UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (date of earliest event reported): August 10, 2000
DUKE ENERGY FIELD SERVICES, LLC
(Exact name of registrant as specified in its charter)
Delaware 0-31095 76-032293
(State of Organization) (Commission File Number) (I.R.S. Employer
Identification Number)
370 17th Street, Suite 900 80202
Denver, Colorado (Zip Code)
(Address of principal executive offices)
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Registrant's telephone number, including area code: (303) 595-3331
ITEM 5. OTHER EVENTS
On August 10, 2000, Duke Energy Field Services, LLC (the "Company") entered into an underwriting agreement with the underwriters named therein to sell $600,000,000 aggregate principal amount of 7 1/2% Notes due 2005, $800,000,000 aggregate principal amount of 7 7/8% Notes due 2010 and $300,000,000 aggregate principal amount of 8 1/8% Notes due 2030.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
Exhibit No. Description of Exhibit
1.1 Underwriting Agreement among Duke Energy Field Services, LLC
and the Underwriters named therein dated as of August 10,
2000.
3.1 First Amendment to Amended and Restated Limited Liability
Company Agreement of Duke Energy Field Services, LLC dated
as of August 4, 2000.
4.1 First Supplemental Indenture between Duke Energy Field
Services, LLC and The Chase Manhattan Bank, as trustee, dated
as of August 16, 2000.
4.2 Form of 7 1/2% Notes due 2005 (included in Exhibit 4.1 as
Exhibit A thereto).
4.3 Form of 7 7/8% Notes due 2010 (included in Exhibit 4.1 as
Exhibit B thereto).
4.4 Form of 8 1/8% Notes due 2030 (included in Exhibit 4.1 as
Exhibit C thereto).
10.1 Second Amendment to Parent Company Agreement among Phillips
Petroleum Company, Duke Energy Corporation, Duke Energy Field
Services, LLC and Duke Energy Field Services Corporation dated
as of August 4, 2000.
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
Dated: August 16, 2000
DUKE ENERGY FIELD SERVICES, LLC
By: /s/ DAVID D. FREDERICK
------------------------------------
Name: David D. Frederick
Title: Senior Vice President and Chief
Financial Officer
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INDEX TO EXHIBITS
EXHIBIT
NO. DESCRIPTION
------- -----------
1.1 Underwriting Agreement among Duke Energy Field Services, LLC
and the Underwriters named therein dated as of August 10,
2000.
3.1 First Amendment to Amended and Restated Limited Liability
Company Agreement of Duke Energy Field Services, LLC dated
as of August 4, 2000.
4.1 First Supplemental Indenture between Duke Energy Field
Services, LLC and The Chase Manhattan Bank, as trustee, dated
as of August 16, 2000.
4.2 Form of 7 1/2% Notes due 2005 (included in Exhibit 4.1 as
Exhibit A thereto).
4.3 Form of 7 7/8% Notes due 2010 (included in Exhibit 4.1 as
Exhibit B thereto).
4.4 Form of 8 1/8% Notes due 2030 (included in Exhibit 4.1 as
Exhibit C thereto).
10.1 Second Amendment to Parent Company Agreement among Phillips
Petroleum Company, Duke Energy Corporation, Duke Energy Field
Services, LLC and Duke Energy Field Services Corporation dated
as of August 4, 2000.
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EXHIBIT 1.1
DUKE ENERGY FIELD SERVICES, LLC
$600,000,000
7 1/2% NOTES DUE 2005
$800,000,000
7 7/8% NOTES DUE 2010
$300,000,000
8 1/8% NOTES DUE 2030
August 10, 2000
GLOBAL UNDERWRITING AGREEMENT
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
J.P. MORGAN SECURITIES INC.
As representatives of the several Underwriters
named in Schedule I hereto,
c/o J.P. Morgan Securities Inc.,
60 Wall Street,
New York, New York 10260-0060
Dear Sirs:
Duke Energy Field Services, LLC, a Delaware limited liability company (the "Company"), proposes, subject to the terms and conditions stated herein, to issue and sell to the several underwriters named in Schedule I hereto (the "Underwriters") $600,000,000 aggregate principal amount of 7 1/2% Notes due 2005 (the "2005 Notes"), $800,000,000 aggregate principal amount of 7 7/8% Notes due 2010 (the "2010 Notes") and $300,000,000 aggregate principal amount of 8 1/8% Notes due 2030 (the "2030 Notes" and, together with the 2005 and the 2010 Notes, the "Notes"), to be issued pursuant to the provisions of an Indenture, dated as of August 16, 2000, between the Company and The Chase Manhattan Bank, as Trustee, as supplemented by a supplemental indenture dated as of August 16, 2000, relating to the Notes (the "Indenture").
1. The Company represents and warrants to, and agrees with, each of the Underwriters that:
(a) A registration statement (No. 333-41854) in respect of the Notes (as amended by Amendment No. 1, filed on August 2, 2000) has been filed on Form S-3 with the Securities and Exchange Commission (the "Commission") under the Securities Act of 1933, as amended (the "Act"); such registration statement and any post-effective amendment thereto, each in the form heretofore delivered to you, and including exhibits thereto and all documents incorporated by reference in the prospectus contained therein (including the Registration Statement on Form 10 (No. 0-31095) (the "Form 10"), as amended on August 2, 2000, filed under the
Securities Exchange Act of 1934, as amended (the "1934 Act")), has been declared effective by the Commission in such form; no other document with respect to such registration statement or any document incorporated by reference therein has heretofore been filed with the Commission which has not been delivered to you; no stop order suspending the effectiveness of such registration statement has been issued and no proceeding for that purpose has been initiated or threatened by the Commission; and the Company has filed, or proposes to file, with the Commission pursuant to Rule 424 of the Act a prospectus supplement specifically relating to the Notes (the various parts of the registration statement, including all exhibits thereto and including the documents incorporated by reference in the prospectus contained in the registration statement at the time such part of the registration statement became effective, as amended to the date hereof, being hereinafter called the "Registration Statement"; the related prospectus contained in the Registration Statement, at the time it became effective, being hereinafter called the "Basic Prospectus"; and the Basic Prospectus, as supplemented by the prospectus supplement specifically relating to the Notes, in the form first used to confirm sales, being hereinafter called the "Prospectus"; and any reference herein to the Registration Statement or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein, as of the date of the Registration Statement or Prospectus, as the case may be; any reference to any amendment or supplement to any Registration Statement or Prospectus shall be deemed to refer to and include any documents filed after the date of the Registration Statement or Prospectus under the 1934 Act and incorporated by reference in such Prospectus; and any reference to any amendment to the Registration Statement shall be deemed to refer to and include any report of the Company filed pursuant to Section 13(a) or 15(d) of the 1934 Act after the effective date of the Registration Statement that is incorporated by reference in the Registration Statement). If the Company has filed an abbreviated registration statement to register additional Notes pursuant to Rule 462(b) under the Act (the "Rule 462 Registration Statement"), then any reference herein to the term "Registration Statement" shall be deemed to include such Rule 462 Registration Statement.
(b) No order preventing or suspending the use of the Registration Statement or Basic Prospectus has been issued by the Commission, and each of the Registration Statement (at the time it was declared effective) and the Basic Prospectus (at the time of filing thereof) conformed in all material respects to the requirements of the Act and the respective rules and regulations of the Commission thereunder.
(c) The Registration Statement and the Basic Prospectus conform and the Prospectus will conform in all material respects to the requirements of the Act and, as applicable, to the Trust Indenture Act of 1939, and the respective rules and regulations thereunder, and the Registration Statement and the Prospectus do not and the Prospectus will not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, except that this representation and warranty
shall not apply to statements or omissions made in any such document in reliance upon and in conformity with information relating to the Underwriters furnished in writing to the Company by an Underwriter through you expressly for use therein.
(d) The documents incorporated by reference in the Registration Statement or the Prospectus, at the time they were filed with the Commission, conformed in all material respects to the requirements of the 1934 Act and the rules and regulations of the Commission thereunder (the "1934 Act Regulations"), and, when read together with the other information in the Registration Statement and the Prospectus, do not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and any documents deemed to be incorporated by reference in the Prospectus will, when they are filed with the Commission, comply in all material respects with the requirements of the 1934 Act and the 1934 Act Regulations, and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they are made, not misleading.
(e) This Agreement has been duly authorized, executed and delivered by the Company. The compliance by the Company with all of the provisions of this Agreement, the Indenture and the Notes, and the consummation of the transactions herein and therein contemplated, will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company or any entity in which the Company owns at least 50% of the capital stock or other interests or voting securities or voting interests (each such entity, a "subsidiary") is a party or by which the Company or any of its subsidiaries or their respective property is bound or to which any of the property or assets of the Company or any of its subsidiaries is subject, in each case that is material to the Company and its subsidiaries taken as a whole; nor will such action result in any violation of the provisions of the Restated Certificate of Formation or the Amended and Restated Limited Liability Company Agreement and the First Amendment, dated August 4, 2000, thereto of the Company or similar organizational documents of any of its subsidiaries or any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Company or its subsidiaries or any of their respective properties; and no consent, approval, authorization, order, registration or qualification of or with any such court or governmental agency or body is required for the consummation by the Company of the transactions contemplated by this Agreement, the Indenture or the Notes, except the registration under the Act of the Notes and such consents, approvals, authorizations, registrations or qualifications as may be required under state or foreign securities or Blue Sky laws in connection with the purchase and distribution of the Notes by the Underwriters.
(f) The Company has been duly formed, is validly existing as a limited liability company in good standing under the laws of the jurisdiction of its formation, has the limited liability company power and authority to own its property and to conduct its business as described in the Prospectus and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a material adverse effect on the Company and its subsidiaries, taken as a whole.
(g) Each subsidiary has been duly incorporated or formed, is validly existing as a corporation (or limited liability company, as the case may be) in good standing under the laws of the jurisdiction of its incorporation or formation, has the corporate (or limited liability company) power and authority to own its property and to conduct its business as described in the Prospectus and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing or to have such power and authority singly or in the aggregate would not have a material adverse effect on the Company and its subsidiaries, taken as a whole; all of the issued shares of capital stock (or limited liability company interests) of each wholly-owned subsidiary of the Company have been duly and validly authorized and issued, are fully paid and non-assessable; and the issued shares of capital stock (or limited liability company interests) of each subsidiary of the Company that are owned directly by the Company (or if not owned directly by the Company, are owned by a subsidiary of the Company), are so owned free and clear of all liens, encumbrances, equities or claims.
(h) There has not occurred any material adverse change, or any development involving a prospective material adverse change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Prospectus (exclusive of any amendments or supplements thereto subsequent to the date of this Agreement).
(i) The Company and its subsidiaries: (i) are in compliance with any and all applicable foreign, federal, state and local laws and regulations relating to the protection of human health and safety, the environment or hazardous or toxic substances or wastes, pollutants or contaminants ("Environmental Laws"); (ii) have received all permits, licenses or other approvals required of them under applicable Environmental Laws to conduct their respective businesses; and (iii) are in compliance with all terms and conditions of any such permit, license or approval, except where such noncompliance with Environmental Laws, failure to receive required permits, licenses or other approvals or failure to comply with the terms and conditions of such permits, licenses or approvals would not, singly or in the aggregate, have a material adverse effect on the Company and its subsidiaries, taken as a whole.
(j) There are no costs or liabilities associated with Environmental Laws (including, without limitation, any capital or operating expenditures required for clean-up, closure of properties or compliance with Environmental Laws or any permit, license or approval, any related constraints on operating activities and any potential liabilities to third parties) that would, singly or in the aggregate, have a material adverse effect on the Company and its subsidiaries, taken as a whole.
(k) Deloitte & Touche LLP, Ernst & Young LLP and Arthur Andersen LLP, who have certified certain financial statements of the Company, its subsidiaries and predecessors, are independent public accountants as required by the Act and the rules and regulations of the Commission thereunder.
(l) The Company and its subsidiaries have good and marketable title to all real property and beneficial or record title to or interest in all pipeline easements, rights of way, licenses and land use permits owned by them, except where such failure would not, singly or in the aggregate, have a material adverse effect on the Company and its subsidiaries taken as a whole, in each case free and clear of all liens, encumbrances and defects except (i) such as are described in the Prospectus and (ii) liens securing taxes and other governmental charges or claims of materialmen, mechanics and similar persons that are not yet due and payable and that do not materially affect the value of such property and do not materially interfere with the use made and proposed to be made of such property by the Company and its subsidiaries; and any real property and buildings held under lease by the Company and its subsidiaries are held by them under leases that are valid, existing and in full force and effect, except as described in the Prospectus or where the failure to be valid, existing and in full force and effect would not have a material adverse effect on the Company and its subsidiaries, taken a whole.
(m) Except as described in the Registration Statement or the Prospectus, the Company and its subsidiaries possess all certificates, authorizations and permits issued by the appropriate federal, state or foreign regulatory authorities necessary to conduct their respective businesses except where such failure to possess required certificates, authorizations and permits would not, singly or in the aggregate, have a material adverse effect on the Company and its subsidiaries, taken as a whole, and neither the Company nor any of its subsidiaries has received any notice of proceedings relating to the revocation or modification of any such certificate, authorization or permit that, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would have a material adverse effect on the Company and its subsidiaries, taken as a whole.
(n) There are no legal or governmental proceedings pending or to the Company's knowledge threatened to which the Company or any of its subsidiaries is a party or to which any of the properties of the Company or any of its subsidiaries is subject that are required to be described in the Registration Statement or the Prospectus and are not so described or any statutes, regulations, contracts or other documents that are required to be described in the Registration
Statement or the Prospectus or to be filed as exhibits to the Registration Statement that are not described or filed as required.
(o) No material labor dispute with the employees of the Company or any of its subsidiaries exists, except as described in the Registration Statement or the Prospectus, or, to the knowledge of the Company, is imminent.
(p) There are no contracts, agreements or understandings between the Company and any person granting such person the right to require the Company (i) to file a registration statement under the Act with respect to any securities of the Company (except for contracts, agreements or understandings described in the Registration Statement or the Prospectus) or (ii) to include any such securities with the Notes registered pursuant to the Registration Statement.
(q) The statements from the Form 10 under the caption "Item 7. Certain Relationships and Related Transactions" incorporated by reference in the Prospectus and the statements in the Registration Statement under the caption "Description of Debt Securities" and in the Prospectus under the caption "Description of the Notes", in each case insofar as such statements constitute summaries of the documents or proceedings referred to therein, fairly present the information called for with respect to such documents and proceedings and fairly summarize the matters referred to therein.
(r) The Company is not a "holding company", or a "public-utility company", or a "subsidiary company" of a "holding company", as each such term is defined in the Public Utility Holding Company Act of 1935, as amended.
(s) The limited liability company member interests outstanding prior to the issuance of the Notes have been duly authorized and are validly issued.
(t) The Indenture has been duly authorized and duly qualified under the Trust Indenture Act of 1939 and when executed and delivered by the Company, assuming the due authorization, execution and delivery thereof by The Chase Manhattan Bank, as Trustee, will constitute a valid and legally binding instrument of the Company, enforceable against the Company in accordance with its terms, subject to the qualifications that the enforceability of the Company's obligations under the Indenture may be limited by bankruptcy, insolvency, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, and by general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).
(u) The Notes have been duly authorized, and when executed by the Company and, when authenticated by The Chase Manhattan Bank, as Trustee, in the manner provided in the Indenture and delivered against payment therefor, will constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms, subject to the qualifications that the enforceability of the Company's obligations under the Notes may be
limited by bankruptcy, insolvency, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, and by general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), and will be entitled to the benefits afforded by the Indenture in accordance with the terms of the Indenture and the Notes.
2. Subject to the terms and conditions herein set forth, the Company agrees to sell to each of the Underwriters, and each of the Underwriters agrees, severally and not jointly, to purchase from the Company the respective principal amount of each series of Notes, as applicable, set forth opposite the name of such Underwriter in Schedule I hereto, plus the respective principal amount of additional Notes of each series, as applicable, which each such Underwriter may become obligated to purchase pursuant to the provisions of Section 9 hereof, at a purchase price of (i) 99.023% of the principal amount of the 2005 Notes, (ii) 99.234% of the principal amount of the 2010 Notes and 98.768% of the principal amount of the 2030 Notes, plus, in each case, accrued interest from August 16, 2000.
3. Upon the authorization by you of the release of the Notes, the several Underwriters propose to offer the Notes for sale upon the terms and conditions set forth in the Prospectus.
4. The 2005 Notes, the 2010 Notes and the 2030 Notes, in each case, in the form of one or more global certificates and in aggregate denominations equal to the aggregate amount of each series of Notes, as applicable, upon original issuance and registered in the name of Cede & Co., as nominee for The Depository Trust Company ("DTC") or such other nominees as the Underwriters may designate upon at least 48 hours' prior notice to the Company, shall be delivered by or on behalf of the Company to you for the account of each Underwriter hereunder, against payment by such Under-writer or on its behalf of the purchase price therefor by wire transfer in immediately available funds to an account of the Company properly identified at least 48 hours in advance, at the office of Sullivan & Cromwell, 125 Broad Street, New York, New York 10004 or at such other place as you and the Company may determine. The time and date of such delivery and payment shall be, with respect to each series of Notes, 9:30 a.m., New York City time, on August 16, 2000, or such other time and date as you and the Company may agree upon in writing (the "Closing Date").
5. The Company covenants and agrees with the several Underwriters that:
(a) Before amending or supplementing the Registration Statement or the Prospectus, to furnish to you a copy of each such proposed amendment or supplement and not to file any such proposed amendment or supplement to which you reasonably object, and to file with the Commission within the applicable period specified in Rule 424(b) under the Act any prospectus required to be filed pursuant to such Rule.
(b) The Company will advise you promptly after it receives notice thereof of the institution by the Commission of any stop order proceedings in respect of
the Registration Statement, and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible its withdrawal, if issued.
(c) If at any time when a prospectus relating to the Notes is required to be delivered under the Act any event occurs as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact, or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company promptly will prepare and, subject to Section 5(a), file with the Commission an amendment, supplement or an appropriate document that will correct such statement or omission or that will effect such compliance.
(d) The Company, during the period when a prospectus relating to the Notes is required to be delivered under the Act, will timely file all documents required to be filed with the Commission pursuant to Section 13 or 14 of the 1934 Act.
(e) The Company will make generally available to its security holders, in each case as soon as practicable but not later than 60 days after the close of the period covered thereby, an earnings statement (in form complying with the provisions of Section 11(a) of the Act, which need not be certified by independent certified public accountants unless required by the Act) covering (i) a 12 month period beginning not later than the first day of the Company's fiscal quarter next following the effective date of the Registration Statement and (ii) a 12 month period beginning not later than the first day of the Company's fiscal quarter next following the date of this Agreement.
(f) The Company will furnish to you copies of the Registration Statement (three of which will be signed and will include all exhibits other than those incorporated by reference), the Prospectus, and all amendments and supplements to such documents, in each case as soon as available and in such quantities as you reasonably request.
(g) The Company will arrange or cooperate in arrangements for the qualification of the Notes for sale under the laws of the United States, each State thereof, the District of Columbia and such jurisdictions as you reasonably designate and will continue such qualifications in effect so long as required for the distribution; provided, however, that the Company shall not be required to qualify as a foreign company or to file any general consents to service of process under the laws of any state where it is not now so subject.
(h) The Company will not, during the period of seven days from the date hereof, sell, offer to sell, grant any option for the sale of, or otherwise dispose of any Notes, any security convertible into or exchangeable for the Notes or any debt security substantially similar to the Notes (except for the Notes issued pursuant to this Agreement), without your prior written consent.
6. The Company covenants and agrees with the several Underwriters that the Company will pay or cause to be paid the following:
(a) The fees, disbursements and expenses of the Company's counsel and accountants in connection with the registration of the Notes under the Act and all other expenses in connection with the preparation, printing and filing with the Commission of the Registration Statement, the Prospectus and amendments and supplements thereto and the mailing and delivering of copies thereof to the Underwriters and dealers.
(b) The cost of printing or producing any Agreement among Underwriters, this Agreement, the Indenture, the Selling Agreements, the Blue Sky memorandum, closing binders and any other documents in connection with the offering, purchase, sale and delivery of the Notes.
(c) All expenses in connection with the qualification of the Notes for offering and sale under state securities laws as provided in Section 5(g) hereof, including the fees and disbursements of counsel for the Underwriters in connection with such qualification and in connection with the Blue Sky survey.
(d) The filing fees and the reasonable fees and disbursements of counsel to the Underwriters incident to securing any required review by the National Association of Securities Dealers, Inc. of the terms of the sale of the Notes.
(e) The costs of any depository clearing and settlement arrangements for the Notes with DTC or any successor depository.
(f) All expenses incident to the issuance and delivery of the Notes as specified herein.
(g) Any fees charged by independent rating agencies for rating the Notes.
(h) The costs and expenses of the Company relating to investor presentations on any "road show" undertaken in connection with the marketing of the offering of the Notes, including, without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Company, travel and lodging expenses of the representatives and officers of the Company and any such consultants, and the cost of any aircraft chartered in connection with the road show.
(i) All other costs and expenses (other than as provided for in
Section 8) incident to the performance of the Company's obligations
hereunder that are not otherwise specifically provided for in this Section.
It is understood that, except as provided in this Section and Sections 8
and 10 hereof, the Underwriters will pay all of their own costs and
expenses, including the fees of their counsel, and any advertising expenses
connected with any offers they may make.
7. The obligations of the Underwriters to purchase and pay for the Notes shall be subject, in their discretion, to the condition that all representations and warranties of the Company herein and the statements of the officers of the Company made pursuant to the provisions hereof are, at and as of the Closing Date, true and correct, the condition that the Company shall have performed all of its obligations hereunder theretofore to be performed, and the following additional conditions:
(a) The Prospectus shall have been filed, if required, with the Commission pursuant to Rule 424(b) within the applicable time period prescribed for such filing by the rules and regulations under the Act; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or, to the knowledge of the Company, threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfaction.
(b) Sullivan & Cromwell, counsel for the Underwriters, shall have
furnished to you such opinion or opinions, dated the Closing Date,
generally with respect to the matters set forth in clause (c)(i), (c)(ii),
(c)(iii) and (c)(vi) and with respect to such other matters as are
reasonably requested by you, and such counsel shall have received such
papers and information as they may reasonably request to enable them to
pass upon such matters.
(c) Vinson & Elkins LLP, counsel for the Company, shall have furnished to you its written opinion, dated the Closing Date, in form and substance satisfactory to you, to the effect that:
(i) The Company is validly existing as a limited liability company in good standing under the laws of the jurisdiction of its formation, and has the limited liability company power and authority to own its property and to conduct its business as described in the Prospectus.
(ii) The Indenture has been duly authorized, executed and delivered by the Company and duly qualified under the Trust Indenture Act of 1939 and, assuming the due authorization, execution and delivery thereof by The Chase Manhattan Bank, as Trustee, constitutes a valid and legally binding instrument of the Company, enforceable against the Company in accordance with its terms, subject to the qualifications that the enforceability of the Company's obligations under the Indenture may be limited by bankruptcy, insolvency, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, and by general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).
(iii) The Notes have been duly authorized and executed by the Company and, when authenticated by The Chase Manhattan Bank, as
Trustee, in the manner provided in the Indenture and delivered against payment therefor, will constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms, subject to the qualifications that the enforceability of the Company's obligations under the Notes may be limited by bankruptcy, insolvency, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, and by general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), and are entitled to the benefits afforded by the Indenture in accordance with the terms of the Indenture and the Notes.
(iv) Each "Significant Subsidiary" of the Company (as such term is defined in Rule 1-02 of Regulation S-X) (each a "Significant Subsidiary" and, collectively, the "Significant Subsidiaries") is validly existing as a corporation (or limited liability company, as the case may be) in good standing under the laws of the jurisdiction of its incorporation or formation, and has the corporate (or limited liability company) power and authority to own its property and to conduct its business as described in the Prospectus.
(v) The Registration Statement has become effective under the Act, and, to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Act.
(vi) This Agreement has been duly authorized, executed and delivered by the Company.
(vii) The performance by the Company of this Agreement, the Indenture and the Notes, and the consummation of the transactions herein and therein contemplated will not contravene any of the provisions or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company or any of its subsidiaries is a party that in each case has been filed as an exhibit to the Registration Statement or any of the provisions of the Restated Certificate of Formation or the Amended and Restated Limited Liability Company Agreement and the First Amendment, dated August 4, 2000, thereto of the Company.
(viii) The Company is not and, after giving effect to the offering and sale of the Notes and the application of the proceeds thereof as described in the Prospectus, will not be required to register as an "investment company" under the Investment Company Act of 1940, as amended.
(ix) The Company is not, and after giving effect to the offering and sale of the Notes and the application of the proceeds thereof as described in the Prospectus will not be, required to register as a "holding company" under the Public Utility Holding Company Act of 1935, as amended.
(x) No authorization, approval, consent, order, registration or qualification of or with any court or governmental agency or body is legally required for the issue and sale of the Notes or the consummation by the Company of the transactions contemplated by this Agreement or the Indenture, except the registration under the Act of the Notes and the qualification of the indenture under Trust Indenture Act of 1939, and such consents, approvals, authorizations, orders, registrations and qualifications as may be required under state or foreign securities or Blue Sky laws in connection with the purchase and distribution of the Notes by the Underwriters.
(xi) The descriptions incorporated by reference in the Registration Statement and Prospectus from the Form 10 of legal or governmental proceedings under the captions "Item 1. Business-Regulation" and "Item 1. Business-Environmental Matters" are accurate and fairly present the information required to be shown and such counsel does not know of any other legal or governmental proceedings required to be described in the Registration Statement or Prospectus that are not described as required.
(xii) The Registration Statement as of the date of effectiveness under the Act and the Prospectus as of the date it was filed with, or transmitted for filing to, the Commission (in each case, other than the financial statements and other financial information included therein, as to which no opinion need be rendered) appeared on their face to comply as to form in all material respects with the requirements of the Act and the Trust Indenture Act of 1939 and the respective rules and regulations thereunder, and nothing has come to their attention that would lead them to believe that the Registration Statement as of the date of effectiveness under the Act (or if an amendment to such Registration Statement has been filed by the Company with the Commission subsequent to the effectiveness of the Registration Statement, then at the time of the most recent such filing) contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus as of the date it was filed with, or transmitted for filing to, the Commission and at the Closing Date contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(xiii) The statements made in the Registration Statement under the caption "Description of Debt Securities" and in the Prospectus under the caption "Description of the Notes", insofar as they purport to constitute summaries of the terms of the Notes, and in the Prospectus under the caption "Underwriting" and the statements incorporated by reference in the Registration Statement and the Prospectus from the Form 10 under the caption "Item 7. Certain Relationships and Related Transactions" insofar as they purport to constitute summaries of the legal matters and documents referred to therein, are accurate in all material respects.
In rendering such opinion, such counsel may state that they express no opinion as to the laws of any jurisdiction other than the State of Texas, the State of New York, the General Corporation Law and the Limited Liability Company Act of the State of Delaware and the federal laws of the United States.
(d) Martha Wyrsch, General Counsel to the Company, shall have furnished to you her written opinion dated the Closing Date, in form and substance satisfactory to you, to the effect that:
(i) Each of the Company and its subsidiaries is validly existing as a corporation (or limited liability company, as the case may be), is in good standing under the laws of the jurisdiction of its incorporation or formation, has the corporate (or limited liability company) power and authority to own its property and to conduct its business as described in the Prospectus and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a material adverse effect on the Company and its subsidiaries, taken as a whole.
(ii) The performance by the Company of this Agreement, the Indenture and the Notes, and the consummation of the transactions herein and therein contemplated will not, to the best knowledge of such counsel, contravene any of the provisions or constitute a default under any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries is bound or to which any of the property or assets of the Company or any of its subsidiaries is subject other than such contraventions or default as would not have a material adverse effect on the Company and its subsidiaries taken as a whole, nor will such action, to the best knowledge of such counsel, contravene any of the provisions of the Certificate of Incorporation or By-Laws or similar organizational documents of any of its subsidiaries or to the best knowledge of such counsel any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the
Company or any of its properties (except that no opinion is expressed as to federal securities laws or other anti-fraud laws) other than such contraventions as would not have a material adverse effect on the Company and its subsidiaries taken as a whole or a material adverse effect on the interests of the holders of the Notes.
(iii) The outstanding limited liability company member interests of the Company have been duly authorized and issued.
(iv) The descriptions in or incorporated by reference in the Registration Statement and Prospectus of legal or governmental proceedings are accurate and fairly present the information required to be shown and such counsel does not know of any litigation or any legal or governmental proceedings instituted or threatened in writing against the Company or any of its subsidiaries or any of their respective properties that would be required to be described in the Registration Statement or Prospectus and that are not described as required.
(e) As of the date of this Agreement and also at the Closing Date, Deloitte & Touche LLP and Ernst & Young LLP and Arthur Andersen LLP shall have furnished to you a letter or letters, dated the respective date of delivery thereof in form and substance satisfactory to you, to the effect set forth in Annex I hereto.
(f) Since the respective dates as of which information is given in the Prospectus and up to the Closing Date, there shall not have been any change or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Prospectus (exclusive of any amendments or supplements thereto subsequent to the date of this Agreement) and since such dates and up to the Closing Date, the effect of which is, in your judgment, so material and adverse as to make it, in your judgment, impracticable or inadvisable to proceed with the public offering or the delivery of the Notes at the Closing Date on the terms and in the manner contemplated in the Prospectus.
(g) As of the Closing Date, each of Standard & Poor's Ratings Services and Fitch IBCA, Inc. have assigned a BBB rating and Moody's Investors Service, Inc. has assigned a Baa2 rating to the Notes.
(h) There shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded the securities of the Company by any "nationally recognized statistical rating organization", as such term is defined for purposes of Rule 436(g)(2) under the Act.
(i) On or after the date hereof there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally or of the securities of the Company or Duke Capital Corporation on the New York Stock Exchange; (ii) a general moratorium on commercial banking activities in New York declared by either Federal or New York State authorities; (iii) the outbreak or material escalation of hostilities involving the United States, or an outbreak or material escalation of hostilities not involving the United States that could adversely affect the public offering, or the declaration by the United States of a national emergency or war; or (iv) any change in financial markets or any calamity or crisis, if the effect of any such event specified in these clauses (i) through (iv) in your judgment makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the Closing Date on the terms and in the manner contemplated in the Prospectus.
(j) The Company shall have furnished or caused to be furnished to you at the Closing Date certificates of officers of the Company satisfactory to you as to the accuracy of the representations and warranties of the Company herein at and as of the Closing Date, as to the performance by the Company of all of its obligations hereunder to be performed at or prior to the Closing Date, and as to such other matters relating to the transactions contemplated herein as you may reasonably request, and the Company shall have furnished or caused to be furnished certificates as to the matters set forth in subsections (a), (f), (g) and (h) of this Section, and as to such other matters relating to the transactions contemplated herein as you may reasonably request.
(k) As of the Closing Date, the Company shall have furnished or caused to be furnished to you a certificate of the Company's officer(s) relating to certain financial and factual data, dated the Closing Date, in form and substance satisfactory to you.
8. (a) The Company agrees to indemnify and hold harmless each Underwriter and each person, if any, who controls any Underwriter within the meaning of Section 15 of the Act or Section 20 of the 1934 Act, as follows:
(i) against any and all loss, liability, claim, damage and expense whatsoever arising out of any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (or any amendment thereto), or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading or arising out of any untrue statement or alleged untrue statement of a material fact contained in any preliminary prospectus, the prospectus constituting a part of the Registration Statement in the form in which it became effective or the Prospectus (or any amendment or supplement thereto) or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense whatsoever to the extent of the aggregate amount paid in settlement of any litigation, commenced or threatened, or of any claim whatsoever based upon any such untrue statement or omission or any such alleged untrue statement or omission, if such settlement is effected with the written consent of the Company; and
(iii) against any and all expense whatsoever reasonably incurred
in investigating, preparing or defending against any litigation,
commenced or threatened, or any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under (i) or
(ii) above;
unless in each case of (i), (ii) or (iii) above such statement or omission or such alleged statement or omission was made in reliance upon and in conformity with the information relating to the Underwriters furnished in writing to the Company by an Underwriter through you expressly for use in the Registration Statement (or any amendment thereto) or the Prospectus (or any amendment or supplement thereto).
In no case shall the Company be liable under this indemnity agreement with respect to any claim made against any Underwriter or any such controlling person unless the Company shall be notified in writing of the nature of the claim within a reasonable time after the assertion thereof, but failure so to notify the Company shall not relieve it from any liability which it may have otherwise than on account of this indemnity agreement. The Company shall be entitled to participate at its own expense in the defense, or, if it so elects, within a reasonable time after receipt of such notice, to assume the defense of any suit brought to enforce any such claim, but if it so elects to assume the defense, such defense shall be conducted by counsel chosen by it and approved by the Underwriter or Underwriters or controlling person or persons, defendant or defendants in any suit so brought, which approval shall not be unreasonably withheld. In any such suit, any Underwriter or any such controlling person shall have the right to employ its own counsel, but the fees and expenses of such counsel shall be at the expense of such Underwriter or such controlling person unless (i) the Company and such Underwriter shall have mutually agreed to the employment of such counsel or (ii) the named parties to any such action (including any impleaded parties) include both such Underwriter or such controlling person and the Company and such Underwriter or such controlling person shall have been advised by such counsel that a conflict of interest between the Company and such Underwriter or such controlling person may arise and for this reason it is not desirable for the same counsel to represent both the indemnifying party and also the indemnified party (it being understood, however, that the Company shall not, in connection with any one such action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the reasonable fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) for all such Underwriters and all such
controlling persons, which firm shall be designated in writing by you). The Company agrees to notify you within a reasonable time of the assertion of any claim against it, any of its officers or directors or any person who controls the Company within the meaning of Section 15 of the Act or Section 20 of the 1934 Act, in connection with the sale of the Notes.
(b) Each Underwriter severally agrees to indemnify and hold harmless the Company, each of its directors and each of the Company's officers who signed the Registration Statement and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20 of the 1934 Act, to the same extent as the indemnity contained in subsection (a) of this Section, but only with respect to statements or omissions made in the Registration Statement (or any amendment thereto) or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with the information relating to the Underwriters furnished in writing to the Company by such Underwriter through you expressly for use in the Registration Statement (or any amendment thereto) or the Prospectus (or any amendment or supplement thereto). In case any action shall be brought against the Company or any person so indemnified based on the Registration Statement (or any amendment thereto) or the Prospectus (or any amendment or supplement thereto) and in respect of which indemnity may be sought against any Underwriter, such Underwriter shall have the rights and duties given to the Company, and the Company and each person so indemnified shall have the rights and duties given to the Underwriters, by the provisions of subsection (a) of this Section.
(c) No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding.
(d) To the extent the indemnification provided for in Sections 8(a) or
8(b) is unavailable to an indemnified party or insufficient in respect of
any losses, claims, damages or liabilities referred to therein, then each
indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims,
damages or liabilities in such proportion as is appropriate to reflect not
only the relative benefits received by the Company on the one hand and the
Underwriters on the other hand from the offering of the Notes but also the
relative fault of the Company on the one hand and of the Underwriters on
the other hand in connection with the statements or omissions that resulted
in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative benefits received by the
Company on the one hand and the Underwriters on the other hand in
connection with the offering of the Notes shall be deemed to be in the same
respective proportions as the net proceeds from the offering of the Notes
(before deducting expenses)
received by the Company and the total underwriting discounts and commissions received by the Underwriters, in each case as set forth in the table on the cover of the Prospectus, bear to the aggregate Public Offering Price of the Notes. The relative fault of the Company on the one hand and the Underwriters on the other hand shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or by the Underwriters and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Underwriters' respective obligations to contribute pursuant to this Section 8 are several in proportion to the respective principal amount of Notes they have purchased hereunder, and not joint.
(e) The Company and the Underwriters agree that it would not be just
or equitable if contribution pursuant to this Section 8 were determined by
pro rata allocation (even if the Underwriters were treated as one entity
for such purpose) or by any other method of allocation that does not take
account of the equitable considerations referred to in Section 8(d). The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or
claim. Notwithstanding the provisions of this Section 8, no Underwriter
shall be required to contribute any amount in excess of the amount by which
the total price at which the Notes underwritten by it and distributed to
the public were offered to the public exceeds the amount of any damages
that such Underwriter has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The remedies
provided for in this Section 8 are not exclusive and shall not limit any
rights or remedies which may otherwise be available to any indemnified
party at law or in equity.
(f) The indemnity and contribution provisions contained in Section 8 and the representations, warranties and other statements of the Company contained in this Agreement shall remain operative and in full force and effect regardless of: (i) any termination of this Agreement; (ii) any investigation made by or on behalf of any Underwriter or any person controlling any Underwriter or by or on behalf of the Company, its officers or directors or any person controlling the Company; and (iii) acceptance of and payment for any of the Notes.
9. The Agreement shall become effective upon the execution and delivery hereof by the parties hereto.
(a) If any Underwriter shall default in its obligation to purchase the principal amount of Notes that it has agreed to purchase hereunder on the Closing
Date, you may in your discretion arrange for you or another party or other parties to purchase such principal amount of Notes on the terms contained herein. If within thirty-six hours after such default by any Underwriter, you notify the Company that you have so arranged for the purchase of such principal amount of Notes, you shall have the right to postpone the Closing Date for a period of not more than seven days, in order to effect whatever changes may thereby be made necessary in the Registration Statement or the Prospectus, or in any other documents or arrangements, and the Company agrees to file promptly any amendments to the Registration Statement or the Prospectus that may be required. The term "Underwriter" as used in this Agreement shall include any person substituted under this Section with like effect as if such person had originally been a party to this Agreement with respect to such principal amount of Notes.
(b) If, after giving effect to any arrangements for the purchase of the Notes of a defaulting Underwriter or Underwriters as provided in subsection (a) above, the aggregate principal amount of such Notes that remains unpurchased does not exceed 10% of the aggregate principal amount of all the Notes to be purchased at the Closing Date, then the Company shall have the right to require each non-defaulting Underwriter to purchase the principal amount of Notes that such Underwriter agreed to purchase hereunder at the Closing Date and, in addition, to require each non-defaulting Underwriter to purchase its pro rata share (based on the principal amount of Notes that such Underwriter agreed to purchase hereunder) of the principal amount of Notes of such defaulting Underwriter or Underwriters for which such arrangements have not been made; but nothing herein shall relieve a defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase of
the principal amount of Notes of a defaulting Underwriter or Underwriters
by you as provided in subsection (a) above, the aggregate principal amount
of such Notes that remains unpurchased exceeds 10% of the aggregate
principal amount of all the Notes to be purchased at the Closing Date, or
if the Company shall not exercise the right described in subsection (b)
above to require non-defaulting Underwriters to purchase Notes of a
defaulting Underwriter or Underwriters, then this Agreement shall thereupon
terminate, without liability on the part of any non-defaulting Underwriter
or the Company, except for the expenses to be borne by the Company and the
Underwriters as provided in Section 6 hereof and the indemnity agreement in
Section 8 hereof; but nothing herein shall relieve a defaulting Underwriter
from liability for its default.
10. If this Agreement shall be terminated pursuant to Section 9 hereof, the Company shall not be under any liability to any Underwriter except as provided in Section 6 and Section 8 hereof; but, if for any other reason any Notes are not delivered by or on behalf of the Company as provided herein, the Company will reimburse the Underwriters through you for all out-of-pocket expenses approved in writing by you, including fees and disbursements of counsel, reasonably incurred by the Underwriters in making preparations for the purchase, sale and delivery of the Notes not so delivered, but
the Company shall then be under no further liability to any Underwriter in respect of the Notes not so delivered except as provided in Sections 6 and 8 hereof.
11. All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail or
facsimile transmission to you as the representatives in care of J.P. Morgan
Securities Inc., 60 Wall Street, New York, NY 10260-0060, Attention: Steven
Christensen (facsimile: 212-648-5939) (with a copy to Merrill Lynch, Pierce,
Fenner & Smith Incorporated, 250 Vesey Street, New York, NY 10281, Attention:
Jack Sconzo (facsimile: 212-449-2760)); and if to the Company shall be delivered
or sent by mail or facsimile transmission to the address of the Company set
forth in the Registration Statement, Attention: Secretary; provided, however,
that any notice to an Underwriter pursuant to Section 8(a) hereof shall be
delivered or sent by mail or facsimile transmission to such Underwriter at its
address or facsimile number set forth in its Underwriters' Questionnaire or
telex or facsimile constituting such Questionnaire, which address or facsimile
number will be supplied to the Company by you upon request. Any such statements,
requests, notices or agreements shall take effect upon receipt thereof.
This Agreement shall be binding upon, and inure solely to the benefit of, the Underwriters, the Company and, to the extent provided in Section 8 hereof, the officers and directors of the Company, and each person who controls the Company or any Underwriter, and their respective heirs, executors, administrators, successors and assigns, and no other person shall acquire or have any right under or by virtue of this Agreement. No purchaser of any of the Notes from any Underwriter shall be deemed a successor or assign by reason merely of such purchase.
As used herein, the term "business day" shall mean any day when the Commission's office in Washington, D.C. is open for business.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK.
This Agreement may be executed by any one or more of the parties hereto in any number of counterparts, each of which shall be deemed to be an original, but all such counterparts shall together constitute one and the same instrument.
If the foregoing is in accordance with your understanding, please sign and return to us eight counterparts hereof, and upon the acceptance hereof by you, on behalf of each of the Underwriters, this letter and such acceptance hereof shall constitute a binding agreement among each of the Underwriters and the Company. It is understood that your acceptance of this letter on behalf of each of the Underwriters is pursuant to the authority set forth in a form of Agreement among Underwriters the form of which shall be submitted to the Company for examination, upon request, but without warranty on your part as to the authority of the signers thereof.
Very truly yours,
DUKE ENERGY FIELD SERVICES, LLC
By: ________________________________
Name:
Theforegoing Underwriting Agreement
is hereby confirmed and accepted
as of the date first above written.
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
J.P. MORGAN SECURITIES INC.
By: J.P. MORGAN SECURITIES INC.
By: _______________________________
On behalf of each of the several Underwriters
SCHEDULE I
$600,000,000 $800,000,000 $300,000,000
PRINCIPAL PRINCIPAL PRINCIPAL
AMOUNT OF 7 1/2% AMOUNT OF 7 7/8% AMOUNT OF 8 1/8%
UNDERWRITER 2005 NOTES 2010 NOTES 2030 NOTES
----------------------------------------- ------------ ------------ ------------
Merrill Lynch, Pierce, Fenner & Smith
Incorporated $180,000,000 $240,000,000 $ 90,000,000
J.P. Morgan Securities Inc. $180,000,000 $240,000,000 $ 90,000,000
Banc of America Securities LLC $ 60,000,000 $ 80,000,000 $ 30,000,000
Chase Securities Inc. $ 60,000,000 $ 80,000,000 $ 30,000,000
Lehman Brothers Inc. $ 60,000,000 $ 80,000,000 $ 30,000,000
Morgan Stanley & Co. Incorporated $ 60,000,000 $ 80,000,000 $ 30,000,000
------------ ------------ ------------
Total $600,000,000 $800,000,000 $300,000,000
============ ============ ============
|
EXHIBIT 3.1
FIRST AMENDMENT
TO
AMENDED AND RESTATED LIMITED
LIABILITY COMPANY AGREEMENT
OF DUKE ENERGY FIELD SERVICES, LLC
This First Amendment to Amended and Restated Limited Liability Company Agreement of Duke Energy Field Services, LLC (this "Amendment"), dated as of August 4, 2000, is entered into by and among Phillips Gas Company, a Delaware corporation ("PGC"), Duke Energy Field Services Corporation, a Delaware corporation ("DEFS Holding"), Phillips Gas Investment Company, a Delaware corporation ("Phillips Investment"), and Duke Energy Field Services Investment Corp., a Delaware corporation ("DEFS Investment") and consented to by Phillips Petroleum Company ("Phillips") and Duke Energy Corporation ("Duke").
WHEREAS, reference is made to that certain Amended and Restated Limited Liability Company Agreement of Duke Energy Field Services, LLC by and between PGC and DEFS Holding dated as of March 31, 2000 (the "LLC Agreement") (capitalized terms used but not defined herein shall have the meaning given thereto in the LLC Agreement); and
WHEREAS, PGC and DEFS Holding desire to amend the LLC Agreement to provide for, among other things, the admission of Phillips Investment and DEFS Investment as Members of the Company;
NOW, THEREFORE, for and in consideration of the mutual benefits to be derived from this Amendment, and intending to be legally bound hereby, the parties hereto hereby agree as follows:
ARTICLE I
AMENDMENTS
The LLC Agreement is hereby amended as follows:
1.1 Section 1.1 is amended by inserting each of the following definitions in its appropriate place in alphabetical order:
"Accounting Period" shall have the meaning set forth in Section 7.1(c).
"Amounts Past Due" shall have the meaning set forth in Section 7.6(c)(i).
"Cash Earnings" shall mean earnings of the Company (including operating earnings and extraordinary earnings) after interest expense but before income taxes, depreciation, amortization and special non-cash charges, as determined on a semi-annual basis for each Preferred Payment Date in accordance with GAAP consistently applied by the Company.
"Cash Earnings Limitation" shall have the meaning set forth in
Section 7.6(c)(i).
"DEFS Investment" shall mean Duke Energy Field Services Investment Corp., a Delaware corporation.
"Extension Period" shall have the meaning set forth in Section 7.6(c)(iii).
"Final Period" shall have the meaning set forth in Section 7.1(c).
"First Amendment" shall mean the First Amendment to Amended and Restated Limited Liability Company Agreement of Duke Energy Field Services, LLC dated as of August 4, 2000, by and among PGC, DEFS Holding, Phillips Investment and DEFS Investment.
"Other Preferred Member" shall have the meaning set forth in Section 7.6(c)(iv).
"Phillips Investment" shall mean Phillips Gas Investment Company, a Delaware corporation.
"Preferred Contribution" shall mean, with respect to either Preferred Member, such Preferred Member's respective Capital Contribution made to the Company pursuant to Section 6.1(b).
"Preferred Distribution Rate" shall have the meaning set forth in
Section 7.6(c)(i).
"Preferred Interest" shall mean, with respect to either Preferred Member, such Preferred Member's respective interest in the Company.
"Preferred Mandatory Payment" shall have the meaning set forth in
Section 7.6(c)(i).
"Preferred Payment Date" shall have the meaning set forth in Section 7.6(c)(ii).
"Preferred Mandatory Redemption Date" shall have the meaning set forth in Section 6.4(b).
"Preferred Member" shall mean one or more of Phillips Investment, DEFS Investment and any Person hereafter admitted to the Company as a Preferred Member as provided in this Agreement, as the context may require, but such term does not include any Person who has ceased to be a Preferred Member in the Company.
"Preferred Tax Amount" shall have the meaning set forth in Section 7.6(c)(iv).
"Preferred Term" shall have the meaning set forth in Section 7.1(c).
1.2 Section 1.1 is further amended as follows:
1.2.1. The definition of "Company Interest" is amended by deleting "either" in the first line thereof and inserting "any" in replacement therefor:
1.2.2. The definition of "Depreciation" is amended by inserting "(other than the Preferred Members)" at the end thereof prior to the period.
1.2.3. The definition of "Fair Market Value" is amended by inserting the following at the end thereof:
"; provided, however, that the Fair Market Value of any Preferred Interest shall equal the amount that would be payable to repay and redeem such Preferred Interest pursuant to Section 6.4(b)."
1.2.4. The definition of "Member" is amended by inserting ", Phillips Investment, DEFS Investment" after the words "DEFS Holding, PGC".
1.2.5. The definition of "Parent Company Agreement" is amended by inserting the words ", as amended" after the words "and DEFS Holding".
1.2.6. The definition of "Percentage Interest" is amended by deleting it in its entirety and inserting the following in replacement therefor:
"Percentage Interest" shall mean, with respect to (a) the Company Interest issued to DEFS Holding pursuant to Section 2.1(j)(i) of the Contribution Agreement, 69.7 percent; (b) the Company Interest issued to PGC pursuant to Section 2.1(k)(i) of the Contribution Agreement, 30.3 percent; (c) the Preferred Interest of DEFS Investment, 69.7 percent, and (d) the Preferred Interest of Phillips Investment, 30.3 percent.
1.2.7. The definition of "Profits" and "Losses" is amended by inserting "included in amounts allocated pursuant to Section 7.1(c) or" in clause (g) thereof after the word "thereof" in the third line thereof.
1.2.8. The definition of "Two Year Period" is amended by (1) inserting the phrase "one Business Day following" at the beginning of clause (b) prior to the words "the date" and (2) inserting the phrase "and receipt by the Corporation (as defined in the Parent Company Agreement) of the proceeds thereof" at the end of clause (b) prior to the period.
1.3 Section 3.1 is amended by deleting "Neither" at the beginning of the third sentence thereof and inserting "No" in replacement therefor.
1.4 Section 3.2 is amended by (a) deleting "Neither" in the first line thereof and inserting "No" in replacement therefor; (b) deleting "either" in the second line thereof and inserting "any" in replacement therefor; and (c) deleting "neither" in the sixth line thereof and inserting "no" in replacement therefor.
1.5 Section 3.3 is amended by inserting the following sentence at the end thereof:
"No Preferred Member shall be entitled to vote on the appointment of Directors of the Company."
1.6 Section 3.5(b) is amended by deleting "Either Member" in the first line thereof and inserting "Any Member (other than a Preferred Member)" in replacement therefor.
1.7 Section 3.7(b)(iv) is amended by deleting it in its entirety and inserting the following in replacement therefor:
"(iv) Distributions and dividends (other than tax distributions as set forth in Section 7.6(a)(i) and Section 7.6(c)(iv), distributions constituting Preferred Mandatory Payments pursuant to Section 7.6(c) or repayment or redemption of the Preferred Interests, and the distributions described in Section 3.2(c) of the Contribution Agreement) prior to the IPO."
1.8 Section 3.7(b) is amended by (a) deleting "either" in the second
line of clause (v)(E) thereof and inserting "any" in replacement therefor and
(b) deleting "either" in both places that it appears in clause (ix) thereof and
inserting "any" in replacement therefor in each case.
1.9 Section 4.2(b)(ii) is amended by deleting "either" in the sixth line thereof and inserting "any" in replacement therefor.
1.10 Section 5.1 is amended by inserting the following sentence at the end thereof:
"For the period from the date of the First Amendment until the repayment or redemption of the Preferred Interests, Phillips Investment shall directly own and hold all of the Preferred Interest acquired by it pursuant to its contribution to the Company pursuant to the First Amendment and no other assets or liabilities, and DEFS Investment shall directly own and hold all of the Preferred Interest acquired by it pursuant to its contribution to the Company pursuant to the First Amendment and no other assets or liabilities."
1.11 Section 5.2(a) is amended by (a) inserting "and DEFS
Investment's Preferred Interest (provided that both are purchased
simultaneously)" after the words "Company Interest" in clause (i) thereof; and
(b) inserting "and Phillips Investment's Preferred Interest (provided that both
are purchased simultaneously)" after the words "Company Interest" in clause (ii)
thereof.
1.12 Section 5.2(b) is amended by (a) deleting "the other Member" in the fourth line thereof and inserting "DEFS Holding or PGC, as applicable" in replacement therefor; and (b) inserting "and DEFS Investment's Preferred Interest (if DEFS Holding is the Changing Member) or Phillips Investment's Preferred Interest (if PGC is the Changing Member)" after the words "Changing Member" in the eighth line thereof.
1.13 Section 5.2(c) is amended by (a) deleting "party" in the
twentieth line thereof and inserting "of the Changing Member or the Non-Changing
Member" in replacement therefor; (b) inserting "the Changing Member or the
Non-Changing" after the words "If either" in the thirty-first line thereof; and
(c) deleting "Members" in the thirty-fifth line thereof and inserting "the
Changing Member and the Non-Changing Member" in replacement therefor.
1.14 Section 5.2(d) is amended by (a) inserting "and DEFS Investment's Preferred Interest (if DEFS Holding is the Changing Member) or Phillips Investment's Preferred Interest (if PGC is the Changing Member)" after the words "Company Interest" in the second line thereof; and (b) inserting "and DEFS Investment's Preferred Interest (if DEFS Holding is the Changing Member)
or Phillips Investment's Preferred Interest (if PGC is the Changing Member)" after the words "Company Interest" in the tenth line thereof.
1.15 Section 6.1 is amended by deleting it in its entirety and inserting the following in replacement therefor:
"Section 6.1 Capital Contributions. (a) The initial Capital Contributions made to the Company by the Members shall be the property contributed by the Members pursuant to Article II of the Contribution Agreement.
(b) On the date of the First Amendment, (i) DEFS Investment made a Capital Contribution to the Company in the amount of $209,100,000, (ii) Phillips Investment made a Capital Contribution to the Company in the amount of $90,900,000 and (iii) each of DEFS Investment and Phillips Investment was admitted to the Company as a Preferred Member."
1.16 Section 6.3 is amended by (a) inserting "(other than the Preferred Members)" after the word "Members" in the third line thereof and (b) inserting the following sentence after the second sentence thereof: "The initial Capital Account of the Preferred Members shall be, in the case of DEFS Investment, $209,100,000 and, in the case of Phillips Investment, $90,900,000."
1.17 Section 6.4 is amended by deleting it in its entirety and inserting the following in replacement therefor:
"Section 6.4 Return of Contributions. (a) Although a Member has the right to receive Distributions in accordance with the terms of this Agreement, except as provided in Section 6.4(b) and Section 7.6(c), a Member is not entitled to the return of any part of its Capital Contributions or to be paid interest in respect of either its Capital Account or its Capital Contributions. An unrepaid Capital Contribution is not a liability of the Company or of any Member. No Member will be required to contribute or to lend any cash or property to the Company to enable the Company to return any Member's Capital Contributions.
(b) Each Member that holds a Preferred Interest shall be entitled to a mandatory Distribution in cash equal to the positive balance of its Capital Account after all allocations have been made to such Capital Account pursuant to this Agreement, in full repayment and redemption of its Preferred Interest, on the earlier of (i) the thirtieth anniversary of the date of the First Amendment and (ii) one Business Day following the date of consummation of the IPO and receipt by the Corporation (as defined in the Parent Company Agreement) of the proceeds thereof (the "Preferred Mandatory Redemption Date")."
1.18 Section 7.1 is amended by deleting clause (b) in its entirety and inserting the following in replacement therefor:
"(b) Profits and Losses. Commencing on the Closing Date, Profits and Losses shall be allocated among the Members (other than the Preferred Members) in accordance with their respective Percentage Interests in the Company;
provided, however, that the Company shall make special allocations to the Members (other than the Preferred Members) to the extent required pursuant to Article V of Annex A to the Contribution Agreement.
(c) Allocations to Preferred Members. For each Fiscal
Year or portion thereof (each, an "Accounting Period") during the
period from the date of the First Amendment until the repayment or
redemption of the Preferred Interests (including any Extension
Period) (the "Preferred Term"), prior to any allocation pursuant to
Section 7.1(b), (i) items of gross income (limited, except in the
case of the Accounting Period ending on the Preferred Mandatory
Redemption Date (the "Final Period"), to the sum of the Cash
Earnings Limitations for the Preferred Payment Dates included in
such Accounting Period) shall be allocated to the Preferred Members
in accordance with their respective Percentage Interests until the
cumulative amount allocated to the Preferred Members pursuant to
this Section 7.1(c)(i) equals the cumulative amount of losses
allocated to the Preferred Members pursuant to Section 7.2(a) and
then (ii) items of gross income (limited, except in the case of the
Final Period, to the sum of the Cash Earnings Limitations for the
Preferred Payment Dates included in such Accounting Period, less the
allocations made pursuant to Section 7.1(c)(i) for such Accounting
Period) shall be allocated to the Preferred Members in accordance
with their respective Percentage Interests, until the cumulative
amount so allocated to the Preferred Members pursuant to this
Section 7.1(c)(ii) for the current Fiscal Year and all prior Fiscal
Years or portions thereof during the Preferred Term equals the
cumulative amounts of Preferred Mandatory Payments distributed or
distributable (including any and all Amounts Past Due) to the
Preferred Members pursuant to Section 7.6(c) for the current Fiscal
Year and all prior Fiscal Years or portions thereof during the
Preferred Term."
1.19 Section 7.2(a) is amended by inserting "(other than the Preferred Members unless all other Members have Adjusted Capital Account Deficits)" after the word "Members" in the eighth line thereof.
1.20 Section 7.2(e) is amended by inserting "(other than the Preferred Members)" after the word "Members" in the second line thereof.
1.21 Section 7.6(a) is amended by (a) deleting "Except" in the first sentence thereof and inserting "Subject to Section 7.6(c) below and except" in replacement therefor; (b) inserting "(other than the Preferred Members)" after the words "Member of the Company" in the fourth and fifth lines thereof; and (c) inserting "that is (or are) not a Preferred Member" after the parenthetical "(or Members)" in clause (i)(B)(y) thereof.
1.22 Section 7.6(b) is amended by (a) inserting "to the Preferred Members in proportion to the positive balances of each of their respective Capital Accounts after all allocations have been made to such Capital Accounts pursuant to this Agreement, until the remaining balances of such Capital Accounts are zero; (iv) fourth," after the word "third," in the ninth line thereof; (b) inserting "(other than the Preferred Members)" after the word "Members" in the ninth line thereof; (c) deleting "(iv) fourth" in the twelfth line thereof and inserting "(v) fifth" in replacement
therefor; and (d) inserting "(other than the Preferred Members)" after the word "Members" in the twelfth line thereof.
1.23 Section 7.6 is amended by inserting the following at the end thereof:
"(c) Preferred Mandatory Payments. (i) Unless the Company has
elected to defer such payment as provided in Section 7.6(c)(iii),
each Member that holds a Preferred Interest shall be entitled on
each Preferred Payment Date to a mandatory Distribution in cash (a
"Preferred Mandatory Payment") equal to the sum of (A) 9.5% per
annum (the "Preferred Distribution Rate") of the Preferred
Contribution of such Member and (B) if any Preferred Mandatory
Payments payable to such Member are not paid in full on the date
they are due (or would be due but for (1) the Cash Earnings
Limitation set forth in the last sentence of this Section 7.6(c)(i)
or (2) a deferral of Preferred Mandatory Payments pursuant to
Section 7.6(c)(iii)) (such unpaid amounts, together with any
accruals thereon pursuant to this Section 7.6(c)(i)(B), the "Amounts
Past Due"), the Preferred Distribution Rate (plus 0.5% per annum) of
the Amounts Past Due, compounded semi-annually (to the extent
permitted by Law). If the Company has insufficient positive Cash
Earnings to pay an entire Preferred Mandatory Payment, Amounts Past
Due required to be paid pursuant to this Section 7.6(c)(i) shall
have preference over and be paid before other amounts required to be
paid pursuant to this Section 7.6(c)(i) (other than any Preferred
Tax Amount). Except as set forth in Section 7.6(c)(iv), a Preferred
Mandatory Payment is payable out of positive Cash Earnings for the
semi-annual period preceding the relevant Preferred Payment Date
(the "Cash Earnings Limitation"), but any unpaid amount shall be
considered an "Amount Past Due" in accordance with clause (B) of the
preceding sentence and shall be due and payable on the next
Preferred Payment Date (subject to the Cash Earnings Limitation for
such date).
(ii) Preferred Mandatory Payments on the Preferred
Interest of a Member (A) will be cumulative; (B) will
accumulate from the most recent date on which the entire
accrued and unpaid Preferred Mandatory Payments have been paid
or, if no Preferred Mandatory Payments have been paid, from
and including the date of the First Amendment, to but
excluding the earliest of (1) the related Preferred Payment
Date, (2) the date of repayment or redemption of the Preferred
Interest and (3) August 15, 2030; and (C) will be payable
semi-annually in arrears on June 30 and December 31 of each
year, commencing on December 31, 2000, except to the extent
any such payment is deferred as described below, and on the
Preferred Mandatory Redemption Date; and (D) will be paid
prior to the Company making any Distribution pursuant to
Section 7.6(a)(ii). The amount of any Preferred Mandatory
Payment payable for any period will be computed on the basis
of a 360-day year consisting of twelve 30-day months and for
any period of less than a full calendar month on the basis of
the actual number of days elapsed in such month. If any date
on which Preferred Mandatory Payments are payable is not a
Business Day, then payment of the amount payable on such date
shall be made on the next succeeding day that is a Business
Day (and without any
interest or other payment in respect of any such delay), except that, if such Business Day is in the next succeeding calendar year, such payment shall be made on the immediately preceding Business Day, in each case with the same force and effect as if made on the date such payment was originally payable (each date on which a Preferred Mandatory Payment is payable (or would be payable but for (1) the Cash Earnings Limitation set forth in the last sentence of Section 7.6(c)(i) or (2) a deferral pursuant to Section 7.6(c)(iii)) in accordance with the foregoing, a "Preferred Payment Date").
(iii) The Company shall have the right to defer the
payment of Preferred Mandatory Payments (other than the
Preferred Tax Amount) by extending the payment period at any
time and from time to time for a period (each an "Extension
Period") not exceeding 10 consecutive semi-annual periods,
including the first such semi-annual period during such
Extension Period; provided, however, that no Extension Period
shall extend beyond the Preferred Mandatory Redemption Date.
Preferred Mandatory Payments (other than the Preferred Tax
Amount) will be deferred during any Extension Period.
Notwithstanding such deferral, during any Extension Period,
Preferred Mandatory Payments in arrears shall continue to
accumulate additional amounts thereon (to the extent permitted
by Law), as provided in Section 7.6(c)(i). Prior to the
expiration of any Extension Period, the Company may further
defer payments by further extending such Extension Period;
provided, however, that such Extension Period, together with
all previous and further extensions, if any, within such
Extension Period, may not (A) exceed 10 consecutive
semi-annual periods, including the first semi-annual period
during such Extension Period, or (B) extend beyond the
Preferred Mandatory Redemption Date. Upon the expiration of
any Extension Period (or any extension thereof) and the
payment of all amounts then due, the Company may commence a
new Extension Period, subject to the above requirements. There
is no limitation on the number of times that the Company may
elect to begin an Extension Period; provided, however, that
during any such Extension Period, no Distributions (other than
tax distributions as set forth in Section 7.6(a)(i) and
Section 7.6(c)(iv)) may be made to any Member.
(iv) On each Preferred Payment Date during any Extension
Period (and on each Preferred Payment Date on which the
limitations set forth in the last sentence of Section
7.6(c)(i) would otherwise apply), the Company shall distribute
to each Preferred Member a portion of the Preferred Mandatory
Payment that otherwise would be due and payable on such date
(the "Preferred Tax Amount") equal to the greater of (A) the
product of (I) the sum of the maximum United States regular
Federal income tax rate applicable to C corporations under
Section 11 of the Code and 4.5 percent and (II) the excess, if
any, of taxable income and gain over taxable loss or deduction
of the Company allocated to such Preferred Member with respect
to such period and (B) (x) such Preferred Member's Percentage
Interest in the Company multiplied by the quotient of (y) the
amount calculated under
clause (A) with respect to such period for the other Preferred Member (or Preferred Members) (the "Other Preferred Member") divided by (z) the Other Preferred Member's Percentage Interest in the Company. Such Distributions shall be made in a manner consistent with the estimated annual tax items of the Company, and Distributions pursuant to this clause (iv) for each semi-annual accounting period (or portion thereof) shall be adjusted to the extent Distributions for prior semi-annual accounting periods did not correctly estimate such items.
(v) Preferred Mandatory Payments will be payable to the holders of the Preferred Interests as they appear on the books and records of the Company on the record dates, which shall be the Business Day prior to the relevant Preferred Payment Date. Payments of Preferred Mandatory Payments that have accumulated but not been paid during any Extension Period will be payable to the holders of the Preferred Interests as they appear on the books and records of the Company on the record date for the first scheduled Preferred Payment Date following the expiration of such Extension Period and prior to the commencement of any new Extension Period."
1.24 Section 8.2(b) is amended by (a) inserting "(and any other
Company indebtedness)" after the word "Financing" in clause (iii) thereof and
inserting "(other than the Preferred Members)" after the word "Members" in
clause (iii) thereof, (b) inserting "(other than the Preferred Members)" in
clause (v) thereof after the words "Duke, Phillips, the Members", (c) deleting
the word "and" prior to clause (vi) and (d) inserting at the end thereof "; and
(vii) the allocation under Regulation Section 1.752-3(a)(3) of no Company
liabilities to any of the Preferred Members" prior to the period.
1.25 Section 8.3(c) is amended by inserting "(other than a Preferred Member)" after the word "Member".
1.26 Section 10.4 is amended by inserting (a) "or Phillips Investment" after the words "If to PGC" in clause (a) thereof and (b) "or DEFS Investment" after the words "If to DEFS Holding" in clause (b) thereof.
1.27 Section 10.5 is amended by inserting "(other than the Preferred Members)" at the end thereof prior to the period.
1.28 Section 10.7 is amended by (a) inserting "(other than the
Preferred Members, except that Sections 1.1, 6.1(b), 6.3, 6.4(b), 7.1(c),
7.6(b)(iii), 7.6(c) and 8.2(b)(viii), as they relate to the Preferred Members or
the Preferred Interests, may not be amended without the additional prior written
consent of each of Duke (so long as Duke is the Parent of either DEFS Holding or
DEFS Investment) and Phillips (so long as Phillips is the Parent of either PGC
or Phillips Investment))" after the word "Members" in the second line thereof;
(b) inserting ", Section 6.4(b)" after the words "Section 6.3" in the fourth
line thereof; and (c) deleting "Either" in the tenth line thereof and inserting
"Any" in replacement therefor.
1.29 Section 10.9 is amended by deleting "either" in the fourth line thereof and inserting "any" in replacement therefor.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
2.1 REPRESENTATIONS AND WARRANTIES. Each of PGC and Phillips Investment hereby represents to DEFS Investment and DEFS Holding, and each of DEFS Investment and DEFS Holding hereby represents and warrants to PGC and Phillips Investment, that (a) it has full corporate power and authority to execute and deliver this Amendment, (b) the execution and delivery of this Amendment have been duly and validly approved by all corporate action on its part, and (c) this Amendment has been duly and validly executed and delivered by it and, assuming due authorization, execution and delivery by the other parties, constitutes a valid and binding obligation of it, enforceable against it in accordance with its terms.
ARTICLE III
MISCELLANEOUS
3.1 COUNTERPARTS. This Amendment may be executed in one or more counterparts, all of which shall be considered one and the same agreement, and shall become effective when one or more counterparts have been signed by each of the parties hereto and delivered (including by facsimile) to the other party.
3.2 GOVERNING LAW. (a) This Amendment shall be governed by and construed in accordance with the laws of the State of Delaware without reference to the choice of law principles thereof.
(b) Each party hereto irrevocably submits to the jurisdiction of any Delaware state court or any federal court sitting in the State of Delaware in any action arising out of or relating to this Amendment, and hereby irrevocably agrees that all claims in respect of such action may be heard and determined in such Delaware state or federal court. Each party hereto hereby irrevocably waives, to the fullest extent it may effectively do so, the defense of an inconvenient forum to the maintenance of such action or proceeding. The parties hereto further agree, to the extent permitted by law, that final and unappealable judgment against any of them in any action or proceeding contemplated above shall be conclusive and may be enforced in any other jurisdiction within or outside the United States by suit on the judgment, a certified copy of which shall be conclusive evidence of the fact and amount of such judgment.
(c) To the extent that any party hereto has or hereafter may acquire any immunity from jurisdiction of any court or from any legal process (whether through service or notice, attachment prior to judgment, attachment in aid of execution, execution or otherwise) with respect to itself or its property, each party hereto hereby irrevocably waives such immunity in respect of its obligations with respect to this Amendment.
(d) Each party hereto waives, to the fullest extent permitted by applicable law, any right it may have to a trial by jury in respect of any action, suit or proceeding arising out of or relating to this Amendment. Each party hereto certifies that it has been induced to enter into
this Amendment by, among other things, the mutual waivers and certifications set forth above in this Section 3.2.
3.3 ENTIRE AGREEMENT. This Amendment and the LLC Agreement contain the entire agreement between the parties with respect to the subject matter hereof and there are no agreements, understandings, representations or warranties between the parties other than those set forth or referred to herein. This Amendment is not intended to confer upon any person not a party hereto any rights or remedies hereunder, except that amendments to Sections 6.3 and Articles VII and VIII of the LLC Agreement are for the benefit of Phillips and Duke to the extent such provisions may not be amended without the consent of Phillips and Duke as provided in Section 10.7 of the LLC Agreement and Section 4.1 of the Parent Company Agreement.
3.4 NOTICES. The provisions of Section 10.4 of the LLC Agreement (as amended by this Amendment) are hereby incorporated herein.
3.5 SUCCESSORS AND ASSIGNS. This Amendment shall be binding upon and inure to the benefit of the parties hereto (and Phillips and Duke to the extent provided in Section 3.3) and their respective successors and permitted assigns; provided, however, that no party hereto will assign its rights or delegate any or all of its obligations under this Amendment without the express prior written consent of each other Member.
3.6 AMENDMENTS AND WAIVERS. This Amendment may not be modified or amended except by an instrument or instruments in writing signed by all parties hereto (other than the Preferred Members, except that Sections 1.1, 6.1(b), 6.3, 6.4(b), 7.1(c), 7.6(b)(iii), 7.6(c) and 8.2(b)(viii), as they relate to the Preferred Members or the Preferred Interests, may not be amended without the additional prior written consent of each of Duke (so long as Duke is the Parent of either DEFS Holding or DEFS Investment) and Phillips (so long as Phillips is the Parent of either PGC or Phillips Investment)). In addition to the foregoing, without the prior written consent of each of Phillips and Duke: (a) no further amendment shall be made to Section 6.3, Section 6.4(b), Article VII or Article VIII (other than Section 8.2(b)) of the LLC Agreement, or any reference thereto in the LLC Agreement or any defined term used therein, prior to the second anniversary of the Closing Date, and any further amendment made after such second anniversary to any such provision shall not apply to any taxable period, or portion thereof, ending on or before the second anniversary of the Closing Date, and (b) no further amendment shall be made to Section 8.2(b) of the LLC Agreement or any reference thereto in the LLC Agreement or any defined term used therein. Any party hereto may, only by an instrument in writing, waive compliance by the other parties hereto with any term or provision of this Amendment on the part of another party hereto to be performed or complied with. The waiver by any party hereto of a breach of any term or provision of this Amendment shall not be construed as a waiver of any subsequent breach. Except as otherwise expressly provided herein, no failure to exercise, delay in exercising or single or partial exercise of any right, power or remedy by any party, and no course of dealing between the parties, shall constitute a waiver of any such right, power or remedy.
3.7 SEVERABILITY. If any provision of this Amendment shall be held invalid, illegal or unenforceable, the validity, legality or enforceability of the other provisions of this Amendment shall not be affected thereby, and there shall be deemed substituted for the provision at issue a valid, legal and enforceable provision as similar as possible to the provision at issue.
3.8 HEADINGS; DEFINITIONS. The Section and Article headings contained in this Amendment are inserted for convenience of reference only and will not affect the meaning or interpretation of this Amendment. All capitalized terms defined herein are equally applicable to both the singular and plural forms of such terms.
3.9 INTERPRETATION. In the event an ambiguity or question of intent or interpretation arises with respect to this Amendment, this Amendment shall be construed as if drafted jointly by the parties and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provisions of this Amendment. The phrase "including" shall be deemed to be followed by "without limitation."
3.10 RATIFICATION. Except as amended hereby, the LLC Agreement shall remain in full force and effect as previously executed, and the Members hereby ratify the LLC Agreement as amended hereby. Each of Phillips Investment and DEFS Investment agrees to be bound by the terms of the LLC Agreement as amended hereby as if it were an original signatory thereto.
IN WITNESS WHEREOF, each of the undersigned, intending to be legally bound, has caused this Amendment to be duly executed and delivered on the date first set forth above.
PHILLIPS GAS COMPANY
By: /s/ J.W. SHEETS
-----------------------------------
Name: J.W. Sheets
---------------------------------
Title: Vice President and Assistant
Treasurer
--------------------------------
|
DUKE ENERGY FIELD SERVICES
CORPORATION
By: /s/ JIM W. MOGG
-----------------------------------
Name: Jim W. Mogg
---------------------------------
Title: Chairman of the Board,
President and Chief Executive
Officer
--------------------------------
|
PHILLIPS GAS INVESTMENT COMPANY
By: /s/ J.W. SHEETS
-----------------------------------
Name: J.W. Sheets
---------------------------------
Title: Vice President and
Assistant Treasurer
--------------------------------
|
DUKE ENERGY FIELD SERVICES
INVESTMENT CORP.
By: /s/ DAVID L. HAUSER
-----------------------------------
Name: David L. Hauser
---------------------------------
Title: President
--------------------------------
|
Each of the undersigned hereby
consents to this Amendment:
DUKE ENERGY CORPORATION
By: /s/ DAVID L. HAUSER
---------------------------------------
Name: David L. Hauser
-------------------------------------
Title: Senior Vice President and Treasurer
------------------------------------
|
PHILLIPS PETROLEUM COMPANY
By: /s/ J.W. SHEETS
---------------------------------------
Name: J.W. Sheets
-------------------------------------
Title: Assistant Treasurer
------------------------------------
|
EXHIBIT 4.1
DUKE ENERGY FIELD SERVICES, LLC
TO
THE CHASE MANHATTAN BANK
TRUSTEE
FIRST SUPPLEMENTAL INDENTURE
DATED AS OF AUGUST 16, 2000
$600,000,000
7 1/2% NOTES
DUE 2005
$800,000,000
7 7/8% NOTES
DUE 2010
$300,000,000
8 1/8% NOTES
DUE 2030
TABLE OF CONTENTS
ARTICLE 1. ESTABLISHMENT OF THREE SERIES..........................................................................1 SECTION 101. ESTABLISHMENT...................................................................................1 ARTICLE 2. 7 1/2% NOTES DUE 2005..................................................................................2 SECTION 201. ESTABLISHMENT...................................................................................2 SECTION 202. DEFINITIONS.....................................................................................2 SECTION 203. PAYMENT OF PRINCIPAL AND INTEREST...............................................................2 SECTION 204. DENOMINATIONS...................................................................................3 SECTION 205. GLOBAL SECURITIES...............................................................................3 SECTION 206. REDEMPTION AT THE OPTION OF THE COMPANY.........................................................4 SECTION 207. PAYING AGENTS...................................................................................5 ARTICLE 3. 7 7/8% NOTES DUE 2010..................................................................................5 SECTION 301. ESTABLISHMENT...................................................................................5 SECTION 302. DEFINITIONS.....................................................................................6 SECTION 303. PAYMENT OF PRINCIPAL AND INTEREST...............................................................6 SECTION 304. DENOMINATIONS...................................................................................7 SECTION 305. GLOBAL SECURITIES...............................................................................7 SECTION 306. REDEMPTION AT THE OPTION OF THE COMPANY.........................................................8 SECTION 307. PAYING AGENTS...................................................................................9 ARTICLE 4. 8 1/2% NOTES DUE 2030..................................................................................9 SECTION 401. ESTABLISHMENT...................................................................................9 SECTION 402. DEFINITIONS.....................................................................................9 SECTION 403. PAYMENT OF PRINCIPAL AND INTEREST..............................................................10 SECTION 404. DENOMINATIONS..................................................................................11 SECTION 405. GLOBAL SECURITIES..............................................................................11 SECTION 406. REDEMPTION AT THE OPTION OF THE COMPANY........................................................11 SECTION 407. PAYING AGENTS..................................................................................13 ARTICLE 5. MISCELLANEOUS PROVISIONS..............................................................................13 SECTION 501. RECITALS BY COMPANY............................................................................13 SECTION 502. RATIFICATION AND INCORPORATION OF ORIGINAL INDENTURE...........................................13 SECTION 503. EXECUTED IN COUNTERPARTS.......................................................................13 |
THIS FIRST SUPPLEMENTAL INDENTURE is made as of the 16 day of August, 2000, by and between DUKE ENERGY FIELD SERVICES, LLC, a Delaware limited liability company, having its principal office at 370 17th Street, Suite 900, Denver, Colorado 80202 (the "Company"), and THE CHASE MANHATTAN BANK, a New York banking corporation, as trustee (herein called the "Trustee").
W I T N E S S E T H:
WHEREAS, the Company has heretofore entered into an Indenture, dated as of August 16, 2000 (the "Original Indenture") with The Chase Manhattan Bank, as Trustee;
WHEREAS, the Original Indenture is incorporated herein by this reference and the Original Indenture, as amended and supplemented to the date hereof, including by this First Supplemental Indenture, is herein called the "Indenture";
WHEREAS, under the Indenture, a new series of Securities may at any time be established in accordance with the provisions of the Indenture and the form and terms of such series may be established by a supplemental indenture executed by the Company and the Trustee;
WHEREAS, the Company proposes to create under the Indenture three new series of Securities;
WHEREAS, additional Securities of other series hereafter established, except as may be limited in the Indenture as at the time supplemented and modified, may be issued from time to time pursuant to the Indenture as at the time supplemented and modified; and
WHEREAS, all conditions necessary to authorize the execution and delivery of this First Supplemental Indenture and to make it a valid and binding obligation of the Company have been done or preformed.
NOW, THEREFORE, in consideration of the agreements and obligations set forth herein and for other good and valuable consideration, the sufficiency of which is hereby acknowledged, the parties hereto hereby agree as follows:
ARTICLE 1
ESTABLISHMENT OF THREE SERIES
Section 101. Establishment. There are hereby established three new series of Securities to be issued under the Indenture, to be designated as the Company's 7 1/2% Notes due 2005 (the "2005 Notes"), the 7 7/8% Notes due 2010 (the "2010 Notes") and the 8 1/8% Notes due 2030 (the "2030 Notes"). The 2005 Notes shall have the form and terms specified in Article 2 hereof, the 2010 Notes shall have the form and terms specified in Article 3 hereof and the 2030 Notes shall have the form and terms specified in Article 4 hereof.
ARTICLE 2
7 1/2% NOTES DUE 2005
Section 201. Establishment. There are to be authenticated and delivered $600,000,000 principal amount of 2005 Notes, and no further 2005 Notes shall be authenticated and delivered except as provided by Section 304, 305, 306, 906 or 1106 of the Original Indenture. The 2005 Notes shall be issued in fully registered form without coupons. The 2005 Notes shall be substantially in the form set out in Exhibit A hereto.
Each 2005 Note shall be dated the date of authentication thereof and shall bear interest from the date of original issuance thereof or from the most recent Interest Payment Date to which interest has been paid or duly provided for.
Section 202. Definitions. The following defined terms used herein with respect to the 2005 Notes shall, unless the context otherwise requires, have the meanings specified below. Capitalized terms used herein for which no definition is provided herein shall have the meanings set forth in the Original Indenture.
"Interest Payment Dates" means February 16 and August 16, commencing February 16, 2001.
"Original Issue Date" means August 16, 2000.
"Regular Record Date" means, with respect to each Interest Payment Date, the close of business on the 15th calendar day prior to such Interest Payment Date.
"Stated Maturity" means August 16, 2005.
Section 203. Payment of Principal and Interest. The principal of the 2005 Notes
shall be due at Stated Maturity, unless earlier redeemed. The unpaid amount of
the 2005 Notes shall bear interest at the rate of 7 1/2% per annum until paid or
duly provided for, such interest to accrue from the Original Issue Date or from
the most recent Interest Payment Date to which interest has been paid or duly
provided for. Interest shall be paid semi-annually in arrears on each Interest
Payment Date to the Person or Persons in whose name the 2005 Notes are
registered on the Regular Record Date for such Interest Payment Date; provided
that interest payable at the Stated Maturity of principal or on a Redemption
Date as provided herein shall be paid to the Person to whom principal is
payable. Any such interest that is not so punctually paid or duly provided for
shall forthwith cease to be payable to the Holders on such Regular Record Date
and may either be paid to the Person or Persons in whose name the 2005 Notes are
registered at the close of business on a Special Record Date for the payment of
such defaulted interest to be fixed by the Trustee ("Special Record Date"),
notice whereof shall be given to Holders of the 2005 Notes not less than ten
(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,
if any, on which the 2005 Notes may be listed, and upon such notice
as may be required by any such exchange, all as more fully provided in the Original Indenture.
Payments of interest on the 2005 Notes shall include interest accrued to but excluding the respective Interest Payment Dates. Interest payments for the 2005 Notes shall be computed and paid on the basis of a 360-day year of twelve 30-day months. In the event that any date on which interest is payable on the 2005 Notes is not a Business Day, then payment of the interest payable on such date shall be made on the next succeeding day that is a Business day (and without any interest or payment in respect of any such delay) with the same force and effect as if made on the date the payment was originally payable. "Business Day" means a day other than (i) a Saturday or a Sunday, (ii) a day on which banking institutions in the Place of Payment are authorized or obligated by law or executive order to remain closed or (iii) a day on which the Corporate Trust Office is closed for business.
Payment of principal of, premium, if any, and interest on the 2005 Notes shall be made 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. Payments of principal of, premium, if any, and interest on 2005 Notes represented by a Global Security shall be made by wire transfer of immediately available funds to the Holder of such Global Security; provided that, in the case of payments of principal and premium, if any, such Global Security is first surrendered to a Paying Agent. If any of the 2005 Notes are no longer represented by a Global Security, (i) payments of principal, premium, if any, and interest due at the Stated Maturity or earlier redemption of such 2005 Notes shall be made at the office of any Paying Agent upon surrender of such 2005 Notes to such Paying Agent and (ii) payments of interest shall be made, at the option of the Company, subject to such surrender where applicable, (A) by check mailed to the address of the Person entitled thereto as such address shall appear in the Security Register or (B) by wire transfer at such place and to such account at a banking institution in the United States as may be designated in writing to the Trustee at least sixteen (16) days prior to the date for payment by the Person entitled thereto.
Section 204. Denominations. The 2005 Notes shall be issued in denominations of $1,000 or any integral multiple thereof.
Section 205. Global Securities. The 2005 Notes shall initially be issued in the form of one or more Global Securities registered in the name of the Depositary (which initially shall be The Depository Trust Company) or its nominee. Except under the limited circumstances described below, 2005 Notes represented by such Global Security or Global Securities shall not be exchangeable for, and shall not otherwise be issuable as, 2005 Notes in definitive form. The Global Securities described above may not be transferred except by the Depositary to a nominee of the Depositary or by a nominee of the Depositary to the Depositary or another nominee of the Depositary or to a successor Depositary or its nominee.
A Global Security shall be exchangeable for 2005 Notes registered in the names of Persons other than the Depositary or its nominee only if (i) the Depositary notifies the
Company that it is unwilling or unable to continue as a Depositary for such Global Security and no successor Depositary shall have been appointed by the Company within 90 days of receipt by the Company of such notification, or if at any time the Depositary ceases to be a clearing agency registered under the Exchange Act at a time when the Depositary is required to be so registered to act as such Depositary and no successor Depositary shall have been appointed by the Company within 90 days after it becomes aware of such cessation, or (ii) the Company in its sole discretion determines that such Global Security shall be so exchangeable. Any Global Security that is exchangeable pursuant to the preceding sentence shall be exchangeable for 2005 Notes registered in such names as the Depositary shall direct.
Section 206. Redemption at the Option of the Company. The 2005 Notes shall be redeemable, in whole or in part at any time, at the option of the Company on any date (a "Redemption Date"), at a Redemption Price equal to the greater of (i) 100% of the principal amount of the 2005 Notes to be redeemed and (ii) the sum of the present values of the principal amount of the 2005 Notes to be redeemed and the remaining scheduled payments of interest thereon (exclusive of interest accrued to the Redemption Date) from the Redemption Date to the respective scheduled payment dates discounted from their respective scheduled payment dates to the Redemption Date on a semiannual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate (as hereinafter defined) plus 15 basis points, plus, in either case, accrued and unpaid interest on the principal amount being redeemed to such Redemption Date.
"Comparable Treasury Issue" means the United States Treasury security selected by the Quotation Agent as having a maturity comparable to the term between the Redemption Date and the Stated Maturity (the "Remaining Life") 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 with the Remaining Life.
"Comparable Treasury Price" means, with respect to any Redemption Date, the average of two Reference Treasury Dealer Quotations for such Redemption Date.
"Quotation Agent" means the Reference Treasury Dealer appointed by the Company.
"Reference Treasury Dealer" means each of Merrill Lynch Government Securities Inc. and J.P. Morgan Securities Inc., and their respective successors; provided, however, that if any of the foregoing shall cease to be a primary U.S. Government securities dealer in The City of New York (a "Primary Treasury Dealer"), the Company shall substitute therefor another Primary Treasury Dealer.
"Reference Treasury Dealer Quotation" means, with respect to each Reference Treasury 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 Dealer at 5:00 p.m., The City of New York time, on the third Business Day preceding such Redemption Date.
"Treasury Rate" means, with respect to any Redemption Date, (1) the yield, under
the heading which represents the average for the immediately preceding week,
appearing in the most recently published statistical release designated "H.15
(519)" or any successor publication which is published weekly by the Board of
Governors of the Federal Reserve System and which establishes yields on actively
traded United States Treasury securities adjusted to constant maturity under the
caption "Treasury Constant Maturities," for the maturity corresponding to the
Comparable Treasury Issue (if no maturity is within three months before or after
the Stated Maturity, yields for the two published maturities most closely
corresponding to the Comparable Treasury Issue shall be determined, and the
Treasury Rate shall be interpolated or extrapolated from such yields on a
straight-line basis, rounding to the nearest month) or (2) if such release (or
any successor release) is not published during the week preceding the
calculation date or does not contain such yields, the rate per year equal to the
semiannual 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
the Redemption Date. The Treasury Rate will be calculated on the third Business
Day preceding the Redemption Date.
Notwithstanding Section 1104 of the Original Indenture, the notice of redemption with respect to the foregoing redemption need not set forth the Redemption Price but only the manner of calculation thereof.
The Company shall notify the Trustee of the Redemption Price with respect to the foregoing redemption promptly after the calculation thereof. The Trustee shall not be responsible for calculating said Redemption Price.
If less than all of the 2005 Notes are to be redeemed, the Trustee shall select the 2005 Notes or portions of 2005 Notes to be redeemed by such method as the Trustee shall deem fair and appropriate. The Trustee may select for redemption 2005 Notes and portions of 2005 Notes in amounts of whole multiples of $1,000.
The 2005 Notes shall not have a sinking fund.
Section 207. Paying Agents. The Trustee shall initially serve as the principal Paying Agent with respect to the 2005 Notes, and the principal Place of Payment shall initially be the office of The Chase Manhattan Bank at 55 Water Street, New York, New York 10041.
ARTICLE 3
7 7/8% NOTES DUE 2010
Section 301. Establishment. There are to be authenticated and delivered $800,000,000 principal amount of 2010 Notes, and no further 2010 Notes shall be authenticated and delivered except as provided by Section 304, 305, 306, 906 or 1106 of the Original Indenture. The 2010 Notes shall be issued in fully registered form without coupons. The 2010 Notes shall be substantially in the form set out in Exhibit B hereto.
Each 2010 Note shall be dated the date of authentication thereof and shall bear interest from the date of original issuance thereof or from the most recent Interest Payment Date to which interest has been paid or duly provided for.
Section 302. Definitions. The following defined terms used herein with respect to the 2010 Notes shall, unless the context otherwise requires, have the meanings specified below. Capitalized terms used herein for which no definition is provided herein shall have the meanings set forth in the Original Indenture.
"Interest Payment Dates" means February 16 and August 16, commencing February 16, 2001.
"Original Issue Date" means August 16, 2000.
"Regular Record Date" means, with respect to each Interest Payment Date, the close of business on the 15th calendar day prior to such Interest Payment Date.
"Stated Maturity" means August 16, 2010.
Section 303. Payment of Principal and Interest. The principal of the 2010 Notes
shall be due at Stated Maturity, unless earlier redeemed. The unpaid amount of
the 2010 Notes shall bear interest at the rate of 7 7/8% per annum until paid or
duly provided for, such interest to accrue from the Original Issue Date or from
the most recent Interest Payment Date to which interest has been paid or duly
provided for. Interest shall be paid semi-annually in arrears on each Interest
Payment Date to the Person or Persons in whose name the 2010 Notes are
registered on the Regular Record Date for such Interest Payment Date; provided
that interest payable at the Stated Maturity of principal or on a Redemption
Date as provided herein shall be paid to the Person to whom principal is
payable. Any such interest that is not so punctually paid or duly provided for
shall forthwith cease to be payable to the Holders on such Regular Record Date
and may either be paid to the Person or Persons in whose name the 2010 Notes are
registered at the close of business on a Special Record Date for the payment of
such defaulted interest to be fixed by the Trustee ("Special Record Date"),
notice whereof shall be given to Holders of the 2010 Notes not less than ten
(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,
if any, on which the 2010 Notes may be listed, and upon such notice as may be
required by any such exchange, all as more fully provided in the Original
Indenture.
Payments of interest on the 2010 Notes shall include interest accrued to but excluding the respective Interest Payment Dates. Interest payments for the 2010 Notes shall be computed and paid on the basis of a 360-day year of twelve 30-day months. In the event that any date on which interest is payable on the 2010 Notes is not a Business Day, then payment of the interest payable on such date shall be made on the next succeeding day that is a Business day (and without any interest or payment in respect of any such delay) with the same force and effect as if made on the date the payment was originally payable. "Business Day" means a day other than (i) a Saturday or a Sunday, (ii) a day on which
banking institutions in the Place of Payment are authorized or obligated by law or executive order to remain closed or (iii) a day on which the Corporate Trust Office is closed for business.
Payment of principal of, premium, if any, and interest on the 2010 Notes shall be made 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. Payments of principal of, premium, if any, and interest on 2010 Notes represented by a Global Security shall be made by wire transfer of immediately available funds to the Holder of such Global Security; provided that, in the case of payments of principal and premium, if any, such Global Security is first surrendered to a Paying Agent. If any of the 2010 Notes are no longer represented by a Global Security, (i) payments of principal, premium, if any, and interest due at the Stated Maturity or earlier redemption of such 2010 Notes shall be made at the office of any Paying Agent upon surrender of such 2010 Notes to such Paying Agent and (ii) payments of interest shall be made, at the option of the Company, subject to such surrender where applicable, (A) by check mailed to the address of the Person entitled thereto as such address shall appear in the Security Register or (B) by wire transfer at such place and to such account at a banking institution in the United States as may be designated in writing to the Trustee at least sixteen (16) days prior to the date for payment by the Person entitled thereto.
Section 304. Denominations. The 2010 Notes shall be issued in denominations of $1,000 or any integral multiple thereof.
Section 305. Global Securities. The 2010 Notes shall initially be issued in the form of one or more Global Securities registered in the name of the Depositary (which initially shall be The Depository Trust Company) or its nominee. Except under the limited circumstances described below, 2010 Notes represented by such Global Security or Global Securities shall not be exchangeable for, and shall not otherwise be issuable as, 2010 Notes in definitive form. The Global Securities described above may not be transferred except by the Depositary to a nominee of the Depositary or by a nominee of the Depositary to the Depositary or another nominee of the Depositary or to a successor Depositary or its nominee.
A Global Security shall be exchangeable for 2010 Notes registered in the names of Persons other than the Depositary or its nominee only if (i) the Depositary notifies the Company that it is unwilling or unable to continue as a Depositary for such Global Security and no successor Depositary shall have been appointed by the Company within 90 days of receipt by the Company of such notification, or if at any time the Depositary ceases to be a clearing agency registered under the Exchange Act at a time when the Depositary is required to be so registered to act as such Depositary and no successor Depositary shall have been appointed by the Company within 90 days after it becomes aware of such cessation, or (ii) the Company in its sole discretion determines that such Global Security shall be so exchangeable. Any Global Security that is exchangeable pursuant to the preceding sentence shall be exchangeable for 2010 Notes registered in such names as the Depositary shall direct.
Section 306. Redemption at the Option of the Company. The 2010 Notes shall be redeemable, in whole or in part at any time, at the option of the Company on any date (a "Redemption Date"), at a Redemption Price equal to the greater of (i) 100% of the principal amount of the 2010 Notes to be redeemed and (ii) the sum of the present values of the principal amount of the 2010 Notes to be redeemed and the remaining scheduled payments of interest thereon (exclusive of interest accrued to the Redemption Date) from the Redemption Date to the respective scheduled payment dates discounted from their respective scheduled payment dates to the Redemption Date on a semiannual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate (as hereinafter defined) plus 20 basis points, plus, in either case, accrued and unpaid interest on the principal amount being redeemed to such Redemption Date.
"Comparable Treasury Issue" means the United States Treasury security selected by the Quotation Agent as having a maturity comparable to the term between the Redemption Date and the Stated Maturity (the "Remaining Life") 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 with the Remaining Life.
"Comparable Treasury Price" means, with respect to any Redemption Date, the average of two Reference Treasury Dealer Quotations for such Redemption Date.
"Quotation Agent" means the Reference Treasury Dealer appointed by the Company.
"Reference Treasury Dealer" means each of Merrill Lynch Government Securities Inc. and J.P. Morgan Securities Inc., and their respective successors; provided, however, that if any of the foregoing shall cease to be a primary U.S. Government securities dealer in The City of New York (a "Primary Treasury Dealer"), the Company shall substitute therefor another Primary Treasury Dealer.
"Reference Treasury Dealer Quotation" means, with respect to each Reference Treasury 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 Dealer at 5:00 p.m., The City of New York time, on the third Business Day preceding such Redemption Date.
"Treasury Rate" means, with respect to any Redemption Date, (1) the yield, under
the heading which represents the average for the immediately preceding week,
appearing in the most recently published statistical release designated "H.15
(519)" or any successor publication which is published weekly by the Board of
Governors of the Federal Reserve System and which establishes yields on actively
traded United States Treasury securities adjusted to constant maturity under the
caption "Treasury Constant Maturities," for the maturity corresponding to the
Comparable Treasury Issue (if no maturity is within three months before or after
the Stated Maturity, yields for the two published maturities most closely
corresponding to the Comparable Treasury Issue shall be determined, and the
Treasury Rate shall be interpolated or extrapolated from such yields on a
straight-line basis, rounding to the nearest month) or (2) if such release (or
any successor release) is
not published during the week preceding the calculation date or does not contain such yields, the rate per year equal to the semiannual 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 the Redemption Date. The Treasury Rate will be calculated on the third Business Day preceding the Redemption Date.
Notwithstanding Section 1104 of the Original Indenture, the notice of redemption with respect to the foregoing redemption need not set forth the Redemption Price but only the manner of calculation thereof.
The Company shall notify the Trustee of the Redemption Price with respect to the foregoing redemption promptly after the calculation thereof. The Trustee shall not be responsible for calculating said Redemption Price.
If less than all of the 2010 Notes are to be redeemed, the Trustee shall select the 2010 Notes or portions of 2010 Notes to be redeemed by such method as the Trustee shall deem fair and appropriate. The Trustee may select for redemption 2010 Notes and portions of 2010 Notes in amounts of whole multiples of $1,000.
The 2010 Notes shall not have a sinking fund.
Section 307. Paying Agents. The Trustee shall initially serve as the principal Paying Agent with respect to the 2010 Notes, and the principal Place of Payment shall initially be the office of The Chase Manhattan Bank at 55 Water Street, New York, New York 10041.
ARTICLE 4
8 1/8% NOTES DUE 2030
Section 401. Establishment. There are to be authenticated and delivered $300,000,000 principal amount of 2030 Notes, and no further 2030 Notes shall be authenticated and delivered except as provided by Section 304, 305, 306, 906 or 1106 of the Original Indenture. The 2030 Notes shall be issued in fully registered form without coupons. The 2030 Notes shall be substantially in the form set out in Exhibit C hereto.
Each 2030 Note shall be dated the date of authentication thereof and shall bear interest from the date of original issuance thereof or from the most recent Interest Payment Date to which interest has been paid or duly provided for.
Section 402. Definitions. The following defined terms used herein with respect to the 2030 Notes shall, unless the context otherwise requires, have the meanings specified below. Capitalized terms used herein for which no definition is provided herein shall have the meanings set forth in the Original Indenture.
"Interest Payment Dates" means February 16 and August 16, commencing February 16, 2001.
"Original Issue Date" means August 16, 2000.
"Regular Record Date" means, with respect to each Interest Payment Date, the close of business on the 15th calendar day prior to such Interest Payment Date.
"Stated Maturity" means August 16, 2030.
Section 403. Payment of Principal and Interest. The principal of the 2030 Notes
shall be due at Stated Maturity, unless earlier redeemed. The unpaid amount of
the 2030 Notes shall bear interest at the rate of 8 1/8% per annum until paid or
duly provided for, such interest to accrue from the Original Issue Date or from
the most recent Interest Payment Date to which interest has been paid or duly
provided for. Interest shall be paid semi-annually in arrears on each Interest
Payment Date to the Person or Persons in whose name the 2030 Notes are
registered on the Regular Record Date for such Interest Payment Date; provided
that interest payable at the Stated Maturity of principal or on a Redemption
Date as provided herein shall be paid to the Person to whom principal is
payable. Any such interest that is not so punctually paid or duly provided for
shall forthwith cease to be payable to the Holders on such Regular Record Date
and may either be paid to the Person or Persons in whose name the 2030 Notes are
registered at the close of business on a Special Record Date for the payment of
such defaulted interest to be fixed by the Trustee ("Special Record Date"),
notice whereof shall be given to Holders of the 2030 Notes not less than ten
(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,
if any, on which the 2030 Notes may be listed, and upon such notice as may be
required by any such exchange, all as more fully provided in the Original
Indenture.
Payments of interest on the 2030 Notes shall include interest accrued to but excluding the respective Interest Payment Dates. Interest payments for the 2030 Notes shall be computed and paid on the basis of a 360-day year of twelve 30-day months. In the event that any date on which interest is payable on the 2030 Notes is not a Business Day, then payment of the interest payable on such date shall be made on the next succeeding day that is a Business day (and without any interest or payment in respect of any such delay) with the same force and effect as if made on the date the payment was originally payable. "Business Day" means a day other than (i) a Saturday or a Sunday, (ii) a day on which banking institutions in the Place of Payment are authorized or obligated by law or executive order to remain closed or (iii) a day on which the Corporate Trust Office is closed for business.
Payment of principal of, premium, if any, and interest on the 2030 Notes shall be made 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. Payments of principal of, premium, if any, and interest on 2030 Notes represented by a Global Security shall be made by wire transfer of immediately available funds to the Holder of such Global Security; provided
that, in the case of payments of principal and premium, if any, such Global Security is first surrendered to a Paying Agent. If any of the 2030 Notes are no longer represented by a Global Security, (i) payments of principal, premium, if any, and interest due at the Stated Maturity or earlier redemption of such 2030 Notes shall be made at the office of any Paying Agent upon surrender of such 2030 Notes to such Paying Agent and (ii) payments of interest shall be made, at the option of the Company, subject to such surrender where applicable, (A) by check mailed to the address of the Person entitled thereto as such address shall appear in the Security Register or (B) by wire transfer at such place and to such account at a banking institution in the United States as may be designated in writing to the Trustee at least sixteen (16) days prior to the date for payment by the Person entitled thereto.
Section 404. Denominations. The 2030 Notes shall be issued in denominations of $1,000 or any integral multiple thereof.
Section 405. Global Securities. The 2030 Notes shall initially be issued in the form of one or more Global Securities registered in the name of the Depositary (which initially shall be The Depository Trust Company) or its nominee. Except under the limited circumstances described below, 2030 Notes represented by such Global Security or Global Securities shall not be exchangeable for, and shall not otherwise be issuable as, 2030 Notes in definitive form. The Global Securities described above may not be transferred except by the Depositary to a nominee of the Depositary or by a nominee of the Depositary to the Depositary or another nominee of the Depositary or to a successor Depositary or its nominee.
A Global Security shall be exchangeable for 2030 Notes registered in the names of Persons other than the Depositary or its nominee only if (i) the Depositary notifies the Company that it is unwilling or unable to continue as a Depositary for such Global Security and no successor Depositary shall have been appointed by the Company within 90 days of receipt by the Company of such notification, or if at any time the Depositary ceases to be a clearing agency registered under the Exchange Act at a time when the Depositary is required to be so registered to act as such Depositary and no successor Depositary shall have been appointed by the Company within 90 days after it becomes aware of such cessation, or (ii) the Company in its sole discretion determines that such Global Security shall be so exchangeable. Any Global Security that is exchangeable pursuant to the preceding sentence shall be exchangeable for 2030 Notes registered in such names as the Depositary shall direct.
Section 406. Redemption at the Option of the Company. The 2030 Notes shall be redeemable, in whole or in part at any time, at the option of the Company on any date (a "Redemption Date"), at a Redemption Price equal to the greater of (i) 100% of the principal amount of the 2030 Notes to be redeemed and (ii) the sum of the present values of the principal amount of the 2030 Notes to be redeemed and the remaining scheduled payments of interest thereon (exclusive of interest accrued to the Redemption Date) from the Redemption Date to the respective scheduled payment dates discounted from their respective scheduled payment dates to the Redemption Date on a semiannual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate (as
hereinafter defined) plus 25 basis points, plus, in either case, accrued and unpaid interest on the principal amount being redeemed to such Redemption Date.
"Comparable Treasury Issue" means the United States Treasury security selected by the Quotation Agent as having a maturity comparable to the term between the Redemption Date and the Stated Maturity (the "Remaining Life") 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 with the Remaining Life.
"Comparable Treasury Price" means, with respect to any Redemption Date, the average of two Reference Treasury Dealer Quotations for such Redemption Date.
"Quotation Agent" means the Reference Treasury Dealer appointed by the Company.
"Reference Treasury Dealer" means each of Merrill Lynch Government Securities Inc. and J.P. Morgan Securities Inc., and their respective successors; provided, however, that if any of the foregoing shall cease to be a primary U.S. Government securities dealer in The City of New York (a "Primary Treasury Dealer"), the Company shall substitute therefor another Primary Treasury Dealer.
"Reference Treasury Dealer Quotation" means, with respect to each Reference Treasury 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 Dealer at 5:00 p.m., The City of New York time, on the third Business Day preceding such Redemption Date.
"Treasury Rate" means, with respect to any Redemption Date, (1) the yield, under
the heading which represents the average for the immediately preceding week,
appearing in the most recently published statistical release designated "H.15
(519)" or any successor publication which is published weekly by the Board of
Governors of the Federal Reserve System and which establishes yields on actively
traded United States Treasury securities adjusted to constant maturity under the
caption "Treasury Constant Maturities," for the maturity corresponding to the
Comparable Treasury Issue (if no maturity is within three months before or after
the Stated Maturity, yields for the two published maturities most closely
corresponding to the Comparable Treasury Issue shall be determined, and the
Treasury Rate shall be interpolated or extrapolated from such yields on a
straight-line basis, rounding to the nearest month) or (2) if such release (or
any successor release) is not published during the week preceding the
calculation date or does not contain such yields, the rate per year equal to the
semiannual 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
the Redemption Date. The Treasury Rate will be calculated on the third Business
Day preceding the Redemption Date.
Notwithstanding Section 1104 of the Original Indenture, the notice of redemption with respect to the foregoing redemption need not set forth the Redemption Price but only the manner of calculation thereof.
The Company shall notify the Trustee of the Redemption Price with respect to the foregoing redemption promptly after the calculation thereof. The Trustee shall not be responsible for calculating said Redemption Price.
If less than all of the 2030 Notes are to be redeemed, the Trustee shall select the 2030 Notes or portions of 2030 Notes to be redeemed by such method as the Trustee shall deem fair and appropriate. The Trustee may select for redemption 2030 Notes and portions of 2030 Notes in amounts of whole multiples of $1,000.
The 2030 Notes shall not have a sinking fund.
Section 407. Paying Agents. The Trustee shall initially serve as the principal Paying Agent with respect to the 2030 Notes, and the principal Place of Payment shall initially be the office of The Chase Manhattan Bank at 55 Water Street, New York, New York 10041.
ARTICLE 5
MISCELLANEOUS PROVISIONS
Section 501. Recitals by Company. The recitals in this First Supplemental Indenture are made by the Company only and not by the Trustee, and all of the provisions contained in the Original Indenture in respect of the rights, privileges, immunities, powers and duties of the Trustee shall be applicable in respect of the 2005 Notes, the 2010 Notes and the 2030 Notes and this First Supplemental Indenture as fully and with like effect as if set forth herein in full.
Section 502. Ratification and Incorporation of Original Indenture. As supplemented hereby, the Original Indenture is in all respects ratified and confirmed, and the Original Indenture and this First Supplemental Indenture shall be read, taken and construed as one and the same instrument.
Section 503. Executed in Counterparts. This First Supplemental Indenture may be executed in several counterparts, each of which shall be deemed to be an original, and such counterparts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, each party hereto has caused this instrument to be signed in its name and behalf by its duly authorized officers, all as of the day and year first above written.
Duke Energy Field Services, LLC
The Chase Manhattan Bank, as Trustee
EXHIBIT A
FORM OF
7 1/2% NOTE
DUE 2005
No. CUSIP No. 26439XAA1
DUKE ENERGY FIELD SERVICES, LLC
7 1/2% NOTE
DUE 2005
Principal Amount:
Regular Record Date: close of business on the 15th calendar day prior to the relevant Interest Payment Date
Original Issue Date: August 16, 2000
Stated Maturity: August 16, 2005
Interest Payment Dates: February 16 and August 16, commencing February 16, 2001
Interest Rate: 7 1/2% per annum
Authorized Denomination: $1,000 or any integral multiple thereof
Duke Energy Field Services, LLC, a limited liability company duly organized and existing under the laws of the state of Delaware (the "Company," which term includes any successor company under the Indenture referred to on the reverse hereof), for value received, hereby promises to pay to , or registered assigns, the principal sum of DOLLARS ($ ) on the Stated Maturity shown above and to pay interest thereon from the Original Issue Date shown above, or from the most recent Interest Payment Date to which interest has been paid or duly provided for, semi-annually in arrears on each Interest Payment Date as specified above, commencing on the Interest Payment Date next succeeding the Original Issue Date shown above and on the Stated Maturity at the rate per annum shown above (the "Interest Rate") until the principal hereof is paid or made available for payment, provided that principal and premium, and any such installment of interest, which is overdue shall bear interest at the same rate per annum (to the extent that the payment of such interest shall be legally enforceable), from the dates such amounts are due until they are paid or made available for payment, and such interest shall be payable on demand. The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date (other than an Interest Payment Date that is the Stated Maturity or a Redemption Date) will, as provided in the 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 as specified above next preceding such Interest Payment Date; provided that any interest payable at Stated Maturity or on a Redemption Date will be paid to the Person to whom principal is payable. Except as otherwise provided in the Indenture, 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 the Holder of this Security 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, if any, on which the Securities of this series shall be listed, and upon such notice as may be required by any such exchange, all as more fully provided in the Indenture.
Payments of interest on this Security will include interest accrued to but excluding the respective Interest Payment Dates. Interest payments for this Security shall be computed and paid on the basis of a 360-day year of twelve 30-day months. In the event that any date on which interest is payable on this Security is not a Business Day, then payment of the interest payable on such date will be made on the next succeeding day that is a Business Day (and without any interest or payment in respect of any such delay) with the same force and effect as if made on the date the payment was originally payable. "Business Day" means a day other than (i) a Saturday or a Sunday, (ii) a day on which banking institutions in the place of payment are authorized or obligated by law or executive order to remain closed or (iii) a day on which the Corporate Trust Office is closed for business.
Payment of principal of, premium, if any, and interest on the Securities of this series shall be made 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. Payments of principal of, premium, if any, and interest on Securities of this series represented by a Global Security shall be made by wire transfer of immediately available funds to the Holder of such Global Security; provided that, in the case of payments of principal and premium, if any, such Global Security is first surrendered to the Paying Agent. If any of the Securities of this series are no longer represented by a Global Security, (i) payments of principal, premium, if any, and interest due at the Stated Maturity or earlier redemption of such Securities shall be made at the office of the Paying Agent, which is initially at 55 Water Street, New York, New York 10041, upon surrender of such Securities to the Paying Agent, and (ii) payments of interest shall be made, at the option of the Company, subject to such surrender where applicable, (A) by check mailed to the address of the Person entitled thereto as such address shall appear in the Security Register or (B) by wire transfer at such place and to such account at a banking institution in the United States as may be designated in writing to the Trustee at least sixteen (16) days prior to the date for payment by the Person entitled thereto.
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 by manual signature, this Security shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.
Dated:
Duke Energy Field Services, LLC
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.
The Chase Manhattan Bank, as Trustee
(REVERSE SIDE OF SECURITY)
This Security is one of a duly authorized issue of Securities of the Company (the "Securities"), issued and issuable in one or more series under an Indenture, dated as of August 16, 2000, as supplemented (the "Indenture"), between the Company and The Chase Manhattan Bank, as Trustee (the "Trustee," which term includes any successor trustee under the Indenture), to which Indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective rights, limitation of rights, duties and immunities thereunder of the Company, the Trustee and the Holders of the Securities issued thereunder and of the terms upon which said Securities are, and are to be, authenticated and delivered. This Security is one of the series designated as the 7 1/2% Notes due 2005 (the "2005 Notes"), limited in aggregate principal amount of $600,000,000. Capitalized terms used herein for which no definitions are provided herein shall have the meanings set forth in the Indenture.
The 2005 Notes shall be redeemable, in whole or in part at any time, at the option of the Company on any date (a "Redemption Date"), at a Redemption Price equal to the greater of (i) 100% of the principal amount of the 2005 Notes to be redeemed and (ii) the sum of the present values of the principal amount of the 2005 Notes to be redeemed and the remaining scheduled payments of interest thereon (exclusive of interest accrued to the Redemption Date) from the Redemption Date to the respective scheduled payment dates discounted from their respective scheduled payment dates to the Redemption Date on a semiannual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate (as hereinafter defined) plus 15 basis points, plus, in either case, accrued and unpaid interest on the principal amount being redeemed to such Redemption Date.
"Comparable Treasury Issue" means the United States Treasury security selected by the Quotation Agent as having a maturity comparable to the term between the Redemption Date and the Stated Maturity (the "Remaining Life") 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 with the Remaining Life.
"Comparable Treasury Price" means, with respect to any Redemption Date, the average of two Reference Treasury Dealer Quotations for such Redemption Date.
"Quotation Agent" means the Reference Treasury Dealer appointed by the Company.
"Reference Treasury Dealer" means each of Merrill Lynch Government Securities Inc. and J.P. Morgan Securities Inc., and their respective successors; provided, however, that if any of the foregoing shall cease to be a primary U.S. Government securities dealer in The City of New York (a "Primary Treasury Dealer"), the Company shall substitute therefor another Primary Treasury Dealer.
"Reference Treasury Dealer Quotation" means, with respect to each Reference Treasury 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 Dealer at 5:00 p.m., The City of New York time, on the third Business Day preceding such Redemption Date.
"Treasury Rate" means, with respect to any Redemption Date, (1) the yield, under
the heading which represents the average for the immediately preceding week,
appearing in the most recently published statistical release designated "H.15
(519)" or any successor publication which is published weekly by the Board of
Governors of the Federal Reserve System and which establishes yields on actively
traded United States Treasury securities adjusted to constant maturity under the
caption "Treasury Constant Maturities," for the maturity corresponding to the
Comparable Treasury Issue (if no maturity is within three months before or after
the Stated Maturity, yields for the two published maturities most closely
corresponding to the Comparable Treasury Issue shall be determined, and the
Treasury Rate shall be interpolated or extrapolated from such yields on a
straight-line basis, rounding to the nearest month) or (2) if such release (or
any successor release) is not published during the week preceding the
calculation date or does not contain such yields, the rate per year equal to the
semiannual 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
the Redemption Date. The Treasury Rate will be calculated on the third Business
Day preceding the Redemption Date.
The Trustee shall initially serve as the principal Paying Agent with respect to the Securities of this series, and the principal Place of Payment shall initially be at the office of The Chase Manhattan Bank at 55 Water Street, New York, New York 10041.
Notice of any redemption by the Company will be mailed at least 30 days but not more than 60 days before any Redemption Date to each Holder of 2005 Notes to be redeemed. If less than all the 2005 Notes are to be redeemed at the option of the Company, the Trustee shall select, in such manner as it shall deem fair and appropriate, the 2005 Notes to be redeemed in whole or in part. The Trustee may select for redemption 2005 Notes and portions of 2005 Notes in amounts of whole multiples of $1,000.
If an Event of Default with respect to the 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, with the effect and subject to the conditions provided in the Indenture.
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 all series affected under the Indenture at any time by the Company and the Trustee with the consent of the Holders of not less than a majority in principal amount of the Outstanding Securities of all series affected thereby (voting as one class). The Indenture contains provisions permitting the Holders of not less than a majority in principal amount of the Outstanding Securities of all series with respect to which a default under the Indenture shall have occurred and be continuing (voting as one class), on behalf of the Holders of the Securities of all such series, to waive, with certain exceptions, such default under the Indenture and its consequences. The Indenture also permits the Holders of not less than a majority 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 affecting such series. 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 hereof 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 not less than a majority in principal amount of the Securities of this series at the time Outstanding 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 principal amount of Securities of this series at the time Outstanding 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 interest on this Security at the times, place and rate, and in the coin or currency, herein prescribed.
The Indenture contains provisions for defeasance at any time of the entire indebtedness of the Securities of this series or of any Securities of this series and for covenant defeasance at any time of certain covenants in the Indenture upon compliance with certain conditions set forth in the Indenture.
Prior to due presentment of this Security for registration of transfer, 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 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.
The Securities of this series are issuable only in registered form without coupons in denominations of $1,000 and any integral multiple thereof. As provided in the Indenture and subject to the limitations therein set forth, Securities of this series are exchangeable for a like aggregate principal amount of Securities of this series of like tenor of a different authorized denomination, as requested by the Holder surrendering the same upon surrender of the Security or Securities to be exchanged at the office or agency of the Company.
As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Security is registrable in the Security Register, upon surrender of this Security for registration of transfer at any office or agency of the Company for such purpose, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar and duly executed by, the Holder hereof or his attorney duly authorized in writing, and thereupon one or more new Securities of this series, of authorized denominations and of like tenor and for the same aggregate principal amount, will be issued to the designated transferee or transferees.
No service charge shall be made for any such registration of transfer or exchange, but the Company may require payment of a sum efficient to cover any tax or other governmental charge payable in connection therewith.
This Security shall be governed by, and construed in accordance with, the laws of the State of New York.
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this instrument, shall be construed as though they were written out in full according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - ___ Custodian _______
(Cust) (Minor)
TEN ENT - as tenants by the entireties under Uniform Gifts to
Minors Act _______
(State)
JT TEN - as joint tenants with rights of
survivorship and not as tenants in
common
|
Additional abbreviations may also be used though not on the above list.
FOR VALUE RECEIVED, the undersigned hereby sell(s) and transfer(s) unto ________
Dated:_______________________________ _____________________________________
NOTICE: The signature to this
assignment must correspond
with the name as written upon
the face of the within
instrument in every
particular without alteration
or enlargement, or any change
whatever.
|
EXHIBIT B
FORM OF
7 7/8% NOTE
DUE 2010
No. CUSIP No. 26439XAB9
DUKE ENERGY FIELD SERVICES, LLC
7 7/8% NOTE
DUE 2010
Principal Amount:
Regular Record Date: close of business on the 15th calendar day prior to the relevant Interest Payment Date
Original Issue Date: August 16, 2000
Stated Maturity: August 16, 2010
Interest Payment Dates: February 16 and August 16, commencing February 16, 2001
Interest Rate: 7 7/8% per annum
Authorized Denomination: $1,000 or any integral multiple thereof
Duke Energy Field Services, LLC, a limited liability company duly organized and existing under the laws of the state of Delaware (the "Company," which term includes any successor company under the Indenture referred to on the reverse hereof), for value received, hereby promises to pay to , or registered assigns, the principal sum of DOLLARS ($ ) on the Stated Maturity shown above and to pay interest thereon from the Original Issue Date shown above, or from the most recent Interest Payment Date to which interest has been paid or duly provided for, semi-annually in arrears on each Interest Payment Date as specified above, commencing on the Interest Payment Date next succeeding the Original Issue Date shown above and on the Stated Maturity at the rate per annum shown above (the "Interest Rate") until the principal hereof is paid or made available for payment, provided that principal and premium, and any such installment of interest, which is overdue shall bear interest at the same rate per annum (to the extent that the payment of such interest shall be legally enforceable), from the dates such amounts are due until they are paid or made available for payment, and such interest shall be payable on demand. The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date (other than an Interest Payment Date that is the Stated Maturity or a Redemption Date) will, as provided in the 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 as specified above next preceding such Interest Payment Date; provided that any interest payable at Stated Maturity or on a Redemption Date will be paid to the Person to whom principal is payable. Except as otherwise provided in the Indenture, 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 the Holder of this Security 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, if any, on which the Securities of this series shall be listed, and upon such notice as may be required by any such exchange, all as more fully provided in the Indenture.
Payments of interest on this Security will include interest accrued to but excluding the respective Interest Payment Dates. Interest payments for this Security shall be computed and paid on the basis of a 360-day year of twelve 30-day months. In the event that any date on which interest is payable on this Security is not a Business Day, then payment of the interest payable on such date will be made on the next succeeding day that is a Business Day (and without any interest or payment in respect of any such delay) with the same force and effect as if made on the date the payment was originally payable. "Business Day" means a day other than (i) a Saturday or a Sunday, (ii) a day on which banking institutions in the place of payment are authorized or obligated by law or executive order to remain closed or (iii) a day on which the Corporate Trust Office is closed for business.
Payment of principal of, premium, if any, and interest on the Securities of this series shall be made 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. Payments of principal of, premium, if any, and interest on Securities of this series represented by a Global Security shall be made by wire transfer of immediately available funds to the Holder of such Global Security; provided that, in the case of payments of principal and premium, if any, such Global Security is first surrendered to the Paying Agent. If any of the Securities of this series are no longer represented by a Global Security, (i) payments of principal, premium, if any, and interest due at the Stated Maturity or earlier redemption of such Securities shall be made at the office of the Paying Agent, which is initially at 55 Water Street, New York, New York 10041, upon surrender of such Securities to the Paying Agent, and (ii) payments of interest shall be made, at the option of the Company, subject to such surrender where applicable, (A) by check mailed to the address of the Person entitled thereto as such address shall appear in the Security Register or (B) by wire transfer at such place and to such account at a banking institution in the United States as may be designated in writing to the Trustee at least sixteen (16) days prior to the date for payment by the Person entitled thereto.
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 by manual signature, this Security shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.
Dated:
Duke Energy Field Services, LLC
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.
The Chase Manhattan Bank, as Trustee
(REVERSE SIDE OF SECURITY)
This Security is one of a duly authorized issue of Securities of the Company (the "Securities"), issued and issuable in one or more series under an Indenture, dated as of August 16, 2000, as supplemented (the "Indenture"), between the Company and The Chase Manhattan Bank, as Trustee (the "Trustee," which term includes any successor trustee under the Indenture), to which Indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective rights, limitation of rights, duties and immunities thereunder of the Company, the Trustee and the Holders of the Securities issued thereunder and of the terms upon which said Securities are, and are to be, authenticated and delivered. This Security is one of the series designated as the 7 7/8% Notes due 2010 (the "2010 Notes"), limited in aggregate principal amount of $800,000,000. Capitalized terms used herein for which no definitions are provided herein shall have the meanings set forth in the Indenture.
The 2010 Notes shall be redeemable, in whole or in part at any time, at the option of the Company on any date (a "Redemption Date"), at a Redemption Price equal to the greater of (i) 100% of the principal amount of the 2010 Notes to be redeemed and (ii) the sum of the present values of the principal amount of the 2010 Notes to be redeemed and the remaining scheduled payments of interest thereon (exclusive of interest accrued to the Redemption Date) from the Redemption Date to the respective scheduled payment dates discounted from their respective scheduled payment dates to the Redemption Date on a semiannual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate (as hereinafter defined) plus 20 basis points, plus, in either case, accrued and unpaid interest on the principal amount being redeemed to such Redemption Date.
"Comparable Treasury Issue" means the United States Treasury security selected by the Quotation Agent as having a maturity comparable to the term between the Redemption Date and the Stated Maturity (the "Remaining Life") 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 with the Remaining Life.
"Comparable Treasury Price" means, with respect to any Redemption Date, the average of two Reference Treasury Dealer Quotations for such Redemption Date.
"Quotation Agent" means the Reference Treasury Dealer appointed by the Company.
"Reference Treasury Dealer" means each of Merrill Lynch Government Securities Inc. and J.P. Morgan Securities Inc., and their respective successors; provided, however, that if any of the foregoing shall cease to be a primary U.S. Government securities dealer in The City of New York (a "Primary Treasury Dealer"), the Company shall substitute therefor another Primary Treasury Dealer.
"Reference Treasury Dealer Quotation" means, with respect to each Reference Treasury 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 Dealer at 5:00 p.m., The City of New York time, on the third Business Day preceding such Redemption Date.
"Treasury Rate" means, with respect to any Redemption Date, (1) the yield, under
the heading which represents the average for the immediately preceding week,
appearing in the most recently published statistical release designated "H.15
(519)" or any successor publication which is published weekly by the Board of
Governors of the Federal Reserve System and which establishes yields on actively
traded United States Treasury securities adjusted to constant maturity under the
caption "Treasury Constant Maturities," for the maturity corresponding to the
Comparable Treasury Issue (if no maturity is within three months before or after
the Stated Maturity, yields for the two published maturities most closely
corresponding to the Comparable Treasury Issue shall be determined, and the
Treasury Rate shall be interpolated or extrapolated from such yields on a
straight-line basis, rounding to the nearest month) or (2) if such release (or
any successor release) is not published during the week preceding the
calculation date or does not contain such yields, the rate per year equal to the
semiannual 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
the Redemption Date. The Treasury Rate will be calculated on the third Business
Day preceding the Redemption Date.
The Trustee shall initially serve as the principal Paying Agent with respect to the Securities of this series, and the principal Place of Payment shall initially be at the office of The Chase Manhattan Bank at 55 Water Street, New York, New York 10041.
Notice of any redemption by the Company will be mailed at least 30 days but not more than 60 days before any Redemption Date to each Holder of 2010 Notes to be redeemed. If less than all the 2010 Notes are to be redeemed at the option of the Company, the Trustee shall select, in such manner as it shall deem fair and appropriate, the 2010 Notes to be redeemed in whole or in part. The Trustee may select for redemption 2010 Notes and portions of 2010 Notes in amounts of whole multiples of $1,000.
If an Event of Default with respect to the 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, with the effect and subject to the conditions provided in the Indenture.
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 all series affected under the Indenture at any time by the Company and the Trustee with the consent of the Holders of not less than a majority in principal amount of the Outstanding Securities of all series affected thereby (voting as one class). The Indenture contains provisions permitting the Holders of not less than a majority in principal amount of the Outstanding Securities of all series with respect to which a default under the Indenture shall have occurred and be continuing (voting as one class), on behalf of the Holders of the Securities of all such series, to waive, with certain exceptions, such default under the Indenture and its consequences. The Indenture also permits the Holders of not less than a majority 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 affecting such series. 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 hereof 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 not less than a majority in principal amount of the Securities of this series at the time Outstanding 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 principal amount of Securities of this series at the time Outstanding 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 interest on this Security at the times, place and rate, and in the coin or currency, herein prescribed.
The Indenture contains provisions for defeasance at any time of the entire indebtedness of the Securities of this series or of any Securities of this series and for covenant defeasance at any time of certain covenants in the Indenture upon compliance with certain conditions set forth in the Indenture.
Prior to due presentment of this Security for registration of transfer, 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 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.
The Securities of this series are issuable only in registered form without coupons in denominations of $1,000 and any integral multiple thereof. As provided in the Indenture and subject to the limitations therein set forth, Securities of this series are exchangeable for a like aggregate principal amount of Securities of this series of like tenor of a different authorized denomination, as requested by the Holder surrendering the same upon surrender of the Security or Securities to be exchanged at the office or agency of the Company.
As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Security is registrable in the Security Register, upon surrender of this Security for registration of transfer at any office or agency of the Company for such purpose, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar and duly executed by, the Holder hereof or his attorney duly authorized in writing, and thereupon one or more new Securities of this series, of authorized denominations and of like tenor and for the same aggregate principal amount, will be issued to the designated transferee or transferees.
No service charge shall be made for any such registration of transfer or exchange, but the Company may require payment of a sum efficient to cover any tax or other governmental charge payable in connection therewith.
This Security shall be governed by, and construed in accordance with, the laws of the State of New York.
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this instrument, shall be construed as though they were written out in full according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - ___ Custodian _______
(Cust) (Minor)
TEN ENT - as tenants by the entireties under Uniform Gifts to
Minors Act _______
(State)
JT TEN - as joint tenants with rights of
survivorship and not as tenants in
common
|
Additional abbreviations may also be used though not on the above list.
FOR VALUE RECEIVED, the undersigned hereby sell(s) and transfer(s) unto ________
Dated:____________________________ ________________________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of the within instrument
in every particular without alteration
or enlargement, or any change whatever.
|
EXHIBIT C
FORM OF
8 1/8% NOTE
DUE 2030
No. CUSIP No. 26439XAC7
DUKE ENERGY FIELD SERVICES, LLC
8 1/8% NOTE
DUE 2030
Principal Amount:
Regular Record Date: close of business on the 15th calendar day prior to the relevant Interest Payment Date
Original Issue Date: August 16, 2000
Stated Maturity: August 16, 2030
Interest Payment Dates: February 16 and August 16, commencing February 16, 2001
Interest Rate: 8 1/8% per annum
Authorized Denomination: $1,000 or any integral multiple thereof
Duke Energy Field Services, LLC, a limited liability company duly organized and existing under the laws of the state of Delaware (the "Company," which term includes any successor company under the Indenture referred to on the reverse hereof), for value received, hereby promises to pay to , or registered assigns, the principal sum of DOLLARS ($ ) on the Stated Maturity shown above and to pay interest thereon from the Original Issue Date shown above, or from the most recent Interest Payment Date to which interest has been paid or duly provided for, semi-annually in arrears on each Interest Payment Date as specified above, commencing on the Interest Payment Date next succeeding the Original Issue Date shown above and on the Stated Maturity at the rate per annum shown above (the "Interest Rate") until the principal hereof is paid or made available for payment, provided that principal and premium, and any such installment of interest, which is overdue shall bear interest at the same rate per annum (to the extent that the payment of such interest shall be legally enforceable), from the dates such amounts are due until they are paid or made available for payment, and such interest shall be payable on demand. The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date (other than an Interest Payment Date that is the Stated Maturity or a Redemption Date) will, as provided in the 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 as specified above next preceding such Interest Payment Date; provided that any interest payable at Stated Maturity or on a Redemption Date will be paid to the Person to whom principal is payable. Except as otherwise provided in the Indenture, 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 the Holder of this Security 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, if any, on which the Securities of this series shall be listed, and upon such notice as may be required by any such exchange, all as more fully provided in the Indenture.
Payments of interest on this Security will include interest accrued to but excluding the respective Interest Payment Dates. Interest payments for this Security shall be computed and paid on the basis of a 360-day year of twelve 30-day months. In the event that any date on which interest is payable on this Security is not a Business Day, then payment of the interest payable on such date will be made on the next succeeding day that is a Business Day (and without any interest or payment in respect of any such delay) with the same force and effect as if made on the date the payment was originally payable. "Business Day" means a day other than (i) a Saturday or a Sunday, (ii) a day on which banking institutions in the place of payment are authorized or obligated by law or executive order to remain closed or (iii) a day on which the Corporate Trust Office is closed for business.
Payment of principal of, premium, if any, and interest on the Securities of this series shall be made 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. Payments of principal of, premium, if any, and interest on Securities of this series represented by a Global Security shall be made by wire transfer of immediately available funds to the Holder of such Global Security; provided that, in the case of payments of principal and premium, if any, such Global Security is first surrendered to the Paying Agent. If any of the Securities of this series are no longer represented by a Global Security, (i) payments of principal, premium, if any, and interest due at the Stated Maturity or earlier redemption of such Securities shall be made at the office of the Paying Agent, which is initially at 55 Water Street, New York, New York 10041, upon surrender of such Securities to the Paying Agent, and (ii) payments of interest shall be made, at the option of the Company, subject to such surrender where applicable, (A) by check mailed to the address of the Person entitled thereto as such address shall appear in the Security Register or (B) by wire transfer at such place and to such account at a banking institution in the United States as may be designated in writing to the Trustee at least sixteen (16) days prior to the date for payment by the Person entitled thereto.
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 by manual signature, this Security shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.
Dated:
Duke Energy Field Services, LLC
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.
The Chase Manhattan Bank, as Trustee
(REVERSE SIDE OF SECURITY)
This Security is one of a duly authorized issue of Securities of the Company (the "Securities"), issued and issuable in one or more series under an Indenture, dated as of August 16, 2000, as supplemented (the "Indenture"), between the Company and The Chase Manhattan Bank, as Trustee (the "Trustee," which term includes any successor trustee under the Indenture), to which Indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective rights, limitation of rights, duties and immunities thereunder of the Company, the Trustee and the Holders of the Securities issued thereunder and of the terms upon which said Securities are, and are to be, authenticated and delivered. This Security is one of the series designated as the 8 1/8% Notes due 2030 (the "2030 Notes"), limited in aggregate principal amount of $300,000,000. Capitalized terms used herein for which no definitions are provided herein shall have the meanings set forth in the Indenture.
The 2030 Notes shall be redeemable, in whole or in part at any time, at the option of the Company on any date (a "Redemption Date"), at a Redemption Price equal to the greater of (i) 100% of the principal amount of the 2030 Notes to be redeemed and (ii) the sum of the present values of the principal amount of the 2030 Notes to be redeemed and the remaining scheduled payments of interest thereon (exclusive of interest accrued to the Redemption Date) from the Redemption Date to the respective scheduled payment dates discounted from their respective scheduled payment dates to the Redemption Date on a semiannual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate (as hereinafter defined) plus 25 basis points, plus, in either case, accrued and unpaid interest on the principal amount being redeemed to such Redemption Date.
"Comparable Treasury Issue" means the United States Treasury security selected by the Quotation Agent as having a maturity comparable to the term between the Redemption Date and the Stated Maturity (the "Remaining Life") 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 with the Remaining Life.
"Comparable Treasury Price" means, with respect to any Redemption Date, the average of two Reference Treasury Dealer Quotations for such Redemption Date.
"Quotation Agent" means the Reference Treasury Dealer appointed by the Company.
"Reference Treasury Dealer" means each of Merrill Lynch Government Securities Inc. and J.P. Morgan Securities Inc., and their respective successors; provided, however, that if any of the foregoing shall cease to be a primary U.S. Government securities dealer in The City of New York (a "Primary Treasury Dealer"), the Company shall substitute therefor another Primary Treasury Dealer.
"Reference Treasury Dealer Quotation" means, with respect to each Reference Treasury 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 Dealer at 5:00 p.m., The City of New York time, on the third Business Day preceding such Redemption Date.
"Treasury Rate" means, with respect to any Redemption Date, (1) the yield, under
the heading which represents the average for the immediately preceding week,
appearing in the most recently published statistical release designated "H.15
(519)" or any successor publication which is published weekly by the Board of
Governors of the Federal Reserve System and which establishes yields on actively
traded United States Treasury securities adjusted to constant maturity under the
caption "Treasury Constant Maturities," for the maturity corresponding to the
Comparable Treasury Issue (if no maturity is within three months before or after
the Stated Maturity, yields for the two published maturities most closely
corresponding to the Comparable Treasury Issue shall be determined, and the
Treasury Rate shall be interpolated or extrapolated from such yields on a
straight-line basis, rounding to the nearest month) or (2) if such release (or
any successor release) is not published during the week preceding the
calculation date or does not contain such yields, the rate per year equal to the
semiannual 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
the Redemption Date. The Treasury Rate will be calculated on the third Business
Day preceding the Redemption Date.
The Trustee shall initially serve as the principal Paying Agent with respect to the Securities of this series, and the principal Place of Payment shall initially be at the office of The Chase Manhattan Bank at 55 Water Street, New York, New York 10041.
Notice of any redemption by the Company will be mailed at least 30 days but not more than 60 days before any Redemption Date to each Holder of 2030 Notes to be redeemed. If less than all the 2030 Notes are to be redeemed at the option of the Company, the Trustee shall select, in such manner as it shall deem fair and appropriate, the 2030 Notes to be redeemed in whole or in part. The Trustee may select for redemption 2030 Notes and portions of 2030 Notes in amounts of whole multiples of $1,000.
If an Event of Default with respect to the 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, with the effect and subject to the conditions provided in the Indenture.
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 all series affected under the Indenture at any time by the Company and the Trustee with the consent of the Holders of not less than a majority in principal amount of the Outstanding Securities of all series affected thereby (voting as one class). The Indenture contains provisions permitting the Holders of not less than a majority in principal amount of the Outstanding Securities of all series with respect to which a default under the Indenture shall have occurred and be continuing (voting as one class), on behalf of the Holders of the Securities of all such series, to waive, with certain exceptions, such default under the Indenture and its consequences. The Indenture also permits the Holders of not less than a majority 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 affecting such series. 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 hereof 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 not less than a majority in principal amount of the Securities of this series at the time Outstanding 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 principal amount of Securities of this series at the time Outstanding 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 interest on this Security at the times, place and rate, and in the coin or currency, herein prescribed.
The Indenture contains provisions for defeasance at any time of the entire indebtedness of the Securities of this series or of any Securities of this series and for covenant defeasance at any time of certain covenants in the Indenture upon compliance with certain conditions set forth in the Indenture.
Prior to due presentment of this Security for registration of transfer, 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 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.
The Securities of this series are issuable only in registered form without coupons in denominations of $1,000 and any integral multiple thereof. As provided in the Indenture and subject to the limitations therein set forth, Securities of this series are exchangeable for a like aggregate principal amount of Securities of this series of like tenor of a different authorized denomination, as requested by the Holder surrendering the same upon surrender of the Security or Securities to be exchanged at the office or agency of the Company.
As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Security is registrable in the Security Register, upon surrender of this Security for registration of transfer at any office or agency of the Company for such purpose, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar and duly executed by, the Holder hereof or his attorney duly authorized in writing, and thereupon one or more new Securities of this series, of authorized denominations and of like tenor and for the same aggregate principal amount, will be issued to the designated transferee or transferees.
No service charge shall be made for any such registration of transfer or exchange, but the Company may require payment of a sum efficient to cover any tax or other governmental charge payable in connection therewith.
This Security shall be governed by, and construed in accordance with, the laws of the State of New York.
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this instrument, shall be construed as though they were written out in full according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - ____ Custodian _______
(Cust) (Minor)
TEN ENT - as tenants by the entireties under Uniform Gifts to
Minors Act _______
(State)
JT TEN - as joint tenants with rights of
survivorship and not as tenants in
common
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Additional abbreviations may also be used though not on the above list.
Dated:____________________________ ________________________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of the within instrument
in every particular without alteration
or enlargement, or any change whatever.
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EXHIBIT 10.1
SECOND AMENDMENT
TO
PARENT COMPANY AGREEMENT
This Second Amendment to Parent Company Agreement (this "Amendment"), dated as of August 3 4, 2000, is entered into by and among Phillips Petroleum Company, a Delaware corporation ("Phillips"), Duke Energy Corporation, a North Carolina corporation ("Duke"), Duke Energy Field Services, LLC, a Delaware limited liability company (the "Company"), and Duke Energy Field Services Corporation, a Delaware corporation ("DEFS").
WHEREAS, reference is made to that certain Parent Company Agreement by and among Phillips, Duke, the Company and DEFS dated as of March 31, 2000, as amended by the First Amendment to Parent Company Agreement dated as of May 25, 2000 (as so amended, the "Parent Company Agreement"); and
WHEREAS, Phillips, Duke, the Company and DEFS desire to amend the Parent Company Agreement;
NOW, THEREFORE, for and in consideration of the mutual benefits to be derived from this Amendment, and intending to be legally bound hereby, the parties hereto hereby agree as follows:
Section 1. AMENDMENTS TO PARENT COMPANY AGREEMENT. The Parent Company Agreement is hereby amended as follows:
(a) The definition of "Average Market Price" in Section 1.1 of the Parent Company Agreement and in Exhibit C ("Terms of PGCSI Parent Rights") and Exhibit D ("Terms of DENG Rights") to Exhibit A ("Agreement of Merger of Phillips Gas Company Shareholder, Inc. with and into Duke Energy Field Services Corporation", also referred to herein as the "Merger Agreement") to the Parent Company Agreement is hereby amended in each instance by deleting the remainder of such definition after the phrase "(exclusive of the pricing day)" and substituting therefor the following:
"; provided, that (x) if the IPO Price is greater than or equal to 116.6% of the Phillips 20% Price, the Average Market Price shall not be below 95% of the IPO Price or in excess of 105% of the IPO Price, and (y) if the IPO Price is less than 116.6% of the Phillips 20% Price, the Average Market Price shall be equal to the IPO Price. "IPO Price" shall mean the public offering price per share of the Corporation Common Stock in the IPO. "Phillips 20% Price" shall mean the Average Market Price at which Phillips would own 20% of the Corporation Common Stock after the IPO in accordance with the ownership adjustment formula provided for herein (without regard to the proviso in this definition and assuming that all of the underwriters' over-allotment is exercised)."
(b) The definition of "Two Year Period" in Section 1.1 of the Parent Company Agreement is hereby amended by (1) inserting the phrase "one Business Day following" at
the beginning of clause (b) prior to the words "the date" and (2) inserting the phrase "and receipt by the Corporation of the proceeds thereof" at the end of clause (b) prior to the period.
(c) Section 1.1 of the Parent Company Agreement is hereby amended by inserting the following definitions in appropriate place in alphabetical order:
"DEFS Investment" shall mean Duke Energy Field Services Investment Corp., a Delaware corporation.
"Phillips Investment" shall mean Phillips Gas Investment Company, a Delaware corporation.
"Preferred Interests" shall have the meaning set forth in the LLC Agreement.
"Preferred Member" shall have the meaning set forth in the LLC Agreement.
(d) Section 4.1 of the Parent Company Agreement is hereby amended by: (1) inserting the phrase "(other than the Preferred Members)" after the word "Members" in clause (i) of the first sentence and (2) inserting ", Section 6.4(b)" after the words "Section 6.3" in clause (a) of the second sentence.
(e) Section 4.2 of the Parent Company Agreement is hereby
amended by: (1) inserting "(and any other Company indebtedness)" after
the word "Financing" in clause (c) thereof and inserting "(other than
the Preferred Members)" after the word "Members" in clause (c) thereof;
(2) inserting the phrase "(other than the Preferred Members)" after the
words "Duke, Phillips, the Members" in clause (e); (3) deleting the
word "and" immediately prior to clause (f); and (4) inserting the
following at the end of such Section (prior to the period):
"; and (g) the allocation under Regulation Section 1.752-3(a)(3) of no Company liabilities to any of the Preferred Members."
(f) Section 4.4 of the Parent Company Agreement is hereby amended by: (1) inserting the phrase "or are used to repay, redeem or make payments on the Preferred Interests" after the words "debt owed by the Company or any of its Subsidiaries" and (2) inserting the phrase "(other than the Preferred Members)" after the words "equity interest holders".
(g) Article V of the Parent Company Agreement is hereby amended by adding at the end of such Article the following new Section:
"Section 5.3 Transfer of Preferred Interests in the Company. (a) Prior to the Preferred Mandatory Redemption Date (as defined in the LLC Agreement), (i) Duke (x) shall not permit any transfer of the direct or indirect ownership interests of DEFS Investment to occur if such transfer results in a downgrade in the Company's investment rating and (y)
shall not permit any transfer of less than all of the direct or indirect ownership interests of DEFS Investments in any event and (ii) Phillips (x) shall not permit any transfer of the direct or indirect ownership interests of Phillips Investment to occur if such transfer results in a downgrade in the Company's investment rating and (y) shall not permit any transfer of less than all of the direct or indirect ownership interests of Phillips Investments in any event.
(b) In connection with any direct or indirect
transfer of ownership interests of DEFS Investment or Phillips
Investment, neither Duke nor Phillips shall enter into any agreement or
understanding (nor shall it permit any of its Affiliates to enter into
any agreement or understanding) with any other Person that would
require Duke or Phillips or any of their Affiliates to act at the
direction of, or obtain the consent or approval of, any other Person in
connection with the general exercise by Duke or Phillips of its right
to consent to an amendment to the LLC Agreement with respect to the
matters provided in the parenthetical in the first sentence of each of
Section 10.7 of the LLC Agreement and Section 3.6 of the First
Amendment to Amended and Restated Limited Liability Company Agreement
of Duke Energy Field Services, LLC, dated as of August 4, 2000. 2000."
(h) The definition of "Corporation Interest" in Section 1.1 of Exhibit B (the "Shareholders' Agreement") to the Parent Company Agreement is hereby amended by adding at the end of such definition the following:
"; provided, that, for purposes of Section 2.1 only, (a) so long as Phillips' Total Corporation Interest equals or exceeds 20%, if Phillips' Corporation Interest is less than 20%, then Phillips' Corporation Interest shall be deemed to be 20%, (b) so long as Duke's Total Corporation Interest equals or exceeds 30%, if Duke's Corporation Interest is less than 30%, then Duke's Corporation Interest shall be deemed to be 30%, (c) once Duke's Total Corporation Interest falls below 30%, so long as Duke's Total Corporation Interest equals or exceeds 20%, if Duke's Corporation Interest is less than 20%, then Duke's Corporation Interest shall be deemed to be 20%, and (d) during any Static Period for a party, such party's Total Corporation Interest and Corporation Interest shall each be deemed to be the same as it was (or, pursuant to the preceding clauses of this proviso, was deemed to be) at the beginning of such Static Period. "Static Period" shall mean, with respect to a party, any period during which such party is prohibited from acquiring Corporation Common Stock (whether due to U.S. securities laws, court injunction or governmental order (except an injunction or order which permanently prohibits the acquisition of Corporation Common Stock by such party, which injunction or order has become final and unappealable), an event which prevents public trading in Corporation Common Stock, or otherwise (except any prohibition on the acquisition of Corporation Common Stock agreed to by such party in an agreement)), plus 30 Business Days thereafter."
(i) Section 5.1(a) of the Shareholders' Agreement, which is Exhibit B to the Parent Company Agreement, is hereby amended by adding at the end of such Section the following:
"For purposes of this Section, during any Static Period for Duke or Phillips, such party shall be deemed to own the same percentage, directly or indirectly, of all outstanding Common Stock that such party owned at the beginning of such Static Period. "Static Period" shall mean, with respect to a party, any period during which such party is prohibited from acquiring Corporation Common Stock (whether due to U.S. securities laws, court injunction or governmental order (except an injunction or order which permanently prohibits the acquisition of Corporation Common Stock by such party, which injunction or order has become final and unappealable), an event which prevents public trading in Corporation Common Stock, or otherwise (except any prohibition on the acquisition of Corporation Common Stock agreed to by such party in an agreement)), plus 30 Business Days thereafter."
(j) Article X of Exhibit A ("Amended and Restated Certificate of Incorporation") to the Merger Agreement, which is Exhibit A to the Parent Company Agreement, is hereby amended by adding at the end of such Article the following:
"For purposes of this Article, during any Static Period for Duke or Phillips, such party shall be deemed to own the same percentage, directly or indirectly, of all outstanding Common Stock that such party owned at the beginning of such Static. "Static Period" shall mean, with respect to a party, any period during which such party is prohibited from acquiring Corporation Common Stock (whether due to U.S. securities laws, court injunction or governmental order (except an injunction or order which permanently prohibits the acquisition of Corporation Common Stock by such party, which injunction or order has become final and unappealable), an event which prevents public trading in Corporation Common Stock, or otherwise (except any prohibition on the acquisition of Corporation Common Stock agreed to by such party in an agreement)), plus 30 Business Days thereafter."
(k) Sections 3.1 and 3.10(a) of Exhibit B (the "Amended and Restated Bylaws") to the Merger Agreement, which is Exhibit A to the Parent Company Agreement, is hereby amended by adding at the end of each of such Sections the following:
"For purposes of this Section, during any Static Period for Duke or Phillips, such party shall be deemed to own the same percentage, directly or indirectly, of all outstanding Common Stock that such party owned at the beginning of such Static Period. "Static Period" shall mean, with respect to a party, any period during which such party is prohibited from acquiring Corporation Common Stock (whether due to U.S. securities laws, court injunction or governmental order (except an injunction or order which permanently prohibits the acquisition of Corporation Common Stock by such party, which injunction or order has become final and unappealable), an event which prevents public trading in Corporation Common Stock, or otherwise (except any prohibition on the acquisition of Corporation Common Stock agreed to by such party in an agreement)), plus 30 Business Days thereafter."
(l) Article VIII of the Amended and Restated Bylaws, which is Exhibit B to the Merger Agreement, which is Exhibit A to the Parent Company Agreement is hereby amended by adding at the end of each of such Article the following:
"For purposes of this Article, during any Static Period for Duke or Phillips, such party shall be deemed to own the same percentage, directly or indirectly, of all outstanding Common Stock that such party owned at the beginning of such Static Period. "Static Period" shall mean, with respect to a party, any period during which such party is prohibited from acquiring Corporation Common Stock (whether due to U.S. securities laws, court injunction or governmental order (except an injunction or order which permanently prohibits the acquisition of Corporation Common Stock by such party, which injunction or order has become final and unappealable), an event which prevents public trading in Corporation Common Stock, or otherwise (except any prohibition on the acquisition of Corporation Common Stock agreed to by such party in an agreement)), plus 30 Business Days thereafter."
(m) The second Recital of the Parent Company Agreement is amended by inserting the phrase ", as amended" after the words "the date hereof".
Section 2. MISCELLANEOUS.
(a) Counterparts. This Amendment may be executed in one or more counterparts, all of which shall be considered one and the same agreement, and shall become effective when one or more counterparts have been signed by each of the parties hereto and delivered (including by facsimile) to the other party.
(b) Incorporation. The provisions of Sections 8.2 through 8.12 of the Parent Company Agreement are hereby incorporated herein and shall be deemed to include and/or apply to this Amendment, as appropriate.
(c) Ratification. Except as amended hereby, the Parent Company Agreement shall remain in full force and effect as previously executed by the parties, and the parties hereby ratify the Parent Company Agreement as amended hereby.
IN WITNESS WHEREOF, each of the undersigned, intending to be legally bound, has caused this Amendment to be duly executed and delivered on the date first set forth above.
PHILLIPS PETROLEUM COMPANY
By: /s/ J.W. SHEETS
--------------------------------------
Name: J.W. Sheets
------------------------------------
Title: Assistant Treasurer
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DUKE ENERGY CORPORATION
By: /s/ DAVID L. HAUSER
--------------------------------------
Name: David L. Hauser
------------------------------------
Title: Senior Vice President
and Treasurer
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DUKE ENERGY FIELD SERVICES, LLC
By: /s/ JIM W. MOGG
--------------------------------------
Name: Jim W. Mogg
------------------------------------
Title: Chairman of the Board, President
and Chief Executive Officer
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DUKE ENERGY FIELD SERVICES CORPORATION
By: /s/ JIM W. MOGG
--------------------------------------
Name: Jim W. Mogg
------------------------------------
Title: Chairman of the Board, President
and Chief Executive Officer
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