Exhibit 10.1
EXECUTION VERSION
Underwriting Agreement
$600,000,000 7-3/8% Senior Notes due 2020
March 16, 2010
Banc of America Securities LLC
Barclays Capital Inc.
Goldman, Sachs & Co.
J.P. Morgan Securities Inc.
Morgan Stanley & Co. Incorporated
As Representatives of the
several Underwriters listed
in Schedule 1 hereto
c/o Banc of America Securities LLC
One Bryant Park
New York, New York 10036
Ladies and Gentlemen:
United States Steel Corporation, a Delaware corporation (the "Company"),
proposes to issue and sell to the several Underwriters listed in Schedule 1
hereto (the "Underwriters"), for whom you are acting as representatives (the
"Representatives"), $600,000,000 principal amount of its 7-3/8% Senior Notes due
2020 (the "Securities"). The Securities will be issued pursuant to an
indenture dated as of May 21, 2007 (the "Base Indenture") between the
Company and The Bank of New York Mellon, as trustee (the "Trustee"), as
heretofore supplemented and amended and as to be further supplemented and
amended by a Fourth Supplemental Indenture, dated March 19, 2010, to the
Base Indenture relating to the Securities (the "Supplemental Indenture" and,
together with the Base Indenture and any other amendments or supplements
thereto, the "Indenture"), between the Company and the Trustee.
The Company hereby confirms its agreement with the several Underwriters
concerning the purchase and sale of the Securities, as follows:
1. Registration Statement. The Company has prepared and filed with
the Securities and Exchange Commission (the "Commission") under the
Securities Act of 1933, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "Securities Act"), a registration
statement on Form S-3 (No. 333-165054), including a prospectus (the
"Basic Prospectus"), relating to the Securities. The Company has also filed,
or proposes to file, with the Commission pursuant to Rule 424 under the
Securities Act a prospectus supplement specifically relating to the Securities
(the "Prospectus Supplement"). The registration statement, as amended at the
time of this Agreement, including the information, if any, deemed pursuant to
Rule 430A, 430B or 430C under the Securities Act to be part of the
registration statement at the time of its effectiveness, is referred to
herein as the "Registration Statement"; and as used herein, the term
"Prospectus" means the Basic Prospectus included in the Registration Statement
(and any amendments thereto) as supplemented by the prospectus supplement
specifically relating to the Securities in the form first used (or made
available upon request of purchasers pursuant to Rule 173 under the
Securities Act) in connection with confirmation of sales of the Securities
and the term "Preliminary Prospectus" means the preliminary prospectus
supplement specifically relating to the Securities together with the Basic
Prospectus. Capitalized terms used but not defined herein shall have the
meanings given to such terms in the Registration Statement and the Prospectus.
References herein to the Registration Statement, the Basic Prospectus, any
Preliminary Prospectus or the Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein. The terms .
"supplement," "amendment" and "amend" as used herein with respect to the
Registration Statement, any Preliminary Prospectus or the Prospectus shall
be deemed to refer to and include any documents filed by the Company under
the Securities Exchange Act of 1934, as amended, and the rules and regulations
of the Commission thereunder (the "Exchange Act") subsequent to the date
of this Agreement which are deemed to be incorporated by reference therein.
For purposes of this Agreement, the term "Effective Time" means the
effective date of the Registration Statement with respect to the
offering of the Securities, asdetermined for the Company pursuant to
Section 11 of the Securities Act and Item 512 of Regulation S-K, as applicable.
At or prior to the time when the first sale of the Securities is made
(the "Time of Sale"), the Company will prepare certain information
(collectively, the "Time of Sale Information"), which includes a Preliminary
Prospectus, dated March 16, 2010, and each "free writing prospectus"
(as defined pursuant to Rule405 of the Securities Act) identified in
Schedule 2 hereto.
2. Purchase of the Securities by the Underwriters. a) The Company
agrees to issue and sell the Securities to the several Underwriters as
provided in this Agreement, and each Underwriter, on the basis of the
representations, warranties and agreements set forth herein and subject to the
conditions set forth herein, agrees, severally and not jointly, to purchase
from the Company the respective principal amount of the Securities set forth
opposite such Underwriter's name in Schedule 1 hereto at a price equal to
97.125% of the principal amount thereof plus accrued interest, if any, from
March 19, 2010, to the Closing Date (as such term is hereinafter defined).
The Company will not be obligated to deliver any of the Securities except upon
payment for all the Securities to be purchased as provided herein.
(a) The Company understands that the Underwriters intend to make a
public offering of the Securities as soon after the effectiveness of this
Agreement as in the judgment of the Representatives is advisable, and
initially to offer the Securities on the terms set forth in the Prospectus.
The Company acknowledges and agrees that the Underwriters may offer and sell
Securities to or through any affiliate of an Underwriter and that any such
affiliate may offer and sellSecurities purchased by it to or through any
Underwriter.
(b) Payment for and delivery of the Securities will be made at the
offices of Simpson Thacher & Bartlett LLP at 10:00 a.m., New York City time,
on March 19, 2010, or at such other time or place on the same or such other
date, not laterthan the fifth business day thereafter, as the Representatives
and the Company may agree upon in writing. The time and date of such payment
and delivery is referred to herein as the "Closing Date."
(c) Payment for the Securities shall be made by wire transfer in
immediately available funds to the account(s) specified by the Company to the
Representatives against delivery to the nominee of The Depository Trust
Company, for the account of the Underwriters, of one or more global notes
representing the Securities (the "Global Notes"), with any transfer taxes
payable in connection with the sale of the Securities duly paid by the Company.
The Global Notes will be in form and substance reasonably satisfactory to the
Representatives.
(d) The Company acknowledges and agrees that the Underwriters are acting
solely in the capacity of an arm's length contractual counterparty to the
Company with respect to any offering of the Securities contemplated hereby
(including in connection with determining the terms of the offering) and not
as a financial advisor or a fiduciary to, or an agent of, the Company or any
other person with respect to any such offering. Additionally, no such
Underwriter is advising the Company or any other person as to any legal, tax,
investment, accounting or regulatory matters in any jurisdiction. The Company
shall consult with its own advisors concerning such matters and shall be
responsible for making its own independent investigation and appraisal of the
transactions contemplated hereby, and such Underwriters shall have no
responsibility or liability to the Company with respect thereto. Any review by
such Underwriters of the Company, the transactions contemplated thereby or
other matters relating to such transactions will be performed solely for the
benefit of the Underwriters and shall not be on behalf of the Company.
3. Representations and Warranties of the Company. The Company
represents and warrants to each Underwriter that:
(a) Registration Statement and Prospectus. The Registration Statement
has become effective under the Securities Act. The Registration Statement is
an "automatic shelf registration statement" as defined under Rule 405 of the
Securities Act that has been filed with the Commission not earlier than three
years prior to the date hereof; and no notice of objection of the Commission
to the use of such registration statement or any post-effective amendment
thereto pursuant to Rule 401(g)(2) under the Securities Act has been received
by the Company. The Company has not received any order suspending the
effectiveness of the Registration Statement by the Commission and has not
received notice of any proceeding for that purpose or notice of any action
instituted pursuant to Section 8A of the Securities Act against the Company or
related to the offering has been initiated or threatened by the Commission; as
of the Effective Time, the Registration Statement complied, and as of the
date of any amendment thereto will comply, in all material respects with the
Trust Indenture Act of 1939, as amended, and the rules and regulations of the
Commission thereunder (collectively the "Trust Indenture Act") and the
Securities Act and did not and will not contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein
or necessary in order to make the statements therein not misleading; and as of
the date of the Prospectus and any amendment or supplement thereto, the
Prospectus did not, and as of the Closing Date, the Prospectus will not
contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided that the Company makes no representation and
warranty with respect to (i) that part of the Registration Statement that
constitutes the Statement of Eligibility and Qualification (Form T-1) of the
Trustee under the Trust Indenture Act or (ii) any statements or omissions made
in reliance upon and in conformity with information relating to any Underwriter
furnished to the Company in writing by such Underwriter through the
Representatives expressly for use in the Registration Statement and the
Prospectus and any amendment or supplement thereto.
(b) Time of Sale Information. The Time of Sale Information, at the Time
of Sale did not, and at the Closing Date will not, contain any untrue
statement of a material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided that the Company makes no
representation and warranty with respect to any statements or omissions made
in reliance upon and in conformity with information relating to any
Underwriter furnished to the Company in writing by such Underwriter through
the Representatives expressly for use in such Time of Sale Information.
No statement of material fact included in the Prospectus that is required to
be included in the Time of Sale Information has been omitted from the Time of
Sale Information and no statement of material fact included in the Time of
Sale Information that is required to be included in the Prospectus has been
omitted therefrom.
(c) Issuer Free Writing Prospectus. The Company (including its agents
and representatives, other than the Underwriters in their capacity as such)
has not prepared, made, used, authorized, approved or referred to and will
not prepare, make, use, authorize, approve or refer to any "written
communication" (as defined in Rule 405 under the Securities Act) that
constitutes an offer to sell or solicitation of an offer to buy the Securities
(each such communication by the Company or its agents and representatives
(other than a communication referred to in clauses (i), (ii) and (iii) of
this Section 3(c)), an "Issuer Free Writing Prospectus") other than (i) any
document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the
Securities Act or Rule 134 under the Securities Act, (ii) the Preliminary
Prospectus, (iii) the Prospectus, (iv) the documents listed on Schedule 2
hereto and (v) any electronic road show or any other written communications,
in each case approved in writing in advance by the Representatives. Each
such Issuer Free Writing Prospectus complied in all material respects with
the Securities Act, has been or will be (within the time period specified in
Rule 433) filed in accordance with the Securities Act (to the extent required
thereby) and, when taken together with the Preliminary Prospectus
accompanying, or delivered prior to delivery of, or filed prior to the first
use of such Issuer Free Writing Prospectus, did not, and at the Closing Date
will not, contain any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading; provided
that the Company makes no representation and warranty with respect to any
statements or omissions made in each such Issuer Free Writing Prospectus in
reliance upon and in conformity with information relating to any Underwriter
furnished to the Company in writing by such Underwriter through the
Representatives expressly for use in any Issuer Free Writing Prospectus.
(d) Incorporated Documents. The documents incorporated by reference in
the Registration Statement, the Time of Sale Information and the Prospectus,
when filed with the Commission, conformed or will conform, as the case may be,
in all material respects with the requirements of the Exchange Act and did not
and will not contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(e) Company Organization and Good Standing. The Company has been duly
incorporated and is an existing corporation in good standing under the laws of
the State of Delaware, with power and authority (corporate and other) to own
its properties and conduct its business as described in the Time of Sale
Information and the Prospectus; and the Company is duly qualified to do
business as a foreign corporation in good standing in all other jurisdictions
in which its ownership or lease of property or the conduct of its business
requires such qualification, except where the failure to so qualify would not
reasonably be expected to have a material adverse effect upon the financial
condition, business, properties or results of operations of the Company and
its subsidiaries, taken as a whole (a "Material Adverse Effect").
(f) Subsidiary Organization and Good Standing. Each subsidiary of the
Company listed on Annex A (each, a "Designated Subsidiary") has been duly
incorporated or otherwise organized and is an existing corporation, limited
liability company or other business entity in good standing under the laws of
the jurisdiction of its incorporation or organization, with power and
authority (corporate, limited liability company and other) to own its
properties and conduct its business as described in the Time of Sale
Information and the Prospectus; and each Designated Subsidiary of the Company
is duly qualified to do business as a foreign corporation or other business
entity in good standing in all other jurisdictions in which its ownership or
lease of property or the conduct of its business requires such qualification,
except where the failure to so qualify would not reasonably be expected to
have a Material Adverse Effect; all of the issued and outstanding capital
stock or other equity securities of each Designated Subsidiary of the Company
have been duly authorized and are validly issued, fully paid and nonassessable;
and the shares of capital stock or other equity securities of each Designated
Subsidiary owned by the Company, directly or through subsidiaries, are owned
free from liens, encumbrances and defects, except such liens, encumbrances and
defects that would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect. The entities listed on Annex A
hereto include every subsidiary of the Company that is a "significant
subsidiary" (as such term is defined in Rule 1-02 of Regulation S-X) of the
Company.
(g) Capitalization. All outstanding shares of capital stock of the
Company have been duly authorized and are validly issued, fully paid and
non-assessable and are not subject to any pre-emptive or similar rights. The
Company has an authorized capitalization as of December 31, 2009 as set forth
in the Registration Statement, the Time of Sale Information and the Prospectus
under the heading "Capitalization."
(h) No Broker's Fees. Except as provided herein and as disclosed in the
Time of Sale Information and the Prospectus, there are no contracts,
agreements or understandings between the Company and any person that would
give rise to a valid claim against the Company or any Underwriter for a
brokerage commission, finder's fee or other like payment in connection with
this offering.
(i) No Registration Rights. There are no contracts, agreements or
understandings between the Company and any person granting such person the
right to require the Company to file a registration statement under the
Securities Act with respect to any securities of the Company owned or to be
owned by such person or to require the Company to include such securities in
the securities registered pursuant to the Registration Statement or with any
securities being registered pursuant to any other registration statement filed
by the Company under the Securities Act.
(j) No Consents Required. No consent, approval, authorization, or order
of, or filing with, any governmental agency or body or any court is required
for the consummation of the transactions contemplated by this Agreement, the
Securities and the Indenture (collectively, the "Transaction Documents") in
connection with the issuance and sale of the Securities or the consummation of
the Transactions by the Company, except such (i) as have been obtained and
made under the Securities Act and (ii) as may be required under state
securities laws in connection with the purchase and distribution of the
Securities by the Underwriters, and except for such consents, approvals,
authorizations, orders or filings the failure of which to obtain or make
would not reasonably be expected to have a Material Adverse Effect.
(k) No Conflicts. The execution, delivery and performance by the
Company of the Transaction Documents, the issuance and sale of the Securities
and compliance by the Company with the terms thereof and the consummation of
the transactions contemplated by the Transaction Documents, will not result in
a breach or violation of any of the terms and provisions of, or constitute a
default under, (i) any statute, any rule, regulation or order of any
governmental agency or body or any court, domestic or foreign, having
jurisdiction over the Company or any Designated Subsidiary of the Company or
any of their properties, (ii) any agreement or instrument to which the Company
or any such Designated Subsidiary is a party or by which the Company or any
such Designated Subsidiary is bound or to which any of the properties of the
Company or any such Designated Subsidiary is subject or (iii) the charter,
by-laws or other organizational document of the Company or any such Designated
Subsidiary.
(l) Due Authorization. The Company has full right, power and authority
to execute and deliver the Transaction Documents and to perform its
obligations hereunder and thereunder; and all action required to be taken for
the due and proper authorization, execution and delivery of each of the
Transaction Documents and the consummation of the transactions contemplated
thereby has been duly and validly taken.
(m) The Indenture. The Indenture has been duly authorized by the
Company and has been duly qualified under the Trust Indenture Act and the Base
Indenture constitutes, and the Supplemental Indenture, when duly executed and
delivered in accordance with its terms by each of the parties thereto, will
constitute, a valid and legally binding agreement of the Company enforceable
against the Company in accordance with its terms, except as enforceability may
be limited by applicable bankruptcy, insolvency or similar laws affecting the
enforcement of creditors' rights generally or by equitable principles relating
to enforceability (collectively, the "Enforceability Exceptions").
(n) The Securities. The Securities have been duly authorized by the
Company and, when duly executed, authenticated, issued and delivered in
accordance with the Indenture and paid for as provided herein, will be duly
and validly issued and outstanding and will constitute valid and legally
binding obligations of the Company, enforceable against the Company in
accordance with their terms, subject to the Enforceability Exceptions, and
will be entitled to the benefits of the Indenture.
(o) Underwriting Agreement. This Agreement has been duly authorized,
executed and delivered by the Company.
(p) No Violation or Default. Neither the Company nor any of the
Designated Subsidiaries is (i) in violation of its respective charter or
by-laws or other organizational documents, (ii) in default in the performance
of any obligation, agreement, covenant or condition contained in any
indenture, loan agreement, mortgage, lease or other agreement or instrument
that is material to the Company and its subsidiaries, taken as a whole, to
which the Company or any Designated Subsidiaries is a party or by which the
Company or any Designated Subsidiaries or their respective property is bound,
or (iii) in violation of any law or statute or any judgment, order, rule or
regulation of any court or arbitrator or governmental or regulatory authority,
except for such defaults and violations in the case of these clauses (ii) and
(iii) that are disclosed in the Time of Sale Information and the Prospectus
or would not, individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect.
(q) Title to Real and Personal Property. Except as disclosed in the
Time of Sale Information and the Prospectus, the Company and the Designated
Subsidiaries have good and marketable title to all real properties and all
other properties and assets owned by them, in each case free from liens,
encumbrances and defects, except such liens, encumbrances and defects that
would not, individually or in the aggregate, reasonably be expected to have
a Material Adverse Effect; and except as disclosed in the Time of Sale
Information and the Prospectus, the Company and its subsidiaries hold any
leased real or personal property under valid and enforceable leases with no
exceptions that would materially interfere with the business of the Company
and its subsidiaries, taken as a whole. The Company and its subsidiaries own
or lease all properties and assets necessary to conduct their business as
described in the Time of Sale Information and the Prospectus.
(r) Licenses and Permits. The Company and the Designated Subsidiaries
possess adequate certificates, authorities or permits issued by appropriate
governmental agencies or bodies necessary to conduct their business as
described in the Time of Sale Information and the Prospectus and have not
received any notice of proceedings relating to the revocation or modification
of any such certificate, authority or permit that, if determined adversely to
the Company or any Designated Subsidiary, would reasonably be expected to
have a Material Adverse Effect.
(s) Descriptions of the Transaction Documents. The Transaction
Documents conform in all material respects to the descriptions thereof
contained in the Time of Sale Information and the Prospectus.
(t) No Labor Disputes. Except as disclosed in the Time of Sale
Information and the Prospectus, no labor dispute with the employees of the
Company or any of its subsidiaries exists or, to the knowledge of the Company,
is imminent that would reasonably be expected, individually or in the
aggregate, to have a Material Adverse Effect.
(u) Title to Intellectual Property. The Company and the Designated
Subsidiaries own, possess or can acquire on reasonable terms, adequate
trademarks, trade names and other rights to inventions, know-how, patents,
copyrights, confidential information and other intellectual property
(collectively, "intellectual property rights") necessary to conduct its
business as described in the Time of Sale Information and the Prospectus, or
presently employed by them, and have not received any notice of infringement
of or conflict with asserted rights of others with respect to any intellectual
property rights that, if determined adversely to the Company or any of its
Designated Subsidiaries, would reasonably be expected, individually or in the
aggregate, to have a Material Adverse Effect.
(v) Compliance With Environmental Laws. Except as disclosed in the Time
of Sale Information and the Prospectus, neither the Company nor any of its
subsidiaries is in violation of any statute, any rule, regulation, decision or
order of any governmental agency or body or any court, domestic or foreign,
relating to the use, disposal or release of hazardous or toxic substances or
relating to the protection or restoration of the environment or human exposure
to hazardous or toxic substances (collectively, "environmental laws"), owns or
operates any real property contaminated with any substance that is subject to
any environmental laws, is liable for any off-site disposal or contamination
pursuant to any environmental laws, or is subject to any claim relating to any
environmental laws, which violation, contamination, liability or claim could
reasonably be expected, individually or in the aggregate, to have a Material
Adverse Effect; and the Company is not aware of any pending investigation
which would reasonably be expected to lead to such a claim.
(w) Legal Proceedings. Except as described in the Time of Sale
Information and the Prospectus, there are no pending actions, suits or
proceedings against or affecting the Company, any of its subsidiaries or any
of their respective properties that, individually or in the aggregate would
reasonably be expected to have a Material Adverse Effect, or would materially
and adversely affect the ability of the Company to perform its obligations
under this Agreement, or which are otherwise material in the context of the
sale of the Securities; and, to the Company's knowledge, no such actions,
suits or proceedings are threatened.
(x) Financial Statements of the Company. The financial statements of
the Company and the related notes thereto included or incorporated by
reference in the Registration Statement, the Time of Sale Information and the
Prospectus present fairly the financial position of the Company and its
consolidated subsidiaries as of the dates shown and their results of
operations and cash flows for the periods shown, and, except as otherwise
disclosed in the Time of Sale Information and the Prospectus, such financial
statements have been prepared in conformity with the generally accepted
accounting principles in the United States applied on a consistent basis
throughout the periods covered thereby, and the supporting schedules included
in the Registration Statement present fairly the information required to be
stated therein; and the other financial information of the Company and its
subsidiaries included in the Registration Statement, the Time of Sale
Information and the Prospectus has been derived from the accounting records of
the Company and its subsidiaries and presents fairly the information shown
thereby.
(y) Taxes. The Company and its Designated Subsidiaries have timely
filed all material federal, state, local and foreign income tax returns that
have been required to be filed and have paid all taxes indicated by said
returns and all assessments received by any of them to the extent that such
material taxes have become due and are not being contested in good faith in
appropriate proceedings. All material tax liabilities have been adequately
provided for in the financial statements of the Company.
(z) No Material Adverse Change. Since the date of the most recent
financial statements of the Company included in the Registration Statement,
the Time of Sale Information and the Prospectus, (i) there has not been any
material change in the capital stock or long term debt of the Company or any
of its subsidiaries (other than changes in amounts owing by U. S. Steel Kosice
s.r.o. and U. S. Steel Serbia d.o.o. due to changes in foreign exchange
rates), or any dividend or distribution of any kind declared, set aside for
payment, paid or made by the Company on any class of capital stock, or any
material adverse change, or any development involving a prospective material
adverse change, in or affecting the business, properties, management,
financial position, results of operations or prospects of the Company and its
subsidiaries taken as a whole; (ii) neither the Company nor any of its
subsidiaries has entered into any transaction or agreement that is material
to the Company and its subsidiaries taken as a whole or incurred any
liability or obligation, direct or contingent, that is material to the Company
and its subsidiaries taken as a whole; and (iii) neither the Company nor any
of its subsidiaries has sustained any material loss or interference with its
business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor disturbance or dispute or any action,
order or decree of any court or arbitrator or governmental or regulatory
authority, except in each case of (i), (ii) and (iii) of this Section 3(z) as
otherwise disclosed in the Registration Statement, the Time of Sale
Information and the Prospectus.
(aa) Reporting Requirements. The Company is subject to the reporting
requirements of either Section 13 or Section 15(d) of the Exchange Act and
files reports with the Commission on the Electronic Data Gathering, Analysis,
and Retrieval (EDGAR) system.
(bb) Independent Accountants. PricewaterhouseCoopers LLP, which has
audited certain financial statements of the Company and its subsidiaries, is
an independent registered public accounting firm with respect to the Company
and its subsidiaries within the applicable rules and regulations adopted by
the Commission and the Public Company Accounting Oversight Board (United
States) and as required by the Securities Act.
(cc) No Undisclosed Relationships. No relationship, direct or indirect,
exists between or among the Company or any of its subsidiaries, on the one
hand, and the directors, officers, stockholders, customers or suppliers of the
Company or any of its subsidiaries, on the other, that is required by the
Securities Act to be described in the Registration Statement, the Time of
Sale Information and the Prospectus and that is not so described.
(dd) Compliance With ERISA. Each employee benefit plan, within the
meaning of Section 3(3) of the Employee Retirement Income Security Act of
1974, as amended ("ERISA"), that is maintained, administered or contributed
to by the Company or any of its affiliates for employees or former employees
of the Company and its affiliates has been maintained in compliance in all
material respects with its terms and the requirements of any applicable
statutes, orders, rules and regulations, including but not limited to ERISA
and the Internal Revenue Code of 1986, as amended (the "Code"); no prohibited
transaction, within the meaning of Section 406 of ERISA or Section 4975 of the
Code, has occurred with respect to any such plan excluding transactions
effected pursuant to a statutory or administrative exemption; no failure to
meet the minimum funding standards under Section 412 of the Code or Section
302 of ERISA has occurred with respect to any plan which is subject to Section
412 of the Code or Section 302 of ERISA and no application has been made for a
waiver or modification of the minimum funding standard (including any required
installment payments) under Section 412 of the Code or Section 302 of ERISA
with respect to a plan, and, except as otherwise disclosed in the Time of Sale
Information and the Prospectus, the fair market value of the assets of each
such plan (excluding for these purposes accrued but unpaid contributions)
exceeds the present value of all benefits accrued under such plan based on
actuarial assumptions and methods that are compliant with the requirements of
Code Section 430(h) and regulations thereunder; and neither the Company nor
any of its affiliates has incurred, or reasonably expects to incur, any
liability under Title IV of ERISA in respect of any Plan "or multiemployer
plan" within the meaning of Section 4001(a)(3) of ERISA, other than liability
for the payment of required PBGC insurance premiums under Section 4007 of
ERISA.
(ee) Disclosure Controls. The Company and its subsidiaries maintain an
effective system of "disclosure controls and procedures" (as defined in Rule
13a-15(e) of the Exchange Act) that is designed to ensure that information
required to be disclosed by the Company in reports that it files or submits
under the Exchange Act is recorded, processed, summarized and reported within
the time periods specified in the Commission's rules and forms, including
controls and procedures designed to ensure that such information is
accumulated and communicated to the Company's management as appropriate to
allow timely decisions regarding required disclosure. As of the date of the
Time of Sale Information and the Prospectus, the Company and its subsidiaries
have carried out evaluations of the effectiveness of their disclosure controls
and procedures as required by Rule 13a-15 of the Exchange Act.
(ff) Accounting Controls. The Company and its subsidiaries maintain
systems of "internal control over financial reporting" (as defined in Rule
13a-15(f) of the Exchange Act) that comply with the requirements of the
Exchange Act and have been designed by, or under the supervision of their
respective principal executive and principal financial officers, or persons
performing similar functions, to provide reasonable assurance regarding the
reliability of financial reporting and the preparation of financial statements
for external purposes in accordance with generally accepted accounting
principles, including, but not limited to internal accounting controls
sufficient to provide reasonable assurance that (i) transactions are executed
in accordance with management's general or specific authorizations;
(ii) transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles and to
maintain asset accountability; (iii) access to assets is permitted only in
accordance with management's general or specific authorization; and (iv) the
recorded accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences. Except as disclosed in the Registration Statement, the Time of
Sale Information and the Prospectus, there are no "material weaknesses" (as
defined under Rule 12b-2 of the Exchange Act) in the Company's internal
controls over financial reporting.
(gg) Sarbanes-Oxley Act. There is and has been no failure on the part
of the Company or to the Company's knowledge, any of the Company's directors
or officers, in their capacities as such, to comply in all material respects
with any provision of the Sarbanes-Oxley Act of 2002 and the rules and
regulations promulgated in connection therewith, including Section 402 related
to loans and Sections 302 and 906 related to certifications.
(hh) No Unlawful Payments. Neither the Company nor any of its
subsidiaries nor, to the best knowledge of the Company, any director, officer,
agent, employee or other person associated with or acting on behalf of the
Company or any of its subsidiaries has (i) used any corporate funds for any
unlawful contribution, gift, entertainment or other unlawful expense relating
to political activity; (ii) made any direct or indirect unlawful payment to
any foreign or domestic government official or employee from corporate funds;
(iii) violated or is in violation of any provision of the Foreign Corrupt
Practices Act of 1977; or (iv) made any bribe, rebate, payoff, influence
payment, kickback or other unlawful payment.
(ii) Compliance with Money Laundering Laws. The operations of the
Company and its subsidiaries are and have been conducted at all times in
compliance in all material respects with applicable financial recordkeeping
and reporting requirements of the Currency and Foreign Transactions Reporting
Act of 1970, as amended, the money laundering statutes of all jurisdictions,
the rules and regulations thereunder and any related or similar rules,
regulations or guidelines, issued, administered or enforced by any
governmental agency (collectively, the "Money Laundering Laws") and no action,
suit or proceeding by or before any court or governmental agency, authority or
body or any arbitrator involving the Company or any of its subsidiaries with
respect to the Money Laundering Laws is pending or, to the knowledge of the
Company, threatened.
(jj) Compliance with OFAC. None of the Company, any of its subsidiaries
or, to the knowledge of the Company, any director, officer, agent, employee or
affiliate of the Company or any of its subsidiaries is currently subject to
any U.S. sanctions administered by the Office of Foreign Assets Control of the
U.S. Department of the Treasury ("OFAC"); and the Company will not, directly
or indirectly, knowingly use the proceeds of the offering of the Securities
hereunder, or lend, contribute or otherwise make available such proceeds to
any subsidiary, joint venture partner or other person or entity, for the
purpose of financing the activities of any person currently subject to any
U.S. sanctions administered by OFAC.
(kk) No Stabilization. The Company has not taken, directly or
indirectly, any action designed to or that could reasonably be expected to
cause or result in any stabilization or manipulation of the price of the
Securities.
(ll) Investment Company Act. The Company is not and, after giving effect
to the offering and sale of the Securities and the application of the proceeds
thereof as described in the Time of Sale Information and the Prospectus, will
not be an "investment company" as defined in the Investment Company Act of
1940.
(mm) Status under the Securities Act. The Company is not an ineligible
issuer and is a well-known seasoned issuer, in each case as defined under the
Securities Act, in each case at the times specified in the Securities Act in
connection with the offering of the Securities.
(nn) Statistical and Market Data. Nothing has come to the attention of
the Company that has caused the Company to believe that the statistical and
market-related data included in the Registration Statement, the Time of Sale
Information and the Prospectus is not based on or derived from sources that
are reliable and accurate in all material respects.
(oo) Forward-Looking Statements. No forward-looking statement (within
the meaning of Section 27A of the Securities Act and Section 21E of the
Exchange Act) contained in the Registration Statement, the Time of Sale
Information or the Prospectus has been made or reaffirmed without a reasonable
basis or has been disclosed other than in good faith.
4. Further Agreements of the Company. The Company covenants and agrees
with each Underwriter that:
(a) Filings with the Commission. The Company will (i) pay the
registration fees for this offering within the time period required by Rule
456(b)1(i) under the Securities Act (without giving effect to the proviso
therein) and in any event prior to the Closing Date and (ii) file the
Prospectus in a form approved by the Underwriters with the Commission pursuant
to Rule 424 under the Securities Act not later than the close of business
on the second business day following the date of determination of the public
offering price of the Securities or, if applicable, such earlier time as may
be required by Rule 424(b) and Rule 430A, 430B or 430C under the Securities
Act. The Company will file any Issuer Free Writing Prospectus (including the
Pricing Term Sheet substantially in the form of Schedule 3 hereto) to the
extent required by Rule 433 under the Securities Act, and the Company will
furnish copies of the Prospectus and each Issuer Free Writing Prospectus (to
the extent not previously delivered) to the Underwriters in New York City
prior to 10:00 A.M., New York City time, on the business day next succeeding
the date of this Agreement in such quantities as the Representatives may
reasonably request.
(b) Delivery of Copies. The Company will deliver, without charge, to
each Underwriter (A) a conformed copy of the Registration Statement as
originally filed and each amendment thereto, in each case including all
exhibits and consents filed therewith and (B) during the Prospectus Delivery
Period (as hereinafter defined), as many copies of the Prospectus (including
all amendments and supplements thereto and documents incorporated by reference
therein) and each Issuer Free Writing Prospectus (if applicable) as the
Representatives may reasonably request. As used herein, the term "Prospectus
Delivery Period" means such period of time after the first date of the public
offering of the Securities as in the opinion of counsel for the Underwriters a
prospectus relating to the Securities is required by law to be delivered (or
would be required to be delivered but for Rule 172 under the Securities Act)
in connection with sales of the Securities by any Underwriter or dealer.
(c) Amendments or Supplements; Issuer Free Writing Prospectuses. In
connection with the transactions contemplated by the Agreement, before making,
preparing, using, authorizing, approving, referring to or filing any Issuer
Free Writing Prospectus, and before filing any amendment or supplement to the
Registration Statement or the Prospectus, the Company will furnish to the
Representatives and counsel for the Underwriters a copy of the proposed Issuer
Free Writing Prospectus, amendment or supplement for review and will not make,
prepare, use, authorize, approve, refer to or file any such Issuer Free
Writing Prospectus or file any such proposed amendment or supplement to which
the Representatives reasonably object.
(d) Notice to the Representatives. The Company will advise the
Representatives promptly, and confirm such advice in writing, (i) when any
amendment to the Registration Statement has been filed or becomes effective;
(ii) when any supplement to the Prospectus, any amendment to the Prospectus or
any Issuer Free Writing Prospectus has been filed; (iii) (a) of any request by
the Commission for any amendment to the Registration Statement, (b) of any
amendment or supplement to the Prospectus, (c) of the receipt of any comments
from, or requests for additional information by, the Commission relating to
the Registration Statement or (d) within the Prospectus Delivery Period, of
any other request by the Commission for any additional information; (iv) upon
receipt of notice of the issuance by the Commission of any order suspending
the effectiveness of the Registration Statement or preventing or suspending
the use of any Preliminary Prospectus or the Prospectus or the initiation or
threatening of any proceeding for that purpose or pursuant to Section 8A of
the Securities Act; (v) of the occurrence of any event within the Prospectus
Delivery Period as a result of which the Prospectus, the Time of Sale
Information or any Issuer Free Writing Prospectus as then amended or
supplemented would include any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in
the light of the circumstances existing when the Prospectus, the Time of Sale
Information or any Issuer Free Writing Prospectus is delivered to a purchaser,
not misleading; (vi) of the receipt by the Company of any notice of objection
of the Commission to the use of the Registration Statement or any
post-effective amendment thereto pursuant to Rule 401(g)(2) under the
Securities Act; and (vii) of the receipt by the Company of any notice with
respect to any suspension of the qualification of the Securities for offer
and sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose; and the Company will use all reasonable efforts
to prevent the issuance of any such order suspending the effectiveness of the
Registration Statement, preventing or suspending the use of any Preliminary
Prospectus or the Prospectus or suspending any such qualification of the
Securities and, if any such order is issued, will obtain as soon as possible
the withdrawal thereof.
(e) Time of Sale Information. If at any time prior to the Closing Date
(i) any event shall occur or condition shall exist as a result of which the
Time of Sale Information as then amended or supplemented would include any
untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances, not misleading or (ii) it is necessary to amend or supplement
the Time of Sale Information to comply with applicable law, the Company will
immediately notify the Underwriters thereof and forthwith prepare and,
subject to paragraph (c) of this Section 4, file with the Commission (to the
extent required) and furnish to the Underwriters and to such dealers as the
Representatives may designate, such amendments or supplements to the Time of
Sale Information as may be necessary so that the statements in the Time of
Sale Information as so amended or supplemented will not, in the light of the
circumstances, be misleading or so that the Time of Sale Information will
comply with applicable law.
(f) Ongoing Compliance. If during the Prospectus Delivery Period (i)
any event shall occur or condition shall exist as a result of which the
Prospectus as then amended or supplemented would include any untrue statement
of a material fact or omit to state any material fact necessary in order to
make the statements therein, in the light of the circumstances existing when
the Prospectus is delivered to a purchaser, not misleading or (ii) it is
necessary to amend or supplement the Prospectus to comply with applicable law,
the Company will immediately notify the Underwriters thereof and forthwith
prepare and, subject to paragraph (c) of this Section 4, file with the
Commission and furnish to the Underwriters and to such dealers as the
Representatives may designate, such amendments or supplements to the
Prospectus as may be necessary so that the statements in the Prospectus as so
amended or supplemented will not, in the light of the circumstances existing
when the Prospectus is delivered to a purchaser, be misleading or so that the
Prospectus will comply with applicable law.
(g) Blue Sky Compliance. The Company will qualify the Securities for
offer and sale under the securities or Blue Sky laws of such U.S.
jurisdictions as the Representatives shall reasonably request and will
continue such qualifications in effect so long as required for distribution
of the Securities; provided that the Company shall not be required to (i)
qualify as a foreign corporation or other entity or as a dealer in securities
in any such jurisdiction where it would not otherwise be required to so
qualify, (ii) file any general consent to service of process in any such
jurisdiction or (iii) subject itself to taxation in any such jurisdiction if
it is not otherwise so subject.
(h) Earning Statement. The Company will make generally available to its
security holders and the Representatives as soon as practicable an earning
statement that satisfies the provisions of Section 11(a) of the Securities Act
and Rule 158 of the Commission promulgated thereunder covering a period of at
least twelve months beginning with the first fiscal quarter of the Company
occurring after the "effective date" (as defined in Rule 158) of the
Registration Statement.
(i) Clear Market. During the period from the date hereof through and
including the date that is 30 days after the date hereof, the Company will
not, without the prior written consent of Banc of America Securities LLC,
offer, sell, contract to sell or otherwise dispose of any debt securities
issued or guaranteed by the Company and having a term of more than one year.
(j) Use of Proceeds. The Company will apply the net proceeds from the
sale of the Securities as described in the Time of Sale Information and the
Prospectus under the heading "Use of Proceeds."
(k) No Stabilization. The Company will not take, directly or
indirectly, any action designed to or that could reasonably be expected to
cause or result in any stabilization or manipulation of the price of the
Securities.
(l) Record Retention. The Company will, pursuant to reasonable
procedures developed in good faith, retain copies of each Issuer Free Writing
Prospectus that is not filed with the Commission for three years after the
Closing Date in accordance with Rule 433 under the Securities Act.
(m) Notice of Inability to Use Automatic Shelf Registration Statement
Form. If at any time during the Prospectus Delivery Period, the Company
receives from the Commission a notice pursuant to Rule 401(g)(2) or otherwise
ceases to be eligible to use the automatic shelf registration statement form,
the Company will (i) promptly notify the Representatives, (ii) promptly file
a new registration statement or post-effective amendment on the proper form
relating to the Securities, in a form satisfactory to the Representatives,
(iii) use its best efforts to cause such registration statement or
post-effective amendment to be declared effective and (iv) promptly notify
the Representatives of such effectiveness. The Company will take all other
action necessary or appropriate to permit the public offering and sale of the
Securities to continue as contemplated in the registration statement that was
the subject of the Rule 401(g)(2) notice or for which the Company has
otherwise become ineligible. References herein to the Registration Statement
shall include such new registration statement or post-effective amendment,
as the case may be.
5. Certain Agreements of the Underwriters. Each Underwriter hereby
represents and agrees that:
(a) It has not and will not use, authorize use of, refer to, or
participate in the planning for use of, any "free writing prospectus," as
defined in Rule 405 under the Securities Act (which term includes use of any
written information furnished to the Commission by the Company and not
incorporated by reference into the Registration Statement and any press
release issued by the Company) other than (i) a free writing prospectus that,
solely as a result of use by such Underwriter, would not trigger an obligation
to file such free writing prospectus with the Commission pursuant to Rule 433,
(ii) any Issuer Free Writing Prospectus listed on Schedule 2 hereto or
prepared pursuant to Section 3(c) or Section 4(c) (including any electronic
road show), or (iii) any free writing prospectus prepared by such underwriter
and approved by the Company in advance in writing.
(b) Notwithstanding the foregoing the Underwriters may use a term sheet
substantially in the form of Schedule 3 hereto without the consent of the
Company.
(c) The Representatives, on behalf of the several Underwriters, will,
pursuant to reasonable procedures developed in good faith, retain copies of
each Issuer Free Writing Prospectus that is not filed with the Commission for
three years after the Closing Date in accordance with Rule 433 under the
Securities Act.
(d) It is not subject to any pending proceeding under Section 8A of the
Securities Act with respect to the offering of the Securities (and will
promptly notify the Company if any such proceeding against it is initiated
during the Prospectus Delivery Period).
6. Conditions of Underwriters' Obligations. The obligation of each
Underwriter to purchase Securities on the Closing Date as provided herein is
subject to the performance by the Company of its covenants and other
obligations hereunder and to the following additional conditions:
(a) Registration Compliance; No Stop Order. If a post-effective
amendment to the Registration Statement is required to be filed under the
Securities Act, such post-effective amendment shall have become effective,
and the Representatives shall have received notice thereof, not later than
5:00 p.m., New York City time, on the date hereof; no order suspending the
effectiveness of the Registration Statement shall be in effect, and no
proceeding for such purpose, pursuant to Rule 401(g)(2) or pursuant to
Section 8A under the Securities Act shall be pending before or threatened by
the Commission; the Prospectus and each Issuer Free Writing Prospectus shall
have been timely filed with the Commission under the Securities Act (in the
case of an Issuer Free Writing Prospectus, to the extent required by Rule 433
under the Securities Act) and in accordance with Section 4(a) hereof; and all
requests by the Commission for additional information shall have been complied
with to the reasonable satisfaction of the Representatives.
(b) Representations and Warranties. The representations and warranties
of the Company contained herein shall be true and correct on the date hereof
and on and as of the Closing Date; and the statements of the Company and its
officers made in any certificates delivered pursuant to this Agreement shall
be true and correct on and as of the Closing Date.
(c) No Downgrade. Subsequent to the earlier of (A) the Time of Sale and
(B) the execution and delivery of this Agreement, (i) no downgrading shall
have occurred in the rating accorded any securities issued or guaranteed by
the Company or any of its subsidiaries by any "nationally recognized
statistical rating organization," as such term is defined by the Commission
for purposes of Rule 436(g)(2) under the Securities Act and (ii) no such
organization shall have publicly announced that it has under surveillance or
review, or has changed its outlook with respect to, its rating of any
securities issued or guaranteed by the Company or any of its subsidiaries
(other than an announcement with positive implications of a possible
upgrading).
(d) No Material Adverse Change. Subsequent to the execution and
delivery of this Agreement, no event or condition of a type described in
Section 3(z) hereof shall have occurred or shall exist, which event or
condition is not described in the Time of Sale Information (excluding any
amendment or supplement thereto) and the Prospectus (excluding any amendment
or supplement thereto) and the effect of which in the judgment of the
Representatives makes it impracticable or inadvisable to proceed with the
offering, sale or delivery of the Securities on the terms and in the manner
contemplated by this Agreement, the Time of Sale Information and the
Prospectus.
(e) Officer's Certificate. The Representatives shall have received on
and as of the Closing Date a certificate of an executive officer of the
Company who has specific knowledge of the Company's financial matters and is
reasonably satisfactory to the Representatives (i) confirming that such
officer has carefully reviewed the Registration Statement, the Time of Sale
Information and the Prospectus and, to the best knowledge of such officer,
the representations set forth in Sections 3(a) and 3(b) hereof are true and
correct; (ii) confirming that the other representations and warranties of the
Company in this Agreement are true and correct and that the Company has
complied with all agreements and satisfied all conditions on its part to be
performed or satisfied hereunder at or prior to the Closing Date; and (iii)
to the effect set forth in paragraphs (a), (c) and (d) of this Section 6.
(f) Comfort Letters for the Company. On the date of this Agreement and
on the Closing Date, PricewaterhouseCoopers LLP shall have furnished to the
Representatives, at the request of the Company, letters, dated the respective
dates of delivery thereof and addressed to the Underwriters, in form and
substance reasonably satisfactory to the Representatives, containing
statements and information of the type customarily included in accountants'
"comfort letters" to underwriters with respect to the Company's financial
statements and certain financial information contained or incorporated by
reference in the Registration Statement, the Time of Sale Information and the
Prospectus; provided that the letter delivered on the Closing Date shall use a
"cut-off" date no more than three business days prior to the Closing Date.
(g) Opinion of Counsel for the Company. Counsel for the Company shall
have furnished to the Representatives, at the request of the Company, its
written opinions, dated the Closing Date and addressed to the Underwriters,
in form and substance reasonably satisfactory to the Representatives, to the
effect set forth in Annex B hereto.
(h) Opinion and Negative Assurance Statement of Outside Counsel for the
Company. Morgan, Lewis & Bockius LLP, counsel for the Company, shall have
furnished to the Representatives, at the request of the Company, an opinion
and negative assurance statement, dated the Closing Date and addressed to the
Underwriters, in form and substance reasonably satisfactory to the
Representatives, to the effect set forth in Annex C hereto.
(i) Opinion and Negative Assurance Statement of Counsel for the
Underwriters. The Representatives shall have received on and as of the Closing
Date an opinion and negative assurance statement of Simpson Thacher & Bartlett
LLP, counsel for the Underwriters, with respect to such matters as the
Representatives may reasonably request, and such counsel shall have received
such documents and information as they may reasonably request to enable them
to pass upon such matters.
(j) No Legal Impediment to Issuance. No action shall have been taken
and no statute, rule, regulation or order shall have been enacted, adopted or
issued by any federal or state governmental or regulatory authority that
would, as of the Closing Date, prevent the issuance or sale of the Securities;
and no injunction or order of any federal or state court shall have been
issued that would, as of the Closing Date, prevent the issuance or sale of the
Securities.
(k) Good Standing. The Representatives shall have received on and as
of the Closing Date satisfactory evidence of the good standing of the Company
and its Designated Subsidiaries, other than the Designated Subsidiaries
organized and existing outside the United States, in their respective
jurisdictions of organization and their good standing in such other
jurisdictions as the Representatives may reasonably request, in each case in
writing or any standard form of telecommunication from the appropriate
governmental authorities of such jurisdictions.
(l) Additional Documents. On or prior to the Closing Date, the Company
shall have furnished to the Representatives such further certificates and
documents as the Representatives may reasonably request.
(m) Supplemental Indenture Relating to Securities. The Representatives
shall have received an executed copy of the Supplemental Indenture.
All opinions, letters, certificates and evidence mentioned above or elsewhere
in this Agreement shall be deemed to be in compliance with the provisions
hereof only if they are in form and substance reasonably satisfactory to
counsel for the Underwriters.
7. Indemnification and Contribution.
(a) Indemnification of the Underwriters. The Company agrees to
indemnify and hold harmless each Underwriter, its affiliates, directors and
officers and each person, if any, who controls such Underwriter within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act,
from and against any and all losses, claims, damages and liabilities
(including, without limitation, legal fees and other expenses incurred in
connection with any suit, action or proceeding or any claim asserted, as such
fees and expenses are incurred), joint or several, that arise out of, or are
based upon, (i) any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement, or caused by any omission or
alleged omission to state therein a material fact required to be stated
therein or necessary in order to make the statements therein, not misleading,
or (ii) any untrue statement or alleged untrue statement of a material fact
contained in the Prospectus (or any amendment or supplement thereto), any
Issuer Free Writing Prospectus or any Time of Sale Information, or caused by
any omission or alleged omission to state therein a material fact necessary in
order to make the statements therein, in light of the circumstances under
which they were made, not misleading, in each case except insofar as such
losses, claims, damages or liabilities arise out of, or are based upon, any
untrue statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with any information relating to any
Underwriter furnished to the Company in writing by such Underwriter through
the Representatives expressly for use therein.
(b) Indemnification of the Company. Each Underwriter agrees, severally
and not jointly, to indemnify and hold harmless the Company, its directors,
its officers who signed the Registration Statement and each person, if any,
who controls the Company within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act to the same extent as the indemnity set
forth in paragraph (a) of this Section 7, but only with respect to any losses,
claims, damages or liabilities that arise out of, or are based upon, any
untrue statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with any information relating to such
Underwriter furnished to the Company in writing by such Underwriter through
the Representatives expressly for use in the Registration Statement, the
Prospectus (or any amendment or supplement thereto), any Issuer Free Writing
Prospectus or any Time of Sale Information, it being understood and agreed
that the only such information consists of the following: the statements
concerning the Underwriters contained in (i) the first paragraph under the
subsection "Commissions and discounts" under the heading "Underwriting" in
the Prospectus, (ii) the third sentence under the subsection "New issue of
notes" under the heading "Underwriting" in the Prospectus and (iii) the first
and second paragraphs under the subsection "Short positions" under the heading
"Underwriting" in the Prospectus.
(c) Notice and Procedures. If any suit, action, proceeding (including
any governmental or regulatory investigation), claim or demand shall be
brought or asserted against any person in respect of which indemnification may
be sought pursuant to either paragraph (a) or (b) of this Section 7, such
person (the "Indemnified Person") shall promptly notify the person against
whom such indemnification may be sought (the "Indemnifying Person") in
writing; provided that the failure to notify the Indemnifying Person shall
not relieve it from any liability that it may have under this Section 7
except to the extent that it has been materially prejudiced (through the
forfeiture of substantive rights or defenses) by such failure; and provided,
further, that the failure to notify the Indemnifying Person shall not relieve
it from any liability that it may have to an Indemnified Person otherwise than
under this Section 7. If any such proceeding shall be brought or asserted
against an Indemnified Person and it shall have notified the Indemnifying
Person thereof, the Indemnifying Person shall retain counsel reasonably
satisfactory to the Indemnified Person to represent the Indemnified Person and
any others entitled to indemnification pursuant to this Section 7 that the
Indemnifying Person may designate in such proceeding and shall pay the fees
and expenses of such counsel related to such proceeding, as incurred. In any
such proceeding, any Indemnified Person shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such Indemnified Person unless (i) the Indemnifying Person and the Indemnified
Person shall have mutually agreed to the contrary; (ii) the Indemnifying
Person has failed within a reasonable time to retain counsel reasonably
satisfactory to the Indemnified Person; (iii) counsel to the Indemnified
Person shall have reasonably concluded that there are or are likely to be
legal defenses available to it that are different from or in addition to those
available to the Indemnifying Person; or (iv) the named parties in any such
proceeding (including any impleaded parties) include both the Indemnifying
Person and the Indemnified Person and representation of both parties by the
same counsel would be inappropriate due to actual or potential differing
interests between them. It is understood and agreed that the Indemnifying
Person shall not, in connection with any proceeding or related
proceeding in the same jurisdiction, be liable for the fees and expenses of
more than one separate firm (in addition to any local counsel) for all
Indemnified Persons, and that all such fees and expenses shall be reimbursed
as they are incurred. Any such separate firm for any Underwriter, its
affiliates, directors and officers and any control persons of such Underwriter
shall be designated in writing by the Representatives and any such separate
firm for the Company, its directors, its officers who signed the Registration
Statement and any control persons of the Company shall be designated in
writing by the Company. The Indemnifying Person shall not be liable for any
settlement of any proceeding effected without its written consent, but if
settled with such consent or if there be a final judgment for the plaintiff,
the Indemnifying Person agrees to indemnify each Indemnified Person from and
against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an Indemnified Person
shall have requested that an Indemnifying Person reimburse the Indemnified
Person for fees and expenses of counsel as contemplated by this paragraph,
the Indemnifying Person shall be liable for any settlement of any proceeding
effected without its written consent if (i) such settlement is entered into
more than 30 days after receipt by the Indemnifying Person of such request
and (ii) the Indemnifying Person shall not have reimbursed the Indemnified
Person in accordance with such request prior to the date of such settlement.
No Indemnifying Person shall, without the written consent of the Indemnified
Person, effect any settlement of any pending or threatened proceeding in
respect of which any Indemnified Person is or could have been a party and
indemnification could have been sought hereunder by such Indemnified Person,
unless such settlement (x) includes an unconditional release of such
Indemnified Person, in form and substance reasonably satisfactory to
such Indemnified Person, from all liability on claims that are the subject
matter of such proceeding and (y) does not include any statement as to or any
admission of fault, culpability or a failure to act by or on behalf of any
Indemnified Person.
(d) Contribution. If the indemnification provided for in paragraphs (a)
and (b) of this Section 7 is unavailable to an Indemnified Person or
insufficient in respect of any losses, claims, damages or liabilities referred
to therein, then each Indemnifying Person under such paragraph, in lieu of
indemnifying such Indemnified Person thereunder, shall contribute to the
amount paid or payable by such Indemnified Person as a result of such losses,
claims, damages or liabilities (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand and the
Underwriters on the other from the offering of the Securities or (ii) if the
allocation provided by clause (i) is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) but also the relative fault of the Company on the
one hand and the Underwriters on the other in connection with the statements
or omissions that resulted in such losses, claims, damages or liabilities, as
well as any other relevant equitable considerations. The relative benefits
received by the Company on the one hand and the Underwriters on the other
shall be deemed to be in the same respective proportions as the net proceeds
(before deducting expenses) received by the Company from the sale of the
Securities and the total underwriting discounts and commissions received by
the Underwriters in connection therewith, in each case as set forth in the
table on the cover of the Prospectus, bear to the aggregate offering price of
the Securities. The relative fault of the Company on the one hand and the
Underwriters on the other shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or
the omission or alleged omission to state a material fact relates to
information supplied by the Company or by the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
(e) Limitation on Liability. The Company and the Underwriters agree
that it would not be just and equitable if contribution pursuant to this
Section 7 were determined by pro rata allocation (even if the Underwriters
were treated as one entity for such purpose) or by any other method of
allocation that does not take account of the equitable considerations
referred to in paragraph (d) of this Section 7. The amount paid or payable
by an Indemnified Person as a result of the losses, claims, damages and
liabilities referred to in paragraph (d) of this Section 7 shall be deemed to
include, subject to the foregoing limitations, any legal or other expenses
incurred by such Indemnified Person in connection with any such action or
claim. Notwithstanding the provisions of this Section 7, in no event shall
an Underwriter be required to contribute any amount in excess of the amount
by which the total underwriting discounts and commissions received by such
Underwriter with respect to the offering of the Securities exceeds the
amount of any damages that such Underwriter has otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute pursuant to
this Section 7 are several in proportion to their respective purchase
obligations hereunder and not joint.
(f) Non-Exclusive Remedies. The remedies provided for in this Section 7
are not exclusive and shall not limit any rights or remedies that may otherwise
be available to any Indemnified Person at law or in equity.
8. Termination. This Agreement may be terminated in the absolute
discretion of the Representatives, by notice to the Company, if after the
execution and delivery of this Agreement and prior to the Closing Date (i)
trading generally shall have been suspended or materially limited on or by
any of the New York Stock Exchange, the NASDAQ Stock Market or the
over-the-counter market; (ii) trading of any securities issued or guaranteed
by the Company shall have been suspended on any exchange or in any
over-the-counter market; (iii) a general moratorium on commercial banking
activities shall have been declared by federal or New York State authorities
or a material disruption in commercial banking or securities settlement or
clearance services in the United States shall have occurred; or (iv) there
shall have occurred any outbreak or escalation of hostilities or any change
in financial markets or any calamity or crisis, either within or outside the
United States, that, in the judgment of the Representatives, is material and
adverse and makes it impracticable or inadvisable to proceed with the
offering, sale or delivery of the Securities on the terms and in the manner
contemplated by this Agreement, the Time of Sale Information and the
Prospectus.
9. Defaulting Underwriter. b) If, on the Closing Date, any Underwriter
defaults on its obligation to purchase the Securities that it has agreed to
purchase hereunder, the non-defaulting Underwriters may in their discretion
arrange for the purchase of such Securities by other persons satisfactory to
the Company on the terms contained in this Agreement. If, within 36 hours
after any such default by any Underwriter, the non-defaulting Underwriters do
not arrange for the purchase of such Securities, then the Company shall be
entitled to a further period of 36 hours within which to procure other
persons satisfactory to the non-defaulting Underwriters to purchase such
Securities on such terms. If other persons become obligated or agree to
purchase the Securities of a defaulting Underwriter, either the non-defaulting
Underwriters or the Company may postpone the Closing Date for up to five full
business days in order to effect any changes that in the opinion of counsel
for the Company or counsel for the Underwriters may be necessary in the
Registration Statement and the Prospectus or in any other document or
arrangement, and the Company agrees to promptly prepare any amendment or
supplement to the Registration Statement and the Prospectus that effects any
such changes. As used in this Agreement, the term "Underwriter" includes,
for all purposes of this Agreement unless the context otherwise requires, any
person not listed in Schedule 1 hereto that, pursuant to this Section 9,
purchases Securities that a defaulting Underwriter agreed but failed to
purchase.
(a) If, after giving effect to any arrangements for the purchase of the
Securities of a defaulting Underwriter or Underwriters by the non-defaulting
Underwriters and the Company as provided in paragraph (a) of this Section 9,
the aggregate principal amount of such Securities that remains unpurchased
does not exceed one-eleventh of the aggregate principal amount of all the
Securities, then the Company shall have the right to require each
non-defaulting Underwriter to purchase the principal amount of Securities
that such Underwriter agreed to purchase hereunder plus such Underwriter's
pro rata share (based on the principal amount of Securities that such
Underwriter agreed to purchase hereunder) of the Securities of such
defaulting Underwriter or Underwriters for which such arrangements have not
been made.
(b) If, after giving effect to any arrangements for the purchase of the
Securities of a defaulting Underwriter or Underwriters by the non-defaulting
Underwriters and the Company as provided in paragraph (a) of this Section 9,
the aggregate principal amount of such Securities that remains unpurchased
exceeds one-eleventh of the aggregate principal amount of all the Securities,
or if the Company shall not exercise the right described in paragraph (b) of
this Section 9, then this Agreement shall terminate without liability on the
part of the non-defaulting Underwriters. Any termination of this Agreement
pursuant to this Section 9 shall be without liability on the part of the
Company, except that the Company will continue to be liable for the payment
of expenses as set forth in Section 10 hereof and except that the provisions
of Section 7 hereof shall not terminate and shall remain in effect.
(c) Nothing contained herein shall relieve a defaulting Underwriter of
any liability it may have to the Company or any non-defaulting Underwriter
for damages caused by its default.
10. Payment of Expenses. (a) Whether or not the transactions
contemplated by this Agreement are consummated or this Agreement is
terminated, the Company will pay or cause to be paid all costs and expenses
incident to the performance of its obligations hereunder, including without
limitation, (i) the costs incident to the authorization, issuance, sale,
preparation and delivery of the Securities and any taxes payable in that
connection; (ii) the costs incident to the preparation, printing and filing
under the Securities Act of the Registration Statement, the Preliminary
Prospectus, any Issuer Free Writing Prospectus, any Time of Sale Information
and the Prospectus (including all exhibits, amendments and supplements
thereto in connection therewith) and the distribution thereof; (iii) the
costs of reproducing and distributing each of the Transaction Documents; (iv)
the fees and expenses of the Company's counsel and independent accountants;
(v) the fees and expenses incurred in connection with the registration or
qualification and determination of eligibility for investment of the
Securities under the laws of such U.S. jurisdictions as the Representatives
may designate and the preparation, printing and distribution of a Blue Sky
Memorandum (including the related fees and expenses of counsel for the
Underwriters); (vi) any fees charged by rating agencies for rating the
Securities; (vii) the fees and expenses of the Trustee and any paying agent
(including related fees and expenses of any counsel to such parties); (viii)
all expenses and application fees incurred in connection with any filing with,
and clearance of the offering by, the Financial Industry Regulatory Authority;
and (ix) all expenses incurred by the Company in connection with any "road
show" presentation to potential investors.
(b) If (i) this Agreement is terminated pursuant to Section 8, (ii) the
Company for any reason fails to tender the Securities for delivery to the
Underwriters or (iii) the Underwriters decline to purchase the Securities for
any reason permitted under this Agreement, other than due to a termination
pursuant to Section 9, the Company agrees to reimburse the Underwriters for
all out-of-pocket costs and expenses (including the fees and expenses of their
counsel) reasonably incurred by the Underwriters in connection with this
Agreement and the offering contemplated hereby.
11. Persons Entitled to Benefit of Agreement. This Agreement shall
inure to the benefit of and be binding upon the parties hereto and their
respective successors and the officers and directors and any controlling
persons referred to herein, and the affiliates of each Underwriter referred
to in Section 7 hereof. Nothing in this Agreement is intended or shall be
construed to give any other person any legal or equitable right, remedy or
claim under or in respect of this Agreement or any provision contained herein.
No purchaser of Securities from any Underwriter shall be deemed to be a
successor merely by reason of such purchase.
12. Survival. The respective indemnities, rights of contribution,
representations, warranties and agreements of the Company and the Underwriters
contained in this Agreement or made by or on behalf of the Company or the
Underwriters pursuant to this Agreement or any certificate delivered pursuant
hereto shall survive the delivery of and payment for the Securities and shall
remain in full force and effect, regardless of any termination of this
Agreement or any investigation made by or on behalf of the Company or the
Underwriters.
13. Certain Defined Terms. For purposes of this Agreement, (a) except
where otherwise expressly provided, the term "affiliate" has the meaning set
forth in Rule 405 under the Securities Act; (b) the term "business day" means
any day other than Saturday, a Sunday or a legal public holiday as defined in
5 U.S.C. 6103; (c) the term "subsidiary" has the meaning set forth in Rule 405
under the Securities Act; and (d) the term "significant subsidiary" has the
meaning set forth in Rule 1-02 of Regulation S-X under the Exchange Act.
14. Miscellaneous. c) Authority of the Representatives. Any action
by the Representatives or the Underwriters hereunder may be taken by Banc of
America Securities LLC on behalf of the Representatives and the Underwriters,
and any such action taken by Banc of America Securities LLC shall be binding
upon the Representatives and the Underwriters.
(a) Notices. All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given upon receipt at the
addresses set forth in the following sentence. Notices to the Underwriters
shall be given to the Representatives or c/o Banc of America Securities LLC,
One Bryant Park, New York, New York 10036 (fax: 212-901-7897), Attention:
Legal Department; Notices to the Company shall be given to it at 600 Grant
Street, Pittsburgh, PA 15219-9776 (fax: 412-433-2811), Attention: Robert M.
Stanton, Assistant General Counsel.
(b) Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York.
(c) Counterparts. This Agreement may be signed in counterparts (which
may include counterparts delivered by any standard form of telecommunication),
each of which shall be an original and all of which together shall constitute
one and the same instrument.
(d) Amendments or Waivers. No amendment or waiver of any provision of
this Agreement, nor any consent or approval to any departure therefrom, shall
in any event be effective unless the same shall be in writing and signed by
the parties hereto.
(e) Headings. The headings herein are included for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
If the foregoing is in accordance with your understanding, please
indicate your acceptance of this Agreement by signing in the space provided
below.
Very truly yours,
UNITED STATES STEEL CORPORATION
By:/s/ Larry T. Brockway
----------------------
Larry T. Brockway
Vice President & Treasurer
Confirmed and accepted as of the
date set forth on the first page hereof
BANC OF AMERICA SECURITIES LLC
BARCLAYS CAPITAL INC.
GOLDMAN, SACHS & CO.
J.P. MORGAN SECURITIES INC.
MORGAN STANLEY & CO. INCORPORATED
By: Banc of America Securities LLC
By /s/ William Pegler
--------------------
Authorized Signatory
For themselves and on behalf of the
several Underwriters listed
in Schedule 1 hereto.
Schedule 1
Underwriter Principal Amount of
2020 Securities
Banc of America Securities LLC. $198,000,000
Barclays Capital Inc. $60,000,000
Goldman, Sachs & Co. $60,000,000
J.P. Morgan Securities Inc. $60,000,000
Morgan Stanley & Co. Incorporated $60,000,000
UBS Securities LLC $39,000,000
Credit Suisse Securities (USA) LLC $39,000,000
PNC Capital Markets LLC $12,000,000
Citigroup Global Markets Inc. $12,000,000
Scotia Capital (USA) Inc. $12,000,000
BNY Mellon Capital Markets, LLC $12,000,000
RBS Securities Inc. $12,000,000
Commerzbank Capital Markets Corp. $12,000,000
ING Financial Markets LLC $12,000,000
Total $600,000,000
Schedule 2
Pricing Term Sheet, dated March 16, 2010, relating to the Securities and
attached as Schedule 3 hereto.
Schedule 3
UNITED STATES STEEL CORPORATION
PRICING TERM SHEET
March 16, 2010
$600,000,000 7-3/8% Senior Notes due 2020
Issuer: United States Steel Corporation
Title of Securities: 7-3/8% Senior Notes due 2020
Principal Amount: $600,000,000
Maturity: April 1, 2020
Coupon: 7.375%
Price: 99.125% of principal amount
Yield to maturity: 7.5%
Benchmark Treasury: 3-5/8% U.S. Treasury due February 15, 2020
Spread to Benchmark
Treasury: 382 basis points (3.82%)
Benchmark Treasury 3.680%
Yield:
Interest Payment April 1 and October 1 of each year,
Dates: commencing on October 1, 2010
Interest Payment
Record Dates: March 15 and September 15 of each year
Redemption
Provisions:
Mandatory None
Redemption:
Optional
Redemption: Optional redemption at any time in whole,
or from time to time in part, at a
redemption price equal to the greater of
(i) 100% of the principal amount of the
Notes redeemed and (ii) the sum of the
present values of remaining scheduled
payments of principal and interest
(exclusive of interest accrued to the
date of redemption) on such Notes
discounted to the redemption date on a
semi-annual basis at the Treasury yield
plus 50 basis points, plus accrued
interest to the redemption date.
Change of Control If a change of control repurchase event
Repurchase Event: occurs, the Company will be required to
make an offer to repurchase all
outstanding Notes at a price in cash
equal to 101% of the principal amount of
the Notes, plus any accrued and unpaid
interest to but not including the
repurchase date.
Settlement: T + 3 days; March 19, 2010
CUSIP: 912909 AF5
ISIN: US912909AF50
Joint Book-Running Banc of America Securities LLC
Managers: Barclays Capital Inc.
Goldman, Sachs & Co.
J.P. Morgan Securities Inc.
Morgan Stanley & Co. Incorporated
Co-Lead Managers: UBS Securities LLC
Credit Suisse Securities (USA) LLC
Co-Managers: PNC Capital Markets LLC
Citigroup Global Markets Inc.
Scotia Capital (USA) Inc.
BNY Mellon Capital Markets, LLC
RBS Securities Inc.
Commerzbank Capital Markets Corp.
ING Financial Markets LLC
Ratings: Moody's: Ba2
S&P: BB
Fitch: BB+
Note: A securities rating is not a
recommendation to buy, sell or hold
securities and may be subject to revision
or withdrawal at any time.
Use of Proceeds: We intend to use the net proceeds from
the Notes for general corporate purposes.
The issuer has filed a registration statement including a prospectus and a
prospectus supplement with the SEC for the offering to which this
communication relates. Before you invest, you should read the prospectus and
prospectus supplement in that registration statement and other documents the
issuer has filed with the SEC for more complete information about the issuer
and this offering. You may obtain these documents for free by visiting EDGAR
on the SEC Web site at www.sec.gov. Alternatively, the issuer, any
underwriter or any dealer participating in the offering will arrange to send
you the prospectus and the prospectus supplement if you request them by
calling BofA Merrill Lynch at 1-800-294-1322 or email
dg.prospectus_distribution@bofasecurities.com.
Annex A
Designated Subsidiaries of the Company
Entity Jurisdiction of Organization
U. S. Steel Tubular Products, Inc. Delaware
USS Portfolio Delaware, Inc. Delaware
U. S. Steel Canada Inc. Canada
U. S. Steel Global Holdings I B.V. Netherlands
U. S. Steel Kosice, s.r.o Slovak Republic
Annex B
Form of Opinion of Counsel for the Company
(i) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware;
(ii) U.S. Steel Tubular Products, Inc. has been duly incorporated and is
an existing corporation in good standing under the laws of the State of
Delaware;
(iii) The Company has an authorized capitalization as set forth in
the Registration Statement, the Time of Sale Information and the Prospectus
under the heading "Capitalization," all of the outstanding shares of capital
stock of the Company have been duly and validly authorized and issued and are
fully paid and non-assessable and all outstanding shares of capital stock or
other equity interests of each Designated Subsidiary of the Company have been
duly authorized and are validly issued, fully paid and non-assessable;
(iv) Neither the Company nor any of its U.S. subsidiaries is in violation
of its certificate of incorporation or by-laws or, to such counsel's
knowledge, none of the Company nor any of the Designated Subsidiaries is in
default in the performance or observance of any material obligation,
agreement, covenant or condition contained in any indenture, mortgage, deed
of trust, loan agreement, lease or other agreement or instrument to which it
is a party or by which it or any of its properties may be bound except for
such defaults and violations that would not, individually or in the aggregate,
have a Material Adverse Effect.
(v) Each of the Company and its Designated Subsidiaries has the power
and authority (corporate and other) to own its properties and conduct its
business as described in the Time of Sale Information and the Prospectus; is
duly qualified to do business as a foreign entity in good standing in all
other jurisdictions in which its ownership or lease of property or the conduct
of its business requires such qualification, except where the failure to do so
would not reasonably be expected to cause a Material Adverse Effect;
(vi) The Company has full right, power and authority to execute and
deliver each of the Transaction Documents and to perform its obligations
thereunder; and all action required to be taken for the due and proper
authorization, execution and delivery of each of the Transaction Documents
and the consummation of the transactions contemplated thereby has been duly
and validly taken;
(vii) No consent, approval, authorization or order of, or filing
with, any governmental agency or body or any court having jurisdiction over
the Company, its U.S. subsidiaries or their respective properties is required
for the consummation of the transactions contemplated by the Underwriting
Agreement and the other Transaction Documents in connection with the issuance
and sale of the Securities or the consummation of the Transactions, except for
(i) the effectiveness of the Registration Statement, which is in full force
and effect, and (ii) any consent, approval, authorization, or order, or filing
required pursuant to state "blue sky" laws or foreign securities laws;
(viii) Except as described in the Time of Sale Information and the
Prospectus, there are no pending actions, suits or proceedings against or
affecting the Company, any Designated Subsidiary or any of their respective
properties that, if determined adversely to the Company or any Designated
Subsidiary would reasonably be expected, individually or in the aggregate, to
have a Material Adverse Effect, or would materially and adversely affect the
ability of the Company to perform its obligations under the Underwriting
Agreement; and, to such counsel's knowledge, no such actions, suits or
proceedings are threatened;
(ix) The execution, delivery and performance of the Transaction
Documents, the issuance and sale of the Securities and compliance by the
Company with the terms thereof and the consummation of the transactions
contemplated by the Transaction Documents, will not result in a breach or
violation of any of the terms and provisions of, or constitute a default
under, (A) the Delaware General Corporation Law or those laws, rules and
regulations of the Commonwealth of Pennsylvania and the federal laws of the
United States (excluding, with respect to federal securities law, the
antifraud provisions thereof), in each case, which, in such counsel's
experience, are normally applicable to transactions of the type contemplated
by the Underwriting Agreement, (B) the respective charters or limited
liability company agreements or by-laws of the Company and the Designated
Subsidiaries (other than the Designated Subsidiaries organized and
existing outside the United States), (C) to such counsel's knowledge after
inquiring of those employees of the Company responsible for such matters,
orders of any court, regulatory tribunal, administrative agency or other
governmental body having jurisdiction over the Company, any Designated
Subsidiary or any of their respective properties or (D) to such counsel's
knowledge after inquiring of those employees of the Company responsible for
such matters, any agreement or instrument to which the Company or any
Designated Subsidiary is a party or by which the Company or any Designated
Subsidiary is bound or to which any of the properties of the Company or any
Designated Subsidiary is subject; the Company has full power and authority to
authorize, issue and sell the Securities as contemplated by the Underwriting
Agreement;
(x) (a) The Registration Statement has become effective under the
Securities Act; (b) the Prospectus was filed with the Commission pursuant to
Rule 424(b) under the Securities Act on the date specified therein; (c) to
the best of such counsel's knowledge, no order suspending the effectiveness
of the Registration Statement has been issued by the Commission, no notice of
objection of the Commission to the use of such registration statement or any
post-effective amendment thereto pursuant to Rule 401(g)(2) under the
Securities Act has been received by the Company and no proceeding for that
purpose or pursuant to Section 8A of the Securities Act against the Company
or related to the offering has been initiated or threatened by the Commission;
(d) the Registration Statement, as of the Effective Time, and the Prospectus,
as of its date and as of the date hereof, and each amendment or supplement
thereto, complied as to form in all material respects with the requirements of
the Securities Act; and (e) the documents incorporated by reference in the
Registration Statement, the Time of Sale Information and the Prospectus, when
filed with the Commission, conformed in all material respects with the
requirements of the Exchange Act;
(xi) The Indenture has been duly authorized, executed and delivered by
the Company and has been duly qualified under the Trust Indenture Act, and
constitutes a valid and legally binding obligation of the Company enforceable
in accordance with its terms, except as enforceability may be limited by
applicable bankruptcy, insolvency or similar laws affecting the enforcement
of creditors' rights generally; by equitable principles relating to
enforceability; the effect of judicial discretion on the availability of
remedies and the realization of benefits under an agreement as written
(including, without limitation, the possible refusal of a court to enforce
any provision purporting to disallow waivers by course of conduct or oral
authorization, to excuse failure to act or delay in acting by any party or to
waive trial by jury) and general matters of public policy (collectively, the
"Enforceability Exceptions");
(xii) The Supplemental Indenture setting forth the terms of the
Securities in accordance with the terms of the Indenture has been duly
authorized, executed and delivered by the Company, and is enforceable
according to its terms, subject to the Enforceability Exceptions;
(xiii) The Securities have been duly authorized and when duly
executed, authenticated and issued in accordance with the Indenture and
delivered to and paid for by the Underwriters in accordance with the terms
of the Underwriting Agreement, will constitute valid and legally binding
obligations of the Company, enforceable against the Company in accordance
with their terms, subject to the Enforceability Exceptions, and will be
entitled to the benefits of the Indenture;
(xiv) The Underwriting Agreement has been duly authorized, executed
and delivered by the Company;
(xv) Each Transaction Document conforms in all material respects to the
description thereof contained in the Registration Statement, the Time of Sale
Information and the Prospectus;
(xvi) The descriptions in the Registration Statement, the Time of
Sale Information and Prospectus of statutes, legal and governmental
proceedings and contracts and other documents are accurate and fairly present
the information required to be shown; and such counsel does not know of any
legal or governmental proceedings required to be described in the Registration
Statement, the Time of Sale Information or the Prospectus which are not
described as required, or of any contracts or documents of a character
required to be described in the Registration Statement, the Time of Sale
Information or the Prospectus or to be filed as exhibits to the Registration
Statement which are not described and filed as required;
(xvii To the knowledge of such counsel after inquiry of those
employees of the Company responsible for such matters, there are no contracts,
agreements or understandings between the Company and any person granting such
person the right to require the Company to file a registration statement under
the Securities Act with respect to any securities of the Company or to require
the Company to include such securities with the Securities registered pursuant
to the Registration Statement or with any securities being registered pursuant
to any other registration statement filed by the Company under the Securities
Act;
(xviii) The Company is not and, after giving effect to the offering and
sale of the Securities and the application of the proceeds thereof as
described in the Time of Sale Information and the Prospectus, will not be an
"investment company" or an entity "controlled" by an "investment company"
within the meaning of the Investment Company Act of 1940, as amended;
(xix) Neither the issuance, sale and delivery of the Securities nor
the application of the proceeds thereof by the Company as described in the
Registration Statement, the Time of Sale Information and the Prospectus will
violate Regulation T, U or X of the Board of Governors of the Federal Reserve
System or any other regulation of such Board of Governors;
(xx) USSK has been duly organized and is an existing limited liability
company in good standing under the laws of the Slovak Republic, with power
and authority (corporate and other) to own its properties and conduct its
business as described in the Time of the Sale Information and the Prospectus;
and USSK is duly qualified to do business as a foreign limited liability
company in good standing in all other jurisdictions in which its ownership or
lease of property or the conduct of its business requires such qualification;
(xxi) All outstanding equity interests of USSK have been duly
authorized and are validly issued, fully paid and nonassessable;
(xxii) No consent, approval, authorization or order of, or filing
with, any governmental agency or body or any court having jurisdiction over
USSK, its subsidiaries or its respective properties in the Slovak Republic or
any political subdivision thereof is required for the consummation of the
transactions contemplated by the Underwriting Agreement in connection with
the issuance and sale of the Securities by the Company;
(xxiii) The execution, delivery and performance of the Transaction
Documents, the issuance and sale of the Securities and compliance by the
Company with the terms thereof and the consummation of the transactions
contemplated by the Transaction Documents, will not result in a breach or
violation of any of the terms and provisions of, or constitute a default
under, (A) any statute or any rule or regulation in the Slovak Republic or
any political subdivision thereof, (B) the organizational documents of USSK;
(C) orders of any court, regulatory tribunal, administrative agency or other
governmental body having jurisdiction over USSK or any of its respective
properties or (D) any agreement or instrument to which USSK is a party or by
which it is bound or to which any of the properties of USSK is subject; and
(xxiv) The descriptions in the Registration Statement, the Time of
Sale Information and the Prospectus of statutes, legal and governmental
proceedings in the Slovak Republic or any political subdivision thereof and
contracts and other documents relating to USSK are accurate and fairly present
the information required to be shown; and, after inquiring of those employees
of USSK responsible for such matters, such counsel does not know of (a) any
legal or governmental proceedings in the Slovak Republic or any political
subdivision thereof or (b) any contracts or documents affecting USSK that
would reasonably be expected to have a material adverse effect upon the
financial condition, business, properties or results of operations of USSK.
(xxv) U. S. Steel Canada Inc. is a corporation existing under the
laws of Canada. There are no restrictions on the corporate power and capacity
of U.S. Steel Canada Inc. to own and lease property and assets and to carry
on business.
(xxvi) There are 116 issued and outstanding common shares in the
capital of U.S. Steel Canada Inc., all of which are fully paid and
non-assessable and U.S. Steel Canada Limited Partnership is the owner of
record of all such shares.
(xxvii) No consent, approval, authorization or order of, or filing
with, any federal or provincial governmental agency or body, or any court,
in the Province of Ontario having jurisdiction over U. S. Steel Canada Inc.
is required for the consummation of the transactions contemplated by the
Underwriting Agreement in connection with the issuance and sale of the
Securities by the Company.
(xxviii) The execution, delivery and performance of the Transaction
Documents, the issuance and sale of the Securities and compliance by the
Company with the terms thereof and the consummation of the transactions
contemplated by the Transaction Documents, will not result in a breach or
violation of any of the terms and provisions of, or constitute a default
under, (A) any statute or any rule or regulation of Canada or the Provinces
of Ontario to which U. S. Steel Canada Inc. is subject, or (B) the articles
or by-laws of U.S. Steel Canada.
Such counsel shall also state that he has participated in conferences
with representatives of the Company and with representatives of its
independent accountants at which conferences the contents of the Registration
Statement, the Time of Sale Information and the Prospectus and any amendment
and supplement thereto and related matters were discussed and, although such
counsel assumes no responsibility for the accuracy, completeness or fairness
of the Registration Statement, the Time of Sale Information and the Prospectus
and any amendment or supplement thereto (except as expressly provided),
nothing has come to the attention of such counsel to cause such counsel to
believe that (i) as of the applicable Effective Time, the Registration
Statement or any amendment thereto, including in each case any document
incorporated or deemed incorporated by reference therein, contained any untrue
statement of a material fact or omitted to state a material fact required to
be stated therein or necessary in order to make the statements therein not
misleading, (ii) as of the Time of Sale, the Time of Sale Information,
including in each case any document incorporated or deemed incorporated by
reference therein, contained any untrue statement of a material fact or
omitted to state any material fact required to be stated therein or necessary
in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading; or (iii) as of its date and as of
the Closing Date, the Prospectus or any supplement or amendment thereto,
including in each case any document incorporated or deemed incorporated
by reference therein, contained or contains any untrue statement of a material
fact or omitted or omits to state any material fact required to be stated
therein or necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading (other than the
financial statements and other financial information contained therein and
information furnished to the Company in writing by the Representatives
expressly for use in the Time of Sale Information or Prospectus, as to which
such counsel need express no belief).
In rendering such opinion, such counsel may rely as to matters of fact on
certificates of responsible officers of the Company and public officials that
are furnished to the Underwriters.
No opinion is expressed as to compliance by the Company with applicable
Canadian securities laws in connection with any distribution of the Securities
to a purchaser in Canada. The opinions set forth in paragraphs (xxv) -
(xxviii) are expressed only as to the laws of Ontario and Alberta and the
federal laws of Canada applicable therein.
The foregoing opinion shall be rendered to the Underwriters at the
request of the Company and shall so state therein.
Annex C
Form of Opinion of Outside Counsel for the Company
(i) The Indenture has been duly authorized, executed and delivered by
the Company and has been duly qualified under the Trust Indenture Act; the
Supplemental Indenture has been duly authorized, executed and delivered by the
Company; and the Indenture, as supplemented by the Supplemental Indenture,
constitutes a legal, valid and binding obligation of the Company enforceable
against the Company in accordance with its terms, subject to the
Enforceability Exceptions;
(ii) The Securities have been duly authorized and, when issued, executed
and authenticated in accordance with the provisions of the Indenture, as
supplemented by the Supplemental Indenture, and delivered to and paid for by
the Underwriters in accordance with the terms of the Underwriting Agreement,
will constitute legal, valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms, subject to the
Enforceability Exceptions, and will be entitled to the benefits of the
Indenture, as supplemented by the Supplemental Indenture;
(iii) The Underwriting Agreement has been duly authorized, executed and
delivered by the Company;
(iv) The statements set forth in the Time of Sale Information and the
Prospectus under the captions "Description of the notes" and "Description of
the debt securities," insofar as such statements purport to constitute
summaries of the terms of the Securities, constitute an accurate summary of
the terms of the Securities in all material respects;
(v) The description in the Time of Sale Information and the Prospectus
under the caption "Certain United States federal income tax considerations,"
to the extent that it purports to summarize provisions of United States
federal income tax law, is accurate in all material respects;
IRS Circular 230 Disclosure. To ensure compliance with the
requirements imposed by the IRS, we inform you that any U.S. federal tax
advice contained herein does not deal with a taxpayer's particular
circumstances. Further, it was written in support of the promotion,
marketing or recommending of the transaction or matter described herein.
This opinion was not intended or written to be used, and cannot be used, for
purposes of avoiding penalties under the Internal Revenue Code. Taxpayers
should consult their own tax advisors regarding the tax consequences to them
of their own particular circumstances.
(vi) The Company is not and, after giving effect to the offering and
sale of the Securities, will not be, an "investment company," as such term is
defined in the Investment Company Act of 1940, as amended.
(vii) The Registration Statement (except as to the financial
statements, schedules, notes, other financial and accounting data and
statistical data derived therefrom, and information about internal control
over financial reporting, as to which we express no opinion), on the date it
initially became effective under the Securities Act, appeared on its face to
be appropriately responsive in all material respects to the applicable
requirements of the Securities Act; and
(viii) The Prospectus (except as to the financial statements,
schedules, notes, other financial and accounting data and statistical data
derived therefrom, and information about internal control over financial
reporting, as to which we express no opinion), at the time such document was
filed with the Commission, appeared on its face to be appropriately responsive
in all material respects to the applicable requirements of the Securities Act
or the Exchange Act.
Such counsel shall also state that such counsel confirms that
nothing came to such counsel's attention that caused such counsel to believe
that (i) the Registration Statement, as of its most recent effective date,
pursuant to Rule 430B(f)(2) under the Securities Act, of the part of the
Registration Statement relating to the Securities for purposes of the
liability of the Underwriters under Section 11 of the Securities Act,
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; (ii) the Time of Sale Information,
considered as a whole at the Time of Sale, contained any untrue statement of
a material fact or omitted to state a material fact necessary in order to
make the statements therein, in light of the circumstances under which they
were made, not misleading or (iii) the Prospectus, as of its date, or as of
the date hereof, contained or contains any untrue statement of a material
fact or omitted or omits to state any material fact necessary in order to
make the statements therein, in the light of the circumstances under which
they were made, not misleading; provided, however, that (a) such counsel is
not passing upon and does not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration
Statement, the Time of Sale Information and the Prospectus (except with
respect to certain legal matters, as and to the extent set forth in paragraphs
(iv) and (v) in such counsel's letter delivered to the Underwriters pursuant
to Section 6(h) of the Underwriting Agreement), (b) such counsel does not
express any belief with respect to the financial statements,
schedules, notes, other financial and accounting data and statistical data
derived therefrom, and management's report on internal control over financial
reporting, in each case contained in the Registration Statement, the Time of
Sale Information or the Prospectus, and (c) such counsel does not express any
belief with respect to any statement in a document incorporated by reference
in the Registration Statement, the Time of Sale Information or the Prospectus,
to the extent that, pursuant to Rule 412 under the Securities Act, such
statement is deemed to be modified or superseded in the Registration
Statement, the Time of Sale Information or the Prospectus, as the case may be,
at the respective times as of which the advisements set forth in this
paragraph are provided.
In rendering such opinion, such counsel may rely as to matters of fact
on certificates of responsible officers of the Company and public officials
that are furnished to the Underwriters.
The foregoing opinion shall be rendered to the Underwriters at the
request of the Company and shall so state therein.