principal amount
of any noninterest bearing or other discount security at any date
shall be the principal amount thereof that would be shown on a balance
sheet of the issuer dated such date prepared in accordance with GAAP;
and
(7) except as otherwise expressly provided, all references to
the date the Notes were originally issued shall refer to the date the
Initial Notes were originally issued.
SECTION 1.5. One Class of Notes. The Initial Notes and the
------------------
Additional Notes shall vote and consent together on all matters as one class and
none of the Initial Notes or the Additional Notes shall have the right to vote
or consent as a separate class on any matter.
9
ARTICLE II
THE NOTES
SECTION 2.1. Form and Dating
---------------
(a) General.
The Notes will initially be issued in an aggregate principal amount of
$[___________], except for Notes authenticated and delivered upon registration
of transfer of, or in exchange for, or in lieu of, other Notes pursuant to
Section 2.6, 2.7, 2.10, 3.6 or 9.5. The Issuer may create and issue Additional
Notes on or prior to December 31, 2002 in such an aggregate principal amount as
would be permitted on the date of issuance to be incurred under its then
existing mortgages, indentures or other agreements. The Additional Notes will
rank equally with the Initial Notes and will be otherwise similar in all
respects so that the Additional Notes shall be consolidated and form a single
series with the Initial Notes. The Trustee shall authenticate Additional Notes
upon receipt of an Authentication Order and an Officers' Certificate and Opinion
of Counsel, both meeting the requirements of Section 11.5, subject to Section
2.2, specifying the amount of Additional Notes to be authenticated.
The Notes and the Trustee's certificate of authentication shall be
substantially in the form of Exhibit A hereto. The Notes may have notations,
legends or endorsements required by law, stock exchange rule or usage. Each
Note shall be dated the date of its authentication. The Notes shall be issuable
only in fully registered form, without coupons, in denominations of $25.00 and
integral multiples thereof. Interest on the Notes shall be computed on the
basis of a 360-day year consisting of twelve 30-day months and, for any period
shorter than a full quarterly interest period, interest will be computed on the
basis of the actual number of days elapsed in such 90-day quarterly interest
period.
The terms and provisions contained in the Notes shall constitute, and
are hereby expressly made, a part of this Indenture and the Issuer and the
Trustee, by their execution and delivery of this Indenture, expressly agree to
such terms and provisions and to be bound thereby. However, to the extent any
provision of any Note conflicts with the express provisions of this Indenture,
the provisions of this Indenture shall govern and be controlling.
(b) Global Notes and Definitive Notes.
Notes issued in global form shall be substantially in the form of
Exhibit A attached hereto (including the Global Note Legend thereon and the
"Schedule of Exchanges of Interests in the Global Note" attached thereto).
Notes issued in definitive form shall be substantially in the form of Exhibit A
attached hereto (but without the Global Note Legend thereon and without the
"Schedule of Exchanges of Interests in the Global Note" attached thereto). Each
Global Note shall represent such of the outstanding Notes as shall be specified
therein and each shall provide that it shall represent the aggregate principal
amount of outstanding Notes from time to time endorsed thereon and that the
aggregate principal amount of outstanding Notes represented thereby may from
time to time be reduced or increased, as appropriate, to reflect exchanges and
redemptions. Any endorsement of a Global Note to reflect
10
the amount of any increase or decrease in the aggregate principal amount of
outstanding Notes represented thereby shall be made by the Trustee or the
Custodian, at the direction of the Trustee, in accordance with instructions
given by the Holder thereof as required by Section 2.6 hereof.
SECTION 2.2. Execution and Authentication
----------------------------
An Officer of the Issuer shall sign the Notes for the Issuer by manual
or facsimile signature.
If an Officer whose signature is on a Note no longer holds that office
at the time the Trustee authenticates the Note, the Note shall be valid
nevertheless.
A Note shall not be valid until an authorized signatory of the
Trustee, upon a written order of the Issuer signed by an Officer of the Issuer
(an "Authentication Order"), manually authenticates the Note. The signature of
the Trustee on a Note, upon a written Authentication Order of the Issuer, shall
be conclusive evidence that such Note has been duly and validly authenticated
and issued under this Indenture.
The Trustee may appoint an agent (the "Authenticating Agent")
reasonably acceptable to the Issuer to authenticate the Notes. Unless limited
by the terms of such appointment, any such Authenticating Agent may authenticate
Notes whenever the Trustee may do so under this Indenture. Each reference in
this Indenture to authentication by the Trustee includes authentication by such
agent.
SECTION 2.3. Registrar and Paying Agent
--------------------------
The Company shall appoint (i) an agent (the "Registrar") who shall
maintain an office or agency where Notes may be presented for registration of
transfer or for exchange and (ii) an agent (the "Paying Agent") who shall
maintain an office or agency where Notes may be presented for payment. The
Registrar shall keep a register of the Notes and of their transfer and exchange.
Such register need not include any record of beneficial interests in any Notes.
The Registrar and the Paying Agent shall initially be the Issuer. The Issuer
may have one or more co-registrars and one or more additional paying agents.
The term "Paying Agent" includes any such additional paying agent(s).
In the event the Issuer shall retain any Person not a party to this
Indenture as an agent hereunder, the Issuer shall enter into an appropriate
agency agreement with any Registrar, Paying Agent or co-registrar not a party to
this Indenture, which shall incorporate the terms of the TIA. The agreement
shall implement the provisions of this Indenture that relate to such agent. The
Issuer shall promptly notify the Trustee of the name and address of each such
agent. If the Issuer fails to maintain a Registrar or Paying Agent, the Trustee
shall act as such and shall be entitled to appropriate compensation therefor
pursuant to Section 7.8. The Issuer may appoint any Person that is a
domestically incorporated wholly owned subsidiary of the Issuer to act as Paying
Agent.
The Issuer initially appoints The Depository Trust Company to act as
depositary with respect to the Global Notes.
11
SECTION 2.4. Paying Agent to Hold Money in Trust
-----------------------------------
By at least 11:00 a.m. prevailing Eastern (U.S.) time on the date on
which any principal or interest on any Note is due and payable, the Issuer shall
deposit with the Paying Agent a sum sufficient to pay such principal or interest
when due. The Issuer shall require each Paying Agent (other than the Trustee)
to agree in writing that such Paying Agent shall hold in trust for the benefit
of Holders of Notes or the Trustee all money held by such Paying Agent for the
payment of principal or interest on the Notes and shall notify the Trustee of
any default by the Issuer in making any such payment. If the Issuer or any of
its domestic wholly owned subsidiaries acts as Paying Agent, it shall segregate
the money held by it as Paying Agent and hold it as a separate trust fund. The
Issuer at any time may require a Paying Agent (other than the Trustee) to pay
all money held by it to the Trustee and to account for any funds disbursed by
such Paying Agent. Upon complying with this Section 2.4, the Paying Agent (if
other than the Issuer or any of its domestic wholly owned subsidiaries) shall
have no further liability for the money delivered to the Trustee. Upon any
bankruptcy, reorganization or similar proceeding with respect to the Issuer, the
Trustee shall serve as Paying Agent for the Notes.
SECTION 2.5. Lists of Holders of Notes
-------------------------
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
Holders of Notes. If the Trustee or any Paying Agent is not the Registrar, the
Issuer shall cause the Registrar to furnish to the Trustee or any such Paying
Agent, in writing at least five Business Days before each interest payment date
and at such other times as the Trustee or any such Paying Agent may request in
writing, a list in such form and as of such date as the Trustee may reasonably
require of the names and addresses of Holders of Notes.
SECTION 2.6. Transfer and Exchange
---------------------
(a) Transfer and Exchange of Global Notes.
A Global Note may not be transferred except as a whole by the
Depositary to a nominee of the Depositary, by a nominee of the Depositary to the
Depositary or to another nominee of the Depositary, or by the Depositary or any
such nominee to a successor Depositary or a nominee of such successor
Depositary. All Global Notes will be exchanged by the Issuer for Definitive
Notes only if (i) the Depositary notifies the Issuer that it is unwilling or
unable to continue to act as Depositary or that it is no longer a clearing
agency registered under the Exchange Act and, in either case, the Issuer is
unable to locate a qualified successor Depositary within 90 days after the date
of such notice from the Depositary or (ii) the Issuer, in its discretion at any
time, determines not to have all the Notes represented by Global Notes or (iii)
an Event of Default entitling the Holders to accelerate the maturity of the
Notes has occurred and is continuing. Global Notes also may be exchanged or
replaced, in whole or in part, as provided in Section 2.7 hereof. Every Note
authenticated and delivered in exchange for, or in lieu of, a Global Note or any
portion thereof, pursuant to this Section 2.6 or Section 2.7 or 2.10 hereof,
shall be authenticated and delivered in the form of, and shall be, a Global
Note, except that a Definitive Note shall not bear the legend set forth in
Section 2.6(f) hereof and except as otherwise provided herein. A Global Note
may not be exchanged for another Note other than as
12
provided in this Section 2.6(a), however, beneficial interests in a Global Note
may be transferred and exchanged as provided in Section 2.6(b) or (c) hereof.
(b) Transfer and Exchange of Beneficial Interests in the Global
Notes.
The transfer and exchange of beneficial interests in the Global Notes
shall be effected through the Depositary, in accordance with the provisions of
this Indenture and the Applicable Procedures.
(c) Transfer or Exchange of Beneficial Interests for Definitive
Notes.
Upon the occurrence of the events set forth in clauses (i), (ii) or
(iii) of Section 2.6(a) and instructions given by the Depositary to the
Registrar containing information regarding the Persons in whose names Definitive
Notes shall be registered, the Issuer shall execute and the Trustee shall upon
receipt of an Authentication Order authenticate and (at the expense of the
Issuer) deliver to the Persons designated in the instructions Definitive Notes
in the appropriate principal amounts.
(d) Transfer and Exchange of Definitive Notes for Beneficial
Interests in Global Notes.
Subject to Section 2.6(a), with the Issuer's prior approval, a Holder
of a Definitive Note may exchange such Note for a beneficial interest in a
Global Note or transfer such Definitive Note to a Person who takes delivery
thereof in the form of a beneficial interest in a Global Note at any time. Upon
receipt of a written request for such an exchange or transfer that has been
approved by the Issuer, the Trustee shall cancel the applicable Definitive Note
and increase or cause to be increased the aggregate principal amount of one of
the Global Notes.
If any such exchange or transfer from a Definitive Note to a
beneficial interest in a Global Note is effected pursuant to the paragraph above
at a time when a Global Note has not yet been issued, the Issuer shall issue
and, upon receipt of an Authentication Order in accordance with Section 2.2
hereof, the Trustee shall authenticate one or more Global Notes in an aggregate
principal amount equal to the principal amount of Definitive Notes so
transferred.
(e) Transfer and Exchange of Definitive Notes for Definitive Notes.
Subject to Section 2.6(a), upon request by a Holder of Definitive
Notes, such Holder may transfer such Notes to a Person who takes delivery
thereof in the form of a Definitive Note and the Registrar shall register the
transfer or exchange of Definitive Notes pursuant to the instructions from such
Holder. Prior to such registration of transfer or exchange, the requesting
Holder shall present or surrender to the Registrar the Definitive Notes duly
endorsed or accompanied by a written instruction of transfer in form
satisfactory to the Registrar duly executed by such Holder or by his attorney,
duly authorized in writing, and accompanied by payment of any applicable
transfer taxes or evidence of payment thereof or exemption therefrom.
(f) Legend.
The following legend shall appear on the face of all Global Notes
issued under
13
this Indenture unless specifically stated otherwise in the applicable provisions
of this Indenture.
"THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE
INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE
BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO
ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY
MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 2.6
OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT
NOT IN PART PURSUANT TO SECTION 2.6(a) OF THE INDENTURE, (III) THIS
GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT
TO SECTION 2.11 OF THE INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE
TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT
OF THE ISSUER.
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE
ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR
PAYMENT, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO.
OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN".
(g) Cancellation and/or Adjustment of Global Notes.
At such time as all beneficial interests in a particular Global Note
have been exchanged for Definitive Notes or a particular Global Note has been
redeemed, repurchased or canceled in whole and not in part, each such Global
Note shall be returned to or retained and canceled by the Trustee in accordance
with Section 2.11 hereof. At any time prior to such cancellation, if any
beneficial interest in a Global Note is exchanged for or transferred to a Person
who will take delivery thereof in the form of a beneficial interest in another
Global Note or for Definitive Notes, the principal amount of Notes represented
by such Global Note shall be reduced accordingly and an endorsement shall be
made on such Global Note by the Trustee or by the Depositary at the direction of
the Trustee to reflect such reduction; and if the beneficial interest is being
exchanged for or transferred to a Person who will take delivery thereof in the
form of a beneficial interest in another Global Note, such other Global Note
shall be increased accordingly and an endorsement shall be made on such Global
Note by the Trustee or by the Depositary at the direction of the Trustee to
reflect such increase.
(h) General Provisions Relating to Transfers and Exchanges.
14
To permit registrations of transfers and exchanges, the Issuer shall
execute and the Trustee shall authenticate Global Notes and Definitive Notes
upon receipt of an Authentication Order in accordance with Section 2.2 hereof or
upon receipt of a written request of the Registrar.
No service charge shall be made to a holder of a beneficial interest
in a Global Note or to a Holder of a Definitive Note for any registration of
transfer or exchange, but the Issuer may require payment of a sum sufficient to
cover any transfer tax or similar governmental charge payable in connection
therewith (other than any such transfer taxes or similar governmental charge
payable upon exchange or transfer pursuant to Sections 2.10, 3.6 and 9.5
hereof).
The Registrar shall not be required to register the transfer of or
exchange any Note selected for redemption in whole or in part, except the
unredeemed portion of any Note being redeemed in part.
All Global Notes and Definitive Notes issued upon any registration of
transfer or exchange of Global Notes or Definitive Notes shall be the valid
obligations of the Issuer, evidencing the same debt, and entitled to the same
benefits under this Indenture, as the Global Notes or Definitive Notes
surrendered upon such registration of transfer or exchange.
The Issuer shall not be required (A) to issue, to register the
transfer of or to exchange any Notes during a period beginning at the opening of
business 15 days before the day of any selection of Notes for redemption under
Section 3.2 hereof and ending at the close of business on the day of selection,
(B) to register the transfer of or to exchange any Note so selected for
redemption in whole or in part, except the unredeemed portion of any Note being
redeemed in part or (c) to register the transfer of or to exchange a Note
between a record date and the next succeeding interest payment date.
Prior to due presentment for the registration of a transfer of any
Note, the Trustee, any Agent and the Issuer may deem and treat the Person in
whose name any Note is registered as the absolute owner of such Note for the
purpose of receiving payment of principal of and interest on such Note and for
all other purposes, and none of the Trustee, any Agent or the Issuer shall be
affected by notice to the contrary.
Each Holder of a Note agrees to indemnify the Issuer and the Trustee
against any liability that may result from the transfer, exchange or assignment
of such Holder's Note in violation of any provision of this Indenture and/or
applicable United States Federal or state securities law.
The Trustee shall have no obligation or duty to monitor, determine or
inquire as to compliance with any restrictions on transfer imposed under this
Indenture or under applicable law with respect to any transfer of any interest
in any Note (including any transfers between or among Depositary Participants or
beneficial owners of interests in any Global Note) other than to require
delivery of such certificates and other documentation or evidence as are
expressly required by, and to do so if and when expressly required by, the terms
of this Indenture and to examine the same to determine substantial compliance as
to form with the express requirements
15
hereof.
The Trustee shall authenticate Global Notes and Definitive Notes in
accordance with the provisions of Section 2.2 hereof.
All certifications, certificates and Opinions of Counsel required to
be submitted to the Registrar pursuant to this Section 2.6 to effect a
registration of transfer or exchange may be submitted by facsimile.
SECTION 2.7. Replacement Notes
-----------------
If a mutilated Note is surrendered to the Registrar or if the Holder
of a Note shall provide the Issuer and the Trustee with evidence to their
satisfaction that the Note has been lost, destroyed or wrongfully taken, the
Issuer shall issue and the Trustee shall authenticate a replacement Note if the
requirements of Section 8-405 of the Uniform Commercial Code are met and the
Holder satisfies any other reasonable requirements of the Trustee. If required
by the Trustee or the Issuer, such Holder shall furnish an indemnity bond
sufficient in the judgment of the Issuer and the Trustee to protect the Issuer,
the Trustee, the Paying Agent, the Registrar and any co-registrar from any loss
which any of them may suffer if a Note is replaced. The Issuer and the Trustee
may charge the Holder for their expenses in replacing a Note, including
reasonable fees and expenses of counsel. Every replacement Note is an
additional Obligation of the Issuer.
SECTION 2.8. Outstanding Notes
-----------------
Notes outstanding at any time are all Notes authenticated by the
Trustee except for those canceled, those delivered for cancellation and those
described in this Section 2.8 as not outstanding. A Note does not cease to be
outstanding because the Issuer or an Affiliate of the Issuer holds the Note.
If a Note is replaced pursuant to Section 2.7, it ceases to be
outstanding unless the Trustee and the Issuer receive proof satisfactory to them
that the replaced Note is held by a bona fide purchaser.
If the Paying Agent segregates and holds in trust, in accordance with
this Indenture, on a redemption date or maturity date money sufficient to pay
all principal and interest payable on that date with respect to the Notes (or
portions thereof) to be redeemed or maturing, as the case may be, and the Paying
Agent is not prohibited from paying such money to the Holders of Notes on that
date pursuant to the terms of this Indenture, then on and after that date such
Notes (or portions thereof) cease to be outstanding and interest on them ceases
to accrue.
SECTION 2.9. Treasury Notes
--------------
In determining whether the Holders of the required principal amount of
Notes have concurred in any direction, waiver or consent, Notes owned by the
Issuer, the Guarantor or by any Person directly or indirectly controlling or
controlled by or under direct or indirect
16
common control with the Issuer or the Guarantor shall be considered as though
not outstanding, except that for the purposes of determining whether the Trustee
shall be protected in relying on any such direction, waiver or consent, only
Notes that a Trust Officer actually knows are so owned shall be so disregarded.
SECTION 2.10. Temporary Notes
---------------
Subject to Section 2.6(a), until Definitive Notes are ready for
delivery, the Issuer may prepare and the Trustee, upon receipt of an
Authentication Order, shall authenticate temporary Notes. Temporary Notes shall
be substantially in the form of Definitive Notes but may have variations that
the Issuer and the Trustee consider appropriate for temporary Notes. Without
unreasonable delay, the Issuer shall prepare and the Trustee shall authenticate
Definitive Notes. After the preparation of Definitive Notes, the temporary
Notes shall be exchangeable for Definitive Notes upon surrender of the temporary
Notes at any office or agency maintained by the Issuer for that purpose and such
exchange shall be without charge to the Holder. Upon surrender for cancellation
of any one or more temporary Notes, the Issuer shall execute, and the Trustee
shall authenticate and deliver in exchange therefor, one or more Definitive
Notes representing an equal principal amount of Notes. Until so exchanged, the
Holder of temporary Notes shall in all respects be entitled to the same benefits
under this Indenture as a Holder of Definitive Notes.
SECTION 2.11. Cancellation
------------
The Issuer at any time may deliver Notes to the Trustee for
cancellation. The Registrar and the Paying Agent shall forward to the Trustee
for cancellation any Notes surrendered to them for registration of transfer or
exchange or payment. The Trustee shall cancel and dispose of (subject to the
record retention requirements of the Exchange Act) all Notes surrendered for
registration of transfer or exchange, payment or cancellation according to its
normal operating procedures and deliver a certificate of such destruction to the
Issuer unless the Issuer directs the Trustee to deliver canceled Notes to the
Issuer. The Issuer may not issue new Notes to replace Notes it has redeemed,
paid or delivered to the Trustee for cancellation.
SECTION 2.12. Defaulted Interest
------------------
If the Issuer defaults in a payment of interest on the Notes, the
Issuer shall pay defaulted interest (plus interest on such defaulted interest to
the extent lawful) at the rate specified therefor in the Notes in any lawful
manner. The Issuer may pay the defaulted interest to the Persons who are
Holders of Notes on a subsequent special record date. The Issuer shall fix or
cause to be fixed (or upon the Issuer's failure to do so the Trustee shall fix)
any such special record date and payment date which specified record date shall
not be less than 10 days prior to the payment date for such defaulted interest
and shall promptly mail or cause to be mailed to each Holder of Notes a notice
that states the special record date, the payment date and the amount of
defaulted interest to be paid. The Issuer shall notify the Trustee in writing
of the amount of defaulted interest proposed to be paid on each Note and the
date of the proposed payment, and at the same time the Issuer shall deposit with
the Paying Agent 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
17
proposed payment, such money when so deposited to be held in trust for the
benefit of the Person entitled to such defaulted interest as provided in this
Section 2.12.
SECTION 2.13. CUSIP Numbers
-------------
The Issuer in issuing the Notes may use "CUSIP" numbers (if then
generally in use) and, if so, the Trustee shall use "CUSIP" numbers in notices
of redemption as a convenience to Holders; provided, however, that any such
notice may state that no representation is made as to the correctness of such
numbers either as printed on the Notes or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Notes, and any such redemption shall not be affected by
any defect in or omission of such numbers.
ARTICLE III
REDEMPTION
SECTION 3.1. Notices to Trustee
------------------
If the Issuer elects to redeem Notes pursuant to the provisions of
Section 3.7, it shall notify the Trustee and the Paying Agent in writing of the
redemption date and the principal amount at maturity of Notes to be redeemed and
the redemption price.
The Issuer shall give each notice to the Trustee and the Paying Agent
provided for in this Section 3.1 at least 15 days prior to the date notice of
redemption is to be delivered to Holders of Notes unless the Trustee and the
Paying Agent consent to a shorter period. Such notice shall be accompanied by
an Officers' Certificate from the Issuer to the effect that such redemption will
comply with the conditions herein. The record date relating to such redemption
shall be selected by the Issuer and set forth in the related notice given to the
Trustee and the Paying Agent, which record date shall be not less than 15 days
prior to the date selected for redemption by the Issuer.
SECTION 3.2. Selection of Notes to Be Redeemed
---------------------------------
In the case of any partial redemption, selection of the Notes for
redemption will be made by the Trustee in compliance with the requirements of
the principal national securities exchange, if any, on which the Notes are
listed, or, if the Notes are not so listed, on a pro rata basis, by lot or by
such other method as the Trustee in its sole discretion shall deem to be fair
and appropriate, although no Note of $25.00 in original principal amount or less
will be redeemed in part. Provisions of this Indenture that apply to Notes
called for redemption also apply to portions of Notes called for redemption.
Upon request of the Issuer, the Trustee shall notify the Issuer of the Notes or
portions of Notes to be redeemed.
SECTION 3.3. Notice of Redemption
--------------------
At least 30 days but not more than 60 days before a date for
redemption of Notes, the Trustee at the expense of the Issuer shall mail a
notice of redemption by first-class mail to
18
each Holder of Notes to be redeemed, at such Holder's registered address. So
long as the book-entry system is used for determining beneficial ownership of
Global Notes, the notice or redemption for any of the Notes will be given to
Cede & Co., as nominee for the Depositary as registered owner of the Notes.
The notice shall identify the Notes to be redeemed and shall state:
(i) the redemption date;
(ii) the redemption price;
(iii) the name and address of the Paying Agent;
(iv) that Notes called for redemption must be surrendered to
the Paying Agent to collect the redemption price plus accrued and unpaid
interest, if any;
(v) if fewer than all the outstanding Notes are to be
redeemed, the identification and principal amounts of the particular Notes
to be redeemed;
(vi) that, unless the Issuer defaults in making such redemption
payment or the Paying Agent is prohibited from making such payment pursuant
to the terms of this Indenture, interest on Notes (or portion thereof)
called for redemption ceases to accrue on and after the redemption date;
(vii) the CUSIP number, if any, printed on the Notes being
redeemed; and
(viii) that no representation is made as to the correctness or
accuracy of the CUSIP number, if any, listed in such notice or printed on
the Notes.
The Trustee shall give the notice of redemption in the Issuer's name
and at the Issuer's expense. In such event, the Issuer shall provide the
Trustee with the information required by this Section 3.3.
SECTION 3.4. Effect of Notice of Redemption
------------------------------
Once notice of redemption is mailed, Notes called for redemption shall
become due and payable on the redemption date and at the redemption price stated
in the notice. Upon surrender to the Paying Agent, such Notes shall be paid at
the redemption price stated in the notice, plus accrued and unpaid interest, if
any, to the redemption date; provided that the Issuer shall have deposited the
redemption price with the Paying Agent or the Trustee on or before 11:00 a.m.
prevailing Eastern (U.S.) time on the date of redemption; provided, further,
that if the redemption date is after a regular record date and on or prior to
the related interest payment date, the accrued and unpaid interest shall be
payable to the Holder of the redeemed Notes registered on that record date.
Neither the failure to give notice nor any defect in the notice to any Holder
shall affect the validity of the notice to any other Holder or affect the
sufficiency of the proceedings for the redemption of any such Notes.
19
SECTION 3.5. Deposit of Redemption Price
---------------------------
By at least 11:00 a.m. Prevailing Eastern (U.S. time) on the date on
which any principal of or interest on any Note is due and payable, the Issuer
shall deposit with the Paying Agent (or, if the Issuer or a domestic wholly
owned subsidiary thereof is the Paying Agent, shall segregate and hold in trust
pursuant to Section 2.4) money sufficient to pay the redemption price of and
accrued and unpaid interest, if any, on all Notes to be redeemed on that date
other than Notes or portions of Notes called for redemption which are owned by
the Issuer or any of its Subsidiaries and have been delivered by the Issuer or
any such Subsidiary to the Trustee for cancellation.
If the Issuer complies with the preceding paragraph, then, unless the
Issuer defaults in the payment of such redemption price, interest on the Notes
to be redeemed will cease to accrue on and after the applicable redemption date,
whether or not such Notes are presented for payment.
SECTION 3.6. Notes Redeemed in Part
----------------------
Upon surrender of a Note that is redeemed in part, the Issuer shall
execute and the Trustee shall authenticate for the Holder (at the Issuer's
expense) a new Note equal in a principal amount at maturity to the unredeemed
portion of the Note surrendered.
SECTION 3.7. Optional Redemption
-------------------
Except as set forth in the following paragraphs, the Notes will not be
redeemable at the option of the Issuer prior to the Stated Maturity.
At any time on or after December 31, 2006, the Issuer may at its
option on one or more occasions, upon not less than 30 nor more than 60 days'
notice, redeem the Notes at a redemption price (expressed as a percentage of
principal amount) of 100%, plus accrued and unpaid interest to the redemption
date. In addition, the Issuer may at any time repurchase Notes at any price in
the open market and may hold, resell or surrender such Notes to the Trustee for
cancellation.
Further, at any time on or prior to December 31, 2002, the Issuer may,
at its option, give written notice to redeem the Notes, which notice shall be no
less than 30 nor more than 60 days prior to the redemption date, in whole or in
part at a redemption price (expressed as a percentage of principal amount) of
100%, plus accrued and unpaid interest to the redemption date; provided that
(i) the Board of Directors shall have determined not to proceed with the
Separation (and the Guarantee of the Guarantor will stay in effect
until the Notes are fully paid); and
(ii) if the Issuer elects to redeem the Notes in part, at least a minimum
aggregate principal amount of Notes required to maintain listing of
the Notes on the New York Stock Exchange, under the rules and
regulations thereof, remains
20
outstanding.
SECTION 3.8. Mandatory Redemption
--------------------
Except as set forth in Section 4.10, the Issuer shall not be required
to make mandatory redemption or sinking fund payments with respect to the Notes.
ARTICLE IV
COVENANTS
SECTION 4.1. Payment of Notes
----------------
The Issuer shall promptly pay the principal of and interest on the
Notes on the dates and in the manner provided in the Notes and in this
Indenture. Principal and interest shall be considered paid on the date due if
on or before 11:00 a.m. prevailing Eastern (U.S.) time on such date the Trustee
or the Paying Agent holds (or, if the Issuer or a domestic wholly owned
subsidiary thereof is the Paying Agent, the segregated account or separate trust
fund maintained by the Issuer or such subsidiary pursuant to Section 2.4) in
accordance with this Indenture money sufficient to pay all principal and
interest then due and the Trustee or the Paying Agent (or, if the Issuer or a
domestic wholly owned subsidiary thereof is the Paying Agent, the Issuer or such
subsidiary), as the case may be, is not prohibited from paying such money to the
Holders of Notes on that date pursuant to the terms of this Indenture.
The Issuer shall pay interest on overdue principal at the rate
specified therefor in the Notes, and it shall pay interest on overdue
installments of interest at the same rate to the extent lawful as provided in
Section 2.12.
Notwithstanding anything to the contrary contained in this Indenture,
the Issuer or the Paying Agent may, to the extent it is required to do so by
law, deduct or withhold income or other similar taxes imposed by the United
States of America or other domestic or foreign taxing authorities from principal
or interest payments hereunder.
SECTION 4.2. Maintenance of Office or Agency
-------------------------------
The Issuer shall maintain an office or agency (which may be an office
of the Trustee or an affiliate of the Trustee or Registrar) where Notes may be
surrendered for registration of transfer or exchange and where notices and
demands to or upon the Issuer in respect of the Notes and this Indenture may be
served. The Issuer shall 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 Issuer 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.
The Issuer may also from time to time designate one or more other
offices or agencies where the Notes 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
21
rescission shall in any manner relieve the Issuer of its obligations to maintain
an office or agency for such purposes. The Issuer shall 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.
The Issuer hereby designates the Corporate Trust Office of the Trustee
as one such office or agency of the Issuer in accordance with Section 2.3.
SECTION 4.3. Corporate Existence
-------------------
Except as otherwise permitted by Article V and Section 4.10, the
Issuer shall do or cause to be done, at its own cost and expense, all things
necessary to preserve and keep in full force and effect its limited liability
company or corporate existence and the corporate, partnership or limited
liability company existence of each of its Significant Subsidiaries in
accordance with the respective organizational documents of each such Subsidiary
and the material rights (charter and statutory) and franchises of the Issuer and
each such Subsidiary; provided, however, that the Issuer shall not be required
to preserve, with respect to itself, any material right or franchise and, with
respect to any of its Significant Subsidiaries, any such existence, material
right or franchise, if the Board of Directors of the Issuer shall determine in
good faith (such determination to be evidenced by a board resolution), that the
preservation thereof is no longer desirable in the conduct of the business of
the Issuer and the Subsidiaries, taken as a whole.
SECTION 4.4. SEC Reports
-----------
(a) So long as the Guarantee in Article X is in effect, the Issuer
shall cause the Guarantor to file with the SEC such annual reports and such
information, documents and other reports as are specified in Sections 13 and
15(d) of the Exchange Act and applicable to a U.S. corporation subject to such
Sections, such information, documents and other reports to be so filed and
provided at the times specified for the filings of such information, documents
and reports under such Sections and to include financial statements and other
information with respect to the U. S. Steel Group in form and substance
consistent with the information provided in its previous Exchange Act filings,
subject to the requirements of the SEC.
(b) Following the Separation, the Issuer will file with the SEC such
annual reports and such information, documents and other reports as are
specified in Sections 13 and 15(d) of the Exchange Act and applicable to a U.S.
corporation subject to such Sections, such information, documents and other
reports to be so filed and provided at the times specified for the filings of
such information, documents and reports under such Sections.
SECTION 4.5. Compliance Certificate
----------------------
(a) The Issuer shall deliver to the Trustee, within 120 days after
the end of each fiscal year, an Officers' Certificate stating that a review of
the activities of the Issuer and its Subsidiaries during the preceding fiscal
year has been made under the supervision of the signing Officers with a view to
determining whether the Issuer and its Subsidiaries has kept, observed,
performed and fulfilled its obligations under this Indenture, and further
stating, as to such Officers signing such certificate, that to the best of his
or her knowledge the Issuer and its
22
Subsidiaries have kept, observed, performed and fulfilled each and every
covenant contained in this Indenture and are not in default in the performance
or observance of any of the terms, provisions and conditions hereof (or, if a
Default or Event of Default shall have occurred, describing all such Defaults or
Events of Default of which he or she may have knowledge and what action the
Issuer and its Subsidiaries are taking or propose to take with respect thereto)
and that to the best of his or her knowledge no event has occurred and remains
in existence by reason of which payments on account of the principal of or
interest on the Notes are prohibited (or if such event has occurred, a
description of the event and what action each is taking or proposes to take with
respect thereto).
(b) The Issuer shall, so long as any of the Notes are outstanding,
deliver to the Trustee, forthwith upon any Officer becoming aware of any Default
or Event of Default an Officers' Certificate specifying such Default or Event of
Default and what action the Issuer is taking or proposes to take with respect
thereto.
(c) The Issuer shall comply with TIA Section 314(a)(4).
SECTION 4.6. Stay, Extension and Usury Laws
------------------------------
Each of the Issuer and the Guarantor covenants that it will not at any
time insist upon, plead, or in any manner whatsoever claim or take the benefit
or advantage of, any stay, extension or usury law wherever enacted, now or at
any time hereafter in force, which may affect the covenants or the performance
of this Indenture. Each of the Issuer and the Guarantor (to the extent it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it will not, by resort to any such law, 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 has been
enacted.
SECTION 4.7. Payment of Taxes and Other Claims
---------------------------------
The Issuer shall pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (i) all material taxes, assessments and
governmental charges (including withholding taxes and any penalties, interest
and additions to taxes) levied or imposed upon it or any of its Subsidiaries or
properties of it or any of its Subsidiaries and (ii) all lawful claims for
labor, materials and supplies that, if unpaid, might by law become a Lien upon
the property of it or any of its Subsidiaries; provided, however, that the
Issuer shall not be required to pay or discharge or cause to be paid or
discharged any such tax, assessment, charge or claim whose amount, applicability
or validity is being contested in good faith by appropriate proceedings properly
instituted and diligently conducted for which adequate reserves, to the extent
required under GAAP, have been taken.
SECTION 4.8. Maintenance of Properties and Insurance
---------------------------------------
(a) The Issuer shall, and shall cause each of its Significant
Subsidiaries to, maintain its material properties in good working order and
condition (subject to ordinary wear and tear) and make or cause to be made all
necessary repairs, renewals, replacements, additions, betterments and
improvements thereto and actively conduct and carry on its business, all as in
23
the reasonable judgment of the Issuer is necessary so that the business carried
on by the Issuer and its Significant Subsidiaries may be actively conducted;
provided, however, that nothing in this Section 4.8 shall prevent the Issuer or
any of its Subsidiaries from discontinuing the operation and maintenance of any
of its properties, if such discontinuance is, in the good faith judgment of the
Issuer or the Subsidiary, as the case may be, desirable in the conduct of their
respective businesses and is not disadvantageous in any material respect to the
Holders.
(b) The Issuer shall provide or cause to be provided, for itself and
each of its Significant Subsidiaries, insurance (including appropriate self-
insurance) against loss or damage of the kinds that, in the good faith judgment
of the Issuer, are adequate and appropriate for the conduct of the business of
the Issuer and such Subsidiaries in a prudent manner, with reputable insurers or
with the government of the United States of America, any state thereof or any
agency or instrumentality of such governments, in such amounts, with such
deductibles, and by such methods as shall be customary, in the good faith
judgment of the Issuer, for companies similarly situated in the industry.
SECTION 4.9. Conditions to Separation
------------------------
The Issuer shall not permit the Separation to occur, unless:
(i) the Guarantor shall have received a private letter ruling from the
IRS that the Separation will qualify as a tax-free transaction within
the meaning of Section 355 of the Code,
(ii) the transactions that give effect to the Value Transfer as described
in the Prospectus shall have occurred,
(iii) the Guarantor shall not have amended (x) the definition of U.S. Steel
Group in its certificate of incorporation or by-laws or (y) its
Management and Allocation Policies, in either case, in any manner
adverse to the holders of the Notes,
(iv) immediately following the Separation and after giving pro forma
effect to any subsequent payments to be made as part of the
Separation, (x) the Issuer shall have an aggregate of at least $400
million available in undrawn financings and cash, of which at least
$300 million shall be available under facilities with terms extending
at least three years after the date such facilities are put in place,
and (y) no Default shall have occurred and be continuing, and
(v) any differences between the Separation Documents (x) as executed and
delivered and (y) as described in the Prospectus do not have a
material adverse effect on the Holders of the Notes.
SECTION 4.10. Change in Control
-----------------
(a) If a Change in Control occurs, subject to paragraphs (d) and (e)
below, the Issuer shall offer to purchase Notes, at the option of the Holders
thereof (the "Change in Control Offer"), at a purchase price (the "Change in
Control Purchase Price") equal to 100% of the
24
principal amount thereof, together with accrued interest to the Change in
Control Purchase Date referred to below (except that interest installments due
before the Change in Control Purchase Date shall be payable to the Holders of
such Notes of record at the close of business on the relevant record dates), as
of the date that is 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 Holders of the requirements set forth in Section 4.10(c).
(b) Within 15 Business Days after the occurrence of a Change in
Control, the Issuer shall mail a written notice of Change in Control by first-
class mail to the Trustee and to each Holder, and to the beneficial owners as
required by applicable law, of Notes and shall cause a copy of such notice to be
published in a daily newspaper of national circulation. The notice shall state:
(1) the events causing a Change in Control, specifying such events, and
the date of such Change in Control;
(2) the date by which the Change in Control Purchase Notice pursuant to
this Section 4.10 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 the Notes;
(6) that on the Change in Control Purchase Date each Note surrendered in
accordance with this Section 4.10 and the terms of such Note for
payment at the Change in Control Purchase Price will be purchased by
the Issuer at such price and, if applicable, that interest thereon
will cease to accrue on and after such date;
(7) the procedures the Holders must follow to exercise rights under this
Section 4.10, including procedures to be followed by a Holder acting
as a holder of record on behalf of more than one beneficial owners in
exercising rights specified in this Section 4.10 with respect to less
than all of such beneficial owners; and
(8) the procedures for withdrawing a Change in Control Purchase Notice.
(c) A Holder of Notes may exercise its rights specified in Section
4.10(a) by delivering a written notice of purchase (a "Change in Control
Purchase Notice") to the Paying Agent at its address set forth on the notice
sent pursuant to Section 4.10(b)(5) at any time prior to the close of business
on the Change in Control Purchase Date with respect to such Change in Control,
stating:
(1) the certificate number or numbers of the Notes which the Holder will
deliver to be purchased; and
(2) that such Notes shall be purchased pursuant to the terms and
conditions specified herein and in the Issuer's notice pursuant to
Section 4.10(b).
25
A Holder may, but is not required to, use the Form of Change in
Control Purchase Notice attached hereto as Exhibit B.
The delivery of such Notes 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
4.10 only if the Notes 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 Issuer shall establish procedures to permit a Holder of Notes
acting as a holder of record on behalf of more than one beneficial owner to
exercise the rights specified in this Section 4.10 with respect to less than all
such beneficial owners.
Upon receipt by the Issuer of the Change in Control Purchase Notice
specified in this Section 4.10(c), the Holder of the Notes in respect of which
such notice was given shall (unless such notice is withdrawn as specified in
Section 4.11) thereafter be entitled to receive solely the Change in Control
Purchase Price with respect to such Notes. Such price shall be paid to such
Holder promptly following the later of (x) the Change in Control Purchase Date
with respect to such Notes (provided the conditions in this Section 4.10(c) have
been satisfied) and (y) the time of delivery of such Notes to the Paying Agent
therefor by the Holder thereof in the manner required by this Section 4.10(c).
Any purchase by the Issuer contemplated pursuant to the provisions of this
Section 4.10 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 Notes.
On or before the Business Day following the Change in Control Purchase
Date, the Issuer shall deposit with the Paying Agent (or, if the Issuer or a
domestic wholly owned subsidiary thereof is acting as the Paying Agent, shall
segregate and hold in trust as provided in Section 2.4) an amount of money
sufficient to pay the aggregate Change in Control Purchase Price of all the
Notes with respect to which a Change in Control Purchase Notice has been
received.
The Issuer shall comply, to the extent applicable, with the
requirements of Section 14(e) of the Exchange Act and any other securities laws
or regulations in connection with the repurchase of Notes as a result of a
Change in Control. To the extent that the provisions of any securities laws or
regulations conflict with the provisions of this Section 4.10, the Issuer shall
comply with the applicable securities laws and regulations and shall not be
deemed to have breached its obligations under this Section 4.10 by virtue of its
compliance with such securities laws or regulations.
(d) The Issuer shall not be required to make a Change in Control
Offer as a result of a Change in Control if the Holders of a majority in
aggregate principal amount of the Notes outstanding as of the date of such
Change in Control waive such Change in Control Offer in writing. The Issuer's
obligations under this Section 4.10 may be modified with respect to the Notes
with the written consent of the Holders of a majority in aggregate principal
amount of the Notes outstanding as of the date of such Change in Control.
26
(e) The Issuer shall not be required to make a Change in Control
Offer following a Change in Control if a third party makes the Change in Control
Offer in the manner, at the times and otherwise in compliance with the
requirements set forth in this Section 4.10 applicable to a Change in Control
Offer made by the Issuer and purchases all Notes validly tendered prior to the
close of business on the Change in Control Purchase Date and not withdrawn under
such Change in Control Offer.
(f) Notwithstanding anything herein to the contrary, any holder of
Notes delivering to the Paying Agent the Change in Control Purchase Notice
contemplated by Section 4.10(c) shall have the right to withdraw such Change in
Control Purchase Notice at any time prior to the close of business on the Change
in Control Purchase Date by delivery of a written notice of withdrawal to such
Paying Agent in accordance with Section 4.11.
SECTION 4.11. Withdrawal of Change in Control Purchase Notice
-----------------------------------------------
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 the
Paying Agent at its address set forth on the notice sent pursuant to Section
4.10(b)(5) at any time prior to the close of business on the Change in Control
Purchase Date specifying the aggregate principal amount of the Notes 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 C.
SECTION 4.12. Limitation on Liens
-------------------
(a) Subject to paragraph (b) below and Section 4.14, if the Issuer or
any of its Subsidiaries mortgages, pledges, encumbers or subjects to a lien (to
"Mortgage" or a "Mortgage", as the context may require) as security for any
indebtedness for money borrowed any Principal Property or any shares of stock or
other equity interests in any of its Subsidiaries that own, directly or
indirectly, one or more Principal Properties, the Issuer shall secure or shall
cause its applicable Subsidiary to secure the Notes equally and ratably with all
indebtedness or obligations secured by the Mortgage then being given and with
any other indebtedness or other obligations of the Issuer or such Subsidiary
then entitled to such Mortgage.
(b) Notwithstanding any other provision of this Indenture, the
restrictions in Section 4.12(a) shall not apply in the case of:
(i) any Mortgage incurred by any Subsidiary of the Issuer to secure
indebtedness for money borrowed incurred by such Subsidiary;
(ii) any Mortgage, including a purchase money Mortgage, incurred in
connection with the acquisition of any Principal Property or shares of
stock or other equity securities (for purposes of this exception, the
creation of any Mortgage within 180 days after the acquisition or
completion of construction of such Principal Property or such shares
of stock or other equity securities shall be deemed to be incurred in
connection with the acquisition of such Principal Property or such
shares of stock
27
or other equity securities), the assumption of any Mortgage
previously existing on such acquired Principal Property or such
acquired shares of stock or other equity securities or any Mortgage
existing on the Principal Property of any Person when such Person
becomes a Subsidiary of the Issuer;
(iii) any Mortgage in favor of the United States of America, any State,
any foreign government or any agency, department, political
subdivision or other instrumentality of any of the foregoing, to
secure partial, progress or advance payments to the Issuer or any of
its Subsidiaries pursuant to the provisions of any contract or any
statute;
(iv) any Mortgage in favor of the United States of America, any State,
any foreign government or any agency, department, political
subdivision or other instrumentality of any of the foregoing, to
secure borrowings by the Issuer or any of its Subsidiaries for the
purchase or construction of the Principal Property Mortgaged;
(v) any Mortgage on any Principal Property arising in connection with or
to secure all or any part of the cost of the repair, construction,
improvement or alteration of such Principal Property or any portion
of such Principal Property;
(vi) any Mortgage existing on the date of the Indenture, whether or not
such Mortgage includes an after-acquired property provision; or
(vii) any renewal of or substitution for any Mortgage permitted under the
preceding clauses (i) through (vi); provided, however, that the
principal amount of indebtedness secured by such Mortgage may not
exceed the principal amount of indebtedness secured at the time of
the renewal or substitution and that such renewal or substitution
must be limited to all or a part of the Principal Property, plus
improvements and construction on such Principal Property, or shares
of stock or other equity securities which were subject to the
Mortgage that was renewed or substituted.
SECTION 4.13. Limitation on Sale/Leaseback Transactions
-----------------------------------------
(a) Subject to paragraph (b) below and Section 4.14, the Issuer
shall not, nor shall it permit any of its Subsidiaries to, sell or transfer any
Principal Property with the intention of taking back a lease on such Principal
Property.
(b) Notwithstanding any other provision of this Indenture, the
restrictions in Section 4.13(a) shall not apply if:
(i) the lease is to one of the Issuer's Subsidiaries, or to the Issuer
in the case of a Subsidiary of the Issuer;
(ii) the lease is for a temporary period by the end of which it is
intended that the use of such Principal Property by the lessee will
be discontinued;
28
(iii) the Issuer or one of its Subsidiaries could, in accordance with
Section 4.12, Mortgage such Principal Property without equally and
ratably securing the Notes;
(iv) (1) the Issuer promptly informs the Trustee of such sale, (2) the
net proceeds of such sale are at least equal to the fair market
value (as determined by resolution adopted by the Board of Directors
of the Issuer) of such Principal Property and (3) the Issuer will,
and in any such case the Issuer covenants that it will, within 180
days after such sale, apply an amount equal to the net proceeds of
such sale to the retirement of its debt or of debt of one of its
Subsidiaries in the case of Principal Property of such Subsidiary,
maturing by its terms more than one year after the date on which it
was originally incurred (the "funded debt"); provided that the
amount to be applied to the retirement of funded debt of the Issuer
or of a Subsidiary of the Issuer shall be reduced by the amount
below if, within 75 days after such sale, the Issuer delivers to the
Trustee an Officers' Certificate stating:
(1) that on a specified date after such sale the Issuer or a
Subsidiary of the Issuer, as the case may be, voluntarily
retired a specified principal amount of funded debt;
(2) that the 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 Issuer or a Subsidiary of the Issuer, as the
case may be, under the circumstances referred to in this
Section 4.13; and
(3) 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 Issuer or its Subsidiary,
as the case may be, to the retirement of such funded debt.
In the event of such a sale or transfer, the Issuer will deliver to
the Trustee a certified copy of the resolution of the Board of Directors
referred to in the parenthetical phrase contained in clause (iv)(2) above and an
Officers' Certificate setting forth all material facts under this Section 4.13.
For purposes of this Section 4.13, the term "retirement of funded debt" shall
include the "in substance defeasance" of such funded debt in accordance with
then applicable accounting rules.
SECTION 4.14. Exempted Liens and Sale/Leaseback Transactions
----------------------------------------------
Notwithstanding the restrictions set forth in Sections 4.12 and 4.13
above, the Issuer or any of its Subsidiaries may, without equally and ratably
securing the Notes, (1) Mortgage any Principal Property or any shares of stock
or other equity interests in any of the Issuer's Subsidiaries that owns,
directly or indirectly, one or more Principal Properties or (2) sell or transfer
any Principal Property with the intention of taking back a lease on such
Principal Property, in each case, provided that at the time of such event, and
after giving effect thereto, the sum of the aggregate net book value of
Principal Property or shares of stock or other equity securities so Mortgaged
(other than such Mortgages permitted pursuant to Section 4.12(b)) and
29
the aggregate net book value of all Principal Property then subject to a
sale/leaseback transaction specified in Section 4.13(a) (not including any such
sale/leaseback transactions permitted pursuant to Section 4.13(b)) does not
exceed 10% of Consolidated Net Tangible Assets.
SECTION 4.15. Further Instruments and Acts
----------------------------
Upon reasonable request of the Trustee, the Issuer shall execute and
deliver such further instruments and do such further acts as may be reasonably
necessary or proper to carry out more effectively the purpose of this Indenture.
ARTICLE V
SUCCESSOR ISSUER AND SUCCESSOR GUARANTOR
SECTION 5.1. When Issuer May Merge or Transfer Assets
----------------------------------------
The Issuer shall not consolidate with or merge with or into, or
convey, transfer or lease, in one transaction or a series of transactions,
directly or indirectly, all or substantially all its assets to, any Person,
unless:
(i) the resulting, surviving or transferee Person (the "Successor
Issuer") shall be a Person organized and existing under the laws of
the United States of America, any State thereof or the District of
Columbia and the Successor Issuer (if not the Issuer) shall
expressly assume, by supplemental indenture, executed and delivered
to the Trustee, in form satisfactory to the Trustee, all the
obligations of the Issuer under the Notes and this Indenture;
(ii) immediately after such transaction, no Default shall have occurred
and be continuing; and
(iii) the Issuer shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger or transfer and such supplemental indenture
(if any) comply with the Indenture.
The Successor Issuer shall be the successor to the Issuer and shall
succeed to, and be substituted for, and may exercise every right and power of,
the Issuer under the Indenture, and the Issuer, except in the case of a lease,
shall be released from the obligation to pay the principal of and interest on
the Notes.
SECTION 5.2. When Guarantor May Merge or Transfer Assets
-------------------------------------------
So long as the Guarantee in Article X is in effect, the Guarantor
shall not consolidate with or merge with or into, or convey, transfer or lease,
in one transaction or a series of transactions, directly or indirectly, all or
substantially all its assets to, any Person, unless:
(i) the resulting, surviving or transferee Person (the "Successor
Guarantor") shall be a Person organized and existing under the laws
of the United States of America, any State thereof or the District
of Columbia and the Successor Guarantor (if not
30
the Guarantor) shall expressly assume, by supplemental indenture,
executed and delivered to the Trustee, in form satisfactory to the
Trustee, all the obligations of the Guarantor under the Guarantee of
the Notes and the Indenture;
(ii) immediately after such transaction, no Default shall have occurred
and be continuing; and
(iii) the Guarantor shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger or transfer and such supplemental indenture
(if any) comply with the Indenture.
The Successor Guarantor shall be the successor to the Guarantor and
shall succeed to, and be substituted for, and may exercise every right and power
of, the Guarantor under the Indenture, and the predecessor Guarantor, except in
the case of a lease, shall be released from its obligations under the Guarantee
of the Notes.
ARTICLE VI
DEFAULTS AND REMEDIES
SECTION 6.1. Events of Default
-----------------
An "Event of Default" occurs if:
(i) the Issuer defaults in any payment of interest on any Note when the
same becomes due and payable, and such default continues for a
period of 30 days;
(ii) the Issuer defaults in the payment of the principal of any Note when
the same becomes due and payable at its Stated Maturity, upon
optional redemption, upon a Change in Control Offer, upon
declaration of acceleration or otherwise;
(iii) the Issuer fails to comply with its obligations under Article V;
(iv) the Issuer fails to comply with Section 4.4 and any of Sections 4.9
through 4.14 (other than a failure to repurchase Notes when required
pursuant to Section 4.10, which failure shall constitute an Event of
Default under Section 6.1(ii)) and such failure continues for 30
days after the notice specified below;
(v) the Issuer or the Guarantor fails to comply with any of its
agreements in the Notes, the Guarantee or this Indenture (other than
those referred to in (i), (ii), (iii) or (iv) above) and such
failure continues for 60 days after the notice specified below;
(vi) the Issuer, the Guarantor or a Significant Subsidiary of the Issuer
pursuant to or within the meaning of any Bankruptcy Law:
31
(A) commences a voluntary case;
(B) consents to the entry of an order for relief against it in
an involuntary case in which it is the debtor;
(C) consents to the appointment of a Custodian of it or for any
substantial part of its property; or
(D) makes a general assignment for the benefit of its creditors;
or takes any comparable action under any foreign laws relating to
insolvency;
(vii) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
(A) is for relief against the Issuer, the Guarantor or any
Significant Subsidiary of the Issuer in an involuntary case;
(B) appoints a Custodian of the Issuer, the Guarantor or any
Significant Subsidiary or for any substantial part of the
property of the Issuer, the Guarantor or any Significant
Subsidiary; or
(C) orders the winding up or liquidation of the Issuer, the
Guarantor or any Significant Subsidiary of the Issuer;
(or any similar relief is granted under any foreign laws) and the order,
decree or relief remains unstayed and in effect for 90 days;
(viii) any judgment or decree for the payment of money in excess of $50
million is rendered against the Issuer or any Significant Subsidiary
of the Issuer, remains outstanding for a period of 60 days following
such judgment and is not discharged, waived or stayed within 10 days
after notice; or
(ix) prior to the Separation, the Guarantee with respect to the Notes
shall cease for any reason to be in full force and effect (other
than in accordance with its terms) or the Guarantor (or its
successors or assigns) or any Person acting on behalf of the
Guarantor (or its successors or assigns) shall deny or disaffirm its
obligations under the Guarantee.
The foregoing will constitute Events of Default whatever the reason
for any such Event of Default and whether it is voluntary or involuntary or is
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.
The term "Bankruptcy Law" means Xxxxx 00, Xxxxxx Xxxxxx Code, or any
similar Federal or state law for the relief of debtors. The term "Custodian"
means any receiver, trustee, assignee, liquidator, custodian or similar official
under any Bankruptcy Law.
32
A Default under clauses (iv) and (v) of this Section 6.1 is not an
Event of Default until the Trustee or the Holders of at least 25% in aggregate
principal amount of the outstanding Notes notify the Issuer of the Default and
the Issuer does not cure such Default within the time specified in said clause
(iv) and (v) after receipt of such notice. Such notice must specify the
Default, demand that it be remedied and state that such notice is a "Notice of
Default".
The Issuer shall deliver to the Trustee, within 30 days after its
knowledge of the occurrence thereof, written notice in the form of an Officers'
Certificate of any Event of Default under clause (ix) of this Section 6.1 and
any event which with the giving of notice or the lapse of time would become an
Event of Default under clause (iv), (v) or (viii) of this Section 6.1 and what
action the Issuer is taking or proposes to take with respect thereto.
SECTION 6.2. Acceleration
------------
If an Event of Default (other than an Event of Default specified in
Section 6.1(vi) or (vii) with respect to the Issuer) occurs and is continuing,
the Trustee by notice to the Issuer, or the Holders of at least 25% in aggregate
principal amount at maturity of the outstanding Notes by notice to the Issuer,
may declare the principal of and accrued but unpaid interest on all the Notes to
be due and payable. Upon such a declaration, such principal and interest shall
be due and payable immediately. If an Event of Default specified in Section
6.1(vi) or (vii) with respect to the Issuer occurs and is continuing, the
principal of and accrued interest on all the Notes shall ipso facto become and
be immediately due and payable without any declaration or other act on the part
of the Trustee or any Holders. The Holders of a majority in aggregate principal
amount at maturity of the outstanding Notes by notice to the Trustee may rescind
an acceleration and its consequences if the rescission would not conflict with
any judgment or decree and if all existing Events of Default have been cured or
waived except nonpayment of principal or interest that has become due solely
because of acceleration and the Trustee has been paid all amounts then due to it
pursuant to Section 7.8. No such rescission shall affect any subsequent Default
or impair any right consequent thereto.
SECTION 6.3. Other Remedies
--------------
If an Event of Default occurs and is continuing, the Trustee may
pursue any available remedy to collect the payment of principal of or interest
on the Notes or to enforce the performance of any provision of the Notes or this
Indenture.
Subject to Section 6.5, the Trustee may maintain a proceeding even if
it does not possess any of the Notes or does not produce any of them in the
proceeding. A delay or omission by the Trustee or any Holder of Notes in
exercising any right or remedy accruing upon an Event of Default shall not
impair the right or remedy or constitute a waiver of or acquiescence in the
Event of Default. No remedy is exclusive of any other remedy. All available
remedies are, to the extent permitted by law, cumulative.
SECTION 6.4. Waiver of Past Defaults
-----------------------
Holders of a majority in aggregate principal amount at maturity of the
Notes then outstanding by notice to the Trustee may waive any past or existing
Default and its consequences
33
except (i) a Default in the payment of the principal of or interest on a Note or
(ii) a Default in respect of a provision that under Section 9.2 cannot be
amended without the consent of each Holder affected. When a Default is waived,
it is deemed cured, and any Event of Default arising therefrom shall be deemed
to have been cured, but no such waiver shall extend to any subsequent or other
Default or impair any consequent right.
SECTION 6.5. Control by Majority
-------------------
Upon provision of reasonable indemnity to the Trustee satisfactory
to the Trustee, the Holders of a majority in aggregate principal amount of the
Notes then outstanding may direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or of exercising any trust or
power conferred on the Trustee. However, the Trustee, which may conclusively
rely on opinions of counsel, may refuse to follow any direction that conflicts
with law or this Indenture or, subject to Section 7.1, that the Trustee
determines is unduly prejudicial to the rights of other Holders of Notes or
would involve the Trustee in personal liability; provided, however, that the
Trustee may take any other action deemed proper by the Trustee that is not
inconsistent with such direction.
SECTION 6.6. Limitation on Suits
-------------------
A Holder may not pursue any remedy with respect to this Indenture or
the Notes unless:
(i) the Holder gives to the Trustee previous written notice stating that
an Event of Default is continuing;
(ii) the Holders of at least 25% in aggregate principal amount at
maturity of the Notes then outstanding make a written request to the
Trustee to pursue the remedy;
(iii) such Holder or Holders offer to the Trustee reasonable security or
indemnity satisfactory to it against any loss, liability or expense;
(iv) the Trustee does not comply with the request within 60 days after
receipt of the request and the offer of security or indemnity; and
(v) the Holders of a majority in aggregate principal amount of the Notes
then outstanding have not given the Trustee a direction inconsistent
with such request within such 60-day period.
A Holder of Notes may not use this Indenture to prejudice the rights
of another Holder of Notes or to obtain a preference or priority over another
Holder of Notes.
SECTION 6.7. Rights of Holders to Receive Payment
------------------------------------
Notwithstanding Section 6.6 above or any other provision of this
Indenture, the right of any Holder to receive payment of the principal of and
interest on the Notes held by such Holder, on or after the respective due dates
expressed in the Notes, or to bring suit for the enforcement of any such payment
on or after such respective dates, shall not be impaired or
34
affected without the consent of such Holder.
SECTION 6.8. Collection Suit by Trustee
--------------------------
If an Event of Default specified in Section 6.1(i) or (ii) occurs and
is continuing, the Trustee may recover judgment in its own name and as trustee
of an express trust against the Issuer or the Guarantor for the whole amount
then due and owing (together with interest on any unpaid interest to the extent
lawful) and the amounts provided for in Section 7.8.
SECTION 6.9. Trustee May File Proofs of Claim
--------------------------------
The Trustee may file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee and the Holders of Notes allowed in any judicial proceedings relative to
the Issuer, the Guarantor, its creditors or its property and shall be entitled
and empowered to collect, receive and distribute any money or other securities
or property payable or deliverable on any such claims and to distribute the
same, and any Custodian in any such judicial proceeding is hereby authorized by
each Holder to make 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 its counsel, and any
other amounts then due the Trustee under Section 7.8.
SECTION 6.10. Priorities
----------
If the Trustee collects any money or property pursuant to this Article
VI, it shall pay out the money or property in the following order:
FIRST: to the Trustee for amounts then due under Section 7.8;
SECOND: to Holders of Notes for amounts due and unpaid on the Notes
for the principal, premium, if any, and interest, ratably, without
preference or priority of any kind, according to the amounts due and
payable on the Notes for the principal and interest, respectively; and
THIRD: to the Issuer or to such party as a court of competent
jurisdiction shall direct.
The Trustee may fix a record date and payment date for any payment to
Holders of Notes pursuant to this Section 6.10. At least 15 days before such
record date, the Issuer shall mail to each Holder of Notes and the Trustee a
notice that states the record date, the payment date and amount to be paid.
SECTION 6.11. 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 or omitted by
it as Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
35
attorneys' fees and expenses, against any party litigant in the suit, having due
regard to the merits and good faith of the claims or defenses made by the party
litigant. This Section 6.11 does not apply to a suit by the Trustee or a suit
by a Holder pursuant to Section 6.7.
ARTICLE VII
TRUSTEE
SECTION 7.1. Duties of Trustee
-----------------
(a) If an Event of Default has occurred and is continuing, the
Trustee shall exercise the rights and powers vested in it by this Indenture and
use the same degree of care and skill in their exercise as a prudent Person
would exercise or use under the circumstances in the conduct of such Person's
own affairs.
(b) Except during the continuance of an Event of Default:
the Trustee undertakes to perform such duties and only such duties as
are specifically set forth in this Indenture and the TIA and no implied
covenants or obligations shall be read into this Indenture against the Trustee;
and
in the absence of bad faith on its part, the Trustee may conclusively
rely, as to the truth of the statements and the correctness of the opinions
expressed therein, upon certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture. However, in the case of any
such certificates or opinions which by any provision hereof are specifically
required to be furnished to the Trustee, the Trustee shall examine the
certificates and opinions to determine whether or not they conform to the
requirements of this Indenture.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct, except that:
this paragraph does not limit the effect of paragraph (b) of this
Section 7.1;
the Trustee shall not be liable for any error of judgment made in good
faith by a Trust Officer unless it is proved that the Trustee was negligent in
ascertaining the pertinent facts; and
the Trustee shall not be liable with respect to any action it takes or
omits to take in good faith in accordance with a direction received by it
pursuant to Section 6.5.
(d) Whether or not therein expressly so provided, every provision of
this Indenture that in any way relates to the Trustee is subject to paragraphs
(a), (b) and (c) of this Section 7.1.
(e) Money held in trust by the Trustee need not be segregated from
other funds except to the extent required by law.
36
(f) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur 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 to believe that repayment
of such funds or adequate indemnity against such risk or liability is not
reasonably assured to it.
(g) 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 7.1 and to the provisions of the TIA.
SECTION 7.2. Rights of Trustee
-----------------
(a) The Trustee may conclusively rely upon, and shall be fully
protected from acting or refraining from acting, on any document believed by it
to be genuine and to have been signed or presented by the proper person. The
Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may request
an Officers' Certificate or an Opinion of Counsel or both. The Trustee shall not
be liable for any action it takes or omits to take in good faith in reliance on
the Officers' Certificate or Opinion of Counsel.
(c) The Trustee may act through agents and shall not be responsible
for the misconduct or negligence of any agent appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits
to take in good faith which it believes to be authorized or within its rights or
powers; provided, however, that the Trustee's conduct does not constitute
willful misconduct or negligence.
(e) The Trustee may consult with counsel of its selection, and the
advice or opinion of counsel with respect to legal matters relating to this
Indenture and the Notes shall be full and complete authorization and protection
from liability in respect to any action taken, omitted or suffered by it
hereunder in good faith and in accordance with the advice or opinion of such
counsel.
(f) 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 satisfactory to the
Trustee against the costs, expenses and liabilities which might be incurred by
it in compliance with such request or direction.
(g) The Trustee shall not be charged with knowledge of any Default or
Event of Default with respect to the Notes unless either (1) a Trust Officer
shall have actual knowledge of such Default or Event of Default or (2) written
notice of such Default or Event of Default making reference to this Indenture
and to the Notes shall have been given to the Trustee by the Issuer or by any
Holder of the Notes.
37
(h) The Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, 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 Issuer, personally or by agent or attorney at
the sole cost of the Issuer and shall incur no liability or additional liability
of any kind by reason of such inquiry or investigation.
(i) The Trustee may require any Paying Agent(s) to pay to it all sums
held by such Agent upon the occurrences of an Event of Default.
SECTION 7.3. Individual Rights of Trustee
----------------------------
The Trustee in its individual or any other capacity may become the
owner or pledgee of Notes and may otherwise deal with the Issuer or its
Affiliates with the same rights it would have if it were not Trustee.
Any Paying Agent, Registrar, co-registrar or co-paying agent may do
the same with like rights. However, the Trustee must comply with Sections 7.10
and 7.11.
SECTION 7.4. Money Held in Trust
-------------------
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed in writing with the Issuer.
SECTION 7.5. Trustee's Disclaimer
--------------------
The Trustee shall not be responsible for and makes no representation
as to the validity or adequacy of this Indenture or the Notes. It shall not be
accountable for the Issuer's use of the proceeds from the Notes, and it shall
not be responsible for any statement of the Issuer in this Indenture or in any
document issued in connection with the sale of the Notes or in the Notes other
than the Trustee's certificate of authentication.
SECTION 7.6. Notice of Defaults
------------------
If a Default or an Event of Default occurs and is continuing and if it
is known to the Trustee, the Trustee must mail to each Holder of Notes notice of
the Default within 90 days after it occurs. Except in the case of a Default in
payment of principal of, premium (if any) or interest on any Note, the Trustee
may withhold notice if and so long as a committee of its Trust Officers in good
faith determines that withholding notice is not opposed to the interests of the
Holders of Notes.
SECTION 7.7. Reports by Trustee to Holders
-----------------------------
As promptly as practicable after each May 15 beginning with May 15
following the date of this Indenture, the Trustee shall mail to each Holder of
Notes a brief report dated as of
38
such May 15 that complies with TIA Section 313(a). The Trustee also shall comply
with TIA Section 313(b). The Trustee shall promptly deliver to the Issuer a copy
of any report it delivers to Holders pursuant to this Section 7.7.
A copy of each report at the time of its mailing to Holders of Notes
shall be filed by the Trustee with the SEC and each stock exchange (if any) on
which the Notes are listed. The Issuer agrees to notify promptly the Trustee
whenever the Notes become listed on any stock exchange and of any delisting
thereof.
SECTION 7.8. Compensation and Indemnity
--------------------------
The Issuer shall pay to the Trustee from time to time such
compensation for its services as the Issuer and the Trustee shall from time to
time agree in writing. The Trustee's compensation shall not be limited by any
law on compensation of a trustee of an express trust. The Issuer shall
reimburse the Trustee upon request for all reasonable and documented fees and
expenses, including out-of-pocket expenses, incurred or made by it in connection
with the performance of its duties hereunder, including costs of collection, in
addition to such compensation for its services, except any such expense,
disbursement or advance as may arise from its negligence, willful misconduct or
bad faith, unless the Trustee shall have complied with the applicable standard
of care required by the TIA. Such expenses shall include the reasonable
compensation and documented out-of-pocket expenses, disbursements and advances
of the Trustee's agents, counsel, accountants and experts. The Trustee shall
provide the Issuer reasonable notice of any expenditure not in the ordinary
course of business; provided that prior approval by the Issuer of any such
expenditure shall not be a requirement for the making of such expenditure nor
for reimbursement by the Issuer thereof. The Issuer shall indemnify each of the
Trustee and any predecessor Trustees against any and all loss, damage, claim,
liability or expense and tax (including reasonable and documented attorneys'
fees and out-of-pocket expenses) (other than taxes applicable to the Trustee's
compensation hereunder) incurred by it in connection with the acceptance or
administration of this trust and the performance of its duties hereunder. The
Trustee shall notify the Issuer promptly of any claim for which it may seek
indemnity. Failure by the Trustee to so notify the Issuer shall not relieve the
Issuer of its obligations hereunder. The Issuer shall defend the claim and the
Trustee may have separate counsel, and the Issuer will pay the reasonable fees
and expenses of such counsel. The Issuer need not reimburse any expense or
indemnify against any loss, liability or expense incurred by the Trustee through
the Trustee's own willful misconduct, negligence or bad faith, unless the
Trustee shall have complied with the applicable standard of care required by the
TIA.
To secure the Issuer's payment obligations in this Section 7.8, the
Trustee shall have a lien prior to the Notes on all money or property held or
collected by the Trustee other than money or property held in trust to pay
principal of and interest on particular Notes.
When the Trustee incurs expenses after the occurrence of a Default
specified in Section 6.1(vi) or (vii) with respect to the Issuer, the expenses
are intended to constitute expenses of administration under the Bankruptcy Law,
provided, however, that this shall not affect the Trustee's rights as set forth
in the preceding paragraph or Section 6.10. The terms of this Section 7.8 shall
survive the termination of this Indenture and the removal or resignation of the
Trustee.
39
SECTION 7.9. Replacement of Trustee
----------------------
The Trustee may resign at any time with 30 days notice to the Issuer.
The Holders of a majority in principal amount of the Notes then outstanding, may
remove the Trustee with 30 days notice to the Trustee and the Issuer and may
appoint a successor Trustee. So long as no Default or Event of Default shall
have occurred and been outstanding within the previous 12 month period, the
Issuer may remove the Trustee at any time by appointing a successor Trustee that
complies with Section 7.10.
If the Trustee resigns, is removed by the Issuer or by the Holders of
a majority in principal amount of the Notes and such Holders do not reasonably
promptly appoint a successor Trustee, or if a vacancy exists in the office of
Trustee for any reason (the Trustee in such event being referred to herein as
the retiring Trustee), the Issuer shall promptly appoint a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Issuer. Thereupon the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Holders of Notes. The retiring Trustee shall promptly transfer
all property held by it as Trustee to the successor Trustee, subject to the lien
provided for in Section 7.8.
If a successor Trustee does not take office and deliver the written
notice contemplated by this Section 7.9 within 30 days after the retiring
Trustee resigns or is removed, the retiring Trustee or the Holders of 10% in
principal amount of the Notes may, at the expense of the Issuer petition any
court of competent jurisdiction for the appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any Holder of Notes
may petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee.
SECTION 7.10. Successor Trustee by Merger
---------------------------
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all its corporate trust business or assets to,
another corporation or banking association, the resulting, surviving or
transferee corporation without any further act shall be the successor Trustee,
provided that such corporation shall be eligible under this Article VII and TIA
Section 3.10(a).
In case at the time such successor or successors by merger, conversion
or consolidation to the Trustee shall succeed to the trusts created by this
Indenture any of the Notes shall have been authenticated but not delivered, any
such successor to the Trustee may adopt the certificate of authentication of any
predecessor trustee, and deliver such Notes so authenticated; and in case at
that time any of the Notes shall not have been authenticated, any successor to
the Trustee may authenticate such Notes either in the name of any predecessor
hereunder or in the name of the successor to the Trustee; and in all such cases
such certificates shall have the full
40
force which it is anywhere in the Notes or in this Indenture provided that the
certificate of the Trustee shall have.
SECTION 7.11. Eligibility; Disqualification
-----------------------------
The Trustee shall at all times satisfy the requirements of TIA Section
310(a). The Trustee shall have a combined capital and surplus of at least
$50,000,000 as set forth in its most recent published annual report of
condition. The Trustee shall comply with TIA Section 310(b); provided, however,
that there shall be excluded from the operation of TIA Section 310(b)(1) any
indenture or indentures under which other securities or certificates of interest
or participation in other securities of the Issuer are outstanding if the
requirements for such exclusion set forth in TIA Section 310(b)(1) are met.
SECTION 7.12. Preferential Collection of Claims Against Issuer
------------------------------------------------
The Trustee shall comply with TIA Section 311(a), excluding any
creditor relationship listed in TIA Section 311(b). A Trustee who has resigned
or been removed shall be subject to TIA Section 311(a) to the extent indicated.
ARTICLE VIII
DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 8.1. Discharge of Liability on Notes; Defeasance
-------------------------------------------
(a) When (i) the Issuer delivers to the Trustee all outstanding Notes
(other than Notes replaced pursuant to Section 2.7) for cancellation or (ii) all
outstanding Notes have become due and payable, whether at maturity or as a
result of the mailing of a notice of redemption pursuant to Article III hereof
or the Notes will become due and payable at their Stated Maturity within 91
days, or the Notes are to be called for redemption within 91 days under
arrangements satisfying the terms of this Indenture, and, in each case of this
clause (ii), the Issuer irrevocably deposits or causes to be deposited with the
Trustee funds sufficient to pay at maturity or upon redemption all outstanding
Notes, including interest thereon to maturity or such redemption date (other
than Notes replaced pursuant to Section 2.7), and if in either case the Issuer
pays all other sums payable hereunder by the Issuer, then this Indenture shall,
subject to Section 8.1(c), cease to be of further effect. The Trustee shall
acknowledge satisfaction and discharge of this Indenture on demand of the Issuer
accompanied by an Officers' Certificate and an Opinion of Counsel from the
Issuer that all conditions precedent provided herein for relating to
satisfaction and discharge of this Indenture have been complied with and at the
cost and expense of the Issuer.
(b) Subject to Sections 8.1(c) and 8.2, the Issuer at any time may
terminate (i) all of its obligations (and the obligations of the Guarantor under
the Notes, this Indenture and the Guarantee ("legal defeasance option") or (ii)
all of its obligations (and all of the obligations of the Guarantor) under
Sections 4.2 through 4.14 and the operation of Section 6.1(vi) (but only with
respect to a Significant Subsidiary), 6.1(vii) (but only with respect to a
Significant
41
Subsidiary) and 6.1(viii) ("covenant defeasance option"). The Issuer may
exercise its legal defeasance option notwithstanding its prior exercise of its
covenant defeasance option.
If the Issuer exercises its legal defeasance option, payment of the
Notes may not be accelerated because of an Event of Default. If the Issuer
exercises its covenant defeasance option, payment of the Notes may not be
accelerated because of an Event of Default specified in Section 6.1(iv), 6.1(vi)
(but only with respect to a Significant Subsidiary) 6.1(vii) (but only with
respect to a Significant Subsidiary) or 6.1(viii).
Upon satisfaction of the conditions set forth herein and upon request
of the Issuer, the Trustee shall acknowledge in writing the discharge of those
obligations that the Issuer terminates.
(c) Notwithstanding clauses (a) and (b) above, the Issuer's
obligations in Sections 2.3, 2.4, 2.5, 2.7, 4.1, Sections 4.2 through 4.14, 7.8,
7.9, 8.4, 8.5 and 8.6 (and the obligations of the Guarantor in respect of the
Guarantee with respect to the Notes) shall survive until the Notes have been
paid in full. Thereafter, the Issuer's obligations in Sections 7.8, 8.4 and 8.5
shall survive.
SECTION 8.2. Conditions to Defeasance
------------------------
The Issuer may exercise the legal defeasance option or the covenant
defeasance option only if:
(i) the Issuer irrevocably deposits or causes to be deposited in trust
with the Trustee money or U.S. Government Obligations which through
the scheduled payment of principal and interest in respect thereof in
accordance with their terms will provide cash at such times and in
such amounts as will be sufficient to pay principal and interest when
due on all outstanding Notes (except Notes replaced pursuant to
Section 2.7) to maturity or redemption, as the case may be;
(ii) the Issuer delivers to the Trustee a certificate from a nationally
recognized firm of independent accountants expressing their opinion
that the payments of principal and interest when due and without
reinvestment on the deposited U.S. Government Obligations plus any
deposited money without investment will provide cash at such times and
in such amounts as will be sufficient to pay principal and interest
when due on all outstanding Notes (except Notes replaced pursuant to
Section 2.7) to maturity or redemption, as the case may be;
(iii) 123 days pass after the deposit is made and during the 123-day period
no Default specified in Section 6.1(vi) or (vii) with respect to the
Issuer occurs which is continuing at the end of the period;
(iv) the deposit does not constitute a default under any other material
agreement binding on the Issuer;
(v) the Issuer delivers to the Trustee an Opinion of Counsel to the effect
that the trust
42
resulting from the deposit does not constitute, or is qualified as,
a regulated investment company under the Investment Company Act of
1940;
(vi) in the case of the legal defeasance option, the Issuer shall have
delivered to the Trustee an Opinion of Counsel stating that (i) the
Issuer has received from, or there has been published by, the IRS a
ruling, or (ii) since the date of this Indenture there has been a
change in the applicable federal income tax law, in either case to
the effect that, and based thereon such Opinion of Counsel shall
confirm that, the Holders of Notes will not recognize income, gain
or loss for federal income tax purposes as a result of such deposit
and defeasance and will be subject to federal income tax on the same
amounts, in the same manner and at the same times as would have been
the case if such deposit and defeasance had not occurred;
(vii) in the case of the covenant defeasance option, the Issuer shall have
delivered to the Trustee an Opinion of Counsel to the effect that
the Holders of Notes will not recognize income, gain or loss for
federal income tax purposes as a result of such covenant defeasance
and will be subject to federal income tax on the same amounts and in
the same manner and at the same times as would have been the case if
such deposit and covenant defeasance had not occurred; and
(viii) the Issuer delivers to the Trustee an Officers' Certificate and an
Opinion of Counsel, each stating that all conditions precedent to
the defeasance and discharge of the Notes as contemplated by this
Article VIII have been complied with.
Before or after a deposit, the Issuer may make arrangements
satisfactory to the Trustee for the redemption of Notes at a future date in
accordance with Article III.
SECTION 8.3. Application of Trust Money
--------------------------
The Trustee shall hold in trust money or U.S. Government Obligations
deposited with it pursuant to this Article VIII. It shall apply the deposited
money and the money from U.S. Government Obligations either directly or through
the Paying Agent as the Trustee may determine and in accordance with this
Indenture to the payment of principal of and interest on the Notes.
SECTION 8.4. Repayment to Issuer
-------------------
The Trustee and the Paying Agent shall promptly turn over to the
Issuer upon request any excess money or securities held by them at any time.
Subject to any applicable abandoned property law, the Trustee and
the Paying Agent shall pay to the Issuer upon written request any money held by
them for the payment of principal or interest that remains unclaimed for one
year after such principal and interest have become due and payable, and,
thereafter, Holders of Notes entitled to the money must look to the Issuer for
payment as general creditors.
43
SECTION 8.5. Indemnity for Government Obligations
------------------------------------
The Issuer and the Guarantor shall pay and shall indemnify the
Trustee against any tax, fee or other charge imposed on or assessed against
deposited U.S. Government Obligations or the principal and interest received on
such U.S. Government Obligations other than any such tax, fee or other charge
which by law is for the account of the Holders of the defeased Notes; provided
that the Trustee shall be entitled to charge any such tax, fee or other charge
to such Holder's account.
SECTION 8.6. Reinstatement
-------------
If the Trustee or Paying Agent is unable to apply any money or U.S.
Government Obligations in accordance with this Article VIII by reason of any
legal proceeding or by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, the Issuer's and the Guarantor's obligations under this Indenture,
the Notes and the Guarantee with respect to the Notes shall be revived and
reinstated as though no deposit had occurred pursuant to this Article VIII until
such time as the Trustee or Paying Agent is permitted to apply all such money or
U.S. Government Obligations in accordance with this Article VIII; provided,
however, that, (a) if the Issuer or the Guarantor has made any payment of
interest on or principal of any Notes following the reinstatement of their
obligations, the Issuer or the Guarantor shall be subrogated to the rights of
the Holders of such Notes to receive such payment from the money or U.S.
Government Obligations held by the Trustee or Paying Agent and (b) unless
otherwise required by any legal proceeding or any order or judgment of any court
or governmental authority, the Trustee or Paying Agent shall return all such
money and U.S. Government Obligations to the Issuer or the Guarantor promptly
after receiving a written request therefor at any time, if such reinstatement of
the Issuer's and the Guarantor's obligations has occurred and continues to be in
effect.
ARTICLE IX
AMENDMENTS
SECTION 9.1. Without Consent of Holders
--------------------------
The Issuer, the Guarantor and the Trustee may amend this Indenture,
the Notes or the Guarantee with respect to the Notes without notice to or
consent of any Holder of Notes:
(i) to cure any ambiguity, omission, defect or inconsistency;
(ii) to provide for the assumption of this Indenture by a Successor Issuer
in accordance with Article V;
(iii) to provide for uncertificated Notes in addition to or in place of
certificated Notes (provided, however, that the uncertificated Notes
are issued in registered form for purposes of Section 163(f) of the
Code or in a manner such that the uncertificated Notes are as
described in Section 163(f)(2)(B) of the Code);
44
(iv) to add guarantees with respect to the Notes;
(v) to secure the Notes;
(vi) to add to the covenants of the Issuer for the benefit of the Holders
of Notes or to surrender any right or power herein conferred upon
the Issuer or the Guarantor;
(vii) to make any change that does not adversely affect the rights of any
Holders of Notes; and
(viii) to comply with any requirements of the SEC in connection with
qualifying this Indenture under the TIA.
After an amendment under this Section 9.1 becomes effective, the
Issuer shall mail to Holders of Notes a notice briefly describing such
amendment. The failure to give such notice to all Holders of Notes, or any
defect therein, shall not impair or affect the validity of an amendment under
this Section 9.1.
SECTION 9.2. With Consent of Holders
-----------------------
The Issuer, the Guarantor and the Trustee may amend this Indenture,
the Notes or the Guarantee with respect to the Notes without notice to any
Holders of Notes but with the written consent of the Holders of at least a
majority in principal amount at maturity of the Notes then outstanding
(including consents obtained in connection with a tender offer or exchange for
Notes). However, without the consent of each Holder of an outstanding Note
affected, an amendment may not:
(i) reduce the amount of Notes whose Holders must consent to an
amendment;
(ii) reduce the rate of or extend the time for payment of interest on any
Note;
(iii) reduce the principal of or extend the Stated Maturity of any Note;
(iv) reduce the amount payable upon the redemption of any Note or change
the time at which any Note may be redeemed in accordance with
Article III;
(v) make any Note payable in currency other than that stated in the
Note;
(vi) impair the right of any Holder to receive payment of principal of
and interest on such Holder's Notes on or after the due dates
therefor or to institute suit for the enforcement of any payment on
or with respect to such Holder's Notes;
(vii) make any change to this Section 9.2;
(viii) make any change in the ranking or priority of the Notes that would
adversely affect the Holders of Notes; or
(ix) make any change in the Guarantee that would adversely affect the
Holders.
45
It shall not be necessary for the consent of the Holders under this
Section 9.2 to approve the particular form of any proposed amendment, but it
shall be sufficient if such consent approves the substance thereof.
After an amendment under this Section 9.2 becomes effective, the
Issuer shall mail to Holders of Notes a notice briefly describing such
amendment. The failure to give such notice to all Holders of Notes, or any
defect therein, shall not impair or affect the validity of an amendment under
this Section 9.2.
SECTION 9.3. Compliance with Trust Indenture Act
-----------------------------------
Every amendment to this Indenture or the Notes shall comply with the
TIA as then in effect.
SECTION 9.4. Revocation and Effect of Consents and Waivers
---------------------------------------------
A consent to an amendment or a waiver by a Holder of a Note shall bind
the Holder and every subsequent Holder of that Note or portion of the Note that
evidences the same debt as the consenting Holder's Note, even if notation of the
consent or waiver is not made on the Note. After an amendment or waiver becomes
effective, it shall bind every Holder of Notes.
The Issuer may, but shall not be obligated to, fix a record date for
the purpose of determining the Holders of Notes entitled to give their consent
or take any other action described above or required or permitted to be taken
pursuant to this Indenture. If a record date is fixed, then notwithstanding the
immediately preceding paragraph, those Persons who were Holders of Notes at such
record date (or their duly designated proxies), and only those Persons, shall be
entitled to give such consent or to revoke any consent previously given or to
take any such action, whether or not such Persons continue to be Holders after
such record date. No such consent shall be valid or effective for more than 120
days after such record date.
SECTION 9.5. Notation on or Exchange of Notes
--------------------------------
If an amendment changes the terms of a Note, the Trustee may require
the Holder of the Note to deliver it to the Trustee. The Trustee may place an
appropriate notation on the Note regarding the changed terms and return it to
the Holder. Alternatively, if the Issuer or the Trustee so determines, the
Issuer in exchange for the Note shall issue and the Trustee shall authenticate a
new Note that reflects the changed terms. Failure to make the appropriate
notation or to issue a new Note shall not affect the validity of such amendment.
SECTION 9.6. Trustee to Sign Amendments
--------------------------
The Trustee shall sign any amendment authorized pursuant to this
Article IX if the amendment does not materially and adversely affect the rights,
duties, liabilities or immunities of the Trustee. If it does, the Trustee may
but need not sign it. In signing such amendment the Trustee shall be entitled to
receive indemnity reasonably satisfactory to it and to receive, and (subject to
Section 7.1) shall be fully protected in relying upon, in addition to the
documents required by Section 11.4, an Officers' Certificate and an Opinion of
Counsel stating
46
that such amendment complies with the provisions of this Article IX; provided,
however, that Holders who do not consent, waive or agree to amend this Indenture
in the time frame set forth in such solicitation documents shall not be entitled
to any consideration offered for timely consent, waiver or amendment, even if
the consent, waiver or amendment is agreed to by sufficient Holders to approve
such consent, waiver or amendment to this Indenture.
SECTION 9.7. Payment for Consent
-------------------
None of the Issuer, the Guarantor or any affiliate of the Issuer
shall, directly or indirectly, pay or cause to be paid any consideration,
whether by way of interest, fee or otherwise, to any Holder for, or as an
inducement to any consent, waiver or amendment of any of the terms or provisions
of this Indenture or the Notes unless such consideration is offered to be paid
to all Holders that so consent, waive or agree to amend in the time frame set
forth in solicitation documents relating to such consent, waiver or agreement.
ARTICLE X
GUARANTEE
SECTION 10.1. Guarantee
---------
Subject to the next paragraph, until the Separation Date, the
Guarantor shall fully and unconditionally guarantee, on a senior unsecured
basis, to each Holder of a Note authenticated and delivered by the Trustee and
to the Trustee and its successors and assigns, irrespective of the validity and
enforceability of this Indenture, the Notes or the Obligations of the Issuer
under this Indenture or the Notes, that: (i) the principal of, premium, if any,
and interest, if any, on the Notes will be paid in full when due, whether at the
maturity or interest payment or redemption date, by acceleration, call for
redemption, Change in Control Offer or otherwise, and interest on the overdue
principal of, premium, and interest, if any, on the Notes and all other
Obligations of the Issuer to the Holders or the Trustee under this Indenture or
the Notes will be promptly paid in full or performed, all in accordance with the
terms of this Indenture and the Notes; (ii) in case of any extension of time of
payment or renewal of any Notes or any of such other Obligations, they will be
paid in full when due or performed in accordance with the terms of the extension
or renewal, whether at maturity, by acceleration or otherwise; and (iii) any and
all costs and expenses (including reasonable and documented attorneys' fees)
incurred by the Trustee or any Holder in enforcing any rights under the
Guarantee with respect to the Notes will be paid. Failing payment when due of
any amount so guaranteed for whatever reason, the Guarantor will be obligated
(subject to any grace periods allowed pursuant to Section 6.1 hereof) to pay the
same whether or not such failure to pay has become an Event of Default which
could cause acceleration pursuant to Section 6.2 hereof. An Event of Default
under this Indenture or the Notes shall constitute an event of default under the
Guarantee of the Notes, and shall entitle the Holders of Notes to accelerate the
Obligations of the Guarantor hereunder in the same manner and to the same extent
as the Obligations of the Issuer. The Guarantor agrees that its Obligations
hereunder shall be unconditional, irrespective of the validity, regularity or
enforceability of the Notes or this Indenture, the absence of any action to
enforce the same, any waiver or consent by any Holder of the Notes with respect
to any provisions hereof or thereof, the recovery of any judgment against the
Issuer, any action to enforce the same or any other
47
circumstance (other than payment) that might otherwise constitute a legal or
equitable discharge or defense of the Guarantor. The Guarantor hereby waives
diligence, presentment, demand of payment, filing of claims with a court in the
event of insolvency or bankruptcy of the Issuer, protest, notice and all demands
whatsoever and covenants that its Guarantee with respect to the Notes will not
be discharged except by complete performance of its Obligations under the Notes
and this Indenture. Notwithstanding the provisions of Section 10.2, if any
Holder or the Trustee is required by any court or otherwise to return to the
Issuer, the Guarantor or any custodian, trustee, liquidator or other similar
official acting in relation to either the Issuer or the Guarantor any amount
paid by any such entity to the Trustee or such Holder, this Guarantee of the
Notes, to the extent theretofore discharged, shall be reinstated in full force
and effect. The Guarantor agrees that it shall not be entitled to any right of
subrogation in relation to the Holder in respect of any Obligations guaranteed
hereby until payment in full of all Obligations guaranteed hereby. The Guarantor
agrees that, as between it, on the one hand, and the Holders of Notes and the
Trustee, on the other hand, (x) the maturity of the Obligations guaranteed
hereby may be accelerated as provided in Article VI hereof for the purposes
hereof, notwithstanding any stay, injunction or other prohibition preventing
such acceleration in respect of the Obligations guaranteed hereby, and (y) in
the event of any acceleration of such Obligations as provided in Article VI
hereof, such Obligations (whether or not due and payable) shall forthwith become
due and payable by the Guarantor for the purpose of such Guarantee of the Notes.
If the Separation Date does not occur on or before December 31, 2002
or if the Board of Directors determines not to proceed with the Separation, the
Guarantee of the Notes by the Guarantor shall stay in effect until the Notes
have been paid in full.
Each Holder of a Note by its acceptance thereof agrees to and shall be
bound by the provisions of this Section 10.1.
SECTION 10.2. Release of Guarantor
--------------------
Upon the occurrence of the earlier of (i) the Separation Date (if the
Separation Date occurs on or prior to December 31, 2002) or (ii) the payment in
full of all of the Issuer's Obligations under the Notes and this Indenture
(other than with respect to any indemnification obligations), the Guarantor
shall be released from and relieved of its Obligations with respect to the Notes
under this Article X.
ARTICLE XI
MISCELLANEOUS
SECTION 11.1. Trust Indenture Act Controls
----------------------------
If any provision of this Indenture limits, qualifies or conflicts with
another provision which is required to be included in this Indenture by the TIA,
the provision required by the TIA shall control.
48
SECTION 11.2. Notices
-------
Any notice or communication shall be in writing and be effective upon
receipt or refusal of delivery at the following addresses:
if to the Issuer:
United States Steel LLC
000 Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000-0000
Attention: Vice President - Finance and Accounting
Facsimile: 000-000-0000
if to the Trustee:
The Bank of New York
000 Xxxxxxx Xxxxxx
Xxxxx 00 Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Trustee Administration
Facsimile: (000) 000-0000 or (000) 000-0000
The Issuer or the Trustee by notice to the others may designate additional
or different addresses for subsequent notices or communications.
Any notice or communication mailed to a Holder of Notes shall be mailed to
such Holder of Notes at such Holder's of address as it appears on the
registration books of the Registrar and shall be sufficiently given if so mailed
within the time prescribed.
Failure to mail a notice or communication to a Holder of Notes or any
defect in it shall not affect its sufficiency with respect to other Holders of
Notes. If a notice or communication is mailed in the manner provided above, it
is duly given, whether or not the addressee receives it.
SECTION 11.3. Communication by Holders with Other Holders
-------------------------------------------
Holders of Notes may communicate pursuant to TIA Section 312(b) with
other Holders of Notes with respect to their rights under this Indenture or the
Notes. The Issuer, the Trustee, the Registrar and anyone else shall have the
protection of TIA Section 312(c).
SECTION 11.4. Certificate and Opinion as to Conditions Precedent
--------------------------------------------------
Upon any request or application by the Issuer to the Trustee to take
or refrain from taking any action under this Indenture, the Issuer shall furnish
to the Trustee:
(i) an Officers' Certificate in form and substance reasonably satisfactory
to the Trustee stating that, in the opinion of the signer, all
conditions precedent, if any,
49
provided for in this Indenture relating to the proposed action have
been complied with; and
(ii) an Opinion of Counsel in form and substance reasonably satisfactory to
the Trustee stating that, in the opinion of such counsel, all such
conditions precedent have been complied with.
SECTION 11.5. Statements Required in Certificate or Opinion
---------------------------------------------
Each certificate or opinion with respect to compliance with a covenant
or condition provided for in this Indenture shall include:
(i) a statement that the individual making such certificate or opinion has
read such covenant or condition;
(ii) 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;
(iii) a statement that, in the opinion of 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
(iv) a statement as to whether or not, in the opinion of such individual,
such covenant or condition has been complied with.
SECTION 11.6. When Notes Disregarded
----------------------
In determining whether the Holders of the required principal amount of
Notes have concurred in any direction, waiver or consent, Notes owned by the
Issuer or by any Person directly or indirectly controlling or controlled by or
under direct or indirect common control with the Issuer shall be disregarded and
deemed not to be outstanding, except that, for the purpose of determining
whether the Trustee shall be protected in relying on any such direction, waiver
or consent, only Notes which a Trust Officer of the Trustee knows are so owned
shall be so disregarded. Also, subject to the foregoing, only Notes outstanding
at the time shall be considered in any such determination.
SECTION 11.7. Rules by Trustee, Paying Agent and Registrar
--------------------------------------------
The Trustee may make reasonable rules for action by or at a meeting of
Holders of Notes. The Registrar and the Paying Agent may make reasonable rules
for their functions.
50
SECTION 11.8. Legal Holidays
--------------
A "Legal Holiday" is a Saturday, a Sunday or a day on which banking
institutions are not required to be open in the State of New York. If a payment
date is a Legal Holiday, payment shall be made on the next succeeding day that
is not a Legal Holiday, and no interest shall accrue on such payment for the
intervening period. If a regular record date is a Legal Holiday, the record
date shall not be affected.
SECTION 11.9. GOVERNING LAW. THIS INDENTURE, THE NOTES AND THE
-------------
GUARANTEE OF THE NOTES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK.
SECTION 11.10. No Recourse Against Others
--------------------------
No director, officer, employee, member, incorporator or stockholder of
the Issuer or the Guarantor, as such, shall have any liability for any
obligations of the Issuer or the Guarantor under the Notes, the Guarantee or
this Indenture or for any claim based on, in respect of, or by reason of such
obligations or their creation. Each Holder of Notes by accepting a Note waives
and releases all such liability. This waiver and release are part of the
consideration for issuance of the Notes.
SECTION 11.11. Successors
----------
All agreements of the Issuer and the Guarantor in this Indenture and
the Notes shall bind their successors. All agreements of the Trustee in this
Indenture shall bind its successors.
SECTION 11.12. Multiple Originals
------------------
The parties may sign any number of copies of this Indenture. Each
signed copy shall be an original, but all of them together represent the same
agreement. One signed copy is enough to prove this Indenture.
SECTION 11.13. Table of Contents; Cross-Reference Sheet; Headings
--------------------------------------------------
The table of contents, cross-reference sheet and headings of the
Articles and Sections of this Indenture have been inserted for convenience of
reference only, are not intended to be considered a part hereof and shall not
modify or restrict any of the terms or provisions hereof.
SECTION 11.14. Severability
------------
In case any provision in this Indenture or in the Notes shall be
invalid, illegal or unenforceable, in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions shall not in any way be affected or impaired thereby.
51
IN WITNESS WHEREOF, the parties have caused this Indenture to be duly
executed as of the date first written above.
Issuer:
------
UNITED STATES STEEL LLC
By:___________________________
Name:
Title:
Guarantor:
---------
USX CORPORATION
By:___________________________
Name:
Title:
Trustee:
-------
THE BANK OF NEW YORK
By:___________________________
Name:
Title:
EXHIBIT A
(Face of Note)
[Insert the Global Note Legend, if applicable pursuant to the provisions of the
Indenture]
UNITED STATES STEEL LLC
No. ___ Principal Amount $________
CUSIP NO. ________________
[____]% Senior Quarterly Income Debt Securities due 2031 (Notes)
United States Steel LLC, a Delaware limited liability company, promises to
pay to Cede & Co., or registered assigns, the principal sum of _________________
Dollars on December 31, 2031.
Interest Payment Dates: March 31, June 30, September 30 and December 31.
Record Dates: March 15, June 15, September 15 and December 15.
Additional provisions of this Note are set forth on the other side of this
Note.
Dated: UNITED STATES STEEL LLC
By:____________________
Name:
Title:
A-1
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
This is one of the Notes
referred to in the Indenture.
THE BANK OF NEW YORK,
as Trustee
By:_________________________
Authorized Signatory
A-2
(Reverse of Note)
[___]% Senior Quarterly Income Debt Securities due 2031
1. Interest
United States Steel LLC, a Delaware limited liability company (the
"Issuer"), promises to pay interest on the principal amount of this Note at the
rate per annum shown above. Interest on the principal amount of this Note shall
accrue from the Issue Date.
The Issuer shall pay accrued interest quarterly on each March 31, June 30,
September 30 and December 31 commencing March 31, 2002 or if any such day is not
a Business Day (as defined in the Indenture referred to below), on the next
Business Day. The Issuer shall pay interest on overdue principal at 1% per
annum in excess of the rate borne by the Notes to the extent lawful. Interest
will be computed on the basis of a 360-day year of twelve 30-day months.
2. Method of Payment
By at least 11:00 a.m. prevailing Eastern (U.S.) time on the date on which
any principal of or interest on any Note is due and payable, the Issuer shall
irrevocably deposit with the Trustee or the Paying Agent money sufficient to pay
such principal and/or interest. The Issuer will pay interest (except defaulted
interest) to the Persons who are registered Holders of Notes at the close of
business on March 15, June 15, September 15 or December 15 next preceding the
interest payment date even if Notes are cancelled, repurchased or redeemed after
the record date and on or before the interest payment date. Holders must
surrender Notes to a Paying Agent to collect principal payments. The Issuer
will pay principal and interest in money of the United States that at the time
of payment is legal tender for payment of public and private debts by wire
transfer of immediately available funds to the U.S. dollar accounts with a bank
in the United States specified by the Holder hereof or, if no such account is
specified, by mailing a check to the Holder's registered address.
3. Paying Agent and Registrar
Initially, the Issuer will act as Paying Agent and Registrar. The Issuer
may appoint and change any Paying Agent, Registrar or co-registrar without
notice to any Holder of Notes. The Issuer or any Person that is a domestically
incorporated wholly owned subsidiary of the Issuer may act as Paying Agent.
4. Indenture
The Issuer issued the Notes under an Indenture, dated as of [_________]
[__], 2001 (as it may be amended or supplemented from time to time in accordance
with the terms thereof, the "Indenture"), among the Issuer, USX Corporation, a
Delaware corporation (the "Guarantor"), and The Bank of New York, a New York
banking corporation (the "Trustee"). The terms of the Notes include those
stated in the Indenture and those made part of the Indenture by reference to the
Trust Indenture Act of 1939, as amended (15 U.S.C. Sections 77aaa-77bbbb) as in
effect on the date of the Indenture (the "TIA"). Capitalized terms used herein
and not defined herein have the meanings ascribed thereto in the Indenture. The
Notes are subject to all such terms, and
A-3
Holders of Notes are referred to the Indenture and the TIA for a statement of
those terms.
The Notes are senior unsecured obligations of the Issuer limited to
$365,000,000 aggregate principal amount at maturity (subject to Section 2.1(a)
of the Indenture, which, inter alia, allows for the issuance of Additional Notes
in some circumstances).
The Notes include the Initial Notes and any Additional Notes actually
issued. The Initial Notes and any Additional Notes actually issued are treated
as a single class of securities under the Indenture. The Indenture imposes
certain limitations on the Issuer's ability to incur certain Mortgages and enter
into certain sale and leaseback transactions.
5. Optional Redemption
Except as set forth in the following paragraphs, the Notes will not be
redeemable at the option of the Issuer prior to the Stated Maturity.
At any time on or after December 31, 2006, the Issuer may at its
option on one or more occasions, upon not less than 30 nor more than 60 days'
notice, redeem the Notes, in whole or in part, at a redemption price (expressed
as a percentage of principal amount) of 100%, plus accrued and unpaid interest
to the redemption date. In addition, the Issuer may at any time repurchase
Notes at any price in the open market and may hold, resell or surrender such
Notes to the Trustee for cancellation.
Further, at any time on or prior to December 31, 2002, the Issuer may,
at its option, give written notice to redeem the Notes, which notice shall be no
less than 30 nor more than 60 days prior to the redemption date, in whole or in
part at a redemption price (expressed as a percentage of principal amount) of
100%, plus accrued and unpaid interest to the redemption date; provided that
(i) the Board of Directors shall have determined not to proceed with the
Separation (and the Guarantee of the Guarantor will stay in effect
until the Notes are fully paid); and
(ii) if the Issuer elects to redeem the Notes in part, at least a minimum
aggregate principal amount of Notes required to maintain listing of
the Notes on the New York Stock Exchange, under the rules and
regulations thereof, remains outstanding.
6. Notice of Redemption
Notice of redemption will be mailed at least 30 days but not more than 60
days before the redemption date by first-class mail to each Holder of Notes to
be redeemed at such Holder's registered address. Notes in denominations of
principal amount larger than $25.00 may be redeemed in part but only in whole
multiples of $25.00. If money sufficient to pay the redemption price of and
accrued and unpaid interest on all Notes (or portions thereof) to be redeemed on
the redemption date is deposited with the Paying Agent on or before the
redemption date and certain other conditions are satisfied, on and after such
date interest ceases to accrue on
A-4
such Notes (or such portions thereof) called for redemption.
7. Change in Control Offer
Upon a Change in Control, any Holder of Notes will have the right to cause
the Issuer to repurchase all or any part of the Notes of such Holder at a
repurchase price equal to 100% of the principal amount thereof as of the date of
repurchase, plus accrued and unpaid interest, if any, to the date of repurchase
as provided in, and subject to the terms and conditions of, the Indenture,
including the right of Holders of a majority in aggregate principal amount of
Notes outstanding at the time of such Change in Control to waive or modify the
Issuer's obligations with respect to the Change in Control Offer.
8. Denominations; Transfer; Exchange
The Notes are in registered form without coupons in denominations of
principal amount of $25.00 and whole multiples of $25.00. A Holder may
register, transfer or exchange Notes in accordance with the Indenture. The
Registrar may require a Holder, among other things, to furnish appropriate
endorsements or transfer documents and to pay any taxes and fees required by law
or permitted by the Indenture. The Registrar need not register the transfer of
or exchange (i) any Notes selected for redemption (except, in the case of a Note
to be redeemed in part, the portion of the Note not to be redeemed) for a period
beginning 15 business days before a selection of Notes to be redeemed and ending
on the date of such selection or (ii) any Notes for a period beginning on a
record date and ending on the next succeeding interest payment date.
9. Persons Deemed Owners
The registered holder of this Note may be treated as the owner of it for
all purposes.
10. Unclaimed Money
If money for the payment of principal or interest remains unclaimed for one
year after the date of payment of principal and interest, the Trustee or Paying
Agent shall pay the money back to the Issuer at its request unless an abandoned
property law designates another Person. After any such payment, Holders
entitled to the money must look only to the Issuer and not to the Trustee for
payment.
11. Defeasance
Subject to certain conditions set forth in the Indenture, the Issuer at any
time may terminate some or all of its obligations under the Notes and the
Indenture if the Issuer deposits with the Trustee money or U.S. Government
Obligations for the payment of principal of and interest on the Notes to
redemption or maturity, as the case may be.
12. Amendment, Waiver
Subject to certain exceptions set forth in the Indenture, (i) the Indenture
or the Notes may be amended with the written consent of the Holders of at least
a majority in principal amount at maturity of the outstanding Notes and (ii) any
default or noncompliance with any provision may
A-5
be waived with the written consent of the Holders of a majority in principal
amount at maturity of the outstanding Notes. Subject to certain exceptions set
forth in the Indenture, without the consent of any Holder of Notes, the Issuer
and the Trustee may amend the Indenture or the Notes to cure any ambiguity,
omission, defect or inconsistency, or to provide for the assumption of the
Indenture by a Successor Issuer pursuant to Article V of the Indenture, or to
provide for uncertificated Notes in addition to or in place of certificated
Notes, or to add guarantees with respect to the Notes or to secure the Notes, or
to add additional covenants of or surrender rights and powers conferred on the
Issuer and the Guarantor, or to make any change that does not adversely affect
the rights of any Holder of Notes, or to comply with any requirements of the SEC
in connection with qualifying the Indenture under the TIA.
13. Defaults and Remedies
Under the Indenture, Events of Default include (i) a default in any payment
of interest on any Note when due, continued for 30 days, (ii) a default in the
payment of principal of any Note when due at its Stated Maturity, upon optional
redemption, upon a Change in Control Offer, upon declaration of acceleration or
otherwise, (iii) the failure by the Issuer to comply with its obligations under
Article V of the Indenture, (iv) the failure by the Issuer to comply for 30 days
after notice with any of its obligations under Section 4.4 or any of Sections
4.9 through 4.14 of the Indenture (in each case, other than a failure to
repurchase Notes when required pursuant to Section 4.10 of the Indenture, which
failure shall constitute an Event of Default under clause (ii) above), (v) the
failure by the Company or the Guarantor to comply for 60 days after notice with
its other agreements contained in the Indenture, (vi) certain events of
bankruptcy, insolvency or reorganization of the Issuer, the Guarantor or any
Significant Subsidiary of the Issuer, (vii) any judgment or decree for the
payment of money in excess of $50 million is rendered against the Issuer or any
Significant Subsidiary of the Issuer, remains outstanding for a period of 60
days following such judgment and is not discharged, waived or stayed within 10
days after notice, or (viii) prior to the Separation, the Guarantee with respect
to the Notes ceases for any reason to be in full force and effect (other than in
accordance with its terms) or the Guarantor denies or disaffirms its obligations
under the Guarantee. If an Event of Default occurs and is continuing, the
Trustee or the Holders of at least 25% in aggregate principal amount of the
outstanding Notes may declare all the Notes to be due and payable immediately.
Certain events of bankruptcy or insolvency are Events of Default that will
result in the Notes being due and payable immediately upon the occurrence of
such Events of Default.
Holders of the Notes may not enforce the Indenture or the Notes except as
provided in the Indenture. The Trustee may refuse to enforce the Indenture or
the Notes unless it receives reasonable indemnity or security. Subject to
certain limitations, Holders of a majority in principal amount of the Notes may
direct the Trustee in its exercise of any trust or power. The Trustee may
withhold from Holders of Notes notice of any continuing Default or Event of
Default (except a Default or Event of Default in payment of principal or
interest) if it determines that withholding notice is not opposed to their
interest.
14. Guarantee of the Notes
Subject to the next paragraph, prior to the Separation, payment of
principal, premium, if any, and interest, if any (including interest on overdue
principal and overdue interest, if lawful),
A-6
on the Notes is fully and unconditionally guaranteed by the Guarantor pursuant
to, and subject to the terms of, Article X of the Indenture.
If the Separation Date does not occur on or before December 31, 2002 or if
the Board of Directors determines not to proceed with the Separation, the
Guarantee of the Notes by the Guarantor shall stay in effect until the Notes
have been paid in full.
15. Trustee Dealings with the Issuer
Subject to certain limitations set forth in the Indenture, the Trustee
under the Indenture, in its individual or any other capacity, may become the
owner or pledgee of Notes and may otherwise deal with and collect obligations
owed to it by the Issuer or its Affiliates and may otherwise deal with the
Issuer or its Affiliates with the same rights it would have if it were not
Trustee.
16. No Recourse Against Others
No director, officer, employee, member, incorporator or stockholder of the
Issuer or the Guarantor, as such, shall have any liability for any obligations
of the Issuer under the Notes, the Guarantee, the Indenture or for any claim
based on, in respect of, or by reason of such obligations or their creation.
Each Holder of Notes by accepting a Note waives and releases all such liability.
This waiver and release are part of the consideration for issuance of the Notes.
17. Authentication
This Note shall not be valid until an authorized signatory of the Trustee
(or an authenticating agent acting on its behalf) manually signs the certificate
of authentication on the other side of this Note.
18. Abbreviations
Customary abbreviations may be used in the name of a Holder of Notes or an
assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants by the
entirety), JT TEN (=joint tenants with rights of survivorship and not as tenants
in common), CUST (=custodian) and U/G/M/A (=Uniform Gift to Minors Act).
19. CUSIP Numbers
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures the Issuer has caused CUSIP numbers to be
printed on the Notes and has directed the Trustee to use CUSIP numbers in
notices of redemption as a convenience to Holders of Notes. No representation
is made as to the accuracy of such numbers either as printed on the Notes or as
contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
A-7
GOVERNING LAW
THIS NOTE AND THE GUARANTEE OF THE NOTE SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
A-8
NOTATION RELATING TO GUARANTEE
The undersigned (the "Guarantor") has fully and unconditionally
guaranteed, until the Separation, on a senior unsecured basis (the "Guarantee"),
that: (i) the principal of, premium, if any, and interest, if any, on the Notes
will be paid in full when due, whether at the maturity or interest payment or
redemption date, by acceleration, call for redemption, offer to purchase or
otherwise, and interest on the overdue principal of, premium, and interest, if
any, on the Notes and all other Obligations of the Issuer to the Holders of the
Notes or the Trustee under the Indenture or the Notes will be promptly paid in
full or performed, all in accordance with Article X of the Indenture and the
Notes; (ii) in case of any extension of time of payment or renewal of any Notes
or any of such other Obligations, they will be paid in full when due or
performed in accordance with the terms of the extension or renewal, whether at
maturity, by acceleration or otherwise; and (iii) any and all costs and expenses
(including reasonable and documented attorneys' fees) incurred by the Trustee or
any Holder of the Notes in enforcing any rights under this Guarantee with
respect to the Notes will be paid.
If the Separation Date does not occur on or before December 31, 2002
or if the Board of Directors determines not to proceed with the Separation, this
Guarantee shall stay in effect until the Notes have been paid in full.
The obligations of the undersigned to the Holders of the Notes and to
the Trustee are expressly set forth in Article X to the Indenture and reference
is hereby made to the Indenture for the precise terms of the Guarantee.
Date: USX CORPORATION
____________________
By:
Title:
A-9
ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign and transfer this Note to:
--------------------------------------
--------------------------------------
--------------------------------------
(Print or type assignee's name, address and zip code)
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint ______________ as agent to transfer this Note on the
books of the Issuer. The agent may substitute another to act for him.
____________________________________________________________________________
Date: _________________ Your Signature:__________________________
Sign exactly as your name appears on
the face of this Note.
Signature Guarantee:____________________
(Signature must be guaranteed by a participant in a recognized Signature
Guarantee Medallion Program or other signature guarantor program reasonably
acceptable to the Trustee)
A-10
[TO BE ATTACHED TO GLOBAL NOTES]
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE
The following increases or decreases in this Global Note have been made:
Amount of Amount of
decrease in increase in Principal Amount of Signature of
Principal Amount Principal Amount this Global Note authorized officer
Date of of this Global of this Global following such of Trustee or Notes
Exchange Note Note decrease or increase Custodian
-------- ----------------- ---------------- -------------------- -------------------
A-11
EXHIBIT B
FORM OF CHANGE IN CONTROL PURCHASE NOTICE
[Date]
United States Steel LLC
000 Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000-0000
Ladies and Gentlemen:
This represents a Change in Control Purchase Notice as defined in and
pursuant to Section 4.10(c) of the Indenture, dated as of , ,
among United States Steel LLC (the "Issuer"), USX Corporation (the "Guarantor")
and The Bank of New York, as Trustee (the "Trustee"), relating to the [___]%
Senior Quarterly Income Debt Securities due 2031 of the Issuer (the "Notes").
(1) The aggregate principal amount of the Notes which the
undersigned will deliver to be purchased is:
_____________________________________________________
_____________________________________________________
(2) The undersigned elects to exercise the undersigned's option
to have the above-designated Notes purchased pursuant to the
terms and conditions specified in the Notes.
Very truly yours,
B-1
EXHIBIT C
FORM OF WITHDRAWAL OF CHANGE IN CONTROL PURCHASE NOTICE
[Date]
United States Steel LLC
000 Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000-0000
Ladies and Gentlemen:
The undersigned hereby withdraws the Change in Control Purchase Notice
as defined in and pursuant to Section 4.10(c) of the Indenture, dated as of ,
, among United States Steel LLC (the "Issuer"), USX Corporation (the
"Guarantor") and The Bank of New York, as Trustee (the "Trustee"), relating to
the [__]% Senior Quarterly Income Debt Securities due 2031 of the Issuer (the
"Notes"), previously delivered to you by the undersigned.
The following information is supplied by the undersigned with respect
to the election of withdrawal:
The aggregate principal amount of the Notes in respect of which
such notice of withdrawal is being submitted is:
________________________________________________________________
________________________________________________________________
Very truly yours,
C-1
