As filed with the Securities and Exchange Commission on May 26, 1999.
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------
DPL INC.
(Exact name of registrant as specified in its charter)
OHIO 31-1163136
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
4931
(Primary Standard Industrial Code Number)
COURTHOUSE PLAZA SOUTHWEST
DAYTON, OHIO 45402
(937) 224-6000
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
STEPHEN F. KOZIAR, JR., ESQ.
DPL INC.
COURTHOUSE PLAZA SOUTHWEST
DAYTON, OHIO 45402
(937) 224-6000
(Names and addresses, including zip codes, and telephone numbers, including
area codes, of agent for service)
The Commission is requested to send copies of all notices, orders and
communications to:
J. MICHAEL PARISH, ESQ.
THELEN REID & PRIEST LLP
40 WEST 57TH STREET
NEW YORK, NEW YORK 10019
(212) 603-2000
(212) 603-2001 (FAX)
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE OF THE SECURITIES TO
THE PUBLIC: As soon as practicable after this Registration Statement becomes
effective.
If the securities being registered on this Form are being offered in
connection with the formation of a holding company and there is compliance with
General Instruction G, check the following box. [ ]
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule
462(d) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. [ ]
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
===============================================================================================================
PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF EACH CLASS OF SECURITIES AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING REGISTRATION
TO BE REGISTERED REGISTERED UNIT PRICE FEE(1)
- ---------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
8 1/4% SENIOR EXCHANGE NOTES DUE 2007 $425,000,000 100% $425,000,000 $112,200
- ---------------------------------------------------------------------------------------------------------------
-- -- -- --
===============================================================================================================
</TABLE>
(1) Calculated pursuant to Rule 457(f)(2) of the rules and regulations
under the Securities Act of 1933, as amended.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE
OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933, AS AMENDED, OR UNTIL THE REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION,
ACTING PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
================================================================================
<PAGE>
The information in this prospectus is not complete and may be changed. We may
not sell these securities until the registration statement filed in the
Securities and Exchange Commission is effective. This prospectus is not an offer
to sell these securities and is not soliciting an offer to buy these securities
in any state where the offer or sale is not permitted.
Subject to Completion, dated ______, 2000
PROSPECTUS
DPL INC.
OFFER TO EXCHANGE ITS 8 1/4% SENIOR NOTES DUE 2007
TERMS OF THE EXCHANGE OFFER
We are offering to exchange up to $425,000,000 of our new 8 1/4%
Senior Exchange Notes due 2007 for up to $425,000,000 of our existing 8 1/4%
Senior Notes due 2007. Throughout this prospectus we refer to the 8 1/4% Senior
Notes due 2007 as "old notes" and the 8 1/4% Senior Exchange Notes due 2007 as
"exchange notes."
We are offering to issue the exchange notes to satisfy our obligations
contained in the registration rights agreement entered into when the old notes
were sold in transactions exempt from registration under the Securities Act.
The terms of the exchange notes will be substantially identical to the
terms of the old notes, except that the exchange notes will be registered and
the transfer restrictions, registration rights and provisions for additional
interest relating to the old notes will not apply to the exchange notes. There
is no existing market for the exchange notes, and DPL does not intend to apply
for their listing on any securities exchange.
All old notes that are validly tendered and not validly withdrawn will
be exchanged.
The exchange of old notes for exchange notes will not be a taxable
exchange for U.S. federal income tax purposes.
To exchange your old notes for the exchange notes:
o You must complete and send the letter of transmittal that
accompanies this prospectus to Bank One Trust Company, National
Association, the exchange agent, by 5:00 p.m., New York time, on
, 2000, unless the exchange offer is extended.
--------
o If your old notes are held in book-entry form at The Depository
Trust Company, you must instruct DTC, through your signed letter
of transmittal, that you wish to exchange your old notes for
exchange notes. When the exchange offer closes, your DTC account
will be changed to reflect your exchange of old notes for
exchange notes.
o Tenders of old notes may be withdrawn at any time prior to the
expiration of the exchange offer.
You should read the section called "The Exchange Offer" for additional
information on how to exchange your old notes for exchange notes.
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these securities or
determined that this prospectus is truthful or complete. Any representation to
the contrary is a criminal offense.
The date of this prospectus is , 2000
------------------------
<PAGE>
TABLE OF CONTENTS
Page
----
WHERE YOU CAN FIND MORE INFORMATION..........................................3
FORWARD-LOOKING STATEMENTS...................................................4
SUMMARY INFORMATION..........................................................5
DPL..........................................................................5
DPL AND ITS SUBSIDIARIES.....................................................5
THE EXCHANGE OFFER...........................................................6
SUMMARY OF CONSOLIDATED FINANCIAL INFORMATION...............................10
USE OF PROCEEDS.............................................................11
THE EXCHANGE OFFER..........................................................11
DESCRIPTION OF EXCHANGE NOTES ..............................................18
MATERIAL UNITED STATES FEDERAL INCOME TAX CONSIDERATIONS....................29
PLAN OF DISTRIBUTION........................................................32
LEGAL MATTERS...............................................................33
INDEPENDENT ACCOUNTANTS.....................................................33
You should rely only on the information contained in this prospectus
or information contained in documents which you are referred to in this
prospectus. DPL has not authorized anyone to provide you with information
different from that contained in this prospectus. DPL is offering to sell the
exchange notes only in jurisdictions where offers and sales are permitted. The
information contained in this prospectus is accurate only as of the date on the
front cover, regardless of the time of delivery of this prospectus or any sale
of the exchange notes.
WHERE YOU CAN FIND MORE INFORMATION
We are subject to the information requirements of the Securities
Exchange Act of 1934, and in accordance we file annual, quarterly and special
reports, proxy statements and other information with the Securities and Exchange
Commission. You may read and copy any documents we file at the SEC's public
reference room, 450 Fifth Street, N.W., Washington, D.C. 20549. Please call the
SEC at 1-800-SEC-0330 for further information on the public reference room. Our
SEC filings are also available to the public on the SEC's web site at
http://www.sec.gov and through the New York Stock Exchange, 20 Broad Street, New
York, New York 10005, on which our common stock is listed.
The SEC allows us to "incorporate by reference" the information we
file with them, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
considered to be part of this prospectus, and later information that we file
with the SEC will automatically update and supersede this information as well as
the information included in this prospectus. We incorporate by reference the
documents listed below and any future filings made with the SEC under Sections
13(a), 13(c), 14, or 15(d) of the Securities Exchange Act of 1934 until all of
the exchange notes are sold.
o Annual Report on Form 10-K for the fiscal year ended December 31,
1999; and
o Quarterly Report on Form 10-Q for the fiscal quarter ended March
31, 2000
We have agreed with the initial purchasers of the old notes that, if
we are no longer subject to the informational requirements of Section 13 or
15(d) of the Securities Exchange Act of 1934, we will furnish to holders and
beneficial owners of the notes and to prospective purchasers designated by such
holders the information required to be delivered pursuant to Rule 144A(d)(4)
3
<PAGE>
under the Securities Act to permit compliance with Rule 144A in connection with
resales of the notes.
This Prospectus, which is part of the exchange offer registration
statement, does not contain all of the information found in the exchange offer
registration statement. You should refer to the registration statement,
including its exhibits and schedules, for further information. You may obtain
copies of documents containing this information from us, without charge, by
calling or writing to us at:
DPL INC.
Financial Activities
Box 8825
Dayton, Ohio 45401
(937) 259-7150
IN ORDER TO OBTAIN TIMELY DELIVERY, YOU MUST REQUEST DOCUMENTS FROM US
NO LATER THAN , 2000, WHICH IS FIVE DAYS BEFORE THE EXPIRATION OF THE
----
EXCHANGE OFFER ON , 2000.
--------
FORWARD-LOOKING STATEMENTS
Reports and other information incorporated by reference in this
prospectus contain 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 our 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
4
<PAGE>
SUMMARY INFORMATION
The following summary contains basic information about this exchange
offer. It may not contain all the information that is important to you in making
your investment decision. Therefore, you should read the entire document
carefully before deciding to exchange the old notes.
The "Description of Exchange Notes" section of this prospectus
contains more detailed information regarding the terms and conditions of the
exchange notes. Unless the context indicates otherwise, the words "we," "our,"
"ours," "us" and "DPL" refer to DPL Inc. and its consolidated subsidiaries.
DPL
DPL Inc. was formed in 1985 as a holding company. DPL's principal
subsidiary is The Dayton Power and Light Company, a corporation formed under the
laws of the State of Ohio. Dayton Power and Light sells electricity and natural
gas to residential, commercial, industrial and governmental customers in a 6,000
square mile area of West Central Ohio. Electricity for Dayton Power and Light's
24 county service area is generated at eight power plants and is distributed to
495,000 retail customers. Natural gas service is provided to 308,000 customers
in 16 counties. At December 31, 1999, DPL had total assets of $4.34 billion and,
for the year then ended, DPL had operating revenues of $1.34 billion and net
income of $204 million.
DPL AND ITS SUBSIDIARIES
Other subsidiaries of DPL include:
o Miami Valley Resources, Inc., a natural gas supply management
company;
o Miami Valley Leasing, Inc., which leases communications equipment
and other miscellaneous equipment, owns real estate and has, for
financial investment purposes, acquired limited partnership
interests in wholesale electric generation;
o Miami Valley Lighting, Inc., a street lighting business;
o Miami Valley CTC, Inc., which provides transportation services;
o Miami Valley Insurance Company, an insurance company for DPL and
its subsidiaries;
o Miami Valley Development Company, which has acquired real estate
for Dayton Power and Light;
o DPL Energy, Inc., which has been granted authority to engage in
the business of brokering wholesale electric energy;
o MacGregor Park, Inc., an owner and developer of real estate; and
o Plaza Building Inc., which owns and leases an office building.
MVE, Inc. is a subsidiary of Plaza Building Inc. which provides
financial support services to DPL and its subsidiaries.
DPL is exempt from registration with the Securities and Exchange
Commission under the Public Utility Holding Company Act of 1935 because its
utility business operates solely in the State of Ohio.
DPL employed 2,102 persons as of December 31, 1999, of which 1,778
were full-time employees and 324 were part-time employees.
The principal executive offices of DPL are located at Courthouse Plaza
Southwest, Dayton, Ohio 45402. DPL's telephone number is (937) 224-6000.
5
<PAGE>
SUMMARY OF THE TERMS OF THE EXCHANGE OFFER
------------------------------------------
On March 1, 2000, we completed the private offering of the old notes.
We and the Initial Purchaser executed a registration rights agreement in the
private offering of the old notes in which we agreed to deliver to you this
prospectus and agreed to:
- file an exchange offer registration statement with the Commission
within 90 days after March 1, 2000, the date of issuance of the old notes;
- have the exchange offer registration statement declared effective by
the Commission within 180 days after March 1, 2000; and
- mail to each holders of the old notes a copy of the exchange offer
prospectus and consummate the exchange offer within 30 days after the date on
which the holders are mailed a copy of the exchange offer prospectus.
You are entitled to exchange in the exchange offer your old notes for
exchange notes which are identical in all material respects to the old notes
except that the exchange notes have been registered under the Securities Act.
THE EXCHANGE OFFER
EXCHANGE NOTES............... $425,000,000 principal amount of 8 1/4% Senior
Exchange Notes due 2007.
THE EXCHANGE OFFER........... We are offering to issue the exchange notes in
exchange for a like principal amount of the
outstanding 8 1/4% Senior Notes due 2007, issued
by us in a private placement on March 1, 2000. We
are offering to issue the exchange notes to
satisfy our obligations contained in the
registration rights agreement entered into when we
sold the old notes in transactions exempt from
registration under the Securities Act. The terms
of the exchange notes will be substantially
identical to the terms of the old notes, except
that the exchange notes will be registered and the
transfer restrictions, registration rights and
provisions for additional interest relating to the
old notes will not apply to the exchange notes.
6
<PAGE>
RESALES OF EXCHANGE NOTES.... Based on Commission no-action letters, we believe
that after the exchange offer you may offer and
sell the exchange notes without registration under
the Securities Act so long as:
- You acquired the exchange notes in the
ordinary course of business.
- When the exchange offer begins you do
not have an arrangement with another
person to participate in a distribution
of the exchange notes.
- You are not engaged in a distribution
of, nor do you intend to distribute, the
exchange notes.
When you tender the outstanding notes, we will ask
you to represent to us that:
- You are not an affiliate of DPL.
- You will acquire the exchange notes in
the ordinary course of business.
- When the exchange offer begins you are
not engaged in, nor do you have plans
with another person to be engaged in, a
distribution of the exchange notes.
If you are unable to make these representations,
you will be required to comply with the
registration and prospectus delivery requirements
under the Securities Act in connection with a
resale transaction.
If you are a broker-dealer and receive exchange
notes for your own account, you must acknowledge
that you will deliver a prospectus if you resell
the exchange notes. By acknowledging your intent
and delivering a prospectus you will not be deemed
to admit that you are an "underwriter" under the
Securities Act. You may use this prospectus as it
is amended from time to time when you resell
exchange notes which were acquired from
market-making or trading activities. For a year
after the expiration date we will make this
prospectus available to any broker-dealer in
connection with such a resale. See "Plan of
Distribution."
CONDITIONS TO THE
EXCHANGE OFFER............... The exchange offer is subject to conditions, some
of which we may waive. These conditions are more
fully described later in this prospectus under
"The Exchange Offer-Certain Conditions to the
Exchange Offer."
7
<PAGE>
PROCEDURES FOR
TENDERING OLD NOTES.......... If you wish to participate in the exchange offer,
you must complete, sign and date the accompanying
letter of transmittal or a facsimile copy and mail
it or deliver it to the exchange agent along with
any necessary documentation. Instructions and the
address of the exchange agent are on the letter of
transmittal and in this prospectus. See "The
Exchange Offer - Procedures for Tendering Old
Notes- Exchange Agent." You may also effect a
tender of outstanding notes pursuant to the
procedures for book-entry transfer as described in
this prospectus. See "Exchange Offer - Procedures
for Tendering Old Notes."
MATURITY DATE................ The exchange notes will mature on March 1, 2007
INTEREST PAYMENT DATES....... Interest on the exchange notes is payable on
March 1 and September 1 of each year, commencing
September 1, 2000.
INTEREST ACCRUAL............. Interest on the exchange notes will accrue from
the last interest payment date to which we paid
interest on the old notes.
ABSENCE OF PUBLIC MARKET
FOR THE EXCHANGE NOTES....... We do not intend to apply for a listing of the
exchange notes on any securities exchange. We do
not know if an active public market for the
exchange notes will develop or, if developed, will
continue. If an active public market does not
develop or is not maintained, the market price and
liquidity of the exchange notes may be adversely
affected. We cannot make any assurances regarding
the liquidity of the market for the exchange
notes, the ability of holders to sell their
exchange notes or the price at which holders may
sell their exchange notes.
OPTIONAL REDEMPTION.......... We may redeem the exchange notes prior to their
maturity at a redemption price equal to the sum of
(a) the principal of the exchange notes being
redeemed plus accrued interest thereon to the
redemption date plus (b) a make-whole amount. See
"Description of Exchange Notes--Redemption."
MAKE-WHOLE AMOUNT............ The make-whole amount equals the excess, if any,
of
o the sum of the present values of the remaining
scheduled payments of the principal amount and
interest on the exchange notes, exclusive of
interest paid to the date of redemption, from the
redemption date to the stated maturity of the
exchange notes, computed by discounting these
payments, in each case, to the redemption date on
a semi-annual basis, assuming a 360-day year
consisting of twelve 30-day months, at the
then-current rate for treasury securities of an
equivalent maturity plus .35% over
o 100% of the principal amount of the exchange
notes to be redeemed. See "Description of Exchange
Notes--Redemption."
PRIORITY..................... The exchange notes will be unsecured obligations
and, so long as they are unsecured, will rank
equally with all of our other senior unsecured
indebtedness. The indenture under which we will
issue the exchange notes does not limit the amount
of debt we or any of our subsidiaries may incur.
Because we are a holding company that derives
substantially all of our income from our operating
8
<PAGE>
subsidiaries, the exchange notes will be
effectively subordinated to debt and preferred
stock at the subsidiary level. See "Description of
Exchange Notes-- General."
USE OF PROCEEDS.............. There will be no proceeds payable to us from the
issuance of the exchange notes pursuant to the
exchange offer.
FORM AND DENOMINATION........ We will issue the exchange notes in fully
registered form only in denominations of $1,000
and in integral multiples of $1,000. The exchange
notes will be represented by a registered global
certificate deposited with, or on behalf of, the
Depository Trust Company or its nominee. See
"Description of Exchange Notes-- Book-Entry,
Delivery and Form."
LIMITATION ON LIENS.......... We may not grant a lien on the capital shares of
Dayton Power and Light to secure our indebtedness
without similarly securing the exchange notes,
with certain exceptions. See "Description of
Exchange Notes--Limitation on Liens."
TENDERS, EXPIRATION DATE,
WITHDRAWAL................... The exchange offer will expire at 5:00 p.m. New
York City time on , 2000, unless it is
------
extended. If you decide to exchange your old notes
for exchange notes, you must acknowledge that you
are not engaging in, and do not intend to engage
in, a distribution of the exchange notes. If you
decide to tender your old notes pursuant to the
exchange offer, you may withdraw them at any time
prior to , 2000. If we decide for any reason
-----
not to accept any old notes for exchange, your old
notes will be returned to you at our expense
promptly after the expiration or termination of
the exchange offer.
FAILURE TO TENDER OLD NOTES.. If you do not tender your old notes or we do not
accept your tender because, among other things,
you invalidly tendered your old notes, you will
not be entitled to any further registration rights
under the registration rights agreement, except
under limited circumstances. However, your old
notes will remain outstanding and entitled to the
benefits of the indenture.
MATERIAL UNITED STATES TAX
CONSEQUENCES................. Your exchange of old notes for exchange notes
pursuant to the exchange offer should not result
in any income, gain or loss to you for United
States federal income tax purposes. See "Material
United States Federal Income Tax Considerations."
EXCHANGE AGENT............... Bank One Trust Company, National Association is
serving as exchange agent in connection with the
exchange offer. The address, telephone number and
facsimile number of the exchange agent are set
forth under "The Exchange Offer-- Exchange Agent."
TRUSTEE, REGISTRAR AND
PAYING AGENT................. Bank One Trust Company, National Association.
9
<PAGE>
SUMMARY OF CONSOLIDATED FINANCIAL INFORMATION
The following table includes a summary of our consolidated financial
data for the period indicated. The summary consolidated financial data for the
three months ended March 31, 2000 and 1999 was derived from our unaudited
consolidated financial statements. The summary consolidated financial data for
the years ended December 31, 1999, 1998, 1997, 1996 and 1995 was derived from
our audited consolidated financial statements. This summary is qualified in its
entirety by the more detailed information and financial statements, including
the notes to these financial statements, included in the documents incorporated
by reference in this prospectus. See "Where You Can Find More Information."
<TABLE>
<CAPTION>
THREE
MONTHS ENDED YEARS ENDED
MARCH 31, DECEMBER 31,
(MILLIONS OF DOLLARS,
EXCEPT FOR DIVIDENDS AND RATIOS)
2000 1999 1999 1998 1997 1996 1995
---- ---- ---- ---- ---- ---- ----
Financial data:
- --------------
<S> <C> <C> <C> <C> <C> <C> <C>
Operating Revenues............ $ 386.6 $ 383.5 $1,338.9 $1,352.2 $1,333.6 $1,318.2 $1,296.3
Operating Income.............. 114.5 126.3 402.9 382.0 355.6 357.1 353.7
Net Income.................... 50.1 72.5 204.2 189.1 181.4 172.9 164.7
Total Assets.................. $4,444.5 $3,872.0 $4,340.4 $3,855.9 $3,585.2 $3,418.7 $3,322.8
Ratio of Earnings to Fixed Charges:
Calculated in Accordance with
SEC Rules (times)............. 3.45 4.23 4.00 4.33 4.32 4.10 3.82
Cash Dividends Declared per
Common Share.............. $.235 $.235 $0.94 $0.94 $0.91 $0.87 $0.83
Earnings Per Common Share..... $.34 $.47 $1.35 $1.24 $1.20 $1.15 $1.09
</TABLE>
<TABLE>
<CAPTION>
AS OF MARCH 31, AS OF DECEMBER 31,
-------------- ------------------
2000 1999 1998 1997 1996 1995
---- ---- ---- ---- ---- ----
Capitalization:
- --------------
<S> <C> <C> <C> <C> <C> <C>
Long-Term Debt (excluding current portion)... $1,756.0 $1,336.6 $1,065.9 $971.0 $1,014.3 1,081.5
Preferred Stock:
Not Subject to Mandatory Redemption.......... 22.9 22.9 22.9 22.9 22.9 22.9
Subject to Mandatory Redemption.............. 0.1 --- --- --- --- ---
Company Obligated Mandatorily Redeemable Trust
Preferred Securities of Subsidiary Holding Solely
Parent Debentures............................ 504.2 --- --- --- --- ---
Common Shareholders' Equity.................. 912.4 1,451.6 1,383.7 1,286.0 1,200.5 1,164.8
Total Capitalization*........................ 3,195.6 2,811.1 2,472.5 2,279.8 2,237.7 2,269.2
Total Capitalization and Liabilities......... $4,444.5 $4,340.4 $3,855.9 $3,585.2 $3,418.7 $3,322.8
</TABLE>
* Includes Long-Term Debt & Trust Preferred
Securities.
10
<PAGE>
USE OF PROCEEDS
We will not receive any proceeds from the issuance of the exchange
notes in exchange for the old notes tendered pursuant to the exchange offer. In
consideration for the issuance of the exchange notes as contemplated by this
prospectus, we will receive in exchange an identical principal amount of
outstanding notes, which have terms substantially identical to the exchange
notes. We will retire and cancel all of the outstanding notes surrendered in
exchange for the exchange notes, and such outstanding notes may note be
reissued.
THE EXCHANGE OFFER
PURPOSE AND EFFECT OF THE EXCHANGE OFFER; TERMS OF THE EXCHANGE OFFER
We issued and sold the old notes on March 1, 2000 to the initial
purchaser in a private transaction not subject to the registration requirements
of the Securities Act. The initial purchaser then offered and sold the old notes
only
o to "Qualified Institutional Buyers" (as defined in Rule 144A
under the Securities Act) in reliance on the exemption from the
registration requirements of the Securities Act provided by Rule
144A,
o to a limited number of institutional "Accredited Investors" (as
defined in Rule 501(a)(1), (2), (3) or (7) under the Securities
Act) that, prior to their purchase of old notes, executed and
delivered to the initial purchaser a letter containing certain
representations and agreements and
o outside the United States to non-U.S. persons in offshore
transactions (as defined in Regulation S under the Securities
Act) in compliance with Regulation S under the Securities Act.
In connection with the sale of the old notes, we entered into a
registration rights agreement with the initial purchaser which obligated us to:
o file a registration statement with the Commission for an offer to
exchange the old notes for the exchange notes;
o use our reasonable best efforts to cause the registration
statement to be declared effective within 180 days after the
issuance of the old notes;
o promptly after the registration statement has been declared
effective, offer exchange notes in exchange for surrender of the
old notes; and
o use our reasonable best efforts to keep the exchange offer open
for at least 30 days after the date notice of the exchange offer
has been mailed to the holders of the old notes.
The exchange notes have terms identical to the old notes, except that the
exchange notes do not have transfer restrictions or any terms relating to
registration rights and do not provide for the liquidated damages set forth in
the registration rights agreement payable by us in the event that we are unable
to fulfill certain of our obligations under the registration rights agreement. A
holder that tenders an old note pursuant to the exchange offer and does not
withdraw it will receive an exchange note in the same principal amount as the
tendered old note. Interest on each exchange note will accrue from the last
interest payment on the old note tendered. If no interest has been paid on the
old notes, interest will accrue from the date of issuance of the old notes.
PROCEDURES FOR TENDERING OLD NOTES
The tender to us of old notes by a holder as set forth below and the
acceptance of the old notes by us will constitute a binding agreement between
the tendering holder and us upon the terms and subject to the conditions set
forth in this prospectus and in the accompanying letter of transmittal. Except
as set forth below, a holder who wishes to tender old notes for exchange
11
<PAGE>
pursuant to the exchange offer must transmit a properly completed and duly
executed letter of transmittal, including all other documents required by such
letter of transmittal, to Bank One Trust Company, National Association, who is
acting as our exchange agent, at the address set forth below under "Exchange
Agent" on or prior to the expiration date. In addition:
o certificates for such old notes must be received by the exchange
agent along with the letter of transmittal; or
o a timely confirmation of a book-entry transfer of these old
notes, if this procedure is available, into the exchange agent's
account at DTC pursuant to the procedure for book-entry transfer
described below, must be received by the exchange agent prior to
the expiration date; or
o the holder must comply with the guaranteed delivery procedures
described below.
The method of delivery of old notes, letters of transmittal and all
other required documents is at the election and risk of the holders. If such
delivery is by mail, we recommend that you use registered mail, properly
insured, with return receipt requested. In all cases, sufficient time should be
allowed to assure timely delivery. No letters of transmittal or old notes should
be sent to DPL.
Signatures on a letter of transmittal or a notice of withdrawal, as
the case may be, must be guaranteed unless the old notes surrendered for
exchange pursuant thereto are tendered:
o by a registered holder of the old notes who has not completed the
box entitled "Special Issuance Instructions" or "Special Delivery
Instructions" on the letter of transmittal; or
o for the account of an eligible institution.
If signatures on a letter of transmittal or a notice of withdrawal, as
the case may be, are required to be guaranteed, such guarantees must be by an
eligible institution, which is a firm that is a member of a registered national
securities exchange or a member of the National Association of Securities
Dealers, Inc., or a commercial bank or trust company having an office or
correspondent in the United States. If old notes are registered in the name of a
person other than the person signing the letter of transmittal, the old notes
surrendered for exchange must be endorsed by, or be accompanied by a written
instrument or instruments of transfer or exchange, in satisfactory form as
determined by us in our sole discretion, duly executed by the registered holder
with the signature thereon guaranteed by an eligible institution.
All questions as to the validity, form, eligibility (including time of
receipt) and acceptance of old notes tendered for exchange will be determined by
us in our sole discretion, and our determination will be final and binding on
all parties. We reserve the absolute right:
o to reject any and all tenders of any particular old notes not
properly tendered or to not accept any particular old notes which
acceptance might, in our judgment or the judgment of our counsel,
be unlawful; and
o to waive any defects or irregularities or conditions of the
exchange offer as to any particular old notes either before or
after the expiration date (including the right to waive the
ineligibility of any holder who seeks to tender old notes in the
exchange offer).
Unless waived, any defects or irregularities in connection with the
tender of old notes for exchange must be cured within such reasonable period of
time as we determine. Neither we, the exchange agent nor any other person will
be under any duty to give notification of any defect or irregularity with
respect to any tender of old notes for exchange, nor will we or any of them
incur any liability for failure to give such notification.
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TERMS OF THE EXCHANGE OFFER; PERIOD FOR TENDERING OLD NOTES
Upon the terms and subject to the conditions set forth in this
prospectus and in the accompanying letter of transmittal, we will:
o accept for exchange old notes, which are properly tendered on or
prior to the expiration date and not withdrawn as permitted
below; and
o use our reasonable best efforts to keep the exchange offer open
for not less than 30 days, or longer if required by applicable
law, after the date notice of the exchange offer is mailed to the
holders of the old notes.
The term "expiration date" means 5:00 p.m., New York City time, on
, 2000; provided, however, that if we, in our sole discretion, have
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extended the period of time for which the exchange offer is open, the term
"expiration date" means the latest time and date to which the exchange offer is
extended.
As of the date of this prospectus, $425,000,000 in aggregate principal
amount of the old notes were outstanding. The exchange offer is not conditioned
upon any minimum principal amount of old notes being tendered. This prospectus,
together with the letter of transmittal, is first being sent on or about the
date set forth on the cover page to all holders of old notes at the addresses
set forth in the security register maintained by the trustee.
We expressly reserve the right:
o at any time or from time to time, to extend the period of time
during which the exchange offer is open, and thereby delay
acceptance of any old notes; and
o to amend or terminate the exchange offer, and not to accept for
exchange any old notes not previously accepted for exchange, upon
the occurrence of any of the conditions of the exchange offer
specified below under "Certain Conditions to the Exchange Offer."
We will give written notice of any extension, amendment,
non-acceptance or termination to the holders of the old notes as promptly as
practicable, such notice in the case of any extension to be issued by means of a
press release or other public announcement no later than 5:00 p.m., New York
City time, on the previous expiration date. Without limiting the manner in which
we may choose to make any public announcement and subject to applicable law, we
shall have no obligation to publish, advertise or otherwise communicate any such
public announcement other than by issuing a release to the Dow Jones News
Service.
Old notes that are not tendered for exchange or are tendered but not
accepted in connection with the exchange offer will remain outstanding and be
entitled to the benefits of the indenture, but will not be entitled to any
further registration rights under the registration rights agreement, except
under limited circumstances. We intend to conduct the exchange offer in
accordance with the applicable requirements of the Exchange Act and the relevant
rules and regulations of the SEC.
If the letter of transmittal is signed by a person or persons other
than the registered holder or holders of old notes, such old notes must be
endorsed or accompanied by appropriate powers of attorney, in either case signed
exactly as the name or names of the registered holder or holders that appear on
the old notes.
By executing, or otherwise becoming bound by, a letter of transmittal,
each holder of the old notes, other than certain specified holders, will
represent that:
o it is not our affiliate;
o any exchange notes to be received by it were acquired in the
ordinary course of its business; and
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o it has no arrangement with any person to participate in the
distribution, within the meaning of the Securities Act, of the
exchange notes.
If the tendering holder is a broker-dealer that will receive exchange
notes for its own account in exchange for the old notes that were acquired as a
result of market-making activities or other trading activities, it will be
required to acknowledge that it will deliver a prospectus in connection with any
resale of such exchange notes. See "--Resale of the Exchange Notes."
ACCEPTANCE OF OLD NOTES FOR EXCHANGE; DELIVERY OF EXCHANGE NOTES
Upon satisfaction or waiver of all of the conditions to the exchange
offer, we will accept, promptly after the expiration date, all old notes
properly tendered and will issue exchange notes promptly after acceptance of the
old notes. See "Certain Conditions to the Exchange Offer" below. For purposes of
the exchange offer, we will be deemed to have accepted properly tendered old
notes for exchange if and when we have given oral (confirmed in writing) or
written notice thereof to the exchange agent.
In all cases, issuance of exchange notes for the old notes that are
accepted for exchange pursuant to the exchange offer will be made only after
timely receipt by the exchange agent of certificates for such old notes or a
timely book-entry confirmation of such old notes into the exchange agent's
account at DTC pursuant to the book-entry transfer procedures described below, a
properly completed and duly executed letter of transmittal and all other
required documents. If any tendered old notes are not accepted for any reason
set forth in the terms and conditions of the exchange offer or if certificates
representing old notes are submitted for a greater principal amount than the
holder desires to exchange, such unaccepted or non-exchanged old notes will be
returned without expense to the tendering holder thereof (or, in the case of old
notes tendered by book-entry transfer into the exchange agent's account at DTC
pursuant to the book-entry transfer procedures described below, such
non-exchanged old notes will be credited to an account maintained with DTC) as
promptly as practicable after the expiration or termination of the exchange
offer.
BOOK-ENTRY TRANSFER
Promptly after the date of this prospectus, the exchange agent will
make a request to establish an account with respect to the old notes at DTC for
purposes of the exchange offer. Any financial institution that is a participant
in DTC's systems may make book-entry delivery of old notes by causing DTC to
transfer such old notes into the exchange agent's account in accordance with
DTC's Automated Tender Offer Program ("ATOP"), procedures for transfer. However,
the exchange for the old notes so tendered will only be made after timely
confirmation of such book-entry transfer of old notes into the exchange agent's
account, and timely receipt by the exchange agent of an agent's message and any
other documents required by the letter of transmittal. The term "agent's
message" means a message, transmitted by DTC and received by the exchange agent
and forming a part of a book-entry confirmation, which states that DTC has
received an express acknowledgment from a participant tendering old notes that
are the subject of such book-entry confirmation, that such participant has
received and agrees to be bound by the terms of the letter of transmittal, and
that we may enforce such agreement against such participant.
Although delivery of old notes may be effected through book-entry
transfer into the exchange agent's account at DTC, the letter of transmittal (or
facsimile thereof), properly completed and duly executed, with any required
signature guarantees and any other required documents, must in any case be
delivered to and received by the exchange agent at its address set forth under
"--Exchange Agent" on or prior to the expiration date, or the guaranteed
delivery procedure set forth below must be complied with.
Delivery of documents to DTC in accordance with its procedures does
not constitute delivery to the exchange agent.
GUARANTEED DELIVERY PROCEDURES
If a registered holder of the old notes desires to tender such old
notes and (1) the old notes are not immediately available, (2) time will not
permit such holder's old notes or other required documents to reach the exchange
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agent before the expiration date of the exchange offer, or (3) the procedure for
book-entry transfer cannot be completed on a timely basis, a tender may be
effected if:
o the tender is made through an eligible institution;
o prior to the expiration date of the exchange offer, the exchange
agent receives from such eligible institution a properly
completed and duly executed letter of transmittal (or a facsimile
letter of transmittal) and notice of guaranteed delivery,
substantially in the form provided by us (by telegram, telex,
facsimile transmission, mail or hand delivery),
o setting forth the name and address of the holder of old notes and
the amount of old notes tendered, stating that the tender is
being made thereby and guaranteeing that within five New York
Stock Exchange trading days after the date of execution of the
notice of guaranteed delivery, the certificates of all physically
tendered old notes, in proper form for transfer, or a book-entry
confirmation, as the case may be, and any other documents
required by the letter of transmittal will be deposited by the
eligible institution with the exchange agent; and
o the certificates for all physically tendered old notes, in proper
form for transfer, or a book-entry confirmation, as the case may
be, and all other documents required by the letter of
transmittal, are received by the exchange agent within five New
York Stock Exchange trading days after the date of execution of
the notice of guaranteed delivery.
WITHDRAWAL RIGHTS
Tenders of old notes may be withdrawn at any time prior to the
expiration date.
For a withdrawal to be effective, a written notice of withdrawal must
be received by the exchange agent at one of the addresses set forth below under
"Exchange Agent." Any such notice of withdrawal must specify:
o the name of the person having tendered the old notes to be
withdrawn;
o the old notes to be withdrawn (including the principal amount of
such old notes); and
o where certificates for old notes have been transmitted, the name
in which such old notes are registered, if different from that of
the withdrawing holder.
If certificates for old notes have been delivered or otherwise
identified to the exchange agent, then, prior to the release of such
certificates, the withdrawing holder must also submit the serial numbers of the
particular certificates to be withdrawn and a signed notice of withdrawal with
signatures guaranteed by an eligible institution unless such holder is an
eligible institution. If old notes have been tendered pursuant to the procedure
for book-entry transfer described above, any notice of withdrawal must specify
the name and number of the account at DTC to be credited with the withdrawn old
notes and otherwise comply with the procedures of such facility. All questions
as to the validity, form and eligibility (including time of receipt) of such
notices will be determined by us in our sole discretion, and our determination
will be final and binding on all parties.
Any old notes so withdrawn will be deemed not to have been validly
tendered for exchange for purposes of the exchange offer. Any old notes which
have been tendered for exchange but which are not exchanged for any reason will
be returned to its holder without cost to such holder (or, in the case of old
notes tendered by book-entry transfer into the exchange agent's account at DTC
pursuant to the book-entry transfer procedures described above, such old notes
will be credited to an account maintained with DTC for the old notes) as soon as
practicable after withdrawal, rejection of tender or termination of the exchange
offer. Properly withdrawn old notes may be re-entered by following one of the
procedures described under "Procedures for Tendering Old Notes" above at any
time on or prior to the expiration date.
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CERTAIN CONDITIONS TO THE EXCHANGE OFFER
Notwithstanding any other provisions of the exchange offer, we are not
required to accept for exchange, or to issue exchange notes in exchange for old
notes, and we may terminate or amend the exchange offer, if at any time before
the acceptance of such old notes for exchange or the exchange of the exchange
notes for such old notes, such acceptance or issuance would violate applicable
law or any interpretation of the SEC's staff.
The condition in the paragraph immediately above is for our sole
benefit and may be asserted by us regardless of the circumstances giving rise to
such condition. Our failure at any time to exercise the foregoing rights is not
to be deemed a waiver of any such right and each such right shall be deemed an
ongoing right which may be asserted at any time and from time to time.
In addition, we will not accept for exchange any old notes tendered,
and no exchange notes will be issued in exchange for any such old notes, if at
such time any stop order is threatened or in effect with respect to the
registration statement of which this prospectus constitutes a part or the
qualification of the indenture under the Trust Indenture Act.
EXCHANGE AGENT
Bank One Trust Company, National Association has been appointed as the
exchange agent for the exchange offer. All executed letters of transmittal
should be directed to the exchange agent at one of the addresses set forth
below. Questions and requests for assistance, requests for additional copies of
this prospectus or of the letter of transmittal and requests for notices of
guaranteed delivery should be directed to the exchange agent, addressed as
follows:
Deliver To:
Bank One Trust Company, National Association, Exchange Agent
By Registered or Certified Mail:
1 North State Street
9th Floor
Chicago, IL 60602
Attention: Exchanges
By Facsimile:
312-407-8853
To Confirm by Telephone or for Information:
(800) 524-9472
Delivery to an address other than as set forth above or transmission
of instructions via facsimile other than as set forth above does not constitute
a valid delivery.
FEES AND EXPENSES
The principal solicitation is being made by mail; however, additional
solicitation may be made by telegraph, telecopy, telephone or in person by our
officers, regular employees, affiliates and agents. We will not pay any
additional compensation to any such officers and employees who engage in
soliciting tenders. We will not make any payment to brokers, dealers, or others
soliciting acceptances of the exchange offer. However, we will pay the exchange
agent reasonable and customary fees for its services and will reimburse it for
its reasonable out-of-pocket expenses in connection therewith.
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The estimated cash expenses to be incurred in connection with the
exchange offer will be paid by us and are estimated in the aggregate to be
$200,000.
ACCOUNTING TREATMENT
The exchange notes will be recorded at the same carrying value as the
old notes. Accordingly, DPL will not recognize any gain or loss for accounting
purposes. DPL intends to amortize the expenses of the exchange offer and
issuance of the old notes over the term of the exchange notes.
RESALE OF THE EXCHANGE NOTES
Based on an interpretation by the SEC's staff contained in several
no-action letters issued to third parties, we believe that the exchange notes
issued pursuant to the exchange offer may be offered for resale, resold and
otherwise transferred after the exchange offer by any holder of exchange notes
(other than a holder which is our "affiliate" within the meaning of Rule 405
under the Securities Act) without compliance with the registration and
prospectus delivery provisions of the Securities Act, if such holder:
o acquires the exchange notes in the ordinary course of his or her
business; and
o does not intend to participate, and has no arrangement with any
person to participate, in a distribution of the exchange notes.
Any holder of the old notes who tenders in the exchange offer with the
intention to participate, or for the purpose of participating, in a distribution
of the exchange notes may not rely on the position of the staff of the
Commission enunciated in the "Exxon Capital Holdings Corporation" or similar
no-action letters (the Exxon Capital Letters) but rather must comply with the
registration and prospectus delivery requirements of the Securities Act in
connection with any resale transaction. In addition, any such resale transaction
should be covered by an effective registration statement containing the selling
security holders information required by Item 507 of Regulation S-K of the
Securities Act. Each broker-dealer that receives exchange notes for its own
account in exchange for the old notes, where such old notes were acquired by
such broker-dealer as a result of market-making activities or other trading
activities, may be a statutory underwriter and must acknowledge that it will
deliver a prospectus meeting the requirements of the Securities Act in
connection with any resale of such exchange notes.
By tendering in the exchange offer, each holder will represent to us
(which representation may be contained in the Letter of Transmittal) to the
effect that:
o it is not our affiliate;
o it is not engaged in, and does not intend to engage in, and has
no arrangement or understanding with any person to participate
in, a distribution of the exchange notes to be issued in the
exchange offer; and
o it is acquiring the exchange notes in its ordinary course of
business.
Each holder will acknowledge and agree that any broker-dealer and any
such holder using the exchange Offer to participate in a distribution of the
exchange notes acquired in the exchange offer:
o could not under Commission policy as in effect on the date of the
registration rights agreement rely on the position of the
Commission enunciated in the exxon capital letters;
o must comply with the registration and prospectus delivery
requirements of the Securities Act in connection with a secondary
resale transaction and that such secondary resale transaction
must be covered by an effective registration statement containing
the selling security holder information required by Item 507 of
Regulation S-K if the resales are of exchange notes obtained by
such Holder in exchange for old notes acquired by such Holder
directly from us or our affiliate.
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DESCRIPTION OF EXCHANGE NOTES
GENERAL
The old notes were, and the exchange notes will be, issued pursuant to
an indenture dated as of March 1, 2000, between us and Bank One Trust Company,
National Association and an officer's certificate establishing the old notes and
the exchange notes.
The following description of the terms of the exchange notes does not
purport to be complete and is qualified in its entirety by reference to (a) the
indenture and (b) the officer's certificate. Whenever particular provisions or
defined terms in the indenture and officer's certificate are referred to under
this "Description of the Exchange Notes," such provisions or defined terms are
incorporated in this prospectus by reference.
The indenture provides for our issuance of debt securities (including
the exchange notes), notes or other unsecured evidences of indebtedness in an
unlimited amount from time to time. The exchange notes will be our unsecured
obligations which, so long as they are unsecured, will rank equally in right of
payment of principal and interest with all of our other existing and future
senior unsecured obligations. The indenture provides that we may not grant a
lien on the capital shares of Dayton Power and Light to secure our debt
obligations without similarly securing the exchange notes, with certain
exceptions. However, the indenture does not limit the aggregate amount of
indebtedness we or our subsidiaries may issue. We are a holding company that
derives substantially all of our income from our operating subsidiaries. The
exchange notes therefore are effectively subordinated to debt and preferred
shares at the subsidiary level. Our financial statements included in the
incorporated documents show the aggregate amount of subsidiary debt and
preferred shares and our other debt as of the date of those statements.
Purchases of notes or beneficial interests therein may be made in
minimum denominations of $1,000 and in integral multiples of $1,000.
PRINCIPAL AMOUNT, INTEREST AND MATURITY
We will issue the exchange notes as a series of debt securities under
the indenture. The officer's certificate with respect to the exchange notes
limits the aggregate principal amount of the exchange notes to $425,000,000. The
exchange notes will mature on March 1, 2007. The exchange notes will bear
interest from the later of the date of issuance of the old notes or the date of
the last interest payment on the old notes, at the rate of 8 1/4% per annum,
payable semi-annually in arrears on March 1 and September 1 in each year,
commencing September 1, 2000. Interest will be paid to the persons in whose
names exchange notes are registered at the close of business on February 15 or
August 15 next preceding each semi-annual interest payment date. The amount of
interest payable for any period is computed on the basis of a 360-day year of
twelve 30-day months and for any period shorter than a full month, on the basis
of the actual number of days elapsed in such period. In the event that any date
on which interest is payable on the exchange notes is not a business day, the
payment of the interest payable on such date will be made on the next succeeding
day which is a business day (and without any interest or other payment in
respect of any such delay), with the same force and effect as if made on the
date the payment was originally payable.
Principal and interest payments on the exchange notes, other than
certificated notes, will be made by DPL to Cede & Co. (as nominee of DTC) so
long as Cede & Co. is the registered owner. Disbursement of such payments to the
DTC participants is the responsibility of DTC, and disbursement of such payments
to the beneficial owners of the exchange notes is the responsibility of DTC
direct and indirect participants, all as described below under "Book-Entry,
Delivery and Form."
REDEMPTION
The exchange notes may be redeemed prior to their maturity at any time
at our option, in whole or from time to time in part, at a redemption price
equal to the sum of:
o the principal amount of the exchange notes (or portion thereof)
being redeemed plus accrued interest thereon to the redemption
date; and
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o the make-whole amount (as defined below), if any, with respect to
the exchange notes (or portion thereof) being redeemed.
As used in this prospectus:
"Make-whole amount" means the excess, if any, of
o the sum, as determined by a quotation agent (as described below),
of the present values of the principal amount of such notes,
together with scheduled payments of interest (exclusive of
interest to the date of redemption) from the redemption date to
the stated maturity of the notes, in each case discounted to the
redemption date on a semi-annual basis (assuming a 360-day year
consisting of twelve 30-day months) at the adjusted treasury rate
(as described below) over
o 100% of the principal amount of the notes to be redeemed.
"Adjusted treasury rate" means, with respect to any redemption date,
the rate per annum equal to the semi-annual equivalent yield to maturity of the
comparable treasury issue (as described below), calculated using a price for the
comparable treasury issue (expressed as a percentage of its principal amount)
equal to the comparable treasury price (as defined herein) for such redemption
date, calculated on the third business day preceding the redemption date, plus
in each case .35% (35 basis points).
"Comparable treasury issue" means the United States Treasury security
selected by the quotation agent (as described below) as having a maturity
comparable to the remaining term from the redemption date to the stated maturity
of the notes that would be utilized, at the time of selection and in accordance
with customary financial practice, in pricing new issues of corporate debt
securities of comparable maturity to the remaining term of the senior notes.
"Quotation agent" means the reference treasury broker/dealer that we
select.
"Reference treasury broker/dealer" means a primary U.S. Government
securities broker/dealer selected by DPL.
"Comparable treasury price" means, with respect to any redemption date,
o the average of the bid and asked prices for the comparable
treasury issue (expressed in each case as a percentage of its
principal amount) on the third business day preceding the
redemption date, as set forth in the daily statistical release
(or any successor release) published by the Federal Reserve Bank
of New York and designated "Composite 3:30 p.m. Quotations for
U.S. Government Securities" or
o if the release (or any successor release) is not published or
does not contain such prices on that business day, the average of
three (or such lesser number as is obtained by the trustee)
reference treasury broker/dealer quotations for such redemption
date.
"Reference treasury broker/dealer quotations" means, with respect to
each reference treasury broker/dealer and any redemption date, the average, as
determined by the trustee, of the bid and asked prices for the comparable
treasury issue (expressed in each case as a percentage of its principal amount)
quoted in writing to the trustee by the reference treasury broker/dealer at 5:00
p.m., New York City time, on the third business day preceding the redemption
date.
Notice of any redemption will be mailed at least 30 days but no more
than 60 days before the redemption date to each holder of exchange notes to be
redeemed. If, at the time notice of redemption is given, the redemption moneys
are not held by the trustee, the redemption may be made subject to their receipt
on or before the date fixed for redemption and such notice shall be of no effect
unless such moneys are so received. Upon payment of the redemption price, on and
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after the redemption date interest will cease to accrue on the exchange notes or
portions thereof called for redemption. The exchange notes are not subject to
any sinking fund.
PAYMENT AND PAYING AGENTS
Interest on each exchange note on each interest payment date will be
paid to the person in whose name such exchange note is registered as of the
close of business on the regular record date relating to such interest payment
date. However, interest payable at maturity (whether at stated maturity, upon
redemption or otherwise) will be paid to the person to whom principal is paid.
If there has been a default in the payment of interest on any exchange note, the
defaulted interest may be payable to the person in whose name such note is
registered as of the close of business on a date selected by the trustee which
is not more than 15 days and not less than 10 days prior to the date we propose
for payment of such defaulted interest or in any other lawful manner not
inconsistent with the requirements of any securities exchange on which such
exchange note may be listed, if the trustee deems such manner of payment
practicable.
The principal of and premium, if any, and interest on, the exchange
notes at maturity will be payable upon presentation of the exchange notes at the
designated corporate trust operations office of Bank One Trust Company, National
Association in the City of New York, as our paying agent. We may change the
place of payment on the exchange notes, may appoint one or more additional
paying agents (including us) and may remove any paying agent, all at our
discretion.
REGISTRATION AND TRANSFER
The transfer of exchange notes may be registered, and the exchange
notes may be exchanged for other exchange notes, of authorized denominations and
of like tenor and aggregate principal amount, at the corporate trust office of
Bank One Trust Company, National Association in the city of Chicago, as security
registrar for the exchange notes. We may change the place for registration of
transfer and exchange of the exchange notes and may designate one or more
additional places for such registration and exchange, all at our discretion. No
service charge will be made for any transfer or exchange of the exchange notes,
but we may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any registration of
transfer or exchange of the exchange notes. We will not be required to execute
or to provide for the registration of transfer of, or the exchange of, any
exchange notes during a period of 15 days prior to giving any notice of
redemption or any exchange notes selected for redemption in whole or in part,
except the unredeemed portion of any notes being redeemed in part.
DEFEASANCE
The principal amount of any series of debt securities issued under the
indenture will be deemed to have been paid for purposes of the indenture and our
entire indebtedness in respect thereof will be deemed to have been satisfied and
discharged upon fulfillment of certain conditions if there shall have been
irrevocably deposited with the trustee or any paying agent, in trust:
o money in an amount which will be sufficient; or
o in the case of a deposit made prior to the maturity of the debt
securities, eligible obligations (as described below), the
principal of and the interest on which when due, without any
regard to reinvestment thereof, will provide moneys which,
together with the money, if any, deposited with or held by the
trustee, will be sufficient; or
o a combination of the foregoing which will be sufficient, to pay
when due the principal of and premium, if any, and interest, if
any, due and to become due on the debt securities of such series
that are outstanding. For this purpose, "eligible obligations"
include direct obligations of, or obligations unconditionally
guaranteed by, the United States entitled to the benefit of the
full faith and credit thereof and certificates, depositary
receipts or other instruments which evidence a direct ownership
interest in such obligations or in any specific interest or
principal payments due in respect thereof and which do not
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contain provisions permitting the redemption or other prepayment
thereof at the option of the issuer thereof.
LIMITATION ON LIENS
The indenture provides that, except as otherwise specified with
respect to a particular series of debt securities, so long as any debt
securities of any series are outstanding, we will not pledge, mortgage,
hypothecate or grant a security interest in, or permit any mortgage, pledge,
security interest or other lien upon, any capital shares of Dayton Power and
Light that we now or hereafter own to secure any indebtedness (as described
below), without making effective provision so that the outstanding debt
securities shall (so long as the other indebtedness shall be so secured) be
equally and ratably secured with any and all other indebtedness and any other
indebtedness similarly entitled to be equally and ratably secured. This
restriction does not apply to, or prevent the creation or existence of,
o any mortgage, pledge, security interest, lien or encumbrance upon
any such capital shares created at the time of our acquisition of
those capital shares or within one year after that time to secure
all or a portion of the purchase price for those capital shares;
o any mortgage, pledge, security interest, lien or encumbrance by
us upon any of those capital shares existing at the time of our
acquisition of those shares (whether or not we assume the
obligations secured),or
o any extension, renewal or refunding of any mortgage, pledge,
security interest, lien or encumbrance described in either of the
previous two bullet points on capital shares of Dayton Power and
Light (or substantially the same capital shares) or any portion
thereof.
o any judgment, levy, execution, attachment or other similar lien
arising in connection with court proceedings, provided that
either
(a) the execution or enforcement of each such lien is
effectively stayed within 30 days after entry of the
corresponding judgment (or the corresponding judgment has
been discharged within such 30 day period) and the claims
secured thereby are being contested in good faith by
appropriate proceedings timely commenced and diligently
prosecuted;
(b) the payment of each lien is covered in full by insurance and
the insurance company has not denied or contested coverage
on it; or
(c) so long as each lien is adequately bonded, any appropriate
legal proceedings that may have been duly initiated for the
review of the corresponding judgment, decree or order shall
not have been fully terminated or the period within which
such proceedings may be initiated shall not have expired.
For purposes of the restriction described in the preceding bullet
points:
"Indebtedness" means
o all indebtedness, whether or not represented by bonds,
debentures, notes or other securities, created or assumed by us
for the repayment of money borrowed;
o all indebtedness for money borrowed secured by a lien upon
property we own and upon which indebtedness for money we borrowed
customarily pays interest, even though we have not assumed or
become liable for the payment of such indebtedness for money
borrowed; and
o all indebtedness of others for money borrowed which we guaranteed
as to payment of principal or in effect guaranteed through a
contingent agreement to purchase that indebtedness, but excluding
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from this definition any of our other contingent obligations in
respect of indebtedness for money borrowed or other obligations
incurred by others.
Notwithstanding the foregoing, except as otherwise specified in the
officer's certificate with respect to a particular series of debt securities, we
may, without securing the debt securities, pledge, mortgage, hypothecate or
grant a security interest in, or permit any mortgage, pledge, security interest
or other lien (in addition to liens expressly permitted as described in the
second preceding paragraph) upon, capital shares of Dayton Power and Light that
we now or hereafter own to secure any indebtedness (which would otherwise be
subject to the foregoing restriction) in an aggregate amount which, together
with all other such indebtedness, does not exceed 10% of consolidated
capitalization. For this purpose, "consolidated capitalization" means the sum
obtained by adding
o consolidated shareholders' equity;
o consolidated indebtedness for money borrowed (exclusive of any
consolidated indebtedness which is due and payable within one
year of the date such sum is determined); and, without
duplication,
o any preference or preferred shares that we or any of our
consolidated subsidiaries issue which is subject to mandatory
redemption or sinking fund provisions.
The term "consolidated shareholders' equity" (as used above) means the
total assets (as described below) of us and our consolidated subsidiaries less
all liabilities of us and our consolidated subsidiaries. As used in the
foregoing definition, "liabilities" means all obligations which would, in
accordance with generally accepted accounting principles in the United States,
be classified on a balance sheet as liabilities, including without limitation,
o indebtedness secured by property of our's or any of our
consolidated subsidiaries whether or not we or the consolidated
subsidiary is liable for the payment thereof unless, in the case
that we or the consolidated subsidiary is not so liable, such
property has not been included among our assets or the
consolidated subsidiary on such balance sheet,
o deferred liabilities and
o indebtedness of us or any of our consolidated subsidiaries that
is expressly subordinated in right and priority of payment to
other liabilities of us or the consolidated subsidiary.
As used in this definition, "liabilities" includes preference or
preferred stock of us or any consolidated subsidiary only to the extent of any
preference or preferred stock that is subject to mandatory redemption or sinking
fund provisions.
The term "consolidated subsidiary" (as used above) means at any date
any subsidiary whose financial statements would be consolidated with our
consolidated financial statements as of that date under generally accepted
accounting principles. The "assets" of any person means the whole or any part of
its business, property, assets, cash and receivables. The term "consolidated
indebtedness" means total indebtedness as shown on the consolidated balance
sheet of us and our consolidated subsidiaries.
As of December 31, 1999, our consolidated capitalization was
approximately $2.8 billion.
CONSOLIDATION, MERGER, AND SALE OF ASSETS
Under the terms of the indenture, we may not consolidate with or merge
into any other entity or convey, transfer or lease our properties and assets
substantially as an entirety to any other entity, unless
o the corporation formed by such consolidation or into which we are
merged or the entity which acquires by conveyance or transfer, or
which leases, our property and assets substantially as an
entirety will be an entity organized and validly existing under
the laws of any domestic jurisdiction and such entity expressly
assumes our obligations on all debt securities and under the
indenture;
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o immediately after giving effect to the transaction, no event of
default, and no event which, after notice or lapse of time or
both, would become an event of default, will have occurred and be
continuing; and
o We deliver to the trustee an officer's certificate and an opinion
of counsel as provided in the indenture.
EVENTS OF DEFAULT
Each of the following will constitute an event of default under the
indenture with respect to the debt securities of any series:
o failure to pay any interest on the debt securities of such series
within 30 days after the same becomes due and payable;
o failure to pay principal or premium, if any, on the debt
securities of such series when due and payable;
o failure to pay any sinking fund installment when and as due by
the terms of the debt securities of such series;
o failure to perform, or breach of, any of our other covenants or
warranties in the indenture (other than a covenant or warranty in
the indenture solely for the benefit of one or more series of
debt securities other than such series) for 60 days after written
notice to us by the trustee, or to us and the trustee by the
holders of at least 33% in principal amount of the debt
securities of such series outstanding under the indenture and;
o certain events in bankruptcy, insolvency or reorganization of
DPL.
Additional events of default for a series of debt securities may be
specified at the time such series is created. An event of default with respect
to the debt securities of a particular series may not necessarily constitute an
event of default with respect to debt securities of any other series issued
under the indenture.
REMEDIES
If an event of default due to our default in payment of principal of
or interest on any series of debt securities or due to our default in the
performance or breach of any other covenant or warranty applicable to the debt
securities of that series but not applicable to all series occurs and is
continuing, then either the trustee or the holders of at least 33% in principal
amount of the outstanding debt securities of that series may declare the
principal of all of the debt securities of such series and interest accrued
thereon to be due and payable immediately. If an event of default due to the
default in the performance of any other covenants or agreements in the indenture
applicable to all outstanding debt securities, either the trustee or the holders
of not less than 33% in principal amount of all outstanding debt securities,
considered as one class, and not the holders of the debt securities of any one
of such series, may make such declaration of acceleration. In certain events of
bankruptcy, insolvency, reorganization, assignment or receivership of us, the
principal and interest on all debt securities shall automatically become due and
payable.
At any time after the declaration of acceleration with respect to the
debt securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained, the event or events of default
giving rise to such declaration of acceleration will, without further act, be
deemed to have been waived, and such declaration and its consequences will,
without further act, be deemed to have been rescinded and annulled, if:
o we have paid or deposited with the trustee a sum sufficient to
pay:
(1) all overdue interest on all debt securities of the series;
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(2) the principal of and premium, if any, on any debt securities
of the series which have become due otherwise than by the declaration of
acceleration and interest thereon at the rate or rates prescribed therefor in
the debt securities;
(3) interest upon overdue interest at the rate or rates
prescribed therefor in the debt securities, to the extent that payment of the
interest is lawful;
(4) and all amounts due to the trustee under the indenture; and
o any other event or events of default with respect to debt
securities of that series, other than the nonpayment of the
principal of the debt securities of that series which has become
due solely by such declaration of acceleration, have been cured
or waived as provided in the indenture.
Subject to the provisions of the indenture relating to the duties of
the trustee, in case an event of default shall occur and be continuing, the
trustee will be under no obligation to exercise any of its rights or powers
under the indenture at the request or direction of any of the holders, unless
the holders will have offered to the trustee reasonable indemnity. If an event
of default has occurred and is continuing in respect of a series of debt
securities, subject to the provisions for the indemnification of the trustee,
the holders of a majority in principal amount of the outstanding debt securities
of the series will have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the trustee, or exercising
any trust or power conferred on the trustee, with respect to the debt securities
of the series; provided, however, that if an event of default occurs and is
continuing with respect to more than one series of debt securities, the holders
of a majority in aggregate principal amount of the outstanding debt securities
of all that series, considered as one class, will have the right to make the
direction, and not the holders of the debt securities of any one of such series;
and provided, further, that the direction will not be in conflict with any rule
of law or with the indenture.
No holder of debt securities of any series will have any right to
institute any proceeding with respect to the indenture, or for the appointment
of a receiver or a trustee, or for any other remedy thereunder, unless:
o the holder has previously given to the trustee written notice of
a continuing event of default with respect to the debt securities
of that series;
o the holders of a majority in aggregate principal amount of the
outstanding debt securities of all series in respect of which an
event of default shall have occurred and be continuing,
considered as one class, have made written request to the
trustee, and the holder or holders have offered reasonable
indemnity to the trustee to institute the proceeding in respect
of the event of default in its own name as trustee; and
o the trustee has failed to institute any proceeding, and has not
received from the holders of a majority in aggregate principal
amount of the outstanding debt securities of such series a
direction inconsistent with such request, within 60 days after
such notice, request and offer.
These limitations do not apply to a suit instituted by a holder of a
debt security for the enforcement of payment of the principal of or any premium
or interest on such debt security on or after the applicable due date specified
in such debt security.
We will be required to furnish to the trustee annually a statement by
an appropriate officer as to that officer's knowledge of our compliance with all
conditions and covenants under the indenture, the compliance to be determined
without regard to any period of grace or requirement of notice under the
indenture.
MODIFICATION AND WAIVER
Without the consent of any holder of debt securities, we and the
trustee may enter into one or more supplemental indentures for any of the
following purposes:
o to evidence the assumption by any of our permitted successors of
our covenants in the indenture and in the debt securities; or
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o to add to our covenants or other provisions for the benefit of
all holders or for the benefit of the holders of, or to remain in
effect only so long as there will be outstanding debt securities
of one or more specified series, or one or more specified
tranches thereof, or to surrender any right or power conferred
upon us by the indenture; or
o to add any additional events of default with respect to
outstanding debt securities; or
o to change or eliminate any provision of the indenture or to add
any new provision to the indenture, provided that if such change,
elimination or addition will adversely affect the interests of
the holders of debt securities of any series or tranche in any
material respect, such change, elimination or addition will
become effective with respect to such series or tranche only:
(1) when the consent of the holders of debt securities of such
series or tranche has been obtained in accordance with the indenture, or
(2) when no debt securities of such series or tranche remain
outstanding under the indenture; or
o to provide collateral security for all but not part of the debt
securities; or
o to establish the form or terms of debt securities of any other
series or tranche as permitted by the indenture; or
o to provide for the authentication and delivery of bearer
securities and coupons appertaining thereto representing
interest, if any, thereon and for the procedures for the
registration, exchange and replacement thereof and for the giving
of notice to, and the solicitation of the vote or consent of, the
holders thereof, and for any and all other matters incidental
thereto; or
o to evidence and provide for the acceptance of appointment of a
successor trustee with respect to the debt securities of one or
more series and to add to or change any of the provisions of the
indenture as will be necessary to provide for or to facilitate
the administration of the trusts under the indenture by more than
one trustee; or
o to provide for the procedures required to permit the utilization
of a noncertificated system of registration for the debt
securities of all or any series or tranche; or
o to change any place where the principal of and premium, if any,
and interest, if any, on all or any series or tranche of debt
securities will be payable, all or any series or tranche of debt
securities may be surrendered for registration of transfer or
exchange and notices and demands to or upon us in respect of debt
securities and the indenture may be served;
o to cure any ambiguity or inconsistency or to add or change any
other provisions with respect to matters and questions arising
under the indenture, provided such changes or additions will not
adversely affect the interests of the holders of debt securities
of any series or tranche in any material respect; or
o to maintain the qualification of the indenture under the Trust
Indenture Act.
The holders of a majority in aggregate principal amount of the debt
securities of all series then outstanding may waive our compliance with certain
restrictive provisions of the indenture. The holders of a majority in principal
amount of the outstanding debt securities of any series may waive any past
default under the indenture with respect to that series, except a default in the
payment of principal, premium, or interest and certain covenants and provisions
of the indenture that cannot be modified or be amended without the consent of
the holder of each outstanding debt security of the series affected.
Except as provided above, the consent of the holders of a majority in
aggregate principal amount of the debt securities of all series then
outstanding, considered as one class, is required for the purpose of adding any
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provisions to, or changing in any manner, or eliminating any of the provisions
of, the indenture or modifying in any manner the rights of the holders of such
debt securities under the indenture pursuant to one or more supplemental
indentures; provided, however, that if less than all of the series of debt
securities outstanding are directly affected by a proposed supplemental
indenture, then the consent only of the holders of a majority in aggregate
principal amount of outstanding debt securities of all series so directly
affected, considered as one class, will be required; and provided, further, that
if the debt securities of any series shall have been issued in more than one
tranche and if the proposed supplemental indenture will directly affect the
rights of the holders of debt securities of one or more, but less than all, of
those tranches, then the consent only of the holders of a majority in aggregate
principal amount of the outstanding debt securities of all tranches so directly
affected, considered as one class, will be required; and provided further, that
no such amendment or modification may:
o change the stated maturity of the principal of, or any
installment of principal of or interest on, any debt security, or
reduce the principal amount thereof or the rate of interest
thereon (or the amount of any installment of interest thereon) or
change the method of calculating such rate or reduce any premium
payable upon the redemption thereof, or change the coin or
currency (or other property) in which any debt security or any
premium or the interest thereon is payable, or impair the right
to institute suit for the enforcement of any such payment on or
after the stated maturity of any debt security (or, in the case
of redemption, on or after the redemption date) without, in any
such case, the consent of the holder of such debt security;
o reduce the percentage in principal amount of the outstanding debt
securities of any series, or any tranche thereof, the consent of
the holders of which is required for any supplemental indenture,
or the consent of the holders of which is required for any waiver
of compliance with any provision of the indenture or any default
thereunder and its consequences, or reduce the requirements for
quorum or voting, without, in any such case, the consent of the
holder of each outstanding debt security of that series or
tranche, or
o modify certain of the provisions of the indenture relating to
supplemental indentures, waivers of certain covenants and waivers
of past defaults with respect to the debt securities of any
series or tranche, without the consent of the holder of each
outstanding debt security affected thereby. A supplemental
indenture which changes or eliminates any covenant or other
provision of the indenture which has expressly been included
solely for the benefit of one or more particular series of debt
securities or one or more tranches thereof, or modifies the
rights of the holders of debt securities of that series or
tranche with respect to such covenant or other provision, will be
deemed not to affect the rights under the indenture of the
holders of the debt securities of any other series or tranche.
The indenture provides that in determining whether the holders of the
requisite principal amount of the outstanding debt securities have given any
request, demand, authorization, direction, notice, consent or waiver under the
indenture, or whether a quorum is present at the meeting of the holders of debt
securities, debt securities owned by us or any other obligor upon the debt
securities or any affiliate of our's or of such other obligor (unless we, such
affiliate or such obligor own all debt securities outstanding under the
indenture, determined without regard to this provision) will be disregarded and
deemed not to be outstanding.
If we solicit from holders any request, demand, authorization,
direction, notice, consent, election, waiver or other act, we may, at our
option, fix in advance a record date for the determination of holders entitled
to give that request, demand, authorization, direction, notice, consent, waiver
or other act, but we will have no obligation to do so. If a record date is
fixed, the request, demand, authorization, direction, notice, consent, waiver or
other act may be given before or after the record date, but only the holders of
record at the close of business on that record date will be deemed to be holders
for the purposes of determining whether holders of the requisite proportion of
the outstanding debt securities have authorized or agreed or consented to the
request, demand, authorization, direction, notice, consent, waiver or other act,
and for that purpose the outstanding debt securities will be computed as of the
record date. Any request, demand, authorization, direction, notice, consent,
election, waiver or other act of a holder will bind every future holder of the
same debt security and the holder of every debt security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the trustee or us in
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reliance thereon, whether or not notation of such action is made upon such debt
security.
RESIGNATION OF TRUSTEE
The trustee may resign at any time by giving written notice thereof to
us or may be removed at any time by act of the holders of a majority in
principal amount of all series of debt securities then outstanding delivered to
the trustee and us. No resignation or removal of the trustee and no appointment
of a successor trustee will become effective until the acceptance of appointment
by a successor trustee in accordance with the requirements of the indenture. So
long as no event of default or event which, after notice or lapse of time, or
both, would become an event of default has occurred and is continuing and except
with respect to a trustee appointed by act of the holders, if we have delivered
to the trustee a resolution of its board of directors appointing a successor
trustee and such successor has accepted such appointment in accordance with the
terms of the indenture, the trustee will be deemed to have resigned and the
successor will be deemed to have been appointed as trustee in accordance with
the indenture.
NOTICES
Notices to holders of debt securities will be given by first class
mail to the address of each holder as it may appear in the security register.
TITLE
We, the trustee, and any of our agents or the trustee, may treat the
person in whose name debt securities are registered as the absolute owner
thereof (whether or not the debt securities may be overdue) for the purpose of
making payments and for all other purposes irrespective of notice to the
contrary.
GOVERNING LAW
The indenture and the debt securities will be governed by, and
construed in accordance with, the laws of the State of New York.
REGARDING THE TRUSTEE
The trustee under the indenture is Bank One Trust Company, National
Association. We and Dayton Power and Light also maintain various banking and
trust relationships with Bank One Trust Company, National Association.
BOOK-ENTRY, DELIVERY AND FORM
GENERAL
The exchange notes will be issued in the form of one or more fully
registered securities in global form. The global notes will be deposited with,
or on behalf of, The Depository Trust Company and registered in the name of The
Depositary Trust Company or its nominee.
Upon issuance of the global notes, The Depositary Trust Company or its
nominee will credit, on its book-entry registration and transfer system, the
respective principal amount of the individual beneficial interests represented
by such global notes to the accounts of persons who have accounts with the
depository. Ownership of beneficial interests in the global notes will be shown
on, and the transfer of that ownership will be effected only through, records
maintained by The Depositary Trust Company or its nominee (with respect to the
participants' interests) for the global notes, or by participants or persons
that hold interests through participants (with respect to beneficial interests
of persons other than participants). The laws of some jurisdictions may require
that certain purchasers of securities take physical delivery of the securities
in definitive form. These limits and laws may impair the ability to transfer or
pledge beneficial interests in the global notes.
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So long as The Depositary Trust Company, or its nominee, is the
registered holder of any global notes, The Depositary Trust Company or such
nominee, as the case may be, will be considered the sole legal owner of the
global notes for all purposes under the indenture and the exchange notes. Except
as set forth below, owners of beneficial interests in global notes will not be
entitled to have their global notes registered in their names, will not receive
or be entitled to receive physical delivery in exchange therefor and will not be
considered to be the owners or holders of their global notes for any purpose
under the securities or the indenture. We understand that under existing
industry practice, in the event an owner of a beneficial interest in a global
note desires, to take any action that The Depositary Trust Company, as the
holder of the global note, is entitled to take, The Depositary Trust Company
would authorize the participants to take that action, and that the participants
would authorize beneficial owners owning through those participants to take that
action or would otherwise act upon the instructions of beneficial owners owning
through them.
Any payment of principal or interest due on the exchange notes on any
interest payment date or at maturity will be made available by us to the trustee
by that date. As soon as practicable thereafter, the trustee will make those
payments to The Depositary Trust Company or its nominee, as its nominee, as the
case may be, as the registered owner of the global notes representing the
exchange notes in accordance with existing arrangements between the trustee and
The Depositary Trust Company.
We expect that The Depositary Trust Company or its nominee, upon
receipt of any payment of principal or interest in respect of the global notes,
will credit immediately the accounts of the related participants with payments
in amounts proportionate to their respective beneficial interests in the
principal amount of the global notes as shown on the records of The Depositary
Trust Company. We also expect that payments by participants to owners of
beneficial interests in the global notes held through the participants will be
governed by standing instructions and customary practices, as is now the case
with securities held for the accounts of customers in bearer form or registered
in "street name," and will be the responsibility of such participants.
Neither us, nor the trustee, nor any payment agent for the global
notes will have any responsibility or liability for any aspect of the records
relating to or payments made on account of beneficial ownership interests in any
of the global notes or for maintaining, supervising or reviewing any records
relating to the beneficial ownership interests or for other aspects of the
relationship between The Depositary Trust Company and its participants or the
relationship between the participants and the owners of beneficial interests in
the global notes owning through the participants.
Unless and until exchanged in whole or in part for securities in
definitive form in accordance with the terms of the securities, the global notes
may not be transferred except as a whole by the The Depositary Trust Company to
a nominee of The Depositary Trust Company or by a nominee of the The Depositary
Trust Company to The Depositary Trust Company or another nominee of The
Depositary Trust Company or by The Depositary Trust Company of any such nominee
to a successor of The Depositary Trust Company or a nominee of each successor.
Although The Depositary Trust Company has agreed to the foregoing
procedures in order to facilitate transfers of interests in the global notes
among participants of The Depositary Trust Company, it is under no obligation to
perform or continue to perform those procedures, and those procedures may be
discontinued at any time. Neither the trustee nor us will have any
responsibility for the performance by The Depositary Trust Company or its
participants or indirect participants of their respective obligations under the
rules and procedures governing their operations. Us and the trustee may
conclusively rely on, and shall be protected in relying on, instructions from
The Depositary Trust Company for all purposes.
CERTIFICATED NOTES
Securities that are originally issued to institutional "accredited
investors" who are not qualified institutional buyers will be sold in
certificated form.
The global notes shall be exchangeable for corresponding certificated
securities registered in the name of persons other than The Depositary Trust
Company or its nominee only if:
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o The Depositary Trust Company (a) notifies us that it is unwilling
or unable to continue as the depositary for any of the global
notes or (b) at any time ceases to be a clearing agency
registered under the exchange act,
o there shall have occurred and be continuing an event of default
(as defined in the indenture) with respect to the applicable
securities or
o We execute and deliver to the trustee an order that the global
notes shall be so exchangeable.
Any certificated securities will be issued only in fully registered form and
shall be issued without coupons in minimum denominations of $1,000 and in
integral multiples of $1,000. Any certificated securities so issued will be
registered in the names and in the denominations as The Depositary Trust Company
shall request.
THE CLEARING SYSTEM
The Depositary Trust Company has advised us as follows: The Depositary
Trust Company is a limited-purpose trust company organized under the laws of the
State of New York, a member of the Federal Reserve System, a "clearing
corporation" within the meaning of the New York Uniform Commercial Code, and "a
clearing agency" registered pursuant to the provisions of Section 17A of the
Exchange Act. The Depositary Trust Company was created to hold securities of
institutions that have accounts with The Depositary Trust Company
("participants") and to facilitate the clearance and settlement of securities
transactions among it participants in such securities through electronic
book-entry changes in accounts of participants, thereby eliminating the need for
physical movement of securities certificates. The Depositary Trust Company's
participants include securities brokers and dealers (which may include the
initial purchasers of the old notes), bank, trust companies, clearing
corporations and certain other organizations. Access to The Depositary Trust
Company's book-entry system is also available to others such as banks, brokers,
dealers and trust companies that clear through or maintain a custodial
relationship with a participant, whether directly or indirectly.
LACK OF PUBLIC MARKET
The exchange notes are new issues of securities for which there is
currently no active trading market. If any exchange notes are traded after their
initial issuance, they may trade at a discount from their face value, depending
upon prevailing interest rates, the market for similar securities and other
factors, including general economic conditions and our financial condition,
performance and prospects.
MATERIAL UNITED STATES FEDERAL INCOME TAX CONSIDERATIONS
The following summary describes the material United States federal
income tax consequences of the acquisition, ownership and disposition of
exchange notes as of the date hereof and represents the opinion of Thelen Reid &
Priest LLP, counsel to DPL, insofar as it relates to matters of law or legal
conclusions. Except where noted, this summary deals only with exchange notes
held as capital assets within the meaning of section 1221 of the Internal
Revenue Code of 1986, as amended (the "Code") and does not deal with special
situations, such as those of dealers in securities or currencies, financial
institutions, tax-exempt entities, life insurance companies, individual
retirement and tax-deferred accounts, persons holding exchange notes as a part
of a hedging or conversion transaction or a straddle, or persons whose
functional currency is not the United States dollar. In addition, this
discussion does not address the tax consequences to persons who acquired old
notes other than pursuant to their initial issuance and distribution, and who
acquire exchange notes other than pursuant to the exchange offer. Furthermore,
the discussion below is based upon the provisions of the Code, existing and
proposed Treasury regulations promulgated thereunder, and applicable
administrative rulings and judicial decisions now in effect, all of which are
subject to change, possibly on a retroactive basis, so as to result in United
States federal income tax consequences different from those discussed below.
A "United States person" is defined as (i) an individual citizen or
resident of the United States, (ii) a corporation, partnership or other entity
created or organized in or under the laws of the United States or any political
subdivision thereof, (iii) an estate, the income of which is subject to United
States federal income taxation regardless of its source, or (iv) a trust if (a)
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a court within the United States is able to exercise primary supervision over
the administration of the trust and (b) one or more United States persons have
the authority to control all substantial decisions of the trust. As used herein,
a "United States holder" means a beneficial owner of an exchange note that is a
United States person. As used herein, the term "non-United States holder" means
a beneficial owner of an exchange note that is not a United States holder.
PROSPECTIVE HOLDERS OF EXCHANGE NOTES ARE ADVISED TO CONSULT WITH
THEIR TAX ADVISORS AS TO THE UNITED STATES FEDERAL INCOME TAX CONSEQUENCES OF
THE ACQUISITION, OWNERSHIP AND DISPOSITION OF EXCHANGE NOTES IN LIGHT OF THEIR
PARTICULAR CIRCUMSTANCES, AS WELL AS THE EFFECT OF ANY STATE, LOCAL OR OTHER TAX
LAWS.
EXCHANGE OF OLD NOTES FOR EXCHANGE NOTES
An exchange of old notes for exchange notes pursuant to the exchange
offer should not constitute a taxable event for United States federal income tax
purposes because the exchange notes should not be considered materially
different in kind or extent from the old notes. Rather, beneficial interests in
the exchange notes should be treated as a continuation of beneficial interests
in old notes in the hands of a holder. As a result, holders who effect an
exchange pursuant to the exchange offer should not recognize any income, gain or
loss for United States federal income tax purposes with respect to the exchange.
In addition, a holder's tax basis in an exchange note will be the same as that
holder's basis in the old note exchanged therefor, and a holder's holding period
in an exchange note will include that holder's holding period in the old note
exchanged therefor.
UNITED STATES HOLDERS
PAYMENTS OF INTEREST
Interest on exchange notes will generally be taxable to a United
States holder as ordinary income at the time it is paid or accrued in accordance
with the United States holder's method of accounting for United States federal
income tax purposes.
SALE, EXCHANGE OR REDEMPTION OF EXCHANGE NOTES
Except as described above under "Exchange of Old Notes for Exchange
Notes," upon the sale, exchange or redemption of exchange notes, a United States
holder generally will recognize gain or loss equal to the difference between (i)
the amount realized upon the sale, exchange or redemption, and (ii) the United
States holder's adjusted tax basis in the exchange notes. A United States
holder's adjusted tax basis in the exchange notes will be the initial purchase
price it paid for the old notes exchanged therefor, net of accrued interest.
Such gain or loss will be capital gain or loss and will be long-term capital
gain or loss if, at the time of the sale, exchange or redemption, the United
States holder's holding period in the exchange notes (including the holding
period of the United States holder in the old notes) is greater than one year.
Under current law, the deductibility of capital losses is subject to
limitations. The net capital gains of individuals are generally taxed at lower
rates than ordinary income.
INFORMATION REPORTING AND BACKUP WITHHOLDING
Payments of interest on, or the proceeds from the sale, retirement, or
other disposition of exchange notes are subject to information reporting unless
the United States holder establishes an exemption.
Payments of the interest on, or the proceeds from the sale,
retirement, or other disposition of exchange notes may be subject to a "backup
withholding" tax of 31% if the United States holder, among other things, (1)
fails to furnish his or her social security number or other taxpayer
identification number ("TIN") to the payor responsible for backup withholding
(for example, the United States holder's securities broker) on Internal Revenue
Service ("IRS") Form W-9 or a substantially similar form signed under penalties
of perjury, (2) furnishes the payor an incorrect TIN, (3) fails to provide the
payor with a certified statement, signed under penalties of perjury, that the
TIN provided to the payor is correct and that the United States holder is not
subject to backup withholding, or (4) fails to properly report interest and
30
<PAGE>
dividends on his tax return. Information reporting and backup withholding does
not apply to certain payments made to exempt recipients, such as corporations.
Any amounts withheld under the backup withholding rules will be
allowed as a credit or refund against a United States holder's United States
federal income tax liability, if certain required information is provided to the
IRS.
NON-UNITED STATES HOLDERS
PAYMENTS OF INTEREST
Subject to the discussion below concerning backup withholding, no
withholding of United States federal income tax will be required with respect to
the payment by DPL or any paying agent of principal or interest on an exchange
note held by a non-United States holder, provided that the beneficial owner (1)
does not actually or constructively own 10% or more of the total combined voting
power of all classes of stock of DPL entitled to vote within the meaning of Code
section 871(h)(3) and the regulations thereunder; (2) is not a controlled
foreign corporation, within the meaning of Code section 957, which is related,
directly or indirectly, to DPL through stock ownership; and (3) satisfies the
requirement, described generally below, set forth in Code section 871(h) and
Code section 881(c) and the regulations thereunder.
To satisfy the requirement referred to in clause (3) above, the
beneficial owner of an exchange note, or a financial institution holding an
exchange note on behalf of the beneficial owner, must provide, in accordance
with specified procedures, DPL or its paying agent with a statement to the
effect that the beneficial owner is not a United States person. These
requirements will be met if (1) the beneficial owner provides his name and
address, and certifies, under penalties of perjury, that he is not a United
States person, which certification may be made on an IRS Form W-8 (or successor
form); or (2) a financial institution holding the exchange note on behalf of the
beneficial owner certifies, under penalties of perjury, that such statement has
been received by it and furnishes a paying agent with a copy thereof.
In the event that any of the above requirements are not satisfied, DPL
will nonetheless not withhold United States federal income tax on interest paid
to a non-United States holder if it receives either IRS Form 4224 (for taxable
years prior to January 1, 2001) or IRS Form W-8 ECI from that non-United States
holder, establishing that such income is effectively connected with the conduct
of a trade or business in the United States, unless DPL has knowledge to the
contrary. Interest paid to a non-United States holder that is effectively
connected with the conduct by the holder of a trade or business in the United
States is generally taxed at the graduated rates that are applicable to United
States persons. In the case of a non-United States holder that is a corporation,
such effectively connected income may also be subject to the United States
federal branch profits tax, which is generally imposed on a foreign corporation
on the deemed repatriation from the United States of effectively connected
earnings and profits, at a 30% rate, unless the rate is reduced or eliminated by
an applicable income tax treaty and the non-United States holder is a qualified
resident of the treaty country.
SALE, EXCHANGE OR REDEMPTION OF THE NOTES
A non-United States holder generally will not be subject to United
States federal income tax with respect to gain recognized on a sale, exchange or
redemption of an exchange note unless (1) the gain is effectively connected with
a trade or business of the non-United States holder in the United States; (2) in
the case of a non-United States holder who is an individual and holds the
exchange note as a capital asset, the holder is present in the United States for
183 or more days in the taxable year of the sale or other disposition and
certain other conditions are met; or (3) the non-United States holder is subject
to tax pursuant to certain provisions of the Code applicable to United States
expatriates. However, any amount attributable to accrued but unpaid interest on
the exchange note will be treated in the same manner as payments of interest
made to the non-United States holder, as described above.
Gain derived by a non-United States holder from the sale or other
disposition of an exchange note that is effectively connected with the conduct
by the holder of a trade or business in the United States is generally taxed at
the graduated rates that are applicable to United States persons. In the case of
a non-United States holder that is a corporation, such effectively connected
31
<PAGE>
income may also be subject to the United States branch profits tax. If any
individual non-United States holder falls under clause (2) of the preceding
paragraph, the holder will be subject to a flat 30% tax on the gain derived from
the sale or other disposition, which may be offset by certain United States
source capital losses recognized within the same taxable year as the sale or
other disposition.
INFORMATION REPORTING AND BACKUP WITHHOLDING
Non-United States holders will not be subject to information reporting
or backup withholding on payments made by DPL or its paying agent if a statement
described in clause (3) of the first paragraph under "Non-United States Holders
- - Payments of Interest" has been received and the payor has no actual knowledge
that the beneficial owner is a United States person.
In addition, backup withholding and information reporting will not
apply to payments of principal or interest on exchange notes paid or collected
by a foreign office of a custodian, nominee or other foreign agent on behalf of
a non-United States holder, or if a foreign office of a broker pays the proceeds
of the sale of exchange notes to a non-United States holder. If, however, the
nominee, custodian, agent or broker is, for United States federal income tax
purposes, a United States person, a controlled foreign corporation or a foreign
person that derives 50% or more of its gross income for certain periods from the
conduct of a United States trade or business, or (with respect to payments
after December 31, 2000) a foreign partnership with certain connections to the
United States, such payments will not be subject to backup withholding (unless
the payer has actual knowledge that the payee is a United States person) but
will be subject to information reporting unless (i) the custodian, nominee,
agent or broker has documentary evidence that the beneficial owner is not a
United States person and certain other conditions are met, or (ii) the
beneficial owner otherwise establishes an exemption.
Payments of principal or interest on exchange notes paid to a
non-United States holder by a United States office of a custodian, nominee or
agent, or payment of the proceeds of a sale of exchange notes by the United
States office of a broker, will be subject to backup withholding and information
reporting unless (i) the non-United States holder provides the statement
described above that the holder is not a United States person and the payor does
not have actual knowledge to the contrary, or (ii) the beneficial owner
otherwise establishes an exemption.
Any amounts withheld under the backup withholding rules will be
allowed as a credit or a refund against a non-United States holder's United
States federal income tax liability, if certain required information is provided
to the IRS.
PLAN OF DISTRIBUTION
Each participating broker-dealer in connection with the exchange offer
must acknowledge that it will deliver a prospectus in connection with any resale
of exchange notes. This prospectus, as it may be amended or supplemented from
time to time, may be used by a participating broker-dealer in connection with
resales of exchange notes received in exchange for old notes where such old
notes were acquired as a result of market-making activities or other trading
activities. We have agreed that we will make this prospectus, as amended or
supplemented, available to any participating broker-dealer for use in connection
with any such resale and participating broker-dealers shall be authorized to
deliver this prospectus for a period ending upon the earlier of the expiration
of the 90th day after the exchange offer has been completed or such time as such
broker-dealers no longer own any registrable securities, which we define in the
registration rights agreement.
We will not receive any proceeds from any sales of the exchange notes
by participating broker-dealers. Exchange notes received by participating
broker-dealers for their own account pursuant to the exchange offer may be sold
from time to time, in one or more transactions in the over-the-counter market,
in negotiated transactions, through the writing of options on the exchange notes
or a combination of such methods of resale, at market prices prevailing at the
time of resale, at prices related to the prevailing market prices or at
negotiated prices. Any resale may be made directly to purchasers or to or
through brokers or dealers who may receive compensation in the form of
commissions or concessions from any participating broker-dealer that resells the
exchange notes that were received by it for its own account pursuant to the
exchange offer. Any broker or dealer that participates in a distribution of the
exchange notes may be deemed to be an "underwriter" within the meaning of the
32
<PAGE>
Securities Act and any profit on any resale of exchange notes and any omissions
or concessions received by any persons may be deemed to be underwriting
compensation under the Securities Act. The letter of transmittal states that by
acknowledging that it will deliver and by delivering a prospectus, a
participating broker-dealer will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act.
We will promptly send additional copies of this prospectus and any
amendment or supplement to this prospectus to any participating broker-dealer
that requests such documents in the letter of transmittal. See "The Exchange
Offer."
LEGAL MATTERS
The validity of the exchange notes will be passed upon for us by
Stephen F. Koziar, Group Vice President and General Counsel of DPL and by Thelen
Reid & Priest LLP, New York, New York.
INDEPENDENT ACCOUNTANTS
The consolidated financial statements and schedules incorporated in
this Prospectus by reference to the Annual Report on Form 10-K for the year
ended December 31, 1999 have been so incorporated in reliance on the report of
PricewaterhouseCoopers LLP, independent accountants, given on the authority of
said firm as experts in accounting and auditing.
33
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article VII of the Code of Regulations of the Company provides for
indemnification of directors, officers, employees or agents of the Company, or
individuals who server at the request of the Company in such capacities for
other entities, against any and all expenses, judgments, fines and settlements
incurred by them in connection with claims and/or litigation arising out of
their service. Article VII provides that indemnification shall be available to
the full extent permitted by law including, without limitation, Section
1701.13(E) of the Ohio Revised Code.
Under Ohio law, the liabilities against which a director or officer
may be indemnified and factors employed to determine whether a director or
officer is entitled to indemnification in a particular instance depend on
whether the proceeding in which the claim for indemnification arises was brought
(a) other than by and in the right of the corporation ("Category A Proceedings")
or (b) by and in the right of the corporation ("Category B Proceedings").
In Category A Proceedings, a corporation may indemnify each director
and officer against expenses, including attorneys' fees, judgements, fines,
penalties, and amounts paid in settlement actually and reasonably incurred by
him in connection with any threatened or actual proceeding in which he may be
involved by reason of his having acted in such capacity, if he acted in good
faith and in a manner he reasonably believed to be in or not opposed to the best
interests of the corporation, and with respect to any criminal action or
proceeding, he had no reasonable cause to believe that his conduct was unlawful.
In Category B Proceedings, a corporation may indemnify each director
and officer against expenses, including attorneys' fees, actually and reasonably
incurred by him in connection with the defense or settlement of any such
proceeding if he acted in good faith and in a manner he reasonably believed to
be in or not opposed to the best interests of the corporation, except that no
indemnification is permitted with respect to (i) any matter as to which such
person has been adjudged to be liable for negligence or misconduct in the
performance of his duty to the corporation unless a court determines such person
is entitled to indemnification; or (ii) any matter in which the only liability
asserted against a director or officer relates to an unlawful loan, dividend,
distribution of assets or purchase or redemption of shares.
Unless indemnification is ordered by a court, the determination as to
whether or not an individual has satisfied the applicable standards of conduct
(and therefore may be indemnified) is made by the corporation by a majority vote
of a quorum consisting of directors of the corporation who were not parties to
the action; or if such a quorum is not obtainable, or if a majority vote of a
quorum of disinterested directors so directs, by independent legal counsel in a
written opinion; or by the shareholders of the corporation; or by the court in
which such action was brought.
Article VII does not limit in any way other indemnification rights to
which those seeking indemnification may be entitle. Ohio law requires
indemnification against expenses where a directors or officer is successful on
the merits or otherwise in defense of any action. Consistent with Ohio law,
Article VII provides that expenses incurred by a director or officer in
defending any action may be paid by the Company in advance of final disposition,
upon receipt of an undertaking to repay such amount unless it is ultimately
determined that he is entitled to indemnification pursuant to Article VII.
The Company maintains insurance policies covering its officers and
directors against certain civil liabilities, including liabilities under the
Securities Act of 1933, as amended.
ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(a) Exhibits (see index to exhibits at E-1).
ITEM 22. UNDERTAKINGS
(a) The undersigned registrant hereby undertakes:
II-1
<PAGE>
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933 ("Securities Act");
(ii) To reflect in the prospectus any facts or
events arising after the effective date of the registration
statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent
a fundamental change in the information set forth in the
registration statement; and
(iii) To include any material information with
respect to the plan of distribution not previously disclosed
in the registration statement or any material change to such
information in the registration statement.
(2) That, for the purpose of determining any liability under
the Securities Act, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold
at the termination of the offering.
(4) That, for purposes of determining any liability under
the Securities Act, each filing of the registrant's annual report
pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of
1934 that is incorporated by reference in the registration statement
shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering
thereof.
(b) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act, and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other that the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of such registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
(c) The undersigned registrant hereby undertakes to respond to request
for information that is incorporated by reference into the prospectus pursuant
to Item 4, 10(b), 11, or 13 of this form, within one business day of receipt of
such request, and to send the incorporated documents by first class mail or
other equally prompt means. This includes information contained in documents
filed subsequent to the effective date of the registration statement through the
date of responding to the request.
II-2
<PAGE>
POWER OF ATTORNEY
Each director and/or officer of the registrant whose signature appears
below hereby appoints the Agent for Service named in this registration statement
as his attorney-in-fact to sign in his name and behalf, in any and all
capacities stated below, and to file with the Securities and Exchange
Commission, any and all amendments, including post-effective amendments, to this
registration statement, and the registrant hereby also appoints the Agent for
Service as its attorney-in-fact with like authority to sign and file any such
amendments in its name and behalf.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
the requirements for filing on Form S-4, and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Dayton, and State of Ohio, on the 26th day of May,
2000.
DPL Inc.
By /s/ A. M. Hill
-------------------------------------
A. M. Hill
President and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by or on behalf of the following
persons in the capacities indicated on the 26th day of May, 2000.
Signature Title
--------- -----
/s/ T. J. Danis
- ----------------------------------
T. J. Danis Director
Director
- ----------------------------------
J. F. Dicke, II
/s/ P. H. Forster Director and Chairman
- ----------------------------------
P. H. Forster
Director
- ----------------------------------
E. Green
/s/ J. G. Haley Director
- ----------------------------------
J. G. Haley
/s/ A. M. Hill Director, President and Chief
- ---------------------------------- Executive Officer (principal
A. M. Hill executive officer)
Director
- ----------------------------------
W A. Hillenbrand
/s/ D. R. Holmes Director
- ----------------------------------
D. R. Holmes
II-3
<PAGE>
Signature Title
--------- -----
/s/ R. Michael Lempke Vice President and Chief Financial
- ---------------------------------- Officer (principal financial
R. M. Lempke officer)
/s/ E. M. McCarthy Vice President and Chief Accounting
- ---------------------------------- Officer (principal accounting
E. M. McCarthy officer)
/s/ B. R. Roberts Director
- ----------------------------------
B. R. Roberts
Director
- ----------------------------------
G. R. Roberts
Director
- ----------------------------------
S. M. Stuart
II-4
<PAGE>
EXHIBIT INDEX
Exhibit No. Document
- ----------- --------
4(a) Registration Rights Agreement dated as of February 24, 2000
between DPL Inc. and Credit Suisse First Boston Corporation
4(b) Indenture dated as of March 1, 2000 between DPL Inc. and Bank One
Trust Company, National Association
4(c) Officer's Certificate of DPL Inc. establishing exchange notes,
dated March 1, 2000
4(d) Form of exchange note (included in Exhibit 4(c))
4(e) Form of Letter of Transmittal
5(a) Opinion of Mr. Koziar, Group Vice President and General Counsel
of DPL Inc., regarding exchange notes
5(b)and 8 Opinion of Thelen Reid & Priest LLP regarding exchange notes
12 Computation of Ratio of Earnings to Fixed Charges
23(a) Consent of Mr. Koziar (contained in his opinion filed as Exhibit
5(a))
23(b) Consent of Thelen Reid & Priest LLP (contained in their opinion
filed as Exhibit 5(b) and 8)
23(c) Consent of PricewaterhouseCoopers LLP
24 Power of Attorney (included on the signature page of this
registration statement)
25 Statement of Eligibility of Bank One Trust Company, National
Association on Form T-1
99(a) Form of Exchange Agent Agreement
99(b) Form of Notice of Guaranteed Delivery
99(c) Form of Letter to Clients
99(d) Form of Letter to Nominees
99(e) Form of Instructions to Registered Holder and/or Book-Entry
Transfer Participant from Owner
99(f) Transmittal Letter relating to "Exxon Capital" exchange offer
representations.
EXHIBIT 4(A)
EXECUTION COPY
REGISTRATION RIGHTS AGREEMENT
Dated as of February 24, 2000
between
DPL INC.
and
CREDIT SUISSE FIRST BOSTON CORPORATION
as Initial Purchaser
<PAGE>
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and
entered into as of February 24, 2000 among DPL Inc. (together with its
successors and permitted assigns, "DPL") and CREDIT SUISSE FIRST BOSTON
CORPORATION (together with its successors and permitted assigns, the "Initial
Purchaser").
This Agreement is made pursuant to the Purchase Agreement dated
February 24, 2000 (the "Purchase Agreement"), among DPL, as issuer, of the
Senior Notes due March 1, 2007 (the "Notes"), and the Initial Purchaser, which
provides for, among other things, the sale by DPL to the Initial Purchaser of
$425,000,000 principal amount of the Notes. In order to induce the Initial
Purchaser to enter into the Purchase Agreement, DPL has agreed to provide to the
Initial Purchaser, for the benefit of the Initial Purchaser and each other
Holder (as defined below), the registration rights set forth in this Agreement.
The execution and delivery of this Agreement is a condition to the closing under
the Purchase Agreement.
In consideration of the foregoing, the parties hereto agree as follows:
1. Definitions.
-----------
As used in this Agreement, the following capitalized defined terms
shall have the following meanings:
"Additional Interest" shall have the meaning set forth in Section 2(e)
-------------------
hereof.
"Advice" shall have the meaning set forth in the last paragraph of
------
Section 3 hereof.
"Applicable Period" shall have the meaning set forth in Section 3(t)
-----------------
hereof.
"Business Day" shall mean a day other than (i) a Saturday or a Sunday,
------------
(ii) a day on which banks in New York, New York are authorized or obligated by
law or executive order to remain closed or (iii) a day on which the Trustee's
principal corporate trust office is closed for business.
"Depositary" shall mean, with respect to Notes and/or Exchange Notes in
----------
global registered form, The Depository Trust Company, or any other depositary
appointed by DPL; provided, however, that such depositary must have an address
in the Borough of Manhattan, The City of New York.
"DPL" shall have the meaning set forth in the preamble to this
---
Agreement.
"Effectiveness Period" shall have the meaning set forth in Section 2(b)
--------------------
hereof.
"Eligible Holder" shall have the meaning set forth in Section 2(a)(i)
---------------
hereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
------------
amended and in effect from time to time.
<PAGE>
"Exchange Notes" shall mean the 8.25% Exchange Senior Notes due March
--------------
1, 2007 containing terms identical to the Notes (except that they will not
contain registration rights, will not provide for any Additional Interest to be
payable with respect thereto and will not, unless specifically requested by the
Initial Purchaser in connection with Notes held by the Initial Purchaser,
contain terms with respect to the transfer restrictions under the Securities
Act).
"Exchange Offer" shall mean the offer by DPL to the Holders to exchange
--------------
the Registrable Securities for a like principal amount of Exchange Notes
pursuant to Section 2(a) hereof.
"Exchange Offer Registration" shall mean a registration under the
---------------------------
Securities Act effected pursuant to Section 2(a) hereof.
"Exchange Offer Registration Statement" shall mean an exchange offer
-------------------------------------
registration statement on Form S-4 (or, if applicable, on another appropriate
form), and all amendments and supplements to such registration statement, in
each case including the Prospectus to be contained therein, all exhibits thereto
and all material incorporated by reference therein.
"Exchange Period" shall have the meaning set forth in Section
---------------
2(a)(ii)(B) hereof.
"Holder" shall mean the Initial Purchaser, for so long as it owns
------
beneficial interests in any Registrable Securities, and each registered holder
or owner of beneficial interests in Registrable Securities.
"Indenture" shall mean the Indenture relating to the Notes and the
---------
Exchange Notes dated as of March 1, 2000 among DPL, as issuer of the Notes and
the Exchange Notes, and Bank One Trust Company, National Association, as
Trustee, as the same may be amended from time to time in accordance with the
terms thereof.
"Initial Purchaser" shall have the meaning set forth in the preamble of
-----------------
this Agreement.
"Inspectors" shall have the meaning set forth in Section 3(n) hereof.
----------
"Issue Date" shall mean the date of original issuance of the Notes.
----------
"Majority Holders" shall mean the registered holders of a majority of
----------------
the aggregate principal amount of outstanding Notes.
"Notes" shall have the meaning set forth in the preamble to this
-----
Agreement.
"Notice" shall have the meaning set forth in Section 2(a)(ii)(A)
------
hereof.
"Participating Broker-Dealer" shall have the meaning set forth in
---------------------------
Section 3(t) hereof.
"Person" shall mean an individual, partnership, corporation, trust or
------
unincorporated organization, limited liability company, or a government or
agency or political subdivision thereof.
2
<PAGE>
"Prospectus" shall mean the prospectus to be included in a Registration
----------
Statement, including any preliminary prospectus, and any such prospectus as
amended or supplemented by any prospectus supplement, including a prospectus
supplement with respect to the terms of the offering of any portion of the
Registrable Securities covered by a Shelf Registration Statement, and by all
other amendments and supplements to a prospectus, including post-effective
amendments, and in each case including all material incorporated by reference
therein.
"Purchase Agreement" shall have the meaning set forth in the preamble
------------------
of this Agreement.
"Records" shall have the meaning set forth in Section 3(n) hereof.
-------
"Registrable Securities" shall mean the Notes; provided, however, that
----------------------
Notes shall cease to be Registrable Securities when (i) a Registration Statement
with respect to the Exchange Notes shall have been declared effective under the
Securities Act and the Notes shall have been exchanged for Exchange Notes
pursuant to such Registration Statement, (ii) the Notes shall have been sold to
the public pursuant to Rule 144(k) under the Securities Act or are permitted to
be resold to the public pursuant to Rule 144(k) under the Securities Act (or any
similar provision allowing for resale to the public then in force), (iii) the
Notes shall have ceased to be outstanding, (iv) the Notes shall have been
exchanged for Exchange Notes upon consummation of the Exchange Offer and are
thereafter freely tradable by the holder thereof (other than an affiliate of
DPL) or (v) two years (or such shorter period as may hereafter be provided in
Rule 144(k) under the Securities Act (or similar rule)) shall have elapsed since
the date of original issuances of the Notes.
"Registration Expenses" shall mean any and all expenses incident to
---------------------
performance of or compliance by DPL and with this Agreement, including, without
limitation: (i) all SEC or National Association of Securities Dealers, Inc. (the
"NASD") registration and filing fees; (ii) all fees and expenses incurred in
connection with compliance with state securities or blue sky laws (including
reasonable fees and disbursements of counsel for any underwriters or Holders in
connection with blue sky qualification of any of the Exchange Notes or
Registrable Securities) and compliance with the rules of the NASD, in an amount
not exceeding $15,000 in the aggregate, (iii) all expenses of any Persons in
preparing or assisting in preparing, word processing, printing and distributing
any Registration Statement, any Prospectus and any amendments or supplements
thereto, and in preparing or assisting in preparing, printing and distributing
any Registration Statement, any Prospectus and any amendments or supplements
thereto, and in preparing or assisting in preparing, printing and distributing
any underwriting agreements, securities sales agreements and other documents
relating to the performance of and compliance with this Agreement, (iv) all
rating agency fees, (v) the fees and disbursements of counsel for DPL, of
Milbank, Tweed, Hadley & McCloy LLP, as counsel for the Holders hereunder in
connection with the Exchange Offer, and of the independent certified public
accountants of DPL, including the expenses of any "cold comfort" letters
required by or incident to such performance and compliance, (vi) the fees and
expenses of the Trustee, and any paying agent, exchange agent or custodian,
(vii) all fees and expenses incurred in connection with the listing, if any, of
any of the Registrable Securities or the Exchange Notes on any securities
exchange or exchanges, and (viii) the reasonable fees and expenses of any
special experts retained by DPL in connection with any Registration Statement.
3
<PAGE>
"Registration Statement" shall mean any registration statement of DPL
----------------------
which covers any of the Exchange Notes or Registrable Securities pursuant to the
provisions of this Agreement, and all amendments and supplements to any such
Registration Statement, including post-effective amendments, in each case
including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"Rule 144(k) Period" shall mean the period of two years (or such
------------------
shorter period as may hereafter be provided in Rule 144(k) under the Securities
Act (or similar successor rule)) commencing on the Issue Date.
"SEC" shall mean the Securities and Exchange Commission.
---
"Securities Act" shall mean the Securities Act of 1933, as amended and
--------------
in effect from time to time.
"Shelf Registration" shall mean a registration effected pursuant to
------------------
Section 2(b) hereof.
"Shelf Registration Event" shall have the meaning set forth in Section
------------------------
2(b) hereof.
"Shelf Registration Event Date" shall have the meaning set forth in
-----------------------------
Section 2(b) hereof.
"Shelf Registration Statement" shall mean a "shelf" registration
----------------------------
statement of DPL pursuant to the provisions of Section 2(b) hereof which covers
all of the Registrable Securities, on an appropriate form under Rule 415 under
the Securities Act, or any similar rule that may be adopted by the SEC, and all
amendments and supplements to such registration statement, including
post-effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto and all material incorporated by reference
therein.
"TIA" shall mean the Trust Indenture Act of 1939, as amended and in
---
effect from time to time.
"Trustee" shall mean Bank One Trust Company, National Association and
-------
any successor thereto, as trustee under the Indenture.
2. Registration under the Securities Act.
-------------------------------------
(a) Exchange Offer.
--------------
(i) To the extent not prohibited by any applicable law or
applicable interpretation of the staff of the SEC, DPL shall, for the
benefit of the Holders, at DPL's cost, (A) prepare and cause to be
filed with the SEC, not later than 90 days after the Issue Date, an
Exchange Offer Registration Statement on an appropriate form under the
Securities Act covering the Exchange Offer, (B) use its reasonable
best efforts to cause such Exchange Offer Registration Statement to be
declared effective under the Securities Act by the SEC not later than
the date which is 180 days after the Issue Date, and (C) use its
reasonable best efforts to keep such Exchange Offer Registration
Statement effective for not less than 30 calendar days (or longer if
required by applicable law, and in any event through the Exchange
Period) after the date Notice of the Exchange Offer is mailed to the
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Holders. Upon the effectiveness of the Exchange Offer Registration
Statement, DPL shall promptly commence the Exchange Offer, it being
the objective of such Exchange Offer to enable each Holder so electing
to exchange Registrable Securities for a like principal amount of
Exchange Notes (assuming that such Holder is not an affiliate of DPL
within the meaning of Rule 405 under the Securities Act and is not a
broker-dealer tendering Registrable Securities acquired directly from
DPL for its own account, acquires the Exchange Notes in the ordinary
course of such Holder's business and has no arrangements or
understandings with any Person to participate in the Exchange Offer
for the purpose of distributing the Exchange Notes and is not
otherwise prohibited by any law or policy of the SEC from
participating in the Exchange Offer) (any Holder meeting all such
requirements, hereinafter an "Eligible Holder"), and to transfer such
Exchange Notes from and after their receipt without any limitations or
restrictions under the Securities Act and under state securities or
blue sky laws.
(ii) In connection with the Exchange Offer, DPL shall:
(A) mail to each Holder a copy of the Prospectus forming
part of the Exchange Offer Registration Statement, together with
an appropriate letter of transmittal and related documents
(together, the "Notice");
(B) use its reasonable best efforts to keep the Exchange
Offer open for acceptance for a period of not less than 30 days
after the date Notice thereof is mailed to the Holders (or longer
if required by applicable law) (such period referred to herein as
the "Exchange Period");
(C) utilize the services of the Depositary for the Exchange
Offer;
(D) permit Holders to withdraw, at any time prior to the
close of business, New York time, on the last Business Day of the
Exchange Period, any Notes tendered for exchange by sending to
the institution specified in the Notice, a telegram, telex,
facsimile transmission or letter, received before aforesaid time,
setting forth the name of such Holder, the principal amount of
Notes delivered for exchange, and a statement that such Holder is
withdrawing his election to have such Notes exchanged;
(E) notify each Holder by means of the Notice that any Note
not tendered by such Holder in the Exchange Offer will remain
outstanding and continue to accrue interest, but will not retain
any rights under this Agreement (except in the case of the
Initial Purchaser and Participating Broker-Dealers as provided
herein); and
(F) otherwise comply in all respects with all applicable
laws relating to the Exchange Offer.
(iii) As soon as practicable after the close of the Exchange
Offer, DPL shall:
(A) accept for exchange all Notes or portions thereof
tendered and not validly withdrawn pursuant to the Exchange
Offer;
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<PAGE>
(B) deliver, or cause to be delivered, to the Trustee for
cancellation all Notes or portions thereof so accepted for
exchange by DPL; and
(C) issue, and cause the Trustee to promptly authenticate
and deliver to the Depositary (or if, the Exchange Notes are in
certificated form, each Holder) Exchange Notes equal in principal
amount to the principal amount of the Notes surrendered by such
Holder.
(iv) Interest on each Exchange Note issued pursuant to the
Exchange Offer will accrue from the last date on which interest was
paid on the Note surrendered in exchange therefor or, if no interest
has been paid on such Note, from the Issue Date. To the extent not
prohibited by any law or applicable interpretation of the staff of the
SEC, DPL shall use its reasonable best efforts to complete the
Exchange Offer as provided above and shall comply with the applicable
requirements of the Securities Act, the Exchange Act and other
applicable laws in connection with the Exchange Offer. The Exchange
Offer shall not be subject to any conditions, other than that the
Exchange Offer does not violate applicable law or any applicable
interpretation of the staff of the SEC and that each Holder tendering
Notes for exchange shall be an Eligible Holder. Each Holder of
Registrable Securities who wishes to exchange such Registrable
Securities for Exchange Notes in the Exchange Offer will be required
to make certain customary representations in connection therewith,
including representations that (A) it is not an affiliate of DPL, (B)
the Exchange Notes to be received by it were acquired in the ordinary
course of its business and (C) at the time of the Exchange Offer, it
has no arrangement with any person to participate in the distribution
(within the meaning of the Securities Act) of the Exchange Notes. Each
Holder hereby acknowledges and agrees that any Participating
Broker-Dealer and any such Holder using the Exchange Offer to
participate in a distribution of the Exchange Notes: (1) could not
under SEC policy as in effect on the date of this Agreement rely on
the position of the SEC enunciated in Morgan Stanley and Co., Inc.
(available June 5, 1991) and Exxon Capital Holdings Corporation
(available May 13, 1988), as interpreted in the SEC's letter to
Shearman & Sterling dated July 2, 1993, and similar no-action letters
(including any no-action letter obtained based on the representations
in clause (A) above), and (2) must comply with the registration and
prospectus delivery requirements of the Securities Act in connection
with the secondary resale transaction and that such a secondary resale
transaction should be covered by an effective registration statement
containing the selling security holder information required by Item
507 and 508, as applicable, of Regulation S-K, if the resales are of
Exchange Notes obtained by such Holder in exchange for Notes acquired
by such Holder directly from DPL.
(v) Upon consummation of the Exchange Offer in accordance with
this Section 2(a), the provisions of this Agreement shall continue to
apply, mutatis mutandis, solely with respect to Registrable Securities
that are Exchange Notes held by Participating Broker-Dealers, and DPL
shall have no further obligation to register the Registrable
Securities (other than pursuant to Section 2(b)(iii)) pursuant to
Section 2(b) of this Agreement.
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<PAGE>
(b) Shelf Registration.
------------------
In the event that (i) DPL is not permitted to effect the Exchange
Offer because of any change in law or in currently prevailing interpretations of
the staff of the SEC, (ii) the Exchange Offer Registration Statement is not
declared effective within 210 days of the Issue Date, (iii) (1) the Initial
Purchaser is not permitted, in the reasonable opinion of Milbank, Tweed, Hadley
& McCloy LLP, pursuant to applicable law or applicable interpretations of the
staff of the SEC, to participate in the Exchange Offer and thereby receive
securities that are freely tradeable without restriction under the Securities
Act and applicable blue sky or state securities laws, (2) the Initial Purchaser
requests registration of Registrable Securities held by it and (3) the Initial
Purchaser's request is received by DPL no later than the later of (A) the date
of filing of the Exchange Offer Registration Statement and (B) 180 days
following the Issue Date, or (iv) any Holder (other than a Participating
Broker-Dealer), in the opinion of counsel to such Holder reasonable acceptable
to the Company, is not eligible to participate in the Exchange Offer or in the
case of any Holder (other than a Participating Broker-Dealer) that participates
in the Exchange Offer, such Holder does not receive freely tradable Exchange
Notes on the date of the exchange and any such Holder so requests (any of the
events specified in (i) - (iv) being a "Shelf Registration Event" and the date
of occurrence thereof, the "Shelf Registration Event Date"), DPL shall promptly
deliver to the Holders and the Trustee written notice thereof and, at its cost,
file as promptly as practicable after such Shelf Registration Event Date, and,
in any event, within 45 days after such Shelf Registration Event Date (but no
earlier than 90 days after the Issue Date) a Shelf Registration Statement
providing for the sale by the Holders of all of the Registrable Securities, and
shall use its reasonable best efforts to have such Shelf Registration Statement
declared effective by the SEC as soon as practicable; provided, however that if
the Shelf Registration Event is pursuant to clause (iii), DPL may register such
Registrable Securities together with the Exchange Offer Registration Statement,
filed pursuant to Section 2(a), and the requirements as to timing applicable
thereto. No Holder of Registrable Securities shall be entitled to include any of
its Registrable Securities in any Shelf Registration pursuant to this Agreement
unless and until such Holder agrees in writing to be bound by all of the
provisions of this Agreement applicable to such Holder and furnishes to DPL in
writing, within 15 days after receipt of a request therefor, such information as
DPL may, after conferring with counsel with regard to information relating to
Holders that would be required by the SEC to be included in such Shelf
Registration Statement or Prospectus included therein, reasonably request for
inclusion in any Shelf Registration Statement or Prospectus included therein.
Each Holder as to which any Shelf Registration is being effected agrees promptly
to furnish to DPL all information with respect to such Holder necessary to make
the information previously furnished to DPL by such Holder not materially
misleading.
DPL agrees to use its reasonable best efforts to keep the Shelf
Registration Statement continuously effective for the Rule 144(k) Period
(subject to extension pursuant to the last paragraph of Section 3 hereof) or for
such shorter period which will terminate when all of the securities covered by
the Shelf Registration Statement have been sold pursuant to the Shelf
Registration Statement or cease to be Registrable Securities ( the
"Effectiveness Period"). DPL shall not permit any securities other than
Registrable Securities to be included in the Shelf Registration. DPL will, in
the event a Shelf Registration Statement is declared effective, provide to each
Holder a reasonable number of copies of the Prospectus which is a part of the
Shelf Registration Statement and notify each such Holder when the Shelf
Registration has become effective. DPL further agrees, if necessary, to
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<PAGE>
supplement or amend the Shelf Registration Statement, if required by the rules,
regulations or instructions applicable to the registration form used by DPL for
such Shelf Registration Statement or by the Securities Act or by any other rules
and regulations thereunder for shelf registrations, and DPL agrees to furnish to
the Holders of Registrable Securities copies of any such supplement or amendment
promptly after its being used or filed with the SEC.
(c) Expenses.
--------
DPL shall pay all Registration Expenses in connection with the
registration pursuant to Section 2(a) or 2(b) hereof. Except as provided herein,
each Holder shall pay all expenses of its counsel, underwriting discounts and
commissions and transfer taxes, if any, relating to the sale or disposition of
such Holder's Registrable Securities pursuant to the Shelf Registration
Statement.
(d) Effective Registration Statement.
--------------------------------
An Exchange Offer Registration Statement pursuant to Section 2(a)
hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof (or a
combination of the two) will not be deemed to have become effective unless it
has been declared effective by the SEC; provided, however, that if, after it has
been declared effective, the offering of Registrable Securities pursuant to a
Shelf Registration Statement is interfered with by any stop order, injunction or
other order or requirement of the SEC or any other governmental agency or court,
such Registration Statement will be deemed not to have been effective during the
period of such interference, until the offering of Registrable Securities
pursuant to such Registration Statement may legally resume. DPL will be deemed
not to have used its reasonable best efforts to cause the Exchange Offer
Registration Statement or the Shelf Registration Statement, as the case may be,
to become, or to remain, effective during the requisite period if it either
willfully takes any action that would result in any such Registration Statement
not being declared effective or in the Holders of Registrable Securities covered
thereby not being able to exchange or offer and sell such Registrable Securities
during that period unless such action is required by applicable law.
(e) Additional Interest. If DPL fails to comply with this
-------------------
Registration Rights Agreement or if the Exchange Offer Registration Statement or
the Shelf Registration Statement fails to become effective as required by this
Registration Rights Agreement, then, as liquidated damages, additional interest
("Additional Interest") shall become payable in respect of the Senior Notes as
follows:
(i) if, the Exchange Offer Registration Statement is not filed on
or prior to the 90th day after the Issue Date or, notwithstanding that
DPL has consummated or will consummate an Exchange Offer, DPL is
required to file a Shelf Registration Statement and such Shelf
Registration Statement is not filed on or prior to the date required
by Section 2(b) hereof, then, commencing on the day after the
applicable required filing date, additional interest shall accrue on
the principal amount of the Notes ("Additional Interest") at a rate of
.25% per annum; and
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<PAGE>
(ii) if (A) the Exchange Offer Registration Statement is not
declared effective by the SEC on or prior to the 180th day after the
Issue Date or (B) whether or not DPL has consummated or will
consummate an Exchange Offer, DPL is required to file a Shelf
Registration Statement and such Shelf Registration Statement is not
declared effective by the SEC on or prior to the 60th day after the
date such Shelf Registration Statement was required to be filed, then,
commencing on the 181st day after the Issue Date or the 61st day after
the applicable required filing date, as the case may be, Additional
Interest shall accrue on the principal amount of the Notes at a rate
of .25% per annum; and
(iii) if (A) DPL has not exchanged the Exchange Notes for the
Notes validly tendered, in accordance with the terms of the Exchange
Offer, on or prior to the 210th day after the Issuance Date or (B) if
applicable, the Shelf Registration Statement has been declared
effective and such Shelf Registration Statement ceases to be effective
at any time prior to the expiration of the Rule 144(k) Period (other
than after such time as all Notes have been disposed of thereunder or
otherwise cease to be Registrable Securities), then Additional
Interest shall accrue on the principal amount of Notes, at a rate of
.25% per annum, commencing on the 211th day after the Issue Date, in
the case of (A) above or the day such Shelf Registration Statement
ceases to be effective, in the case of (B) above;
provided, however, that the Additional Interest rate on the Notes may not exceed
in the aggregate .50% per annum; provided further, however, that (1) upon the
filing of the Shelf Registration Statement (in the case of clause (i) above),
(2) upon the effectiveness of the Exchange Offer Registration Statement or a
Shelf Registration Statement (in the case of clause (ii) above), (3) upon the
exchange of Exchange Notes for all Notes tendered (in the case of clause
(iii)(A) above), or upon the effectiveness of the Shelf Registration Statement
which had ceased to remain effective (in the case of clause (iii) (B) above), or
(4) upon the expiration of the Rule 144(k) Period, Additional Interest on the
Notes as a result of such clause (or the relevant subclause thereof), as the
case may be, shall cease to accrue.
Any amounts of Additional Interest due pursuant to Section 2(e)(i),
(ii) or (iii) above will be payable in cash on the relevant payment dates for
the payment of interest pursuant to the Indenture.
(f) Specific Enforcement.
--------------------
Without limiting the remedies available to the Holders, DPL
acknowledges that any failure of DPL to comply with their obligations under
Section 2(a) and Section 2(b) hereof may result in material irreparable injury
to the Holders for which there is no adequate remedy at law, that it would not
be possible to measure damages for such injuries precisely and that, in the
event of any such failure, any Holder may obtain such relief as may be required
to specifically enforce the obligations of DPL under Section 2(a) and Section
2(b) hereof.
3. Registration Procedures.
-----------------------
In connection with the obligations of DPL with respect to the
Registration Statements pursuant to Sections 2(a) and 2(b) hereof, DPL shall:
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<PAGE>
(a) prepare and file with the SEC a Registration Statement or
Registration Statements as prescribed by Sections 2(a) and 2(b) hereof within
(in the case of Section 2(b) hereof) the relevant time period specified and on
the appropriate form(s) under the Securities Act, which form(s) (i) shall be
selected by DPL, (ii) shall, in the case of a Shelf Registration, be available
for the sale of the Registrable Securities by the selling Holders thereof and
(iii) shall comply as to form in all material respects with the requirements of
the applicable form and include all financial statements required by the SEC to
be filed therewith; and use its reasonable best efforts to cause such
Registration Statement(s) to become effective and remain effective in accordance
with Section 2 hereof; provided, however, that if (1) such filing is pursuant to
Section 2(b), or (2) a Prospectus contained in an Exchange Offer Registration
Statement filed pursuant to Section 2(a) is required to be delivered under the
Securities Act by any Participating Broker-Dealer who seeks to sell Exchange
Notes, before filing any Registration Statement or Prospectus or any amendments
or supplements thereto, DPL shall furnish to and afford the Holders of the
Registrable Securities and each such Participating Broker-Dealer, as the case
may be, covered by such Registration Statement, their counsel and the managing
underwriters, if any, a reasonable opportunity to review copies of all such
documents (including copies of any documents to be incorporated by reference
therein and all exhibits thereto) proposed to be filed. DPL shall not file any
Registration Statement or Prospectus or any amendments or supplements thereto in
respect of which the Holders must be afforded an opportunity to review prior to
the filing of such document if the Majority Holders or such Participating
Broker-Dealer, as the case may be, their counsel or the managing underwriters,
if any, shall reasonably object;
(b) prepare and file with the SEC such amendments and
post-effective amendments to each Registration Statement as may be necessary to
keep such Registration Statement effective for the Effectiveness Period or the
Applicable Period, as the case may be, and cause each Prospectus to be
supplemented, if so determined by DPL or requested by the SEC, by any required
prospectus supplement and as so supplemented to be filed pursuant to Rule 424
(or any similar provision then in force) under the Securities Act, and comply
with the provisions of the Securities Act, the Exchange Act and the rules and
regulations promulgated thereunder applicable to it with respect to the
disposition of all securities covered by each Registration Statement during the
Effectiveness Period or the Applicable Period, as the case may be, in accordance
with the intended method or methods of distribution by the selling Holders
thereof described in this Agreement (including sales by any Participating
Broker-Dealer);
(c) in the case of a Shelf Registration, (i) notify each Holder
of Registrable Securities included in the Shelf Registration Statement, at least
three Business Days prior to filing, that a Shelf Registration Statement with
respect to the Registrable Securities is being filed and advise such Holder that
the distribution of Registrable Securities will be made in accordance with the
method selected by the Majority Holders, (ii) furnish to each Holder of
Registrable Securities included in the Shelf Registration Statement and to each
underwriter of an underwritten offering of Registrable Securities, if any,
without charge, as many copies of each Prospectus, including each preliminary
Prospectus, and any amendment or supplement thereto and such other documents as
such Holder or underwriter may reasonably request, in order to facilitate the
public sale or other disposition of the Registrable Securities, (iii) consent to
the use of the Prospectus or any amendment or supplement thereto by each of the
selling Holders of Registrable Securities included in the Shelf Registration
Statement in connection with the offering and sale of the Registrable Securities
covered by the Prospectus or any amendment or supplement thereto and (iv)
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furnish to each Holder of Registrable Securities upon request, a copy of this
Agreement or, if so requested, a summary thereof if requested by any such
Holder;
(d) in the case of a Shelf Registration, to register or qualify
the Registrable Securities under all applicable state securities or "blue sky"
laws of such jurisdictions by the time the applicable Registration Statement is
declared effective by the SEC as any Holder of Registrable Securities covered by
a Registration Statement and each underwriter of an underwritten offering of
Registrable Securities shall reasonably request in writing in advance of such
date of effectiveness; provided, however, that DPL shall not be required to (i)
qualify as a foreign corporation or as a dealer in securities in any
jurisdiction where it would not otherwise be required to qualify but for this
Section 3(d), (ii) file any general consent to service of process in any
jurisdiction where it would not otherwise be subject to such service of process
or (iii) file annual reports or comply with any other requirements deemed in its
reasonable judgment to be unduly burdensome;
(e) (1) in the case of a Shelf Registration or (2) in the event
that Participating Broker-Dealers from whom DPL has received prior written
notice that they will be utilizing the Prospectus contained in the Exchange
Offer Registration Statement as provided in Section 3(t) hereof are seeking to
sell Exchange Notes and are required to deliver Prospectuses, promptly notify
each Holder of Registrable Securities, or each such Participating Broker-Dealer,
as the case may be, their counsel and the managing underwriters, if any, and
promptly confirm such notice in writing (i) when a Registration Statement has
become effective and when any post-effective amendments and supplements thereto
become effective, (ii) of any request by the SEC or any state securities
authority for amendments and supplements to a Registration Statement or
Prospectus or for additional information after the Registration Statement has
become effective, (iii) of the issuance by the SEC or any state securities
authority of any stop order suspending the effectiveness of a Registration
Statement or the qualification of the Registrable Securities or the Exchange
Notes to be offered or sold by any Participating Broker-Dealer in any
jurisdiction described in paragraph 3(d) hereof or the initiation of any
proceedings for that purpose, (iv) in the case of a Shelf Registration, if,
between the effective date of a Registration Statement and the closing of any
sale of Registrable Securities covered thereby, the representations and
warranties contained in the Purchase Agreement, or any underwriting agreement
entered into as described in Section 3(m), cease to be true and correct in all
material respects, (v) of the happening of any event or the failure of any event
to occur or the discovery of any facts or otherwise, (A) which makes any
statement made in a Shelf Registration Statement untrue in any material respect
or which causes such Shelf Registration Statement to omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading, in each case, as of the time such Shelf Registration Statement
became effective, or (B) which makes any statement made in a Prospectus untrue
in any material respect or which causes such Prospectus to omit to state a
material fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading, in each case, as of
the date of such Prospectus or as of any date on which a Prospectus is delivered
at any time that the related Registration Statement is required to be effective
and (vi) when DPL reasonably determines that a post-effective amendment to the
Registration Statement would be appropriate;
(f) make every reasonable effort to obtain the withdrawal of any
order suspending the effectiveness of a Registration Statement at the earliest
possible moment;
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(g) in the case of a Shelf Registration, furnish to each Holder
of Registrable Securities included within the coverage of such Shelf
Registration Statement, without charge, at least one conformed copy of each
Registration Statement relating to such Shelf Registration and any
post-effective amendment thereto (including all financial statements and
schedules, and, if so requested, documents incorporated therein by reference or
exhibits thereto);
(h) in the case of a Shelf Registration, cooperate with the
selling Holders of Registrable Securities to facilitate the timely preparation
and delivery of certificates representing Registrable Securities to be sold and
not bearing any restrictive legends and in such denominations (consistent with
the provisions of the Indenture) and registered in such names as the selling
Holders or the underwriters, if any, may reasonably request at least two
Business Days prior to the closing of any sale of Registrable Securities
pursuant to such Shelf Registration Statement;
(i) in the case of a Shelf Registration or an Exchange Offer
Registration, upon the occurrence of any circumstance contemplated by Section
3(e)(ii), 3(e)(iv), 3(e)(v) or 3(e)(vi) hereof, prepare a supplement or
post-effective amendment to a Registration Statement or the related Prospectus
or any document incorporated therein by reference or file any other required
document so that, as thereafter delivered to the purchasers of the Registrable
Securities, such Prospectus will not contain any untrue statement of a material
fact or omit to state a material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading and
notify each Holder to suspend use of the Prospectus as promptly as practicable
after the occurrence of such an event, and each Holder hereby agrees to suspend
use of the Prospectus until DPL has amended or supplemented the Prospectus to
correct such misstatement or omission;
(j) in the case of a Shelf Registration, a reasonable time prior
to the filing of any document which is to be incorporated by reference into a
Registration Statement or a Prospectus after the initial filing of a
Registration Statement, provide a reasonable number of copies of such document
to the Holders and make such of the representatives of as shall be reasonably
requested by the Holders of Registrable Securities or the Initial Purchaser on
behalf of such Holders available for reasonable discussion of such document;
(k) obtain a CUSIP number for all Exchange Notes, no later than
the effective date of a Registration Statement, and provide the Trustee with
printed certificates for the Exchange Notes or the Registrable Securities, as
the case may be, in a form eligible for deposit with the Depositary (including,
in the case of any Exchange Notes issued to the Initial Purchaser with a
restrictive legend at the request of the Initial Purchaser, separate printed
certificates with a separate restricted CUSIP number);
(l) cause the Indenture to be qualified under the TIA in
connection with the registration of the Exchange Notes or Registrable
Securities, as the case may be, and effect such changes to such documents as may
be required for them to be so qualified in accordance with the terms of the TIA
and execute, and use its reasonable best efforts to cause the Trustee to
execute, all documents as may be required to effect such changes, and all other
forms and documents required to be filed with the SEC to enable such documents
to be so qualified in a timely manner;
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(m) in the case of a Shelf Registration, enter into such
agreements (including underwriting agreements) as are customary in underwritten
offerings and consistent with the terms of the Purchase Agreement and take all
such other appropriate actions as are reasonably requested in order to expedite
or facilitate the registration or the disposition of such Registrable
Securities, and in such connection, whether or not an underwriting agreement is
entered into and whether or not the registration is with respect to an
underwritten offering, if requested by (x) the Initial Purchaser, in the case
where the Initial Purchaser holds Registrable Securities acquired by it as part
of its initial distribution and (y) other Holders of Notes covered thereby: (i)
make such representations and warranties to Holders of such Registrable
Securities and the underwriters (if any), with respect to the business of DPL
and its subsidiaries as then conducted and the Registration Statement,
Prospectus and documents, if any, incorporated or deemed to be incorporated by
reference therein, in each case, as are customarily made by issuers to
underwriters in underwritten offerings, and confirm the same if and when
requested; (ii) obtain opinions of counsel to DPL and updates thereof (which may
be in the form of a reliance letter) in form and substance reasonably
satisfactory to the managing underwriters (if any) and the Holders of a majority
in principal amount of the Registrable Securities being sold, addressed to each
selling Holder and the underwriters (if any) covering the matters covered in the
Purchase Agreement or otherwise customarily covered in opinions requested in
underwritten offerings and such other matters as may be reasonably requested by
such underwriters (it being agreed that the matters to be covered by such
opinions may be subject to customary qualifications and exceptions); (iii)
obtain "cold comfort" letters and updates thereof in form and substance
reasonably satisfactory to the managing underwriters (if any) from the
independent certified public accountants of DPL (and, if necessary, any other
independent certified public accountants of any subsidiary of DPL or of any
business acquired by DPL for which financial statements and financial data are,
or are required to be, included in the Registration Statement), addressed to
each of such underwriters, such letters to be in customary form and covering
matters of the type customarily covered in "cold comfort" letters in connection
with underwritten offerings and such other matters as reasonably requested by
such underwriters in accordance with Statement on Auditing Standards No. 72 and
(iv) if an underwriting agreement is entered into, to cause said underwriting
agreement to contain indemnification provisions and procedures no less favorable
than those set forth in Section 4 hereof (or such other provisions and
procedures acceptable to Holders of a majority in aggregate principal amount of
Registrable Securities covered by such Registration Statement and the managing
underwriters or agents) with respect to all parties to be indemnified pursuant
to said Section, including, without limitation, such underwriters and selling
Holders (the above shall be done at each closing under such underwriting
agreement or, as and to the extent required thereunder and consistent with the
terms of the Purchase Agreement);
(n) if (1) a Shelf Registration is filed pursuant to Section 2(b)
or (2) a Prospectus contained in an Exchange Offer Registration Statement filed
pursuant to Section 2(a) is required to be delivered under the Securities Act by
any Participating Broker-Dealer who seeks to sell Exchange Notes during the
Applicable Period, make reasonably available for inspection by any selling
Holder of such Registrable Securities being sold, or each such Participating
Broker-Dealer, as the case may be, any underwriter participating in any such
disposition of Registrable Securities, if any, and any attorney, accountant or
other agent retained by any such selling Holder or each such Participating
Broker-Dealer, as the case may be, or underwriter (collectively, the
"Inspectors"), at the offices where normally kept, during reasonable business
hours, all financial and other records, pertinent corporate documents and
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properties of DPL and its subsidiaries (collectively, the "Records") as shall be
reasonably necessary to enable them to exercise any applicable due diligence
responsibilities, and cause the officers, directors and employees of and its
subsidiaries to supply all relevant information in each case reasonably
requested by any such Inspector in connection with such Registration Statement;
provided, however, that the foregoing inspection and information gathering shall
be coordinated on behalf of all such parties by DPL's designated Holders'
counsel, at the expense of such parties as described in Section 2(c) hereof.
Records of DPL and its subsidiaries which DPL determines in good faith to be
confidential and any Records which it notifies the Inspectors are confidential
shall not be disclosed by the Inspectors unless (i) the disclosure of such
Records is necessary to avoid or correct a material misstatement or omission in
such Registration Statement, provided that DPL shall be consulted prior to any
such disclosure, (ii) the release of such Records is ordered pursuant to a
subpoena or other order from a court of competent jurisdiction or is necessary
in connection with any action, suit or proceeding, or (iii) the information in
such Records has been made available to the public. Each selling Holder of such
Registrable Securities and each such Participating Broker-Dealer will be
required to agree in writing that information obtained by it or any Inspector
retained by it as a result of such inspections shall be deemed confidential and
shall not be used by it or any Inspector retained by it as the basis for any
market transactions in the securities of DPL unless and until such is made
generally available to the public. Each selling Holder of such Registrable
Securities and each such Participating Broker-Dealer will be required to further
agree in writing that it will, upon learning that disclosure of such Records is
sought in a court of competent jurisdiction, give notice to DPL and allow DPL at
its expense to undertake appropriate action to prevent disclosure of the Records
deemed confidential;
(o) comply with all applicable rules and regulations of the SEC
so long as any provision of this Agreement shall be applicable and make
generally available to their security holders earning statements satisfying the
provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or
any similar rule promulgated under the Securities Act), no later than 60 days
after the end of any 12-month period (or 120 days after the end of any 12-month
period if such period is a fiscal year) (i) commencing at the end of any fiscal
quarter in which Registrable Securities are sold to underwriters in a firm
commitment or best efforts underwritten offering and (ii) if not sold to
underwriters in such an offering, commencing on the first day of the first
fiscal quarter of DPL, as the case may be, after the effective date of a
Registration Statement, which statements shall cover said 12-month periods;
(p) upon consummation of an Exchange Offer, if requested by the
Trustee, obtain (i) an opinion (or reliance letter) of counsel to DPL addressed
to the Trustee for the benefit of all Holders of Registrable Securities
participating in the Exchange Offer which restates the opinions delivered
pursuant to the Purchase Agreement (with such changes as are customary to
address the Registration Statement and the transfer of the registered Exchange
Notes) and which, without limitation, includes an opinion that (A) DPL has duly
authorized, executed and delivered the Exchange Notes, (B) each of the Exchange
Notes constitutes a legal, valid and binding obligation of DPL, enforceable
against DPL in accordance with its terms (with customary exceptions), and (C)
the Indenture has been duly qualified under the TIA or no such qualification is
required by the TIA and (ii) a comfort letter of the type described in Section
3(m)(iii);
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(q) if an Exchange Offer is to be consummated, upon delivery of
the Registrable Securities by Holders to DPL (or to such other Person as
directed by DPL), in exchange for the Exchange Notes, mark, or cause to be
marked, on such Registrable Securities delivered by such Holders that such
Registrable Securities are being canceled in exchange for the Exchange Notes,
and in no event shall such Registrable Securities be marked as paid or otherwise
satisfied;
(r) cooperate with each seller of Registrable Securities covered
by any Registration Statement and each underwriter, if any, participating in the
disposition of such Registrable Securities covered by a Registration Statement
contemplated hereby;
(s) use its reasonable best efforts to take all other steps
necessary to effect the registration of the Registrable Securities covered by a
Registration Statement contemplated hereby;
(t) (A) in the case of the Exchange Offer Registration Statement,
(i) (a) indicate in a "Plan of Distribution" section contained in the Prospectus
contained in the Exchange Offer Registration Statement that any broker or dealer
registered under the Exchange Act who holds Notes that are Registrable
Securities and that were acquired for its own account as a result of
market-making activities or other trading activities (other than Registrable
Securities acquired directly from DPL) or that the Initial Purchaser, if it
holds Notes constituting any portion of an unsold allotment (the Initial
Purchaser holding such Notes or such broker or dealer, a "Participating
Broker-Dealer"), may exchange such Notes pursuant to the Exchange Offer;
however, such Participating Broker-Dealer may be deemed to be an "underwriter"
within the meaning of the Securities Act and must, therefore, deliver a
prospectus meeting the requirements of the Securities Act in connection with any
resales of the Exchange Notes received by such Participating Broker-Dealer in
the Exchange Offer, which prospectus delivery requirement may be satisfied by
the delivery by such Participating Broker-Dealer of the Prospectus contained in
the Exchange Offer Registration Statement and (b) include in such "Plan of
Distribution" section all other information with respect to such resales by
Participating Broker-Dealers that the SEC may require in order to permit such
resales pursuant thereto, but such "Plan of Distribution" shall not name any
such Participating Broker-Dealer or disclose the amount of Exchange Notes held
by any such Participating Broker-Dealer except to the extent required by the
Commission as a result of a change in policy announced after the date of this
Agreement, (ii) furnish to each Participating Broker-Dealer who has delivered to
DPL the notice referred to in Section 3(e), without charge, as many copies of
each Prospectus included in the Exchange Offer Registration Statement, including
any preliminary prospectus, and any amendment or supplement thereto, as such
Participating Broker-Dealer may reasonably request (DPL hereby consents to the
use of the Prospectus forming part of the Exchange Offer Registration Statement
or any amendment or supplement thereto by any Person subject to the prospectus
delivery requirements of the Securities Act, including all Participating
Broker-Dealers, in connection with the sale or transfer of the Exchange Notes
covered by the Prospectus or any amendment or supplement thereto), (iii) use its
reasonable best efforts to keep the Exchange Offer Registration Statement
effective and to amend and supplement the Prospectus contained therein in order
to permit such Prospectus to be lawfully delivered by all Persons subject to the
prospectus delivery requirements of the Securities Act for such period of time
as such Persons must comply with such requirements under the Securities Act and
applicable rules and regulations in order to resell the Exchange Notes;
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provided, however, that such period shall not be required to exceed 90 days (or
such longer period if extended pursuant to the last sentence of Section 3(t)(D)
hereof) (the "Applicable Period") and (iv) include in the transmittal letter or
similar documentation to be executed by an exchange offeree in order to
participate in the Exchange Offer (x) the following provision:
"If the exchange offeree is a broker-dealer holding
Registrable Securities acquired for its own account as a
result of market-making activities or other trading
activities, it is required to deliver a prospectus meeting the
requirements of the Securities Act in connection with any
resale of Exchange Notes received in respect of such
Registrable Securities pursuant to the Exchange Offer,"
and (y) a statement to the effect that, by a Participating Broker-Dealer making
the acknowledgement described in clause (x) and by delivering a Prospectus in
connection with the exchange of Registrable Securities, the Participating
Broker-Dealer will not be deemed to admit that it is an underwriter within the
meaning of the Securities Act;
(B) in the case of any Exchange Offer Registration
Statement, deliver to the Initial Purchaser or to another representative of the
Participating Broker-Dealers, if requested by any such Initial Purchaser or such
other representative of the Participating Broker-Dealers, on behalf of the
Participating Broker-Dealers upon consummation of the Exchange Offer and (in the
case of clause (iii) below) upon the effectiveness of the Exchange Offer
Registration Statement, (i) an opinion of counsel in form and substance
reasonably satisfactory to the Initial Purchaser or such other representative of
the Participating Broker-Dealers, covering the matters customarily covered in
opinions requested in connection with Exchange Offer Registration Statements and
such other matters as may be reasonably requested (it being agreed that the
matters to be covered by such opinion may be subject to customary qualifications
and exceptions), (ii) an officer's certificate containing certifications
substantially similar to those set forth in certificates delivered pursuant to
Section 6(f) of the Purchase Agreement and such additional certifications as are
customarily delivered in a public offering of debt securities and (iii) as well
as upon the effectiveness of the Exchange Offer Registration Statement, a
comfort letter, in each case, in customary form as permitted by Statement on
Auditing Standards No. 72. Each of the foregoing shall be consistent with the
terms of the Purchase Agreement;
(C) DPL may require each seller of Registrable Securities as
to which any registration is being effected to furnish to DPL such information
regarding such seller as may be required by the Staff of the SEC to be included
in a Registration Statement. DPL may exclude from such registration the
Registrable Securities of any seller who unreasonably fails to furnish such
information within a reasonable time after receiving such request. DPL shall not
have any obligation to register under the Securities Act the Registrable
Securities of a seller who so fails to furnish such information; and
(D) (1) In the case of a Shelf Registration Statement or (2)
in the event that Participating Broker-Dealers, have notified DPL that they will
be utilizing the Prospectus contained in the Exchange Offer Registration
Statement as provided in Section 3(t) hereof and are seeking to sell Exchange
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Notes and are required to deliver Prospectuses, each Holder agrees that, upon
receipt of any notice from DPL of the happening of any event of the kind
described in Section 3(e)(ii), 3(e)(iii), 3(e)(v) or 3(e)(vi) hereof, such
Holder will forthwith discontinue disposition of Registrable Securities pursuant
to a Registration Statement until such Holder's receipt of the copies of the
supplemented or amended Prospectus contemplated by Section 3(i) hereof or until
it is advised in writing (the "Advice") by DPL that the use of the applicable
Prospectus may be resumed, and, if so directed by DPL, such Holder will deliver
to DPL (at DPL's expense) all copies in such Holder's possession, other than
permanent file copies then in such Holder's possession, of the Prospectus
covering such Registrable Securities or Exchange Notes, as the case may be,
current at the time of receipt of such notice. If DPL shall give any such notice
to suspend the disposition of Registrable Securities or Exchange Notes, as the
case may be, pursuant to a Registration Statement, DPL shall file and use its
best efforts to have declared effective (if an amendment) as soon as practicable
an amendment or supplement to the Registration Statement and shall extend the
period during which such Registration Statement shall be maintained effective
pursuant to this Agreement by the number of days in the period from and
including the date of the giving of such notice to and including the date when
DPL shall have made available to the Holders (x) copies of the supplemented or
amended Prospectus necessary to resume such dispositions or (y) the Advice; and
(u) In the event that any Broker-Dealer registered under the
Exchange Act shall underwrite any Notes or participate as a member of an
underwriting syndicate or selling group or "assist in the distribution" (within
the meaning of the Conduct Rules (the "Rules") of the National Association of
Securities Dealers, Inc. ("NASD")) thereof, whether as a Holder of such Notes or
as an underwriter, a placement or sales agent or a broker or dealer in respect
thereof, or otherwise, DPL will assist such broker-dealer in complying with the
requirements of such Rules, including, without limitation, by (i) if such Rules,
including Rule 2720, shall so require, engaging a "qualified independent
underwriter" (as defined in Rule 2720) to participate in the preparation of the
Registration Statement relating to such Notes, to exercise usual standards of
due diligence in respect thereto and, if any portion of the offering
contemplated by such Registration Statement is an underwritten offering or is
made through a placement or sales agent, to recommend the yield of such Notes,
(ii) indemnifying any such qualified independent underwriter to the extent of
the indemnification of underwriters provided in Section 4 hereof and (iii)
providing such information to such broker-dealer as may be required in order for
such broker-dealer to comply with the requirements of the Rules.
4. Indemnification.
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(a) DPL agrees to indemnify and hold harmless each Holder of the
Registrable Securities or Exchange Notes, any Participating Broker-Dealer and
each person, if any, who controls such Holder or such Participating
Broker-Dealer within the meaning of the Securities Act or the Exchange Act (each
Holder, any Participating Broker-Dealer and such controlling persons are
referred to collectively as the "Indemnified Parties") from and against any
losses, claims, damages or liabilities, joint or several, or any actions in
respect thereof (including, but not limited to, any losses, claims, damages,
liabilities or actions relating to purchases and sales of the Registrable
Securities or Exchange Notes) to which each Indemnified Party may become subject
under the Securities Act, the Exchange Act or otherwise, insofar as such losses,
claims, damages, liabilities or actions arise out of or are based upon any
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<PAGE>
untrue statement or alleged untrue statement of a material fact contained in a
Registration Statement or prospectus or in any amendment or supplement thereto
or in any preliminary prospectus relating to a Shelf Registration, or arise out
of, or are based upon, the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and shall reimburse, as incurred, the Indemnified
Parties for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability or action in respect thereof; provided, however, that (i) DPL shall
not be liable in any such case to the extent that such loss, claim, damage or
liability arises out of or is based upon any untrue statement or alleged untrue
statement or omission or alleged omission made in a Registration Statement or
prospectus or in any amendment or supplement thereto or in any preliminary
prospectus relating to a Shelf Registration in reliance upon and in conformity
with written information pertaining to such Holder and furnished to DPL by or on
behalf of such Holder specifically for inclusion therein and (ii) with respect
to any untrue statement or omission or alleged untrue statement or omission made
in any preliminary prospectus relating to a Shelf Registration Statement, the
indemnity agreement contained in this subsection (a) shall not inure to the
benefit of any Holder or Participating Broker-Dealer from whom the person
asserting any such losses, claims, damages or liabilities purchased the
Registrable Securities or Exchange Notes concerned, to the extent that a
prospectus relating to such Registrable Securities or Exchange Notes was
required to be delivered by such Holder or Participating Broker-Dealer under the
Securities Act in connection with such purchase and any such loss, claim, damage
or liability of such Holder or Participating Broker-Dealer results from the fact
that there was not sent or given to such person, at or prior to the written
confirmation of the sale of such Registrable Securities or Exchange Notes to
such person, a copy of the final prospectus if DPL had previously furnished
copies thereof to such Holder or Participating Broker-Dealer; provided further,
however, that this indemnity agreement will be in addition to any liability
which DPL may otherwise have to such Indemnified Party. DPL shall also indemnify
underwriters, their officers and directors and each person who controls such
underwriters within the meaning of the Securities Act or the Exchange Act to the
same extent as provided above with respect to the indemnification of the Holders
of the Registrable Securities or Exchange Notes if requested by such Holders.
(b) Each Holder of the Registrable Securities or Exchange Notes,
severally and not jointly, will indemnify and hold harmless DPL and each person,
if any, who controls DPL within the meaning of the Securities Act or the
Exchange Act from and against any losses, claims, damages or liabilities or any
actions in respect thereof, to which DPL or any such controlling person may
become subject under the Securities Act, the Exchange Act or otherwise, insofar
as such losses, claims, damages, liabilities or actions arise out of or are
based upon any untrue statement or alleged untrue statement of a material fact
contained in a Registration Statement or prospectus or in any amendment or
supplement thereto or in any preliminary prospectus relating to a Shelf
Registration, or arise out of or are based upon the omission or alleged omission
to state therein a material fact necessary to make the statements therein not
misleading, but in each case only to the extent that the untrue statement or
omission or alleged untrue statement or omission was made in reliance upon and
in conformity with written information pertaining to such Holder and furnished
to DPL by or on behalf of such Holder specifically for inclusion therein; and,
subject to the limitation set forth immediately preceding this clause, shall
reimburse, as incurred, DPL for any legal or other expenses reasonably incurred
by DPL or any such controlling person in connection with investigating or
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defending any loss, claim, damage, liability or action in respect thereof. This
indemnity agreement will be in addition to any liability which such Holder may
otherwise have to DPL or any of its controlling persons.
(c) Promptly after receipt by an indemnified party under this
Section 4 of notice of the commencement of any action or proceeding (including a
governmental investigation), such indemnified party will, if a claim in respect
thereof is to be made against the indemnifying party under this Section 4,
notify the indemnifying party of the commencement thereof; but the omission so
to notify the indemnifying party will not, in any event, relieve the
indemnifying party from any obligations to any indemnified party other than the
indemnification obligation provided in paragraph (a) or (b) above. In case any
such action is brought against any indemnified party, and it notifies the
indemnifying party of the commencement thereof, the indemnifying party will be
entitled to participate therein and, to the extent that it may wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified party (who
shall not, except with the consent of the indemnified party, be counsel to the
indemnifying party), and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof the
indemnifying party will not be liable to such indemnified party under this
Section 4 for any legal or other expenses, other than reasonable costs of
investigation, subsequently incurred by such indemnified party in connection
with the defense thereof. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened action in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such indemnified
party unless such settlement includes an unconditional release of such
indemnified party from all liability on any claims that are the subject matter
of such action, and does not include a statement as to or an admission of fault,
culpability or a failure to act by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 4 is
unavailable or insufficient to hold harmless an indemnified party under
subsections (a) or (b) above, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to in
subsection (a) or (b) above (i) in such proportion as is appropriate to reflect
the relative benefits received by the indemnifying party or parties on the one
hand and the indemnified party on the other from the exchange of the Registrable
Securities pursuant to the Exchange Offer, or (ii) if the allocation provided by
the foregoing clause (i) is not permitted by applicable law, in such proportion
as is appropriate to reflect not only the relative benefits referred to in
clause (i) above but also the relative fault of the indemnifying party or
parties on the one hand and the indemnified party on the other in connection
with the statements or omissions that resulted in such losses, claims, damages
or liabilities (or actions in respect thereof) as well as any other relevant
equitable considerations. The relative fault of the parties shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by DPL on the one hand or such
Holder or such other indemnified party, as the case may be, on the other, and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission. The amount paid by an
indemnified party as a result of the losses, claims, damages or liabilities
referred to in the first sentence of this subsection (d) shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
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party in connection with investigating or defending any action or claim which is
the subject of this subsection (d). Notwithstanding any other provision of this
Section 4(d), the Holders of the Registrable Securities or Exchange Notes shall
not be required to contribute any amount in excess of the amount by which the
net proceeds received by such Holders from the sale of the Registrable
Securities or Exchange Notes pursuant to a Registration Statement exceeds the
amount of damages which such Holders have otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. For purposes
of this paragraph (d), each person, if any, who controls such indemnified party
within the meaning of the Securities Act or the Exchange Act shall have the same
rights to contribution as such indemnified party and each person, if any, who
controls DPL within the meaning of the Securities Act or the Exchange Act shall
have the same rights to contribution as DPL.
(e) The agreements contained in this Section 4 shall survive the
sale of the Registrable Securities or Exchange Notes pursuant to a Registration
Statement and shall remain in full force and effect, regardless of any
termination or cancellation of this Agreement or any investigation made by or on
behalf of any indemnified party.
5. Participation in Underwritten Registrations.
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No Holder may participate in any underwritten registration
hereunder unless such Holder (a) agrees to sell such Holder's Registrable
Securities on the basis provided in any underwriting arrangements approved by
the Persons entitled hereunder to approve such arrangements and (b) completes
and executes all reasonable questionnaires, powers of attorney, indemnities,
underwriting agreements, lock-up letters and other documents reasonably required
under the terms of such underwriting arrangements.
6. Selection of Underwriters.
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The Holders of Registrable Securities covered by the Shelf
Registration Statement who desire to do so may sell the securities covered by
such Shelf Registration in an underwritten offering. In any such underwritten
offering, the underwriter or underwriters and manager or managers that will
administer the offering will be selected by the Holders of a majority in
aggregate principal amount of the Registrable Securities included in such
offering; provided, however, that such underwriters and managers must be
reasonably satisfactory to DPL.
7. Miscellaneous.
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(a) Rule 144 and Rule 144A. For so long as DPL is subject to the
----------------------
reporting requirements of Section 13 or 15 of the Exchange Act and any
Registrable Securities remain outstanding, DPL will file the reports required to
be filed by it under the Securities Act and Section 13(a) or 15(d) of the
Exchange Act and the rules and regulations adopted by the SEC thereunder. If DPL
ceases to be so required to file such reports, it will, upon the request of any
Holder of Registrable Securities (a) make publicly available such information as
is necessary to permit sales of their securities pursuant to Rule 144 under the
Securities Act, (b) deliver such information to purchasers and prospective
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purchasers as is necessary to permit sales of their securities pursuant to Rule
144A under the Securities Act and take such further action as any Holder of
Registrable Securities may reasonably request and (c) take such further action
that is reasonable in the circumstances, in each case, to the extent required
from time to time to enable such Holder to sell its Registrable Securities
without registration under the Securities Act within the limitation of the
exemptions provided by (i) Rule 144 under the Securities Act, as such rule may
be amended and in effect from time to time, (ii) Rule 144A under the Securities
Act, as such rule may be amended and in effect from time to time, or (iii) any
similar rules or regulations hereafter adopted by the SEC. Upon the request of
any Holder of Registrable Securities, DPL will deliver to such Holder a written
statement as to whether it has complied with such requirements. Without limiting
the foregoing, DPL will provide a copy of this Agreement upon request to any
purchaser or prospective purchaser of Notes.
(b) No Inconsistent Agreements. DPL has not entered into nor will
--------------------------
DPL on or after the date of this Agreement enter into any agreement which is
inconsistent with the rights granted to the Holders of Registrable Securities in
this Agreement or otherwise conflicts with the provisions hereof. The rights
granted to the Holders hereunder do not in any way conflict with and are not
inconsistent with the rights granted to the holders of DPL's other issued and
outstanding securities under any such agreements.
(c) Amendments and Waivers. The provisions of this Agreement,
----------------------
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers of consents to departures from the provisions hereof
may not be given without the written consent of Holders of at least a majority
in aggregate principal amount of the outstanding Registrable Securities affected
by such amendment, modification, supplement, waiver or departure; provided that
no departure with respect to the provisions of Section 4 hereof shall be
effective as against any Holder of Registrable Securities without the consent of
such Holder. Notwithstanding the foregoing sentence, (i) this Agreement may be
amended, without the consent of any Holder of Registrable Securities, by written
agreement signed by DPL and the Trustee, to cure any ambiguity, correct or
supplement any provision of this Agreement that may be defective or inconsistent
with any other provision of this Agreement or to make any other provisions with
respect to matters or questions arising under this Agreement which shall not be
inconsistent with other provisions of this Agreement and shall not adversely
affect the interests of the Holders in any material respect, (ii) without the
consent of any Holder of Registrable Securities, this Agreement may be amended,
modified or supplemented, and waivers and consents to departures from the
provisions hereof may be given, by written agreement signed by DPL and the
Trustee to the extent that any such amendment, modification, supplement, waiver
or consent is, in their reasonable judgment, necessary or appropriate to comply
with applicable law (including any interpretation of the Staff of the SEC) or
any change therein and (iii) to the extent any provision of this Agreement
relates to the Initial Purchaser but not to any other Holder, such provision may
be amended, modified or supplemented, and waivers or consents to departures from
such provisions may be given, by written agreement signed by the Initial
Purchaser, DPL and the Trustee.
(d) Notices. All notices and other communications provided for or
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permitted hereunder shall be made in writing by hand delivery, registered
first-class mail, telecopier, or any courier guaranteeing overnight delivery (i)
if to a Holder, at the most current address given by such Holder to DPL by means
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of a notice given in accordance with the provisions of this Section 7(d) or in
the absence of, such notice, as specified in the Indenture for registered holder
of Notes, which address initially is, with respect to the Initial Purchaser, the
address set forth in the Purchase Agreement and (ii) if to DPL, initially at
DPL's address set forth in the Purchase Agreement and thereafter at such other
address, notice of which is given in accordance with the provisions of this
Section 7(d).
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five Business
Days after being deposited in the mail, postage prepaid, if mailed; when receipt
is acknowledged, if telecopied; and on the next Business Day, if timely
delivered to an air courier guaranteeing overnight delivery.
Copies of all such notices, demands, or other communications shall be
concurrently delivered by the Person giving the same to the Trustee, at the
address specified in the Indenture.
(e) Successors and Assigns. This Agreement shall inure to the
----------------------
benefit of and be binding upon the successors, assigns and transferees of the
Initial Purchaser, including, without limitation and without the need for an
express assignment, subsequent Holders; provided, however, that nothing herein
shall be deemed to permit any assignment, transfer or other disposition of
Registrable Securities in violation of the terms of the Purchase Agreement or
the Indenture. If any transferee of any Holder shall acquire Registrable
Securities, in any manner, whether by operation of law or otherwise, such
Registrable Securities shall be held subject to all of the terms of this
Agreement, and by taking and holding such Registrable Securities, such Person
shall be conclusively deemed to have agreed to be bound by and to perform all of
the terms and provisions of this Agreement and such Person shall be entitled to
receive the benefits hereof.
(f) Third Party Beneficiary. The Holders shall be third party
-----------------------
beneficiaries of the agreements made hereunder among DPL and the Initial Holder
and shall have the right to enforce such agreements directly to the extent they
deem such enforcement necessary or advisable to protect their rights hereunder.
(g) Consent to Jurisdiction; Appointment of Agent to Accept
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Service of Process. DPL irrevocably submits to the non-exclusive jurisdiction of
- ------------------
any federal or state court in the City, County and State of New York, United
States of America, in any legal suit, action or proceeding based on or arising
under this Agreement and agrees that all claims in respect of such suit or
proceeding may be determined in any such court. DPL irrevocably waives the
defense of an inconvenient forum or objections to personal jurisdiction with
respect to the maintenance of such legal suit, action or proceeding. DPL has
appointed Thelen Reid & Priest LLP (the "Process Agent") as its authorized agent
upon whom process may be served in any such legal suit, action or proceeding.
Such appointment shall be revocable by serving written notice on the Trustee of
the appointment of a subsequent Process Agent by DPL and the effectiveness of
such appointment. The Process Agent has agreed to act as said agent for service
of process and agrees to take any and all action including the filing of any and
all documents and instruments, that may be necessary to continue such
appointment in full force and effect as aforesaid. DPL further agrees that
service of process upon the Process Agent and written notice of said service to
each of DPL shall be deemed in every respect effective service of process upon
each of DPL in any such legal suit, action or proceeding. Nothing herein shall
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affect the right of the Initial Purchaser or any person controlling the Initial
Purchaser to serve process in any other manner permitted by law. The provisions
of this subsection (g) shall remain operative and in full force and effect
regardless of any termination of this Agreement, in whole or in part.
(h) Counterparts. This Agreement may be executed in any number of
------------
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(i) Headings. The headings in this Agreement are for convenience
--------
of reference only and shall not limit or otherwise affect the meaning hereof.
(j) GOVERNING LAW. THIS AGREEMENT SHALL BE DEEMED TO HAVE BEEN
-------------
MADE IN THE STATE OF NEW YORK. THE TERMS AND CONDITIONS SET FORTH HEREIN SHALL
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK WITHOUT GIVING EFFECT TO ANY PROVISIONS RELATING TO CONFLICTS OF LAWS.
(k) Severability. In the event that any one or more of the
------------
provisions contained herein, or the application thereof in any circumstance, is
held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions contained herein shall not be affected or impaired thereby.
(l) Securities Held by DPL or its Affiliates. Whenever the
----------------------------------------
consent or approval of Holders of a specified percentage of Registrable
Securities is required hereunder, Registrable Securities held by DPL or any of
its affiliates (as such term is defined in Rule 405 under the Securities Act)
shall not be counted in determining whether such consent or approval was given
by the Holders of such required percentage.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
23
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
DPL INC.
By: /s/ S. F. Kozior
------------------------------------
Name: S. F. Kozior
Title: Group Vice President
Accepted and delivered as of
the date first above written
CREDIT SUISSE FIRST BOSTON CORPORATION,
as Initial Purchaser
By: /s/ Reginald O. Frazier
------------------------------------
Name: Reginald O. Frazier
Title: Managing Director
24
EXHIBIT 4(B)
Execution Copy
------------------------------------------
DPL INC.
TO
BANK ONE TRUST COMPANY, NATIONAL ASSOCIATION
TRUSTEE
---------
INDENTURE
DATED AS OF MARCH 1, 2000
------------------------------------------
<PAGE>
TABLE OF CONTENTS
PARTIES...................................................................... 1
RECITAL OF THE COMPANY........................................................5
ARTICLE ONE...................................................................5
Definitions and Other Provisions of General Application.......................5
SECTION 101. DEFINITIONS..................................................5
ACT.....................................................................6
AFFILIATE...............................................................6
ASSETS..................................................................6
AUTHENTICATING AGENT....................................................6
AUTHORIZED OFFICER......................................................6
BOARD OF DIRECTORS......................................................6
BOARD RESOLUTION........................................................6
BUSINESS DAY............................................................6
CASH TRANSACTION........................................................6
COMMISSION..............................................................6
COMPANY.................................................................7
COMPANY REQUEST.........................................................7
CONSOLIDATED CAPITALIZATION.............................................7
CONSOLIDATED INDEBTEDNESS...............................................7
CONSOLIDATED SHAREHOLDERS' EQUITY.......................................7
CONSOLIDATED SUBSIDIARY.................................................7
CORPORATE TRUST OFFICE..................................................7
CORPORATION.............................................................7
DEFAULTED INTEREST......................................................7
DISCOUNT SECURITY.......................................................7
DOLLAR..................................................................7
DP&L....................................................................7
ELIGIBLE OBLIGATIONS....................................................8
EVENT OF DEFAULT........................................................8
GOVERNMENTAL AUTHORITY..................................................8
GOVERNMENT OBLIGATIONS..................................................8
HOLDER..................................................................8
INDENTURE...............................................................8
INTEREST PAYMENT DATE...................................................8
MANDATORY SINKING FUND PAYMENT..........................................8
MATURITY................................................................8
OFFICER'S CERTIFICATE...................................................9
OPINION OF COUNSEL......................................................9
OPTIONAL SINKING FUND PAYMENT...........................................9
OUTSTANDING.............................................................9
PAYING AGENT...........................................................10
PERIODIC OFFERING......................................................10
PERSON.................................................................10
PLACE OF PAYMENT.......................................................10
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PREDECESSOR SECURITY...................................................10
REDEMPTION DATE........................................................10
REDEMPTION PRICE.......................................................10
REGULAR RECORD DATE....................................................11
REQUIRED CURRENCY......................................................11
RESPONSIBLE OFFICER....................................................11
SECURITIES.............................................................11
SECURITY REGISTER" and "SECURITY REGISTRAR.............................11
SPECIAL RECORD DATE....................................................11
STATED INTEREST RATE...................................................11
STATED MATURITY........................................................11
SUBSIDIARY.............................................................11
TRANCHE................................................................11
TRUST INDENTURE ACT....................................................11
TRUSTEE................................................................12
UNITED STATES..........................................................12
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS........................12
SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE......................12
SECTION 104. ACTS OF HOLDERS.............................................13
SECTION 105. NOTICES, ETC. TO TRUSTEE AND COMPANY........................15
SECTION 106. NOTICE TO HOLDERS OF SECURITIES; WAIVER.....................16
SECTION 107. CONFLICT WITH TRUST INDENTURE ACT...........................16
SECTION 108. EFFECT OF HEADINGS AND TABLE OF CONTENTS....................16
SECTION 109. SUCCESSORS AND ASSIGNS......................................16
SECTION 110. SEPARABILITY CLAUSE.........................................17
SECTION 111. BENEFITS OF INDENTURE.......................................17
SECTION 112. GOVERNING LAW...............................................17
SECTION 113. LEGAL HOLIDAYS..............................................17
ARTICLE TWO..................................................................17
Security Forms...............................................................17
SECTION 201. FORMS GENERALLY.............................................17
SECTION 202. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.............18
ARTICLE THREE................................................................18
The Securities...............................................................18
SECTION 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES........................18
SECTION 302. DENOMINATIONS...............................................22
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING..............22
SECTION 304. TEMPORARY SECURITIES........................................24
SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.........25
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES............26
SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED..............27
SECTION 308. PERSONS DEEMED OWNERS.......................................28
SECTION 309. CANCELLATION BY SECURITY REGISTRAR..........................28
SECTION 310. COMPUTATION OF INTEREST.....................................29
SECTION 311. PAYMENT TO BE IN PROPER CURRENCY............................29
ARTICLE FOUR.................................................................29
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Redemption of Securities.....................................................29
SECTION 401. APPLICABILITY OF ARTICLE....................................29
SECTION 402. ELECTION TO REDEEM; NOTICE TO TRUSTEE.......................30
SECTION 403. SELECTION OF SECURITIES TO BE REDEEMED......................30
SECTION 404. NOTICE OF REDEMPTION........................................30
SECTION 405. SECURITIES PAYABLE ON REDEMPTION DATE.......................32
SECTION 406. SECURITIES REDEEMED IN PART.................................32
ARTICLE FIVE.................................................................32
Sinking Funds................................................................32
SECTION 501. APPLICABILITY OF ARTICLE....................................32
SECTION 502. SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES.......33
SECTION 503. REDEMPTION OF SECURITIES FOR SINKING FUND...................33
ARTICLE SIX..................................................................35
Covenants....................................................................35
SECTION 601. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST..................35
SECTION 602. MAINTENANCE OF OFFICE OR AGENCY.............................35
SECTION 603. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST...........36
SECTION 604. CORPORATE EXISTENCE.........................................37
SECTION 605. MAINTENANCE OF PROPERTIES...................................37
SECTION 606. ANNUAL OFFICER'S CERTIFICATE AS TO COMPLIANCE...............37
SECTION 607. WAIVER OF CERTAIN COVENANTS.................................38
SECTION 608. LIMITATION ON LIENS.........................................38
ARTICLE SEVEN................................................................41
Satisfaction and Discharge...................................................41
SECTION 701. SATISFACTION AND DISCHARGE OF SECURITIES....................41
SECTION 702. SATISFACTION AND DISCHARGE OF INDENTURE.....................43
SECTION 703. APPLICATION OF TRUST MONEY..................................44
ARTICLE EIGHT................................................................44
Events of Default; Remedies..................................................44
SECTION 801. EVENTS OF DEFAULT...........................................44
SECTION 802. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT..........45
SECTION 803. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT
BY TRUSTEE..................................................47
SECTION 804. TRUSTEE MAY FILE PROOFS OF CLAIM............................47
SECTION 805. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES.48
SECTION 806. APPLICATION OF MONEY COLLECTED..............................48
SECTION 807. LIMITATION ON SUITS.........................................49
SECTION 808. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL,
PREMIUM AND INTEREST...........................49
SECTION 809. RESTORATION OF RIGHTS AND REMEDIES..........................49
SECTION 810. RIGHTS AND REMEDIES CUMULATIVE..............................50
SECTION 811. DELAY OR OMISSION NOT WAIVER................................50
SECTION 812. CONTROL BY HOLDERS OF SECURITIES............................50
SECTION 813. WAIVER OF PAST DEFAULTS.....................................51
SECTION 814. UNDERTAKING FOR COSTS.......................................51
SECTION 815. WAIVER OF STAY OR EXTENSION LAWS............................51
ARTICLE NINE.................................................................52
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The Trustee..................................................................52
SECTION 901. CERTAIN DUTIES AND RESPONSIBILITIES.........................52
SECTION 902. NOTICE OF DEFAULTS..........................................52
SECTION 903. CERTAIN RIGHTS OF TRUSTEE...................................53
SECTION 904. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES......54
SECTION 905. MAY HOLD SECURITIES.........................................54
SECTION 906. MONEY HELD IN TRUST.........................................54
SECTION 907. COMPENSATION AND REIMBURSEMENT..............................54
SECTION 908. DISQUALIFICATION; CONFLICTING INTERESTS.....................55
SECTION 909. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.....................55
SECTION 910. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR...........56
SECTION 911. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR......................58
SECTION 912. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.59
SECTION 913. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY...........59
SECTION 914. CO-TRUSTEES AND SEPARATE TRUSTEES...........................60
SECTION 915. APPOINTMENT OF AUTHENTICATING AGENT.........................61
ARTICLE TEN..................................................................63
Holders' Lists and Reports by Trustee and Company............................63
SECTION 1001. LISTS OF HOLDERS...........................................63
SECTION 1002. REPORTS BY TRUSTEE AND COMPANY.............................63
ARTICLE ELEVEN...............................................................63
Consolidation, Merger, Conveyance or Other Transfer..........................63
SECTION 1101. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS.......63
SECTION 1102. SUCCESSOR CORPORATION SUBSTITUTED..........................64
ARTICLE TWELVE...............................................................64
Supplemental Indentures......................................................64
SECTION 1201. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.........64
SECTION 1202. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS............66
SECTION 1203. EXECUTION OF SUPPLEMENTAL INDENTURES.......................67
SECTION 1204. EFFECT OF SUPPLEMENTAL INDENTURES..........................67
SECTION 1205. CONFORMITY WITH TRUST INDENTURE ACT........................67
SECTION 1206. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES.........68
SECTION 1207. MODIFICATION WITHOUT SUPPLEMENTAL INDENTURE................68
ARTICLE THIRTEEN.............................................................68
Meetings of Holders; Action Without Meeting..................................68
SECTION 1301. PURPOSES FOR WHICH MEETINGS MAY BE CALLED..................68
SECTION 1302. CALL, NOTICE AND PLACE OF MEETINGS.........................69
SECTION 1303. PERSONS ENTITLED TO VOTE AT MEETINGS.......................69
SECTION 1304. QUORUM; ACTION.............................................70
SECTION 1305. ATTENDANCE AT MEETINGS; DETERMINATION OF VOTING RIGHTS;....70
SECTION 1306. COUNTING VOTES AND RECORDING ACTION OF MEETINGS............71
SECTION 1307. ACTION WITHOUT MEETING.....................................72
ARTICLE FOURTEEN.............................................................72
Immunity of Incorporators, Shareholders, Officers and Directors..............72
SECTION 1401. LIABILITY SOLELY CORPORATE.................................72
Signatures...................................................................71
iv
<PAGE>
INDENTURE, dated as of March 1, 2000, between DPL INC., a
corporation duly organized and existing under the laws of the State of Ohio
(herein called the "Company"), having its principal office at Courthouse Plaza
Southwest, Dayton, Ohio 45402, and BANK ONE TRUST COMPANY, NATIONAL ASSOCIATION,
a national banking association, having its principal corporate trust office at 1
Bank One Plaza, Suite IL1-0126, Chicago, Illinois 60670-0126, as Trustee (herein
called the "Trustee").
RECITAL OF THE COMPANY
The Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (herein called the
"Securities"), in an unlimited aggregate principal amount to be issued in one or
more series as contemplated herein; and all acts necessary to make this
Indenture a valid agreement of the Company have been performed.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires, capitalized terms used herein
shall have the meanings assigned to them in Article One of this Indenture.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Securities or of any
series thereof, as follows:
ARTICLE ONE
Definitions and Other Provisions of General Application
SECTION 101. DEFINITIONS.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned
to them in this Article and include the plural as well as the
singular;
(b) all terms used herein without definition which are defined in
the Trust Indenture Act, either directly or by reference therein,
have the meanings assigned to them therein;
(c) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles in the United States, and, except as
otherwise herein expressly provided, the term "generally accepted
accounting principles" with respect to any computation required
or permitted hereunder shall mean such accounting principles as
are generally accepted in the United States at the date of such
computation or, at the election of the Company from time to time,
at the date of the execution and delivery of this Indenture;
provided, however, that in determining generally accepted
accounting principles applicable to the Company, the Company
shall, to the extent required, conform to any order, rule or
5
<PAGE>
regulation of any administrative agency, regulatory authority or
other governmental body having jurisdiction over the Company; and
(d) the words "herein", "hereof" and "hereunder" and other words
of similar import refer to this Indenture as a whole and not to
any particular Article, Section or other subdivision.
Certain terms, used principally in Article Nine and Section 608,
are defined in that Article and Section.
"ACT", when used with respect to any Holder of a Security, has the
meaning specified in Section 104.
"AFFILIATE" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"CONTROL" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or through one or
more intermediaries, whether through the ownership of voting securities, by
contract or otherwise; and the terms "CONTROLLING" and "CONTROLLED" have
meanings correlative to the foregoing.
"ASSETS" has the meaning specified in Section 608(b)(4).
"AUTHENTICATING AGENT" means any Person (other than the Company or an
Affiliate of the Company) authorized by the Trustee pursuant to Section 915 to
act on behalf of the Trustee to authenticate one or more series of Securities or
Tranche thereof.
"AUTHORIZED OFFICER" means the Chairman of the Board, the President,
any Vice President, the Treasurer, any Assistant Treasurer, or any other officer
or agent of the Company duly authorized by the Board of Directors to act in
respect of matters relating to this Indenture.
"BOARD OF DIRECTORS" means either the board of directors of the
Company or any committee thereof duly authorized to act in respect of matters
relating to this Indenture.
"BOARD RESOLUTION" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"BUSINESS DAY", when used with respect to a Place of Payment or any
other particular location specified in the Securities or this Indenture, means
any day, other than a Saturday or Sunday, which is not a day on which banking
institutions or trust companies in such Place of Payment or other location are
generally authorized or required by law, regulation or executive order to remain
closed, except as may be otherwise specified as contemplated by Section 301.
"CASH TRANSACTION" has the meaning specified in Section 913(a).
"COMMISSION" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934, as
amended, or, if at any time after the date of execution and delivery of this
Indenture such Commission is not existing and performing the duties now assigned
to it under the Trust Indenture Act, then the body, if any, performing such
duties at such time.
6
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"COMPANY" means the Person named as the "Company" in the first
paragraph of this Indenture until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"COMPANY REQUEST" or "COMPANY ORDER" means a written request or order
signed in the name of the Company by an Authorized Officer and delivered to the
Trustee.
"CONSOLIDATED CAPITALIZATION" has the meaning specified in Section
608(b)(1).
"CONSOLIDATED INDEBTEDNESS" has the meaning specified in Section
608(b)(5).
"CONSOLIDATED SHAREHOLDERS' EQUITY" has the meaning specified in
Section 608(b)(2).
"CONSOLIDATED SUBSIDIARY" has the meaning specified in Section
608(b)(3).
"CORPORATE TRUST OFFICE" means the principal corporate trust office of
the Trustee at which, at any particular time, its corporate trust business shall
be administered, which office at the date of execution and delivery of this
Indenture is located at 1 Bank One Plaza, Suite IL1-0126, Chicago, Illinois
60670-0126, Attention: Global Corporate Trust Services, except for purposes of
Section 602, such term shall mean the office or agency of the Trustee in the
Borough of Manhattan, The City of New York, which office at the date hereof is
located at 14 Wall Street, Eighth Floor, New York, NY 10005.
"CORPORATION" means a corporation, association, company, joint stock
company or business trust.
"DEFAULTED INTEREST" has the meaning specified in Section 307.
"DISCOUNT SECURITY" means any Security which provides for an amount
less than the principal amount thereof to be due and payable upon a declaration
of acceleration of the Maturity thereof pursuant to Section 802. "Interest" with
respect to a Discount Security means interest, if any, borne by such Security at
a Stated Interest Rate.
"DOLLAR" or "$" means a dollar or other equivalent unit in such coin
or currency of the United States as at the time shall be legal tender for the
payment of public and private debts.
"DP&L" means The Dayton Power and Light Company, an Ohio corporation,
its successors and assigns.
"ELIGIBLE OBLIGATIONS" means:
(a) with respect to Securities denominated in Dollars, Government
Obligations; or
(b) with respect to Securities denominated in a currency other than
Dollars or in a composite currency, such other obligations or
instruments as shall be specified with respect to such Securities, as
contemplated by Section 301.
"EVENT OF DEFAULT" has the meaning specified in Section 801.
"GOVERNMENTAL AUTHORITY" means the government of the United States or
of any State or Territory thereof or of the District of Columbia or of any
county, municipality or other political subdivision of any of the foregoing, or
any department, agency, authority or other instrumentality of any of the
foregoing.
7
<PAGE>
"GOVERNMENT OBLIGATIONS" means:
(a) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States
and entitled to the benefit of the full faith and credit thereof; and
(b) certificates, depositary receipts or other instruments which
evidence a direct ownership interest in obligations described in
clause (a) above or in any specific interest or principal payments due
in respect thereof; provided, however, that the custodian of such
obligations or specific interest or principal payments shall be a bank
or trust company (which may include the Trustee or any Paying Agent)
subject to Federal or state supervision or examination with a combined
capital and surplus of at least $50,000,000; and provided, further,
that except as may be otherwise required by law, such custodian shall
be obligated to pay to the holders of such certificates, depositary
receipts or other instruments the full amount received by such
custodian in respect of such obligations or specific payments and
shall not be permitted to make any deduction therefrom.
"HOLDER" means a Person in whose name a Security is registered in the Security
Register.
"INDENTURE" means this instrument as originally executed and delivered and as it
may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof
and shall include the terms of a particular series of Securities established as
contemplated by Section 301.
"INTEREST PAYMENT DATE", when used with respect to any Security, means the
Stated Maturity of an installment of interest on such Security.
"MANDATORY SINKING FUND PAYMENT" has the meaning specified in Section 501.
"MATURITY", when used with respect to any Security, means the date on which the
principal or an installment of principal of such Security becomes due and
payable as provided in such Security or in this Indenture, whether at the Stated
Maturity, by declaration of acceleration, upon call for redemption or otherwise.
"OFFICER'S CERTIFICATE" means a certificate signed by an Authorized Officer and
delivered to the Trustee.
"OPINION OF COUNSEL" means a written opinion of counsel, who may be counsel for
the Company, or other counsel, which opinion shall be acceptable to the Trustee.
"OPTIONAL SINKING FUND PAYMENT" has the meaning specified in Section 501.
"OUTSTANDING", when used with respect to Securities, means, as of the date of
determination, all Securities theretofore authenticated and delivered under this
Indenture, except:
(a) Securities theretofore canceled or delivered to the Security
Registrar for cancellation;
(b) Securities deemed to have been paid in accordance with Section
701; and
8
<PAGE>
(c) Securities which have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to
the Trustee proof satisfactory to it and the Company that such
Securities are held by a bona fide purchaser or purchasers in whose
hands such Securities are valid obligations of the Company;
provided, however, that in determining whether or not the Holders of the
requisite principal amount of the Securities Outstanding under this Indenture,
or the Outstanding Securities of any series or Tranche, have given any request,
demand, authorization, direction, notice, consent or waiver hereunder or whether
or not a quorum is present at a meeting of Holders of Securities,
(x) Securities owned by the Company or any other obligor upon the
Securities or any Affiliate of the Company or of such other obligor
(unless the Company, such Affiliate or such obligor owns all
Securities Outstanding under this Indenture, or all Outstanding
Securities of each such series and each such Tranche, as the case may
be, determined without regard to this clause (x)) shall be disregarded
and deemed not to be Outstanding, except that, in determining whether
the Trustee shall be protected in relying upon any such request,
demand, authorization, direction, notice, consent or waiver or upon
any such determination as to the presence of a quorum, only Securities
which the Trustee knows to be so owned shall be so disregarded;
provided, however, that Securities so owned which have been pledged in
good faith may be regarded as Outstanding if the pledgee establishes
to the satisfaction of the Trustee the pledgee's right so to act with
respect to such Securities and that the pledgee is not the Company or
any other obligor upon the Securities or any Affiliate of the Company
or of such other obligor; and
(y) the principal amount of a Discount Security that shall be deemed
to be Outstanding for such purposes shall be the amount of the
principal thereof that would be due and payable as of the date of such
determination upon a declaration of acceleration of the Maturity
thereof pursuant to Section 802 provided that (i) if, as of such date,
the principal amount payable at the Stated Maturity of a Security is
not determinable, the principal amount of such Security which shall be
deemed to be Outstanding shall be the amount as specified or
determined as contemplated by Section 301, and (ii) the principal
amount of a Security denominated in one or more foreign currencies or
currency units which shall be deemed to be Outstanding shall be the
U.S. dollar equivalent, determined as of such date in the manner
provided as contemplated by Section 301, of the principal amount of
such Security (or, in the case of Security described in clause (i) or
(ii) above, of the amount determined as provided in such clause);
provided, further, that, in the case of any Security the principal of which is
payable from time to time without presentment or surrender, the principal amount
of such Security that shall be deemed to be Outstanding at any time for all
purposes of this Indenture shall be the original principal amount thereof less
the aggregate amount of principal thereof theretofore paid.
"PAYING AGENT" means any Person, including the Company, authorized by the
Company to pay the principal of, and premium, if any, or interest, if any, on
any Securities on behalf of the Company.
9
<PAGE>
"PERIODIC OFFERING" means an offering of Securities of a series from time to
time any or all of the specific terms of which Securities, including without
limitation the rate or rates of interest, if any, thereon, the Stated Maturity
or Maturities thereof and the redemption provisions, if any, with respect
thereto, are to be determined by the Company or its agents upon the issuance of
such Securities.
"PERSON" means any individual, corporation, partnership, joint venture, trust or
unincorporated organization or any Governmental Authority.
"PLACE OF PAYMENT", when used with respect to the Securities of any series, or
any Tranche thereof, means the place or places, specified as contemplated by
Section 301, at which, subject to Section 602, principal of and premium, if any,
and interest, if any, on the Securities of such series or Tranche are payable.
"PREDECESSOR SECURITY" of any particular Security means every previous Security
evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed (to the extent
lawful) to evidence the same debt as the mutilated, destroyed, lost or stolen
Security.
"REDEMPTION DATE", when used with respect to any Security to be redeemed, means
the date fixed for such redemption by or pursuant to this Indenture.
"REDEMPTION PRICE", when used with respect to any Security to be redeemed, means
the price at which it is to be redeemed pursuant to this Indenture.
"REGULAR RECORD DATE" for the interest payable on any Interest Payment Date on
the Securities of any series means the date specified for that purpose as
contemplated by Section 301.
"REQUIRED CURRENCY" has the meaning specified in Section 311.
"RESPONSIBLE OFFICER", when used with respect to the Trustee, means any officer
of the Trustee assigned by the Trustee to administer its corporate trust
matters.
"SECURITIES" has the meaning stated in the first recital of this Indenture and
more particularly means any securities authenticated and delivered under this
Indenture.
"SECURITY REGISTER" and "SECURITY REGISTRAR" have the respective meanings
specified in Section 305.
"SELF-LIQUIDATING PAPER" has the meaning specified in Section 913(b).
"SPECIAL RECORD DATE" for the payment of any Defaulted Interest on the
Securities of any series means a date fixed by the Trustee pursuant to Section
307.
"STATED INTEREST RATE" means a rate (whether fixed or variable) at which an
obligation by its terms is stated to bear simple interest. Any calculation or
other determination to be made under this Indenture by reference to the Stated
Interest Rate on a Security shall be made without regard to the effective
interest cost to the Company of such Security and without regard to the Stated
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Interest Rate on, or the effective cost to the Company of, any other
indebtedness in respect of which the Company's obligations are evidenced or
secured in whole or in part by such Security.
"STATED MATURITY", when used with respect to any obligation or any installment
of principal thereof or interest thereon, means the date on which the principal
of such obligation or such installment of principal or interest is stated to be
due and payable (without regard to any provisions for redemption, prepayment,
acceleration, purchase or extension).
"SUBSIDIARY" means a corporation more than 50% of the outstanding voting stock
of which is owned, directly or indirectly, by the Company or by one or more
other Subsidiaries, or by the Company and one or more other Subsidiaries. For
the purposes of this definition, "voting stock" means stock that ordinarily has
voting power for the election of directors, whether at all times or only so long
as no senior class of stock has such voting power by reason of any contingency.
"TRANCHE" means a group of Securities which (a) are of the same series and (b)
have identical terms except as to principal amount and/or date of issuance.
"TRUST INDENTURE ACT" means, as of any time, the Trust Indenture Act of 1939, or
any successor statute, as in effect at such time.
"TRUSTEE" means the Person named as the "Trustee" in the first paragraph of this
Indenture until a successor Trustee shall have become such with respect to one
or more series of Securities pursuant to the applicable provisions of this
Indenture, and thereafter "Trustee" shall mean or include each Person who is
then a Trustee hereunder, and if at any time there is more than one such Person,
"Trustee" as used with respect to the Securities of any series shall mean the
Trustee with respect to Securities of that series.
"UNITED STATES" means the United States of America, its Territories, its
possessions and other areas subject to its political jurisdiction.
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS.
Except as otherwise expressly provided in this Indenture, upon any
application or request by the Company to the Trustee to take any
action under any provision of this Indenture, the Company shall
furnish to the Trustee an Officer's Certificate stating that all
conditions precedent, if any, provided for in this Indenture relating
to the proposed action (including any covenants compliance with which
constitutes a condition precedent) have been complied with and an
Opinion of Counsel stating that in the opinion of such counsel all
such conditions precedent, if any, have been complied with, except
that in the case of any such application or request as to which the
furnishing of such documents is specifically required by any provision
of this Indenture relating to such particular application or request,
no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
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(a) a statement that each Person signing such certificate or opinion
has read such covenant or condition and the definitions herein
relating thereto;
(b) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(c) a statement that, in the opinion of each such Person, such Person
has made such examination or investigation as is necessary to enable
such Person to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such Person,
such condition or covenant has been complied with.
SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary
that all such matters be certified by, or covered by the opinion of,
only one such Person, or that they be so certified or covered by only
one document, but one such Person may certify or give an opinion with
respect to some matters and one or more other such Persons as to other
matters, and any such Person may certify or give an opinion as to such
matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion
of, or representations by, counsel, unless such officer knows, or in
the exercise of reasonable care should know, that the certificate or
opinion or representations with respect to the matters upon which such
Officer's Certificate or opinion are based are erroneous. Any such
certificate or Opinion of Counsel may be based, insofar as it relates
to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that
the information with respect to such factual matters is in the
possession of the Company, unless such counsel knows, or in the
exercise of reasonable care should know, that the certificate or
opinion or representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions
or other instruments under this Indenture, they may, but need not, be
consolidated and form one instrument.
Whenever, subsequent to the receipt by the Trustee of any Board
Resolution, Officer's Certificate, Opinion of Counsel or other
document or instrument, a clerical, typographical or other inadvertent
or unintentional error or omission shall be discovered therein, a new
document or instrument may be substituted therefor in corrected form
with the same force and effect as if originally filed in the corrected
form and, irrespective of the date or dates of the actual execution
and/or delivery thereof, such substitute document or instrument shall
be deemed to have been executed and/or delivered as of the date or
dates required with respect to the document or instrument for which it
is substituted. Anything in this Indenture to the contrary
notwithstanding, if any such corrective document or instrument
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indicates that action has been taken by or at the request of the
Company which could not have been taken had the original document or
instrument not contained such error or omission, the action so taken
shall not be invalidated or otherwise rendered ineffective but shall
be and remain in full force and effect, except to the extent that such
action was a result of willful misconduct or bad faith. Without
limiting the generality of the foregoing, any Securities issued under
the authority of such defective document or instrument shall
nevertheless be the valid obligations of the Company entitled to the
benefits of this Indenture equally and ratably with all other
Outstanding Securities, except as aforesaid.
SECTION 104. ACTS OF HOLDERS.
(a) Any request, demand, authorization, direction, notice, consent,
election, waiver or other action provided by this Indenture to be
made, given or taken by Holders may be embodied in and evidenced by
one or more instruments of substantially similar tenor signed by such
Holders in person or by an agent duly appointed in writing or,
alternatively, may be embodied in and evidenced by the record of
Holders voting in favor thereof, either in person or by proxies duly
appointed in writing, at any meeting of Holders duly called and held
in accordance with the provisions of Article Thirteen, or a
combination of such instruments and any such record. Except as herein
otherwise expressly provided, such action shall become effective when
such instrument or instruments or record or both are delivered to the
Trustee and, where it is hereby expressly required, to the Company.
Such instrument or instruments and any such record (and the action
embodied therein and evidenced thereby) are herein sometimes referred
to as the "Act" of the Holders signing such instrument or instruments
and so voting at any such meeting. Proof of execution of any such
instrument or of a writing appointing any such agent, or of the
holding by any Person of a Security, shall be sufficient for any
purpose of this Indenture and (subject to Section 901) conclusive in
favor of the Trustee and the Company, if made in the manner provided
in this Section. The record of any meeting of Holders shall be proved
in the manner provided in Section 1306.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of
such execution or by a certificate of a notary public or other officer
authorized by law to take acknowledgments of deeds, certifying that
the individual signing such instrument or writing acknowledged to him
the execution thereof or may be proved in any other manner which the
Trustee and the Company deem sufficient. Where such execution is by a
signer acting in a capacity other than his individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his
authority.
(c) The principal amount (except as otherwise contemplated in clause
(y) of the first proviso to the definition of Outstanding) and serial
numbers of Securities held by any Person, and the date of holding the
same, shall be proved by the Security Register.
(d) Any request, demand, authorization, direction, notice, consent,
election, waiver or other Act of a Holder shall bind every future
Holder of the same Security and the Holder of every Security issued
upon the registration of transfer thereof or in exchange therefor or
in lieu thereof in respect of anything done, omitted or suffered to be
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done by the Trustee or the Company in reliance thereon, whether or not
notation of such action is made upon such Security.
(e) Until such time as written instruments shall have been delivered
to the Trustee with respect to the requisite percentage of principal
amount of Securities for the action contemplated by such instruments,
any such instrument executed and delivered by or on behalf of a Holder
may be revoked with respect to any or all of such Securities by
written notice by such Holder or any subsequent Holder, proven in the
manner in which such instrument was proven.
(f) Securities of any series, or any Tranche thereof, authenticated
and delivered after any Act of Holders may, and shall if required by
the Trustee, bear a notation in form approved by the Trustee as to any
action taken by such Act of Holders. If the Company shall so
determine, new Securities of any series, or any Tranche thereof, so
modified as to conform, in the opinion of the Trustee and the Company,
to such action may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for Outstanding
Securities of such series or Tranche.
(g) If the Company shall solicit from Holders any request, demand,
authorization, direction, notice, consent, waiver or other Act, the
Company may, at its option, fix in advance a record date for the
determination of Holders entitled to give such request, demand,
authorization, direction, notice, consent, waiver or other Act, but
the Company shall have no obligation to do so. If such a record date
is fixed, such request, demand, authorization, direction, notice,
consent, waiver or other Act may be given before or after such record
date, but only the Holders of record at the close of business on the
record date shall be deemed to be Holders for the purposes of
determining whether Holders of the requisite proportion of the
Outstanding Securities have authorized or agreed or consented to such
request, demand, authorization, direction, notice, consent, waiver or
other Act, and for that purpose the Outstanding Securities shall be
computed as of the record date.
SECTION 105. NOTICES, ETC. TO TRUSTEE AND COMPANY.
Any request, demand, authorization, direction, notice, consent,
election, waiver or Act of Holders or other document provided or
permitted by this Indenture to be made upon, given or furnished to, or
filed with, the Trustee by any Holder or by the Company, or the
Company by the Trustee or by any Holder, shall be sufficient for every
purpose hereunder (unless otherwise herein expressly provided) if in
writing and delivered personally to an officer or other responsible
employee of the addressee, or transmitted by facsimile transmission or
other direct written electronic means to such telephone number or
other electronic communications address as the parties hereto shall
from time to time designate, or transmitted by certified or registered
mail, charges prepaid, to the applicable address set opposite such
party's name below or to such other address as either party hereto may
from time to time designate:
If to the Trustee, to:
Bank One Trust Company, National Association
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1 Bank One Plaza, Suite IL1-0126
Chicago, Illinois 60670-0126
Attention: Global Corporate Trust Services Division/Larry Kusch
Telephone: (312) 336-9774
Telecopy: (312) 407-2088
If to the Company, to:
DPL Inc.
Courthouse Plaza Southwest
Dayton, Ohio 45402
Attention: Corporate Secretary
Telephone: (937) 224-6000
Telecopy: (937) 259-7386
Any communication contemplated herein shall be deemed to have been
made, given, furnished and filed if personally delivered, on the date
of delivery, if transmitted by facsimile transmission or other direct
written electronic means, on the date of transmission, and if
transmitted by certified or registered mail, on the date of receipt.
SECTION 106. NOTICE TO HOLDERS OF SECURITIES; WAIVER.
Except as otherwise expressly provided herein, where this Indenture
provides for notice to Holders of any event, such notice shall be
sufficiently given, and shall be deemed given, to Holders if in
writing and mailed, first-class postage prepaid, to each Holder
affected by such event, at the address of such Holder as it appears in
the Security Register, not later than the latest date, if any, and not
earlier than the earliest date, if any, prescribed for the giving of
such notice.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such
notice to Holders by mail, then such notification as shall be made
with the approval of the Trustee in a manner reasonably calculated, to
the extent practicable under the circumstances, to provide prompt
notice, shall constitute a sufficient notification for every purpose
hereunder. In any case where notice to Holders is given by mail,
neither the failure to mail such notice, nor any defect in any notice
so mailed, to any particular Holder shall affect the sufficiency of
such notice with respect to other Holders.
Any notice required by this Indenture may be waived in writing by the
Person entitled to receive such notice, either before or after the
event otherwise to be specified therein, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders shall be filed
with the Trustee, but such filing shall not be a condition precedent
to the validity of any action taken in reliance upon such waiver.
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SECTION 107. CONFLICT WITH TRUST INDENTURE ACT.
If any provision of this Indenture limits, qualifies or conflicts with
another provision hereof which is required or deemed to be included in
this Indenture by, or is otherwise governed by, any of the provisions
of the Trust Indenture Act, such other provision shall control; and if
any provision hereof otherwise conflicts with the Trust Indenture Act,
the Trust Indenture Act shall control.
SECTION 108. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings in this Indenture and the Table of
Contents are for convenience only and shall not affect the
construction hereof.
SECTION 109. SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the Company and
Trustee shall bind their respective successors and assigns, whether so
expressed or not.
SECTION 110. SEPARABILITY CLAUSE.
In case any provision in this Indenture or the Securities shall be
invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
SECTION 111. BENEFITS OF INDENTURE.
Nothing in this Indenture or the Securities, express or implied, shall
give to any Person, other than the parties hereto, their successors
hereunder and the Holders, any benefit or any legal or equitable
right, remedy or claim under this Indenture.
SECTION 112. GOVERNING LAW.
This Indenture and the Securities shall be governed by and construed
in accordance with the laws of the State of New York, without regard
to the principles of conflicts of laws of the State of New York other
than Section 5-1401 of the New York General Obligations Law.
SECTION 113. LEGAL HOLIDAYS.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day at any Place of
Payment, then (notwithstanding any other provision of this Indenture
or of the Securities other than a provision in Securities of any
series, or any Tranche thereof, or in the Board Resolution or
Officer's Certificate which establishes the terms of the Securities of
such series or Tranche, which specifically states that such provision
shall apply in lieu of this Section) payment of interest or principal
and premium, if any, need not be made at such Place of Payment on such
date, but may be made on the next succeeding Business Day at such
Place of Payment, with the same force and effect, and in the same
amount, as if made on the Interest Payment Date or Redemption Date, or
at the Stated Maturity, as the case may be, and, if such payment is
made or duly provided for on such Business Day, no interest shall
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accrue on the amount so payable for the period from and after such
Interest Payment Date, Redemption Date or Stated Maturity, as the case
may be, to such Business Day.
ARTICLE TWO
SECURITY FORMS
SECTION 201. FORMS GENERALLY.
The definitive Securities of each series shall be in substantially the
form or forms thereof established in the indenture supplemental hereto
establishing such series or in a Board Resolution establishing such
series, or in an Officer's Certificate pursuant to such supplemental
indenture or Board Resolution, in each case with such appropriate
insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture, and may have such letters,
numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the
rules of any securities exchange or as may, consistently herewith, be
determined by the officers executing such Securities, as evidenced by
their execution of the Securities. If the form or forms of Securities
of any series are established in a Board Resolution or in an Officer's
Certificate pursuant to a Board Resolution, such Board Resolution and
Officer's Certificate, if any, shall be delivered to the Trustee at or
prior to the delivery of the Company Order contemplated by Section 303
for the authentication and delivery of such Securities.
Unless otherwise specified as contemplated by Sections 301 or 1201(g),
the Securities of each series shall be issuable in registered form
without coupons. The definitive Securities shall be produced in such
manner as shall be determined by the officers executing such
Securities, as evidenced by their execution thereof.
SECTION 202. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
The Trustee's certificate of authentication shall be in substantially
the form set forth below:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
Dated:
---------------------------------
as Trustee
By:
------------------------------
Authorized Signatory
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ARTICLE THREE
THE SECURITIES
SECTION 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. Subject to the
last paragraph of this Section, prior to the authentication and
delivery of Securities of any series there shall be established by
specification in a supplemental indenture or in a Board Resolution, or
in an Officer's Certificate pursuant to a supplemental indenture or a
Board Resolution:
(a) the title of the Securities of such series (which shall
distinguish the Securities of such series from Securities of all other
series);
(b) any limit upon the aggregate principal amount of the Securities of
such series which may be authenticated and delivered under this
Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of such series pursuant to Section 304, 305, 306, 406 or
1206 and except for any Securities which, pursuant to Section 303, are
deemed never to have been authenticated and delivered hereunder);
(c) the Person or Persons (without specific identification) to whom
interest on Securities of such series, or any Tranche thereof, shall
be payable on any Interest Payment Date, if other than the Persons in
whose names such Securities (or one or more Predecessor Securities)
are registered at the close of business on the Regular Record Date for
such interest;
(d) the date or dates on which the principal of the Securities of such
series, or any Tranche thereof, is payable or any formulary or other
method or other means by which such date or dates shall be determined,
by reference to an index or other fact or event ascertainable outside
of this Indenture or otherwise (without regard to any provisions for
redemption, prepayment, acceleration, purchase or extension);
(e) the rate or rates at which the Securities of such series, or any
Tranche thereof, shall bear interest, if any (including the rate or
rates at which overdue principal shall bear interest, if different
from the rate or rates at which such Securities shall bear interest
prior to Maturity, and, if applicable, the rate or rates at which
overdue premium or interest shall bear interest, if any), or any
formulary or other method or other means by which such rate or rates
shall be determined, by reference to an index or other fact or event
ascertainable outside of this Indenture or otherwise; the date or
dates from which such interest shall accrue; the Interest Payment
Dates on which such interest shall be payable and the Regular Record
Date, if any, for the interest payable on such Securities on any
Interest Payment Date; and the basis of computation of interest, if
other than as provided in Section 310;
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(f) the place or places at which or methods by which (1) the principal
of and premium, if any, and interest, if any, on Securities of such
series, or any Tranche thereof, shall be payable, (2) registration of
transfer of Securities of such series, or any Tranche thereof, may be
effected, (3) exchanges of Securities of such series, or any Tranche
thereof, may be effected and (4) notices and demands to or upon the
Company in respect of the Securities of such series, or any Tranche
thereof, and this Indenture may be served; the Security Registrar for
such series or Tranche; and if such is the case, that the principal of
such Securities shall be payable without presentment or surrender
thereof;
(g) the period or periods within which, or the date or dates on which,
the price or prices at which and the terms and conditions upon which
the Securities of such series, or any Tranche thereof, may be
redeemed, in whole or in part, at the option of the Company and any
restrictions on such redemptions, including but not limited to a
restriction on a partial redemption by the Company of the Securities
of any series, or any Tranche thereof, resulting in delisting of such
Securities from any national exchange;
(h) the obligation or obligations, if any, of the Company to redeem or
purchase the Securities of such series, or any Tranche thereof,
pursuant to any sinking fund or other mandatory redemption provisions
or at the option of a Holder thereof and the period or periods within
which or the date or dates on which, the price or prices at which and
the terms and conditions upon which such Securities shall be redeemed
or purchased, in whole or in part, pursuant to such obligation, and
applicable exceptions to the requirements of Section 404 in the case
of mandatory redemption or redemption at the option of the Holder;
(i) the denominations in which Securities of such series, or any
Tranche thereof, shall be issuable if other than denominations of
$1,000 and any integral multiple thereof;
(j) the currency or currencies, including composite currencies, in
which payment of the principal of and premium, if any, and interest,
if any, on the Securities of such series, or any Tranche thereof,
shall be payable (if other than in Dollars);
(k) if the principal of or premium, if any, or interest, if any, on
the Securities of such series, or any Tranche thereof, are to be
payable, at the election of the Company or a Holder thereof, in a coin
or currency other than that in which the Securities are stated to be
payable, the period or periods within which and the terms and
conditions upon which, such election may be made;
(l) if the principal of or premium, if any, or interest, if any, on
the Securities of such series, or any Tranche thereof, are to be
payable, or are to be payable at the election of the Company or a
Holder thereof, in securities or other property, the type and amount
of such securities or other property, or the formulary or other method
or other means by which such amount shall be determined, and the
period or periods within which, and the terms and conditions upon
which, any such election may be made;
(m) if the amount payable in respect of principal of or premium, if
any, or interest, if any, on the Securities of such series, or any
Tranche thereof, may be determined with reference to an index or other
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fact or event ascertainable outside of this Indenture, the manner in
which such amounts shall be determined to the extent not established
pursuant to clause (e) of this paragraph;
(n) if other than the principal amount thereof, the portion of the
principal amount of Securities of such series, or any Tranche thereof,
which shall be payable upon declaration of acceleration of the
Maturity thereof pursuant to Section 802;
(o) any Events of Default, in addition to those specified in Section
801, with respect to the Securities of such series, and any covenants
of the Company for the benefit of the Holders of the Securities of
such series, or any Tranche thereof, in addition to those set forth in
Article Six;
(p) the terms, if any, pursuant to which the Securities of such
series, or any Tranche thereof, may be converted into or exchanged for
shares of capital stock or other securities of the Company or any
other Person;
(q) the obligations or instruments, if any, which shall be considered
to be Eligible Obligations in respect of the Securities of such
series, or any Tranche thereof, denominated in a currency other than
Dollars or in a composite currency, and any additional or alternative
provisions for the reinstatement of the Company's indebtedness in
respect of such Securities after the satisfaction and discharge
thereof as provided in Section 701;
(r) if the Securities of such series, or any Tranche thereof, are to
be issued in global form, (i) any limitations on the rights of the
Holder or Holders of such Securities to transfer or exchange the same
or to obtain the registration of transfer thereof, (ii) any
limitations on the rights of the Holder or Holders thereof to obtain
certificates therefor in definitive form in lieu of temporary form and
(iii) any and all other matters incidental to such Securities;
(s) if the Securities of such series, or any Tranche thereof, are to
be issuable as bearer securities, any and all matters incidental
thereto which are not specifically addressed in a supplemental
indenture as contemplated by clause (g) of Section 1201;
(t) to the extent not established pursuant to clause (r) of this
paragraph, any limitations on the rights of the Holders of the
Securities of such Series, or any Tranche thereof, to transfer or
exchange such Securities or to obtain the registration of transfer
thereof; and if a service charge will be made for the registration of
transfer or exchange of Securities of such series, or any Tranche
thereof, the amount or terms thereof;
(u) any exceptions to Section 113, or variation in the definition of
Business Day, with respect to the Securities of such series, or any
Tranche thereof;
(v) any collateral security, assurance or guarantee for the Securities
of such series;
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(w) the non-applicability of Section 608 to the Securities of such
Series or any exceptions or modifications of Section 608 with respect
to the Securities of such Series;
(x) any rights or duties of another Person to assume the obligations
of the Company with respect to the Securities of such series (whether
as joint obligor, primary obligor, secondary obligor or substitute
obligor) and any rights or duties to discharge and release any obligor
with respect to the Securities of such series or the Indenture to the
extent related to such series; and
(y) any other terms of the Securities of such series, or any Tranche
thereof, not inconsistent with the provisions of this Indenture.
With respect to Securities of a series subject to a Periodic Offering,
the indenture supplemental hereto or the Board Resolution which
establishes such series, or the Officer's Certificate pursuant to such
supplemental indenture or Board Resolution, as the case may be, may
provide general terms or parameters for Securities of such series and
provide either that the specific terms of Securities of such series,
or any Tranche thereof, shall be specified in a Company Order or that
such terms shall be determined by the Company or its agents in
accordance with procedures specified in a Company Order as
contemplated by the clause (b) of Section 303.
SECTION 302. DENOMINATIONS.
Unless otherwise provided as contemplated by Section 301 with respect
to any series of Securities, or any Tranche thereof, the Securities of
each series shall be issuable in minimum denominations of $1,000 and
any integral multiple thereof.
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
Unless otherwise provided as contemplated by Section 301 with respect
to any series of Securities, or any Tranche thereof, the Securities
shall be executed on behalf of the Company by an Authorized Officer
and may have the corporate seal of the Company affixed thereto or
reproduced thereon attested by any other Authorized Officer or by the
Secretary or an Assistant Secretary of the Company. The signature of
any or all of these officers on the Securities may be manual or
facsimile.
Securities bearing the manual or facsimile signatures of individuals
who were at the time of execution Authorized Officers or the Secretary
or an Assistant Secretary of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such
Securities or did not hold such offices at the date of such
Securities.
The Trustee shall authenticate and deliver Securities of a series, for
original issue, at one time or from time to time in accordance with
the Company Order referred to below, upon receipt by the Trustee of:
(a) the instrument or instruments establishing the form or forms and
terms of such series, as provided in Sections 201 and 301;
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(b) a Company Order requesting the authentication and delivery of such
Securities and, to the extent that the terms of such Securities shall
not have been established in an indenture supplemental hereto or in a
Board Resolution, or in an Officer's Certificate pursuant to a
supplemental indenture or Board Resolution, all as contemplated by
Sections 201 and 301, either (i) establishing such terms or (ii) in
the case of Securities of a series subject to a Periodic Offering,
specifying procedures, acceptable to the Trustee, by which such terms
are to be established (which procedures may provide, to the extent
acceptable to the Trustee, for authentication and delivery pursuant to
oral or electronic instructions from the Company or any agent or
agents thereof, which oral instructions are to be promptly confirmed
electronically or in writing), in either case in accordance with the
instrument or instruments delivered pursuant to clause (a) above;
(c) an Officer's Certificate stating that (i) the Company is not, and
upon the authentication by the Trustee of the series of Securities,
will not be in default under any of the terms or covenants contained
in the Indenture, and (ii) all conditions that must be met by the
Company to issue Securities under the Indenture have been met;
(d) the Securities of such series, executed on behalf of the Company
by an Authorized Officer;
(e) an Opinion of Counsel to the effect that:
(i) the form or forms of such Securities have been duly
authorized by the Company and have been established in conformity
with the provisions of this Indenture;
(ii) the terms of such Securities have been duly authorized by
the Company and have been established in conformity with the
provisions of this Indenture; and
(iii) such Securities, when authenticated and delivered by the
Trustee and issued and delivered by the Company in the manner and
subject to any conditions specified in such Opinion of Counsel,
will have been duly issued under this Indenture and will
constitute valid and legally binding obligations of the Company,
entitled to the benefits provided by this Indenture, and
enforceable in accordance with their terms, subject, as to
enforcement, to laws relating to or affecting generally the
enforcement of creditors' rights, including, without limitation,
bankruptcy and insolvency laws and to general principles of
equity (regardless of whether such enforceability is considered
in a proceeding in equity or at law);
provided, however, that, with respect to Securities of a series
subject to a Periodic Offering, the Trustee shall be entitled to
receive such Opinion of Counsel only once at or prior to the time of
the first authentication of such Securities (provided that such
Opinion of Counsel addresses the authentication and delivery of all
Securities of such series) and that in lieu of the opinions described
in clauses (ii) and (iii) above Counsel may opine that:
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(x) when the terms of such Securities shall have been established
pursuant to a Company Order or Orders or pursuant to such
procedures (acceptable to the Trustee) as may be specified from
time to time by a Company Order or Orders, all as contemplated by
and in accordance with the instrument or instruments delivered
pursuant to clause (a) above, such terms will have been duly
authorized by the Company and will have been established in
conformity with the provisions of this Indenture; and
(y) such Securities, when authenticated and delivered by the
Trustee in accordance with this Indenture and the Company Order
or Orders or specified procedures referred to in paragraph (x)
above and issued and delivered by the Company in the manner and
subject to any conditions specified in such Opinion of Counsel,
will have been duly issued under this Indenture and will
constitute valid and legally binding obligations of the Company,
entitled to the benefits provided by the Indenture, and
enforceable in accordance with their terms, subject, as to
enforcement, to laws relating to or affecting generally the
enforcement of creditors' rights, including, without limitation,
bankruptcy and insolvency laws, and to general principles of
equity (regardless of whether such enforceability is considered
in a proceeding in equity or at law).
With respect to Securities of a series subject to a Periodic Offering,
the Trustee may conclusively rely, as to the authorization by the
Company of any of such Securities, the form, terms thereof and the
legality, validity, binding effect and enforceability thereof, and
compliance of the authentication and delivery thereof with the terms
and conditions of this Indenture, upon the Opinion of Counsel and
other documents delivered pursuant to Sections 201 and 301 and this
Section, as applicable, at or prior to the time of the first
authentication of Securities of such series unless and until such
opinion or other documents have been superseded or revoked or expire
by their terms. In connection with the authentication and delivery of
Securities of a series subject to a Periodic Offering, the Trustee
shall be entitled to assume that the Company's instructions to
authenticate and deliver such Securities do not violate any applicable
law or any applicable rule, regulation or order of any Governmental
Authority having jurisdiction over the Company.
If the form or terms of the Securities of any series have been
established by or pursuant to a Board Resolution or an Officer's
Certificate as permitted by Sections 201 or 301, the Trustee shall not
be required to authenticate such Securities if the issuance of such
Securities pursuant to this Indenture will materially or adversely
affect the Trustee's own rights, duties or immunities under the
Securities and this Indenture or otherwise in a manner which is not
reasonably acceptable to the Trustee.
Unless otherwise specified as contemplated by Section 301 with respect
to any series of Securities, or any Tranche thereof, each Security
shall be dated the date of its authentication.
Unless otherwise specified as contemplated by Section 301 with respect
to any series of Securities, no Security shall be entitled to any
benefit under this Indenture or be valid or obligatory for any purpose
unless there appears on such Security a certificate of authentication
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substantially in the form provided for herein executed by the Trustee
or an Authenticating Agent by manual signature, and such certificate
upon any Security shall be conclusive evidence, and the only evidence,
that such Security has been duly authenticated and delivered hereunder
and is entitled to the benefits of this Indenture. Notwithstanding the
foregoing, if any Security shall have been authenticated and delivered
hereunder to the Company, or any Person acting on its behalf, but
shall never have been issued and sold by the Company, and the Company
shall deliver such Security to the Trustee for cancellation as
provided in Section 309 together with a written statement (which need
not comply with Section 102 and need not be accompanied by an Opinion
of Counsel) stating that such Security has never been issued and sold
by the Company, for all purposes of this Indenture such Security shall
be deemed never to have been authenticated and delivered hereunder and
shall never be entitled to the benefits hereof.
SECTION 304. TEMPORARY SECURITIES.
Pending the preparation of definitive Securities of any series, or any
Tranche thereof, the Company may execute, and upon Company Order the
Trustee shall authenticate and deliver, temporary Securities which are
printed, lithographed, typewritten, mimeographed or otherwise
produced, in any authorized denomination, substantially of the tenor
of the definitive Securities in lieu of which they are issued, with
such appropriate insertions, omissions, substitutions and other
variations as the officers executing such Securities may determine, as
evidenced by their execution of such Securities.
Unless otherwise specified as contemplated by Section 301 with respect
to the Securities of any series, or any Tranche thereof, if temporary
Securities of any series are issued, the Company will cause definitive
Securities of that series to be prepared without unreasonable delay
after the preparation of definitive Securities of such series or
Tranche, the temporary Securities of such series or Tranche shall be
exchangeable, without charge to the Holder thereof, for definitive
Securities of such series or Tranche upon surrender of such temporary
Securities at the office or agency of the Company maintained pursuant
to Section 602 in a Place of Payment for such Securities. Upon such
surrender of temporary Securities for such exchange, the Company
shall, except as aforesaid, execute and the Trustee shall authenticate
and deliver in exchange therefor definitive Securities of the same
series and Tranche of authorized denominations and of like tenor and
aggregate principal amount.
Until exchanged in full as hereinabove provided, temporary Securities
shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities of the same series and Tranche and
of like tenor authenticated and delivered hereunder.
SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.
The Company shall cause to be kept in each office designated pursuant
to Section 602, with respect to the Securities of each series, a
register (all registers kept in accordance with this Section being
collectively referred to as the "Security Register") in which, subject
to such reasonable regulations as it may prescribe, the Company shall
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provide for the registration of Securities of such series, or any
Tranche thereof, and the registration of transfer thereof. The Company
shall designate one Person to maintain the Security Register for the
Securities of each series on a consolidated basis, and such Person is
referred to herein, with respect to such series, as the "Security
Registrar." Anything herein to the contrary notwithstanding, the
Company may designate one or more of its offices as an office in which
a register with respect to the Securities of one or more series shall
be maintained. The Security Register shall be open for inspection by
the Trustee and the Company at all reasonable times.
Except as otherwise specified as contemplated by Section 301 with
respect to the Securities of any series, or any Tranche thereof, upon
surrender for registration of transfer of any Security of such series
or Tranche at the office or agency of the Company maintained pursuant
to Section 602 in a Place of Payment for such series or Tranche, the
Company shall execute, and the Trustee shall authenticate and deliver,
in the name of the designated transferee or transferees, one or more
new Securities of the same series and Tranche, of authorized
denominations and of like tenor and aggregate principal amount.
Except as otherwise specified as contemplated by Section 301 with
respect to the Securities of any series, or any Tranche thereof, any
Security of such series or Tranche may be exchanged at the option of
the Holder, for one or more new Securities of the same series and
Tranche, of authorized denominations and of like tenor and aggregate
principal amount, upon surrender of the Securities to be exchanged at
any such office or agency. Whenever any Securities are so surrendered
for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Securities which the Holder making the
exchange is entitled to receive.
All Securities delivered upon any registration of transfer or exchange
of Securities shall be valid obligations of the Company, evidencing
the same debt, and entitled to the same benefits under this Indenture,
as the Securities surrendered upon such registration of transfer or
exchange.
Every Security presented or surrendered for registration of transfer
or for exchange shall (if so required by the Company, the Trustee or
the Security Registrar) be duly endorsed or shall be accompanied by a
written instrument of transfer in form satisfactory to the Company,
the Trustee or the Security Registrar, as the case may be, duly
executed by the Holder thereof or his attorney duly authorized in
writing.
Unless otherwise specified as contemplated by Section 301 with respect
to Securities of any series, or any Tranche thereof, no service charge
shall be made for any registration of transfer or exchange of
Securities, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of
Securities, other than exchanges pursuant to Section 304, 406 or 1206
not involving any transfer.
The Company shall not be required to execute or to provide for the
registration of transfer of or the exchange of (a) Securities of any
series, or any Tranche thereof, during a period of 15 days immediately
preceding the date notice of redemption of any such securities is
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mailed or (b) any Security so selected for redemption in whole or in
part, except the unredeemed portion of any Security being redeemed in
part.
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES.
If any mutilated Security is surrendered to the Trustee, the Company
shall execute and the Trustee shall authenticate and deliver in
exchange therefor a new Security of the same series and Tranche, and
of like tenor and principal amount and bearing a number not
contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (a)
evidence to their satisfaction of the ownership of and the
destruction, loss or theft of any Security and (b) such security or
indemnity as may be reasonably required by them to save each of them
and any agent of either of them harmless, then, in the absence of
notice to the Company or the Trustee that such Security is held by a
Person purporting to be the owner of such Security, the Company shall
execute and the Trustee shall authenticate and deliver, in lieu of any
such destroyed, lost or stolen Security, a new Security of the same
series and Tranche, and of like tenor and principal amount and bearing
a number not contemporaneously outstanding.
Notwithstanding the foregoing, in case any such mutilated, destroyed,
lost or stolen Security has become or is about to become due and
payable, the Company in its discretion may, instead of issuing a new
Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any
other reasonable expenses (including the fees and expenses of the
Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in
lieu of any destroyed, lost or stolen Security shall constitute an
original additional contractual obligation of the Company, whether or
not the destroyed, lost or stolen Security shall be at any time
enforceable by anyone other than the Holder of such new Security, and
any such new Security shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other
Securities of such series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen
Securities.
SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
Unless otherwise specified as contemplated by Section 301 with respect
to the Securities of any series, or any Tranche thereof, interest on
any Security which is payable, and is punctually paid or duly provided
for, on any Interest Payment Date shall be paid to the Person in whose
name that Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for
such interest.
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Any interest on any Security of any series which is payable, but is
not punctually paid or duly provided for, on any Interest Payment Date
(herein called "Defaulted Interest") shall forthwith cease to be
payable to the Holder on the related Regular Record Date by virtue of
having been such Holder, and such Defaulted Interest may be paid by
the Company, at its election in each case, as provided in clause (a)
or (b) below:
(a) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Securities of such series (or their
respective Predecessor Securities) are registered at the close of
business on a date (herein called a "Special Record Date") for the
payment of such Defaulted Interest, which shall be fixed in the
following manner. The Company shall notify the Trustee in writing of
the amount of Defaulted Interest proposed to be paid on each Security
of such series and the date of the proposed payment, and at the same
time the Company shall deposit with the Trustee an amount of money
equal to the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to the
Trustee for such deposit on or prior to the date of the proposed
payment, such money when deposited to be held in trust for the benefit
of the Persons entitled to such Defaulted Interest as in this clause
provided. Thereupon the Trustee shall fix a Special Record Date for
the payment of such Defaulted Interest which shall be not more than 15
days and not less than 10 days prior to the date of the proposed
payment and not less than 10 days after the receipt by the Trustee of
the notice of the proposed payment. The Trustee shall promptly notify
the Company of such Special Record Date and, in the name and at the
expense of the Company, shall promptly cause notice of the proposed
payment of such Defaulted Interest and the Special Record Date
therefor to be mailed, first-class postage prepaid, to each Holder of
Securities of such series at the address of such Holder as it appears
in the Security Register, not less than 10 days prior to such Special
Record Date. Notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor having been so mailed, such
Defaulted Interest shall be paid to the Persons in whose names the
Securities of such series (or their respective Predecessor Securities)
are registered at the close of business on such Special Record Date.
(b) The Company may make payment of any Defaulted Interest on the
Securities of any series in any other lawful manner not inconsistent
with the requirements of any securities exchange on which such
Securities may be listed, and upon such notice as may be required by
such exchange, if, after notice given by the Company to the Trustee of
the proposed payment pursuant to this clause, such manner of payment
shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section and Section 305,
each Security delivered under this Indenture upon registration of
transfer of or in exchange for or in lieu of any other Security shall
carry the rights to interest accrued and unpaid, and to accrue, which
were carried by such other Security.
SECTION 308. PERSONS DEEMED OWNERS.
Prior to due presentment of a Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name such Security is registered as the
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absolute owner of such Security for the purpose of receiving payment
of principal of and premium, if any, and (subject to Sections 305 and
307) interest, if any, on such Security and for all other purposes
whatsoever, whether or not such Security be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall
be affected by notice to the contrary.
SECTION 309. CANCELLATION BY TRUSTEE.
All Securities surrendered for payment, redemption, registration of
transfer or exchange shall, if surrendered to any Person other than
the Trustee, be delivered to the Trustee and, if not theretofore
canceled, shall be promptly canceled by the Trustee. The Company may
at any time deliver to the Trustee for cancellation any Securities
previously authenticated and delivered hereunder which the Company may
have acquired in any manner whatsoever or which the Company shall not
have issued and sold, and all Securities so delivered shall be
promptly canceled by the Trustee. No Securities shall be authenticated
in lieu of or in exchange for any Securities canceled as provided in
this Section, except as expressly permitted by this Indenture. All
canceled Securities held by the Trustee shall be disposed of in
accordance with the customary procedures of the Trustee at the time in
effect. The Security Registrar shall promptly deliver evidence of any
cancellation of a Security in accordance with this Section 309 to the
Trustee and the Company.
SECTION 310. COMPUTATION OF INTEREST.
Except as otherwise specified as contemplated by Section 301 for
Securities of any series, or any Tranche thereof, interest on the
Securities of each series shall be computed on the basis of a 360-day
year consisting of twelve 30-day months and for any period shorter
than a full month, on the basis of the actual number of days elapsed
in such period.
SECTION 311. PAYMENT TO BE IN PROPER CURRENCY.
In the case of the Securities of any series, or any Tranche thereof,
denominated in any currency other than Dollars or in a composite
currency (the "Required Currency"), except as otherwise specified with
respect to such Securities as contemplated by Section 301, the
obligation of the Company to make any payment of the principal
thereof, or the premium or interest thereon, shall not be discharged
or satisfied by any tender by the Company, or recovery by the Trustee,
in any currency other than the Required Currency, except to the extent
that such tender or recovery shall result in the Trustee timely
holding the full amount of the Required Currency then due and payable.
If any such tender or recovery is in a currency other than the
Required Currency, the Trustee may take such actions as it considers
appropriate to exchange such currency for the Required Currency. The
costs and risks of any such exchange, including without limitation the
risks of delay and exchange rate fluctuation, shall be borne by the
Company, the Company shall remain fully liable for any shortfall or
delinquency in the full amount of Required Currency then due and
payable, and in no circumstances shall the Trustee be liable therefor
except in the case of its negligence or willful misconduct.
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ARTICLE FOUR
REDEMPTION OF SECURITIES
SECTION 401. APPLICABILITY OF ARTICLE.
Securities of any series, or any Tranche thereof, which are redeemable
before their Stated Maturity shall be redeemable in accordance with
their terms and (except as otherwise specified as contemplated by
Section 301 for Securities of such series or Tranche) in accordance
with this Article.
SECTION 402. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem any Securities shall be
evidenced by a Board Resolution or an Officer's Certificate. The
Company shall, at least 45 days prior to the Redemption Date fixed by
the Company (unless a shorter notice shall be satisfactory to the
Trustee), notify the Trustee in writing of such Redemption Date and of
the principal amount of such Securities to be redeemed. In the case of
any redemption of Securities (a) prior to the expiration of any
restriction on such redemption provided in the terms of such
Securities or elsewhere in this Indenture or (b) pursuant to an
election of the Company which is subject to a condition specified in
the terms of such Securities, the Company shall furnish the Trustee
with an Officer's Certificate evidencing compliance with such
restriction or condition.
SECTION 403. SELECTION OF SECURITIES TO BE REDEEMED.
If less than all the Securities of any series, or any Tranche thereof,
are to be redeemed, the particular Securities to be redeemed shall be
selected by the Trustee from the Outstanding Securities of such series
or Tranche not previously called for redemption, by such method as
shall be provided for any particular series, or, in the absence of any
such provision, by such method as the Trustee shall deem fair and
appropriate and which may provide for the selection for redemption of
portions (equal to the minimum authorized denomination for Securities
of such series or Tranche or any integral multiple thereof) of the
principal amount of Securities of such series or Tranche of a
denomination larger than the minimum authorized denomination for
Securities of such series or Tranche; provided, however, that if, as
indicated in an Officer's Certificate, the Company shall have offered
to purchase all or any principal amount of the Securities then
Outstanding of any series, or any Tranche thereof, and less than all
of such Securities as to which such offer was made shall have been
tendered to the Company for such purchase, the Trustee, if so directed
by Company Order, shall select for redemption all or any principal
amount of such Securities which have not been so tendered.
The Trustee shall promptly notify the Company and the Security
Registrar in writing of the Securities selected for redemption and, in
the case of any Securities selected to be redeemed in part, the
principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities
shall relate, in the case of any Securities redeemed or to be redeemed
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only in part, to the portion of the principal amount of such
Securities which has been or is to be redeemed.
SECTION 404. NOTICE OF REDEMPTION.
Notice of redemption shall be given in the manner provided in Section
106 to the Holders of the Securities to be redeemed not less than 30
nor more than 60 days prior to the Redemption Date.
All notices of redemption shall state:
(a) the Redemption Date,
(b) the Redemption Price (if known),
(c) if less than all the Securities of any series or Tranche are to be
redeemed, the identification of the particular Securities to be
redeemed and the portion of the principal amount of any Security to be
redeemed in part,
(d) that on the Redemption Date the Redemption Price, together with
accrued interest, if any, to the Redemption Date, will become due and
payable upon each such Security to be redeemed and, if applicable,
that interest thereon will cease to accrue on and after said date,
(e) the place or places where such Securities are to be surrendered
for payment of the Redemption Price and accrued interest, if any,
unless it shall have been specified as contemplated by Section 301
with respect to such Securities that such surrender shall not be
required,
(f) that the redemption is for a sinking or other fund, if such is the
case,
(g) CUSIP number, if any, and
(h) such other matters as the Company shall deem desirable or
appropriate.
Unless otherwise specified with respect to any Securities in
accordance with Section 301, with respect to any notice of redemption
of Securities at the election of the Company, unless, upon the giving
of such notice, such Securities shall be deemed to have been paid in
accordance with Section 701, such notice may state that such
redemption shall be conditional upon the receipt by the Paying Agent
or Agents for such Securities, on or prior to the date fixed for such
redemption, of money sufficient to pay the principal of and premium,
if any, and interest, if any, on such Securities and that if such
money shall not have been so received such notice shall be of no force
or effect and the Company shall not be required to redeem such
Securities. In the event that such notice of redemption contains such
a condition and such money is not so received, the redemption shall
not be made and within a reasonable time thereafter notice shall be
given, in the manner in which the notice of redemption was given, that
such money was not so received and such redemption was not required to
be made, and the Paying Agent or Agents for the Securities otherwise
to have been redeemed shall promptly return to the Holders thereof any
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of such Securities which had been surrendered for payment upon such
redemption.
Notice of redemption of Securities to be redeemed at the election of
the Company, and any notice of non-satisfaction of a condition for
redemption as aforesaid, shall be given by the Company or, at the
Company's request, by the Security Registrar in the name and at the
expense of the Company. Notice of mandatory redemption of Securities
shall be given by the Security Registrar in the name and at the
expense of the Company.
SECTION 405. SECURITIES PAYABLE ON REDEMPTION DATE.
Notice of redemption having been given as aforesaid, and the
conditions, if any, set forth in such notice having been satisfied,
the Securities or portions thereof so to be redeemed shall, on the
Redemption Date, become due and payable at the Redemption Price
therein specified, and from and after such date (unless, in the case
of an unconditional notice of redemption, the Company shall default in
the payment of the Redemption Price and accrued interest, if any) such
Securities or portions thereof, if interest-bearing, shall cease to
bear interest. Upon surrender of any such Security for redemption in
accordance with such notice, such Security or portion thereof shall be
paid by the Company at the Redemption Price, together with accrued
interest, if any, to the Redemption Date; provided, however, that no
such surrender shall be a condition to such payment if so specified as
contemplated by Section 301 with respect to such Security; and
provided, further, that except as otherwise specified as contemplated
by Section 301 with respect to such Security, any installment of
interest on any Security the Stated Maturity of which installment is
on or prior to the Redemption Date shall be payable to the Holder of
such Security, or one or more Predecessor Securities, registered as
such at the close of business on the related Regular Record Date
according to the terms of such Security and subject to the provisions
of Section 307.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any)
shall, until paid, bear interest from the Redemption Date at the rate
prescribed therefor in the Security.
SECTION 406. SECURITIES REDEEMED IN PART.
Upon the surrender of any Security which is to be redeemed only in
part at a Place of Payment therefor (with, if the Company or the
Trustee so requires, due endorsement by, or a written instrument of
transfer in form satisfactory to the Company and the Trustee duly
executed by, the Holder thereof or his attorney duly authorized in
writing), the Company shall execute, and the Trustee shall
authenticate and deliver to the Holder of such Security, without
service charge, a new Security or Securities of the same series and
Tranche, of any authorized denomination requested by such Holder and
of like tenor and in aggregate principal amount equal to and in
exchange for the unredeemed portion of the principal of the Security
so surrendered.
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ARTICLE FIVE
SINKING FUNDS
SECTION 501. APPLICABILITY OF ARTICLE.
The provisions of this Article shall be applicable to any sinking fund
for the retirement of the Securities of any series, or any Tranche
thereof, except as otherwise specified as contemplated by Section 301
for Securities of such series or Tranche.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series, or any Tranche thereof, is herein
referred to as a "mandatory sinking fund payment", and any payment in
excess of such minimum amount provided for by the terms of Securities
of any series, or any Tranche thereof, is herein referred to as an
"optional sinking fund payment". If provided for by the terms of
Securities of any series, or any Tranche thereof, the cash amount of
any sinking fund payment may be subject to reduction as provided in
Section 502. Each sinking fund payment shall be applied to the
redemption of Securities of the series or Tranche in respect of which
it was made as provided for by the terms of such Securities.
SECTION 502. SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES.
The Company (a) may deliver to the Trustee Outstanding Securities
(other than any previously called for redemption) of a series or
Tranche in respect of which a mandatory sinking fund payment is to be
made and (b) may apply as a credit Securities of such series or
Tranche which have been redeemed either at the election of the Company
pursuant to the terms of such Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of such
mandatory sinking fund payment with respect to the Securities of such
series; provided, however, that no Securities shall be applied in
satisfaction of a mandatory sinking fund payment if such Securities
shall have been previously so applied. Securities so applied shall be
received and credited for such purpose by the Trustee at the
Redemption Price specified in such Securities for redemption through
operation of the sinking fund and the amount of such mandatory sinking
fund payment shall be reduced accordingly.
SECTION 503. REDEMPTION OF SECURITIES FOR SINKING FUND.
Not less than 45 days prior to each sinking fund payment date for the
Securities of any series, or any Tranche thereof, the Company shall
deliver to the Trustee an Officer's Certificate specifying:
(a) the amount of the next succeeding mandatory sinking fund payment
for such series or Tranche;
(b) the amount, if any, of the optional sinking fund payment to be
made together with such mandatory sinking fund payment;
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(c) the aggregate sinking fund payment;
(d) the portion, if any, of such aggregate sinking fund payment which
is to be satisfied by the payment of cash; and
(e) the portion, if any, of such aggregate sinking fund payment which
is to be satisfied by delivering and crediting Securities of such
series or Tranche pursuant to Section 502 and stating the basis for
such credit and that such Securities have not previously been so
credited, and the Company shall also deliver to the Trustee any
Securities to be so delivered.
If the Company shall not have delivered such Officer's Certificate
and, to the extent applicable, all such Securities, on or prior to the
45th day prior to such sinking fund payment date, the sinking fund
payment for such series or Tranche in respect of such sinking fund
payment date shall be made entirely in cash in the amount of the
mandatory sinking fund payment. Not less than 30 days before each such
sinking fund payment date the Trustee shall select the Securities to
be redeemed upon such sinking fund payment date in the manner
specified in Section 403 and cause notice of the redemption thereof to
be given in the name of and at the expense of the Company in the
manner provided in Section 404. Such notice having been duly given,
the redemption of such Securities shall be made upon the terms and in
the manner stated in Sections 405 and 406.
The Trustee shall not redeem or cause to be redeemed any Security of a
series with sinking fund moneys or mail any notice of redemption of
Securities of such series by operation of the sinking fund during the
continuance of a default in payment of interest with respect to
Securities of that series or an Event of Default with respect to the
Securities of that series except that, where the mailing of notice of
redemption of any Securities shall theretofore have been made, the
Trustee shall redeem or cause to be redeemed such Securities, provided
that it shall have received from the Company a sum sufficient for such
redemption. Except as aforesaid, any moneys in the sinking fund for
such series at the time when any such default or Event of Default,
shall occur, and any moneys thereafter paid into the sinking fund,
shall, during the continuance of such default or Event of Default, be
deemed to have been collected under Article Five and held for the
payment of all such Securities. In case such Event of Default shall
have been waived as provided in Section 813 hereof or the default or
Event of Default cured on or before the 45th day preceding the sinking
fund payment date, such moneys shall thereafter be applied on the next
succeeding sinking fund payment date in accordance with this Section
503 to the redemption of such Securities.
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ARTICLE SIX
COVENANTS
SECTION 601. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.
The Company shall pay the principal of and premium, if any, and
interest, if any, on the Securities of each series in accordance with
the terms of such Securities and this Indenture.
SECTION 602. MAINTENANCE OF OFFICE OR AGENCY.
The Company shall maintain in each Place of Payment for the Securities
of each series, or any Tranche thereof, an office or agency where
payment of such Securities shall be made, where the registration of
transfer or exchange of such Securities may be effected and where
notices and demands to or upon the Company in respect of such
Securities and this Indenture may be served. The Company shall give
prompt written notice to the Trustee of the location, and any change
in the location, of each such office or agency and prompt notice to
the Holders of any such change in the manner specified in Section 106.
If at any time the Company shall fail to maintain any such required
office or agency in respect of Securities of any series, or any
Tranche thereof, or shall fail to furnish the Trustee with the address
thereof, payment of such Securities shall be made, registration of
transfer or exchange thereof may be effected and notices and demands
in respect thereof may be served at the Corporate Trust Office of the
Trustee, and the Company hereby appoints the Trustee as its agent for
all such purposes in any such event.
The Company may also from time to time designate one or more other
offices or agencies with respect to the Securities of one or more
series, or any Tranche thereof, for any or all of the foregoing
purposes and may from time to time rescind such designations;
provided, however, that, unless otherwise specified as contemplated by
Section 301 with respect to the Securities of such series or Tranche,
no such designation or rescission shall in any manner relieve the
Company of its obligation to maintain an office or agency for such
purposes in each Place of Payment for such Securities in accordance
with the requirements set forth above. The Company shall give prompt
written notice to the Trustee, and prompt notice to the Holders in the
manner specified in Section 106, of any such designation or rescission
and of any change in the location of any such other office or agency.
Anything herein to the contrary notwithstanding, any office or agency
required by this Section may be maintained at an office of the
Company, in which event the Company shall perform all functions to be
performed at such office or agency.
SECTION 603. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST.
If the Company shall at any time act as its own Paying Agent with
respect to the Securities of any series, or any Tranche thereof, it
shall, on or before each due date of the principal of and premium, if
any, and interest, if any, on any of such Securities, segregate and
hold in trust for the benefit of the Persons entitled thereto a sum
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sufficient to pay the principal and premium or interest so becoming
due until such sums shall be paid to such Persons or otherwise
disposed of as herein provided. The Company shall promptly notify the
Trustee of any failure by the Company (or any other obligor on such
Securities) to make any payment of principal of or premium, if any, or
interest, if any, on such Securities.
Whenever the Company shall have one or more Paying Agents for the
Securities of any series, or any Tranche thereof, it shall, on or
before each due date of the principal of and premium, if any, and
interest, if any, on such Securities, deposit with such Paying Agents
sums sufficient (without duplication) to pay the principal and premium
or interest so becoming due, such sums to be held in trust for the
benefit of the Persons entitled to such principal, premium or
interest, and (unless such Paying Agent is the Trustee) the Company
shall promptly notify the Trustee of any failure by it so to act.
The Company shall cause each Paying Agent for the Securities of any
series, or any Tranche thereof, other than the Company or the Trustee,
to execute and deliver to the Trustee an instrument in which such
Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent shall:
(a) hold all sums held by it for the payment of the principal of and
premium, if any, or interest, if any, on such Securities in trust for
the benefit of the Persons entitled thereto until such sums shall be
paid to such Persons or otherwise disposed of as herein provided;
(b) give the Trustee notice of any failure by the Company (or any
other obligor upon such Securities) to make any payment of principal
of or premium, if any, or interest, if any, on such Securities; and
(c) at any time during the continuance of any such failure, upon the
written request of the Trustee, forthwith pay to the Trustee all sums
so held in trust by such Paying Agent and furnish to the Trustee such
information as it possesses regarding the names and addresses of the
Persons entitled to such sums.
The Company may at any time pay, or by Company Order direct any Paying
Agent to pay, to the Trustee all sums held in trust by the Company or
such Paying Agent, such sums to be held by the Trustee upon the same
trusts as those upon which such sums were held by the Company or such
Paying Agent and, if so stated in a Company Order delivered to the
Trustee, in accordance with the provisions of Article Seven; and, upon
such payment by any Paying Agent to the Trustee, such Paying Agent
shall be released from all further liability with respect to such
money. The Company initially authorizes the Trustee to act as Paying
Agent for the Securities on its behalf. The Company may at any time
and from time to time authorize one or more Persons to act as Paying
Agent in addition to or in place of the Trustee with respect to any
series of Securities issued under this Indenture.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of and
premium, if any, or interest, if any, on any Security and remaining
unclaimed for two years after such principal and premium, if any, or
interest has become due and payable shall be paid to the Company on
Company Request, or, if then held by the Company, shall be discharged
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from such trust; and, upon such payment or discharge, the Holder of
such Security shall, as an unsecured general creditor and not as a
Holder of an Outstanding Security, look only to the Company for
payment of the amount so due and payable and remaining unpaid, and all
liability of the Trustee or such Paying Agent with respect to such
trust money, and all liability of the Company as trustee thereof,
shall thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such payment to the
Company, may at the expense of the Company cause to be mailed, on one
occasion only, notice to such Holder that such money remains unclaimed
and that, after a date specified therein, which shall not be less than
30 days from the date of such mailing, any unclaimed balance of such
money then remaining will be paid to the Company.
SECTION 604. CORPORATE EXISTENCE.
Subject to the rights of the Company under Article Eleven, the Company
shall do or cause to be done all things necessary to preserve and keep
in full force and effect its corporate existence.
SECTION 605. MAINTENANCE OF PROPERTIES.
The Company shall cause (or, with respect to property owned in common
with others, make reasonable effort to cause) all its properties used
or useful in the conduct of its business to be maintained and kept in
good condition, repair and working order and shall cause (or, with
respect to property owned in common with others, make reasonable
effort to cause) to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as, in the
judgment of the Company, may be necessary so that the business carried
on in connection therewith may be properly conducted; provided,
however, that nothing in this Section shall prevent the Company from
discontinuing, or causing the discontinuance of, the operation and
maintenance of any of its properties if such discontinuance is, in the
judgment of the Company, desirable in the conduct of its business.
SECTION 606. ANNUAL OFFICER'S CERTIFICATE AS TO COMPLIANCE.
Not later than June 1 in each year, commencing June 1, 2000, the
Company shall deliver to the Trustee an Officer's Certificate which
need not comply with Section 102, as to such officer's knowledge of
the Company's compliance with all conditions and covenants under this
Indenture, such compliance to be determined without regard to any
period of grace or requirement of notice under this Indenture.
SECTION 607. WAIVER OF CERTAIN COVENANTS.
The Company may omit in any particular instance to comply with any
term, provision or condition set forth in (a) Section 602 or any
additional covenant or restriction specified with respect to the
Securities of any series, or any Tranche thereof, as contemplated by
Section 301, if before the time for such compliance the Holders of a
majority in aggregate principal amount of the Outstanding Securities
of all series and Tranches with respect to which compliance with
Section 602 or such additional covenant or restriction is to be
omitted, considered as one class, shall, by Act of such Holders,
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either waive such compliance in such instance or generally waive
compliance with such term, provision or condition and (b) Section 604,
605 or Article Eleven if before the time for such compliance the
Holders of a majority in principal amount of Securities Outstanding
under this Indenture shall, by Act of such Holders, either waive such
compliance in such instance or generally waive compliance with such
term, provision or condition; but, in the case of (a) or (b), no such
waiver shall extend to or affect such term, provision or condition
except to the extent so expressly waived, and, until such waiver shall
become effective, the obligations of the Company and the duties of the
Trustee in respect of any such term, provision or condition shall
remain in full force and effect.
SECTION 608. LIMITATION ON LIENS.
(a) Except as otherwise specified as contemplated by Section 301 for
Securities of any series, so long as any Securities of any series 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 upon, any capital stock of DP&L, to secure any
Indebtedness (hereinafter defined) without making effective provision
whereby the Outstanding Securities 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; provided,
however, that this restriction shall not apply to nor prevent the
creation or existence of:
(1) any mortgage, pledge, security interest, lien or encumbrance upon
any such capital stock created at the time of the acquisition of such
capital stock by the Company or within one year after such time to
secure all or a portion of the purchase price for such capital stock;
(2) any mortgage, pledge, security interest, lien or encumbrance upon
any such capital stock existing thereon at the time of the acquisition
thereof by the Company (whether or not the obligations secured thereby
are assumed by the Company);
(3) any extension, renewal of refunding of any mortgage, pledge,
security interest, lien or encumbrance permitted by Subsection (1) or
(2) above on capital stock of DP&L theretofore subject thereto (or
substantially the same capital stock) or any portion thereof; or
(4) any judgment, levy, execution, attachment or other similar lien
arising in connection with court proceedings, provided that either
(i) the execution or enforcement of each such lien is effectively
stayed within 30 days after entry of the corresponding judgment
(or the corresponding judgment has been discharged within such 30
day period) and the claims secured thereby are being contested in
good faith by appropriate proceedings timely commenced and
diligently prosecuted;
(ii) the payment of each such lien is covered in full by
insurance and the insurance company has not denied or contested
coverage thereof; or
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(iii) so long as each such lien is adequately bonded, any
appropriate legal proceedings that may have been duly initiated
for the review of the corresponding judgment, decree or order
shall not have been fully terminated or the period within which
such proceedings may be initiated shall not have expired.
For purposes of this Section 608, "Indebtedness" means all
indebtedness, whether or not represented by bonds, debentures, notes
or other securities, created or assumed by the Company for the
repayment of money borrowed. All indebtedness for money borrowed
secured by a lien upon property owned by the Company and upon which
indebtedness for money borrowed the Company customarily pays interest,
even though the Company has not assumed or become liable for the
payment of such indebtedness for money borrowed, shall for purposes of
this Section 608 be deemed to be Indebtedness of the Company. All
indebtedness of others for money borrowed which is guaranteed as to
payment of principal by the Company or in effect guaranteed by the
Company through a contingent agreement to purchase such indebtedness
shall for purposes of this Section 608 be deemed to be Indebtedness of
the Company, but no other contingent obligation of the Company in
respect of indebtedness for money borrowed or other obligations
incurred by others shall for purposes of this Section 608 be deemed to
be Indebtedness of the Company.
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, other than as permitted by
Subsections (a)(1) to (a)(3), inclusive, of this Section, the Company
will prior thereto give written notice thereof to the Trustee, and the
Company will prior to or simultaneously with such pledge, mortgage,
hypothecation or grant of security interest, by supplemental indenture
executed to the Trustee (or to the extent legally necessary to another
trustee or an additional or separate trustee), in form satisfactory to
the Trustee, effectively secure (for so long as such other
Indebtedness shall be so secured) all the Securities equally and
ratably with such Indebtedness and with any other indebtedness for
money borrowed similarly entitled to be equally and ratably secured.
(b) Except as otherwise specified as contemplated by Section 301 for
Securities of any series, the provisions of Subsection (a) of this
Section 608 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 mortgages, pledges, security interests, liens or encumbrances
permitted by Subsection (a) of this Section 608) which would otherwise
be subject to the foregoing restriction, does not at the time exceed
10% of Consolidated Capitalization.
For purposes of this Section 608:
(1) The term "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,
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without duplication, (iii) any preference or preferred stock of the
Company or any Consolidated Subsidiary which is subject to mandatory
redemption or sinking fund provisions.
(2) The term "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 generally accepted accounting principles, be
classified on a balance sheet as liabilities, including without
limitation, (i) indebtedness secured 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, (iii) indebtedness of the Company or any of its
Consolidated Subsidiaries that is expressly subordinated in right and
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.
(3) The term "Consolidated Subsidiary" means at any date any
Subsidiary the financial statements of which under generally accepted
accounting principles in the United States would be consolidated with
those of the Company in its consolidated financial statements as of
such date.
(4) The "Assets" of any Person means the whole or any part of its
business, property, assets, cash and receivables.
(5) The term "Consolidated Indebtedness" means total indebtedness as
shown on the consolidated balance sheet of the Company and its
Consolidated Subsidiaries.
ARTICLE SEVEN
SATISFACTION AND DISCHARGE
SECTION 701. SATISFACTION AND DISCHARGE OF SECURITIES.
Any Security or Securities, or any portion of the principal amount
thereof, shall be deemed to have been paid for all purposes of this
Indenture, and the entire indebtedness of the Company in respect
thereof shall be deemed to have been satisfied and discharged, if
there shall have been irrevocably deposited with the Trustee or any
Paying Agent (other than the Company), in trust:
(a) money in an amount which shall be sufficient, or
(b) in the case of a deposit made prior to the Maturity of such
Securities or portions thereof, Eligible Obligations, which shall not
contain provisions permitting the redemption or other prepayment
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thereof at the option of the issuer thereof, the principal of and the
interest on which when due, without any regard to reinvestment
thereof, will provide moneys which, together with the money, if any,
deposited with or held by the Trustee or such Paying Agent, shall be
sufficient, or
(c) a combination of (a) or (b) which shall be sufficient, to pay when
due the principal of and premium, if any, and interest, if any, due
and to become due on such Securities or portions thereof on or prior
to Maturity; provided, however, that in the case of the provision for
payment or redemption of less than all the Securities of any series or
Tranche, such Securities or portions thereof shall have been selected
by the Trustee as provided herein and, in the case of a redemption,
the notice requisite to the validity of such redemption shall have
been given or irrevocable authority shall have been given by the
Company to the Trustee to give such notice, under arrangements
satisfactory to the Trustee; and provided, further, that the Company
shall have delivered to the Trustee and such Paying Agent:
(x) if such deposit shall have been made prior to the Maturity of such
Securities, a Company Order stating that the money and Eligible
Obligations deposited in accordance with this Section shall be held in
trust, as provided in Section 703; and
(y) if Eligible Obligations shall have been deposited, an Opinion of
Counsel that the obligations so deposited constitute Eligible
Obligations and do not contain provisions permitting the redemption or
other prepayment at the option of the issuer thereof, and an opinion
of an independent public accountant of nationally recognized standing,
selected by the Company, to the effect that the requirements set forth
in clause (b) above have been satisfied; and
(z) if such deposit shall have been made prior to the Maturity of such
Securities, an Officer's Certificate stating the Company's intention
that, upon delivery of such Officer's Certificate, its indebtedness in
respect of such Securities or portions thereof will have been
satisfied and discharged as contemplated in this Section.
Upon the deposit of money or Eligible Obligations, or both, in
accordance with this Section, together with the documents required by
clauses (x), (y) and (z) above, the Trustee shall, upon receipt of a
Company Request, acknowledge in writing that the Security or
Securities or portions thereof with respect to which such deposit was
made are deemed to have been paid for all purposes of this Indenture
and that the entire indebtedness of the Company in respect thereof has
been satisfied and discharged as contemplated in this Section. In the
event that all of the conditions set forth in the preceding paragraph
shall have been satisfied in respect of any Securities or portions
thereof except that, for any reason, the Officer's Certificate
specified in clause (z) shall not have been delivered, such Securities
or portions thereof shall nevertheless be deemed to have been paid for
all purposes of this Indenture, and the Holders of such Securities or
portions thereof shall nevertheless be no longer entitled to the
benefits of this Indenture or of any of the covenants of the Company
under Article Six (except the covenants contained in Sections 602 and
603) or any other covenants made in respect of such Securities or
portions thereof as contemplated by Section 301, but the indebtedness
of the Company in respect of such Securities or portions thereof shall
not be deemed to have been satisfied and discharged prior to Maturity
for any other purpose, and the Holders of such Securities or portions
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thereof shall continue to be entitled to look to the Company for
payment of the indebtedness represented thereby; and, upon Company
Request, the Trustee shall acknowledge in writing that such Securities
or portions thereof are deemed to have been paid for all purposes of
this Indenture.
If payment at Stated Maturity of less than all of the Securities of
any series, or any Tranche thereof, is to be provided for in the
manner and with the effect provided in this Section, the Security
Registrar shall select such Securities, or portions of principal
amount thereof, in the manner specified by Section 403 for selection
for redemption of less than all the Securities of a series or Tranche.
In the event that Securities which shall be deemed to have been paid
for purposes of this Indenture, and, if such is the case, in respect
of which the Company's indebtedness shall have been satisfied and
discharged, all as provided in this Section do not mature and are not
to be redeemed within the 60 day period commencing with the date of
the deposit of moneys or Eligible Obligations, as aforesaid, the
Company shall, as promptly as practicable, give a notice, in the same
manner as a notice of redemption with respect to such Securities, to
the Holders of such Securities to the effect that such deposit has
been made and the effect thereof.
Notwithstanding that any Securities shall be deemed to have been paid
for purposes of this Indenture, as aforesaid, the obligations of the
Company and the Trustee in respect of such Securities under Sections
304, 305, 306, 404, 503 (as to notice of redemption), 602, 603, 907
and 915 and this Article Seven shall survive.
The Company shall pay, and shall indemnify the Trustee or any Paying
Agent with which Eligible Obligations shall have been deposited as
provided in this Section against, any tax, fee or other charge imposed
on or assessed against such Eligible Obligations or the principal or
interest received in respect of such Eligible Obligations, including,
but not limited to, any such tax payable by any entity deemed, for tax
purposes, to have been created as a result of such deposit.
Anything herein to the contrary notwithstanding, (a) if, at any time
after a Security would be deemed to have been paid for purposes of
this Indenture, and, if such is the case, the Company's indebtedness
in respect thereof would be deemed to have been satisfied or
discharged, pursuant to this Section (without regard to the provisions
of this paragraph), the Trustee or any Paying Agent, as the case may
be, shall be required to return the money or Eligible Obligations, or
combination thereof, deposited with it as aforesaid to the Company or
its representative under any applicable Federal or State bankruptcy,
insolvency or other similar law, such Security shall thereupon be
deemed retroactively not to have been paid and any satisfaction and
discharge of the Company's indebtedness in respect thereof shall
retroactively be deemed not to have been effected, and such Security
shall be deemed to remain Outstanding and (b) any satisfaction and
discharge of the Company's indebtedness in respect of any Security
shall be subject to the provisions of the last paragraph of Section
603.
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SECTION 702. SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall upon Company Request cease to be of further
effect (except as hereinafter expressly provided), and the Trustee, at
the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture, when
(a) no Securities remain Outstanding hereunder; and
(b) the Company has paid or caused to be paid all other sums payable
hereunder by the Company;
provided, however, that if, in accordance with the last paragraph of
Section 701, any Security, previously deemed to have been paid for
purposes of this Indenture, shall be deemed retroactively not to have
been so paid, this Indenture shall thereupon be deemed retroactively
not to have been satisfied and discharged, as aforesaid, and to remain
in full force and effect, and the Company shall execute and deliver
such instruments as the Trustee shall reasonably request to evidence
and acknowledge the same.
Notwithstanding the satisfaction and discharge of this Indenture as
aforesaid, the obligations of the Company and the Trustee under
Sections 304, 305, 306, 404, 503 (as to notice of redemption), 602,
603, 907 and 915 and this Article Seven shall survive.
Upon satisfaction and discharge of this Indenture as provided in this
Section, the Trustee shall assign, transfer and turn over to the
Company, subject to the lien provided by Section 907, any and all
money, securities and other property then held by the Trustee for the
benefit of the Holders of the Securities other than money and Eligible
Obligations held by the Trustee pursuant to Section 703.
SECTION 703. APPLICATION OF TRUST MONEY.
Neither the Eligible Obligations nor the money deposited pursuant to
Section 701, nor the principal or interest payments on any such
Eligible Obligations, shall be withdrawn or used for any purpose other
than, and shall be held in trust for, the payment of the principal of
and premium, if any, and interest, if any, on the Securities or
portions of principal amount thereof in respect of which such deposit
was made, all subject, however, to the provisions of Section 603;
provided, however, that, so long as there shall not have occurred and
be continuing an Event of Default, any cash received from such
principal or interest payments on such Eligible Obligations, if not
then needed for such purpose, shall, to the extent practicable and
upon Company Request, be invested in Eligible Obligations of the type
described in clause (b) in the first paragraph of Section 701 maturing
at such times and in such amounts as shall be sufficient, together
with any other moneys and the principal of and interest on any other
Eligible Obligations then held by the Trustee, to pay when due the
principal of and premium, if any, and interest, if any, due and to
become due on such Securities or portions thereof on and prior to the
Maturity thereof, and interest earned from such reinvestment shall be
paid over to the Company as received, free and clear of any trust,
lien or pledge under this Indenture except the lien provided by
Section 907; and provided, further, that, so long as there shall not
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have occurred and be continuing an Event of Default, any moneys held
in accordance with this Section on the Maturity of all such Securities
in excess of the amount required to pay the principal of and premium,
if any, and interest, if any, then due on such Securities shall be
paid over to the Company free and clear of any trust, lien or pledge
under this Indenture except the lien provided by Section 907; and
provided, further, that if an Event of Default shall have occurred and
be continuing, moneys to be paid over to the Company pursuant to this
Section shall be held until such Event of Default shall have been
waived or cured.
ARTICLE EIGHT
EVENTS OF DEFAULT; REMEDIES
SECTION 801. EVENTS OF DEFAULT.
"Event of Default", wherever used herein with respect to Securities of
any series, means any one of the following events:
(a) failure to pay interest, if any, on any Security of such series
within 30 days after the same becomes due and payable; or
(b) failure to pay the principal of or premium, if any, on any
Security of such series at its Maturity; or
(c) default in the payment of any sinking fund installment, when and
as due by the terms of a Security of that series;
(d) failure to perform or breach of any covenant or warranty of the
Company in this Indenture (other than a covenant or warranty a default
in the performance of which or breach of which is elsewhere in this
Section specifically dealt with or which has expressly been included
in this Indenture solely for the benefit of one or more series of
Securities other than such series) for a period of 60 days after there
has been given, by registered or certified mail, to the Company by the
Trustee, or to the Company and the Trustee by the Holders of at least
33% in principal amount of the Outstanding Securities of such series,
a written notice specifying such default or breach and requiring it to
be remedied and stating that such notice is a "Notice of Default"
hereunder; or
(e) the entry by a court having jurisdiction in the premises of (1) a
decree or order for relief in respect of the Company in an involuntary
case or proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or (2) a decree or
order adjudging the Company a bankrupt or insolvent, or approving as
properly filed a petition by one or more Persons other than the
Company seeking reorganization, arrangement, adjustment or composition
of or in respect of the Company under any applicable Federal or State
law, or appointing a custodian, receiver, liquidator, assignee,
trustee, sequestrator or other similar official for the Company or for
any substantial part of its property, or ordering the winding up or
liquidation of its affairs, and any such decree or order for relief or
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any such other decree or order shall have remained unstayed and in
effect for a period of 90 consecutive days; or
(f) the commencement by the Company of a voluntary case or proceeding
under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or of any other case or proceeding
to be adjudicated a bankrupt or insolvent, or the consent by it to the
entry of a decree or order for relief in respect of the Company in a
case or proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or to the commencement
of any bankruptcy or insolvency case or proceeding against it, or the
filing by it of a petition or answer or consent seeking reorganization
or relief under any applicable Federal or State law, or the consent by
it to the filing of such petition or to the appointment of or taking
possession by a custodian, receiver, liquidator, assignee, trustee,
sequestrator or similar official of the Company or of any substantial
part of its property, or the making by it of an assignment for the
benefit of creditors, or the admission by it in writing of its
inability to pay its debts generally as they become due, or the
authorization of such action by the Board of Directors; or
(g) any other Event of Default specified with respect to Securities of
such series.
SECTION 802. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default due to the default in payment of principal of,
or premium, if any, or interest on, or payment of any sinking fund
installment with respect to any series of Securities or due to the
default in the performance or breach of any other covenant or warranty
of the Company applicable to the Securities of such series but not
applicable to all Outstanding Securities shall have occurred and be
continuing, either the Trustee or the Holders of not less than 33% in
principal amount of the Securities of such series may then declare the
principal amount (or, if any of the Securities of such series are
Discount Securities, such portion of the principal amount as may be
specified in the terms thereof as contemplated by Section 301) of all
Securities of such series and interest accrued thereon to be due and
payable immediately. If an Event of Default due to default in the
performance of any other of the covenants or agreements herein
applicable to all Outstanding Securities (other than an Event of
Default specified in Section 801(e) or (f)) shall have occurred and be
continuing, either the Trustee or the Holders of not less than 33% in
principal amount of all Securities then Outstanding (considered as one
class), and not the Holders of the Securities of any one of such
series, may declare the principal of all Securities and interest
accrued thereon to be due and payable immediately. If an Event of
Default specified in Section 801(e) or (f) shall have occurred, then
and in every such case, the principal amount (or, if any Securities
are Discount Securities, such portion of the principal amount as may
be specified in the terms thereof) of all the Securities shall,
without any notice to the Company or any other act on the part of the
Trustee or any Holder of the Securities, become and be immediately due
and payable.
As a consequence of each such declaration (herein referred to as a
declaration of acceleration) with respect to Securities of any series,
the principal amount (or portion thereof in the case of Discount
Securities) of such Securities, premium, if any, and interest accrued
thereon shall become due and payable immediately.
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At any time after such a declaration of acceleration with respect to
Securities of any series shall have been made and before a judgment or
decree for payment of the money due shall have been obtained by the
Trustee as hereinafter in this Article provided, the Event or Events
of Default giving rise to such declaration of acceleration shall,
without further act, be deemed to have been waived, and such
declaration and its consequences shall, without further act, be deemed
to have been rescinded and annulled, if
(a) the Company shall have paid or deposited with the Trustee a sum
sufficient to pay
(1) all overdue interest on all Securities of such series;
(2) the principal of and premium, if any, on any Securities of
such series which have become due otherwise than by such
declaration of acceleration and interest thereon at the rate or
rates prescribed therefor in such Securities;
(3) to the extent that payment of such interest is lawful,
interest upon overdue interest, if any, at the rate or rates
prescribed therefor in such Securities;
(4) all amounts due to the Trustee under Section 907;
and
(b) any other Event or Events of Default with respect to Securities of
such series, other than the nonpayment of the principal of and accrued
interest on Securities of such series which shall have become due
solely by such declaration of acceleration, shall have been cured or
waived as provided in Section 813.
No such rescission shall affect any subsequent Event of Default or
impair any right consequent thereon.
SECTION 803. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY TRUSTEE.
If an Event of Default described in clause (a) or (b) of Section 801
shall have occurred and be continuing, the Company shall, upon demand
of the Trustee, pay to it, for the benefit of the Holders of the
Securities of the series with respect to which such Event of Default
shall have occurred, the whole amount then due and payable on such
Securities for principal and premium, if any, and interest, if any,
and, to the extent permitted by law, interest on any overdue principal
and interest, at the rate or rates prescribed therefor in such
Securities, and, in addition thereto, such further amount as shall be
sufficient to cover any amounts due to the Trustee under Section 907.
If the Company shall fail to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express
trust, may institute a judicial proceeding for the collection of the
sums so due and unpaid, may prosecute such proceeding to judgment or
final decree and may enforce the same against the Company or any other
obligor upon such Securities and collect the moneys adjudged or
decreed to be payable in the manner provided by law out of the
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property of the Company or any other obligor upon such Securities,
wherever situated.
If an Event of Default with respect to Securities of any series shall
have occurred and be continuing, the Trustee may in its discretion
proceed to protect and enforce its rights and the rights of the
Holders of Securities of such series by such appropriate judicial
proceedings as the Trustee shall deem most effectual to protect and
enforce any such rights, whether for the specific enforcement of any
covenant or agreement in this Indenture or in aid of the exercise of
any power granted herein, or to enforce any other proper remedy.
SECTION 804. TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or
other judicial proceeding relative to the Company or any other obligor
upon the Securities or the property of the Company or of such other
obligor or their creditors, the Trustee (irrespective of whether the
principal of the Securities shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether
the Trustee shall have made any demand on the Company for the payment
of overdue principal or interest) shall be entitled and empowered, by
intervention in such proceeding or otherwise, (a) to file and prove a
claim for the whole amount of principal, premium, if any, and
interest, if any, owing and unpaid in respect of the Securities and to
file such other papers or documents as may be necessary or advisable
in order to have the claims of the Trustee (including any claim for
amounts due to the Trustee under Section 907) and of the Holders
allowed in such judicial proceeding, and
(b) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator,
sequestrator or other similar official in any such judicial proceeding
is hereby authorized by each Holder to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making
of such payments directly to the Holders, to pay to the Trustee any
amounts due it under Section 907.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any
plan of reorganization, arrangement, adjustment or composition
affecting the Securities or the rights of any Holder thereof or to
authorize the Trustee to vote in respect of the claim of any Holder in
any such proceeding.
SECTION 805. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES.
All rights of action and claims under this Indenture or the Securities
may be prosecuted and enforced by the Trustee without the possession
of any of the Securities or the production thereof in any proceeding
relating thereto, and any such proceeding instituted by the Trustee
shall be brought in its own name as trustee of an express trust, and
any recovery of judgment shall, after provision for the payment of the
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reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, be for the ratable benefit of the
Holders in respect of which such judgment has been recovered.
SECTION 806. APPLICATION OF MONEY COLLECTED.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the
Trustee and, in case of the distribution of such money on account of
principal or premium, if any, or interest, if any, upon presentation
of the Securities in respect of which or for the benefit of which such
money shall have been collected and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully
paid:
FIRST: To the payment of all amounts due the Trustee under Section
907;
SECOND: To the payment of the amounts then due and unpaid upon the
Securities for principal of and premium, if any, and interest, if any,
in respect of which or for the benefit of which such money has been
collected, ratably, without preference or priority of any kind,
according to the amounts due and payable on such Securities for
principal, premium, if any, and interest, if any, respectively; and
THIRD: To the payment of the remainder, if any, to the Company or to
whomsoever may be lawfully entitled to receive the same or as a court
of competent jurisdiction may direct.
SECTION 807. LIMITATION ON SUITS.
No Holder shall have any right to institute any proceeding, judicial
or otherwise, with respect to this Indenture, or for the appointment
of a receiver or trustee, or for any other remedy hereunder, unless:
(a) such Holder shall have previously given written notice to the
Trustee of a continuing Event of Default with respect to the
Securities of such series;
(b) the Holders of a majority in aggregate principal amount of the
Outstanding Securities of all series in respect of which an Event of
Default shall have occurred and be continuing, considered as one
class, shall have made written request to the Trustee to institute
proceedings in respect of such Event of Default in its own name as
Trustee hereunder;
(c) such Holder or Holders shall have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(d) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity shall have failed to institute any such
proceeding; and
(e) no direction inconsistent with such written request shall have
been given to the Trustee during such 60-day period by the Holders of
a majority in aggregate principal amount of the Outstanding Securities
of all series in respect of which an Event of Default shall have
occurred and be continuing, considered as one class;
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it being understood and intended that no one or more of such Holders
shall have any right in any manner whatever by virtue of, or by
availing of, any provision of this Indenture to affect, disturb or
prejudice the rights of any other of such Holders or to obtain or to
seek to obtain priority or preference over any other of such Holders
or to enforce any right under this Indenture, except in the manner
herein provided and for the equal and ratable benefit of all of such
Holders.
SECTION 808. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL,
PREMIUM AND INTEREST.
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and
unconditional, to receive payment of the principal of and premium, if
any, and (subject to Section 307) interest, if any, on such Security
on the Stated Maturity or Maturities expressed in such Security (or,
in the case of redemption, on the Redemption Date) and to institute
suit for the enforcement of any such payment, and such rights shall
not be impaired without the consent of such Holder.
SECTION 809. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding shall
have been discontinued or abandoned for any reason, or shall have been
determined adversely to the Trustee or to such Holder, then and in
every such case, subject to any determination in such proceeding, the
Company, and Trustee and such Holder shall be restored severally and
respectively to their former positions hereunder and thereafter all
rights and remedies of the Trustee and such Holder shall continue as
though no such proceeding had been instituted.
SECTION 810. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided in the last paragraph of Section 306, no
right or remedy herein conferred upon or reserved to the Trustee or to
the Holders is intended to be exclusive of any other right or remedy,
and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 811. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder to exercise any
right or remedy accruing upon any Event of Default shall impair any
such right or remedy or constitute a waiver of any such Event of
Default or an acquiescence therein. Every right and remedy given by
this Article or by law to the Trustee or to the Holders may be
exercised from time to time, and as often as may be deemed expedient,
by the Trustee or by the Holders, as the case may be.
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SECTION 812. CONTROL BY HOLDERS OF SECURITIES.
If an Event of Default shall have occurred and be continuing in
respect of a series of Securities, the Holders of a majority in
principal amount of the Outstanding Securities of such series shall
have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any
trust or power conferred on the Trustee, with respect to the
Securities of such series; provided, however, that if an Event of
Default shall have occurred and be continuing with respect to more
than one series of Securities, the Holders of a majority in aggregate
principal amount of the Outstanding Securities of all such series,
considered as one class, shall have the right to make such direction,
and not the Holders of the Securities of any one of such series; and
provided, further, that such direction shall not be in conflict with
any rule of law or with this Indenture. The Trustee may take any other
action, deemed proper by the Trustee, which is not inconsistent with
any such direction, provided that the Trustee shall have determined
that such action would not be unduly prejudicial to Holders not taking
part in such action. Before proceeding to exercise any right or power
hereunder at the direction of such Holders, the Trustee shall be
entitled to receive from such Holders reasonable security or indemnity
against the costs, expenses and liabilities which might be incurred by
it in compliance with any such direction.
SECTION 813. WAIVER OF PAST DEFAULTS.
The Holders of a majority in principal amount of the Outstanding
Securities of any series may on behalf of the Holders of all the
Securities of such series waive any past default hereunder with
respect to such series and its consequences, except a default
(a) in the payment of the principal of or premium, if any, or
interest, if any, on any Security of such series, or
(b) in respect of a covenant or provision hereof which under Section
1202 cannot be modified or amended without the consent of the Holder
of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any and
all Events of Default arising therefrom shall be deemed to have been
cured, for every purpose of this Indenture; but no such waiver shall
extend to any subsequent or other default or impair any right
consequent thereon.
SECTION 814. UNDERTAKING FOR COSTS.
The Company and the Trustee agree, and each Holder by his acceptance
thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or
remedy under this Indenture, or in any suit against the Trustee for
any action taken, suffered or omitted by it as Trustee, the filing by
any party litigant in such suit of an undertaking to pay the costs of
such suit, and that such court may in its discretion assess reasonable
costs, including reasonable attorneys' fees, against any party
litigant in such suit, having due regard to the merits and good faith
of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted by
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the Company, to any suit instituted by the Trustee, to any suit
instituted by any Holder, or group of Holders, holding in the
aggregate more than 10% in aggregate principal amount of the
Outstanding Securities of all series in respect of which such suit may
be brought, considered as one class, or to any suit instituted by any
Holder for the enforcement of the payment of the principal of or
premium, if any, or interest, if any, on any Security on or after the
Stated Maturity or Maturities expressed in such Security (or, in the
case of redemption, on or after the Redemption Date).
SECTION 815. WAIVER OF STAY OR EXTENSION LAWS.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or
extension law wherever enacted, now or at any time hereafter in force,
which may affect the covenants or the performance of this Indenture;
and the Company (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law and
covenants that it will not hinder, delay or impede the execution of
any power herein granted to the Trustee, but will suffer and permit
the execution of every such power as though no such law had been
enacted.
ARTICLE NINE
THE TRUSTEE
SECTION 901. CERTAIN DUTIES AND RESPONSIBILITIES.
(a) The Trustee shall have and be subject to all the duties and
responsibilities specified with respect to an indenture trustee in the
Trust Indenture Act and no implied covenants or obligations shall be
read into this Indenture against the Trustee. For purposes of Sections
315(a) and 315(c) of the Trust Indenture Act, the term "default" is
hereby defined as an Event of Default which has occurred and is
continuing.
(b) No provision of this Indenture shall require the Trustee to expend
or risk its own funds or otherwise incur any financial liability in
the performance of any of its duties hereunder, or in the exercise of
any of its rights or powers, if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it.
(c) Notwithstanding anything contained in this Indenture to the
contrary, the duties and responsibilities of the Trustee under this
Indenture shall be subject to the protections, exculpations and
limitations on liability afforded to the Trustee under the provisions
of the Trust Indenture Act, including those provisions of such Act
deemed by such Act to be included herein.
(d) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of
or affording protection to the Trustee shall be subject to the
provisions of this Section.
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SECTION 902. NOTICE OF DEFAULTS.
The Trustee shall give notice of any default hereunder with respect to
the Securities of any series to the Holders of Securities of such
series in the manner and to the extent required to do so by the Trust
Indenture Act, unless such default shall have been cured or waived;
provided, however, that in the case of any default of the character
specified in Section 801(d), no such notice to Holders shall be given
until at least 30 days after the occurrence thereof. For the purpose
of this Section, the term "default" means any event which is, or after
notice or lapse of time, or both, would become, an Event of Default.
SECTION 903. CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of Section 901 and to the applicable
provisions of the Trust Indenture Act:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting in good faith upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness
or other paper or document reasonably believed by it to be genuine and
to have been signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order, or as
otherwise expressly provided herein, and any resolution of the Board
of Directors may be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee
(unless other evidence be herein specifically prescribed) may, in the
absence of bad faith on its part, rely upon an Officer's Certificate;
(d) the Trustee may consult with counsel and the advice of such
counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or
direction of any Holder pursuant to this Indenture, unless such Holder
shall have offered to the Trustee reasonable security or indemnity
against the costs, expenses and liabilities which might be incurred by
it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other
paper or document, but the Trustee, in its discretion, may make such
further inquiry or investigation into such facts or matters as it may
see fit, and, if the Trustee shall determine to make such further
inquiry or investigation, it shall (subject to applicable legal
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requirements) be entitled to examine, during normal business hours,
the books, records and premises of the Company, personally or by agent
or attorney;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents
or attorneys, and the Trustee shall not be responsible for any
misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder; and
(h) the Trustee shall not be charged with knowledge of any default or
Event of Default, as the case may be, with respect to the Securities
of any series for which it is acting as Trustee unless either (1) a
Responsible Officer of the Trustee shall have actual knowledge of the
default or Event of Default, as the case may be, or (2) written notice
of such default or Event of Default, as the case may be, shall have
been given to the Trustee by the Company, any other obligor on such
Securities or by any Holder of such Securities.
SECTION 904. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.
The recitals contained herein and in the Securities (except the
Trustee's certificates of authentication) shall be taken as the
statements of the Company, and neither the Trustee nor any
Authenticating Agent assumes responsibility for their correctness. The
Trustee makes no representations as to the validity or sufficiency of
this Indenture or of the Securities. Neither the Trustee nor any
Authenticating Agent shall be accountable for the use or application
by the Company of Securities or the proceeds thereof.
SECTION 905. MAY HOLD SECURITIES.
Each of the Trustee, any Authenticating Agent, any Paying Agent, any
Security Registrar or any other agent of the Company, in its
individual or any other capacity, may become the owner or pledgee of
Securities and, subject to Sections 908 and 913, may otherwise deal
with the Company with the same rights it would have if it were not the
Trustee, Authenticating Agent, Paying Agent, Security Registrar or
such other agent.
SECTION 906. MONEY HELD IN TRUST.
Money held by the Trustee in trust hereunder need not be segregated
from other funds, except to the extent required by law. The Trustee
shall be under no liability for interest on any money received by it
hereunder except as expressly provided herein or otherwise agreed with
the Company.
SECTION 907. COMPENSATION AND REIMBURSEMENT.
The Company shall
(a) pay to the Trustee from time to time reasonable compensation for
all services rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a
trustee of an express trust);
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(b) except as otherwise expressly provided herein, reimburse the
Trustee upon its request for all reasonable expenses, disbursements
and advances reasonably incurred or made by the Trustee in accordance
with any provision of this Indenture, including the costs of
collection (including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except to the extent that
any such expense, disbursement or advance may be attributable to the
Trustee's negligence, willful misconduct or bad faith; and
(c) indemnify the Trustee for, and hold it harmless from and against,
any and all loss, demands, claims, liability, causes of action or
expense (including reasonable attorneys' fees and expenses) incurred
by it arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder or the performance of
its duties hereunder, including the reasonable costs and expenses of
defending itself against any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder,
except to the extent any such loss, demand, claim, liability, cause of
action or expense may be attributable to its negligence, willful
misconduct or bad faith. At the option of the Trustee, the Company
shall assume the defense of the Trustee with counsel acceptable to the
Trustee.
As security for the performance of the obligations of the Company
under this Section, the Trustee shall have a lien prior to the
Securities upon all property and funds held or collected by the
Trustee as such other than property and funds held in trust under
Section 703 (except as otherwise provided in Section 703). "Trustee"
for purposes of this Section shall include any predecessor Trustee;
provided, however, that the negligence, willful misconduct or bad
faith of any Trustee hereunder shall not affect the rights of any
other Trustee hereunder.
When the Trustee incurs expenses or renders services in connection
with an Event of Default specified in Section 801(d) or Section
801(e), the expenses (including the reasonable charges and expenses of
its counsel) and the compensation for the services are intended to
constitute expenses of administration under any applicable Federal or
State bankruptcy, insolvency or other similar law.
The provisions of this Section 907 shall survive termination of this
Indenture and the resignation or removal of the Trustee.
SECTION 908. DISQUALIFICATION; CONFLICTING INTERESTS.
If the Trustee shall have or acquire any conflicting interest within
the meaning of the Trust Indenture Act, it shall either eliminate such
conflicting interest or resign to the extent, in the manner and with
the effect, and subject to the conditions, provided in the Trust
Indenture Act and this Indenture. To the extent permitted by such Act,
the Trustee shall not be deemed to have a conflicting interest by
virtue of being a trustee under this Indenture with respect to
Securities of more than one series.
SECTION 909. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be a Trustee hereunder which shall be
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(a) a corporation organized and doing business under the laws of the
United States, any State or Territory thereof or the District of
Columbia, authorized under such laws to exercise corporate trust
powers, having a combined capital and surplus of at least $50,000,000
and subject to supervision or examination by Federal or State
authority, or
(b) if and to the extent permitted by the Commission by rule,
regulation or order upon application, a corporation or other Person
organized and doing business under the laws of a foreign government,
authorized under such laws to exercise corporate trust powers, having
a combined capital and surplus of at least $50,000,000 or the Dollar
equivalent of the applicable foreign currency and subject to
supervision or examination by authority of such foreign government or
a political subdivision thereof substantially equivalent to
supervision or examination applicable to United States institutional
trustees,
and, in either case, qualified and eligible under this Article and the
Trust Indenture Act. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of
such supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. If at any time the Trustee
shall cease to be eligible in accordance with the provisions of this
Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
SECTION 910. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective
until the acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of Section 911. (b) The
Trustee may resign at any time with respect to the Securities of one
or more series by giving written notice thereof to the Company. If the
instrument of acceptance by a successor Trustee required by Section
911 shall not have been delivered to the Trustee within 30 days after
the giving of such notice of resignation, the resigning Trustee may
petition any court of competent jurisdiction for the appointment of a
successor Trustee with respect to the Securities of such series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in
principal amount of the Outstanding Securities of such series
delivered to the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 908 after
written request therefor by the Company or by any Holder who has
been a bona fide Holder for at least six months, or
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(2) the Trustee shall cease to be eligible under Section 909 and
shall fail to resign after written request therefor by the
Company or by any such Holder, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or
of its property shall be appointed or any public officer shall
take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or
liquidation,
then, in any such case, (x) the Company by a Board Resolution may
remove the Trustee with respect to all Securities or (y) subject
to Section 814, any Holder who has been a bona fide Holder for at
least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction
for the removal of the Trustee with respect to all Securities and
the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any
cause (other than as contemplated in clause (y) in Subsection (d) of
this Section), with respect to the Securities of one or more series,
the Company, by a Company Order, shall promptly appoint a successor
Trustee or Trustees with respect to the Securities of that or those
series (it being understood that any such successor Trustee may be
appointed with respect to the Securities of one or more or all of such
series and that at any time there shall be only one Trustee with
respect to the Securities of any particular series) and shall comply
with the applicable requirements of Section 911. If, within one year
after such resignation, removal or incapability, or the occurrence of
such vacancy, a successor Trustee with respect to the Securities of
any series shall be appointed by Act of the Holders of a majority in
principal amount of the Outstanding Securities of such series
delivered to the Company and the retiring Trustee, the successor
Trustee so appointed shall, forthwith upon its acceptance of such
appointment in accordance with the applicable requirements of Section
911, become the successor Trustee with respect to the Securities of
such series and to that extent supersede the successor Trustee
appointed by the Company. If no successor Trustee with respect to the
Securities of any series shall have been so appointed by the Company
or the Holders and accepted appointment in the manner required by
Section 911, any Holder who has been a bona fide Holder of a Security
of such series for at least six months may, on behalf of itself and
all others similarly situated, petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect
to the Securities of such series.
(f) So long as no event which is, or after notice or lapse of time, or
both, would become, an Event of Default shall have occurred and be
continuing, and except with respect to a Trustee appointed by Act of
the Holders of a majority in principal amount of the Outstanding
Securities pursuant to Subsection (e) of this Section, if the Company
shall have delivered to the Trustee (i) a Company Order appointing a
successor Trustee, effective as of a date specified therein, and (ii)
an instrument of acceptance of such appointment, effective as of such
date, by such successor Trustee in accordance with Section 911, the
Trustee shall be deemed to have resigned as contemplated in Subsection
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(b) of this Section, the successor Trustee shall be deemed to have
been appointed by the Company pursuant to Subsection (e) of this
Section and such appointment shall be deemed to have been accepted as
contemplated in Section 911, all as of such date, and all other
provisions of this Section and Section 911 shall be applicable to such
resignation, appointment and acceptance except to the extent
inconsistent with this Subsection (f).
(g) The Company (or, should the Company fail so to act promptly, the
successor trustee at the expense of the Company) shall give notice of
each resignation and each removal of the Trustee with respect to the
Securities of any series and each appointment of a successor Trustee
with respect to the Securities of any series by mailing written notice
of such event by first-class mail, postage prepaid, to all Holders of
Securities of such series as their names and addresses appear in the
Security Register. Each notice shall include the name of the successor
Trustee with respect to the Securities of such series and the address
of its corporate trust office.
SECTION 911. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of all series, every such successor Trustee
so appointed shall execute, acknowledge and deliver to the Company and
to the retiring Trustee an instrument accepting such appointment, and
thereupon the resignation or removal of the retiring Trustee shall
become effective and such successor Trustee, without any further act,
deed or conveyance, shall become vested with all the rights, powers,
trusts and duties of the retiring Trustee; but, on the request of the
Company or the successor Trustee, such retiring Trustee shall, upon
payment of all sums owed to it, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers and
trusts of the retiring Trustee and shall duly assign, transfer and
deliver to such successor Trustee all property and money held by such
retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the
Company, the retiring Trustee and each successor Trustee with respect
to the Securities of one or more series shall execute and deliver an
indenture supplemental hereto wherein each successor Trustee shall
accept such appointment and which (1) shall contain such provisions as
shall be necessary or desirable to transfer and confirm to, and to
vest in, each successor Trustee all the rights, powers, trusts and
duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee
relates, (2) if the retiring Trustee is not retiring with respect to
all Securities, shall contain such provisions as shall be deemed
necessary or desirable to confirm that all the rights, powers, trusts
and duties of the retiring Trustee with respect to the Securities of
that or those series as to which the retiring Trustee is not retiring
shall continue to be vested in the retiring Trustee and (3) shall add
to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the
trusts hereunder by more than one Trustee, it being understood that
nothing herein or in such supplemental indenture shall constitute such
Trustees co-trustees of the same trust and that each such Trustee
shall be trustee of a trust or trusts hereunder separate and apart
from any trust or trusts hereunder administered by any other such
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Trustee; and upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring Trustee shall
become effective to the extent provided therein and each such
successor Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates;
but, on request of the Company or any successor Trustee, such retiring
Trustee, upon payment of all sums owed to it, shall duly assign,
transfer and deliver to such successor Trustee all property and money
held by such retiring Trustee hereunder with respect to the Securities
of that or those series to which the appointment of such successor
Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall
execute any instruments which fully vest in and confirm to such
successor Trustee all such rights, powers and trusts referred to in
Subsection (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
SECTION 912. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from
any merger, conversion or consolidation to which the Trustee shall be
a party, or any corporation succeeding to all or substantially all the
corporate trust business of the Trustee, shall be the successor of the
Trustee hereunder, provided such corporation shall be otherwise
qualified and eligible under this Article, without the execution or
filing of any paper or any further act on the part of any of the
parties hereto. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by
merger, conversion or consolidation to such authenticating Trustee may
adopt such authentication and deliver the Securities so authenticated
with the same effect as if such successor Trustee had itself
authenticated such Securities.
SECTION 913. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
If the Trustee shall be or become a creditor of the Company or any
other obligor upon the Securities (other than by reason of a
relationship described in Section 311(b) of the Trust Indenture Act),
the Trustee shall be subject to any and all applicable provisions of
the Trust Indenture Act regarding the collection of claims against the
Company or such other obligor. For purposes of Section 311(b) of the
Trust Indenture Act:
(a) the term "cash transaction" means any transaction in which full
payment for goods or securities sold is made within seven days after
delivery of the goods or securities in currency or in checks or other
orders drawn upon banks or bankers and payable upon demand;
(b) the term "self-liquidating paper" means any draft, bill of
exchange, acceptance or obligation which is made, drawn, negotiated or
incurred by the Company for the purpose of financing the purchase,
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processing, manufacturing, shipment, storage or sale of goods, wares
or merchandise and which is secured by documents evidencing title to,
possession of, or a lien upon, the goods, wares or merchandise or the
receivables or proceeds arising from the sale of the goods, wares or
merchandise previously constituting the security, provided the
security is received by the Trustee simultaneously with the creation
of the creditor relationship with the Company arising from the making,
drawing, negotiating or incurring of the draft, bill of exchange,
acceptance or obligation.
SECTION 914. CO-TRUSTEES AND SEPARATE TRUSTEES.
At any time or times, for the purpose of meeting the legal
requirements of any applicable jurisdiction, the Company and the
Trustee shall have power to appoint, and, upon the written request of
the Trustee or of the Holders of at least 33% in principal amount of
the Securities then Outstanding, the Company shall for such purpose
join with the Trustee in the execution and delivery of all instruments
and agreements necessary or proper to appoint, one or more Persons
approved by the Trustee either to act as co-trustee, jointly with the
Trustee, or to act as separate trustee, in either case with such
powers as may be provided in the instrument of appointment, and to
vest in such Person or Persons, in the capacity aforesaid, any
property, title, right or power deemed necessary or desirable, subject
to the other provisions of this Section. If the Company does not join
in such appointment within 15 days after the receipt by it of a
request so to do, or if an Event of Default shall have occurred and be
continuing, the Trustee alone shall have power to make such
appointment.
Should any written instrument or instruments from the Company be
required by any co-trustee or separate trustee so appointed to more
fully confirm to such co-trustee or separate trustee such property,
title, right or power, any and all such instruments shall, on request,
be executed, acknowledged and delivered by the Company.
Every co-trustee or separate trustee shall, to the extent permitted by
law, but to such extent only, be appointed subject to the following
conditions:
(a) the Securities shall be authenticated and delivered, and all
rights, powers, duties and obligations hereunder in respect of the
custody of securities, cash and other personal property held by, or
required to be deposited or pledged with, the Trustee hereunder, shall
be exercised solely, by the Trustee;
(b) the rights, powers, duties and obligations hereby conferred or
imposed upon the Trustee in respect of any property covered by such
appointment shall be conferred or imposed upon and exercised or
performed either by the Trustee or by the Trustee and such co-trustee
or separate trustee jointly, as shall be provided in the instrument
appointing such co-trustee or separate trustee, except to the extent
that under any law of any jurisdiction in which any particular act is
to be performed, the Trustee shall be incompetent or unqualified to
perform such act, in which event such rights, powers, duties and
obligations shall be exercised and performed by such co-trustee or
separate trustee;
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(c) the Trustee at any time, by an instrument in writing executed by
it, with the concurrence of the Company, may accept the resignation of
or remove any co-trustee or separate trustee appointed under this
Section, and, if an Event of Default shall have occurred and be
continuing, the Trustee shall have power to accept the resignation of,
or remove, any such co-trustee or separate trustee without the
concurrence of the Company. Upon the written request of the Trustee,
the Company shall join with the Trustee in the execution and delivery
of all instruments and agreements necessary or proper to effectuate
such resignation or removal. A successor to any co-trustee or separate
trustee so resigned or removed may be appointed in the manner provided
in this Section;
(d) no co-trustee or separate trustee hereunder shall be personally
liable by reason of any act or omission of the Trustee, or any other
such trustee hereunder; and
(e) any Act of Holders delivered to the Trustee shall be deemed to
have been delivered to each such co-trustee and separate trustee.
SECTION 915. APPOINTMENT OF AUTHENTICATING AGENT.
The Trustee may, with the consent of the Company, appoint an
Authenticating Agent or Agents with respect to the Securities of one
or more series, or Tranche thereof, which shall be authorized to act
on behalf of the Trustee to authenticate Securities of such series or
Tranche issued upon original issuance and upon exchange, registration
of transfer or partial redemption thereof or pursuant to Section 306,
and Securities so authenticated shall be entitled to the benefits of
this Indenture and shall be valid and obligatory for all purposes as
if authenticated by the Trustee hereunder. Wherever reference is made
in this Indenture to the authentication and delivery of Securities by
the Trustee or the Trustee's certificate of authentication, such
reference shall be deemed to include authentication and delivery on
behalf of the Trustee by an Authenticating Agent and a certificate of
authentication executed on behalf of the Trustee by an Authenticating
Agent. Each Authenticating Agent shall be acceptable to the Company
and shall at all times be a corporation organized and doing business
under the laws of the United States, any State or territory thereof or
the District of Columbia, authorized under such laws to act as
Authenticating Agent, having a combined capital and surplus of not
less than $50,000,000 and subject to supervision or examination by
Federal or State authority. If such Authenticating Agent publishes
reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for the
purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so
published. If at any time an Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section, such
Authenticating Agent shall resign immediately in the manner and with
the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any corporation succeeding
to the corporate agency or corporate trust business of an
Authenticating Agent, shall continue to be an Authenticating Agent,
provided such corporation shall be otherwise eligible under this
Section, without the execution or filing of any paper or any further
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act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee may at
any time terminate the agency of an Authenticating Agent by giving
written notice thereof to such Authenticating Agent and to the
Company. Upon receiving such a notice of resignation or upon such a
termination, or in case at any time such Authenticating Agent shall
cease to be eligible in accordance with the provisions of this
Section, the Trustee may appoint a successor Authenticating Agent
which shall be acceptable to the Company. Any successor Authenticating
Agent upon acceptance of its appointment hereunder shall become vested
with all the rights, powers and duties of its predecessor hereunder,
with like effect as if originally named as an Authenticating Agent. No
successor Authenticating Agent shall be appointed unless eligible
under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section.
The provisions of Sections 308, 904 and 905 shall be applicable to
each Authenticating Agent.
If an appointment with respect to the Securities of one or more series
shall be made pursuant to this Section, the Securities of such series
may have endorsed thereon, in addition to the Trustee's certificate of
authentication, an alternate certificate of authentication
substantially in the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
Dated:
---------------------------------------
As Trustee
By
-------------------------------------
As Authenticating Agent
By
-------------------------------------
As Authenticating Agent
If all of the Securities of a series may not be originally issued at
one time, and if the Trustee does not have an office capable of
authenticating Securities upon original issuance located in a Place of
Payment where the Company wishes to have Securities of such series
authenticated upon original issuance, the Trustee, if so requested by
the Company in writing (which writing need not comply with Section 102
and need not be accompanied by an Opinion of Counsel), shall appoint,
in accordance with this Section and in accordance with such procedures
as shall be acceptable to the Trustee, an Authenticating Agent having
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an office in a Place of Payment designated by the Company with respect
to such series of Securities.
ARTICLE TEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 1001. LISTS OF HOLDERS.
Semiannually, not later than June 1 and December 1 in each year,
commencing December 1, 2000, and at such other times as the Trustee
may request in writing, the Company shall furnish or cause to be
furnished to the Trustee information as to the names and addresses of
the Holders, and the Trustee shall preserve such information and
similar information received by it in any other capacity and afford to
the Holders access to information so preserved by it, all to such
extent, if any, and in such manner as shall be required by the Trust
Indenture Act; provided, however, that no such list need be furnished
so long as the Trustee shall be the Security Registrar.
SECTION 1002. REPORTS BY TRUSTEE AND COMPANY.
Within 60 days after May 15 of each year, commencing with May 15,
2000, the Trustee shall transmit to the Holders, the Commission and
each securities exchange upon which any Securities are listed, a
report, dated as of May 15, with respect to any events and other
matters described in Section 313(a) of the Trust Indenture Act, in
such manner and to the extent required by the Trust Indenture Act. The
Trustee shall transmit to the Holders, the Commission and each
securities exchange upon which any Securities are listed, and the
Company shall file with the Trustee (within 30 days after filing with
the Commission in the case of reports which pursuant to the Trust
Indenture Act must be filed with the Commission and furnished to the
Trustee) and transmit to the Holders, such other information, reports
and other documents, if any, at such times and in such manner, as
shall be required by the Trust Indenture Act. The Company shall notify
the Trustee of the listing of any Securities on any securities
exchange. Delivery of such reports, information and documents by the
Company to the Trustee is for informational purposes only and the
Trustee's receipt of such shall not constitute constructive notice of
any information contained therein or determinable from information
contained therein, including the Company's compliance with any of its
covenants hereunder (as to which the Trustee is entitled to rely
exclusively on Officer's Certificates).
ARTICLE ELEVEN
CONSOLIDATION, MERGER, CONVEYANCE OR OTHER TRANSFER
SECTION 1101. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS.
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
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(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 an indenture
supplemental hereto, executed and delivered to the Trustee, in form
satisfactory to the Trustee, the due and punctual payment of the
principal of and premium, if any, and interest, if any, on all
Outstanding Securities and the performance of every covenant of this
Indenture on the part of the Company to be performed or observed;
(b) immediately after giving effect to such transaction no Event of
Default, and no event which, after notice or lapse of time or both,
would become an Event of Default, shall have occurred and be
continuing; and
(c) the Company shall have delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, or other transfer or lease and such
supplemental indenture comply with this Article and that all
conditions precedent herein provided for relating to such transactions
have been complied with.
SECTION 1102. SUCCESSOR CORPORATION SUBSTITUTED.
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 Section 1101, 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 may exercise every right and
power of, the Company under this Indenture 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
Indenture and the Securities Outstanding hereunder.
ARTICLE TWELVE
SUPPLEMENTAL INDENTURES
SECTION 1201. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holders, the Company and the Trustee, at
any time and from time to time, may enter into one or more indentures
supplemental hereto, in form satisfactory to the Trustee, for any of
the following purposes:
(a) to evidence the succession of another Person to the Company and
the assumption by any such successor of the covenants of the Company
herein and in the Securities, all as provided in Article Eleven; or
(b) to add one or more covenants of the Company or other provisions
for the benefit of all Holders or for the benefit of the Holders of,
or to remain in effect only so long as there shall be Outstanding,
Securities of one or more specified series, or one or more specified
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Tranches thereof, or to surrender any right or power herein conferred
upon the Company; or
(c) to add any additional Events of Default with respect to all or any
series of Securities Outstanding hereunder; or
(d) to change or eliminate any provision of this Indenture or to add
any new provision to this Indenture; provided, however, that if such
change, elimination or addition shall adversely affect the interests
of the Holders of Securities of any series or Tranche Outstanding on
the date of such indenture supplemental hereto in any material
respect, such change, elimination or addition shall become effective
with respect to such series or Tranche only pursuant to the provisions
of Section 1202 hereof or when no Security of such series or Tranche
remains Outstanding; or
(e) to provide collateral security for all but not part of the
Securities; or
(f) to establish the form or terms of Securities of any series or
Tranche as contemplated by Sections 201 and 301; or
(g) to provide for the authentication and delivery of bearer
securities and coupons appertaining thereto representing interest, if
any, thereon and for the procedures for the registration, exchange and
replacement thereof and for the giving of notice to, and the
solicitation of the vote or consent of, the holders thereof, and for
any and all other matters incidental thereto; or
(h) to evidence and provide for the acceptance of appointment
hereunder by a separate or successor Trustee or co-trustee with
respect to the Securities of one or more series and to add to or
change any of the provisions of this Indenture as shall be necessary
to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, pursuant to the requirements of
Section 911(b); or
(i) to provide for the procedures required to permit the Company to
utilize, at its option, a noncertificated system of registration for
all, or any series or Tranche of, the Securities; or
(j) to change any place or places where (1) the principal of and
premium, if any, and interest, if any, on all or any series of
Securities, or any Tranche thereof, shall be payable, (2) all or any
series of Securities, or any Tranche thereof, may be surrendered for
registration of transfer, (3) all or any series of Securities, or any
Tranche thereof, may be surrendered for exchange and (4) notices and
demands to or upon the Company in respect of all or any series of
Securities, or any Tranche thereof, and this Indenture may be served;
(k) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other provision
herein, or to make any other changes to the provisions hereof or to
add other provisions with respect to matters or questions arising
under this Indenture, provided that such other changes or additions
shall not adversely affect the interests of the Holders of Securities
of any series or Tranche in any material respect; or
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(l) to effect or maintain the qualification of this Indenture under
the Trust Indenture Act.
SECTION 1202. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
With the consent of the Holders of a majority in aggregate principal
amount of the Securities of all series then Outstanding under this
Indenture, considered as one class, by Act of said Holders delivered
to the Company and the Trustee, the Company, when authorized by a
Board Resolution, and the Trustee may enter into an indenture or
indentures supplemental hereto for the purpose of adding any
provisions to, or changing in any manner or eliminating any of the
provisions of, this Indenture or modifying in any manner the rights of
the Holders of Securities of such series under the Indenture;
provided, however, that if there shall be Securities of more than one
series Outstanding hereunder and if a proposed supplemental indenture
shall directly affect the rights of the Holders of Securities of one
or more, but less than all, of such series, then the consent only of
the Holders of a majority in aggregate principal amount of the
Outstanding Securities of all series so directly affected, considered
as one class, shall be required; and provided, further, that if the
Securities of any series shall have been issued in more than one
Tranche and if the proposed supplemental indenture shall directly
affect the rights of the Holders of Securities of one or more, but
less than all, of such Tranches, then the consent only of the Holders
of a majority in aggregate principal amount of the Outstanding
Securities of all Tranches so directly affected, considered as one
class, shall be required; and provided, further, that no such
supplemental indenture shall:
(a) change the Stated Maturity of the principal of, or any installment
of principal of or interest on, any Security, or reduce the principal
amount thereof or the rate of interest thereon (or the amount of any
installment of interest thereon) or change the method of calculating
such rate or reduce any premium payable upon the redemption thereof,
or reduce the amount of the principal of a Discount Security that
would be due and payable upon a declaration of acceleration of the
Maturity thereof pursuant to Section 802, or change the coin or
currency (or other property), in which any Security or any premium or
the interest thereon is payable, or impair the right to institute suit
for the enforcement of any such payment on or after the Stated
Maturity of any Security (or, in the case of redemption, on or after
the Redemption Date), without, in any such case, the consent of the
Holder of such Security, or
(b) reduce the percentage in principal amount of the Outstanding
Securities of any series, or any Tranche thereof, the consent of the
Holders of which is required for any such supplemental indenture, or
the consent of the Holders of which is required for any waiver of
compliance with any provision of this Indenture or of any default
hereunder and its consequences, or reduce the requirements of Section
1304 for quorum or voting, without, in any such case, the consent of
the Holders of each Outstanding Security of such series or Tranche, or
(c) modify any of the provisions of this Section, Section 607 or
Section 813 with respect to the Securities of any series, or any
Tranche thereof, except to increase the percentages in principal
amount referred to in this Section or such other Sections or to
provide that other provisions of this Indenture cannot be modified or
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waived without the consent of the Holder of each Outstanding Security
affected thereby; provided, however, that this clause shall not be
deemed to require the consent of any Holder with respect to changes in
the references to "the Trustee" and concomitant changes in this
Section, or the deletion of this proviso, in accordance with the
requirements of Sections 911(b), 914 and 1201(h).
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included
solely for the benefit of one or more particular series of Securities,
or one or more Tranches thereof, or which modifies the rights of the
Holders of Securities of such series with respect to such covenant or
other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series or Tranche.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance
thereof. A waiver by a Holder of such Holder's right to consent under
this Section shall be deemed to be a consent of such Holder.
SECTION 1203. EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications
thereby of the trusts created by this Indenture, the Trustee shall be
entitled to receive, and (subject to Section 901) shall be fully
protected in relying upon, an Opinion of Counsel stating that the
execution of such supplemental indenture is authorized or permitted by
this Indenture. The Trustee may, but shall not be obligated to, enter
into any such supplemental indenture which affects the Trustee's own
rights, duties, immunities or liabilities under this Indenture or
otherwise.
SECTION 1204. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all
purposes; and every Holder of Securities theretofore or thereafter
authenticated and delivered hereunder shall be bound thereby. Any
supplemental indenture permitted by this Article may restate this
Indenture in its entirety, and, upon the execution and delivery
thereof, any such restatement shall supersede this Indenture as
theretofore in effect for all purposes.
SECTION 1205. CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in
effect.
SECTION 1206. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES.
Securities of any series, or any Tranche thereof, authenticated and
delivered after the execution of any supplemental indenture pursuant
to this Article may, and shall if required by the Trustee, bear a
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notation in form approved by the Trustee as to any matter provided for
in such supplemental indenture. If the Company shall so determine, new
Securities of any series, or any Tranche thereof, so modified as to
conform, in the opinion of the Trustee and the Company, to any such
supplemental indenture may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for Outstanding
Securities of such series or Tranche.
SECTION 1207. MODIFICATION WITHOUT SUPPLEMENTAL INDENTURE.
If the terms of any particular series of Securities shall have been
established in a Board Resolution or an Officer's Certificate as
contemplated by Section 301, and not in an indenture supplemental
hereto, additions to, changes in or the elimination of any of such
terms may be effected by means of a supplemental Board Resolution or
Officer's Certificate, as the case may be, delivered to, and accepted
by, the Trustee; provided, however, that such supplemental Board
Resolution or Officer's Certificate shall not be accepted by the
Trustee or otherwise be effective unless all conditions set forth in
this Indenture which would be required to be satisfied if such
additions, changes or elimination were contained in a supplemental
indenture shall have been appropriately satisfied. Upon the acceptance
thereof by the Trustee, any such supplemental Board Resolution or
Officer's Certificate shall be deemed to be a "supplemental indenture"
for purposes of Section 1204 and 1206.
ARTICLE THIRTEEN
MEETINGS OF HOLDERS; ACTION WITHOUT MEETING
SECTION 1301. PURPOSES FOR WHICH MEETINGS MAY BE CALLED.
A meeting of Holders of Securities of one or more, or all, series, or
any Tranche or Tranches thereof, may be called at any time and from
time to time pursuant to this Article to make, give or take any
request, demand, authorization, direction, notice, consent, waiver or
other action provided by this Indenture to be made, given or taken by
Holders of Securities of such series or Tranches.
SECTION 1302. CALL, NOTICE AND PLACE OF MEETINGS.
(a) The Trustee may at any time call a meeting of Holders of
Securities of one or more, or all, series, or any Tranche or Tranches
thereof, for any purpose specified in Section 1301, to be held at such
time and at such place in the Borough of Manhattan, The City of New
York, as the Trustee shall determine, or, with the approval of the
Company, at any other place. Notice of every such meeting, setting
forth the time and the place of such meeting and in general terms the
action proposed to be taken at such meeting, shall be given, in the
manner provided in Section 106, not less than 21 nor more than 180
days prior to the date fixed for the meeting.
(b) If the Trustee shall have been requested to call a meeting of the
Holders of Securities of one or more, or all, series, or any Tranche
or Tranches thereof, by the Company or by the Holders of 33% in
aggregate principal amount of all of such series and Tranches,
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<PAGE>
considered as one class, for any purpose specified in Section 1301, by
written request setting forth in reasonable detail the action proposed
to be taken at the meeting, and the Trustee shall not have given the
notice of such meeting within 21 days after receipt of such request or
shall not thereafter proceed to cause the meeting to be held as
provided herein, then the Company or the Holders of Securities of such
series and Tranches in the amount above specified, as the case may be,
may determine the time and the place in the Borough of Manhattan, The
City of New York, or in such other place as shall be determined or
approved by the Company, for such meeting and may call such meeting
for such purposes by giving notice thereof as provided in Subsection
(a) of this Section.
(c) Any meeting of Holders of Securities of one or more, or all,
series, or any Tranche or Tranches thereof, shall be valid without
notice if the Holders of all Outstanding Securities of such series or
Tranches are present in person or by proxy and if representatives of
the Company and the Trustee are present, or if notice is waived in
writing before or after the meeting by the Holders of all Outstanding
Securities of such series, or any Tranche or Tranches thereof, or by
such of them as are not present at the meeting in person or by proxy,
and by the Company and the Trustee.
SECTION 1303. PERSONS ENTITLED TO VOTE AT MEETINGS.
To be entitled to vote at any meeting of Holders of Securities of one
or more, or all, series, or any Tranche or Tranches thereof, a Person
shall be (a) a Holder of one or more Outstanding Securities of such
series or Tranches, or (b) a Person appointed by an instrument in
writing as proxy for a Holder or Holders of one or more Outstanding
Securities of such series or Tranches by such Holder or Holders. The
only Persons who shall be entitled to attend any meeting of Holders of
Securities of any series or Tranche shall be the Persons entitled to
vote at such meeting and their counsel, any representatives of the
Trustee and its counsel and any representatives of the Company and its
counsel.
SECTION 1304. QUORUM; ACTION.
The Persons entitled to vote a majority in aggregate principal amount
of the Outstanding Securities of the series and Tranches with respect
to which a meeting shall have been called as hereinbefore provided,
considered as one class, shall constitute a quorum for a meeting of
Holders of Securities of such series and Tranches; provided, however,
that if any action is to be taken at such meeting which this Indenture
expressly provides may be taken by the Holders of a specified
percentage, which is less than a majority, in principal amount of the
Outstanding Securities of such series and Tranches, considered as one
class, the Persons entitled to vote such specified percentage in
principal amount of the Outstanding Securities of such series and
Tranches, considered as one class, shall constitute a quorum. In the
absence of a quorum within one hour of the time appointed for any such
meeting, the meeting shall, if convened at the request of Holders of
Securities of such series and Tranches, be dissolved. In any other
case the meeting may be adjourned for such period as may be determined
by the chairman of the meeting prior to the adjournment of such
meeting. In the absence of a quorum at any such adjourned meeting,
such adjourned meeting may be further adjourned for such period as may
be determined by the chairman of the meeting prior to the adjournment
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of such adjourned meeting. Except as provided by Section 1305(e),
notice of the reconvening of any meeting adjourned for more than 30
days shall be given as provided in Section 1302(a) not less than 10
days prior to the date on which the meeting is scheduled to be
reconvened. Notice of the reconvening of an adjourned meeting shall
state expressly the percentage, as provided above, of the principal
amount of the Outstanding Securities of such series and Tranches which
shall constitute a quorum.
Except as limited by Section 1202, any resolution presented to a
meeting or adjourned meeting duly reconvened at which a quorum is
present as aforesaid may be adopted only by the affirmative vote of
the Holders of a majority in aggregate principal amount of the
Outstanding Securities of the series and Tranches with respect to
which such meeting shall have been called, considered as one class;
provided, however, that, except as so limited, any resolution with
respect to any action which this Indenture expressly provides may be
taken by the Holders of a specified percentage, which is less than a
majority, in principal amount of the Outstanding Securities of such
series and Tranches, considered as one class, may be adopted at a
meeting or an adjourned meeting duly reconvened and at which a quorum
is present as aforesaid by the affirmative vote of the Holders of such
specified percentage in principal amount of the Outstanding Securities
of such series and Tranches, considered as one class.
Any resolution passed or decision taken at any meeting of Holders of
Securities duly held in accordance with this Section shall be binding
on all the Holders of Securities of the series and Tranches with
respect to which such meeting shall have been held, whether or not
present or represented at the meeting.
SECTION 1305. ATTENDANCE AT MEETINGS; DETERMINATION OF VOTING
RIGHTS;CONDUCT AND ADJOURNMENT OF MEETINGS.
(a) Attendance at meetings of Holders of Securities may be in person
or by proxy; and, to the extent permitted by law, any such proxy shall
remain in effect and be binding upon any future Holder of the
Securities with respect to which it was given unless and until
specifically revoked by the Holder or future Holder of such Securities
before being voted.
(b) Notwithstanding any other provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable
for any meeting of Holders of Securities in regard to proof of the
holding of such Securities and of the appointment of proxies and in
regard to the appointment and duties of inspectors of votes, the
submission and examination of proxies, certificates and other evidence
of the right to vote, and such other matters concerning the conduct of
the meeting as it shall deem appropriate. Except as otherwise
permitted or required by any such regulations, the holding of
Securities shall be proved in the manner specified in Section 104 and
the appointment of any proxy shall be proved in the manner specified
in Section 104. Such regulations may provide that written instruments
appointing proxies, regular on their face, may be presumed valid and
genuine without the proof specified in Section 104 or other proof.
(c) The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have been
called by the Company or by Holders as provided in Section 1302(b), in
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which case the Company or the Holders of Securities of the series and
Tranches calling the meeting, as the case may be, shall in like manner
appoint a temporary chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by vote of the Persons
entitled to vote a majority in aggregate principal amount of the
Outstanding Securities of all series and Tranches represented at the
meeting, considered as one class.
(d) At any meeting each Holder or proxy shall be entitled to one vote
for each $1 principal amount of Securities held or represented by him;
provided, however, that no vote shall be cast or counted at any
meeting in respect of any Security challenged as not Outstanding and
ruled by the chairman of the meeting to be not Outstanding. The
chairman of the meeting shall have no right to vote, except as a
Holder of a Security or proxy.
(e) Any meeting duly called pursuant to Section 1302 at which a quorum
is present may be adjourned from time to time by Persons entitled to
vote a majority in aggregate principal amount of the Outstanding
Securities of all series and Tranches represented at the meeting,
considered as one class; and the meeting may be held as so adjourned
without further notice.
SECTION 1306. COUNTING VOTES AND RECORDING ACTION OF MEETINGS.
The vote upon any resolution submitted to any meeting of Holders shall
be by written ballots on which shall be subscribed the signatures of
the Holders or of their representatives by proxy and the principal
amounts and serial numbers of the Outstanding Securities, of the
series and Tranches with respect to which the meeting shall have been
called, held or represented by them. The permanent chairman of the
meeting shall appoint two inspectors of votes who shall count all
votes cast at the meeting for or against any resolution and who shall
make and file with the secretary of the meeting their verified written
reports of all votes cast at the meeting. A record of the proceedings
of each meeting of Holders shall be prepared by the secretary of the
meeting and there shall be attached to said record the original
reports of the inspectors of votes on any vote by ballot taken thereat
and affidavits by one or more persons having knowledge of the facts
setting forth a copy of the notice of the meeting and showing that
said notice was given as provided in Section 1302 and, if applicable,
Section 1304. Each copy shall be signed and verified by the affidavits
of the permanent chairman and secretary of the meeting and one such
copy shall be delivered to the Company, and another to the Trustee to
be preserved by the Trustee, the latter to have attached thereto the
ballots voted at the meeting. Any record so signed and verified shall
be conclusive evidence of the matters therein stated.
SECTION 1307. ACTION WITHOUT MEETING.
In lieu of a vote of Holders at a meeting as hereinbefore contemplated
in this Article, any request, demand, authorization, direction,
notice, consent, waiver or other action may be made, given or taken by
Holders by written instruments as provided in Section 104.
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ARTICLE FOURTEEN
IMMUNITY OF INCORPORATORS, SHAREHOLDERS, OFFICERS AND DIRECTORS
SECTION 1401. LIABILITY SOLELY CORPORATE.
No recourse shall be had for the payment of the principal of or
premium, if any, or interest, if any, on any Securities, or any part
thereof, or for any claim based thereon or otherwise in respect
thereof, or of the indebtedness represented thereby, or upon any
obligation, covenant or agreement under this Indenture, against any
incorporator, shareholder, officer or director, as such, past, present
or future of the Company or of any predecessor or successor
corporation (either directly or through the Company or a predecessor
or successor corporation), whether by virtue of any constitutional
provision, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise; it being expressly agreed and
understood that this Indenture and all the Securities are solely
corporate obligations, and that no personal liability whatsoever shall
attach to, or be incurred by, any incorporator, shareholder, officer
or director, past, present or future, of the Company or of any
predecessor or successor corporation, either directly or indirectly
through the Company or any predecessor or successor corporation,
because of the indebtedness hereby authorized or under or by reason of
any of the obligations, covenants or agreements contained in this
Indenture or in any of the Securities or to be implied herefrom or
therefrom, and that any such personal liability is hereby expressly
waived and released as a condition of, and as part of the
consideration for, the execution of this Indenture and the issuance of
the Securities.
-------------------------
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, all as of the day and year first above written.
DPL INC.
By: /s/ S. F. Koziar
------------------------------------
S.F. Koziar
Group Vice President and Secretary
BANK ONE TRUST COMPANY,
NATIONAL ASSOCIATION, Trustee
By: /s/ Steven M. Wagner
------------------------------------
Name: Steven M. Wagner
Title: Director
71
DPL INC.
OFFICER'S CERTIFICATE
S. F. Koziar, the Group Vice President and Secretary of DPL Inc. (the
"Company"), pursuant to the authority granted in the Board Resolutions of the
Company dated February 1, 2000, and Sections 201 and 301 of the Indenture of the
Company, dated as of March 1, 2000 (the "Indenture"), does hereby certify to
Bank One Trust Company, National Association, as Trustee under the Indenture
(the "Trustee"), as follows (and capitalized terms not separately defined herein
shall have the respective meanings ascribed thereto in the Indenture):
1. Two series of securities to be issued under the Indenture shall be
designated, respectively, "8 1/4% Senior Notes due 2007" (the "Senior
Notes") and "8 1/4% Senior Exchange Notes due 2007" (the "Exchange Notes"
and collectively with the Senior Notes, the "Notes").
2. The Notes shall be limited in aggregate principal amount to $425,000,000 at
any time Outstanding, except as contemplated in Section 301(b) of the
Indenture or as may be increased by a separate officer's certificate.
3. The Notes shall mature and the principal shall be due and payable together
with all accrued and unpaid interest thereon on March 1, 2007.
4. The Senior Notes shall be issued in fully registered form only in minimum
denominations of $100,000 and integral multiples of $1,000 in excess
thereof and the Exchange Notes shall be issued in fully registered form
only in minimum denominations of $1,000 and integral multiples of $1,000 in
excess thereof.
5. The Notes shall bear interest at the rate of 81/4% per annum payable
semi-annually on March 1 and September 1 of each year (each, an "Interest
Payment Date") commencing September 1, 2000. Interest on the Senior Notes
will accrue from March 1, 2000, but if interest has been paid on such
Senior Notes, then from the most recent Interest Payment Date to which
interest has been paid or duly provided for. Interest on the Exchange Notes
will accrue from the most recent Interest Payment Date to which interest
has been paid on or duly provided for with respect to the Senior Notes, or
if no such interest has been paid or duly provided for, from March 1, 2000,
but if interest has been paid on or duly provided for with respect to such
Exchange Notes, then from the most recent Interest Payment Date to which
interest has been paid or duly provided for. In the event that any Interest
Payment Date is not a Business Day, then payment of interest payable on
such date will be made on the next succeeding day which is a Business Day
(and without any interest or other payment in respect of such delay), with
the same force and effect as if made on such Interest Payment Date.
6. Each installment of interest on a Note shall be payable to the Person in
whose name such Note is registered at the close of business on February 15
or August 15 next preceding the corresponding Interest Payment Date (the
"Regular Record Date") for the Notes. Any installment of interest on the
Notes not punctually paid or duly provided for shall forthwith cease to be
payable to the Holders of such Notes on such Regular Record Date, and may
<PAGE>
be paid to the Persons in whose name such Notes are registered at the close
of business on a Special Record Date to be fixed by the Trustee for the
payment of such Defaulted Interest. Notice of such Defaulted Interest and
Special Record Date shall be given to the Holders of such Notes not less
than 10 days prior to such Special Record Date, or may be paid at any time
in any other lawful manner not inconsistent with the requirements of any
securities exchange on which such Notes may be listed, and upon such notice
as may be required by such exchange, all as more fully provided in the
Indenture.
7. The principal and each installment of interest on the Notes shall be
payable at, and registration and registration of transfers and exchanges in
respect of the Notes may be effected at, the office or agency of the
Company in The City of New York; provided that payment of interest may be
made at the option of the Company by check mailed to the address of the
person entitled thereto. Notices and demands to or upon the Company in
respect of the Notes may be served at the office or agency of the Company
in The City of New York. The corporate trust operations office of the
Trustee in The City of New York will initially be the agency of the Company
for such payment, registration and registration of transfers and exchanges
and service of notices and demands, and the Company hereby appoints the
Trustee as its agent for all such purposes; provided, however, that the
Company reserves the right to change, by one or more Officer's
Certificates, any such office or agency and such agent. The Trustee will be
the Security Registrar and the Paying Agent for the Notes.
8. The Notes will be redeemable as provided in the form thereof attached
hereto as Exhibit A and Exhibit B, as applicable, with respect to the
--------- ---------
Senior Notes and Exhibit C with respect to the Exchange Notes.
---------
9. The Company will enter into a Registration Rights Agreement with the
initial purchaser of the Senior Notes pursuant to which the Senior Notes
may be exchanged for the Exchange Notes registered under the Securities Act
or, failing such exchange, the Company will file a shelf registration for
the resale of the Senior Notes. The Senior Notes will be offered and sold
in reliance on exemptions under the Securities Act, and Senior Notes will
be exchanged for Exchange Notes only pursuant to an effective registration
statement under the Securities Act and in accordance with the Registration
Rights Agreement. Except as provided in the Registration Rights Agreement,
nothing in the Indenture, the Senior Notes or this certificate shall be
construed to require the Company to register any Senior Notes under the
Securities Act, or to make any transfer of such Senior Notes in violation
of applicable law.
10. Beneficial interests in Senior Notes owned by qualified institutional
buyers (as defined in Rule 144A under the Securities Act) ("QIBs") or sold
to QIBs in reliance upon Rule 144A under the Securities Act and beneficial
interests in Senior Notes sold to foreign purchasers pursuant to Regulation
S under the Securities Act will be represented by a global certificate
registered in the name of Cede & Co., as registered owner and as nominee
for the Depositary Trust Company or any successor depositary (the
"Depositary") substantially in the form, and bearing the legends, set forth
in Exhibit A hereto (the "Restricted Global Security"); beneficial
---------
interests in Exchange Notes will be represented by a global certificate
registered by Cede & Co., as registered owner and as nominee for the
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<PAGE>
Depositary, substantially in the form, and bearing the legends, set forth
in Exhibit C hereto (the "Unrestricted Global Security" and together with
---------
the Restricted Global Security, the "Global Securities"); and Senior Notes
acquired by Institutional Accredited Investors (as defined in Rule 501
(a)(1), (2), (3) or (7) under the Securities Act) ("IAIs") and other
eligible transferees, who are not QIBs and who are not foreign purchasers
pursuant to Regulation S under the Securities Act will be in certificated
form, substantially in the form, and bearing the legend, set forth in
Exhibit B hereto (each such Senior Note, a "Physical Security"). Physical
---------
securities may only be issued to IAIs upon the delivery of a duly executed
Accredited Investor Letter in the form set forth on Exhibit D hereto. In
---------
addition, the Company may, if so requested by any initial purchaser of
Senior Notes, issue Exchange Notes bearing a Restricted Legend (as defined
below) pursuant to a further Officer's Certificate in accordance with the
Registration Rights Agreement.
11. Each Global Security initially shall be delivered to the Trustee as
custodian for such Depositary.
12. Members of, or participants in, the Depositary (the "Agent Members") shall
have no rights under this Indenture with respect to any Global Security
held on their behalf by the Depositary, or the Trustee as its custodian, or
under the Global Security, and the Depositary may be treated by the
Company, the Trustee and any agent of the Company or the Trustee as the
absolute owner of such Global Security for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the Company,
the Trustee or any agent of the Company or the Trustee, from giving effect
to any written certification, proxy or other authorization furnished by the
Depositary or impair, as between the Depositary and its Agent Members, the
operation of customary practices governing the exercise of the rights of a
holder of any Security.
13. Physical Securities shall be transferred to all beneficial owners in
exchange for their beneficial interests in a Global Security only if (i)
the Depositary (A) notifies the Company that it is unwilling or unable to
continue as Depositary for such Global Security, and a successor depositary
is not appointed by the Company within 90 days of such notice, (B) ceases
to be qualified to serve as Depositary and a successor depositary is not
appointed by the Company within 90 days of notification of such event, (ii)
an Event of Default of which the Trustee has actual notice has occurred and
is continuing and the Registrar has received a request from the Depositary
to issue such Physical Securities, or (iii) the Company executes and
delivers to the Trustee an order that the Global Security shall be so
exchangeable.
14. Transfers of a Global Security shall be limited to transfers of such Global
Security in whole, but not in part, to the Depositary, its successors or
their respective nominees. If at any time the Depositary notifies the
Company that it is unwilling or unable to continue as Depositary or if at
any time the Depositary shall no longer be qualified to serve as the
Depositary, the Company shall appoint a successor depositary with respect
to the Securities. If a successor depositary is not appointed by the
Company within 90 days after the Company receives such notice or becomes
aware of such ineligibility, the Trustee, upon receipt of a Company Order
for the authentication and delivery of definitive Securities, will
authenticate and deliver Securities of like tenor and terms in definitive
3
<PAGE>
form in an aggregate principal amount equal to the principal amount of the
Global Securities or Securities in exchange for such Global Security or
Securities.
15. Any beneficial interest in one of the Global Securities that is transferred
to a person who takes delivery in the form of an interest in the other
Global Security will, upon transfer, cease to be an interest in such Global
Security and become an interest in the other Global Security and,
accordingly, will thereafter be subject to all restrictions, if any, and
procedures applicable to beneficial interests in such other Global Security
for as long as it remains such an interest.
16. In connection with any transfer of a portion of the beneficial interests in
a Global Security to beneficial owners pursuant to paragraph 14, the
Registrar shall reflect on its books and records the date and a decrease in
the principal amount of such Global Security in an amount equal to the
principal amount of the beneficial interest in such Global Security to be
transferred, and the Company shall execute, and the Trustee shall
authenticate and make available for delivery, one or more Physical
Securities of like tenor and amount.
17. In connection with the transfer of an entire Global Security to beneficial
owners pursuant to paragraph 14, such Global Security shall be deemed to be
surrendered to the Trustee for cancellation, and the Company shall execute,
and the Trustee shall authenticate and deliver, to each beneficial owner
identified by the Depositary in exchange for its beneficial interest in
such Global Security, an equal principal amount of Physical Securities of
authorized denominations.
18. Any Physical Security delivered in exchange for an interest in a Global
Security pursuant to paragraph 14 shall, except as otherwise provided by
Section 20(d) hereof, bear the legend regarding transfer restrictions
applicable to the Physical Security set forth in Exhibit B.
---------
19. The registered holder of a Global Security may grant proxies and otherwise
authorize any person, including Agent Members and persons that may hold
interests through Agent Members, to take any action which a Holder is
entitled to take under the Indenture or the Notes.
20. Unless and until a Senior Note is exchanged for an Exchange Note in
connection with an effective registration pursuant to the Registration
Rights Agreement, the following provisions shall apply:
(a) The transfer or exchange of any Senior Note (or a beneficial interest
therein) that bears the non-registration legend restricting transfers
set forth in Exhibits A and Exhibit B (the "Restricted Legend") may
only be made in compliance with the provisions of the Restricted
Legend.
(b) The Trustee will retain copies of all certificates, opinions and other
documents received in connection with the transfer or exchange of a
Senior Note (or a beneficial interest therein), and the Company will
have the right to inspect and make copies thereof at any reasonable
time upon written notice to the Trustee.
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<PAGE>
(c) Each Senior Note will provide that each Holder, by its acceptance of
any Senior Note bearing the Restricted Legend, acknowledges the
restrictions on transfer of such Senior Note set forth in the
Restricted Legend and agrees that it will transfer such Senior Note
only as provided in the Restricted Legend. The Registrar shall not
register a transfer of any Senior Note unless such transfer complies
with the restrictions on transfer of such Senior Note set forth
therein. Each Senior Note will provide that each Holder agrees by its
acceptance of the Senior Note that, in connection with any transfer of
the Senior Note, it will furnish the Registrar or the Company such
certificates and other information as either of them may reasonably
require to confirm that such transfer is being made pursuant to an
exemption from, or a transaction not subject to, the registration
requirements of the Securities Act; provided that the Registrar shall
not be required to determine (but may rely on a determination made by
the Company with respect to) the sufficiency of any such certificates
and other information.
(d) The Restricted Legend shall be removed from any Senior Note only upon
the receipt of a Company Order accompanied by an Opinion of Counsel to
the effect that such Senior Note is not a "restricted security" as
defined in Rule 144.
21. The Trustee, the Security Registrar and the Company will have no
responsibility under the Indenture for transfers of beneficial interests in
the Senior Notes. In connection with any transfer of Senior Notes, the
Trustee, the Security Registrar and the Company shall be under no duty to
inquire into, may conclusively presume the correctness of, and shall be
fully protected in relying upon the certificates and other information
(including, without limitation, transfer certificates in the forms attached
to the form of Notes attached hereto as Exhibit B, for use in connection
---------
with the transfer of the Senior Notes in the form of Physical Securities,
or Exhibit A, in the case of Senior Notes, or Exhibit C, in the case of
--------- ---------
Exchange Notes, for use in connection with the transfer of beneficial
interests in one Global Security to another Global Security or to a Note in
the form of a Physical Security, or otherwise) received from the Holders
and any transferees of any Notes regarding the validity, legality and due
authorization of any such transfer, the eligibility of the transferee to
receive such Security and any other facts and circumstances related to such
transfer.
22. No service charge shall be made for the registration of transfer or
exchange of the Notes; provided, however, that the Company may require
payment of a sum sufficient to cover any tax or other governmental charge
that may be imposed in connection with the exchange or transfer.
23. If the Company shall make any deposit of money and/or Eligible Obligations
with respect to any Notes, or any portion of the principal amount thereof,
as contemplated by Section 701 of the Indenture, the Company shall not
deliver an Officer's Certificate described in clause (z) in the first
paragraph of said Section 701 unless the Company shall also deliver to the
Trustee, together with such Officer's Certificate, either:
(A) an instrument wherein the Company, notwithstanding the satisfaction
and discharge of its indebtedness in respect of the Notes, shall
assume the obligation (which shall be absolute and unconditional) to
irrevocably deposit with the Trustee or Paying Agent such additional
5
<PAGE>
sums of money, if any, or additional Eligible Obligations (meeting the
requirements of Section 701), if any, or any combination thereof, at
such time or times, as shall be necessary, together with the money
and/or Eligible Obligations theretofore so deposited, to pay when due
the principal of and premium, if any, and interest due and to become
due on such Notes or portions thereof, all in accordance with and
subject to the provisions of said Section 701, provided, however, that
such instrument may state that the obligation of the Company to make
additional deposits as aforesaid shall be subject to the delivery to
the Company by the Trustee of a notice asserting the deficiency
accompanied by an opinion of an independent public accountant of
nationally recognized standing, selected by the Trustee, showing the
calculation thereof; or
(B) an Opinion of Counsel to the effect that, based on a change in law or
administrative ruling issued after the date hereof, the Holders of
such Notes, or portions of the principal amount thereof, will not
recognize income, gain or loss for United States federal income tax
purposes as a result of the satisfaction and discharge of the
Company's indebtedness in respect thereof and will be subject to
United States federal income tax on the same amounts, at the same
times and in the same manner as if such satisfaction and discharge had
not been effected.
24. The Notes shall have such other terms and provisions as are provided in the
form thereof set forth in Exhibit A or Exhibit B hereto with respect to the
--------- ---------
Senior Notes and as set forth in Exhibit C hereto with respect to the
---------
Exchange Notes, and shall be issued in substantially such form.
25. The undersigned has read all of the covenants and conditions contained in
the Indenture relating to the issuance of the Senior Notes and the
definitions in the Indenture relating thereto and in respect of which this
certificate is made.
26. The statements contained in this certificate are based upon the familiarity
of the undersigned with the Indenture, the documents accompanying this
certificate, and upon discussions by the undersigned with officers and
employees of the Company familiar with the matters set forth herein.
27. In the opinion of the undersigned, he has made such examination or
investigation as is necessary to enable him to express an informed opinion
whether or not such covenants and conditions have been complied with.
28. In the opinion of the undersigned, such conditions and covenants and
conditions precedent, if any (including any covenants compliance with which
constitutes a condition precedent) to the authentication and delivery of
the Senior Notes requested in the accompanying Company Order have been
complied with.
IN WITNESS WHEREOF, I have executed this Officer's Certificate this 1st day of
March, 2000.
6
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S. F. Koziar
---------------------------------------
S. F. Koziar
Group Vice President and Secretary
7
<PAGE>
EXHIBIT A
FORM OF GLOBAL SENIOR NOTE
[depository legend]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE COMPANY OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFER OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE,
BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE
OFFICERS CERTIFICATE ESTABLISHING THIS SERIES.
[non-registration legend]
THIS SENIOR NOTE (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF
1933 (THE "SECURITIES ACT"), AND THIS SENIOR NOTE MAY NOT BE OFFERED, SOLD OR
OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE
EXEMPTION THEREFROM. EACH PURCHASER OF THIS SENIOR NOTE IS HEREBY NOTIFIED THAT
THE SELLER OF THIS SENIOR NOTE MAY BE RELYING ON THE EXEMPTION FROM THE
PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER.
THE HOLDER OF THIS SENIOR NOTE AGREES FOR THE BENEFIT OF THE COMPANY THAT
(A) THIS SENIOR NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED,
ONLY (I) IN THE UNITED STATES TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS
A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES
ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (II) OUTSIDE THE
UNITED STATES IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 904 UNDER THE
SECURITIES ACT, (III) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE) OR (IV) PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN EACH OF
CASES (I) THROUGH (IV) IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY
STATE OF THE UNITED STATES, AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER
IS REQUIRED TO, NOTIFY ANY PURCHASER OF THIS SENIOR NOTE FROM IT OF THE RESALE
RESTRICTIONS REFERRED TO IN (A) ABOVE.
IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE REGISTRAR
AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH TRANSFER
<PAGE>
AGENT MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE
FOREGOING RESTRICTIONS.
[registration rights legend]
THE HOLDER OF THIS SECURITY, BY ACCEPTANCE HEREOF, WILL BE DEEMED TO HAVE
AGREED TO BE BOUND BY THE PROVISIONS OF THE REGISTRATION RIGHTS AGREEMENT DATED
MARCH 1, 2000, BETWEEN THE COMPANY AND THE INITIAL PURCHASER OF THIS SECURITY.
NO. R- CUSIP NO. 233293AC3
-------
DPL INC.
8 1/4% SENIOR NOTE DUE 2007
DPL Inc., a corporation duly organized and existing under the laws of the
State of Ohio (herein referred to as the "Company", which term includes any
successor Person under the Indenture), for value received, hereby promises to
pay to CEDE & CO. or registered assigns, the principal sum of
------------------
Dollars ($ ) on March 1, 2007, and to pay interest on said
--------------
principal sum semi-annually on March 1 and September 1 of each year (each an
"Interest Payment Date"), commencing September 1, 2000, at the rate of 8 1/4%
peR annum until the principal hereof is paid or made available for payment.
Interest on the Securities of this series will accrue from March 1, 2000, to the
first Interest Payment Date, and thereafter will accrue from the last Interest
Payment Date to which interest has been paid or duly provided for. In the event
that any Interest Payment Date is not a Business Day, then payment of interest
payable on such date will be made on the next succeeding day which is a Business
Day (and without any interest or other payment in respect of such delay) with
the same force and effect as if made on the Interest Payment Date. The interest
so payable, and punctually paid or duly provided for, on any Interest Payment
Date will, as provided in such Indenture, be paid to the Person in whose name
this Security (or one or more Predecessor Securities) is registered at the close
of business on the Regular Record Date for such interest, which shall be the
February 15 or August 15 next preceding such Interest Payment Date. Any such
interest not so punctually paid or duly provided for will forthwith cease to be
payable to the Holder on such Regular Record Date and may either be paid to the
Person in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on a Special Record Date for the payment of
such Defaulted Interest to be fixed by the Trustee, notice whereof shall be
given to Holders of Securities of this series not less than 10 days prior to
such Special Record Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
Securities of this series may be listed, and upon such notice as may be required
by such exchange, all as more fully provided in the Indenture referred to on the
reverse hereof.
Payment of the principal of (and premium, if any) and interest on this
Security will be made at the office or agency of the Company maintained for that
purpose in The City of New York, the State of New York in such coin or currency
of the United States of America as at the time of payment is legal tender for
payment of public and private debts, provided, however, that, at the option of
the Company, interest on this Security may be paid by check mailed to the
address of the person entitled thereto, as such address shall appear on the
Security Register.
2
<PAGE>
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
3
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
DPL INC.
By:
-------------------------------------
Group Vice President and Secretary
CERTIFICATE OF AUTHENTICATION
Dated:
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
BANK ONE TRUST COMPANY, NATIONAL
ASSOCIATION, as Trustee
By:
-------------------------------------
Authorized Signatory
4
<PAGE>
[REVERSE OF SENIOR NOTE]
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated as of March 1, 2000 (herein, together with any
amendments thereto, called the "Indenture", which term shall have the meaning
assigned to it in such instrument), between the Company and Bank One Trust
Company, National Association, as Trustee (herein called the "Trustee", which
term includes any successor trustee under the Indenture), and reference is
hereby made to the Indenture, and the Officer's Certificate filed with the
Trustee on March 1, 2000 creating the series designated on the face hereof, for
a statement of the respective rights, limitations of rights, duties and
immunities thereunder of the Company, the Trustee and the Holders of the
Securities and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Security is one of the series designated on
the face hereof, limited in aggregate principal amount to $425,000,000. Such
principal amount may be increased in the future on the same terms and conditions
and with the same CUSIP number.
REDEMPTION
The Securities of this series may be redeemed at any time at the option of
the Company, in whole or from time to time in part, at a redemption price equal
to the sum of (i) the principal amount of the Securities of this series (or
portion thereof) being redeemed plus accrued interest thereon to the redemption
date and (ii) the Make-Whole Amount (as defined below), if any, with respect to
the Securities of this series (or portion thereof) being redeemed.
As used herein:
"Make-Whole Amount" means the excess, if any, of (i) the sum, as
determined by a Quotation Agent (as defined herein), of the present values
of the principal amount of such Securities of this series, together with
scheduled payments of interest (exclusive of interest to the date of
redemption) from the redemption date to the Stated Maturity of the
Securities of this series, in each case discounted to the redemption date
on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day
months) at the Adjusted Treasury Rate (as defined herein) over (ii) 100% of
the principal amount of the Securities of this series to be redeemed.
"Adjusted Treasury Rate" means, with respect to any redemption date,
the rate per annum equal to the semi-annual equivalent yield to maturity of
the Comparable Treasury Issue, calculated using a price for the Comparable
Treasury Issue (expressed as a percentage of its principal amount) equal to
the Comparable Treasury Price for such redemption date, calculated on the
third Business Day preceding the redemption date, plus in each case 0.35%
(35 basis points).
"Comparable Treasury Issue" means the United States Treasury security
selected by the Quotation Agent as having a maturity comparable to the
remaining term from the redemption date to the Stated Maturity of the
Securities of this series that would be utilized, at the time of selection
and in accordance with customary financial practice, in pricing new issues
of corporate debt securities of comparable maturity to the remaining term
of the Securities of this series.
<PAGE>
"Quotation Agent" means the Reference Treasury Dealer selected by the
Company. "Reference Treasury Dealer" means a primary U.S. Government
securities dealer selected by the Company.
"Comparable Treasury Price" means, with respect to any redemption
date, (i) the average of the bid and asked prices for the Comparable
Treasury Issue (expressed in each case as a percentage of its principal
amount) on the third Business Day preceding such redemption date, as set
forth in the daily statistical release (or any successor release) published
by the Federal Reserve Bank of New York and designated "Composite 3:30 p.m.
Quotations for U.S. Government Securities" or (ii) if such release (or any
successor release) is not published or does not contain such prices on such
Business Day, the average of three (or such lesser number as is obtained by
the Trustee) Reference Treasury Broker/Dealer Quotations for such
redemption date.
"Reference Treasury Broker/Dealer Quotations" means, with respect to
each Reference Treasury Broker/Dealer and any redemption date, the average,
as determined by the Trustee, of the bid and asked prices for the
Comparable Treasury Issue (expressed in each case as a percentage of its
principal amount) quoted in writing to the Trustee by such Reference
Treasury Broker/Dealer at 5:00 p.m., New York City time, on the third
Business Day preceding such redemption date.
Notice of any redemption will be mailed at least 30 days but no more than
60 days before the Redemption Date to each Holder of the Securities of this
series to be redeemed.
Upon payment of the Redemption Price, on and after the Redemption Date
interest will cease to accrue on the Securities of this series or portions
thereof called for redemption.
The Company shall deliver to the Trustee before any Redemption Date for the
Securities of this series its calculation of the Redemption Price applicable to
such redemption. Except with respect to the obligations of the Trustee expressly
set forth in the foregoing definitions of "Comparable Treasury Price" and
"Reference Treasury Broker/Dealer Quotations", the Trustee shall be under no
duty to inquire into, may presume the correctness of, and shall be fully
protected in acting upon the Company's calculation of any Redemption Price of
the Securities of this series.
In lieu of stating the Redemption Price, notices of redemption of the
Securities of this series shall state substantially the following: "The
Redemption Price of the Securities of this series to be redeemed shall equal the
sum of (i) 100% of the principal amount of such Securities of this series plus
accrued interest thereon to the Redemption Date and (ii) the Make-Whole Amount
(as defined in the Indenture)."
Except as provided herein, Article Four of the Indenture shall apply to
redemptions of the Securities of this series.
The Indenture contains provisions for defeasance at any time of the entire
indebtedness of this Security upon compliance with certain conditions set forth
in the Indenture.
If an Event of Default with respect to Securities of this series shall
occur and be continuing, the principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture.
2
<PAGE>
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of a majority in principal amount of the Securities at
the time Outstanding of all series to be affected. The Indenture also contains
provisions permitting the Holders of specified percentages in principal amount
of the Securities of each series at the time Outstanding, on behalf of the
Holders of all Securities of such series, to waive compliance by the Company
with certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the registration
of transfer hereof or in exchange herefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, the Holder
of this Security shall not have the right to institute any proceeding with
respect to the Indenture or for the appointment of a receiver or trustee or for
any other remedy thereunder, unless such Holder shall have previously given the
Trustee written notice of a continuing Event of Default with respect to the
Securities of this series, the Holders of a majority in aggregate principal
amount of the Securities of all series at the time Outstanding in respect of
which an Event of Default shall have occurred and be continuing shall have made
written request to the Trustee to institute proceedings in respect of such Event
of Default as Trustee and offered the Trustee reasonable indemnity, and the
Trustee shall not have received from the Holders of a majority in aggregate
principal amount of Securities of all series at the time Outstanding in respect
of which an Event of Default shall have occurred and be continuing a direction
inconsistent with such request, and shall have failed to institute any such
proceeding, for 60 days after receipt of such notice, request and offer of
indemnity. The foregoing shall not apply to any suit instituted by the Holder of
this Security for the enforcement of any payment of principal hereof or any
premium or interest hereon on or after the respective due dates expressed
herein.
No reference herein to the Indenture and no provision of this Security or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and any premium and interest
on this Security at the times, place and rate, and in the coin or currency,
herein prescribed.
The Securities of this series are issuable only in registered form without
coupons in denominations of $1,000 and in integral multiples of $1,000 in excess
thereof. As provided in the Indenture and subject to certain limitations therein
set forth, Securities of this series are exchangeable for a like aggregate
principal amount of Securities of this series and of like tenor and of
authorized denominations, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Company, the Trustee and any agent of the Company or the Trustee may
treat the Person in whose name this Security is registered as the absolute owner
hereof for all purposes, whether or not this Security be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
All terms used in this Security which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
3
<PAGE>
CERTIFICATE OF TRANSFER
DPL INC.
8 1/4% SENIOR NOTES DUE 2007
PRINCIPAL AMOUNT: $
--------------
FOR VALUE RECEIVED, THE UNDERSIGNED SELLS, ASSIGNS AND TRANSFERS UNTO
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
NAME AND ADDRESS OF ASSIGNEE MUST BE PRINTED OR TYPEWRITTEN.
THE WITHIN SECURITY OF THE COMPANY AND DOES HEREBY IRREVOCABLE CONSTITUTE AND
APPOINT
TO TRANSFER THE SAID SECURITY ON THE BOOKS OF THE WITHIN-NAMED COMPANY, WITH
FULL POWER OF SUBSTITUTION IN THE PREMISES.
THE UNDERSIGNED CERTIFIES THAT SAID SECURITY IS BEING RESOLD, PLEDGED OR
OTHERWISE TRANSFERRED AS FOLLOWS: (CHECK ONE)
[ ] TO A PERSON WHOM THE UNDERSIGNED REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") PURCHASING FOR ITS OWN
ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM
NOTICE IS GIVEN THAT THE RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A;
[ ] OUTSIDE THE UNITED STATES IN ACCORDANCE WITH RULE 904 OF REGULATION S
UNDER THE SECURITIES ACT;
[ ] PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT;
[ ] PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT
PROVIDED BY RULE 144;
AND, IN ANY SUCH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY
STATE OF THE UNITED STATES.
THE UNDERSIGNED FURTHER CERTIFIES THAT IT HAS NOTIFIED THE ASSIGNEE OF THE
RESALE RESTRICTIONS SET FORTH ABOVE, IF APPLICABLE.
----------------------------------------------------------------
----------------------------------------------------------------
DATED:
4
<PAGE>
EXHIBIT B
FORM OF SENIOR NOTE FOR
INSTITUTIONAL ACCREDITED INVESTORS
[non-registration legend]
THIS SENIOR NOTE (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF
1933 (THE "SECURITIES ACT"), AND THIS SENIOR NOTE MAY NOT BE OFFERED, SOLD OR
OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE
EXEMPTION THEREFROM. EACH PURCHASER OF THIS SENIOR NOTE IS HEREBY NOTIFIED THAT
THE SELLER OF THIS SENIOR NOTE MAY BE RELYING ON THE EXEMPTION FROM THE
PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER.
THE HOLDER OF THIS SENIOR NOTE AGREES FOR THE BENEFIT OF THE COMPANY THAT
(A) THIS SENIOR NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED,
ONLY (I) IN THE UNITED STATES TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS
A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES
ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (II) OUTSIDE THE
UNITED STATES IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 904 UNDER THE
SECURITIES ACT, (III) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE) OR (IV) PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN EACH OF
CASES (I) THROUGH (IV) IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY
STATE OF THE UNITED STATES, AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER
IS REQUIRED TO, NOTIFY ANY PURCHASER OF THIS SENIOR NOTE FROM IT OF THE RESALE
RESTRICTIONS REFERRED TO IN (A) ABOVE.
IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE REGISTRAR
AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH TRANSFER
AGENT MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE
FOREGOING RESTRICTIONS.
[registration rights legend]
THE HOLDER OF THIS SECURITY, BY ACCEPTANCE HEREOF, WILL BE DEEMED TO HAVE
AGREED TO BE BOUND BY THE PROVISIONS OF THE REGISTRATION RIGHTS AGREEMENT DATED
MARCH 1, 2000, BETWEEN THE COMPANY AND THE INITIAL PURCHASER OF THIS SECURITY.
No. Cusip No. 233293AC3
------
<PAGE>
DPL INC.
8 1/4% SENIOR NOTE DUE 2007
DPL Inc., a corporation duly organized and existing under the laws of the
State of Ohio (herein referred to as the "Company", which term includes any
successor Person under the Indenture), for value received, hereby promises to
pay to or registered assigns, the principal sum of
---------------------
Dollars ($ ) on March 1, 2007, and to pay
- ------------------ --------------
interest on said principal sum semi-annually on March 1 and September 1 of each
year (each an "Interest Payment Date"), commencing September 1, 2000, at the
rate of 8 1/4% per annum until the principal hereof is paid or made available
for payment. Interest on the Securities of this series will accrue from March 1,
2000, to the first Interest Payment Date, and thereafter will accrue from the
last Interest Payment Date to which interest has been paid or duly provided for.
In the event that any Interest Payment Date is not a Business Day, then payment
of interest payable on such date will be made on the next succeeding day which
is a Business Day (and without any interest or other payment in respect of such
delay) with the same force and effect as if made on the Interest Payment Date.
The interest so payable, and punctually paid or duly provided for, on any
Interest Payment Date will, as provided in such Indenture, be paid to the Person
in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest, which shall be the February 15 or August 15 next preceding such
Interest Payment Date. Any such interest not so punctually paid or duly provided
for will forthwith cease to be payable to the Holder on such Regular Record Date
and may either be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof shall be given to Holders of Securities of this series
not less than 10 days prior to such Special Record Date, or be paid at any time
in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities of this series may be listed, and
upon such notice as may be required by such exchange, all as more fully provided
in the Indenture referred to on the reverse hereof.
Payment of the principal of (and premium, if any) and interest on this
Security will be made at the office or agency of the Company maintained for that
purpose in The City of New York, the State of New York in such coin or currency
of the United States of America as at the time of payment is legal tender for
payment of public and private debts, provided, however, that, at the option of
the Company, interest on this Security may be paid by check mailed to the
address of the person entitled thereto, as such address shall appear on the
Security Register.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
2
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
DPL INC.
By:
------------------------------------
Group Vice President and Secretary
CERTIFICATE OF AUTHENTICATION
Dated:
---------------
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
BANK ONE TRUST COMPANY, NATIONAL
ASSOCIATION, as Trustee
By:
------------------------------------
Authorized Signatory
3
<PAGE>
[REVERSE OF SENIOR NOTE]
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated as of March 1, 2000 (herein, together with any
amendments thereto, called the "Indenture", which term shall have the meaning
assigned to it in such instrument), between the Company and Bank One Trust
Company, National Association, as Trustee (herein called the "Trustee", which
term includes any successor trustee under the Indenture), and reference is
hereby made to the Indenture and to the Officer's Certificate filed with the
Trustee on March 1, 2000 creating the series designated on the face hereof for a
statement of the respective rights, limitations of rights, duties and immunities
thereunder of the Company, the Trustee and the Holders of the Securities and of
the terms upon which the Securities are, and are to be, authenticated and
delivered. This Security is one of the series designated on the face hereof,
limited in aggregate principal amount to $425,000,000. Such principal amount may
be increased in the future on the same terms and conditions and with the same
CUSIP number.
REDEMPTION
The Securities of this series may be redeemed at any time at the option of
the Company, in whole or from time to time in part, at a redemption price equal
to the sum of (i) the principal amount of the Securities of this series (or
portion thereof) being redeemed plus accrued interest thereon to the redemption
date and (ii) the Make-Whole Amount (as defined below), if any, with respect to
the Securities of this series (or portion thereof) being redeemed.
As used herein:
"Make-Whole Amount" means the excess, if any, of (i) the sum, as
determined by a Quotation Agent (as defined herein), of the present values
of the principal amount of such Securities of this series, together with
scheduled payments of interest (exclusive of interest to the date of
redemption) from the redemption date to the Stated Maturity of the
Securities of this series, in each case discounted to the redemption date
on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day
months) at the Adjusted Treasury Rate (as defined herein) over (ii) 100% of
the principal amount of the Securities of this series to be redeemed.
"Adjusted Treasury Rate" means, with respect to any redemption date,
the rate per annum equal to the semi-annual equivalent yield to maturity of
the Comparable Treasury Issue, calculated using a price for the Comparable
Treasury Issue (expressed as a percentage of its principal amount) equal to
the Comparable Treasury Price for such redemption date, calculated on the
third Business Day preceding the redemption date, plus in each case 0.35%
(35 basis points).
"Comparable Treasury Issue" means the United States Treasury security
selected by the Quotation Agent as having a maturity comparable to the
remaining term from the redemption date to the Stated Maturity of the
Securities of this series that would be utilized, at the time of selection
and in accordance with customary financial practice, in pricing new issues
of corporate debt securities of comparable maturity to the remaining term
of the Securities of this series.
<PAGE>
"Quotation Agent" means the Reference Treasury Dealer selected by the
Company. "Reference Treasury Dealer" means a primary U.S. Government
securities dealer selected by the Company.
"Comparable Treasury Price" means, with respect to any redemption
date, (i) the average of the bid and asked prices for the Comparable
Treasury Issue (expressed in each case as a percentage of its principal
amount) on the third Business Day preceding such redemption date, as set
forth in the daily statistical release (or any successor release) published
by the Federal Reserve Bank of New York and designated "Composite 3:30 p.m.
Quotations for U.S. Government Securities" or (ii) if such release (or any
successor release) is not published or does not contain such prices on such
Business Day, the average of three (or such lesser number as is obtained by
the Trustee) Reference Treasury Broker/Dealer Quotations for such
redemption date.
"Reference Treasury Broker/Dealer Quotations" means, with respect to
each Reference Treasury Broker/Dealer and any redemption date, the average,
as determined by the Trustee, of the bid and asked prices for the
Comparable Treasury Issue (expressed in each case as a percentage of its
principal amount) quoted in writing to the Trustee by such Reference
Treasury Broker/Dealer at 5:00 p.m., New York City time, on the third
Business Day preceding such redemption date.
Notice of any redemption will be mailed at least 30 days but no more than
60 days before the Redemption Date to each Holder of the Securities of this
series to be redeemed.
Upon payment of the Redemption Price, on and after the Redemption Date
interest will cease to accrue on the Securities of this series or portions
thereof called for redemption.
The Company shall deliver to the Trustee before any Redemption Date for the
Securities of this series its calculation of the Redemption Price applicable to
such redemption. Except with respect to the obligations of the Trustee expressly
set forth in the foregoing definitions of "Comparable Treasury Price" and
"Reference Treasury Broker/Dealer Quotations", the Trustee shall be under no
duty to inquire into, may presume the correctness of, and shall be fully
protected in acting upon the Company's calculation of any Redemption Price of
the Securities of this series.
In lieu of stating the Redemption Price, notices of redemption of the
Securities of this series shall state substantially the following: "The
Redemption Price of the Securities of this series to be redeemed shall equal the
sum of (i) 100% of the principal amount of such Securities of this series plus
accrued interest thereon to the Redemption Date and (ii) the Make-Whole Amount
(as defined in the Indenture)."
Except as provided herein, Article Four of the Indenture shall apply to
redemptions of the Securities of this series.
The Indenture contains provisions for defeasance at any time of the entire
indebtedness of this Security upon compliance with certain conditions set forth
in the Indenture.
If an Event of Default with respect to Securities of this series shall
occur and be continuing, the principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture.
2
<PAGE>
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of a majority in principal amount of the Securities at
the time Outstanding of all series to be affected. The Indenture also contains
provisions permitting the Holders of specified percentages in principal amount
of the Securities of each series at the time Outstanding, on behalf of the
Holders of all Securities of such series, to waive compliance by the Company
with certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the registration
of transfer hereof or in exchange herefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, the Holder
of this Security shall not have the right to institute any proceeding with
respect to the Indenture or for the appointment of a receiver or trustee or for
any other remedy thereunder, unless such Holder shall have previously given the
Trustee written notice of a continuing Event of Default with respect to the
Securities of this series, the Holders of a majority in aggregate principal
amount of the Securities of all series at the time Outstanding in respect of
which an Event of Default shall have occurred and be continuing shall have made
written request to the Trustee to institute proceedings in respect of such Event
of Default as Trustee and offered the Trustee reasonable indemnity, and the
Trustee shall not have received from the Holders of a majority in aggregate
principal amount of Securities of all series at the time Outstanding in respect
of which an Event of Default shall have occurred and be continuing a direction
inconsistent with such request, and shall have failed to institute any such
proceeding, for 60 days after receipt of such notice, request and offer of
indemnity. The foregoing shall not apply to any suit instituted by the Holder of
this Security for the enforcement of any payment of principal hereof or any
premium or interest hereon on or after the respective due dates expressed
herein.
No reference herein to the Indenture and no provision of this Security or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and any premium and interest
on this Security at the times, place and rate, and in the coin or currency,
herein prescribed.
The Securities of this series are issuable only in registered form without
coupons in denominations of $1,000 and in integral multiples of $1,000 in excess
thereof. As provided in the Indenture and subject to certain limitations therein
set forth, Securities of this series are exchangeable for a like aggregate
principal amount of Securities of this series and of like tenor and of
authorized denominations, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Company, the Trustee and any agent of the Company or the Trustee may
treat the Person in whose name this Security is registered as the absolute owner
hereof for all purposes, whether or not this Security be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
All terms used in this Security which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
3
<PAGE>
CERTIFICATE OF TRANSFER
DPL INC.
8 1/4% SENIOR NOTES DUE 2007
PRINCIPAL AMOUNT: $
--------------
FOR VALUE RECEIVED, THE UNDERSIGNED SELLS, ASSIGNS AND TRANSFERS UNTO
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
NAME AND ADDRESS OF ASSIGNEE MUST BE PRINTED OR TYPEWRITTEN.
THE WITHIN SECURITY OF THE COMPANY AND DOES HEREBY IRREVOCABLE CONSTITUTE AND
APPOINT
TO TRANSFER THE SAID SECURITY ON THE BOOKS OF THE WITHIN-NAMED COMPANY, WITH
FULL POWER OF SUBSTITUTION IN THE PREMISES.
THE UNDERSIGNED CERTIFIES THAT SAID SECURITY IS BEING RESOLD, PLEDGED OR
OTHERWISE TRANSFERRED AS FOLLOWS: (CHECK ONE)
[ ] TO A PERSON WHOM THE UNDERSIGNED REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") PURCHASING FOR ITS OWN
ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM
NOTICE IS GIVEN THAT THE RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A;
[ ] OUTSIDE THE UNITED STATES IN ACCORDANCE WITH RULE 904 OF REGULATION S
UNDER THE SECURITIES ACT;
[ ] PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT;
[ ] PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT
PROVIDED BY RULE 144;
AND, IN ANY SUCH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY
STATE OF THE UNITED STATES.
THE UNDERSIGNED FURTHER CERTIFIES THAT IT HAS NOTIFIED THE ASSIGNEE OF THE
RESALE RESTRICTIONS SET FORTH ABOVE, IF APPLICABLE.
----------------------------------------------------------------
----------------------------------------------------------------
DATED:
4
<PAGE>
EXHIBIT C
FORM OF GLOBAL SENIOR EXCHANGE NOTE
[depository legend]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE COMPANY OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFER OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE,
BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE
OFFICERS CERTIFICATE ESTABLISHING THIS SERIES.
NO. R- CUSIP NO. 233293
--------- --------
DPL INC.
8 1/4% SENIOR EXCHANGE NOTE DUE 2007
DPL Inc., a corporation duly organized and existing under the laws of the
State of Ohio (herein referred to as the "Company", which term includes any
successor Person under the Indenture), for value received, hereby promises to
pay to CEDE & CO. or registered assigns, the principal sum of
-----------------
Dollars ($ ) on March 1, 2007, and to pay interest on said
--------------
principal sum semi-annually on March 1 and September 1 of each year (each an
"Interest Payment Date"), commencing September 1, 2000, at the rate of 8 1/4%
peR annum until the principal hereof is paid or made available for payment.
Interest on the Securities of this series will accrue from March 1, 2000, to the
first Interest Payment Date, and thereafter will accrue from the last Interest
Payment Date to which interest has been paid or duly provided for. In the event
that any Interest Payment Date is not a Business Day, then payment of interest
payable on such date will be made on the next succeeding day which is a Business
Day (and without any interest or other payment in respect of such delay) with
the same force and effect as if made on the Interest Payment Date. The interest
so payable, and punctually paid or duly provided for, on any Interest Payment
Date will, as provided in such Indenture, be paid to the Person in whose name
this Security (or one or more Predecessor Securities) is registered at the close
of business on the Regular Record Date for such interest, which shall be the
February 15 or August 15 next preceding such Interest Payment Date. Any such
interest not so punctually paid or duly provided for will forthwith cease to be
payable to the Holder on such Regular Record Date and may either be paid to the
Person in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on a Special Record Date for the payment of
such Defaulted Interest to be fixed by the Trustee, notice whereof shall be
given to Holders of Securities of this series not less than 10 days prior to
such Special Record Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
<PAGE>
Securities of this series may be listed, and upon such notice as may be required
by such exchange, all as more fully provided in the Indenture referred to on the
reverse hereof.
Payment of the principal of (and premium, if any) and interest on this
Security will be made at the office or agency of the Company maintained for that
purpose in The City of New York, the State of New York in such coin or currency
of the United States of America as at the time of payment is legal tender for
payment of public and private debts, provided, however, that, at the option of
the Company, interest on this Security may be paid by check mailed to the
address of the person entitled thereto, as such address shall appear on the
Security Register.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
2
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
DPL INC.
By:
------------------------------------
Group Vice President and Secretary
CERTIFICATE OF AUTHENTICATION
Dated:
---------------------
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
BANK ONE TRUST COMPANY, NATIONAL
ASSOCIATION, as Trustee
By:
------------------------------------
Authorized Signatory
3
<PAGE>
[REVERSE OF SENIOR EXCHANGE NOTE]
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated as of March 1, 2000 (herein, together with any
amendments thereto, called the "Indenture", which term shall have the meaning
assigned to it in such instrument), between the Company and Bank One Trust
Company, National Association, as Trustee (herein called the "Trustee", which
term includes any successor trustee under the Indenture), and reference is
hereby made to the Indenture and to the Officer's Certificate filed with the
Trustee on March 1, 2000 creating the series designated on the face hereof for a
statement of the respective rights, limitations of rights, duties and immunities
thereunder of the Company, the Trustee and the Holders of the Securities and of
the terms upon which the Securities are, and are to be, authenticated and
delivered. This Security is one of the series designated on the face hereof,
limited in aggregate principal amount to $425,000,000. Such principal amount may
be increased in the future on the same terms and conditions and with the same
CUSIP number.
REDEMPTION
The Securities of this series may be redeemed at any time at the option of
the Company, in whole or from time to time in part, at a redemption price equal
to the sum of (i) the principal amount of the Securities of this series (or
portion thereof) being redeemed plus accrued interest thereon to the redemption
date and (ii) the Make-Whole Amount (as defined below), if any, with respect to
the Securities of this series (or portion thereof) being redeemed.
As used herein:
"Make-Whole Amount" means the excess, if any, of (i) the sum, as
determined by a Quotation Agent (as defined herein), of the present values
of the principal amount of such Securities of this series, together with
scheduled payments of interest (exclusive of interest to the date of
redemption) from the redemption date to the Stated Maturity of the
Securities of this series, in each case discounted to the redemption date
on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day
months) at the Adjusted Treasury Rate (as defined herein) over (ii) 100% of
the principal amount of the Securities of this series to be redeemed.
"Adjusted Treasury Rate" means, with respect to any redemption date,
the rate per annum equal to the semi-annual equivalent yield to maturity of
the Comparable Treasury Issue, calculated using a price for the Comparable
Treasury Issue (expressed as a percentage of its principal amount) equal to
the Comparable Treasury Price for such redemption date, calculated on the
third Business Day preceding the redemption date, plus in each case 0.35%
(35 basis points).
"Comparable Treasury Issue" means the United States Treasury security
selected by the Quotation Agent as having a maturity comparable to the
remaining term from the redemption date to the Stated Maturity of the
Securities of this series that would be utilized, at the time of selection
and in accordance with customary financial practice, in pricing new issues
of corporate debt securities of comparable maturity to the remaining term
of the Securities of this series.
<PAGE>
"Quotation Agent" means the Reference Treasury Dealer selected by the
Company. "Reference Treasury Dealer" means a primary U.S. Government
securities dealer selected by the Company.
"Comparable Treasury Price" means, with respect to any redemption
date, (i) the average of the bid and asked prices for the Comparable
Treasury Issue (expressed in each case as a percentage of its principal
amount) on the third Business Day preceding such redemption date, as set
forth in the daily statistical release (or any successor release) published
by the Federal Reserve Bank of New York and designated "Composite 3:30 p.m.
Quotations for U.S. Government Securities" or (ii) if such release (or any
successor release) is not published or does not contain such prices on such
Business Day, the average of three (or such lesser number as is obtained by
the Trustee) Reference Treasury Broker/Dealer Quotations for such
redemption date.
"Reference Treasury Broker/Dealer Quotations" means, with respect to
each Reference Treasury Broker/Dealer and any redemption date, the average,
as determined by the Trustee, of the bid and asked prices for the
Comparable Treasury Issue (expressed in each case as a percentage of its
principal amount) quoted in writing to the Trustee by such Reference
Treasury Broker/Dealer at 5:00 p.m., New York City time, on the third
Business Day preceding such redemption date.
Notice of any redemption will be mailed at least 30 days but no more than
60 days before the Redemption Date to each Holder of the Securities of this
series to be redeemed.
Upon payment of the Redemption Price, on and after the Redemption Date
interest will cease to accrue on the Securities of this series or portions
thereof called for redemption.
The Company shall deliver to the Trustee before any Redemption Date for the
Securities of this series its calculation of the Redemption Price applicable to
such redemption. Except with respect to the obligations of the Trustee expressly
set forth in the foregoing definitions of "Comparable Treasury Price" and
"Reference Treasury Broker/Dealer Quotations", the Trustee shall be under no
duty to inquire into, may presume the correctness of, and shall be fully
protected in acting upon the Company's calculation of any Redemption Price of
the Securities of this series.
In lieu of stating the Redemption Price, notices of redemption of the
Securities of this series shall state substantially the following: "The
Redemption Price of the Securities of this series to be redeemed shall equal the
sum of (i) 100% of the principal amount of such Securities of this series plus
accrued interest thereon to the Redemption Date and (ii) the Make-Whole Amount
(as defined in the Indenture)."
Except as provided herein, Article Four of the Indenture shall apply to
redemptions of the Securities of this series.
The Indenture contains provisions for defeasance at any time of the entire
indebtedness of this Security upon compliance with certain conditions set forth
in the Indenture.
If an Event of Default with respect to Securities of this series shall
occur and be continuing, the principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture.
2
<PAGE>
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of a majority in principal amount of the Securities at
the time Outstanding of all series to be affected. The Indenture also contains
provisions permitting the Holders of specified percentages in principal amount
of the Securities of each series at the time Outstanding, on behalf of the
Holders of all Securities of such series, to waive compliance by the Company
with certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the registration
of transfer hereof or in exchange herefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, the Holder
of this Security shall not have the right to institute any proceeding with
respect to the Indenture or for the appointment of a receiver or trustee or for
any other remedy thereunder, unless such Holder shall have previously given the
Trustee written notice of a continuing Event of Default with respect to the
Securities of this series, the Holders of a majority in aggregate principal
amount of the Securities of all series at the time Outstanding in respect of
which an Event of Default shall have occurred and be continuing shall have made
written request to the Trustee to institute proceedings in respect of such Event
of Default as Trustee and offered the Trustee reasonable indemnity, and the
Trustee shall not have received from the Holders of a majority in aggregate
principal amount of Securities of all series at the time Outstanding in respect
of which an Event of Default shall have occurred and be continuing a direction
inconsistent with such request, and shall have failed to institute any such
proceeding, for 60 days after receipt of such notice, request and offer of
indemnity. The foregoing shall not apply to any suit instituted by the Holder of
this Security for the enforcement of any payment of principal hereof or any
premium or interest hereon on or after the respective due dates expressed
herein.
No reference herein to the Indenture and no provision of this Security or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and any premium and interest
on this Security at the times, place and rate, and in the coin or currency,
herein prescribed.
The Securities of this series are issuable only in registered form without
coupons in denominations of $1,000 and in integral multiples thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Securities of this series are exchangeable for a like aggregate principal amount
of Securities of this series and of like tenor and of authorized denominations,
as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Company, the Trustee and any agent of the Company or the Trustee may
treat the Person in whose name this Security is registered as the absolute owner
hereof for all purposes, whether or not this Security be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
All terms used in this Security which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
3
<PAGE>
CERTIFICATE OF TRANSFER
DPL INC.
8 1/4% SENIOR EXCHANGE NOTES DUE 2007
PRINCIPAL AMOUNT: $
--------------
FOR VALUE RECEIVED, THE UNDERSIGNED SELLS, ASSIGNS AND TRANSFERS UNTO
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
NAME AND ADDRESS OF ASSIGNEE MUST BE PRINTED OR TYPEWRITTEN.
THE WITHIN SECURITY OF THE COMPANY AND DOES HEREBY IRREVOCABLE CONSTITUTE AND
APPOINT
TO TRANSFER THE SAID SECURITY ON THE BOOKS OF THE WITHIN-NAMED COMPANY, WITH
FULL POWER OF SUBSTITUTION IN THE PREMISES.
----------------------------------------------------------------
----------------------------------------------------------------
DATED:
4
<PAGE>
EXHIBIT D
ACCREDITED INVESTOR LETTER
DPL Inc.
MacGregor Park
1065 Woodman Drive
Dayton, Ohio 45432
Credit Suisse First Boston Corporation, as initial
purchaser in connection with the offering
described below
Eleven Madison Avenue
New York, N.Y. 10010-3629
Dear Sirs:
We are delivering this letter in connection with an offering of U.S.
$425,000,000 principal amount of 8 1/4% Senior Notes due 2007 (the "Securities")
of DPL Inc., an Ohio corporation (the "Company") all as described in the
Confidential Offering Circular (the "Offering Circular") relating to the
offering.
We hereby confirm that:
(i) we are an "accredited investor" within the meaning of Rule 501(a)(1),
(2) or (3) under the Securities Act of 1933, as amended (the "Securities Act"),
or an entity in which all of the equity owners are accredited investors within
the meaning of Rule 501(a)(1), (2) or (3) under the Securities Act (an
"Institutional Accredited Investor");
(ii) (A) any purchase of the Securities by us will be for our own account
or for the account of one or more other institutional "accredited investors" or
as a fiduciary for the account of one or more trusts, each of which is an
"accredited investor" within the meaning of Rule 501(a)(7) under the Securities
Act and for each of which we exercise sole investment discretion or (B) we are a
"bank", within the meaning of Section 3(a)(2) of the Securities Act, or a
"savings and loan association" or other institution described in Section
3(a)(5)(A) of the Securities Act that is acquiring the Securities as fiduciary
for the account of one or more institutions for which we exercise sole
investment discretion;
(iii) in the event that we purchase any of the Securities, we will acquire
Securities having a purchase price of not less than $100,000 for our own account
or for any separate account for which we are acting;
(iv) we have such knowledge and experience in financial and business
matters that we are capable of evaluating the merits and risks of purchasing the
Securities;
<PAGE>
(v) we are not acquiring the Securities with a view to distribution thereof
or with any present intention of offering or selling any of the Securities,
except inside the United States in accordance with Rule 144A under the
Securities Act or outside the United States in accordance with Regulation S
under the Securities Act, as provided below; but the disposition of our property
and the property of any accounts for which we are acting as fiduciary shall
remain at all times within our control; and
(vi) we have received a copy of the Offering Circular relating to the
offering of the Securities and acknowledge that we have had access to such
financial and other information, and have been afforded the opportunity to ask
such questions of representatives of the Company and receive answers thereto, as
we deem necessary in connection with our decision to purchase the Securities.
We understand that the Securities are being offered in a transaction not
involving any public offering within the United States within the meaning of the
Securities Act and that the Securities have not been registered under the
Securities Act, and we agree, on our own behalf and on behalf of each account
for which we acquire any Securities, that if in the future we decide to resell,
pledge or otherwise transfer such Securities, such Securities may be offered,
resold, pledged or otherwise transferred only (i) pursuant to an effective
registration statement under the Securities Act, (ii) inside the United States
to a person who we reasonably believe is a "qualified institutional buyer" (as
defined in Rule 144A under the Securities Act) in a transaction meeting the
requirements of Rule 144A, (iii) pursuant to an exemption from registration
provided by Rule 144 under the Securities Act (if available), or (iv) outside
the United States in a transaction meeting the requirements of Rule 904 under
the Securities Act and in each case, in accordance with any applicable
securities laws of any State of the United States or any other applicable
jurisdiction. We understand that the registrar and transfer agent for the
Securities will not be required to accept for registration of transfer any
Securities acquired by us except upon presentation of evidence satisfactory to
the Company and the transfer agent that the foregoing restrictions on transfer
have been complied with. We further understand that any Securities acquired by
us will be in the form of definitive physical certificates and that such
certificates will bear a legend reflecting the substance of this paragraph.
We acknowledge that you, the Company and others will rely upon our
confirmations, acknowledgments and agreements set forth herein, and we agree to
notify you promptly in writing if any of our representations or warranties
herein ceases to be accurate and complete.
THIS LETTER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF
LAWS.
Date: (Name of Purchaser)
-------------
By:
------------------------------------
Name:
Title:
Address:
2
EXHIBIT 4(e)
LETTER OF TRANSMITTAL
DPL INC.
OFFER TO EXCHANGE
8 1/4 % SENIOR EXCHANGE NOTES DUE 2007 FOR ANY AND ALL
OUTSTANDING 8 1/4 % SENIOR NOTES DUE 2007
PURSUANT TO THE PROSPECTUS
DATED ______, 2000
- --------------------------------------------------------------------------------
THE EXCHANGE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 5:00 P.M., NEW YORK
CITY TIME, ON ____________, 2000, UNLESS THE OFFER IS EXTENDED.
- --------------------------------------------------------------------------------
Deliver to:
BANK ONE TRUST COMPANY,
NATIONAL ASSOCIATION
By Registered or Certified Mail: By Overnight Delivery or Hand:
One North State Street One North State Street
9th Floor 9th Floor
Chicago, Illinois 60602 Chicago, Illinois 60602
Attn: Exchanges Attn: Exchanges
To Confirm by Telephone Facsimile Transmissions:
or for Information:
(800) 524-9472 (312) 407-8853
DELIVERY OF THIS LETTER OF TRANSMITTAL TO AN ADDRESS OTHER THAN AS SET
FORTH ABOVE OR TRANSMISSION OF THIS LETTER OF TRANSMITTAL VIA FACSIMILE TO A
NUMBER OTHER THAN AS SET FORTH ABOVE DOES NOT CONSTITUTE A VALID DELIVERY.
THE INSTRUCTIONS CONTAINED HEREIN SHOULD BE READ CAREFULLY BEFORE THIS
LETTER OF TRANSMITTAL IS COMPLETED.
Capitalized terms used but not defined herein shall have the same
meaning given them in the Prospectus (as defined below).
This Letter of Transmittal is to be completed by holders of Old Notes
(as defined below) if Old Notes are to be forwarded herewith or delivered by
<PAGE>
book-entry transfer as provided herein. If tenders of Old Notes are to be made
by book-entry transfer to an account maintained by Bank One Trust Company,
National Association (the "Exchange Agent") at The Depository Trust Company
("DTC") pursuant to the procedures set forth in "The Exchange Offer--Book-Entry
Transfer" in the Prospectus and in accordance with the Automated Tender Offer
Program ("ATOP") established by DTC, a tendering holder will become bound by the
terms and conditions hereof in accordance with the procedures established under
ATOP.
Holders of Old Notes whose certificates (the "certificates") for such
Old Notes are not immediately available or who cannot deliver their certificates
and all other required documents to the Exchange Agent on or prior to the
expiration date (as defined in the Prospectus) or who cannot complete the
procedures for book-entry transfer on a timely basis, must tender their Old
Notes according to the guaranteed delivery procedures set forth in "The Exchange
Offer--Guaranteed Delivery Procedures" in the Prospectus. SEE INSTRUCTION 1.
DELIVERY OF DOCUMENTS TO DTC IN ACCORDANCE WITH ITS PROCEDURES DOES NOT
CONSTITUTE DELIVERY TO THE EXCHANGE AGENT.
NOTE: SIGNATURES MUST BE PROVIDED BELOW
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------
ALL TENDERING HOLDERS COMPLETE THIS BOX:
- ---------------------------------------------------------------------------------------------------------------------
DESCRIPTION OF OLD NOTES TENDERED
- ---------------------------------------------------------------------------------------------------------------------
Name(s) and address(es) of Registered
Holder(s) Old Notes Tendered
(Please fill in, if blank) (attach additional list if necessary)
- ---------------------------------------- ------------------------- --------------------------- ----------------------
<S> <C> <C> <C>
Principal Amount of Old
Notes Tendered (if less Principal Amount of
than all)** Certificate Number(s)* Old Notes*
------------------------- --------------------------- ----------------------
------------------------- --------------------------- ----------------------
------------------------- --------------------------- ----------------------
------------------------- --------------------------- ----------------------
------------------------- --------------------------- ----------------------
Total Amount Tendered
- ---------------------------------------- ------------------------- --------------------------- ----------------------
</TABLE>
* Need not be completed by book-entry holders.
** Old Notes may be tendered in whole or in part in denominations of
$1,000 and integral multiples thereof. All Old Notes held shall be
deemed tendered unless a lesser number is specified in this column.
(BOXES BELOW TO BE CHECKED BY ELIGIBLE INSTITUTIONS ONLY)
[ ] CHECK HERE IF TENDERED OLD NOTES ARE BEING DELIVERED BY BOOK-ENTRY
TRANSFER MADE TO THE ACCOUNT MAINTAINED BY THE EXCHANGE AGENT WITH DTC
AND COMPLETE THE FOLLOWING:
Name of Tendering Institution
-----------------------------------------
DTC Account Number
----------------------------------------------------
Transaction Code Number
-----------------------------------------------
[ ] CHECK HERE AND ENCLOSE A PHOTOCOPY OF THE NOTICE OF GUARANTEED
DELIVERY IF TENDERED OLD NOTES ARE BEING DELIVERED PURSUANT TO A
NOTICE OF GUARANTEED DELIVERY PREVIOUSLY SENT TO THE EXCHANGE AGENT
AND COMPLETE THE FOLLOWING:
Name of Registered Holder(s)
------------------------------------------
Window Ticket Number (if any)
-----------------------------------------
Date of Execution of Notice of Guaranteed Delivery
--------------------
2
<PAGE>
Name of Institution which Guaranteed Delivery
-------------------------
If Guaranteed Delivery is to be made by Book-Entry Transfer:
Name of Tendering Institution
---------------------------------------
DTC Account Number
--------------------------------------------------
Transaction Code Number
---------------------------------------------
[ ] CHECK HERE IF TENDERED BY BOOK-ENTRY TRANSFER AND NON-EXCHANGED OLD
NOTES ARE TO BE RETURNED BY CREDITING THE DTC ACCOUNT NUMBER SET FORTH
ABOVE.
[ ] CHECK HERE IF YOU ARE A BROKER-DEALER WHO ACQUIRED THE OLD NOTES FOR
ITS OWN ACCOUNT AS A RESULT OF MARKET MAKING OR OTHER TRADING
ACTIVITIES (A "PARTICIPATING BROKER-DEALER") AND WISH TO RECEIVE 10
ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR
SUPPLEMENTS THERETO.
Name:
-----------------------------------------------------------------
Address:
--------------------------------------------------------------
3
<PAGE>
Ladies and Gentlemen:
The undersigned hereby tenders to DPL Inc., an Ohio corporation (the
"Company"), the principal amount of the Company's 8 1/4% Senior Notes due 2007
(the "Old Notes") specified above in exchange for a like aggregate principal
amount of the Company's 8 1/4% Senior Exchange Notes due 2007 (the "New Notes"),
upon the terms and subject to the conditions set forth in the Prospectus dated
___________,2000 (as the same may be amended or supplemented from time to time,
the "Prospectus"), receipt of which is acknowledged, and in this Letter of
Transmittal (which, together with the Prospectus, constitute the "Exchange
Offer"). The Exchange Offer has been registered under the Securities Act of
1933, as amended (the "Securities Act").
Subject to and effective upon the acceptance for exchange of all or
any portion of the Old Notes tendered herewith in accordance with the terms and
conditions of the Exchange Offer (including, if the Exchange Offer is extended
or amended, the terms and conditions of any such extension or amendment), the
undersigned hereby sells, assigns and transfers to or upon the order of the
Company all right, title and interest in and to such Old Notes as are being
tendered herewith. The undersigned hereby irrevocably constitutes and appoints
the Exchange Agent as its agent and attorney-in-fact (with full knowledge that
the Exchange Agent is also acting as agent of the Company in connection with the
Exchange Offer) with respect to the tendered Old Notes, with full power of
substitution (such power of attorney being deemed to be an irrevocable power
coupled with an interest), subject only to the right of withdrawal described in
the Prospectus, to (i) deliver certificates for Old Notes to the Company
together with all accompanying evidences of transfer and authenticity to, or
upon the order of, the Company, upon receipt by the Exchange Agent, as the
undersigned's agent, of the New Notes to be issued in exchange for such Old
Notes, (ii) present certificates for such Old Notes for transfer, and to
transfer the Old Notes on the books of the Company, and (iii) receive for the
account of the Company all benefits and otherwise exercise all rights of
beneficial ownership of such Old Notes, all in accordance with the terms and
conditions of the Exchange Offer.
THE UNDERSIGNED HEREBY REPRESENTS AND WARRANTS THAT THE UNDERSIGNED
HAS FULL POWER AND AUTHORITY TO TENDER, EXCHANGE, SELL, ASSIGN AND TRANSFER THE
OLD NOTES TENDERED HEREBY AND THAT, WHEN THE SAME ARE ACCEPTED FOR EXCHANGE, THE
COMPANY WILL ACQUIRE GOOD, MARKETABLE AND UNENCUMBERED TITLE THERETO, FREE AND
CLEAR OF ALL LIENS, RESTRICTIONS, CHARGES AND ENCUMBRANCES, AND THAT THE OLD
NOTES TENDERED HEREBY ARE NOT SUBJECT TO ANY ADVERSE CLAIMS OR PROXIES. THE
UNDERSIGNED WILL, UPON REQUEST, EXECUTE AND DELIVER ANY ADDITIONAL DOCUMENTS
DEEMED BY THE COMPANY OR THE EXCHANGE AGENT TO BE NECESSARY OR DESIRABLE TO
COMPLETE THE EXCHANGE, ASSIGNMENT AND TRANSFER OF THE OLD NOTES TENDERED HEREBY,
AND THE UNDERSIGNED WILL COMPLY WITH ITS OBLIGATIONS UNDER THE REGISTRATION
RIGHTS AGREEMENT. THE UNDERSIGNED HAS READ AND AGREES TO ALL OF THE TERMS OF THE
EXCHANGE OFFER.
The name(s) and address(es) of the registered holder(s) of the Old
Notes tendered hereby should be printed above, if they are not already set forth
above, as they appear on the certificates representing such Old Notes. The
certificate number(s) and the Old Notes that the undersigned wishes to tender
should be indicated in the appropriate boxes above.
If any tendered Old Notes are not exchanged pursuant to the Exchange
Offer for any reason, or if certificates are submitted for more Old Notes than
are tendered or accepted for exchange, certificates for such unaccepted or
nonexchanged Old Notes will be returned (or, in the case of Old Notes tendered
by book-entry transfer, such Old Notes will be credited to an account maintained
at DTC), without expense to the tendering holder, promptly following the
expiration or termination of the Exchange Offer.
The undersigned understands that tenders of Old Notes pursuant to any
one of the procedures described in "The Exchange Offer--Procedures for Tendering
Old Notes" in the Prospectus and in the instructions hereto will, upon the
Company's acceptance for exchange of such tendered Old Notes, constitute a
binding agreement between the undersigned and the Company upon the terms and
4
<PAGE>
subject to the conditions of the Exchange Offer. In all cases in which a
Participant elects to accept the Exchange Offer by transmitting an express
acknowledgment in accordance with the established ATOP procedures, such
Participant shall be bound by all of the terms and conditions of this Letter of
Transmittal. The undersigned recognizes that, under certain circumstances set
forth in the Prospectus, the Company may not be required to accept for exchange
any of the Old Notes tendered hereby.
Unless otherwise indicated herein in the box entitled "Special
Issuance Instructions" below, the undersigned hereby directs that the New Notes
be issued in the name(s) of the undersigned or, in the case of a book-entry
transfer of Old Notes, that such New Notes be credited to the account indicated
above maintained at DTC. If applicable, substitute certificates representing Old
Notes not exchanged or not accepted for exchange will be issued to the
undersigned or, in the case of a book-entry transfer of Old Notes, will be
credited to the account indicated above maintained at DTC. Similarly, unless
otherwise indicated under "Special Delivery Instructions," please deliver New
Notes to the undersigned at the address shown below the undersigned's signature.
By tendering Old Notes and executing, or otherwise becoming bound by,
this Letter of Transmittal, the undersigned hereby represents and agrees that
(i) the undersigned is not an "affiliate" of the Company,
(ii) any New Notes to be received by the undersigned are being
acquired in the ordinary course of its business, and
(iii) the undersigned has no arrangement or understanding with any
person to participate in a "distribution" (within the meaning of the Securities
Act) of such New Notes.
By tendering Old Notes pursuant to the Exchange Offer and executing,
or otherwise becoming bound by, this Letter of Transmittal, a holder of Old
Notes which is a broker-dealer represents and agrees, consistent with certain
interpretive letters issued by the staff of the Division of Corporation Finance
of the Securities and Exchange Commission to third parties, that (a) such Old
Notes held by the broker-dealer are held only as a nominee, or (b) such Old
Notes were acquired by such broker-dealer for its own account as a result of
market-making activities or other trading activities and it will deliver the
Prospectus (as amended or supplemented from time to time) meeting the
requirements of the Securities Act in connection with any resale of such New
Notes (provided that, by so acknowledging and by delivering a Prospectus, such
broker-dealer will not be deemed to admit that it is an "underwriter" within the
meaning of the Securities Act).
The Company has agreed that, subject to the provisions of the
Registration Rights Agreement, the Prospectus, as it may be amended or
supplemented from time to time, may be used by a participating broker-dealer (as
defined below) in connection with resales of New Notes received in exchange for
Old Notes, where such Old Notes were acquired by such participating
broker-dealer for its own account as a result of market-making activities or
other trading activities, for a period ending 90 days after the expiration date
(subject to extension under certain limited circumstances) or, if earlier, when
all such New Notes have been disposed of by such participating broker-dealer. In
that regard, each broker dealer who acquired Old Notes for its own account as a
result of market-making or other trading activities (a "participating
broker-dealer"), by tendering such Old Notes and executing, or otherwise
becoming bound by, this Letter of Transmittal, agrees that, upon receipt of
notice from the Company of the occurrence of any event or the discovery of any
fact which makes any statement contained in the Prospectus untrue in any
material respect or which causes the Prospectus to omit to state a material fact
necessary in order to make the statements contained therein, in light of the
circumstances under which they were made, not misleading or of the occurrence of
certain other events specified in the Registration Rights Agreement, such
participating broker-dealer will suspend the sale of New Notes pursuant to the
Prospectus until the Company has amended or supplemented the Prospectus to
correct such misstatement or omission and has furnished copies of the amended or
supplemented Prospectus to the participating broker-dealer or the Company has
given notice that the sale of the New Notes may be resumed, as the case may be.
All authority herein conferred or agreed to be conferred in this
Letter of Transmittal shall survive the death or incapacity of the undersigned
and any obligation of the undersigned hereunder shall be binding upon the heirs,
executors, administrators, personal representatives, trustees in bankruptcy,
legal representatives successors and assigns of the undersigned. Except as
stated in the Prospectus, this tender is irrevocable.
5
<PAGE>
HOLDER(S) SIGN HERE
(See Instructions 2, 5 and 6)
(Note: Signature(s) Must be Guaranteed if Required by Instruction 2)
Must be signed by registered holder(s) exactly as name(s) appear(s) on
certificate(s) for the Old Notes hereby tendered or on a security position
listing, or by any person(s) authorized to become the registered holder(s) by
endorsements and documents transmitted herewith. If signature is by an
attorney-in-fact, executor, administrator, trustee, guardian, officer of a
corporation or another acting in a fiduciary or representative capacity, please
set forth the signer's full title. See Instruction 5.
Name(s):
------------------------------------------------------------------------
(Signature(s) of Holder(s))
Date: , 2000
--------------------------------------------------------------------
Name(s):
------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Please Print)
Capacity:
-----------------------------------------------------------------------
(Include Full Title)
Address:
------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Include Zip Code)
Area Code and Telephone Number:
-------------------------------------------------
- --------------------------------------------------------------------------------
(Tax Identification or Social Security Number(s))
GUARANTEE OF SIGNATURE(S)
(See Instructions 2 and 5)
Authorized Signature:
-----------------------------------------------------------
Name:
---------------------------------------------------------------------------
(Please Print)
Date: , 2000
--------------------------------------------------------------------
Capacity or Title:
--------------------------------------------------------------
Name of Firm:
-------------------------------------------------------------------
Address:
------------------------------------------------------------------------
(Include Zip Code)
Area Code and Telephone Number:
-------------------------------------------------
6
<PAGE>
SPECIAL ISSUANCE INSTRUCTIONS
(See Instructions 1, 5 and 6)
To be completed ONLY if the New Notes are to be issued in the name of
someone other than the registered holder of the Old Notes whose name(s)
appear(s) above.
Issue New Notes to:
Name:
---------------------------------------------------------------------------
(Please Print)
Address:
------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Include Zip Code)
- --------------------------------------------------------------------------------
(Taxpayer Identification or
Social Security Number)
SPECIAL DELIVERY INSTRUCTIONS
(See Instructions 1, 5 and 6)
To be completed ONLY if New Notes are to be sent to someone other than
the registered holder of the Old Notes whose name(s) appear(s) above, or to such
registered holder(s) at an address other than that shown above.
Mail New Notes To:
Name:
---------------------------------------------------------------------------
(Please Print)
Address:
------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Include Zip Code)
- --------------------------------------------------------------------------------
(Taxpayer Identification or
Social Security Number)
INSTRUCTIONS
Forming Part of the Terms and Conditions of the Exchange Offer
1. DELIVERY OF LETTER OF TRANSMITTAL AND CERTIFICATES;
GUARANTEED DELIVERY PROCEDURES. This Letter of Transmittal is to be completed if
certificates are to be forwarded herewith or delivered by book-entry transfer as
provided herein. If tenders are to be made pursuant to the procedures for tender
by book-entry transfer set forth in "The Exchange Offer-Book-Entry Transfer" in
the Prospectus and in accordance with ATOP established by DTC, a tendering
holder will become bound by the terms and conditions hereof in accordance with
the procedures established under ATOP. Certificates, or timely confirmation of a
book-entry transfer of such Old Notes into the Exchange Agent's account at DTC,
as well as this Letter of Transmittal (or facsimile thereof), if required,
properly completed and duly executed, with any required signature guarantees,
must be received by the Exchange Agent at one of its addresses set forth herein
7
<PAGE>
on or prior to the expiration date. Old Notes may be tendered in whole or in
part in the principal amount of $1,000 and integral multiples of $1,000.
Holders who wish to tender their Old Notes and (i) whose Old Notes are
not immediately available or (ii) who cannot deliver their Old Notes and this
Letter of Transmittal to the Exchange Agent on or prior to the expiration date
of the Exchange Offer or (iii) who cannot complete the procedures for delivery
by book-entry transfer on a timely basis, may tender their Old Notes by properly
completing and duly executing a Notice of Guaranteed Delivery pursuant to the
guaranteed delivery procedures set forth in "The Exchange Offer--Guaranteed
Delivery Procedures" in the Prospectus. Pursuant to such procedures: (i) such
tender must be made by or through an Eligible Institution (as defined below);
(ii) a properly completed and duly executed Letter of Transmittal (or facsimile)
thereof and Notice of Guaranteed Delivery, substantially in the form made
available by the Company, must be received by the Exchange Agent on or prior to
the expiration date; and (iii) the certificates (or a book-entry confirmation
(as defined in the Prospectus)) representing all tendered Old Notes, in proper
form for transfer, must be received by the Exchange Agent within five New York
Stock Exchange trading days after the date of execution of such Notice of
Guaranteed Delivery, all as provided in "The Exchange Offer--Guaranteed Delivery
Procedures" in the Prospectus.
The Notice of Guaranteed Delivery may be delivered by hand or
transmitted by telegram, telex, facsimile or mail to the Exchange Agent, and
must include a guarantee by an Eligible Institution in the form set forth in
such Notice. For Old Notes to be properly tendered pursuant to the guaranteed
delivery procedure, the Exchange Agent must receive a Notice of Guaranteed
Delivery on or prior to the expiration date of the Exchange Offer. As used
herein and in the Prospectus, "Eligible Institution" means a firm which is a
member of a registered national securities exchange or a member of the National
Association of Securities Dealers, Inc. or a commercial bank or trust company
having an office or correspondent in the United States.
THE METHOD OF DELIVERY OF OLD NOTES, THIS LETTER OF TRANSMITTAL AND
ALL OTHER REQUIRED DOCUMENTS IS AT THE ELECTION AND RISK OF THE TENDERING
HOLDER. IF SUCH DELIVERY IS BY MAIL, IT IS RECOMMENDED THAT REGISTERED MAIL WITH
RETURN RECEIPT REQUESTED, PROPERLY INSURED, BE USED. IN ALL CASES, SUFFICIENT
TIME SHOULD BE ALLOWED TO ASSURE TIMELY DELIVERY. NO LETTERS OF TRANSMITTAL OR
OLD NOTES SHOULD BE SENT TO THE COMPANY.
The Company will not accept any alternative, conditional or contingent
tenders. Each tendering holder, by execution of a Letter of Transmittal (or
facsimile thereof), or any Agent's Message in lieu thereof, waives any right to
receive any notice of the acceptance of such tender.
2. GUARANTEE OF SIGNATURES. No signature guarantee on this Letter of
Transmittal is required if:
(i) this Letter of Transmittal is signed by the registered holder
(which term, for purposes of this document, shall include any participant
in DTC whose name appears on a security position listing as the owner of
the Old Notes) of Old Notes tendered herewith, unless such holder(s) has
completed either the box entitled "Special Issuance Instructions" or the
box entitled "Special Delivery Instructions" above, or
(ii) such Old Notes are tendered for the account of a firm that is an
Eligible Institution.
In all other cases, an Eligible Institution must guarantee the
signature(s) on this Letter of Transmittal. See Instruction 5.
3. INADEQUATE SPACE. If the space provided in the box captioned
"Description of Old Notes Tendered" is inadequate, the certificate number(s)
and/or the principal amount of Old Notes and any other required information
should be listed on a separate signed schedule which is attached to this Letter
of Transmittal.
4. PARTIAL TENDERS AND WITHDRAWAL RIGHTS. Tenders of Old Notes will be
accepted only in the principal amount of $1,000 and integral multiples thereof.
If less than all the Old Notes evidenced by any certificate submitted are to be
tendered, fill in the principal amount of Old Notes which are to be tendered in
the box entitled "Principal Amount of Old Notes Tendered (if less than all)." In
such case, new certificate(s) for the remainder of the Old Notes that were
evidenced by your old certificate(s) will only be sent to the holder of the Old
8
<PAGE>
Note, promptly after the expiration date of the Exchange Offer. All Old Notes
represented by certificates delivered to the Exchange Agent will be deemed to
have been tendered unless otherwise indicated.
Except as otherwise provided herein, tenders of Old Notes may be
withdrawn at any time on or prior to the expiration date. In order for a
withdrawal to be effective on or prior to that time, a written notice of
withdrawal must be timely received by the Exchange Agent at one of its addresses
set forth above or in the Prospectus on or prior to the expiration date of the
Exchange Offer. Any such notice of withdrawal must specify the name of the
person who tendered the Old Notes to be withdrawn, identify the Old Notes to be
withdrawn (including the principal amount of such Old Notes) and (where
certificates for Old Notes have been transmitted) specify the name in which such
Old Notes are registered, if different from that of the withdrawing holder. If
certificates for the Old Notes have been delivered or otherwise identified to
the Exchange Agent, then prior to the release of such certificates, the
withdrawing holder must submit the serial numbers of the particular certificates
for the Old Notes to be withdrawn and a signed notice of withdrawal with
signatures guaranteed by an Eligible Institution, unless such holder is an
Eligible Institution. If Old Notes have been tendered pursuant to the procedures
for book-entry transfer set forth in the Prospectus under "The Exchange
Offer--Book-Entry Transfer," any notice of withdrawal must specify the name and
number of the account at DTC to be credited with the withdrawal of Old Notes and
otherwise comply with the procedures of such facility. Old Notes properly
withdrawn will not be deemed validly tendered for purposes of the Exchange
Offer, but may be retendered at any time on or prior to the expiration date by
following one of the procedures described in the Prospectus under "The Exchange
Offer--Procedures for Tendering Old Notes".
All questions as to the validity, form and eligibility (including time
of receipt) of such withdrawal notices will be determined by the Company, whose
determination shall be final and binding on all parties. Any Old Notes which
have been tendered for exchange but which are not exchanged for any reason will
be returned to the holder thereof without cost to such holder (or, in the case
of Old Notes tendered by book-entry transfer into the Exchange Agent's account
at DTC pursuant to the book-entry procedures described in the Prospectus under
"The Exchange Offer--Book-Entry Transfer" such Old Notes will be credited to an
account maintained with DTC for the Old Notes) as soon as practicable after
withdrawal, rejection of tender or termination of the Exchange Offer.
5. SIGNATURES ON LETTER OF TRANSMITTAL, ASSIGNMENTS AND ENDORSEMENTS.
If this Letter of Transmittal is signed by the registered holder(s) of the Old
Notes tendered hereby, the signature(s) must correspond exactly with the name(s)
as written on the face of the certificate(s) without alteration, enlargement or
any change whatsoever.
If any of the Old Notes tendered hereby are owned of record by two or
more joint owners, all such owners must sign this Letter of Transmittal.
If any tendered Old Notes are registered in different names on several
certificates, it will be necessary to complete, sign and submit as many separate
Letters of Transmittal (or facsimiles thereof) as there are different
registrations of certificates.
If this Letter of Transmittal or any certificates or powers of
attorney are signed by trustees, executors, administrators, guardians,
attorneys-in-fact, officers of corporations or others acting in a fiduciary or
representative capacity, such persons should so indicate when signing and,
unless waived by the Company, proper evidence satisfactory to the Company of
such persons' authority to so act must be submitted.
When this Letter of Transmittal is signed by the registered holder(s)
of the Old Notes listed and transmitted hereby, no endorsement(s) of
certificate(s) or written instrument or instruments of transfer or exchange are
required unless New Notes are to be issued in the name of a person other than
the registered holder(s). Signature(s) on such certificate(s) or written
instrument or instruments of transfer or exchange must be guaranteed by an
Eligible Institution.
If this Letter of Transmittal is signed by a person other than the
registered holder(s) of the Old Notes listed, the certificates must be endorsed
or accompanied by a written instrument or instruments of transfer or exchange,
in satisfactory form as determined by the Company in its sole discretion and
executed by the registered holder(s), in either case signed exactly as the name
or names of the registered holder(s) appear(s) on the certificates. Signatures
on such certificates or written instrument or instruments of transfer or
exchange must be guaranteed by an Eligible Institution.
9
<PAGE>
6. SPECIAL ISSUANCE AND DELIVERY INSTRUCTIONS. If New Notes are to be
issued in the name of a person other than the signer of this Letter of
Transmittal, or if New Notes are to be sent to someone other than the signer of
this Letter of Transmittal or to an address other than that shown above, the
appropriate boxes on this Letter of Transmittal should be completed.
Certificates for Old Notes not exchanged will be returned by mail or, if
tendered by book-entry transfer, by crediting the account indicated above
maintained at DTC. See Instruction 4.
7. IRREGULARITIES. The Company will determine, in its sole discretion,
all questions as to the form, validity, eligibility (including time of receipt)
and acceptance for exchange of any tender of Old Notes, which determination
shall be final and binding. The Company reserves the absolute right to reject
any and all tenders of any particular Old Notes not properly tendered or to not
accept any particular Old Notes which acceptance might, in the judgment of the
Company or its counsel, be unlawful. The Company also reserves the absolute
right, in its sole discretion, to waive any defects or irregularities or
conditions of the Exchange Offer as to any particular Old Notes either before or
after the expiration date (including the right to waive the ineligibility of any
holder who seeks to tender Old Notes in the Exchange Offer). The interpretation
of the terms and conditions of the Exchange Offer as to any particular Old Notes
either before or after the expiration date (including the Letter of Transmittal
and the instructions thereto) by the Company shall be final and binding on all
parties. Unless waived, any defects or irregularities in connection with the
tender of Old Notes for exchange must be cured within such reasonable period of
time as the Company shall determine. Neither the Company, the Exchange Agent nor
any other person shall be under any duty to give notification of any defect or
irregularity with respect to any tender of Old Notes for exchange, nor shall any
of them incur any liability for failure to give such notification.
8. QUESTIONS, REQUESTS FOR ASSISTANCE AND ADDITIONAL COPIES. Questions
and requests for assistance may be directed to the Exchange Agent at its address
and telephone number set forth on the front of this Letter of Transmittal.
Additional copies of the Prospectus, the Notice of Guaranteed Delivery and the
Letter of Transmittal may be obtained from the Exchange Agent or from your
broker, dealer, commercial bank, trust company or other nominee.
9. LOST, DESTROYED OR STOLEN CERTIFICATES. If any certificate(s)
representing Old Notes have been lost, destroyed or stolen, the holder should
promptly notify the Exchange Agent. The holder will then be instructed as to the
steps that must be taken in order to replace the certificate(s). This Letter of
Transmittal and related documents cannot be processed until the procedures for
replacing lost, destroyed or stolen certificate(s) have been followed.
10. SECURITY TRANSFER TAXES. Holders who tender their Old Notes for
exchange will be obligated to pay transfer taxes, if any, in connection
therewith.
11. IMPORTANT TAX INFORMATION. Holders who are U.S. taxpayers and who
have not previously furnished a taxpayer identification number to the Paying
Agent for the Old Notes, should furnish such information to the Exchange Agent
on IRS Form W-9, or on Substitute Form W-9 executed under penalties of perjury.
Holders who are non-residents of the United States and who have not previously
furnished an IRS Form W-8 to the Paying Agent for the Old Notes, should furnish
such information relating to the taxpayers' non-resident status on IRS Form W-8
executed under penalties of perjury. Copies of such forms may be obtained from
the Exchange Agent.
IMPORTANT: THIS LETTER OF TRANSMITTAL (OR FACSIMILE THEREOF),
OR AN AGENT'S MESSAGE IN LIEU THEREOF, AND ALL OTHER REQUIRED
DOCUMENTS MUST BE RECEIVED BY THE EXCHANGE
AGENT ON OR PRIOR TO THE EXPIRATION DATE OF THE
EXCHANGE OFFER.
10
EXHIBIT 5(a)
DPL INC.
COURTHOUSE PLAZA SOUTHWEST
DAYTON, OHIO 45402
(937) 224-6000
Dayton, Ohio
May 26, 2000
DPL Inc.
Courthouse Plaza Southwest
Dayton, Ohio 45402
Ladies and Gentlemen:
Referring to the proposed exchange (Exchange Offer) by DPL Inc.
(Company) of any and all of its outstanding 8 1/4% Senior Notes due 2007 (Old
Notes) for an equal principal amount of its 8 1/4% Exchange Senior Notes due
2007 (New Notes), as contemplated in the Company's Form S-4 registration
statement (Registration Statement) to be filed by the Company with the
Securities and Exchange Commission (Commission) under the Securities Act of
1933, on or about the date hereof, I am of the opinion that all requisite action
necessary to make the New Notes valid, legal and binding obligations of the
Company shall have been taken when the Exchange Offer shall have been completed
and any Old Notes validly tendered pursuant thereto shall have been exchanged
for the New Notes as contemplated in the Registration Statement and any
prospectus relating to the Exchange Offer.
I am a member of the Ohio Bar and do not hold myself out as expert on
the laws of the state of New York. Accordingly, in rendering this opinion, I
have relied, with your consent, as to all matters governed by the laws of New
York, upon an opinion of even date herewith addressed to you by Thelen Reid &
Priest LLP of New York, New York, which is being filed as an exhibit to the
Registration Statement.
I hereby consent to the use of my name in such Registration Statement
and to the use of this opinion as an exhibit thereto.
Very truly yours,
/s/ Stephen F. Koziar, Jr.
Group Vice President and General Counsel
EXHIBIT 5(b) and 8
THELEN REID & PRIEST LLP
40 WEST 57TH STREET
NEW YORK, NEW YORK 10019
(212) 603-2000
New York, New York
May 26, 2000
DPL Inc.
Courthouse Plaza Southwest
Dayton, Ohio 45402
Ladies and Gentlemen:
Referring to the proposed exchange (Exchange Offer) by DPL Inc.
(Company) of any and all of its outstanding 8 1/4% Senior Notes due 2007 (Old
Notes) for an equal principal amount of its 8 1/4% Exchange Senior Notes due
2007 (New Notes), as contemplated in the Company's Form S-4 registration
statement (Registration Statement) to be filed by the Company with the
Securities and Exchange Commission (Commission) under the Securities Act of
1933, on or about the date hereof, we are of the opinion that all requisite
action necessary to make the New Notes valid, legal and binding obligations of
the Company shall have been taken when the Exchange Offer shall have been
completed and any Old Notes validly tendered pursuant thereto shall have been
exchanged for the New Notes as contemplated in the Registration Statement and
any prospectus relating to the Exchange Offer.
We are members of the New York Bar and do not hold ourselves out as
experts on the laws of the state of Ohio. Accordingly, in rendering this
opinion, we have relied, with your consent, as to all matters governed by the
laws of Ohio, upon an opinion of even date herewith addressed to you by Stephen
F. Koziar, Jr., Esq., Group Vice President and General Counsel for the Company,
which is being filed as an exhibit to the Registration Statement.
We confirm our opinion as set forth under the caption "Material United
States Income Tax Considerations" in the prospectus constituting a part of the
Registration Statement.
We hereby consent to the use of our name in such Registration
Statement and to the use of this opinion as an exhibit thereto.
Very truly yours,
/s/ Thelen Reid & Priest LLP
Thelen Reid & Priest LLP
EXHIBIT 12
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
<TABLE>
<CAPTION>
DPL INC. CONSOLIDATED 2000 1999 1999 1998 1997 1996 1995
SEC COVERAGE RATIOS
12 Mos. 12 Mos. 12 Mos. 12 Mos. 12 Mos. 12 Mos. 12 Mos.
Ended Ended Ended Ended Ended Ended Ended
3/31/00 3/31/99 12/31/99 12/31/98 12/31/97 12/31/96 12/31/95
------- ------- -------- -------- -------- -------- --------
(Thousands of Dollars, except for ratios)
Ratio of Earnings to Fixed Charges (SEC Method):
Fixed Charges:
<S> <C> <C> <C> <C> <C> <C> <C>
Interest on First Mortgage Bonds 43,560 61,534 48,291 61,540 65,507 68,655 79,077
Other Interest Expense 80,541 35,988 62,461 31,406 20,832 20,383 15,174
Interest Component of Rentals 109 118 114 126 167 320 537
------ ------- ------- ------ ------- ------- ------
Total Fixed Charges 124,210 97,640 110,866 93,072 86,506 89,358 94,788
Earnings:
Net income (before Preferred dividends) 188,869 192,194 205,085 189,969 182,263 173,769 165,528
Plus: Income Taxes 115,819 123,614 127,948 120,394 105,443 103,477 102,355
Fixed Charges (defined above) 124,210 97,640 110,866 93,072 86,506 89,358 94,788
------- ------- ------- ------- ------- ------- -------
Total 428,898 413,448 443,899 403,435 374,212 366,604 362,671
428,898 413,448 443,899 403,435 374,212 366,604 362,671
Ratio = Earnings/Fixed Charges = ------- ------- ------- ------- ------- ------- -------
124,210 97,640 110,866 93,072 86,506 89,358 94,788
Ratio of Earnings to Fixed Charges - (SEC) Method) 3.45 4.23 4.00 4.33 4.32 4.10 3.82
</TABLE>
EXHIBIT 23(C)
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
We hereby consent to the use in this Registration Statement on Form
S-4 of our report dated January 21, 2000 (except for Note 3, as to which the
date is February 4, 2000) relating to the financial statements and financial
statement schedules included in DPL Inc.'s Annual Report on Form 10-K for the
year ending December 31, 1999. We also consent to the reference to us under the
heading "Independent Accountants" in such Registration Statement.
/s/ PricewaterhouseCoopers LLP
Dayton, Ohio
May 25, 2000
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(B)(2)
----------------------
BANK ONE TRUST COMPANY, NATIONAL ASSOCIATION
(EXACT NAME OF TRUSTEE AS SPECIFIED IN ITS CHARTER)
A NATIONAL BANKING ASSOCIATION 31-0838515
(I.R.S. EMPLOYER
IDENTIFICATION NUMBER)
100 EAST BROAD STREET, COLUMBUS, OHIO 43271-0181
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
BANK ONE TRUST COMPANY, NATIONAL ASSOCIATION
100 EAST BROAD STREET
COLUMBUS, OHIO 43271-0181
ATTN: MARLA S. ROTH, ASSISTANT VICE PRESIDENT, (312) 407-3270
(NAME, ADDRESS AND TELEPHONE NUMBER OF AGENT FOR SERVICE)
----------------------
DPL INC.
(EXACT NAME OF OBLIGOR AS SPECIFIED IN ITS CHARTER)
OHIO 31-1163136
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
COURTHOUSE PLAZA SOUTHWEST
DAYTON, OHIO 45402
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
DEBT SECURITIES
(TITLE OF INDENTURE SECURITIES)
<PAGE>
ITEM 1. GENERAL INFORMATION. FURNISH THE FOLLOWING
-------------------
INFORMATION AS TO THE TRUSTEE:
(A) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY
TO WHICH IT IS SUBJECT.
Comptroller of Currency, Washington, D.C., Federal Deposit
Insurance Corporation, Washington, D.C., The Board of Governors
of the Federal Reserve System, Washington D.C.
(B) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
The trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR. IF THE OBLIGOR
-----------------------------
IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH
SUCH AFFILIATION.
No such affiliation exists with the trustee.
ITEM 16. LIST OF EXHIBITS. LIST BELOW ALL EXHIBITS FILED AS A
----------------
PART OF THIS STATEMENT OF ELIGIBILITY.
1. A copy of the articles of association of the trustee now in
effect.*
2. A copy of the certificates of authority of the trustee to
commence business.*
3. A copy of the authorization of the trustee to exercise
corporate trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by Section 321(b) of the
Act.
<PAGE>
7. A copy of the latest report of condition of the trustee
published pursuant to law or the requirements of its supervising
or examining authority.
8. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Bank One Trust Company, National Association, a
national banking association organized and existing under the laws of the
United States of America, has duly caused this Statement of Eligibility to
be signed on its behalf by the undersigned, thereunto duly authorized, all
in the City of Chicago and State of Illinois, on the 25th day of May, 2000.
BANK ONE TRUST COMPANY, NATIONAL ASSOCIATION,
TRUSTEE
BY /S/ MARLA S. ROTH
------------------------------------------
MARLA S. ROTH
ASSISTANT VICE PRESIDENT
* EXHIBITS 1, 2, 3, AND 4 ARE HEREIN INCORPORATED BY REFERENCE TO EXHIBITS
BEARING IDENTICAL NUMBERS IN ITEM 16 OF THE FORM T-1 OF BANK ONE TRUST COMPANY,
NATIONAL ASSOCIATION, FILED AS EXHIBIT 25 TO THE REGISTRATION STATEMENT ON FORM
S-4 OF U S WEST COMMUNICATIONS, INC., FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION ON MARCH 24, 2000 (REGISTRATION NO. 333-32124).
<PAGE>
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
May 25, 2000
Securities and Exchange Commission
Washington, D.C. 20549
Ladies and Gentlemen:
In connection with the qualification of an indenture between DPL Inc. and Bank
One Trust Company, National Association, as Trustee, the undersigned, in
accordance with Section 321(b) of the Trust Indenture Act of 1939, as amended,
hereby consents that the reports of examinations of the undersigned, made by
Federal or State authorities authorized to make such examinations, may be
furnished by such authorities to the Securities and Exchange Commission upon its
request therefor.
Very truly yours,
BANK ONE TRUST COMPANY, NATIONAL ASSOCIATION
BY: /S/ MARLA S. ROTH
-----------------------------------------
MARLA S. ROTH
ASSISTANT VICE PRESIDENT
<PAGE>
EXHIBIT 7
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
Legal Title of Bank: Bank One Trust Company, N.A. Call Date: 03/31/00 State #: 391581 FFIEC 032
Address: 100 Broad Street Vendor ID: D Cert #: 21377 Page RC-1
City, State Zip: Columbus, OH 43271 Transit #: 04400003
</TABLE>
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL
AND STATE-CHARTERED SAVINGS BANKS FOR MARCH 31, 2000
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding of the last business day of the
quarter.
<TABLE>
<CAPTION>
SCHEDULE RC--BALANCE SHEET
DOLLAR AMOUNTS IN THOUSANDS C300
--------
BIL MIL
RCON THOU
---- -------
ASSETS
<S> <C> <C> <C>
1. Cash and balances due from depository institutions (from Schedule
RC-A): RCON
a. Noninterest-bearing balances and currency and coin(1)........... 0081 48,450 1.a
b. Interest-bearing balances(2).................................... 0071 17,750 1.b
2. Securities
a. Held-to-maturity securities(from Schedule RC-B, column A)....... 1754 0 2.a
b. Available-for-sale securities (from Schedule RC-B, column D).... 1773 5,714 2.b
3. Federal funds sold and securities purchased under agreements to
resell 1350 396,644 3.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income (from Schedule RCON
RC-C).............................................................. 2122 87,817 4.a
b. LESS: Allowance for loan and lease losses....................... 3123 10 4.b
c. LESS: Allocated transfer risk reserve........................... 3128 0 4.c
d. Loans and leases, net of unearned income, allowance, and RCON
reserve (item 4.a minus 4.b and 4.c)............................ 2125 87,807 4.d
5. Trading assets (from Schedule RD-D)................................ 3545 0 5.
6. Premises and fixed assets (including capitalized leases)........... 2145 25,200 6.
7. Other real estate owned (from Schedule RC-M)....................... 2150 0 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M)..................................... 2130 0 8.
9. Customers' liability to this bank on acceptances outstanding....... 2155 0 9.
10. Intangible assets (from Schedule RC-M)............................. 2143 26,345 10.
11. Other assets (from Schedule RC-F).................................. 2160 176,297 11.
12. Total assets (sum of items 1 through 11)........................... 2170 784,207 12.
- --------------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
Legal Title of Bank: Bank One Trust Company, N.A. Call Date: 03/31/00 State #: 391581 FFIEC 032
Address: 100 East Broad Street Vendor ID: D Cert #" 21377 Page RC-2
City, State Zip: Columbus, OH 43271 Transit #: 04400003
</TABLE>
<TABLE>
<CAPTION>
SCHEDULE RC-CONTINUED
DOLLAR AMOUNTS IN
THOUSANDS
---------
LIABILITIES
13. Deposits:
<S> <C> <C> <C>
a. In domestic offices (sum of totals of columns A and C RCON
from Schedule RC-E, part 1)..................................... 2200 567,764 13.a
(1) Noninterest-bearing(1)...................................... 6631 506,455 13.a1
(2) Interest-bearing............................................ 6636 61,309 13.a2
b. In foreign offices, Edge and Agreement subsidiaries, and
IBFs (from Schedule RC-E, part II)..............................
(1) Noninterest bearing.........................................
(2) Interest-bearing............................................
14. Federal funds purchased and securities sold under agreements
to repurchase: RCFD 2800 0 14
15. a. Demand notes issued to the U.S. Treasury RCON 2840 0 15.a
b. Trading Liabilities(from Sechedule RC-D)........................ RCFD 3548 0 15.b
16. Other borrowed money: RCON
a. With original maturity of one year or less...................... 2332 0 16.a
b. With original maturity of more than one year................... A547 0 16.b
c. With original maturity of more than three years................. A548 0 16.c
17. Not applicable
18. Bank's liability on acceptance executed and outstanding............ 2920 0 18.
19. Subordinated notes and debentures.................................. 3200 0 19.
20. Other liabilities (from Schedule RC-G)............................. 2930 83,885 20.
21. Total liabilities (sum of items 13 through 20)..................... 2948 651,649 21.
22. Not applicable
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus...................... 3838 0 23.
24. Common stock....................................................... 3230 800 24.
25. Surplus (exclude all surplus related to preferred stock)........... 3839 45,157 25.
26. a. Undivided profits and capital reserves.......................... 3632 86,585 26.a
b. Net unrealized holding gains (losses) on available-for-sale
securities...................................................... 8434 16 26.b
c. Accumulated net gains (losses) on cash flow hedges.............. 4336 0 26.c
27. Cumulative foreign currency translation adjustments................
28. Total equity capital (sum of items 23 through 27).................. 3210 132,558 28.
29. Total liabilities, limited-life preferred stock, and equity
capital (sum of items 21, 22, and 28).............................. 3300 784,207 29.
</TABLE>
<TABLE>
<CAPTION>
Memorandum
To be reported only with the March Report of Condition.
<S> <C>
1. Indicate in the box at the right the number of the statement below
that best describes the most comprehensive level of auditing work
performed for the bank by independent external auditors as Number
of any date during 1996..........................................RCFD 6724..........N/A..M.1.
1 = Independent audit of the bank conducted in accordance 4. = Directors' examination of the bank performed by other
with generally accepted auditing standards by a certified external auditors (may be required by state chartering
public accounting firm which submits a report on the bank authority)
2 = Independent audit of the bank's parent holding company 5 = Review of the bank's financial statements by external
conducted in accordance with generally accepted auditing auditors
standards by a certified public accounting firm which 6 = Compilation of the bank's financial statements by external
submits a report on the consolidated holding company auditors
(but not on the bank separately) 7 = Other audit procedures (excluding tax preparation work)
3 = Directors' examination of the bank conducted in 8 = No external audit work
accordance with generally accepted auditing standards
by a certified public accounting firm (may be required
by state chartering authority)
</TABLE>
- --------------
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
EXHIBIT 99(a)
, 2000
-------
EXCHANGE AGENT AGREEMENT
------------------------
THIS EXCHANGE AGENT AGREEMENT (this "Agreement") is made and entered
into as of , 2000 by and between DPL, Inc., an Ohio corporation (the
------
"Company") and Bank One Trust Company, National Association, a national banking
association incorporated and existing under the laws of the United States of
America, and its successors as exchange agent (the "Exchange Agent").
RECITALS
The Company proposes to make an offer to exchange equal principal
amounts of up to $425,000,000, principal amount of its 8-1/4% Senior Notes due
2007 (the "Old Securities") for equal principal amounts of its 8-1/4% Exchange
Senior Notes due 2007 (the "New Securities"). The terms and conditions of the
Exchange Offer as currently contemplated are set forth in a prospectus, dated
May __, 2000 (the "Prospectus"), and the accompanying letter of transmittal (the
"Letter of Transmittal") attached hereto as Exhibit A (which together with the
Prospectus constitutes the "Exchange Offer") proposed to be distributed to all
holders of the Old Securities. The Old Securities and the New Securities are
collectively referred to herein as the "Securities." Capitalized terms used
herein and not defined shall have the meanings ascribed to them in the
Prospectus or the Letter of Transmittal to be delivered with the Prospectus to
record holders of the Old Securities .
The Exchange Offer is expected to be commenced by the Company on or
about _____________, 2000 after the Company's Registration Statement on S-4
relating to the Exchange Offer is declared effective under the Securities Act of
1933, as certified in writing to Exchange Agent by the Company (the "Effective
Time") and shall terminate at 5:00 p.m., New York City Time, on ____________,
2000 (the "Expiration Date"), unless the Exchange Offer is extended by the
Company and the Company notifies the Exchange Agent of such extension by 5:00
p.m. New York City time, on the previous Expiration Date, in which case, the
term "Expiration Date" shall mean the latest date and time to which the Exchange
Offer is extended. In connection therewith, the undersigned parties hereby agree
as follows:
1. Appointment and Duties As Exchange Agent. The Company hereby
----------------------------------------
appoints Bank One Trust Company, National Association, a national banking
association incorporated and existing under the laws of the United States of
America, and its successors to act as exchange agent (the "Exchange Agent") in
connection with the Exchange Offer. Bank One Trust Company, National Association
hereby agrees to act as Exchange Agent and to perform the services outlined
herein in connection with the Exchange Offer on the terms and conditions
contained herein.
<PAGE>
The Company expressly reserves the right to amend, in any way not
inconsistent with the Registration Rights Agreement, or terminate the Exchange
Offer, and not to accept for exchange any Old Securities not theretofore
accepted for exchange, upon the occurrence of any of the conditions of the
Exchange Offer specified in the Prospectus under the caption "The Exchange Offer
- - Certain Conditions to the Exchange Offer." The Company will give oral
(confirmed in writing) or written notice of any amendment, termination or
nonacceptance to the Exchange Agent as promptly as practicable.
2. Exchange Agent's Duties. The Exchange Agent will perform such
-----------------------
duties and only such duties as are specifically set forth in the section of the
Prospectus captioned "The Exchange Offer" and in the Letter of Transmittal or as
specifically set forth herein; provided, however, that in no way will Exchange
Agent's general duty to act in good faith and without gross negligence be
discharged by the foregoing.
3. ATOP Registration. The Exchange Agent will establish an account
-----------------
with The Depository Trust Company ("DTC," ) in the Exchange Agent's name to
facilitate book-entry tenders of the Old Securities through DTC's Automated
Tender Offer Program (herein "ATOP") for purposes of the Exchange Offer within
two business days after the date of the Prospectus, and any financial
institution that is a participant in the DTC's systems may make book-entry
delivery of the Old Securities by causing the DTC to transfer such Old
Securities into Exchange Agent's account in accordance with the DTC's procedure
for such transfer.
4. Mailing to Holders of Old Securities. As soon as practicable after
------------------------------------
its receipt of certification from the Company as to the Effective Time, Exchange
Agent will mail to each holder (as defined in the Indenture), and to each DTC
participant identified by DTC as a holder of any Old Securities (a) a Letter of
Transmittal with instructions (including instructions for completing a
substitute Form W-9 or W-8, as applicable), substantially in the form attached
hereto as Exhibit A (the "Letter of Transmittal"), (b) a Prospectus and (c) a
Notice of Guaranteed Delivery substantially in the form attached hereto as
Exhibit B (the "Notice of Guaranteed Delivery") all in accordance with the
procedures described in the Prospectus. Company shall supply Exchange Agent with
sufficient copies of the Prospectus, Letter of Transmittal and Notice of
Guaranteed Delivery to enable Exchange Agent to perform its duties hereunder.
Company shall also furnish or cause to be furnished to Exchange Agent a list of
holders of the Old Securities (including a beneficial holder list from DTC,
certificated Older Securities numbers and amounts, mailing addresses, and social
security numbers), unless waived by Exchange Agent. All other requests for
information relating to the Exchange Offer shall, except as set forth under
Paragraph 18 hereof, be directed to the Company, Attention: Financial
Activities, Box 8825, Dayton, Ohio 45401, (937) 259-7150. All certificates for
reissued Old Securities, unaccepted Old Securities or for New Securities shall
be forwarded to holders by first-class mail.
5. Receipt of Letters of Transmittal and Related Items. From and after
---------------------------------------------------
the Effective Time, Exchange Agent is hereby authorized and directed to accept
(a) Letters of Transmittal, duly executed in accordance with the instructions
thereto (or a manually signed facsimile thereof), and any requisite collateral
documents from holders of the Old Securities and (b) surrendered Old Securities
to which such Letters of Transmittal relate. Exchange Agent is authorized to
request from any person tendering Old Securities such additional documents as
Exchange Agent or the Company deems appropriate. Exchange Agent is hereby
2
<PAGE>
authorized and directed to process withdrawals of tenders to the extent
withdrawal thereof is authorized by the Exchange Offer.
6. Defective or Deficient Old Securities and Instruments. The Exchange
-----------------------------------------------------
Agent will examine each of the Letters of Transmittal and certificates for Old
Securities (or confirmation of book-entry transfer into Exchange Agent's account
at DTC) and any other documents delivered or mailed to Exchange Agent by or for
holders of the Old Securities to ascertain whether: (a) the Letters of
Transmittal and any such other documents are duly executed and properly
completed in accordance with instructions set forth therein (or that the DTC
Transmissions contain the proper information required to be set forth therein),
(b) the Old Securities have otherwise been properly tendered in accordance with
the Prospectus and the Letters of Transmittal (or that book-entry confirmations
are in due and proper form and contain the information required to be set forth
therein) and (c) if applicable, the other documents (including the Notice of
Guaranteed Delivery) are properly and completely executed. In each case where
the Letter of Transmittal or any other document has been improperly completed or
executed (or any DTC Transmissions are not in due and proper form or omit
required information) or any Old Securities accompanying such Letter of
Transmittal are not in proper form for transfer or have been improperly tendered
(or the book-entry confirmations are not in due and proper form or omit required
information) or if some other irregularity in connection with the acceptance of
the Old Securities exists, Exchange Agent shall report such information to the
holder of the Old Securities. If such condition is not promptly remedied by the
holder of the Old Securities, Exchange Agent shall report such condition to the
Company and await its direction. All questions as to the validity, form,
eligibility (including timeliness of receipt), acceptance and withdrawal of any
Old Securities tendered or delivered shall be determined by the Company, in its
sole discretion. Notwithstanding the above, Exchange Agent shall not be under
any duty to give notification of defects in such tenders and shall not incur any
liability for failure to give such notification unless such failure constitutes
gross negligence or willful misconduct. The Company reserves the absolute right
to reject any and all tenders of any particular Old Securities determined by the
Company not to be in proper form or the acceptance or exchange of which may, in
the opinion of Company's counsel, be unlawful.
7. Requirements of Tender. With the approval of the President, Group
----------------------
Vice President, any Vice President or the Treasurer of the Company (such
approval, if given orally, to be confirmed in writing) or any other party
designated by such an officer in writing, Exchange Agent is authorized to waive
any irregularities in connection with any tender of Old Securities pursuant to
the Exchange Offer.
Tenders of Old Securities may be made only as set forth in the Letter
of Transmittal and in the section of the Prospectus captioned "The Exchange
Offer - Procedures for Tendering Old Notes", and Old Securities shall be
considered properly tendered to Exchange Agent only when tendered in accordance
with the procedures set forth therein. Notwithstanding the provisions of this
paragraph, Old Securities which the President, Group Vice President, any Vice
President or the Treasurer of the Company shall approve as having been properly
tendered shall be considered to be properly tendered (such approval, if given
orally, shall be confirmed in writing).
3
<PAGE>
8. Exchange of the Old Securities. Exchange Agent shall notify the
------------------------------
Company with respect to any Old Securities received subsequent to the Expiration
Date and accept Company's instructions with respect to disposition of such Old
Securities.
9. Transfer of Registration. Exchange Agent shall accept tenders:
------------------------
a. in cases where the Old Securities are registered in two or
more names only if signed by all named holders (with signatures guaranteed where
required);
b. in cases where the signing person (as indicated on the Letter
of Transmittal) is acting in a fiduciary or a representative capacity only when
proper evidence of his or her authority so to act is submitted; and
c. from persons other than the registered holder of Old
Securities provided that customary transfer requirements, including any
applicable transfer taxes, are fulfilled.
Exchange Agent shall accept partial tenders of Old Securities when so indicated
and as permitted in the Letter of Transmittal and deliver certificates for Old
Securities to the transfer agent for split-up and return any untendered Old
Securities to the holder (or such other person as may be designated in the
Letter of Transmittal) as promptly as practicable after expiration or
termination of the Exchange Offer.
10. Exchange of Old Securities. Upon satisfaction or waiver of all of
--------------------------
the conditions to the Exchange Offer, the Company will notify Exchange Agent
(such notice if given orally, to be confirmed in writing) of its acceptance,
promptly after the Expiration Date, of all Old Securities properly tendered and
Exchange Agent, on behalf of the Company, will exchange such Old Securities for
New Securities and cause such Old Securities to be cancelled. Delivery of New
Securities will be made on behalf of the Company by Exchange Agent at the rate
of $1,000 principal amount of New Securities for each $1,000 principal amount of
the corresponding series of Old Securities tendered promptly after notice (such
notice if given orally, to be confirmed in writing) of acceptance of said Old
Securities by the Company; provided, however, that in all cases, Old Securities
tendered pursuant to the Exchange Offer will be exchanged only after timely
receipt by Exchange Agent of certificates for such Old Securities (or
confirmation of book-entry transfer into Exchange Agent's account at the
Book-Entry Transfer Facility), a properly completed and duly executed Letter of
Transmittal (or facsimile thereof) with any required signature guarantees and
any other required documents. Exchange Agent shall issue New Securities only in
denominations of $1,000 or any integral multiple of $1,000.
11. Withdrawals. Tenders pursuant to the Exchange Offer are
-----------
irrevocable, except that, subject to the terms and upon the conditions set forth
in the Prospectus and the Letter of Transmittal, Old Securities tendered
pursuant to the Exchange Offer may be withdrawn at any time prior to the
Expiration Date.
12. Rejection of Tenders. The Company shall not be required to
--------------------
exchange any Old Securities tendered if any of the conditions set forth in the
4
<PAGE>
Exchange Offer are not met. Notice of any decision by the Company not to
exchange any Old Securities tendered shall be given (and confirmed in writing)
by the Company to Exchange Agent.
If, pursuant to the Exchange Offer, the Company does not accept for
exchange all or part of the Old Securities tendered because of an invalid
tender, the occurrence of certain other events set forth in the Prospectus under
the caption "The Exchange Offer -Certain Conditions to the Exchange Offer" or
otherwise, Exchange Agent shall as soon as practicable after the expiration or
termination of the Exchange Offer return those certificates for unaccepted Old
Securities (or effect appropriate book-entry transfer), together with any
related required documents and the Letters of Transmittal relating thereto that
are in Exchange Agent's possession, to the persons who deposited them (or
effected such book-entry transfer).
13. Mailing of Certificates. All certificates for reissued Old
-----------------------
Securities, unaccepted Old Securities or for New Securities shall be forwarded
by first-class mail.
14. Concerning the Exchange Agent. As Exchange Agent hereunder,
-----------------------------
Exchange Agent:
(a) is not authorized to pay or offer to pay any
concessions, commissions or solicitation fees to any broker, dealer,
bank or other persons or to engage or utilize any person to solicit
tenders;
(b) shall have no duties or obligations other than as
provided in paragraph 2, those specifically set forth herein or as may
be subsequently agreed to in writing by Exchange Agent and the
Company;
(c) will be regarded as making no representations and having
no responsibilities as to the validity, sufficiency, value or
genuineness of any of the certificates or the Old Securities
represented thereby deposited with Exchange Agent pursuant to the
Exchange Offer, and will not be required to and will make no
representation as to the validity, value or genuineness of the
Exchange Offer;
(d) shall not be obligated to take any legal action
hereunder which might in Exchange Agent's reasonable judgment involve
any expense or liability, unless Exchange Agent shall have been
furnished with indemnity against such expense or liability which in
the Exchange Agent's sole judgment, is adequate;
(e) may reasonably rely on and shall be protected in acting
in reliance upon any certificate, instrument, opinion, notice, letter,
telegram or other document or security delivered to Exchange Agent and
reasonably believed by Exchange Agent to be genuine and to have been
signed by the proper party or parties;
(f) may reasonably act upon any tender, statement, request,
comment, agreement or other instrument whatsoever not only as to its
due execution and validity and effectiveness of its provisions, but
also as to the truth and accuracy of any information contained
therein, which Exchange Agent shall in good faith believe to be
genuine or to have been signed or represented by a proper person or
persons;
5
<PAGE>
(g) may rely on and shall be protected in acting upon
written or oral instructions (confirmed in writing) from any officer
of the Company, its counsel, or its representatives;
(h) may consult with counsel with respect to any questions
relating to Exchange Agent's duties and responsibilities and the
advice or opinion of such counsel shall be full and complete
authorization and protection in respect of any action taken, suffered
or omitted to be taken by Exchange Agent hereunder in good faith and
in accordance with the advice or opinion of such counsel;
(i) shall not advise any person tendering Old Securities
pursuant to the Exchange Offer as to whether to tender or refrain from
tendering any portion of Old Securities or as to the market value or
decline or appreciation in market value of any Old Securities; and
(j) shall not be liable for any claim, loss, liability or
expense, incurred without Exchange Agent's negligence or willful
misconduct, arising our of or in connection with the administration of
Exchange Agent's duties hereunder.
15. Reports to Company. Exchange Agent shall advise by facsimile
------------------
transmission or telephone, and promptly thereafter confirm in writing to the
Vice President and Chief Financial Officer of the Company and such other person
or persons as it may request, weekly (and more frequently during the week
immediately preceding the Expiration Date and if otherwise requested) up to and
including the Expiration Date, as to the principal amount of Old Securities
which have been tendered pursuant to the Exchange Offer and the items received
by Exchange Agent pursuant to this Agreement, separately reporting and giving
cumulative totals as to items properly received and items improperly received.
In addition, Exchange Agent will also inform, and cooperate in making available
to, the Company or any such other person or persons upon oral request (confirmed
in writing) made from time to time prior to the Expiration Date of such other
information as it or he or she reasonably requests. Such cooperation shall
include, without limitation, the granting by Exchange Agent to the Company and
such person as the Company may request of access to those persons on its staff
who are responsible for receiving tenders, in order to ensure that immediately
prior to the Expiration Date the Company shall have received information in
sufficient detail to enable it to decide whether to extend the Exchange Offer.
Exchange Agent shall prepare a final list of all persons whose tenders were
accepted, the aggregate principal amount of Old Securities tendered and the
aggregate principal amount of Old Securities accepted and deliver said list to
the Company. Within 5 days after the Expiration Date, Exchange Agent shall
furnish the Company a final report showing the disposition of the Exchange
Securities.
16. Recordkeeping. Letters of Transmittal, book-entry confirmations
-------------
and Notices of Guaranteed Delivery shall be stamped by Exchange Agent as to the
date and the time of receipt thereof (or if the Old Securities are tendered by
book-entry delivery, such form of record keeping of receipt as is customary for
tenders through ATOP), and if defective, the date and time the last defect was
cured or waived by the Company. Exchange Agent shall cancel certificated Old
Securities. Exchange Agent shall retain all Old Securities and Letters of
Transmittal and other related documents or correspondence received by the
Company as soon as practicable after the Expiration Date. If Exchange Agent
6
<PAGE>
receives any Letters of Transmittal after the Expiration Date, Exchange Agent
shall return the same together with all enclosures to the party from whom such
documents were delivered.
17. Discrepancies or Questions. Any discrepancies or questions
--------------------------
regarding any Letter of Transmittal, Restricted Security, notice of withdrawal
or any other documents received by Exchange Agent in connection with the
Exchange Offer, except for matters described under paragraph 18 below, shall be
referred to the Company and Exchange Agent shall have no further duty with
respect to such matter; provided that Exchange Agent shall cooperate with the
Company in attempting to resolve such discrepancies or questions.
18. Requests for Information. Exchange Agent shall accept and comply
------------------------
with telephone and mail requests for information from any person concerning the
proper procedure to tender Restricted Securities. Exchange Agent shall provide
copies of the Prospectus, Letter of Transmittal and Notice of Guaranteed
Delivery to any person upon request. All other requests for materials shall be
referred to the Company.
19. Tax Matters. Exchange Agent shall file with the Internal Revenue
-----------
Service and holders Form 1099 reports regarding principal and interest payments
on Securities which Exchange Agent has made in connection with the Exchange
Offer, if any. Any questions with respect to any tax matters relating to the
Exchange Offer shall be referred to the Company, and Exchange Agent shall have
no duty with respect to such matter; provided that Exchange Agent shall
cooperate with the Company in attempting to resolve such questions.
20. Fees and Expenses. The Company will pay Exchange Agent its fees
-----------------
plus expenses, including counsel fees and disbursements, as set forth in
Schedule I.
21. Miscellaneous. Exchange Agent hereby acknowledges receipt of the
-------------
Prospectus and the Letter of Transmittal and further acknowledges that Exchange
Agent has examined each of them. Any inconsistency between this Agreement, on
the one hand, and the Prospectus and the Letter of Transmittal (as they may be
amended from time to time), on the other hand, shall be resolved in favor of the
latter two documents, except with respect to the duties, liabilities and
indemnification of Exchange Agent, which shall be controlled by this Agreement.
22. Indemnification. The Company covenants and agrees to indemnify and
---------------
hold Exchange Agent harmless in its capacity as Exchange Agent hereunder against
any loss, liability, cost or expense, including attorneys' fees and expenses,
arising out of or in connection with any act, omission, delay or refusal made by
Exchange Agent in reliance upon any signature, endorsement, assignment,
certificate, order, request, notice, instruction or other instrument or document
reasonably believed by Exchange Agent to be valid, genuine and sufficient and in
accepting any tender or effecting any transfer of Old Securities reasonably
believed by Exchange Agent in good faith to be authorized, and in delaying or
refusing in good faith to accept any tenders or effect any transfer of Old
Securities; provided, however, that the Company shall not be liable for
indemnification or otherwise for any loss, liability, cost or expense to the
extent arising out of Exchange Agent's gross negligence or willful misconduct.
Exchange Agent shall notify the Company in writing of any written assertion of a
claim against Exchange Agent or of any other action commenced against Exchange
7
<PAGE>
Agent, promptly after Exchange Agent shall have received any such written
assertion or notice of commencement of action. The Company shall be entitled to
participate at its own expense in the defense of any such claim or other action,
and, if the Company so elects, the Company may assume the defense of any pending
or threatened action against Exchange Agent in respect of which indemnification
may be sought hereunder; provided that Company shall not be entitled to assume
the defense of any such action if the named parties to such action include both
the Company and Exchange Agent and representation of both parties by the same
legal counsel would, in the written opinion of counsel for the Exchange Agent,
be inappropriate due to actual or potential conflicting interests between them;
and further provided that in the event that the Company shall assume the defense
of any such suit, and such defense is reasonably satisfactory to Exchange Agent,
the Company shall not be liable for the fees and expenses of any counsel
retained by Exchange Agent.
23. Securities Held in Trust. The Exchange Securities and any cash or
------------------------
other property (the "Property") deposited with or received by Exchange Agent (in
such capacity) from the Company shall be held in a segregated account, solely
for the benefit of the Company and Holders tendering Restricted Securities, as
their interests may appear, and the Property shall not be commingled with
securities, money, assets or property of Exchange Agent or any other party.
Exchange Agent hereby waives any and all rights of lien, if any, against the
Property, except to the extent set forth in the Indenture with respect to the
Exchange Securities.
24. Change of Exchange Agent. Exchange Agent may resign from its
------------------------
duties under this Agreement by giving to the Company 60 days prior written
notice. If Exchange Agent resigns or becomes incapable of acting as Exchange
Agent and the Company fails to appoint a new exchange agent within a period of
60 days after it has been notified in writing of such resignation or incapacity
by Exchange Agent, the Company shall appoint a successor exchange agent or
assume all of the duties and responsibilities of Exchange Agent. Any successor
exchange agent shall be vested with the same powers, rights, duties and
responsibilities as if it had been originally named as Exchange Agent without
any further act or deed; but Exchange Agent shall deliver and transfer to the
successor exchange agent any Property at the time held by it hereunder, and
execute and deliver any further assurance, conveyance, act or deed necessary for
such purpose.
25. Applicable Law. This Agreement and Exchange Agent's appointment as
--------------
Exchange Agent hereunder shall be construed and enforced in accordance with the
laws of the State of New York applicable to agreements made and to be performed
entirely within such state, and without regard to conflicts of law principles,
and shall inure to the benefit of, and the obligations created hereby shall be
binding upon, the successors and assigns of each of the parties hereto.
26. Counterparts. This Agreement may be executed in two or more
------------
counterparts, each of which shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
27. Enforcement. In case any provision of this Agreement shall be
-----------
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
8
<PAGE>
28. Amendments. This Agreement shall not be deemed or construed to be
----------
modified, amended, rescinded, cancelled or waived, in whole or in part, except
by a written instrument signed by a duly authorized representative of the party
to be charged. This Agreement may not be modified orally.
29. Notices. Unless otherwise provided herein, all notices, requests
-------
and other communications to any party hereunder shall be in writing (including
facsimile or similar writing) and shall be given to such party, addressed to it,
at its address or telecopy number set forth below:
If to the Company:
DPL Inc.
Financial Activities
Box 8825
Dayton, Ohio 45401
Facsimile: 937-259-7147
Attention: Michael D. Lopez
If to the Exchange Agent:
Bank One Trust Company, National Association
One North State Street, 9th Floor
Chicago, Illinois 60602
Facsimile: 312-407-8853
Telephone: 800-524-9472
Attention: Exchanges
30. Termination. Unless terminated earlier by the parties hereto, this
-----------
Agreement shall terminate 90 days following the Expiration Date. Notwithstanding
the foregoing, Paragraphs 18, 19, and 21 shall survive the termination of this
Agreement. Upon any termination of this Agreement, Exchange Agent shall promptly
deliver to the Company any certificates for Securities, funds or property then
held by Exchange Agent as Exchange Agent under this Agreement.
31. Parties in Interest. This Agreement shall be binding upon and
-------------------
inure solely to the benefit of each party hereto and nothing in this Agreement,
express or implied, is intended to or shall confer upon any other person any
right, benefits or remedy of any nature whatsoever under or by reason of this
Agreement. Without limitation to the foregoing, the parties hereto expressly
agree that no Holder or holder of Securities shall have any right, benefit or
remedy of any nature whatsoever under or by reason of this Agreement.
9
<PAGE>
32. Entire Agreement; Headings. This Agreement constitutes the entire
--------------------------
understanding of the parties hereto with respect to the subject matter hereof.
The descriptive headings contained in this Agreement are included for
convenience of reference only and shall not affect in any way the meaning or
interpretation of this Agreement. This Agreement shall be binding and effective
as of the date hereof.
Please acknowledge receipt of this Agreement and confirm the
arrangements herein provided by signing and returning the enclosed copy.
DPL INC.
By:
---------------------------
Name: R. Michael Lempke
Title: Vice President and
Chief Financial Officer
BANK ONE TRUST COMPANY,
NATIONAL ASSOCIATION, as
Exchange Agent
By:
------------------------------
Name:
Title:
10
<PAGE>
SCHEDULE I
FEES
11
<PAGE>
Exhibit A
Letter of Transmittal
12
<PAGE>
Exhibit B
Notice of Guaranteed Delivery
13
EXHIBIT 99(b)
NOTICE OF GUARANTEED DELIVERY
FOR TENDER OF
8 1/4% SENIOR NOTES DUE 2007, (CUSIP NO. 233293AC3)
OF
DPL INC.
This Notice of Guaranteed Delivery or one substantially equivalent
hereto must be used to accept the Exchange Offer (as defined below) if (i)
certificates for the Company's (as defined below) 8 1/4% Senior Notes due 2007
(the "Old Notes") are not immediately available, (ii) Old Notes, the Letter of
Transmittal and any other documents required by the Letter of Transmittal cannot
be delivered to Bank One Trust Company, National Association (the "Exchange
Agent") on or prior to the Expiration Date (as defined in the Prospectus
referred to below) or (iii) the procedures for book-entry transfer cannot be
completed on a timely basis. This Notice of Guaranteed Delivery may be delivered
by hand or sent by facsimile transmission, overnight courier, telex, telegram or
mail to the Exchange Agent. See "The Exchange Offer - Guaranteed Delivery
Procedures" in the Prospectus dated ______, 2000 (which, together with the
related Letter of Transmittal, constitutes the "Exchange Offer") of DPL Inc., an
Ohio corporation (the "Company").
The Exchange Agent for the Exchange Offer is:
Bank One Trust Company, National Association
<TABLE>
<CAPTION>
<S> <C> <C>
By Hand or Overnight Delivery: Facsimile Transmissions: By Registered or Certified Mail:
Bank One Trust Company, National 312-407-8853 Bank One Trust Company, National
Association To Confirm by Telephone Association
One North State Street, 9th Floor or for Information Call: One North State Street, 9th Floor
Chicago, Illinois 60602 312-524-9472 Chicago, Illinois 60602
Attn: Exchanges Attn: Exchanges
</TABLE>
DELIVERY OF THIS NOTICE OF GUARANTEED DELIVERY TO AN ADDRESS OTHER
THAN AS SET FORTH ABOVE OR TRANSMISSION OF THIS NOTICE OF GUARANTEED DELIVERY
VIA A FACSIMILE TRANSMISSION TO A NUMBER OTHER THAN AS SET FORTH ABOVE WILL NOT
CONSTITUTE A VALID DELIVERY.
THIS NOTICE OF GUARANTEED DELIVERY IS NOT TO BE USED TO GUARANTEE
SIGNATURES. IF A SIGNATURE ON A LETTER OF TRANSMITTAL IS REQUIRED TO BE
GUARANTEED BY AN "ELIGIBLE INSTITUTION" UNDER THE INSTRUCTIONS THERETO, SUCH
SIGNATURE GUARANTEE MUST APPEAR IN THE APPLICABLE SPACE PROVIDED ON THE LETTER
OF TRANSMITTAL.
<PAGE>
THE FOLLOWING GUARANTEE MUST BE COMPLETED
GUARANTEE OF DELIVERY
(Not to be used for Signature Guarantee)
The undersigned, a firm that is a member of a registered national
securities exchange or a member of the National Association of Securities
Dealers, Inc. or a commercial bank or trust company having an office or
correspondent in the United States, hereby guarantees to deliver to the Exchange
Agent, at one of its addresses set forth above, either the certificates for all
physically tendered Old Notes, in proper form for transfer, or confirmation of
the book-entry transfer of such Old Notes to the Exchange Agent's account at The
Depository Trust Company ("DTC"), pursuant to the procedures for book-entry
transfer set forth in the Prospectus, in either case together with any other
documents required by the Letter of Transmittal, within five New York Stock
Exchange trading days after the date of execution of this Notice of Guaranteed
Delivery.
The undersigned acknowledges that it must deliver the Old Notes
tendered hereby to the Exchange Agent within the time period set forth above and
that failure to do so could result in a financial loss to the undersigned.
Name of Firm:
------------------------------- ------------------------------
(Authorized Signature)
Address: Title:
------------------------------------- ------------------------
Name:
- -------------------------------------------- -------------------------
(Zip Code) (Please Type or Print)
Area Code and Telephone Number: Date:
-------------------------
- --------------------------------------------
NOTE: DO NOT SEND OLD NOTES WITH THIS NOTICE OF GUARANTEED DELIVERY. ACTUAL
SURRENDER OF OLD NOTES MUST BE MADE PURSUANT TO, AND BE ACCOMPANIED BY, A
PROPERLY COMPLETED AND FULLY EXECUTED LETTER OF TRANSMITTAL AND ANY OTHER
REQUIRED DOCUMENTS.
2
EXHIBIT 99(c)
DPL INC.
OFFER TO EXCHANGE
81/4% SENIOR EXCHANGE NOTES DUE 2007 (CUSIP NO. 233293AC3) FOR ANY AND ALL
OUTSTANDING 8 1/4 % SENIOR NOTES DUE 2007
To Our Clients:
Enclosed is a Prospectus, dated , 2000, of DPL Inc., an Ohio
-----
corporation (the "Company"), and a related Letter of Transmittal (which together
constitute the "Exchange Offer") relating to the offer by the Company to
exchange its 8 1/4% Senior Exchange Notes due 2007 (the "New Notes"), pursuant
to an offering registered under the Securities Act of 1933, as amended (the
"Securities Act"), for a like principal amount of the Company's issued and
outstanding 8 1/4% Senior Notes due 2007 (the "Old Notes"), upon the terms and
subject to the conditions set forth in the Exchange Offer.
Please note that the Exchange Offer will expire at 5:00 p.m., New York
City time, on , 2000, unless extended.
---------- --
The Exchange Offer is not conditioned upon any minimum number of Old
Notes being tendered.
We are the holder of record and/or participant in the book-entry
transfer facility of Old Notes held by us for your account. A tender of such Old
Notes can be made only by us as the record holder and/or participant in the
book-entry transfer facility and pursuant to your instructions. The Letter of
Transmittal is furnished to you for your information only and cannot be used by
you to tender Old Notes held by us for your account.
We request instructions as to whether you wish to tender any or all of
the Old Notes held by us for your account pursuant to the terms and conditions
of the Exchange Offer. We also request that you confirm that we may on your
behalf make the representations contained in the Letter of Transmittal.
Pursuant to the Letter of Transmittal, each holder of Old Notes will
represent to the Company that (i) the holder is not an "affiliate" of the
Company, (ii) any New Notes to be received by the holder are being acquired in
the ordinary course of its business, and (iii) the holder has no arrangement or
understanding with any person to participate in a distribution (within the
meaning of the Securities Act) of such New Notes. If the tendering holder is a
broker-dealer that will receive New Notes for its own account in exchange for
Old Notes, we will represent on behalf of such broker-dealer that the Old Notes
to be exchanged for the New Notes were acquired by it as a result of
market-making activities or other trading activities, and acknowledge on behalf
of such broker-dealer that it will deliver a prospectus meeting the requirements
of the Securities Act in connection with any resale of such New Notes. By
acknowledging that it will deliver and by delivering a prospectus meeting the
requirements of the Securities Act in connection with any resale of such New
Notes, such broker-dealer is not deemed to admit that it is an "underwriter"
within the meaning of the Securities Act.
Very truly yours,
EXHIBIT 99(d)
DPL INC.
OFFER TO EXCHANGE
81/4% SENIOR EXCHANGE NOTES DUE 2007 (CUSIP NO. 233293AC3) FOR ANY AND ALL
OUTSTANDING 8 1/4 % SENIOR NOTES DUE 2007
To Registered Holders and The Depository
Trust Company Participants:
Enclosed are the materials listed below relating to the offer by DPL
Inc., an Ohio corporation (the "Company"), to exchange its 8 1/4 % Senior
Exchange Notes due 2007 (the "New Notes"), pursuant to an offering registered
under the Securities Act of 1933, as amended (the "Securities Act"), for a like
principal amount of the Company's issued and outstanding 8 1/4 % Senior Notes
due 2007 (the "Old Notes"), upon the terms and subject to the conditions set
forth in the Company's Prospectus, dated , 2000, and the related Letter of
------
Transmittal (which together constitute the "Exchange Offer").
Enclosed herewith are copies of the following documents:
1. Prospectus dated , 2000;
------
2. Letter of Transmittal;
3. Notice of Guaranteed Delivery;
4. Instruction to Registered Holder and/or Book-Entry Transfer
Participant from Owner; and
5. Letter which may be sent to your clients for whose account you
hold Old Notes in your name or in the name of your nominee, to
accompany the instruction form referred to above, for obtaining
such client's instruction with regard to the Exchange Offer.
We urge you to contact your clients promptly. Please note that the
Exchange Offer will expire at 5:00 p.m., New York City time, on ,
---------- --
2000 unless extended.
The Exchange Offer is not conditioned upon any minimum number of Old
Notes being tendered.
Pursuant to the Letter of Transmittal, each holder of Old Notes will
represent to the Company that (i) the holder is not an "affiliate" of the
Company, (ii) any New Notes to be received by it are being acquired in the
ordinary course of its business, and (iii) the holder has no arrangement or
understanding with any person to participate in a distribution (within the
meaning of the Securities Act) of such New Notes. If the tendering holder is a
broker-dealer that will receive New Notes for its own account in exchange for
Old Notes, you will represent on behalf of such broker-dealer that the Old Notes
to be exchanged for the New Notes were acquired by it as a result of
market-making activities or other trading activities, and acknowledge on behalf
of such broker-dealer that it will deliver a prospectus meeting the requirements
of the Securities Act in connection with any resale of such New Notes. By
acknowledging that it will deliver and by delivering a prospectus meeting the
requirements of the Securities Act in connection with any resale of such New
Notes, such broker-dealer is not deemed to admit that it is an "underwriter"
within the meaning of the Securities Act.
The enclosed Instruction to Registered Holder and/or Book-Entry
Transfer Facility Participant from Owner contains an authorization by the
beneficial owners of the Old Notes for you to make the foregoing
representations.
The Company will not pay any fee or commission to any broker or dealer
or to any other persons (other than the Exchange Agent) in connection with the
solicitation of tenders of Old Notes pursuant to the Exchange Offer. The Company
<PAGE>
will pay or cause to be paid any transfer taxes payable on the transfer of Old
Notes to it, except as otherwise provided in Instruction 10 of the enclosed
Letter of Transmittal.
Additional copies of the enclosed material may be obtained from the
undersigned.
EXHIBIT 99(e)
INSTRUCTION TO REGISTERED HOLDER AND/OR
BOOK-ENTRY TRANSFER FACILITY PARTICIPANT FROM OWNER
OF
DPL INC.
8 1/4 % SENIOR NOTES DUE 2007
(THE "OLD NOTES") (CUSIP NO. 233293AC3)
To Registered Holder and/or Participant of the Book-Entry Transfer
Facility:
The undersigned hereby acknowledges receipt of the Prospectus dated
, 2000 (the "Prospectus") of DPL Inc., an Ohio corporation (the
- ------
"Company"), and the accompanying Letter of Transmittal (the "Letter of
Transmittal"), that together constitute the Company's offer (the "Exchange
Offer"). Capitalized terms used but not defined herein have the meanings as
ascribed to them in the Letter of Transmittal.
This will instruct you, the registered holder and/or book-entry
transfer facility participant, as to the action to be taken by you relating to
the Exchange Offer with respect to the Old Notes held by you for the account of
the undersigned.
The aggregate face amount of the Old Notes held by you for the account
of the undersigned is (fill in amount):
$
---------------
With respect to the Exchange Offer, the undersigned hereby instructs
you (check appropriate box):
[ ] To TENDER the following Old Notes held by you for the account of
the undersigned (insert principal amount of Old Notes to be tendered, if any):
$
---------------
[ ] NOT to TENDER any Old Notes held by you for the account of the
undersigned.
If the undersigned instructs you to tender the Old Notes held by you
for the account of the undersigned, it is understood that you are authorized to
make, on behalf of the undersigned (and the undersigned, by its signature below,
hereby makes to you), the representations and warranties contained in the Letter
of Transmittal that are to be made with respect to the undersigned as a
beneficial owner, including but not limited to the representations, that (i) the
holder is not an "affiliate" of the Company, (ii) any New Notes to be received
by the holder are being acquired in the ordinary course of its business, and
(iii) the holder has no arrangement or understanding with any person to
participate in a distribution (within the meaning of the Securities Act) of such
New Notes. If the undersigned is a broker-dealer that will receive New Notes for
its own account in exchange for Old Notes, it represents that such Old Notes
were acquired as a result of market-making activities or other trading
activities, and it acknowledges that it will deliver a prospectus meeting the
requirements of the Securities Act in connection with any resale of such New
Notes. By acknowledging that it will deliver and by delivering a prospectus
meeting the requirements of the Securities Act in connection with any resale of
such New Notes, such broker-dealer is not deemed to admit that it is an
"underwriter" within the meaning of the Securities Act.
<PAGE>
SIGN HERE
Name of beneficial owner(s):
----------------------------------------------------
Signature(s):
-------------------------------------------------------------------
Name(s) (please print):
---------------------------------------------------------
Address:
------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Telephone Number:
---------------------------------------------------------------
Taxpayer Identification or Social Security Number:
------------------------------
Date:
---------------------------------------------------------------------------
2
EXHIBIT 99(f)
DPL INC.
Courthouse Plaza Southwest
Dayton, Ohio 45402
May 26, 2000
Securities and Exchange Commission
Division of Corporate Finance
450 Fifth Street, N.W.
Judiciary Plaza
Washington, D.C. 20549
Re: DPL INC.; Registration Statement
on Form S-4, Exxon Capital Representations
------------------------------------------
Ladies and Gentlemen:
DPL INC., a corporation organized under the laws of the State of Ohio
(the "Company"), is registering with the Securities and Exchange Commission (the
"Commission") an exchange offer (the "Exchange Offer") of an aggregate principal
amount of up to $425,000,000 of its 8 1/4% Senior Exchange Notes due 2007 (the
"Exchange Notes") for an equal aggregate principal amount of its currently
outstanding 8 1/4% Senior Exchange Notes due 2007 that had been issued and sold
by the Company in transactions exempt from the registration requirements of the
Securities Act of 1933, as amended (the "Securities Act"). The Company is
registering the Exchange Offer in reliance on the staff positions enunciated in
the Exxon Capital Holdings Corporation no-action letter (available April 13,
1989), the Morgan Stanley & Co. Inc. no-action letter (available June 5, 1991)
and the Shearman & Sterling no-action letter (available July 2, 1993).
The Company hereby represents that in connection with the Exchange
Offer the Company has not entered into any arrangement or understanding with any
person to distribute the Exchange Notes to be received in the Exchange Offer and
to the best of the Company's information and belief, each person participating
in the exchange offer is acquiring the Exchange Notes in its ordinary course of
business and has no arrangement or understanding with any person to participate
in the distribution of the Exchange Notes to be received in the Exchange Offer.
In this regard, the Company will make each person participating in the Exchange
Offer aware (through the Exchange Offer prospectus or otherwise) that if the
Exchange Offer is being registered for the purpose of secondary resales, any
security holder using the Exchange Offer to participate in a distribution of the
Exchange Notes to be acquired in the registered Exchange Offer (1) could not
rely on the staff position enunciated in Exxon Capital Holdings Corporation
(avail. April 13, 1989) or similar letters and (2) must comply with registration
<PAGE>
DPL Inc.
May 26, 2000
and prospectus delivery requirements of the Securities Act in connection with a
secondary resale transaction. The Company acknowledges that such a secondary
resale transaction should be covered by an effective registration statement
containing the selling security holder information required by Item 507 of
Regulation S-K.
Yours truly,
/s/ Stephen F. Koziar, Jr.
Group Vice President and General Counsel
2
