EXHIBIT 99(a)
FORM OF EXCHANGE AGENT AGREEMENT
THIS EXCHANGE AGENT AGREEMENT (this "Agreement") is made and entered into
as of _______ __, 2002, by and between DPL Capital Trust II, a statutory
business trust formed under the laws of the State of Delaware (the "Issuer"),
and Bank One Trust Company, National Association, a national banking association
incorporated and existing under the laws of the United States of America, 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 and DPL Inc.'s, an Ohio
corporation (the "Company")Prospectus dated October __, 2001 (the "Prospectus"),
and the accompanying letter of transmittal (the "Letter of Transmittal"), forms
of which are attached hereto as Exhibits A and B, respectively (and which, taken
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together, constitute the "Exchange Offer"), its outstanding 8 1/8% Capital
Securities (the "Old Securities") for an equal principal amount of its
registered 8 1/8% Capital Securities (the "New Securities" and, together
with the Old Securities, the "Securities").
The Exchange Offer will commence as soon as practicable after the Issuer's
and Company's Registration Statement on Form 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 Issuer or the Company (the "Effective Time") and shall
terminate at 5:00 p.m., New York City time, on __________, 2001 (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 Bank
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One Trust Company, National Association, to act as Exchange Agent in connection
with the Exchange Offer, and 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.
2. Mailing to Holders of the Old Securities. A. As soon as practicable
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after its receipt of certification from the Issuer 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 (i) a
Letter of Transmittal with instructions (including instructions for completing a
substitute Form W-9), (ii) a Prospectus and (iii) a Notice of Guaranteed
Delivery substantially in the form attached hereto as Exhibit C (the "Notice of
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Guaranteed Delivery") all in accordance with the procedures described in the
Prospectus.
B. Issuer shall supply Exchange Agent with sufficient copies of the
Prospectus, the Letter of Transmittal and the Notice of Guaranteed Delivery 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 Old Securities (including a beneficial holder
list from The Depository Trust Company ("DTC"), certificated Old Securities
numbers and amounts, mailing addresses, and social security numbers), unless
waived by Exchange Agent.
3. ATOP Registration. As soon as practicable, Exchange Agent shall
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establish an account with DTC in its name to facilitate book-entry tenders of
Old Securities through DTC's Automated Tender Offer Program ("ATOP") for the
Exchange Offer.
4. Receipt of Letters of Transmittal and Related Items. From and after the
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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 Old Securities and (ii) 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 Issuer deems appropriate. Exchange Agent is hereby
authorized and directed to process withdrawals of tenders to the extent
withdrawal thereof is permitted by the Exchange Offer.
5. Defective or Deficient Old Securities and Instruments. A. As soon as
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practicable after receipt, Exchange Agent will examine instructions transmitted
by DTC ("DTC Transmissions"), Old Securities, Letters of Transmittal and other
documents received by Exchange Agent in connection with tenders of Old
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 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 (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 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 any tender of any
Old 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 any Old Securities tendered or delivered
shall be determined by the Issuer, in its sole discretion. Notwithstanding the
above, Exchange Agent 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 Old 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 Old
Securities, and the Issuer's interpretation of the terms and conditions of the
Exchange Offer
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(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 Old Securities shall be made only
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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 Old Securities that any Administrative Trustee
of the Trust or Designated Officer of the Company, 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 Old 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
Old Securities are tendered by persons other than the registered holder of such
Old Securities, ensure that customary transfer requirements, including any
applicable transfer taxes, and the requirements imposed by the transfer
restrictions on the Old Securities (including any applicable requirements for
certifications, legal opinions or other information) are fulfilled.
7. Exchange of the Old Securities. A. Promptly after the Effective Time,
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the Issuer will deliver the New Securities to the Exchange Agent. Upon surrender
of the Old Securities properly tendered in accordance with the Exchange Offer,
Exchange Agent is hereby directed to deliver or cause to be delivered New
Securities to the Holders of such surrendered Old Securities. The principal
amount of the New Securities to be delivered to a Holder shall equal the
principal amount of the Old Securities surrendered.
B. The New Securities issued in exchange for certificated Old 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 New Securities or the replacement thereof.
C. Notwithstanding any other provision of this Agreement, issuance of the
New Securities for accepted Old Securities pursuant to the Exchange Offer shall
be made only after deposit with Exchange Agent of the Old Securities, the
related Letter of Transmittal and any other required documents.
8. Securities Held in Trust. The New Securities and any cash or other
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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 Old 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 New Securities.
9. Reports to Issuer. Exchange Agent shall regularly notify, by facsimile
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or electronic
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communication, the Issuer as to the principal amount of the Old Securities which
have been duly tendered since the previous report and the aggregate amount
tendered since the Effective Date on a weekly basis until the Expiration Date.
Such notice shall be delivered in substantially the form set forth as Exhibit D.
10. Record Keeping. Each Letter of Transmittal, Old Security and any other
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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 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 Issuer. 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
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 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
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any Letter of Transmittal, Old Security, notice of withdrawal or any other
documents received by Exchange Agent in connection with the Exchange Offer shall
be referred to Issuer and the Company and Exchange Agent shall have no further
duty with respect to such matter; provided that Exchange Agent shall cooperate
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with Issuer and the Company in attempting to resolve such discrepancies or
questions.
12. Transfer of Registration. New Securities may be registered in a name
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other than that of the record Holder of a surrendered Old Security, if and only
if (i) the Old 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
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the principal amount of any Old 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 Old Security to return, a new Old
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 Old Securities as
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set forth in the Prospectus, in which event Exchange Agent shall, after proper
notification of such withdrawal, return such Old Securities to, or in accordance
with the instructions of, such Holder and such Old Securities shall no longer be
considered properly tendered. Any withdrawn Old Securities may be tendered again
by following the procedures therefor described in the Prospectus at any time on
or prior to the Expiration Date.
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15. Rejection of Tenders. If, pursuant to the Exchange Offer, Issuer does
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not accept for exchange all of the Old Securities tendered by a Holder of Old
Securities, Exchange Agent shall return or cause to be returned such Old
Securities to, or in accordance with the instructions of, such Holder of Old
Securities.
16. Cancellation of Exchanged Old Securities. Exchange Agent is authorized
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and directed to cancel all Old Securities received by it upon delivering the New
Securities to tendering holders of the Old Securities as provided herein.
Exchange Agent shall maintain a record as to which Old Securities have been
exchanged pursuant to Section 7 hereof.
17. Requests for Information. Exchange Agent shall accept and comply with
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telephone and mail requests for information from any person concerning the
proper procedure to tender Old 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 Issuer and the Company. 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. Any questions with respect to any tax matters relating to
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the Exchange Offer shall be referred to Issuer and the Company, and Exchange
Agent shall have no duty with respect to any such matter; provided that Exchange
Agent shall cooperate with Issuer and the Company in attempting to resolve such
questions.
19. Reports. Within 5 days after the Expiration Date, Exchange Agent shall
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furnish the Issuer and the Company a final report showing the disposition of the
New Securities.
20. Fees and Expenses. Issuer will pay Exchange Agent its fees plus
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expenses, including counsel fees and disbursements, as set forth in Exhibit E.
21. Concerning the Exchange Agent. As exchange agent hereunder, Exchange
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Agent:
A. shall have no duties or obligations other than those specifically set
forth in this Agreement;
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 Old Securities should or should not
tender its Old Securities and shall not solicit any Holder for the purpose of
causing such Holder to tender its Old 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 Agent and believed by Exchange Agent to be
genuine and to have been signed by the proper party or parties;
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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 and the Company jointly and severally
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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 attorneys'
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
and the Company 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 and the Company
shall be entitled to participate at its own expense in the defense of any such
claim or other action and, if Issuer or the Company so elects, Issuer or 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 neither the Issuer nor the Company shall be entitled to assume the
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defense of any such action if the named parties to such action include both the
Issuer or the Company 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 or the Company shall
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assume the defense of any such suit, and such defense is reasonably satisfactory
to Exchange Agent, neither Issuer nor the Company shall 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
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accordance with the laws of the State of New York, without regard to conflicts
of laws principles.
24. Notices. Notices or other communications pursuant to this Agreement
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shall be delivered by facsimile transmission, reliable overnight courier or by
first-class mail, postage prepaid, addressed as follows:
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To Issuer at: DPL Capital Trust II
c/o DPL Inc.
Xxxxxxxxxx Xxxxx Xxxxxxxxx
Xxxxxx, Xxxx 00000
Attention: Financial Activities
Fax: (000) 000-0000
Telephone: (000) 000-0000
Or to Exchange Agent at:
Bank One Trust Company, National Association
Xxx Xxxxx Xxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxx, XX 00000
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
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under this Agreement by giving to Issuer and the Company 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
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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 New
Securities which remain undistributed after the Expiration Date shall be
cancelled and delivered to the Issuer upon demand, and any Old 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.
27. Advertisements. Issuer agrees to place advertisements regarding the
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Exchange Offer in The Wall Street Journal, The Bond Buyer and Bloomberg as soon
as practicable following the Effective Date.
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28. Parties in Interest. This Agreement shall be binding upon and inure
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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
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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.
30. Counterparts. This Agreement may be executed in any number of
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counterparts, each of which shall be deemed an original, and all of such
counterparts together shall constitute one and the same instrument.
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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.
DPL Capital Trust II
By:__________________________________
Name:
Title:
BANK ONE TRUST COMPANY,
National Association
By:__________________________________
Name:
Title:
9
EXHIBIT D
Date: _______________________
DPL CAPITAL TRUST II
DPL INC.
BY FAX: ________________________
Re: Notice of Tenders
With respect to Section 9 of the Exchange Agent Agreement, dated as of
_______________, 2001, we confirm the following information as of the date
hereof:
1. Principal amount of Old Securities tendered during the past week:
$____________________
2. Principal amount of Old Securities referred to in paragraph 1. above
regarding which Exchange Agent questions validity of the tender:
$____________________
3. Aggregate principal amount of Old Securities tendered since the Effective
Date as to which Exchange Agent questions the validity of the tender:
$___________________.
4. Principal amount of Old Securities remaining unpresented (based on
$___,000,000 total Old Securities): $__________________
5. Total aggregate principal amount of Old Securities validly tendered since
the Effective Date: $_______________
Bank One Trust Company, National Association,
as Exchange Agent
By:
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Name:
Title:
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EXHIBIT E
Schedule of Fees
Per letter of transmittal mailed: $___.00
Minimum fee: $_____.00
Extraordinary services and special requests: by appraisal
Out of pocket expenses incurred will be billed for reimbursement at invoiced
cost
The minimum fee of $_____.00 shall be due and payable upon execution of the
Exchange Agent Agreement. The remaining balance shall be due and payable upon
receipt of Exchange Agent's invoice therefor.
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