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Exhibit 99.6
EXCHANGE AGENT AGREEMENT
This Agreement is entered into as of _______ ,1997 between IBJ Xxxxxxxx Bank &
Trust Company, a corporation organized under the laws of the State of New York,
as Exchange Agent (the "Agent"), Interpool Capital Trust, a business trust
organized under the laws of the State of Delaware, and Interpool, Inc., a
corporation organized under the laws of the State of Delaware (the "Company").
The Trust proposes to offer upon the terms and conditions set forth in the
Prospectus (the "Prospectus") contained in the Registration Statement on Form
S-4, Registration No. 333-27865 (the "Registration Statement") and the
accompanying Letter of Transmittal, the form of which is attached hereto as
Exhibit A (the "L/T") to exchange $1,000 liquidation amount of its 9 7/8% Series
B Capital Securities (the "Exchange Capital Securities") which have been
registered under the Securities Act of 1933, as amended, for each $1,000
liquidation amount of its outstanding unregistered 9 7/8% Series A Capital
Securities (the "Private Capital Securities") of which $75,000,000 liquidation
amount is outstanding. The Trust will accept for exchange any and all Exchange
Capital Securities validly tendered and not withdrawn prior to 5:00 p.m. New
York City time on ____ , 1997, unless extended by the Trust and the Company in
their sole discretion (the "Expiration Date"). In addition, as provided in the
Prospectus, the Company proposes to offer to exchange (i) its guarantee of
payments of cash distributions and payments on liquidation of the Trust or
redemption of the Private Capital Securities (the "Private Guarantee") for a
like guarantee in respect of the Exchange Capital Securities (the "Exchange
Guarantee") and (ii) all of its 9 7/8% Series B Junior Subordinated Deferrable
Interest Debentures (the "Exchange Junior Subordinated Debentures") for a like
principal amount of its 9 7/8% Series A Junior Subordinated Deferrable Interest
Debentures (the "Private Junior Subordinated Debentures").
Subject to the provisions hereof, the Trust and the Company hereby appoint the
Agent, and the Agent hereby accepts the appointment as Exchange Agent for the
purposes of receiving, accepting for delivery and otherwise acting upon tenders
of the Private Capital Securities in accordance with the L/T and with the terms
and conditions of the Exchange Offer section of the Prospectus (the "Exchange
Offer").
The Agent has received the following documents in connection with its
appointment:
(1) the Registration Statement, including the Prospectus;
(2) the L/T;
(3) the Notice of Guaranteed Delivery;
(4) the Letter to Clients;
(5) the Letter to Nominees; and
(6) W-9 Guidelines.
The Agent shall receive from IBJ Xxxxxxxx Bank & Trust Company (the "Registrar")
no later than 5:00 p.m., New York City time, on ________ __, 1997, a list of all
holders of Private Capital Securities eligible to participate in the Exchange
Offer, to include the amount owned of record by each such holder. The Registrar
will also promptly notify the Agent of any changes in the registered ownership
during the Exchange Offer.
The Agent is authorized and hereby agrees to act as follows:
(a) to establish an account with respect to the Exchange Capital
Securities at the Depository Trust Company ("DTC," or the
"Book-Entry Transfer Facility") within
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two days after the date of execution of this Agreement. Any
financial institution that is a participant in the Book-Entry
Transfer Facility system may, until the Expiration Date, make
book-entry delivery of the Private Capital Securities by
causing DTC to transfer such Private Capital Securities into
its account in accordance with the procedure for such transfer
established by the Book-Entry Transfer Facility. The Agent
shall obtain, no later than 4:00 p.m., New York City time, on
the date that the Exchange Offer is commenced, a DTC position
listing regarding the Private Capital Securities;
(b) to receive all tenders of Private Capital Securities made
pursuant to the Exchange Offer and stamp the L/T with the day,
month and approximate time of receipt;
(c) to examine each L/T and Private Capital Security received to
determine that all requirements necessary to constitute a
valid tender have been met. The Agent shall be entitled to
rely on the DTC electronic messages sent regarding ATOP
delivery of the Private Capital Securities to the Agent's
account at DTC from the DTC participants listed on the DTC
position listing provided to the Agent;
(d) to take such actions necessary and appropriate to correct any
irregularity or deficiency associated with any tender not in
proper order;
(e) to follow instructions given by any Regular Trustee of the
Trust with respect to the waiver of any irregularities or
deficiencies associated with any tender;
(f) to hold all valid tenders subject to further instructions from
any Regular Trustee of the Trust;
(g) to render a written report, in the form of Exhibit B attached
hereto, on each business day during the Exchange Offer and
promptly confirm, by telephone, the information contained
therein to Xxxxxxx X. Xxxxx, Regular Trustee of the Trust and
Senior Vice President of the Company;
(h) to follow and act upon any written amendments, modifications
or supplements to these instructions, any of which may be
given to the Agent by any Regular Trustee of the Trust, or the
President, any Vice President or the Secretary of the Company
or such other person or persons as they shall designate in
writing;
(i) to return to the presenters, in accordance with the provisions
of the L/T, any Private Capital Securities that were not
received in proper order and as to which the irregularities or
deficiencies were not cured or waived;
(j) in the event the Exchange Offer is consummated, to deliver
authenticated Exchange Capital Securities to tendering
Private Capital Securityholders, in accordance
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with the instructions of such Private Capital Securityholder
specified in the respective L/T's, as soon as practicable
after receipt thereof;
(k) to deliver by First Class Mail, postage prepaid, the
consideration to which the presenters are entitled, if any, at
the addresses specified in the L/T's, as soon as practicable
after receipt thereof;
(l) to determine that all endorsements, guarantees, signatures,
authorities, stock transfer taxes (if any) and such other
requirements are fulfilled in connection with any request for
issuance of the Exchange Capital Securities in a name other
than that of the registered owner of the Private Capital
Securities; and
(m) to deliver to the Registrar all Private Capital Securities
accepted by the Trust and the Company for exchange pursuant to
the Exchange Offer, together with any related assignment forms
and other documents; and
(n) if, pursuant to the terms of the Exchange Offer, the Trust and
the Company do not accept for tender all or any part of
the Private Capital Securities tendered, or Private Capital
Securities tendered are withdrawn in the manner provided
in "The Exchange Offer--Withdrawal of Tenders" in the
Prospectus, or partial tenders are made, to promptly return
to, or, upon the order of, the tendering Capital
Securityholders, such Private Capital Securities not accepted,
and to the extent required submit to the Registrar of the
Private Capital Securities for reissuance to, or upon the
order of, the tendering Private Capital Securityholder, such
Private Capital Securities not tendered or exchanged, which
Private Capital Securities shall be returned to the Agent for
distribution to the Private Capital Securityholders.
The Agent shall:
(a) have no duties or obligations other than those specifically
set forth herein;
(b) not be required to and shall make no representations and have
no responsibilities as to the validity, accuracy, value or
genuineness of (i) the Exchange Offer, (ii) any Private
Capital Securities, L/T's or documents prepared by the Trust
and the Company in connection with the Exchange Offer or (iii)
any signatures or endorsements, other than its own;
(c) not be obligated to take any legal action hereunder that
might, in its judgment, involve any expense or liability,
unless it has been furnished with reasonable indemnity by the
Trust and the Company;
(d) be able to rely on and shall be protected in acting on the
written or oral instructions with respect to any matter
relating to its actions as Agent specifically covered by this
Agreement, of any regular trustee of the Trust and any officer
of the Company authorized to give instructions under paragraph
(e) (f) or (h) above;
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(e) be able to rely on and shall be protected in acting upon any
certificate, instrument, opinion, notice, letter, telegram or
any other document or security delivered to it and believed by
it reasonably and in good faith to be genuine and to have been
signed by the proper party or parties;
(f) not be responsible for or liable in any respect on account of
the identity, authority or rights of any person executing or
delivering or purporting to execute or deliver any document or
property under this Agreement and shall have no responsibility
with respect to the use or application of any property
delivered by it pursuant to the provisions hereof;
(g) be able to consult with counsel satisfactory to it (including
counsel for the Trust and the Company) 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 by it hereunder in good faith and in
accordance with advice or opinion of such counsel;
(h) not be called on at any time to advise, and shall not advise,
any person delivering an L/T pursuant to the Exchange Offer as
to the value of the consideration to be received;
(i) not be liable for anything which it may do or refrain from
doing in connection with this Agreement except for its own
gross negligence, willful misconduct or bad faith;
(j) not be bound by any notice or demand, or any waiver or
modification of this Agreement or any of the terms hereof,
unless evidenced by a writing delivered to the Agent signed by
the proper authority or authorities and, if the Agent's duties
or rights are affected, unless the Agent shall give its prior
written consent thereto;
(k) have no duty to enforce any obligation of any person to make
delivery, or to direct or cause any delivery to be made, or to
enforce any obligation of any person to perform any other act;
(l) have the right to assume, in the absence of written notice to
the contrary from the proper person or persons, that a fact or
an event by reason of which an action would or might be taken
by the Agent does not exist or has not occurred without
incurring liability for any action taken or omitted, or any
action suffered by the Agent to be taken or omitted, in good
faith or in the exercise of the Agent's best judgment, in
reliance upon such assumption; and
(m) have no liability whatsoever in connection with Private
Capital Securities tendered to it which may have stops placed
against them unless it is furnished with a stop list from the
transfer agent.
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The Agent shall be entitled to compensation as set forth in Exhibit C attached
hereto.
The Company covenants and agrees to reimburse the Agent for, indemnify it
against, and hold it harmless from any and all reasonable costs and expenses
(including reasonable fees and expenses of counsel) that may be paid or incurred
or suffered by it or to which it may become subject without gross negligence,
willful misconduct or bad faith on its part by reason of or as a result of its
compliance with the instructions set forth herein or with any additional or
supplemental written or oral instructions delivered to it pursuant hereto, or
which may arise out of or in connection with the administration and performance
of its duties under this Agreement.
This Agreement shall be construed and enforced in accordance with the laws of
the State of New York and shall inure to the benefit of, and the obligations
created hereby shall be binding upon, the successors and assigns of the parties
hereto. The parties agree to submit and to the exclusive jurisdiction of the
federal or state courts located in the State of New York, New York County.
Unless otherwise expressly provided herein, all notices, requests, demands and
other communications hereunder shall be in writing, shall be delivered by hand,
facsimile or by First Class Mail, postage prepaid, shall be deemed given when
received and shall be addressed to the Agent, the Trust and the Company at the
respective addresses listed below or to such other addresses as they shall
designate from time to time in writing, forwarded in like manner.
If to the Agent, to: IBJ Xxxxxxxx Bank & Trust Company
Xxx Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Corporate Trust Administration
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Company, to: Interpool, Inc.
000 Xxxxxxx Xxxx Xxxx
Xxxxxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxxxx X. Xxxxx
Senior Vice President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with copies to: Stroock & Stroock & Xxxxx LLP
000 Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxxxx. Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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If to the Trust, to: Interpool Capital Trust
c/o Interpool, Inc.
000 Xxxxxxx Xxxx Xxxx
Xxxxxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxxxx X. Xxxxx
Regular Trustee
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with copies to: Stroock & Stroock & Xxxxx LLP
000 Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxxxx. Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
on their behalf by their officers thereunto duly authorized, all as of the day
and year first above written.
IBJ Xxxxxxxx Bank & Trust Company
By: ___________________________
Interpool Capital Trust
By: ___________________________
Name: Xxxxxxx X. Xxxxx
Title: Regular Trustee
Interpool, Inc.
By: ___________________________
Name: Xxxxxxx X. Xxxxx
Title: Senior Vice President
