EX-4.4 8 dp32251_ex0404.txt EXHIBIT 4.4 Exhibit 4.4 ------------------------------------------------------------- THE DAYTON POWER AND LIGHT COMPANY AND THE BANK OF NEW YORK (formerly Irving Trust Company) Trustee -------------- Forty-First Supplemental Indenture -------------- Dated as of February 1, 1999 - ------------------------------------------------------------ THE DAYTON POWER AND LIGHT COMPANY Forty-First Supplemental Indenture Dated as of February 1, 1999 ----------- TABLE OF CONTENTS Page ---- Parties 1 Recitals 1 ARTICLE ONE. Amendment to First Mortgage as Amended. Amendment to First Mortgage as Amended 4 ARTICLE TWO. Miscellaneous. Sec. 1 Forty-First Supplemental Indenture to Form Part of First Mortgage. 4 Sec. 2 Definitions in First Mortgage Shall Apply to Forty-First Supplemental Indenture 4 Sec. 3 Execution in Counterparts 5 Testimonium 5 Signatures 5 Acknowledgments 6 -1- FORTY-FIRST SUPPLEMENTAL INDENTURE, dated as of February 1, 1999 between The Dayton Power and Light Company, a corporation of the State of Ohio (hereinafter sometimes called the Company), party of the first part, and The Bank of New York (formerly Irving Trust Company), a corporation of the State of New York, as Trustee (hereinafter sometimes called the Trustee), party of the second part. Whereas, the Company has heretofore executed and delivered to Irving Trust Company (now The Bank of New York) a certain Indenture, dated as of October 1, 1935 (hereinafter sometimes called the First Mortgage), to secure the payment of the principal of and interest on an issue of bonds of the Company, unlimited in aggregate principal amount (hereinafter sometimes called the Bonds); and Whereas, the Company has heretofore executed and delivered to the Trustee forty supplemental indentures numbered, dated and providing for their respective series of First Mortgage Bonds, all as set forth in the tabulation below (the First Mortgage as amended and supplemented by the First through the Fortieth Supplemental Indentures is hereinafter called the First Mortgage as amended): Principal Supplemental Series Amount Indenture Dated As Of Provided For Outstanding - ------------ ------------ ------------ ----------- First March 1, 1937 3.25% Series None Due 1962 Second January 1, 1940 3% Series None Due 1970 Third October 1, 1945 2.75% Series None Due 1975 Fourth January 1, 1948 3% Series None Due 1978 Fifth December 1, 1948 3% Series A None Due 1978 Sixth February 1, 1952 3.25% Series None Due 1982 Seventh September 1, 1954 3% Series None Due 1984 Eighth November 1, 1957 5% Series None Due 1987 Ninth March 1, 1960 5.125% Series None Due 1990 Tenth June 1, 1963 4.45% Series None Due 1993 Eleventh May 1, 1967 5.625% Series None Due 1997 Twelfth June 15, 1968 6.75% Series None Due 1998 -2- Principal Supplemental Series Amount Indenture Dated As Of Provided For Outstanding - ------------ ----------- ------------ ----------- Thirteenth October 1, 1969 8.25% Series None Due 1999 Fourteenth June 1, 1970 9.5% Series None Due 2000 Fifteenth August 1, 1971 8.125% Series None Due 2001 Seventeenth November 1, 1973 8% Series None Due 2003 Eighteenth October 1, 1974 10.125% Series None Due 1981 Nineteenth August 1, 1975 10.70% Series None Due 2005 Twentieth November 15, 1976 8.75% Series None Due 2006 Twenty-First April 15, 1977 6.35% Series $11,800,000 Due 2007 Twenty-Second October 15, 1977 8.5% Series None Due 2007 Twenty-Third April 1, 1978 8.95% Series None Due 1998 Twenty-Fourth November 1, 1978 9.5% Series None Due 2003 Twenty-Fifth August 1, 1979 10.25% Series None Due 1999 Twenty-Sixth December 1, 1979 12.125% Series None Due 2009 Twenty-Seventh February 1, 1981 14.625% Series None Due 1988 Twenty-Eighth February 18, 1981 14.5% Series None Due 1988 Twenty-Ninth September 1, 1981 17% Series None Due 1991 Thirtieth March 1, 1982 16.75% Series None Due 2012 Thirty-First November 1, 1982 11.5% Series None Due 2012-A Thirty-Second November 1, 1982 11.5% Series None Due 2012-B -3- Principal Supplemental Series Amount Indenture Dated As Of Provided For Outstanding - ------------ ----------- ------------ ----------- Thirty-Third December 1, 1985 9.5% Series None Due 2015 Thirty-Fourth April 1, 1986 9% Series None Due 2016 Thirty-Fifth December 1, 1986 8.875% Series None Due 2016 Thirty-Sixth August 15, 1992 6.40% Pollution $32,300,000 Control Series 1992-A Due 2027 6.40% Pollution $27,800,000 Control Series 1992-B Due 2027 Thirty-Seventh November 15, 1992 6.50% Pollution $48,000,000 Control Series 1992-C Due 2022 Thirty-Eighth November 15, 1992 8.40% Series $225,000,000 Due 2022 Thirty-Ninth January 15, 1993 8.15% Series $226,000,000 Due 2026 Fortieth February 15, 1993 7.875% Series $220,000,000 Due 2024 Whereas, the Company, by resolutions duly adopted by its Board of Directors, has determined to make a certain amendment hereinafter set forth in the terms and provisions of the First Mortgage as amended; and Whereas, Article Eighteen of the First Mortgage as amended provides that the Company and the Trustee may from time to time enter into one or more indentures supplemental to the First Mortgage for the purpose of curing any ambiguity or of curing or correcting any defective provisions, contained in the First Mortgage or in any supplemental indenture; and Whereas, the Company has requested the Trustee, pursuant to Section 1 of Article Eighteen of the First Mortgage as amended, to enter into this Forty-First Supplemental Indenture for the purpose of curing an ambiguity or of curing or correcting a defective provision in Section 3 of Article Eleven of the First Mortgage as amended; and -4- Whereas, by said resolutions the Board of Directors of the Company duly approved the form, terms and provisions of this Forty-First Supplemental Indenture and duly authorized and directed the execution by the Company of an indenture in the form and having the terms and the provisions so approved; and Whereas, all things necessary to make this Indenture a valid and binding agreement supplemental to the First Mortgage, have been done and performed. ARTICLE ONE. Amendment of the First Mortgage. That part of the first paragraph of Section 3 of Article Eleven of the First Mortgage as amended which precedes subdivision (1) of said Section is hereby restated so as to read as follows: "So long as the Company is not in default under any of the provisions of this Indenture, the Company may obtain the release of any of the mortgaged and pledged property, including, without limiting the generality of the foregoing, any one or more of the Company's heating, gas or water properties substantially as an entirety (provided, however, that the electric property of the Company shall not in any event be released substantially as an entirety and, further, that prior lien bonds deposited with the Trustee shall not be released except as provided in Article Nine hereof), and the Trustee shall release the same from the lien hereof upon the application of the Company and receipt by the Trustee of" ARTICLE TWO. Miscellaneous. SECTION 1. The provisions of this Forty-First Supplemental Indenture shall become effective immediately upon the execution and delivery hereof. From and after such time, this Forty-First Supplemental Indenture shall form a part of the First Mortgage as amended and all the terms and conditions hereof shall be deemed to be part of the terms of the First Mortgage as amended, as fully and with the same effect as if they had been set forth in the First Mortgage as originally executed. Except as modified or amended by this Forty-First Supplemental Indenture, the First Mortgage as amended shall remain and continue in full force and effect in accordance with the terms and provisions thereof, and all the covenants, conditions, terms and provisions of the First Mortgage as amended with respect to the Trustee shall remain in full force and effect and be applicable to the Trustee under this Forty-First Supplemental Indenture in the same manner as though set out herein at length. All representations and recitals contained in this Forty-First Supplemental Indenture are made by and on behalf of the Company, and the Trustee is in no way responsible therefor or for any statement therein contained. -5- SECTION 2. The terms defined in Article One of the First Mortgage as amended, when used in this Forty-First Supplemental Indenture, shall, respectively, have the meanings set forth in such Article. SECTION 3. This Forty-First Supplemental Indenture may be executed in several counterparts and each counterpart shall be an original instrument. In Witness Whereof, The Dayton Power and Light Company has caused this instrument to be signed on its behalf by its President or a Vice President and its corporate seal to be hereunto affixed and attested by its Secretary or an Assistant Secretary, in the City of Dayton, Ohio, and The Bank of New York has caused this instrument to be signed on its behalf by a Vice President or an Assistant Vice President and its corporate seal to be hereunto affixed and attested by an Assistant Treasurer, in The City of New York, New York, as of the day and year first above written. The Dayton Power and Light Company [SEAL] By: /s/James P. Torgerson ---------------------------------- Attest: /s/Stephen F. Koziar Jr. - ------------------------ Signed and acknowledged in our presence by The Dayton Power and Light Company. Name: /s/Michael D. Lopez - ------------------------- Name: /s/Timothy G. Rice - ------------------------ -6- The Bank of New York [SEAL] By: /s/Michael Culhane ---------------------- Attest: /s/Mary Beth Lewicki - -------------------- Signed and acknowledged in our presence by The Bank of New York. Name: /s/Patrick O'Leary - ------------------------ Name: /s/Anthony M. Hitchman - ---------------------------- -7- State of Ohio, ) ss.: County of Montgomery, ) On this first day of February, 1999, personally appeared before me, a Notary Public within and for said County in the State aforesaid, James P. Torgerson, and Stephen F. Koziar, to me known and known to me to be, respectively, a Vice President, CFO and Treasurer and the Group Vice President and Secretary of The Dayton Power and Light Company, one of the corporations which executed the foregoing instrument, who severally acknowledged that they did sign and seal said instrument as such Vice President, CFO and Treasurer and Group Vice President and Secretary for and on behalf of said corporation and that the same is their free act and deed as such Vice President, CFO and Treasurer and Group Vice President and Secretary , respectively, and the free and corporate act and deed of said corporation; and said Stephen F. Koziar, being by me duly sworn, did depose and say: that he resides in Montgomery County; that he is a Group Vice President and Secretary of The Dayton Power and Light Company, one of the corporations described in and which executed the above instrument; that he knows the seal of said corporation; that the seal affixed to said instrument is such corporate seal; that it was so affixed by order of the Board of Directors of said corporation; and that he signed his name thereto by like order. In Witness Whereof I have hereunto set my hand and official seal. [SEAL] /s/Timothy G. Rice ------------------ State of New York, ) ss.: County of New York, ) On this second day of February, 1999, personally appeared before me, a Notary Public within and for said County in the State aforesaid, Michael Culhane and Mary Beth Lewicki, to me known and known to me to be, respectively, a Vice President and an Assistant Vice President of The Bank of New York, one of the corporations which executed the foregoing instrument, who severally acknowledged that they did sign and seal said instrument as such Vice President and Assistant Vice President for and on behalf of said corporation and that the same is their free act and deed as such Vice President and Assistant Vice President, respectively, and the free and corporate act and deed of said corporation; and said Michael Culhane being by me duly sworn, did depose and say: that he resides in Brooklyn, New York; that he is a Vice President, of The Bank of New York, one of the corporations described... -8- ...in and which executed the above instrument; that he knows the seal of said corporation; that the seal affixed to said instrument is such corporate seal; that it was so affixed by order of the Board of Directors of such corporation; and that he signed his name thereto by like order. In Witness Whereof I have hereunto set my hand and official seal. [SEAL] /s/William J. Cassels --------------------- This instrument prepared by /s/Timothy G. Rice ---------------------------------- Senior Counsel The Dayton Power and Light Company 1065 Woodman Drive Dayton, Ohio 45432 -9-