EXCHANGE AGENT AGREEMENT
Exhibit
99(a)
THIS
EXCHANGE AGENT AGREEMENT (this “Agreement”) is made and entered into as of
______, 2006 by and between DPL Inc., an Ohio corporation, (the “Issuer”) and
X.X. Xxxxxx Trust Company, National Association, a national banking association
incorporated and existing under the laws of the United States of America,
and
its successors as exchange agent (the “Exchange Agent”).
RECITALS
The
Issuer proposes to make an offer to exchange, upon the terms and subject
to the
conditions set forth in the Issuer's prospectus, dated ________, 2006 (the
“Prospectus”), and the accompanying letter of transmittal (the “Letter of
Transmittal”) attached hereto as Exhibit
A
(which
together with the Prospectus constitutes the “Exchange Offer”), its unregistered
8% Senior Notes due 2009 (the “Restricted Securities”) for an equal principal
amount of its registered 8% Senior Notes due 2009 (the “Exchange Securities”
and, together with the Restricted Securities, the “Securities.”)
The
Exchange Offer will commence as soon as practicable after the Issuer’s
Registration Statement on Form S-4 relating to the Exchange Offer is declared
effective under the Securities Act of 1933, as communicated in writing to
Exchange Agent by the Issuer (the “Effective Time”) and shall terminate at 9:00
a.m., New York City time, on ______, 2006 (the “Expiration Date”), unless the
Exchange Offer is extended by the Issuer and the Issuer notifies Exchange
Agent
of such extension by 5:00 p.m., New York City time, on the previous Expiration
Date, in which case, the term “Expiration Date” shall mean the latest date and
time to which the Exchange Offer is extended. In connection therewith, the
undersigned parties hereby agree as follows:
1.
Appointment
and Duties as Exchange Agent.
Issuer
hereby authorizes X.X. Xxxxxx Trust Company, National Association, to act
as
Exchange Agent in connection with the Exchange Offer, and X.X. Xxxxxx Trust
Company, National Association, hereby agrees to act as Exchange Agent and
to
perform the services outlined herein in connection with the Exchange Offer
on
the terms and conditions contained herein.
2.
Mailing
to Holders of the Restricted Securities.
A. As
soon as practicable after its receipt of communication from the Issuer as
to the
Effective Time, Exchange Agent will mail to each Holder (as defined in the
Indenture of the Issuer, dated as of March 1, 2000, between the Issuer and
X.X.
Xxxxxx Trust Company, National Association), and to each DTC participant
identified by DTC as a holder of any Restricted Securities (i) a Letter of
Transmittal with instructions (including instructions for completing a
substitute Form W-9), substantially in the form attached hereto as Exhibit
A
(the
“Letter of Transmittal”), (ii) a Prospectus, (iii) a Notice of Guaranteed
Delivery substantially in the form attached hereto as Exhibit
B
(the
“Notice of Guaranteed Delivery”), (iv) a Letter to Registered Holders and The
Depository Trust Company Participants, (v) a Letter to Clients, and (vi)
Instructions to Registered Holder and/or Book-Entry
1
Transfer
Participant from Owner (together, the documents described in (i) - (vi) referred
to as the “Exchange Package”), all in accordance with the procedures described
in the Prospectus.
B.
Issuer
shall supply Exchange Agent with sufficient copies of the Exchange Package
to
enable Exchange Agent to perform its duties hereunder. Issuer shall also
furnish
or cause to be furnished to Exchange Agent a list of the holders of the
Restricted Securities (including a beneficial holder list from The Depository
Trust Company (“DTC”), certificated Restricted Securities numbers and amounts,
mailing addresses, and social security numbers), unless waived by Exchange
Agent.
3.
ATOP
Registration.
Within
two business days following the commencement of the Exchange Offer, Exchange
Agent shall establish an account with DTC in its name to facilitate book-entry
tenders of Restricted Securities through DTC’s Automated Tender Offer Program
(herein “ATOP”) for the Exchange Offer.
4.
Receipt
of Letters of Transmittal and Related Items.
From
and after the Effective Time, Exchange Agent is hereby authorized and directed
to accept (i) Letters of Transmittal, duly executed in accordance with the
instructions thereto (or a manually signed facsimile thereof), and any requisite
collateral documents from Holders of the Restricted Securities and (ii)
surrendered Restricted Securities to which such Letters of Transmittal relate.
Exchange Agent is authorized to request from any person tendering Restricted
Securities such additional documents as Exchange Agent or the Issuer deems
appropriate. Exchange Agent is hereby authorized and directed to process
withdrawals of tenders to the extent withdrawal thereof is authorized by
the
Exchange Offer.
5.
Defective
or Deficient Restricted Securities and Instruments.
A. As
soon as practicable after receipt, Exchange Agent will examine instructions
transmitted by DTC (“DTC Transmissions”), Restricted Securities, Letters of
Transmittal and other documents received by Exchange Agent in connection
with
tenders of Restricted Securities to ascertain whether (i) the Letters of
Transmittal are completed and executed in accordance with the instructions
set
forth therein (or that the DTC Transmissions contain the proper information
required to be set forth therein), (ii) the Restricted Securities have otherwise
been properly tendered in accordance with the Prospectus and the Letters
of
Transmittal (or that book-entry confirmations are in due and proper form
and
contain the information required to be set forth therein) and (iii) if
applicable, the other documents (including the Notice of Guaranteed Delivery)
are properly completed and executed.
B.
If any
Letter of Transmittal or other document has been improperly completed or
executed (or any DTC Transmissions are not in due and proper form or omit
required information) or the Restricted Securities accompanying such Letter
of
Transmittal are not in proper form for transfer or have been improperly tendered
(or the book-entry confirmations are not in due and proper form or omit required
information) or if some other irregularity in connection with any tender
of any
Restricted Securities exists, Exchange Agent shall promptly report such
information to the Holder. If such condition is not promptly remedied by
the
Holder, Exchange Agent shall report such condition to the Issuer and await
its
direction. All questions as to the validity, form, eligibility (including
timeliness of receipt), acceptance and withdrawal of
2
any
Restricted Securities tendered or delivered shall be determined by the Issuer,
in its sole discretion. Notwithstanding the above, Exchange Agent shall not
be
under any duty to give notification of defects in such tenders and shall
not
incur any liability for failure to give such notification unless such failure
constitutes negligence or willful misconduct.
C.
The
Issuer reserves the absolute right (i) to reject any or all tenders of any
particular Restricted Securities determined by the Issuer not to be in proper
form or the acceptance or exchange of which may, in the opinion of Issuer’s
counsel, be unlawful and (ii) to waive any of the conditions of the Exchange
Offer or any defect or irregularity in the tender of any particular Restricted
Securities, and the Issuer's interpretation of the terms and conditions of
the
Exchange Offer (including the Letter of Transmittal and Notice of Guaranteed
Delivery and the instructions set forth therein) will be final and
binding.
6.
Requirements
of Tenders.
A.
Tenders of Restricted Securities shall be made only as set forth in the Letter
of Transmittal, and shall be considered properly tendered only when tendered
in
accordance therewith. Notwithstanding the provisions of this paragraph, any
Restricted Securities that the Issuer’s President, Vice President, Treasurer,
Secretary, or any other person designated by the Issuer’s President shall
approve as having been properly tendered shall be considered to be properly
tendered.
B.
Exchange Agent shall (a) ensure that each Letter of Transmittal and the related
Restricted Securities or a bond power are duly executed (with signatures
guaranteed where required) by the appropriate parties in accordance with
the
terms of the Exchange Offer; (b) in those instances where the person executing
the Letter of Transmittal (as indicated on the Letter of Transmittal) is
acting
in a fiduciary or a representative capacity, ensure that proper evidence
of his
or her authority so to act is submitted; and (c) in those instances where
the
Restricted Securities are tendered by persons other than the registered holder
of such Restricted Securities, ensure that customary transfer requirements,
including any applicable transfer taxes, and the requirements imposed by
the
transfer restrictions on the Restricted Securities (including any applicable
requirements for certifications, legal opinions or other information) are
fulfilled.
7.
Exchange
of the Restricted Securities.
A.
Promptly after the Effective Time, the Issuer will deliver the Exchange
Securities to the Exchange Agent. Upon surrender of the Restricted Securities
properly tendered in accordance with the Exchange Offer, Exchange Agent is
hereby directed to deliver or cause to be delivered Exchange Securities to
the
Holders of such surrendered Restricted Securities. The principal amount of
the
Exchange Securities to be delivered to a Holder shall equal the principal
amount
of the Restricted Securities surrendered.
3
B.
The
Exchange Securities issued in exchange for certificated Restricted Securities
shall be mailed by Exchange Agent, in accordance with the instructions contained
in the Letter of Transmittal, by first class or registered mail, and under
coverage of Exchange Agent’s blanket surety bond for first class or registered
mail losses protecting the Issuer from loss or liability arising out of the
non-receipt or non-delivery of such Exchange Securities or the replacement
thereof.
C.
Notwithstanding any other provision of this Agreement, issuance of the Exchange
Securities for accepted Restricted Securities pursuant to the Exchange Offer
shall be made only after deposit with Exchange Agent of the Restricted
Securities, the Letter of Transmittal and any other required
documents.
8.
Securities
Held in Trust.
The
Exchange Securities and any cash or other property (the “Property”) deposited
with or received by Exchange Agent (in such capacity) from the Issuer shall
be
held in a segregated account, solely for the benefit of Issuer and Holders
tendering Restricted Securities, as their interests may appear, and the Property
shall not be commingled with securities, money, assets or property of Exchange
Agent or any other party. Exchange Agent hereby waives any and all rights
of
lien, if any, against the Property, except to the extent set forth in the
Indenture with respect to the Exchange Securities.
9.
Reports
to Issuer.
A.
Exchange Agent shall notify, by facsimile or electronic communication, the
Issuer of the principal amount of the Restricted Securities which have been
duly
tendered since the previous report and the aggregate amount tendered since
the
Effective Date on a daily basis (and more frequently during the week immediately
preceding the Expiration Date if requested). Such notice shall be delivered
in
substantially the form set forth as Exhibit
C.
B.
Exchange Agent will also inform, and cooperate in making available to,
the
Issuer or any such other person or persons upon oral request made from
time to
time prior to the Expiration Date, such other information as the Issuer
may
reasonably request. Such cooperation shall include, without limitation,
the
granting by Exchange Agent to the Issuer and such person as the Issuer
may
request of access to those persons on Exchange Agent’s staff who are responsible
for receiving tenders, in order to ensure that immediately prior to the
Expiration Date the Issuer shall have received information in sufficient
detail
to enable it to decide whether to extend the Exchange Offer.
10.
Record
Keeping.
Each
Letter of Transmittal, Restricted Security and any other documents received
by
Exchange Agent in connection with the Exchange Offer shall be stamped by
Exchange Agent to show the date of receipt (or if Restricted Securities are
tendered by book-entry delivery, such form of record keeping of receipt as
is
customary for tenders through ATOP) and, if defective, the date and time
the
last defect was cured or waived by the Issuer. Exchange Agent shall cancel
certificated Restricted Securities. Exchange Agent shall retain all Restricted
Securities and Letters of Transmittal and other related documents or
correspondence received by Exchange Agent until the Expiration Date. Exchange
Agent shall return all such material to Issuer as soon as practicable after
the
Expiration Date. If Exchange Agent receives any Letters
4
of
Transmittal after the Expiration Date, Exchange Agent shall return the same
together with all enclosures to the party from whom such documents were
received.
11.
Discrepancies
or Questions.
Any
discrepancies or questions regarding any Letter of Transmittal, Restricted
Security, notice of withdrawal or any other documents received by Exchange
Agent
in connection with the Exchange Offer shall be referred to Issuer and Exchange
Agent shall have no further duty with respect to such matter; provided
that
Exchange Agent shall cooperate with Issuer in attempting to resolve such
discrepancies or questions.
12.
Transfer
of Registration.
Exchange Securities may be registered in a name other than that of the
record
Holder of a surrendered Restricted Security, if and only if (i) the Restricted
Security surrendered shall be properly endorsed (either by the registered
Holder
thereof or by a properly completed separate power with such endorsement
guaranteed by an Eligible Institution (as defined in the Letter of Transmittal)
and otherwise in proper form for transfer, (ii) the person requesting such
transfer of registration shall pay to Exchange Agent any transfer or other
taxes
required, or shall establish to Exchange Agent’s satisfaction that such tax is
not owed or has been paid and (iii) the such other documents and instruments
as
Issuer or Exchange Agent require shall be received by Exchange
Agent.
13.
Partial
Tenders.
If,
pursuant to the Exchange Offer, less than all of the principal amount of
any
Restricted Security submitted to Exchange Agent is tendered, Exchange Agent
shall, promptly after the Expiration Date, return, or cause the registrar
with
respect to each such Restricted Security to return, a new Restricted Security
for the principal amount not being tendered to, or in accordance with the
instruction of, the Holder who has made a partial tender.
14.
Withdrawals.
A
tendering Holder may withdraw tendered Restricted Securities as set forth
in the
Prospectus, in which event Exchange Agent shall, after proper notification
of
such withdrawal, return such Restricted Securities to, or in accordance
with the
instructions of, such Holder and such Restricted Securities shall no longer
be
considered properly tendered. Any withdrawn Restricted Securities may be
tendered by again following the procedures therefor described in the Prospectus
at any time on or prior to the Expiration Date.
15.
Rejection
of Tenders.
If,
pursuant to the Exchange Offer, Issuer does not accept for exchange all
of the
Restricted Securities tendered by a Holder of Restricted Securities, Exchange
Agent shall return or cause to be returned as soon as practicable such
Restricted Securities to, or in accordance with the instructions of, such
Holder
of Restricted Securities.
16.
Cancellation
of Exchanged Restricted Securities.
Exchange Agent is authorized and directed to cancel all Restricted Securities
received by it upon delivering the Exchange Securities to tendering holders
of
the Restricted Securities as provided herein. Exchange Agent shall maintain
a
record as to which Restricted Securities have been exchanged pursuant to
Section
7 hereof.
17.
Requests
for Information.
Exchange Agent shall accept and comply with telephone and mail requests
for
information from any person concerning the proper procedure to tender Restricted
Securities. Exchange Agent shall provide copies of the Prospectus, Letter
of
5
Transmittal
and Notice of Guaranteed Delivery to any person upon request.
All other requests for materials shall be referred to the Issuer. Exchange
Agent
shall not offer any concessions or pay any commissions or solicitation fees
to
any brokers, dealers, banks or other persons or engage any persons to solicit
tenders.
18.
Tax
Matters.
A.
Exchange Agent shall file with the Internal Revenue Service and Holders Form
1099 reports regarding principal and interest payments on Securities which
Exchange Agent has made in connection with the Exchange Offer, if any. Exchange
Agent shall arrange to comply with all relevant payor reporting and backup
withholding 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. Any questions with
respect to any tax matters relating to the Exchange Offer shall be referred
to
Issuer, and Exchange Agent shall have no duty with respect to such matter;
provided
that
Exchange Agent shall cooperate with Issuer in attempting to resolve such
questions.
B.
Exchange
Agent 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 Restricted Securities, the Issuer’s check in the amount of all
transfer taxes so payable; provided,
however,
that
Exchange Agent shall reimburse the Issuer for amounts refunded to it in respect
of its payment of any such transfer taxes, at such time as such refund is
received by Exchange Agent.
19.
Reports.
Within
5 days after the Expiration Date, Exchange Agent shall furnish the Issuer
a
final report showing the disposition of the Exchange Securities.
20.
Fees
and Expenses.
Issuer
will pay Exchange Agent its fees plus expenses, including counsel fees and
disbursements, as separately agreed with the Issuer.
21.
Concerning
the Exchange Agent.
As
exchange agent hereunder, Exchange Agent:
A.
shall
have no duties or obligations other than those specifically set forth in
this
Agreement or as subsequently agreed to in writing between Issuer and Exchange
Agent;
B.
will
make no representation and will have no responsibility as to the validity,
value
or genuineness of the Exchange Offer, shall not make any recommendation as
to
whether a Holder of Restricted Securities should or should not tender its
Restricted Securities and shall not solicit any Holder for the purpose of
causing such Holder to tender its Restricted Securities;
C.
shall
not be obligated to take any action hereunder which may, in Exchange Agent’s
sole judgment, involve any expense or liability to Exchange Agent unless
it
shall have been furnished with indemnity against such expense or liability
which, in Exchange Agent’s sole judgment, is adequate;
D.
may rely
on and shall be protected in acting upon any certificate, instrument, opinion,
notice, instruction, letter, telegram or other document, or any security,
delivered to Exchange
6
Agent and believed by Exchange Agent to be genuine and
to have
been signed by the proper party or parties;
E.
may
rely on and shall be protected in acting upon the written instructions of
Issuer, its counsel, or its representatives;
F.
shall
not be liable for any claim, loss, liability or expense, incurred without
Exchange Agent’s negligence or willful misconduct, arising out of or in
connection with the administration of Exchange Agent’s duties hereunder;
and
G.
may
consult with counsel, and the advice of such counsel or any opinion of counsel
shall be full and complete authorization and protection in respect of any
action
taken, suffered or omitted by Exchange Agent hereunder in accordance with
the
advice of such counsel or any opinion of counsel.
22.
Indemnification.
A.
Issuer covenants and agrees to indemnify and hold harmless Exchange Agent,
its
directors, officers, employees and agents (the “Indemnified Persons”) against
any and all losses, damages, costs or expenses (including reasonable attorney’s
fees and court costs), arising out of or attributable to its acceptance of
appointment as Exchange Agent hereunder, provided that such indemnification
shall not apply to losses, damages, costs or expenses incurred due to negligence
or willful misconduct of the Exchange Agent. Exchange Agent shall notify
Issuer
in writing of any written asserted claim against Exchange Agent or of any
other
action commenced against Exchange Agent, reasonably promptly after Exchange
Agent shall have received any such written assertion or shall have been served
with a summons in connection therewith. Issuer shall be entitled to participate
at its own expense in the defense of any such claim or other action and,
if
Issuer so elects, Issuer may assume the defense of any pending or threatened
action against Exchange Agent in respect of which indemnification may be
sought
hereunder; provided
that
Issuer shall not be entitled to assume the defense of any such action if
the
named parties to such action include both the Issuer and Exchange Agent and
representation of both parties by the same legal counsel would, in the written
opinion of counsel for Exchange Agent, be inappropriate due to actual or
potential conflicting interests between them; and
further provided
that in
the event Issuer shall assume the defense of any such suit, and such defense
is
reasonably satisfactory to Exchange Agent, Issuer shall not therewith be
liable
for the fees and expenses of any counsel retained by Exchange
Agent.
B.
Exchange Agent agrees that, without the prior written consent of Issuer (which
consent shall not be unreasonably withheld), it will not settle, compromise
or
consent to the entry of any judgment in any pending or threatened claim,
action
or proceeding in respect of which indemnification could be sought in accordance
with the indemnification provision of this Agreement (whether or not any
Indemnified Persons is an actual or potential party to such claim, action
or
proceeding).
23.
Applicable
Law.
This
Agreement shall be construed and enforced in accordance with the laws of
the
State of New York, without regard to conflicts of laws principles.
7
24.
Notices.
Notices
or other communications pursuant to this Agreement shall be delivered by
facsimile transmission, reliable overnight courier or by first-class mail,
postage prepaid, addressed as follows:
To
Issuer
at: DPL
Inc.
0000
Xxxxxxx Xxxxx
Xxxxxx,
Xxxx 00000
Attention:
Xxxxxxx X. Xxxxxxx
Fax:
(000) 000-0000
Telephone:
(000) 000-0000
Or
to
Exchange Agent at:
X.X.
Xxxxxx Trust Company, National Association
Institutional
Trust Services
0
Xxx
Xxxx Xxxxx, 0xx
Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000-0000
Attention:
Exchanges
Fax:
(000)000-0000
Telephone:
(000)000-0000
Or
to
such address as either party shall provide by notice to the other
party.
25.
Change
of Exchange Agent.
Exchange Agent may resign from its duties under this Agreement by giving
to
Issuer thirty days prior written notice. If Exchange Agent resigns or becomes
incapable of acting as Exchange Agent and the Issuer fails to appoint a new
exchange agent within a period of 30 days after it has been notified in writing
of such resignation or incapacity by Exchange Agent, the Issuer shall appoint
a
successor exchange agent or assume all of the duties and responsibilities
of
Exchange Agent. Any successor exchange agent shall be vested with the same
powers, rights, duties and responsibilities as if it had been originally
named
as Exchange Agent without any further act or deed; but Exchange Agent shall
deliver and transfer to the successor exchange agent any Property at the
time
held by it hereunder, and execute and deliver any further assurance, conveyance,
act or deed necessary for such purpose.
26.
Miscellaneous.
Neither
party may transfer or assign its rights or responsibilities under this Agreement
without the written consent of the other party hereto; provided, however,
that
Exchange Agent may transfer and assign its rights and responsibilities hereunder
to any of its affiliates otherwise eligible to act as Exchange Agent and,
upon
45 days prior written notice to Exchange Agent, Issuer may transfer and assign
its rights and responsibilities hereunder to any successor by merger, any
purchaser of all of the common stock of Issuer, or any purchaser of all or
substantially all of Issuer’s assets. This Agreement may be amended only in
writing signed by both parties. Any Exchange Securities which remain
undistributed after the Expiration Date shall be cancelled and delivered
to the
Issuer upon demand, and any Restricted Securities which are tendered thereafter
shall be returned by Exchange Agent to the tendering party. Except for Sections
20 and 22, this Agreement shall terminate on the 31st day after the Expiration
Date.
8
27.
Advertisements.
Issuer
agrees to place advertisements, to the extent that it is otherwise required
by
law or by contractual arrangement with any Holder or holder of Securities
or
trustee for any Holder or holder of securities, regarding the Exchange Offer
in
The Wall Street Journal, The Bond Buyer and Bloomberg as soon as practicable
following the Effective Date.
28.
Parties
in Interest.
This
Agreement shall be binding upon and inure solely to the benefit of each party
hereto and nothing in this Agreement, express or implied, is intended to
or
shall confer upon any other person any right, benefits or remedy of any nature
whatsoever under or by reason of this Agreement. Without limitation to the
foregoing, the parties hereto expressly agree that no Holder or holder of
Securities shall have any right, benefit or remedy of any nature whatsoever
under or by reason of this Agreement.
29.
Entire
Agreement; Headings.
This
Agreement constitutes the entire understanding of the parties hereto with
respect to the subject matter hereof. The descriptive headings contained
in this
Agreement are included for convenience of reference only and shall not affect
in
any way the meaning or interpretation of this Agreement.
30.
Counterparts.
This
Agreement may be executed in any number of counterparts, each of which shall
be
deemed an original, and all of such counterparts together shall constitute
one
and the same instrument.
9
IN
WITNESS WHEREOF, Issuer and Exchange Agent have caused this Agreement to
be
signed by their respective officers thereunto authorized as of the date first
written above.
By:___________________________________________
Name:
Title:
X.X.
XXXXXX TRUST COMPANY, NATIONAL
ASSOCIATION
By:___________________________________________
Name:
Title:
10
Exhibit
A
Form
of
Letter of Transmittal
Exhibit
B
Notice
of
Guaranteed Delivery
Exhibit
C
Form
of
Daily Report
11
Exhibit
C
Date: ______________________
BY
FAX:
________________________
Re: Notice
of
Tenders
With
respect to Section 9 of the Exchange Agent Agreement, dated as of
_______________, we confirm the following information as of the date
hereof:
|
1.
|
Principal
amount of Restricted Securities tendered during the past day:
$____________________
|
|
2.
|
Principal
amount of Restricted Securities referred to in paragraph 1. above
regarding which Exchange Agent questions validity of the tender:
$____________________
|
|
3.
|
Aggregate
principal amount of Restricted Securities tendered since the Effective
Date as to which Exchange Agent questions the validity of the tender:
$___________________
|
|
4.
|
Principal
amount of Restricted Securities remaining unpresented (based on
$______________ total Restricted Securities):
$__________________
|
|
5.
|
Total
aggregate principal amount of Restricted Securities validly tendered
since
the Effective Date:
$_____________________
|
X.X.
Xxxxxx Trust Company, National Association,
as
Exchange Agent
By:____________________________________
Name:
Title:
Title:
12
