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): September 3, 2013

 

DUKE ENERGY OHIO, INC.

(Exact Name of Registrant as Specified in its Charter)

 

Ohio

 

1-1232

 

31-0240030

(State or Other Jurisdiction
of Incorporation)

 

(Commission
File Number)

 

(IRS Employer
Identification No.)

 

139 East Fourth Street, Cincinnati, Ohio 45202

(Address of Principal Executive Offices, including Zip code)

 

(704) 382-3853

(Registrant’s telephone number, including area code)

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

 

o    Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

o    Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

o    Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

o    Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240. 13e-4(c))

 

 

 



 

Item 8.01.   Other Events.

 

On September 3, 2013, Duke Energy Ohio, Inc. (the “Company”) entered into an underwriting agreement, dated as of September 3, 2013 (the “Underwriting Agreement”), with Barclays Capital Inc., RBS Securities Inc. and UBS Securities LLC, as representatives of the several underwriters named therein (the “Underwriters”), pursuant to which the Company agreed to issue and sell to the Underwriters (i) $150,000,000 aggregate principal amount of the Company’s First Mortgage Bonds, Floating Rate Series, Due March 6, 2015 (the “2015 Bonds”) and (ii) $300,000,000 aggregate principal amount of the Company’s First Mortgage Bonds, 3.80% Series, Due September 1, 2023 (the “2023 Bonds” and together with the 2015 Bonds, the “Bonds”). The Bonds will be issued under the First Mortgage, dated as of August 1, 1936, between the Company and The Bank of New York Mellon Trust Company, N.A., as trustee, as amended and supplemented from time to time (the “Indenture”), including by the Forty-second Supplemental Indenture, dated as of September 6, 2013 (the “Supplemental Indenture”).  The disclosure in this Item 8.01 is qualified in its entirety by the provisions of the Indenture, the Supplemental Indenture, which is filed as Exhibit 4.1 hereto, and the Underwriting Agreement, which is filed as Exhibit 99.1 hereto. Such exhibits are incorporated herein by reference. Also, in connection with the issuance and sale of the Bonds, the Company is filing a legal opinion regarding the validity of the Bonds as Exhibit 5.1 to this Form 8-K for the purpose of incorporating the opinion into the Company’s Registration Statement No. 333-169633-01.

 

Item 9.01.      Financial Statements and Exhibits.

 

(d)  Exhibits

 

4.1

 

Forty-second Supplemental Indenture, dated as of September 6, 2013, between the Company and The Bank of New York Mellon Trust Company, N.A., as trustee, providing for the issuance of the Bonds.

 

 

 

5.1

 

Opinion of Taft Stettinius & Hollister LLP regarding validity of the Bonds.

 

 

 

23.1

 

Consent of Taft Stettinius & Hollister LLP (included as part of Exhibit 5.1).

 

 

 

99.1

 

Underwriting Agreement, dated as of September 3, 2013, among the Company and Barclays Capital Inc., RBS Securities Inc. and UBS Securities LLC, as representatives of the several underwriters named therein, in connection with the Company’s issuance and sale of the Bonds.

 

SIGNATURES

 

Pursuant to the requirements of the Securities and Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 

 

DUKE ENERGY OHIO, INC.

 

 

 

 

Date: September 6, 2013

By:

/s/ Robert T. Lucas III, Esq.

 

Name:

Robert T. Lucas III, Esq.

 

Title:

Deputy General Counsel and

 

 

Assistant Corporate Secretary

 

2



 

EXHIBIT INDEX

 

Exhibit

 

Description

 

 

 

 

4.1

 

 

Forty-second Supplemental Indenture, dated as of September 6, 2013, between the Company and The Bank of New York Mellon Trust Company, N.A., as trustee, providing for the issuance of the Bonds.

 

 

 

 

5.1

 

 

Opinion of Taft Stettinius & Hollister LLP regarding validity of the Bonds.

 

 

 

 

23.1

 

 

Consent of Taft Stettinius & Hollister LLP (included as part of Exhibit 5.1).

 

 

 

 

99.1

 

 

Underwriting Agreement, dated as of September 3, 2013, among the Company and Barclays Capital Inc., RBS Securities Inc. and UBS Securities LLC, as representatives of the several underwriters named therein, in connection with the Company’s issuance and sale of the Bonds.

 

3


Exhibit 4.1

 

 

 

DUKE ENERGY OHIO, INC .

 

(FORMERLY NAMED “THE CINCINNATI GAS & ELECTRIC COMPANY”)

 

TO

 

THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,

AS TRUSTEE

 

(SUCCESSOR TRUSTEE TO THE BANK OF NEW YORK MELLON

AND TO IRVING TRUST COMPANY)

 


 

FORTY-SECOND SUPPLEMENTAL INDENTURE

 

DATED AS OF SEPTEMBER 6, 2013

 

TO

 

FIRST MORTGAGE

 

DATED AS OF AUGUST 1, 1936

 


 

Creating First Mortgage Bonds, Floating Rate Series, Due March 6, 2015

and First Mortgage Bonds, 3.80% Series, Due September 1, 2023

 

 

 



 

TABLE OF CONTENTS

 

ARTICLE ONE. DEFINITIONS

2

 

 

 

SECTION 1.01. DEFINITIONS

2

 

 

 

ARTICLE TWO. FIRST MORTGAGE BONDS, FLOATING RATE SERIES, DUE MARCH 6, 2015 AND FIRST MORTGAGE BONDS, 3.80% SERIES, DUE SEPTEMBER 1, 2023

2

 

 

 

SECTION 2.01. CREATION AND DESIGNATION OF BONDS

2

 

SECTION 2.02. AGGREGATE PRINCIPAL AMOUNT OF BONDS OF EACH SERIES ISSUABLE

2

 

SECTION 2.03. BOOK-ENTRY SYSTEM

3

 

SECTION 2.04. DATE OF BONDS OF EACH SERIES

6

 

SECTION 2.05. MATURITY DATES, INTEREST RATES, INTEREST PAYMENT DATES AND REGULAR RECORD DATES FOR BONDS OF EACH SERIES

6

 

SECTION 2.06. PLACE AND MANNER OF PAYMENT OF BONDS OF EACH SERIES

9

 

SECTION 2.07. DENOMINATIONS AND NUMBERING OF DEFINITIVE BONDS OF EACH SERIES

9

 

SECTION 2.08. TEMPORARY BONDS OF EACH SERIES AND EXCHANGE THEREOF

9

 

SECTION 2.09. REDEMPTION PROVISIONS OF THE BONDS

9

 

SECTION 2.10. FORM OF THE BONDS OF EACH SERIES

11

 

 

 

ARTICLE THREE. CALCULATION AGENT FOR THE BONDS OF SERIES DUE 2015

23

 

 

 

SECTION 3.01. CALCULATION AGENT APPOINTED

23

 

SECTION 3.02. DUTIES AND OBLIGATIONS

23

 

SECTION 3.03. TERMS AND CONDITIONS

23

 

SECTION 3.04. QUALIFICATIONS

25

 

SECTION 3.05. RESIGNATION AND REMOVAL

26

 

SECTION 3.06. SUCCESSORS

26

 

SECTION 3.07. TRUSTEE DEEMED CALCULATION AGENT UNDER CERTAIN CIRCUMSTANCES

26

 

SECTION 3.08. MERGER, CONSOLIDATION, SALE OR TRANSFER

27

 



 

 

SECTION 3.09. NOTICE

27

 

SECTION 3.10. WAIVER OF JURY TRIAL

28

 

SECTION 3.11. CALCULATION OF INTEREST RATE FOR FIRST INTEREST PERIOD

28

 

 

 

MISCELLANEOUS

29

 

 

 

SECTION 4.01. INDENTURE RATIFIED AND CONFIRMED

29

 

SECTION 4.02. EXECUTION IN COUNTERPARTS

29

 

SECTION 4.03. EFFECT OF HEADINGS AND TABLE OF CONTENTS

29

 

SECTION 4.04. SUCCESSORS AND ASSIGNS

29

 

SECTION 4.05. SEPARABILITY CLAUSE

29

 

SECTION 4.06. BENEFITS OF INDENTURE

29

 

SECTION 4.07. GOVERNING LAW

30

 

SECTION 4.08. TRUSTEE NOT RESPONSIBLE FOR RECITALS, ETC.

30

 

ii



 

FORTY-SECOND SUPPLEMENTAL INDENTURE , dated as of September 6, 2013, between DUKE ENERGY OHIO, INC. (hereinafter sometimes referred to as the “Company”), a corporation organized and existing under the laws of the State of Ohio, formerly named The Cincinnati Gas & Electric Company, and THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., a national banking association, and the successor trustee to The Bank of New York Mellon and Irving Trust Company (hereinafter sometimes referred to as the “Trustee”), whose mailing address is 525 Vine Street, Suite 900, Cincinnati, Oh 45202.

 

RECITALS OF THE COMPANY

 

The Indenture, dated as of August 1, 1936 (the “Original Indenture”) was authorized, executed and delivered by the Company to provide for the issuance from time to time of its bonds, to be issued in one or more series as contemplated therein, and to provide security for the payment of the principal of and premium, if any, and interest, if any, on the bonds.

 

The Company has heretofore executed and delivered to the Trustee forty-one supplemental indentures for the purposes recited therein, including creating series of Securities and otherwise amending, restating and supplementing the Original Indenture (the Original Indenture, as so amended, restated and supplemented, being hereinafter called the “Indenture”).

 

The Company, by appropriate corporate action in conformity with the terms of the Indenture, has duly determined to make, execute and deliver to the Trustee this Forty-second Supplemental Indenture to the Indenture as permitted by Sections 2.01, 3.01, 13.01 and 16.02 of the Indenture in order to establish the form or terms of, and to provide for the creation and issuance of, two new series of Securities (each, a “Series”) under the Indenture to be designated as (i) “First Mortgage Bonds, Floating Rate Series, Due March 6, 2015”), in an aggregate principal amount of $150,000,000 (hereinafter referred to as the “Bonds of Series Due 2015”), and (ii) “First Mortgage Bonds, 3.80% Series, Due September 1, 2023”), in an aggregate principal amount of $300,000,000 (hereinafter referred to as the “Bonds of Series Due 2023” and, together with the Bonds of Series Due 2015, collectively, the “Bonds”).

 

All things necessary to make the Bonds of each Series herein described, when duly authenticated by the Trustee and issued by the Company, valid, binding, and legal obligations of the Company, and to make this Forty-second Supplemental Indenture a valid and binding agreement supplemental to the Indenture, have been done and performed.

 

THIS FORTY-SECOND SUPPLEMENTAL INDENTURE WITNESSETH:

 

In consideration of the premises and of the acceptance and purchase of the Bonds of each Series, the Company hereby covenants and agrees to and with the Trustee as follows:

 

 [THE REMAINDER OF THIS PAGE HAS BEEN LEFT BLANK INTENTIONALLY.]

 



 

ARTICLE ONE.

 

DEFINITIONS

 

SECTION 1.01.  DEFINITIONS.

 

(a)                                  In addition to the words and terms defined elsewhere in this Forty-second Supplemental Indenture, the following defined term used herein shall, unless the context otherwise requires, have the meaning specified below.

 

“Business Day” means any day, other than a Saturday or Sunday, which is not a day on which banking institutions or trust companies in New York, New York or Cincinnati, Ohio are generally authorized or required by law, regulation or executive order to remain closed.

 

(b)                                  Each capitalized term that is used herein and is defined in the Indenture shall have the meaning specified in the Indenture unless such term is otherwise defined herein. The terms defined herein include the plural as well as the singular.

 

ARTICLE TWO.

 

FIRST MORTGAGE BONDS, FLOATING RATE SERIES, DUE MARCH 6, 2015 AND FIRST MORTGAGE BONDS, 3.80% SERIES, DUE SEPTEMBER 1, 2023

 

SECTION 2.01.  CREATION AND DESIGNATION OF BONDS.

 

There is hereby created two series of Securities to be issued under and secured by the Indenture, to be designated as (i) “First Mortgage Bonds, Floating Rate Series, Due March 6, 2015”) (such series being the Bonds of Series Due 2015 hereinbefore referenced), and (ii) “First Mortgage Bonds, 3.80% Series, Due September 1, 2023”) (such series being the Bonds of Series Due 2023 hereinbefore referenced).

 

SECTION 2.02.  AGGREGATE PRINCIPAL AMOUNT OF BONDS OF EACH SERIES ISSUABLE.

 

(a)                                  The principal amount of Bonds of Series Due 2015 which may be authenticated and delivered hereunder is limited to the aggregate principal amount of One Hundred Fifty Million Dollars ($150,000,000) and the principal amount of Bonds of Series Due 2023 which may be authenticated and delivered hereunder is limited to the aggregate principal amount of Three Hundred Million Dollars ($300,000,000) (except, in each case, for Bonds of each such Series authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Bonds of such Series pursuant to Section 3.04, 3.05, 3.06, 5.06 or 13.06 of the Indenture and except for any Bonds of each such Series which, pursuant to Section 3.03 of the Indenture, are deemed never to have been authenticated and delivered hereunder).

 

2



 

(b)                                  The Bonds of Series Due 2015 in the aggregate principal amount of One Hundred Fifty Million Dollars ($150,000,000) and the Bonds of Series Due 2023 in the aggregate principal amount of Three Hundred Million Dollars ($300,000,000) may at any time subsequent to the execution hereof each be executed by the Company and delivered to the Trustee and shall be authenticated by the Trustee and delivered (either before or after the recording hereof) upon the basis of Property Additions issued and delivered to the Trustee for such purpose, pursuant to a Company Order referred to in Section 16.02 of the Indenture and upon receipt by the Trustee of the opinions and other documents required by said Section 16.02.

 

SECTION 2.03.  BOOK-ENTRY SYSTEM.

 

The following provisions shall apply to the Bonds of each Series.

 

(a)                                  The Bonds of each Series shall be issued in fully registered form only.  However, except as provided elsewhere in this Section, the registered owner of each Series of Bonds initially shall be The Depository Trust Company (“DTC”) or its nominee, and each such Series of Bonds initially shall be registered in the name of DTC or its nominee.  Payment of the principal or Redemption Price (if any) of or interest on Bonds registered in the name of DTC or its nominee shall be made in the manner specified in DTC’s rules and by-laws.  DTC (and any successor securities depository) and its (or their) participating institutions (each, a “Participant”) shall maintain a book-entry registration and transfer system with respect to ownership of beneficial interests in the Bonds of each Series (the “Book-Entry System”).

 

(b)                                  The Bonds of each Series initially shall be issued in the form of one or more authenticated, fully registered bonds for such series (each a “Global Security”) which (i) need not be in the form of a lithographed or engraved certificate, but may be typewritten or printed on ordinary paper or such paper as the Trustee may reasonably request, (ii) shall represent and be denominated in an amount equal to 100% of the aggregate principal amount of such Series of Bonds issued under the Indenture and this Forty-second Supplemental Indenture, (iii) shall be executed by the Company and authenticated by the Trustee in accordance with the provisions of the Indenture and this Forty-second Supplemental Indenture, (iv) shall be registered in the name of DTC or its nominee, and delivered to DTC or its nominee or a custodian therefor, and (v) shall contain the following legend on the face thereof:

 

Unless this certificate is presented by an authorized representative of The Depository Trust Company, a New York corporation (“DTC”), to issuer or its agent for registration of transfer, exchange or payment, and any certificate issued is registered in the name of Cede & Co. or in such other name as is requested by an authorized representative of DTC (and any payment is made to Cede & Co. or to such other entity as is requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO

 

3



 

ANY PERSON IS WRONGFUL inasmuch as the registered holder hereof, Cede & Co., has an interest herein.

 

Unless and until it is exchanged in whole or in part for Bonds of Series Due 2015 or Bonds of Series Due 2023 (as applicable) in definitive certificated form, each Global Security representing the Bonds of such Series may not be transferred except as a whole by DTC to a nominee of DTC or by a nominee of DTC to DTC or another nominee of DTC or by DTC or any such nominee to a successor securities depository or a nominee of any such successor securities depository.

 

(c)                                   The Trustee and the Company may treat DTC or its nominee, or any successor securities depository or nominee thereof (collectively, the “Depository”) as the sole and exclusive owner of the Bonds of each Series registered in its name for the purposes of payment of the principal or Redemption Price (if any) of or interest on the Bonds of such Series, giving any notice permitted or required to be given to Holders of the Bonds of such Series under the Indenture or this Forty-second Supplemental Indenture, registering the transfer of the Bonds of such Series, obtaining any consent or other action to be taken by Holders of the Bonds of such Series, and for all other purposes whatsoever and neither the Trustee nor the Company shall be affected by any notice to the contrary.  Neither the Company nor the Trustee nor any Security Registrar nor any Paying Agent shall have any responsibility or obligation to any Participant, any Person claiming a beneficial ownership interest in a Series of Bonds under or through the Depository or any Participant, or any other Person which is not shown on the Security Register as being a Holder of a Series of Bonds with respect to (i) the accuracy of any records maintained by the Depository or any Participant; (ii) the payment by the Depository to any Participant of any amount in respect of the principal or Redemption Price (if any) of or interest on the Bonds of such Series; (iii) the payment by any Participant to any owner of a beneficial ownership interest in the Bonds of such Series in respect of the principal or Redemption Price (if any) of or interest on the Bonds of such Series or (iv) any consent or other action taken by the Depository as owner of the Bonds of such Series.  The Trustee shall pay all principal or Redemption Price (if any) of and interest on the Bonds of each Series only to or upon the order of the registered Holder or Holders of the Bonds of such Series, as shown on the Security Register, and all such payments shall be valid and effective to fully satisfy and discharge the Company’s obligations with respect to the principal or Redemption Price (if any) of and interest on the Bonds of such Series, to the extent of the sum or sums so paid. Except as hereinafter provided, no Person other than a Holder of a Bond of a Series, as shown on the Security Register, shall receive an authenticated Bond evidencing the obligation of the Company to make payment of the principal or Redemption Price (if any) of and interest on the Bonds of such Series, pursuant to the Indenture or this Forty-second Supplemental Indenture. Upon delivery by DTC to the Trustee of written notice to the effect that DTC has determined to substitute a new nominee for Cede & Co, and subject to the provisions of the Indenture, the word “Cede & Co.”, as used in this Forty-second Supplemental Indenture, shall refer to each new nominee of DTC.

 

4



 

(d)                                  In the event that after the occurrence of an Event of Default that has not been cured or waived, holders of a majority in aggregate principal amount of the beneficial interests in the Bonds of a Series, as reflected in the books and records of the Depository,  notify the Trustee, through the Depository or any Participant, that the continuation of the Book-Entry System is no longer in the best interests of such holders of beneficial interests in the Bonds of such Series, then the Trustee shall notify the Depository and the Company, and the Depository will notify each Participant of the availability through the Depository of definitive certificated Bonds of such Series.  In such event, the Company shall execute, and the Trustee, upon receipt of a Company Order, for the authentication and delivery of definitive certificated Bonds of such Series, will authenticate and deliver such Bonds in definitive certificated form, in any authorized denominations, all pursuant to the provisions of the Indenture and this Forty-second Supplemental Indenture, to the Person or Persons specified to the Trustee in writing by the Depository in the aggregate principal amount of the applicable Global Security or Securities and in exchange for such Global Security or Securities.

 

(e)                                   If at any time the Depository notifies the Company that it is unwilling or unable to continue as Depository for a Series of Bonds, or if at any time the Depository shall no longer be registered as a clearing agency in good standing under the Exchange Act or other applicable statute or regulation, the Company may appoint a successor Depository with respect to the Bonds of such Series.  If a successor Depository for the Bonds of such Series is not appointed by the Company within 90 days after the Company receives such notice or becomes aware of such condition, the Company will execute, and the Trustee, upon receipt of a Company Order for the authentication and delivery of definitive certificated Bonds of such Series, will authenticate and deliver Bonds of such Series in definitive certificated form, in any authorized denominations, all pursuant to the provisions of the Indenture and this Forty-second Supplemental Indenture, to the Person or Persons specified to the Trustee in writing by the Depository in the aggregate principal amount of the applicable Global Security or Global Securities and in exchange for such Global Security or Global Securities.

 

(f)                                    The Company may at any time and in its sole discretion and subject to the procedures of the Depository determine that a Series of Bonds shall no longer be represented by a Global Security or Global Securities.  In such event the Company will execute, and the Trustee, upon receipt of a Company Order for the authentication and delivery of definitive certificated Bonds of such Series, will authenticate and deliver such Bonds in definitive certificated form, in any authorized denominations, all pursuant to the provisions of the Indenture and this Forty-second Supplemental Indenture, to the Person or Persons specified to the Trustee in writing by the Depository in the aggregate principal amount of the applicable Global Security or Global Securities and in exchange for such Global Security or Global Securities.

 

(g)                                   Upon the exchange of any Global Security for the Bonds of Series Due 2015 or the Bonds of Series Due 2023 in definitive certificated form, in authorized denominations, the related Global Security or Global Securities shall be cancelled by the Trustee.

 

5



 

(h)                                  Whenever the Depository requests the Company and the Trustee to do so, the Trustee and the Company will cooperate with the Depository in taking appropriate action after reasonable notice to (i) make available one or more separate Global Securities evidencing a Series of Bonds to any Participant having Bonds of such Series credited to its account at the Depository, or (ii) arrange for another Depository to maintain custody of the Global Security or Securities evidencing a Series of Bonds.

 

(i)                                      In connection with any notice or other communication to be provided to Holders of the Bonds of a Series pursuant to the Indenture or this Forty-second Supplemental Indenture by the Company or the Trustee with respect to any consent or other action to be taken by Holders of the Bonds of such Series, the Company or the Trustee, as the case may be, shall establish a record date for such consent or other action and give the Depository notice of such record date not less than 15 calendar days in advance of such record date to the extent possible.  Such notice to the Depository shall be given only so long as a Depository or its nominee is the sole Holder of the Bonds of such Series.

 

SECTION 2.04.  DATE OF BONDS OF EACH SERIES.

 

Each Bond of Series 2015 and Bond of Series Due 2023 issued prior to the first Interest Payment Date therefor shall be dated as of September 6, 2013, and otherwise shall be dated as provided in Section 3.03 of the Indenture.

 

SECTION 2.05.  MATURITY DATES, INTEREST RATES, INTEREST PAYMENT DATES AND REGULAR RECORD DATES FOR BONDS OF EACH SERIES.

 

(a)                                  All Bonds of Series Due 2015 shall be due and payable on March 6, 2015, and shall bear interest from September 6, 2013 or the last date to which interest has been paid or duly provided for at the rates set quarterly pursuant to this Section 2.05(a), payable quarterly in arrears on the sixth day of March, June, September and December of each year, commencing December 6, 2013 (each such date being an Interest Payment Date for Bonds of Series Due 2015; provided, however, in the event that any Interest Payment Date for the Bonds of Series Due 2015 (other than the Interest Payment Date that is the Stated Maturity of the principal of the Bonds of Series Due 2015) would otherwise be a day that is not a Business Day, such Interest Payment Date will be postponed to the next succeeding Business Day).  Interest on the Bonds of Series Due 2015 shall be computed on the basis of the actual number of days elapsed over a 360-day year

 

The Bonds of Series Due 2015 will bear interest for each Interest Period at a per annum rate determined by the Calculation Agent. The interest rate applicable during each Interest Period will be equal to LIBOR on the Interest Determination Date for such Interest Period plus 0.14%. Promptly upon such determination, the Calculation Agent will notify the Company and the Trustee, if the Trustee is not then serving as the Calculation Agent, of the interest rate for the new Interest Period. The interest rate determined by the Calculation Agent, absent manifest error,

 

6



 

shall be binding and conclusive upon the beneficial owners and Holders of the Bonds of Series Due 2015, the Company and the Trustee.

 

Upon the request of a Holder of the Bonds of Series Due 2015, the Calculation Agent will provide to such Holder the interest rate in effect on the date of such request and, if determined, the interest rate for the next Interest Period.

 

The accrued interest on the Bonds of Series Due 2015 for any period is calculated by multiplying the principal amount of Bonds of Series Due 2015 by an accrued interest factor. The accrued interest factor is computed by adding the interest factor calculated for each day in the period for which accrued interest is being calculated. The interest factor (expressed as a decimal rounded upwards if necessary) is computed by dividing the interest rate (expressed as a decimal rounded upwards if necessary) applicable to such date by 360.

 

All percentages resulting from any calculation of the interest rate on the Bonds of Series Due 2015 will be rounded, if necessary, to the nearest one-hundred thousandth of a percentage point, with five one-millionths of a percentage point rounded upwards (e.g., 0.567845% (or .00567845) being rounded to 0.56785% (or .0056785) and 0.567844% (or .00567844) being rounded to 0.56784% (or .0056784)), and all dollar amounts used in or resulting from such calculation will be rounded to the nearest cent (with one-half cent being rounded upwards).

 

For purposes of this Section 2.05(a), except as otherwise expressly provided or unless the context otherwise requires:

 

“Calculation Agent” means The Bank of New York Mellon Trust Company, N.A., as appointed pursuant to Section 3.01 of this Forty-second Supplemental Indenture, or its successor appointed by the Company pursuant to Article Three hereof, acting as calculation agent.

 

“Interest Determination Date” means the second London Business Day immediately preceding the first day of the relevant Interest Period.

 

“Interest Period” means the period commencing on an Interest Payment Date for the Bonds of Series Due 2015 (or, with respect to the initial Interest Period only, commencing on the original issue date for the Bonds of Series Due 2015) and ending on the day before the next succeeding Interest Payment Date for the Bonds of Series Due 2015.

 

“LIBOR” means, with respect to any Interest Period, the rate (expressed as a percentage per annum) for deposits in U.S. dollars for a three-month period commencing on the first day of that Interest Period and ending on the next Interest Payment Date for the Bonds of Series Due 2015 that appears on Reuters LIBOR01 Page as of 11:00 a.m. (London time) on the Interest Determination Date for that Interest Period. If such rate does not appear on the Reuters LIBOR01 Page as of 11:00 a.m. (London time) on the Interest Determination Date for that Interest Period, LIBOR will be determined on the basis of the rates at which deposits in U.S. dollars for the

 

7



 

Interest Period and in a principal amount of not less than $1,000,000 are offered to prime banks in the London interbank market by four major banks in the London interbank market, which may include affiliates of one or more of the underwriters of the Bonds of Series Due 2015, selected by the Company, at approximately 11:00 a.m., London time, on the Interest Determination Date for that Interest Period. The Company will request the principal London office of each such bank to provide a quotation of its rate to the Calculation Agent. If at least two such quotations are provided, LIBOR with respect to that Interest Period will be the arithmetic mean of such quotations. If fewer than two quotations are provided, LIBOR with respect to that Interest Period will be the arithmetic mean of the rates quoted by three major banks in New York City, which may include affiliates of one or more of the underwriters of the Bonds of Series Due 2015, selected by the Company, at approximately 11:00 a.m., New York City time, on the Interest Determination Date for that Interest Period for loans in U.S. dollars to leading European banks for that Interest Period and in a principal amount of not less than $1,000,000. However, if fewer than three banks selected by the Company to provide quotations are quoting as described above, LIBOR for that Interest Period will be the same as LIBOR as determined for the previous Interest Period.

 

“London Business Day” means a day that is a Business Day and a day on which dealings in deposits in U.S. dollars are transacted, or with respect to any future date are expected to be transacted, in the London interbank market.

 

“Reuters LIBOR01 Page” means the display designated as Reuters LIBOR01 on the Reuters 3000 Xtra (or such other page as may replace the Reuters LIBOR01 Page on that service, or such other service as may be nominated as the information vendor, for the purpose of displaying rates or prices comparable to the London Interbank Offered rate for U.S. dollar deposits).

 

(b)                                  All Bonds of Series Due 2023 shall be due and payable on September 1, 2023, and shall bear interest from September 6, 2013 or the last date to which interest has been paid or duly provided for at the rate of 3.80% per annum, payable semi-annually on the first day of March and September in each year, commencing March 1, 2014 (each such date being an Interest Payment Date for Bonds of Series Due 2023).  In the event that any Interest Payment Date for Bonds of Series Due 2023 should fall on a day that is not a Business Day, then the interest payment shall be made on the next succeeding Business Day, and no interest on such payment shall accrue for the period from and after such Interest Payment Date.

 

(c)                                   Subject to certain exceptions provided in the Indenture or this Forty-second Supplemental Indenture, the interest payable on any Interest Payment Date for Bonds of each Series shall be paid to the Person in whose name such Bonds shall be registered at the close of business on the Regular Record Date for such Series of Bonds (as defined for each Series in the form of the Bonds of such Series set forth in Section 2.10) or, in the case of any Defaulted Interest therefor, in the manner and to the Person as provided in Section 3.07 of the Indenture.

 

8



 

SECTION 2.06.  PLACE AND MANNER OF PAYMENT OF BONDS OF EACH SERIES.

 

Subject to agreements with or the rules of the Depository or any successor book-entry security system or similar system with respect to Global Securities, the principal or Redemption Price (if any) of and interest on the Bonds of each Series shall be payable in any coin or currency of the United States of America which at the time of payment is legal tender for the payment of public and private debts, at the office or agency of the Company in Cincinnati, Ohio, or, at the option of the Holder thereof, at the office or agency of the Company in the Borough of Manhattan, the City of New York, State of New York, except that interest on the Bonds of each Series may be paid, at the option of the Company, by check or draft mailed to the address of the Person entitled thereto as it appears on the Security Register.

 

SECTION 2.07.  DENOMINATIONS AND NUMBERING OF DEFINITIVE BONDS OF EACH SERIES.

 

Definitive Bonds of each Series shall be issuable in denominations of $2,000 and multiples of $1,000 in excess thereof, numbered in each case consecutively from “R-1” upward.

 

SECTION 2.08.  TEMPORARY BONDS OF EACH SERIES AND EXCHANGE THEREOF.

 

Pursuant to the provisions of Section 3.04 of the Indenture, Bonds of each Series may be issued in temporary form, and if temporary bonds be issued, the Company shall, with all reasonable dispatch, at its own expense and without charge to the holders of the temporary bonds, prepare and execute definitive Bonds of such Series and exchange the temporary bonds for such definitive bonds in the manner provided for in said Section, provided, however, no presentation or surrender of temporary Bonds shall be necessary in order for the Holders entitled to interest thereon to receive such interest.

 

SECTION 2.09.  REDEMPTION PROVISIONS OF THE BONDS.

 

(a)                                  Bonds of Series Due 2015.  The Bonds of Series Due 2015 are not redeemable prior to their maturity.

 

(b)                                  Bonds of Series Due 2023.

 

(i)                                      At any time before June 1, 2023, the Bonds of Series Due 2023 may be redeemed in whole or in part, at the option of the Company at any time, at a Redemption Price equal to the greater of (1) 100% of the principal amount of the Bonds of Series Due 2023 to be redeemed and (2) the sum of the present values of the remaining scheduled payments of principal and interest thereon (exclusive of interest accrued to the Redemption Date), discounted to the Redemption Date on a semiannual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus 0.15% (15

 

9



 

basis points), plus, in each case, accrued and unpaid interest to the Redemption Date. For the avoidance of doubt, interest that is due and payable on an Interest Payment Date for the Bonds of Series Due 2023 falling on or prior to a Redemption Date therefor will be payable on such Interest Payment Date in accordance with the Bonds of Series Due 2023 and the Indenture.  The Company shall notify the Trustee of the Redemption Price with respect to any redemption pursuant to this paragraph promptly after the calculation thereof. The Trustee shall not be responsible for calculating said Redemption Price.

 

At any time on or after June 1, 2023, the Bonds of Series Due 2023 may be redeemed in whole or in part, at the option of the Company at any time, at a Redemption Price equal to 100% of the principal amount of the Bonds of Series Due 2023 to be redeemed plus accrued and unpaid interest to the Redemption Date.

 

(ii)                                   For purposes of this Section 2.09(b), except as otherwise expressly provided or unless the context otherwise requires:

 

“Comparable Treasury Issue” means the United States Treasury security or securities selected by the Quotation Agent as having an actual or interpolated maturity comparable to the remaining term of the Bonds of Series Due 2023 to be redeemed 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 a comparable maturity to the remaining term of the Bonds of Series Due 2023.

 

“Comparable Treasury Price” means, with respect to any Redemption Date for the Bonds of Series Due 2023, (A) the average of the Reference Treasury Dealer Quotations for such Redemption Date, after excluding the highest and lowest such Reference Treasury Dealer Quotations, or (B) if the Quotation Agent obtains fewer than four such Reference Treasury Dealer Quotations, the average of all such quotations.

 

“Quotation Agent” means one of the Reference Treasury Dealers appointed by the Company.

 

“Reference Treasury Dealer” means each of Barclays Capital Inc., RBS Securities Inc., and UBS Securities LLC, plus two other financial institutions appointed by the Company at the time of any redemption, or their respective affiliates or successors, each of which is a  primary U.S. Government securities dealer in the United States (a “Primary Treasury Dealer”); provided, however, that if any of the foregoing or their affiliates or successors shall cease to be a Primary Treasury Dealer, the Company shall substitute therefor another Primary Treasury Dealer.

 

10



 

“Reference Treasury Dealer Quotations” means, with respect to each Reference Treasury Dealer and any Redemption Date, the average, as determined by the Quotation Agent, 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 Quotation Agent by such Reference Treasury Dealer at 5:00 p.m., New York City time, on the third Business Day preceding such Redemption Date.

 

“Treasury Rate” means, with respect to any Redemption Date, the rate per annum equal to the semiannual equivalent yield to maturity or interpolated maturity (on a day count basis) of the Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such Redemption Date.

 

(iii)                                Notice of any redemption by the Company will be mailed at least thirty (30) days but not more than sixty (60) days before any Redemption Date to each Holder of Bonds of Series Due 2023 to be redeemed. If less than all the Bonds of Series Due 2023 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 Bonds of Series Due 2023 to be redeemed in whole or in part.

 

(iv)                               Unless the Company defaults in payment of the Redemption Price therefor, on and after any Redemption Date therefor, interest will cease to accrue on the Bonds of Series Due 2023 or portions thereof called for redemption.

 

(c)                                   The Company shall indemnify and hold harmless the Trustee from any and all losses, costs, damages, expenses, fees (including reasonable attorneys’ fees), court costs, judgments, penalties, obligations, suits, disbursements and liabilities of any kind or character whatsoever which may at any time be imposed upon, incurred by or asserted against the Trustee by reason of or arising out of or caused, directly or indirectly, by any act or omission of the Trustee with respect to this Section 2.09, except for such that would arise out of the gross negligence, willful misconduct or bad faith of the Trustee and except for costs and expenses arising in the ordinary course of the Trustee’s business.

 

SECTION 2.10.  FORM OF THE BONDS OF EACH SERIES.

 

The Bonds of each Series and the respective Trustee’s certificate to be endorsed thereon shall be substantially in the following form:

 

[THE REMAINDER OF THIS PAGE HAS BEEN LEFT BLANK INTENTIONALLY.]

 

11



 

(FORM OF BOND OF SERIES DUE 2015)

 

[Unless this certificate is presented by an authorized representative of The Depository Trust Company, a New York corporation (“DTC”), to issuer or its agent for registration of transfer, exchange or payment, and any certificate issued is registered in the name of Cede & Co. or in such other name as is requested by an authorized representative of DTC (and any payment is made to Cede & Co. or to such other entity as is requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered holder hereof, Cede & Co., has an interest herein.](1)

 

No. R-

 

$                  

CUSIP No: 26442E AC4

 

 

ISIN: US26442EAC49

 

 

 

DUKE ENERGY OHIO, INC.

FIRST MORTGAGE BOND, FLOATING RATE SERIES,

DUE MARCH 6, 2015

 

Duke Energy Ohio, Inc., an Ohio corporation (hereinafter called the “Company”), for value received, hereby promises to pay to                             , or registered assigns, the principal sum of                                                            Dollars ($   ) on the sixth day of March, 2015 and to pay interest on said sum from September 6, 2013 or from the most recent date to which interest has been paid or duly provided for, until said principal sum is paid or made available for payment, at the rates per annum determined in accordance with the provisions specified below, payable quarterly in arrears on the sixth day of March, June, September and December of each year, commencing December 6, 2013 (each such date herein called an “Interest Payment Date”; provided, however, in the event that any Interest Payment Date (other than the Interest Payment Date that is the Stated Maturity of the principal of this bond) would otherwise be a day that is not a Business Day, the Interest Payment Date will be postponed to the next succeeding Business Day). The principal of and interest on this bond shall be payable in any coin or currency of the United States of America which at the time of payment is legal tender for the payment of public and private debts at the office or agency of the Company in Cincinnati, Ohio, or, at the option of the registered owner hereof, at the office or agency of the Company in the Borough of Manhattan, the City of New York, State of New York, except that interest on this bond may be paid, at the option of the Company, by check or draft mailed to the address of the Person entitled thereto as it appears on the Security Register.

 

This bond is one of the Securities of the Company issued and to be issued from time to time under and in accordance with and all secured by a First Mortgage Indenture, dated as of

 


(1)   This should be included only if the Bonds of Series Due 2015 are being issued in global form.

 

12



 

August 1, 1936, from the Company to The Bank of New York Mellon Trust Company, N.A., as successor Trustee (which indenture as amended, restated and supplemented by all supplemental indentures is hereinafter referred to as the “Indenture”). Said Trustee or its successor in trust under the Indenture is hereinafter sometimes referred to as the “Trustee.” Reference is hereby made to the Indenture for a description of the property mortgaged and pledged and the nature and extent of the security for said Securities. By the terms of the Indenture, the Securities secured thereby are issuable in series which may vary as to date, amount, date of maturity, rate of interest and in other respects as in the Indenture provided.

 

As used herein, “Business Day” means any day, other than a Saturday or Sunday, which is not a day on which banking institutions or trust companies in New York, New York or Cincinnati, Ohio are generally authorized or required by law, regulation or executive order to remain closed.  Capitalized terms not otherwise defined herein have the meanings specified therefor in the Indenture.

 

This bond is one of a series designated as “First Mortgage Bonds, Floating Rate Series, Due March 6, 2015” (hereinafter referred to as the “Bonds of Series Due 2015”) of the Company issued under and secured by the Indenture and created by a Forty-second Supplemental Indenture, dated as of September 6, 2013 (the “Forty-second Supplemental Indenture”).

 

The Bonds of Series Due 2015 will bear interest for each Interest Period at a per annum rate determined by the Calculation Agent. The interest rate applicable during each Interest Period will be equal to LIBOR on the Interest Determination Date for such Interest Period plus 0.14%. Promptly upon such determination, the Calculation Agent will notify the Company and the Trustee, if the Trustee is not then serving as the Calculation Agent, of the interest rate for the new Interest Period. The interest rate determined by the Calculation Agent, absent manifest error, shall be binding and conclusive upon the beneficial owners and Holders of the Bonds of Series Due 2015, the Company and the Trustee.

 

Upon the request of a Holder of the Bonds of Series Due 2015, the Calculation Agent will provide to such Holder the interest rate in effect on the date of such request and, if determined, the interest rate for the next Interest Period.

 

Interest on the Bonds of Series Due 2015 shall be computed on the basis of the actual number of days elapsed over a 360-day year. The accrued interest on the Bonds of Series Due 2015 for any period is calculated by multiplying the principal amount of Bonds of Series Due 2015 by an accrued interest factor. The accrued interest factor is computed by adding the interest factor calculated for each day in the period for which accrued interest is being calculated. The interest factor (expressed as a decimal rounded upwards if necessary) is computed by dividing the interest rate (expressed as a decimal rounded upwards if necessary) applicable to such date by 360.

 

13



 

All percentages resulting from any calculation of the interest rate on the Bonds of Series Due 2015 will be rounded, if necessary, to the nearest one-hundred thousandth of a percentage point, with five one-millionths of a percentage point rounded upwards (e.g., 0.567845% (or .00567845) being rounded to 0.56785% (or .0056785) and 0.567844% (or .00567844) being rounded to 0.56784% (or .0056784)), and all dollar amounts used in or resulting from such calculation will be rounded to the nearest cent (with one-half cent being rounded upwards).

 

For purposes of determining the interest rate applicable to the Bonds of Series Due 2015, except as otherwise expressly provided or unless the context otherwise requires:

 

“Calculation Agent” means The Bank of New York Mellon Trust Company, N.A., as appointed pursuant to Section 3.01of the Forty-second Supplemental Indenture to the Indenture, or its successor appointed by the Company pursuant to Article Three thereof, acting as calculation agent.

 

“Interest Determination Date” means the second London Business Day immediately preceding the first day of the relevant Interest Period.

 

“Interest Period” means the period commencing on an Interest Payment Date for the Bonds of Series Due 2015 (or, with respect to the initial Interest Period only, commencing on the original issue date for the Bonds of Series Due 2015) and ending on the day before the next succeeding Interest Payment Date for the Bonds of Series Due 2015.

 

“LIBOR” means, with respect to any Interest Period, the rate (expressed as a percentage per annum) for deposits in U.S. dollars for a three-month period commencing on the first day of that Interest Period and ending on the next Interest Payment Date for the Bonds of Series Due 2015 that appears on Reuters LIBOR01 Page as of 11:00 a.m. (London time) on the Interest Determination Date for that Interest Period. If such rate does not appear on the Reuters LIBOR01 Page as of 11:00 a.m. (London time) on the Interest Determination Date for that Interest Period, LIBOR will be determined on the basis of the rates at which deposits in U.S. dollars for the Interest Period and in a principal amount of not less than $1,000,000 are offered to prime banks in the London interbank market by four major banks in the London interbank market, which may include affiliates of one or more of the underwriters of the Bonds of Series Due 2015, selected by the Company, at approximately 11:00 a.m., London time, on the Interest Determination Date for that Interest Period. The Company will request the principal London office of each such bank to provide a quotation of its rate to the Calculation Agent. If at least two such quotations are provided, LIBOR with respect to that Interest Period will be the arithmetic mean of such quotations. If fewer than two quotations are provided, LIBOR with respect to that Interest Period will be the arithmetic mean of the rates quoted by three major banks in New York City, which may include affiliates of one

 

14



 

or more of the underwriters of the Bonds of Series Due 2015, selected by the Company, at approximately 11:00 a.m., New York City time, on the Interest Determination Date for that Interest Period for loans in U.S. dollars to leading European banks for that Interest Period and in a principal amount of not less than $1,000,000. However, if fewer than three banks selected by the Company to provide quotations are quoting as described above, LIBOR for that Interest Period will be the same as LIBOR as determined for the previous Interest Period.

 

“London Business Day” means a day that is a Business Day and a day on which dealings in deposits in U.S. dollars are transacted, or with respect to any future date are expected to be transacted, in the London interbank market.

 

“Reuters LIBOR01 Page” means the display designated as Reuters LIBOR01 on the Reuters 3000 Xtra (or such other page as may replace the Reuters LIBOR01 Page on that service, or such other service as may be nominated as the information vendor, for the purpose of displaying rates or prices comparable to the London Interbank Offered rate for U.S. dollar deposits).

 

Subject to certain exceptions provided in the Indenture, the interest payable on any Interest Payment Date shall be paid to the Person in whose name this bond shall be registered at the close of business on the Regular Record Date (hereinafter defined) or, in the case of Defaulted Interest therefor, in the manner and to the person as provided in the Indenture.

 

The term “Regular Record Date” shall mean, with respect to any Interest Payment Date for any Bonds of Series Due 2015, the close of business on the fifteenth (15th) calendar day next preceding the respective Interest Payment Date (whether or not a Business Day); provided, however, that so long as the Bonds of Series Due 2015 are held by a Depository in the form of one or more Global Securities, the Regular Record Date with respect to each Interest Payment Date will be the close of business on the Business Day before the applicable Interest Payment Date.

 

The Bonds of Series Due 2015 are not redeemable prior to their maturity.

 

In the case of any of certain Events of Default specified in the Indenture, the principal of this bond may be declared or may become due and payable prior to the stated date of maturity hereof in the manner and with the effect provided in the Indenture.

 

No recourse shall be had for the payment of the principal of or interest on this bond, or for any claim based hereon, or otherwise in respect hereof or of the Indenture, to or against any incorporator, shareholder, officer or director, past, present or future, of the Company or of any predecessor or successor company, either directly or through the Company or such predecessor or successor company, under any constitution or statute or rule of law, or by the enforcement of

 

15



 

any assessment or penalty, or otherwise, all such liability of incorporators, shareholders, directors and officers being waived and released by the registered owner hereof by the acceptance of this bond and being likewise waived and released by the terms of the Indenture.

 

The Bonds of Series Due 2015 are issuable only in registered form without coupons. This bond is transferable by the registered owner hereof, in person or by an attorney duly authorized, at the Corporate Trust Office of The Bank of New York Mellon Trust Company, N.A., the Trustee, or its successor in trust under the Indenture, or, at the option of the registered owner, at the office or agency of the Company in the Borough of Manhattan, the City of New York, State of New York, upon the surrender and cancellation of this bond, and upon any such transfer a new registered Security or Securities of the same series and maturity date and for the same aggregate principal amount will be issued to the transferee in exchange herefor.

 

The Bonds of Series Due 2015 are issuable in denominations of $2,000 and multiples of $1,000 in excess thereof. In the manner and subject to the limitations provided in the Indenture, Bonds of Series Due 2015 are exchangeable as between authorized denominations, upon presentation thereof for such purpose by the registered owner, at the Corporate Trust Office of The Bank of New York Mellon Trust Company, N.A., the Trustee, or its successor in trust under the Indenture, or, at the option of the registered owner, at the office or agency of the Company in the Borough of Manhattan, the City of New York, State of New York.

 

No service charge will be made for any transfer or exchange of this bond, but the Company may require a sum sufficient to cover any tax or other governmental charge payable in connection therewith.

 

This bond shall not be valid or become obligatory for any purpose unless and until it shall have been authenticated by the execution by the Trustee, or its successor in trust under the Indenture, of the certificate endorsed hereon.

 

IN WITNESS WHEREOF, Duke Energy Ohio, Inc. has caused this bond to be executed in its name by the manual or facsimile signature of an Authorized Officer.

 

 

 

DUKE ENERGY OHIO, INC.

 

 

 

 

 

By

 

 

 

Authorized Officer

 

16



 

TRUSTEE’S CERTIFICATE OF AUTHENTICATION

 

This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.

 

 

 

THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., AS TRUSTEE

 

 

 

 

 

By

 

 

 

Authorized Signatory

 

 

 

 

Dated as of:

 

 

17



 

(FORM OF BOND OF SERIES DUE 2023)

 

[Unless this certificate is presented by an authorized representative of The Depository Trust Company, a New York corporation (“DTC”), to issuer or its agent for registration of transfer, exchange or payment, and any certificate issued is registered in the name of Cede & Co. or in such other name as is requested by an authorized representative of DTC (and any payment is made to Cede & Co. or to such other entity as is requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered holder hereof, Cede & Co., has an interest herein.](2)

 

No. R-

 

$                   

CUSIP No: 26442E AD2

 

 

ISIN: US26442EAD22

 

 

 

DUKE ENERGY OHIO, INC.

FIRST MORTGAGE BOND, 3.80% SERIES,

DUE SEPTEMBER 1, 2023

 

Duke Energy Ohio, Inc., an Ohio corporation (hereinafter called the “Company”), for value received, hereby promises to pay to                             , or registered assigns, the principal sum of                                                            Dollars ($   ) on the first day of September, 2023 and to pay interest on said sum from September 6, 2013 or from the most recent date to which interest has been paid or duly provided for, until said principal sum is paid or made available for payment, at the rate of 3.80% per annum, payable semi-annually on the first day of March and September in each year, commencing March 1, 2014 (each such date herein called an “Interest Payment Date”). The principal of and premium, if any, and interest on this bond shall be payable in any coin or currency of the United States of America which at the time of payment is legal tender for the payment of public and private debts at the office or agency of the Company in Cincinnati, Ohio, or, at the option of the registered owner hereof, at the office or agency of the Company in the Borough of Manhattan, the City of New York, State of New York, except that interest on this bond may be paid, at the option of the Company, by check or draft mailed to the address of the Person entitled thereto as it appears on the Security Register.

 

This bond is one of the Securities of the Company issued and to be issued from time to time under and in accordance with and all secured by a First Mortgage Indenture, dated as of August 1, 1936, from the Company to The Bank of New York Mellon Trust Company, N.A., as successor Trustee (which indenture as amended, restated and supplemented by all supplemental indentures is hereinafter referred to as the “Indenture”). Said Trustee or its successor in trust under the Indenture is hereinafter sometimes referred to as the “Trustee.” Reference is hereby

 


(2)   This should be included only if the Bonds of Series Due 2023 are being issued in global form.

 

18



 

made to the Indenture for a description of the property mortgaged and pledged and the nature and extent of the security for said Securities. By the terms of the Indenture, the Securities secured thereby are issuable in series which may vary as to date, amount, date of maturity, rate of interest and in other respects as in the Indenture provided.

 

As used herein, “Business Day” means any day, other than a Saturday or Sunday, which is not a day on which banking institutions or trust companies in New York, New York or Cincinnati, Ohio are generally authorized or required by law, regulation or executive order to remain closed.  Capitalized terms not otherwise defined herein have the meanings specified therefor in the Indenture.

 

This bond is one of a series designated as “First Mortgage Bonds, 3.80% Series, Due September 1, 2023” (hereinafter referred to as the “Bonds of Series Due 2023”) of the Company issued under and secured by the Indenture and created by a Forty-second Supplemental Indenture, dated as of September 6, 2013.

 

Subject to certain exceptions provided in the Indenture, the interest payable on any Interest Payment Date shall be paid to the Person in whose name this bond shall be registered at the close of business on the Regular Record Date (hereinafter defined) or, in the case of Defaulted Interest therefor, in the manner and to the person as provided in the Indenture.  If any Interest Payment Date should fall on a day that is not a Business Day, then the interest payment shall be made on the next succeeding Business Day and no interest shall accrue for the intervening period with respect to the payment so deferred.

 

The term “Regular Record Date” shall mean, with respect to any Interest Payment Date for any Bonds of Series Due 2023, the close of business on the fifteenth (15th) calendar day next preceding the respective Interest Payment Date (whether or not a Business Day); provided, however, that so long as the Bonds of Series Due 2023 are held by a Depository in the form of one or more Global Securities, the Regular Record Date with respect to each Interest Payment Date will be the close of business on the Business Day before the applicable Interest Payment Date.

 

At any time before June 1, 2023, the Bonds of Series Due 2023 may be redeemed in whole or in part, at the option of the Company at any time, at a Redemption Price equal to the greater of (1) 100% of the principal amount of the Bonds of Series Due 2023 to be redeemed and (2) the sum of the present values of the remaining scheduled payments of principal and interest thereon (exclusive of interest accrued to the Redemption Date), discounted to the Redemption Date on a semiannual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus 0.15% (15 basis points), plus, in the case of each of clause (1) and (2), accrued and unpaid interest, if any, to the Redemption Date. For the avoidance of doubt, interest that is due and payable on an Interest Payment Date falling on or prior to a Redemption Date

 

19



 

therefor will be payable on such Interest Payment Date in accordance with the Bonds of Series Due 2023 and the Indenture.

 

At any time on or after June 1, 2023, the Bonds of Series Due 2023 may be redeemed in whole or in part, at the option of the Company at any time, at a Redemption Price equal to 100% of the principal amount of the Bonds of Series Due 2023 to be redeemed plus accrued and unpaid interest to the Redemption Date.

 

Notice of any redemption by the Company will be mailed at least thirty (30) days but not more than sixty (60) days before any Redemption Date to each Holder of Bonds of Series Due 2023 to be redeemed. If less than all the Bonds of Series Due 2023 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 Bonds of Series Due 2023 to be redeemed.

 

Unless the Company defaults in payment of the Redemption Price, on and after any Redemption Date for the Bonds of Series Due 2023, interest will cease to accrue on the Bonds of Series Due 2023 or portions thereof called for redemption.

 

In the case of any of certain Events of Default specified in the Indenture, the principal of this bond may be declared or may become due and payable prior to the stated date of maturity hereof in the manner and with the effect provided in the Indenture.

 

No recourse shall be had for the payment of the principal or Redemption Price of or interest on this bond, or for any claim based hereon, or otherwise in respect hereof or of the Indenture, to or against any incorporator, shareholder, officer or director, past, present or future, of the Company or of any predecessor or successor company, either directly or through the Company or such predecessor or successor company, under any constitution or statute or rule of law, or by the enforcement of any assessment or penalty, or otherwise, all such liability of incorporators, shareholders, directors and officers being waived and released by the registered owner hereof by the acceptance of this bond and being likewise waived and released by the terms of the Indenture.

 

The Bonds of Series Due 2023 are issuable only in registered form without coupons. This bond is transferable by the registered owner hereof, in person or by an attorney duly authorized, at the Corporate Trust Office of The Bank of New York Mellon Trust Company, N.A., the Trustee, or its successor in trust under the Indenture, or, at the option of the registered owner, at the office or agency of the Company in the Borough of Manhattan, the City of New York, State of New York, upon the surrender and cancellation of this bond, and upon any such transfer a new registered Security or Securities of the same series and maturity date and for the same aggregate principal amount will be issued to the transferee in exchange herefor.

 

20



 

The Bonds of Series Due 2023 are issuable in denominations of $2,000 and multiples of $1,000 in excess thereof. In the manner and subject to the limitations provided in the Indenture, Bonds of Series Due 2023 are exchangeable as between authorized denominations, upon presentation thereof for such purpose by the registered owner, at the Corporate Trust Office of The Bank of New York Mellon Trust Company, N.A., the Trustee, or its successor in trust under the Indenture, or, at the option of the registered owner, at the office or agency of the Company in the Borough of Manhattan, the City of New York, State of New York.

 

No service charge will be made for any transfer or exchange of this bond, but the Company may require a sum sufficient to cover any tax or other governmental charge payable in connection therewith.

 

This bond shall not be valid or become obligatory for any purpose unless and until it shall have been authenticated by the execution by the Trustee, or its successor in trust under the Indenture, of the certificate endorsed hereon.

 

IN WITNESS WHEREOF, Duke Energy Ohio, Inc. has caused this bond to be executed in its name by the manual or facsimile signature of an Authorized Officer.

 

 

 

DUKE ENERGY OHIO, INC.

 

 

 

 

 

By

 

 

 

Authorized Officer

 

21



 

TRUSTEE’S CERTIFICATE OF AUTHENTICATION

 

This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.

 

 

 

THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., AS TRUSTEE

 

 

 

 

 

By

 

 

 

Authorized Signatory

 

 

 

 

Dated as of:

 

 

[END OF ARTICLE TWO.]

 

22



 

ARTICLE THREE.

 

CALCULATION AGENT FOR THE BONDS OF SERIES DUE 2015

 

SECTION 3.01.  CALCULATION AGENT APPOINTED.

 

Upon the terms and subject to the conditions contained herein, the Company hereby appoints The Bank of New York Mellon Trust Company, N.A. as the Company’s calculation agent for the Bonds of Series Due 2015 (the “Calculation Agent”) and The Bank of New York Mellon Trust Company, N.A. hereby accepts such appointment as the Company’s agent for the purpose of calculating the applicable interest rates on the Bonds of Series Due 2015 in accordance with the provisions set forth herein.

 

SECTION 3.02.  DUTIES AND OBLIGATIONS.

 

The Calculation Agent shall: (a) calculate the applicable interest rates on the Bonds of Series Due 2015 in accordance with the provisions set forth herein, and (b) exercise due care to determine the interest rates on the Bonds of Series Due 2015 and shall communicate the same to the Company and the Trustee (if the Trustee is not then serving as the Calculation Agent) as soon as practicable after each determination.

 

The Calculation Agent will, upon the request of a Holder of the Bonds of Series Due 2015, provide to such Holder the interest rate in effect on the date of such request and, if determined, the interest rate for the next Interest Period (as defined in Section 2.05(a)).

 

SECTION 3.03.  TERMS AND CONDITIONS.

 

The Calculation Agent accepts its obligations set forth herein, upon the terms and subject to the conditions hereof, including the following, to all of which the Company agrees:

 

(a)                                  The Calculation Agent shall be entitled to such compensation as may be agreed upon with the Company for all services rendered by the Calculation Agent, and the Company promises to pay such compensation and to reimburse the Calculation Agent for the reasonable out-of-pocket expenses (including attorneys’ fees and expenses) incurred by it in connection with the services rendered by it hereunder upon receipt of such invoices as the Company shall reasonably require. The Company also agrees to indemnify the Calculation Agent for, and to hold it harmless against, any and all loss, liability, damage, claim or expense (including the costs and expenses of defending against any claim (regardless of who asserts such claim) of liability) incurred by the Calculation Agent that arises out of or in connection with its accepting appointment as, or acting as, Calculation Agent hereunder, except such as may result from the willful misconduct or gross negligence of the Calculation Agent or any of its agents or employees. Except as provided in the preceding sentence, the Calculation Agent shall

 

23



 

incur no liability and shall be indemnified and held harmless by the Company for, or in respect of, any actions taken or suffered to be taken in good faith by the Calculation Agent in reliance upon (i) the written opinion or advice of counsel or (ii) written instructions from the Company. The Calculation Agent shall not be liable for any error resulting from the use of or reliance on a source of information used in good faith and with due care to calculate any interest rate hereunder. The provisions of this clause (a) shall survive the payment in full of the Bonds of Series Due 2015 and the resignation or removal of the Calculation Agent.

 

(b)                                  In acting under this Forty-second Supplemental Indenture, the Calculation Agent is acting solely as agent of the Company and does not assume any obligations to or relationship of agency or trust for or with any of the beneficial owners or Holders of the Bonds of Series Due 2015.

 

(c)                                   The Calculation Agent shall be protected and shall incur no liability for or in respect of any action taken or omitted to be taken or anything suffered by it in reliance upon the terms of the Bonds of Series Due 2015 or this Forty-second Supplemental Indenture or any notice, direction, certificate, affidavit, statement or other paper, document or communication reasonably believed by it to be genuine and to have been approved or signed by the proper party or parties.

 

(d)                                  The Calculation Agent, its officers, directors, employees and shareholders may become the owners or pledgee of, or acquire any interest in, any Bonds of Series Due 2015, with the same rights that it or they would have if it were not the Calculation Agent, and may engage or be interested in any financial or other transaction with the Company as freely as if it were not the Calculation Agent.

 

(e)                                   Neither the Calculation Agent nor its officers, directors, employees, agents or attorneys shall be liable to the Company for any act or omission hereunder, or for any error of judgment made in good faith by it or them, except in the case of its or their willful misconduct or gross negligence.

 

(f)                                    The Calculation Agent may consult with counsel of its selection and the advice of such counsel or any opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon.

 

(g)                                   The Calculation Agent shall be obligated to perform such duties and only such duties as are herein specifically set forth, and no implied duties or obligations shall be read into this Forty-second Supplemental Indenture against the Calculation Agent.

 

(h)                                  Unless herein otherwise specifically provided, any order, certificate, notice, request, direction or other communication from the Company made or given by it

 

24



 

under any provision of this Forty-second Supplemental Indenture shall be sufficient if signed by any officer of the Company.

 

(i)                                      The Calculation Agent may perform any duties hereunder either directly or by or through its agents or attorneys, and the Calculation Agent shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder.

 

(j)                                     The Company will not, without first obtaining the prior written consent of the Calculation Agent, make any change to this Forty-second Supplemental Indenture or the Bonds of Series Due 2015 if such change would materially and adversely affect the Calculation Agent’s duties and obligations hereunder or thereunder.

 

(k)                                  In no event shall the Calculation Agent be responsible or liable for special, indirect, or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether it has been advised of the likelihood of such loss or damage and regardless of the form of action.

 

(l)                                      In no event shall the Calculation Agent be responsible or liable for any failure or delay in the performance of its obligations under this Forty-second Supplemental Indenture arising out of or caused by, directly or indirectly, forces beyond its reasonable control, including without limitation strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software or hardware) services.

 

(m)                              Under certain circumstances, the Calculation Agent may be required to determine the interest rates on the Bonds of Series Due 2015 on the basis of quotations received from banks or other financial institutions (the “Reference Banks”) selected by the Company for the purpose of quoting such rates. The Calculation Agent shall not be responsible to the Company or any third party for any failure of the Reference Banks to fulfill their duties or meet their obligations as Reference Banks or as a result of the Calculation Agent having acted (except in the event of gross negligence or willful misconduct) on any quotation or other information given by any Reference Bank which subsequently may be found to be incorrect.

 

SECTION 3.04.  QUALIFICATIONS.

 

The Calculation Agent shall be authorized by law to perform all the duties imposed upon it by this Forty-second Supplemental Indenture, and shall at all times have a capitalization of at least $50,000,000.  The Calculation Agent may not be an affiliate of the Company.

 

25



 

SECTION 3.05.  RESIGNATION AND REMOVAL.

 

The Calculation Agent may at any time resign as Calculation Agent by giving written notice to the Company of such intention on its part, specifying the date on which its desired resignation shall become effective; provided, however, that such date shall never be earlier than 45 days after the receipt of such notice by the Company, unless the Company otherwise agrees in writing. The Calculation Agent may be removed at any time by the filing with it of any instrument in writing signed on behalf of the Company and specifying such removal and the date when it is intended to become effective. Such resignation or removal shall take effect upon the date of the appointment by the Company, as hereinafter provided, of a successor Calculation Agent. If within 30 days after notice of resignation or removal has been given, a successor Calculation Agent has not been appointed, the Calculation Agent may, at the expense of the Company, petition a court of competent jurisdiction to appoint a successor Calculation Agent. If at any time the Calculation Agent shall resign or be removed, or be dissolved, or if the property or affairs of the Calculation Agent shall be taken under the control of any state or federal court or administrative body because of bankruptcy or insolvency or for any other reason, then a successor Calculation Agent shall as soon as practicable be appointed by the Company by an instrument in writing filed with the predecessor Calculation Agent, the successor Calculation Agent and the Trustee. Upon the appointment of a successor Calculation Agent and acceptance by it of such appointment, the Calculation Agent so succeeded shall cease to be such Calculation Agent hereunder. Upon its resignation or removal, the Calculation Agent shall be entitled to the payment by the Company of its compensation, if any is owed to it, for services rendered hereunder and to the reimbursement of all reasonable out-of-pocket expenses (including reasonable counsel fees) incurred in connection with the services rendered by it hereunder and to the payment of all other amounts owed to it hereunder.

 

SECTION 3.06.  SUCCESSORS.

 

Any successor Calculation Agent appointed hereunder shall execute and deliver to its predecessor, the Company and the Trustee an instrument accepting such appointment hereunder, and thereupon such successor Calculation Agent, without any further act, deed or conveyance, shall become vested with all the authority, rights, powers, trusts, immunities, duties and obligations of such predecessor with like effect as if originally named as such Calculation Agent hereunder, and such predecessor, upon payment of its charges and disbursements then unpaid, shall thereupon become obliged to transfer and deliver, and such successor Calculation Agent shall be entitled to receive, copies of any relevant records maintained by such predecessor Calculation Agent.

 

SECTION 3.07.  TRUSTEE DEEMED CALCULATION AGENT UNDER CERTAIN CIRCUMSTANCES.

 

In the event that the Calculation Agent shall resign or be removed, or be dissolved, or if the property or affairs of the Calculation Agent shall be taken under the control of any state or

 

26



 

federal court or administrative body because of bankruptcy or insolvency or for any other reason, and the Company shall not have made a timely appointment of a successor Calculation Agent, the Trustee, notwithstanding the provisions of this Article Three, shall be deemed to be the Calculation Agent for all purposes of this Forty-second Supplemental Indenture until the appointment by the Company of the successor Calculation Agent.

 

SECTION 3.08.  MERGER, CONVERSION, CONSOLIDATION, SALE OR TRANSFER.

 

Any corporation into which the Calculation Agent may be merged or converted, or any corporation with which the Calculation Agent may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Calculation Agent shall be a party or to which the Calculation Agent shall sell or otherwise transfer all or substantially all of its corporate trust assets or business shall, to the extent permitted by applicable law, be the successor Calculation Agent under this Forty-second Supplemental Indenture without the execution or filing of any paper or any further act on the part of any of the parties hereto. Notice of any such merger, conversion or consolidation or sale shall forthwith be given to the Company and the Trustee (if the Trustee is not then serving as the Calculation Agent).

 

SECTION 3.09.  NOTICE.

 

Any request, demand, authorization, direction, notice, consent, waiver or other document provided or permitted hereby to be given or furnished to the Calculation Agent shall be delivered in person, sent by letter or fax or communicated by telephone (subject, in the case of communication by telephone, to confirmation dispatched within 24 hours by letter or by fax) as follows:

 

The Bank of New York Mellon Trust Company, N.A.

525 Vine Street, Suite 900

Cincinnati, OH 45202

Attention: Corporate Trust — Global Client Services

Telephone:

Fax:

 

or to any other address of which the Calculation Agent shall have notified the Company and the Trustee (if the Trustee is not then serving as the Calculation Agent) in writing as herein provided.

 

27



 

SECTION 3.10.  WAIVER OF JURY TRIAL.

 

EACH OF THE COMPANY, THE CALCULATION AGENT AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS FORTY-SECOND SUPPLEMENTAL INDENTURE, THE BONDS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.

 

SECTION 3.11.  CALCULATION OF INTEREST RATE FOR FIRST INTEREST PERIOD.

 

The Calculation Agent, at the request of the Company, has determined, prior to the date of execution and delivery of this Forty-second Supplemental Indenture, the interest rate for the initial Interest Period for the Bonds of Series Due 2015. In connection with such determination, the Calculation Agent shall be entitled to the same rights, protections, exculpations and immunities otherwise available to it under this Forty-second Supplemental Indenture.

 

[END OF ARTICLE THREE.]

 

28



 

ARTICLE FOUR.

 

MISCELLANEOUS

 

SECTION 4.01.  INDENTURE RATIFIED AND CONFIRMED.

 

The Indenture, as supplemented by this Forty-second Supplemental Indenture, is in all respects ratified and confirmed and shall be read, taken and construed as one and the same instrument.

 

SECTION 4.02.  EXECUTION IN COUNTERPARTS

 

This Forty-second Supplemental Indenture may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument.

 

SECTION 4.03.  EFFECT OF HEADINGS AND TABLE OF CONTENTS.

 

The Article and Section headings in this Forty-second Supplemental Indenture and the Table of Contents are for convenience only and shall not affect the construction hereof.

 

SECTION 4.04.  SUCCESSORS AND ASSIGNS.

 

All covenants and agreements in this Forty-second Supplemental Indenture by the Company and the Trustee shall bind their respective successors and assigns, whether so expressed or not.

 

SECTION 4.05.  SEPARABILITY CLAUSE.

 

In case any provision in this Forty-second Supplemental Indenture shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.

 

SECTION 4.06.  BENEFITS OF INDENTURE.

 

Nothing in this Forty-second Supplemental Indenture, the Bonds of Series Due 2015 or the Bonds of Series Due 2023, express or implied, shall give to any Person, other than the parties hereto, their successors hereunder and the Holders of any Bonds of Series Due 2015 or any Bonds of Series Due 2023, any benefit or any legal or equitable right, remedy or claim under this Forty-second Supplemental Indenture.

 

29



 

SECTION 4.07.  GOVERNING LAW.

 

This Forty-second Supplemental Indenture, the Bonds of Series Due 2015 and the Bonds of Series Due 2023 shall be governed by and construed in accordance with the laws of the State of Ohio, except (a) to the extent that the Trust Indenture Act shall be applicable, and (b) that the rights, duties, obligations, privileges, immunities and standard of care of the Trustee and the Calculation Agent shall be governed by the laws of the State of New York.

 

SECTION 4.08.  TRUSTEE NOT RESPONSIBLE FOR RECITALS, ETC.

 

The recitals contained herein are made by the Company and not by the Trustee or the Calculation Agent, and the Trustee and the Calculation Agent assume no responsibility for the correctness thereof. The Trustee and the Calculation Agent shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Forty-second Supplemental Indenture.

 


 

[EXECUTION PAGES FOLLOW.]

 

30



 

IN WITNESS WHEREOF, the parties hereto have caused this Forty-second Supplemental Indenture to be duly executed as of the day and year first above written.

 

 

 

DUKE ENERGY OHIO, INC.

 

 

 

 

 

By 

/s/ Stephen G. De May

 

 

Stephen G. De May

 

 

Vice President and Treasurer

 

31



 

 

THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as Trustee and as Calculation Agent

 

 

 

 

 

By

/s/ Teresa Petta

 

Name:

Teresa Petta

 

Title:

Vice President

 

32



 

STATE OF NORTH CAROLINA

)

 

) ss:

COUNTY OF MECKLENBURG

)

 

BE IT REMEMBERED, that on this 6th day of September, 2013, before me, the undersigned, a notary public in and for the County and State aforesaid, duly commissioned and qualified, personally appeared Stephen G. De May, personally known to me to be the same person whose name is subscribed to the foregoing instrument, and personally known to me to be the Vice President and Treasurer of Duke Energy Ohio, Inc., an Ohio corporation, and acknowledged that he signed and delivered said instrument as his free and voluntary act as such Vice President and Treasurer, and as the free and voluntary act of said Duke Energy Ohio, Inc., for the uses and purposes therein set forth; in pursuance of the power and authority granted to him by resolution of the Board of Directors of said Company.

 

IN WITNESS WHEREOF, I have hereunto set my hand and affixed my notarial seal the day and year aforesaid.

 

(NOTARIAL SEAL)

 

 

 

 

 

 

/s/ Heather Paige Blum

 

Notary Public

 

 

 

Name: Heather Paige Blum

 

Commission Expiration: 01-09-2018

 

33



 

STATE OF CALIFORNIA

)

 

) ss:

COUNTY OF

)

 

On this 5th day of September, 2013, before me, Kristie Dianne Duenes, notary public in and for the County and State aforesaid, personally appeared Teresa Petta, a Vice President of The Bank of New York Mellon Trust Company, N. A., who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that she executed the same in her authorized capacity, and that by her signature on the instrument, the entity upon behalf of which the person acted, executed the instrument.

 

I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.

 

WITNESS my hand and official seal.

 

(NOTARIAL SEAL)

 

 

 

 

 

 

/s/ Kristie Dianne Duenes

 

Notary Public

 

Name: Kristie Dianne Duenes

 

Commission Expiration: Sep 24, 2014

 

This instrument was prepared by:

 

Bradley C. Arnett, Esq.

Taft Stettinius & Hollister LLP

425 Walnut Street, Suite 1800

Cincinnati, Ohio  45202

 

34


Exhibit 5.1

 

 

Taft Stettinius & Hollister LLP

425 Walnut Street, Suite 1800 / Cincinnati, OH  45202-3957 / Tel: 513.381.2838 / Fax: 513.381.0205 / www.taftlaw.com

Cincinnati / Cleveland / Columbus / Dayton / Indianapolis / Northern Kentucky / Phoenix / Beijing

 

September 6, 2013

 

Duke Energy Ohio, Inc.

139 East Fourth Street

Cincinnati, Ohio 45202

 

Ladies and Gentlemen:

 

We have acted as counsel to Duke Energy Ohio, Inc., an Ohio corporation (the “Company”), in connection with the public offering of (i) $150,000,000 aggregate principal amount of the Company’s First Mortgage Bonds, Floating Rate Series, Due March 6, 2015 (the “2015 Bonds”) and (ii) $300,000,000 aggregate principal amount of the Company’s First Mortgage Bonds, 3.80% Series, Due September 1, 2023 (the “2023 Bonds” and, together with the 2015 Bonds, the “Bonds”), issuable pursuant to a First Mortgage, dated as of August 1, 1936, between the Company and The Bank of New York Mellon Trust Company, N.A., as successor trustee (the “Trustee”), as amended and supplemented from time to time, including the amendment and restatement thereof in its entirety by the Fortieth Supplemental Indenture, dated as of March 23, 2009 (said First Mortgage, as heretofore amended, restated and supplemented, the “First Mortgage”), and which will be further supplemented by the Forty-second Supplemental Indenture, dated as of September 6, 2013 (the “Forty-second Supplemental Indenture” and, together with the First Mortgage, the “Indenture”).  On September 3, 2013, the Company entered into an Underwriting Agreement (the “Underwriting Agreement”) with Barclays Capital Inc., RBS Securities Inc., and UBS Securities LLC, as representatives of the several underwriters named in Schedule A thereto (the “Underwriters”), relating to the sale by the Company to the Underwriters of the Bonds.

 

In connection with the rendering of this opinion, we have examined and relied, as to factual matters, upon originals, or copies certified or otherwise identified to our satisfaction, of such documents, corporate records, statements of public officials and Company officers and directors, and such other instruments, and have made such investigations of law, as we have deemed necessary or appropriate for purposes of this opinion, including, without limitation, the following documents:

 

(a)                                  the registration statement on Form S-3 (File No. 333-169633-01) of the Company filed on September 29, 2010, with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “1933 Act”), allowing for delayed offerings pursuant to Rule 415 under the 1933 Act, the information deemed to be a part of such registration statement as of the date hereof pursuant to Rule 430B of the rules and regulations under the 1933 Act (the “1933 Act Regulations”) and the information incorporated or deemed to be incorporated by reference in such registration statement pursuant to Item 12 of Form S-3 under the 1933 Act (such registration statement being hereinafter referred to as the “Registration Statement”);

 



 

(b)                                  the prospectus, dated September 29, 2010, including the information incorporated or deemed to be incorporated by reference therein (the “Base Prospectus”), which forms a part of and is included in the Registration Statement in the form filed with the Commission pursuant to Rule 424(b) of the 1933 Act Regulations;

 

(c)                                   the preliminary prospectus supplement, dated September 3, 2013, including the information incorporated or deemed to be incorporated by reference therein (the “Preliminary Prospectus Supplement”), relating to the offering of the Bonds in the form filed with the Commission pursuant to Rule 424(b) of the 1933 Act Regulations;

 

(d)                                  the prospectus supplement, dated September 3, 2013, including the information incorporated or deemed to be incorporated by reference therein (the “Prospectus Supplement”), relating to the offering of the Bonds in the form filed with the Commission pursuant to Rule 424(b) of the 1933 Act Regulations (the Prospectus Supplement, together with the Base Prospectus, are collectively referred to herein as the “Prospectus”);

 

(e)                                   the Issuer Free Writing Prospectus issued at or prior to the Applicable Time, attached as Schedule C to the Underwriting Agreement and filed with the Commission pursuant to Rule 433(d) of the 1933 Act Regulations and Section 5(e) of the Underwriting Agreement (the Base Prospectus, the Preliminary Prospectus Supplement and the Free Writing Prospectus are collectively referred to herein as the “Pricing Disclosure Package”);

 

(f)                                    an executed copy of the Underwriting Agreement;

 

(g)                                   an executed copy of the First Mortgage;

 

(h)                                  an executed copy of the Forty-second Supplemental Indenture;

 

(i)                                      specimens of the Bonds;

 

(j)                                     the Amended Articles of Incorporation of the Company, effective October 1, 2006;

 

(k)                                  the Regulations of the Company, as amended on July 23, 2003;

 

(l)                                      the Action by Written Consent of the Board of Directors of the Company, effective September 22, 2010, relating to the preparation and filing with the Commission of the Registration Statement and the issuance of the Company’s securities (the “Board Consent”), and the Written Consent of the Vice President and Treasurer of the Company, effective September 3, 2013, establishing the terms of the Bonds pursuant to authority granted in the Board Consent;

 

(m)                              the Order entered on May 1, 2013 by The Public Utilities Commission of Ohio in Case No. 13-752-GE-AIS wherein, among other things, the Company secured

 

2



 

the necessary authorizations and approvals of said Commission in respect of the issuance of the Bonds;

 

(n)                                  a Certificate of Assistant Corporate Secretary of the Company, dated September 6, 2013, with respect to signatures and incumbency of officers of the Company, and other corporate matters; and

 

(o)                                  an Officers’ Certificate of the Company, dated September 6, 2013, pursuant to Section 6(i) of the Underwriting Agreement.

 

We have discussed with representatives of the Company such questions of fact as we have deemed necessary or appropriate for the purpose of this opinion, and have relied upon certificates of officers of the Company with respect to the accuracy of such factual matters as well as the factual matters contained in the representations and warranties of the Company that are contained in the Underwriting Agreement.

 

For purposes of this opinion, we have assumed, other than as to the Company, (i) the due authorization, execution and delivery of each of the Underwriting Agreement and the Indenture and (ii) that each of the Underwriting Agreement and the Indenture constitutes the legal, valid and binding obligation of all respective parties to each of the Underwriting Agreement and the Indenture under applicable law, enforceable against all such parties in accordance with its terms. Further, we have assumed the authenticity of all documents submitted to us as originals, the legal capacity of all parties signing such documents, the genuineness of the signatures on such documents, and the conformity to original documents of all photostatic copies of such documents submitted to us.

 

The opinions expressed herein are limited to the laws (excluding principles of conflicts of law) of the State of Ohio and the laws of the United States of America. In rendering such opinions, we have made such examination of Ohio law and federal laws as we have deemed relevant for the purposes hereof, but we have not made an independent review of the laws of any jurisdiction other than the State of Ohio and the United States of America. Accordingly, we express no opinions as to the laws of any jurisdiction other than the State of Ohio and the laws of the United States of America.

 

Based upon the foregoing, and subject to the assumptions, qualifications and limitations set forth herein, we are of the opinion that the Bonds have been duly authorized and, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters pursuant to the Underwriting Agreement, will constitute valid and binding obligations of the Company entitled to the benefits of the Indenture and enforceable against the Company in accordance with their terms.

 

The above opinion with regard to the enforceability of the Bonds is subject to applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and other similar laws affecting creditors’ rights generally from time to time in effect and to general principals of equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing, regardless of whether considered in a proceeding in equity or at law.

 

3



 

This opinion is rendered as of the date hereof based upon the facts and law in existence on the date hereof. We assume no obligation to update or supplement this letter to reflect any circumstances which may hereafter come to our attention with respect to the opinion and statements set forth above, including any changes in applicable law which may hereafter occur.

 

We hereby consent to the filing of this opinion as an exhibit to the Current Report on Form 8-K filed by the Company in connection with the issuance and sale of the Bonds and its incorporation by reference into the Registration Statement. We also hereby consent to the use of our name under the heading “Legal Matters” in the Prospectus Supplement. In giving this consent, we do not thereby concede that we are within the category of persons whose consent is required under Section 7 of the 1933 Act or the 1933 Act Regulations.

 

 

Very truly yours,

 

 

 

 

 

/s/ TAFT STETTINIUS & HOLLISTER LLP

 

4


Exhibit 99.1

 

Execution Copy

 

DUKE ENERGY OHIO, INC.

 

$150,000,000 FIRST MORTGAGE BONDS,

FLOATING RATE SERIES, DUE MARCH 6, 2015

$300,000,000 FIRST MORTGAGE BONDS,

3.80% SERIES, DUE SEPTEMBER 1, 2023

 

UNDERWRITING AGREEMENT

 

September 3, 2013

 

Barclays Capital Inc.

745 Seventh Avenue

New York, New York 10019

 

RBS Securities Inc.
600 Washington Boulevard
Stamford, CT 06901

 

and

 

UBS Securities LLC
677 Washington Blvd
Stamford, CT 06901

 

Ladies and Gentlemen:

 

1.               Introductory . DUKE ENERGY OHIO, INC., an Ohio corporation (the “Company”), proposes, subject to the terms and conditions stated herein, to issue and sell (i) $150,000,000 aggregate principal amount of First Mortgage Bonds, Floating Rate Series, Due March 6, 2015 (the “2015 Bonds”) and (ii) $300,000,000 aggregate principal amount of First Mortgage Bonds, 3.80% Series, Due September 1, 2023 (the “2023 Bonds” and together with the 2015 Bonds, the “Bonds”).  The Bonds will be issued under and secured by a First Mortgage dated as of August 1, 1936 (the “Original Mortgage”), between the Company and The Bank of New York Mellon Trust Company, N.A., as successor trustee (the “Trustee”), as supplemented and amended from time to time, which was amended and restated in its entirety by a Fortieth Supplemental Indenture, dated as of March 23, 2009, and which will be further amended and supplemented by the Forty-second Supplemental Indenture, to be dated as of September 6, 2013 (the “Forty-second Supplemental Indenture” and together with the Original Mortgage (as supplemented, amended and restated) the “Indenture”).  Barclays Capital Inc., RBS Securities Inc. and UBS Securities LLC (the “Representatives”) are acting as representatives of the several underwriters named on Schedule A hereto (together with the Representatives, the “Underwriters”).

 

2.               Representations and Warranties of the Company. As of the date hereof, as of the Applicable Time (as defined below) and as of the Closing Date, the Company represents and warrants to, and agrees with, the several Underwriters that:

 

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(a)                                  A registration statement (No. 333-169633-01), including a prospectus, relating to the Bonds and certain other securities has been filed with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “1933 Act”); such registration statement and any post-effective amendment thereto, each in the form heretofore delivered to you, became effective upon filing with the Commission pursuant to Rule 462 of the rules and regulations of the Commission under the 1933 Act (the “1933 Act Regulations”).  The base prospectus filed as part of such registration statement, as amended and supplemented immediately prior to the Applicable Time, is hereinafter called the “Base Prospectus”; the preliminary prospectus supplement specifically relating to the Bonds immediately prior to the Applicable Time filed with the Commission pursuant to Rule 424(b) of the 1933 Act Regulations is hereinafter called the “Preliminary Prospectus”; the various parts of such registration statement, including all exhibits thereto and including the prospectus supplement relating to the Bonds that is filed with the Commission and deemed by virtue of Rule 430B of the 1933 Act Regulations to be part of such registration statement, each as amended at the time such part of the registration statement became effective, are hereinafter collectively called the “Registration Statement”; the form of the final prospectus relating to the Bonds filed with the Commission pursuant to Rule 424(b) of the 1933 Act Regulations in accordance with Section 5(a) hereof is hereinafter called the “Prospectus” and any information included in such Prospectus that was omitted from the Registration Statement at the time it became effective but that is deemed to be a part of and included in the Registration Statement pursuant to Rule 430B is referred to as “Rule 430B Information”; any reference herein to the Base Prospectus, the Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein pursuant to Item 12 of Form S-3 under the 1933 Act, as of the date of such prospectus; any reference to any amendment or supplement to the Base Prospectus, the Preliminary Prospectus or the Prospectus shall be deemed to refer to and include any post-effective amendment to the Registration Statement, the prospectus supplement relating to the Bonds filed with the Commission pursuant to Rule 424(b) under the 1933 Act and any documents filed under the Securities Exchange Act of 1934, as amended (the “1934 Act”), and incorporated therein, in each case after the date of the Base Prospectus, the Preliminary Prospectus or the Prospectus, as the case may be; any reference to any amendment to the Registration Statement shall be deemed to include any annual 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.  For purposes of this Agreement, the term “Applicable Time” means 3:45 p.m. (New York City Time) on the date hereof.

 

(b)                                  No stop order suspending the effectiveness of the Registration Statement has been issued and no proceeding for that purpose or pursuant to Section 8A of the 1933 Act has been initiated or threatened by the Commission.

 

(c)                                   The Registration Statement, the Base Prospectus, the document or documents specified in Item 3 of Schedule B hereto (such document or documents, the

 

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“Permitted Free Writing Prospectus”), the Preliminary Prospectus and the Prospectus conform or will conform, and any amendments or supplements thereto will conform, in all material respects to the requirements of the 1933 Act and the 1933 Act Regulations; the Registration Statement as of its original effective date, at each deemed effective date with respect to the Underwriters pursuant to Rule 430B(f)(2) of the 1933 Act Regulations and at the Closing Date (as defined in Section 3), did not and will not contain 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; the Prospectus and any amendment or supplement thereto, at the time the Prospectus or any such amendment or supplement is issued and at the Closing Date, will not include any 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; and the Base Prospectus, the Preliminary Prospectus and the Permitted Free Writing Prospectus (collectively, the “Pricing Disclosure Package”), all considered together, as of the Applicable Time, did not include any 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; provided, however, the Company makes no representation or warranty to the Underwriters with respect to any statements or omissions made in reliance upon and in conformity with written information furnished to the Company by the Representatives on behalf of the Underwriters specifically for use in the Registration Statement, the Prospectus, the Preliminary Prospectus or the Permitted Free Writing Prospectus.

 

(d)                                  The Permitted Free Writing Prospectus specified on Schedule B hereto as of its issue date and at all subsequent times through the completion of the public offer and sale of the Bonds (or until any earlier date that the Company notifies the Underwriters as described in Section 5(f)) did not and will not include any information that conflicts with the information contained in the Registration Statement, the Base Prospectus, the Preliminary Prospectus or the Prospectus that has not been superseded or modified.

 

(e)                                   At the earliest time the Company or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2) of the 1933 Act Regulations) of the Bonds, the Company was not an “ineligible issuer” as defined in Rule 405 of the 1933 Act Regulations.  The Company is, and was at the time of the initial filing of the Registration Statement, eligible to use Form S-3 under the 1933 Act.

 

(f)                                    The documents and interactive data in eXtensible Business Reporting Language (“XBRL”) incorporated or deemed to be incorporated by reference in the Registration Statement, the Pricing Disclosure Package and the Prospectus, at the time they were filed or hereafter are filed with the Commission, complied or will comply, as the case may be, in all material respects with 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 Prospectus, (a) at the time the Registration Statement became effective, (b) at the

 

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Applicable Time and (c) on the Closing Date, did not 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 the light of the circumstances under which they were made, not misleading.

 

(g)                                   The Company’s most recent Annual Report on Form 10-K meets the conditions specified in General Instruction I(1) of the General Instructions for Form 10-K, and any Quarterly Report filed on Form 10-Q by the Company after the filing of the Company’s most recent Annual Report on Form 10-K meets the conditions specified in General Instruction H(1) of the General Instructions for Form 10-Q.

 

(h)                                  The compliance by the Company with all of the provisions of this Agreement has been duly authorized by all necessary corporate action and the consummation of the transactions herein 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 of its subsidiaries is a party or by which any such party is bound or to which any of their respective properties or assets are subject that would have a material adverse effect on the business, financial condition or results of operations of the Company and its subsidiaries, taken as a whole; nor will such consummation result in any violation of the provisions of the Company’s Amended Articles of Incorporation or Amended Articles of Consolidation (collectively, “Articles”) or the Company’s Regulations (“Regulations”) or 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 subsidiaries or any of their respective properties that would have a material adverse effect on the business, financial condition or results of operations of the Company and its subsidiaries, taken as a whole.  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, except for authorization by the Public Utilities Commission of Ohio (“PUCO”) and registration of the offer and sale of the Bonds under the 1933 Act, qualification of the Indenture under the Trust Indenture Act of 1939 (the “1939 Act”) and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Bonds by the Underwriters.

 

(i)                                      This Agreement has been duly authorized, executed and delivered by the Company.

 

(j)                                     The Original Mortgage and the Fortieth Supplemental Indenture have each been duly authorized, executed and delivered by the Company and duly qualified under the 1939 Act.  The Forty-second Supplemental Indenture, to be dated as of September 6, 2013, has been duly authorized by the Company and, when executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will constitute a

 

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valid and legally binding instrument of the Company, enforceable against the Company in accordance with its terms, except as (i) the enforceability thereof may be limited by bankruptcy, insolvency, or similar laws affecting creditors’ rights generally, and (ii) the rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability.

 

(k)                                  The Bonds have been duly authorized by the Company and when executed by the Company, authenticated by the 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, except as (i) the enforceability thereof may be limited by bankruptcy, insolvency, or similar laws affecting creditors’ rights generally, and (ii) the rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability.

 

(l)                                      The Company (i) is a corporation duly incorporated and validly existing in good standing under the laws of the State of Ohio and (ii) is duly qualified to do business in each jurisdiction where the failure to be so qualified would materially adversely affect the ability of the Company to perform its obligations under this Agreement, the Indenture or the Bonds.

 

(m)                              The Company’s “significant subsidiaries” within the meaning of Rule 405 of the 1933 Act Regulations are Duke Energy Kentucky, Inc. and Duke Energy Commercial Asset Management, LLC.

 

3.               Purchase, Sale and Delivery of Bonds. On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company agrees to sell to the Underwriters, and the Underwriters agree, severally and not jointly, to purchase from the Company, at a purchase price of (i) 99.775% of the principal amount of the 2015 Bonds plus accrued interest, if any, from September 6, 2013 and (ii) 99.317% of the principal amount of the 2023 Bonds plus accrued interest, if any, from September 6, 2013, the respective principal amounts of Bonds set forth opposite the name of each Underwriter on Schedule A hereto plus the respective principal amounts of additional Bonds which each such Underwriter may become obligated to purchase pursuant to the provisions of Section 8 hereof.  The Underwriters hereby also agree to make a payment to the Company in an aggregate amount equal to $712,500, including in respect of expenses incurred by the Company in connection with the offering of the Bonds.

 

Payment of the purchase price for the Bonds to be purchased by the Underwriters and the payment referred to above shall be made at the offices of Taft Stettinius & Hollister LLP, 425 Walnut Street, Suite 1800, Cincinnati, Ohio 45202, or at such other place as shall be mutually agreed upon by the Representatives and the Company, at 10:00  a.m., New York City time, on September 6, 2013, or such other time and date as shall be mutually agreed upon in writing by the Representatives and the Company (the “Closing Date”).  All other documents referred to herein that are to be delivered at the Closing Date shall be delivered at that time at the offices of Sidley Austin LLP, 787 Seventh Avenue, New York, NY 10019.  Payment shall be made to the Company by wire transfer of immediately available funds to a bank account designated by the

 

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Company, against delivery of the Bonds, in fully registered form, to the Representatives for the respective accounts of the Underwriters.  The 2015 Bonds and the 2023 Bonds shall each be delivered in the form of one or more global certificates in aggregate denomination equal to the aggregate principal amount of the respective 2015 Bonds and 2023 Bonds upon original issuance, and registered in the name of Cede & Co., as nominee for The Depository Trust Company (“DTC”).

 

4.               Offering by the Underwriters. It is understood that the several Underwriters propose to offer the Bonds for sale to the public as set forth in the Pricing Disclosure Package and the Prospectus.

 

5.               Covenants of the Company. The Company covenants and agrees with the several Underwriters that:

 

(a)                                  The Company will cause the Preliminary Prospectus and the Prospectus to be filed pursuant to and in compliance with Rule 424(b) of the 1933 Act Regulations; the Company will advise the Underwriters promptly of (x) the filing of any amendment or supplement to the Registration Statement, the Base Prospectus, the Preliminary Prospectus or the Prospectus, and (y) the institution by the Commission of any stop order proceedings in respect of the Registration Statement.  The Company will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible its lifting, if issued.

 

(b)                                  If at any time when a prospectus relating to the Bonds (or the notice referred to in Rule 173(a) of the 1933 Act Regulations)  is required to be delivered under the 1933 Act any event occurs as a result of which the Pricing Disclosure Package or the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Pricing Disclosure Package or the Prospectus to comply with the 1933 Act, the Company promptly will prepare and file with the Commission an amendment, a supplement or an appropriate document pursuant to Section 13 or 14 of the 1934 Act which will correct such statement or omission or which will effect such compliance.

 

(c)                                   The Company, during the period when a prospectus relating to the Bonds is required to be delivered under the 1933 Act, will timely file all documents required to be filed with the Commission pursuant to Section 13 or 14 of the 1934 Act.

 

(d)                                  Without the prior consent of the Underwriters, the Company has not made and will not make any offer relating to the Bonds that would constitute a “free writing prospectus” as defined in Rule 405 of the 1933 Act Regulations, other than the Permitted Free Writing Prospectus; each Underwriter, severally and not jointly, represents and agrees that, without the prior consent of the Company, it has not made and will not make any offer relating to the Bonds that would constitute a “free writing prospectus” as defined in Rule 405 of the 1933 Act Regulations,

 

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other than a Permitted Free Writing Prospectus or a free writing prospectus that is not required to be filed by the Company pursuant to Rule 433 of the 1933 Act Regulations (“Rule 433”); any such free writing prospectus (which shall include the pricing term sheet discussed in Section 5(e) below), the use of which has been consented to by the Company and the Underwriters, is specified in Item 3 of  Schedule B hereto.  The Company represents that it has treated and agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433, and has complied and will comply with the requirements of Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping.

 

(e)                                   The Company agrees to prepare a pricing term sheet specifying the terms of the Bonds not contained in the Preliminary Prospectus, substantially in the form of Schedule C hereto and approved by the Representatives on behalf of the Underwriters, and to file such pricing term sheet as an “issuer free writing prospectus” pursuant to Rule 433 prior to the close of business two business days after the date hereof.

 

(f)                                    The Company agrees that if at any time following the issuance of a Permitted Free Writing Prospectus any event occurs as a result of which such Permitted Free Writing Prospectus would conflict with the information (not superseded or modified) in the Registration Statement, the Pricing Disclosure Package or the Prospectus or would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances then prevailing, not misleading, the Company will give prompt notice thereof to the Underwriters and, if requested by the Underwriters, will prepare and furnish without charge to each Underwriter a free writing prospectus or other document, the use of which has been consented to by the Underwriters, which will correct such conflict, statement or omission; provided, however, that this covenant shall not apply to any statements or omissions made in reliance upon and in conformity with written information furnished to the Company by  the Representatives on behalf of the Underwriters specifically for use in the Registration Statement, the Pricing Disclosure Package or the Prospectus.

 

(g)                                   The Company will timely make generally available to its securityholders as soon as practicable an earnings statement for the purposes of the last paragraph of Section 11(a) of the 1933 Act.

 

(h)                                  The Company will furnish to you, without charge, copies of the Registration Statement (three of which will include all exhibits other than those incorporated by reference), the Pricing Disclosure Package and 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.

 

(i)                                      The Company will arrange or cooperate in arrangements for the qualification of the Bonds for sale under the laws of such jurisdictions as you designate and will

 

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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 corporation or to file any general consent to service of process under the laws of any state where it is not now so subject.

 

(j)                                     The Company will pay all expenses incident to the performance of its obligations under this Agreement including (i) the printing and filing of the Registration Statement and the printing of this Agreement and any Blue Sky Survey, (ii) the preparation and printing of certificates for the Bonds, (iii) the issuance and delivery of the Bonds as specified herein, (iv) the fees and disbursements of counsel for the Underwriters in connection with the qualification of the Bonds under the securities laws of any jurisdiction in accordance with the provisions of Section 5(i) and in connection with the preparation of the Blue Sky Survey (such fees not to exceed $5,000), (v) the printing and delivery to the Underwriters, in quantities as hereinabove referred to, of copies of the Registration Statement and any amendments thereto, of the Preliminary Prospectus, of the Prospectus, of any Permitted Free Writing Prospectus and any amendments or supplements thereto, (vi) any fees charged by independent rating agencies for rating the Bonds, (vii) any fees and expenses in connection with the listing of the Bonds on the New York Stock Exchange, (viii) any filing fee required by the Financial Industry Regulatory Authority, (ix) the costs of any depository arrangements for the Bonds with DTC or any successor depositary and (x) 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 Bonds, 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 Underwriters and officers of the Company and any such consultants, and the cost of any aircraft chartered in connection with the road show; provided, however, the Underwriters shall reimburse a portion of the costs and expenses referred to in this clause (x).

 

6.               Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters to purchase and pay for the Bonds will be subject to the accuracy of the representations and warranties on the part of the Company herein, to the accuracy of the statements of officers of the Company made pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions precedent:

 

(a)                                  The Prospectus shall have been filed by the Company with the Commission pursuant to Rule 424(b) within the applicable time period prescribed for such filing by the 1933 Act Regulations, and each Permitted Free Writing Prospectus shall have been filed by the Company with the Commission pursuant to Rule 433 within the applicable time period prescribed for such filing by the 1933 Act Regulations (to the extent so required).

 

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(b)                                  On or after the Applicable Time and prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose or pursuant to Section 8A of the 1933 Act shall have been instituted or, to the knowledge of the Company or you, shall be threatened by the Commission.

 

(c)                                   On or after the Applicable Time and prior to the Closing Date, the rating assigned by Moody’s Investors Service, Inc., Standard & Poor’s Ratings Services or Fitch Ratings Inc. (or any of their successors) to any debt securities or preferred stock of the Company as of the date of this Agreement shall not have been lowered.

 

(d)                                  Since the respective most recent dates as of which information is given in the  Pricing Disclosure Package and the Prospectus and up to the Closing Date, there shall not have been any material adverse change in the condition of the Company and its subsidiaries, taken as a whole, financial or otherwise, except as reflected in or contemplated by the Pricing Disclosure Package and the Prospectus, and since such dates and up to the Closing Date, there shall not have been any material transaction entered into by the Company other than transactions contemplated by the Pricing Disclosure Package and the Prospectus and transactions in the ordinary course of business, the effect of which in your reasonable judgment is so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Bonds on the terms and in the manner contemplated by the Pricing Disclosure Package and the Prospectus.

 

(e)                                   You shall have received an opinion of Richard G. Beach, Esq., Associate General Counsel of Duke Energy Business Services, LLC, the service company affiliate of the Company, dated the Closing Date, to the effect that:

 

(i)                                      The Company is a corporation duly organized and validly existing in good standing under the laws of the State of Ohio, with power and authority (corporate and other) to own its properties and conduct its business as described in the Pricing Disclosure Package and the Prospectus and to enter into and perform its obligations under this Agreement.

 

(ii)                                   The Company is duly qualified to do business in each jurisdiction in which the ownership or leasing of its property or the conduct of its business requires such qualification, except where the failure would not, singularly or in the aggregate, reasonably be expected to have a material adverse effect on the consolidated financial position, stockholder’s equity, results of operations, business or prospects of the Company and its subsidiaries, taken as a whole, and to own and operate the properties in use in such business.

 

(iii)                                Each of the Company’s subsidiaries is duly organized and validly existing in good standing under the laws of the jurisdiction of its organization and has due corporate and governmental authority to carry on the business in which it is engaged, except where the failure would not, singularly or in

 

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the aggregate, reasonably be expected to have a material adverse effect on the consolidated financial position, stockholder’s equity, results of operations, business or prospects of the Company and its subsidiaries, taken as a whole, and to own and operate the properties in use in such businesses.

 

(iv)                               The execution, delivery and performance of this Agreement, the Indenture and the Bonds and compliance by the Company with its obligations under this Agreement, the Indenture and the Bonds will not conflict with, or result in any charge or encumbrance upon any of the assets of the Company (other than pursuant to the Indenture) pursuant to the terms of, or constitute a default under, any agreement, indenture or instrument known to such counsel, or result in a violation of the Articles or Regulations of the Company (as in effect on the Closing Date) or any order, rule or regulation (also as in effect on the Closing Date) of any court or governmental agency having jurisdiction over the Company, and  the issuance of the Bonds in accordance with the Indenture and the sale of the Bonds in accordance with this Agreement, do not and will not result in any violation by the Company of any of the terms or provisions of the Articles or Regulations, or of the Indenture, or any mortgage or other agreement or instrument known to such counsel by which the Company is bound.

 

(v)                                  The Indenture is in due and proper form, has been duly and validly authorized by all necessary corporate action, has been duly executed and delivered by the Company, qualified under the 1939 Act, and, assuming due authorization, execution and delivery by the Trustee, the Indenture is a valid and binding instrument of the Company, enforceable in accordance with its terms, except as (i) the enforceability thereof may be limited by bankruptcy, insolvency, or similar laws affecting creditors’ rights generally, and (ii) the rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability.

 

(vi)                               The issue of the Bonds by the Company in accordance with the terms of the Indenture has been duly authorized by all necessary corporate action; when duly executed by the Company, authenticated by the Trustee and delivered to and paid for by the Underwriters pursuant to this Agreement, the Bonds will constitute the legal, valid and binding obligations of the Company enforceable in accordance with their terms, secured by the lien of and entitled to the benefits provided by the Indenture, except as (i) the enforceability thereof may be limited by bankruptcy, insolvency, or similar laws affecting creditors’ rights generally, and (ii) the rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability.

 

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(vii)          The Company has good and marketable title to the properties, rights and assets described in and conveyed by the Indenture and not released by the Trustee from the lien thereof prior to the time of delivery of the Bonds, subject only to the lien of the Indenture and to “permitted liens” as defined in the Indenture; the description in the Indenture of such properties, rights and assets is adequate to constitute the Indenture a lien thereon; the Indenture complies with all applicable laws of the State of Ohio (wherein the properties subjected or intended to be subject to the lien of the Indenture are located), including all applicable recording laws, and, subject only to the matters referred to above, constitutes a valid and direct first lien on such properties, rights and assets, which include substantially all of the Company’s tangible electric transmission and distribution utility property located in Ohio, together with the Company’s recorded easements and rights of way, franchises, licenses, permits, grants, immunities, privileges and rights that are used or useful in the operation of such property; and all tangible electric transmission and distribution utility property located in Ohio acquired by the Company subsequent to the time of issuance of the Bonds will be subject to the lien of the Indenture, subject, however, to “permitted liens” as defined in the Indenture.

 

(viii)         The Indenture, other than the Forty-second Supplemental Indenture, has been duly filed for record in such manner and in such places as are required by law in order to give constructive notice of, and to establish, preserve and protect the lien of, the Indenture on all property of the Company of every kind referred to in the Indenture as subject to the lien thereof.

 

(ix)           Except as referred to in the Pricing Disclosure Package and the Prospectus, there is no action, suit or proceeding, inquiry or investigation, at law or in equity or before or by any court, public board or body, pending or, to such counsel’s knowledge, threatened against or affecting the Company, wherein an unfavorable decision, ruling or finding would (i) materially and adversely affect the condition (financial or otherwise), results of operations, business or properties of the Company or (ii) materially and adversely affect the transactions contemplated by this Agreement, or which would adversely affect the validity or enforceability of the Indenture or the Bonds.  The descriptions in the Registration Statement, the Pricing Disclosure Package and the Prospectus of any legal or governmental proceedings are accurate and fairly present the information required to be shown, and such counsel does not know of any litigation or any legal or governmental proceeding instituted or threatened against the Company or any of its properties that would be required to be disclosed in the Registration Statement, the Pricing Disclosure Package or the Prospectus and is not so disclosed.

 

(x)            An order of the PUCO relating to the issuance of the Bonds has been duly entered and, to such counsel’s knowledge, has not been modified or

 

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repealed in any respect and is in full force and effect.  The issuance and sale of the Bonds to the Underwriters are in conformity with the terms of such order. Except as may be required under the 1933 Act or the securities or Blue Sky laws of any jurisdiction, no further consent, approval, authorization or order of, or registration or filing with, any court or governmental or public agency, authority or body is required with respect to the Company for the execution, delivery and performance of this Agreement, the Indenture or the Bonds, the issuance by the Company of the Bonds or the consummation by the Company of the transactions contemplated by this Agreement, the Indenture or the Bonds.

 

In addition, such counsel shall state that no facts have come to such counsel’s attention that have caused such counsel to believe that the Registration Statement, at the Applicable Time, 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 its date and as of 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 (except that in each case such counsel need not express an opinion as to the financial statements and other financial data included or incorporated by reference therein or excluded therefrom).  Such counsel shall further state that, in addition, no facts have come to such counsel’s attention that have caused such counsel to believe that the Pricing Disclosure Package, as of the Applicable Time, contained an untrue statement of a material fact or omitted 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 (except that such counsel need not express an opinion as to the financial statements and other financial data included or incorporated by reference therein or excluded therefrom).

 

Such counsel shall expressly authorize the Underwriters to rely on such counsel’s opinion dated the Closing Date delivered to the Trustee pursuant to the Indenture.

 

In rendering the foregoing opinion, such counsel may state that such counsel does not express any opinion concerning any law other than the laws of the State of Ohio and the Commonwealth of Kentucky.

 

(f)             You shall have received an opinion of Taft Stettinius & Hollister LLP, counsel to the Company, dated the Closing Date, to the effect that:

 

(i)             The Forty-second Supplemental Indenture has been duly authorized, executed and delivered by the Company, and assuming due authorization, execution and delivery by the Trustee, the Indenture constitutes a legal, valid and binding obligation of the Company enforceable against the Company in accordance with its terms (subject to applicable bankruptcy,

 

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insolvency, reorganization, moratorium, fraudulent transfer and other similar laws affecting creditors’ rights generally from time to time in effect, and to general principals of equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing, regardless of whether considered in a proceeding in equity or at law).

 

(ii)            The Bonds have been duly authorized and, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters pursuant to this Agreement, will constitute legal, valid and binding obligations of the Company entitled to the benefits of the Indenture and enforceable against the Company in accordance with their terms (subject to applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and other similar laws affecting creditors’ rights generally from time to time in effect and to general principals of equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing, regardless of whether considered in a proceeding in equity or at law).

 

(iii)           This Agreement has been duly authorized, executed and delivered by the Company.

 

(iv)           The statements made in the Pricing Disclosure Package and the Prospectus under the captions “Description of the Mortgage Bonds” and “Certain U.S. Federal Income Tax Considerations for Non-U.S. Holders” and in the Base Prospectus under the caption “Description of the First Mortgage Bonds,” in each case insofar as such statements constitute summaries of the legal matters, documents or proceedings referred to therein, fairly summarize the matters referred to therein in all material respects.

 

(v)            The Company is not, and solely after giving effect to the offering and sale of the Bonds and the application of the proceeds thereof as described in the Prospectus, will not be subject to registration and regulation as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.

 

In rendering the foregoing opinions, such counsel may state that it has relied as to certain factual matters on information obtained from public officials, officers and representatives of the Company and has assumed that the signatures on all documents examined by it are genuine, and that such counsel has not independently verified such factual matters or assumptions. In addition, such counsel may assume matters governed by New York law.

 

You shall also have received a statement of Taft Stettinius & Hollister LLP, dated the Closing Date, to the effect that:

 

13



 

(1)                                  no facts have come to such counsel’s attention that have caused such counsel to believe that the documents filed by the Company under the 1934 Act and the 1934 Act Regulations that are incorporated by reference in the Registration Statement, the Pricing Disclosure Package and the Prospectus, were not, on their face, appropriately responsive in all material respects to the requirements of the 1934 Act and the 1934 Act Regulations (except that in each case such counsel need not express any view as to the financial statements, schedules and other financial information included or incorporated by reference therein or excluded therefrom or the Form T-1);

 

(2)                                  no facts have come to such counsel’s attention that have caused such counsel to believe that the Registration Statement, at the Applicable Time and the Prospectus, as of its date, were not, on their face, appropriately responsive in all material respects to the requirements of the 1933 Act and the 1933 Act Regulations (except that in each case such counsel need not express any view as to the financial statements, schedules and other financial information included or incorporated by reference therein or excluded therefrom or the Form T-1); and

 

(3)                                  no facts have come to such counsel’s attention that have caused such counsel to believe that the Registration Statement, at the Applicable Time, 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 its date and as of 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 (except that in each case such counsel need not express any view as to the financial statements, schedules and other financial information included or incorporated by reference therein or excluded therefrom or the Form T-1).

 

Such counsel shall further state that, in addition, no facts have come to such counsel’s attention that have caused such counsel to believe that the Pricing Disclosure Package, as of the Applicable Time, contained an untrue statement of a material fact or omitted 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 (except that in each case such counsel need not express any view as to the financial statements, schedules and other financial information included or incorporated by reference therein or excluded therefrom or the Form T-1).

 

In addition, such statement shall confirm that the Prospectus has been filed with the Commission within the time period required by Rule 424(b) of the 1933 Act Regulations and any required filing of a Permitted Free Writing Prospectus pursuant to Rule 433 of the 1933 Act Regulations has been made with the Commission within the time period required by Rule 433(d) of the 1933 Act Regulations. Such statement shall further state that the Registration Statement

 

14



 

became effective upon filing under the 1933 Act and the Indenture has been qualified under the 1939 Act, and that such counsel has been orally advised by the Commission that no stop order suspending the effectiveness of the Registration Statement has been issued and, to the actual knowledge of the attorneys in such counsel’s firm who have done substantive work for the Company or have been principally involved in negotiating and reviewing this Agreement or in the preparation or review of the Registration Statement and the Prospectus, no proceedings for that purpose have been instituted or are pending or threatened by the Commission.

 

In addition, such counsel may state that such counsel does not pass upon, or assume any responsibility for, the accuracy, completeness or fairness of the statements contained or incorporated by reference in the Registration Statement, the Pricing Disclosure Package or the Prospectus and has made no independent check or verification thereof (except to the limited extent referred to in Section 6(f)(iv) above).

 

(g)            You shall have received opinions and statements of Sidley Austin LLP, counsel for the Underwriters, dated the Closing Date, as to such matters as you may reasonably request; the Company shall have furnished Sidley Austin LLP with such documents as it reasonably requests for the purpose of enabling it to satisfy such request.  In giving its opinion, Sidley Austin LLP may rely on the opinions of Richard G. Beach, Esq., Associate General Counsel of Duke Energy Business Services LLC, the service company affiliate of the Company, and Taft Stettinius & Hollister LLP (or other appropriate counsel reasonably satisfactory to the Representatives) as to matters of Ohio law and Mr. Beach as to matters of Kentucky law.

 

(h)            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 Duke Energy Corporation on the New York Stock Exchange; or (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 services or securities settlement or clearance services in the United States; or (iii) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war, if the effect of any such event specified in this subsection (h) in your reasonable judgment makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Bonds on the terms and in the manner contemplated in the Pricing Disclosure Package and the Prospectus. In such event there shall be no liability on the part of any party to any other party except as otherwise provided in Section 7 hereof and except for the expenses to be borne by the Company as provided in Section 5(j) hereof.

 

(i)             You shall have received a certificate of the Chairman of the Board, the President, any Vice President, the Secretary or an Assistant Secretary and any financial or accounting officer of the Company, dated the Closing Date, in which such

 

15



 

officers, to the best of their knowledge after reasonable investigation, shall state that the representations and warranties of the Company in this Agreement are true and correct as of the Closing Date, that the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date, that the conditions specified in Section 6(c) and Section 6(d) have been satisfied, and that no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are threatened by the Commission.

 

(j)             At the time of the execution of this Agreement, you shall have received a letter dated such date, in form and substance satisfactory to you, from Deloitte & Touche LLP, the Company’s independent public accountants, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in or incorporated by reference in the Registration Statement, the Pricing Disclosure Package and the Prospectus, including specific references to inquiries regarding any increase in long-term debt (excluding current maturities), decrease in net current assets (defined as current assets less current liabilities) or stockholder’s equity, and decrease in operating revenues or net income for the period subsequent to the latest financial statements incorporated by reference in the Registration Statement, as compared with the corresponding period in the preceding year, as of a specified date not more than three business days prior to the date of this Agreement.

 

(k)            At the Closing Date, you shall have received from Deloitte & Touche LLP, a letter dated as of the Closing Date, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (j) of this Section 6, except that the specified date referred to shall be not more than three business days prior to the Closing Date.

 

(l)             An appropriate order from the PUCO necessary to permit the issue and sale of the Bonds as contemplated hereby and containing no material provision or condition which is unacceptable to the Company or the Underwriters shall be in effect and no proceedings to suspend the effectiveness of such order shall be pending or threatened.

 

The Company will furnish you with such conformed copies of such opinions, certificates, letters and documents as you reasonably request.

 

7.      Indemnification. (a)  The Company agrees to indemnify and hold harmless each Underwriter, their respective officers and directors, and each person, if any, who controls any Underwriter within the meaning of Section 15 of the 1933 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) including the Rule 430B Information, or the omission or alleged

 

16



 

omission therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading or arising out of any untrue statement or alleged untrue statement of a material fact contained in the Preliminary Prospectus, the Pricing Disclosure Package, the Prospectus (or any amendment or supplement thereto) or any Permitted Free Writing Prospectus, 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, unless such statement or omission or such alleged statement or omission was made in reliance upon and in conformity with written information furnished to the Company by the Representatives on behalf of the Underwriters expressly for use in the Registration Statement (or any amendment thereto), the Preliminary Prospectus, the Pricing Disclosure Package, the Prospectus (or any amendment or supplement thereto) or any Permitted Free Writing Prospectus;

 

(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) of this Section 7.

 

In no case shall the Company be liable under this indemnity agreement with respect to any claim made against any Underwriter or any such controlling person unless the Company shall be notified in writing of the nature of the claim within a reasonable time after the assertion thereof, but failure so to notify the Company shall not relieve it from any liability which it may have otherwise than under subsections 7(a) and 7(d). 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, or 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

 

17



 

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 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 1933 Act, in connection with the sale of the Bonds.

 

(b)            Each Underwriter severally agrees that it will indemnify and hold harmless the Company, its directors and each of the officers of the Company who signed the Registration Statement and each person, if any, who controls the Company within the meaning of Section 15 of the 1933 Act to the same extent as the indemnity contained in subsection (a) of this Section 7, but only with respect to statements or omissions made in the Registration Statement (or any amendment thereto), the Preliminary Prospectus, the Pricing Disclosure Package, the Prospectus (or any amendment or supplement thereto) or any Permitted Free Writing Prospectus, in reliance upon and in conformity with written information furnished to the Company by the Representatives on behalf of the Underwriters expressly for use in the Registration Statement (or any amendment thereto), the Preliminary Prospectus, the Pricing Disclosure Package, the Prospectus (or any amendment or supplement thereto) or any Permitted Free Writing Prospectus.  In case any action shall be brought against the Company or any person so indemnified based on the Registration Statement (or any amendment thereto), the Preliminary Prospectus, the Pricing Disclosure Package, the Prospectus (or any amendment or supplement thereto) or any Permitted Free Writing Prospectus, 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 7.

 

(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, and does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any indemnified party.

 

(d)            If the indemnification provided for in this Section 7 is unavailable to or insufficient to hold harmless an indemnified party in respect of any and all loss, liability, claim, damage and expense whatsoever (or actions in respect thereof) that would otherwise have been indemnified under the terms of such indemnity, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party as a result of such loss, liability, claim, damage or expense

 

18



 

(or actions in respect thereof) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Underwriters on the other from the offering of the Bonds. If however, the allocation provided by the immediately preceding sentence is not permitted by applicable law, or if the indemnified party failed to give the notice required above, then each indemnifying party shall contribute to such amount paid or payable by such indemnified party in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the Company on the one hand and the Underwriters on the other in connection with the statements or omissions which resulted in such loss, liability, claim, damage or expense (or actions in respect thereof), 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 shall be deemed to be in the same proportion as the total net proceeds from the offering (before deducting expenses) received by the Company bear to the total compensation received by the Underwriters in respect of the underwriting discount as set forth in the table on the cover page of the Prospectus. The relative fault 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 on the one hand or the Underwriters on the other and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and the Underwriters agree that it would not be just and equitable if contribution pursuant to this Section 7 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 which does not take account of the equitable considerations referred to above in this Section 7. The amount paid or payable by an indemnified party as a result of the losses, liabilities, claims, damages or expenses (or actions in respect thereof) referred to above in this Section 7 shall be deemed to include 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 7, no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Bonds underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which 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 1933 Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Underwriters’ obligations to contribute are several in proportion to their respective underwriting obligations and not joint.

 

8.      Default by One or More of the Underwriters.   (a)  If any Underwriter shall default in its obligation to purchase the principal amount of the 2015 Bonds or the 2023 Bonds, as applicable, which 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 2015 Bonds and/or 2023 Bonds, as applicable, on the terms contained herein. If within thirty-six hours after such

 

19



 

default by any Underwriter you do not arrange for the purchase of such Bonds, then the Company shall be entitled to a further period of thirty-six hours within which to procure another party or other parties satisfactory to you to purchase such Bonds on such terms. In the event that, within the respective prescribed periods, you notify the Company that you have so arranged for the purchase of such Bonds, or the Company notifies you that it has so arranged for the purchase of such Bonds, you or the Company shall have the right to postpone such 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, the Pricing Disclosure Package or the Prospectus, or in any other documents or arrangements, and the Company agrees to file promptly any amendments to the Registration Statement, the Pricing Disclosure Package or the Prospectus which may be required. The term “Underwriter” as used in this Agreement shall include any person substituted under this Section 8 with like effect as if such person had originally been a party to this Agreement with respect to such Bonds.

 

(b)            If, after giving effect to any arrangements for the purchase of the Bonds of a defaulting Underwriter or Underwriters by you or the Company as provided in subsection (a) above, the aggregate amount of such Bonds which remains unpurchased does not exceed one-tenth of the aggregate amount of all the Bonds to be purchased at such Closing Date, then the Company shall have the right to require each non-defaulting Underwriter to purchase the amount of Bonds which such Underwriter agreed to purchase hereunder at such Closing Date and, in addition, to require each non-defaulting Underwriter to purchase its pro rata share (based on the amounts of Bonds which such Underwriter agreed to purchase hereunder) of the Bonds 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 Bonds of a defaulting Underwriter or Underwriters by you or the Company as provided in subsection (a) above, the aggregate amount of such Bonds which remains unpurchased exceeds one-tenth of the aggregate amount of all the Bonds to be purchased at such Closing Date, or if the Company shall not exercise the right described in subsection (b) above to require non-defaulting Underwriters to purchase the Bonds 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 as provided in Section 5(j) hereof and the indemnity and contribution agreement in Section 7 hereof; but nothing herein shall relieve a defaulting Underwriter from liability for its default.

 

9.      Representations and Indemnities to Survive Delivery. The respective indemnities, agreements, representations, warranties and other statements of the Company or its officers and of the several Underwriters set forth in or made pursuant to this Agreement will remain in full force and effect, regardless of any investigation, or statement as to the results thereof, made by or on behalf of any Underwriter or the Company, or any of its officers or directors or any controlling person, and will survive delivery of and payment for the Bonds.

 

20



 

10.  Reliance on Your Acts . In all dealings hereunder, the Representatives shall act on behalf of each of the Underwriters, and the Company shall be entitled to act and rely upon any statement, request, notice or agreement on behalf of any Underwriter made or given by the Representatives.

 

11.  No Fiduciary Relationship .  The Company acknowledges and agrees that (i) the purchase and sale of the Bonds pursuant to this Agreement is an arm’s-length commercial transaction between the Company on the one hand, and the Underwriters on the other hand, (ii) in connection with the offering contemplated hereby and the process leading to such transaction, each Underwriter is and has been acting solely as a principal and is not the agent or fiduciary of the Company or its shareholders, creditors, employees, or any other party, (iii) no Underwriter has assumed or will assume an advisory or fiduciary responsibility in favor of the Company with respect to the offering contemplated hereby or the process leading thereto (irrespective of whether such Underwriter has advised or is currently advising the Company on other matters) and no Underwriter has any obligation to the Company with respect to the offering contemplated hereby except the obligations expressly set forth in this Agreement, (iv) the Underwriters and their respective affiliates may be engaged in a broad range of transactions that involve interests that differ from those of the Company, and (v) the Underwriters have not provided any legal, accounting, regulatory or tax advice with respect to the transaction contemplated hereby and the Company has consulted its own legal, accounting, regulatory and tax advisors to the extent it deemed appropriate.

 

12.  Notices. All communications hereunder will be in writing and, if sent to the Underwriters, will be mailed or telecopied and confirmed to Barclays Capital Inc., 745 Seventh Avenue, New York, New York  10019, Attention: Syndicate Registration (Fax no.: (646) 834-8133); RBS Securities Inc., 600 Washington Boulevard, Stamford, CT 06901, Attention: Debt Capital Markets Syndicate (Fax no.: (203) 873-4534); UBS Securities LLC, 677 Washington Blvd, Stamford, CT, 06901, Attention: Fixed Income Syndicate (Fax no.: 203-719-0495); or, if sent to the Company, will be mailed or telecopied and confirmed to it at 550 S. Tryon Street, Charlotte, North Carolina 28202 (Fax no.: (980) 373-8640), attention of Treasurer.  Any such communications shall take effect upon receipt thereof.

 

13.  Business Day. As used herein, the term “business day” shall mean any day when the Commission’s office in Washington, D.C. is open for business.

 

14.  Successors. This Agreement shall inure to the benefit of and be binding upon the Underwriters and the Company and their respective successors.  Nothing expressed or mentioned in this Agreement is intended or shall be construed to give any person, firm or corporation, other than the parties hereto and their respective successors and the controlling persons, officers and directors referred to in Section 7 and their respective successors, heirs and legal representatives, any legal or equitable right, remedy or claim under or in respect of this Agreement or any provision herein contained; this Agreement and all conditions and provisions hereof being intended to be and being for the sole and exclusive benefit of the parties hereto and their respective successors and said controlling persons, officers and directors and their respective successors, heirs and legal representatives, and for the benefit of no other person, firm or corporation. No purchaser of Bonds from any Underwriter shall be deemed to be a successor or assign by reason merely of such purchase.

 

21



 

15.  Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed to be an original, but all of which together shall constitute one and the same instrument.

 

16.  Applicable Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York.

 

22



 

If the foregoing is in accordance with your understanding, kindly sign and return to us two counterparts hereof, and upon confirmation and acceptance by the Underwriters, this letter and such confirmation and acceptance will become a binding agreement between the Company, on the one hand, and each of the Underwriters, on the other hand, in accordance with its terms.

 

 

 

Very truly yours,

 

 

 

DUKE ENERGY OHIO, INC.

 

 

 

 

 

By:

/s/ W. Bryan Buckler

 

 

Name: W. Bryan Buckler

 

 

Title: Assistant Treasurer

 

The foregoing Underwriting Agreement is hereby
confirmed and accepted as of the date first above written:

 

 

BARCLAYS CAPITAL INC. 

 

RBS SECURITIES INC.

 

 

 

 

 

 

/s/ Robert A. Stowe

 

By:  

/s/ Okwudiri Onyedum

Name: Robert A. Stowe

 

 

Name: Okwudiri Onyedum

Title: Managing Director

 

 

Title: Managing Director

 

 

 

 

 

 

 

 

UBS SECURITIES LLC

 

 

 

 

 

 

 

 

/s/ Christopher Forshner

 

 

Name:

Christopher Forshner

 

 

Title:

Managing Director

 

 

 

UBS Securities LLC

 

 

 

 

 

 

 

 

 

 

/s/ Chelseay Boulos

 

 

Name:

Chelseay Boulos

 

 

Title:

Associate Director

 

 

 

UBS Securities, LLC

 

 

 

For themselves and as Representatives of the several Underwriters named on Schedule A hereto.

 

23



 

SCHEDULE A

 

Underwriter

 

Principal Amount
of 2015 Bonds

 

Principal Amount
of 2023 Bonds

 

 

 

 

 

 

 

 

 

Barclays Capital Inc.

 

$

45,000,000

 

$

90,000,000

 

RBS Securities Inc.

 

45,000,000

 

90,000,000

 

UBS Securities LLC

 

45,000,000

 

90,000,000

 

Credit Agricole Securities (USA) Inc.

 

7,500,000

 

15,000,000

 

Fifth Third Securities, Inc.

 

7,500,000

 

15,000,000

 

Total

 

$

150,000,000

 

$

300,000,000

 

 

A-1



 

SCHEDULE B

 

PRICING DISCLOSURE PACKAGE

 

Item

 

1)            Base Prospectus

2)            Preliminary Prospectus Supplement dated September 3, 2013

3)            Permitted Free Writing Prospectuses

a)      Pricing Term Sheet attached as Schedule C hereto

 

B-1



 

SCHEDULE C

 

Filed pursuant to Rule 433

September 3, 2013

 

Relating to

Preliminary Prospectus Supplement dated September 3, 2013 to

Prospectus dated September 29, 2010

Registration Statement No. 333-169633-01

 

Duke Energy Ohio, Inc.
$150,000,000 First Mortgage Bonds,

Floating Rate Series, Due March 6, 2015

$300,000,000 First Mortgage Bonds,

3.80% Series, Due September 1, 2023

 

Pricing Term Sheet

 

Issuer:

 

Duke Energy Ohio, Inc.

 

 

 

 

 

 

 

Settlement Date:

 

September 6, 2013 (T+3)

 

 

 

 

 

 

 

Security Description:

 

First Mortgage Bonds, Floating Rate Series, Due March 6, 2015 (the “2015 Mortgage Bonds”)

 

First Mortgage Bonds, 3.80% Series, Due September 1, 2023 (the “2023 Mortgage Bonds”)

 

 

 

 

 

Principal Amount:

 

$150,000,000

 

$300,000,000

 

 

 

 

 

Interest Payment Dates:

 

March 6, June 6, September 6 and December 6 of each year, beginning on December 6, 2013

 

March 1 and September 1 of each year, beginning on March 1, 2014

 

 

 

 

 

Maturity Date:

 

March 6, 2015

 

September 1, 2023

 

 

 

 

 

Benchmark Treasury:

 

N/A

 

2.50% due August 15, 2023

 

 

 

 

 

Benchmark Treasury Yield:

 

N/A

 

2.854%

 

 

 

 

 

Spread to Benchmark Treasury:

 

N/A

 

+ 95 bp

 

 

 

 

 

Yield to Maturity:

 

N/A

 

3.804%

 

C-1



 

Coupon:

 

Floating Rate — reset quarterly based on three-month LIBOR plus 0.14%

 

3.80%

 

 

 

 

 

Price to Public:

 

100.00% per 2015 Mortgage Bond, plus accrued interest, if any, from September 6, 2013

 

99.967% per 2023 Mortgage Bond, plus accrued interest, if any, from September 6, 2013

 

 

 

 

 

Redemption Provisions:

 

The issuer will not redeem the 2015 Mortgage Bonds prior to maturity.

 

At any time before June 1, 2023, the 2023 Mortgage Bonds will be redeemable in whole or in part, at the issuer’s option at any time, at a redemption price equal to the greater of (i) 100% of the principal amount of the 2023 Mortgage Bonds to be redeemed and (ii) the sum of the present values of the remaining scheduled payments of principal and interest thereon (exclusive of interest accrued to the date of redemption) discounted to the redemption date on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the treasury rate plus 15 basis points, plus in each case accrued and unpaid interest to the date of redemption.

 

At any time on or after June 1, 2023, the 2023 Mortgage Bonds will be redeemable in whole or in part, at the issuer’s option at any time, at a redemption price equal to 100% of the principal amount of the 2023 Mortgage Bonds to be redeemed plus accrued and unpaid interest to the date of redemption.

 

C-2



 

CUSIP / ISIN:

 

26442E AC4 / US26442EAC49

26442E AD2 / US26442EAD22

 

 

 

 

Issuances of Additional Securities under the Mortgage:

 

As of September 3, 2013, after giving effect to the issuance of the mortgage bonds offered hereby and based upon the net book value of the assets subject to the lien of the mortgage, the issuer can issue additional securities under the mortgage with an aggregate principal amount of approximately $400 million.

 

 

 

Joint Book-Running Managers:

 

Barclays Capital Inc.

RBS Securities Inc.

UBS Securities LLC

 

 

 

 

 

Co-Managers:

 

Credit Agricole Securities (USA) Inc.

Fifth Third Securities, Inc.

 

 

The issuer has filed a registration statement (including a prospectus) with the SEC for the offering to which this communication relates.  Before you invest, you should read the prospectus in that registration statement and other documents the issuer has filed with the SEC for more complete information about the issuer and this offering.  You may get these documents for free by visiting EDGAR on the SEC Web site at www.sec.gov.  Alternatively, the issuer, any underwriter or any dealer participating in the offering will arrange to send you the prospectus if you request it by calling Barclays Capital Inc. toll-free at 1-888-603-5847, RBS Securities Inc. toll-free at (866) 884-2071 or UBS Securities LLC toll-free at 1-877-827-6444 ext. 5613884.

 

C-3