Exhibit 10.1


 


AMENDMENT NO. 1 TO CREDIT AGREEMENT


AMENDMENT (this “Amendment”), dated as of
February 28, 2006, to the Amended and Restated Credit Agreement (the “Credit Agreement”), dated as of June 30, 2005, among DUKE ENERGY
CORPORATION, the BANKS listed on the signature pages hereof, CITIBANK, N.A., as Administrative Agent, and BANK OF AMERICA, N.A., as Syndication Agent.


W I T N E S S E T H :


WHEREAS, the Borrower has advised the Banks that it wishes to undertake the consummation of the
business combination with Cinergy Corp., a Delaware corporation (“Cinergy”), pursuant to which each of the Borrower and Cinergy will merge
with a separate subsidiary of the Company (as defined below) and will thereby become a wholly-owned subsidiary of the Company (such merger involving the Borrower, the “Borrower Merger”);


 


WHEREAS, following consummation of the Borrower Merger (i) the Borrower intends to convert from Duke
Energy Corporation, a North Carolina corporation, to Duke Power Company LLC, a North Carolina limited liability company in accordance with the provisions of Part 2 of Article 11A of the North
Carolina Business Corporation Act and Part 1 of Article 9A of the North Carolina Limited Liability Company Act (the “Conversion”) and (ii) the
Borrower intends to distribute its membership interest in Duke Capital LLC, a Delaware limited liability company, to the Company (the “Distribution
”);


 


WHEREAS, the parties hereto desire to amend and/or waive certain provisions of the Credit Agreement as
provided herein;


 


NOW, THEREFORE, the parties hereto agree as follows:


Section 1.  Defined Terms; References.  Unless otherwise
specifically defined herein, each capitalized term used herein which is defined in the Credit Agreement shall have the meaning assigned to such term in the Credit Agreement.  Each reference to
“hereof”, “hereunder”, “herein” and “hereby” and each other similar reference and each other similar reference contained in the Credit Agreement shall, after
the amendments herein become effective, refer to the Credit Agreement as amended hereby.


Section 2.  Amendments to Definitions. 


(a)    Effective simultaneously with consummation of the
Conversion, the definition of the following term set forth in Section 1.01 of the Credit Agreement is hereby amended to read in full as follows:


 


 












“Borrower” means Duke Power Company LLC, a
North Carolina limited liability company, and its successors.


(b)     Section 1.01 of the Credit Agreement is amended
by adding the following definition in the appropriate alphabetical place:


“Company” means Duke Energy Corporation, a
Delaware corporation, originally incorporated as Deer Holding Corporation, a Delaware corporation.


Section 3.  Amendments to Defaults. Section 6.01(k) of
the Credit Agreement is hereby amended to read as follows:


(k) any person or group of persons (within the meaning of Section 13 or 14 of the Securities Exchange
Act of 1934, as amended (the “Exchange Act”)) other than trustees and participants in employee benefit plans of the Company and its
Subsidiaries or the Endowment or Trust, shall have acquired beneficial ownership (within the meaning of Rule 13d-3 promulgated by the Securities and Exchange Commission under the Exchange Act) of 50%
or more of the outstanding shares of common stock of the Company; during any period of twelve consecutive calendar months, individuals who were directors of the Company on the first day of such
period (together with any successors nominated or appointed by such directors in the ordinary course) shall cease to constitute a majority of the board of directors of the Company; or the Borrower
shall cease to be a

Subsidiary of the Company;


Section 4.  Consent to LLC Conversion. The
Administrative Agent hereby consents to the Conversion.


Section 5.  Limited Waiver. The Banks hereby waive the
Event of Default that would otherwise arise under Sections 5.08 and 6.01(b) of the Credit Agreement by reason of the Distribution.


Section 6.  Representations and Warranties.  The
Borrower hereby represents and warrants that as of the date hereof and after giving effect hereto:



(a)     no Default has occurred and is continuing; and


(b)     each representation and warranty of the
Borrower set forth in the Credit Agreement after giving effect to this Amendment is true and correct as though made on and as of such date.


Section 7.  Counterparts; Effectiveness.  This Amendment
may be signed in any number of counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument.  This Amendment shall
become effective simultaneously with consummation of the Borrower Merger, so long as prior to such time the Administrative Agent shall have received duly executed counterparts hereof signed by the
Borrower and the Required Banks (or, in the case of any party as to which an executed counterpart shall not have been received, the Administrative Agent shall have received
telegraphic, telex or other written confirmation from such party satisfactory to the Administrative Agent of execution of a counterpart hereof by such party).


 


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Section 8.  Limited Effect. Except as expressly set
forth herein, the amendments contained herein shall not constitute a waiver or amendment of any term or condition of the Credit Agreement, and all such terms and conditions shall remain in full force
and effect and are hereby ratified and confirmed in all respects.


Section 9.  Governing Law.  This Amendment shall be
governed by and construed in accordance with the laws of the State of New York.


 


3


 


 












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


 





	

             
 	

            DUKE ENERGY CORPORATION
 
   
 
	

             
	

            By:
 	

            /s/ S. L. Love
 
	

             
	

             
 	

            Name: S. L. Love
 
	

             
	

             
 	

            Title:   Assistant Treasurer
 






 


 


 




	

             
 	

            CITIBANK, N.A., as Administrative 
    Agent and as a Lender
 
   
 
	

             
	

            By:
 	

            /s/ Richard Evans
 
	

             
	

             
 	

            Name: Richard Evans
 
	

             
	

             
 	

            Title:     Vice President
 






 


 


 




	

             
 	

            BANK OF AMERICA, N.A.
 
   
 
	

             
	

            By:
 	

            /s/ Kevin Wagley
 
	

             
	

             
 	

            Name: Kevin Wagley
 
	

             
	

             
 	

            Title:   Senior Vice President
 






 


 


 


 
















 




	

             
 	

            JPMORGAN CHASE BANK, N.A.
 
 
 
	

             
	

            By:
 	

            /s/ Michael J. DeForge
 
	

             
	

             
 	

            Name: Michael J. DeForge
 
	

             
	

             
 	

            Title:    Vice President
 






 


 


 




	

             
 	

            WACHOVIA BANK, NATIONAL ASSOCIATION
 
   
 
	

             
	

            By:
 	

            /s/ Lawrence P. Sullivan
 
	

             
	

             
 	

            Name:  Lawrence P. Sullivan
 
	

             
	

             
 	

            Title:     Director
 






 


 


 




	

             
 	

            BARCLAYS BANK PLC
 
   
 
	

             
	

            By:
 	

            /s/ Sydney G. Dennis
 
	

             
	

             
 	

            Name:  Sydney G. Dennis
 
	

             
	

             
 	

            Title:     Director
 
	

             
 	

             
 
	

             
	

             
 	

             
 
	

             
	

             
 	

             
 
	

             
	

             
 	

             
 






 


 


 


 
















 




	

             
 	

            ABN AMRO BANK N.V.
 
   
 
	

             
	

            By:
 	

            /s/ John D. Reed
 
	

             
	

             
 	

            Name:  John D. Reed
 
	

             
	

             
 	

            Title:     Director
 
 
 
	

             
 	

             
 
	

             
	

            By:
 	

            /s/ Todd D. Vaubel
 
	

             
	

             
 	

            Name:  Todd D. Vaubel
 
	

             
	

             
 	

            Title:    Assistant Vice President
 






 


 


 




	

             
 	

            DEUTSCHE BANK AG NEW YORK 
    BRANCH
 
   
 
	

             
	

            By:
 	

            /s/ Marcus Tarkington
 
	

             
	

             
 	

            Name:  Marcus Tarkington
 
	

             
	

             
 	

            Title:    Director
 
 
 
	

             
 	

             
 
	

             
	

            By:
 	

            /s/ Rainer Meier
 
	

             
	

             
 	

            Name:  Rainer Meier
 
	

             
	

             
 	

            Title:    Vice President
 






 


 


 


 
















 




	

             
 	

            UBS LOAN FINANCE LLC
 
   
 
	

             
	

            By:
 	

            /s/ Irja R. Otsa
 
	

             
	

             
 	

            Name:  Irja R. Otsa
 
	

             
	

             
 	

            Title:    Associate Director Banking Products Services US
 
 
 
	

             
 	

             
 
	

             
	

            By:
 	

            /s/ Richard L. Tavrow
 
	

             
	

             
 	

            Name:
 	

            Richard L. Tavrow
 
	

             
	

             
 	

            Title:
 	

            Director, Banking 
Products Services, US
 






 


 


 




	

             
 	

            LEHMAN BROTHERS BANK, FSB
 
   
 
	

             
	

            By:
 	

            /s/ Janine M. Shugan
 
	

             
	

             
 	

            Name:
 	

            Janine M. Shugan
 
	

             
	

             
 	

            Title:
 	

            Authorized Signatory
 






 


 


 




	

             
 	

            WILLIAM STREET COMMITMENT 
    CORPORATION
   


(Recourse only to assets of William Street 
Commitment Corporation)


 


 
 
	

             
	

            By:
 	

             
 
	

             
	

             
 	

            Name:
 	

             
 
	

             
	

             
 	

            Title:
 	

             
 






 


 


 
















 




	

             
 	

            CREDIT SUISSE, CAYMAN ISLANDS BRANCH
 
 
 
	

             
	

            By:
 	

            /s/ Thomas R. Cantello
 
	

             
	

             
 	

            Name:
 	

            Thomas R. Cantello
 
	

             
	

             
 	

            Title:
 	

            Vice President
 
 
 
	

             
 	

             
 
	

             
	

            By:
 	

            /s/ Denise L. Alvarez
 
	

             
	

             
 	

            Name:
 	

            Denise L. Alvarez
 
	

             
	

             
 	

            Title:
 	

            Associate
 






 


 


 




	

             
 	

            MORGAN STANLEY BANK
 
   
 
	

             
	

            By:
 	

            /s/ Daniel Twenge
 
	

             
	

             
 	

            Name:
 	

            Daniel Twenge
 
	

             
	

             
 	

            Title:
 	

            Vice President
 






 


 


 




	

             
 	

            SUNTRUST BANK
 
   
 
	

             
	

            By:
 	

            /s/ Kelley Brandenburg
 
	

             
	

             
 	

            Name:
 	

            Kelley Brandenburg
 
	

             
	

             
 	

            Title:
 	

            Vice President
 






 


 


 


 
















 




	

             
 	

            THE BANK OF TOKYO-MITSUBISHI, LTD., NEW YORK BRANCH
 
   
 
	

             
	

            By:
 	

            /s/ Linda Tam
 
	

             
	

             
 	

            Name:
 	

            Linda Tam
 
	

             
	

             
 	

            Title:
 	

            Authorized Signatory
 






 


 


 




	

             
 	

            THE ROYAL BANK OF SCOTLAND PLC, NEW YORK BRANCH
 
   
 
	

             
	

            By:
 	

            /s/ Emily Freedman
 
	

             
	

             
 	

            Name:
 	

            Emily Freedman
 
	

             
	

             
 	

            Title:
 	

            Vice President
 






 


 


 




	

             
 	

            DRESDNER BANK AG, NEW YORK AND GRAND CAYMAN BRANCHES
 
   
 
	

             
	

            By:
 	

            /s/ Thomas R. Brady
 
	

             
	

             
 	

            Name:
 	

            Thomas R. Brady
 
	

             
	

             
 	

            Title:
 	

            Director
 
 
 
	

             
 	

             
 
	

             
	

            By:
 	

            /s/ Brian Smith
 
	

             
	

             
 	

            Name:
 	

            Brian Smith
 
	

             
	

             
 	

            Title:
 	

            Managing Director
 






 


 


 


 
















 




	

             
 	

            KEYBANK NATIONAL ASSOCIATION
 
 
 
	

             
	

            By:
 	

            /s/ Paul J. Pace
 
	

             
	

             
 	

            Name:
 	

            Paul J. Pace
 
	

             
	

             
 	

            Title:
 	

            Assistant Vice President
 






 


 


 




	

             
 	

            MIZUHO CORPORATE BANK, LTD.
 
   
 
	

             
	

            By:
 	

             
 
	

             
	

             
 	

            Name:
 	

             
 
	

             
	

             
 	

            Title:
 	

             
 






 


 


 




	

             
 	

            THE NORTHERN TRUST COMPANY
 
   
 
	

             
	

            By:
 	

            /s/ Preeti Sullivan
 
	

             
	

             
 	

            Name:
 	

            Preeti Sullivan
 
	

             
	

             
 	

            Title:
 	

            Vice President
 






 


 


 
















 




	

             
 	

            WESTLB AG, NEW YORK BRANCH
 
   
 
	

             
	

            By:
 	

            /s/ Felicia La Forgia
 
	

             
	

             
 	

            Name:
 	

            Felicia La Forgia
 
	

             
	

             
 	

            Title:
 	

            Director
 
 
 
	

             
 	

             
 
	

             
	

            By:
 	

            /s/ Anthony Alessandro
 
	

             
	

             
 	

            Name:
 	

            Anthony Alessandro
 
	

             
	

             
 	

            Title:
 	

            Associate Director
 






 


 


 




	

             
 	

            SUMITOMO MITSUI BANKING CORPORATION
 
 
 
	

             
	

            By:
 	

            /s/ William M. Ginn
 
	

             
	

             
 	

            Name:
 	

            William M. Ginn
 
	

             
	

             
 	

            Title:
 	

            General Manager