EXHIBIT 99(a)
, 2000
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EXCHANGE AGENT AGREEMENT
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THIS EXCHANGE AGENT AGREEMENT (this "Agreement") is made and entered
into as of , 2000 by and between DPL, Inc., an Ohio corporation (the
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"Company") and Bank One 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 Company proposes to make an offer to exchange equal principal
amounts of up to $425,000,000, principal amount of its 8-1/4% Senior Notes due
2007 (the "Old Securities") for equal principal amounts of its 8-1/4% Exchange
Senior Notes due 2007 (the "New Securities"). The terms and conditions of the
Exchange Offer as currently contemplated are set forth in a prospectus, dated
May __, 2000 (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") proposed to be distributed to all
holders of the Old Securities. The Old Securities and the New Securities are
collectively referred to herein as the "Securities." Capitalized terms used
herein and not defined shall have the meanings ascribed to them in the
Prospectus or the Letter of Transmittal to be delivered with the Prospectus to
record holders of the Old Securities .
The Exchange Offer is expected to be commenced by the Company on or
about _____________, 2000 after the Company's Registration Statement on S-4
relating to the Exchange Offer is declared effective under the Securities Act of
1933, as certified in writing to Exchange Agent by the Company (the "Effective
Time") and shall terminate at 5:00 p.m., New York City Time, on ____________,
2000 (the "Expiration Date"), unless the Exchange Offer is extended by the
Company and the Company notifies the 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. The Company hereby
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appoints Bank One Trust Company, National Association, a national banking
association incorporated and existing under the laws of the United States of
America, and its successors to act as exchange agent (the "Exchange Agent") in
connection with the Exchange Offer. Bank One 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.
The Company expressly reserves the right to amend, in any way not
inconsistent with the Registration Rights Agreement, 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
- - Certain Conditions to the Exchange Offer." The Company will give oral
(confirmed in writing) or written notice of any amendment, termination or
nonacceptance to the Exchange Agent as promptly as practicable.
2. Exchange Agent's Duties. The Exchange Agent will perform such
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duties and only such duties as are specifically set forth in the section of the
Prospectus captioned "The Exchange Offer" and in the Letter of Transmittal or as
specifically set forth herein; provided, however, that in no way will Exchange
Agent's general duty to act in good faith and without gross negligence be
discharged by the foregoing.
3. ATOP Registration. The Exchange Agent will establish an account
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with The Depository Trust Company ("DTC," ) in the Exchange Agent's name to
facilitate book-entry tenders of the Old Securities through DTC's Automated
Tender Offer Program (herein "ATOP") 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 DTC's systems may make book-entry
delivery of the Old Securities by causing the DTC to transfer such Old
Securities into Exchange Agent's account in accordance with the DTC's procedure
for such transfer.
4. Mailing to Holders of Old Securities. As soon as practicable after
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its receipt of certification from the Company as to the Effective Time, Exchange
Agent will mail to each holder (as defined in the Indenture), and to each DTC
participant identified by DTC as a holder of any Old Securities (a) a Letter of
Transmittal with instructions (including instructions for completing a
substitute Form W-9 or W-8, as applicable), substantially in the form attached
hereto as Exhibit A (the "Letter of Transmittal"), (b) a Prospectus and (c) a
Notice of Guaranteed Delivery substantially in the form attached hereto as
Exhibit B (the "Notice of Guaranteed Delivery") all in accordance with the
procedures described in the Prospectus. Company shall supply Exchange Agent with
sufficient copies of the Prospectus, Letter of Transmittal and Notice of
Guaranteed Delivery to enable Exchange Agent to perform its duties hereunder.
Company shall also furnish or cause to be furnished to Exchange Agent a list of
holders of the Old Securities (including a beneficial holder list from DTC,
certificated Older Securities numbers and amounts, mailing addresses, and social
security numbers), unless waived by Exchange Agent. All other requests for
information relating to the Exchange Offer shall, except as set forth under
Paragraph 18 hereof, be directed to the Company, Attention: Financial
Activities, Box 8825, Dayton, Ohio 45401, (937) 259-7150. All certificates for
reissued Old Securities, unaccepted Old Securities or for New Securities shall
be forwarded to holders by first-class mail.
5. Receipt of Letters of Transmittal and Related Items. From and after
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the Effective Time, Exchange Agent is hereby authorized and directed to accept
(a) 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 Old Securities and (b) surrendered Old Securities
to which such Letters of Transmittal relate. Exchange Agent is authorized to
request from any person tendering Old Securities such additional documents as
Exchange Agent or the Company deems appropriate. Exchange Agent is hereby
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authorized and directed to process withdrawals of tenders to the extent
withdrawal thereof is authorized by the Exchange Offer.
6. Defective or Deficient Old Securities and Instruments. The Exchange
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Agent will examine each of the Letters of Transmittal and certificates for Old
Securities (or confirmation of book-entry transfer into Exchange Agent's account
at DTC) and any other documents delivered or mailed to Exchange Agent by or for
holders of the Old Securities 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 (or that the DTC
Transmissions contain the proper information required to be set forth therein),
(b) the Old 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 (c) if applicable, the other documents (including the Notice of
Guaranteed Delivery) are properly and completely executed. In each case where
the Letter of Transmittal or any other document has been improperly completed or
executed (or any DTC Transmissions are not in due and proper form or omit
required information) or any Old 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 the acceptance of
the Old Securities exists, Exchange Agent shall report such information to the
holder of the Old Securities. If such condition is not promptly remedied by the
holder of the Old Securities, Exchange Agent shall report such condition to the
Company and await its direction. All questions as to the validity, form,
eligibility (including timeliness of receipt), acceptance and withdrawal of any
Old Securities tendered or delivered shall be determined by the Company, 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
gross negligence or willful misconduct. The Company reserves the absolute right
to reject any and all tenders of any particular Old Securities determined by the
Company not to be in proper form or the acceptance or exchange of which may, in
the opinion of Company's counsel, be unlawful.
7. Requirements of Tender. With the approval of the President, Group
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Vice President, any Vice President or the Treasurer of the Company (such
approval, if given orally, to be confirmed in writing) or any other party
designated by such an officer in writing, Exchange Agent is authorized to waive
any irregularities in connection with any tender of Old Securities pursuant to
the Exchange Offer.
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 - Procedures for Tendering Old Notes", and Old Securities shall be
considered properly tendered to Exchange Agent only when tendered in accordance
with the procedures set forth therein. Notwithstanding the provisions of this
paragraph, Old Securities which the President, Group Vice President, any Vice
President or the 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 confirmed in writing).
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8. Exchange of the Old Securities. Exchange Agent shall notify the
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Company with respect to any Old Securities received subsequent to the Expiration
Date and accept Company's instructions with respect to disposition of such Old
Securities.
9. Transfer of Registration. Exchange Agent shall accept tenders:
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a. in cases where the Old Securities are registered in two or
more names only if signed by all named holders (with signatures guaranteed where
required);
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.
Exchange Agent shall accept partial tenders of Old Securities when so indicated
and as permitted in the Letter of Transmittal and deliver certificates for Old
Securities 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.
10. Exchange of Old Securities. Upon satisfaction or waiver of all of
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the conditions to the Exchange Offer, the Company will notify Exchange Agent
(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
Exchange Agent, on behalf of the Company, will exchange such Old Securities for
New Securities and cause such Old Securities to be cancelled. Delivery of New
Securities will be made on behalf of the Company by Exchange Agent at the rate
of $1,000 principal amount of New Securities for each $1,000 principal amount of
the corresponding series of Old Securities 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 Exchange Agent of certificates for such Old Securities (or
confirmation of book-entry transfer into Exchange Agent's account at the
Book-Entry Transfer Facility), a properly completed and duly executed Letter of
Transmittal (or facsimile thereof) with any required signature guarantees and
any other required documents. Exchange Agent shall issue New Securities only in
denominations of $1,000 or any integral multiple of $1,000.
11. Withdrawals. Tenders pursuant to the Exchange Offer are
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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.
12. Rejection of Tenders. The Company shall not be required to
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exchange any Old Securities tendered if any of the conditions set forth in the
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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 Exchange Agent.
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 -Certain Conditions to the Exchange Offer" or
otherwise, Exchange Agent 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 Exchange Agent's possession, to the persons who deposited them (or
effected such book-entry transfer).
13. Mailing of Certificates. All certificates for reissued Old
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Securities, unaccepted Old Securities or for New Securities shall be forwarded
by first-class mail.
14. Concerning the Exchange Agent. As Exchange Agent hereunder,
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Exchange Agent:
(a) is 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;
(b) shall have no duties or obligations other than as
provided in paragraph 2, those specifically set forth herein or as may
be subsequently agreed to in writing by Exchange Agent 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 Exchange Agent pursuant to the
Exchange Offer, and will not be required to and will make no
representation as to the validity, value or genuineness of the
Exchange Offer;
(d) shall not be obligated to take any legal action
hereunder which might in Exchange Agent's reasonable judgment involve
any expense or liability, unless Exchange Agent shall have been
furnished with indemnity against such expense or liability which in
the Exchange Agent's sole judgment, is adequate;
(e) may reasonably 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 Exchange Agent and
reasonably believed by Exchange Agent 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 effectiveness of its provisions, but
also as to the truth and accuracy of any information contained
therein, which Exchange Agent shall in good faith believe to be
genuine or to have been signed or represented by a proper person or
persons;
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(g) may rely on and shall be protected in acting upon
written or oral instructions (confirmed in writing) from any officer
of the Company, its counsel, or its representatives;
(h) may consult with counsel with respect to any questions
relating to Exchange Agent's 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 Exchange Agent hereunder in good faith and
in accordance with the advice or opinion of such counsel;
(i) shall not advise any person tendering Old Securities
pursuant to the Exchange Offer as to whether to tender or refrain from
tendering any portion of Old Securities or as to the market value or
decline or appreciation in market value of any Old Securities; and
(j) shall not be liable for any claim, loss, liability or
expense, incurred without Exchange Agent's negligence or willful
misconduct, arising our of or in connection with the administration of
Exchange Agent's duties hereunder.
15. Reports to Company. Exchange Agent shall advise by facsimile
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transmission or telephone, and promptly thereafter confirm in writing to the
Vice President and Chief Financial Officer of the Company and such other person
or persons as it may request, weekly (and more frequently during the week
immediately preceding the Expiration Date and if otherwise requested) up to and
including the Expiration Date, as to the principal amount of Old Securities
which have been tendered pursuant to the Exchange Offer and the items received
by Exchange Agent pursuant to this Agreement, separately reporting and giving
cumulative totals as to items properly received and items improperly received.
In addition, Exchange Agent will also inform, and cooperate in making available
to, the Company or any such other person or persons upon oral request (confirmed
in writing) 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 Exchange Agent to the Company and
such person as the Company may request of access to those persons on its 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.
Exchange Agent shall prepare a final list of all persons whose tenders were
accepted, the aggregate principal amount of Old Securities tendered and the
aggregate principal amount of Old Securities accepted and deliver said list to
the Company. Within 5 days after the Expiration Date, Exchange Agent shall
furnish the Company a final report showing the disposition of the Exchange
Securities.
16. Recordkeeping. Letters of Transmittal, book-entry confirmations
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and Notices of Guaranteed Delivery shall be stamped by Exchange Agent as to the
date and the time of receipt thereof (or if the Old 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 Company. Exchange Agent shall cancel certificated Old
Securities. Exchange Agent shall retain all Old Securities and Letters of
Transmittal and other related documents or correspondence received by the
Company as soon as practicable after the Expiration Date. If Exchange Agent
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receives any Letters of Transmittal after the Expiration Date, Exchange Agent
shall return the same together with all enclosures to the party from whom such
documents were delivered.
17. Discrepancies or Questions. Any discrepancies or questions
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regarding any Letter of Transmittal, Restricted Security, notice of withdrawal
or any other documents received by Exchange Agent in connection with the
Exchange Offer, except for matters described under paragraph 18 below, shall be
referred to the Company and Exchange Agent shall have no further duty with
respect to such matter; provided that Exchange Agent shall cooperate with the
Company in attempting to resolve such discrepancies or questions.
18. Requests for Information. Exchange Agent shall accept and comply
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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 Transmittal and Notice of Guaranteed
Delivery to any person upon request. All other requests for materials shall be
referred to the Company.
19. Tax Matters. Exchange Agent shall file with the Internal Revenue
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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. Any questions with respect to any tax matters relating to the
Exchange Offer shall be referred to the Company, and Exchange Agent shall have
no duty with respect to such matter; provided that Exchange Agent shall
cooperate with the Company in attempting to resolve such questions.
20. Fees and Expenses. The Company will pay Exchange Agent its fees
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plus expenses, including counsel fees and disbursements, as set forth in
Schedule I.
21. Miscellaneous. Exchange Agent hereby acknowledges receipt of the
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Prospectus and the Letter of Transmittal and further acknowledges that Exchange
Agent has 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 Exchange Agent, which shall be controlled by this Agreement.
22. Indemnification. The Company covenants and agrees to indemnify and
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hold Exchange Agent harmless in its capacity as Exchange Agent hereunder against
any loss, liability, cost or expense, including attorneys' fees and expenses,
arising out of or in connection with any act, omission, delay or refusal made by
Exchange Agent in reliance upon any signature, endorsement, assignment,
certificate, order, request, notice, instruction or other instrument or document
reasonably believed by Exchange Agent to be valid, genuine and sufficient and in
accepting any tender or effecting any transfer of Old Securities reasonably
believed by Exchange Agent 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; provided, however, that the Company shall not be liable for
indemnification or otherwise for any loss, liability, cost or expense to the
extent arising out of Exchange Agent's gross negligence or willful misconduct.
Exchange Agent shall notify the Company in writing of any written assertion of a
claim against Exchange Agent or of any other action commenced against Exchange
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Agent, promptly after Exchange Agent shall have received any such written
assertion or notice of commencement of 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 may assume the defense of any pending
or threatened action against Exchange Agent in respect of which indemnification
may be sought hereunder; provided that Company shall not be entitled to assume
the defense of any such action if the named parties to such action include both
the Company and Exchange Agent and representation of both parties by the same
legal counsel would, in the written opinion of counsel for the Exchange Agent,
be inappropriate due to actual or potential conflicting interests between them;
and further provided that in the event that the Company shall assume the defense
of any such suit, and such defense is reasonably satisfactory to Exchange Agent,
the Company shall not be liable for the fees and expenses of any counsel
retained by Exchange Agent.
23. Securities Held in Trust. The Exchange Securities and any cash or
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other property (the "Property") deposited with or received by Exchange Agent (in
such capacity) from the Company shall be held in a segregated account, solely
for the benefit of the Company 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.
24. Change of Exchange Agent. Exchange Agent may resign from its
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duties under this Agreement by giving to the Company 60 days prior written
notice. If Exchange Agent resigns or becomes incapable of acting as Exchange
Agent and the Company fails to appoint a new exchange agent within a period of
60 days after it has been notified in writing of such resignation or incapacity
by Exchange Agent, the Company 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.
25. Applicable Law. This Agreement and Exchange Agent's appointment as
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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.
26. Counterparts. This Agreement may be executed in two or more
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counterparts, each of which shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
27. Enforcement. In case any provision of this Agreement shall be
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invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
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28. Amendments. This Agreement shall not be deemed or construed to be
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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.
29. Notices. Unless otherwise provided herein, all notices, requests
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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:
DPL Inc.
Financial Activities
Box 8825
Dayton, Ohio 45401
Facsimile: 937-259-7147
Attention: Michael D. Lopez
If to the Exchange Agent:
Bank One Trust Company, National Association
One North State Street, 9th Floor
Chicago, Illinois 60602
Facsimile: 312-407-8853
Telephone: 800-524-9472
Attention: Exchanges
30. Termination. Unless terminated earlier by the parties hereto, this
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Agreement shall terminate 90 days following the Expiration Date. Notwithstanding
the foregoing, Paragraphs 18, 19, and 21 shall survive the termination of this
Agreement. Upon any termination of this Agreement, Exchange Agent shall promptly
deliver to the Company any certificates for Securities, funds or property then
held by Exchange Agent as Exchange Agent under this Agreement.
31. Parties in Interest. This Agreement shall be binding upon and
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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.
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32. Entire Agreement; Headings. This Agreement constitutes the entire
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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. This Agreement shall be binding and effective
as of the date hereof.
Please acknowledge receipt of this Agreement and confirm the
arrangements herein provided by signing and returning the enclosed copy.
DPL INC.
By:
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Name: R. Michael Lempke
Title: Vice President and
Chief Financial Officer
BANK ONE TRUST COMPANY,
NATIONAL ASSOCIATION, as
Exchange Agent
By:
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Name:
Title:
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SCHEDULE I
FEES
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Exhibit A
Letter of Transmittal
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Exhibit B
Notice of Guaranteed Delivery
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