EXCHANGE AGENT AGREEMENT
[ ], 1999
The Bank of New York
Corporate Trust Administration
000 Xxxxxxx Xxxxxx - 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
CILCORP Inc. (the "Company") proposes to make an offer (the "Exchange
Offer") to exchange its 8.700% Senior Notes due 2009 (the "Old Notes") for its
8.700% Senior Notes due 2009 which have been registered under the Securities Act
of 1933, as amended (the "New Notes") and 9.375% Senior Bonds due 2029 (the "Old
Bonds" and together with the Old Notes, the "Old Securities") for its 9.375%
Senior Bonds due 2029 which have been registered under the Securities Act of
1933, as amended (the "New Bonds" and together with the New Notes, the "New
Securi ties"). The terms and conditions of the Exchange Offer as currently
contemplated are set forth in a prospectus, dated [ ], 1999 (the "Prospectus")
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 Offer. References
hereinafter to "you" shall refer to The Bank of New York.
The Exchange Offer is expected to be commenced by the Company on or
about [ ], 1999. The Letter of Transmittal accompanying the Prospectus (or in
the case of book-entry securities, the Automated Tender Offer Program (ATOP) of
the Book-Entry Transfer Facility referred to in paragraph 2 below) is to be used
by the holders of the Old Securities to accept the Exchange Offer, and contains
instructions with respect to the (i) delivery of certificates for Old Securities
tendered in connection therewith and (ii) the book-entry transfer of Securities
to the Exchange Agent's account.
The Exchange Offer shall expire at 5:00 p.m., New York City time, on
[ ], 1999, or on such later date or time to which the Company may extend the
Exchange Offer (the "Expiration Date"). Subject to the terms and conditions set
forth in the Prospectus, the Company expressly reserves the right to extend the
Exchange Offer from time to time and may extend the Exchange Offer by giving
oral (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 reserves the right to amend or terminate the Exchange Offer
and not to accept for exchange any Old Securities not theretofore accepted for
exchange, upon the occurrence of any of the conditions of the Exchange Offer
specified in the Prospectus under the caption "The Exchange Offer - Conditions
to the Exchange Offer." The Company will give oral (confirmed in writing) or
written notice of any amendment or termination of the Exchange
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Offer or nonacceptance of Old Securities to you promptly after any amendment,
termination or nonacceptance.
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 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 an account with respect to the Old Securities at
The Depository Trust Company (the "Book-Entry Transfer Facility") for purposes
of the Exchange Offer within two business days after the date of the Prospectus,
and any financial institution that is a participant in the Book-Entry Transfer
Facility's systems may make book-entry delivery of the Old Securities by causing
the Book-Entry Transfer Facility to transfer such Old Securities into the
account in accordance with the Book-Entry Transfer Facility's procedure for such
transfer. You will maintain, during the Exchange Offer, an address in the
Borough of Manhattan, The City of New York, in which tenders of the Old
Securities may be made.
3. You are to examine each of the Letters of Transmittal and
certificates for Old Securities (or confirmation of book-entry transfer into
your account at the Book-Entry Transfer Facility) and any other documents
delivered or mailed to you by or for holders of the Old Securities to ascertain
whether: (i) the Letters of Trans mittal and any such other documents are
executed and properly completed in accordance with the instructions set forth
therein and (ii) the Old Securities have otherwise been properly tendered,
provided, however, that you shall be entitled to rely conclusively in good faith
on the DTC electronic messages sent regarding ATOP delivery of the Old
Securities to the Exchange Agent's account at DTC from the DTC participants
listed on the DTC position listing provided to the Exchange Agent. 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 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 President, Chief Financial Officer, Chief
Legal Officer, Treasurer, Controller or any Vice President each a "Designated
Officer") of the Company, or of counsel to the Company, (such approval, if given
orally, to be confirmed in writing) or any other party designated by any
Designated Officer in writing, you are authorized to waive any irregularities in
connection with any tender of Old Securities pursuant to the Exchange Offer.
5. Tenders of Old Securities may be made only as set forth in the
Letter of Transmittal and in the section of the Prospectus captioned "The
Exchange Offer -- How to Tender Old Securities for Exchange," 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 paragraph 5, Old Securities
which a Designated Officer, or of counsel to the Company, shall approve as
having been properly tendered
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shall be considered to be properly tendered (such approval, if given orally,
shall be confirmed in writing).
6. You shall advise the Company with respect to any Old Securities
received subsequent to the Expiration Date and accept its written instructions
with respect to disposition of such Old Securities.
7. Subject to paragraphs 4 and 5, you shall accept tenders:
(a) in cases where the Old Securities are registered in two or
more names, only if signed by all named holders;
(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 Old
Securities provided that customary transfer requirements, including any
applicable transfer taxes, are fulfilled.
You shall accept partial tenders of Old Securities where so
indicated and as permitted in the Letter of Transmittal and deliver certificates
for Old Securi ties to the transfer agent for split-up and return any untendered
Old Securities 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 Exchange Offer.
8. Upon satisfaction or waiver of all of the conditions to the Exchange
Offer, the Company will notify you (such notice if given orally, to be confirmed
in writing) of its acceptance, promptly after the Expiration Date, of all Old
Securities properly tendered and you, on behalf of the Company, will exchange
such Old Securities for New Securities and cause such Old Securities to be
cancelled. Deliv ery of New Securities will be made on behalf of the Company by
you at the rate of $1,000 principal amount at maturity of New Notes for each
$1,000 principal amount of Old Notes, and at the rate of $1,000 principal amount
at maturity of New Bonds for each $1,000 principal amount of Old Bonds, in each
case tendered promptly after notice (such notice if given orally, to be
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 Offer will be exchanged only after timely receipt by you of
certificates for such Old Securities (or confirmation of book-entry transfer
into the account at the Book-Entry Transfer Facility), a properly completed and
executed Letter of Transmittal (or facsimile thereof) with any required
signature guarantees and any other required documents. You shall issue New
Securities only in denominations of $1,000 or any integral multiple thereof.
9. Tenders pursuant to the Exchange Offer are irrevocable, except that,
subject to the terms and upon the conditions set forth in the Prospectus and the
Letter of Transmittal, Old Securities tendered pursuant to the Exchange Offer
may be withdrawn at any time prior to the Expiration Date.
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10. The Company shall not be required to exchange any Old Securities
tendered if any of the conditions set forth in the Exchange Offer are not met.
Notice of any decision by the Company not to exchange any Old Securities
tendered shall be given (and confirmed in writing) by the Company to you.
11. If, pursuant to the Exchange Offer, the Company does not accept for
exchange all or part of the Old Securities tendered because of an invalid
tender, the occurrence of certain other events set forth in the Prospectus under
the caption "The Exchange Offer -- Conditions to the Exchange Offer" or
otherwise, you shall as soon as practicable after the expiration or termination
of the Exchange Offer return those certificates for unaccepted Old Securities
(or effect appropriate book-entry transfer), 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. All certificates for reissued Old Securities, unaccepted Old
Securities or for New Securities shall be forwarded by first-class mail or
appropriate book-entry transfer.
13. 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. As Exchange Agent hereunder you:
(a) shall not be liable for any action or omission to act unless
the same constitutes your own gross negligence, willful misconduct or bad faith,
and in no event shall you be liable to a security holder, 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 as may be subsequently agreed to in writing by
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 for the Old Securities represented thereby deposited with you
pursuant to the Exchange Offer, and will not be required to and will make no
representation as to the validity, sufficiency, value or genuineness of the
Exchange Offer; provided, however, that in no way will your general duty to act
in good faith be discharged by the foregoing;
(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;
(e) may conclusively rely on and shall be fully protected in
acting in reliance upon any instruction, certificate, instrument, opinion,
notice, letter, telegram or other document whether in its original or facsimile
form or security delivered to you and believed by you to be genuine and to have
been signed by the proper party or parties;
(f) may reasonably act upon any tender, statement, request,
comment, agreement or other instrument whatsoever not only as to its due
execution and validity and
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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 represented by a proper person or persons;
(g) may conclusively rely on and shall be fully protected in
acting upon written or oral instructions from any Designated Officer of the
Company;
(h) may consult with counsel 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 Offer as to the wisdom of making such tender or as to the market
value or decline or appreciation in market value of any Old Securities.
15. You shall take such action as may from time to time be requested by
the Company or its counsel or any Designated Officer in writing (and such other
action as you may reasonably deem appropriate) to furnish copies of the
Prospectus, Letter of Transmittal and the Notice of Guaranteed Delivery
accompanying the Prospectus or such other forms as may be approved from time to
time by the Com pany, to all persons requesting such documents and to accept and
comply with reasonable telephone requests for information relating to the
Exchange Offer, provided that such information shall relate only to the
procedures for accepting (or withdrawing from) the Exchange Offer. The Company
will furnish you with copies of such documents at your request. All other
requests for information relating to the Exchange Offer shall be directed to the
Company, Attention: Xxxxxx Xxxxxxxxxx, Chief Financial Officer.
16. You shall advise by facsimile transmission or telephone, and
promptly thereafter confirm in writing to Xxxxxx Xxxxxxxxxx, Chief Financial
Officer of the Company, and such other person or persons as it may request in
writing, daily (and more frequently during the week immediately preceding the
Expiration Date and if otherwise requested in writing) up to and including the
Expiration Date, as to the number of Old Securities which have been tendered
pursuant to the Exchange Offer and the items received by you pursuant to this
Agreement, separately reporting and giving cumulative totals as to 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 written request made from time to time prior to the
Expiration Date of such other information as it or he or she reasonably
requests. 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 Offer. You shall prepare a final list of all persons whose
tenders were accepted, the aggregate principal amount of Old Securities
tendered, the aggregate principal amount of Old Securities accepted and deliver
said list to the Company.
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17. Letters of Transmittal and Notices of Guaranteed Delivery shall be
stamped by you as to the date and 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.
18. For services rendered as Exchange Agent hereunder, you shall be
entitled to compensation as set forth on Schedule I attached hereto. The
provisions of this section shall survive the termination of this agreement or
the earlier resigna tion or removal of the Exchange Agent.
19. You hereby acknowledge receipt of the Prospectus and the Letter of
Transmittal and further acknowledge that you have examined each of them. Any
inconsistency between this Agreement, on the one hand, and the Prospectus and
the Letter 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 the duties, liabilities and indemnification of you as Exchange Agent,
which shall be controlled by this Agreement.
20. The Company covenants and agrees to fully indemnify and hold you
and your officers, directors, employees and agents harmless in your capacity as
Exchange Agent, hereunder against any and all loss, liability, cost or expense,
including reasonable attorneys' fees and expenses, 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 (whether in its original or
facsimile form) reasonably believed by you to be valid, genuine and sufficient
and in accepting any tender or effecting any transfer of Old Securities
reasonably 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 by
facsimile confirmed by letter, of the written assertion of a claim or notice of
commencement of an action against you, promptly after you shall have received
any such written assertion or notice of commencement of an action. 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 any such claim. In the event that the
Company shall assume the defense of any such suit or threatened action in
respect of which indemnification may be sought hereunder, the Company shall not
be liable for the fees and expenses of any additional counsel 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.
21. 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. The Company understands that you are required to deduct 31% on
payments to holders who have not supplied their correct Taxpayer Identification
Number or required certification. Such funds will be turned over to the Internal
Revenue Service in accordance with applicable regulations.
22. At the Company's written direction, you shall deliver or cause to
be delivered, in a timely manner to each governmental authority to which any
transfer taxes are payable, if
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any, in respect of the exchange of Old Securities, your check in the amount of
all transfer taxes so payable, and the Company shall reimburse you for the
amount of any and all transfer taxes payable in respect of the exchange of Old
Securities; 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.
23. 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.
24. This Agreement may be executed in two or more counterparts, each of
which shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement.
25. 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.
26. 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 duly authorized representatives of the parties.
This Agreement may not be modified orally.
27. 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:
If to the Company:
CILCORP Inc.
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxxxx
With a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
0000 Xxx Xxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
If to the Exchange Agent:
The Bank of New York
7
101 Xxxxxxx Street
Floor 00 Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Corporate Trust Administration
28. Unless terminated earlier by the parties hereto, this Agreement
shall terminate 90 days following the Expiration Date. Notwithstanding the
foregoing, Paragraphs 19 and 21 shall survive the termination of this Agreement
or the earlier resignation or removal of the Exchange Agent. Upon any
termination of this Agreement, you shall promptly deliver to the Company any
certificates for Securi ties, funds or property then held by you as Exchange
Agent under this Agreement.
29. This Agreement shall be binding and effective as of the date
hereof.
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Please acknowledge receipt of this Agreement and confirm the
arrangements herein provided by signing and returning the enclosed copy.
CILCORP INC.
By:
------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title: Chief Financial Officer
Accepted as of the date first above written:
THE BANK OF NEW YORK, as Exchange Agent
By:
-------------------------------
Name: XxxxXxxx X. Xxxxxxx
Title: Vice President
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SCHEDULE I
FEES
Exchange Agent Fee: $5,000.00
Out of Pocket Expenses: Fees quoted do not include any out-of-pocket expenses
including but not limited to facsimile, stationery, postage, telephone,
overnight courier and messenger costs. These expenses will be billed at cost
when incurred.
Outside Counsel Fees and Expenses: Fees quoted do not include the fees and
expenses for services rendered by outside counsel.
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