Exhibit 10(a)


 


AMENDMENT NO. 1 TO CREDIT AGREEMENT


 


This
Amendment No. 1 to Credit Agreement (this “Amendment”) is dated as
of April 9, 2009, by and among THE DAYTON POWER AND LIGHT COMPANY, an Ohio
corporation (the “Borrower”), the lending institutions party to the
Credit Agreement, as hereinafter defined (the “Lenders”), and KEYBANK
NATIONAL ASSOCIATION, a national banking association, as administrative agent
for the Lenders (the “Administrative Agent”).


 


WHEREAS,
the Borrower, the Administrative Agent and the Lenders are parties to that
certain Credit Agreement, dated as of November 21, 2006, which provides,
among other things, for revolving loans, all upon certain terms and conditions
stated therein (as amended, restated or otherwise modified from time to time,
the “Credit Agreement”);


 


WHEREAS,
the Borrower has requested, and the Administrative Agent and the Lenders have
agreed, to amend the Credit Agreement to modify certain provisions thereof;


 


NOW,
THEREFORE, in consideration of the premises and of the mutual covenants herein
contained and for other valuable considerations, the Borrower, the
Administrative Agent and the Lenders hereby agree as follows:


 


Section 1.  Definitions.  Each capitalized term used herein and not
otherwise defined in this Amendment shall be defined in accordance with the
Credit Agreement.


 


Section 2.  Amendments to Credit Agreement.


 


2.1                               Amendments to Section 1.1.  Section 1.1 of the Credit Agreement is
hereby amended to amend and restate the definitions of “Applicable Facility
Fee Rate,” “Applicable Margin,” “Base Rate” and “Unfunded
Liabilities” in their entirety as follows:


 


“Applicable Facility Fee Rate” means,
on any date of determination, a rate that is determined based upon the S&P
Rating, the Moody’s Rating or the Fitch Rating, as follows:


 


	
  S&P
  Rating

  	
   

  	
  Moody’s Rating

  	
   

  	
  Fitch Rating

  	
   

  	
  Applicable Facility

  Fee Rate

  	
   

  
	
  A– or higher

  	
   

  	
  A3 or higher

  	
   

  	
  A– or higher

  	
   

  	
  30.00 basis points

  	
   

  
	
  BBB+

  	
   

  	
  Baa1

  	
   

  	
  BBB+

  	
   

  	
  35.00 basis points

  	
   

  
	
  BBB

  	
   

  	
  Baa2

  	
   

  	
  BBB

  	
   

  	
  40.00 basis points

  	
   

  
	
  BBB–

  	
   

  	
  Baa3

  	
   

  	
  BBB–

  	
   

  	
  50.00 basis points

  	
   

  
	
  Lower than BBB-

  	
   

  	
  Lower than Baa3

  	
   

  	
  Lower than BBB-

  	
   

  	
  62.50 basis points

  	
   

  



 


If at any time each Rating Agency issues a
different rating, then the Applicable Facility Fee Rate shall be determined
based on the intermediate rating at such time. 
If at any time two Rating Agencies issue the same rating, which is
different than the other Rating Agency, the rating issued by such other Rating
Agency shall be disregarded, and the Applicable Facility Fee Rate shall be
determined based on the two identical ratings at such time.  If there is no S&P Rating and Fitch
Rating, then the Applicable Facility Fee 


 

















 


Rate shall be determined
based on the Moody’s Rating.  If there is
no Moody’s Rating and Fitch Rating, then the Applicable Facility Fee Rate shall
be determined based on the S&P Rating. 
If there is no Moody’s Rating and S&P Rating, then the Applicable
Facility Fee Rate shall be determined based on the Fitch Rating.  If at any time only two Rating Agencies issue
a rating and there is a difference of two or more rating levels between such
Rating Agencies, then the Applicable Facility Fee Rate  shall
be determined based on the intermediate rating levels at the midpoint between
the ratings issued by such Rating Agencies at such time or, if there is no
midpoint, based on the higher intermediate level.  If (i) there is no S&P Rating, Moody’s
Rating and Fitch Rating or (ii) an Event of Default has occurred and is
continuing, the Applicable Facility Fee Rate shall be the highest rate per
annum indicated therefor in the above table. 
The S&P Rating, Moody’s Rating and Fitch Rating in effect on any
date for purposes of determining the Applicable Facility Fee Rate shall be that
S&P Rating, Moody’s Rating and Fitch Rating in effect at the close of
business on such date.  Each change in
the Applicable Facility Fee Rate resulting from a publicly announced change in
the S&P Rating, the Fitch Rating and/or the Moody’s Rating shall be
effective during the period commencing on the date of the public announcement
thereof and ending on the date immediately preceding the effective date of the
next change.


 


 “Applicable
Margin” means, on any date of determination, a rate that is determined,
based upon the S&P Rating, the Moody’s Rating or the Fitch Rating, as
follows:


 


	
  S&P
  Rating

  	
   

  	
  Moody’s Rating

  	
   

  	
  Fitch Rating

  	
   

  	
  Applicable

  Margin for

  Eurodollar Loans

  	
   

  	
  Applicable

  Margin for Base

  Rate Loans

  	
   

  
	
  A– or higher

  	
   

  	
  A3 or higher

  	
   

  	
  A– or higher

  	
   

  	
  200.00 basis points

  	
   

  	
  100.0 basis points

  	
   

  
	
  BBB+

  	
   

  	
  Baa1

  	
   

  	
  BBB+

  	
   

  	
  225.00 basis points

  	
   

  	
  125.0 basis points

  	
   

  
	
  BBB

  	
   

  	
  Baa2

  	
   

  	
  BBB

  	
   

  	
  250.00 basis points

  	
   

  	
  150.0 basis points

  	
   

  
	
  BBB-

  	
   

  	
  Baa3

  	
   

  	
  BBB-

  	
   

  	
  275.00 basis points

  	
   

  	
  175.0 basis points

  	
   

  
	
  Lower than BBB-

  	
   

  	
  Lower than Baa3

  	
   

  	
  Lower than BBB-

  	
   

  	
  300.00 basis points

  	
   

  	
  200.0 basis points

  	
   

  



 


If at any time each Rating Agency issues a different
rating, then the Applicable Margin shall be determined based on the
intermediate rating at such time.  If at
any time two Rating Agencies issue the same rating, which is different than the
other Rating Agency, the rating issued by such other Rating Agency shall be
disregarded, and the Applicable Margin shall be determined based on the two
identical ratings at such time.  If there
is no S&P Rating and Fitch Rating, then the Applicable Margin shall be
determined based on the Moody’s Rating. 
If there is no Moody’s Rating and Fitch Rating, then the Applicable
Margin shall be determined based on the S&P Rating.  If there is no Moody’s Rating and S&P
Rating, then the Applicable Margin shall be determined based on the Fitch
Rating.  If at any time only two Rating
Agencies issue a rating and there is a difference of two or more rating levels
between such Rating Agencies, then the Applicable Margin shall be determined
based on the intermediate rating levels at the midpoint between the ratings
issued by such Rating Agencies at such time or, if there is 


 


2

















 


no midpoint, based on the
higher intermediate level.  If (i) there
is no S&P Rating, Moody’s Rating and Fitch Rating or (ii) an Event of
Default has occurred and is continuing, the Applicable Margin shall be the
highest rate per annum indicated therefor in the above table.  The S&P Rating, Moody’s Rating and Fitch
Rating in effect on any date for purposes of determining the Applicable Margin
shall be that S&P Rating, Moody’s Rating and Fitch Rating in effect at the
close of business on such date.  Each
change in the Applicable Margin resulting from a publicly announced change in
the S&P Rating, the Fitch Rating and/or the Moody’s Rating shall be
effective during the period commencing on the date of the public announcement
thereof and ending on the date immediately preceding the effective date of the
next change.


 


“Base Rate” means, for any day, a fluctuating interest rate
per annum as shall be in effect from time to time which rate per annum shall at
all times be equal to the greatest of:  (i) the
rate of interest established by KeyBank in Cleveland, Ohio, from time to time,
as its “prime rate,” whether or not publicly announced, which interest rate may
or may not be the lowest rate charged by it for commercial loans or other
extensions of credit; (ii) the Federal Funds Effective Rate in effect from
time to time, determined one Business Day in arrears, plus 1/2 of 1% per
annum; and (iii) the Adjusted Eurodollar Rate that would be applicable for
a Eurodollar Loan requested two Business Days prior to such date with a one
month interest period, plus 1.00% per annum.


 


“Unfunded Liabilities” means the
amount, if any, by which the present value of all vested and unvested accrued
benefits under all Single Employer Plans exceeds the fair market value of all
such Plan assets allocable to such benefits, all as set forth in the then most
recent annual actuarial valuation report for such Plans provided to the
Borrower or any of its Subsidiaries using the actuarial assumptions set forth
in such report and permitted by applicable law or, in the context of a notice
of intent to terminate, or termination of, a Plan, determined as of the date of
the Plan’s termination using PBGC actuarial assumptions for Plan terminations.


 


2.2                               Amendments to Section 9.1.  Section 9.1(i) of the Credit Agreement
is hereby amended and restated in its entirety as follows:


 


(i)            ERISA:  (i) any
member of the Borrower’s Controlled Group shall fail to pay when due an amount
or amounts aggregating in excess of $30,000,000 which it shall have become
liable to pay under Title IV of ERISA, or notice of intent to terminate a Plan
or Plans of such Borrower which in the aggregate have Unfunded Liabilities in
excess of $30,000,000 shall be filed under Title IV of ERISA by such Borrower
or any member of the Controlled Group, any plan administrator of the Plan or
Plans or any combination of the foregoing or any Reportable Event that would
reasonably be expected to have a Material Adverse Effect shall occur in
connection with any Plan; (ii) the Borrower or any member of the
Controlled Group shall have been notified by the sponsor of a Multiemployer
Plan that it has incurred withdrawal liability to such Multiemployer Plan in an
amount that, when aggregated with all other amounts required to be paid to
Multiemployer Plans by the Borrower or any other member of the Controlled Group
as withdrawal liability (determined as of the date of such notification),
exceeds $10,000,000 or requires payment exceeding $10,000,000 per annum; or (iii) the
Borrower or any other member of the Controlled Group shall have been notified
by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in
reorganization or is being terminated, within the meaning of Title IV of ERISA,
if as a result of such reorganization or termination the aggregate annual
contribution of the Borrower and the other members 


 


3

















 


of the Controlled Group (taken as a whole) to all Multiemployer Plans
that are then in reorganization or being terminated have been or will be
increased over the amounts contributed to such Multiemployer Plans for the
respective plan years of each such Multiemployer Plan immediately preceding the
plan in year in which the reorganization or termination occurs by an amount
exceeding $10,000,000; or


 


Section 3.  Effectiveness.


 


3.1                               Conditions
Precedent.  The
effectiveness of this Amendment is subject to the satisfaction of the following
conditions precedent:


 


(i)            Amendment
Executed.  This Amendment shall have
been executed by the Borrower, the Administrative Agent and the Required
Lenders, and counterparts hereof as so executed shall have been delivered to
the Administrative Agent.


 


(ii)           Fees, etc.  The Borrower shall have paid (i) an
amendment fee to the Administrative Agent, for the pro rata benefit of each
Lender executing this Amendment based on the Commitment of such Lender, in an
amount equal to 25 basis points times the amount of such Lender’s
Commitment, (ii) to the Administrative Agent for its own account, the fees
separately agreed to between the Borrower and the Administrative Agent, and (iii) all
reasonable out-of-pocket fees and expenses of the Administrative Agent and of
special counsel to the Administrative Agent in connection with the preparation,
negotiation, execution and delivery of this Amendment.


 


3.2                               Effective Date.  This Amendment shall be effective on the date
upon which the conditions precedent set forth in Section 3.1 above are
satisfied.  Unless otherwise specifically
set forth herein, each of the amendments and other modifications set forth in
this Amendment shall be effective on and after such date.


 


Section 4.  Representations and Warranties.  The Borrower hereby represents and warrants
to the Administrative Agent and the Lenders that (a) it has the legal
power and authority to execute and deliver this Amendment, (b) the officer
executing this Amendment on its behalf has been duly authorized to execute and
deliver the same and bind it with respect to the provisions hereof, (c) no
Default or Event of Default exists under the Credit Agreement, nor will any
occur immediately after the execution and delivery of this Amendment, and (d) as
of the date hereof, such it has no claim or offset against, or defense or
counterclaim to, its obligations or liabilities under the Credit Agreement or
any other Credit Document.


 


Section 5.  Miscellaneous.


 


5.1           Credit Agreement Unaffected.  Each reference that is made in the Credit
Agreement or any Credit Document to the Credit Agreement shall hereafter be
construed as a reference to the Credit Agreement, as amended hereby.  Except as herein otherwise specifically
provided, all provisions of the Credit Agreement shall remain in full force and
effect and be unaffected hereby.  This
Amendment is a Credit Document.


 


5.2           Counterparts.        This Amendment may be executed in any
number of counterparts, by different parties hereto in separate counterparts
and by facsimile signature, each of which when so executed and delivered shall
be deemed to be an original and all of which taken together shall constitute
but one and the same agreement.


 


4

















 


5.3           Expenses.  The Borrower agrees to pay on demand all
costs and expenses incurred by the Administrative Agent in connection with the
preparation, negotiation and execution of this Amendment, including without
limitation, the reasonable costs, fees, expenses and disbursements of the
Administrative Agent’s legal counsel.


 


5.4           Severability.  Any term or provision of this Amendment held
by a court of competent jurisdiction to be invalid or unenforceable shall not
impair or invalidate the remainder of this Amendment, and the effect thereof
shall be confined to the term or provision so held to be invalid or
unenforceable.


 


5.5           Entire Agreement.  This Amendment is specifically limited to the
matters expressly set forth herein.  This
Amendment and all other instruments, agreements and documents executed and
delivered in connection with this Amendment embody the final, entire agreement
among the parties hereto with respect to the subject matter hereof and
supersede any and all prior commitments, agreements, representations and
understandings, whether written or oral, relating to the matters covered by
this Amendment, and may not be contradicted or varied by evidence of prior,
contemporaneous or subsequent oral agreements or discussions of the parties
hereto.  There are no oral agreements
among the parties hereto relating to the subject matter hereof or any other
subject matter relating to the Credit Agreement.


 


5.6           Governing Law.  The rights and obligations of all parties
hereto shall be governed by the laws of the State of New York, without regard
to principles of conflicts of laws.


 


5.7           JURY TRIAL WAIVER.  THE BORROWER, THE ADMINISTRATIVE AGENT AND
EACH OF THE LENDERS HEREBY WAIVE ANY RIGHT TO HAVE A JURY PARTICIPATE IN
RESOLVING ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE, AMONG
THE BORROWER, THE ADMINISTRATIVE AGENT AND THE LENDERS, OR ANY THEREOF, ARISING
OUT OF, IN CONNECTION WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP
ESTABLISHED AMONG THEM IN CONNECTION WITH THIS AMENDMENT OR ANY NOTE OR OTHER
INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH
OR THE TRANSACTIONS RELATED THERETO.


 


[Signature Pages Follow.]


 


5

















 


	
   

  	
  THE
  DAYTON POWER AND LIGHT COMPANY

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
  KEYBANK
  NATIONAL ASSOCIATION,

  
	
   

  	
    as a Lender, LC Issuer and as the
  Administrative Agent

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
  JPMORGAN
  CHASE BANK, N.A.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  FIFTH
  THIRD BANK

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


6