EXHIBIT 99.9
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FORM OF EXCHANGE AGENT AGREEMENT
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The Bank of New York
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Attention: Corporate Trust Administration
Ladies and Gentlemen:
United States Steel LLC, a Delaware limited liability company (the
"Company"), proposes to offer up to $365 million aggregate principal amount of
__% Senior Quarterly Income Debt Securities (SQUIDSSM) due 2031 (the "New
Securities") in exchange (the "Exchange Offers") for an equal face amount of
6.50% Cumulative Convertible Preferred Stock of USX Corporation, 6.75%
Convertible Quarterly Income Preferred Securities of USX Capital Trust I, and
8.75% Cumulative Monthly Income Preferred Shares, Series A, of USX Capital LLC
(collectively, the "Old Securities"). The terms and conditions of the Exchange
Offers as currently contemplated are set forth in a prospectus, dated
___________ (the "Prospectus"), and the related Letters of Transmittal proposed
to be distributed to all record holders of the Old Securities. The Old
Securities and the New Securities are collectively referred to herein as the
"Securities".
The Company hereby appoints The Bank of New York to act as exchange
agent (the "Exchange Agent") in connection with the Exchange Offers. References
hereinafter to "you" shall refer to The Bank of New York.
The Exchange Offers are expected to be commenced by the Company on or
about _____________. The Letters of Transmittal accompanying the Prospectus (or
in the case of book-entry securities, the Automated Tender Offer Program
("ATOP") of DTC (as defined below)) is to be used by the holders of the Old
Securities to tender their Old Securities in the Exchange Offers. The
Prospectus and Letters of Transmittal contain instructions with respect to the
tender of Old Securities in the Exchange Offers.
The Exchange Offers shall expire at 5:00 p.m., New York City time, on
_________ or on such subsequent date or time to which the Company may extend the
Exchange Offers (the latest time and date to which the Exchange Offers are
extended are referred to herein as the "Expiration Date"). Subject to the terms
and conditions set forth in the Prospectus, the Company expressly reserves the
right to extend the Exchange Offers from time to time and may extend the
Exchange Offers by giving oral (promptly confirmed in writing) or written notice
to you before 9:00 a.m., New York City time, on the business day following the
previously scheduled Expiration Date.
The Company expressly reserves the right, in its sole discretion, to
(1) delay accepting any validly tendered Old Securities of any series, or (2)
terminate or amend the Exchange Offers, by giving oral or written notice of such
delay (any such oral notice to be promptly confirmed in writing), termination or
amendment to the Exchange Agent. Any such delay in acceptance, termination or
amendment will be followed as promptly as practicable by a public announcement
thereof.
In addition, the Exchange Offers are subject to a number of conditions
precedent which are specified in the Prospectus under the caption "The Exchange
Offers -- Conditions Precedent to the Exchange Offers."
In carrying out your duties as Exchange Agent, you are to act in
accordance with the following instructions:
1. You will perform such duties and only such duties as are
specifically set forth in the section of the Prospectus captioned "The Exchange
Offers" or as specifically set forth herein; provided, however, that in no way
will your general duty to act in good faith be discharged by the foregoing.
2. You will establish book-entry accounts with respect to each series
the Old Securities (the "Accounts") at The Depository Trust Company ("DTC") for
purposes of receiving tenders of Outstanding Securities in the Exchange Offers
within two business days after the date of the Prospectus, and any financial
institution that is a participant in DTC's systems may make book-entry delivery
of the Old Securities by causing DTC to transfer such Old Securities into such
Accounts in accordance with DTC's procedure for such transfer.
3. You are to examine each of the Letters of Transmittal and
certificates for Old Securities (or confirmation of book-entry transfer into
your Accounts at DTC) and any other documents delivered or mailed to you by or
for holders of the Old Securities to ascertain whether: (i) the Letters of
Transmittal and any such other documents are duly executed and properly
completed in accordance with instructions set forth therein; (ii) the Old
Securities have otherwise been properly tendered; (iii) in the event of a
transfer of ownership of Outstanding Securities not registered in the security
listing position of DTC, that the signatures on the Letter of Transmittal are
guaranteed by an Eligible Guarantor Institution and that the Letter of
Transmittal is accompanied by the appropriate transfer documents and evidence of
payment of any applicable transfer taxes; and (iv) all other documents submitted
with the Letter of Transmittal appear to be duly completed and signed. In each
case where the Letter of Transmittal or any other document has been improperly
completed or executed or any of the certificates for Old Securities are not in
proper form for transfer or some other irregularity in connection with the
acceptance of the Exchange Offers exists, you will promptly endeavor to inform
the presenters of the need for fulfillment of all requirements and to take any
other action as may be reasonably necessary or advisable to cause such
irregularity to be corrected.
4. With the approval of any officer or Assistant Treasurer of the
Company (such approval, if given orally, to be promptly confirmed in writing) or
any
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other party designated in writing by any officer or Assistant Treasurer, you are
authorized to waive any irregularities in connection with any tender of Old
Securities pursuant to the Exchange Offers.
5. Tenders of Old Securities may be made only as set forth in the
section of the Prospectus captioned "The Exchange Offers -- Procedures for
Tendering", and Old Securities shall be considered properly tendered to you only
when tendered in accordance with the procedures set forth therein.
Notwithstanding the provisions of this Section 5, Old Securities which
any officer or Assistant Treasurer, of the Company shall approve as having been
properly tendered shall be considered to be properly tendered (such approval, if
given orally, shall be promptly confirmed in writing).
6. You shall advise the Company with respect to any Old Securities
received subsequent to the Expiration Date and accept its instructions with
respect to disposition of such Old Securities.
7. You shall accept tenders:
(a) in cases where the Old Securities are registered in two or
more names only if separate Letters of Transmittal are completed, signed and
delivered by all named holders (or a separate agent's message is delivered with
respect to each such named holder);
(b) in cases where the signing person (as indicated on the Letter
of Transmittal or in the agent's message) is acting in a fiduciary or a
representative capacity only when proper evidence of his or her authority so to
act is submitted; and
(c) from persons other than the registered holder of Old
Securities, provided that customary transfer requirements, including payment of
any applicable transfer taxes, are fulfilled and required signature guarantees
are delivered.
You shall not accept partial tenders of Old Securities.
8. Upon satisfaction or waiver of all of the conditions to the
Exchange Offers, the Company will notify you (such notice, if given orally, to
be promptly confirmed in writing) of its acceptance, promptly after the
Expiration Date, of Old Securities properly tendered indicating the aggregate
face amount of Old Securities accepted in the Exchange Offers and whether any
proration of tendered Outstanding Securities was required. You, on behalf of the
Company, will exchange, in accordance with the terms hereof, accepted Old
Securities for New Securities plus a cash payment of accrued but unpaid
dividends or distributions on the Old Securities accepted, and you will cause
such Old Securities to be cancelled. In the event that the Company notifies you
that proration of tendered Outstanding Securities was required, you shall also
deliver in accordance with the terms hereof, to each holder of accepted
Outstanding Securities, such number of Outstanding Securities that were tendered
but not accepted in the Exchange Offers as a result of proration by book-entry
transfer to the DTC account specified by the
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tendering holder in the Letter of Transmittal (or agent's message in lieu
thereof). Delivery of New Securities, plus payment of accrued but unpaid
dividends or distributions, shall be made by you on behalf of the Company by
book-entry transfer to the DTC account specified by the holder of accepted
Outstanding Securities in the Letter of Transmittal (or agent's message in lieu
thereof) as follows: (i) $50 principal amount of New Securities, for each
validly tendered and accepted share of 6.50% Cumulative Convertible Preferred
Stock of USX Corporation ("6.50% Preferred Stock"), plus a cash payment for
accrued but unpaid dividends thereon; (ii) $50 principal amount of New
Securities, for each validly tendered and accepted 6.75% Convertible Quarterly
Income Preferred Security of USX Capital Trust I ("6.75% QUIPS"), plus a cash
payment for accrued but unpaid distributions thereon; and (iii) $25 principal
amount of New Securities, for each validly tendered and accepted 8.75%
Cumulative Monthly Income Preferred Share, Series A, of USX Capital LLC ("8.75%
MIPS"), plus a cash payment for accrued but unpaid dividends thereon. Such
delivery shall only be made by you after notice (such notice if given orally, to
be promptly confirmed in writing) of acceptance of said Old Securities by the
Company; provided, however, that in all cases, Old Securities tendered pursuant
to the Exchange Offers will be exchanged only after timely receipt by you of
certificates for such Old Securities (or confirmation of book-entry transfer
into your account at the DTC), a properly completed and duly executed Letter of
Transmittal (or manually signed facsimile thereof) with any required signature
guarantees and any other required documents, or an agent's message in lieu
thereof. You shall issue New Securities only in denominations of $25 or any
integral multiple thereof.
9. Tenders pursuant to the Exchange Offers are irrevocable, except
that, subject to the terms and upon the conditions set forth in the Prospectus
and the Letters of Transmittal, Old Securities tendered pursuant to the Exchange
Offers may be withdrawn at any time prior to the Expiration Date.
10. The Company shall not be required to exchange any Old Securities
tendered if any of the conditions set forth in the Exchange Offers are not met.
Notice of any decision by the Company not to exchange any Old Securities
tendered shall be given (if given orally, to be promptly confirmed in writing)
by the Company to you.
11. If, pursuant to the Exchange Offers, the Company does not accept
for exchange all or part of the Old Securities tendered because of an invalid
tender, or failure to satisfy or waive any of the conditions to the Exchange
Offers set forth in the Prospectus under the caption "The Exchange Offers --
Conditions Precedent to the Exchange Offers" or otherwise, you shall as soon as
practicable after the expiration or termination of the Exchange Offers return
those certificates for unaccepted Old Securities (or effect appropriate book-
entry transfer by crediting the DTC account numbers indicated by such persons ),
together with any related required documents and the Letters of Transmittal
relating thereto that are in your possession, to the persons who deposited them.
12. Old Securities that are not accepted in the Exchange Offer as a
result of proration and all New Securities shall be delivered by book-entry
transfer to the DTC account designated by the holder of tendered Old Securities
in the Letter of
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Transmittal or agent's message. All payments of accrued and unpaid dividends or
distributions on Old Securities accepted by the Company in the Exchange Offers
shall be paid by you by crediting the DTC account number specified by the
tendering holder of Old Securities. Promptly following the Exchange Date, the
Company shall provide you with an amount of cash sufficient to pay any accrued
but unpaid dividends or distributions on the accepted Outstanding Securities.
13. You shall forward to the Company and the Dealer Managers all
information regarding Soliciting Dealers designated in any Letters of
Transmittal, or agent's message in lieu thereof, on or prior to the second New
York Stock Exchange trading day after the Expiration Date. You are not
authorized to pay or offer to pay any concessions, commissions or solicitation
fees to any broker, dealer, bank or other persons or to engage or utilize any
person to solicit tenders.
14. In the event that any holder of any certificate(s) representing
shares of 6.50% Preferred Stock ("Certificates") claims that such Certificate(s)
has been lost, stolen or destroyed, you shall mail to such holder an affidavit
of loss and an indemnity bond. You shall deliver the New Securities (plus
accrued but unpaid dividends) to such holder upon exchange of such shares of
6.50% Preferred Stock only upon delivery to the Exchange Agent of a properly
completed and signed affidavit of loss and the posting of an indemnity bond in
an amount reasonably determined by the Company as indemnity against any claim
that may be made against the Company with respect to such Certificate(s). Risk
of loss and title to Certificates will pass only upon delivery of Certificates
to the Exchange Agent.
15. As Exchange Agent hereunder you:
(a) shall not be liable for any action or omission to act unless
the same constitutes your own negligence, willful misconduct or bad faith, and
in no event shall you be liable to a securityholder, the Company or any third
party for special, indirect or consequential damages, or lost profits, arising
in connection with this Agreement;
(b) shall have no duties or obligations other than those
specifically set forth herein or in the Prospectus or as may be subsequently
agreed to in writing between you and the Company;
(c) will be regarded as making no representations and having no
responsibilities as to the validity, sufficiency, value or genuineness of any of
the certificates or the Old Securities represented thereby deposited with you
pursuant to the Exchange Offers, and will not be required to and will make no
representation as to the validity, value or genuineness of the Exchange Offers;
(d) shall not be obligated to take any legal action hereunder
which might in your judgment involve any expense or liability, unless you shall
have been furnished with indemnity satisfactory to you;
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(e) may conclusively rely on and shall be protected in acting in
reliance upon any certificate, instrument, opinion, notice, letter, telegram or
other document or security delivered to you and reasonably believed by you to be
genuine and to have been signed or presented by the proper person or persons;
(f) may act upon any tender, statement, request, document,
agreement, certificate or other instrument whatsoever not only as to its due
execution and validity and effectiveness of its provisions, but also as to the
truth and accuracy of any information contained therein, which you shall in good
faith believe to be genuine or to have been signed or presented by the proper
person or persons;
(g) may conclusively rely on and shall be protected in acting in
good faith upon written or oral instructions from any authorized officer or
Assistant Treasurer of the Company;
(h) may consult with counsel of your selection with respect to
any questions relating to your duties and responsibilities and the advice or
opinion of such counsel shall be full and complete authorization and protection
in respect of any action taken, suffered or omitted to be taken by you hereunder
in good faith and in accordance with the advice or opinion of such counsel; and
(i) shall not advise any person tendering Old Securities
pursuant to the Exchange Offers as to the wisdom of making such tender or as to
the market value or decline or appreciation in market value of any Securities.
16. You shall take such action as may from time to time be requested
by the Company (and such other action as you may deem appropriate) to furnish
copies of the Prospectus, Letters of Transmittal and the Notices of Guaranteed
Delivery (as defined in the Prospectus) or such other forms as may be approved
from time to time by the Company, to all persons requesting such documents and
to accept and comply with telephone requests for information relating to the
Exchange Offers, provided that such information shall relate only to the
procedures for accepting (or withdrawing from) the Exchange Offers. The Company
will furnish you with copies of such documents on your request. All other
requests for information relating to the Exchange Offer shall be directed to the
Information Agent or the Dealer Managers at their addresses and telephone
numbers on the back cover of the Prospectus.
17. You shall advise by facsimile transmission _____, the _____ of
the Company (at the facsimile number _____), and such other person or persons as
the Company may request, daily (and more frequently during the week immediately
preceding the Expiration Date if requested) up to and including the Expiration
Date, as to the aggregate face value of Old Securities which have been tendered
pursuant to the Exchange Offers and the items received by you pursuant to this
Agreement, separately reporting and giving cumulative totals as to each series
of Outstanding Securities and the items properly received and items improperly
received. In addition, you will also inform, and cooperate in making available
to, the Company or any such other person or persons upon oral request made from
time to time prior to the Expiration Date of such other
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information as they may reasonably request. Such cooperation shall include,
without limitation, the granting by you to the Company and such person as the
Company may request of access to those persons on your staff who are responsible
for receiving tenders, in order to ensure that immediately prior to the
Expiration Date the Company shall have received information in sufficient detail
to enable it to decide whether to extend the Exchange Offers. If proration of
the tendered Outstanding Securities is required, as described in the Prospectus
under the caption "The Exchange Offers-Acceptance of Outstanding Securities for
Exchange; Proration", you shall cooperate with the Company in calculating the
aggregate face value of each series of Outstanding Securities that may be
accepted in the Exchange Offers. You shall then prepare a final list of all
holders whose tenders were accepted, the aggregate face value of each series of
Old Securities tendered, and the aggregate face value of each series of Old
Securities accepted, taking into account any Outstanding Securities that the
Company advised you were not accepted as a result of proration, and deliver said
list to the Company.
18. Letters of Transmittal and Notices of Guaranteed Delivery shall
be stamped by you as to the date and, after the expiration of the Exchange
Offers, the time, of receipt thereof and shall be preserved by you for a period
of time at least equal to the period of time you preserve other records
pertaining to the transfer of securities. You shall dispose of unused Letters of
Transmittal and other surplus materials by returning them to the Company.
19. For services rendered as Exchange Agent hereunder, you shall be
entitled to such compensation as set forth on Schedule I attached hereto. The
provisions of this section shall survive the termination of this Agreement.
20. You hereby acknowledge receipt of the Prospectus and the Letters
of Transmittal. Any inconsistency between this Agreement, on the one hand, and
the Prospectus and the Letters of Transmittal (as they may be amended from time
to time), on the other hand, shall be resolved in favor of the latter two
documents, except with respect to your duties, liabilities and indemnification
as Exchange Agent.
21. The Company covenants and agrees to fully indemnify and hold you
harmless against any and all loss, liability, cost or expense, including
[reasonable] attorneys' fees and reasonable expenses, incurred without [gross]
negligence or willful misconduct on your part, arising out of or in connection
with any act, omission, delay or refusal made by you in reliance upon any
signature, endorsement, assignment, certificate, order, request, notice,
instruction or other instrument or document reasonably believed by you to be
valid, genuine and sufficient and in accepting any tender or effecting any
transfer of Old Securities believed by you in good faith to be authorized, and
in delaying or refusing in good faith to accept any tenders or effect any
transfer of Old Securities. In each case, the Company shall be notified by you,
by letter or facsimile transmission, of the written assertion of a claim against
you or of any other action commenced against you, promptly after you shall have
received any such written assertion or shall have been served with a summons in
connection therewith. The Company shall be entitled to participate at its own
expense in the defense of any such claim or other action and, if the Company so
elects, the Company shall assume the defense of any suit brought to enforce
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any such claim. In the event that the Company shall assume the defense of any
such suit, the Company shall not be liable for the fees and expenses of any
additional counsel thereafter retained by you, so long as the Company shall
retain counsel reasonably satisfactory to you to defend such suit, and so long
as you have not determined, in your reasonable judgment, that a conflict of
interest exists between you and the Company. The provisions of this section
shall survive the termination of this Agreement.
22. You shall arrange to comply with all requirements under the tax
laws of the United States, including those relating to missing Tax
Identification Numbers, and shall file any appropriate reports with the Internal
Revenue Service.
23. You shall deliver or cause to be delivered, in a timely manner to
each governmental authority to which any transfer taxes are payable in respect
of the exchange of Old Securities, the Company's payment in the amount of all
transfer taxes so payable; provided, however, that you shall reimburse the
Company for amounts refunded to you in respect of your payment of any such
transfer taxes, at such time as such refund is received by you.
24. This Agreement and your appointment as Exchange Agent hereunder
shall be construed and enforced in accordance with the laws of the State of New
York applicable to agreements made and to be performed entirely within such
state, and without regard to conflicts of law principles, and shall inure to the
benefit of, and the obligations created hereby shall be binding upon, the
successors and assigns of each of the parties hereto.
25. This Agreement may be executed in two or more counterparts, each
of which shall be deemed to be an original and all of which together shall
constitute one and the same agreement.
26. In case any provision of this Agreement shall be invalid, illegal
or unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
27. This Agreement shall not be deemed or construed to be modified,
amended, rescinded, cancelled or waived, in whole or in part, except by a
written instrument signed by a duly authorized representative of the party to be
charged. This Agreement may not be modified orally.
28. Unless otherwise provided herein, all notices, requests and other
communications to any party hereunder shall be in writing (including facsimile
or similar writing) and shall be given to such party, addressed to it, at its
address or telecopy number set forth below:
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If to the Company:
United States Steel LLC
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Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Attention: General Counsel
If to the Exchange Agent:
The Bank of New York
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Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Attention: Corporate Trust Administration
29. Unless terminated earlier by the parties hereto, this Agreement
shall terminate 90 days following the Expiration Date. Notwithstanding the
foregoing, Sections 19 and 21 shall survive the termination of this Agreement.
Upon any termination of this Agreement, you shall promptly deliver to the
Company any certificates for accepted Old Securities, and any funds or property
then held by you as Exchange Agent under this Agreement.
30. This Agreement shall be binding and effective as of the date
hereof.
[SIGNATURE PAGE FOLLOWS]
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Please acknowledge receipt of this Agreement and confirm the
arrangements herein provided by signing and returning the enclosed copy.
UNITED STATES STEEL LLC
By:
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Name: E.F. Guna
Title: Vice President
Accepted as of the date
first above written:
THE BANK OF NEW YORK, as Exchange Agent
By:
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Name:
Title:
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SCHEDULE I
COMPENSATION OF EXCHANGE AGENT:
PLUS _____ PER EXTENSION OF OFFER
PLUS OUT-OF POCKET EXPENSES, INCLUDING, WITHOUT
LIMITATION, LEGAL FEES AND REASONABLE EXPENSES.
