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: