-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, DQkyseEGX5U7T9EPnzVJfhP8VS5/1/yY/4PTOgJYHO5gD/s6vKxvFFzpEk23Ysbp Siu/emr3Hfl2zDToEXlLQQ== 0000950129-01-503883.txt : 20020410 0000950129-01-503883.hdr.sgml : 20020410 ACCESSION NUMBER: 0000950129-01-503883 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 4 CONFORMED PERIOD OF REPORT: 20011106 ITEM INFORMATION: Other events ITEM INFORMATION: Financial statements and exhibits FILED AS OF DATE: 20011109 FILER: COMPANY DATA: COMPANY CONFORMED NAME: DUKE ENERGY FIELD SERVICES LLC CENTRAL INDEX KEY: 0001119811 STANDARD INDUSTRIAL CLASSIFICATION: CRUDE PETROLEUM & NATURAL GAS [1311] IRS NUMBER: 76032293 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 000-31095 FILM NUMBER: 1779488 BUSINESS ADDRESS: STREET 1: 370 SEVENTEENTH STREET STREET 2: SUITE 900 CITY: DENVER STATE: CO ZIP: 80202 BUSINESS PHONE: 303595331 MAIL ADDRESS: STREET 1: 370 SEVENTEENTH STREET CITY: DENVER STATE: CO ZIP: 80202 8-K 1 h92057e8-k.txt DUKE ENERGY FIELD SERVICES LLC - NOVEMBER 6, 2001 ================================================================================ 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): NOVEMBER 6, 2001 ----------------- DUKE ENERGY FIELD SERVICES, LLC (Exact name of registrant as specified in its charter) DELAWARE 0-31095 76-0632293 (State of (Commission File (I.R.S. Employer Incorporation) Number) Identification Number) 370 17TH STREET, SUITE 900 DENVER, COLORADO 80202 (Address of Principal Executive Offices) (Zip Code) Registrant's telephone number, including area code: (303) 595-3331 ================================================================================ ITEM 5. OTHER EVENTS Ratio of Earnings to Fixed Charges The following table sets forth the consolidated ratio of earnings to fixed charges for the periods indicated for Duke Energy Field Services, LLC (the "Company"). From a financial reporting perspective, the Company is the successor to Duke Energy Corporation's North American midstream natural gas business. The subsidiaries of Duke Energy Corporation that conducted this business were contributed to the Company in March 2000 immediately prior to the combination of these subsidiaries with the North American midstream natural gas business of Phillips Petroleum Company. For periods prior to the March 31, 2000 combination, the Company and these former subsidiaries of Duke Energy collectively are referred to as the "Predecessor Company."
PREDECESSOR COMPANY COMPANY ------------------------------------- ------------------ NINE MONTHS ENDED 1996 1997 1998 1999 2000 SEPTEMBER 30, 2001 ------ ------ ------ ------ ----- ------------------ Ratio of earnings to fixed charges........... 9.11 2.52 1.07 2.33 3.43 3.64
For purposes of calculating the ratios of earnings to fixed charges: (1) "earnings" means income before extraordinary charges plus income taxes and fixed charges, and (2) "fixed charges" include interest on indebtedness, amortization of deferred financing costs, and that portion of lease expense that is deemed to be representative of an interest factor. The ratio includes amounts from the Company, all of the Company's majority-owned subsidiaries and the Company's proportionate share of distributed amounts from 50% owned investments accounted for using the equity method. Notes Offering On November 6, 2001, the Company entered into an underwriting agreement with the underwriters named therein to sell $300,000,000 aggregate principal amount of 5.75% Notes due 2006 (the "Notes"). Closing of the sale of the Notes is expected to occur on November 9, 2001. 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 November 6, 2001. 4.1 Third Supplemental Indenture between Duke Energy Field Services, LLC and The Chase Manhattan Bank, as Trustee, dated as of November 9, 2001. 4.2 Form of 5.75% Notes due 2006 (included in Exhibit 4.1 as Exhibit A thereto). 12.1 Statement regarding Computation of Ratio of Earnings to Fixed Charges. 2 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: November 9, 2001 DUKE ENERGY FIELD SERVICES, LLC By: /s/ JOHN E. JACKSON ------------------------------------------- John E. Jackson Vice President and Chief Financial Officer 3 INDEX TO EXHIBITS
EXHIBIT NUMBER DESCRIPTION - ------- ----------- 1.1 Underwriting Agreement among Duke Energy Field Services, LLC and the Underwriters named therein dated as of November 6, 2001. 4.1 Third Supplemental Indenture between Duke Energy Field Services, LLC and The Chase Manhattan Bank, as Trustee, dated as of November 9, 2001. 4.2 Form of 5.75% Notes due 2006 (included in Exhibit 4.1 as Exhibit A thereto). 12.1 Statement regarding Computation of Ratio of Earnings to Fixed Charges.
4 EX-1.1 3 h92057ex1-1.txt UNDERWRITING AGREEMENT EXHIBIT 1.1 DUKE ENERGY FIELD SERVICES, LLC $300,000,000 5.75% NOTES DUE 2006 November 6, 2001 UNDERWRITING AGREEMENT Banc of America Securities LLC Banc One Capital Markets, Inc. Scotia Capital (USA) Inc. c/o Banc of America Securities LLC, Bank of America Corporate Center 100 North Tryon Street 6th Floor, Charlotte, NC 28255 Ladies and Gentlemen: 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") $300,000,000 aggregate principal amount of 5.75% Notes due 2006 (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 on August 16, 2000 and February 2, 2001, and as to be supplemented by a third supplemental indenture, dated as of November 9, 2001, 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. 333-57376) in respect of the Notes (as amended by Amendment No. 1, filed on March 27, 2001) 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, 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 Securities Exchange Act of 1934, as amended (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. -2- (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 -3- 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 dated 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 -4- 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, who has certified certain financial statements of the Company, its subsidiaries and predecessors, is an independent public accountant 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. -5- (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 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 each case 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. -6- 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 the Notes set forth opposite the name of such Underwriter in Schedule I hereto, plus the respective principal amount of additional Notes, which each such Underwriter may become obligated to purchase pursuant to the provisions of Section 9 hereof, at a purchase price of 99.27% of the principal amount of the Notes, plus accrued interest from November 9, 2001. 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 Notes, in the form of one or more global certificates and in aggregate denominations equal to the aggregate amount of the Notes, 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 9:30 a.m., New York City time, on November 9, 2001, 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 -7- 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: -8- (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 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. -9- 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 -10- 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. -11- (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 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. (xii) 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" insofar as they purport to constitute summaries of the legal matters and documents referred to therein, are accurate in all material respects. -12- 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 -13- 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 shall have furnished to you a letter or letters, dated the respective dates of delivery thereof in form and substance satisfactory to you. (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 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 or a material disruption in commercial banking activities in New York or securities settlement or clearance services in the United States; (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 -14- 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 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; -15- 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 to so notify the Company shall not relieve it from any liability that 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 -16- 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 -17- 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. This 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 -18- 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 you for all out-of-pocket expenses, including fees and disbursements of counsel, reasonably incurred by you 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 in care of Banc of America Securities LLC, Bank of America Corporate Center, 100 North Tryon Street, 6th Floor, Charlotte, NC 28255, Attention: Transaction Management (facsimile: (704) 388 9939); 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 -19- 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. -20- If the foregoing is in accordance with your understanding, please sign and return to us four 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. Very truly yours, DUKE ENERGY FIELD SERVICES, LLC By: /s/ JOHN E. JACKSON ------------------------------ Name: John E. Jackson Vice President and Chief Financial Officer The foregoing Underwriting Agreement is hereby confirmed and accepted as of the date first above written. BANC OF AMERICA SECURITIES LLC BANC ONE CAPTIAL MARKETS, INC. SCOTIA CAPITAL (USA) INC. By: BANC OF AMERICA SECURITIES LLC By: /s/ LILY CHANG - ----------------------------------- Principal -21- SCHEDULE I
UNDERWRITER PRINCIPAL AMOUNT OF NOTES - ----------- ------------------------- Banc of America Securities LLC $210,000,000 Banc One Capital Markets, Inc. $ 45,000,000 Scotia Capital (USA) Inc. $ 45,000,000 - ------------------------- ------------ Total $300,000,000 ============
-22- EX-4.1 4 h92057ex4-1.txt THIRD SUPPLEMENTAL INDENTURE EXHIBIT 4.1 DUKE ENERGY FIELD SERVICES, LLC TO THE CHASE MANHATTAN BANK TRUSTEE ---------- THIRD SUPPLEMENTAL INDENTURE DATED AS OF NOVEMBER 9, 2001 ---------- $300,000,000 5.75% NOTES DUE 2006 ---------- TABLE OF CONTENTS ARTICLE 1 ESTABLISHMENT OF SERIES...........................................1 SECTION 101. ESTABLISHMENT.............................................1 ARTICLE 2 5.75% NOTES DUE 2006..............................................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 MISCELLANEOUS PROVISIONS..........................................5 SECTION 301. RECITALS BY COMPANY.......................................5 SECTION 302. RATIFICATION AND INCORPORATION OF ORIGINAL INDENTURE......5 SECTION 303. EXECUTED IN COUNTERPARTS..................................6
i THIS THIRD SUPPLEMENTAL INDENTURE is made as of the 9th day of November, 2001, 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"). WITNESSETH: 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 Third 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 a 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 Third 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 SERIES Section 101. Establishment. There is hereby established a new series of Securities to be issued under the Indenture, to be designated as the Company's 5.75% Notes due 2006 (the "2006 Notes"). The 2006 Notes shall have the form and terms specified in Article 2 hereof. ARTICLE 2 5.75% NOTES DUE 2006 Section 201. Establishment. There are to be authenticated and delivered $300,000,000 principal amount of 2006 Notes, and no further 2006 Notes shall be authenticated and delivered except as provided by Section 304, 305, 306, 906 or 1106 of the Original Indenture. The 2006 Notes shall be issued in fully registered form without coupons. The 2006 Notes shall be substantially in the form set out in Exhibit A hereto. Each 2006 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 2006 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 May 15 and November 15, commencing May 15, 2002. "Original Issue Date" means November 9, 2001. "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 November 15, 2006. Section 203. Payment of Principal and Interest. The principal of the 2006 Notes shall be due at Stated Maturity, unless earlier redeemed. The unpaid amount of the 2006 Notes shall bear interest at the rate of 5.75% 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 2006 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 2006 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 2006 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 2006 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. 2 Payments of interest on the 2006 Notes shall include interest accrued to but excluding the respective Interest Payment Dates. Interest payments for the 2006 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 2006 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 2006 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 the 2006 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 2006 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 2006 Notes shall be made at the office of any Paying Agent upon surrender of such 2006 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 2006 Notes shall be issued in denominations of $1,000 or any integral multiple thereof. Section 205. Global Securities. The 2006 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, the 2006 Notes represented by such Global Security or Global Securities shall not be exchangeable for, and shall not otherwise be issuable as, 2006 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 2006 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 3 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 2006 Notes registered in such names as the Depositary shall direct. Section 206. Redemption at the Option of the Company. The 2006 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 2006 Notes to be redeemed and (ii) the sum of the present values of the principal amount of the 2006 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 30 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 Banc of America Securities LLC and Merrill Lynch Government 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 4 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 2006 Notes are to be redeemed, the Trustee shall select the 2006 Notes or portions of 2006 Notes to be redeemed by such method as the Trustee shall deem fair and appropriate. The Trustee may select for redemption 2006 Notes and portions of 2006 Notes in amounts of whole multiples of $1,000. The 2006 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 2006 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 MISCELLANEOUS PROVISIONS Section 301. Recitals by Company. The recitals in this Third 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 2006 Notes and this Third Supplemental Indenture as fully and with like effect as if set forth herein in full. Section 302. 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 Third Supplemental Indenture shall be read, taken and construed as one and the same instrument. 5 Section 303. Executed in Counterparts. This Third 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. 6 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 By: /s/ JOHN E. JACKSON ----------------------------------------- John E. Jackson Vice President and Chief Financial Officer THE CHASE MANHATTAN BANK, as Trustee By: /s/ NATALIA RODRIGUEZ ----------------------------------------- Natalia Rodriguez Authorized Officer 7 EXHIBIT A FORM OF 5.75% NOTE DUE 2006 No. CUSIP No. 26439X AE 3 DUKE ENERGY FIELD SERVICES, LLC 5.75% NOTE DUE 2006 Principal Amount: Regular Record Date: close of business on the 15th calendar day prior to the relevant Interest Payment Date Original Issue Date: November 9, 2001 Stated Maturity: November 15, 2006 Interest Payment Dates: May 15 and November 15, commencing May 15, 2002 Interest Rate: 5.75% 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 May 15, 2002, 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 A-1 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. A-2 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. A-3 IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed. Dated: Duke Energy Field Services, LLC By: --------------------------- 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 By: ---------------------------- Authorized Officer A-4 (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 5.75% Notes due 2006 (the "2006 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 2006 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 2006 Notes to be redeemed and (ii) the sum of the present values of the principal amount of the 2006 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 30 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 Banc of America Securities LLC and Merrill Lynch Government 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. A-5 "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 the 2006 Notes to be redeemed. If less than all the 2006 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 2006 Notes to be redeemed in whole or in part. The Trustee may select for redemption the 2006 Notes and portions of the 2006 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 A-6 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. A-7 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. A-8 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 --------- - -------------------------------------------------------------------------------- PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING POSTAL ZIP CODE OF ASSIGNEE, AND INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE. - -------------------------------------------------------------------------------- the within Security and all rights thereunder, hereby irrevocably constituting and appointing agent to transfer said Security on the books of the Company, with full power of substitution in the premises. 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. A-9 EX-12.1 5 h92057ex12-1.txt COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES EXHIBIT 12.1 Duke Energy Field Services Corporation Computation of Ratio of Earnings to Fixed Charges
Predecessor Company Historical(1) ---------------------------------------------------------------------------------- Nine Years Ended Months --------------------------------------------------------------------- Ended 1995 1996 1997 1998 1999 2000 9/30/01 --------- --------- --------- --------- --------- --------- --------- Earnings: Net income 33,615 84,609 51,238 2,028 43,329 680,161 336,856 Add: Interest and Debt expense 20,115 12,747 51,113 52,403 52,915 149,220 124,847 Amortized expenses related to indebtedness Income taxes 37,299 35,665 33,380 3,289 31,029 (310,937) 263 Portion of rents representative of the interest factor 511 511 810 823 1,176 2,023 1,871 --------- --------- --------- --------- --------- --------- --------- Income as adjusted 91,540 133,532 136,541 58,543 128,449 520,467 463,837 --------- --------- --------- --------- --------- --------- --------- Fixed charges: Interest and Debt expense per Statement of Income $ 20,115 $ 12,747 $ 51,113 $ 52,403 $ 52,915 $ 149,220 $ 124,847 Capitalized Interest 1,694 1,405 2,254 1,565 930 324 585 Amortized expenses related to indebtedness Portion of rents representative of the interest factor 511 511 810 823 1,176 2,023 1,871 --------- --------- --------- --------- --------- --------- --------- TOTAL FIXED CHARGES 22,320 14,663 54,177 54,791 55,021 151,567 127,303 --------- --------- --------- --------- --------- --------- --------- RATIO OF EARNINGS TO FIXED CHARGES 4.10 9.11 2.52 1.07 2.33 3.43 3.64
(1) Interest expense on a historical basis was primarily from intercompany debt. In addition, the historical advance accounts from the parent companies were non-interest bearing. As a result the historical capital structure was not indicative of the current capital structure. -----END PRIVACY-ENHANCED MESSAGE-----