Exhibit 10.1

 

AMENDMENT NO. 4 and Consent, dated as of March 18, 2019  (this “ Agreement ”), among DUKE ENERGY CORPORATION (the “ Company ”), DUKE ENERGY CAROLINAS, LLC (“ Duke Energy Carolinas ”), DUKE ENERGY OHIO, INC. (“ Duke Energy Ohio ”), DUKE ENERGY INDIANA, LLC (“ Duke Energy Indiana ”), DUKE ENERGY KENTUCKY, INC. (“ Duke Energy Kentucky ”), DUKE ENERGY PROGRESS, LLC (f/k/a PROGRESS ENERGY CAROLINAS, INC.) (“ Duke Energy Progress ”), DUKE ENERGY FLORIDA, LLC (f/k/a PROGRESS ENERGY FLORIDA, INC.) (“ Duke Energy Florida ”) and PIEDMONT NATURAL GAS COMPANY, INC. (“ Piedmont ”), the LENDERS party hereto (the “ Lenders ”), the ISSUING LENDERS party hereto (the “ Issuing Lenders ”), WELLS FARGO BANK, NATIONAL ASSOCIATION, as Administrative Agent and Swingline Lender.

 

A.            Reference is made to the Credit Agreement dated as of November 18, 2011 (as amended by Amendment No. 1 and Consent dated as of December 18, 2013, Amendment No. 2 and Consent dated as of January 30, 2015 and Amendment No. 3 and Consent dated as of March 16, 2017, the “ Existing Credit Agreement ”), among the Company, Duke Energy Carolinas, Duke Energy Ohio, Duke Energy Indiana, Duke Energy Kentucky, Duke Energy Progress, Duke Energy Florida and Piedmont (the “ Borrowers ”), the Lenders party thereto (the “ Existing Lenders ”) and Wells Fargo Bank, National Association, as administrative agent for the Lenders (in such capacity, the “ Administrative Agent ”) and as swingline lender (in such capacity, the “ Swingline Lender ”).

 

B.            The Borrowers have requested that certain amendments be made to the Existing Credit Agreement, as more fully set forth herein (the “ Amendments ”).

 

C.            The Lenders party hereto have agreed to the Amendments of the Existing Credit Agreement as set forth herein and as amended hereby (the Existing Credit Agreement as so amended being referred to as the “ Amended Credit Agreement ”).

 

Accordingly, in consideration of the mutual agreements herein contained and for other good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, the parties hereto agree as follows:

 

SECTION 1.  Terms Generally .  (a)  The rules of construction set forth in Section 1.01 of the Amended Credit Agreement shall apply mutatis mutandis to this Agreement.  Capitalized terms used but not defined herein have the meanings assigned thereto in the Amended Credit Agreement.

 

(b)  As used in this Agreement, “ Amendment Effective Date ” shall have the meaning assigned to such term in Section 5.

 

SECTION 2.  Amendments to Existing Credit Agreement .  Effective as of the Amendment Effective Date, the Existing Credit Agreement is hereby amended to delete the stricken text (indicated textually in the same manner as the following example:  stricken text ) and to add the bold and double-underlined text (indicated textually in the same manner as the following example:  double underlined text ) as set forth in the pages of the Amended Credit Agreement attached as Annex A hereto.

 

SECTION 3.  Confirmation of Commitments . (a) Each Lender, by executing this Agreement confirms that on the Amendment Effective Date after giving effect to this Agreement the Commitment of such Lender under the Amended Credit Agreement shall be as set forth on such Lender’s executed signature page to this Agreement.

 

 

(b)  Each Borrower agrees to execute and deliver a Note, if required by a Lender, payable to the order of such Lender reflecting the Commitments set forth on the Commitment Schedule to the Amended Credit Agreement pursuant to Section 2.04(b) of the Amended Credit Agreement.

 

SECTION 4.  Representations and Warranties .   To induce the other parties hereto to enter into this Agreement, each Borrower party hereto represents and warrants to the Administrative Agent and each of the Lenders that:

 

(a)  The execution, delivery and performance by such Borrower of this Agreement and the Notes are within such Borrower’s powers, have been duly authorized by all necessary company action, require no action by or in respect of, or filing with, any Governmental Authority (except for consents, authorizations or filings which have been obtained or made, as the case may be, and are in full force and effect) and do not contravene, or constitute a default under, any provision of applicable law or regulation or of the articles of incorporation, by laws, certificate of formation or the limited liability company agreement of such Borrower or of any material agreement, judgment, injunction, order, decree or other instrument binding upon such Borrower or result in the creation or imposition of any Lien on any asset of such Borrower or any of its Material Subsidiaries.

 

(b)  This Agreement constitutes a valid and binding agreement of such Borrower and each Note, if and when executed and delivered by it in accordance with this Agreement, will constitute a valid and binding obligation of such Borrower, in each case enforceable in accordance with its terms, except as the same may be limited by bankruptcy, insolvency or similar laws affecting creditors’ rights generally and by general principles of equity.

 

(c)  Each of the representations and warranties made by such Borrower in Article 4 of the Amended Credit Agreement is true and correct in all material respects on and as of the date hereof, except to the extent such representations and warranties expressly relate to an earlier date (in which case they shall be true and correct on and as of such earlier date); provided that any representation and warranty that is qualified by materiality or material adverse effect shall be true and correct in all respects on and as of the date hereof, except to the extent such representations and warranties expressly relate to an earlier date (in which case they shall be true and correct on and as of such earlier date).

 

(d)  No Event of Default or Default has occurred and is continuing as of the date hereof.

 

SECTION 5.  Conditions to Effectiveness .   This Agreement shall become effective as of the date (the “ Amendment Effective Date ”) on which each of the following conditions precedent shall have been satisfied:

 

(a) The Administrative Agent shall have received duly executed counterparts of this Agreement from the Borrowers, the Swingline Lender, the Issuing Lenders and the Lenders with Commitments as shown on the Commitment Schedule to the Amended Credit Agreement attached as Annex A hereto consenting to this Agreement.

 

(b) The Administrative Agent shall have received (1) an opinion of internal counsel of each Borrower, substantially in the form of Exhibit B to the Existing Credit Agreement and (2) an opinion of Parker Poe Adams & Bernstein LLP, special counsel for the Borrowers, substantially in the form of Exhibit C to the Existing Credit Agreement, and, in each case, covering such additional matters relating to the transactions contemplated hereby as the Administrative Agent may reasonably request;

 

(c) The Administrative Agent shall have received a certificate signed by a Vice President, the Treasurer, an Assistant Treasurer or the Controller of the Company, dated

 

 

the Amendment Effective Date, to the effect set forth in clauses (c) and (d) of Section 4 above;

 

(d) The Administrative Agent shall have received all documents it may have reasonably requested prior to the Amendment Effective Date relating to the existence of the Borrowers, the corporate authority for and the validity of this Agreement and the Notes, and any other matters relevant hereto, all in form and substance satisfactory to the Administrative Agent;

 

(e) The Administrative Agent shall have received all fees and other amounts due and payable on or prior to the Amendment Effective Date, fees and expenses required to be paid or delivered by the Company on the Amendment Effective Date pursuant to the certain fee letter dated as of February 8, 2019 among the arrangers party thereto and the Company, and to the extent invoiced, reimbursement or payment of all out of pocket expenses required to be reimbursed or paid by the Company hereunder.

 

(f)  The Administrative Agent shall have received, at least three Domestic Business Days prior to the Amendment Effective Date, all documentation and other information about the Borrowers that shall have been reasonably requested by the Administrative Agent in writing at least 10 Domestic Business Days prior to the Amendment Effective Date and that the Administrative Agent reasonably determines is required by United States regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act and the Beneficial Ownership Regulation.

 

SECTION 6.  Effect of Amendments .  Except as expressly set forth herein, this Agreement shall not by implication or otherwise limit, impair, constitute a waiver of, or otherwise affect the rights and remedies of the Administrative Agent or each of the Lenders under the Existing Credit Agreement and shall not alter, modify, amend or in any way affect any of the terms, conditions, obligations, covenants or agreements contained in the Existing Credit Agreement, all of which are ratified and affirmed in all respects and shall continue in full force and effect.  Nothing herein shall be deemed to entitle any Borrower to a consent to, or a waiver, amendment, modification or other change of, any of the terms, conditions, obligations, covenants or agreements contained in the Existing Credit Agreement in similar or different circumstances. This Agreement shall apply and be effective only with respect to the provisions of the Existing Credit Agreement specifically referred to herein.

 

SECTION 7.  Notices .  All notices hereunder shall be given in accordance with the provisions of Section 9.01 of the Amended Credit Agreement.

 

SECTION 8.   Counterparts; Integration .   This Agreement may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute an original but all of which when taken together shall constitute a single contract.  Delivery of an executed signature page to this Agreement by facsimile or other means of electronic transmission shall be as effective as delivery of a manually signed counterpart of this Agreement. This Agreement constitutes the entire contract among the parties hereto with respect to the subject matter hereof and supersedes any and all prior agreements and understandings, oral or written, relating to the subject matter hereof.

 

SECTION 9.  Severability .   To the extent any provision of this Agreement is prohibited by or invalid under the applicable law of any jurisdiction, such provision shall be ineffective only to the extent of such prohibition or invalidity and only in any such jurisdiction, without prohibiting or invalidating such provision in any other jurisdiction or the remaining provisions of this Agreement in any jurisdiction.

 

 

SECTION 10.  Expenses . The Borrowers shall pay all reasonable and documented fees and expenses of counsel to the Administrative Agent in connection with the preparation, negotiation, execution and delivery of this Agreement .

 

SECTION 11.  APPLICABLE LAW, SUBMISSION TO JURISDICTION .   THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK.  EACH BORROWER AND EACH LENDER PARTY HEREBY SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK AND OF ANY NEW YORK STATE COURT SITTING IN NEW YORK COUNTY FOR PURPOSES OF ALL LEGAL PROCEEDINGS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.  EACH BORROWER AND EACH LENDER PARTY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT AND ANY CLAIM THAT ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.

 

SECTION 12.  WAIVER OF JURY TRIAL .   EACH OF THE BORROWERS, THE AGENTS, THE ISSUING LENDERS AND THE LENDERS, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW, HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.

 

SECTION 13.  Successors and Assigns .   This Agreement shall be binding upon, inure to the benefit of and be enforceable by the respective successors and permitted assigns of the parties hereto.

 

SECTION 14.  Headings .   The headings used herein are for convenience of reference only, are not part of this Agreement and are not to affect the construction of, or to be taken into consideration in interpreting, this Agreement.

 

[Remainder of this page intentionally left blank]

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective authorized officers as of the date and year first above written.

 

	DUKE ENERGY CORPORATION
	By:
		/s/ John L. Sullivan, III
		Name:	John L. Sullivan, III
		Title:	Assistant Treasurer
		Address:	550 South Tryon Street
			Charlotte, NC 28202
		Attention:	Treasury Department
		Telecopy number:	704-382-4935
		Taxpayer ID:	20-2777218

 

 

	DUKE ENERGY CAROLINAS, LLC
	By:
		/s/ John L. Sullivan, III
		Name:	John L. Sullivan, III
		Title:	Assistant Treasurer
		Address:	550 South Tryon Street
			Charlotte, NC 28202
		Attention:	Treasury Department
		Telecopy number:	704-382-4935
		Taxpayer ID:	56-0205520

 

 

	DUKE ENERGY OHIO, INC.
	By:
		/s/ John L. Sullivan, III
		Name:	John L. Sullivan, III
		Title:	Assistant Treasurer
		Address:	550 South Tryon Street
			Charlotte, NC 28202
		Attention:	Treasury Department
		Telecopy number:	704-382-4935
		Taxpayer ID:	31-0240030

 

[ Signature Page to Amendment No. 4 and Consent ]

 

 

	DUKE ENERGY INDIANA, LLC
	By:
		/s/ John L. Sullivan, III
		Name:	John L. Sullivan, III
		Title:	Assistant Treasurer
		Address:	550 South Tryon Street
			Charlotte, NC 28202
		Attention:	Treasury Department
		Telecopy number:	704-382-4935
		Taxpayer ID:	35-0594457

 

 

	DUKE ENERGY KENTUCKY, INC.
	By:
		/s/ John L. Sullivan, III
		Name:	John L. Sullivan, III
		Title:	Assistant Treasurer
		Address:	550 South Tryon Street
			Charlotte, NC 28202
		Attention:	Treasury Department
		Telecopy number:	704-382-4935
		Taxpayer ID:	31-0473080

 

 

	DUKE ENERGY PROGRESS, LLC
	By:
		/s/ John L. Sullivan, III
		Name:	John L. Sullivan, III
		Title:	Assistant Treasurer
		Address:	550 South Tryon Street
			Charlotte, NC 28202
		Attention:	Treasury Department
		Telecopy number:	704-382-4935
		Taxpayer ID:	56-0165465

 

[ Signature Page to Amendment No. 4 and Consent ]

 

 

	DUKE ENERGY FLORIDA, LLC
	By:
		/s/ John L. Sullivan, III
		Name:	John L. Sullivan, III
		Title:	Assistant Treasurer
		Address:	550 South Tryon Street
			Charlotte, NC 28202
		Attention:	Treasury Department
		Telecopy number:	704-382-4935
		Taxpayer ID:	59-0247770

 

 

	PIEDMONT NATURAL GAS COMPANY, INC.
	By:
		/s/ John L. Sullivan, III
		Name:	John L. Sullivan, III
		Title:	Assistant Treasurer
		Address:	550 South Tryon Street
			Charlotte, NC 28202
		Attention:	Treasury Department
		Telecopy number:	704-382-4935
		Taxpayer ID:	56-0556998

 

[ Signature Page to Amendment No. 4 and Consent ]

 

 

	WELLS FARGO BANK, NATIONAL ASSOCIATION, individually and as Administrative Agent, Issuing Lender, Swingline Lender and Lender
	By:
		/s/ Patrick Engel
		Name:	Patrick Engel
		Title:	Managing Director

 

[ Signature Page to Amendment No. 4 and Consent ]

 

 

	Bank of America, N.A., as Lender and Issuing Lender:
	By	/s/ Maggie Halleland
		Name:	Maggie Halleland
		Title:	Vice President

 

	Commitment under Amended Credit Agreement:
		$ 400,000,000

 

[ Signature Page to Amendment No. 4 and Consent ]

 

 

	JPMORGAN CHASE BANK, N.A., as Lender and Issuing Lender:
	By	/s/ Juan J. Javellana
		Name:	Juan J. Javellana
		Title:	Executive Director

 

	Commitment under Amended Credit Agreement:
		$ 400,000,000

 

[ Signature Page to Amendment No. 4 and Consent ]

 

 

	Mizuho Bank, LTD, as Lender and Issuing Lender:
	By	/s/ Donna DeMagistris
		Name:	Donna DeMagistris
		Title:	Authorized Signatory

 

	Commitment under Amended Credit Agreement:
		$ 400,000,000

 

[ Signature Page to Amendment No. 4 and Consent ]

 

 

	Bank of China, New York Branch, as Lender and Issuing Lender:
	By	/s/ Chen Xu
		Name:	Chen Xu
		Title:	President & CEO

 

	Commitment under Amended Credit Agreement:
		$ 400,000,000

 

[ Signature Page to Amendment No. 4 and Consent ]

 

 

	Barclays Bank PLC, as Lender and Issuing Lender:
	By	/s/ Sydney G. Dennis
		Name:	Sydney G. Dennis
		Title:	Director

 

	Commitment under Amended Credit Agreement:
		$ 400,000,000

 

[ Signature Page to Amendment No. 4 and Consent ]

 

 

	CITIBANK, N.A., as Lender and Issuing Lender:
	By	/s/ Richard Rivera
		Name:	Richard Rivera
		Title:	Vice President

 

	Commitment under Amended Credit Agreement:
		$ 400,000,000

 

[ Signature Page to Amendment No. 4 and Consent ]

 

 

	CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH, as Lender and Issuing Lender:
	By	/s/ Judith E. Smith
		Name:	Judith E. Smith
		Title:	Authorized Signatory
	For any Lender requiring a second signature block:
	By	/s/ Joan Park
		Name:	Joan Park
		Title:	Authorized Signatory
	Commitment under Amended Credit Agreement:
	$ 400,000,000

 

[ Signature Page to Amendment No. 4 and Consent ]

 

 

	ROYAL BANK OF CANADA, as Lender and Issuing Lender:
	By	/s/ Justin Painter
		Name:	Justin Painter
		Title:	Authorized Signatory
	Commitment under Amended Credit Agreement:
	$ 400,000,000

 

[ Signature Page to Amendment No. 4 and Consent ]

 

 

	MUFG BANK, LTD., as Lender and Issuing Lender:
	By	/s/ Robert MacFarlane
		Name:	Robert MacFarlane
		Title:	Director
	Commitment under Amended Credit Agreement:
	$ 400,000,000

 

[ Signature Page to Amendment No. 4 and Consent ]

 

 

	PNC BANK, NATIONAL ASSOCIATION, as Lender:
	By	/s/ J. Alex Rolfe
		Name:	J. Alex Rolfe
		Title:	Vice President
	Commitment under Amended Credit Agreement:
	$ 337,500,000

 

[ Signature Page to Amendment No. 4 and Consent ]

 

 

	Sumitomo Mitsui Banking Corporation, as Lender:
	By	/s/ James D. Weinstein
		Name:	James D. Weinstein
		Title:	Managing Director
	Commitment under Amended Credit Agreement:
	$ 337,500,000

 

[ Signature Page to Amendment No. 4 and Consent ]

 

 

	BNP PARIBAS, as Lender:
	By	/s/ Denis O’Meara
		Name:	Denis O’Meara
		Title:	Managing Director
	For any Lender requiring a second signature block:
	By	/s/ Ted Sheen
		Name:	Ted Sheen
		Title:	Director
	Commitment under Amended Credit Agreement:
	$ 325,000,000

 

[ Signature Page to Amendment No. 4 and Consent ]

 

 

	GOLDMAN SACHS BANK USA, as Lender:
	By	/s/ Ryan Dulkin
		Name:	Ryan Dulkin
		Title:	Authorized Signatory
	Commitment under Amended Credit Agreement:
	$ 325,000,000

 

[ Signature Page to Amendment No. 4 and Consent ]

 

 

	Morgan Stanley Bank, N.A., as Lender:
	By	/s/ Michael King
		Name:	Michael King
		Title:	Authorized Signatory
	Commitment under Amended Credit Agreement:
	$ 325,000,000

 

[ Signature Page to Amendment No. 4 and Consent ]

 

 

	SunTrust Bank, as Lender:
		By	/s/ Brian Guffin
			Name:	Brian Guffin
			Title:	Managing Director

 

 

	Commitment under Amended Credit Agreement:
	$ 325,000,000

 

[ Signature Page to Amendment No. 4 and Consent ]

 

 

	TD Bank, N.A., as Lender:
		By	/s/ Shannon Batchman
			Name:	Shannon Batchman
			Title:	Senior Vice President

 

 

	Commitment under Amended Credit Agreement:
	$ 325,000,000

 

[ Signature Page to Amendment No. 4 and Consent ]

 

 

	Bank of Nova Scotia, as Lender:
		By	/s/ David Dewar
			Name:	David Dewar
			Title:	Director

 

 

	Commitment under Amended Credit Agreement:
	$ 325,000,000

 

[ Signature Page to Amendment No. 4 and Consent ]

 

 

	U.S. BANK NATIONAL ASSOCIATION, as Lender:
		By	/s/ James O’Shaughnessy
			Name:	James O’Shaughnessy
			Title:	Vice President

 

 

	Commitment under Amended Credit Agreement:
	$ 325,000,000

 

[ Signature Page to Amendment No. 4 and Consent ]

 

 

	BRANCH BANKING AND TRUST COMPANY, as Lender:
		By	/s/ Jill Hamilton
			Name:	Jill Hamilton
			Title:	Senior Vice President

 

 

	Commitment under Amended Credit Agreement:
	$ 175,000,000

 

[ Signature Page to Amendment No. 4 and Consent ]

 

 

	KEYBANK NATIONAL ASSOCIATION, as Lender:
		By	/s/ Lisa A. Ryder
			Name:	Lisa A. Ryder
			Title:	Senior Vice President
	Commitment under Amended Credit Agreement:
	$ 175,000,000

 

[ Signature Page to Amendment No. 4 and Consent ]

 

 

	REGIONS BANK, as Lender:
		By	/s/ Brian Walsh
			Name:	Brian Walsh
			Title:	Director
	Commitment under Amended Credit Agreement:
	$ 175,000,000

 

[ Signature Page to Amendment No. 4 and Consent ]

 

 

	BANCO SANTANDER, S.A., NEW YORK BRANCH, as Lender:
		By	/s/ Juan Galan
			Name:	Juan Galan
			Title:	Managing Director
	For any Lender requiring a second signature block:
		By	/s/ Rita Walz-Cuccioli
			Name:	Rita Walz-Cuccioli
			Title:	Executive Director
	Commitment under Amended Credit Agreement:
	$ 175,000,000

 

[ Signature Page to Amendment No. 4 and Consent ]

 

 

	The Bank of New York Mellon, as Lender:
		By	/s/ Richard K. Fronapfel, Jr.
			Name:	Richard K. Fronapfel, Jr.
			Title:	Director
	Commitment under Amended Credit Agreement:
	$ 175,000,000

 

[ Signature Page to Amendment No. 4 and Consent ]

 

 

	The Northern Trust Company, as Lender:
		By	/s/ Andrew D. Holtz
			Name:	Andrew D. Holtz
			Title:	Senior Vice President
	Commitment under Amended Credit Agreement:
	$ 175,000,000

 

[ Signature Page to Amendment No. 4 and Consent ]

 

 

ANNEX A

 

AMENDED CREDIT AGREEMENT

 

 

EXECUTION VERSION

 

$8,000,000,000

 

CREDIT AGREEMENT

 

dated as of November 18, 2011

as Amended by Amendment No. 1 and Consent, dated as of December 18, 2013,
Amendment No. 2 and Consent, dated as of January 30, 2015 and

Amendment No. 3 and Consent, dated as of March 16, 2017

Amendment No. 4 and Consent dated as of March 18, 2019

among

 

Duke Energy Corporation

Duke Energy Carolinas, LLC

Duke Energy Ohio, Inc.

Duke Energy Indiana, LLC

Duke Energy Kentucky, Inc.

Duke Energy Progress, LLC

Duke Energy Florida, LLC and

Piedmont Natural Gas Company, Inc.,

as Borrowers,

 

The Lenders Listed Herein,

 

Wells Fargo Bank, National Association,

as Administrative Agent,

 

and

 

Bank of America, N.A.

JPMorgan Chase Bank, N.A. and

Mizuho Bank, Ltd.,

as Co-Syndication Agents

 

and

 

Bank of China, New York Branch ,

Barclays Bank PLC ,

Citibank, N.A. ,

Credit Suisse AG, Cayman Islands Branch ,

The MUFG Bank of Tokyo-Mitsubishi UFJ , Ltd. and

Royal Bank of Canada,

as Co-Documentation Agents

 

Wells Fargo Securities, LLC ,

Merrill Lynch, Pierce, Fenner & Smith Incorporated(1) ,

JPMorgan Chase Bank, N.A. ,

Mizuho Bank, Ltd. ,

Bank of China, New York Branch ,

Barclays Bank PLC ,

Citigroup Global Markets, Inc. ,

Credit Suisse Securities (USA) LLC ,

The MUFG Bank of Tokyo-Mitsubishi UFJ , Ltd. and

RBC Capital Markets(2),

as Joint Lead Arrangers and Joint Bookrunners

 

(1)   Merrill Lynch, Pierce, Fenner & Smith Incorporated shall mean Merrill Lynch, Pierce, Fenner & Smith Incorporated or any other registered broker-dealer wholly-owned by Bank of America Corporation to which all or substantially all of Bank of America Corporation’s or any of its subsidiaries’ investment banking, commercial lending services or related businesses may be transferred following the date of this Agreement.

 

(2)   RBC Capital Markets is a brand name for the capital markets businesses of Royal Bank of Canada and its affiliates.

 

 

TABLE OF CONTENTS

 

 

			PAGE
ARTICLE 1
DEFINITIONS
Section 1.01.		Definitions	1
Section 1.02.		Accounting Terms and Determinations	19 20
Section 1.03.		Types of Borrowings	20 21
Section 1.04.		Divisions	21
ARTICLE 2
THE CREDITS
Section 2.01.		Commitments to Lend	20 21
Section 2.02.		Notice of Borrowings	21 22
Section 2.03.		Notice to Lenders; Funding of Loans	22 23
Section 2.04.		Registry; Notes	23 24
Section 2.05.		Maturity of Loans	23 24
Section 2.06.		Interest Rates	23 25
Section 2.07.		Fees	25 26
Section 2.08.		Optional Termination or Reduction of Sublimits; Changes to Sublimit	25 26
Section 2.09.		Method of Electing Interest Rate	26 27
Section 2.10.		Mandatory Termination of Commitments	27 28
Section 2.11.		Optional Prepayments	27 28
Section 2.12.		General Provisions as to Payments	27 29
Section 2.13.		Funding Losses	28 29
Section 2.14.		Computation of Interest and Fees	28 30
Section 2.15.		Letters of Credit	29 30
Section 2.16.		Regulation D Compensation	33 34
Section 2.17.		Increase in Commitments; Additional Lenders	33 35
Section 2.18.		Swingline Loans	34 36
Section 2.19.		Defaulting Lenders	37 38
ARTICLE 3
CONDITIONS
Section 3.01.		Initial Effective Date	40 41
Section 3.02.		Second Effective Date	41 42
Section 3.03.		Borrowings and Issuance of Letters of Credit	42 43
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
Section 4.01.		Organization and Power	42 44

 

i

 

Section 4.02.		Corporate and Governmental Authorization; No Contravention	43 44
Section 4.03.		Binding Effect	43 44
Section 4.04.		Financial Information	43 44
Section 4.05.		Regulation U	44 45
Section 4.06.		Litigation	44 45
Section 4.07.		Compliance with Laws	44 45
Section 4.08.		Taxes	44 45
Section 4.09.		Anti-corruption Law and Sanctions	44 46
ARTICLE 5
COVENANTS
Section 5.01.		Information	45 46
Section 5.02.		Payment of Taxes	47 48
Section 5.03.		Maintenance of Property; Insurance	47 48
Section 5.04.		Maintenance of Existence	47 49
Section 5.05.		Compliance with Laws	48 49
Section 5.06.		Books and Records	48 49
Section 5.07.		Negative Pledge	48 50
Section 5.08.		Consolidations, Mergers and Sales of Assets	50 51
Section 5.09.		Use of Proceeds	50 51
Section 5.10.		Indebtedness/Capitalization Ratio	50 52
ARTICLE 6
DEFAULTS
Section 6.01.		Events of Default	50 52
Section 6.02.		Notice of Default	53 54
Section 6.03.		Cash Collateral	53 54
ARTICLE 7
THE ADMINISTRATIVE AGENT
Section 7.01.		Appointment and Authorization	53 54
Section 7.02.		Administrative Agent and Affiliates	53 55
Section 7.03.		Action by Administrative Agent	53 55
Section 7.04.		Consultation with Experts	53 55
Section 7.05.		Liability of Administrative Agent	54 55
Section 7.06.		Indemnification	54 56
Section 7.07.		Credit Decision	54 56
Section 7.08.		Successor Administrative Agent	54 56
Section 7.09.		Administrative Agent’s Fee	55 57
Section 7.10.		Certain ERISA Matters	57
Section 7.11.		Other Agents	55 58

 

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ARTICLE 8
CHANGE IN CIRCUMSTANCES
Section 8.01.		Basis for Determining Interest Rate Inadequate or Unfair		55 58
Section 8.02.		Illegality		56 60
Section 8.03.		Increased Cost and Reduced Return		56 61
Section 8.04.		Taxes		58 62
Section 8.05.		Base Rate Loans Substituted for Affected Euro-Dollar Loans		61 65
Section 8.06.		Substitution of Lender; Termination Option		62 66
ARTICLE 9
MISCELLANEOUS
Section 9.01.		Notices		63 67
Section 9.02.		No Waivers		64 68
Section 9.03.		Expenses; Indemnification		64 69
Section 9.04.		Set-offs; Sharing of Set-offs		65 69
Section 9.05.		Amendments and Waivers		65 70
Section 9.06.		Successors and Assigns		66 70
Section 9.07.		Collateral		68 73
Section 9.08.		Confidentiality		68 73
Section 9.09.		Governing Law; Submission to Jurisdiction		69 74
Section 9.10.		Counterparts; Integration		69 74
Section 9.11.		WAIVER OF JURY TRIAL		69 74
Section 9.12.		USA Patriot Act		70 74
Section 9.13.		Termination of Commitments Under Existing Credit Agreements		70 74
Section 9.14.		No Fiduciary Duty		70 75
Section 9.15.		Survival		71 75
Section 9.16.		Acknowledgement and Consent to Bail-in of EEA Financial Institutions		71 75
SCHEDULES
Schedule 1.01(a) -			COMMITMENT SCHEDULE
Schedule 1.01(b) -			PRICING SCHEDULE
EXHIBITS
EXHIBIT A	-		Note
EXHIBIT B	-		Opinion of Internal Counsel of the Borrower
EXHIBIT C	-		Opinion of Special Counsel for the Borrower
EXHIBIT D	-		Assignment and Assumption Agreement
EXHIBIT E	-		Extension Agreement
EXHIBIT F	-		Notice of Issuance
EXHIBIT G	-		Approved Form of Letter of Credit
EXHIBIT H	-		Form of Joinder
EXHIBIT I	-		Progress Energy, Inc. Consent

 

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CREDIT AGREEMENT

 

AGREEMENT dated as of November 18, 2011 (as amended by Amendment No. 1 and Consent, dated as of December 18, 2013, Amendment No. 2 and Consent, dated as of January 30, 2015 and 2015, Amendment No. 3 and Consent, dated as of March 16, 2017 and Amendment No. 4 and Consent, dated as of March 18, 2019 ) among DUKE ENERGY CORPORATION, DUKE ENERGY CAROLINAS, LLC, DUKE ENERGY OHIO, INC., DUKE ENERGY INDIANA, LLC, DUKE ENERGY KENTUCKY, INC., DUKE ENERGY PROGRESS, LLC (f/k/a PROGRESS ENERGY CAROLINAS, INC.), DUKE ENERGY FLORIDA, LLC (f/k/a PROGRESS ENERGY FLORIDA, INC.) and PIEDMONT NATURAL GAS COMPANY, INC., as Borrowers, the Lenders from time to time party hereto, WELLS FARGO BANK, NATIONAL ASSOCIATION, as Administrative Agent, BANK OF AMERICA, N.A., JPMORGAN CHASE BANK, N.A. and MIZUHO BANK, LTD., as Co-Syndication Agents, and BANK OF CHINA, NEW YORK BRANCH, BARCLAYS BANK PLC, CITIBANK, N.A., CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH, THE MUFG BANK OF TOKYO-MITSUBISHI UFJ , LTD. and ROYAL BANK OF CANADA, as Co-Documentation Agents.

 

The parties hereto agree as follows:

 

ARTICLE 1
Definitions

 

Section 1.01.                           Definitions.  The following terms, as used herein, have the following meanings:

 

“ Additional Lender ” means any financial institution that becomes a Lender for purposes hereof pursuant to Section 2.17 or Section  8.06.

 

“ Administrative Agent ” means Wells Fargo in its capacity as administrative agent for the Lenders hereunder, and its successors in such capacity.

 

“ Administrative Questionnaire ” means, with respect to each Lender, the administrative questionnaire in the form submitted to such Lender by the Administrative Agent and submitted to the Administrative Agent (with a copy to each Borrower) duly completed by such Lender.

 

“ Affiliate ” means, as to any Person (the “ specified Person ”) (i) any Person that directly, or indirectly through one or more intermediaries, controls the specified Person (a “ Controlling Person ”) or (ii) any Person (other than the specified Person or a Subsidiary of the specified Person) which is controlled by or is under common control with a Controlling Person.  As used herein, the term “ control ” means possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ownership of voting securities, by contract or otherwise.

 

“ Agent ” means any of the Administrative Agent, the Co-Syndication Agents or the Co-Documentation Agents.

 

“ Agent Parties ” has the meaning set forth in Section 9.01(c).

 

“ Aggregate Exposure ” means, with respect to any Lender at any time, the aggregate amount of its Borrower Exposures to all Borrowers at such time.

 

 

“Agreement” means this Agreement as the same may be amended from time to time.

 

“ Amendment No.  1 ” shall mean that certain Amendment No. 1 and Consent, dated as of December 18, 2013, among the Borrowers, the lenders party thereto and the Administrative Agent.

 

“ Amendment No. 2 ” shall mean that certain Amendment No. 2 and Consent, dated as of January 30, 2015, among the Borrowers, the lenders party thereto and the Administrative Agent.

 

“ Amendment No.  3 ” shall mean that certain Amendment No.  3, 3 and Consent, dated as of March 16, 2017, among the Borrowers, the lenders party thereto and the Administrative Agent.

 

“ Amendment No. 4 ” shall mean that certain Amendment No. 4 and Consent, dated as of March 18, 2019, among the Borrowers, the lenders party thereto and the Administrative Agent.

 

“ Anti-Corruption Laws ” means the United States Foreign Corrupt Practices Act of 1977 and all other laws, rules, and regulations of any jurisdiction concerning or relating to bribery, corruption or  money laundering.

 

“ Applicable Lending Office ” means, with respect to any Lender, (i) in the case of its Base Rate Loans, its Domestic Lending Office and (ii) in the case of its Euro-Dollar Loans, its Euro-Dollar Lending Office.

 

“ Applicable Margin ” means, with respect to Euro-Dollar Loans, Swingline Loans or Base Rate Loans to any Borrower, the applicable rate per annum for such Borrower determined in accordance with the Pricing Schedule.

 

“ Appropriate Share ” has the meaning set forth in Section 8.03(d).

 

“ Approved Fund ” means any Fund that is administered or managed by (i) a Lender, (ii) an Affiliate of a Lender or (iii) an entity or an Affiliate of an entity that administers or manages a Lender.

 

“ Approved Officer ” means the president, the chief financial officer, a vice president, the treasurer, an assistant treasurer or the controller of the Borrower or such other representative of the Borrower as may be designated by any one of the foregoing with the consent of the Administrative Agent.

 

“ Assignee ” has the meaning set forth in Section 9.06(c).

 

“ Availability Percentage ” means, with respect to each Borrower at any time, the percentage which such Borrower’s Sublimit bears to the aggregate amount of the Commitments, all determined as of such time.

 

“ Bail-In Action ” means the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability of an EEA Financial Institution.

 

“ Bail-In Legislation ” means, with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule.

 

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“ Bankruptcy Event ” means, with respect to any Person, such Person becomes the subject of a bankruptcy or insolvency proceeding (or any similar proceeding), or generally fails to pay its debts as such debts become due, or admits in writing its inability to pay its debts generally, or has had a receiver, conservator, trustee, administrator, custodian, assignee for the benefit of creditors or similar Person charged with the reorganization or liquidation of its business or assets appointed for it, or, in the good faith determination of the Administrative Agent (or, if the Administrative Agent is the subject of the Bankruptcy Event, the Required Lenders), has taken any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any such proceeding or appointment, provided that (except with respect to a Lender that is subject to a Bail-In Action) a Bankruptcy Event shall not result solely by virtue of any ownership interest, or the acquisition of any ownership interest, in such Person by a Governmental Authority or instrumentality thereof so long as such ownership interest does not result in or provide such Person with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Person (or such Governmental Authority or instrumentality) to reject, repudiate, disavow or disaffirm any contracts or agreements made by such Person.

 

“ Base Rate ” means, for any day for which the same is to be calculated, the highest of (a) the Prime Rate, (b) the Federal Funds Rate plus 1/2 of 1% and (c) the LIBOR Market Index Rate plus 1%; provided , that, if the Base Rate shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement ; and provided further , that clause (c) shall not be applicable during any period in which either (i) any of the circumstances provided in Section 8.01(a)(i) or Section 8.01(a)(ii) shall have occurred and be continuing or (ii) the LIBOR Market Index Rate is unavailable or unascertainable .  Each change in the Base Rate shall take effect simultaneously with the corresponding change in the rates described in clauses (a), (b) or (c) above, as the case may be.

 

“ Base Rate Loan ” means (i) a Loan which bears interest at the Base Rate pursuant to the applicable Notice of Borrowing or Notice of Interest Rate Election or the provisions of Article 8 or (ii) an overdue amount which was a Base Rate Loan immediately before it became overdue.

 

“ Beneficial Ownership Certification ” means a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation.

 

“ Beneficial Ownership Regulation ” means 31 CFR § 1010.230.

 

“ Benefit Plan ” means any of (a) an “employee benefit plan” (as defined in ERISA) that is subject to Title I of ERISA, (b) a “plan” as defined in and subject to Section 4975 of the Internal Revenue Code or (c) any Person whose assets include (for purposes of ERISA Section 3(42) or otherwise for purposes of Title I of ERISA or Section 4975 of the Code) the assets of any such “employee benefit plan” or “plan”.

 

“ Borrower ” means each of the Company, Duke Energy Carolinas, Duke Energy Ohio, Duke Energy Indiana, Duke Energy Kentucky, Duke Energy Florida, Duke Energy Progress and Piedmont.  References herein to “the Borrower” in connection with any Loan or Group of Loans or any Letter of Credit hereunder are to the particular Borrower to which such Loan or Loans are made or proposed to be made or at whose request and for whose account such Letter of Credit is issued or proposed to be issued.

 

“ Borrower Exposure ” means, with respect to any Lender and any Borrower at any time, (i) an amount equal to the product of such Lender’s Percentage and such Borrower’s Sublimit (whether used or unused) at such time or (ii) if such Lender’s Commitment shall have terminated,

 

3

 

either generally or with respect to such Borrower, or if such Borrower’s Sublimit shall have been reduced to zero, the sum of the aggregate outstanding principal amount of its Loans (other than Swingline Loans) to such Borrower, the aggregate amount of its Letter of Credit Liabilities in respect of such Borrower and the amount of its Swingline Exposure in respect of such Borrower at such time.

 

“ Borrower Maturity Date ” means, with respect to any Revolving Credit Loan to any Borrower other than the Company, the first anniversary of the date of the Borrowing of such Revolving Credit Loan; provided that if the Borrower designates such Borrowing as long-term in its Notice of Borrowing, then the Borrower Maturity Date shall not be applicable thereto.

 

“ Borrowing ” has the meaning set forth in Section 1.03.

 

“ Cash Collateralize ” means to pledge and deposit with or deliver to the Administrative Agent, for the benefit of each Issuing Lender and each Lender, as collateral for the Letter of Credit Liabilities, cash or deposit account balances, and “ Cash Collateral ” shall refer to such cash or deposit account balances.

 

“ Change in Law ” means the occurrence of any of the following after the date of this Agreement: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation or application thereof by any Governmental Authority, or (c) the making or issuance of any request, rules, guideline, requirement or directive (whether or not having the force of law) by any Governmental Authority; provided however , that notwithstanding anything herein to the contrary, (i) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines, requirements and directives thereunder, issued in connection therewith or in implementation thereof, and (ii) all requests, rules, guidelines, requirements and directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law” after the date hereof regardless of the date enacted, adopted, issued or implemented.

 

“ Co-Documentation Agents ” means each of Bank of China, New York Branch, Barclays Bank PLC, Citibank, N.A., Credit Suisse AG, Cayman Islands Branch, The MUFG Bank of Tokyo-Mitsubishi UFJ , Ltd., and Royal Bank of Canada, in its capacity as documentation agent in respect of this Agreement.

 

“ Commitment ” means (i) with respect to any Lender listed on the signature pages hereof, the amount set forth opposite its name on the Commitment Schedule as its Initial Commitment, which amount, subject to the conditions in Section 3.02, shall be increased by the amount set forth opposite its name on the Commitment Schedule as its Delayed Additional Commitment , and (ii) with respect to each Additional Lender or Assignee which becomes a Lender pursuant to Sections 2.17, 8.06 and 9.06(c), the amount of the Commitment thereby assumed by it, in each case as such amount may from time to time be reduced pursuant to Sections 2.08, 2.10, 8.06 or 9.06(c) or increased pursuant to Sections 2.17, 8.06 or 9.06(c).

 

“ Commitment Schedule ” means the Commitment Schedule attached hereto as Schedule 1.01(a) .

 

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“ Commitment Termination Date ” means, for each Lender, March 16, 2022, 2024, as such date may be extended from time to time with respect to such Lender pursuant to Section 2.01(b) or, if such day is not a Euro-Dollar Business Day, the next preceding Euro-Dollar Business Day.

 

“ Communications ” has the meaning set forth in Section 9.01(c).

 

“ Company ” means Duke Energy Corporation, a Delaware corporation.

 

“ Connection Income Taxes ” means, with respect to any Lender or Agent, taxes that are imposed on or measured by net income (however denominated), franchise taxes or branch profits taxes, in each case, imposed as a result of a connection (including any former connection) between such Lender or Agent and the jurisdiction imposing such tax (other than connections arising from such Lender or Agent having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced this Agreement or any Note, or sold or assigned an interest in any Loan, this Agreement or any Note).

 

“ Consolidated Capitalization ” means, with respect to any Borrower, the sum, without duplication, of (i) Consolidated Indebtedness of such Borrower, (ii) consolidated common equityholders’ equity as would appear on a consolidated balance sheet of such Borrower and its Consolidated Subsidiaries prepared in accordance with generally accepted accounting principles, (iii) the aggregate liquidation preference of preferred or priority equity interests (other than preferred or priority equity interests subject to mandatory redemption or repurchase) of such Borrower and its Consolidated Subsidiaries upon involuntary liquidation, (iv) the aggregate outstanding amount of all Equity Preferred Securities of such Borrower and (v) minority interests as would appear on a consolidated balance sheet of such Borrower and its Consolidated Subsidiaries prepared in accordance with generally accepted accounting principles.

 

“ Consolidated Indebtedness ” means, at any date, with respect to any Borrower, all Indebtedness of such Borrower and its Consolidated Subsidiaries determined on a consolidated basis in accordance with generally accepted accounting principles; provided that Consolidated Indebtedness shall exclude, to the extent otherwise reflected therein, Equity Preferred Securities of such Borrower and its Consolidated Subsidiaries up to a maximum excluded amount equal to 15% of Consolidated Capitalization of such Borrower.

 

“ Consolidated Net Assets ” means, at any date with respect to any Borrower, (a) total assets of such Borrower and its Subsidiaries (minus applicable reserves) determined on a consolidated basis in accordance with GAAP generally accepted accounting principles minus (b) total liabilities of such Borrower and its Subsidiaries, in each case determined on a consolidated basis in accordance with GAAP generally accepted accounting principles , all as reflected in the consolidated financial statements of such Borrower most recently delivered to the Administrative Agent and the Lenders pursuant to Section 5.01(a) or 5.01(b).

 

“ Consolidated Subsidiary ” means, for any Person, at any date any Subsidiary or other entity the accounts of which would be consolidated with those of such Person in its consolidated financial statements if such statements were prepared as of such date.

 

“ Co-Syndication Agents ” means each of Bank of America, N.A., JPMorgan Chase Bank, N.A. and Mizuho Bank, Ltd., in its capacity as syndication agent in respect of this Agreement.

 

5

 

“ Default ” means any condition or event which constitutes an Event of Default or which with the giving of notice or lapse of time or both would, unless cured or waived, become an Event of Default.

 

“ Defaulting Lender ” means any Lender that (a) has failed to (i) fund any portion of its Loans within two Domestic Business Days of the date required to be funded, (ii) fund any portion of its participations in Letters of Credit required to be funded by it hereunder within two Domestic Business Days of the date required to be funded or (iii) pay over to any Lender Party any other amount required to be paid by it hereunder within two Domestic Business Days of the date required to be paid, unless, in the case of clause (i) or (iii) above, such Lender notifies the Administrative Agent (or, if the Administrative Agent is the Defaulting Lender, the Required Lenders) in writing that such failure is the result of such Lender’s good faith determination that a condition precedent to funding (specifically identified and including the particular default, if any) has not been satisfied, (b) has notified the Company or the Administrative Agent in writing, or has made a public statement to the effect, that it does not intend or expect to comply with any of its funding obligations under this Agreement (unless such writing or public statement indicates that such position is based on such Lender’s good faith determination that a condition precedent (specifically identified and including the particular default, if any) to funding under this Agreement cannot be satisfied) or generally under other agreements in which it commits to extend credit, (c) has failed, within three Domestic Business Days after written request by the Administrative Agent (or, if the Administrative Agent is the Defaulting Lender, the Required Lenders) or the Company, acting in good faith, to provide a certification in writing from an authorized officer of such Lender that it will comply with its obligations to fund prospective Loans and participations in then outstanding Letters of Credit under this Agreement unless such Lender notifies the Administrative Agent (or, if the Administrative Agent is the Defaulting Lender, the Required Lenders) in writing that such failure is the result of such Lender’s good faith determination that one or more conditions precedent to funding (specifically identified and including the particular default, if any) has not been satisfied, provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt by the Administrative Agent (or, if the Administrative Agent is the Defaulting Lender, the Required Lenders) and the Company of such certification in form and substance satisfactory to the Administrative Agent (or, if the Administrative Agent is the Defaulting Lender, the Required Lenders) and the Company, or (d) has become (or has a direct or indirect Parent that has become) the subject of a Bankruptcy Event or a Bail-In Action.  Any determination by the Administrative Agent (or, if the Administrative Agent is the Defaulting Lender, the Required Lenders) that a Lender is a Defaulting Lender shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender upon delivery of written notice of such determination to the Company and each Lender.

 

“ Delayed Additional Commitments ” means the incremental amounts of Commitments so identified in the original Commitment Schedule . to this Agreement, without giving effect to Amendment No.1, Amendment No. 2, Amendment No. 3 and Amendment No. 4.

 

“ Domestic Business Day ” means any day except a Saturday, Sunday or other day on which commercial banks in New York City or in the State of North Carolina are authorized by law to close.

 

“ Domestic Lending Office ” means, as to each Lender, its office located at its address set forth in its Administrative Questionnaire (or identified in its Administrative Questionnaire as its Domestic Lending Office) or such other office as such Lender may hereafter designate as its Domestic Lending Office by notice to the Borrowers and the Administrative Agent.

 

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“Duke Energy Carolinas ” means Duke Energy Carolinas, LLC, a North Carolina limited liability company.

 

“ Duke Energy Carolinas Mortgage ” means the First and Refunding Mortgage between Duke Energy Carolinas and JPMorgan Chase Bank, N.A., as successor trustee, dated as of December 1, 1927 as amended or supplemented from time to time.

 

“ Duke Energy Indiana ” means Duke Energy Indiana, LLC, an Indiana corporation limited liability company .

 

“ Duke Energy Indiana First Mortgage Trust Indenture ” means the first mortgage trust indenture, dated as of September 1, 1939, between Duke Energy Indiana and Deutsche Bank National Trust Company, as successor trustee, as amended, modified or supplemented from time to time, and any successor or replacement mortgage trust indenture.

 

“ Duke Energy Florida ” means Duke Energy Florida, LLC (f/k/a Progress Energy Florida, Inc.), a Florida corporation limited liability company .

 

“ Duke Energy Florida Indenture ” means the Indenture dated as of January 1, 1944, between Duke Energy Florida and The Bank of New York Mellon, as successor trustee, as amended, modified or supplemented from time to time, and any successor or replacement mortgage trust indenture.

 

“ Duke Energy Kentucky ” means Duke Energy Kentucky, Inc., a Kentucky corporation.

 

“ Duke Energy Kentucky First Mortgage Trust Indenture ” means the first mortgage trust indenture, dated as of February 1, 1949, between Duke Energy Kentucky and The Bank of New York (successor to Irving Trust Company), as trustee, as amended, modified or supplemented from time to time, and any successor or replacement mortgage trust indenture.

 

“ Duke Energy Ohio ” means Duke Energy Ohio, Inc., an Ohio corporation.

 

“ Duke Energy Ohio First Mortgage Trust Indenture ” means the first mortgage trust indenture, dated as of August 1, 1936, between Duke Energy Ohio and The Bank of New York (successor to Irving Trust Company), as trustee, as amended, modified or supplemented from time to time, and any successor or replacement mortgage trust indenture.

 

“ Duke Energy Progress ” means Duke Energy Progress, LLC (f/k/a Progress Energy Carolinas, Inc.), a North Carolina corporation limited liability company .

 

“ Duke Energy Progress Mortgage and Deed of Trust ” means the Mortgage and Deed of Trust, dated as of May 1, 1940, from Duke Energy Progress to the Bank of New York Mellon and Ming Ryan (successor to Frederick G. Herbst), as successor trustees, as amended, modified or supplemented from time to time, and any successor or replacement mortgage trust indenture.

 

“ EEA Financial Institution ” means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.

 

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“ EEA Member Country ” means any of the member states of the European Union, Iceland, Liechtenstein and Norway.

 

“ EEA Resolution Authority ” means any public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.

 

“ Endowment ” means the Duke Endowment, a charitable common law trust established by James B. Duke by Indenture dated December 11, 1924.

 

“ Environmental Laws ” means any and all federal, state, local and foreign statutes, laws, regulations, ordinances, rules, judgments, orders, decrees, permits, concessions, grants, franchises, licenses, agreements or other governmental restrictions relating to the environment or to emissions, discharges, releases of pollutants, contaminants, chemicals, or industrial, toxic or hazardous substances or wastes into the environment including, without limitation, ambient air, surface water, ground water, or land, or otherwise relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport, or handling of pollutants, contaminants, chemicals, or industrial, toxic or hazardous substances or wastes.

 

“ Equity Preferred Securities ” means, with respect to any Borrower, any trust preferred securities or deferrable interest subordinated debt securities issued by such Borrower or any Subsidiary or other financing vehicle of such Borrower that (i) have an original maturity of at least twenty years and (ii) require no repayments or prepayments and no mandatory redemptions or repurchases, in each case, prior to the first anniversary of the latest Commitment Termination Date.

 

“ ERISA ” means the Employee Retirement Income Security Act of 1974, as amended.

 

“ ERISA Group ” means, with respect to any Borrower, such Borrower and all other members of a controlled group of corporations and all trades or businesses (whether or not incorporated) under common control which, together with such Borrower, are treated as a single employer under Section 414 of the Internal Revenue Code.

 

“ EU Bail-In Legislation Schedule ” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time.

 

“ Euro-Dollar Business Day ” means any Domestic Business Day on which commercial banks are open for international business (including dealings in dollar deposits) in London.

 

“ Euro-Dollar Lending Office ” means, as to each Lender, its office, branch or affiliate located at its address set forth in its Administrative Questionnaire (or identified in its Administrative Questionnaire as its Euro-Dollar Lending Office) or such other office, branch or affiliate of such Lender as it may hereafter designate as its Euro-Dollar Lending Office by notice to the Borrowers and the Administrative Agent.

 

“ Euro-Dollar Loan ” means (i) a Loan which bears interest at a Euro-Dollar Rate pursuant to the applicable Notice of Borrowing or Notice of Interest Rate Election or (ii) an overdue amount which was a Euro-Dollar Loan immediately before it became overdue.

 

“ Euro-Dollar Rate ” means a rate of interest determined pursuant to Section 2.06(b) on the basis of a London Interbank Offered Rate , and if the Euro-Dollar Rate shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement .

 

8

 

“ Euro-Dollar Reserve Percentage ” has the meaning set forth in Section 2.16.

 

“ Event of Default ” has the meaning set forth in Section 6.01.

 

“ Existing Commitment Termination Date ” has the meaning set forth in Section 2.01(b).

 

“ Existing Credit Agreement ” means the Amended and Restated Credit Agreement dated as of June 28, 2007, among the Company, Duke Energy Carolinas, Duke Energy Ohio, Duke Energy Indiana, Duke Energy Kentucky, the banks party thereto, and Wachovia Bank, National Association, as administrative agent, as amended by Amendment No. 1 dated as of March 10, 2008.

 

“ Existing Duke Credit Agreement ” means the Amended and Restated Credit Agreement dated as of November 18, 2011, among the Borrowers party thereto, the banks party thereto, and Wells Fargo Bank Bank , National Association, as administrative agent (as amended, amended and restated, supplemented or otherwise modified prior to the Third Fourth Amendment Effective Date).

 

“ Existing Duke Letter of Credit ” means each letter of credit outstanding under the Existing Duke Credit Agreement on the Third Fourth Amendment Effective Date.

 

“ Existing Piedmont Credit Agreement ” shall mean that certain Second Amended and Restated Credit Agreement, dated as of December 14, 2015, among Piedmont, each lender from time to time party thereto, and Wells Fargo Bank, National Association, as administrative agent, swingline lender, and L/C issuer.

 

“ Existing Piedmont Letter of Credit ” means each letter of credit outstanding under the Existing Piedmont Credit Agreement on the Third Fourth Amendment Effective Date.

 

“ Existing Progress Credit Agreements ” means (i) the Credit Agreement dated as of October 15, 2010 among Duke Energy Florida, as borrower, Bank of America, N.A., as administrative agent, and the lenders party thereto, (ii) the Credit Agreement dated as of October 15, 2010 among Duke Energy Progress, as borrower, Wells Fargo Bank, N.A., as administrative agent, and the lenders party thereto, and (iii) the Existing Progress Parent Credit Agreement.

 

“ Existing Progress Letter of Credit ” means each letter of credit outstanding under the Existing Progress Parent Credit Agreement or the Existing Progress Parent LC Facility on the Second Effective Date.

 

“ Existing Progress Parent Credit Agreement ” means the Credit Agreement dated as of May 3, 2006, as amended and modified, among Progress Energy, Inc., as borrower, Citibank, N.A., as administrative agent, and the lenders party thereto, as amended.

 

“ Existing Progress Parent LC Facility ” means the Letter of Credit Agreement dated as of July 1, 2011, as amended and modified, between Progress Energy, Inc., as borrower, and Wells Fargo, as issuer.

 

“ Facility Fee Rate ” means, with respect to any Borrower, the applicable rate per annum for such Borrower determined in accordance with the Pricing Schedule.

 

“ FATCA ” has the meaning set forth in Section 8.04(a).

 

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“ Federal Funds Rate ” means, for any day, the rate per annum (rounded upwards, if necessary, to the nearest 1/100th of 1%) equal to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System, as published by the Federal Reserve Bank of New York on the Domestic Business Day next succeeding such day; provided that (i) if such day is not a Domestic Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the next preceding Domestic Business Day as so published on the next succeeding Domestic Business Day and (ii) if no such rate is so published on such next succeeding Domestic Business Day, the Federal Funds Rate for such day shall be the average rate quoted to Wells Fargo on such day on such transactions as determined by the Administrative Agent; provided further , that, if the Federal Funds Rate shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement.

 

“ Fourth Amendment Effective Date ” means March 18, 2019, being the date on which Amendment No.  4 became effective .

 

“ Fund ” means any Person (other than a natural Person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its business.

 

“ Governmental Authority ” means any international, foreign, federal, state, regional, county, local or other governmental or quasi-governmental authority.

 

“ Group of Loans ” means at any time a group of Loans consisting of (i) all Loans to the same Borrower which are Base Rate Loans at such time or (ii) all Euro-Dollar Loans to the same Borrower having the same Interest Period at such time; provided that, if a Loan of any particular Lender is converted to or made as a Base Rate Loan pursuant to Article 8, such Loan shall be included in the same Group or Groups of Loans from time to time as it would have been if it had not been so converted or made.

 

“ Hedging Agreement ” means for any Person, any and all agreements, devices or arrangements designed to protect such Person or any of its Subsidiaries from the fluctuations of interest rates, exchange rates applicable to such party’s assets, liabilities or exchange transactions, including, but not limited to, dollar-denominated or cross-currency interest rate exchange agreements, forward currency exchange agreements, interest rate cap or collar protection agreements, commodity swap agreements, forward rate currency or interest rate options, puts and warrants.  Notwithstanding anything herein to the contrary, “Hedging Agreements” shall also include fixed-for-floating interest rate swap agreements and similar instruments.

 

“Increased Commitments” has the meaning set forth in Section 2.17.

 

“ Indebtedness ” of any Person means at any date, without duplication, (i) all obligations of such Person for borrowed money, (ii) all indebtedness of such Person for the deferred purchase price of property or services purchased (excluding current accounts payable incurred in the ordinary course of business), (iii) all indebtedness created or arising under any conditional sale or other title retention agreement with respect to property acquired, (iv) all indebtedness under leases which shall have been or should be, in accordance with generally accepted accounting principles, recorded as capital leases in respect of which such Person is liable as lessee, (v) the face amount of all outstanding letters of credit issued for the account of such Person (other than letters of credit relating to indebtedness included in Indebtedness of such Person pursuant to another clause of this definition) and, without duplication, the unreimbursed amount of all drafts drawn thereunder, (vi)

 

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indebtedness secured by any Lien on property or assets of such Person, whether or not assumed (but in any event not exceeding the fair market value of the property or asset), (vii) all direct guarantees of Indebtedness referred to above of another Person, (viii) all amounts payable in connection with mandatory redemptions or repurchases of preferred stock or member interests or other preferred or priority equity interests and (ix) any obligations of such Person (in the nature of principal or interest) in respect of acceptances or similar obligations issued or created for the account of such Person.

 

“ Indemnitee ” has the meaning set forth in Section 9.03.

 

“ Initial Commitments ” means the initial amounts of Commitments so identified in the Commitment Schedule.

 

“ Initial Effective Date ” means the date on which this Agreement becomes effective pursuant to Section 3.01.

 

“ Initial Sublimit ” means, with respect to each Borrower, the amount set forth opposite its name in the table below:

 

Borrower		Initial Sublimit
Company		$	3,400,000,000 2,650,000,000
Duke Energy Carolinas		$	1,100,000,000 1,750,000,000
Duke Energy Progress		$	1,000,000,000 1,400,000,000
Duke Energy Florida		$	950,000,000 650,000,000
Duke Energy Indiana		$	600,000,000
Piedmont		$	500,000,000
Duke Energy Ohio		$	300,000,000
Duke Energy Kentucky		$	150,000,000

 

“ Interest Period ” means, with respect to each Euro-Dollar Loan, the period commencing on the date of borrowing specified in the applicable Notice of Borrowing or on the date specified in an applicable Notice of Interest Rate Election and ending one, two, three or six, or, if deposits of a corresponding maturity are generally available in the London interbank market, twelve, months thereafter, as the Borrower may elect in such notice; provided that:

 

(a)                                  any Interest Period which would otherwise end on a day which is not a Euro-Dollar Business Day shall be extended to the next succeeding Euro-Dollar Business Day unless such Euro-Dollar Business Day falls in another calendar month, in which case such Interest Period shall end on the next preceding Euro-Dollar Business Day; and

 

(b)                                  any Interest Period which begins on the last Euro-Dollar Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall end on the last Euro-Dollar Business Day of a calendar month;

 

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provided further that no Interest Period applicable to any Loan of any Lender may end after such Lender’s Commitment Termination Date.

 

“ Internal Revenue Code ” means the Internal Revenue Code of 1986, as amended, or any successor statute.

 

“ Investment Grade Status ” exists as to any Person at any date if all senior long-term unsecured debt securities of such Person outstanding at such date which had been rated by S&P or Moody’s are rated BBB- or higher by S&P or Baa3 or higher by Moody’s, as the case may be, or if such Person does not have a rating of its long-term unsecured debt securities, then if the corporate credit rating of such Person, if any exists, from S&P is BBB- or higher or the issuer rating of such Person, if any exists, from Moody’s is Baa3 or higher.

 

“ Issuing Lender ” means (i) each of Wells Fargo, Bank of America, N.A., JPMorgan Chase Bank, N.A., Mizuho Bank, Ltd., Bank of China, New York Branch, Barclays Bank PLC, Citibank, N.A., Credit Suisse AG, Cayman Islands Branch, The MUFG Bank of Tokyo-Mitsubishi UFJ , Ltd. and Royal Bank of Canada and, and (ii) any other Lender that may agree to issue letters of credit hereunder, in each case as issuer of a Letter of Credit hereunder.  No Issuing Lender shall be obligated to issue any Letter of Credit hereunder if, after giving effect thereto, the aggregate Letter of Credit Liabilities in respect of all Letters of Credit issued by such Issuing Lender hereunder would exceed (i) in the case of each Issuing Lender named in clause (i) above, $40,000,000 (as such amount may be modified from time to time by agreement between the Company and such Issuing Lender) or (ii) with respect to any other Issuing Lender, such amount (if any) as may be agreed for this purpose from time to time by such Issuing Lender and the Company.  For avoidance of doubt, the limitations in the preceding sentence are for the exclusive benefit of the respective Issuing Lenders, are incremental to the other limitations specified herein on the availability of Letters of Credit and do not affect such other limitations.

 

“ Joinder Agreement ” means a joinder agreement between each Progress Borrower and the Administrative Agent in substantially the form of Exhibit H.

 

“ Lender ” means each bank or other financial institution listed on the signature pages hereof, each Additional Lender, each Assignee which becomes a Lender pursuant to Section 9.06(c), and their respective successors.  Each reference herein to a “Lender” shall, unless the context otherwise requires, include the Swingline Lender and each Issuing Lender in such capacity.

 

“ Lender Party ” means any of the Lenders, the Issuing Lenders and the Agents.

 

“ Letter of Credit ” means a stand-by letter of credit issued or to be issued hereunder by an Issuing Lender in accordance with Section 2.15, including, on and after the Third Fourth Amendment Effective Date, the Existing Duke Letters of Credit and the Existing Piedmont Letters of Credit.

 

“ Letter of Credit Liabilities ” means, for any Lender and at any time, such Lender’s ratable participation in the sum of (x) the amounts then owing by all Borrowers in respect of amounts drawn under Letters of Credit and (y) the aggregate amount then available for drawing under all Letters of Credit.

 

“ LIBOR Market Index Rate ” means, for any day, subject to the implementation of a Replacement Rate in accordance with Section 8.01(b), the rate for one month U.S. dollar deposits as appears on the display designated as Reuters Screen LIBOR01 Page (or on any successor or

 

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substitute page of such service or any successor to or, if such service is not available, substitute for such service providing rate quotations comparable to those currently provided on such page of such service, as reasonably determined deposits in dollars as published by ICE Benchmark Administration Limited, a United Kingdom company (or a comparable or successor quoting service which is approved by the Administrative Agent from time to time for purposes of providing quotations of interest rates applicable to U.S. dollar deposits are offered to leading banks in the London interbank deposit market), approximately 11:00 a.m. London time, for , in consultation with the Borrowers) as of 11:00 a.m. London time, on such day ; , or if such day is not a Euro-Dollar Business Day, for the immediately preceding Euro-Dollar Business Day (or if not so reported, then as .  If, for any reason, such rate is not so published, then the LIBOR Market Index Rate shall be determined by the Administrative Agent from another recognized source or interbank quotation) to be the arithmetic average of the rate per annum at which U.S. dollar deposits would be offered by first class banks (as determined in consultation with the Borrowers) in the London interbank market to the Administrative Agent at approximately 11:00 a.m., London time, on such date of determination for delivery on the date in question for a one month term ; provided , that, if the LIBOR Market Index Rate shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement.

 

“ Lien ” means, with respect to any asset, any mortgage, lien, pledge, charge, security interest or encumbrance of any kind in respect of such asset.  For the purposes of this Agreement, any Borrower or any of its Subsidiaries shall be deemed to own subject to a Lien any asset which it has acquired or holds subject to the interest of a vendor or lessor under any conditional sale agreement, capital lease or other title retention agreement relating to such asset.

 

“ Loan ” means a Revolving Credit Loan or a Swingline Loan; provided that Swingline Loans shall be subject to only those provisions of Article 2 which are specifically made applicable to Swingline Loans.

 

“ London Interbank Offered Rate ” has the meaning set forth in Section 2.06(b).

 

“ Long-Dated Letter of Credit ” means a Letter of Credit having an expiry date later than the fifth Domestic Business Day prior to the Commitment Termination Date of the Issuing Lender.

 

“ Material Debt ” means, with respect to any Borrower, Indebtedness of such Borrower or any of its Material Subsidiaries (other than any Non-Recourse Indebtedness) in an aggregate principal amount exceeding $150,000,000.

 

“ Material Plan ” has the meaning set forth in Section 6.01(i).

 

“ Material Subsidiary ” means at any time, with respect to any Borrower, any Subsidiary of such Borrower whose total assets exceeds 15% of the total assets (after intercompany eliminations) of such Borrower and its Subsidiaries, determined on a consolidated basis in accordance with GAAP generally accepted accounting principles , all as reflected in the consolidated financial statements of such Borrower most recently delivered to the Administrative Agent and the Lenders pursuant to Section 5.01(a) or 5.01(b).

 

“ Maximum Sublimit ” means, with respect to each Borrower, the amount set forth opposite its name in the table below, as such amount may be increased from time to time pursuant to Section 2.17:

 

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Borrower		Maximum Sublimit
Company		$	4,850,000,000
Duke Energy Carolinas		$	1,800,000,000
Duke Energy Progress		$	1,400,000,000
Duke Energy Florida		$	1,200,000,000
Duke Energy Indiana		$	1,000,000,000
Piedmont		$	850,000,000
Duke Energy Ohio		$	725,000,000
Duke Energy Kentucky		$	175,000,000

 

“ Merger Agreement ” means that certain Agreement and Plan of Merger dated as of January 8, 2011 among the company, Diamond Acquisition Corporation and Progress Energy, Inc., as amended, modified or supplemented from time to time.

 

“ Merger Effective Date ” means the date of the closing of the transaction contemplated under the Merger Agreement.

 

“ Moody’s ” means Moody’s Investors Service, Inc. (or any successor thereto).

 

“ Mortgage Indenture ” means in the case of each of Duke Energy Carolinas, Duke Energy Ohio, Duke Energy Indiana, Duke Energy Kentucky, Duke Energy Progress and Duke Energy Florida, the Duke Energy Carolinas Mortgage, the Duke Energy Ohio First Mortgage Trust Indenture, the Duke Energy Indiana First Mortgage Trust Indenture, the Duke Energy Kentucky First Mortgage Trust Indenture, the Duke Energy Progress Mortgage and Deed of Trust or the Duke Energy Florida Indenture, respectively.

 

“ Non-Consenting Lender ” means any Lender that does not approve any consent, waiver or amendment that (i) requires the approval of all affected Lenders in accordance with the terms of Section 9.05(a) and (ii) has been approved by the Required Lenders.

 

“ Non-Recourse Indebtedness ” means any Indebtedness incurred by a Subsidiary of the Company to develop, construct, own, improve or operate a defined facility or project  (a) as to which no Borrower (i) provides credit support of any kind (including any undertaking, agreement or instrument that would constitute Indebtedness but excluding tax sharing arrangements and similar arrangements to make contributions to such Subsidiary to account for tax benefits generated by such Subsidiary), (ii) is directly or indirectly liable as a guarantor or otherwise, or (iii) constitutes the lender; (b) no default with respect to which would permit upon notice, lapse of time or both any holder of any other Indebtedness (other than the Loans or the Notes) of any Borrower to declare a default on such other Indebtedness or cause the payment thereof to be accelerated or payable prior to its stated maturity; and (c) as to which the lenders will not have any recourse to the stock or assets of any Borrower or other Subsidiary (other than the stock of or intercompany loans to such Subsidiary); provided that in each case in clauses (a) and (c) above, a Borrower or other Subsidiary may provide credit support and recourse in an amount not exceeding 15% in the aggregate of any such Indebtedness.

 

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“ Notes ” means promissory notes of a Borrower, in the form required by Section 2.04, evidencing the obligation of such Borrower to repay the Loans made to it, and “ Note ” means any one of such promissory notes issued hereunder.

 

“ Notice of Borrowing ” has the meaning set forth in Section 2.02.

 

“ Notice of Interest Rate Election ” has the meaning set forth in Section 2.09(a).

 

“ Notice of Issuance ” has the meaning set forth in Section 2.15(b).

 

“ OFAC ” means the Office of Foreign Assets Control of the United States Department of the Treasury.

 

“ Other Taxes ” has the meaning set forth in Section 8.04(a).

 

“ Parent ” means, with respect to any Lender, any Person controlling such Lender.

 

“ Participant ” has the meaning set forth in Section 9.06(b).

 

“ Participant Register ” has the meaning set forth in Section 9.06(b).

 

“ Payment Date ” has the meaning set forth in Section 2.15(d).

 

“ PBGC ” means the Pension Benefit Guaranty Corporation or any entity succeeding to any or all of its functions under ERISA.

 

“ Percentage ” means, with respect to any Lender at any time, the percentage which the amount of its Commitment at such time represents of the aggregate amount of all the Commitments at such time; provided that in the case of Section 2.19 when a Defaulting Lender shall exist, “Percentage” shall mean the percentage of the total Commitments (disregarding any Defaulting Lender’s Commitment) represented by such Lender’s Commitment.

 

“ Person ” means an individual, a corporation, a partnership, an association, a trust or any other entity or organization, including a government or political subdivision or an agency or instrumentality thereof.

 

“ Piedmont ” means Piedmont Natural Gas Company, Inc., a North Carolina corporation.

 

“ Plan ” means at any time an employee pension benefit plan which is covered by Title IV of ERISA or Sections 412 or 430 of the Internal Revenue Code or Sections 302 and 303 of ERISA and is either (i) maintained by a member of the ERISA Group for employees of a member of the ERISA Group or (ii) maintained pursuant to a collective bargaining agreement or any other arrangement under which more than one employer makes contributions and to which a member of the ERISA Group is then making or accruing an obligation to make contributions or has within the preceding five plan years made contributions.

 

“ Platform ” means Syndtrak or a substantially similar electronic transmission system.

 

“ Pricing Schedule ” means the Pricing Schedule attached hereto as schedule 1.01(b) .

 

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“ Prime Rate ” means the per annum rate of interest established from time to time by the Administrative Agent at its principal office in San Francisco, California Charlotte, North Carolina as its Prime Rate.  Any change in the interest rate resulting from a change in the Prime Rate shall become effective as of 12:01 a.m. of the Domestic Business Day on which each change in the Prime Rate is announced by the Administrative Agent.  The Prime Rate is a reference rate used by the Administrative Agent in determining interest rates on certain loans and is not intended to be the lowest rate of interest charged on any extension of credit to any debtor.

 

“ Progress Borrowers ” means Duke Energy Florida and Duke Energy Progress.

 

“ PTE ” means a prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time to time.

 

“ Quarterly Payment Date ” means the first Domestic Business Day of each January, April, July and October.

 

“ Regulation U ” means Regulation U of the Board of Governors of the Federal Reserve System, as in effect from time to time.

 

“ Reimbursement Obligation ” means, at any time, the obligation of the Borrower then outstanding under Section 2.15 to reimburse the Issuing Lender for amounts paid by the Issuing Lender in respect of any one or more drawings under a Letter of Credit.

 

“ Related Parties ” means, with respect to any Person, such Person’s Subsidiaries and Affiliates and the partners, directors, officers, employees, agents, trustees, advisors, administrators and managers of such Person and of such Person’s Subsidiaries and Affiliates.

 

“ Removed Borrower ” has the meaning set forth in Section 9.05(b).

 

“ Replacement Rate ” has the meaning set forth in Section 8.01(b).

 

“ Replacement Rate Conforming Changes ” has the meaning set forth in Section  9.05 8.01 (b) .

 

“ Required Lenders ” means, at any time, Lenders having at least 51% in aggregate amount of the Aggregate Exposures at such time (exclusive in each case of the Aggregate Exposure(s) of any Defaulting Lender(s)) .

 

“ Revolving Credit Loan ” means a loan made or to be made by a Lender pursuant to Section 2.01(a); provided that, if any such loan or loans (or portions thereof) are combined or subdivided pursuant to a Notice of Interest Rate Election, the term “Revolving Credit Loan” shall refer to the combined principal amount resulting from such combination or to each of the separate principal amounts resulting from such subdivision, as the case may be.

 

“ Revolving Credit Period ” means, with respect to any Lender, the period from and including the Initial Effective Date to but not including its Commitment Termination Date.

 

“ Sanctioned Person ” means, at any time (a) any Person listed in any Sanctions-related list of specially designated Persons maintained by OFAC, the U.S. Department of State, United Nations Security Council, the European Union or Her Majesty’s Treasury of the United Kingdom, (b) any Person that has a place of business, or is organized or resident, in a jurisdiction that is the subject

 

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