Exhibit 99.5
FORM OF
EXCHANGE AGENT & DEPOSITARY AGREEMENT
This Exchange Agent & Depositary
Agreement (this “Agreement”) is entered into as of this
2 day of February 2007 by and between U.S. Shipping Partners L.P.
and U.S. Shipping Finance Corp. (collectively, the
“Companies”), and Wells Fargo Bank, National
Association, a national banking association having its principal
corporate trust offices in Minneapolis, Minnesota (hereinafter
referred to as “Wells Fargo”).
WHEREAS, the Companies are offering
to exchange all of their outstanding 13% Senior Secured Notes due
2014 (the “Initial Notes”) for its 13% Senior Secured
Notes due 2014, which have been registered under the Securities Act
of 1933, as amended (the “Securities Act”) (the
“Exchange Notes”) upon the terms and subject to the
conditions set forth in the Prospectus dated February
, 2007 (the “Prospectus”), and the
related Letter of Transmittal, which together, as they may be
supplemented or amended from time to time, constitute the
“Offer.” All capitalized terms not defined herein
shall have the meaning ascribed to such term in the
Offer.
WHEREAS, the Companies hereby
appoint Wells Fargo to act as the exchange agent and depositary
(together, the “Exchange Agent”) in connection with the
Offer. References hereinafter to “you” shall
refer to Wells Fargo.
The Offer is expected to be
commenced by the Companies on or about
, 2007. The Letter of Transmittal that
accompanies the Offer (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 Notes to accept
the Offer. The Letter of Transmittal contains instructions
with respect to the delivery of certificates for Notes tendered in
connection therewith.
The Offer shall expire at 12:00 a.m.
midnight, New York City time, on
, 2007, or on such subsequent date or time
to which the Companies may extend the Offer (the “Expiration
Date”). Subject to the terms and conditions of the
Offer, the Company expressly reserves the right to extend the Offer
from time to time and may extend the Offer by giving oral (promptly
confirmed in writing) or written notice to you before 12:00 a.m.
midnight, New York City time, on the business day following the
scheduled Expiration Date.
The Companies expressly reserve the
right, in its sole discretion, to (1) delay accepting any validly
tendered Initial Notes or (2) terminate or amend the Offer, in each
case, by giving oral or written notice (any such oral notice to be
promptly confirmed in writing) of such delay, 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 by the
Companies.
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
Offer” 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 a book-entry account in respect of the Initial Notes at
The Depository Trust Company (“DTC”), in connection
with the Offer. Any financial institution that is a participant in
the DTC system may make book-entry delivery of the Initial Notes by
causing DTC to transfer such Initial Notes into the account
maintained by you, pursuant to this section, in accordance with
DTC’s procedures for such transfer, and you may affect a
withdrawal of Initial Notes through such account by book-entry
movement. The account shall be maintained until all Initial
Notes tendered pursuant to the Offer shall have been either
accepted or returned.
3.
You are to
examine each of the Letters of Transmittal and certificates for
Initial Notes (or confirmation of book-entry transfer into your
account at DTC) and any other documents delivered or mailed to you
by or for holders of the Initial Notes to ascertain whether: (a)
the Letters of Transmittal and any such other documents are duly
executed and properly completed in accordance with instructions set
forth therein; and (b) the Initial Notes have otherwise been
properly tendered. In each case where the Letter of
Transmittal or any other document has been improperly completed or
executed or any of the certificates for Initial Notes are not in
proper form for transfer or some other irregularity in connection
with the acceptance of the Offer exists, you will 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 the Chief Executive Officer or the Chief Financial Officer of
the Companies (such approval, if given orally, to be promptly
confirmed in writing), or any other party designated in writing by
such officer of the Companies, you are authorized to waive any
irregularities in connection with any tender pursuant to the
Offer.
Tenders of Initial Notes may be made
only as set forth in the section of the Prospectus captioned
“The Exchange Offer — Procedures for Tendering Initial
Notes” and Initial Notes shall be considered properly
tendered or delivered to you only when tendered in accordance with
the procedures set forth therein.
5.
Notwithstanding
the provisions of Section 4 of this Agreement, Initial Notes that
the Chief Executive Officer or the Chief Financial Officer of the
Companies 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 Companies with respect to any Initial Notes received subsequent
to the Expiration Date and accept its instructions with respect to
disposition of such Initial Notes.
7.
You shall accept
tenders:
(a)
in cases where
the Initial Notes are registered in two or more names only if
signed by all named holders;
2
(b)
in cases where
the signing person (as indicated on the Letter of Transmittal) 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 Initial Notes, provided that
customary transfer requirements, including payment of any
applicable transfer taxes, are fulfilled.
You shall accept partial tenders of
Initial Notes (only to the extent that the partial tender is at
least $2,000 in aggregate principal amount or in any integral
multiple of $1,000 in excess thereof) and deliver certificates for
Initial Notes to the registrar for split-up and return any
untendered Initial Notes to the holder (or such other person as may
be designated in the Letter of Transmittal) as promptly as
practicable after expiration or termination of the
Offer.
8.
Upon satisfaction
or waiver of all of the conditions to the Offer, the Companies will
notify you (such notice, if given orally, to be promptly confirmed
in writing) of its acceptance, promptly after the Expiration Date,
of all Initial Notes properly tendered indicating the aggregate
principal amount of Initial Notes accepted. You, on behalf of
the Companies, will exchange, in accordance with the terms hereof,
accepted Initial Notes for Exchange Notes and cause such Initial
Notes to be cancelled. Delivery of the Exchange Notes will be
made on behalf of the Companies by you at the rate of $1,000
principal amount of Exchange Notes for each $1,000 principal amount
of the corresponding series of Notes tendered promptly after notice
(such notice if given orally, to be promptly confirmed in writing)
of acceptance of such Notes by the Company; provided ,
however , that in all cases, Notes tendered pursuant to the
Offer will be exchanged only after timely receipt by you of
certificates for such Notes (or confirmation of book-entry transfer
into your account at 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
Exchange Notes only in denominations of $1,000 or any integral
multiple thereof.
9.
Notes tendered
pursuant to the Offer are irrevocable, except that, subject to the
terms and upon the conditions set forth in the Prospectus and the
Letter of Transmittal, Notes tendered
