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Exhibit 10.(a)
ISSUING AND PAYING AGENCY AGREEMENT
AGREEMENT made on the 26th day of April, 1994 between THE FIRST
NATIONAL BANK OF BOSTON, a national banking association maintaining its
principal corporate trust office at 150 Royall Street, Canton, Massachusetts
02021 (the "Issuing and Paying Agent"), and USX CORPORATION, a Delaware
corporation having its principal place of business at 600 Grant Street,
Pittsburgh, Pennsylvania 15219-4776 (the "Issuer").
W I T N E S S E T H :
WHEREAS, the Issuer has authorized and may from time to time issue its
Medium-Term Notes, Series C (the "Notes") that are fixed rate notes ("Fixed
Rate Notes") and floating rate notes ("Floating Rate Notes"); and
WHEREAS, the Issuer desires to appoint the Issuing and Paying Agent as
Paying Agent, Issuing Agent and Debt Security registrar with respect to such
Notes as hereinafter set forth; and
WHEREAS, the Issuing and Paying Agent agrees to act as such Issuing
and Paying Agent, Issuing Agent and Debt Security registrar.
NOW, THEREFORE, in consideration of the premises, the mutual promises
hereinafter contained, and intending to be legally bound hereby, the Issuing
and Paying Agent and the Issuer hereby covenant and agree as follows:
ARTICLE I
APPOINTMENT
1. The Issuer hereby appoints the Issuing and Paying Agent as its
Issuing and Paying Agent, Issuing Agent and Debt Security registrar with
respect to the Notes pursuant to the Indenture dated as of March 15, 1993
between the Issuer and PNC Bank, National Association, as Trustee, to perform
the duties hereinafter set forth.
2. The Issuing and Paying Agent hereby accepts such appointments and
agrees to perform the duties hereinafter set forth.
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ARTICLE II
ISSUANCE OF NOTES
1. The Issuing and Paying Agent hereby agrees to issue and
authenticate the Notes in accordance with the procedures set forth in Exhibit
C ("Administrative Procedures") to the Distribution Agreement dated April 26,
1994, among the Issuer and the Agents defined therein (the "Distribution
Agreement"), a copy of which Exhibit is attached hereto and made a part hereof.
2. The Issuer hereby agrees that it will promptly notify the Issuing
and Paying Agent of any amendments or modifications to the Distribution
Agreement and that it will not effect any such amendments or modifications
which adversely affect the Issuing and Paying Agent without the prior written
consent of the Issuing and Paying Agent.
ARTICLE III
DEPOSIT OF FUNDS
1. Not later than five (5) business days prior to any interest
payment date described in a Note or Notes, the Issuer shall furnish, or cause
to be furnished, in writing or via telephone promptly confirmed in writing, to
the Issuing and Paying Agent the following information with respect to said
interest payment date and to such Notes: (a) the aggregate amount of interest
to be paid on such interest payment date with respect to any Fixed Rate Note
and the amount of such interest to be paid per $1,000 of principal outstanding;
and (b) such other information as the Issuing and Paying Agent may request from
time to time.
2. Not later than five (5) business days prior to any date on which
principal and premium, if any, is to be paid by the Issuing and Paying Agent
with respect to any of the Notes, whether at maturity, by acceleration, or
otherwise, the Issuer shall furnish, or cause to be furnished, in writing or
via telephone promptly confirmed in writing, to the
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Issuing and Paying Agent a statement specifying such payment date and
containing information with respect to such payment in the nature of the
information described in the preceding paragraph, including such information as
the Issuing and Paying Agent may request from time to time.
3. On or prior to noon, prevailing Eastern time, on each payment date
described in any of the preceding paragraphs of this Article, the Issuer shall
deposit, or cause to be deposited, with the Issuing and Paying Agent finally
collected funds, or funds which have been ordered transferred on the Federal
Reserve System and for which a confirmation number has been issued, in an
amount equal to the aggregate amount to be paid by the Issuing and Paying Agent
on such payment date. In the event the amount deposited with respect to a
payment date is less than the sum of the aggregate amounts specified in
statements furnished to the Issuing and Paying Agent pursuant to this Article
with respect to such payment date, the Issuing and Paying Agent shall promptly
notify the Issuer, and shall effect no payments with respect to such payment
date until such discrepancy has been resolved. Until paid as hereinafter
provided, the Issuing and Paying Agent shall hold such amounts in trust for the
benefit of the holders of the Notes. The Issuing and Paying Agent shall pay to
the Issuer any interest actually earned on or with respect to amounts held or
deposited hereunder prior to the relevant payment date, and invested as
provided below, but shall be under no duty or obligation to otherwise pay
interest or earnings on such amounts or to collateralize or pledge any security
therefor, or to segregate such amounts, except as required by law. Any
investments of such deposited amounts by the Issuing and Paying Agent shall be
at the written direction of the Issuer.
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ARTICLE IV
PAYMENTS
1. The Issuing and Paying Agent shall effect payment of the amounts
described in paragraph 1 of Article III hereof on the respective interest
payment dates. Such payment may be accomplished by the Issuing and Paying
Agent mailing a check, payable to the registered owner of the Note on the
relevant record date, to the address of such registered owner, in accordance
with the information shown on the register maintained by the Issuing and Paying
Agent, or, at the Issuer's option, by the Issuing and Paying Agent wiring such
amounts to an account specified by such registered owner in a designation in
form and substance satisfactory to the Issuing and Paying Agent.
2. The Issuing and Paying Agent shall effect payment of principal
amounts described in paragraph 2 of Article III hereof, and payment of interest
due at maturity or redemption, in immediately available funds against
presentation of the Note at the principal corporate trust office of the Issuing
and Paying Agent, or at such other office or agency of the Issuer as the Issuer
shall designate in writing to the registered owner of the Note.
3. Notwithstanding any provision elsewhere contained herein, payments
by the Issuing and Paying Agent shall be made only out of amounts deposited
pursuant to paragraph 3 of Article III hereof with the Issuing and Paying Agent
with respect to such payment.
4. The Issuing and Paying Agent will not charge, impose, collect or
receive, from the holder or owner of any Note, any fee or consideration for any
services performed in connection with any payment to such holder or owner of
principal or interest, and any charge for postage, for wiring payment, or
otherwise, shall be charged to, and promptly paid by, the Issuer.
ARTICLE V
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ADDITIONAL DUTIES OF ISSUING AND PAYING AGENT
1. As Debt Security registrar and Issuing Agent for the Notes, the
Issuing and Paying Agent shall: (i) authenticate the Notes originally issued
by the Issuer and Notes substituted for those Notes originally issued; (ii)
maintain an office or agency in the City of New York for the registration (and
for the transfer) of the Notes; (iii) maintain in the City of New York a
register of owners of the Notes (the "Debt Security Register"); (iv) keep and
maintain such other records in such form and manner as it shall determine in
its sole discretion; and (v) perform such related duties as may be necessary
for a Debt Security registrar and Issuing Agent to perform. Such records and
Debt Security register shall upon request be available for inspection by
authorized officers, employees, and agents of the Issuer during the normal
business hours of the Issuing and Paying Agent. Upon the termination of this
Agreement, the Issuing and Paying Agent shall deliver to the Issuer copies of
such records in the form and manner kept by the Issuing and Paying Agent on
such date.
2. With respect to the transfer of Notes, the Issuing and Paying
Agent hereby agrees that it shall: (i) upon presentation of a Note, with a
written transfer of title by the registered owner satisfactory to the Issuing
and Paying Agent (the signature on such instrument being guaranteed), transfer
the title of such Note; (ii) enter the name of the transferee on the Debt
Security register; (iii) cancel and retain each Note surrendered for a payment
of principal upon its making a payment which reduces the unpaid principal
amount of such Note to zero (Notes so cancelled may be delivered by the Issuing
and Paying Agent to the Issuer from time to time, and following any such
delivery the Issuer shall have the sole responsibility for any failure
thereafter to produce any such Note); and (iv) maintain in safekeeping any
blank Note forms delivered to the Issuing and Paying Agent by the Issuer.
3. The Issuing and Paying Agent shall file such Federal and state tax
returns concerning payments hereunder as shall be required of it by applicable
law, but
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shall not be responsible for the collection or withholding of taxes due on such
payments except, and only to the extent, required of the Issuing and Paying
Agent by applicable law. Without limiting the generality of the foregoing, the
Issuer, and not the Issuing and Paying Agent, shall file any reports with
respect to original issue discount.
4. The Issuing and Paying Agent shall have no duties or
responsibilities whatsoever except such duties and responsibilities as are
specifically set forth in this Agreement, and no covenant or obligation shall
be implied in this Agreement against the Issuing and Paying Agent.
ARTICLE VI
CONCERNING THE ISSUING AND PAYING AGENT
1. The Issuing and Paying Agent shall not be liable for any loss or
damage, including reasonable counsel fees and expenses, resulting from its
actions or failure to act hereunder, except for any loss arising out of its own
bad faith, gross negligence, or willful misconduct. Without limiting the
generality of the foregoing, the Issuing and Paying Agent shall not be liable
for any action taken or omitted in reliance on any obligation, notice,
direction, consent, certificate, affidavit, statement, designation or other
paper or document reasonably believed by it to be genuine and to have been
properly authorized and properly signed or presented.
2. The Issuer shall indemnify and hold harmless the Issuing and
Paying Agent from and against any and all claims, demands, expenses (including
reasonable counsel fees and expenses) and liabilities of any and every nature
which the Issuing and Paying Agent may sustain or incur or which may be
asserted against the Issuing and Paying Agent as a result of any action taken
or omitted by the Issuing and Paying Agent in connection with its obligations
hereunder without bad faith, gross negligence or willful misconduct. At any
time the Issuing and Paying Agent may apply to the Issuer for instructions with
respect to any matter arising under this Agreement and shall be
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fully protected in acting in accordance with such instructions. In addition,
the Issuing and Paying Agent may consult counsel to the Issuer, or its own
counsel, at the reasonable expense of the Issuer, and shall be fully protected
with respect to any action taken or omitted in good faith in accordance with
such advice or opinion of counsel to the Issuing and Paying Agent. The
provisions of the first sentence of this paragraph shall survive the
termination of this Agreement.
3. The Issuing and Paying Agent may employ agents or
attorneys-in-fact, and shall not be liable for any loss or damage arising out
of, or in connection with, the actions or omissions to act of such agents or
attorneys-in-fact provided the Issuing and Paying Agent acted without bad
faith, negligence, or willful misconduct in connection with the selection of
such agents or attorneys-in-fact.
4. The Issuing and Paying Agent makes no representations with respect
to the validity or sufficiency of the Notes, or the use or application of the
proceeds of the sale or distribution thereof, and shall incur no liability with
respect to the foregoing.
5. Notwithstanding any other provision elsewhere contained in this
Agreement, including, without limitation, paragraph 3 of Article III, the
Issuing and Paying Agent is acting solely as agent of the Issuer and does not
assume any obligation or relationship of agency or trust for or with any owners
or holders of Notes, other than the limited obligations with respect to amounts
deposited hereunder contained in said paragraph 3 of Article III.
6. The Issuer shall pay to the Issuing and Paying Agent for its
performance hereunder (i) its reasonable out-of-pocket expenses (including
counsel fees and expenses) incurred in connection with this Agreement,
including, without limitation, those described or referred to in paragraph 4 of
Article IV hereof, and (ii) such compensation as may mutually be agreed upon in
writing by the Issuer and the Issuing and Paying Agent. The provisions of this
paragraph shall survive the termination of this Agreement.
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ARTICLE VII
GENERAL
1. Either of the parties hereto may terminate this Agreement by
giving to the other a notice in writing specifying a termination date which,
unless otherwise waived by the other party, is (a) at least thirty (30) days
after the giving of such notice, and (b) in case such notice is given by the
Issuing and Paying Agency at least fifteen (15) days prior to the next
succeeding date for the payment of interest or principal or premium, if any.
Upon the date specified in such notice, the Issuing and Paying Agent shall,
upon making the delivery required by paragraph 1 of Article V hereof, be
relieved of all duties and responsibilities pursuant to this Agreement.
2. Any notice, request for instructions, or other instrument in
writing authorized or required by this Agreement to be given to either party
shall be effective upon receipt at the following addresses, or at such other
place as either party may from time to time designate in writing:
If to the Issuer: USX Corporation
600 Grant Street
Pittsburgh, Pennsylvania 15219
Telephone: (412) 433-4419, Telecopy: (412) 433-4567
Attention: Corporate Finance Department
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If to the Issuing and Paying Agent:
The First National Bank of Boston
Corporate Trust Administration
150 Royall Street, Mail Stop 45-02-15
Canton, Massachusetts 02021
Telephone: (617) 575-3145, Telecopy: (617) 575-2078.
3. This Agreement: (a) may not be amended or modified in any manner
except by a written agreement executed by both parties; (b) shall extend to and
be binding upon the parties hereto and their respective successors and assigns;
and (c) shall be governed by and construed in accordance with the laws of the
State of New York.
4. This Agreement may be executed in any number of counterparts, each
of which shall be an original; but such counterparts shall together constitute
but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective corporate officers, thereunto duly authorized
and their respective corporate seals to be hereunto affixed, as of the day and
year first above written.
[SEAL)
Attest: THE FIRST NATIONAL BANK
OF BOSTON
By:
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Title: Title:
[SEAL)
Attest: USX CORPORATION
/s/ Craig D. Malldy By: /s/ G.R. Haggerty
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Title: Assistant Secretary Title: Vice President & Treasurer