EXHIBIT 4(H)
AGREEMENT AS TO EXPENSES AND LIABILITIES
AGREEMENT dated as of August 31, 2001, between DPL Inc., an Ohio
corporation ("DPL"), and DPL Capital Trust II, a Delaware statutory business
trust (the "TRUST").
WHEREAS, the Trust intends to issue its 8 1/8% Common Securities
(Liquidation Amount $1,000 per Common Security) (the "COMMON SECURITIES") to,
and purchase 8 1/8% Junior Subordinated Deferrable Interest Debentures due
September 1, 2031 (the "Debentures") from, DPL, and to issue and sell its 8 1/8%
Capital Securities (Liquidation Amount $1,000 per Capital Security) (the
"PRIVATE CAPITAL SECURITIES") with such powers, preferences and special rights
and restrictions as are set forth in the Amended and Restated Trust Agreement of
the Trust dated as of August 31, 2001, as the same may be amended from time to
time (the "TRUST Agreement");
WHEREAS, DPL will directly or indirectly own all of the Common Securities
and will issue the Debentures;
WHEREAS, the Trust may issue a new series of 8 1/8% Capital Securities
(Liquidation Amount $1,000 per Capital Security) (the "EXCHANGE CAPITAL
SECURITIES" and, together with the "PRIVATE CAPITAL SECURITIES," the "CAPITAL
SECURITIES") in connection with an exchange offer (the "EXCHANGE OFFER")
registered under the Securities Act of 1933, as amended;
NOW, THEREFORE, in consideration of the purchase by each holder of the
Capital Securities, which purchase DPL hereby agrees shall benefit DPL and which
purchase DPL acknowledges will be made in reliance upon the execution and
delivery of this Agreement, DPL and the Trust hereby agree as follows:
ARTICLE I
SECTION 1.1. Guarantee by DPL Inc. Subject to the terms and conditions
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hereof, DPL hereby irrevocably and unconditionally guarantees to each person or
entity to whom the Trust is now or hereafter becomes indebted or liable (the
"BENEFICIARIES") the full payment, when and as due, of any and all Obligations
(as hereinafter defined) to such Beneficiaries. As used herein, "OBLIGATIONS"
means any costs, expenses or liabilities of the Trust, other than obligations of
the Trust to pay to holders of any Capital Securities or other similar interests
in the Trust the amounts due such holders pursuant to the terms of the Capital
Securities or such other similar interests, as the case may be. This Agreement
is intended to be for the benefit of, and to be enforceable by, all such
Beneficiaries, whether or not such Beneficiaries have received notice hereof.
SECTION 1.2. Terms of Agreement. This Agreement shall terminate and be of
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no further force and effect upon the later of (a) the date on which full payment
has been made of all amounts payable to all holders of all the Capital
Securities (whether upon redemption, liquidation, exchange or otherwise) and (b)
the date on which there are no Beneficiaries remaining; provided, however, that
this Agreement shall continue to be effective or shall be reinstated, as the
case may be, if at any time any holder of Capital Securities or any Beneficiary
must restore payment of any sums paid under the Capital Securities, under any
Obligation, under the Capital Securities Guarantee Agreement dated as of the
date hereof by DPL and The Bank of New York, as guarantee trustee, or under this
Agreement for any reason whatsoever. This Agreement is continuing, irrevocable,
unconditional and absolute.
SECTION 1.3. Waiver of Notice. DPL waives notice of acceptance of this
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Agreement and of any Obligation to which it applies or may apply, and DPL hereby
waives presentment, demand for payment, protest, notice of nonpayment, notice of
dishonor, notice of redemption and all other notices and demands.
SECTION 1.4. No Impairment. The obligations, covenants, agreements and
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duties of DPL under this Agreement shall in no way be affected or impaired by
reason of the happening from time to time of any of the following:
(a) the extension of time for the payment by the Trust of all or any
portion of the Obligations or for the performance of any other obligation under,
arising out of, or in connection with, the Obligations;
(b) any failure, omission, delay or lack of diligence on the part of
the Beneficiaries to enforce, assert or exercise any right, privilege, power or
remedy conferred on the Beneficiaries with respect to the Obligations or any
action on the part of the Trust granting indulgence or extension of any kind; or
(c) the voluntary or involuntary liquidation, dissolution, sale of any
collateral, receivership, insolvency, bankruptcy, assignment for the benefit of
creditors, reorganization, arrangement, composition or readjustment of debt of,
or other similar proceedings affecting, the Trust or any of the assets of the
Trust.
There shall be no obligation of the Beneficiaries to give notice to, or obtain
the consent of, DPL with respect to the happening of any of the foregoing.
SECTION 1.5. Enforcement. A Beneficiary may enforce this Agreement directly
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against DPL, and DPL waives any right or remedy to require that any action be
brought against the Trust or any other person or entity before proceeding
against DPL.
SECTION 1.6. Subrogation. DPL shall be subrogated to all rights (if any) of
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the Trust in respect of any amounts paid to the Beneficiaries by DPL under this
Agreement; provided, however, that DPL shall not (except to the extent required
by mandatory provisions of law) be entitled to enforce or exercise any rights
which it may acquire by way of subrogation or any indemnity, reimbursement or
other agreement, in all cases as a result of payment under this Agreement, if,
at the time of any such payment, any amounts are due and unpaid under this
Agreement.
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ARTICLE II
SECTION 2.1. Binding Effect. All guarantees and agreements contained in
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this Agreement shall bind the successors, assigns, receivers, trustees and
representatives of DPL and shall inure to the benefit of the Beneficiaries.
SECTION 2.2. Amendment. So long as there remains any Beneficiary or any
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Capital Securities of any series are outstanding, this Agreement shall not be
modified or amended in any manner adverse to such Beneficiary or to the holders
of the Capital Securities.
SECTION 2.3. Notices. Any notice, request or other communication required
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or permitted to be given hereunder shall be given in writing by delivering the
same by personal delivery, by facsimile transmission or by first-class mail,
addressed as follows (and if so given, shall be deemed given when so delivered,
upon receipt of confirmation if by facsimile, or three days after mailed if by
first-class mail):
DPL Capital Trust II
c/o DPL Inc.
Courthouse Plaza Southwest
Dayton, Ohio 45402
Attention: Treasurer
Facsimile No.: (937) 259-7386
DPL Inc.
Courthouse Plaza Southwest
Dayton, Ohio 45402
Attention: Treasurer
Facsimile No.: (937) 259-7386
SECTION 2.4. This Agreement shall be governed by and construed and
interpreted in accordance with the laws of the State of New York (without regard
to conflict of laws principles).
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THIS AGREEMENT is executed as of the day and year first above written.
DPL INC.
By: /s/ Elizabeth M. McCarthy
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Name: Elizabeth M. McCarthy
Title: Vice President and Chief Financial
Officer
DPL Capital Trust II
By: /s/ Stephen F. Koziar, Jr.
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Name: S.F. Koziar, Jr.
Title: Administrative Trustee
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