As filed with the Securities and Exchange Commission on April 4, 2011
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form S-3
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
Duke Energy Corporation
( Exact name of Registrant as Specified in Its Charter )
Delaware | 20-2777218 | |
(State or other jurisdiction of incorporation or organization) |
(I.R.S. Employer Identification Number) |
526 South Church Street
Charlotte, North Carolina 28202
(704) 5946200
(Address, Including Zip Code, And Telephone Number, Including Area Code, of Registrants Principal Executive Offices )
Lynn J. Good
Group Executive and Chief Financial Officer
Duke Energy Corporation
526 South Church Street
Charlotte, North Carolina 28202
(704) 5946200
( Name, Address Including Zip Code, And Telephone Number, Including Area Code, of Agent For Service )
Copies To:
Robert T. Lucas III, Esq.
Deputy General Counsel and Assistant Secretary
Duke Energy Corporation
526 South Church Street
Charlotte, North Carolina 28202
(704) 594-6200
Approximate date of commencement of proposed sale to the public: From time to time after this Registration Statement becomes effective as determined by market conditions.
If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. ¨
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, check the following box: x
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ¨
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities act registration statement number of the earlier effective registration statement for the same offering. ¨
If this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. x
If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities pursuant to Rule 413(b), check the following box. ¨
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of large accelerated filer, accelerated filer and smaller reporting company in Rule 12b-2 of the Exchange Act. (Check one):
Large accelerated filer | x | Accelerated filer | ¨ | |||
Non-accelerated filer | ¨ | Smaller reporting company | ¨ | |||
(Do not check if a smaller reporting company) |
CALCULATION OF REGISTRATION FEE
Title of Each Class of Securities to be Registered |
Amount to be Registered(1) |
Proposed Maximum Aggregate Price Per Unit |
Proposed Maximum
Aggregate Offering
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Amount of Registration Fee |
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Variable Denomination Floating Rate Demand Notes |
$1,000,000,000 | 100% | $1,000,000,000 | $58,050 | ||||
(1) | This registration statement covers all investments in the Notes up to $1,000,000,000, with fees based on the net aggregate principal amount of Notes outstanding from this offering not exceeding $500,000,000 at any particular time. |
Prospectus
DUKE ENERGY CORPORATION
VARIABLE DENOMINATION FLOATING RATE DEMAND NOTES
The Duke Energy PremierNotes SM (or, the Notes) are designed to provide you with a convenient means of investing your money directly with Duke Energy Corporation (or, Duke Energy). An investment in the Notes involves risks. See Risk Factors on page 4.
The Notes
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are in book-entry form and have no stated maturity. |
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are not rated by any rating agency and Duke Energy does not anticipate receiving a rating. |
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are issuable in any amount. |
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may be redeemed upon your demand as described in this prospectus. |
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are subject to redemption by Duke Energy at any time. |
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have a principal amount equal to the total amount of your investment, plus reinvested interest, after deducting redemptions and fees, if any. |
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earn a floating rate of interest to be determined at the direction of the Duke Energy PremierNotes Committee. The initial interest rate applicable to the Notes and all subsequent changes to the initial interest rate will be disclosed in prospectus supplements filed with the Securities and Exchange Commission (or, the SEC) and posted on the Duke Energy PremierNotes website (www.duke-energy.com/premiernotes). |
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earn interest which will accrue and be compounded daily and be automatically reinvested in Notes on the fifteenth day of each month. |
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will rank equally and ratably with all other unsecured and non-subordinated indebtedness of Duke Energy, of which approximately $3.3 billion was outstanding at December 31, 2010. |
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are structurally subordinated to the indebtedness and other liabilities of Duke Energys subsidiaries. As of December 31, 2010, there were $15.1 billion of indebtedness and other liabilities of Duke Energys subsidiaries. |
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are offered on a continuous basis. Notes registered on the registration statement of which this prospectus is a part represent the maximum aggregate principal amount of the Notes, equal to $1,000,000,000, which are expected to be offered for sale. The outstanding principal amount of the Notes will increase and decrease from time to time. The maximum net aggregate principal amount of the Notes that may be outstanding at any one time is $500,000,000. |
Please read this prospectus carefully and retain for future reference. Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined that this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
The date of this prospectus is April 4, 2011
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We have not authorized anyone to provide any information other than that contained in this prospectus or in any free writing prospectus prepared by or on behalf of us or to which we have referred you. We take no responsibility for, and can provide no assurance as to the reliability of, any other information that others may give you. We are not offering the Notes in any state where the offer is not permitted. We do not claim the accuracy of the information in this prospectus as of any date other than the date stated on the cover, regardless of the time of delivery of this prospectus or any sale of the Notes.
PremierNotes is a service mark of Duke Energy. Solely for convenience, this service mark is used in this prospectus without the SM symbol, but such references are not intended to indicate, in any way, that we will not assert, to the fullest extent under applicable law, our rights to this service mark. iMoneyNet Money Fund Averages TM is a trademark of iMoneyNet, Inc.
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An investment in the Notes involves risks. Prospective investors should carefully review the risk factors, as well as the other information, contained or incorporated by reference in this prospectus. You should consult your own financial and legal advisers as to the risks involved in an investment in the Notes and whether an investment is suitable for you.
All of the money you invest will be used to purchase Notes for you. All interest earned on your Notes will be reinvested monthly in additional Notes for your investment. All investments in the Notes are investments in unsecured debt obligations of Duke Energy Corporation. Only our assets are available to pay the principal and interest on the Notes. We do not maintain reserves for our obligations under the Notes and the Notes are not subject to any sinking fund. The Notes are unsecured and are not obligations of or guaranteed, endorsed or insured by any of our subsidiaries, The Northern Trust Company, which acts as the agent bank for the Notes, the Trustee or any other company. It is possible for you to lose some or all of your investment, including accrued interest, if we are unable to pay our debts, become bankrupt or seek creditor protection.
The Notes are not a money market fund, which is typically a diversified fund consisting of short-term debt securities of many issuers. The Notes are not subject to the requirements of the Investment Company Act of 1940 (including those regarding diversification and quality of investments for money market funds) or the Employee Retirement Income Security Act of 1974, as amended. The Notes are not equivalent to a deposit or other bank account and are not subject to the protection of Federal Deposit Insurance Corporation regulation or insurance or any other insurance. The Notes are not transferable, assignable or negotiable, they are not listed on any securities exchange, and there is no secondary market for the Notes. As a result, there is no public market valuation for the Notes.
The interest rate paid on investments in the Notes may not provide a basis for comparison with bank deposits or money market funds, which may use a different method of calculating yield, or other investments which pay a fixed yield for a stated period of time. The interest rate also does not necessarily bear any relation to the risks associated with or changes in our creditworthiness, credit rating or financial condition and may not compensate you for any increase in credit risk of investment in the Notes.
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Issuer |
Duke Energy Corporation. |
Title of Securities |
Variable Denomination Floating Rate Demand Notes, marketed and sold as Duke Energy PremierNotes. |
Amount |
Up to $1,000,000,000 aggregate offering price. The maximum net aggregate principal amount of the Notes that may be outstanding at any one time is $500,000,000. |
Investment Options |
Check Investment, see page 9. |
Automatic Investment, see page 10. |
Directed Investment, see page 11. |
Wire Transfer Investment, see page 12. |
Automatic Social Security Investment, see page 12. |
Duke Energy Employee Investment, see page 13. |
Duke Energy Retiree Investment, see page 14. |
Redemption Options |
Check Redemption, see page 16. |
Written Redemption, see page 17. |
Bank Check Redemption, see page 17. |
Wire Transfer Redemption, see page 18. |
Directed Redemption, see page 20. |
Status |
The Notes are unsecured debt obligations of Duke Energy Corporation and rank equally and ratably with all of our other unsecured and non-subordinated debt. Only our assets are available to pay principal and interest on the Notes. Duke Energy Corporation is a holding company, and we operate our businesses through our subsidiaries. The Notes are not obligations of or guaranteed, endorsed or insured by our subsidiaries, The Northern Trust Company, which acts as the agent bank for the Notes, the Trustee or any other company. We do not maintain reserves for our obligations under the Notes, and the Notes are not subject to any sinking fund. |
The Notes are structurally subordinated to the indebtedness and other liabilities of our subsidiaries. As of December 31, 2010, the total indebtedness and other liabilities of our subsidiaries was $15.1 billion. |
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Maturity |
The Notes mature on demand. |
Interest |
The Notes will bear interest at a floating rate per annum to be determined at the direction of the Duke Energy PremierNotes Committee on a weekly basis to be effective on Monday of the week following such determination. Rates will be equal to the sum of the most recent seven-day average yield (non-compounded) for all taxable money funds as reported weekly in iMoneyNet Money Fund Averages TM and at least 1 / 4 of one percentage point. Rates may vary by an investors principal amount of Notes or other factors as determined at the direction of the Duke Energy PremierNotes Committee as provided for in the Duke Energy PremierNotes Plan. See page 7. |
Principal |
The principal amount of your Notes will equal all of your investments and reinvested interest less redemptions and fees, if any. |
Fees |
Fees, if any, may be assessed for failure to maintain a minimum investment balance of $1,000, investments or redemptions returned due to insufficient funds, stop payment requests, wire redemptions, checks written for less than $250 and other special services, see page 22. |
Form of Notes |
The Notes will be issued in uncertificated form, see page 26. |
Maximum Total Investment |
The total maximum outstanding investment for any one investor shall not exceed $250,000 at any time. See page 26. |
Redemption at Option of Duke Energy |
The Notes may be redeemed by Duke Energy at its option, see page 27. |
Agent Bank |
The Northern Trust Company. |
Tax Status |
Interest credited to each of the Notes is reportable as taxable income for Federal tax purposes. Backup withholding may apply to certain persons, see page 22. |
Trustee |
The Bank of New York Mellon Trust Company, N.A. |
Broker-Dealer |
Georgeson Securities Corporation. |
Rating |
Duke Energy has not requested, and does not anticipate receiving, a rating for the Notes from any rating agency. |
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Duke Energy is one of the largest electric power companies in the United States, and supplies electric service to approximately 4 million U.S. customers. We have approximately 35,000 megawatts of electric generating capacity in the Midwest and the Carolinas, and natural gas transmission and distribution services in Ohio and Kentucky. In addition, we own, operate or have substantial interests in approximately 4,000 megawatts of electric generating capacity in Latin America. Headquartered in Charlotte, North Carolina, Duke Energy is a Fortune 500 company whose common stock is traded on the New York Stock Exchange under the symbol DUK.
Duke Energy Corporation is a holding company, and we operate our businesses through our subsidiaries. We operate in the following segments: U.S. Franchised Electric and Gas, Commercial Power and International Energy.
U.S. Franchised Electric and Gas generates, transmits, distributes and sells electricity in central and western North Carolina, western South Carolina, southwestern Ohio, central, north central and southern Indiana, and northern Kentucky. U.S. Franchised Electric and Gas also transports and sells natural gas in southwestern Ohio and northern Kentucky.
Commercial Power owns, operates and manages power plants and engages in the wholesale marketing and procurement of electric power, fuel and emission allowances related to these plants and other contractual positions. It also has a retail sales subsidiary serving retail electric customers in parts of Ohio. Commercial Power also develops, owns and operates electric generation projects in the United States, including renewable power projects.
International Energy owns, operates and manages power generation facilities and engages in sales and marketing of electric power and natural gas outside the United States. Its activities target power generation in Latin America.
We are a Delaware corporation. The address of our principal executive offices is 526 South Church Street, Charlotte, North Carolina 28202. Our telephone number is (704) 594-6200.
On January 10, 2011, we announced that we had entered into an agreement for a stock-for-stock merger with Progress Energy, Inc. In this transaction, which is subject to various conditions, Progress Energy, Inc. would become a subsidiary of Duke Energy Corporation. Accordingly, if this transaction is completed, the debt and other liabilities of Progress Energy, Inc. and its subsidiaries would be structurally senior to the Notes. Based on its annual report, at December 31, 2010, Progress Energy, Inc. and its subsidiaries had consolidated total indebtedness and other liabilities of approximately $22.9 billion.
The foregoing information about Duke Energy is only a general summary and is not intended to be comprehensive. For additional information about Duke Energy, you should refer to the information described under the caption Where You Can Find More Information.
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Unless the context otherwise indicates, the terms Duke Energy, we,
Investing in our securities involves risks. Before purchasing any Notes, you should carefully consider the risk factors that are incorporated by reference in this prospectus from the section captioned Risk Factors in our Form 10-K for the year ended December 31, 2010, together with all of the other information included in this prospectus and any other information that we have incorporated by reference, including filings made with the Securities and Exchange Commission after the date of this prospectus. Any of these risks, as well as other risks and uncertainties, could harm our financial condition, results of operations or cash flows. See below under Duke Energy PremierNotes for risks specifically relating to investment in the Notes.
We will use the net proceeds from the sale of the Notes for general corporate purposes, which may include repayment of debt, capital expenditures, investments in our regulated utility subsidiaries or our unregulated businesses, and working capital.
This prospectus and the information incorporated by reference in this prospectus include forward-looking statements within the meaning of Section 27A of the Securities Act of 1933 and Section 21E of the Securities Exchange Act of 1934. These forward-looking statements are based on our managements beliefs and assumptions and on information currently available to us. Forward-looking statements include information concerning our possible or assumed future results of operations and statements preceded by, followed by or that include the words may, will, could, projects, believes, expects, anticipates, intends, plans, estimates or similar expressions.
Forward-looking statements involve risks, uncertainties and assumptions. Actual results may differ materially from those expressed in these forward-looking statements. Factors that could cause actual results to differ materially from these forward-looking statements include, but are not limited to, those discussed elsewhere in this prospectus and the documents incorporated by reference in this prospectus. You should not put undue reliance on any forward-looking statements. We do not have any intention or obligation to update forward-looking statements after we distribute this prospectus.
Key risk factors to consider before investing include:
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An investment in the Notes does not create a bank account or depositor relationship between you and Duke Energy or The Northern Trust Company, as the agent bank. |
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The Notes are not equivalent to a deposit or other bank account and are not subject to the protection of Federal Deposit Insurance Corporation (FDIC) regulation or insurance or any other insurance. |
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All of the money you invest will be used to purchase Notes for you. All interest earned on your Notes will be reinvested monthly in additional Notes for your investment. The Notes are not a money market fund, which is typically a diversified fund consisting of short-term debt of many issuers. The Notes are not subject to regulation under the Investment Company Act of 1940, as amended. Consequently, you will not have the benefit of federal laws and regulations designed to help maintain liquidity and a stable share price and set standards for credit quality, diversification and for maturity of individual securities and the overall portfolio. |
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The Notes are not subject to the requirements of the Employee Retirement Income Security Act of 1974, as amended. |
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The Notes are not a brokerage account with Georgeson Securities Corporation or any other broker-dealer and are not protected by the Securities Investor Protection Corporation under the Securities Investor Protection Act of 1970. |
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Duke Energy has not requested, and does not anticipate receiving, a rating for the Notes from any rating agency. |
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The interest rate paid on investments in the Notes may not provide a basis for comparison with bank deposits or money market funds, which may use a different method of calculating yield, or other investments which pay a fixed yield for a stated period of time. The interest rate also does not necessarily bear any relation to the risks associated with or changes in our creditworthiness, credit rating or financial condition and may not compensate you for any increase in credit risk of investment in Notes. |
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Although you may redeem your investment in the Notes at any time in whole or in part, in the manner explained in this prospectus, you are not able to transfer your investment in the Notes to someone else. The Notes are not listed on any securities exchange, and no secondary market for the Notes currently exists nor will one develop in the future. Consequently, there is no public market valuation of the Notes to assist you in evaluating the Notes or the yield earned. |
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The Notes are unsecured debt obligations of Duke Energy Corporation. Only the assets of Duke Energy Corporation are available to pay the principal and interest on the Notes. |
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Duke Energy Corporation is a holding company, and we operate our businesses through our subsidiaries. Thus, our ability to meet our obligations under the Notes is dependent on the earnings and cash flows of those subsidiaries and the ability of those subsidiaries to pay dividends or to advance or repay funds to Duke Energy. In addition, the rights that Duke Energy and its creditors would have to participate in the assets of any such subsidiary upon the subsidiarys liquidation or recapitalization will be subject to the prior claims of the subsidiarys creditors. Certain subsidiaries of Duke Energy have incurred substantial amounts of debt in the operation and expansion of their businesses, and Duke Energy anticipates that certain of its subsidiaries will do so in the future. |
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Holders of Notes will generally have a junior position to claims of creditors of our subsidiaries, including trade creditors, debt holders, secured creditors, taxing authorities, guarantee holders and any holders of preferred stock. In addition to trade debt, certain of our operating subsidiaries have ongoing corporate debt programs used to finance their business activities. As of December 31, 2010, on a consolidated basis (including securities due within one year), we had approximately $18.4 billion of outstanding debt, of which approximately $15.1 billion was subsidiary debt. Approximately $2.0 billion of such subsidiary debt was guaranteed by Duke Energy as of December 31, 2010. |
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The Notes are not guaranteed, endorsed or insured by any of our subsidiaries or any financial institution or government entity. Duke Energy does not maintain reserves for its obligations under the Notes. There is a risk that Duke Energy will be unable to meet interest payments or repay principal on the Notes. You may lose all or part of your investment, including accrued interest, if Duke Energy is unable to pay its debts, enters bankruptcy or seeks protection from its creditors. |
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You will not be able to exchange your Notes for any other securities of Duke Energy. |
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Other risk factors we list in our annual reports on Form 10-K, quarterly reports on Form 10-Q and other reports that are incorporated by reference into this prospectus. |
General
The following statements about investing in the Notes summarize the Duke Energy PremierNotes Plan, a copy of which is filed as an exhibit to the registration statement of which this prospectus is a part. If this summary differs in any way from the statements in the Plan, you should rely on the Plan. You may request a copy of the Plan by downloading a copy on the website at www.duke-energy.com/premiernotes, calling us at 800-659-DUKE (3853), or writing our Investor Relations Department at P.O. Box 1005, Charlotte, North Carolina 28201-1005, Attention: Duke Energy PremierNotes. All of the money you invest will be used to purchase Notes for you. Your investments in the Notes and interest thereon will be recorded on a register maintained by The Northern Trust Company, the agent bank. The principal amount of your Notes will be equal to all of your investments in the Notes, plus reinvested interest, less redemptions and fees, if any. Accrued interest is available to you for redemption as principal when it is reinvested on the 15th day of each month. Investors will receive quarterly statements showing a summary of all transactions occurring during the prior quarter, including investments, redemptions, interest earned and any fees or charges. In addition, a monthly statement will be mailed with respect to any month during which an electronic transaction, whether an investment or redemption, occurs containing a summary of the electronic transactions during the month. Investors may also call toll-free at 800-659-DUKE (3853) 8:30 a.m. to 5:00 p.m. Eastern time, Monday through Friday, to obtain current information about their investment in the Notes.
Eligible Investors
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To be eligible to invest in the Notes, you must be: |
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a citizen of the United States, or |
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a corporation or, except as provided in applicable United States Treasury regulations, a partnership, incorporated or established in or under the laws of any of the United States, or |
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a trust or estate that is treated as a United States person under Section 7701 of the Internal Revenue Code, as amended. |
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You must provide a valid social security number or U.S. federal tax identification number. |
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You may invest individually or jointly with another eligible person. |
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You may invest by naming yourself as custodian for your minor children under the Uniform Transfers to Minors Act of the state in which you reside or under any other applicable law. |
Interest Rate
The Notes will bear interest at a floating rate per annum to be determined at the direction of the Duke Energy PremierNotes Committee on a weekly basis to be effective on Monday of the week following such determination. Rates will be equal to the sum of the most recent seven-day average yield (non-compounded) for all taxable money funds as reported weekly in iMoneyNet Money Fund Averages TM and at least 1 / 4 of one percentage point. Rates may vary by an investors principal amount of Notes or other factors as determined at the direction of the Duke Energy PremierNotes Committee as provided for in the Duke Energy PremierNotes Plan.
The interest rate we pay on the Notes for any particular period does not indicate or represent the rates we will pay in the future. The interest rate paid on investments in the Notes may not provide a basis for comparison with bank deposits or money market funds, which may use a different method of calculating yield or other investments which pay a fixed yield for a stated period of time. The interest rate does not necessarily bear any relation to the risks associated with or changes in our creditworthiness, credit rating or financial condition. Interest on the Notes will accrue daily and will be compounded daily, based on a 365/366-day year. Accrued interest will be automatically reinvested in the Notes on the fifteenth day of each month.
For information on the current interest rate being paid on the Notes, call toll-free 800-659-DUKE (3853) or access the Duke Energy PremierNotes website at www.duke-energy.com/premiernotes. None of the information contained at any time on this website is incorporated by reference into this document.
How to Make an Investment
You may invest in the Notes by submitting a completed application, along with your initial investment as described below. You may receive a blank application form at any time, without charge, by:
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accessing our prospectus and application through our website at www.duke-energy.com/premiernotes; or |
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calling 800-659-DUKE (3853) from 8:30 a.m. to 5:00 p.m. Eastern time Monday through Friday and requesting an enrollment kit. |
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All investors, other than Duke Energy employees and retirees, must make their initial investment in the Notes by the Check Investment option described in the Primary Investment Options section below. If you are a Duke Energy employee, you may make an initial investment in the Notes by the Duke Energy Employee Investment option (described below in the Other Investment Options section) or by the Check Investment option. If you are a Duke Energy retiree, you may make an initial investment in the Notes by the Duke Energy Retiree Investment option (described below in the Other Investment Options section) or by the Check Investment option.
The minimum initial investment is $1,000 for all investors, other than Duke Energy employees or retirees who elect to begin their investment through the Duke Energy Employee Investment option or the Duke Energy Retiree Investment option. If you are a Duke Energy employee or retiree investing through the Duke Energy Employee or Duke Energy Retiree Investment option, then the initial investment may be no less than $100 each month until the minimum required balance of $1,000 is attained.
All investors may make additional investments by any of the investment options described in Primary Investment Options below. To avoid low-balance fees, you must maintain a minimum $1,000 balance in the Notes. We may redeem Notes held by any Investor whose investment falls below $1,000. See Description of the Notes for more information on this optional redemption. The total maximum investment for any one investor may not exceed $250,000 at any point in time. See Maximum Total Investment for more information on investment limits.
All investments must be made in U.S. dollars. You may contact us as follows to obtain further information on how to invest or make changes to your current investment in the Notes:
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online at www.duke-energy.com/premiernotes; or |
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by telephone at 800-659-DUKE (3853) from 8:30 a.m. to 5:00 p.m. Eastern time Monday through Friday; or |
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by mail at Duke Energy PremierNotes, P.O. Box 75708, Chicago, Illinois 60675-5708. |
To help fight the funding of terrorism and money-laundering activities, the U.S. government has passed the USA PATRIOT ACT, which requires banks, including our processing agent bank, to obtain, verify, record and, in certain circumstances, report information that identifies persons who engage in certain transactions with or through a bank. This means that, in order for you to invest in the Notes, you must provide to us the name, residential or street address (no P.O. boxes), date of birth and Social Security Number or other tax identification number of ALL PERSONS listed on the investment.
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Primary Investment Options
Anyone who invests in the Notes may use the following investment options.
INVESTMENT OPTION |
PROCEDURES |
DATE INVESTMENT CREDITED |
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CHECK INVESTMENT (PERSONAL AND CORPORATE CHECKS) |
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The Check Investment option permits you to make investments in Notes by submitting a personal or corporate check.
This investment option is the only option for your initial investment in the Notes if you are not a Duke Energy employee or retiree.
Your initial investment may be in any amount of $1,000 or more. Additional investments may be in any amount of $50 or more. |
Your completed application should be mailed to Duke Energy PremierNotes, P.O. Box 75708, Chicago, Illinois 60675-5708 and accompanied by a check in an amount of $1,000 or more.
Additional investments in an amount of $50 or more must be accompanied by the investment slip provided with the investment statement, provided with investment confirmation notices, or included with the supply of redemption checks. Additional investments should be mailed to Duke Energy PremierNotes, P.O. Box 75974, Chicago, Illinois 60675-5974.
All checks should be made payable to Duke Energy PremierNotes in U.S. dollars and drawn on a U.S. bank. Only personal or corporate checks will be accepted for your initial investment. Starter checks, bank checks, credit card checks, cashier checks, travelers checks, money orders and third-party checks will not be accepted for your initial investment. |
Investments by check will be credited and interest will begin to accrue on the first business day after the agent bank receives a check in proper form if the check is received prior to 9:00 a.m. Eastern time and on the second business day following receipt if the check is received after 9:00 a.m. Eastern time. Checks are accepted subject to collection at full face value in U.S. funds.
Investments made by check will be available for redemption by the investor after seven business days from the date the check is credited to your investment or such shorter time as may be determined from time to time at the direction of the Duke Energy PremierNotes Committee as permitted under the Duke Energy PremierNotes Plan. |
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INVESTMENT OPTION |
PROCEDURES |
DATE INVESTMENT CREDITED |
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AUTOMATIC INVESTMENT | ||||
This investment option permits you to make additional investments in the Notes by automatic monthly electronic investment. Under this alternative, the agent bank will draw funds on a monthly basis from your pre-authorized bank account by an automated clearing house (ACH) transfer for the prescribed amount and will invest the proceeds in the Notes.
Investments may be made in any amount of $50 or more. |
To set up the Automatic Investment option for a new investment you must verify your ownership of the pre-authorized bank account by completing the appropriate sections of the application form; or for an existing investment, you must complete the Change form. The appropriate form must be mailed to Duke Energy PremierNotes, P.O Box 75708, Chicago, Illinois 60675-5708, which includes providing the agent bank with a voided blank check. |
Monthly electronic drafts will be presented for payment on the date you determine on your application form or Change form. Investments will be credited and interest will begin to accrue on the first business day following posting of such draft by the agent bank. All such investments are accepted subject to collection at full face value in U.S. funds. Investments made through the Automatic Investment option will be available for redemption by the investor after five business days from the day the investment is posted. | ||
You may make changes to the Automatic Investment option of an existing PremierNotes investment at any time by completing the Change form, submitted with the signature of each registered owner (including joint owners) of the Notes. A Medallion Signature Guarantee stamp may be required.
You may terminate investments by Automatic Investment of an existing PremierNotes investment at any time by providing notice in writing to the agent bank or by calling the agent bank toll free at 800-659-DUKE (3853) from 8:30 a.m. to 5:00 p.m. Eastern time Monday through Friday.
Notices to change or terminate investments by Automatic Investment will be effective as soon as practicable after they are received by the agent bank. |
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INVESTMENT OPTION |
PROCEDURES |
DATE INVESTMENT CREDITED |
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DIRECTED INVESTMENT | ||||
This investment option permits you to make additional discretionary electronic investments in the Notes. Under this alternative, the agent bank will, following your granted permission, draw funds on a non-recurring basis from your pre-authorized bank account by an ACH transfer for the prescribed amount and will invest the proceeds in the Notes.
Investments may be made in any amount of $50 or more. |
To set up the Directed Investment option for a new investment you must verify your ownership of the pre-authorized bank account by completing the appropriate sections of the application form; or for an existing investment, you must complete the Change form. The appropriate form, which includes providing the agent bank with a voided blank check, must be mailed to Duke Energy PremierNotes, P.O. Box 75708, Chicago, Illinois 60675-5708. You may then invest by Directed Investment by calling the agent bank at 800-659-DUKE (3853) from 8:30 a.m. to 5:00 p.m. Eastern time Monday through Friday to advise them of the intent to make an investment by electronic ACH. The agent banks records of the telephonic instructions are binding.
You may make changes to the Directed Investment option of an existing PremierNotes investment at any time by completing the Change form, submitted with the signature of each registered owner (including joint owners) of the Notes. A Medallion Signature Guarantee stamp may be required.
You may terminate the Directed Investment option for an existing PremierNotes investment at any time by providing notice in writing to the agent bank or by calling the agent bank toll free at 800-659-DUKE (3853) from 8:30 a.m. to 5:00 p.m. Eastern time Monday through Friday. |
Investments will be credited and interest will begin to accrue on the first business day following posting of such draft by the agent bank. All such investments are accepted subject to collection at full face value in U.S. funds. Investments made through the Directed Investment option will be available for redemption by the investor after five business days from the day the investment is posted. | ||
Notices to change investment information will be effective as soon as practicable after they are received by the agent bank. |
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Other Investment Options
Only current Duke Energy employees or retirees may use the following investment options. These investment options may be used to make the initial investment in the Notes, as well as additional investments.
INVESTMENT OPTION |
PROCEDURES |
DATE INVESTMENT CREDITED |
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DUKE ENERGY EMPLOYEE INVESTMENT | ||||
You may use this investment option if you are a current employee of Duke Energy Corporation or one of its U.S. subsidiaries, to the extent you are currently paid through a Duke Energy payroll system.
If you invest through Duke Energy Employee Investment, you may invest through only one PremierNotes investment number. The minimum initial and monthly investment is $100 each month until the minimum required balance of $1,000 is attained. Thereafter, the $1,000 minimum balance must be maintained and additional investments may be in any amount of $50 or more.
Your initial and subsequent monthly investments may be made in Notes in one of two ways:
through a Duke Energy payroll directed investment from your Duke Energy paycheck or
through automatic monthly electronic investments using the Automatic Investment option described above. |
Your completed application should specify Duke Energy Employee Investment option and your preferred investment method.
For those choosing payroll directed investment, following receipt of your application, you will receive further instructions regarding the setup of your Duke Energy Employee Investment through the Employee Portal, My HR, My Pay page.
Employees choosing to make automatic monthly electronic investments should complete the Automatic Investment option portion of the application, and return the application to the agent bank together with a voided check as described in the application.
Payroll directed investments into an existing PremierNotes investment may be changed or terminated at any time through the Employee Portal, My HR, My Pay page.
Automatic monthly electronic investments may be changed at any time by submitting or completing a Change form, with the signature of each registered owner (including joint owners) of the Notes. A Medallion Signature Guarantee stamp may be required. Employees who selected this option may terminate the Duke Energy Employee Investment option for an existing PremierNotes investment at any time by providing notice in writing to the agent bank or by calling the agent bank toll free at 800-659-DUKE (3853) from 8:30 a.m. to 5:00 p.m. Eastern time Monday through Friday. |
Investments made by the Duke Energy Employee Investment option will be credited as of, and interest will begin to accrue on, the next business day following receipt of the funds by the agent bank. Investments made through the Duke Energy Employee Investment option will be available for redemption by the investor after five business days from the day the investment is posted. |
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INVESTMENT OPTION |
PROCEDURES |
DATE INVESTMENT CREDITED |
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DUKE ENERGY RETIREE INVESTMENT | ||||
You may use this investment option if you are a former employee of Duke Energy Corporation or any of its U.S. subsidiaries, to the extent you are eligible to receive company provided benefits.
The Duke Energy Retiree Investment option allows retirees of Duke Energy to make automatic monthly electronic investments using the Automatic Investment option described above, but without the requirement that the retiree already have a minimum $1,000 investment in the Notes. The minimum initial and monthly investment for retirees is $100 each month until the minimum required balance of $1,000 is attained. Thereafter, the $1,000 minimum balance must be maintained and additional investments may be in any amount of $50 or more. |
Your completed application should specify Duke Energy Retiree Investment. You will also need to complete the Automatic Investment option portion of the application, and return the application to the agent bank together with a voided check as described in the application.
The Duke Energy Retiree Investment option of an existing PremierNotes investment may be changed at any time by submitting a completed Change form, with the signature of each registered owner (including joint owners) of the Notes. A Medallion Signature Guarantee stamp may be required.
You may terminate investments by the Duke Energy Retiree Investment option of an existing PremierNotes investment at any time by providing notice in writing to the agent bank or by calling the agent bank toll free at 800-659-DUKE (3853) from 8:30 a.m. to 5:00 p.m. Eastern time Monday through Friday. |
Investments by the Duke Energy Retiree Investment option will be credited as of and interest will begin to accrue on the next business day following receipt of the funds. Investments made through the Duke Energy Retiree Investment option will be available for redemption by the investor after five business days from the day the investment is posted. |
How to Redeem
Generally, you may redeem all or any part of your Notes without charges or penalties as more fully described below. However, you may redeem your entire investment in the Notes only by use of the Written or Bank Check Redemption options as described in this prospectus. In such event, the principal amount of your Notes, together with accrued and unpaid interest, will be redeemed and the proceeds distributed in accordance with the procedures set forth below under Written or Bank Check Redemption. Requests for redemption should be directed to Duke Energy PremierNotes, P.O. Box 75708, Chicago, Illinois 60675-5708 or by calling 800-659-DUKE (3853).
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If the amount to be redeemed represents:
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an investment made by the Check Investment option, the redemption request will not be honored until after seven business days from the date the check is credited to your investment or such shorter time as may be determined from time to time at the direction of the Duke Energy PremierNotes Committee as permitted under the Duke Energy PremierNotes Plan; |
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an investment made by the Automatic Investment or Directed Investment option from a bank account, the redemption request will not be honored until after five business days from the posting of such investment by the agent bank; |
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an investment made by the Wire Transfer Investment option, the redemption request will not be honored until the next business day following receipt by the agent bank of wired funds received after 2:00 p.m. Eastern time; |
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an investment made by the Automatic Social Security Investment option, the redemption request will not be honored until the first business day following the posting by the agent bank of such investment, which shall be made by ACH; |
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an investment made by the Duke Energy Employee Investment option or by the Duke Energy Retiree Investment option, no redemption request will be honored until after five business days from the posting of such investment by the agent bank, provided that no redemption request will be honored other than a request to redeem the entire outstanding investment in the Notes, unless the outstanding investment amount after such redemption would be $1,000 or more. |
If you need more immediate access to your funds you may wish to avoid delays by investing in the Notes through the Wire Transfer Investment option.
If you are redeeming your entire investment in the Notes you will receive all accrued and unpaid interest less applicable fees.
A check will be sent to only the registered owners of the Notes at the registered address. You may contact us as follows to obtain further information on redeeming investments in the Notes:
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online at www.duke-energy.com/premiernotes; or |
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by telephone at 800-659-DUKE (3853) from 8:30 a.m. to 5:00 p.m. Eastern time Monday through Friday |
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REDEMPTION OPTION |
PROCEDURES |
DATE OF REDEMPTION/ DATE INTEREST CEASES TO ACCRUE |
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WRITTEN REDEMPTION | ||||
You may redeem investments in the Notes at any time by requesting redemption in a letter sent by first-class mail to: Duke Energy PremierNotes, P.O. Box 75708, Chicago, Illinois 60675-5708. If you own the Notes jointly with another person, all owners must sign the redemption request. Redemptions will be paid to you by check, in the amount of $250 or more, or the investment balance of your Notes, whichever is less. |
Written Redemption is automatically available to you and does not require any selection on the application.
We will send the redemption payments only to the registered owner(s) of the Notes at the registered address. |
The agent bank will mail you a check representing the redemption proceeds no later than the next business day following receipt of the redemption request in proper form, and interest will accrue to, but not including, such next business day. | ||
BANK CHECK REDEMPTION | ||||
By use of the Bank Check Redemption option, you authorize the agent bank to act on telephone instructions to have redemption proceeds paid by a check payable to the registered owner(s) and sent to the registered address on the investment. The agent banks records of the telephonic instructions are binding. Neither the agent bank nor we will be responsible for the authenticity of telephonic instructions.
Redemptions will be paid to you by check, in the amount of $250 or more, or the investment balance of your Notes, whichever is less. |
Bank Check Redemption is automatically available to you and does not require any selection on the application.
Requests for Bank Check Redemption may be made by calling 800-659-DUKE (3853) from 8:30 a.m. to 5:00 p.m. Eastern time Monday through Friday. Verification of information including, but not limited to, the investment number, additional investment information and the name of the registered owner(s) submitting the Bank Check Redemption request must be provided at the time of the request.
We will send the redemption payments only to the registered owner(s) of the Notes at the registered address. |
A bank check representing the redemption proceeds will be mailed to the registered address, by the end of the next business day following receipt of the redemption request and interest will accrue to, but not including, the day of your request. |
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REDEMPTION OPTION |
PROCEDURES |
DATE OF REDEMPTION/ DATE INTEREST CEASES TO ACCRUE |
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WIRE TRANSFER REDEMPTION | ||||
By use of the Wire Transfer Redemption option, you authorize the agent bank to act on telephone instructions to have redemption proceeds paid by wire transfer to a pre-authorized bank account. The agent banks records of the telephonic instructions are binding. Neither the agent bank nor we will be responsible for the authenticity of telephonic instructions.
A service fee will be debited directly from your investment balance in the Notes for any redemption proceeds paid by wire transfer. The fee schedule can be found in the Fees section of this prospectus.
The minimum amount that may be redeemed by Wire Transfer Redemption is $1,000. |
You must select the Wire Transfer Redemption option on the application if you wish to make any Wire Transfer Redemptions.
To set up the Wire Transfer Redemption option for a new investment, you must verify your ownership of the pre-authorized bank account by completing the appropriate sections of the application form; or for an existing investment, you must complete the Change form. The appropriate form, along with a voided blank check, must be mailed to Duke Energy PremierNotes, P.O. Box 75708, Chicago, Illinois 60675-5708.
You may make redemptions by Wire Transfer Redemption by calling the agent bank toll free at 800-659-DUKE (3853) from 8:30 a.m. to 5:00 p.m. Eastern time Monday through Friday. |
The day and time at which your wire transfer will be received at your bank will vary based on the time of day the complete Wire Transfer Redemption is received by the agent bank. Interest will accrue to, but not including, the day your request is received by the agent bank. | ||
Wire Transfer Redemption requests must be made by the owner(s) of the Notes investment and proceeds will only be sent to the pre-authorized bank account. Verification of information including, but not limited to, the investment number, additional investment information and the name of the registered owner(s) submitting the Wire Transfer Redemption request must be provided at the time of the request.
The agent bank will transmit Wire Transfer Redemption proceeds only to the U.S. bank account pre-authorized by you on the application. |
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REDEMPTION OPTION |
PROCEDURES |
DATE OF REDEMPTION/ DATE INTEREST CEASES TO ACCRUE |
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You may make changes to the Wire Transfer Redemption option of an existing PremierNotes investment at any time by submitting a completed Change form, with the signature of each registered owner (including joint owners) of the Notes. A Medallion Signature Guarantee stamp may be required.
You may terminate the Wire Transfer Redemption option for an existing PremierNotes investment at any time by providing notice in writing to the agent bank at Duke Energy PremierNotes, P.O. Box 75708, Chicago, Illinois 60675-5708.
Neither the agent bank, nor we, will be responsible for delays in the fund wiring system. If the pre-authorized bank is not a member of the Federal Reserve System, there may be a delay in crediting your funds to the pre-authorized bank account or, at our discretion, the request for Wire Transfer Redemption will not be completed and will instead be treated as a request for Bank Check Redemption. |
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REDEMPTION OPTION |
PROCEDURES |
DATE OF REDEMPTION/ DATE INTEREST CEASES TO ACCRUE |
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DIRECTED REDEMPTION | ||||
By use of the Directed Redemption option, you authorize the agent bank to act on telephone instructions to have Notes redeemed on a non-recurring basis with redemption proceeds paid by electronic ACH transfer to a pre-authorized bank account. The agent banks records of the telephonic instructions are binding. Neither the agent bank nor we will be responsible for the authenticity of telephonic instructions.
Directed Redemptions for less than $250 will be charged a fee. The fee schedule can be found in the Fees section of this prospectus. |
You must select the Directed Redemption option on the application if you wish to make any Directed Redemptions.
To set up the Directed Redemption option for a new investment you must verify your ownership of the pre-authorized bank account by completing the appropriate sections of the application form; or for an existing investment, you must complete the Change form. The appropriate form, along with a voided blank check must be mailed to Duke Energy PremierNotes, P.O. Box 75708, Chicago, Illinois 60675-5708. You may make redemptions by Directed Redemption by calling the agent bank toll free at 800-659-DUKE (3853) from 8:30 a.m. to 5:00 p.m. Eastern time Monday through Friday.
Directed Redemption requests must be made by the owner(s) of the Notes investment and proceeds will only be sent to the pre-authorized bank account. Verification of information including, but not limited to, the investment number, additional investment information and the name of the registered owner(s) submitting the Directed Redemption request must be provided at the time of the request.
The agent bank will transmit Directed Redemption proceeds only to the U.S. bank account pre-authorized by you on the application. |
Directed Redemptions will be processed on the first business day following the receipt of the complete Directed Redemption request by the agent bank for payment. The amount of the Note to be redeemed will continue to accrue interest to, but not including, the day your request is processed by the agent bank. |
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REDEMPTION OPTION |
PROCEDURES |
DATE OF REDEMPTION/ DATE INTEREST CEASES TO ACCRUE |
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You may make changes to the Directed Redemption option of an existing PremierNotes investment at any time by submitting a completed Change form, with the signature of each registered owner (including joint owners) of the Notes. A Medallion Signature Guarantee stamp may be required.
You may terminate the Directed Redemption option for an existing PremierNotes investment at any time by providing notice in writing to the agent bank at Duke Energy PremierNotes, P.O. Box 75708, Chicago, Illinois 60675-5708.
Neither the agent bank, nor we, will be responsible for delays in the ACH transfer system. |
As provided in the Duke Energy PremierNotes Plan, we have the right to redeem at any time the Notes of an investor if the investment balance is below the minimum amount or to the extent the investment balance exceeds the maximum amount as determined by the Duke Energy PremierNotes Committee. In such event, you will be notified if your Notes will be redeemed and you will be permitted 30 days within which to make such investments or make such redemptions, as the case may be, to restore the investment balance within the minimum and maximum amounts. In addition, we may also redeem, at any time at our option, the Notes of any investor who is not or is no longer eligible to invest in the Notes, who has abused or misused the investment or redemption provisions applicable to the Notes or whose investments are otherwise inconsistent with the objectives of the Duke Energy PremierNotes Plan, in each case as we determine in our sole judgment and discretion. In the event that we determine to redeem a particular investors Notes for any of the reasons specified in the next preceding sentence, we will notify the investor of our intention to redeem in full the Notes on the third business day following the date of our notice. Further, we may redeem the entire amount of, or any portion of, all of the outstanding Notes. Any such partial redemption of outstanding Notes will be effected by lot or pro rata or by any other method that is deemed fair and appropriate by the agent bank. We generally will give you 30-days prior written notice if the Notes are to be redeemed in whole or in part. In each of the redemption transactions described above, a redemption check will be sent to the investor in an amount equal to the principal amount of the redeemed Notes, including accrued and unpaid interest and less any applicable fees.
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Fees
There are no maintenance fees with respect to your investment in the Notes, nor are there charges for your redemption checks (both initial and additional) or for effecting any Check Redemptions. You may, however, be charged a fee by your commercial bank or financial institution if you make an investment or receive a redemption amount by wire transfer. You may also incur a charge in obtaining any applicable signature guarantee.
Subject to revision at the discretion of the Duke Energy PremierNotes Committee, the following fee schedule applies:
Insufficient funds: |
$20 | |
Stop payment requests: |
$15 | |
Wire redemptions: |
$15 | |
Redemptions for less than $250: |
$10 | |
Investment balance less than $1,000: |
$10/month |
As incurred, fees will be promptly debited directly from your investment balance as a partial redemption of your Notes.
Investor Statements
The agent bank will send a quarterly statement to you, showing a summary of all the transactions made in the Notes during the previous quarter, including the beginning investment balance, all investments and redemptions, all interest earned, as well as any relevant fees or charges. A monthly statement will be mailed to you for any month during which you make electronic investments or redemptions summarizing those electronic transactions. A copy of the Duke Energy PremierNotes redemption checks on which payment has been made will be included in the quarterly statements. This procedure is subject to change at the direction of the Duke Energy PremierNotes Committee in its discretion. You can obtain current information about the Notes by calling us toll-free at 800-659-DUKE (3853) from 8:30 a.m. to 5:00 p.m. Eastern time Monday through Friday, or by visiting our website at www.duke-energy.com/premiernotes.
You may also enroll to view your investment activity and other correspondence through the online investment management system. Many of the service options described in this prospectus are also available via this online tool. For additional information and to enroll for these online options, visit our website at www.duke-energy.com/premiernotes or call us at 800-659-DUKE (3853).
We will only furnish information to you by telephone if you have specified the name, address, Notes investment number, and additional investment information of the registered owner of the Notes.
Taxes
The following is a summary of the U.S. Federal income tax consequences to you if you invest in the Notes. The discussion addresses only the income tax consequences to you if you are an individual and are a
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citizen of the United States for Federal income tax purposes. You should consult your own tax adviser concerning the application of United States Federal income tax laws, as well as the laws of any state, local or foreign taxing jurisdictions, to your situation.
The Notes are not qualified under Section 401(a) of the Internal Revenue Code, as amended. All interest credited to your Notes in any taxable year is reportable by you as taxable income for Federal income tax purposes. Early in each year the agent bank will provide to you the full amount reportable as taxable income for the previous year. The agent bank also will file tax information returns as required by law. Backup withholding may apply to you if you fail to comply with applicable tax identification requirements. Interest credited to the Notes also may be subject to state and local income taxes.
Duke Energy PremierNotes Committee
The Duke Energy PremierNotes Committee has the full power and authority to, among other things:
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amend the Duke Energy PremierNotes Plan and the Notes offering to the extent described below under Termination, Suspension or Modification; |
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interpret the provisions of the Plan; |
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adopt rules and regulations in connection with administration of the Plan; |
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redeem the Notes in whole or in part at any time; |
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redeem any investments in the Notes of an investor who has abused or misused the investment or redemption provisions applicable to the Notes, whose investments are otherwise inconsistent with the objectives of the Duke Energy PremierNotes Plan or who is not eligible to invest in the Notes, in each case as determined by the Duke Energy PremierNotes Committee in its sole judgment and discretion; and |
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make certain determinations in accordance with the Duke Energy PremierNotes Plan, including setting the rates of interest to be paid on the Notes. |
The Duke Energy PremierNotes Committee (or, the Committee) shall consist of at least three persons designated from time to time by Duke Energy. Duke Energy has initially designated the Committee to consist of the Chief Financial Officer, the Treasurer, two Assistant Treasurers and an additional member of the Finance Group of Duke Energy. Our Chief Financial Officer may from time to time designate an alternate for each member, who shall have full power to act in the absence or inability to act of such member. As provided in the Duke Energy PremierNotes Plan, the Committee has delegated its authority to determine the interest rate on the Notes to the Treasurer of Duke Energy. The address of each member of the Duke Energy PremierNotes Committee is 550 South Tryon Street, Charlotte, North Carolina 28202. The members of the Duke Energy PremierNotes Committee receive no additional compensation for their Committee services.
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The members of the Committee may from time to time have potential conflicts of interest from the point of view of investors in the Notes. All members of the Committee to date have been, and are expected in the future to be, employees of Duke Energy or one of its subsidiaries. All of the money you invest will be invested in the Notes, which are securities of Duke Energy. The members of the Committee have a duty to act in Duke Energys best interest, and consequently may make decisions that investors in the Notes do not believe to be in their best interest. In addition, employees of Duke Energy and its subsidiaries, including members of the Committee, may from time to time invest in or redeem the Notes.
Under the Plan, no member of the Committee or a director, officer or employee of Duke Energy or any of its subsidiaries will be liable for any action or failure to act under or in connection with the Plan, except for his or her own bad faith. Duke Energy will indemnify and hold any such person harmless from all loss or expense that may be imposed upon or reasonably incurred by him or her in connection with or resulting from any claim, or proceeding, except a judgment in favor of Duke Energy based upon a finding of his or her bad faith.
The Northern Trust Company is the agent bank for the Notes. Northern Trusts services include:
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maintenance of records of investments in, and redemptions of, the Notes by investors; |
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receipt of investment and redemption requests; |
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receipt of funds being invested in Notes and disbursement of funds upon redemption of Notes; |
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sending notices of redemption upon a redemption at the option of Duke Energy; |
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transaction processing and accounting; |
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preparation of investment statements and other correspondence to investors; |
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investor servicing; |
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maintenance of records of the investment balance in the Notes, accrual of interest, and payment and reinvestment of interest; and |
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tax reporting and filing with the proper authorities. |
We pay the agent bank an administrative fee for these services.
The Notes are governed by an indenture, dated as of April 4, 2011, between us and The Bank of New York Mellon Trust Company, N.A., which acts as trustee. The trustee has two main roles. First, the trustee can enforce your rights against us if we default. There are some limitations on the extent to which the trustee acts on
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your behalf, described below under Events of Default and Notices. Second, the trustee may perform certain administrative duties for us.
The indenture and its associated documents contain the full legal text of the matters described in this section. The indenture is an exhibit to our registration statement of which this prospectus is a part. See Where You Can Find More Information for information on how to obtain a copy of the indenture.
This section summarizes the material terms of the Notes. Because this section is a summary, it does not describe every aspect of the Notes and is subject to and qualified in its entirety by reference to all provisions of the indenture, including definitions of certain terms used in the indenture. We describe the meaning for only the more important of those terms. Whenever we refer to defined terms of the indenture in this prospectus, such defined terms are incorporated by reference here.
General
The Notes will be issuable in any amount and will mature upon your demand. The Notes will be identical except for their issue date and principal amount. We may reject any offer to purchase Notes in whole or in part. All investments in the Notes are investments in our unsecured debt obligations and are not obligations of or guaranteed by our subsidiaries, the agent bank, the trustee or any other company. Duke Energy does not maintain reserves for its obligations under the Notes and the Notes are not subject to any sinking fund. The Notes are redeemable at your option in the manner described in this prospectus.
Following an initial investment, investors may make additional investments and redemptions from time to time as described in this prospectus. As a result, the outstanding principal amount of the Notes will increase and decrease from time to time. For purposes of determining the aggregate amount of registered but unissued notes under the registration statement relating to the Notes, each investment is an issuance of Notes, reducing the capacity of registered but unissued Notes by a corresponding amount. The daily amount and rate of redemptions are affected by many factors, including but not limited to the rates we offer on the Notes from time to time, the wide variety of alternative investment options in the market that are available to our investors and seasonal increases in redemptions and investments.
Although investors could seek to redeem a large dollar amount of Notes over a short period of time, we believe that we have sufficient capital resources available to timely fund redemptions of the Notes. Liquidity management is both a daily and long-term component of our treasury management strategy. In the event that we require funds beyond our ability to generate them internally, additional sources of funds are available to us. For more information, see the discussion of our capital resources and liquidity in our Form 10-K and 10-Q reports filed with the SEC that are incorporated by reference into this prospectus.
Duke Energy Corporation is a holding company, and we operate our businesses through our subsidiaries. The Notes are structurally subordinated to the indebtedness and other liabilities of our subsidiaries. This means that in liquidation the assets of our subsidiaries would be applied first to the repayment of indebtedness and other liabilities of our subsidiaries before they would be available to pay the indebtedness and liabilities of Duke Energy Corporation, including the Notes. As of December 31, 2010, there was $15.1 billion of indebtedness and other liabilities of our subsidiaries and $3.3 billion of additional indebtedness and other
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liabilities of Duke Energy Corporation. The indenture does not limit our ability to incur additional debt, including debt incurred by our subsidiaries. The indenture also does not restrict us from acquiring or combining with entities that have outstanding indebtedness, which entities may become subsidiaries of Duke Energy Corporation, such as the announced merger with Progress Energy, Inc.
The indenture does not limit the principal amount of the Notes or any of our other debt that may be issued.
The Notes will be issued in uncertificated form and you will not receive any certificate or other instrument evidencing our indebtedness. All funds you invest in the Notes, together with interest accrued thereon, and redemptions, if any, will be recorded on a register maintained by the agent bank.
The indenture provides that we, the trustee and the investors waive, 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 the indenture or the Notes.
Minimum Investment
Because of the relatively high cost of maintaining small investments, we reserve the right to redeem your investment if the investment balance is less than the minimum required investment balance of $1,000 for three consecutive months. If you are an employee or retiree, the minimum required initial investment is only $100 each month until the minimum required investment balance of $1,000 is attained. Thereafter, the $1,000 minimum investment balance must be maintained. If the minimum investment balance is not attained or maintained, we may redeem the principal amount of your Notes, together with accrued and unpaid interest, and mail the proceeds to your registered address. You will be notified if your Notes will be redeemed and you will be permitted 30 days within which to make additional investments to increase your investment balance to the applicable minimum required investment before your investment is redeemed. The minimum required investment balance is subject to change at the discretion of the Duke Energy PremierNotes Committee without prior notice to investors.
Maximum Outstanding Investment
The Duke Energy PremierNotes Committee has established a maximum outstanding investment for any one investor of $250,000. If the amount of your outstanding investment exceeds the maximum for three consecutive months, we may notify you in writing that we intend to redeem the amount of your investment in excess of $250,000. You will then have 30 days to redeem the excess portion of your investment. If you do not do so within a 30-day period, we may redeem the amount we have specified and mail a check for the proceeds to the registered holder of the Notes, less any tax withholding, if applicable, and any other fees discussed in this prospectus. Interest on the redeemed amount shall cease to accrue on and after the effective date of the redemption. The maximum outstanding investment in the Notes for any one investor is subject to change at the discretion of the Duke Energy PremierNotes Committee without prior notice to investors.
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We May Redeem the Notes at Our Option
We may also elect to redeem the entire amount of, or any portion of, the outstanding Notes. Any such partial redemption of outstanding Notes will be effected by lot or pro rata or by any other method that is deemed fair and appropriate by the agent bank. We generally will give you 30-days prior written notice if the Notes are to be redeemed in whole or in part. As discussed above, we may also redeem your Notes if your investment balance is below the minimum amount or exceeds the maximum amount as determined by the Duke Energy PremierNotes Committee.
In addition, as provided in the Duke Energy PremierNotes Plan, we may also redeem, at any time at our option, the Notes of any investor who is not or is no longer eligible to invest in the Notes, who has abused or misused the investment or redemption provisions applicable to the Notes or whose investments are otherwise inconsistent with the objectives of the Duke Energy PremierNotes Plan, in each case as we determine in our sole judgment and discretion. In the event that we determine to redeem a particular investors Notes for any of these reasons, we will notify the investor of our intention to redeem in full the Notes on the third business day following the date of our notice.
In each of the redemption transactions initiated by us, as described above, a redemption check will be sent to the investor in an amount equal to the principal amount of the redeemed Notes, including accrued and unpaid interest and less any applicable fees. Interest on the redeemed amount shall cease to accrue on and after the effective date of redemption.
The Trustee
The indenture contains certain limitations on the right of the trustee, as a creditor of ours, to obtain payment of claims in certain cases, or to realize on certain property received in respect of any such claim as security or otherwise. In addition, the trustee may be deemed to have a conflicting interest and may be required to resign as trustee if at the time of a default under the indenture it is a creditor of ours.
The Bank of New York Mellon Trust Company, N.A. is the trustee under the indenture. Duke Energy and certain of its affiliates maintain deposit accounts and banking relationships with The Bank of New York Mellon Trust Company, N.A. or its affiliates. The Bank of New York Mellon Trust Company, N.A. or its affiliates also serve as trustee or agent under other indentures and agreements pursuant to which securities of Duke Energy and of certain of its affiliates are outstanding.
Events of Default and Notices
The following events are defined in the indenture as events of default with respect to the Notes:
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failure to pay any or all the principal of or interest on any Note when due, provided that the failure to pay shall not be deemed to be an event of default under various circumstances, such as when the person demanding payment is not legally entitled to it or upon the occurrence of certain administrative errors; and |
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failure to perform any of our covenants in the indenture, which continues for 60 days after we are given written notice by either the trustee or at least a majority of the holders in principal amount of the Notes outstanding and affected thereby. |
If an event of default with respect to the outstanding Notes occurs and is continuing, either the trustee or the holders of at least a majority in principal amount of the outstanding Notes may declare the principal amount of all Notes to be due and payable immediately; provided, however, that under certain circumstances the holders of a majority in aggregate principal amount of outstanding Notes may rescind and annul such declaration and its consequences.
The indenture provides that the trustee, within 90 days after the occurrence of a default with respect to the Notes, shall give to the holders of the Notes notice of all uncured defaults known to it (the term default means the events specified above without grace periods), provided that, except in the case of default in the payment of principal of or interest, if any, on any Notes, the trustee shall be protected in withholding the notice if it in good faith determines that the withholding of the notice is in the interest of the holders of Notes.
We will be required to furnish annually to the trustee a statement by certain of our officers to the effect that to their knowledge we are not in default in the fulfillment of any of our obligations under the indenture or, if there has been a default in the fulfillment of any of our obligations, specifying each such default.
The holders of a majority in principal amount of the outstanding Notes will have the right, subject to certain limitations, to direct the time, method and place of conducting any proceeding for any remedy available to the trustee, or exercising any trust or power conferred on the trustee with respect to the Notes, and to waive certain defaults.
The indenture provides that in case an event of default occurs and is continuing, the trustee shall exercise such of its rights and powers under the indenture, and use the same degree of care and skill in their exercise, as a prudent man would exercise or use under the circumstances in the conduct of his own affairs. Subject to such provisions, the trustee will be under no obligation to exercise any of its rights or powers under the indenture at the request or direction of any of the holders of Notes unless they shall have offered to the trustee reasonable security or indemnity against the costs, expenses and liabilities which the trustee might incur in complying with the request or direction.
Modification of the Indenture
We and the trustee may modify or amend the indenture, with the consent of the holders of not less than a majority in aggregate principal amount of the outstanding Notes issued under the indenture, provided that no such modification or amendment may, without the consent of each holder of the Notes that are affected:
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change the character of the Notes from being payable on demand or reduce the principal amount of any Note; |
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impair the right to institute a suit for the enforcement of any payment on or with respect to any Note; |
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reduce the above-stated percentage of holders of Notes necessary to modify or amend the indenture; or |
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modify the foregoing requirements or reduce the percentage of outstanding Notes necessary to waive compliance with certain provisions of the indenture or for waiver of certain defaults. |
We may also amend the indenture, without the consent of any holders of the Notes, to add covenants or restrictions for your benefit or to make other changes that do not adversely affect the rights of any holder in any material respect.
TERMINATION, SUSPENSION OR MODIFICATION
We expect that you will be able to invest in the Notes for the foreseeable future, but we reserve the right at any time to terminate, to suspend or from time to time to modify the Plan and the Notes offering in part, in its entirety or in respect of investors located in one or more states or other jurisdictions or to suspend new investments in the Notes. We reserve the right to modify, suspend or terminate any of the investment options and redemption options described under Duke Energy PremierNotesHow to Make an Investment, Primary Investment Options, Other Investment Options and How to Redeem. No termination, modification or suspension shall affect your rights unless the proposed action shall have been communicated to you in sufficient time prior to its effective date to allow you to redeem Notes together with accrued and unpaid interest in accordance with the terms in effect prior to the effective date of such termination, modification or suspension. No such termination or modification of the Plan or suspension or any provision in the Plan may diminish the principal of any Note or unpaid interest on any Note. Any modification that affects the rights or duties of the trustee may be made only with the consent of the trustee.
The indenture shall cease to be of further effect, and the trustee, on our demand and at our cost and expense, shall execute proper instruments acknowledging satisfaction of and discharging the indenture if at any time we shall have terminated the Plan pursuant to its provisions, all of the Notes shall have become due and payable, we shall have deposited or caused to be deposited with the trustee as trust funds the entire amount sufficient to pay all the outstanding Notes, including principal and interest due or to become due to such date of maturity or, if we shall have given notice for the full redemption of all outstanding Notes, the date of redemption, and we shall have paid or caused to be paid all other sums payable by us under the indenture.
RIGHTS MAY NOT BE ASSIGNED, TRANSFERRED OR PLEDGED
Except for redemptions, and except for the right to debit amounts credited in error to investment balances, there is no provision in the Plan, in the indenture or in our arrangements with the agent bank under which any person has or may create any lien on amounts credited to your investment balance in the Notes. You may not assign, transfer or pledge rights under the Notes, except upon redemption.
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We have engaged Georgeson Securities Corporation (GSC) to assist us with the offering of the Notes as an accommodating broker in states where applicable securities laws require such offerings to be made by a registered broker-dealer. GSC is a registered broker-dealer in all fifty U.S. states. GSC is not underwriting the Notes, has no obligation to purchase any Notes and is not obligated to find or qualify purchasers of the Notes. GSC has not prepared a report or opinion constituting recommendations or advice to us in connection with the Notes. In addition, GSC does not make any recommendations as to whether any investor should purchase the Notes. No commissions will be paid to GSC. We will pay GSC an annual administrative fee of $25,000 for its services with respect to the Notes. In certain jurisdictions, we are offering the Notes on a continuing basis directly on our behalf. We may also from time to time designate other agents through whom Notes may be offered. We reserve the right to withdraw, cancel or modify the offer to purchase Notes at any time. We have the sole right to accept offers to purchase Notes and may reject any proposed purchase of Notes in whole or in part.
The validity of the Notes will be passed upon for Duke Energy Corporation by Robert T. Lucas III,
The consolidated financial statements, and the related financial statement schedules, incorporated in this prospectus by reference from Duke Energy Corporations Annual Report on Form 10-K for the year ended December 31, 2010, and the effectiveness of the Companys internal control over financial reporting have been audited by Deloitte & Touche LLP, an independent registered public accounting firm, as stated in their report, which is incorporated herein by reference. Such financial statements and financial statement schedules have been so incorporated in reliance upon the report of such firm given upon their authority as experts in accounting and auditing.
The consolidated financial statements, and the related consolidated financial statement schedule, of Progress Energy, Inc. and its subsidiaries (Progress Energy) included in our Current Report on Form 8-K dated April 1, 2011 and the effectiveness of Progress Energys internal control over financial reporting have been audited by Deloitte & Touche LLP, an independent registered public accounting firm, as stated in their reports therein, which are incorporated herein by reference. Such financial statements and financial statement schedule have been so incorporated in reliance upon the reports of such firm given upon their authority as experts in accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION
We are subject to the informational requirements of the Securities Exchange Act of 1934 and, in accordance therewith, file annual, quarterly and current reports, proxy statements and other information with the Securities and Exchange Commission, or the SEC. Such reports and other information can be inspected and copied at the SECs Public Reference Room at 100 F Street, N.E., Washington, D.C. 20549. You may also obtain copies of these documents at prescribed rates from the Public Reference Section of the SEC at its Washington, D.C. address. Please call the SEC at 800-SEC-0330 for further information. Our filings with the
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SEC, as well as additional information about us, are available to the public through Duke Energys web site at http://www.duke-energy.com and are made available as soon as reasonably practicable after such material is filed with or furnished to the SEC. The information on our website is not a part of this prospectus. Our filings are also available to the public through the SEC web site at http://www.sec.gov.
The SEC allows us to incorporate by reference into this prospectus the information we file with it, which means that we can disclose important information to you by referring you to those documents. The information incorporated by reference is considered to be a part of this prospectus, and information that we file later with the SEC will automatically update and supersede this information. This prospectus incorporates by reference the documents incorporated in the prospectus at the time the registration statement became effective and all later documents filed with the SEC, in all cases as updated and superseded by later filings with the SEC. Duke Energy incorporates by reference the documents listed below and any future filings made by Duke Energy with the SEC under Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934 until the offering is completed.
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Annual Report on Form 10-K for the year ended December 31, 2010; and |
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Current reports on Form 8-K filed on January 10, 2011, January 11, 2011, January 13, 2011, January 26, 2011, February 22, 2011, March 11, 2011 and April 1, 2011. |
We will provide without charge a copy of these filings, other than any exhibits unless the exhibits are specifically incorporated by reference into this prospectus. You may request a copy by writing us at the following address or telephoning one of the following numbers:
Investor Relations Department
Duke Energy Corporation
P.O. Box 1005
Charlotte, North Carolina 28201-1005
(704) 382-3853 or (800) 488-3853 (toll-free)
You should rely only on the information contained or incorporated by reference in this prospectus. We have not authorized any other person to provide you with different information. If anyone provides you with different or inconsistent information, you should not rely on it. We are not making an offer to sell the securities described in this prospectus in any state where the offer or sale is not permitted. You should assume that the information contained in the prospectus is accurate only as of its date. Our business, financial condition, results of operations and prospects may have changed since that date.
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Part II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. | Other Expenses of Issuance and Distribution. |
The following is an itemized statement of estimated expenses of Duke Energy in connection with the issue of the Notes:
SEC filing fee |
$ | 58,050 | ||
Fees and expenses of agent bank |
$ | 825,000 | ||
Fees and expenses of broker-dealer |
$ | 25,000 | ||
Fees and expenses of trustee |
$ | 6,000 | ||
Printing and marketing expenses |
$ | 175,000 | ||
Accountants fees and expenses |
$ | 20,000 | ||
Counsel fees and expenses |
$ | 40,000 | ||
Miscellaneous |
$ | 10,000 | ||
Total |
$ | 1,159,050 | ||
Item 15. | Indemnification of Directors and Officers. |
Delaware law permits a corporation to adopt a provision in its certificate of incorporation eliminating or limiting the personal liability of a director, but not an officer in his or her capacity as such, to the corporation or its shareholders for monetary damages for breach of fiduciary duty as a director, except that such provision shall not limit the liability of a director for (i) any breach of the directors duty of loyalty to the corporation or its shareholders, (ii) acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) liability under section 174 of the Delaware General Corporation Law (the DGCL) for unlawful payment of dividends or stock purchases or redemptions, or (iv) any transaction from which the director derived an improper personal benefit. Our certificate of incorporation provides that no director of ours shall be personally liable to us or our shareholders for monetary damages for breach of fiduciary duty as a director, except to the extent such an exemption from liability or limitation thereof is not permitted under applicable law.
Under Delaware law, a corporation may indemnify any person made a party or threatened to be made a party to any type of proceeding, other than action by or in the right of the corporation, because he or she is or was an officer, director, employee or agent of the corporation or was serving at the request of the corporation as an officer, director, employee or agent of another corporation or entity against expenses, judgments, fines and amounts paid in settlement actually and reasonably incurred in connection with such proceeding if: (1) he or she acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation; or (2) in the case of a criminal proceeding, he or she had no reasonable cause to believe that his or her conduct was unlawful. A corporation may indemnify any person made a party or threatened to be made a party to any threatened, pending or completed action or suit brought by or in the right of the corporation because he or she was an officer, director, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or other entity, against expenses actually and reasonably incurred in connection with such action or suit if he or she acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the corporation, provided that such indemnification will be denied if the person is found liable to the corporation unless, in such a case, the court determines the person is entitled to indemnification for such expenses in any event. A corporation must indemnify a present or former director or officer who successfully defends himself or herself in a proceeding to which he or she was a party because he or she was a director or officer of the corporation against expenses actually and reasonably incurred by him or her. Expenses incurred by an officer or director, or any employees or
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agents as deemed appropriate by the board of directors, in defending civil or criminal proceedings may be paid by the corporation in advance of the final disposition of such proceedings upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if it shall ultimately be determined that he or she is not entitled to be indemnified by the corporation. The Delaware law regarding indemnification and expense advancement is not exclusive of any other rights which may be granted by our certificate of incorporation or bylaws, a vote of shareholders or disinterested directors, agreement or otherwise.
Under the DGCL, termination of any proceeding by conviction or upon a plea of nolo contendere or its equivalent shall not, of itself, create a presumption that such person is prohibited from being indemnified.
Our bylaws provide that we will indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of us), by reason of the fact that such person is or was a director or officer of us, or is or was a director or officer serving at our request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding if such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to our best interests, and, with respect to any criminal action or proceeding, had no reasonable cause to believe such persons conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, will not, of itself, create a presumption that the person did not act in good faith and in a manner which such person reasonably believed to be in or not opposed to our best interests, and, with respect to any criminal action or proceeding, had reasonable cause to believe that such persons conduct was unlawful.
Our bylaws further provide that we will indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of us to procure a judgment in its favor by reason of the fact that such person is or was a director or officer of us, or is or was a director or officer of us serving at our request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys fees) actually and reasonably incurred by such person in connection with the defense or settlement of such action or suit if such person acted in good faith, and in a manner such person reasonably believed to be in or not opposed to our best interests except that no indemnification will be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to us unless and only to the extent that the Court of Chancery of the State of Delaware or the court in which such action or suit was brought determines upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem proper.
However, our bylaws provide that we will only provide indemnification pursuant to the bylaws (unless ordered by a court) if such indemnification is authorized in the specific case upon a determination that indemnification of the present or former director or officer is proper in the circumstances because such person has met the applicable standard of conduct set forth in the bylaws. Such determination is to be made, with respect to a person who is a director or officer at the time of such determination, (i) by a majority vote of the directors who are not parties to such action, suit or proceeding, even though less than a quorum, or (ii) by a committee of directors who are not parties to such action, suit or proceeding designated by a majority vote of such directors, even though less than a quorum, or (iii) if there are no such directors, or if such directors so direct, by independent legal counsel in a written opinion, or (iv) by the shareholders. Such determination is to be made, with respect to former directors and officers, by any person or persons having the authority to act on the matter on our behalf. To the extent, however, that a present or former director or officer of ours has been successful on the merits or otherwise in defense of any action, suit or proceeding, or in defense of any claim, issue or matter therein, such person shall be indemnified against expenses (including attorneys fees) actually and reasonably incurred by such person in connection therewith, without the necessity of authorization in the specific case.
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Our bylaws further provide that except for proceedings to enforce rights to indemnification, we will not be obligated to indemnify any director or officer (or his or her heirs, executors or personal or legal representatives) or advance expenses in connection with a proceeding (or part thereof) initiated by such person unless such proceeding (or part thereof) was authorized or consented to by the board of directors.
The indemnification and advancement of expenses provided by, or granted pursuant to, our bylaws are not deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under the certificate of incorporation, bylaws, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in such persons official capacity and as to action in another capacity while holding such office. It is our policy that indemnification shall generally be made to the fullest extent permitted by law. Our bylaws do not preclude indemnifying persons in addition to those specified in the bylaws but whom we have the power or obligation to indemnify under the provisions of the DGCL, or otherwise.
We may also purchase and maintain insurance on behalf of any person who is or was a director or officer, or is or was a director or officer serving at our request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against such person and incurred by such person in any such capacity, or arising out of such persons status as such, whether or not we would have the power or the obligation to indemnify such person against such liability under the provisions of the bylaws.
Duke Energy Corporation was formed as a holding company in connection with the consummation of the merger of our predecessor, Duke Energy Corporation, a North Carolina corporation, and Cinergy Corp., on April 3, 2006. For a further description of the rights to indemnification and exculpation from liabilities of directors and officers arising pursuant to the merger agreement, reference is made to Item 15 of Duke Energy Corporations Form S-3 filed April 5, 2006, File No. 333-132996.
The Duke Energy PremierNotes Plan provides for the indemnification of officers and directors of Duke Energy under certain circumstances.
Item 16. | Exhibits. |
The exhibits to this registration statement are listed in the exhibit index, which appears elsewhere herein and is incorporated by reference.
Item 17. | Undertakings. |
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Securities and Exchange Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering price set forth in the Calculation of Registration Fee table in the effective registration statement;
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(iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement, or any material change to such information in the registration statement;
provided, however, that paragraphs (i), (ii) and (iii) do not apply if the registration statement is on Form S-3 or Form F-3 and the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Securities and Exchange Commission by the registrant pursuant to section 13 or section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
(2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered that remain unsold at the termination of the offering.
(4) That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
(i) Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and
(ii) Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5) or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii) or (x) for the purpose of providing the information required by Section 10(a) of the Securities Act shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date.
(5) That, for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities the undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
(i) Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
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(ii) Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant;
(iii) The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and
(iv) Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
(b) The undersigned registrant hereby further undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrants annual report pursuant to section 13(a) or section 15(d) of the Securities Exchange Act of 1934 that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the provisions described under Item 15 in the registration statement above, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted against the registrant by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Duke Energy Corporation certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Charlotte, State of North Carolina, on the 4 th day of April, 2011.
Duke Energy Corporation | ||||
(Registrant) | ||||
By: |
/s/ J AMES E. R OGERS * |
|||
Name: |
James E. Rogers | |||
Title: |
Chairman, President and Chief Executive Officer |
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been duly signed by the following persons in the capacities and on the dates indicated.
Signature |
Title |
Date |
||
/s/ J AMES E. R OGERS * |
Director and Chairman, President and Chief Executive Officer (Principal Executive Officer) |
April 4, 2011 | ||
James E. Rogers | ||||
/s/ L YNN J. G OOD * |
Group Executive and Chief Financial Officer (Principal Financial Officer) | April 4, 2011 | ||
Lynn J. Good | ||||
/s/ S TEVEN K. Y OUNG * |
Senior Vice President and Controller (Principal Accounting Officer) | April 4, 2011 | ||
Steven K. Young | ||||
Signature |
Title |
Date |
||
William Barnet, III* | Director | April 4, 2011 | ||
G. Alex Bernhardt, Sr.* | Director | April 4, 2011 | ||
Michael G. Browning* | Director | April 4, 2011 | ||
Daniel R. DiMicco* | Director | April 4, 2011 | ||
John H. Forsgren* | Director | April 4, 2011 | ||
Ann Maynard Gray* | Director | April 4, 2011 | ||
James H. Hance, Jr.* | Director | April 4, 2011 | ||
E. James Reinsch* | Director | April 4, 2011 | ||
James T. Rhodes* | Director | April 4, 2011 | ||
Philip R. Sharp* | Director | April 4, 2011 |
* The undersigned, by signing his name hereto, does hereby sign this document on behalf of the registrant and on behalf of each of the above-named persons indicated above by asterisks, pursuant to a power of attorney duly executed by the registrant and such persons, filed with the Securities and Exchange Commission as an exhibit hereto.
By: |
/s/ DAVID S. MALTZ | |
Attorney-in-Fact | ||
April 4, 2011 |
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EXHIBIT INDEX
Exhibit Number |
Exhibit | |
4.1 | Duke Energy PremierNotes Plan dated as of April 4, 2011. | |
4.2 | Indenture dated as of April 4, 2011. | |
5 | Opinion of Robert T. Lucas III, Esq. | |
12 | Computation of Ratio of Earnings to Fixed Charges of Duke Energy Corporation, incorporated by reference to Exhibit 12.1 to the Annual Report on Form 10-K of Duke Energy Corporation for the fiscal year ended December 31, 2010 (Commission File No. 001-32853). | |
23.1 | Consent of Deloitte & Touche LLP (Charlotte, North Carolina). | |
23.2 | Consent of Deloitte & Touche LLP (Raleigh, North Carolina). | |
24.1 | Powers of Attorney of Directors and Officers of Duke Energy Corporation. | |
24.2 | Resolution of Duke Energy Corporation regarding Power of Attorney. | |
25 | Form T-1 Statement of Eligibility of The Bank of New York Mellon Trust Company, N.A. |
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Exhibit 4.1
DUKE ENERGY PREMIERNOTES PLAN
This Duke Energy PremierNotes Plan (the Plan) is established by Duke Energy Corporation (the Company) as of April 4, 2011. The Plan was established to provide eligible investors with a convenient means of making investments in Variable Denomination Floating Rate Demand Notes of the Company.
I. | Definitions |
As hereinafter used:
Application shall have the meaning set forth in paragraph IV hereof.
Agent Bank shall have the meaning set forth in paragraph IX hereof.
Business Day shall mean any day other than a Saturday or a Sunday or a day on which the Agent Bank is authorized or obligated by law to close.
Committee shall mean the Duke Energy PremierNotes Committee created by the Company pursuant to paragraph X hereof.
Company shall mean Duke Energy Corporation, a Delaware corporation, and, as applicable, its subsidiaries.
Eligible Investor shall mean any person designated by the Committee as eligible to invest in the Notes pursuant to paragraph II hereof.
Immediate Family Member shall mean, with respect to any person, such persons spouse and dependent children (as defined for Federal income tax purposes).
Indenture shall have the meaning set forth in paragraph VIII hereof.
Note Register shall have the meaning set forth in paragraph IV hereof.
Notes shall mean the nontransferable Variable Denomination Floating Rate Demand Notes of the Company issued pursuant to and in accordance with the terms, conditions and provisions of the Indenture, as in effect from time to time.
Investor shall mean any Eligible Investor having established a Plan Investment.
Plan shall mean the Duke Energy PremierNotes Plan.
Plan Investment shall mean an investment established and maintained pursuant to the Plan and recorded on the Note Register.
Plan Investment Note Balance shall have the meaning set forth in paragraph IV hereof.
Registered Investment Address shall have the meaning set forth in paragraph IV hereof.
Registered Investment Owner shall mean (a) in the case of an individual Plan Investment, the Investor or (b) in the case of a joint Plan Investment, the Investor and the Immediate Family Members who have been designated by the Investor as having a joint interest in the Plan Investment, (c) in the case of a custodial Plan Investment, the Investor, as custodian, or (d) in the case of a trust Plan Investment established for the benefit of an Investor or for the benefit of an Immediate Family Member of an Investor, the trust, or, if such Investor is a joint owner of the Plan Investment with the trust, the Investor and the trust, all as recorded on the Note Register.
Trustee shall have the meaning set forth in paragraph VIII hereof.
II. | Eligibility |
(a) Except as hereinafter provided, any person may invest in the Notes issued pursuant to the Plan, provided such person is a citizen of the United States or, except as provided in applicable United States Treasury Regulations, a partnership, a corporation incorporated or established in or under the laws of the United States or a Trust or estate that is treated as a United States person under Section 7701 of the Internal Revenue Code, as amended.
(b) The Committee may from time to time in its sole discretion limit or expand the categories of persons who shall be eligible to invest in the Notes subject to such limitations or regulations as the Committee from time to time may prescribe.
III. | Participation |
Participation in the Plan shall be entirely voluntary. An Eligible Investor may elect to participate in the Plan by delivering to the Company or to the Agent Bank, as designated by the Committee from time to time, a properly completed Application, and delivering to the Company and/or to the Agent Bank such other forms and undertakings as may be designated by the Committee from time to time.
IV. | Establishment of Plan Investments Note Register |
Plan Investments shall be established by the Eligible Investor delivering to the Company or to the Agent Bank, as the Committee from time to time may designate, a properly executed application (the Application), which shall require such information and provide such elections as the Committee from time to time may determine, together with such other forms and undertakings as may be designated by the Committee from time to time.
Subject to such limitations or regulations as the Committee from time to time may prescribe, each Eligible Investor may establish and maintain one or more of the following types of investments: individual investments, joint investments with Immediate Family Members, trust investments established for the benefit of an Eligible Investor, trust investments established for the benefit of an Immediate Family Member, and custodial investments for an Immediate Family Member pursuant to the applicable Uniform Gifts to Minors Act of the state in which the Eligible Investor resides. In the case of any trust investment, the income of such trust must be subject to U.S. Federal income taxation regardless of its source.
2
The Company, the Agent Bank or another agent designated by the Company shall maintain a listing (the Note Register) setting forth such information regarding each Plan Investment as the Committee from time to time may determine, including but not limited to the name of the Investor, such Investors social security number or taxpayer identification number, the names of other Registered Investment Owners, if any, the address to which notices under the Plan are to be sent (the Registered Investment Address), the amounts credited to the Plan Investment and the amount of Notes redeemed by such Investor from time to time (the Plan Investment Note Balance) and accrued and unpaid interest on the Plan Investment Note Balance.
V. | Investment Under the Plan Issuance of Notes |
The Notes shall be issued under the Indenture between the Company and the Trustee, as amended or supplemented from time to time in accordance with the terms thereof.
The principal amount of Notes issued to an Investor under the Plan shall at all times be equal to the Plan Investment Note Balance in such Investors Plan Investment and shall bear interest from time to time at the rate provided for in paragraph VI hereof.
The Committee may designate from time to time methods of making investments under the Plan which shall be subject to such limitations and requirements as the Committee may determine.
VI. | Interest Rate |
Each Note shall bear interest from time to time at a floating rate per annum to be determined by the Committee on a weekly basis to be effective on the following Monday. Such rate of interest will be determined by the Committee in the manner and on the basis chosen by the Committee in its sole discretion. The Committee may delegate the authority to set the interest rate on the Notes to the Treasurer of the Company or such other person or persons as the Committee determines in its sole discretion.
Interest on each Note shall accrue and be compounded daily based on a 365/366-day year. Accrued interest shall be automatically reinvested in the Notes as of the fifteenth day of each calendar month.
VII. | Redemption of Notes Termination of Plan Investments |
(a) Subject to the provisions of this paragraph VII, Registered Investment Owners may redeem all or part of the principal amount of the Note evidencing amounts invested by the Registered Investment Owner in the Notes at any time and from time to time by written request to the Agent Bank for redemption by check (subject to such minimum redemption amounts, fees and other limitations and requirements as the Committee may determine). The Committee may designate from time to time other methods of redemption of the Notes by the Registered Investment Owners under the Plan which shall be subject to such limitations and requirements as the Committee may determine.
3
A Registered Investment Owner may elect voluntarily to terminate participation in the Plan and close such Registered Investment Owners Plan Investment by written or telephonic notice to the Agent Bank. Upon election by the Registered Investment Owner to terminate participation in the Plan, all amounts credited to the principal amount of the Notes held by such Registered Investment Owner, together with accrued and unpaid interest to but not including the Business Day next following the effective date of such termination, less applicable fees, shall be paid by check to the Registered Investment Owner as such Owners interests shall appear at the Registered Investment Address.
(b) The Company shall have the right to redeem, at any time at its option, including in the event the Plan is modified, suspended or terminated pursuant to paragraph XIII hereof, all or any part of the Notes. Any partial redemption of the Notes will be effected by lot or pro rata or by any other method that is deemed fair and appropriate by the Agent Bank. Interest on the redeemed amount shall cease to accrue on and after the effective date on which the redeemed principal amount shall have become due and payable.
(c) With respect to any Plan Investment which shall have a Plan Investment Note Balance of less than $1,000 (or such other amount as the Committee from time to time may determine without any prior notice to the Investors) (the Minimum Investment Note Balance) and to which no investment shall have been made (other than the crediting of interest thereto pursuant to the provisions of paragraph VI hereof) for a continuing period of three calendar months immediately preceding determination of such deficiency (or such other period as the Committee from time to time may determine), the Company shall have the right, after 30 days following the date of a written notice to the Investor (provided that the Plan Investment Note Balance shall not have been restored to the Minimum Investment Note Balance during such 30-day period), to terminate such Investors investment in the Notes and to redeem the principal amount of the Notes together with accrued and unpaid interest thereon less applicable fees. In the event of such a redemption, the Company shall cause the Agent Bank to mail the proceeds thereof to the Registered Investment Owner as such Registered Investment Owners registered interests shall appear at the Registered Investment Address and to terminate the Plan Investment. Interest on the redeemed amount shall cease to accrue on and after the effective date on which the redeemed principal amount shall have become due and payable.
With respect to any Plan Investment which shall have a Plan Investment Note Balance of greater than $250,000 (or such other amount as the Committee from time to time may determine without any prior notice to the Investors) (the Maximum Investment Note Balance) for a continuing period of three calendar months immediately preceding the determination of such excess (or such other period as the Committee from time to time may determine), the Company shall have the right, after 30 days following the date of a written notice to the Investor (provided that the Plan Investment Note Balance shall not have been reduced to be equal to or less than the Maximum Investment Note Balance during such 30-day period), to redeem the principal amount of the Notes in excess of the Maximum Investment Note Balance (or such greater amount as specified by the Committee in the notice to the Investor) together with accrued and unpaid interest thereon, less applicable fees. In the event of such a redemption, the Company shall cause the Agent Bank to mail the proceeds thereof to the Registered Investment Owner as such Registered Investment Owners registered interests shall appear at the Registered Investment
4
Address. Interest on the redeemed principal amount shall cease to accrue on and after the effective date on which the redeemed principal amount shall have become due and payable.
The Company shall have the right to redeem any Notes of any Investor who is not or is no longer eligible to invest in the Notes in accordance with Part II hereof, or who has abused or misused the investment or redemption provisions applicable to the Notes or whose investments are otherwise inconsistent with the objectives of the Plan, in each case as the Company determines in its sole judgment and discretion. In such circumstances, the Company shall notify the Registered Investment Owner of its intention to redeem in full the Notes on the third Business Day following the date of the Companys notice. In the event of such a redemption, the Company shall cause the Agent Bank to mail the proceeds thereof to the Registered Investment Owner as such Registered Investment Owners registered interests shall appear at the Registered Investment Address. Interest on the redeemed principal amount shall cease to accrue on and after the effective date on which the redeemed principal amount shall have become due and payable.
The Company shall have the right to redeem from time to time, without prior notice to any Investor, all or a portion of the Notes of an Investor in an amount equal to any applicable fees established under the Plan that are then owed by such Investor. In such instance, the redemption proceeds shall be deemed paid by reducing the principal amount of such Investors Notes by the amount of such unpaid fees, which reduction shall be applied to the payment of such fees. Such redemption shall be effective upon notice from the Company to the Agent Bank, and the date of such notice shall be the effective date for the redemption of such amount of the Notes. On the effective date of such a redemption any interest on the portion of the Notes so called for redemption shall cease to accrue. Notice of such redemptions shall be provided to the Registered Investment Owner of the Notes so redeemed in the manner and at the times as determined from time to time by the Committee.
VIII. | Trustee |
The Company shall appoint one or more banks, corporations or other entities to act as trustee (the Trustee) for Notes issued pursuant to the Plan and shall enter into an indenture (the Indenture) with such bank, corporation or other entity which meets the requirements of the Trust Indenture Act of 1939. Subject to the requirements of the Indenture, the Company and the Trustee may amend or supplement the Indenture from time to time.
IX. | Agent Bank |
The Company shall appoint one or more banks, corporations or other entities to act as agent under the Plan (the Agent Bank) and at any time may remove the Agent Bank and appoint a successor Agent Bank. The Committee may, without reference to or any action by any Investor or other Registered Investment Owner, enter into such agreement or further agreements and take such other steps and execute such other instruments as the Company in its sole discretion may deem necessary or desirable to carry the Plan into effect or to facilitate its administration.
5
X. | Committee |
The Companys Board of Directors has authorized the establishment of a Duke Energy PremierNotes Committee (the Committee) consisting of at least three persons. The Committee shall initially consist of the Chief Financial Officer, the Treasurer, two Assistant Treasurers and an additional member of the Finance Group of the Company. The Chief Financial Officer of the Company shall from time to time designate an alternate for each of such members, who shall have full power to act in the absence or inability to act of such member. The Committee shall act by a majority of its members, with or without a meeting.
The Committee shall have full power and authority to administer the Plan, to interpret its provisions, to adopt forms for use thereunder, to adopt rules and regulations in connection therewith and to make the determinations thereunder provided for it to be made. Any interpretation of the provisions of the Plan by the Committee shall be final and conclusive, and shall bind and may be relied on by all parties in interest to the Plan.
No member of the Committee or alternate for a member or a director, officer or employee of the Company shall be liable for any action or failure to act under or in connection with the Plan, except for his or her own bad faith. Each director, officer or employee of the Company who is or shall have been designated to act on behalf of the Company and each person who is or shall have been a member of the Committee or an alternate for a member or a director, officer or employee of the Company, as such, shall be indemnified and held harmless by the Company against and from any and all loss, cost, liability or expense that may be imposed upon or reasonably incurred by him or her in connection with or resulting from any claim, action, suit or proceeding to which he or she may be a party or in which he or she may be involved by reason of any action taken or failure to act under the Plan and against and from any and all amounts paid by him or her in settlement thereof (with the Companys written approval) or paid by him or her in satisfaction of a judgment in any such action, suit or proceeding, except a judgment in favor of the Company based upon a finding of his or her bad faith subject, however, to the condition that, upon the assertion or institution of any such claim, action, suit or proceeding against him or her, he or she shall in writing give the Company an opportunity, at its own expense, to handle and defend the same before he or she undertakes to handle and defend it on his or her own behalf. The foregoing right of indemnification shall not be exclusive of any other right to which such person may be entitled as a matter of law or otherwise, or any power that the Company may have to indemnify him or her or hold him or her harmless.
XI. | Plan Investment Statements |
On approximately the 15th day of each calendar month (or such other date as the Committee shall determine) other than the month after the end of each calendar quarter, there shall be furnished with respect to each Plan Investment that had an electronic investment or redemption transaction during such previous month a statement setting forth a summary of such electronic transactions during the previous month and such additional information as the Committee from time to time may determine. On approximately the 15th day of the month after the end of each calendar quarter (or such other date as the Committee shall determine), there shall be furnished with respect to each Plan Investment a statement setting forth a summary of all
6
transactions in such Plan Investment during the previous quarter, including beginning and ending Plan Investment Balances, interest credited, and such additional information as the Committee from time to time may determine. Such statements shall be deemed to have been accepted by the Investor and other Registered Investment Owners as correct unless written notice to the contrary shall be received by the Agent Bank within 30 days after the mailing of such statement to the Registered Investment Address.
XII. | Notices, etc. |
All notices, statements and other communications from the Agent Bank or the Company to an Investor, other Registered Investment Owner or designated beneficiary shall be deemed to have been duly given, furnished, delivered or transmitted, as the case may be, when delivered to (or when mailed to) the most recent Registered Investment Address.
All notices, instructions and other communications from an Investor or other Registered Investment Owner to the Company or Agent Bank required or permitted hereunder (including without limitation Applications and redemption requests) shall be in the respective forms from time to time prescribed therefor by the Committee, shall be mailed by first-class mail or delivered to such location as shall be specified by and upon forms prescribed by the Committee and shall be deemed to have been duly given and delivered upon receipt by the Company or the Agent Bank, as the case may be, at such location.
From time to time as necessary to facilitate the administration of the Plan, the Company, the Agent Bank, the Trustee and the Committee shall deliver to each other copies or consolidations of such notices, instructions or other communications in respect of the Plan as it may receive from Investors or Registered Investment Owners.
XIII. | Termination, Suspension and Modification |
The Company may terminate the Plan at any time or from time to time suspend or modify the Plan, in part, in its entirety or in respect of the employees of the Company or in respect of any person or persons designated as Eligible Investors. The Company may at any time or from time to time terminate or modify the Plan or suspend for any period the operation of any provision thereof in respect of any Investors located in one or more jurisdictions. Any such termination, modification or suspension of the Plan may affect Investors in the Plan at the time thereof, as well as future Investors, but may not affect the rights of an Investor unless such proposed action shall have been communicated to such Investor in sufficient time prior to the effective date thereof to permit such Investor to redeem amounts credited to his or her Plan Investment together with accrued and unpaid interest in accordance with the terms of the Plan in effect prior to the effective date of such termination, modification or suspension. The Company shall notify the Trustee promptly after any such termination, modification or suspension of the Plan. Any modification that adversely affects the rights or duties of the Trustee may be made only with the consent of the Trustee.
Anything herein to the contrary notwithstanding, no such termination or modification of the Plan or suspension or any provision thereof may diminish the principal amount of any Note, or such Investors unpaid interest thereon.
7
XIV. | Rights Not Transferable |
Except in the case of (i) Note redemptions in accordance with paragraph VII hereof, and (ii) the establishment and subsequent termination of joint, custodial and trust Plan Investments, no right or interest of any Investor or other Registered Investment Owner under the Plan or in such Investors Plan Investment or the Notes issued in connection therewith shall be assignable or transferable, in whole or in part, either directly or by operation of law or otherwise, including without limitation by execution, levy, garnishment, attachment, pledge or in any other manner, but excluding devolution by death or mental incompetency; no attempted assignment or transfer thereof shall be effective; and no right or interest of any Investor, other Registered Investment Owner or designated beneficiary under the Plan or in a Plan Investment or the Notes issued in connection therewith shall be pledged or hypothecated to secure, or otherwise be made subject to, any obligation or liability of such Investor or other Registered Investment Owner. Notwithstanding the provisions of this paragraph XIV, a Plan Investment may be debited for all amounts which the Company or the Agent Bank shall have caused, in error, to be credited to such Plan Investment.
XV. | Fees |
The Committee may designate from time to time such fees in connection with investments or redemptions in the Notes or otherwise in connection with the Notes, including fees for checks, for returned checks and for stop payment requests, as shall be determined by the Committee, provided the Committee shall communicate such fees to the Investors in sufficient time prior to the effective date thereof to permit the Investors to redeem amounts credited to their respective Plan Investments together with accrued and unpaid interest in accordance with the terms of the Plan in effect prior to the effective date of such fees.
XVI. | Miscellaneous |
The records of the Company, the Agent Bank, the Trustee and the Committee shall be conclusive in respect of all matters involved in the administration of the Plan.
Except as specified in paragraph XV, all expenses of administering the Plan, including without limitation the fees of the Agent Bank and the Trustee and other expenses charged or incurred by the Agent Bank and the Trustee, shall be borne by the Company, and no charge or penalty shall be imposed by the Company, the Agent Bank or the Trustee against any Plan Investment or Registered Investment Owner by reason of participation in the Plan; provided , however , that neither the Company, the Agent Bank nor the Trustee shall have any liability for any cost incurred by a Registered Investment Owner including, but not limited to, costs incurred in connection with the wiring of funds to make investments under the Plan.
The Plan shall be governed by and construed in accordance with the laws of the State of New York.
8
XVII. | Effectiveness |
The Plan shall be effective as of the date that the Registration Statement on Form S-3 with respect to the initial offering of the Notes is filed with the Securities and Exchange Commission and becomes effective.
9
Exhibit 4.2
EXECUTION COPY
DUKE ENERGY CORPORATION,
Issuer
AND
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.
Trustee
Indenture
Dated as of April 4, 2011
Variable Denomination Floating Rate
Demand Notes
Reconciliation and Tie between Trust Indenture Act of 1939 and
Indenture, dated as of April 4, 2011
between
Duke Energy Corporation, Issuer
and
The Bank of New York Mellon Trust Company, N.A., Trustee
Trust Indenture Act Section |
Indenture Section |
|
§310(a)(1) |
609 | |
(a)(2) |
609 | |
(a)(3) |
Not Applicable | |
(a)(4) |
Not Applicable | |
(a)(5) |
609 | |
(b) |
608 | |
610 | ||
§311(a) |
613 | |
(b) |
613 | |
(b)(2) |
703(a)(3) | |
703(b) | ||
§312(a) |
701 | |
702(a) | ||
(b) |
702(b) | |
(c) |
702(c) | |
§313(a) |
703(a) | |
(b) |
703(b) | |
(c) |
703(a), 703(b) | |
(d) |
703(c) | |
§314(a)(1) |
704 | |
(a)(2) |
704 | |
(a)(3) |
704 | |
(a)(4) |
1004 | |
(b) |
Not Applicable | |
(c)(1) |
102 | |
(c)(2) |
102 | |
(c)(3) |
Not Applicable | |
(d) |
Not Applicable | |
(e) |
102 | |
§315(a) |
601(a) | |
(b) |
602 | |
703(a)(6) | ||
(c) |
601(b) | |
(d) |
601(c) | |
(d)(1) |
601(a) | |
(d)(2) |
601(c)(2) | |
(d)(3) |
601(c)(3) | |
(e) |
514 | |
§316(a) |
101 | |
(a)(1)(A) |
502 | |
512 | ||
(a)(1)(B) |
513 | |
(a)(2) |
Not Applicable | |
(b) |
508 | |
(c) |
104(e) |
§317(a)(1) |
503 | |
(a)(2) |
504 | |
(b) |
1003 | |
§318(a) |
107 |
N OTE : This reconciliation and tie shall not, for any purpose, be deemed to be a part of the Indenture.
TABLE OF CONTENTS*
Page | ||||||
PARTIES |
||||||
RECITALS OF THE COMPANY |
1 | |||||
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
|
||||||
Section 101. |
Definitions | 1 | ||||
Section 102. |
Compliance Certificates and Opinions | 5 | ||||
Section 103. |
Form of Documents Delivered to Trustee | 5 | ||||
Section 104. |
Acts of Holders | 6 | ||||
Section 105. |
Notices, Etc., to Trustee, Company and Agent Bank | 7 | ||||
Section 106. |
Notice to Holders; Waiver | 8 | ||||
Section 107. |
Conflict with Trust Indenture Act | 8 | ||||
Section 108. |
Effect of Headings and Table of Contents | 8 | ||||
Section 109. |
Successors and Assigns | 8 | ||||
Section 110. |
Separability Clause | 9 | ||||
Section 111. |
Benefits of Indenture | 9 | ||||
Section 112. |
Governing Law | 9 | ||||
Section 113. |
Legal Holidays | 9 | ||||
Section 114. |
Persons Deemed Owners | 9 | ||||
ARTICLE TWO
|
||||||
AMOUNT, PAYMENT AND RESTRICTION TRANSFER OF SECURITIES
|
||||||
Section 201. |
Amount Unlimited | 9 | ||||
Section 202. |
Form | 10 | ||||
Section 203 |
Priority | 10 | ||||
Section 204 |
Payment | 10 | ||||
Section 205. |
Restriction on Transfer of Securities | 10 | ||||
ARTICLE THREE
REDEMPTION OF SECURITIES
|
||||||
Section 301. |
Redemption of All or Part of the Securities | 10 | ||||
Section 302. |
Redemption of a Specified Holders Securities | 11 | ||||
Section 303. |
Payment of Redemption Price for Company Redemptions; Selection of Securities for Redemption | 12 | ||||
Section 304. |
Redemption at the Option of the Holder | 12 | ||||
Section 305. |
Redemption by Offsetting Application of Fees | 13 |
* | This Table of Contents shall not, for any purpose, be deemed to be part of the Indenture. |
-i-
TABLE OF CONTENTS
(continued)
Page | ||||||
ARTICLE FOUR
SATISFACTION AND DISCHARGE OF INDENTURE
|
||||||
Section 401. |
Satisfaction and Discharge of Indenture | 13 | ||||
Section 402. |
Application of Trust Money | 14 | ||||
ARTICLE FIVE
REMEDIES
|
||||||
Section 501. |
Events of Default | 14 | ||||
Section 502. |
Acceleration of Maturity; Rescission and Annulment | 15 | ||||
Section 503. |
Collection of Indebtedness and Suits for Enforcement by Trustee | 15 | ||||
Section 504. |
Trustee May File Proofs of Claim | 16 | ||||
Section 505. |
Trustee May Enforce Claims Without Possession of Securities | 17 | ||||
Section 506. |
Application of Money Collected | 17 | ||||
Section 507. |
Limitation on Suits | 17 | ||||
Section 508. |
Unconditional Right of Holders to Receive Principal, Premium and Interest | 18 | ||||
Section 509. |
Restoration of Rights and Remedies | 18 | ||||
Section 510. |
Rights and Remedies Cumulative | 18 | ||||
Section 511. |
Delay or Omission Not Waiver | 18 | ||||
Section 512. |
Control by Holders | 18 | ||||
Section 513. |
Waiver of Past Defaults | 19 | ||||
Section 514. |
Undertaking for Costs | 19 | ||||
Section 515. |
Waiver of Stay or Extension Laws | 20 | ||||
ARTICLE SIX
THE TRUSTEE
|
||||||
Section 601. |
Certain Duties and Responsibilities | 20 | ||||
Section 602. |
Notice of Defaults | 21 | ||||
Section 603. |
Certain Rights of Trustee | 21 | ||||
Section 604. |
Not Responsible for Recitals or Issuance of Securities | 23 | ||||
Section 605. |
May Hold Securities | 23 | ||||
Section 606. |
Money Held in Trust | 23 | ||||
Section 607. |
Compensation and Reimbursement | 23 | ||||
Section 608. |
Disqualification; Conflicting Interests | 24 | ||||
Section 609. |
Corporate Trustee Required; Eligibility | 24 | ||||
Section 610. |
Resignation and Removal; Appointment of Successor | 25 |
-ii-
TABLE OF CONTENTS
(continued)
Page | ||||||
Section 611. |
Acceptance of Appointment by Successor | 26 | ||||
Section 612. |
Merger, Conversion, Consolidation or Succession to Business | 26 | ||||
Section 613. |
Preferential Collection of Claims Against Company | 26 | ||||
ARTICLE SEVEN
HOLDERS LIST AND REPORTS BY TRUSTEE AND COMPANY
|
||||||
Section 701. |
Company to Furnish Trustee Names and Addresses of Holders | 30 | ||||
Section 702. |
Preservation of Information; Communications to Holders | 30 | ||||
Section 703. |
Reports by Trustee | 31 | ||||
Section 704. |
Reports by Company | 33 | ||||
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
|
||||||
Section 801. |
Company May Consolidate, Etc., on Certain Terms | 33 | ||||
Section 802. |
Successor Substituted | 34 | ||||
ARTICLE NINE
SUPPLEMENTAL INDENTURES
|
||||||
Section 901. |
Supplemental Indentures without Consent of Holders | 34 | ||||
Section 902. |
Supplemental Indentures with Consent of Holders | 35 | ||||
Section 903. |
Execution of Supplemental Indentures | 36 | ||||
Section 904. |
Effect of Supplemental Indentures | 36 | ||||
Section 905. |
Conformity with Trust Indenture Act | 36 | ||||
ARTICLE TEN
COVENANTS
|
||||||
Section 1001. |
Administration of Plan; Payment of Principal and Interest | 36 | ||||
Section 1002. |
Maintenance of Security Register; Maintenance of Office or Agency | 37 | ||||
Section 1003. |
Money for Securities Payments to Be Held in Trust | 37 | ||||
Section 1004. |
Certificate of Officers of the Company | 38 |
-iii-
INDENTURE dated as of April 4, 2011, between DUKE ENERGY CORPORATION , a corporation duly organized and existing under the laws of the State of Delaware (herein called the Company), having its principal office at 526 South Church Street, Charlotte, North Carolina, and THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A. , a national banking association, as Trustee (herein called the Trustee).
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this Indenture to provide for the issuance from time to time of its unsecured variable denomination floating rate demand notes (herein called the Securities) pursuant to the Plan (as defined below).
All things necessary to make this Indenture a valid agreement of the Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities by the Holders thereof, it is mutually covenanted and agreed, for the equal and proportionate benefit of all Holders of the Securities, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
Section 101. Definitions .
For all purposes of this Indenture, except as otherwise expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust Indenture Act or by Commission rule under the Trust Indenture Act, either directly or by reference therein, have the meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the meanings assigned to them in accordance with generally accepted accounting principles, and, except as otherwise herein expressly provided, the term generally accepted accounting principles with respect to any computation required or permitted hereunder shall mean such accounting principles as are generally accepted in the United States of America at the date of such computation; and
(4) the words herein, hereof and hereunder and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision.
Act, when used with respect to any Holder, has the meaning specified in Section 104.
Affiliate of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For the purposes of this definition, control when used with respect to any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms controlling and controlled have meanings correlative to the foregoing.
Agent Bank means a bank, corporation or other legal entity, and its successors and assigns, appointed by the Company to act as agent under the Plan and to perform all functions required of such agent pursuant to the provisions of the Plan, and which may serve as Paying Agent pursuant to the provisions of this Indenture. The initial Agent Bank shall be The Northern Trust Company.
Board of Directors means either the board of directors of the Company or any duly authorized committee of that board.
Board Resolution means a copy of a resolution certified by the Secretary or an Assistant Secretary of the Company to have been duly adopted by the Board of Directors and to be in full force and effect on the date of such certification, and delivered to the Trustee.
Business Day means each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which the Agent Bank is authorized or obligated by law to close.
Commission means the Securities and Exchange Commission, as from time to time constituted, created under the Securities Exchange Act of 1934, or, if at any time after the execution of this instrument such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body performing such duties at such time.
Committee means the Duke Energy PremierNotes Committee established pursuant to the Plan to supervise the administration of the Plan.
Company means the Person named as the Company in the first paragraph of this instrument until a successor corporation shall have become such pursuant to the applicable provisions of this Indenture, and thereafter Company shall mean such successor corporation.
Company Request or Company Order means a written request or order signed in the name of the Company by its Chairman of the Board, its President, its Chief Executive Officer, its Chief Financial Officer or a Vice President and by its Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary, and delivered to the Trustee.
Corporate Trust Office means the designated office of the Trustee at which the corporate trust business of the Trustee shall at any particular time be administered, which office at the date of original execution of this Indenture is located at 900 Ashwood Parkway, Suite 425, Atlanta, Georgia 30338, Attention: Corporate Finance.
corporation includes corporations, associations, companies and business trusts.
- 2 -
Event of Default has the meaning specified in Section 501.
Holder means, with respect to a Security, a Person in whose name at the time a particular Security is registered in the Security Register.
Indenture means this instrument as originally executed or as it may from time to time be supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof.
Maximum Account Balance means, at any time, the amount specified by the Committee at such time as the maximum principal amount of a Security.
Minimum Account Balance means, at any time, the amount specified by the Committee at such time as the minimum principal amount of a Security.
New York Business Day means each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which banking institutions in the City of New York, New York are authorized or obligated by law to close.
Officers Certificate means a certificate signed by the Chairman of the Board, President, Chief Executive Officer, Chief Financial Officer or a Vice President and by the Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary, of the Company and delivered to the Trustee.
Opinion of Counsel means a written opinion of counsel, who may be counsel for or an employee of the Company or other counsel satisfactory to the Trustee, which is delivered to the Trustee.
Outstanding, when used with respect to Securities, means, as of the date of determination, all Securities in which Holders have made investments as shown on the Security Register, except :
(ii) Securities or portions thereof theretofore redeemed by the Holders pursuant to the provisions of the Plan and this Indenture;
(iii) Securities or portions thereof theretofore redeemed by the Company pursuant to the provisions of this Indenture;
(iv) Securities or portions thereof for whose payment or redemption money in the necessary amount has been theretofore deposited with the Trustee or any Paying Agent (other than the Company) in trust or set aside and segregated in trust by the Company (if the Company shall act as its own Paying Agent), for the Holders of such Securities; provided that, if such Securities are to be redeemed at the option of the Company, notice of such redemption has been duly given pursuant to this Indenture or provision therefor satisfactory to the Trustee has been made;
provided, however , that in determining whether the Holders of the requisite principal amount of the Outstanding Securities have given any request, demand, authorization, direction, notice,
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consent or waiver hereunder, Securities owned by the Company or any other obligor upon the Securities or any Affiliate of the Company or of such other obligor shall be disregarded and deemed not to be Outstanding, except that, in determining whether the Trustee shall be protected in relying upon any such request, demand, authorization, direction, notice, consent or waiver, only Securities which the Trustee knows to be so owned shall be so disregarded.
Paying Agent means any Person authorized by the Company to pay the principal of or interest on any Securities on behalf of the Company. The initial Paying Agent shall be The Northern Trust Company.
Person means any individual, corporation, partnership, joint venture, association, joint-stock company, trust, unincorporated organization or government or any agency or political subdivision thereof.
Plan means the Duke Energy PremierNotes Plan established by the Company and in effect on the date hereof, as the same may be amended or supplemented from time to time.
principal amount, when used with reference to a Security, means, as of a particular time, the sum of the funds invested in a Security, plus the sum of interest accrued, paid and reinvested in a Security, less the sum of redemptions from time to time.
Redemption Date, when used with respect to any Security to be redeemed, means the date fixed for such redemption by or pursuant to this Indenture.
Responsible Officer, when used with respect to the Trustee, means any officer within the corporate trust department of the Trustee having direct responsibility for the administration of this Indenture, or any other officer to whom any corporate trust matter is referred because of such officers knowledge of and familiarity with the particular subject.
Security or Securities means any Variable Denomination Floating Rate Demand Note or Notes, as the case may be, issued pursuant to the Plan and under this Indenture, which are evidenced by an individual record or entries in the name of the particular Holder established on the Security Register.
Security Register has the meaning specified in Section 1002.
Security Registrar means the agent of the Company maintaining the Security Register pursuant to Section 1002.
Subsidiary means, with respect to the Company, a corporation more than 50% of the outstanding voting stock of which is owned, directly or indirectly, by the Company or by one or more other Subsidiaries, or by the Company and one or more other Subsidiaries. For the purposes of this definition, voting stock means stock which ordinarily has voting power for the election of directors, whether at all times or only so long as no senior class of stock has such voting power by reason of any contingency.
Trustee means the Person named as the Trustee in the first paragraph of this instrument until a successor Trustee shall have become such pursuant to the applicable
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provisions of this Indenture, and thereafter Trustee shall mean or include its successors as Trustee hereunder.
Trust Indenture Act means the Trust Indenture Act of 1939 as in force at the date as of which this instrument was executed, except as provided in Section 905.
United States means the United States of America (including the States and the District of Columbia), its territories, its possessions and other areas subject to its jurisdiction.
Vice President, when used with respect to the Company, means any vice president, whether or not designated by a number or a word or words added before or after the title vice president.
Section 102. Compliance Certificates and Opinions .
Upon any application or request by the Company to the Trustee to take any action under any provision of this Indenture, the Company shall furnish to the Trustee an Officers Certificate stating that all conditions precedent, if any, provided for in this Indenture relating to the proposed action have been complied with and an Opinion of Counsel stating that in the opinion of such counsel all such conditions precedent, if any, have been complied with, except that in the case of any such application or request as to which the furnishing of such documents is specifically required by any provision of this Indenture relating to such particular application or request, no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture (other than annual certificates provided pursuant to Section 1004) shall include:
(1) a statement that each individual signing such certificate or opinion has read such covenant or condition and the definitions herein relating thereto;
(2) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such individual, such condition or covenant has been complied with.
Section 103. Form of Documents Delivered to Trustee .
In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters
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and one or more other such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations by, counsel, unless such officer knows that the certificate or opinion or representations with respect to the matters upon which his certificate or opinion is based are erroneous. Any such certificate or Opinion of Counsel may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an officer or officers of the Company stating that the information with respect to such factual matters is in the possession of the Company, unless such counsel knows that the certificate or opinion or representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this Indenture, they may, but need not, be consolidated and form one instrument.
Section 104. Acts of Holders .
(a) Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by agent duly appointed in writing; and, except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments are delivered to the Trustee and, where it is hereby expressly required, to the Company. Such instrument or instruments (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the Act of the Holders signing such instrument or instruments. Proof of execution of any such instrument or of a writing appointing any such agent shall be sufficient for any purpose of this Indenture and (subject to Section 601) conclusive in favor of the Trustee and the Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such instrument or writing may be proved by the affidavit of a witness of such execution or by a certificate of a notary public or other officer authorized by law to take acknowledgments of deeds, certifying that the individual signing such instrument or writing acknowledged to him the execution thereof. Where such execution is by a signer acting in a capacity other than his individual capacity, such certificate or affidavit shall also constitute sufficient proof of his authority. The fact and date of the execution of any such instrument or writing, or the authority of the Person executing the same, may also be proved in any other manner which the Trustee deems sufficient.
(c) The ownership of Securities shall be as proved by the Security Register.
(d) Any request, demand, authorization, direction, notice, consent, waiver or other Act of the Holder of any Security shall bind every future Holder of the same Security and the Holder of every Security issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in respect of anything done, omitted or suffered to be done by the Trustee or the Company in reliance thereon, whether or not notation of such action is made upon such Security.
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(e) The Company may set a record date for purposes of determining the identity of Holders entitled to give any request, demand, authorization, direction, notice, consent, waiver or other Act which record date shall be the later of ten days prior to the first solicitation of such action or the date of the most recent list of Holders furnished to the Trustee pursuant to Section 701 of this Indenture prior to such solicitation. If a record date is fixed, those persons who were Holders of Securities at such record date (or their duly designated proxies), and only those persons shall be entitled to take such action or to revoke any such previous action, whether or not such persons continue to be Holders after such record date. No such request, demand, authorization, direction, notice, consent, waiver or other Act shall be valid or effective for more than 120 days after such record date.
Section 105. Notices, Etc., to Trustee, Company and Agent Bank .
Any request, demand authorization, direction, notice, consent, waiver or Act of Holders or other document provided or permitted by this Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient for every purpose hereunder if made, given, furnished or filed in writing to or with the Trustee at its Corporate Trust Office, Attention: Corporate Finance, or
(2) the Company by the Trustee or by any Holder shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, to the Company addressed to it at the address of its principal office specified in the first paragraph of this instrument or at any other address previously furnished in writing to the Trustee by the Company; or
(3) the Agent Bank by the Company or the Trustee shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, to the Agent Bank at The Northern Trust Company, 50 South LaSalle Street, Chicago, Illinois 60603, Attention: Division Manager, Treasury Management Services, or at any address previously furnished in writing to the Company and the Trustee by the Agent Bank; or
(4) the Agent Bank by any Holder shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if given in such manner, including notification address, as may from time to time be determined by the Committee, following consultation with the Agent Bank, as most recently provided in writing to the Holders or publicly announced or published by the Company in any appropriate format or manner, including posting on any Company-sponsored Internet Web site relating to investment in or redemption of the Securities.
The Trustee agrees to accept and act upon instructions or directions pursuant to this Indenture sent by unsecured e-mail, facsimile transmission or other similar unsecured electronic methods; provided, however, that (a) the party providing such electronic instructions or directions, subsequent to the transmission thereof, shall provide the originally executed instructions or directions to the Trustee in a timely manner and (b) such originally executed
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instructions or directions shall be signed by an authorized representative of the party providing such instructions or directions. The Trustee shall not be liable for any losses, costs or expenses arising directly or indirectly from the Trustees reliance upon and compliance with such electronic instructions or directions notwithstanding such instructions or directions conflict or are inconsistent with a subsequent written instruction or direction or if the subsequent written instruction or direction is never received. The party providing instructions or directions by unsecured e-mail, facsimile transmission or other similar unsecured electronic methods, as aforesaid, agrees to assume all risks arising out of the use of such electronic methods to submit instructions and directions to the Trustee, including without limitation the risk of the Trustee acting on unauthorized instructions, and the risk of interception and misuse by third parties.
Section 106. Notice to Holders; Waiver .
Where this Indenture provides for notice to Holders of any event, such notice shall be sufficiently given (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, to each Holder affected by such event, at his address as it appears in the Security Register, not later than the latest date, and not earlier than the earliest date, prescribed for the giving of such notice. In any case where notice to Holders is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder shall affect the sufficiency of such notice with respect to other Holders. Where this Indenture provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by reason of any other cause it shall be impracticable to give such notice by mail, then such notification as shall be made with the approval of the Trustee shall constitute a sufficient notification for every purpose hereunder.
Section 107. Conflict with Trust Indenture Act .
If any provision hereof limits, qualifies or conflicts with the duties imposed by any of Sections 310 to 317, inclusive, of the Trust Indenture Act through operation of Section 318(c) thereof, such imposed duties shall control.
Section 108. Effect of Headings and Table of Contents .
The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof.
Section 109. Successors and Assigns .
All covenants and agreements in this Indenture by the Company shall bind its successors and assigns, whether so expressed or not.
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Section 110. Separability Clause .
In case any provision in this Indenture or in the Securities shall 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 111. Benefits of Indenture .
Nothing in this Indenture or in the Securities, express or implied, shall give to any Person, other than the parties hereto and their successors hereunder and the Holders, any benefit or any legal or equitable right, remedy or claim under this Indenture.
Section 112. Governing Law ; Waiver of Jury Trial .
This Indenture and the Securities shall be governed by and construed in accordance with the laws of the State of New York. Each of the Company, the Trustee and the Holders hereby irrevocably waive, 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 Indenture or the Securities.
Section 113. Legal Holidays .
In any case where any Redemption Date shall not be a Business Day, then (notwithstanding any other provision of this Indenture or of the Securities) payment of the redemption price need not be made on such date, but may be made on the next succeeding Business Day with the same force and effect as if made on the Redemption Date, provided that no interest shall accrue on the payment so deferred for the period from and after such Redemption Date.
Section 114. Persons Deemed Owners .
The Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name a Security is registered as the owner of such Security for the purpose of receiving payment of principal of and interest on such Security and for all other purposes whatsoever, whether or not such Security be overdue, and neither the Company, the Trustee nor any agent of the Company or the Trustee shall be affected by notice to the contrary.
ARTICLE TWO
AMOUNT, FORM, PRIORITY, PAYMENT, INTEREST AND
RESTRICTION ON TRANSFER OF SECURITIES
Section 201. Amount Unlimited .
The Securities shall be issued pursuant to the Plan and under this Indenture in an unlimited aggregate principal amount. The Securities shall not be required to be in any particular denomination, whether minimum or otherwise.
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Section 202. Form .
The Securities shall be issued in uncertificated form and no certificate or other instrument evidencing the Securities will be issued. The Securities shall have no stated maturity and shall be redeemable at the option of the Company or the Holders thereof in accordance with the provisions contained in Article Three.
Section 203. Priority .
The Securities shall be unsecured and shall rank pari passu with all other unsecured and unsubordinated indebtedness of the Company.
Section 204. Payment .
The Securities shall be payable at the office or agency of the Company maintained for such purpose as may from time to time be designated in writing to the Trustee in such coin or currency of the United States of America as at the time of payment is legal tender for the payment of public and private debts. The initial such agency of the Company shall be The Northern Trust Company.
Section 205. Restriction on Transfer of Securities .
The Securities may not be transferred, in whole or in part, either directly or by operation of law or otherwise, except if and to the extent provided in the Plan.
ARTICLE THREE
REDEMPTION OF SECURITIES
Section 301. Redemption of All or Part of the Securities .
The Company may redeem, at any time in its discretion, all or any portion of any of the Securities issued pursuant to the Plan and under this Indenture. In case the Company shall desire to exercise any right to redeem all, or, as the case may be, any part of the Securities, it shall fix a date for redemption and shall mail or cause to be mailed a notice of such redemption at least 30 and not more than 60 days (except as otherwise provided in the Plan) prior to the date fixed for redemption to the Holders of Securities so to be redeemed at their last addresses as the same appear on the Security Register and to the Trustee. Such mailing shall be by first class mail or by such other method as shall be provided for in the Plan. The notice, if mailed or otherwise given in accordance with the method provided for in the Plan, shall be conclusively presumed to have been duly given, whether or not the Holder receives such notice. In any case, failure to give such notice by mail or such other method or any defect in the notice to the holder of any Security designated for redemption as a whole or in part shall not affect the validity of the proceedings for the redemption of any other Security.
Each such notice of redemption pursuant to this Section 301 shall specify the Redemption Date, the principal amount of the Security being redeemed, the manner in which the redemption price for the Security being redeemed shall be paid (which shall be by check mailed to the
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Holder unless otherwise specified in such notice) and that on and after the Redemption Date any interest on the Security, or on the portions thereof, being redeemed will cease to accrue.
Section 302. Redemption of a Specified Holders Securities .
(a) In addition to its right to redeem all or any part of the Securities under Section 301, the Company may redeem the Securities of specified Holders as set forth in this Section 302.
(b) The Company may redeem, at any time, in its discretion, all of the Securities of a Holder if the aggregate principal amount of the Securities held by such Holder is below the Minimum Account Balance and no investment has been made in Securities by such Holder (other than interest accrued and reinvested pursuant to provisions of the Plan) for a period of three calendar months immediately preceding the determination of such deficiency (or such other period as the Committee from time to time may determine). The Company will notify a Holder of its intention to redeem such Holders Securities under this Section 302(b). If such Holder does not make additional investments in Securities to increase the aggregate principal amount of the Securities held by such Holder to equal or exceed the Minimum Account Balance during the period of thirty (30) days following the date of such notice, the Company may redeem all of such Holders Securities on the thirty-first (31 st ) day following the date of such notice, which date shall be the Redemption Date for the redemption of such Securities. Such notice shall specify that on and after the Redemption Date any interest on the Securities being redeemed will cease to accrue.
(c) The Company may redeem, at any time, in its discretion, all or any portion of the Securities of a Holder if the aggregate principal amount of the Securities held by such Holder exceeds the Maximum Account Balance for a continuing period of three calendar months immediately preceding the determination of such excess (or such other period as the Committee from time to time may determine). The Company will notify a Holder of its intention to redeem such Holders Securities under this Section 302(c) to the extent the aggregate principal amount thereof exceeds the Maximum Account Balance (or such greater amount as the Company may specify in such notice). If such Holder does not redeem Securities in an amount sufficient to reduce the aggregate principal amount of the Securities held by such Holder to an amount equal to or less than the Maximum Account Balance during the period of thirty (30) days following the date of such notice, the Company may redeem such Holders Securities to the extent the aggregate principal amount thereof exceeds the Maximum Account Balance (or such greater amount as is specified by the Company in such notice) on the thirty-first (31 st ) day following the date of such notice, which date shall be the Redemption Date for the redemption of such amount of the Securities. Such notice shall specify that on and after the Redemption Date any interest on the Securities being redeemed will cease to accrue.
(d) The Company shall have the right to redeem any Securities of any Holder who is not or is no longer eligible to invest in the Securities in accordance with the Plan, or who has abused or misused the investment or redemption provisions applicable to the Securities or whose investments are otherwise inconsistent with the objectives of the Plan, in each case as the Company determines in its sole judgment and discretion. In the event of such a redemption, the Company shall notify the Holder of its intention to redeem, pursuant to this Section 302(d), in
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full such Holders Securities on the third Business Day following the date of the Companys notice, which date shall be the Redemption Date for the redemption of such Securities. Such notice shall specify that on and after the Redemption Date any interest on the Securities being redeemed will cease to accrue.
Section 303. Payment of Redemption Price for Company Redemptions; Selection of Securities for Redemption.
If notice of redemption has been given as provided in Section 301 or Section 302, the Securities, or portions thereof, with respect to which such notice has been given shall become due and payable on the Redemption Date at a redemption price equal to 100% of the principal amount thereof being redeemed plus accrued and unpaid interest thereon to the Redemption Date less any applicable fees established under the Plan, and on and after the Redemption Date (unless the Company shall default in the payment of such Securities, together with any interest accrued and unpaid to the Redemption Date and less any applicable fees) any interest on the Securities, or on the portions thereof, so called for redemption shall cease to accrue.
On or prior to the Redemption Date specified in the notice of redemption given as provided in Section 301 or Section 302, the Company will deposit with the Trustee, the Agent Bank or with one or more Paying Agents an amount of money sufficient to redeem on the Redemption Date all the Securities, or portions thereof, so called for redemption, together with accrued and unpaid interest to the date fixed for redemption less any applicable fees established under the Plan. If less than all the Securities are to be redeemed by the Company pursuant to Section 301, the Company will give the Agent Bank notice not less than 60 days (or such shorter period as shall be acceptable to the Agent Bank) prior to the Redemption Date as to the aggregate principal amount of Securities to be redeemed and the Agent Bank shall select or cause to be selected, in such manner as in its sole discretion it shall deem appropriate and fair, the Securities or portions thereof to be redeemed.
Section 304. Redemption at the Option of the Holder .
(a) Subject to the right of the Company to establish from time to time a minimum amount for any redemption in part, a Security may be redeemed in whole or in part at any time at the option of, and upon the demand by, the Holder by delivering to the Agent Bank in writing a notice to such effect, including by bank check drawn on the Agent Bank, or by following such other procedures as shall be established under the Plan. Such notice shall contain the information specified by the Company from time to time as the information which is required by the Company in order to properly process the redemption request. The Company may establish from time to time additional methods of redemption that may be elected by the Holder.
(b) Upon receipt by the Agent Bank of an appropriate redemption notice as provided for in clause (a) of this Section 304, the Securities, or portions thereof, with respect to which such notice has been given shall become due and payable on the Redemption Date (which date shall be no later than the next Business Day following receipt of such notice) at a redemption price equal to 100% of the principal amount thereof plus, and in the case of a redemption of all Securities held by such Holder, accrued and unpaid interest thereon to the Redemption Date less applicable fees established under the Plan. In the case of any redemption, whether in whole or in
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part, on and after the Redemption Date (unless the Company shall default in the payment of the Securities, together with any interest accrued to the Redemption Date) any interest on the Securities (or portions thereof) so called for redemption shall cease to accrue.
(c) On or prior to the Redemption Date specified in the notice of redemption given as provided in this Section 304, the Company will deposit with the Trustee, the Agent Bank or with one or more Paying Agents an amount of money sufficient to redeem on the Redemption Date all the Securities, or portions thereof, with respect to which the notice of redemption has been given, together with accrued and unpaid interest to the date fixed for redemption. The amount of any redemption at the option of the Holder under this Section 304 shall be paid by check sent to the Holder at such Holders registered address, provided that the Company may establish from time to time additional methods that may be elected by the Holder for this payment of such redemption amount.
Section 305. Redemption by Offsetting Application of Fees .
The Company may from time to time redeem, without prior notice to any Holder, all or a portion of the Securities of a Holder in an amount equal to any applicable fees established under the Plan that are then owed by such Holder. In such instance, the redemption proceeds shall be deemed paid by reducing the principal amount of such Holders Securities by the amount of such unpaid fees, which reduction shall be applied to the payment of such fees. Such redemption shall be effective upon notice from the Company to the Agent Bank, and the date of such notice shall be the Redemption Date for the redemption of such amount of the Securities. On the Redemption Date any interest on the portion of the Securities so called for redemption shall cease to accrue. Notice of such redemptions shall be provided to any such Holder in the manner and at the times as determined from time to time by the Committee.
ARTICLE FOUR
SATISFACTION AND DISCHARGE OF INDENTURE
Section 401. Satisfaction and Discharge of Indenture .
If at any time (a) the Company shall have terminated the Plan pursuant to its provisions, (b) all the Securities shall have become due and payable, (c) the Company shall have deposited or caused to be deposited with the Trustee as trust funds the entire amount sufficient to pay all the Securities (other than Securities for whose payment money has theretofore been deposited in trust and thereafter repaid to the Company as provided in Section 1003), including principal and interest due or to become due to such date of maturity or, if the Company shall have given notice for the full redemption of all outstanding Securities, the date of redemption, and (d) the Company shall have paid or caused to be paid all other sums payable hereunder by the Company, then this Indenture shall cease to be of further effect, and the Trustee, on demand of and at the cost and expense of the Company shall execute proper instruments acknowledging satisfaction of and discharging this Indenture. The Company agrees to reimburse the Trustee for any costs or expenses thereafter reasonably and properly incurred by the Trustee in connection with this Indenture, the Plan or the Securities.
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Section 402. Application of Trust Money .
All moneys deposited with the Trustee pursuant to Section 401 shall be held in trust and applied by it to the payment, either directly or through any Paying Agent, to the Holders of the Securities for the payment of which such moneys have been deposited with the Trustee of all sums due and to become due thereon for principal and interest. The Trustee shall be under no obligation to invest or pay interest on any moneys so held in trust.
ARTICLE FIVE
REMEDIES
Section 501. Events of Default .
Events of Default means any one of the following events (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body):
(1) default in the payment of any part of or all the principal of or interest on any Security as and when the same shall be due and payable, in accordance with the then current provisions and rules and regulations of the Plan and this Indenture; provided, however, that (a) the failure of the Company to make any payment of the principal of or interest on any Security, or any delay in making such payment shall not be considered in determining whether an Event of Default shall have occurred if (i) the Agent Bank in good faith believes that the Security is subject to a conflicting claim, attachment, lien or proceeding, or any person demanding such payment is not, or may not be, legally entitled thereto, or the amount of the payment demanded exceeds the principal amount of the Security according to the Security Register, or the demand for payment has not been made in accordance with the then current provisions and rules and regulations of the Plan, or the payment cannot be made in accordance with the then current provisions and rules and regulations of the Plan or (ii) the Company shall have paid over to the Trustee for deposit to an account not subject to offset, charge or encumbrance by the Trustee the amount of the principal of or interest on any Security which has become due and payable, and if requested by the Trustee the Company shall have furnished the Trustee with an Officers Certificates as to the matters described in the foregoing clauses (i) and (ii); and (b) an administrative error relating to a Security or improperly identifying the Security of a Holder shall not be considered in determining whether an Event of Default shall have occurred unless such error shall have continued uncorrected for a period of sixty days after written notification thereof to the Agent Bank and the Trustee by the related Holder; or
(2) default in the performance, or breach, of any covenant of the Company in this Indenture (other than a default referred to in clause (1) above), and continuance of such default or breach for a period of 60 days after there has been given, by registered or certified mail, to the Company by the Trustee or to the Company and the Trustee by the Holders of at least a majority in principal amount of the Outstanding Securities a written
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notice specifying such default or breach and requiring it to be remedied and stating that such notice is a Notice of Default hereunder.
Section 502. Acceleration of Maturity; Rescission and Annulment .
If an Event of Default occurs and is continuing, then in every such case the Trustee or the Holders of not less than a majority in the principal amount of the Outstanding Securities may declare all of the Securities to be due and payable immediately, by a notice in writing to the Company (and to the Trustee if given by Holders), and upon any such declaration such principal amount shall become immediately due and payable.
At any time after such a declaration of acceleration with respect to the Securities has been made and before a judgment or decree for payment of the money due has been obtained by the Trustee as hereinafter in this Article provided, the Holders of a majority in principal amount of the Outstanding Securities, by written notice to the Company and the Trustee, may rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum sufficient to pay
(A) the principal of any Securities which have become due otherwise than by such declaration of acceleration and interest thereon at the rate or rates prescribed therefor in such Securities;
(B) to the extent that payment of such interest is lawful, interest upon overdue interest at the rate or rates prescribed therefor in such Securities; and
(C) all sums paid or advanced by the Trustee hereunder and the reasonable compensation expenses, disbursements and advances of the Trustee, its agents and counsel;
and
(2) all Events of Default with respect to the Securities, other than the non-payment of the principal of Securities which have become due solely by such declaration of acceleration, have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right consequent thereon.
Section 503. Collection of Indebtedness and Suits for Enforcement by Trustee .
The Company covenants that if default is made in the payment of the principal of or interest on any Security when the same shall have become due and payable the Company will, upon demand of the Trustee, pay to it, for the benefit of the Holders of such Securities, the whole amount then due and payable on such Securities for principal and interest and, to the extent that payment of such interest shall be legally enforceable, interest on any overdue principal and on any overdue interest, at the rate or rates prescribed therefor in such Securities, and, in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection,
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including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand, the Trustee, in its own name and as trustee of an express trust, may institute a judicial proceeding for the collection of the sums so due and unpaid, may prosecute such proceeding to judgment or final decree and may enforce the same against the Company or any other obligor upon such Securities and collect the moneys adjudged or decreed to be payable in the manner provided by law out of the property of the Company or any other obligor upon such Securities, wherever situated.
If an Event of Default occurs and is continuing, the Trustee may in its discretion proceed to protect and enforce its rights and the rights of the Holders of the Securities by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper remedy.
Section 504. Trustee May File Proofs of Claim .
In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relative to the Company or any other obligor upon the Securities or the property of the Company or of such other obligor or their creditors, the Trustee (irrespective of whether the principal of the Securities shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made any demand on the Company for the payment of overdue principal or interest) shall be entitled and empowered, by intervention in such proceeding or otherwise,
(i) to file and prove a claim for the whole amount of principal and interest owing and unpaid in respect of the Securities and to file such other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee and any predecessor Trustee, their agents and counsel) and of the Holders allowed in such judicial proceeding, and
(ii) to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due it for the reasonable compensation, expenses, disbursements and advances of the Trustee and any predecessor Trustee, their agents and counsel, and any other amounts due the Trustee and any predecessor Trustee under Section 607.
Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement,
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adjustment or composition affecting the Securities or the rights of any Holder thereof or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.
Section 505. Trustee May Enforce Claims Without Possession of Securities .
All rights of action and claims under this Indenture or the Securities may be prosecuted and enforced by the Trustee without the possession of any of the Securities or the production thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment shall, after provision for the payment of the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, be for the ratable benefit of the Holders of the Securities.
Section 506. Application of Money Collected .
Any money collected by the Trustee pursuant to this Article shall be applied in the following order, at the date or dates fixed by the Trustee:
FIRST: To the payment of all amounts due the Trustee and any predecessor Trustee under Section 607; and
SECOND: To the payment of the amounts then due and unpaid for principal of and interest on the Securities in respect of which or for the benefit of which such money has been collected, ratably, without preference or priority of any kind, according to the amounts due and payable on such Securities for principal and interest, respectively.
Section 507. Limitation on Suits .
No Holder of any Security shall have any right to institute any proceeding, judicial or otherwise, with respect to this Indenture, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless
(1) such Holder has previously given written notice to the Trustee of a continuing Event of Default;
(2) the Holders of not less than a majority in principal amount of the Outstanding Securities shall have made written request to the Trustee to institute proceedings in respect of such Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable indemnity against the costs, expenses and liabilities to be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given to the Trustee during such 60-day period by the Holders of a majority in principal amount of the Outstanding Securities;
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it being understood and intended that no one or more of such Holders shall have any right in any manner whatever by virtue of, or by availing of, any provision of this Indenture to affect, disturb or prejudice the rights of any other of such Holders, or to obtain or to seek to obtain priority or preference over any other of such Holders or to enforce any right under this Indenture, except in the manner herein provided and for the equal and ratable benefit of all such Holders.
Section 508. Unconditional Right of Holders to Receive Principal, Premium and Interest .
Notwithstanding any other provision in this Indenture, the Holder of any Security shall have the right, which is absolute and unconditional, to receive payment pursuant to the Plan of the principal of and interest on such Security on the applicable due date provided therefor (or, in the case of redemption, on the Redemption Date), less applicable fees established under the Plan to which the Holders shall be deemed to consent, and to institute suit for the enforcement of any such payment, and such rights shall not be impaired or affected without the consent of such Holder.
Section 509. Restoration of Rights and Remedies .
If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case, subject to any determination in such proceeding, the Company, the Trustee and the Holders shall be restored severally and respectively to their former positions hereunder and thereafter all rights and remedies of the Trustee and the Holders shall continue as though no such proceeding had been instituted.
Section 510. Rights and Remedies Cumulative .
No right or remedy herein conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.
Section 511. Delay or Omission Not Waiver .
No delay or omission of the Trustee or of any Holder of any Securities to exercise any right or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article or by law to the Trustee or to the Holders may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the Holders, as the case may be.
Section 512. Control by Holders .
The Holders of a majority in principal amount of the Outstanding Securities shall have the right to direct the time, method and place of conducting any proceeding for any remedy
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available to the Trustee, or exercising any trust or power conferred on the Trustee, with respect to the Securities, provided that
(1) such direction shall not be in conflict with any rule of law or with this Indenture,
(2) subject to Section 601, the Trustee shall have the right to decline to follow any such direction if the Trustee shall reasonably determine, in good faith, that the action or proceeding so directed would be unjustly prejudicial to any Holders not joining in such direction or would involve the Trustee in any personal liability unless indemnified to its reasonable satisfaction, and
(3) the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction.
Section 513. Waiver of Past Defaults .
The Holders of not less than a majority in principal amount of the Outstanding Securities may on behalf of the Holders of all the Securities waive any past default hereunder and its consequences, except a default
(1) in the payment of the principal of or interest on any Security, or
(2) in respect of a covenant or provision hereof which under Article Nine cannot be modified or amended without the consent of the Holder of each Outstanding Security affected.
Upon any such waiver, such default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon.
Section 514. Undertaking for Costs .
All parties to this Indenture agree, and each Holder of any Security by his acceptance thereof shall be deemed to have agreed, that any court may in its discretion require, in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action taken, suffered or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys fees, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; but the provisions of this Section shall not apply to any suit instituted by the Company, to any suit instituted by the Trustee, to any suit instituted by any Holder, or group of Holders, holding in the aggregate more than 10% in principal amount of the Outstanding Securities, or to any suit instituted by any Holder for the enforcement of the payment of the principal of or interest on the Security on or after the applicable due date therefor provided pursuant to the Plan (or, in the case of redemption, on or after the Redemption Date).
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Section 515. Waiver of Stay or Extension Laws .
The Company covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay or extension law wherever enacted, now or any time hereafter in force, which may affect the covenants or the performance of this Indenture; and the Company (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such law had been enacted.
ARTICLE SIX
THE TRUSTEE
Section 601. Certain Duties and Responsibilities .
(a) Except during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Indenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of the Indenture; but in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Indenture (but need not confirm or investigate the accuracy of any mathematical calculations or other facts, statements, opinions or conclusions stated therein).
(b) In case an Event of Default has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent man would exercise or use under the circumstances in the conduct of his own affairs.
(c) No provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that
(1) this Subsection shall not be construed to limit the effect of Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts;
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(3) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Holders of a majority in principal amount of the Outstanding Securities, determined as provided in Section 512, relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture with respect to the Securities; and
(4) no provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section.
Section 602. Notice of Defaults .
Within 90 days after the occurrence of any default hereunder with respect to the Securities, the Trustee shall transmit by mail to all Holders of Securities, as their names and addresses appear in the Security Register, notice of such default hereunder known to the Trustee, unless such default shall have been cured or waived: provided, however, that, except in the case of a default in the payment of the principal of or interest on any Security, the Trustee shall be protected in withholding such notice if and so long as the board of directors, the executive committee or a trust committee of directors or Responsible Officers of the Trustee in good faith determine that the withholding of such notice is in the interest of the Holders of Securities; and provided, further, that in the case of any default of the character specified in Section 501(2) with respect to the Securities, no such notice to Holders shall be given until at least 30 days after the occurrence thereof. For the purpose of this Section, the term default means any event which is, or after notice or lapse of time or both would become, an Event of Default.
Section 603. Certain Rights of Trustee .
Subject to the provisions of Section 601:
(a) the Trustee may rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document believed to be genuine and to have been signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be sufficiently evidenced by a Company Request or Company Order and any resolution of the Board of Directors may be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action
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hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officers Certificate;
(d) the Trustee may consult with counsel and the written advice, or oral advice subsequently confirmed in writing, of such counsel or any Opinion of 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;
(e) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders pursuant to this Indenture, unless such Holders shall have offered to the Trustee reasonable security or indemnity against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit;
(g) the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder;
(h) the Trustee shall not be liable for any action taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by the Indenture;
(i) the Trustee may request that the Company deliver an Officers Certificate setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Indenture, which Officers Certificate may be signed by any person authorized to sign an Officers Certificate, including any person specified as so authorized in any such certificate previously delivered and not superseded;
(j) in no event shall the Trustee 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 the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action;
(k) the Trustee shall not be charged with knowledge of any default hereunder or any Event of Default unless either (i) a Responsible Officer of the Trustee shall have actual knowledge of such default or Event of Default or (ii) written notice of such default or Event of Default shall have been given to the Trustee by the Company or by any Holder of the Securities and such notice references the Indenture and the Securities;
(l) in no event shall the Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces
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beyond its 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 and hardware) services; it being understood that the Trustee shall use reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances;
(m) the rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder and by any other agent or custodian employed to act hereunder; and
(n) in no event shall the Trustee be liable for the misconduct or negligence or for any acts or omissions of the Agent Bank.
Section 604. Not Responsible for Recitals or Issuance of Securities .
The recitals contained herein shall be taken as the statements of the Company, and the Trustee assumes no responsibility for their correctness. The Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Securities. The Trustee shall not be accountable for the use or application by the Company of Securities or the proceeds thereof.
Section 605. May Hold Securities .
Subject to the provisions of the Plan with respect to Persons who may hold Securities, the Trustee, the Agent Bank, any Paying Agent, any Security Registrar or any other agent of the Company, in its individual or any other capacity, may become the owner of Securities and, subject to Section 608 and the provisions of the Trust Indenture Act, may otherwise deal with the Company with the same rights it would have if it were not Trustee, Agent Bank, Paying Agent, Security Registrar or such other agent.
Section 606. Money Held in Trust .
Money held by the Trustee in trust hereunder need not be segregated from other funds except to the extent required by law. The Trustee shall be under no liability for interest on any money received by it hereunder except as otherwise agreed with the Company.
Section 607. Compensation and Reimbursement .
The Company agrees:
(1) to pay to the Trustee from time to time such compensation as shall be agreed to in writing between the Company and the Trustee for all services rendered by it hereunder (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the Trustee upon its request for all reasonable expenses, disbursements and advances incurred or
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made by the Trustee in accordance with any provision of this Indenture (including the reasonable compensation and the expenses and disbursements of its counsel), except any such expense, disbursement or advance as may be attributable to its negligence or bad faith; and
(3) to indemnify each of the Trustee and any predecessor Trustee for, and to hold it harmless against, any loss, liability or expense incurred without negligence or bad faith on its part, arising out of or in connection with the acceptance or administration of the trust or trusts hereunder or the performance of its duties hereunder, including the costs and expenses of defending itself against any claim or liability in connection with the exercise or performance of any of its powers or duties hereunder.
The Trustee shall have a lien prior to the Securities upon all property and funds held by it hereunder for any amount owing it or any predecessor Trustee pursuant to this Section 607, except with respect to funds held in trust for the benefit of the Holders of particular Securities.
The provisions of this Section shall survive the satisfaction and discharge of this Indenture and the resignation or removal of the Trustee.
Section 608. Disqualification; Conflicting Interests .
The Trustee shall be subject to the provisions of Section 310(b) of the Trustee Indenture Act during the period of time provided for therein. Nothing herein shall prevent the Trustee from filing with the Commission the application referred to in the second-to-last paragraph of Section 310(b) of the Trust Indenture Act.
Section 609. Corporate Trustee Required; Eligibility .
There shall at all times be a Trustee hereunder which shall be a corporation organized and doing business under the laws of the United States of America, any State thereof or the District of Columbia, authorized under such laws to exercise corporate trust powers, having a combined capital and surplus of at least $50,000,000, subject to supervision or examination by Federal or State authority; provided, however, that if Section 310(a) of the Trust Indenture Act or the rules and regulations of the Commission under the Trust Indenture Act at any time permit a corporation organized and doing business under the laws of any other jurisdiction to serve as trustee of an indenture qualified under the Trust Indenture Act, this Section 609 shall be automatically amended to permit a corporation organized and doing business under the laws of any such other jurisdiction to serve as Trustee hereunder. If such corporation publishes reports of condition at least annually, pursuant to law or to the requirements of said supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such corporation shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. Neither the Company nor any person directly or indirectly controlling, controlled by or under common control with the Company may serve as Trustee. If at any time the Trustee shall cease to be eligible in accordance with the provisions of this Section, it shall resign immediately in the manner and with the effect hereinafter specified in this Article.
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Section 610. Resignation and Removal; Appointment of Successor .
(a) No resignation or removal of the Trustee and no appointment of a successor Trustee pursuant to this Article shall become effective until the acceptance of appointment by the successor Trustee in accordance with the applicable requirements of Section 611.
(b) The Trustee may resign at any time by giving written notice thereof to the Company. If the instrument of acceptance by a successor Trustee required by Section 611 shall not have been delivered to the Trustee within 30 days after the giving of such notice of resignation, the resigning Trustee may petition any court of competent jurisdiction for the appointment of a successor Trustee.
(c) The Trustee may be removed at any time by Act of the Holders of a majority in principal amount of the Outstanding Securities, delivered to the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608 after written request therefor by the Company or by any Holder who has been a bona fide Holder of a Security for at least six months, unless the Trustees duty to resign has been stayed as provided in Section 310(b) of the Trust Indenture Act, or
(2) the Trustee shall cease to be eligible under Section 609 and shall fail to resign after written request therefor by the Company or by any such Holder, or
(3) the Trustee shall become incapable of acting or shall be adjudged a bankrupt or insolvent or a receiver of the Trustee or of its property shall be appointed or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation,
then, in any case, (i) the Company by a Board Resolution may remove the Trustee, or (ii) subject to Section 514, any Holder who has been a bona fide Holder of a Security for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.
(e) If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of Trustee for any cause, the Company, by a Board Resolution, shall promptly appoint a successor Trustee and shall comply with the applicable requirements of Section 611. If, within one year after such resignation, removal or incapability, or the occurrence of such vacancy, a successor Trustee shall be appointed by Act of the Holders of a majority in principal amount of the Outstanding Securities delivered to the Company and the retiring Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance of such appointment in accordance with the applicable requirements of Section 611, become the successor Trustee and to that extent supersede the successor Trustee appointed by the Company. If no successor Trustee shall have been so appointed by the Company or the Holders and accepted appointment in the manner required by Section 611, any Holder who has been a bona fide Holder of a Security for at least six months may, on behalf of himself and all others
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similarly situated, petition any court of competent jurisdiction for the appointment of a successor Trustee.
(f) The Company shall give notice of each resignation and each removal of the Trustee and each appointment of a successor Trustee by mailing written notice of such event by first-class mail, postage prepaid, to all Holders of Securities as their names and addresses appear in the Security Register. Each notice shall include the name of the successor Trustee and the address of its Corporate Trust Office.
Section 611. Acceptance of Appointment by Successor .
(a) In case of the appointment hereunder of a successor Trustee, every such successor Trustee so appointed shall execute, acknowledge and deliver to the Company and to the retiring Trustee an instrument accepting such appointment, and thereupon the resignation or removal of the retiring Trustee shall become effective and such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee; but, on the request of the Company or the successor Trustee, such retiring Trustee shall, upon payment of its charges, execute and deliver an instrument transferring to such successor Trustee all the rights, powers and trusts of the retiring Trustee and shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder.
(b) Upon request of any such successor Trustee, the Company shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor Trustee all such rights, powers and trusts referred to in paragraph (a) of this Section.
(c) No successor Trustee shall accept its appointment unless at the time of such acceptance such successor Trustee shall be qualified and eligible under this Article.
Section 612. Merger, Conversion, Consolidation or Succession to Business .
Any corporation into which the Trustee may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any corporation succeeding to all or substantially all the corporate trust business of the Trustee, shall be the successor of the Trustee hereunder, provided such corporation shall be otherwise qualified and eligible under this Article, without the execution or filing of any paper or any further act on the part of any of the parties hereto.
Section 613. Preferential Collection of Claims Against Company .
(a) Subject to Subsection (b) of this Section, if the Trustee shall be or shall become a creditor, directly or indirectly, secured or unsecured, of the Company within three months prior to a default, as defined in Subsection (c) of this Section, or subsequent to such a default, then, unless and until such default shall be cured, the Trustee shall set apart and hold in a special account for the benefit of the Trustee individually, the Holders of the Securities and the holders of other indenture securities, as defined in Subsection (c) of this Section:
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(1) an amount equal to any and all reductions in the amount due and owing upon any claim as such creditor in respect of principal or interest, effected after the beginning of such three months period and valid as against the Company and its other creditors, except any such reduction resulting from the receipt or disposition of any property described in paragraph (2) of this Subsection, or from the exercise of any right of set-off which the Trustee could have exercised if a petition in bankruptcy had been filed by or against the Company upon the date of such default; and
(2) all property received by the Trustee in respect of any claims as such creditor, either as security therefor, or in satisfaction or composition thereof, or otherwise, after the beginning of such three months period, or an amount equal to the proceeds of any such property, if disposed of, subject, however, to the rights, if any, of the Company and its other creditors in such property or such proceeds.
Nothing herein contained, however, shall affect the right of the Trustee:
(A) to retain for its own account (i) payments made on account of any such claim by any Person (other than the Company) who is liable thereon, and (ii) the proceeds of the bona fide sale of any such claim by the Trustee to a third Person, and (iii) distributions made in cash, securities or other property in respect of claims filed against the Company in bankruptcy or receivership or in proceedings for reorganization pursuant to the Federal Bankruptcy Code or applicable State law;
(B) to realize, for its own account, upon any property held by it as security for any such claim, if such property was so held prior to the beginning of such three months period;
(C) to realize, for its own account, but only to the extent of the claim hereinafter mentioned, upon any property held by it as security for any such claim, if such claim was created after the beginning of such three months period and such property was received as security therefor simultaneously with the creation thereof, and if the Trustee shall sustain the burden of proving that at the time such property was received the Trustee had no reasonable cause to believe that a default, as defined in Subsection (c) of this Section, would occur within three months; or
(D) to receive payment on any claim referred to in paragraph (B) or (C), against the release of any property held as security for such claim as provided in paragraph (B) or (C), as the case may be, to the extent of the fair value of such property.
For the purposes of paragraphs (B), (C) and (D), property substituted after the beginning of such three months period for property held as security at the time of such substitution shall, to the extent of the fair value of the property released, have the same status as the property released, and, to the extent that any claim referred to in any of such paragraphs is created in renewal of or
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in substitution for or for the purpose of repaying or refunding any pre-existing claim of the Trustee as such creditor, such claim shall have the same status as such pre-existing claim.
If the Trustee shall be required to account, the funds and property held in such special account and the proceeds thereof shall be apportioned among the Trustee, the Holders and the holders of other indenture securities in such manner that the Trustee, the Holders and the holders of other indenture securities realize, as a result of payments from such special account and payments of dividends on claims filed against the Company in bankruptcy or receivership or in proceedings for reorganization pursuant to the Federal Bankruptcy Code or applicable State law, the same percentage of their respective claims, figured before crediting to the claim of the Trustee anything on account of the receipt by it from the Company of the funds and property in such special account and before crediting to the respective claims of the Trustee and the Holders and the holders of other indenture securities dividends on claims filed against the Company in bankruptcy or receivership or in proceedings for reorganization pursuant to the federal Bankruptcy Code or applicable State law, but after crediting thereon receipts on account of the indebtedness represented by their respective claims from all sources other than from such dividends and from the funds and property so held in such special account. As used in this paragraph, with respect to any claim, the term dividends shall include any distribution with respect to such claim, in bankruptcy or receivership or proceedings for reorganization pursuant to the Federal Bankruptcy Code or applicable State law, whether such distribution is made in cash, securities or other property, but shall not include any such distribution with respect to the secured portion, if any, of such claim. The court in which such bankruptcy, receivership or proceedings for reorganization is pending shall have jurisdiction (i) to apportion among the Trustee, the Holders and the holders of other indenture securities, in accordance with the provisions of this paragraph, the funds and property held in such special account and proceeds thereof, or (ii) in lieu of such apportionment, in whole or in part, to give to the provisions of this paragraph due consideration in determining the fairness of the distributions to be made to the Trustee and the Holders and the holders of other indenture securities with respect to their respective claims, in which event it shall not be necessary to liquidate or to appraise the value of any securities or other property held in such special account or as security for any such claim, or to make a specific allocation of such distributions as between the secured and unsecured portions of such claims, or otherwise to apply the provisions of this paragraph as a mathematical formula.
Any Trustee which has resigned or been removed after the beginning of such three months period shall be subject to the provisions of this Subsection as though such resignation or removal had not occurred. If any Trustee has resigned or been removed prior to the beginning of such three months period, it shall be subject to the provisions of this Subsection if and only if the following conditions exist:
(i) the receipt of property or reduction of claim, which would have given rise to the obligation to account, if such Trustee had continued as Trustee, occurred after the beginning of such three months period; and
(ii) such receipt of property or reduction of claim occurred within three months after such resignation or removal.
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(b) There shall be excluded from the operation of Subsection (a) of this Section a creditor relationship arising from:
(1) the ownership or acquisition of securities issued under any indenture, or any security or securities having a maturity of one year or more at the time of acquisition by the Trustee;
(2) advances authorized by a receivership or bankruptcy court of competent jurisdiction or by this Indenture, for the purpose of preserving any property which shall at any time be subject to the lien of this Indenture or of discharging tax liens or other prior liens or encumbrances thereon, if notice of such advances and of the circumstances surrounding the making thereof is given to the Holders at the time and in the manner provided in this Indenture;
(3) disbursements made in the ordinary course of business in the capacity of trustee under an indenture, transfer agent, registrar, custodian, paying agent, fiscal agent or depositary, or other similar capacity;
(4) an indebtedness created as a result of services rendered or premises rented; or an indebtedness created as a result of goods or securities sold in a cash transaction, as defined in Subsection (c) of this Section;
(5) the ownership of stock or of other securities of a corporation organized under the provisions of Section 25(a) of the Federal Reserve Act, as amended, which is directly or indirectly a creditor of the Company; and
(6) the acquisition, ownership, acceptance or negotiation of any drafts, bills of exchange, acceptances or obligations which fall within the classification of self-liquidating paper, as defined in Subsection (c) of this Section.
(c) For the purposes of this Section only:
(1) the term default means any failure to make payment in full of the principal of or interest on any of the Securities or upon the other indenture securities when and as such principal or interest becomes due and payable;
(2) the term other indenture securities means securities upon which the Company is an obligor outstanding under any other indenture (i) under which the Trustee is also trustee, (ii) which contains provisions substantially similar to the provisions of this Section, and (iii) under which a default exists at the time of the apportionment of the funds and property held in such special account;
(3) the term cash transaction means any transaction in which full payment for goods or securities sold is made within seven days after delivery of the goods or securities in currency or in checks or other orders drawn upon banks or bankers and payable upon demand;
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(4) the term self-liquidating paper means any draft, bill of exchange, acceptance or obligation which is made, drawn, negotiated or incurred by the Company for the purpose of financing the purchase, processing, manufacturing, shipment, storage or sale of goods, wares or merchandise and which is secured by documents evidencing title to, possession of, or a lien upon, the goods, wares or merchandise or the receivables or proceeds arising from the sale of the goods, wares or merchandise previously constituting the security, provided the security is received by the Trustee simultaneously with the creation of the creditor relationship with the Company arising from the making, drawing, negotiating or incurring of the draft, bill of exchange, acceptance or obligation;
(5) the term Company means any obligor upon the Securities; and
(6) the term Federal Bankruptcy Code means the Bankruptcy Code or Title 11 of the United States Code.
ARTICLE SEVEN
HOLDERS LIST AND REPORTS BY TRUSTEE AND COMPANY
Section 701. Company to Furnish Trustee Names and Addresses of Holders .
The Company will furnish or cause to be furnished to the Trustee
(a) semi-annually, not later than March 1 and September 1 in each year, a list, in such form as the Trustee may reasonably require, of the names and addresses of the Holders as of the preceding February 15 or August 15, as the case may be, and
(b) at such other times as the Trustee may request in writing, within 30 days after the receipt by the Company of any such request, a list of similar form and content as of a date not more than 15 days prior to the time such list is furnished.
excluding from any such list names and addresses received by the Trustee in its capacity as Security Registrar, if then so acting.
Section 702. Preservation of Information; Communications to Holders .
(a) The Trustee shall preserve, in as current a form as is reasonably practicable, the names and addresses of Holders contained in the most recent list furnished to the Trustee as provided in Section 701 and the names and addresses of Holders received by the Trustee in its capacity as Security Registrar, if then so acting. The Trustee may destroy any list furnished to it as provided in Section 701 upon receipt of a new list so furnished.
(b) If three or more Holders (herein referred to as applicants) apply in writing to the Trustee, and furnish to the Trustee reasonable proof that each such applicant has owned a Security for a period of at least six months preceding the date of such application, and such application states that the applicants desire to communicate with other Holders with respect to their rights under this Indenture or under the Securities and is accompanied by a copy of the form of proxy or other communication which such applicants propose to transmit, then the Trustee
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shall, within five New York Business Days after the receipt of such application, at its election, either
(i) afford such applicants access to the information preserved at the time by the Trustee in accordance with Section 702(a), or
(ii) inform such applicants as to the approximate number of Holders whose names and addresses appear in the information preserved at the time by the Trustee in accordance with Section 702(a), and as to the approximate cost of mailing to such Holders the form of proxy or other communication, if any, specified in such application.
If the Trustee shall elect not to afford such applicants access to such information, the Trustee shall, upon written request of such applicants, mail to each Holder whose name and address appear in the information preserved at the time by the Trustee in accordance with Section 702(a) a copy of the form of proxy or other communication which is specified in such request, with reasonable promptness after a tender to the Trustee of the material to be mailed and of payment, or provision for the payment, of the reasonable expenses of mailing, unless within five days after such tender the Trustee shall mail to such applicants and file with the Commission, together with a copy of the material to be mailed, a written statement to the effect that, in the opinion of the Trustee, such mailing would be contrary to the best interest of the Holders or would be in violation of applicable law. Such written statement shall specify the basis of such opinion. If the Commission, after opportunity for a hearing upon the objections specified in the written statement so filed, shall enter an order refusing to sustain any of such objections or if, after the entry of an order sustaining one or more of such objections, the Commission shall find, after notice and opportunity for hearing, that all the objections so sustained have been met and shall enter an order so declaring, the Trustee shall mail copies of such material to all such Holders with reasonable promptness after the entry of such order and the renewal of such tender; otherwise the Trustee shall be relieved of any obligation or duty to such applicants respecting their application.
(c) Every Holder of Securities, by receiving and holding the same, agrees with the Company and the Trustee that neither the Company nor the Trustee nor any agent of either of them shall be held accountable by reason of the disclosure of any such information as to the names and addresses of the Holders in accordance with Section 702, regardless of the source from which such information was derived, and that the Trustee shall not be held accountable by reason of mailing any material pursuant to a request made under Section 702(b).
Section 703. Reports by Trustee .
(a) Within 60 days after May 15 of each year beginning with the year 2011, the Trustee shall transmit by mail to all Holders, as their names and addresses appear in the Security Register, a brief report dated as of such May 15 with respect to any of the following events which may have occurred within the previous 12 months (but if no such event has occurred within such period, no report need be transmitted):
(1) any change to its eligibility under Section 609 and its qualifications under Section 608;
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(2) the creation of or any material change to a relationship specified in Section 310(b)(1) through Section 310(b)(10) of the Trust Indenture Act;
(3) the character and amount of any advances (and if the Trustee elects so to state, the circumstances surrounding the making thereof) made by the Trustee (as such) which remain unpaid on the date of such report, and for the reimbursement of which it claims or may claim a lien or charge, prior to that of the Securities, on any property or funds held or collected by it as Trustee, except that the Trustee shall not be required (but may elect) to report such advances if such advances so remaining unpaid aggregate not more than 1 / 2 of 1% of the principal amount of the Securities Outstanding on the date of such report;
(4) the amount, interest rate and maturity date of all other indebtedness owing by the Company (or by any other obligor on the Securities) to the Trustee in its individual capacity, on the date of such report, with a brief description of any property held as collateral security therefor, except an indebtedness based upon a creditor relationship arising in a manner described in Section 311(b)(2), (3), (4), or (6) of the Trust Indenture Act;
(5) the property and funds, if any, physically in the possession of the Trustee as such on the date of such report;
(6) any additional issue of Securities which the Trustee has not previously reported (for purposes of this report, all Securities issued under the Plan shall be treated as a single issue of Securities); and
(7) any action taken by the Trustee in the performance of its duties hereunder which it has not previously reported and which in its opinion materially affects the Securities, except action in respect of a default, notice of which has been or is to be withheld by the Trustee in accordance with Section 602.
(b) The Trustee shall transmit by mail to all Holders, as their names and addresses appear in the Security Register, a brief report with respect to the character and amount of any advances (and if the Trustee elects so to state, the circumstances surrounding the making thereof) made by the Trustee (as such) since the date of the last report transmitted pursuant to Subsection (a) of this Section (or if no such report has yet been so transmitted, since the date of execution of this instrument) for the reimbursement of which it claims or may claim a lien or charge, prior to that of the Securities, on property or funds held or collected by it as Trustee and which it has not previously reported pursuant to this Subsection, except that the Trustee shall not be required (but may elect) to report such advances if such advances remaining unpaid at any time aggregate 10% or less of the principal amount of the Securities Outstanding at such time, such report to be transmitted within 90 days after such time.
(c) A copy of each such report shall, at the time of such transmission to Holders, be filed by the Trustee with each stock exchange upon which any Securities are listed, with the Commission and with the Company. The Company will notify the Trustee when any Securities are listed on any stock exchange.
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Section 704. Reports by Company .
The Company shall:
(1) file with the Trustee, within 15 days after the Company is required to file the same with the Commission, copies of the annual reports and of the information, documents and other reports (or copies of such portions of any of the foregoing as the Commission may from time to time by rules and regulations prescribe) which the Company may be required to file with the Commission pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934; or, if the Company is not required to file information, documents or reports pursuant to either of said Sections, then it shall file with the Trustee and the Commission, in accordance with rules and regulations prescribed from time to time by the Commission, such of the supplementary and periodic information, documents and reports which may be required pursuant to Section 13 of the Securities Exchange Act of 1934 in respect of a security listed and registered on a national securities exchange as may be prescribed from time to time in such rules and regulations;
(2) file with the Trustee and the Commission, in accordance with rules and regulations prescribed from time to time by the Commission, such additional information, documents and reports with respect to compliance by the Company with the conditions and covenants of this Indenture as may be required from time to lime by such rules and regulations; and
(3) transmit by mail to all Holders, as their names and addresses appear in the Security Register, within 30 days after the filing thereof with the Trustee, such summaries of any information, documents and reports required to be filed by the Company pursuant to paragraphs (1) and (2) of this Section as may be required by rules and regulations prescribed from time to time by the Commission.
Delivery of such reports, information and documents to the Trustee is for informational purposes only and the Trustees receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Companys compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officers Certificates).
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 801. Company May Consolidate, Etc., on Certain Terms .
Nothing contained in this Indenture or in any of the Securities shall prevent any consolidation or merger of the Company with or into any other Person or Persons (whether or not affiliated with the Company), or successive consolidations or mergers in which the Company or its successor or successors shall be a party or parties, or shall prevent any conveyance, transfer or lease of the properties and assets of the Company as an entirety or substantially as an entirety to any other Person (whether or not affiliated with the Company) lawfully entitled to acquire the
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same; provided, however, and the Company hereby covenants and agrees, that upon any such consolidation, merger, conveyance, transfer or lease, (i) the due and punctual payment of the principal of and interest on all of the Securities, according to their tenor, and the due and punctual performance and observance of all of the covenants and conditions of this Indenture to be performed by the Company, shall be expressly assumed, by indenture supplemental hereto, in form satisfactory to the Trustee, executed and delivered to the Trustee by the Person (if other than the Company) formed by such consolidation, or into which the Company shall have been merged, or by the Person which shall have acquired such properties and assets, and (ii) the Company shall deliver to the Trustee an Officers Certificate and an Opinion of Counsel, each stating that such consolidation, merger, conveyance, transfer or lease and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture comply with this Article and that all conditions precedent herein provided for relating to such transaction have been complied with.
Section 802. Successor Substituted.
Upon any consolidation of the Company with, or merger of the Company into, any other Person or any conveyance, transfer or lease of the properties and assets of the Company as an entirety or substantially as an entirety in accordance with Section 801, the successor Person formed by such consolidation or into which the Company is merged or to which such conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture with the same effect as if such successor Person had been named as the Company herein, and thereafter, except in the case of a lease, the predecessor Person shall be relieved of all obligations and covenants under this Indenture and the Securities.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures without Consent of Holders .
Without the consent of any Holders, the Company and the Trustee, at any time and from time to time, may enter into one or more indentures supplemental hereto, in form satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company and the assumption by any such successor of the covenants of the Company herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit of the Holders of the Securities or to surrender any right or power herein conferred upon the Company; or
(3) to add any additional Events of Default; or
(4) to secure the Securities; or
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(5) to reflect any amendments, modifications or other changes to the Plan that by the terms of the Plan or this Indenture may be made at the discretion of the Committee; or
(6) to modify, suspend or eliminate any of provisions herein providing for the right of the Company to redeem, or the right of the Holders to cause the Company to redeem, the Securities; provided, however , that no such modification, suspension or elimination shall affect the right of any Holder unless the Company shall have provided notice of such proposed action to such Holder in sufficient time prior to its effective date to allow such Holder to redeem its Securities in accordance with the terms in effect prior to the effective date of such modification, suspension or elimination, and provided further that no such modification, suspension or elimination may diminish the principal of any Security or unpaid interest on any Security; or
(7) to evidence and provide for the acceptance of appointment hereunder by a successor Trustee, pursuant to the requirements of Section 611; or
(8) to cure any ambiguity, or correct or supplement any provision herein which may be defective or inconsistent with any other provision herein, or to make any other provisions with respect to matters or questions arising under this Indenture, provided that such action shall not adversely affect the interests of the Holders of Securities in any material respect.
Section 902. Supplemental Indentures with Consent of Holders .
With the consent of the Holders of not less than a majority in principal amount of the Outstanding Securities, by Act of said Holders delivered to the Company and the Trustee, the Company and the Trustee may enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of modifying in any manner the rights of the Holders of Securities under this Indenture; provided, however, that no such supplemental indenture shall, without the consent of the Holder or each Outstanding Security affected thereby,
(1) change the character of the Securities from being payable on demand or reduce the principal amount of or the unpaid interest on any Security or impair the right to institute suit for the enforcement of any such payment on or after the applicable due date thereof (or, in the case of redemption, on or after the Redemption Date), or
(2) reduce the percentage in principal amount of the Outstanding Securities, the consent of whose Holders is required for any such supplemental indenture, or the consent of whose Holders is required for any waiver of compliance with certain provisions of this Indenture or certain defaults hereunder and their consequences provided for in this Indenture, or
(3) change any obligation of the Company, with respect to Outstanding Securities, to maintain an office or agency for the purposes specified in Section 1002, or
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(4) modify any of the provisions of this Section, Section 513 or Section 1005, except to increase any such percentage or to provide that certain other provisions of this Indenture cannot be modified or waived without the consent of the Holder of each Outstanding Security affected thereby.
It shall not be necessary for any Act of Holders under this Section to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such Act shall approve the substance thereof.
Section 903. Execution of Supplemental Indentures .
In executing, or accepting the additional trusts created by, any supplemental indenture permitted by this Article or the modifications thereby of the trusts created by this Indenture, the Trustee shall be entitled to receive, and (subject to Section 601) shall be fully protected in relying upon, an Opinion of Counsel stating that the execution of such supplemental indenture is authorized or permitted by this Indenture. The Trustee may, but shall not be obligated to, enter into any such supplemental indenture which affects the Trustees own rights, duties or immunities under this Indenture or otherwise.
Section 904. Effect of Supplemental Indentures .
Upon the execution of any supplemental indenture under this Article, this Indenture shall be modified in accordance therewith, and such supplemental indenture shall form a part of this Indenture for all purposes; and every Holder of Securities theretofore or thereafter authenticated and delivered hereunder shall be bound thereby.
Section 905. Conformity with Trust Indenture Act .
Every supplemental indenture executed pursuant to this Article shall conform to the requirements of the Trust Indenture Act as then in effect.
ARTICLE TEN
COVENANTS
Section 1001. Administration of Plan; Payment of Principal and Interest .
(a) The Company covenants and agrees to maintain and administer the Plan and the Securities issued pursuant thereto in accordance with the provisions of the Plan, as the same may from time to time be in force and effect, and this Indenture; provided, however, that nothing herein shall prevent the Company from exercising any of its rights to amend, modify or terminate the Plan, or to adopt, amend or rescind the rules established under the Plan, as provided therein.
(b) The Company covenants and agrees for the benefit or Holders of Securities that it will duly and punctually pay the principal of and interest on the Securities in accordance with the terms of the Plan and this Indenture. Interest will accrue on the Securities in accordance with the provisions of the Plan. The interest rate on the Securities shall be determined in accordance with the provisions of the Plan. Interest rates will vary from time to time. There are no minimum or
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maximum interest rates. In the event of a change in the rate of interest to be paid on the Securities, the Company will promptly make available to the Trustee and the Agent Bank the new rate. The failure by the Trustee or the Agent Bank to receive notice of such change shall not affect the validity or effectiveness of such change.
(c) The Company covenants and agrees to maintain (i) a Paying Agent for the purpose of making payments of principal of and interest on the Securities, and (ii) an Agent Bank for the purpose of administering the Plan in accordance with the terms thereof and of the Indenture. The Company will give prompt notice to the Trustee and the Holders of the notice address, and any change in the notice address, of any Paying Agent or the Agent Bank.
Section 1002. Maintenance of Security Register; Maintenance of Office or Agency .
(a) The Company will, or will cause the Agent Bank or another agent of the Company to, keep proper books of record and account in which full and correct entries shall be made of all funds invested in the Securities, together with interest accrued thereon, and all redemptions thereof, and which shall contain the names and addresses of all Holders and the principal amounts of their respective Securities (collectively, the Security Register).
(b) The Company will maintain in the City of Charlotte, North Carolina an office or agency where notices and demands hereunder may be served upon the Company or the Committee, as appropriate, in respect of the Securities and this Indenture. The Company will give prompt written notice to the Trustee and the Holders of the location, and any change in the location, of any such office or agency. If at any time the Company shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such notices and demands may be made or served at the Corporate Trust Office of the Trustee.
Section 1003. Money for Securities Payments to Be Held in Trust .
Whenever the Company shall have one or more Paying Agents, it will, on or prior to each due date of the principal of, or interest on any Securities, deposit with a Paying Agent a sum sufficient to pay the principal or interest so becoming due, such sum to be held in trust for the benefit of the Persons entitled to such principal or interest, and (unless such Paying Agent is the Trustee) the Company will promptly notify the Trustee of its failure so to act.
The Company will cause each Paying Agent other than the Trustee to execute and deliver to the Trustee an instrument in which such Paying Agent shall agree with the Trustee, subject to the provisions of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal of or interest on Securities in trust for the benefit of the Persons entitled thereto until such sums shall be paid to such Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or any other obligor upon the Securities) in the making of any payment of principal or interest on the Securities; and
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(3) at any time during the continuance of any such default, upon the written request of the Trustee, forthwith pay to the Trustee all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture or for any other purpose, pay, or by Company Order direct any Paying Agent to pay, to the Trustee all sums held in trust by the Company or such Paying Agent, such sums to be held by the Trustee upon the same trusts as those upon which such sums were held by the Company or such Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying Agent shall be released from all further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then held by the Company, in trust for the payment of the principal of or interest on any Security and remaining unclaimed for one year after such principal or interest has become due and payable shall be paid to the Company on request of the Company; and the Holder of such Security shall thereafter, as an unsecured general creditor, look only to the Company for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Company as trustee thereof, shall thereupon cease; provided, however, that the Trustee or such Paying Agent, before being required to make any such repayment, may at the expense of the Company cause to be published once, in a newspaper published in the English language, customarily published on each New York Business Day and of general circulation in the Borough of Manhattan, The City of New York, New York, notice that such money remains unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such publication, any unclaimed balance of such money then remaining will be repaid to the Company.
Section 1004. Certificate of Officers of the Company .
On or before the last day of March of each year beginning with the year 2012, the Company will file with the Trustee a certificate of the principal executive officer, principal financial officer or principal accounting officer stating whether or not the signer has obtained knowledge of any action or failure to act on the part of the Company during the preceding calendar year in violation of any covenant, agreement, provision or condition contained in this Indenture and, if so, specifying each such default of which the signer may have knowledge and the nature thereof. For purposes of this Section 1004, compliance shall be determined without regard to any period of grace or requirement of notice provided pursuant to the terms of this Indenture.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed as of the day and year first above written.
DUKE ENERGY CORPORATION | ||
By | /s/ Stephen G. De May | |
Stephen G. De May, Senior Vice President, Investor Relations and Treasurer |
||
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A. | ||
By | /s/ Lee Ann Willis | |
Lee Ann Willis, Senior Associate |
[Indenture Signature Page]
EXHIBIT 5
April 4, 2011
Board of Directors
Duke Energy Corporation
526 S. Church Street
Charlotte, NC 28202
Gentlemen:
I am Deputy General Counsel of Duke Energy Corporation, a Delaware corporation (the Company). I am a member in good standing of the North Carolina State Bar.
I have advised the Company in connection with the filing of a Registration Statement on Form S-3 (the Registration Statement) under the Securities Act of 1933 (the Securities Act), filed with the Securities and Exchange Commission on April 4, 2011. The Registration Statement relates to the proposed issuance and sale from time to time pursuant to Rule 415 under the Securities Act of up to $1,000,000,000 aggregate principal amount of variable denomination floating rate demand notes of the Company (the Securities). For this purpose, I have examined such Company records and other documents, and have made such investigations of law, as I have considered necessary or appropriate for the purposes of this opinion.
Based upon the foregoing, I am of the opinion that the issuance of the Securities has been duly authorized by the Company and that when the Securities have been duly issued and delivered in accordance with the Indenture dated as of April 4, 2011 (the Indenture) and sold as described in the Registration Statement, any amendment thereto and the prospectus included in the Registration Statement and any free-writing prospectus filed with the Securities and Exchange Commission after the effectiveness of the Registration Statement, the Securities will be legal, valid, and binding obligations of the Company, entitled to the benefits of the Indenture.
My opinion that the Securities are legal, valid, and binding is qualified as to limitations imposed by bankruptcy, insolvency, reorganization, arrangement, fraudulent conveyance, moratorium or other laws relating to or affecting the enforcement of creditors rights generally, and general principles of equity, including without limitation concepts of materiality, reasonableness, good faith and fair dealing, and the possible unavailability of specific performance or injunctive relief, regardless of whether such enforceability is considered in a proceeding in equity or at law.
I hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the reference to me under the caption Validity of Notes in the prospectus forming a part of the Registration Statement. In giving such consent, I do not thereby concede that I am included in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations thereunder.
Very truly yours,
/s/Robert T. Lucas III
Robert T. Lucas III, Esq.
EXHIBIT 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in this Registration Statement on Form S-3 of our report dated February 25, 2011, relating to the financial statements and financial statement schedules of Duke Energy Corporation and subsidiaries (the Company), and the effectiveness of the Companys internal control over financial reporting, appearing in the Annual Report on Form 10-K of the Company for the year ended December 31, 2010, and to the reference to us under the heading Experts in the Prospectus, which is part of this Registration Statement.
/s/ DELOITTE & TOUCHE LLP
Charlotte, North Carolina
April 1, 2011
EXHIBIT 23.2
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in this Registration Statement on Form S-3 of our reports dated February 28, 2011, relating to the consolidated financial statements and consolidated financial statement schedule of Progress Energy, Inc. and subsidiaries (Progress Energy), and the effectiveness of Progress Energys internal control over financial reporting, appearing in the Current Report on Form 8-K of Duke Energy Corporation dated April 1, 2011, and to the reference to us under the heading Experts, which is part of this Registration Statement.
/s/ DELOITTE & TOUCHE LLP
Raleigh, North Carolina
April 1, 2011
EXHIBIT 24.1
DUKE ENERGY CORPORATION
Power of Attorney
Registration Statement on Form S-3
The undersigned Duke Energy Corporation, a Delaware corporation and certain of its officers and/or directors, do each hereby constitute and appoint Lynn J. Good, Marc E. Manly, Stephen G. De May and David S. Maltz, and each of them, to act as attorneys-in-fact for and in the respective names, places and stead of the undersigned, to execute, seal, sign and file with the Securities and Exchange Commission a registration statement or registration statements of said Duke Energy Corporation on Form S-3 and any and all amendments thereto, hereby granting to said attorneys-in-fact, and each of them, full power and authority to do and perform all and every act and thing whatsoever requisite, necessary, or proper to be done in and about the premises, as fully to all intents and purposes as the undersigned, or any of them, might or could do if personally present, hereby ratifying and approving the acts of said attorneys-in-fact.
Executed as of the 26th day of October, 2010.
DUKE ENERGY CORPORATION |
||
(Registrant) |
||
By: |
/s/ James E. Rogers |
|
Name: James E. Rogers |
||
Title: President and Chief Executive Officer |
(Corporate Seal)
ATTEST:
/s/ Sue C. Harrington |
Sue C. Harrington |
Assistant Corporate Secretary |
SIGNATURE |
TITLE |
|
/s/ James E. Rogers James E. Rogers |
Director and Chairman, President and Chief Executive Officer (Principal Executive Officer) |
|
/s/ Lynn J. Good Lynn J. Good |
Group Executive and Chief Financial Officer (Principal Financial Officer) |
|
/s/ Steven K. Young Steven K. Young |
Senior Vice President and Controller (Principal Accounting Officer) |
|
/s/ William Barnet III William Barnet III |
Director | |
/s/ G. Alex Bernhardt, Sr. G. Alex Bernhardt, Sr. |
Director | |
/s/ Michael G. Browning Michael G. Browning |
Director | |
/s/ Daniel R. DiMicco Daniel R. DiMicco |
Director | |
/s/ John H. Forsgren John H. Forsgren |
Director | |
/s/ Ann M. Gray Ann M. Gray |
Director | |
/s/ James H. Hance, Jr. James H. Hance, Jr. |
Director | |
/s/ E. James Reinsch E. James Reinsch |
Director | |
/s/ James T. Rhodes James T. Rhodes |
Director | |
/s/ Philip R. Sharp Philip R. Sharp |
Director | |
/s/ Dudley S. Taft Dudley S. Taft |
Director |
EXHIBIT 24.2
DUKE ENERGY CORPORATION
CERTIFICATE
The undersigned officer of DUKE ENERGY CORPORATION, a Delaware corporation (the Corporation), does hereby certify that attached below is a true and complete copy of a resolution adopted at a meeting of the Board of Directors of the Corporation with respect to the Registration Statement, which resolution is presently in full force and effect.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand this 4 th day of April, 2011.
/s/ Robert T. Lucas III |
Robert T. Lucas III |
Assistant Secretary |
FURTHER RESOLVED, That each officer and director who may be required to execute such Registration Statement or any amendment thereto (whether on behalf of the Corporation or as an officer or director thereof or by attesting the seal of the Corporation or otherwise) be and hereby is authorized to execute a power of attorney appointing Lynn J. Good, Marc E. Manly, Stephen G. De May and David S. Maltz, and each of them, as true and lawful attorneys and agents to execute in his or her name, place and stead (in any such capacity) such Registration Statement and any and all amendments thereto and all instruments necessary or advisable in connection therewith, to attest the seal of the Corporation thereon and to file the same with the SEC, each of said attorneys and agents to have power to act with or without the others and to have full power and authority to do and perform in the name and on behalf of each of such officers and directors, or both, as the case may be, every act whatsoever necessary or advisable to be done in the premises as fully and to all intents and purposes as any such officer or director might or could do in person.
EXHIBIT 25
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
¨ | CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO SECTION 305(b)(2) |
THE BANK OF NEW YORK MELLON
TRUST COMPANY, N.A.
(Exact name of trustee as specified in its charter)
95-3571558 | ||
(Jurisdiction of incorporation
if not a U.S. national bank) |
(I.R.S. employer
identification no.) |
|
700 South Flower Street Suite 500 Los Angeles, California |
90017 | |
(Address of principal executive offices) | (Zip code) |
Duke Energy Corporation
(Exact name of obligor as specified in its charter)
Delaware | 20-2777218 | |
(State or other jurisdiction of
incorporation or organization) |
(I.R.S. employer
identification no.) |
|
526 South Church Street Charlotte, North Carolina |
28202 | |
(Address of principal executive offices) | (Zip code) |
Variable Denomination Floating Rate Demand Notes
(Title of the indenture securities)
1. | General information. Furnish the following information as to the trustee: |
(a) | Name and address of each examining or supervising authority to which it is subject. |
Name |
Address |
|
Comptroller of the Currency United States Department of the Treasury |
Washington, DC 20219 | |
Federal Reserve Bank | San Francisco, CA 94105 | |
Federal Deposit Insurance Corporation | Washington, DC 20429 |
(b) | Whether it is authorized to exercise corporate trust powers. |
Yes.
2. | Affiliations with Obligor. |
If the obligor is an affiliate of the trustee, describe each such affiliation.
None.
16. | List of Exhibits. |
Exhibits identified in parentheses below, on file with the Commission, are incorporated herein by reference as an exhibit hereto, pursuant to Rule 7a-29 under the Trust Indenture Act of 1939 (the Act) and 17 C.F.R. 229.10(d).
1. | A copy of the articles of association of The Bank of New York Mellon Trust Company, N.A., formerly known as The Bank of New York Trust Company, N.A. (Exhibit 1 to Form T-1 filed with Registration Statement No. 333-121948 and Exhibit 1 to Form T-1 filed with Registration Statement No. 333-152875). |
2. | A copy of certificate of authority of the trustee to commence business. (Exhibit 2 to Form T-1 filed with Registration Statement No. 333-121948). |
3. | A copy of the authorization of the trustee to exercise corporate trust powers (Exhibit 3 to Form T-1 filed with Registration Statement No. 333-152875). |
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4. | A copy of the existing by-laws of the trustee (Exhibit 4 to Form T-1 filed with Registration Statement No. 333-162713). |
6. | The consent of the trustee required by Section 321(b) of the Act (Exhibit 6 to Form T-1 filed with Registration Statement No. 333-152875). |
7. | A copy of the latest report of condition of the Trustee published pursuant to law or to the requirements of its supervising or examining authority. |
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SIGNATURE
Pursuant to the requirements of the Act, the trustee, The Bank of New York Mellon Trust Company, N.A., a banking association organized and existing under the laws of the United States of America, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of Atlanta, and State of Georgia, on the 18th day of March, 2011.
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A. |
||
By: | /S/ KRISTINE PRALL | |
Name: | KRISTINE PRALL | |
Title: | VICE PRESIDENT |
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EXHIBIT 7
Consolidated Report of Condition of
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.
of 700 South Flower Street, Suite 200, Los Angeles, CA 90017
At the close of business December 31, 2010, published in accordance with Federal regulatory authority instructions.
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LIABILITIES |
||||||
Deposits: |
||||||
In domestic offices |
500 | |||||
Noninterest-bearing |
500 | |||||
Interest-bearing |
0 | |||||
Not applicable |
||||||
Federal funds purchased and securities sold under agreements to repurchase: |
||||||
Federal funds purchased |
0 | |||||
Securities sold under agreements to repurchase |
0 | |||||
Trading liabilities |
0 | |||||
Other borrowed money: |
||||||
(includes mortgage indebtedness and obligations under capitalized leases) |
268,691 | |||||
Not applicable |
||||||
Not applicable |
||||||
Subordinated notes and debentures |
0 | |||||
Other liabilities |
235,783 | |||||
Total liabilities |
504,974 | |||||
Not applicable |
||||||
EQUITY CAPITAL |
||||||
Perpetual preferred stock and related surplus |
0 | |||||
Common stock |
1,000 | |||||
Surplus (exclude all surplus related to preferred stock) |
1,121,520 | |||||
Not available |
||||||
Retained earnings |
438,997 | |||||
Accumulated other comprehensive income |
1,579 | |||||
Other equity capital components |
0 | |||||
Not available |
||||||
Total bank equity capital |
1,563,096 | |||||
Noncontrolling (minority) interests in consolidated subsidiaries |
0 | |||||
Total equity capital |
1,563,096 | |||||
Total liabilities and equity capital |
2,068,070 | |||||
I, Karen Bayz, Managing Director of the above-named bank do hereby declare that the Reports of Condition and Income (including the supporting schedules) for this report date have been prepared in conformance with the instructions issued by the appropriate Federal regulatory authority and are true to the best of my knowledge and belief.
Karen Bayz ) Managing Director
We, the undersigned directors (trustees), attest to the correctness of the Report of Condition (including the supporting schedules) for this report date and declare that it has been examined by us and to the best of our knowledge and belief has been prepared in conformance with the instructions issued by the appropriate Federal regulatory authority and is true and correct.
Timothy Vara, President | ) | |||
Frank P. Sulzberger, MD | ) | Directors (Trustees) | ||
William D. Lindelof, MD | ) |
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