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
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
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Senior Notes and Exhibit C with respect to the Exchange Notes.
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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
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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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Depositary, substantially in the form, and bearing the legends, set forth
in Exhibit C hereto (the "Unrestricted Global Security" and together with
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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
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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
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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
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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.
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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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(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
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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
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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
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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
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Senior Notes and as set forth in Exhibit C hereto with respect to the
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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.
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S. F. Koziar
---------------------------------------
S. F. Koziar
Group Vice President and Secretary
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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
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
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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
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Dollars ($ ) on March 1, 2007, and to pay interest on said
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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.
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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
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
DPL INC.
By:
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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
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[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.
"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
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
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
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
------
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
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
[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.
"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
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
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
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
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
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
[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.
"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
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
CERTIFICATE OF TRANSFER
DPL INC.
8 1/4% SENIOR EXCHANGE NOTES DUE 2007
PRINCIPAL AMOUNT: $
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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.
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DATED:
4
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;
(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)
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By:
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Name:
Title:
Address:
2