<PAGE>
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
(X) QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended June 30, 1999
OR
( ) TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the transition period from ________ to ________
Commission File Number 1-9052
DPL INC.
(Exact name of registrant as specified in its charter)
OHIO 31-1163136
- ------------------------------ ------------------------------------
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
Courthouse Plaza Southwest
Dayton, Ohio 45402
----------------------------------------
(Address of principal executive offices)
(937) 224-6000
----------------------------------------------------
(Registrant's telephone number, including area code)
Indicate by check mark whether the registrant (1) has filed all
reports required to be filed by Section 13 or 15(d) of the Securities
Exchange Act of 1934 during the preceding 12 months (or for such
shorter period that the registrant was required to file such reports),
and (2) has been subject to such filing requirements for the past 90 days.
YES X NO
--- ---
Indicate the number of shares of the issuer's classes of common stock,
as of the latest practicable date.
Common Stock, $.01 par value
and Preferred Share Purchase Rights 158,682,304 Shares
- ----------------------------------- ------------------------------
(Title of each class) (Outstanding at June 30, 1999)
<PAGE>
DPL INC.
INDEX
Page No.
--------
Part I - Financial Information
Item 1. Financial Statements
Consolidated Statement of Results of Operations 1
Consolidated Statement of Cash Flows 2
Consolidated Balance Sheet 3
Consolidated Statement of Shareholders' Equity 5
Notes to Consolidated Financial Statements 6
Operating Statistics 8
Item 2. Management's Discussion and Analysis of Financial
Condition and Results of Operations 10
Item 3. Quantitative and Qualitative Disclosures about
Market Risk 12
Part II - Other Information 14
Signatures 16
i
<PAGE>
CONSOLIDATED STATEMENT OF RESULTS OF OPERATIONS
DPL INC.
Three Months Six Months
Ended Ended
June 30 June 30
------------- -------------
1999 1998 1999 1998
---- ---- ---- ----
--millions-- --millions--
Revenues
- --------
Utility service revenues $276.6 $292.6 $638.9 $644.9
Other revenues 13.7 14.9 34.9 40.5
------ ------ ------ ------
Total Revenues 290.3 307.5 673.8 685.4
Expenses
- --------
Fuel and purchased power 61.0 66.7 122.1 127.9
Gas purchased for resale 24.3 27.5 108.5 109.3
Operation and maintenance 50.3 60.0 88.3 95.8
Depreciation and amortization 32.8 31.7 65.8 63.4
Amortization of regulatory assets, net 5.9 5.2 12.3 10.8
General taxes 34.1 33.8 68.4 68.3
Interest expense 28.6 23.4 55.1 45.2
------ ------ ------ ------
Total Expenses 237.0 248.3 520.5 520.7
------ ------ ------ ------
Income
- ------
Operating Income 53.3 59.2 153.3 164.7
Investment income 13.2 6.2 30.3 12.6
Other income and deductions
(7.2) (6.0) (6.8) (6.0)
------ ------ ------ ------
income Before Income Taxes 59.3 59.4 176.8 171.3
Income taxes 21.9 24.2 66.9 65.9
------ ------ ------ ------
Net Income $ 37.4 $ 35.2 $109.9 $105.4
====== ====== ====== ======
Average Number of Common Shares
Outstanding (millions) 151.2 152.7 152.0 152.5
Earnings Per Share of Common Stock
Basic and Diluted $ 0.25 $ 0.23 $ 0.72 $ 0.69
Dividends Paid Per Share of Common Stock $0.235 $0.235 $0.470 $0.470
See Notes to Consolidated Financial Statements.
These interim statements are unaudited.
-1-
<PAGE>
CONSOLIDATED STATEMENT OF CASH FLOWS
DPL INC.
Six Months Ended
June 30
----------------
1999 1998
---- ----
--millions--
Operating Activities
- --------------------
Cash received from utility customers $646.6 $651.1
Other operating cash receipts 51.8 48.9
Cash paid for:
Fuel and purchased power (116.7) (128.9)
Purchased gas (116.5) (117.3)
Operation and maintenance labor (39.6) (42.6)
Nonlabor operating expenditures (56.1) (72.2)
Interest (50.2) (43.1)
Income taxes (61.7) (71.6)
Property, excise and payroll taxes (78.1) (77.0)
------ ------
Net cash provided by operating activities 179.5 147.3
Investing Activities
- --------------------
Capital expenditures (57.8) (48.2)
Purchases of available for sale financial
assets (190.2) (155.0)
Sales of available for sale financial assets 99.1 50.3
------ ------
Net cash used for investing activities (148.9) (152.9)
Financing Activities
- --------------------
Dividends paid on common stock (71.6) (71.6)
Issuance of common stock - 10.0
Retirement of long-term debt (239.6) (1.9)
Issuance of long-term debt 497.4 98.5
Issuance (retirement) of short-term debt (151.1) 7.7
Purchase of treasury stock (45.3) -
------ ------
Net cash provided by (used for) financing
activities (10.2) 42.7
Cash and temporary cash investments--
- -----------------------------------
Net change 20.4 37.1
Balance at beginning of period 13.7 26.1
------ ------
Balance at end of period $ 34.1 $ 63.2
====== ======
See Notes to Consolidated Financial Statements.
These interim statements are unaudited.
-2-
<PAGE>
CONSOLIDATED BALANCE SHEET
DPL INC.
At At
June 30, December 31,
1999 1998
--millions--
------- -----------
ASSETS
Property
- --------
Electric property $3,426.8 $3,398.6
Gas property 299.8 296.9
Other property 58.0 47.8
-------- --------
Total property 3,784.6 3,743.3
Less--
Accumulated depreciation and amortization (1,563.8) (1,504.6)
-------- --------
Net property 2,220.8 2,238.7
-------- --------
Current Assets
- --------------
Cash and temporary cash investments 34.1 13.7
Accounts receivable, less provision for
uncollectible accounts of $2.0 and $4.7,
respectively 210.6 227.7
Inventories, at average cost 93.3 112.4
Deferred property and excise taxes 83.3 93.4
Other 35.5 46.2
-------- --------
Total current assets 456.8 493.4
-------- --------
Other Assets
- ------------
Financial assets 830.2 698.5
Income taxes recoverable through future
revenues 178.2 195.5
Other regulatory assets 68.6 82.2
Other 168.6 147.6
-------- --------
Total other assets 1,245.6 1,123.8
-------- --------
Total Assets $3,923.2 $3,855.9
======== ========
See Notes to Consolidated Financial Statements.
These interim statements are unaudited.
-3-
<PAGE>
CONSOLIDATED BALANCE SHEET
(continued)
DPL INC.
At At
June 30, December 31,
1999 1998
------- -----------
--millions--
CAPITALIZATION AND LIABILITIES
Capitalization
- --------------
Common shareholders' equity--
Common stock $ 1.6 $ 1.6
Other paid-in capital 754.4 799.0
Common stock held by employee plans (92.3) (94.4)
Accumulated other comprehensive income 66.9 47.2
Earnings reinvested in the business 633.2 630.3
-------- --------
Total common shareholders' equity 1,363.8 1,383.7
Preferred stock 22.9 22.9
Long-term debt 1,339.0 1,065.9
-------- --------
Total capitalization 2,725.7 2,472.5
-------- --------
Current Liabilities
- -------------------
Short-term debt 43.8 194.9
Dividends payable 36.1 -
Accounts payable 83.0 109.0
Accrued taxes 96.6 165.2
Accrued interest 32.2 24.8
Other 72.9 54.9
-------- --------
Total current liabilities 364.6 548.8
-------- --------
Deferred Credits and Other
- --------------------------
Deffered taxes 462.1 460.6
Unamortized investment tax credit 67.9 69.4
Insurance and claims costs 156.4 150.7
Other 146.5 153.9
-------- --------
Total deferred credits and other 832.9 834.6
-------- --------
Total Capitalization and Liabilities $3,923.2 $3,855.9
======== ========
See Notes to Consolidated Financial Statements.
These interim statements are unaudited.
-4-
<PAGE>
<TABLE>
<CAPTION>
CONSOLIDATED STATEMENT OF SHAREHOLDERS' EQUITY
DPL INC.
Six months ended June 30, 1999 and 1998
Common
Common Stock Stock Accum. Earnings
------------------ Other Held by Other Reinvested
Outstanding Paid-In Employee Comp. in the
$ in millions Shares Amount Capital Plans Income Business Total
- ---------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
1999:
Beginning Balance 161,264,604 $1.6 $799.0 $(94.4) $47.2 $630.3 $1,383.7
Net income 109.9
Unrealized gains, net
of reclassification
adjustments, after tax 19.7
Total comprehensive income 129.6
Common stock dividends (107.0) (107.0)
Treasury stock (2,582,300) - (45.3) (45.3)
Employee stock plans 0.7 2.1 2.8
------------------------------------------------------------------
Ending balance 158,682,304 $1.6 $754.4 $(92.3) $66.9 $633.2 $1,363.8
==================================================================
1998:
Beginning Balance 160,202,949 $1.6 $777.3 $(98.0) $19.9 $585.2 $1,286.0
Net income 105.4
Unrealized gains, net
of reclassification
adjustments, after tax 30.6
Total comprehensive income 136.0
Common stock dividends (107.6) (107.6)
Dividend reinvestment plan 561,406 - 10.1 10.1
Employee stock plans 0.9 2.0 2.9
Other (8,775) - (0.1) (0.2) (0.3)
------------------------------------------------------------------
Ending balance 160,755,580 $1.6 $788.2 $(96.0) $50.5 $582.8 $1,327.1
==================================================================
</TABLE>
See Notes to Consolidated Financial Statements.
These interim statements are unaudited.
-5-
<PAGE>
Notes to Consolidated Financial Statements
1. Reclassifications have been made in certain prior years' amounts
to conform to the current reporting presentation of DPL Inc.
2. DPL Inc. has prepared the consolidated financial statements in
this report without audit, pursuant to the rules and regulations of
the Securities and Exchange Commission. Certain information and
footnote disclosures normally included in financial statements
prepared in accordance with generally accepted accounting principles
have been condensed or omitted pursuant to such rules and regulations.
These consolidated financial statements should be read in conjunction
with the consolidated financial statements and notes thereto in
DPL Inc.'s 1998 Annual Report on Form 10-K.
3. Other revenues include sales by DPL Inc.'s natural gas supply
management subsidiary. These revenues are recorded in the period when
the gas is sold.
4. DPL Inc. accounts for its investments in debt and equity
securities by classifying the securities into different categories
(held-to-maturity and available-for-sale); available-for-sale
securities are carried at fair market value and unrealized gains and
losses, net of deferred income taxes, are presented as a separate
component of shareholders' equity for those investments. Investments
classified as held-to-maturity are carried at amortized cost. The
value of equity security investments and fixed maturity investments is
based upon market quotations or investment cost which is believed to
approximate market. The cost basis for equity security and fixed
maturity investments is average cost and amortized cost, respectively.
At June 30 At December 31
1999 1998
-------------------------- --------------------------
Gross Unrealized Gross Unrealized
-------------------------- --------------------------
Fair Fair
$ in millions Value Gains Losses Cost Value Gains Losses Cost
- ------------------------------------------------------------------------------
$ $ $ $ $ $ $ $
Assets (a)
- ----------
Available for sale
equity securities 819.4 110.7 (7.6) 716.3 685.5 78.3 (5.8) 613.0
Held to maturity
securities:
Debt securities 44.2 - (0.5) 44.7 51.1 1.2 - 49.9
Temporary cash
investments 8.5 - - 8.5 12.0 - - 12.0
---- --- --- ---- ---- --- --- ----
Total 52.7 - (0.5) 53.2 63.1 1.2 - 61.9
Liabilities (b)
- ---------------
Debt 1,408.7 1,387.7 1,366.6 1,265.2
Capitalization
- ---------------
Unallocated stock 97.1 66.9 117.1 69.0
in ESOP
(a) Maturities range from 1999 to 2011.
(b) Includes current maturities.
-6-
<PAGE>
5. For the three months ended June 30, 1999 and 1998, gross realized
gains were $5.6 million and $4.2 million, respectively. There were no
gross realized losses in either three-month period. Gross realized
gains and losses were $20.0 million and $0.8 million respectively for
the six months ended June 30, 1999; for the six months ended June 30,
1998 gross realized gains were $8.3 million and there were no losses.
6. A wholly-owned captive subsidiary of DPL Inc. provides certain
property and liability insurance coverage to DPL Inc. and its other
subsidiaries and business interruption and specific risk coverage for
DPL Inc.'s principal subsidiary, The Dayton Power and Light Company
("DP&L"). Insurance and claims costs on the balance sheet represent
insurance reserves of the captive subsidiary. These reserves are
provided based on a consultant's actuarial methods and loss experience
data. Management has relied on the actuarial methods employed by the
consultant to determine the adequacy of the reserves. Such
liabilities are determined, in the aggregate, based on a reasonable
estimation of probable insured events occurring throughout each
period. There is uncertainty associated with the loss estimates, and
actual results could differ from the estimates.
7. DP&L and other Ohio utilities have undivided ownership interests
in seven electric generating facilities and numerous transmission
facilities. Certain expenses, primarily fuel costs for the generating
units, are allocated to the owners based on their energy usage. The
remaining expenses, as well as the investments in fuel inventory,
plant materials and operating supplies, and capital additions, are
allocated to the owners in accordance with their respective ownership
interests.
The information included in this Form 10-Q reflects all
adjustments which are, in the opinion of management, necessary for a
fair statement of the results of operations for the periods presented.
Any adjustments are of a normal recurring nature.
-7-
<PAGE>
OPERATING STATISTICS
The Dayton Power and Light Company
Three Months Six Months
Ended Ended
June 30 June 30
------------- -------------
1999 1998 1999 1998
---- ---- ---- ----
Electric
- --------
Sales (millions of kWh)--
Residential 943 1,005 2,357 2,328
Commercial 852 886 1,650 1,706
Industrial 1,316 1,200 2,439 2,298
Other 936 1,151 1,844 2,336
------- ------- ------- ------
Total 4,047 4,242 8,290 8,668
Revenues (thousands of dollars)--
Residential 87,960 92,536 202,061 202,044
Commercial 59,479 61,502 114,728 118,180
Industrial 62,928 59,395 117,711 111,918
Other 37,831 50,757 74,124 93,433
------- ------- ------- -------
Total 248,198 264,190 508,624 525,575
Other Electric Statistics--
Average price per kWh-retail and
wholesale customers (cents) 6.05 6.14 6.05 5.95
Fuel cost per net kWh generated (cents) 1.28 1.30 1.27 1.27
Electric customers at end of period 491,568 487,172 491,568 487,172
Average kWh use per residential
customer 2,150 2,309 5,373 5,354
Peak demand-maximum one hour use
(mw), (net) 2,968 2,931 2,968 2,931
-8-
<PAGE>
OPERATING STATISTICS
(continued)
The Dayton Power and Light Company
Three Months Six Months
Ended Ended
June 30 June 30
------------- --------------
1999 1998 1999 1998
---- ---- ---- ----
Gas
- ---
Sales (millions of MCF)--
Residential 2,474 2,706 15,662 14,063
Commercial 918 1,064 4,865 4,096
Industrial 233 249 1,470 1,170
Other 143 234 816 1,139
Transportation gas delivered 3,806 4,352 10,319 10,265
------ ------ ------- -------
Total 7,574 8,605 33,132 30,733
Revenues (thousands of dollars)--
Residential 17,281 17,525 85,896 77,478
Commercial 5,053 5,644 24,675 21,018
Industrial 1,218 1,237 7,045 5,728
Other 5,466 4,606 13,915 16,265
------ ------ ------- -------
Total 29,018 29,012 131,531 120,489
Other Gas Statistics--
Average price MCF-retail customers
(dollars) 6.44 6.01 5.33 5.36
Gas customers at end of period 305,145 302,434 305,145 302,434
Degree Days (based on calendar month)--
Heating 455 507 3,298 2,876
Cooling 313 323 313 346
-9-
<PAGE>
Item 2. Management's Discussion and Analysis of Financial Condition
and Results of Operations.
-----------------------------------------------------------
This report contains certain forward-looking statements regarding
plans and expectations for the future. Investors are cautioned that
actual outcomes and results may vary materially from those projected
due to various factors beyond DPL Inc.'s control, including abnormal
weather, unusual maintenance or repair requirements, changes in fuel
costs, increased competition, regulatory changes and decisions,
changes in accounting rules and adverse economic conditions.
DPL Inc.'s earnings for the second quarter of 1999 were $0.25 per
share, up 9% from the $0.23 per share earned in the second quarter a
year ago. Earnings were $0.72 per share year-to-date, an increase of
4% over the earnings of $0.69 per share for the same period in 1998.
The continued strength of the West Central Ohio economy increased
energy demands by business customers. The 4% increase in electric
sales to those customers during the second quarter, combined with
higher investment income and ongoing cost reduction efforts, resulted
in the earnings increase.
See Item 5, Other Information, for a discussion of government
legislation and the restructuring of Ohio utilities.
Financial Condition
- -------------------
Construction plans are subject to continuing review and are
expected to be revised in light of changes in financial and economic
conditions, load forecasts, legislative and regulatory developments
and changing environmental standards, among other factors. DP&L's
ability to complete its capital projects and the reliability of future
service will be affected by its financial condition and the
availability of external funds at reasonable cost.
On April 6, 1999, DPL Inc. completed a private placement issuance
of $500 million of Senior Notes due 2004, with an interest rate of
6.32%. The proceeds were used for the redemption of DP&L's
$225 million 8.40% Series of First Mortgage Bonds, the reduction of
short-term debt and for general corporate purposes.
At June 30, 1999, DPL Inc.'s cash and temporary cash investment
balance was $34.1 million. DPL Inc. held financial assets valued as
of June 30, 1999 at $830.2 million. Financial assets include direct and
indirect managed debt and equity securities.
-10-
<PAGE>
DPL Inc. and its subsidiaries have $300 million available through
Revolving Credit Agreements ("Credit Agreements"). At June 30, 1999,
DPL Inc. had no borrowings outstanding under these Credit Agreements.
DPL Inc. also has $15 million available in a short-term informal line
of credit. At June 30, 1999, DPL Inc. had no borrowings outstanding
from this line. DP&L has $97 million available in short-term informal
lines of credit. At June 30, 1999, DP&L had none of these informal
lines outstanding and $43.8 million in commercial paper outstanding.
DP&L currently has sufficient capacity to issue First Mortgage
Bonds to satisfy its requirements in connection with the financing of
its construction and refinancing programs during the five year period
1999-2003.
Results of Operations
- ---------------------
Utility service revenues decreased by $16.0 million for the
second quarter because of weather related reduced electric sales to
other utilities and residential customers. For the six months ended
June 30, 1999, utility service revenues decreased $6.0 million due to
reduced electric sales to other utilities partially offset by
increased gas sales.
Fuel and purchased power decreased $5.7 million and $5.8 million,
respectively, from the second quarter and year-to-date last year as a
result of decreased retail sales and sales to other utilities.
Operation and maintenance expense decreased from last year by
$9.7 million for the second quarter and $7.5 million year-to-date.
Lower electric and gas distribution costs, uncollectible reserves and
benefit costs caused the decreases.
Interest expense increased $5.2 million and $9.9 million,
respectively, from second quarter and year-to-date last year, because
of increased long-term debt balances.
Investment income increased by $7.0 million and $17.7 million,
respectively, from second quarter and year-to-date last year primarily
due to realized gains.
Income taxes decreased $2.3 million from the second quarter
primarily due to book and tax timing differences. Income taxes
increased $1.0 million from year-to-date 1998 because of higher
taxable income.
Issues and Financial Risks
- --------------------------
Some computer applications may not properly recognize dates
beginning with the year 2000. This "Y2K" issue, if not corrected,
could cause disruptions in information technology systems and
operating control systems.
-11-
<PAGE>
DP&L has implemented a plan to identify and correct Y2K issues in
its computer applications and operations. This plan includes (1)
evaluation of applications and systems, (2) assessment of Y2K errors,
(3) correction of errors and (4) testing of applications and systems.
The evaluation and assessment phases are complete. The correction and
testing phases are substantially complete, with final modifications
and testing for a few components to be completed in the third quarter
of 1999. The estimated cost of this corrective action is $20 million,
and includes modification and replacement of hardware and software.
The electric industry relies on computer applications to monitor
and control interdependent power systems. These systems are also
susceptible to Y2K problems. The utility industry has organized work
groups to identify and solve potential problems. DP&L is evaluating
the possibility of Y2K disruptions in the industry and is adopting
proper contingency plans.
Item 3. Quantitative and Qualitative Disclosures about Market Risk.
-----------------------------------------------------------
The carrying value of DPL Inc.'s debt, which consists of first
mortgage bonds, guaranteed air quality development obligations, notes,
commercial paper and lines of credit, was $1,265.2 at December 31,
1998. The fair value of this debt, based on current market prices or
discounted cash flows using current rates for similar issues with
similar terms and remaining maturities, was $1,366.6 million. The
following table presents the principal cash repayments and related
weighted average interest rates by maturity date for long-term fixed-
rate debt at December 31, 1998.
Extended Maturity Date
-------------------------------------------------------------
($ in Millions) 1999 2000 2001 2002 2003 Thereafter Total Fair Value
-------------------------------------------------------------
Long-Term Debt
- --------------
Fixed Rate $4.4 $5.4 $6.4 $7.4 $8.4 $1,038.3 $1,070.3 $1,171.7
Average Rate 7.7% 7.7% 7.7% 7.8% 7.8% 7.6% 7.6%
The primary market risk to which DPL Inc. is exposed is related
to short-term interest rate risk. The carrying value and fair value
of short-term debt was $194.9 million with a weighted average interest
rate of 5.6% at December 31, 1998. The interest expense risk related
to this debt was estimated to be approximately an increase/decrease of
$0.7 million if the weighted average cost increased/decreased 10%.
DPL Inc. closed on a private placement issuance of $500 million
of Senior Notes Due 2004, with an interest rate of 6.32% in early
April. The proceeds were used to redeem DP&L's $225 million 8.4%
Series First Mortgage Bonds and for general corporate purposes
including redemption of short-term debt. The following table presents
the principal cash repayments and related weighted average interest
rates by maturity date for long-term fixed-rate debt after the
retirement of the $225 million 8.4% Series First Mortgage Bonds and
issuance of $500 million of Senior Notes Due 2004.
-12-
<PAGE>
Extended Maturity Date (Including $500 Senior Notes Due 2004)
--------------------------------------------------------------
($ in Millions) 1999 2000 2001 2002 2003 Thereafter Total Fair Value
--------------------------------------------------------------
Long-Term Debt
- --------------
Fixed Rate $229.4 $5.4 $6.4 $7.4 $8.4 $1,313.3 $1,345.3 $1,446.7
Average Rate 8.4% 7.7% 7.7% 7.8% 7.8% 6.9% 7.0%
The fair value of available for sale securities was
$819.4 million and $685.5 million at June 30, 1999 and December 31,
1998, respectively. The equity price risk related to these securities
was estimated as the potential increase/decrease in fair value of
$81.9 million and $68.6 million at June 30, 1999 and December 31,
1998, respectively, that resulted from a hypothetical 10%
increase/decrease in the market prices.
As of June 30, 1999, there have been no other material changes in
the above information since the end of the preceding fiscal year.
-13-
<PAGE>
Part II. Other Information
Item 5. Other Information.
-----------------
Rate Regulation and Government Legislation
- ------------------------------------------
On July 6, 1999 Ohio Governor Taft signed an Ohio electric
industry restructuring bill which will become effective on October 5,
1999. Under the bill, beginning January 1, 2001 electric generation,
aggregation, power marketing and power brokerage services supplied to
retail customers in the State of Ohio will be deemed competitive and
will not be subject to supervision and regulation by the Public
Utilities Commission of Ohio ("PUCO"). Existing limitations on an
electric public utility's ownership rights of a non-public utility
were eliminated. All earnings obligations, restrictions or caps
imposed on an electric utility in a PUCO order are void as of the
effective date of the legislation.
Within ninety days of the effective date of the legislation, DP&L
is required to file with the PUCO a transition plan. The PUCO is
required to issue a final order not later than 275 days after the plan
is filed, or in no event later than October 31, 2000. As part of the
transition plan, companies may file for the opportunity to receive
transition revenues to be recovered through a transition charge during
the market development period which ends December 31, 2005. The
amount of transition revenues allowed will be determined by the PUCO
based on criteria set forth in the statute. Regulatory assets that
are part of the total allowable amount of transition costs will be
separately identified as part of the transition charge, and the PUCO
may set the revenue requirement for their recovery to end no later
than December 31, 2010. A shopping incentive will be factored into
the setting of the transition charge to induce 20% load switching by
customer class by December 31, 2003, or halfway through the utility's
market development period.
The legislation contains a mandatory 5% rate cut for residential
customers limited to the generation portion of their overall electric
bill. No company is permitted to own or control transmission
facilities in Ohio on or after the start date of competition unless
that entity is a member of and turns over control of its transmission
facilities to one or more qualifying transmission entities as outlined
in the statute.
-14-
<PAGE>
Item 6. Exhibits and Reports on Form 8-K.
--------------------------------
(a) The following exhibits are filed herewith:
Exhibit No. Description
- ----------- -----------
4 Copy of the Note Purchase Agreement
dated April 6, 1999 for $500 million
of 6.32% Senior Notes due 2004.
27 Financial Data Schedule
(b) Reports on Form 8-K.
No reports on Form 8-K were filed by DPL Inc. during the quarter
ended June 30, 1999.
-15-
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf
by the undersigned thereunto duly authorized.
DPL INC.
-----------------------------
(Registrant)
Date: August 13, 1999 /s/James P. Torgerson
-------------------- ---------------------------------
James P. Torgerson
Vice President, CFO and Treasurer
Date: August 13, 1999 /s/Stephen F. Koziar, Jr.
-------------------- ----------------------------------
Stephen F. Koziar, Jr.
Group Vice President and Secretary
-16-
<PAGE>
EXECUTION COPY
DPL INC.
$500,000,000
6.32% Senior Notes due 2004
---------------------
NOTE PURCHASE AGREEMENT
---------------------
Dated as of April 6, 1999
<PAGE>
TABLE OF CONTENTS
Section Page
- ------- ----
1. AUTHORIZATION OF NOTES. 5
2. SALE AND PURCHASE OF NOTES. 5
3. CLOSING. 6
4. CONDITIONS TO CLOSING. 6
4.1. Representations and Warranties. 6
4.2. Performance; No Default. 6
4.3. Compliance Certificates. 6
4.4. Opinions of Counsel. 7
4.5. Purchase Permitted By Applicable Law, etc. 7
4.6. Sale of Other Notes. 7
4.7. Payment of Special Counsel Fees. 7
4.8. Private Placement Number. 8
4.9. Changes in Corporate Structure. 8
4.10. Rating. 8
4.11. Proceedings and Documents. 8
5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. 8
5.1. Organization; Power and Authority. 8
5.2. Authorization, etc. 8
5.3. Disclosure. 9
5.4. Organization and Ownership of Shares of Subsidiaries. 9
5.5. Financial Statements. 10
5.6. Compliance with Laws, Other Instruments, etc. 10
5.7. Governmental Authorizations, etc. 10
5.8. Litigation; Observance of Statutes and Orders. 10
5.9. Taxes. 11
5.10. Title to Property; Leases. 11
5.11. Licenses, Permits, etc. 11
5.12. Compliance with ERISA. 11
5.13. Private Offering by the Company. 12
5.14. Use of Proceeds; Margin Regulations. 12
5.15. Existing Indebtedness. 13
5.16. Foreign Assets Control Regulations, etc. 13
5.17. Status under Certain Statutes. 13
5.18. Year 2000. 13
6. REPRESENTATIONS OF THE PURCHASER. 14
6.1. Purchase for Investment. 14
6.2. Source of Funds. 14
7. INFORMATION AS TO COMPANY. 15
7.1. Financial and Business Information. 15
7.2. Officer's Certificate. 17
<PAGE>
7.3. Inspection. 18
8. INTEREST ON THE NOTES; PREPAYMENT OF THE NOTES. 18
8.1. Interest. 18
8.2. Maturity. 19
8.3. Optional Prepayments with Make-Whole Amount. 19
8.4. Allocation of Partial Prepayments. 19
8.5. Maturity; Surrender, etc. 19
8.6. Purchase of Notes. 20
8.7. Make-Whole Amount. 20
9. AFFIRMATIVE COVENANTS. 21
9.1. Compliance with Law. 21
9.2. Insurance. 22
9.3. Maintenance of Properties. 22
9.4. Payment of Taxes. 22
9.5. Corporate Existence, etc. 22
10. NEGATIVE COVENANTS. 23
10.1. Transactions with Affiliates. 23
10.2. Consolidation, Merger, Conveyance or Other Transfer. 23
10.3. Limitation on Liens. 24
11. EVENTS OF DEFAULT. 24
12. REMEDIES ON DEFAULT, ETC. 26
12.1. Acceleration. 26
12.2. Other Remedies. 27
12.3. Rescission. 27
12.4. No Waivers or Election of Remedies, Expenses, etc. 27
13. REGISTRATION; EXCHANGE; SUBSTITUTION OF NOTES. 28
13.1. Registration of Notes. 28
13.2. Transfer and Exchange of Notes. 28
13.3. Replacement of Notes. 28
14. PAYMENTS ON NOTES. 29
14.1. Place of Payment. 29
14.2. Home Office Payment. 29
15. EXPENSES, ETC. 29
15.1. Transaction Expenses. 29
15.2. Survival. 30
16. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; ENTIRE AGREEMENT. 30
17. AMENDMENT AND WAIVER. 31
17.1. Requirements. 31
17.2. Solicitation of Holders of Notes. 31
17.3. Binding Effect, etc. 31
17.4. Notes held by Company, etc. 32
18. NOTICES. 32
<PAGE>
19. REPRODUCTION OF DOCUMENTS. 32
20. CONFIDENTIAL INFORMATION. 33
21. SUBSTITUTION OF PURCHASER. 34
22. MISCELLANEOUS. 34
22.1. Successors and Assigns. 34
22.2. Payments Due on Non-Business Days. 34
22.3. Severability. 34
22.4. Construction. 34
22.5. Counterparts. 35
22.6. Governing Law. 35
SCHEDULE A -- INFORMATION RELATING TO PURCHASERS
SCHEDULE B -- DEFINED TERMS
SCHEDULE 4.9 -- Changes in Corporate Structure
SCHEDULE 5.3 -- Disclosure Materials
SCHEDULE 5.4 -- Subsidiaries of the Company and
Ownership of Subsidiary Stock
SCHEDULE 5.5 -- Financial Statements
SCHEDULE 5.8 -- Certain Litigation
SCHEDULE 5.11 -- Patents, etc.
SCHEDULE 5.14 -- Use of Proceeds
SCHEDULE 5.15 -- Existing Indebtedness
EXHIBIT 1 -- Form of 6.32% Senior Note due 2004
EXHIBIT 4.4(a)(i) -- Matters to be Covered in Opinion of
Counsel for the Company
EXHIBIT 4.4(a)(ii) -- Matters to be Covered in Opinion of
General Counsel of the Company
EXHIBIT 4.4(b) -- Form of Opinion of Special Counsel
for the Purchasers
<PAGE>
DPL INC.
Courthouse Plaza Southwest
Dayton, OH 45402
6.32% Senior Notes due 2004
As of April 6, 1999
TO THE PURCHASERS WHOSE NAMES
APPEAR IN THE ACCEPTANCE
FORM AT END HEREOF:
Ladies and Gentlemen:
DPL INC., an Ohio corporation (the "Company"),
agrees with each of the purchasers whose names appear in
the acceptance form at the end hereof (each, a "Purchaser"
and, collectively, the "Purchasers") as follows:
1. AUTHORIZATION OF NOTES.
The Company will authorize the issue and
sale of $500,000,000 aggregate principal amount of its
6.32% Senior Notes due 2004 (the "Notes", such term to
include any such notes issued in substitution therefor
pursuant to Section 13). The Notes shall be substantially
in the form set out in Exhibit 1,with such changes
therefrom, if any, as may be approved by each Purchaser
and the Company. Certain capitalized terms used in this
Agreement are defined in Schedule B; references to a
"Schedule" or an "Exhibit" are, unless otherwise
specified, to a Schedule or an Exhibit attached to
this Agreement.
2. SALE AND PURCHASE OF NOTES.
Subject to the terms and conditions of
this Agreement, the Company will issue and sell
to each Purchaser and each Purchaser will purchase
from the Company, at the Closing provided for in
Section 3, Notes in the principal amount specified
opposite such Purchaser's name in Schedule A at the
purchase price of 100% of the principal amount
thereof. The Purchasers' obligations hereunder are
several and not joint obligations and no Purchaser
shall have any liability to any Person for the
performance or non-performance of any obligation by
any other Purchaser hereunder.
<PAGE>
3. CLOSING.
The sale and purchase of the Notes to be
purchased by each Purchaser shall occur at the
offices of Milbank, Tweed, Hadley & McCloy LLP,
One Chase Manhattan Plaza, New York, New York
10005, at 10:00 a.m., New York City time, at a
closing (the "Closing") on April 6, 1999. At the
Closing the Company will deliver to each Purchaser
the Notes to be purchased by such Purchaser in the
form of a single Note (or such greater number of Notes
in denominations of at least $500,000 as such Purchaser
may request) dated the date of the Closing and registered
in such Purchaser's name (or in the name of such
Purchaser's nominee), against delivery by such
Purchaser to the Company or its order of immediately
available funds in the amount of the purchase price
therefor by wire transfer of immediately available
funds for the account of the Company to account
number 941 271 980 at Bank One, Columbus, ABA# 0440-
0003-7, Reference Attention to Kevin A. Thompson.
If at the Closing the Company shall fail to tender
such Notes to any Purchaser as provided above in this
Section 3, or any of the conditions specified in
Section 4 shall not have been fulfilled to such
Purchaser's satisfaction, such Purchaser shall, at
such Purchaser's election, be relieved of all further
obligations under this Agreement, without thereby
waiving any rights such Purchaser may have by reason
of such failure or such nonfulfillment.
4. CONDITIONS TO CLOSING.
Each Purchaser's obligation to purchase and
pay for the Notes to be sold to such Purchaser at the
Closing is subject to the fulfillment to such Purchaser's
satisfaction, prior to or at the Closing, of the following
conditions:
4.1. Representations and Warranties.
The representations and warranties of the
Company in this Agreement shall be correct when made and
at the time of the Closing.
4.2. Performance; No Default.
The Company shall have performed and
complied with all agreements and conditions contained
in this Agreement required to be performed or complied
with by it prior to or at the Closing and after giving
effect to the issue and sale of the Notes (and the
application of the proceeds thereof as contemplated by
Schedule 5.14) no Default or Event of Default shall
have occurred and be continuing.
4.3. Compliance Certificates.
(a) Officer's Certificate. The Company
shall have delivered to such Purchaser an Officer's
Certificate, dated the date of the Closing, certifying
that the conditions specified in Sections 4.1, 4.2 and
4.9 have been fulfilled.
(b) Secretary's Certificate. The
Company shall have delivered to such Purchaser a
certificate certifying as to the resolutions
attached thereto and other corporate...
<PAGE>
...proceedings relating to the authorization,
execution and delivery of the Notes and this
Agreement.
4.4. Opinions of Counsel.
Such Purchaser shall have received opinions
in form and substance satisfactory to such Purchaser,
dated the date of the Closing (a) from (i) Thelen,
Reid & Priest LLP, counsel for the Company, and
(ii) Stephen F. Koziar, Jr., Esq., General Counsel
of the Company, covering the matters set forth
in Exhibits 4.4(a)(i) and (ii), respectively, and
covering such other matters incident to the
transactions contemplated hereby as such Purchaser
or the Purchasers' counsel may reasonably request
(and the Company hereby instructs its counsel to
deliver such opinion to the Purchasers) and (b)
from Milbank, Tweed, Hadley & McCloy LLP, the
Purchasers' special New York counsel in connection
with such transactions, substantially in the form
set forth in Exhibit 4.4(b) and covering such other
matters incident to such transactions as such Purchaser
may reasonably request.
4.5. Purchase Permitted By Applicable Law, etc.
On the date of the Closing such Purchaser's
purchase of Notes shall (i) be permitted by the laws
and regulations of each jurisdiction to which such
Purchaser is subject, without recourse to provisions
(such as Section 1405(a)(8) of the New York Insurance
Law) permitting limited investments by insurance companies
without restriction as to the character of the particular
investment, (ii) not violate any applicable law or
regulation (including, without limitation, Regulation
T, U or X of the Board of Governors of the Federal Reserve
System) and (iii) not subject such Purchaser to any tax,
penalty or liability under or pursuant to any applicable
law or regulation, which law or regulation was not in
effect on the date hereof. If requested by such Purchaser,
suchPurchaser shall have received an Officer's Certificate
from the Company certifying as to such matters of fact as
such Purchaser may reasonably specify to enable such
Purchaser to determine whether such purchase is so permitted.
4.6. Sale of Other Notes.
Contemporaneously with the Closing the Company
shall sell to each other Purchaser and each other Purchaser
shall purchase the Notes to be purchased by it at the
Closing as specified in Schedule A.
4.7. Payment of Special Counsel Fees.
Without limiting the provisions of Section 15.1,
the Company shall have paid on or before the Closing the
fees, charges and disbursements of the Purchasers' special
counsel referred to in Section 4.4 to the extent reflected
in a statement of such counsel rendered to the Company at
least one Business Day prior to the Closing.
<PAGE>
4.8. Private Placement Number.
A Private Placement number issued by S&P's CUSIP
Service Bureau (in cooperation with the Securities Valuation
Office of the National Association of Insurance Commissioners)
shall have been obtained for the Notes.
4.9. Changes in Corporate Structure.
Except as specified in Schedule 4.9, the Company
shall not have changed its jurisdiction of incorporation or
been a party to any merger or consolidation and shall not
have succeeded to all or any substantial part of the
liabilities of any other entity, at any time following the
date ofthe most recent financial statements referred to in
Schedule 5.5.
4.10. Rating.
Such Purchaser shall have received evidence
reasonably satisfactory to it that the Company's senior
unsecured long-term indebtedness shall have been rated at
least "A2" by Moody's and "A+" by S&P, and that such ratings
remain effective on the date of the Closing.
4.11. Proceedings and Documents.
All corporate and other proceedings in
connection with the transactions contemplated by this
Agreement and all documents and instruments incident
to such transactions shall be satisfactory to such
Purchaser and the Purchasers' special counsel, and
such Purchaser and such special counsel shall have
received all such counterpart originals or certified
or other copies of such documents as such Purchaser
or suchspecial counsel may reasonably request.
5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company represents and warrants to
each Purchaser that:
5.1. Organization; Power and Authority.
The Company is a corporation duly
organized, validly existing and in good standing
under the laws of its jurisdiction of incorporation,
and is duly qualified as a foreign corporation and
is in good standing in each jurisdiction in which
such qualification is required by law, other than
those jurisdictions as to which the failure to be so
qualified or in good standing would not, individually
or in the aggregate, reasonably be expected to have a
Material Adverse Effect. The Company has the corporate
power and authority to own or hold under lease the
properties it purports to own or hold under lease, to
transact the business it transacts and proposes to
transact, to execute and deliver this Agreement and the
Notes and to perform the provisions hereof and thereof.
5.2. Authorization, etc.
This Agreement and the Notes have been
duly authorized by all necessary corporate...
<PAGE>
...action on the part of the Company, and this Agreement
constitutes, and upon execution and delivery thereof each
Note will constitute, a legal, valid and binding obligation
of the Company enforceable against the Company in accordance
with its terms, except as such enforceability may be
limited by (i) applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting
the enforcement of creditors' rights generally and (ii)
general principles of equity (regardless of whether
such enforceability is considered in a proceeding
in equity or at law).
5.3. Disclosure.
The Company, through its agent, Credit
Suisse First Boston Corporation, has delivered to
each Purchaser a copy of a Direct Placement
Memorandum, dated March 1999 (the "Memorandum"),
relating to the transactions contemplated hereby.
Except as disclosed in Schedule 5.3, this Agreement,
the Memorandum, the documents, certificates or other
writings identified in Schedule 5.3 and the financial
statements listed in Schedule 5.5, taken as a whole,
do not contain any untrue statement of a material fact
or omit to state any material fact necessary to make the
statements therein not misleading in light of the
circumstances under which they were made. Except as
disclosed in the Memorandum or as expressly described
in Schedule 5.3, or in one of the documents, certificates
or other writings identified therein, or in the financial
statements listed in Schedule 5.5, since December 31, 1998,
there has been no change in the financial condition,
operations, business or properties of the Company or
any of its Subsidiaries except changes that individually
or in the aggregate would not reasonably be expected to
have a Material Adverse Effect.
5.4. Organization and Ownership of Shares of Subsidiaries.
(a) Schedule 5.4 is (except as noted therein)
a complete and correct list of the Company's Subsidiaries,
showing, as to each Subsidiary, the correct name thereof,
the jurisdiction of its organization, and the percentage
of shares of each class of its capital stock or similar
equity interests outstanding owned by the Company and each
other Subsidiary.
(b) All of the outstanding shares of capital
stock or similar equity interests of each Subsidiary shown
in Schedule 5.4 as being owned by the Company and its
Subsidiaries have been validly issued, are fully paid and
nonassessable and are owned by the Company or another
Subsidiary free and clear of any Lien (except as otherwise
disclosed in Schedule 5.4).
(c) Each Subsidiary identified in Schedule
5.4 is a corporation or other legal entity duly organized,
validly existing and in good standing under the laws of
its jurisdiction of organization, and is duly qualified as
a foreign corporation or other legal entity and is in good
standing in each jurisdiction in which such qualification is
required by law, other than those jurisdictions as to which
the failure to be so qualified or in good standing would not,
individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect. Each such Subsidiary has
the corporate or other power and authority to own or hold
under lease the properties it purports to own or hold under
lease and to transact the business it transacts and proposes
to transact.
<PAGE>
5.5. Financial Statements.
The Company has delivered to each Purchaser
copies of the consolidated financial statements of the
Company and its Subsidiaries listed on Schedule 5.5.
All of said financial statements (including in each case
the related schedules and notes) fairly present in all
material respects the consolidated financial position of
the Company and its Subsidiaries as of the respective
dates specified in such Schedule and the consolidated
results of their operations and cash flows for the
respective periods so specified and have been prepared
in accordance with GAAP consistently applied throughout
the periods involved except as set forth in the notes
thereto (subject, in the case of any interim financial
statements, to normal year-end adjustments).
5.6. Compliance with Laws, Other Instruments, etc.
The execution, delivery and performance by
the Company of this Agreement and the Notes will not
(i) contravene, result in any breach of, or constitute
a default under, or result in the creation of any Lien
in respect of any property of the Company or any Subsidiary
under, any indenture, mortgage, deed of trust, loan,
purchase or credit agreement, lease, corporate charter or
by-laws, or any other Material agreement or instrument to
which the Company or any Subsidiary is bound or by which
the Company or any Subsidiary or any of their respective
properties may be bound or affected, (ii) conflict
with or result in a breach of any of the terms, conditions
or provisions of any order, judgment, decree, or ruling of
any court, arbitrator or Governmental Authority applicable
to the Company or any Subsidiary or (iii) violate any provision
of any statute or other rule or regulation of any Governmental
Authority applicable to the Company or any Subsidiary.
5.7. Governmental Authorizations, etc.
No consent, approval or authorization of, or
registration, filing or declaration with, any Governmental
Authority (including, without limitation, any consent,
approval, authorization, registration, filing or declaration
pursuant to the Federal Power Act, as amended, or the Public
Utility Holding Company Act of 1935, as amended, or any rule
or regulation issued thereunder) is required in connection
with the execution, delivery or performance by the Company
of this Agreement or the Notes.
5.8. Litigation; Observance of Statutes and Orders.
(a) Except as disclosed in Schedule 5.8,
there are no actions, suits or proceedings pending or,
to the knowledge of the Company, threatened against or
affecting the Company or any Subsidiary or any property
of the Company or any Subsidiary in any court or before
any arbitrator of any kind or before or by any Governmental
Authority that, individually or in the aggregate, would
reasonably be expected to have a Material Adverse Effect.
(b) Neither the Company nor any Subsidiary is
in default under any order, judgment, decree or ruling of
any court, arbitrator or Governmental Authority or is in
violation of any applicable law, ordinance, rule or regulation
(including without limitation Environmental Laws) of any
Governmental Authority, which default or violation,
individually or in the aggregate,...
<PAGE>
...would reasonably be expected to have a Material Adverse
Effect.
5.9. Taxes.
The Company and its Subsidiaries have
filed all income tax returns that are required
to have been filed in any jurisdiction, and have
paid all taxes shown to be due and payable on such
returns and all other taxes and assessments payable
by them, to the extent such taxes and assessments
have become due and payable and before they have
become delinquent, except for any taxes and assessments
(i) the amount of which is not individually or in the
aggregate Material or (ii) the amount, applicability or
validity of which is currently being contested in good
faith by appropriate proceedings and with respect to which
the Company or a Subsidiary, as the case may be, has
established adequate reserves in accordance with
GAAP. The Federal income tax liabilities of the
Company and its Subsidiaries have been determined by
the Internal Revenue Service and paid for all fiscal
years up to and including the fiscal year ended
December 31, 1998.
5.10. Title to Property; Leases.
The Company and its Subsidiaries have good and
sufficient title to their respective Material properties,
including all such properties reflected in the most recent
audited balance sheet referred to in Section 5.5 or purported
to have been acquired by the Company or any Subsidiary after
said date (except as sold or otherwise disposed of in the
ordinary course of business), in each case free and clear of
Liens prohibited by this Agreement, except for those defects
in title and Liens that, individually or in the aggregate,
would not have a Material Adverse Effect. All Material leases
are valid and subsisting and are in full force and effect in
all material respects.
5.11. Licenses, Permits, etc.
Except as disclosed in Schedule 5.11, the
Company and its Subsidiaries own or possess all licenses,
permits, franchises, authorizations, patents, copyrights,
service marks, trademarks and trade names, or rights
thereto, that are Material, without known conflict with the
rights of others, except for those conflicts that,
individually or in the aggregate, would not have a
Material Adverse Effect.
5.12. Compliance with ERISA.
(a) The Company and each ERISA Affiliate
have operated and administered each Plan in compliance
with all applicable laws except for such instances of
noncompliance as have not resulted in and could not
reasonably be expected to result in a Material Adverse
Effect. Neither the Company nor any ERISA Affiliate
has incurred any liability pursuant to Title I or IV of
ERISA or the penalty or excise tax provisions of the Code
relating to employee benefit plans (as defined in Section 3
of ERISA), and no event, transaction or condition has
occurred or exists that would reasonably be expected to
result in the incurrence of any such liability by the
Company or any ERISA Affiliate, or in the imposition of
any Lien on any of the rights, properties or assets of the
Company or any ERISA Affiliate, in either case pursuant
to Title I or IV of ERISA or to such penalty or excise
tax provisions or to Section 401(a)(29) or 412 of the
Code, other than such liabilities or Liens as would not
be individually or in the aggregate Material.
<PAGE>
(b) The present value of the aggregate
benefit liabilities under each of the Plans (other than
Multiemployer Plans), determined as of the end of such
Plan's most recently ended plan year on the basis of the
actuarial assumptions specified for funding purposes in
such Plan's most recent actuarial valuation report, did
not exceed the aggregate current value of the assets of
such Plan allocable to such benefit liabilities. The
term "benefit liabilities" has the meaning specified in
section 4001 of ERISA and the terms "current value"
and "present value" have the meaning specified in
section 3 of ERISA.
(c) The Company and its ERISA Affiliates
have not incurred withdrawal liabilities (and are not
subject to contingent withdrawal liabilities) under
section 4201 or 4204 of ERISA in respect of Multiemployer
Plans that individually or in the aggregate are Material.
(d) The expected postretirement benefit
obligation (determined as of the last day of the
Company's most recently ended fiscal year in accordance
with Financial Accounting Standards Board Statement
No. 106, without regard to liabilities attributable to
continuation coverage mandated by section 4980B of the
Code) of the Company and its Subsidiaries is not Material.
(e) The execution and delivery of this
Agreement and the issuance and sale of the Notes
hereunder will not involve any transaction that is
subject to the prohibitions of section 406 of ERISA
or in connection with which a tax could be imposed
pursuant to section 4975(c)(1)(A)-(D) of the Code.
The representation by the Company in the first sentence
of this Section 5.12(e) is made in reliance upon and
subject to the accuracy of the Purchasers' representation
in Section 6.2 as to the sources of the funds to be used
to pay the purchase price of the Notes to be purchased
by the Purchasers.
5.13. Private Offering by the Company.
Neither the Company nor anyone acting on its
behalf has offered the Notes or any similar securities
for sale to, or solicited any offer to buy any of the
same from, or otherwise approached or negotiated in respect
thereof with, any person other than the Purchasers and not
more than 15 other Institutional Investors, each of which
has been offered the Notes at a private sale for investment.
Neither the Company nor anyone acting on its behalf has
taken, or will take, any action that would subject the
issuance or sale of the Notes to the registration
requirements of Section 5 of the Securities Act.
5.14. Use of Proceeds; Margin Regulations.
The Company will apply the proceeds of the
sale of the Notes as set forth in Schedule 5.14.
No part of the proceeds from the sale of the Notes
hereunder will be used, directly or indirectly, for
the purpose of buying or carrying any margin stock
within the meaning of Regulation U of the Board of
Governors of the Federal Reserve System (12 CFR 221),
or for the purpose of buying or carrying or trading
in any securities under such circumstances as to involve
the Company in a violation of Regulation X of said Board
(12 CFR 224) or to involve any broker or dealer in a
violation of Regulation T of said Board (12 CFR 220).
Margin stock does not constitute more than 5% of the
value of the consolidated assets of the Company and its
Subsidiaries...
<PAGE>
...and the Company does not have any present intention
that margin stock will constitute more than 5% of the
value of such assets. As used in this Section, the terms
"margin stock" and "purpose of buying or carrying" shall
have the meanings assigned to them in said Regulation U.
5.15. Existing Indebtedness.
Except as described therein, Schedule 5.15
sets forth a complete and correct list of all
outstanding Material Indebtedness of the Company and
its Significant Subsidiaries as of December 31, 1998,
since which date there has been no Material change in
the amounts, interest rates, sinking funds, installment
payments or maturities of the Indebtedness of the
Company or its Subsidiaries. Neither the Company
nor any Subsidiary is in default and no waiver of
default is currently in effect, in the payment of
any principal or interest on any Indebtedness of
the Company or such Subsidiary and no event or
condition exists with respect to any Indebtedness of
the Company or any Subsidiary the outstanding
principal amount of which exceeds $5,000,000 that
would permit (or that with notice or the lapse of
time, or both, would permit) one or more Persons to
cause such Indebtedness to become due and payable
before its stated maturity or before its regularly
scheduled dates of payment.
5.16. Foreign Assets Control Regulations, etc.
Neither the sale of the Notes by the Company
hereunder nor its use of the proceeds thereof will
violate the Trading with the Enemy Act, as amended,
or any of the foreign assets control regulations of
the United States Treasury Department (31 CFR, Subtitle
B, Chapter V, as amended) or any enabling legislation
or executive order relating thereto.
5.17. Status under Certain Statutes.
Neither the Company nor any Subsidiary is
subject to regulation under the Investment Company
Act of 1940, as amended, or the Interstate Commerce
Act, as amended. The Company and its Subsidiaries
are exempt from registration with the Securities and
Exchange Commission under the Public Utility Holding
Company Act of 1935, as amended, pursuant to Section
3(a)(1) thereof.
5.18. Year 2000.
The Company and each of its Subsidiaries has
adopted a plan (the "Year 2000 Plan") which adequately
addresses, in the reasonable judgment of senior management
of the Company, the operational and financial issues
("Year 2000 Issues") arising from data in the management
information and computer systems of the Company and its
Subsidiaries respecting dates prior to, on or after January 1,
2000. The Year 2000 Plan is in process of implementation
and, as a result thereof, Year 2000 Issues do not present
a reasonable likelihood of resulting in a Material
Adverse Effect.
<PAGE>
6. REPRESENTATIONS OF THE PURCHASER.
6.1. Purchase for Investment.
Each Purchaser represents that such Purchaser
is purchasing the Notes for its own account or for one
or more separate accounts maintained by it or for the
account of one or more pension or trust funds and not
with a view to the distribution thereof, provided that
the disposition of such Purchaser's or their property
shall at all times be within such Purchaser's or their
control. Each Purchaser understands that the Notes have
not been registered under the Securities Act and may be
resold only if registered pursuant to the provisions of
the Securities Act or if an exemption from registration
is available, except under circumstances where neither
such registration nor such an exemption is required by law,
and that the Company is not required to register the Notes.
6.2. Source of Funds.
Each Purchaser represents that at least
one of the following statements is an accurate representation
as to each source of funds (a "Source") to be used by such
Purchaser to pay the purchase price of the Notes to be
purchased by such Purchaser hereunder:
(a) the Source is an "insurance company
general account" (as the term is defined in PTE 95-60
(issued July 12, 1995)) in respect of which the
reserves and liabilities (as defined by the annual
statement for life insurance companies approved by
the National Association of Insurance Commissioners
(the "NAIC Annual Statement")) for the general account
contract(s) held by or on behalf of any employee
benefit plan together with the amount of the reserves
and liabilities for the general account contract(s)
held by or on behalf of any other employee benefit
plans maintained by the same employer (or affiliate
thereof as defined in PTE 9560) or by the same
employee organization in the general account
do not exceed 10% of the total reserves and
liabilities of the general account (exclusive of
separate account liabilities) plus surplus as set
forth in the NAIC Annual Statement filed with such
Purchaser's state of domicile; or
(b) the Source is a separate account that
is maintained solely in connection with such
Purchaser's fixed contractual obligations under
which the amounts payable, or credited, to any
employee benefit plan (or its related trust) that
has any interest in such separate account (or to
any participant or beneficiary of such plan (including
any annuitant)) are not affected in any manner by the
investment performance of the separate account; or
(c) the Source is either (i) an insurance company
pooled separate account, within the meaning of PTE 90-1
(issued January 29, 1990), or (ii) a bank collective
investment fund, within the meaning of the PTE 91-38
(issued July 12,1991) and, except as disclosed by such
Purchaser to the Company in writing pursuant to this
paragraph (c), no employee benefit plan or group of
plans maintained by the same employer or employee
organization beneficially owns more than 10% of all
assets allocated to such pooled separate account or
collective investment fund; or
(d) the Source constitutes assets of an "investment
fund" (within the meaning of...
<PAGE>
... Part V of the QPAM Exemption) managed by a "qualified
professional asset manager" or "QPAM" (within the meaning
of Part V of the QPAM Exemption), no employee benefit plan's
assets that are included in such investment fund, when
combined with the assets of all other employee benefit plans
established or maintained by the same employer or by an
affiliate (within the meaning of Section V(c)(1) of the QPAM
Exemption) of such employer or by the same employee
organization and managed by such QPAM, exceed 20% of the
total client assets managed by such QPAM, the conditions of
Part I(c) and (g) of the QPAM Exemption are satisfied, neither
the QPAM nor a person controlling or controlled by the QPAM
(applying the definition of "control" in Section V(e) of the
QPAM Exemption) owns a 5% or more interest in the Company
and (i) the identity of such QPAM and (ii) the names of
all employee benefit plans whose assets are included in
such investment fund have been disclosed to the Company
in writing pursuant to this paragraph (d); or
(e) the Source is a governmental plan; or
(f) the Source is one or more employee benefit
plans, or a separate account or trust fund comprised of
one or more employee benefit plans, each of which has
been identified to the Company in writing pursuant to
this paragraph (f); or (g) the Source does not include
assets of any employee benefit plan, other than a plan
exempt from the coverage of ERISA.
As used in this Section 6.2, the terms "employee benefit
plan", "governmental plan", "party in interest" and "separate
account" shall have the respective meanings assigned to such
terms in Section 3 of ERISA.
7. INFORMATION AS TO COMPANY.
7.1. Financial and Business Information.
The Company shall deliver to each holder of Notes
that is an Institutional Investor:
(a) Quarterly Statements -- within 60 days after
the end of each quarterly fiscal period in each fiscal
year of the Company (other than the last quarterly fiscal
period of each such fiscal year), duplicate copies of,
(i) a consolidated balance sheet of
the Company and its Subsidiaries as at the end
of such quarter, and
(ii) consolidated statements of
results of operations, changes in shareholders'
equity and cash flows of the Company and its
Subsidiaries, for such quarter and (in the case
of the second and third quarters) for the portion
of the fiscal year ending with such quarter,
setting forth in each case in comparative form the figures
for the corresponding periods in the previous fiscal year,
all in reasonable detail, prepared in accordance with GAAP...
<PAGE>
...applicable to quarterly financial statements generally, and
certified by a Senior Financial Officer as fairly presenting,
in all material respects, the financial position of the
companies being reported on and their results of operations
and cash flows, subject to changes resulting from year-end
adjustments, provided that delivery within the time period
specified above of copies of the Company's Quarterly Report
on Form 10-Q prepared in compliance with the requirements
therefor and filed with the Securities and Exchange Commission
shall be deemed to satisfy the requirements of this
Section 7.1(a);
(b) Annual Statements -- within 105 days after the end
of each fiscal year of the Company, duplicate copies of,
(i) a consolidated balance sheet of the
Company and its Subsidiaries, as at the end of such
year, and
(ii) consolidated statements of results of
operations, changes in shareholders' equity and cash
flows of the Company and its Subsidiaries, for such year,
setting forth in each case in comparative form the figures
for the previous fiscal year, allin reasonable detail,
prepared in accordance with GAAP, and accompanied by an
opinion thereon of independent certified public accountants
of recognized national standing, which opinion shall state
that such financial statements present fairly, in all
material respects, the financial position of the companies
being reported upon and their results of operations and cash
flows and have been prepared in conformity with GAAP, and
that the examination of such accountants in connection with
such financial statements has been made in accordance with
generally accepted auditing standards, and that such audit
provides a reasonable basis for such opinion in the
circumstances, provided that the delivery within the time
period specified above of the Company's Annual Report on
Form 10-K for such fiscal year (together with the Company's
annual report to shareholders, if any, prepared pursuant to
Rule 14a-3 under the Exchange Act) prepared in accordance
with the requirements therefor and filed with the Securities
and Exchange Commission shall be deemed to satisfy the
requirements of this Section 7.1(b);
(c) SEC and Other Reports -- promptly upon their
becoming available, one copy of (i) each financial
statement, report, notice or proxy statement sent by the
Company or any Subsidiary to public securities holders
generally, and (ii) each regular or periodic report, each
registration statement that shall have become effective
(without exhibits except as expressly requested by such
holder), and each final prospectus and all amendments
thereto filed by the Company or any Subsidiary with the
Securities and Exchange Commission;
(d) Notice of Default or Event of Default -- promptly,
and in any event within five days after a Responsible Officer
becoming aware of the existence of any Default or Event of
Default, a written notice specifying the nature and period of
existence thereof and what action the Company is taking or
proposes to take with respect thereto;
<PAGE>
(e) ERISA Matters -- promptly, and in any event
within five days after a Responsible Officer becoming aware of
any of the following, a written notice setting forth the nature
thereof and the action, if any, that the Company or an ERISA
Affiliate proposes to take with respect thereto:
(i) with respect to any Plan, any
reportable event, as defined in section 4043(b) of ERISA
and the regulations thereunder, for which notice thereof
has not been waived pursuant to such regulations as in
effect on the date hereof; or
(ii) the taking by the PBGC of steps to
institute, or the threatening by the PBGC of the
institution of, proceedings under section 4042 of ERISA
for the termination of, or the appointment of a trustee
to administer, any Plan, or the receipt by the Company
or any ERISA Affiliate of a notice from a Multiemployer
Plan that such action has been taken by the PBGC with
respect to such Multiemployer Plan; or
(iii) any event, transaction or condition
that could result in the incurrence of any liability by
the Company or any ERISA Affiliate pursuant to Title I
or IV of ERISA or the penalty or excise tax provisions
of the Code relating to employee benefit plans, or in
the imposition of any Lien on any of the rights,
properties or assets of the Company or any ERISA
Affiliate pursuant to Title I or IV of ERISA or such
penalty or excise tax provisions, if such liability or
Lien, taken together with any other such liabilities or
Liens then existing, would reasonably be expected to
have a Material Adverse Effect; and
(f) Requested Information -- with reasonable
promptness, such other data and information relating to the
business, operations, affairs, financial condition, assets
or properties of the Company or any of its Subsidiaries or
relating to the ability of the Company to perform its
obligations hereunder and under the Notes as from time to
time may be reasonably requested by any such holder of
Notes.
7.2. Officer's Certificate.
Each set of financial statements delivered to a holder
of Notes pursuant to Section 7.1(a) or Section 7.1(b) hereof
shall be accompanied by a certificate of a Senior Financial
Officer certifying that such officer has reviewed the relevant
terms hereof and has made, or caused to be made, under his or her
supervision, a review of the transactions and conditions of the
Company and its Subsidiaries from the beginning of the quarterly
or annual period covered by the statements then being furnished
to the date of the certificate and that such review shall not
have disclosed the existence during such period of any condition
or event that constitutes a Default or an Event of Default or, if
any such condition or event existed or exists (including, without
limitation, any such event or condition resulting from the
failure of the Company or any Subsidiary to comply with any
Environmental Law), specifying the nature and period of existence
thereof and what action the Company shall have taken or proposes
to take with respect thereto.
<PAGE>
7.3. Inspection.
The Company shall permit the representatives of each
holder of Notes that is an Institutional Investor:
(a) No Default -- if no Default or Event of Default
then exists, at the expense of such holder and upon
reasonable prior notice to the Company, to visit the
principal executive office of the Company, to discuss the
affairs, finances and accounts of the Company and its
Subsidiaries with the Company's officers, and, with the
consent of the Company (which consent will not be
unreasonably withheld) to visit the other offices and
properties of the Company and each Subsidiary, all at such
reasonable times and as often as may be reasonably requested
in writing; and
(b) Default -- if a Default or Event of Default then
exists, at the expense of the Company to visit and inspect
any of the offices or properties of the Company or any
Subsidiary, to examine all their respective books of
account, records, reports and other papers, to make copies
and extracts therefrom, and to discuss their respective
affairs, finances and accounts with their respective
officers and independent public accountants (and by this
provision the Company authorizes said accountants to discuss
the affairs, finances and accounts of the Company and its
Subsidiaries), all at such times and as often as may be
requested.
8. INTEREST ON THE NOTES; PREPAYMENT OF THE NOTES.
8.1. Interest.
(a) Interest will accrue and be payable on the Notes in
the amounts and at the times specified in the first paragraph of
the Notes. Notwithstanding anything above or in the Notes to the
contrary, upon the occurrence of a Credit Rating Event at any time
and for so long as such Credit Rating Event shall continue, interest
shall accrue and be payable on the Notes at a rate per annum that is
equal to the rate of interest applicable to the Notes pursuant to the
first paragraph thereof plus the Applicable Spread.
(b) Promptly, and in any event within five days
after the occurrence of a Credit Rating Event or a Rating Change,
the Company shall give a written notice thereof to the holders of
all outstanding Notes, which notice shall refer specifically to
this Section 8.1 and specify the Rating Change.
(c) For purposes of subsections (a) and (b) above, a
"Credit Rating Event" shall have occurred upon, and shall continue
for so long as, any senior unsecured long-term indebtedness of the
Company shall (i) be rated lower than "A3" by Moody's or lower
than "A-" by S&P or (ii) not be rated by either of the Rating
Agencies.
(d) For purposes of subsection (b) above, a "Rating
Change" will be deemed to have occurred for purposes of this
Section 8.1 if on any date there shall have been a public notice
to the effect, or the Company shall have otherwise become aware,
that (i) any senior unsecured...
<PAGE>
...long-term indebtedness of the Company shall (x) be rated in a
different Category in accordance with the definition of "Applicable
Spread" or (ii) the rating of such indebtedness shall have been
withdrawn or otherwise not maintained by S&P or Moody's.
8.2. Maturity.
As provided therein, the entire unpaid principal amount
of the Notes shall be due and payable on April 6, 2004.
8.3. Optional Prepayments with Make-Whole Amount.
The Company may, at its option, upon notice as provided
below, prepay at any time all, or from time to time any part of,
the Notes, in an amount not less than 5% of the aggregate
principal amount of the Notes then outstanding in the case of a
partial prepayment, at 100% of the principal amount so prepaid,
plus the Make-Whole Amount determined for the prepayment date
with respect to such principal amount. The Company will give
each holder of Notes written notice of each optional prepayment
under this Section 8.3 not less than 30 days and not more than 60
days prior to the date fixed for such prepayment. Each such
notice shall specify such date, the aggregate principal amount of
the Notes to be prepaid on such date, the principal amount of
each Note held by such holder to be prepaid (determined in
accordance with Section 8.4), and the interest to be paid on the
prepayment date with respect to such principal amount being
prepaid, and shall be accompanied by a certificate of a Senior
Financial Officer as to the estimated Make-Whole Amount due in
connection with such prepayment (calculated as if the date of
such notice were the date of the prepayment), setting forth the
details of such computation. Two Business Days prior to such
prepayment, the Company shall deliver to each holder of Notes a
certificate of a Senior Financial Officer specifying the
calculation of such Make-Whole Amount as of the specified
prepayment date.
8.4. Allocation of Partial Prepayments.
In the case of each partial prepayment of the Notes,
the principal amount of the Notes to be prepaid shall be
allocated among all of the Notes at the time outstanding in
proportion, as nearly as practicable, to the respective unpaid
principal amounts thereof not theretofore called for prepayment.
8.5. Maturity; Surrender, etc.
In the case of each prepayment of Notes pursuant to
this Section 8, the principal amount of each Note to be prepaid
shall mature and become due and payable on the date fixed for
such prepayment, together with interest on such principal amount
accrued to such date and the applicable Make-Whole Amount, if
any. From and after such date, unless the Company shall fail to
pay such principal amount when so due and payable, together with
the interest and Make-Whole Amount, if any, as aforesaid,
interest on such principal amount shall cease to accrue. Any
Note paid or prepaid in full shall be surrendered to the Company
and cancelled and shall not be reissued, and no Note shall be
issued in lieu of any prepaid principal amount of any Note.
<PAGE>
8.6. Purchase of Notes.
The Company will not and will not permit any Affiliate
to purchase, redeem, prepay or otherwise acquire, directly or
indirectly, any of the outstanding Notes except (a) upon the
payment or prepayment of the Notes in accordance with the terms
of this Agreement and the Notes or (b) pursuant to an offer to
purchase made by the Company or an Affiliate pro rata to the
holders of all Notes at the time outstanding upon the same terms
and conditions. Any such offer shall provide each holder with
sufficient information to enable it to make an informed decision
with respect to such offer, and shall remain open for at least 30
days. If the holders of more than 50% of the principal amount of
the Notes then outstanding accept such offer, the Company shall
promptly notify the remaining holders of such fact and the
expiration date for the acceptance by holders of Notes of such
offer shall be extended by the number of days necessary to give
each such remaining holder at least five Business Days from its
receipt of such notice to accept such offer. The Company will
promptly cancel all Notes acquired by it or any Affiliate
pursuant to any payment, prepayment or purchase of Notes pursuant
to any provision of this Agreement and no Notes may be issued in
substitution or exchange for any such Notes.
8.7. Make-Whole Amount.
The term "Make-Whole Amount" means, with respect to any
Note, an amount equal to the excess, if any, of the Discounted
Value of the Remaining Scheduled Payments with respect to the
Called Principal of such Note over the amount of such Called
Principal, provided that the Make-Whole Amount may in no event be
less than zero. For the purposes of determining the Make-Whole
Amount, the following terms have the following meanings:
"Called Principal" means, with respect to any Note, the
principal of such Note that is to be prepaid pursuant to
Section 8.3 or has become or is declared to be immediately
due and payable pursuant to Section 12.1, as the context
requires.
"Discounted Value" means, with respect to the Called
Principal of any Note, the amount obtained by discounting
all Remaining Scheduled Payments with respect to such Called
Principal from their respective scheduled due dates to the
Settlement Date with respect to such Called Principal, in
accordance with accepted financial practice and at a
discount factor (applied on the same periodic basis as that
on which interest on the Notes is payable) equal to the
Reinvestment Yield with respect to such Called Principal.
"Reinvestment Yield" means, with respect to the Called
Principal of any Note, 0.50% over the yield to maturity
implied by (i) the yields reported, as of 10:00 A.M. (New
York City time) on the second Business Day preceding the
Settlement Date with respect to such Called Principal, on
the display designated as "Page 678" on the Telerate Service
of Bridge Information Services (or such other display as may
replace Page 678 on the Telerate Service of Bridge
Information Services) for actively traded U.S. Treasury
securities having a maturity equal to the remaining term of
the Notes as of such Settlement Date, or (ii) if such yields
are not reported as of such time or the yields reported as
of such time are not ascertainable, the Treasury Constant
Maturity Series Yields reported, for the latest day for...
<PAGE>
...which such yields have been so reported as of the second
Business Day preceding the Settlement Date with respect to
such Called Principal, in U.S. Federal Reserve Statistical
Release H.15 (519) (or any comparable successor publication)
for actively traded U.S. Treasury securities having a
constant maturity equal to the remaining term of the Notes
as of such Settlement Date. Such implied yield will be
determined, if necessary, by (a) converting U.S. Treasury
bill quotations to bond-equivalent yields in accordance with
accepted financial practice and (b) interpolating linearly
between (1) the actively traded U.S. Treasury security with
the maturity closest to and greater than the remaining term
of the Notes and (2) the actively traded U.S. Treasury
security with the maturity closest to and less than the
remaining term of the Notes.
"Remaining Scheduled Payments" means, with respect to
the Called Principal of any Note, all payments of such
Called Principal and interest thereon that would be due
after the Settlement Date with respect to such Called
Principal if no payment of such Called Principal were made
prior to its scheduled due date, provided that if such
Settlement Date is not a date on which interest payments are
due to be made under the terms of the Notes, then the amount
of the next succeeding scheduled interest payment will be
reduced by the amount of interest accrued to such Settlement
Date and required to be paid on such Settlement Date
pursuant to Section 8.3 or 12.1.
"Settlement Date" means, with respect to the Called
Principal of any Note, the date on which such Called
Principal is to be prepaid pursuant to Section 8.3 or has
become or is declared to be immediately due and payable
pursuant to Section 12.1, as the context requires.
9. AFFIRMATIVE COVENANTS.
The Company covenants that so long as any of the Notes
are outstanding:
9.1. Compliance with Law.
The Company will and will cause each of its
Subsidiaries to comply with all laws, ordinances or governmental
rules or regulations to which each of them is subject, including,
without limitation, Environmental Laws, and will obtain and
maintain in effect all licenses, certificates, permits, franchises
and other governmental authorizations necessary to the ownership
of their respective properties or to the conduct of their
respective businesses, in each case to the extent necessary
to ensure that non-compliance with such laws, ordinances or
governmental rules or regulations or failures to obtain or
maintain in effect such licenses, certificates, permits,
franchises and other governmental authorizations would not
reasonably be expected, individually or in the aggregate, to have
a materially adverse effect on the business, operations, affairs,
financial condition, properties or assets of the Company and its
Subsidiaries taken as a whole.
<PAGE>
9.2. Insurance.
The Company will and will cause each of its
Subsidiaries to maintain, with financially sound and reputable
insurers, insurance with respect to their respective properties
and businesses against such casualties and contingencies, of such
types, on such terms and in such amounts (including deductibles,
co-insurance and self-insurance, if adequate reserves are
maintained with respect thereto) as is customary in the case of
entities of established reputations engaged in the same or a
similar business and similarly situated.
9.3. Maintenance of Properties.
The Company will and will cause each of its
Subsidiaries to maintain and keep, or cause to be maintained and
kept, their respective properties in good repair, working order
and condition (other than ordinary wear and tear), so that the
business carried on in connection therewith may be properly
conducted at all times, provided that this Section shall not
prevent the Company or any Subsidiary from discontinuing the
operation and the maintenance of any of its properties if such
discontinuance is desirable in the conduct of its business and
the Company has concluded that such discontinuance would not,
individually or in the aggregate, have a materially adverse
effect on the business, operations, affairs, financial condition,
properties or assets of the Company and its Subsidiaries taken as
a whole.
9.4. Payment of Taxes.
The Company will and will cause each of its
Subsidiaries to file all income tax or similar tax returns
required to be filed in any jurisdiction and to pay and discharge
all taxes shown to be due and payable on such returns and all
other taxes, assessments, governmental charges, or levies payable
by any of them, to the extent such taxes and assessments have
become due and payable and before they have become delinquent,
provided that neither the Company nor any Subsidiary need pay any
such tax or assessment if (i) the amount, applicability or
validity thereof is contested by the Company or such Subsidiary
on a timely basis in good faith and in appropriate proceedings,
and the Company or a Subsidiary has established adequate reserves
therefor in accordance with GAAP on the books of the Company or
such Subsidiary or (ii) the nonpayment of all such taxes and
assessments in the aggregate would not reasonably be expected to
have a materially adverse effect on the business, operations,
affairs, financial condition, properties or assets of the Company
and its Subsidiaries taken as a whole.
9.5. Corporate Existence, etc.
Subject to Section 10.2, the Company will at all times
preserve and keep in full force and effect its corporate
existence, and the Company will at all times preserve and keep in
full force and effect the corporate existence of each of its
Subsidiaries and all rights and franchises of the Company and its
Subsidiaries unless, in the good faith judgment of the Company,
the termination of or failure to preserve and keep in full force
and effect the corporate existence of any Subsidiary or any such
right or franchise would not, individually or in the aggregate,
have a materially adverse effect on the business, operations,
affairs, financial condition, properties or assets of the Company
and its Subsidiaries taken as a whole.
<PAGE>
10. NEGATIVE COVENANTS.
The Company covenants that so long as any of the Notes
are outstanding:
10.1. Transactions with Affiliates.
The Company will not and will not permit any Subsidiary
to enter into directly or indirectly any Material transaction or
Material group of related transactions (including without
limitation the purchase, lease, sale or exchange of properties of
any kind or the rendering of any service) with any Affiliate
(other than the Company or another Subsidiary), except pursuant
to the reasonable requirements of the Company's or such
Subsidiary's business and upon fair and reasonable terms no less
favorable to the Company or such Subsidiary than would be
obtainable in a comparable arm's-length transaction with a Person
not an Affiliate.
10.2. Consolidation, Merger, Conveyance or Other Transfer.
The Company shall not consolidate with or merge into any
other corporation, or convey or otherwise transfer or lease its
properties and assets substantially as an entirety to any Person,
unless
(a) the corporation formed by such consolidation or
into which the Company is merged or the Person which acquires
by conveyance or transfer, or which leases, the properties
and assets of the Company substantially as an entirety shall
be a Person organized and validly existing under the laws of
the United States, any State thereof or the District of
Columbia, and shall expressly assume, by a written
instrument, executed and delivered to the holders of the
Notes, the due and punctual payment of the principal of
and Make-Whole Amount, if any, and interest, if any, on all
of the Notes and the performance of every covenant of this
Agreement and the Notes on the part of the Company to be
performed or observed;
(b) immediately after giving effect to such transaction
no Default or Event of Default shall have occurred and be
continuing; and
(c) the Company shall have delivered to the holders of
the Notes an Officer's Certificate and an Opinion of Counsel,
each stating that such consolidation, merger, conveyance, or
other transfer or lease and such written instrument of
assumption comply with this Section and that all conditions
precedent herein provided for relating to such transactions
have been complied with.
Upon any consolidation by the Company with or merger by
the Company into any other corporation or any conveyance, or other
transfer or lease of the properties and assets of the Company
substantially as an entirety in accordance with this Section 10.2,
the successor corporation formed by such consolidation or into
which the Company is merged or the Person to which such
conveyance, transfer or lease is made shall succeed to, and be
substituted for, and...
<PAGE>
...may exercise every right and power of, the Company under this
Agreement and the Notes with the same effect as if such successor
Person had been named as the Company herein, and thereafter,
except in the case of a lease, the predecessor Person shall be
relieved of all obligations and covenants under this Agreement
and the Notes.
10.3. Limitation on Liens.
(a) So long as any Notes are outstanding, the Company
will not pledge, mortgage, hypothecate or grant a security
interest in, or permit any mortgage, pledge, security interest or
other lien (collectively, "Liens") upon, any capital stock of
DP&L, to secure any Indebtedness of the Company without making
effective provision whereby the Notes shall (so long as such other
Indebtedness shall be so secured) be equally and ratably secured
with any and all such other Indebtedness and any other
indebtedness similarly entitled to be equally and ratably secured.
In case the Company shall propose to pledge, mortgage,
hypothecate or grant a security interest in any capital stock of
DP&L owned by the Company to secure any Indebtedness, the Company
will prior thereto give written notice thereof to the holders of
the Notes, and the Company will prior to or simultaneously with
such pledge, mortgage, hypothecation or grant of security interest,
by a written instrument in form satisfactory to the Required Holders,
effectively secure (for so long as such other Indebtedness shall be
so secured) all the Notes equally and ratably with such Indebtedness
and with any other indebtedness for money borrowed similarly entitled
to be equally and ratably secured.
(b) The provisions of Subsection (a) of this Section
10.3 shall not apply in the event that the Company shall pledge,
mortgage, hypothecate or grant a security interest in or other
Lien upon any capital stock of DP&L to secure any Indebtedness
which would otherwise be subject to the foregoing restriction up
to an aggregate amount which, together with all other Indebtedness
(other than Liens permitted by Subsection (a) of this Section
10.3) which would otherwise be subject to the foregoing restriction,
does not at the time exceed 10% of Consolidated Capitalization.
11. EVENTS OF DEFAULT.
An "Event of Default" shall exist if any of the
following conditions or events shall occur and be continuing:
(a) the Company defaults in the payment of any
principal or Make-Whole Amount, if any, on any Note when the
same becomes due and payable, whether at maturity or at a
date fixed for prepayment or by declaration or otherwise; or
(b) the Company defaults in the payment of any
interest on any Note for more than 10 Business Days after
the same becomes due and payable; or
(c) the Company defaults in the performance of or
compliance with any term...
<PAGE>
... contained herein (other than those referred to in
paragraphs (a) and (b) of this Section 11) and such default
is not remedied within 60 days after the earlier of (i) a
Responsible Officer obtaining actual knowledge of such default
and (ii) the Company receiving written notice of such default
from any holder of a Note (any such written notice to be
identified as a "notice of default" and to refer specifically
to this paragraph (c) of Section 11); or
(d) any representation or warranty made in writing by
or on behalf of the Company or by any officer of the Company
in this Agreement or in any writing furnished in connection
with the transactions contemplated hereby proves to have
been false or incorrect in any material respect on the date
as of which made; or
(e) (i) the Company or any Significant Subsidiary is
in default (as principal or as guarantor or other surety) in
the payment of any principal of or premium or make-whole
amount or interest on any Indebtedness that is outstanding
in an aggregate principal amount of at least $50,000,000
beyond any period of grace provided with respect thereto, or
(ii) the Company or any Significant Subsidiary is in default
in the performance of or compliance with any term of any
evidence of any Indebtedness in an aggregate outstanding
principal amount of at least $50,000,000 or of any mortgage,
indenture or other agreement relating thereto or any other
condition exists, and as a consequence of such default or
condition such Indebtedness has become, or has been declared
due and payable before its stated maturity or before its
regularly scheduled dates of payment; or
(f) the Company or any Significant Subsidiary (i) is
generally not paying, or admits in writing its inability to
pay, its debts as they become due, (ii) files, or consents
by answer or otherwise to the filing against it of, a
petition for relief or reorganization or arrangement or any
other petition in bankruptcy, for liquidation or to take
advantage of any bankruptcy, insolvency, reorganization,
moratorium or other similar law of any jurisdiction,
(iii) makes an assignment for the benefit of its creditors,
(iv) consents to the appointment of a custodian, receiver,
trustee or other officer with similar powers with respect to
it or with respect to any substantial part of its property,
(v) is adjudicated as insolvent or to be liquidated, or
(vi) takes corporate action for the purpose of any of the
foregoing; or
(g) a court or governmental authority of competent
jurisdiction enters an order appointing, without consent by
the Company or any of its Significant Subsidiaries, a
custodian, receiver, trustee or other officer with similar
powers with respect to it or with respect to any substantial
part of its property, or constituting an order for relief or
approving a petition for relief or reorganization or any
other petition in bankruptcy or for liquidation or to take
advantage of any bankruptcy or insolvency law of any
jurisdiction, or ordering the dissolution, winding-up or
liquidation of the Company or any of its Significant
Subsidiaries, or any such petition shall be filed against
the Company or any of its Significant Subsidiaries and such
petition shall not be dismissed within 90 days; or
(h) a final judgment or judgments for the payment of
money aggregating in excess of $50,000,000 (net of any
insurance coverage to the extent the insurer has not denied
or contested its liability with respect thereto) are
rendered against one or more of the Company and its
Significant Subsidiaries and which judgments are not, within
90 days after entry...
<PAGE>
...thereof, bonded, discharged or stayed pending appeal, or
are not discharged within 90 days after the expiration of
such stay; or
(i) if (i) any Plan shall fail to satisfy the minimum
funding standards of ERISA or the Code for any plan year or
part thereof or a waiver of such standards or extension of
any amortization period is sought or granted under section
412 of the Code, (ii) a notice of intent to terminate any Plan
shall have been or is reasonably expected to be filed with the
PBGC or the PBGC shall have instituted proceedings under ERISA
section 4042 to terminate or appoint a trustee to administer
any Plan or the PBGC shall have notified the Company or any
ERISA Affiliate that a Plan may become a subject of any such
proceedings, (iii) the aggregate "amount of unfunded benefit
liabilities" (within the meaning of section 4001(a)(18) of
ERISA) under all Plans, determined in accordance with Title IV
of ERISA, shall exceed $50,000,000, (iv) the Company or any
ERISA Affiliate shall have incurred or is reasonably expected to
incur any liability pursuant to Title I or IV of ERISA or
the penalty or excise tax provisions of the Code relating to
employee benefit plans, (v) the Company or an ERISA
Affiliate withdraws from any Multiemployer Plan, or (vi) the
Company or any Subsidiary establishes or amends any employee
welfare benefit plan that provides post-employment welfare
benefits in a manner that would increase the liability of
the Company or any Subsidiary thereunder; and any such event
or events described in clauses (i) through (vi) above,
either individually or together with any other such event or
events, would reasonably be expected to have a Materially
Adverse Effect.
As used in Section 11(i), the terms "employee benefit plan" and
"employee welfare benefit plan" shall have the respective meanings
assigned to such terms in Section 3 of ERISA.
12. REMEDIES ON DEFAULT, ETC.
12.1. Acceleration.
(a) If an Event of Default with respect to the Company
described in paragraph (f) or (g) of Section 11 (other than an
Event of Default described in clause (i) of paragraph (f) or
described in clause (vi) of paragraph (f) by virtue of the fact
that such clause encompasses clause (i) of paragraph (f)) has
occurred, all the Notes then outstanding shall automatically
become immediately due and payable.
(b) If any other Event of Default has occurred and is
continuing, the Required Holders may at any time at their option,
by notice or notices to the Company, declare all the Notes then
outstanding to be immediately due and payable.
(c) If any Event of Default described in paragraph (a)
or (b) of Section 11 has occurred and is continuing, any holder
or holders of Notes at the time outstanding affected by such
Event of Default may at any time, at its or their option, by
notice or notices to the Company, declare all the Notes held by
it or them to be immediately due and payable.
Upon any Notes becoming due and payable under this
Section 12.1, whether automatically or by declaration, such Notes
will forthwith mature and the entire unpaid principal...
<PAGE>
...amount of such Notes, plus (x) all accrued and unpaid interest
thereon and (y) the Make-Whole Amount determined in respect of such
principal amount (to the full extent permitted by applicable law),
shall all be immediately due and payable, in each and every case
without presentment, demand, protest or further notice, all of
which are hereby waived. The Company acknowledges, and the
parties hereto agree, that each holder of a Note has the right to
maintain its investment in the Notes free from repayment by the
Company (except as herein specifically provided for) and that the
provision for payment of a Make-Whole Amount by the Company in
the event that the Notes are prepaid or are accelerated as a
result of an Event of Default, is intended to provide
compensation for the deprivation of such right under such
circumstances.
12.2. Other Remedies.
If any Default or Event of Default has occurred and is
continuing, and irrespective of whether any Notes have become or
have been declared immediately due and payable under Section
12.1, the holder of any Note at the time outstanding may proceed
to protect and enforce the rights of such holder by an action at
law, suit in equity or other appropriate proceeding, whether for
the specific performance of any agreement contained herein or in
any Note, or for an injunction against a violation of any of the
terms hereof or thereof, or in aid of the exercise of any power
granted hereby or thereby or by law or otherwise.
12.3. Rescission.
At any time after any Notes have been declared due and
payable pursuant to clause (b) or (c) of Section 12.1, the
Required Holders, by written notice to the Company, may rescind
and annul any such declaration and its consequences if (a) the
Company has paid all overdue interest on the Notes, all principal
of and Make-Whole Amount, if any, on any Notes that are due and
payable and are unpaid other than by reason of such declaration,
and all interest on such overdue principal and Make-Whole Amount,
if any, and (to the extent permitted by applicable law) any
overdue interest in respect of the Notes, at the Default Rate,
(b) all Events of Default and Defaults, other than non-payment of
amounts that have become due solely by reason of such declaration,
have been cured or have been waived pursuant to Section 17, and
(c) no judgment or decree has been entered for the payment of any
monies due pursuant hereto or to the Notes. No rescission and
annulment under this Section 12.3 will extend to or affect any
subsequent Event of Default or Default or impair any right
consequent thereon.
12.4. No Waivers or Election of Remedies, Expenses, etc.
No course of dealing and no delay on the part of any
holder of any Note in exercising any right, power or remedy shall
operate as a waiver thereof or otherwise prejudice such holder's
rights, powers or remedies. No right, power or remedy conferred
by this Agreement or by any Note upon any holder thereof shall be
exclusive of any other right, power or remedy referred to herein
or therein or now or hereafter available at law, in equity, by
statute or otherwise. Without limiting the obligations of the
Company under Section 15, the Company will pay to the holder of
each Note on demand such further amount as shall be sufficient to
cover all costs and expenses of such holder incurred in any
enforcement or collection under this Section 12, including,
without limitation, reasonable attorneys' fees, expenses and
disbursements.
<PAGE>
13. REGISTRATION; EXCHANGE; SUBSTITUTION OF NOTES.
13.1. Registration of Notes.
The Company shall keep at its principal executive
office a register for the registration and registration of
transfers of Notes. The name and address of each holder of one
or more Notes, each transfer thereof and the name and address of
each transferee of one or more Notes shall be registered in such
register. Prior to due presentment for registration of transfer,
the Person in whose name any Note shall be registered shall be
deemed and treated as the owner and holder thereof for all
purposes hereof, and the Company shall not be affected by any
notice or knowledge to the contrary. The Company shall give to
any holder of a Note that is an Institutional Investor promptly
upon request therefor, a complete and correct copy of the names
and addresses of all registered holders of Notes.
13.2. Transfer and Exchange of Notes.
Upon surrender of any Note at the principal executive
office of the Company for registration of transfer or exchange
(and in the case of a surrender for registration of transfer,
duly endorsed or accompanied by a written instrument of transfer
duly executed by the registered holder of such Note or his
attorney duly authorized in writing and accompanied by the
address for notices of each transferee of such Note or part
thereof), the Company shall execute and deliver, at the Company's
expense (except as provided below), one or more new Notes (as
requested by the holder thereof) in exchange therefor, in an
aggregate principal amount equal to the unpaid principal amount
of the surrendered Note. Each such new Note shall be payable to
such Person as such holder may request and shall be substantially
in the form of Exhibit 1. Each such new Note shall be dated and
bear interest from the date to which interest shall have been
paid on the surrendered Note or dated the date of the surrendered
Note if no interest shall have been paid thereon. The Company
may require payment of a sum sufficient to cover any stamp tax or
governmental charge imposed in respect of any such transfer of
Notes. Notes shall not be transferred in denominations of less
than $500,000, provided that if necessary to enable the
registration of transfer by a holder of its entire holding of
Notes, one Note may be in a denomination of less than $500,000.
Any transferee, by its acceptance of a Note registered in its
name (or the name of its nominee), shall be deemed to have made
the representation set forth in Section 6.2.
13.3. Replacement of Notes.
Upon receipt by the Company of evidence reasonably
satisfactory to it of the ownership of and the loss, theft,
destruction or mutilation of any Note (which evidence shall be,
in the case of an Institutional Investor, notice from such
Institutional Investor of such ownership and such loss, theft,
destruction or mutilation), and
(a) in the case of loss, theft or destruction, of
indemnity reasonably satisfactory to it (provided that if
the holder of such Note is, or is a nominee for, an original
Purchaser or another holder of a Note with a minimum net
worth of at least $10,000,000, such Person's own unsecured
agreement of indemnity shall be deemed to be satisfactory),
or...
<PAGE>
(b) in the case of mutilation, upon surrender and
cancellation thereof,
the Company at its own expense shall execute and deliver, in lieu
thereof, a new Note, dated and bearing interest from the date to
which interest shall have been paid on such lost, stolen, destroyed
or mutilated Note or dated the date of such lost, stolen, destroyed
or mutilated Note if no interest shall have been paid thereon.
14. PAYMENTS ON NOTES.
14.1. Place of Payment.
Subject to Section 14.2, payments of principal, Make
Whole Amount, if any, and interest becoming due and payable on
the Notes shall be made in New York, New York at the principal
office of Bank of New York in such jurisdiction. The Company may
at any time, by notice to each holder of a Note, change the place
of payment of the Notes so long as such place of payment shall be
either the principal office of the Company in such jurisdiction
or the principal office of a bank or trust company in such
jurisdiction.
14.2. Home Office Payment.
So long as any Purchaser or any nominee of such
Purchaser shall be the holder of any Note, and notwithstanding
anything contained in Section 14.1 or in such Note to the
contrary, the Company will pay all sums becoming due on such Note
for principal, Make-Whole Amount, if any, and interest by the
method and at the address specified for such purpose below such
Purchaser's name in Schedule A, or by such other method or at
such other address as such Purchaser shall have from time to time
specified to the Company in writing for such purpose, without the
presentation or surrender of such Note or the making of any
notation thereon, except that upon written request of the Company
made concurrently with or reasonably promptly after payment or
prepayment in full of any Note, such Purchaser shall surrender
such Note for cancellation, reasonably promptly after any such
request, to the Company at its principal executive office or at
the place of payment most recently designated by the Company
pursuant to Section 14.1. Prior to any sale or other disposition
of any Note held by any Purchaser or any nominee of such
Purchaser, such Purchaser will, at its election, either endorse
thereon the amount of principal paid thereon and the last date to
which interest has been paid thereon or surrender such Note to
the Company in exchange for a new Note or Notes pursuant to
Section 13.2. The Company will afford the benefits of this
Section 14.2 to any Institutional Investor that is the direct or
indirect transferee of any Note purchased by any Purchaser under
this Agreement and that has made the same agreement relating to
such Note as the Purchasers have made in this Section 14.2.
15. EXPENSES, ETC.
15.1. Transaction Expenses.
Whether or not the transactions contemplated hereby are
consummated, the Company will pay all reasonable costs and
expenses (including reasonable attorneys' fees of a...
<PAGE>
... special counsel and, if reasonably required, local or other
counsel) incurred by the Purchasers and each other holder of a
Note in connection with such transactions and inconnection with
any amendments, waivers or consents under or in respect of this
Agreement or the Notes (whether or not such amendment, waiver or
consent becomes effective), including, without limitation: (a)
the reasonable costs and expenses incurred in enforcing or
defending (or determining whether or how to enforce or defend)
any rights under this Agreement or the Notes or in responding to
any subpoena or other legal process or informal investigative
demand issued in connection with this Agreement or the Notes, or
by reason of being a holder of any Note, and (b) the reasonable
costs and expenses, including financial advisors' fees, incurred
in connection with the insolvency or bankruptcy of the Company or
any Significant Subsidiary or in connection with any work-out or
restructuring of the transactions contemplated hereby and by the
Notes. The Company will pay, and will save each Purchaser and
each other holder of a Note harmless from, all claims in respect
of any fees, costs or expenses if any, of brokers and finders
(other than those retained by such Purchaser or other holder).
15.2. Survival.
The obligations of the Company under this Section 15
will survive the payment or transfer of any Note, the enforcement,
amendment or waiver of any provision of this Agreement or the
Notes, and the termination of this Agreement.
16. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; ENTIRE AGREEMENT.
All representations and warranties contained herein
shall survive the execution and delivery of this Agreement and
the Notes, the purchase or transfer by each Purchaser of any Note
or portion thereof or interest therein and the payment of any
Note, and may be relied upon by any subsequent holder of a Note,
regardless of any investigation made at any time by or on behalf
of any Purchaser or any other holder of a Note (it being understood
that such representations and warranties are made as
of the date of this Agreement). All statements contained in any
certificate or other instrument delivered by or on behalf of the
Company pursuant to this Agreement shall be deemed
representations and warranties of the Company under this
Agreement. Subject to the preceding sentence, this Agreement and
the Notes embody the entire agreement and understanding between
the Purchasers and the Company and supersede all prior agreements
and understandings relating to the subject matter hereof.
<PAGE>
17. AMENDMENT AND WAIVER.
17.1. Requirements.
This Agreement and the Notes may be amended, and the
observance of any term hereof or of the Notes may be waived
(either retroactively or prospectively), with (and only with) the
written consent of the Company and the Required Holders, except
that (a) no amendment or waiver of any of the provisions of
Section 1, 2, 3, 4, 5, 6 or 21 hereof, or any defined term (as it
is used therein), will be effective as to any Purchaser unless
consented to by such Purchaser in writing, and (b) no such
amendment or waiver may, without the written consent of the
holder of each Note at the time outstanding affected thereby,
(i) subject to the provisions of Section 12 relating to
acceleration or rescission, change the amount or time of any
prepayment or payment of principal of, or reduce the rate or
change the time of payment or method of computation of interest
or of the Make-Whole Amount on, the Notes, (ii) change the
percentage of the principal amount of the Notes the holders of
which are required to consent to any such amendment or waiver, or
(iii) amend any of Sections 8, 11(a), 11(b), 12, 17 or 20.
17.2. Solicitation of Holders of Notes.
(a) Solicitation. The Company will provide each
holder of the Notes (irrespective of the amount of Notes then
owned by it) with sufficient information, sufficiently far in
advance of the date a decision is required, to enable such holder
to make an informed and considered decision with respect to any
proposed amendment, waiver or consent in respect of an of the
provisions hereof or of the Notes. The Company will deliver
executed or true and correct copies of each amendment, waiver or
consent effected pursuant to the provisions of this Section 17 to
each holder of outstanding Notes promptly following the date on
which it is executed and delivered by, or receives the consent or
approval of, the requisite holders of Notes.
(b) Payment. The Company will not directly or
indirectly pay or cause to be paid any remuneration, whether by
way of supplemental or additional interest, fee or otherwise, or
grant any security, to any holder of Notes as consideration for
or as an inducement to the entering into by any holder of Notes
or any waiver or amendment of any of the terms and provisions
hereof unless such remuneration is concurrently paid, or security
is concurrently granted, on the same terms, ratably to each
holder of Note then outstanding even if such holder did not
consent to such waiver or amendment.
17.3. Binding Effect, etc.
Any amendment or waiver consented to as provided in
this Section 17 applies equally to all holders of Notes and is
binding upon them and upon each future holder of any Note and
upon the Company without regard to whether such Note has been
marked to indicate such amendment or waiver. No such amendment
or waiver will extend to or affect any obligation, covenant,
agreement, Default or Event of Default not expressly amended or
waived or impair any right consequent thereon. No course of
dealing between the Company and the holder of any Note nor any
delay in exercising any rights hereunder or under any Note shall
operate as a waiver of any rights of any holder of such Note. As
used herein, the term "this Agreement" and references...
<PAGE>
...thereto shall mean this Agreement as it may from time to
time be amended or supplemented.
17.4. Notes held by Company, etc.
Solely for the purpose of determining whether the
holders of the requisite percentage of the aggregate principal
amount of Notes then outstanding approved or consented to any
amendment, waiver or consent to be given under this Agreement or
the Notes, or have directed the taking of any action provided
herein or in the Notes to be taken upon the direction of the
holders of a specified percentage of the aggregate principal
amount of Notes then outstanding, Notes directly or indirectly
owned by the Company or any of its Affiliates shall be deemed not
to be outstanding.
18. NOTICES.
All notices and communications provided for hereunder
shall be in writing and sent (a) by telecopy if the sender on the
same day sends a confirming copy of such notice by a recognized
overnight deliveryservice (charges prepaid), or (b) by registered
or certified mail with return receipt requested (postage prepaid),
or (c) by a recognized overnight delivery service (with charges
prepaid). Any such notice must be sent:
(i) if to any Purchaser or its nominee, to such
Purchaser or nominee at the address specified for such
communications in Schedule A, or at such other address as
such Purchaser or nominee shall have specified to the
Company in writing,
(ii) if to any other holder of any Note, to such holder
at such address as such other holder shall have specified to
the Company in writing, or
(iii) if to the Company, to the Company at its address
set forth at the beginning hereof to the attention of
Treasurer, or at such other address as the Company shall
have specified to the holder of each Note in writing.
Notices under this Section 18 will be deemed given only when
actually received.
19. REPRODUCTION OF DOCUMENTS.
This Agreement and all documents relating thereto,
including, without limitation, (a) consents, waivers and
modifications that may hereafter be executed, (b) documents
received by any Purchaser at the Closing (except the Notes
themselves), and (c) financial statements, certificates and other
information previously or hereafter furnished to any Purchaser,
may be reproduced by such Purchaser by any photographic,
photostatic, microfilm, microcard, miniature photographic or
other similar process and such Purchaser may destroy any original
document so reproduced. The Company agrees and stipulates that,
to the extent permitted by applicable law, any such reproduction
shall be admissible in evidence as the original itself in any
judicial or administrative proceeding (whether or not the
original is in existence and whether or not such reproduction was
made by such Purchaser in the regular course of business) and any
enlargement, facsimile or further reproduction of such reproduction
shall likewise be admissible in evidence.
<PAGE>
This Section 19 shall not prohibit the Company or any other holder
of Notes from contesting any such reproduction to the same extent
that it could contest the original, or from introducing evidence
to demonstrate the inaccuracy of any such reproduction.
20. CONFIDENTIAL INFORMATION.
For the purposes of this Section 20, "Confidential
Information" means information delivered to any Purchaser by or
on behalf of the Company or any Subsidiary in connection with the
transactions contemplated by or otherwise pursuant to this
Agreement that is proprietary in nature and that was clearly
marked or labeled or otherwise adequately identified when
received by such Purchaser as being confidential information of
the Company or such Subsidiary, provided that such term does not
include information that (a) was publicly known or otherwise
known to such Purchaser prior to the time of such disclosure,
(b) subsequently becomes publicly known through no act or
omission by such Purchaser or any person acting on such
Purchaser's behalf, (c) otherwise becomes known to such Purchaser
other than through disclosure by the Company or any Subsidiary or
(d) constitutes financial statements delivered to such Purchaser
under Section 7.1 that are otherwise publicly available. Each
Purchaser will maintain the confidentiality of such Confidential
Information in accordance with procedures adopted by such
Purchaser in good faith to protect confidential information of
third parties delivered to such Purchaser, provided that such
Purchaser may deliver or disclose Confidential Information to
(i) such Purchaser's directors, officers, employees, agents,
attorneys and affiliates (to the extent such disclosure
reasonably relates to the administration of the investment
represented by such Purchaser's Notes), (ii) such Purchaser's
financial advisors and other professional advisors who agree to
hold confidential the Confidential Information substantially in
accordance with the terms of this Section 20, (iii) any other
holder of any Note, (iv) any Institutional Investor to which such
Purchaser sells or offers to sell such Note or any part thereof
or any participation therein (if such Person has agreed in
writing prior to its receipt of such Confidential Information to
be bound by the provisions of this Section 20), (v) any Person
from which such Purchaser offers to purchase any security of the
Company (if such Person has agreed in writing prior to its
receipt of such Confidential Information to be bound by the
provisions of this Section 20), (vi) any federal or state
regulatory authority having jurisdiction over such Purchaser,
(vii) the National Association of Insurance Commissioners or any
similar organization, or any nationally recognized rating agency
that requires access to information about such Purchaser's
investment portfolio or (viii) any other Person to which such
delivery or disclosure may be necessary or appropriate (w) to
effect compliance with any law, rule, regulation or order
applicable to such Purchaser, (x) in response to any subpoena or
other legal process, (y) in connection with any litigation to
which such Purchaser is a party or (z) if an Event of Default has
occurred and is continuing, to the extent such Purchaser may
reasonably determine such delivery and disclosure to be necessary
or appropriate in the enforcement or for the protection of the
rights and remedies under such Purchaser's Notes or this
Agreement; provided, that such Purchaser shall, unless prohibited
from doing so by applicable law or court order, use reasonable
efforts to notify the Company of any disclosure pursuant to the
foregoing clause (w), (x) or (y) as far in advance as reasonably
practicable under the circumstances to enable the Company to seek
an appropriate protective order. Each holder of a Note, by its
acceptance of a Note, will be deemed to have agreed to be bound
by and to be entitled to the benefits of this Section 20 as though
it were a party to this Agreement. On reasonable request by the
Company in connection with the delivery to any holder of a Note of
information required to be...
<PAGE>
... delivered to such holder under this Agreement or requested by
such holder (other than a holder that is a party to this Agreement
or its nominee), such holder will enter into an agreement with the
Company embodying the provisions of this Section 20.
21. SUBSTITUTION OF PURCHASER.
Each Purchaser shall have the right to substitute any
one of such Purchaser's Affiliates as the purchaser of the Notes
that such Purchaser has agreed to purchase hereunder, by written
notice to the Company, which notice shall be signed by both such
Purchaser and such Affiliate, shall contain such Affiliate's
agreement to be bound by this Agreement and shall contain a
confirmation by such Affiliate of the accuracy with respect to it
of the representations set forth in Section 6. Upon receipt of
such notice, any reference to such Purchaser in this Agreement
(other than in this Section 21) shall be deemed to refer to such
Affiliate in lieu of such original Purchaser. In the event that
such Affiliate is so substituted as a purchaser hereunder and
such Affiliate thereafter transfers to such original Purchaser
all of the Notes then held by such Affiliate, upon receipt by the
Company of notice of such transfer, any reference to such
Affiliate as a "Purchaser" in this Agreement (other than in this
Section 21) shall no longer be deemed to refer to such Affiliate,
but shall refer to such original Purchaser, and such original
Purchaser shall again have all the rights of an original holder
of the Notes under this Agreement.
22. MISCELLANEOUS.
22.1. Successors and Assigns.
All covenants and other agreements contained in this
Agreement by or on behalf of any of the parties hereto bind and
inure to the benefit of their respective successors and assigns
(including, without limitation, any subsequent holder of a Note)
whether so expressed or not.
22.2. Payments Due on Non-Business Days.
Anything in this Agreement or the Notes to the contrary
notwithstanding, any payment of principal of or Make-whole Amount
or interest on any Note that is due on a date other than a Business
Day shall be made on the next succeeding Business Day without
including the additional days elapsed in the computation of the
interest payable on such next succeeding Business Day.
22.3. Severability.
Any provision of this Agreement that is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions
hereof, and any such prohibition or unenforceability in any
jurisdiction shall (to the full extent permitted by law) not
invalidate or render unenforceable such provision in any other
jurisdiction.
22.4. Construction.
<PAGE>
Each covenant contained herein shall be construed
(absent express provision to the contrary) as being independent
of each other covenant contained herein, so that compliance with
any one covenant shall not (absent such an express contrary
provision) be deemed to excuse compliance with any other covenant.
Where any provision herein refers to action to be taken by any
Person, or which such Person is prohibited from taking, such
provision shall be applicable whether such action is taken
directly or indirectly by such Person.
22.5. Counterparts.
This Agreement may be executed in any number of
counterparts, each of which shall be an original but all of
which together shall constitute one instrument. Each counterpart
may consist of a number of copies hereof, each signed by less
than all, but together signed by all, of the parties hereto.
22.6. Governing Law.
This Agreement shall be construed and enforced in
accordance with, and the rights of the parties shall be governed
by, the law of the State of New York excluding choice-of-law
principles of the law of such State that would require the
application of the laws of a jurisdiction other than such State.
* * * * *
<PAGE>
If you are in agreement with the foregoing, please sign
the form of agreement on the accompanying counterpart of this
Agreement and return it to the Company, whereupon the foregoing
shall become a binding agreement between you and the Company.
Very truly yours,
DPL INC.
By____________________________
Title:
The foregoing is hereby agreed
to as of the date thereof.
PRINCIPAL LIFE INSURANCE COMPANY
By: Principal Capital Management, LLC
a Delaware limited liability company,
its authorized signatory
By: ____________________________
Its: ____________________________
By: ____________________________
Its: ____________________________
PRINCIPAL LIFE INSURANCE COMPANY,
ON BEHALF OF ONE OR MORE SEPARATE ACCOUNTS
By: Principal Capital Management, LLC
a Delaware limited liability company,
its authorized signatory
By: ____________________________
Its: ____________________________
By: ____________________________
Its: ____________________________
<PAGE>
NIPPON LIFE INSURANCE COMPANY OF
AMERICA, an Iowa corporation
By: Principal Life Insurance Company,
an Iowa corporation,
its attorney in fact
By: ____________________________
Its: ____________________________
By: ____________________________
Its: ____________________________
THE LINCOLN NATIONAL LIFE INSURANCE COMPANY
By: Lincoln Investment Management, Inc.,
Its Attorney-In-Fact
By_______________________________
Title:
LINCOLN LIFE & ANNUITY COMPANY OF NEW YORK
By: Lincoln Investment Management, Inc.,
Its Attorney-In-Fact
By_______________________________
Title:
LINCOLN NATIONAL REINSURANCE COMPANY LIMITED
By: Lincoln Investment Management, Inc.,
Its Attorney-In-Fact
By_______________________________
Title:
LINCOLN NATIONAL HEALTH & CASUALTY INSURANCE COMPANY
By: Lincoln Investment Management, Inc.,
Its Attorney-In-Fact
By_______________________________
Title:
<PAGE>
FIRST PENN-PACIFIC LIFE INSURANCE COMPANY
By: Lincoln Investment Management, Inc.,
Its Attorney-In-Fact
By_______________________________
Title:
TEACHERS INSURANCE AND ANNUITY ASSOCIATION
OF AMERICA
By_______________________________
Title:
EQUITABLE LIFE INSURANCE COMPANY OF IOWA
By: ING Investment Management LLC, as Agent
By_______________________________
Title:
USG ANNUITY & LIFE COMPANY
By: ING Investment Management LLC, as Agent
By_______________________________
Title:
GOLDEN AMERICAN LIFE INSURANCE COMPANY
By: ING Investment Management LLC, as Agent
By_______________________________
Title:
MIDWESTERN UNITED LIFE INSURANCE COMPANY By:
ING Investment Management LLC, as Agent
By_______________________________
Title:
<PAGE>
SECURITY LIFE OF DENVER INSURANCE COMPANY
By: ING Investment Management LLC, as Agent
By_______________________________
Title:
SOUTHLAND LIFE INSURANCE COMPANY
By: ING Investment Management LLC, as Agent
By_______________________________
Title:
SUN LIFE ASSURANCE COMPANY OF CANADA
By_______________________________
Title:
By_______________________________
Title:
SUN LIFE ASSURANCE COMPANY OF CANADA (U.S.)
By_______________________________
Title:
By_______________________________
Title:
SUN LIFE INSURANCE AND ANNUITY COMPANY OF NEW YORK
By_______________________________
Title:
CONNECTICUT GENERAL LIFE INSURANCE COMPANY
By: CIGNA Investments, Inc. (authorized agent)
By_______________________________
Name:
Title:
<PAGE>
SECURITY FIRST LIFE INSURANCE COMPANY
By_______________________________
Title:
METROPOLITAN LIFE INSURANCE COMPANY
By_______________________________
Title:
ALLSTATE LIFE INSURANCE COMPANY
By_______________________________
Name:
By_______________________________
Name:
Authorized Signatories
THE NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY
By_______________________________
Name:
<PAGE>
THE TRAVELERS INSURANCE COMPANY
By_______________________________
Name:
FIRST TRENTON INDEMNITY COMPANY
By_______________________________
Name:
PRIMERICA LIFE INSURANCE COMPANY
By_______________________________
Name:
PREMIER INSURANCE COMPANY OF MASSACHUSETTS
By_______________________________
Name:
THE TRAVELERS LIFE AND ANNUITY COMPANY
By_______________________________
Name:
FIRST FLORIDIAN AUTO & HOME
INSURANCE COMPANY
By_______________________________
Name:
NATIONAL BENEFIT LIFE INSURANCE COMPANY
By_______________________________
Name:
<PAGE>
NEW YORK LIFE INSURANCE COMPANY
By_______________________________
Name:
NEW YORK LIFE INSURANCE AND
ANNUITY CORPORATION
By: New York Life Insurance Company
By_______________________________
Name:
NEW YORK LIFE INSURANCE AND
ANNUITY CORPORATION INSTITUTIONALLY OWNED
LIFE INSURANCE SEPARATE ACCOUNT
By: New York Life Insurance Company
By_______________________________
Name:
<PAGE>
SCHEDULE A
INFORMATION RELATING TO PURCHASERS
Principal Amount of
Name of Purchaser Notes to be Purchased
- ----------------- ---------------------
MIDWESTERN UNITED LIFE
INSURANCE COMPANY $2,000,000
(1) All payments by wire
transfer of immediately
available funds:
c/o The Bank of New York
ABA #021000018
BNF: IOC566
Attn: P&I Department
Ref: Midwestern United Life
Insurance Company and
PPN (233293 A* 0)
Setting forth the name of the
Corporation, the full title
(including the Coupon rate,
issuance date, and final
maturity date) of the Notes
on account of which such
payment is made, a reference
to the PPN, and the due date
and application (as among
principal, premium and
interest) of the payment
being made.
(2) All notices of payments and
written confirmations of such
wire transfers:
ING Investment Management LLC
5780 Powers Ferry Road, NW,
Suite 300
Atlanta, GA 30327-4349 Attn:
Securities Accounting Fax:
(770) 690-4899
(3) All other communications:
ING Investment Management LLC
5780 Powers Ferry Road, NW, Suite 300
Atlanta, GA 30327-4349
Attn: Private Placements Fax:
(770) 690-4899
Tax ID No.: 35-0838945
<PAGE>
SCHEDULE A
Principal Amount of
Name of Purchaser Notes to be Purchased
- ----------------- ---------------------
SECURITY LIFE OF DENVER
INSURANCE COMPANY $10,000,000
(1) All payments on account of
the Notes shall be by wire
transfer of immediately
available funds for credit to:
c/o The Bank of New York
ABA #021000018
BNF: IOC566
Attn: P&I Department
Ref: Security Life of Denver
Insurance Company and
PPN (233293 A* 0)
Each such wire transfer shall
set forth the name of the
Corporation, the full title
(including the Coupon rate,
issuance date, and final
maturity date) of the Notes
on account of which such
payment is made, a reference
to the PPN, and the due date
and application (as among
principal, premium and
interest) of the payment
being made.
(2) All notices of payments and
written confirmations of such
wire transfers:
ING Investment Management LLC
5780 Powers Ferry Road, NW
Suite 300
Atlanta, Georgia 30327-4349
Attention: Securities Accounting
Fax: (770) 690-4899
<PAGE>
SCHEDULE A
(3) All other communications:
ING Investment Management LLC
5780 Powers Ferry Road, NW
Suite 300
Atlanta, Georgia 30327-4349
Attention: Private Placements
Fax: (770) 690-4899
Tax ID No.: 84-0499703
<PAGE>
SCHEDULE A
Principal Amount of
Name of Purchaser Notes to be Purchased
- ---------------- ---------------------
USG ANNUITY & LIFE COMPANY $5,000,000
(1) All payments on account of
the Notes shall be by wire
transfer of immediately
available funds for credit to:
Cash Fed Wire Instructions
Bank of New York
ABA No.: 021000018
BNF: IOC566 - Income Collections
Attn: William Cashman Re: USG
Annuity & Life Company - Account #368520
Reference: PPN (233293 A* 0)
Each such wire transfer shall
set forth the name of the
Corporation, the full title
(including the Coupon rate,
issuance date, and final
maturity date) of the Notes
on account of which such
payment is made, a reference
to the PPN, and the due date
and application (as among
principal, premium and
interest) of the payment
being made.
(2) All notices of payments and
written confirmations of such
wire transfers:
ING Investment Management LLC
5780 Powers Ferry Road, NW
Suite 300
Atlanta, Georgia 30327-4349
Attention: Securities Accounting
Fax: (770) 690-4899
<PAGE>
SCHEDULE A
(3) All other communications:
ING Investment Management LLC
5780 Powers Ferry Road, NW
Suite 300
Atlanta, Georgia 30327-4349
Attention: Private Placements
Fax: (770) 690-4899
Tax ID No.: 73-0663836
<PAGE>
SCHEDULE A
Principal Amount of
Name of Purchaser Notes to be Purchased
- ----------------- ---------------------
EQUITABLE LIFE INSURANCE
COMPANY OF IOWA $3,500,000
(1) All payments on account of
the Notes shall be by wire
transfer of immediately
available funds for credit to:
Cash Fed Wire Instructions
Bank of New York
ABA No.: 021000018
BNF: IOC566 - Income Collections
Attn: William Cashman
Re: Equitable Life Insurance
Company of Iowa - Account #068071
Reference: PPN (233293 A* 0)
Each such wire transfer shall
set forth the name of the
Corporation, the full title
(including the Coupon rate,
issuance date, and final
maturity date) of the Notes
on account of which such
payment is made, a reference
to the PPN, and the due date
and application (as among
principal, premium and
interest) of the payment
being made.
(2) All notices of payments and
written confirmations of such
wire transfers:
ING Investment Management LLC
5780 Powers Ferry Road, NW
Suite 300
Atlanta, Georgia 30327-4349
Attention: Securities Accounting
Fax: (770) 690-4899
<PAGE>
SCHEDULE A
(3) All other communications:
ING Investment Management LLC
5780 Powers Ferry Road, NW
Suite 300
Atlanta, Georgia 30327-4349
Attention: Private Placements
Fax: (770) 690-4899
Tax ID No.: 42-0236150
<PAGE>
SCHEDULE A
Principal Amount of
Name of Purchaser Notes to be Purchased
- ----------------- ---------------------
GOLDEN AMERICAN LIFE INSURANCE
COMPANY $5,000,000
(1) All payments on account of
the Notes shall be by wire
transfer of immediately
available funds for credit to:
Cash Fed Wire Instructions
Bank of New York
ABA No.: 021000018
BNF: IOC566 - Income Collections
Attn: William Cashman Re:
Golden American Life insurance
Company (MVA Acct.) - Account #136374
Reference: PPN (233293 A* 0)
Each such wire transfer shall
set forth the name of the
Corporation, the full title
(including the Coupon rate,
issuance date, and final
maturity date) of the Notes
on account of which such
payment is made, a reference
to the PPN, and the due date
and application (as among
principal, premium and
interest) of the payment
being made.
(2) All notices of payments and
written confirmations of such
wire transfers:
ING Investment Management LLC
5780 Powers Ferry Road, NW
Suite 300
Atlanta, Georgia 30327-4349
Attention: Securities Accounting
Fax: (770) 690-4899
(3) All other communications:
ING Investment Management LLC
5780 Powers Ferry Road, NW
Suite 300
Atlanta, Georgia 30327-4349
Attention: Private Placements
Fax: (770) 690-4899
Tax ID No.: 41-0991508
<PAGE>
SCHEDULE A
Principal Amount of
Name of Purchaser Notes to be Purchased
- ----------------- ---------------------
SOUTHLAND LIFE INSURANCE
COMPANY $2,000,000
(1) All payments on account of
the Notes shall be by wire
transfer of immediately
available funds for credit to:
c/o Bank of New York
ABA No.: 021000018
BNF: IOC566
Attn: P&I Department
Re: Southland Life Insurance
Company and PPN (233293 A* 0)
Each such wire transfer shall
set forth the name of the
Corporation, the full title
(including the Coupon rate,
issuance date, and final
maturity date) of the Notes
on account of which such
payment is made, a reference
to the PPN, and the due date
and application (as among
principal, premium and
interest) of the payment
being made.
(2) All notices of payments and
written confirmations of such
wire transfers:
ING Investment Management LLC
5780 Powers Ferry Road, NW
Suite 300
Atlanta, Georgia 30327-4349
Attention: Securities Accounting
Fax: (770) 690-4899
<PAGE>
SCHEDULE A
(3) All other communications:
ING Investment Management LLC
5780 Powers Ferry Road, NW
Suite 300
Atlanta, Georgia 30327-4349
Attention: Private Placements
Fax: (770) 690-4899
Tax ID No.: 75-0572420
<PAGE>
SCHEDULE A
Principal Amount of
Name of Purchaser Notes to be Purchased
- ----------------- ---------------------
SUN LIFE ASSURANCE COMPANY $10,000,000
OF CANADA $3,000,000
$1,000,000
$500,000
(1) All payments on account of
the Notes shall be by wire
transfer of immediately
available funds for credit to:
Bank of New York City/CTR/BBK
ABA No.: 021000018
IOC 566
Re: Sun Life of Canada #350471
Each such wire transfer shall
set forth the PPN (233293 A* 0)
and the source and the
principal and interest
application of the funds.
(2) All notices of payments and
written confirmations of such
wire transfers and audit
confirmations:
Sun Life Assurance Company of Canada
Three Sun Life Executive Park
Wellesley Hills, MA 02481
Attention: Manager, Securities
Accounting, SC 3327
(3) All other communications,
including notices of optional
prepayments:
Sun Life Assurance Company of Canada
One Sun Life Executive Park
Wellesley Hills, MA 02481
Attention: Investment Department
/Private Placements, SC 1303
Tax ID No.: 38-1082080
<PAGE>
SCHEDULE A
Principal Amount of
Name of Purchaser Notes to be Purchased
- ----------------- ---------------------
SUN LIFE ASSURANCE COMPANY $1,000,000
OF CANADA (U.S.) $2,000,000
(1) All payments on account of
the Notes shall be by wire
transfer of immediately
available funds for credit to:
Chase Manhattan Bank
ABA No.: 021000021 DDA No.
544-755102 Account No. 1960
Re: Sun Life (U.S.) G 52682
Each such wire transfer shall
set forth the PPN (233293 A* 0)
and the source and the
principal and interest
application of the funds.
(2) All notices of payments and
written confirmations of such
wire transfers and audit
confirmations:
Sun Life Assurance Company of
Canada (U.S.)
Three Sun Life Executive Park
Wellesley Hills, MA 02481
Attention: Manager, Securities
Accounting, SC 3327
(3) All other communications,
including notices of optional
prepayments:
Sun Life Assurance Company of
Canada (U.S.)
One Sun Life Executive Park
Wellesley Hills, MA 02481
Attention: Investment Department
/Private Placements, SC 1303
Tax ID No.: 04-2461439
<PAGE>
SCHEDULE A
Principal Amount of
Name of Purchaser Notes to be Purchased
- ----------------- ---------------------
SUN LIFE ASSURANCE COMPANY $1,500,000
OF CANADA (U.S.)
(1) All payments on account of
the Notes shall be by wire
transfer of immediately
available funds for credit to:
Chase Manhattan Bank
ABA No.: 021000021 DDA No.
544-755102 Account No. 1960
Re: Sun Life (U.S.) Regatta
G 52681
Each such wire transfer shall set
forth the PPN (233293 A* 0) and
the source and the principal and
interest application of the funds.
(2) All notices of payments and
written confirmations of
such wire transfers and
audit confirmations:
Sun Life Assurance Company
of Canada (U.S.)
Three Sun Life Executive Park
Wellesley Hills, MA 02481
Attention: Manager, Securities
Accounting, SC 3327
(3) All other communications,
including notices of
optional prepayments:
Sun Life Assurance Company
of Canada (U.S.)
One Sun Life Executive Park
Wellesley Hills, MA 02481
Attention: Investment Department
/Private Placements, SC 1303
Tax ID No.: 04-2461439
<PAGE>
SCHEDULE A
Principal Amount of
Name of Purchaser Notes to be Purchased
- ----------------- ---------------------
SUN LIFE INSURANCE AND ANNUITY $1,000,000
COMPANY OF NEW YORK
(1) All payments on account of
the Notes shall be by wire
transfer of immediately
available funds for credit to:
Chase Manhattan Bank
ABA No.: 021000021 DDA No.
544-755102 Account no. 1960
Re: Sun Life (NY) Regatta
G 51933
Each such wire transfer shall
set forth the PPN (233293 A* 0)
and the source and the principal
and interest application of the
funds.
(2) All notices of payments and
written confirmations of such
wire transfers and audit
confirmations:
Sun Life Insurance and
Annuity Company of New York
Three Sun Life Executive Park
Wellesley Hills, MA 02481
Attention: Manager, Securities
Accounting, SC 3327
(3) All other communications,
including notices of optional
prepayments:
Sun Life Insurance and Annuity Company of New York One Sun
Life Executive Park Wellesley Hills, MA 02481 Attention:
Investment Department / Private Placements, SC 1303
Tax ID No.: 04-2845273
<PAGE>
SCHEDULE A
Principal Amount of
Name of Purchaser Notes to be Purchased
- ----------------- ---------------------
CONNECTICUT GENERAL LIFE $17,200,000
INSURANCE COMPANY $6,900,000
$3,400,000
(Notes to be registered in the name of "CIG & CO.")
(1) Payments by wire transfer
of immediately available
funds to:
The Chase Manhattan Bank
Chase NYC/CTR/
BNF = CIGNA Private Placements
A/C #9009001802
ABA #021000021
OBI=[name of company;
description of security; interest
rate, maturity date; PPN; due
date and application (as among
principal, premium and interest
of the payment being made);
contact name and phone]
(2) Address for all notices in
respect of payment and
written confirmation of
such wire transfer:
CIG & Co.
c/o CIGNA Investments, Inc.
Attn: Securities Processing S-309
900 Cottage Grove Road
Hartford, CT 06152-2309
CIG & Co.
c/o CIGNA Investments, Inc.
Attn: Private Securities S-307
Operations Group
900 Cottage Grove Road
<PAGE>
SCHEDULE A
Hartford, CT 06152-2307
Facsimile: 860-726-7203
with a copy to:
The Chase Manhattan Bank
Private Placement Servicing
P.O. Box 1508
Bowling Green Station
New York, New York 10081
Attn: CIGNA Private Placements
Facsimile: 212-552-3107/1005
(3) Address for all other communications
and notices:
CIG & Co.
c/o CIGNA Investments, Inc.
Attn: Private Securities Division
S-307 900 Cottage Grove Road
Hartford, CT 06152-2307
Facsimile: (860) 726-7203
Tax ID No.: 13-3574027
<PAGE>
SCHEDULE A
Principal Amount of
Name of Purchaser Notes to be Purchased
- ----------------- ---------------------
SECURITY FIRST LIFE INSURANCE COMPANY $6,000,000
(1) All payments on account of
the Notes shall be by wire
transfer of immediately
available funds to:
The Bank of New York ABA
No.: 021000018
BNF: IOC 566
F/C Security First Life
Insurance Company
Account No. 328175
With reference to PPN
(233293 A* 0)
With sufficient information
to identify the source and
application of such funds
(2) All notices and other
communications:
Security First Life Insurance Company
C/o Metropolitan Life Insurance Company
Private Placements Unit
334 Madison Avenue
Convent Station, NJ 07961-0633
Fax: (973) 254-3050
With a copy to: Metropolitan Life Insurance Company
One Madison Avenue
New York, NY 10010-3690
Attn: George M. Bryant (Area 6-H)
Fax: (212) 578-3916
Tax ID No.: 54-0696644
<PAGE>
SCHEDULE A
Principal Amount of
Name of Purchaser Notes to be Purchased
- ----------------- ---------------------
METROPOLITAN LIFE INSURANCE COMPANY $44,000,000
(1) All payments on account of
the Notes shall be by wire
transfer of immediately
available funds to:
The Chase Manhattan Bank
ABA No.: 021000021
New York, New York
Metropolitan Life Insurance
Company,
Account No. 002-2-410591
With sufficient information
to identify the source and
application of such funds
(2) All notices and other
communications:
Metropolitan Life Insurance Company
Private Placements Unit
334 Madison Avenue
Convent Station, NJ 079610633
Fax: (973) 254-3050
With a copy to: Metropolitan
Life Insurance Company
One Madison Avenue
New York, NY 10010-3690
Attn: George M. Bryant (Area 6-H)
Fax: (212) 578-3916
Tax ID No.: 13-5581829
<PAGE>
SCHEDULE A
Principal Amount of
Name of Purchaser Notes to be Purchased
- ----------------- ---------------------
THE NORTHWESTERN MUTUAL LIFE INSURANCE
COMPANY $70,000,000
(1) All payments by wire transfer of
immediately available funds to:
Bankers Trust Company
16 Wall Street
Insurance Unit - 4th Floor
New York, NY 10005
ABA #021001033
for account of:
The Northwestern Mutual Life
Insurance Company,
Account No. 00-000-027
with sufficient information to
identify the source of the transfer,
amount of interest, principal or
premium and the PPN (233293 A* 0).
(2) Address for notices of payments and
written confirmations of wire
transfers:
The Northwestern Mutual Life Insurance Company
720 East Wisconsin Avenue
Milwaukee, WI 53202
Attn: Investment Operations Facsimile:
414-299-5714
(3) Address for all other communications:
The Northwestern Mutual Life Insurance Company
720 East Wisconsin Avenue
Milwaukee, WI 53202
Attn: Timothy A. Otto
Tax ID No.: 39-0509570
<PAGE>
SCHEDULE A
Principal Amount of
Name of Purchaser Notes to be Purchased
- ----------------- ---------------------
ALLSTATE LIFE INSURANCE COMPANY $15,000,000
$10,000,000
$8,000,000
$2,000,000
(1) All payments by wire transfer
of immediately available
funds to:
BBK = Harris Trust and Savings Bank
ABA No.: 071000288
BNF = Allstate Life Insurance Company
Collection Account No.: 168-117-0
ORG = DPL Inc.
OBI = DPP - 233293 A* 0
Payment Due Date (MM/DD/YY) -
P __________ (Enter "P" and amount
of principal being remitted, for
example, P5000000.00). -
I __________ (Enter "I" and amount
of interest being remitted, for
example, I225000.00).
(2) All notices of scheduled payments and
written confirmations of such wire transfer
to be sent to:
Allstate Insurance Company
Investment Operations - Private Placements
3075 Sanders Road, STE G4A
Northbrook, IL 60062-7127 Telephone:
(847) 402-2769 Telecopy: (847) 326-5040
(3) All financial reports, compliance certificates
and all other written communications, including
notice of prepayments, to be sent to :
Allstate Life Insurance Company
Private Placements Departments
3075 Sanders Road, STE G3A
Northbrook, Illinois 60062-7127
Telephone: (847) 402-4394
Telecopy: (847) 402-3092
Tax ID. No.: 36-2554642
<PAGE>
SCHEDULE A
Principal Amount of
Name of Purchaser Notes to be Purchased
- ----------------- ---------------------
PRINCIPAL LIFE INSURANCE COMPANY $12,600,000
(1) All payments on account of
the Notes shall be by Federal
Funds Wire Transfer to:
Norwest Bank Iowa, N.A.
7th & Walnut Streets Des
Moines, IA 50309 ABA No.:
073000228
OBI PFGSE (S) B0062114( ) For
credit to Principal Life
Insurance Company
Account No. 0000014752
Setting forth:
Name of Company: DPL, Inc.
Description of Security:
6.32% Senior Notes due 2004
PPN 233293 A* 0
Bond number 1-B-62114
Due Date and Application (as
among principal, premium and
interest) of the payment
being made.
(2) All notices related to
payments:
Principal Capital Management, LLC
801 Grand Avenue
Des Moines, IA 50392-0960
Attn: Investment Accounting - Securities
Fax: (515) 248-2643
Tel: (515) 247-0689
(3) All other notices:
Principal Capital
Management, LLC
801 Grand Avenue
Des Moines, IA 50392-0800
Attn: Investment Department - Securities
Fax: (515) 248-2490
Tel: (515) 247-3495
Tax ID No.: 42-0127290
<PAGE>
SCHEDULE A
Principal Amount of
Name of Purchaser Notes to be Purchased
- ----------------- ---------------------
PRINCIPAL LIFE INSURANCE COMPANY $2,600,000
ON BEHALF OF ONE OR MORE SEPARATE ACCOUNTS
(1) All payments on account of
the Notes shall be by Federal
Funds Wire Transfer to:
Norwest Bank Iowa, N.A.
7th & Walnut Streets Des
Moines, IA 50309 ABA No.:
073000228
OBI PFGSE (S) B0062114( ) For
credit to Principal Life
Insurance Company
Separate Account No. 0000032395
Setting forth:
Name of Company: DPL, Inc.
Description of Security:
6.32% Senior Notes due 2004
PPN 233293 A* 0
Bond number 16-B-62114
Due Date and Application (as
among principal, premium and
interest) of the payment
being made.
(2) All notices related to
payments:
Principal Capital Management, LLC
801 Grand Avenue
Des Moines, IA 50392-0960
Attn: Investment Accounting -
Securities
Fax: (515) 248-2643
Tel: (515) 247-0689
(3) All other notices:
Principal Capital
Management, LLC
801 Grand Avenue
Des Moines, IA 50392-0800
Attn: Investment Department
- Securities
Fax: (515) 248-2490
Tel: (515) 247-3495
Tax ID No.: 42-0127290
<PAGE>
SCHEDULE A
Principal Amount of
Name of Purchaser Notes to be Purchased
- ----------------- ---------------------
PRINCIPAL LIFE INSURANCE COMPANY $3,800,000
ON BEHALF OF ONE OR MORE SEPARATE ACCOUNTS
(1) All payments on account of
the Notes shall be by Federal
Funds Wire Transfer to:
Citibank New York
ABA #021000089
Credit to Account No.: 36858201
For further credit to
Principal Life- Dupont
Separate Account No. 847958
OBI PFGSE (S) B0062114( )
Setting forth:
Name of Company: DPL, Inc.
Description of Security:
6.32% Senior Notes due 2004
PPN 233293 A* 0
Bond number 800-B-62114
Due Date and Application (as
among principal, premium and
interest) of the payment
being made.
(2) All notices related to
payments:
Principal Capital Management, LLC
801 Grand Avenue
Des Moines, IA 50392-0960
Attn: Investment Accounting - Securities
Fax: (515) 248-2643
Tel: (515) 247-0689
(3) All other notices:
Principal Capital
Management, LLC
801 Grand Avenue
Des Moines, IA 50392-0800
Attn: Investment Department - Securities
Fax: (515) 248-2490
Tel: (515) 247-3495
Tax ID No.: 42-0127290
<PAGE>
SCHEDULE A
Principal Amount of
Name of Purchaser Notes to be Purchased
- ----------------- ---------------------
NIPPON LIFE INSURANCE COMPANY $1,000,000
OF AMERICA
(1) All payments on account of
the Notes shall be by
Federal Funds Wire Transfer to:
Norwest Bank Iowa, N.A.
7th & Walnut Streets Des
Moines, IA 50309 ABA No.:
073000228
OBI PFGSE (S) B0062114( ) For
credit to Nippon Life Insurance Company
Account No. 0007051775
Setting forth:
Name of Company: DPL, Inc.
Description of Security:
6.32% Senior Notes due 2004
PPN 233293 A* 0
Bond number 500-B-62114
Due Date and Application (as
among principal, premium and
interest) of the payment being made.
(2) All notices related to payments:
Nippon Life Insurance Company of America
C/o Principal Capital Management, LLC
801 Grand Avenue
Des Moines, IA 50392-0960
Attn: Investment Accounting - Securities
Fax: (515) 248-2643
Tel: (515) 247-0689
(3) All other notices:
Nippon Life Insurance Company of America C/o
Principal Capital Management, LLC
801 Grand Avenue
Des Moines, IA 50392-0800
Attn: Investment Department - Securities
Fax: (515) 248-2490
Tel: (515) 247-3495
Tax ID No.: 04-2509896
<PAGE>
SCHEDULE A
Principal Amount of
Name of Purchaser Notes to be Purchased
- ----------------- ---------------------
THE LINCOLN NATIONAL LIFE INSURANCE $3,000,000
COMPANY
(1) All payments on account of the Notes
shall be made by wire transfer of
immediately available funds to Bankers
Trust Company, ABA #021001033, New
York, NY, Attention: Private Placement
Processing, Account No. 99-911-145, for
further credit to The Lincoln National
Life Insurance Company (IDP), Custody
Account No. 98131, with sufficient
information to identify the source and
application of such funds, including
the PPN (233293 A* 0) of the issue.
(2) Address for all notices of payment:
Bankers Trust Company
Attn: Private Placement Unit
PO Box 998; Bowling Green Station
New York, NY 10274
Fax: (615) 835-2493, Crystal Jones,
Private Placements
And
Lincoln Investment Management, Inc.
200 East Berry Street, Renaissance Square
Fort Wayne, IN 46802
Attention: Investments/Private Placements
Fax: (219) 455-5499, Private Placements
(3) Address for all communications:
Lincoln Investment Management, Inc.
200 East Berry Street, Renaissance Square
Fort Wayne, IN 46802
Attention: Investments/Private Placements
Fax: (219) 455-5499, Private Placements
Tax ID #35-0472300
<PAGE>
SCHEDULE A
Principal Amount of
Name of Purchaser Notes to be Purchased
- ----------------- ---------------------
THE LINCOLN NATIONAL LIFE INSURANCE $5,000,000
COMPANY
(1) All payments on account of the Notes
shall be made by wire transfer of
immediately available funds to Bankers
Trust Company, ABA #021001033, New
York, NY, Attention: Private Placement
Processing, Account No. 99-911-145, for
further credit to The Lincoln National
Life Insurance Company (ILG), Custody
Account No. 98184, with sufficient
information to identify the source and
application of such funds, including
the PPN (233293 A* 0) of the issue.
(2) Address for all notices of payment:
Bankers Trust Company
Attn: Private Placement Unit
PO Box 998; Bowling Green Station
New York, NY 10274
Fax: (615) 835-2493, Crystal Jones,
Private Placements
And
Lincoln Investment Management, Inc. 200
East Berry Street, Renaissance Square
Fort Wayne, IN 46802
Attention: Investments/Private Placements
Fax: (219) 455-5499, Private Placements
(3) Address for all communications:
Lincoln Investment Management, Inc.
200 East Berry Street, Renaissance Square
Fort Wayne, IN 46802
Attention: Investments/Private Placements
Fax: (219) 455-5499, Private Placements
Tax ID #35-0472300
<PAGE>
SCHEDULE A
Principal Amount of
Name of Purchaser Notes to be Purchased
- ----------------- ---------------------
THE LINCOLN NATIONAL LIFE INSURANCE $15,000,000
COMPANY
(1) All payments on account of the Notes
shall be made by wire transfer of
immediately available funds to Bankers
Trust Company, ABA #021001033, New
York, NY, Attention: Private Placement
Processing, Account No. 99-911-145, for
further credit to The Lincoln National
Life Insurance Company (IAL), Custody
Account No. 98194, with sufficient
information to identify the source and
application of such funds, including
the PPN (233293 A* 0) of the issue.
(2) Address for all notices of payment:
Bankers Trust Company
Attn: Private Placement Unit
PO Box 998; Bowling Green Station
New York, NY 10274
Fax: (615) 835-2493, Crystal Jones,
Private Placements
And
Lincoln Investment Management, Inc. 200
East Berry Street, Renaissance Square
Fort Wayne, IN 46802
Attention: Investments/Private Placements
Fax: (219) 455-5499, Private Placements
(3) Address for all communications:
Lincoln Investment Management, Inc.
200 East Berry Street, Renaissance Square
Fort Wayne, IN 46802
Attention: Investments/Private Placements
Fax: (219) 455-5499, Private Placements
Tax ID #35-0472300
<PAGE>
SCHEDULE A
Principal Amount of
Name of Purchaser Notes to be Purchased
- ----------------- ---------------------
THE LINCOLN NATIONAL LIFE INSURANCE $5,000,000
COMPANY
(1) All payments on account of the Notes
shall be made by wire transfer of
immediately available funds to Bankers
Trust Company, ABA #021001033, New
York, NY, Attention: Private Placement
Processing, Account No. 99-911-145, for
further credit to The Lincoln National
Life Insurance Company (APL), Custody
Account No. 98619, with sufficient
information to identify the source and
application of such funds, including
the PPN (233293 A* 0) of the issue.
(2) Address for all notices of payment:
Bankers Trust Company
Attn: Private Placement Unit
PO Box 998; Bowling Green Station
New York, NY 10274
Fax: (615) 835-2493, Crystal Jones,
Private Placements
And
Lincoln Investment Management, Inc. 200
East Berry Street, Renaissance Square
Fort Wayne, IN 46802
Attention: Investments/Private
Placements
Fax: (219) 455-5499, Private
Placements
(3) Address for all communications:
Lincoln Investment Management, Inc.
200 East Berry Street, Renaissance Square
Fort Wayne, IN 46802
Attention: Investments/Private Placements
Fax: (219) 455-5499, Private Placements
Tax ID #35-0472300
<PAGE>
SCHEDULE A
Principal Amount of
Name of Purchaser Notes to be Purchased
- ----------------- ---------------------
THE LINCOLN NATIONAL LIFE INSURANCE $1,000,000
COMPANY
(1) All payments on account of the Notes
shall be made by wire transfer of
immediately available funds to Bankers
Trust Company, ABA #021001033, New
York, NY, Attention: Private Placement
Processing, Account No. 99-911-145, for
further credit to The Lincoln National
Life Insurance Company (LNL76), Custody
Account No. 98705,
with sufficient information to identify
the source and application of such
funds, including the PPN (233293 A* 0)
of the issue.
(2) Address for all notices of payment:
Bankers Trust Company
Attn: Private Placement Unit
PO Box 998; Bowling Green Station
New York, NY 10274
Fax: (615) 835-2493, Crystal Jones,
Private Placements
And
Lincoln Investment Management, Inc. 200
East Berry Street, Renaissance Square
Fort Wayne, IN 46802
Attention: Investments/Private Placements
Fax: (219) 455-5499, Private Placements
(3) Address for all communications:
Lincoln Investment Management, Inc.
200 East Berry Street, Renaissance Square
Fort Wayne, IN 46802
Attention: Investments/Private Placements
Fax: (219) 455-5499, Private Placements
Tax ID #35-0472300
<PAGE>
SCHEDULE A
Principal Amount of
Name of Purchaser Notes to be Purchased
- ----------------- ---------------------
THE LINCOLN NATIONAL LIFE INSURANCE $2,000,000
COMPANY
(1) All payments on account of the Notes shall be made by wire
transfer of immediately available funds to:
Chase Manhattan Bank
ABA #021000021
New York, NY
CHASE NYC/CTR/BNF
A/C# 900-9-000200
FURTHER CREDIT: The Lincoln National
Life Insurance Company (CIP), Custody
#: G07173
with sufficient information to identify
the source and application of such
funds, including the PPN (233293 A* 0)
of the issue.
(2) Address for all notices of payment:
Chase Manhattan Bank
Private Placement Servicing
PO Box 1508; Church Street Station
New York, NY 10081
Fax: (212) 623-6422, Private
Placements
And
Lincoln Investment Management, Inc.
200 East Berry Street, Renaissance Square
Fort Wayne, IN 46802
Attention: Investments/Private Placements
Fax: (219) 455-5499, Private Placements
(3) Address for all communications:
Lincoln Investment Management, Inc.
200 East Berry Street, Renaissance Square
Fort Wayne, IN 46802
Attention: Investments/Private Placements
Fax: (219) 455-5499, Private Placements
Tax ID #35-0472300
<PAGE>
SCHEDULE A
Principal Amount of
Name of Purchaser Notes to be Purchased
- ----------------- ---------------------
THE LINCOLN NATIONAL LIFE INSURANCE $5,000,000
COMPANY
(1) All payments on account of the Notes
shall be made by wire transfer of
immediately available funds to:
Chase Manhattan Bank
ABA #021000021
New York, NY
CHASE NYC/CTR/BNF
A/C# 900-9-000200
FURTHER CREDIT: The Lincoln National
Life Insurance Company (IACC), Custody
#: G07176
with sufficient information to identify
the source and application of such
funds, including the PPN (233293 A* 0)
of the issue.
(2) Address for all notices of payment:
Chase Manhattan Bank
Private Placement Servicing
PO Box 1508; Church Street Station
New York, NY 10081
Fax: (212) 623-6422, Private Placements
And
Lincoln Investment Management, Inc.
200 East Berry Street, Renaissance Square
Fort Wayne, IN 46802
Attention: Investments/Private Placements
Fax: (219) 455-5499, Private Placements
(3) Address for all communications:
Lincoln Investment Management, Inc.
200 East Berry Street, Renaissance Square
Fort Wayne, IN 46802
Attention: Investments/Private Placements
Fax: (219) 455-5499, Private Placements
Tax ID #35-0472300
<PAGE>
SCHEDULE A
Principal Amount of
Name of Purchaser Notes to be Purchased
- ----------------- ---------------------
LINCOLN LIFE & ANNUITY COMPANY $2,000,000
OF NEW YORK
(1) All payments on account of the Notes
shall be made by wire transfer of
immediately available funds to Bankers
Trust Company, ABA #021001033, New
York, NY, Attention: Private Placement
Processing, Account No. 99-911-145, for
further credit to A/C: LINC LIFE &
ANNTY CO OF NEW YORK, Custody Account
No. 98722, with sufficient information
to identify the source and application
of such funds, including the PPN
(233293 A* 0) of the issue.
(2) Address for all notices of payment:
Bankers Trust Company
Attn: Private Placement Unit
PO Box 998; Bowling Green Station
New York, NY 10274
Fax: (615) 835-2493, Private Placements
And
Lincoln Investment Management, Inc. 200
East Berry Street, Renaissance Square
Fort Wayne, IN 46802
Attention: Investments/Private Placements
Fax: (219) 455-5499, Private Placements
(3) Address for all communications:
Lincoln Investment Management, Inc.
200 East Berry Street, Renaissance Square
Fort Wayne, IN 46802
Attention: Investments/Private Placements
Fax: (219) 455-5499, Private Placements
Tax ID #16-1505436
<PAGE>
SCHEDULE A
Principal Amount of
Name of Purchaser Notes to be Purchased
- ----------------- ---------------------
LINCOLN LIFE & ANNUITY COMPANY $1,000,000
OF NEW YORK
(1) All payments on account of the Notes
shall be made by wire transfer of
immediately available funds to Bankers
Trust Company, ABA #021001033, New
York, NY, Attention: Private Placement
Processing, Account No. 99-911-145, for
further credit to A/C: LINC LIFE &
ANNTY CO OF NEW YORK, Custody Account
No. 98698, with sufficient information
to identify the source and application
of such funds, including the PPN
(233293 A* 0) of the issue.
(2) Address for all notices of payment:
Bankers Trust Company
Attn: Private Placement Unit
PO Box 998; Bowling Green Station
New York, NY 10274
Fax: (615) 835-2493, Private Placements
And
Lincoln Investment Management, Inc. 200
East Berry Street, Renaissance Square
Fort Wayne, IN 46802
Attention: Investments/Private Placements
Fax: (219) 455-5499, Private Placements
(3) Address for all communications:
Lincoln Investment Management, Inc.
200 East Berry Street, Renaissance Square
Fort Wayne, IN 46802
Attention: Investments/Private Placements
Fax: (219) 455-5499, Private Placements
Tax ID #16-1505436
<PAGE>
SCHEDULE A
Principal Amount of
Name of Purchaser Notes to be Purchased
- ----------------- ---------------------
LINCOLN LIFE & ANNUITY COMPANY $3,000,000
OF NEW YORK
(1) All payments on account of the Notes
shall be made by wire transfer of
immediately available funds to Bankers
Trust Company, ABA #021001033, New
York, NY, Attention: Private Placement
Processing, Account No. 99-911-145, for
further credit to A/C: LINC LIFE &
ANNTY CO OF NEW YORK, Custody Account
No. 98440, with sufficient information
to identify the source and application
of such funds, including the PPN
(233293 A* 0) of the issue.
(2) Address for all notices of payment:
Bankers Trust Company
Attn: Private Placement Unit
PO Box 998; Bowling Green Station
New York, NY 10274
Fax: (615) 835-2493, Private Placements
And
Lincoln Investment Management, Inc.
200 East Berry Street, Renaissance Square
Fort Wayne, IN 46802
Attention: Investments/Private Placements
Fax: (219) 455-5499, Private Placements
(3) Address for all communications:
Lincoln Investment Management, Inc.
200 East Berry Street, Renaissance Square
Fort Wayne, IN 46802
Attention: Investments/Private Placements
Fax: (219) 455-5499, Private Placements
Tax ID #16-1505436
<PAGE>
SCHEDULE A
Principal Amount of
Name of Purchaser Notes to be Purchased
- ----------------- ---------------------
LINCOLN LIFE & ANNUITY COMPANY $2,000,000
OF NEW YORK
(1) All payments on account of the Notes
shall be made by wire transfer of
immediately available funds to:
Chase Manhattan Bank
ABA #021000021
New York, NY
CHASE NYC/CTR/BNF
A/C# 900-9-000200
FURTHER CREDIT: Lincoln Life & Annuity
Company of New York, Custody #: G07170
with sufficient information to identify
the source and application of such
funds, including the PPN (233293 A* 0)
of the issue.
(2) Address for all notices of payment:
Chase Manhattan Bank
Private Placement Servicing
PO Box 1508; Church Street Station
New York, NY 10081
Fax: (212) 623-6422, Private Placements
And
Lincoln Investment Management, Inc.
200 East Berry Street, Renaissance Square
Fort Wayne, IN 46802 Attention:
Investments/Private Placements
Fax: (219) 455-5499, Private Placements
(3) Address for all communications:
Lincoln Investment Management, Inc.
200 East Berry Street, Renaissance Square
Fort Wayne, IN 46802
Attention: Investments/Private Placements
Fax: (219) 455-5499, Private Placements
Tax ID #16-1505436
<PAGE>
SCHEDULE A
Principal Amount of
Name of Purchaser Notes to be Purchased
- ----------------- ---------------------
LINCOLN NATIONAL REINSURANCE COMPANY $2,000,000
LIMITED
(1) All payments on account of the Notes
shall be made by wire transfer of
immediately available funds to:
Chase Manhattan Bank
ABA #021000021
New York, NY
CHASE NYC/CTR/BNF
A/C# 900-9-000200
FURTHER CREDIT: Lincoln National
Reinsurance Company Limited, Custody #: G06325
with sufficient information to identify
the source and application of such
funds, including the PPN (233293 A* 0)
of the issue.
(2) Address for all notices of payment:
Chase Manhattan Bank
Private Placement Servicing
PO Box 1508; Church Street Station
New York, NY 10081
Fax: (212) 623-6422, Private Placements
And
Lincoln Investment Management, Inc.
200 East Berry Street, Renaissance Square
Fort Wayne, IN 46802
Attention: Investments/Private Placements
Fax: (219) 455-5499, Private Placements
(3) Address for all communications:
Lincoln Investment Management, Inc.
200 East Berry Street, Renaissance Square
Fort Wayne, IN 46802 Attention:
Investments/Private Placements
Fax: (219) 455-5499, Private Placements
Tax ID #31-1257231
<PAGE>
SCHEDULE A
Principal Amount of
Name of Purchaser Notes to be Purchased
- ----------------- ---------------------
LINCOLN NATIONAL HEALTH & CASUALTY $2,000,000
INSURANCE COMPANY
(1) All payments on account of the Notes
shall be made by wire transfer of
immediately available funds to:
Chase Manhattan Bank
ABA #021000021
New York, NY
CHASE NYC/CTR/BNF
A/C# 900-9-000200
FURTHER CREDIT: Lincoln National Health
& Casualty Insurance Company, Custody
#: G06323
with sufficient information to identify
the source and application of such
funds, including the PPN (233293 A* 0)
of the issue.
(2) Address for all notices of payment:
Chase Manhattan Bank
Private Placement Servicing
PO Box 1508; Church Street Station
New York, NY 10081
Fax: (212) 623-6422, Private Placements
And
Lincoln Investment Management, Inc.
200 East Berry Street, Renaissance Square
Fort Wayne, IN 46802
Attention: Investments/Private Placements
Fax: (219) 455-5499, Private Placements
(3) Address for all communications:
Lincoln Investment Management, Inc.
200 East Berry Street, Renaissance Square
Fort Wayne, IN 46802
Attention: Investments/Private Placements
Fax: (219) 455-5499, Private Placements
Tax ID #35-1495207
<PAGE>
SCHEDULE A
Principal Amount of
Name of Purchaser Notes to be Purchased
- ----------------- ---------------------
FIRST PENN-PACIFIC LIFE INSURANCE COMPANY $2,000,000
(Register Notes in the name of "CUDD & CO")
(1) All payments on account of the Notes
shall be made by wire transfer of
immediately available funds to:
Chase Manhattan Bank
ABA #021000021
New York, NY
CHASE NYC/CTR/BNF
A/C# 900-9-000200
FURTHER CREDIT to A/C: G-05996 First
Penn-Pacific Life Inc Co.
with sufficient information to identify
the source and application of such
funds, including the PPN (233293 A* 0)
of the issue.
(2) Address for all notices of payment:
Chase Manhattan Bank
Private Placement Servicing
PO Box 1508; Church Street Station
New York, NY 10081
Fax: (212) 623-6422, Private Placements
And
Lincoln Investment Management, Inc.
200 East Berry Street, Renaissance Square
Fort Wayne, IN 46802
Attention: Investments/Private Placements
Fax: (219) 455-5499, Private Placements
(3) Address for all communications:
Lincoln Investment Management, Inc.
200 East Berry Street, Renaissance Square
Fort Wayne, IN 46802
Attention: Investments/Private Placements
Fax: (219) 455-5499, Private Placements
Tax ID #23-2044248
<PAGE>
SCHEDULE A
Principal Amount of
Name of Purchaser Notes to be Purchased
- ----------------- ---------------------
TEACHERS INSURANCE AND ANNUITY $70,000,000
ASSOCIATION OF AMERICA
(1) All payments in immediately available
funds at the opening of business on the due date by
electronic funds transfer through the Automated
Clearing House System to:
The Chase Manhattan Bank
ABA #021-000-021
New York, New York
Account of: Teachers Insurance and Annuity
Association of America
Account Number: 900-9-000200
For further credit to the TIAA Account Number G07040
Reference: PPN (233293 A* 0)/Issuer (DPL Inc.)/Mat.
Date/Coupon Rate/P&I Breakdown
(2) Contemporaneous with the above electronic funds transfer,
mail or fax the following information setting forth: (1) the
full name, private placement number, interest rate and maturity
date of the Notes;(2) the allocation of payment between
principal, interest, premium and any special payment; and (3)
the name and address of the Bank (or Trustee) from which such
transfer was sent, to:
Teachers Insurance and Annuity Association of America
730 Third Avenue
New York, NY 10017-3206
Attention: Securities Accounting Division
Telephone Number: (212) 916-4188
Facsimile Number: (212) 916-6955
(3) All other communications:
Teachers Insurance and Annuity Association of America
730 Third Avenue
New York, NY 10017-3206
Attention: Securities Division
Telephone Number: (212) 916-6578 (John Goodreds)
(212) 490-9000 (General)
Facsimile Number: (212) 916-6582 (Team Fax No.)
Tax ID No.: 13-1624203
<PAGE>
SCHEDULE A
Principal Amount of
Name of Purchaser Notes to be Purchased
- ----------------- ---------------------
TEACHERS INSURANCE AND ANNUITY $10,000,000
ASSOCIATION OF AMERICA
(1) All payments in immediately available funds at the
opening of business on the due date by electronic
funds transfer through the Automated Clearing House
System to:
The Chase Manhattan Bank
ABA #021-000-021
New York, New York
Account of: TIAA Personal Annuity Private Placements
Account Number: 900-9-000200
For further credit to the TIAA Account Number G07320
Reference: PPN (233293 A* 0)/Issuer (DPL Inc.)/Mat.
Date/Coupon Rate/P&I Breakdown
(4) Contemporaneous with the above electronic funds transfer,
mail or fax the following information setting forth: (1) the
full name, private placement number, interest rate and
maturity date of the Notes; (2) the allocation of payment
between principal, interest, premium and any special payment;
and (3) the name and address of the Bank (or Trustee) from
which such transfer was sent, to:
Teachers Insurance and Annuity Association of America
730 Third Avenue
New York, NY 10017-3206
Attention: Securities Accounting Division
Telephone Number: (212) 916-4188
Facsimile Number: (212) 916-6955
(5) All other communications:
Teachers Insurance and Annuity Association of America
730 Third Avenue
New York, NY 10017-32064
Attention: Securities Division
Telephone Number: (212) 916-6578 (John Goodreds)
(212) 490-9000 (General)
Facsimile Number: (212) 916-6582 (Team Fax No.)
Tax ID No.: 13-1624203
<PAGE>
SCHEDULE A
Principal Amount of
Name of Purchaser Notes to be Purchased
- ----------------- ---------------------
TEACHERS INSURANCE AND ANNUITY $10,000,000
ASSOCIATION OF AMERICA
(1) All payments in immediately available funds at
the opening of business on the due date by
electronic funds transfer through the Automated
Clearing House System to:
The Chase Manhattan Bank
ABA #021-000-021
New York, New York
Account of: TIAA Insurance Private Placements
Account Number: 900-9-000200
For further credit to the TIAA Account Number G07319
Reference: PPN (233293 A* 0)/Issuer (DPL Inc.)/Mat.
Date/Coupon Rate/P&I Breakdown
(6) Contemporaneous with the above electronic funds transfer,
mail or fax the following information setting forth: (1) the
full name, private placement number, interest rate and
maturity date of the Notes; (2) the allocation of payment
between principal, interest, premium and any special payment;
and (3) the name and address of the Bank (or Trustee) from
which such transfer was sent, to:
Teachers Insurance and Annuity Association of America
730 Third Avenue
New York, NY 10017-3206
Attention: Securities Accounting Division
Telephone Number: (212) 916-4188
Facsimile Number: (212) 916-6955
(7) All other communications:
Teachers Insurance and Annuity Association of America
730 Third Avenue
New York, NY 10017-3206
Attention: Securities Division
Telephone Number: (212) 916-6578 (John Goodreds)
(212) 490-9000 (General)
Facsimile Number: (212) 916-6582 (Team Fax No.)
Tax ID No.: 13-1624203
<PAGE>
SCHEDULE A
Principal Amount of
Name of Purchaser Notes to be Purchased
- ----------------- ---------------------
NEW YORK LIFE INSURANCE COMPANY $15,000,000
(1) All payments by wire or intrabank transfer of
immediately available funds:
Chase Manhattan Bank
New York, New York 10019
ABA No.: 021-000-021
For the account of New York Life Insurance Company
General Account No. 008-9-00687
with sufficient information (including issuer, PPN number,
interest rate, maturity and whether payment is of principal,
premium or interest) to identify the source and application
of such funds.
(2) All notices of payments and written confirmations of
such wire transfers:
New York Life Insurance Company
51 Madison Avenue
New York, NY 10010-1603
Attention: Treasury Department
Securities Income Section
Room 209
Fax: (212) 447-4160
(3) All other communications:
New York Life Insurance Company
51 Madison Avenue
New York, NY 10010-1603
Attention: Investment Department
Private Finance Group
Room 206
Fax: (212) 447-4122
With a copy of any notices regarding defaults or Events
of Default to:
New York Life Insurance Company
<PAGE>
SCHEDULE A
51 Madison Avenue
New York, NY 10010-1603
Attention: Office of General Counsel
Investment Section
Room 1104
Fax: (212) 576-8340
Tax ID No.: 13-5582869
<PAGE>
SCHEDULE A
Principal Amount of
Name of Purchaser Notes to be Purchased
- ----------------- ---------------------
NEW YORK LIFE INSURANCE AND ANNUITY $35,000,000
CORPORATION
(1) All payments by wire or intrabank transfer of
immediately available funds:
Chase Manhattan Bank
New York, New York ABA No.: 021-000-021
Credit: New York Life Insurance and Annuity Corporation
Account No. 323847382
with sufficient information (including issuer,
PPN number, interest rate, maturity and whether payment is
of principal, premium or interest) to identify the source and
application of such funds.
(2) All notices of payments and written confirmations of such wire
transfers:
New York Life Insurance and Annuity Corporation
c/o New York Life Insurance Company
51 Madison Avenue
New York, New York 10010-1603
Attention: Treasury Department
Securities Income Section
Room 209
Fax: (212) 447-4165
<PAGE>
SCHEDULE A
(3) All other communications:
New York Life Insurance and Annuity Corporation
c/o New York Life Insurance Company
51 Madison Avenue
New York, New York 10010-1603
Attention: Investment Department Private Finance Group
Room 206
Fax: (212) 447-4122
With a copy of any notices regarding defaults or Events
of Default to:
New York Life Insurance and Annuity Corporation
c/o New York Life Insurance Company
51 Madison Avenue
New York, NY 10010-1603
Attention: Office of General Counsel
Investment Section
Room 1104
Fax: (212) 576-8340
Tax ID No.: 13-3044743
<PAGE>
SCHEDULE A
Principal Amount of
Name of Purchaser Notes to be Purchased
- ----------------- ---------------------
NEW YORK LIFE INSURANCE AND ANNUITY $10,000,000
CORPORATION INSTITUTIONALLY OWNED
LIFE INSURANCE SEPARATE ACCOUNT
(1) All payments by wire or intrabank transfer of
immediately available funds:
Chase Manhattan Bank
New York, New York ABA No.: 021-000-021
Credit: NLYIAC SEPARATE BOLI 3 BROAD FIXED
Account No. 323-8-39002
with sufficient information (including issuer,
PPN number, interest rate, maturity and whether payment is
of principal, premium or interest) to identify the source and
application of such funds.
(2) All notices of payments and written confirmations of
such wire transfers:
New York Life Insurance and Annuity Corporation
Institutionally Owned Life Insurance Separate Account
c/o New York Life Insurance Company
51 Madison Avenue
New York, New York 10010-1603
Attention: Treasury Department
Securities Income Section
Room 209
Fax: (212) 447-4160
(3) All other communications:
New York Life Insurance and Annuity Corporation
Institutionally Owned Life Insurance Separate Account
<PAGE>
SCHEDULE A
c/o New York Life Insurance Company
51 Madison Avenue
New York, New York 10010-1603
Attention: Investment Department Private Finance Group
Room 206
Fax: (212) 447-4122
With a copy of any notices regarding defaults or Events of Default
to:
New York Life Insurance and Annuity Corporation
Institutionally Owned Life Insurance Separate Account
c/o New York Life Insurance Company
51 Madison Avenue
New York, NY 10010-1603
Attention: Office of General Counsel
Investment Section
Room 1104
Fax: (212) 576-8340
Tax ID No.: 13-3044743
<PAGE>
SCHEDULE A
Principal Amount of
Name of Purchaser Notes to be Purchased
- ----------------- ---------------------
THE TRAVELERS INSURANCE COMPANY $29,000,000
(Register Notes in the name of "TRAL & CO")
(1) All payments by wire or intrabank transfer of immediately
available funds:
Chase Manhattan Bank
New York, New York ABA No.: 021-000-021
Travelers Private Placement
Account Account No. 910-2-587434
with sufficient information to identify the source and
application of such funds.
(2) All notices of payments and written confirmations of
such wire transfers:
Travelers Investment Group
One Tower Square 10PB
Hartford CT 06183
Attn: Cashiers Division
Fax: 860-277-2299
Phone: 860-277-2213
(3) All other communications:
Travelers Investment Group
One Tower Square 9PB
Hartford CT 06183
Attn: Robert Mills
Fax: 860-954-5243
Tax ID No.: 06-0566090
<PAGE>
SCHEDULE A
Principal Amount of
Name of Purchaser Notes to be Purchased
- ----------------- ---------------------
FIRST TRENTON INDEMNITY COMPANY $3,000,000
(Register Notes in the name of "HARE & CO")
(1) All payments by wire or intrabank transfer of
immediately available funds:
First Union CHAR/PHIL
ABA # 031201467
Acct # 5014179770579
For further credit to First Trenton Indemnity Company
# 56-6312-00
Attn: Mary Pitt
with sufficient information to identify the source and
application of such funds.
(2) All notices of payments and written confirmations of
such wire transfers:
Travelers Investment Group
One Tower Square 10PB
Hartford CT 06183
Attn: Cashiers Division
Fax: 860-277-2299
Phone: 860-277-2213
(3) All other communications:
Travelers Investment Group
One Tower Square 9PB
Hartford CT 06183
Attn: Robert Mills
Fax: 860-954-5243
Tax ID No.: 13-6062916
<PAGE>
SCHEDULE A
Principal Amount of
Name of Purchaser Notes to be Purchased
- ----------------- ---------------------
PRIMERICA LIFE INSURANCE COMPANY $10,000,000
(Register Notes in the name of "CUDD & CO")
(1) All payments by wire or intrabank transfer of
immediately available funds:
Chase Manhattan Bank
New York, New York
ABA No.: 021-000-021
Credit Acct. 910-2-790079
with sufficient information to identify the source and
application of such funds.
(2) All notices of payments and written confirmations of
such wire transfers:
Travelers Investment Group
One Tower Square 10PB
Hartford CT 06183
Attn: Cashiers Division
Fax: 860-277-2299
Phone: 860-277-2213
(3) All other communications:
Travelers Investment Group
One Tower Square 9PB
Hartford CT 06183
Attn: Robert Mills
Fax: 860-954-5243
Tax ID No.: 04-1590590
<PAGE>
SCHEDULE A
Principal Amount of
Name of Purchaser Notes to be Purchased
- ----------------- ---------------------
PREMIER INSURANCE COMPANY
OF MASSACHUSETTS $2,000,000
(Register Notes in the name of "CUDD & CO")
(1) All payments by wire or intrabank transfer of
immediately available funds:
Chase Manhattan Bank
New York, New York
ABA No.: 021-000-021 Credit
Acct # 910-2-723344
with sufficient information to identify the source and
application of such funds.
(2) All notices of payments and written confirmations of such wire
transfers:
Travelers Investment Group
One Tower Square 10PB
Hartford CT 06183
Attn: Cashiers Division
Fax: 860-277-2299
Phone: 860-277-2213
(3) All other communications:
Travelers Investment Group
One Tower Square 9PB
Hartford CT 06183
Attn: Robert Mills
Fax: 860-954-5243
Tax ID No.: 04-3175569
<PAGE>
SCHEDULE A
Principal Amount of
Name of Purchaser Notes to be Purchased
- ----------------- ---------------------
THE TRAVELERS LIFE AND ANNUITY COMPANY $1,000,000
(Register Notes in the name of "TRAL & CO")
(1) All payments by wire or intrabank transfer of
immediately available funds:
Chase Manhattan Bank
New York, New York ABA No.: 021-000-021
Travelers Private Placement
Account Account No. 910-2-587434
with sufficient information to identify the source and
application of such funds.
(2) All notices of payments and written confirmations of such wire
transfers:
Travelers Investment Group
One Tower Square 10PB
Hartford CT 06183
Attn: Cashiers Division
Fax: 860-277-2299
Phone: 860-277-2213
(3) All other communications:
Travelers Investment Group
One Tower Square 9PB
Hartford CT 06183
Attn: Robert Mills
Fax: 860-954-5243
Tax ID No.: 06-0904249
<PAGE>
SCHEDULE A
Principal Amount of
Name of Purchaser Notes to be Purchased
- ----------------- ---------------------
FIRST FLORIDIAN AUTO & HOME
INSURANCE COMPANY $2,000,000
(Register Notes in the name of "TRAL & CO")
(1) All payments by wire or intrabank transfer of
immediately available funds:
Chase Manhattan Bank
New York, New York ABA No.: 021-000-021
Travelers Private Placement
Account Account No. 910-2-587434
with sufficient information to identify the source and
application of such funds.
(2) All notices of payments and written confirmations of such wire
transfers:
Travelers Investment Group
One Tower Square 10PB
Hartford CT 06183
Attn: Cashiers Division
Fax: 860-277-2299
Phone: 860-277-2213
(3) All other communications:
Travelers Investment Group
One Tower Square 9PB
Hartford CT 06183
Attn: Robert Mills
Fax: 860-954-5243
<PAGE>
SCHEDULE A
Principal Amount of
Name of Purchaser Notes to be Purchased
- ----------------- ---------------------
NATIONAL BENEFIT LIFE INSURANCE COMPANY $3,000,000
(Register Notes in the name of "CUDD & CO")
(1) All payments by wire or intrabank transfer
of immediately available funds:
Chase Manhattan Bank
New York, New York
ABA No.: 021-000-021 Credit
Acct # 910-2-970384
with sufficient information to identify the source and
application of such funds.
(2) All notices of payments and written confirmations of such wire
transfers:
Travelers Investment Group
One Tower Square 10PB
Hartford CT 06183
Attn: Cashiers Division
Fax: 860-277-2299
Phone: 860-277-2213
(3) All other communications:
Travelers Investment Group
One Tower Square 9PB
Hartford CT 06183
Attn: Robert Mills
Fax:860-954-5243
<PAGE>
SCHEDULE B
DEFINED TERMS
-------------
As used herein, the following terms have the respective
meanings set forth below or set forth in the Section hereof
following such term:
"Affiliate" means, at any time, and with respect to any
Person, any other Person that at such time directly or indirectly
through one or more intermediaries Controls, or is Controlled by,
or is under common Control with, such first Person. As used in
this definition, "Control" means the possession, directly or
indirectly, of the power to direct or cause the direction of the
management and policies of a Person, whether through the
ownership of voting securities, by contract or otherwise. Unless
the context otherwise clearly requires, any reference to an
"Affiliate" is a reference to an Affiliate of the Company.
"Applicable Spread" means, for any day during the
occurrence and continuance of a Credit Rating Event, the
applicable rate per annum set forth below under the caption
"Applicable Spread" and opposite the lower of the rating by
Moody's and S&P in effect on such day with respect to the senior
unsecured long-term indebtedness of the Company:
Indebtedness Ratings: Applicable Spread
- -------------------- -----------------
Category 1
- ----------
"Baa1" by Moody's or "BBB+" by S&P 0.25% (25 basis points)
Category 2
- ----------
"Baa2" by Moody's or "BBB" by S&P 0.35% (35 basis points)
Category 3
- ----------
"Baa3" or lower by Moody's 0.50% (50 basis points)
or "BBB-" or lower by S&P
For purposes of the foregoing, (i) if either Moody's or
S&P shall not have in effect a rating for such long-term
indebtedness of the Company, then such Rating Agency shall be
deemed to have established a rating in Category 3; (ii) if the
ratings established or deemed to have been established by Moody's
and S&P for such long-term indebtedness of the Company shall fall
within different Categories, the Applicable Spread shall be based
on the lower of the two ratings; and (iii) if the ratings
established or deemed to have been established by Moody's...
<PAGE>
...and S&P for such long-term indebtedness of the Company shall be
changed, such change shall be effective as of the date on which it
is first announced by the applicable Rating Agency. Each change
in the Applicable Spread shall apply during the period commencing
on the effective date of such change (whether such change shall be
an upgrade or a downgrade) and ending on the date immediately
preceding the effective date of the next such change (whether such
change shall be an upgrade or a downgrade).
"Assets" means, with respect to any Person, the whole or
any part of its business, property, assets, cash and receivables.
"Business Day" means (a) for the purposes of Section
8.7 only, any day other than a Saturday, a Sunday or a day on
which commercial banks in New York City are required or
authorized to be closed, and (b) for the purposes of any other
provision of this Agreement, any day other than a Saturday, a
Sunday or a day on which commercial banks in New York, New York
or Dayton, Ohio are required or authorized to be closed.
"Closing" is defined in Section 3.
"Code" means the Internal Revenue Code of 1986, as
amended from time to time, and the rules and regulations
promulgated thereunder from time to time.
"Company" means DPL Inc., an Ohio corporation, or any
successor thereto that shall have become such in the manner
prescribed in Section 10.2.
"Confidential Information" is defined in Section 20.
"Consolidated Capitalization" means the sum obtained by
adding (i) Consolidated Shareholders' Equity, (ii) Consolidated
Indebtedness for money borrowed (exclusive of any thereof which
is due and payable within one year of the date such sum is
determined) and, without duplication, (iii) any preference or
preferred stock of the Company or any Consolidated Subsidiary
which is subject to mandatory redemption or sinking funds
provisions.
"Consolidated Indebtedness" means total indebtedness as
shown on the consolidated balance sheet of the Company and its
Consolidated Subsidiaries.
"Consolidated Shareholders' Equity" means the total
Assets of the Company and its Consolidated Subsidiaries less all
liabilities of the Company and its Consolidated Subsidiaries. As
used in this definition, "liabilities" means all obligations
which would, in accordance with GAAP, be classified on a balance
sheet as liabilities, including without limitation, (i)
indebtednesssecured by property of the Company or any of its
Consolidated Subsidiaries whether or not the Company or such
Consolidated Subsidiary is liable for the payment thereof unless,
in the case that the Company or such Consolidated Subsidiary is
not so liable, such property has not been included among the
Assets of the Company or such Consolidated Subsidiary on such
balance sheet, (ii) deferred liabilities and (iii) indebtedness
of the Company or any of its Consolidated Subsidiaries that is
expressly subordinated in right and...
<PAGE>
...priority of payment to other liabilities of the Company or
such Consolidated Subsidiary. As used in this definition,
"liabilities" includes preference or preferred stock of the Company
or any Consolidated Subsidiary only to the extent of any such
preference or preferred stock that is subject to mandatory
redemption or sinking fund provisions.
"Consolidated Subsidiary" means at any date any
Subsidiary the financial statements of which under GAAP would be
consolidated with those of the Company in its consolidated
financial statements as of such date.
"Credit Rating Event" is defined in Section 8.1(c).
"Default" means an event or condition the occurrence or
existence of which would, with the lapse of time or the giving of
notice or both, become an Event of Default.
"Default Rate" means, at any time, that rate of
interest that is equal to the rate of interest otherwise
applicable to the Notes at such time (giving effect to the
provisions of Section 8.1) plus 1.00%.
"DP&L" means The Dayton Power and Light Company, an
Ohio corporation, and its successors and their assigns
"Environmental Laws" means any and all Federal, state,
local, and foreign statutes, laws, regulations, ordinances,
rules, judgments, orders, decrees, permits, concessions, grants,
franchises, licenses, agreements or governmental restrictions
relating to pollution and the protection of the environment or
the release of any materials into the environment, including but
not limited to those related to hazardous substances or wastes,
air emissions and discharges to waste or public systems.
"ERISA" means the Employee Retirement Income Security
Act of 1974, as amended from time to time, and the rules and
regulations promulgated thereunder from time to time in effect.
"ERISA Affiliate" means any trade or business (whether
or not incorporated) that is treated as a single employer
together with the Company under section 414 of the Code.
"Event of Default" is defined in Section 11.
"Exchange Act" means the Securities Exchange Act of
1934, as amended.
"GAAP" means generally accepted accounting principles
as in effect from time to time in the United States of America.
<PAGE>
"Governmental Authority" means
(a) the government of
(i) the United States of America or any State
or other political subdivision thereof, or
(ii) any jurisdiction in which the Company or
any Subsidiary conducts all or any part of its
business, of which asserts jurisdiction over any
properties of the Company or any Subsidiary, or
(b) any entity exercising executive, legislative,
judicial, regulatory or administrative functions of, or
pertaining to, any such government.
"holder" means, with respect to any Note, the Person in
whose name such Note is registered in the register maintained by
the Company pursuant to Section 13.1.
"Indebtedness" means, with respect to any Person, all
indebtedness, whether or not represented by bonds, debentures,
notes or other securities, created or assumed by such Person for
the repayment of money borrowed; all indebtedness for money
borrowed secured by a Lien upon property owned by such Person and
upon which indebtedness for money borrowed such Person customarily
pays interest, although such Person has not assumed or become
liable for the payment of such indebtedness for money borrowed,
shall for purposes of this Agreement be deemed to be Indebtedness
of such Person; all indebtedness of others for money borrowed
which is guaranteed as to payment of principal by such Person or
in effect guaranteed by such Person through a contingent agreement
to purchase such indebtedness for money borrowed shall for
purposes of this Agreement be deemed to be Indebtedness of such
Person, but no other contingent obligation of such Person in
respect of indebtedness for money borrowed or other obligations
incurred by others shall for purposes of this Agreement be deemed
to be Indebtedness of such Person.
"Institutional Investor" means (a) any original
purchaser of a Note, (b) any holder of a Note holding more than
5% of the aggregate principal amount of the Notes then outstanding,
and (c) any bank, trust company, savings and loan association or
other financial institution, any pension plan, any investment
company, any insurance company, any broker or dealer, or any other
similar financial institution or entity, regardless of legal form.
"Lien" is defined in Section 10.3.
"Make-Whole Amount" is defined in Section 8.7.
"Material" means material in relation to the business,
operations, affairs, financial condition, assets, or properties
of the Company and its Subsidiaries taken as a whole.
"Material Adverse Effect" means a material adverse
effect on (a) the business,...
<PAGE>
...operations, affairs, financial condition, assets or properties
of the Company and its Subsidiaries taken as a whole, or (b) the
ability of the Company to perform its obligations under this
Agreement and the Notes, or (c) the validity or enforceability
of this Agreement or the Notes.
"Memorandum" is defined in Section 5.3.
"Moody's" means Moody's Investors Service, Inc.
"Multiemployer Plan" means any Plan that is a
"multiemployer plan" (as such term is defined in section 4001(a)(3)
of ERISA).
"Notes" is defined in Section 1.
"Officer's Certificate" means a certificate of a Senior
Financial Officer or of any other officer of the Company whose
responsibilities extend to the subject matter of such certificate.
"Opinion of Counsel" means a written opinion of
counsel, who may be counsel for the Company, or other counsel
acceptable to the Required Holders.
"PBGC" means the Pension Benefit Guaranty Corporation
referred to and defined in ERISA or any successor thereto.
"Person" means an individual, partnership, corporation,
limited liability company, association, trust, unincorporated
organization, or a government or agency or political subdivision
thereof.
"Plan" means an "employee benefit plan" (as defined in
section 3(3) of ERISA) that is or, within the preceding five
years, has been established or maintained, or to which contributions
are or, within the preceding five years, have been made or required
to be made, by the Company or any ERISA Affiliate or with respect
to which the Company or any ERISA Affiliate may have any liability.
"property" or "properties" means, unless otherwise
specifically limited, real or personal property of any kind,
tangible or intangible, choate or inchoate.
"PTE" means a Prohibited Transaction Exemption issued
by the Department of Labor.
"Purchaser" is defined in the first paragraph of this
Agreement.
"QPAM Exemption" means Prohibited Transaction Class
Exemption 84-14 issued by the United States Department of Labor.
"Rating Agencies" means Moody's and S&P.
"Rating Change" is defined in Section 8.1(d).
<PAGE>
"Required Holders" means, at any time, the holders of a
majority in principal amount of the Notes at the time outstanding
(exclusive of Notes then owned by the Company or any of its
Affiliates).
"Responsible Officer" means any Senior Financial
Officer and any other officer of the Company with responsibility
for the administration of the relevant portion of this agreement.
"Securities Act" means the Securities Act of 1933, as
amended from time to time.
"Senior Financial Officer" means the chief financial
officer, principal accounting officer, treasurer or comptroller
of the Company.
"Significant Subsidiary" means at any time any
Subsidiary that would at such time constitute a "significant
subsidiary" (as such term is defined in Regulation S-X of the
Securities and Exchange Commission as in effect on the date of
the Closing) of the Company.
"S&P" means Standard & Poor's Rating Group, a division
of McGraw-Hill, Inc.
"Subsidiary" means, as to any Person, any corporation,
association or other business entity in which such Person or one
or more of its Subsidiaries or such Person and one or more of its
Subsidiaries owns sufficient equity or voting interests to enable
it or them (as a group) ordinarily, in the absence of
contingencies, to elect a majority of the directors (or Persons
performing similar functions) of such entity, and any partnership
or joint venture if more than a 50% interest in the profits or
capital thereof is owned by such Person or one or more of its
Subsidiaries or such Person and one or more of its Subsidiaries
(unless such partnership or joint venture can and does ordinarily
take major business actions without the prior approval of such
Person or one or more of its Subsidiaries). Unless the context
otherwise clearly requires, any reference to a "Subsidiary" is a
reference to a Subsidiary of the Company.
<PAGE>
EXHIBIT 1
[FORM OF NOTE]
DPL INC.
6.32% SENIOR NOTE DUE 2004
No. [_____] [Date]
$[_______] PPN 233293 A* 0
FOR VALUE RECEIVED, the undersigned, DPL INC. (herein
called the "Company"), a corporation organized and existing under
the laws of the State of Ohio, hereby promises to pay to
[___________________________], or registered assigns, the
principal sum of [___________________________] DOLLARS (or so
much thereof as shall not have been prepaid) on April 6, 2004,
with interest (computed on the basis of a 360-day year of twelve
30-day months) (a) on the unpaid balance thereof at the rate of
6.32% per annum from the date hereof, payable semiannually, on
the 6th day of April and October in each year, commencing with
October 6, 1999, until the principal hereof shall have become due
and payable, and (b) to the extent permitted by law on any
overdue payment (including any overdue prepayment) of principal,
any overdue payment of interest and any overdue payment of any
Make-Whole Amount (as defined in the Note Purchase Agreement
referred to below), payable semiannually as aforesaid (or, at the
option of the registered holder hereof, on demand), at a rate per
annum from time to time equal to the Default Rate (as defined in
the Note Purchase Agreement referred to below). Notwithstanding
anything to the contrary above, the interest rate applicable to
this Note may be increased as provided in Section 8.1 of the Note
Purchase Agreement referred to below.
Payments of principal of, interest on and any Make
Whole Amount with respect to this Note are to be made in lawful
money of the United States of America at the principal office of
Bank of New York in New York, New York or at such other place as
the Company shall have designated by written notice to the holder
of this Note as provided in the Note Purchase Agreement referred
to below.
This Note is one of a series of Senior Notes (herein
called the "Notes") issued pursuant to separate Note Purchase
Agreement, dated as of April 6, 1999 (as from time to time
amended, the "Note Purchase Agreement"), between the Company and
the respective Purchasers named therein and is entitled to the
benefits thereof. Each holder of this Note will be deemed, by
its acceptance hereof, (i) to have agreed to the confidentiality
provisions set forth in Section 20 of the Note Purchase Agreement
and (ii) to have made the representation set forth in Section 6.2
of the Note Purchase Agreement.
<PAGE>
This Note is a registered Note and, as provided in the
Note Purchase Agreement, upon surrender of this Note for
registration of transfer, duly endorsed, or accompanied by a
written instrument of transfer duly executed, by the registered
holder hereof or such holder's attorney duly authorized in
writing, a new Note for a like principal amount will be issued
to, and registered in the name of, the transferee. Prior to due
presentment for registration of transfer, the Company may treat
the person in whose name this Note is registered as the owner
hereof for the purpose of receiving payment and for all other
purposes, and the Company will not be affected by any notice to
the contrary.
This Note is subject to optional prepayment, in whole
or from time to time in part, at the times and on the terms
specified in the Note Purchase Agreement, but not otherwise.
If an Event of Default, as defined in the Note Purchase
Agreement, occurs and is continuing, the principal of this Note
may be declared or otherwise become due and payable in the
manner, at the price (including any applicable Make-Whole Amount)
and with the effect provided in the Note Purchase Agreement.
This Note shall be construed and enforced in accordance
with the laws of the State of New York.
DPL INC.
By____________________________
Title:
<PAGE>
EXHIBIT 4.4(a)
FORM OF OPINION OF SPECIAL COUNSEL
TO THE COMPANY
Matters To Be Covered In
Opinion of Special Counsel To the Company
[To follow]
<PAGE>
EXHIBIT 4.4(b)
FORM OF OPINION OF SPECIAL COUNSEL
TO THE PURCHASERS
[TO BE PROVIDED ON A CASE BY CASE BASIS]
<TABLE> <S> <C>
<ARTICLE> UT
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> DEC-31-1999
<PERIOD-END> JUN-30-1999
<BOOK-VALUE> PER-BOOK
<TOTAL-NET-UTILITY-PLANT> 2162800
<OTHER-PROPERTY-AND-INVEST> 58000
<TOTAL-CURRENT-ASSETS> 456800
<TOTAL-DEFERRED-CHARGES> 246800
<OTHER-ASSETS> 998800
<TOTAL-ASSETS> 3923200
<COMMON> 1600
<CAPITAL-SURPLUS-PAID-IN> 662100
<RETAINED-EARNINGS> 700100
<TOTAL-COMMON-STOCKHOLDERS-EQ> 1363800
0
22900
<LONG-TERM-DEBT-NET> 1339000
<SHORT-TERM-NOTES> 0
<LONG-TERM-NOTES-PAYABLE> 0
<COMMERCIAL-PAPER-OBLIGATIONS> 43800
<LONG-TERM-DEBT-CURRENT-PORT> 0
0
<CAPITAL-LEASE-OBLIGATIONS> 0
<LEASES-CURRENT> 0
<OTHER-ITEMS-CAPITAL-AND-LIAB> 1153700
<TOT-CAPITALIZATION-AND-LIAB> 3923200
<GROSS-OPERATING-REVENUE> 638900
<INCOME-TAX-EXPENSE> 66900
<OTHER-OPERATING-EXPENSES> 465000
<TOTAL-OPERATING-EXPENSES> 531900
<OPERATING-INCOME-LOSS> 107000
<OTHER-INCOME-NET> 58400
<INCOME-BEFORE-INTEREST-EXPEN> 165400
<TOTAL-INTEREST-EXPENSE> 55100
<NET-INCOME> 110300
400
<EARNINGS-AVAILABLE-FOR-COMM> 109900
<COMMON-STOCK-DIVIDENDS> 71600
<TOTAL-INTEREST-ON-BONDS> 50200
<CASH-FLOW-OPERATIONS> 179500
<EPS-BASIC> 0.72
<EPS-DILUTED> 0.72
</TABLE>
