{"id":43962,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/underwriting-agreement-for-junior-subordinated-notes-duke.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"underwriting-agreement-for-junior-subordinated-notes-duke","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/securities\/underwriting-agreement-for-junior-subordinated-notes-duke.html","title":{"rendered":"Underwriting Agreement for Junior Subordinated Notes &#8211; Duke Energy Corp."},"content":{"rendered":"<pre>\n                                     $\n \n                            DUKE ENERGY CORPORATION\n \n                    SERIES  % JUNIOR SUBORDINATED NOTES DUE\n \n                            UNDERWRITING AGREEMENT\n \n\n                                                                '\n\n\n\n\n\n\n\nLadies and Gentlemen:\n \n1. Introductory. DUKE ENERGY CORPORATION, a North Carolina corporation\n(\"Corporation\"), proposes, subject to the terms and conditions stated \nherein, to issue and sell $             aggregate principal amount of \nSeries      % Junior Subordinated Notes due (\"Notes\"), to be issued \npursuant to the provisions of a Subordinated Indenture, dated as of \nDecember 1, 1997, as the same may be amended and supplemented by \nsupplemental indentures (including the supplemental indenture to be \ndated as of             ,             , relating to the Notes),\nbetween the Corporation and The Chase Manhattan Bank (the \"Indenture\"), \nand hereby agrees with the several Underwriters hereinafter named in \nSchedule A (the \"Underwriters\") as follows:\n \n2. Representations and Warranties of the Corporation. The Corporation\nrepresents and warrants to, and agrees with, the several Underwriters \nthat:\n \n(a) A registration statement (No. 333-    , which also constitutes a \npost-effective amendment to a previous registration statement No. \n333-52204, including a combined prospectus, relating to the Notes and \ncertain other securities has been filed with the Securities and \nExchange Commission (\"Commission\") under the Securities Act of 1933, \nas amended (the \"1933 Act\"). Such registration statement and any \npost-effective amendment thereto, each in the form heretofore delivered \nto you, and, excluding exhibits thereto but including all documents \nincorporated by reference in the prospectus contained therein, for \neach of the other Underwriters, have been declared effective by\nthe Commission in such form, and no stop order suspending the \neffectiveness of such registration statement has been issued and no \nproceeding for that purpose has been initiated or threatened by the \nCommission (any preliminary prospectus included in such registration \nstatement or filed with the Commission pursuant to Rule 424(a) of the \nrules and regulations of the Commission under the 1933 Act (\"1933 Act \nRegulations\") being hereinafter called a \"Preliminary Prospectus\"; the \nvarious parts of such registration statement, including all exhibits \nthereto and including the documents incorporated by reference in the\nprospectus contained in the registration statement at the time such \npart of the registration statement became effective, each as amended \nat the time such part of the registration statement became effective, \nbeing hereinafter called the \"Registration Statement\"; and the final \nprospectus relating to the Notes, in the form first filed pursuant to \nRule 424(b) under the 1933 Act Regulations, being hereinafter called \nthe \"Prospectus\"; and any reference herein to any Preliminary \nProspectus or the Prospectus shall be deemed to refer to and include \nthe documents incorporated by reference therein, as of the date of \nsuch Preliminary Prospectus or Prospectus, as the case may be; any\nreference to any amendment or supplement to any Preliminary Prospectus \nor Prospectus shall be deemed to refer to and include any documents \nfiled after the date of such Preliminary Prospectus or Prospectus, as \nthe case may be, under the Securities Exchange Act of 1934, as amended \n(the \"1934 Act\"), and incorporated by reference in such Preliminary \nProspectus or Prospectus, as the case may be; and any reference to any \namendment to the Registration Statement shall be deemed to refer to \nand include any annual report of the Corporation filed pursuant to \nSection 13(a) or 15(d) of the 1934 Act after the effective date of the \nRegistration Statement that is incorporated by reference in the\nRegistration Statement).\n \n(b) The Registration Statement conforms and the Prospectus will \nconform in all material respects to the requirements of the 1933 Act \nand the 1933 Act Regulations, and the Registration Statement does not \nand the Prospectus will not include any untrue statement of a material \nfact or omit to state any material fact required to be stated therein \nor necessary to make the statements\n\n \n \n  therein, in the light of the circumstances under which they were made, not\n  misleading, except that the Corporation makes no warranty or representation to\n  the Underwriters with respect to any statements or omissions made in reliance\n  upon and in conformity with written information furnished to the Corporation\n  by any Underwriter specifically for use therein or any information set forth\n  in the Prospectus under the caption \"Description of the Series Junior\n  Subordinated Notes - Book-Entry Only Issuance - The Depository Trust Company.\"\n\n    (c) The documents incorporated by reference in the Prospectus, at the time\n  they were filed with the Commission, complied in all material respects with\n  the requirements of the 1934 Act and the rules and regulations of the\n  Commission thereunder (the \"1934 Act Regulations\"), and, when read together\n  with the other information in the Prospectus, do not contain an untrue\n  statement of a material fact or omit to state a material fact required to be\n  stated therein or necessary to make the statements therein, in light of the\n  circumstances under which they were made, not misleading, and any documents\n  deemed to be incorporated by reference in the Prospectus will, when they are\n  filed with the Commission, comply in all material respects with the\n  requirements of the 1934 Act and the 1934 Act Regulations, and will not\n  contain an untrue statement of a material fact or omit to state a material\n  fact required to be stated therein or necessary to make the statements\n  therein, in the light of the circumstances under which they were made, not\n  misleading, except that the Corporation makes no warranty or representation to\n  the Underwriters with respect to any statements or omissions made in reliance\n  upon and in conformity with written information furnished to the Corporation\n  by any Underwriter specifically for use therein or any information set forth\n  in the Prospectus under the caption \"Description of the Series Junior\n  Subordinated Notes - Book-Entry Only Issuance - The Depository Trust Company.\"\n \n    (d) The compliance by the Corporation with all of the provisions of this\n  Agreement has been duly authorized by all necessary corporate action and the\n  consummation of the transactions herein contemplated will not conflict with or\n  result in a breach or violation of any of the terms or provisions of, or\n  constitute a default under, any indenture, mortgage, deed of trust, loan\n  agreement or other agreement or instrument to which the Corporation or any of\n  its Principal Subsidiaries (as hereinafter defined) is a party or by which any\n  of them or their respective property is bound or to which any of their\n  property or assets is subject that would have a material adverse effect on the\n  business, financial condition or results of operations of the Corporation and\n  its subsidiaries, taken as a whole, nor will such action result in any\n  violation of the provisions of the Restated Articles of Incorporation or By-\n  Laws of the Corporation or any statute or any order, rule or regulation of any\n  court or governmental agency or body having jurisdiction over the Corporation\n  or its Principal Subsidiaries or any of their respective property that would\n  have a material adverse effect on the business, financial condition or results\n  of operations of the Corporation and its subsidiaries, taken as a whole; and\n  no consent, approval, authorization, order, registration or qualification of\n  or with any such court or governmental agency or body is required for the\n  consummation by the Corporation of the transactions contemplated by this\n  Agreement, except for authorization by the North Carolina Utilities Commission\n  and The Public Service Commission of South Carolina and the registration under\n  the 1933 Act of the Notes, qualification under the Trust Indenture Act of 1939\n  and such consents, approvals, authorizations, registrations or qualifications\n  as may be required under state securities or Blue Sky laws in connection with\n  the purchase and distribution of the Notes by the Underwriters.\n  \n    (e) This Agreement has been duly authorized, executed and delivered by the \n  Corporation.\n\n    (f) Each of Duke Capital Corporation, PanEnergy Corp, Duke Energy Natural\n  Gas Corporation and Texas Eastern Transmission Corporation, each a Delaware\n  corporation (and herein called a \"Principal Subsidiary\"), is a direct or\n  indirect wholly owned subsidiary of the Corporation.\n \n  3. Purchase, Sale and Delivery of Notes. On the basis of the representations,\nwarranties and agreements herein contained, but subject to the terms and\nconditions herein set forth, the Corporation agrees to sell to the Underwriters,\nand the Underwriters agree, severally and not jointly, to purchase from the\nCorporation, at a purchase price of   % of the principal amount of the Notes, \nthe respective principal amount of Notes set forth opposite the names of the\nUnderwriters in Schedule A hereto plus the respective principal amount of\nadditional Notes which each such Underwriter may become obligated to purchase\npursuant to the provisions of Section 8 hereof.\n \n  Payment of the purchase price for the Notes to be purchased by the\nUnderwriters shall be made at the offices of Dewey Ballantine LLP, 1301 Avenue\nof the Americas, New York, N.Y., or at such other place as shall be mutually\nagreed upon by you and the Corporation, at 10:00 a.m., New York City time, on\n       ,      (unless postponed in accordance with the provisions of Section 8) \nor such other time and date as shall be agreed upon in writing by you and the\nCorporation (the \"Closing Date\"). Payment shall be made to the Corporation by\nwire transfer in immediately available funds, payable to the order of the\nCorporation against delivery of the Notes, in fully registered form, to you or\nupon your order. The Notes shall be delivered in the form of one or more global\ncertificates in aggregate denomination equal to the aggregate principal amount\nof the Notes upon original issuance and registered in the name of Cede &amp; Co., as\nnominee for The Depository Trust Company (\"DTC\").\n\n\n\n                                       2\n\n \n \n  4. Offering by the Underwriters. It is understood that the several\nUnderwriters propose to offer the Notes for sale to the public as set forth in\nthe Prospectus.\n \n  5. Covenants of the Corporation. The Corporation covenants and agrees with\nthe several Underwriters that:\n \n    (a) The Corporation will advise you promptly of the filing of any amendment\n  (and effectiveness thereof) or supplementation of the Registration Statement\n  or the Prospectus, of the filing of any Rule 462(b) registration statement and\n  of the institution by the Commission of any stop order proceedings in respect\n  of the Registration Statement, and will use its best efforts to prevent the\n  issuance of any such stop order and to obtain as soon as possible its lifting,\n  if issued.\n \n    (b) If at any time when a prospectus relating to the Notes is required to\n  be delivered under the 1933 Act any event occurs as a result of which the\n  Prospectus as then amended or supplemented would include an untrue\n  statement of a material fact, or omit to state any material fact necessary\n  to make the statements therein, in the light of the circumstances under\n  which they were made, not misleading, or if it is necessary at any time to\n  amend the Prospectus to comply with the 1933 Act, the Corporation promptly\n  will prepare and file with the Commission an amendment, supplement or an\n  appropriate document pursuant to Section 13 or 14 of the 1934 Act which\n  will correct such statement or omission or which will effect such\n  compliance.\n \n    (c) The Corporation, during the period when a prospectus relating to the\n  Notes is required to be delivered under the 1933 Act, will timely file\n  all documents required to be filed with the Commission pursuant to Section 13\n  or 14 of the 1934 Act.\n \n    (d) The Corporation will make generally available to its security\n  holders, in each case as soon as practicable but not later than 60 days\n  after the close of the period covered thereby, earnings statements (in form\n  complying with the provisions of Section 11(a) of the 1933 Act, which need\n  not be certified by independent certified public accountants unless\n  required by the 1933 Act) covering (i) a twelve-month period beginning not\n  later than the first day of the Corporation's fiscal quarter next following\n  the effective date of the Registration Statement and (ii) a twelve-month\n  period beginning not later than the first day of the Corporation's fiscal\n  quarter next following the date of this Agreement.\n \n    (e) The Corporation will furnish to you, without charge, copies of the\n  Registration Statement (    of which will be signed and will include all\n  exhibits other than those incorporated by reference), the Prospectus, and\n  all amendments and supplements to such documents, in each case as soon as\n  available and in such quantities as you reasonably request.\n \n    (f) The Corporation will arrange or cooperate in arrangements for the\n  qualification of the Notes for sale under the laws of such jurisdictions as\n  you designate and will continue such qualifications in effect so long as\n  required for the distribution; provided, however, that the Corporation\n  shall not be required to qualify as a foreign corporation or to file any\n  general consents to service of process under the laws of any state where it\n  is not now so subject.\n \n    (g) The Corporation will pay all expenses incident to the performance of\n  its obligations under this Agreement including (i) the printing and filing\n  of the Registration Statement and the printing of this Agreement and any\n  Blue Sky Survey, (ii) the issuance and delivery of the Notes as specified\n  herein, (iii) the fees and disbursements of counsel for the Underwriters in\n  connection with the qualification of the Notes under the securities laws of\n  any jurisdiction in accordance with the provisions of Section 5(f) and in\n  connection with the preparation of the Blue Sky Survey, such fees not to\n  exceed $5,000, (iv) the printing and delivery to the Underwriters, in\n  quantities as hereinabove referred to, of copies of the Registration\n  Statement and any amendments thereto, and of the Prospectus and any\n  amendments or supplements thereto, (v) any fees charged by independent\n  rating agencies for rating the Notes, (vi) any fees and expenses in\n \n                                       3\n\n\n \n \n  connection with the listing of the Notes on the New York Stock Exchange, (vii)\n  any filing fee required by the National Association of Securities Dealers,\n  Inc., (viii) the costs of any depository arrangements for the Notes with DTC\n  or any successor depositary and (ix) the costs and expenses of the Corporation\n  relating to investor presentations on any \"road show\" undertaken in connection\n  with the marketing of the offering of the Notes, including, without\n  limitation, expenses associated with the production of road show slides and\n  graphics, fees and expenses of any consultants engaged in connection with the\n  road show presentations with the prior approval of the Corporation, travel and\n  lodging expenses of                      and officers of the Corporation and\n  any such consultants, and the cost of any aircraft chartered in connection\n  with the road show; provided, however, the Underwriters shall reimburse a\n  portion of the costs and expenses referred to in this clause (ix).\n\n  6. Conditions of the Obligations of the Underwriters. The obligations of the\nseveral Underwriters to purchase and pay for the Notes will be subject to the\naccuracy of the representations and warranties on the part of the Corporation\nherein, to the accuracy of the statements of officers of the Corporation made\npursuant to the provisions hereof, to the performance by the Corporation of\nits obligations hereunder and to the following additional conditions\nprecedent:\n \n    (a) Prior to the Closing Date, no stop order suspending the effectiveness\n  of the Registration Statement shall have been issued and no proceedings for\n  that purpose shall have been instituted or, to the knowledge of the\n  Corporation or you, shall be threatened by the Commission.\n \n    (b) Prior to the Closing Date, the rating assigned by Moody's Investors\n  Service, Inc. or Standard &amp; Poor's Ratings Services to (i) any debt securities\n  or preferred stock of the Corporation or (ii) any trust preferred securities\n  of Duke Energy Capital Trust I or Duke Energy Capital Trust II as of the date\n  of this Agreement shall not have been lowered.\n  \n    (c) Since the respective most recent dates as of which information is given\n  in the Prospectus and up to the Closing Date, there shall not have been any\n  material adverse change in the condition of the Corporation, financial or\n  otherwise, except as reflected in or contemplated by the Prospectus, and,\n  since such dates and up to the Closing Date, there shall not have been any\n  material transaction entered into by the Corporation other than transactions\n  contemplated by the Prospectus and transactions in the ordinary course of\n  business, the effect of which in your reasonable judgment is so material and\n  adverse as to make it impracticable or inadvisable to proceed with the public\n  offering or the delivery of the Notes on the terms and in the manner\n  contemplated by the Prospectus.\n \n    (d) You shall have received an opinion of Ellen T. Ruff, Esq., Senior Vice\n  President and General Counsel of the Corporation, dated the Closing Date, to\n  the effect that:\n\n      (i) The Corporation has been duly incorporated and is validly\n    existing as a corporation in good standing under the laws of the State of\n    North Carolina, with power and authority (corporate and other) to own its\n    properties and conduct its business as described in the Prospectus and to \n    enter into and perform its obligations under this Agreement.\n\n      (ii) Each of the Corporation and the Principal Subsidiaries is duly\n    qualified to do business in each jurisdiction in which the ownership or\n    leasing of its property or the conduct of its business requires such\n    qualification, except where the failure to so qualify, considering all\n    such cases in the aggregate, does not have a material adverse effect on\n    the business, properties, financial position or results of operations\n    of the Corporation and its subsidiaries taken as a whole.\n \n      (iii) The Registration Statement has become effective under the 1933\n    Act, and, to the best of the knowledge of such counsel, no stop order\n    suspending the effectiveness of the Registration Statement has been\n    issued and no proceedings for that purpose have been instituted or are\n    pending or threatened under the 1933 Act.\n \n\n                                       4\n\n\n \n \n     (iv) The descriptions in the Registration Statement and the Prospectus of\nlegal or governmental proceedings are accurate and fairly present the\ninformation required to be shown, and such counsel does not know of any\nlitigation or any legal or governmental proceeding instituted or threatened\nagainst the Corporation or any of its subsidiaries or any of their respective\nproperties that would be required to be disclosed in the Prospectus and is not\nso disclosed.\n\n     (v) This Agreement has been duly authorized, executed and delivered\nby the Corporation.\n\n     (vi) The performance by the Corporation of this Agreement and the \nIndenture will not contravene any of the provisions of the Restated Articles of\nIncorporation or By-Laws of the Corporation or any statute or any order, rule or\nregulation of which such counsel is aware of any court or governmental agency or\nbody having jurisdiction over the Corporation or any of its Principal\nSubsidiaries or any of their respective property, nor will such action conflict\nwith or result in a breach or violation of any of the terms or provisions of, or\nconstitute a default under any indenture, mortgage, deed of trust, loan\nagreement or other agreement or instrument known to such counsel to which the\nCorporation or any of its Principal Subsidiaries is a party or by which any of\nthem or their respective property is bound or to which any of their property or\nassets is subject which affects in a material way the Corporation's ability to\nperform its obligations under this Agreement and the Indenture.\n\n     (vii) The North Carolina Utilities Commission and The Public Service\nCommission of South Carolina have issued appropriate orders with respect to the\nissuance and sale of the Notes in accordance with this Agreement, and, to the\nbest of the knowledge of such counsel, such orders are still in effect; the\nissuance and sale of the Notes to the Underwriters are in conformity with the\nterms of such orders; and no other authorization, approval or consent of any\nother governmental body (other than in connection or compliance with the\nprovisions of the securities or Blue Sky laws of any jurisdiction) is legally\nrequired for the issuance and sale of the Notes pursuant to this Agreement.\n \n     (viii) The Indenture has been duly authorized, executed and delivered by\nthe Corporation and, assuming the due authorization, execution and delivery\nthereof by The Chase Manhattan Bank, as Trustee, constitutes a valid and legally\nbinding instrument of the Corporation enforceable against the Corporation in\naccordance with its terms, subject to the qualifications that the enforceability\nof the Corporation's obligations under the Indenture may be limited by\nbankruptcy, insolvency, reorganization, moratorium and other similar laws\nrelating to or affecting creditors' rights generally and by general principles\nof equity (regardless of whether such enforceability is considered in a\nproceeding in equity or at law).\n \n     (ix) The Notes have been duly authorized and executed by the Corporation\nand, when authenticated by The Chase Manhattan Bank, as Trustee, in the manner\nprovided in the Indenture and delivered against payment therefor, will\nconstitute valid and legally binding obligations of the Corporation, enforceable\nagainst the Corporation in accordance with their terms, subject to the\nqualifications that the enforceability of the Corporation's obligations under\nthe Notes may be limited by bankruptcy, insolvency, reorganization, moratorium\nand other similar laws relating to or affecting creditors' rights generally and\nby general principles of equity (regardless of whether such enforceability is\nconsidered in a proceeding in equity or at law), and are entitled to the\nbenefits afforded by the Indenture in accordance with the terms of the Indenture\nand the Notes.\n\n     Such counsel shall also state that nothing has come to her attention that\nhas caused her to believe that the Registration Statement as of the date of\neffectiveness under the 1933 Act and the Prospectus as of the date it was filed\nwith, or transmitted for filing to, the Commission, contained any untrue\nstatement of a material fact or omitted to state a material fact required to be\nstated therein or necessary to make the statements therein not misleading, or\nthat the Prospectus as of the date it was filed with, or transmitted for filing\nto, the Commission and at the Closing Date, contained or contains any untrue\nstatement of a material fact or omitted or omits to state a material fact\nnecessary in order to make the statements therein, in light of the circumstances\nunder which they were made, not misleading. Such counsel may also state that,\nexcept as otherwise expressly provided in such opinion, she does not assume any\nresponsibility for the accuracy, completeness or fairness of the statements\ncontained in or incorporated by reference into the Registration Statement and\nProspectus and does not express any opinion or belief as to the financial\nstatements or other financial data contained in or incorporated by reference\ninto the Registration Statement and the Prospectus, the statement of the\neligibility and qualification of the Trustee or as to the information set forth\nin the Prospectus under the caption \"Description of the Series Junior\nSubordinated Notes--Book-Entry Only Issuance--The Depository Trust Company.\"\n    \n     In rendering the foregoing opinion, such counsel may state that she\nexpresses no opinion as to the laws of any jurisdiction other than North\nCarolina and may rely on the opinion of Austin, Lewis &amp; Rogers of Columbia,\nSouth Carolina as to matters of South Carolina law. Such counsel may also state\nthat she has relied as to certain factual matters on information obtained from\npublic officials, officers of the Corporation and other sources believed by her\nto be responsible.\n\n     (e) You shall have received an opinion or opinions of Dewey Ballantine\nLLP, counsel to the Corporation, dated the Closing Date, with respect to the\nmatters set forth in (i), (iii), (v) through (ix) of Section 6(d) and to the\nfurther effect that:\n\n        (i) Each of the Principal Subsidiaries has been duly incorporated and\nis validly existing as a corporation in good standing under the laws of its\njurisdiction of incorporation, with power and authority (corporate and other) to\nown its properties and conduct its business as described in the Prospectus.\n    \n     (ii)  The Corporation is not an \"investment company\" or an entity\n\"controlled\" by an \"investment company,\" as such terms are defined in the\nInvestment Company Act of 1940, as amended. \n\n     (iii) The Corporation is not a holding company under the Public Utility\nHolding Company Act of 1935, as amended.\n\n     (iv)  The Indenture is duly qualified under the Trust Indenture Act of \n1939.\n\n     (v)   The Registration Statement as of the date of effectiveness under\nthe 1933 Act and the Prospectus as of the date it was filed with, or transmitted\nfor filing to, the Commission complied as to form in all material respects with\nthe requirements of the 1933 Act and the 1933 Act Regulations; and nothing has\ncome to their attention that would lead them to believe that the Registration\nStatement as of the date of effectiveness under the 1933 Act (or if an amendment\nto such Registration Statement or an annual report on Form 10-K has been filed\nby the Corporation with the Commission subsequent to the effectiveness of the\nRegistration Statement, then at the time of the most recent such filing)\ncontained an untrue statement of a material fact or omitted to state a material\nfact required to be stated therein or necessary to make the statements therein\nnot misleading or that the Prospectus as of the date it was filed with, or\ntransmitted for filing to, the Commission and at the Closing Date contained or\ncontains an untrue statement of a material fact or omitted or omits to state a\nmaterial fact necessary in order to make the statements therein, in the light of\nthe circumstances under which they were made, not misleading. Such opinion may\nstate that such counsel do not assume any responsibility for the accuracy,\ncompleteness or fairness of the statements contained in or incorporated by \nreference into the Registration Statement and Prospectus except as otherwise\nexpressly provided in such opinion and do not express any opinion or belief as\nto the financial statements or other financial data contained in or incorporated\nby reference into the Registration Statement and the Prospectus, the statement\nof the eligibility and qualification of the Trustee or as to the information set\nforth in the Prospectus under the caption \"Description of the Series Junior\nSubordinated Notes--Book-Entry Only Issuance--The Depository Trust Company.\"\n \n     (vi)  The statements made in the Prospectus under the captions\n\"Description of the Junior Subordinated Notes\" and \"Description of the Series\nJunior Subordinated Notes,\" insofar as they purport to summarize provisions of\ndocuments specifically referred to therein, fairly present the information\ncalled for with respect thereto by Form S-3.\n \n     (vii)  No consent, approval, authorization, order, registration or\nqualification of or with any court or governmental agency or body is required\nfor the issue and sale of the Notes or the consummation by the Corporation of\nthe transactions contemplated by this Agreement or the Indenture, except for\nauthorization by the North Carolina Utilities Commission and The Public Service\nCommission of South Carolina and such as have been obtained under the 1933 Act\nand the Trust Indenture Act of 1939 and such consents, approvals,\nauthorizations, orders, registrations or qualifications as may be required under\nstate securities or Blue Sky laws in connection with the purchase and\ndistribution of the Notes by the Underwriters.\n\n     In rendering the foregoing opinion or opinions, Dewey Ballantine LLP may\nstate that such opinion or opinions are limited to the Federal laws of the\nUnited States, the laws of the State of New York and the General Corporation Law\nof the State of Delaware, and that they are relying on the opinion of Ellen T.\nRuff, Esq. as to matters of North Carolina law and on the opinion Austin, Lewis\n&amp; Rogers of Columbia, South Carolina as to matters of South Carolina law. In\naddition, such counsel may state that they have relied as to certain factual\nmatters on information obtained from public officials, officers of the\nCorporation and other sources believed by them to be responsible and that the\nsignatures on all documents examined by them are genuine, assumptions which such\ncounsel have not independently verified.\n\n                                         5\n\n\n\n \n \n    (f) You shall have received an opinion of                     , counsel\n  for the Underwriters, dated the Closing Date, with respect to the\n  incorporation of the Corporation, the validity of the Notes, the Registration\n  Statement and the Prospectus, as amended or supplemented, and such other\n  related matters as you may require, and the Corporation shall have furnished\n  to such counsel such documents as they request for the purpose of enabling\n  them to pass upon such matters. In giving their opinion,\n  may rely on the opinion of Ellen T. Ruff, Esq. as to matters of North\n  Carolina law and on the opinion of Austin, Lewis &amp; Rogers of Columbia,\n  South Carolina as to matters of South Carolina law.\n\n    (g) On or after the date hereof, there shall not have occurred any of the\n  following: (i) a suspension or material limitation in trading in securities\n  generally or of the securities of the Corporation, Duke Energy Capital Trust I\n  or Duke Energy Capital Trust II on the New York Stock Exchange; or (ii) a\n  general moratorium on commercial banking activities in New York declared by\n  either Federal or New York State authorities; or (iii) the outbreak or\n  material escalation of hostilities involving the United States or the\n  declaration by the United States of a national emergency or war if the effect\n  of any such event specified in this subsection (g) in your reasonable judgment\n  makes it impracticable or inadvisable to proceed with the public offering or\n  the delivery of the Notes on the terms and in the manner contemplated in the\n  Prospectus. In such event there shall be no liability on the part of any party\n  to any other party except as otherwise provided in Section 7 hereof and except\n  for the expenses to be borne by the Corporation as provided in Section 5(g)\n  hereof.\n  \n    (h) You shall have received a certificate of the Chairman of the Board, the\n  President, any Vice President, the Secretary or an Assistant Secretary and any\n  financial or accounting officer of the Corporation, dated the Closing Date, in\n  which such officers, to the best of their knowledge after reasonable\n  investigation, shall state that the representations and warranties of the\n  Corporation in this Agreement are true and correct as of the Closing Date,\n  that the Corporation has complied with all agreements and satisfied all\n  conditions on its part to be performed or satisfied at or prior to the Closing\n  Date, that the conditions specified in Section 6(b) and Section 6(c) have been\n  satisfied, and that no stop order suspending the effectiveness of the\n  Registration Statement has been issued and no proceedings for that purpose\n  have been instituted or are threatened by the Commission.\n \n    (i) On the date of this Agreement, you shall have received a letter dated\n  the date hereof, in form and substance satisfactory to you, from the\n  Corporation's independent public accountants, containing statements and\n  information of the type ordinarily included in accountants' \"comfort letters\"\n  to underwriters with respect to the financial statements and certain financial\n  information contained in or incorporated by reference into the Prospectus as\n  of a specified date not more than three business days prior to the date of\n  this Agreement.\n \n    (j) At the Closing Date you shall have received from the Corporation's\n  independent public accountants a letter, dated the Closing Date, to the\n  effect that such accountants reaffirm the statements made in the letter\n \n                                       6\n\n \n \n  furnished pursuant to paragraph (i) of this Section 6, except that the\n  specified date referred to shall be a date not more than three business\n  days prior to the Closing Date.\n \n  The Corporation will furnish you with such conformed copies of such\nopinions, certificates, letters and documents as you reasonably request.\n \n  7. Indemnification. (a) The Corporation agrees to indemnify and hold\nharmless each Underwriter and each person, if any, who controls any\nUnderwriter within the meaning of Section 15 of the 1933 Act, as follows:\n \n    (i) against any and all loss, liability, claim, damage and expense\n  whatsoever arising out of any untrue statement or alleged untrue statement\n  of a material fact contained in the Registration Statement (or any\n  amendment thereto), or the omission or alleged omission therefrom of a\n  material fact required to be stated therein or necessary to make the\n  statements therein not misleading or arising out of any untrue statement or\n  alleged untrue statement of a material fact contained in any Preliminary\n  Prospectus, the prospectus constituting a part of the Registration\n  Statement in the form in which it became effective or the Prospectus (or\n  any amendment or supplement thereto) or the omission or alleged omission\n  therefrom of a material fact necessary in order to make the statements\n  therein, in the light of the circumstances under which they were made, not\n  misleading, unless such statement or omission or such alleged statement or\n  omission was made in reliance upon and in conformity with written\n  information furnished to the Corporation by any Underwriter through you\n  expressly for use in the Registration Statement (or any amendment thereto)\n  or such Preliminary Prospectus, such prospectus, or the Prospectus (or any\n  amendment or supplement thereto);\n \n    (ii) against any and all loss, liability, claim, damage and expense\n  whatsoever to the extent of the aggregate amount paid in settlement of any\n  litigation, commenced or threatened, or of any claim whatsoever based upon\n  any such untrue statement or omission or any such alleged untrue statement\n  or omission, if such settlement is effected with the written consent of the\n  Corporation; and\n \n    (iii) against any and all expense whatsoever reasonably incurred in\n  investigating, preparing or defending against any litigation, commenced or\n  threatened, or any claim whatsoever based upon any such untrue statement or\n  omission, or any such alleged untrue statement or omission, to the extent\n  that any such expense is not paid under (i) or (ii) of this Section 7.\n \n  In no case shall the Corporation be liable under this indemnity agreement\nwith respect to any claim made against any Underwriter or any such controlling\nperson unless the Corporation shall be notified in writing of the nature of\nthe claim within a reasonable time after the assertion thereof, but failure so\nto notify the Corporation shall not relieve it from any liability which it may\nhave otherwise than on account of this indemnity agreement. The Corporation\nshall be entitled to participate at its own expense in the defense, or, if it\nso elects, within a reasonable time after receipt of such notice, to assume\nthe defense of any suit brought to enforce any such claim, but if it so elects\nto assume the defense, such defense shall be conducted by counsel chosen by it\nand approved by the Underwriter or Underwriters or controlling person or\npersons, or defendant or defendants in any suit so brought, which approval\nshall not be unreasonably withheld. In any such suit, any Underwriter or any\nsuch controlling person shall have the right to employ its own counsel, but\nthe fees and expenses of such counsel shall be at the expense of such\nUnderwriter or such controlling person unless (i) the Corporation and such\nUnderwriter shall have mutually agreed to the employment of such counsel, or\n(ii) the named parties to any such action (including any impleaded parties)\ninclude both such Underwriter or such controlling person and the Corporation\nand such Underwriter or such controlling person shall have been advised by\nsuch counsel that a conflict of interest between the Corporation and such\nUnderwriter or such controlling person may arise and for this reason it is not\ndesirable for the same counsel to represent both the indemnifying party and\nalso the indemnified party (it being understood, however, that the Corporation\nshall not, in connection with any one such action or separate but\nsubstantially similar or related actions in the same jurisdiction arising out\nof the same general allegations or circumstances, be liable for the reasonable\nfees and expenses of more than one separate firm of attorneys for all such\nUnderwriters and all such controlling persons, which firm shall be designated\nin writing by you). The Corporation agrees to notify you within a reasonable\ntime of the assertion of any claim against it, any of its officers or\ndirectors or any person who controls the Corporation within the meaning of\nSection 15 of the 1933 Act, in connection with the sale of the Notes.\n \n                                       7\n\n\n \n \n  (b) Each Underwriter severally agrees that it will indemnify and hold\nharmless the Corporation, its directors and each of the officers of the\nCorporation who signed the Registration Statement and each person, if any, who\ncontrols the Corporation within the meaning of Section 15 of the 1933 Act to\nthe same extent as the indemnity contained in subsection (a) of this Section,\nbut only with respect to statements or omissions made in the Registration\nStatement (or any amendment thereto) or any Preliminary Prospectus, such\nprospectus or the Prospectus (or any amendment or supplement thereto) in\nreliance upon and in conformity with written information furnished to the\nCorporation by such Underwriter through you expressly for use in the\nRegistration Statement (or any amendment thereto), such Preliminary\nProspectus, such prospectus or the Prospectus (or any amendment or supplement\nthereto). In case any action shall be brought against the Corporation or any\nperson so indemnified based on the Registration Statement (or any amendment\nthereto) or such Preliminary Prospectus, such prospectus or the Prospectus (or\nany amendment or supplement thereto) and in respect of which indemnity may be\nsought against any Underwriter, such Underwriter shall have the rights and\nduties given to the Corporation, and the Corporation and each person so\nindemnified shall have the rights and duties given to the Underwriters, by the\nprovisions of subsection (a) of this Section.\n \n  (c)  No indemnifying party shall, without the prior written consent of the\nindemnified party, effect any settlement of any pending or threatened proceeding\nin respect of which any indemnified party is or could have been a party and\nindemnity could have been sought hereunder by such indemnified party, unless\nsuch settlement includes an unconditional release of such indemnified party from\nall liability on claims that are the subject matter of such proceeding. \n\n  (d)  If the indemnification provided for in this Section 7 is unavailable to\nor insufficient to hold harmless an indemnified party in respect of any losses,\nclaims, damages, liabilities or expenses (or actions in respect thereof) that\nwould otherwise have been indemnified under the terms of such indemnity, then\neach indemnifying party shall contribute to the amount paid or payable by such\nindemnified party as a result of such losses, claims, damages, liabilities or\nexpenses (or actions in respect thereof) in such proportion as is appropriate to\nreflect the relative benefits received by the Corporation on the one hand and\nthe Underwriters on the other from the offering of the Notes. If, however, the\nallocation provided by the immediately preceding sentence is not permitted by\napplicable law or if the indemnified party failed to give the notice required\nabove, then each indemnifying party shall contribute to such amount paid or\npayable by such indemnified party in such proportion as is appropriate to\nreflect not only such relative benefits but also the relative fault of the\nCorporation on the one hand and the Underwriters on the other in connection with\nthe statements or omissions which resulted in such losses, claims, damages,\nliabilities or expenses (or actions in respect thereof), as well as any other\nrelevant equity considerations. The relative benefits received by the\nCorporation on the one hand and the Underwriters on the other shall be deemed to\nbe in the same proportion as the total net proceeds from the offering (before\ndeducting expenses) received by the Corporation bear to the total compensation\nreceived by the Underwriters in respect of the underwriting discount as set\nforth in the table on the cover page of the Prospectus. The relative fault shall\nbe determined by reference to, among other things, whether the untrue or alleged\nuntrue statement of a material fact or the omission or alleged omission to state\na material fact relates to information supplied by the Corporation on the one\nhand or the Underwriters on the other and the parties' relative intent,\nknowledge, access to information and opportunity to correct or prevent such\nstatement or omission. The Corporation and the Underwriters agree that it would\nnot be just and equitable if contributions pursuant to this Section were\ndetermined by pro rata allocation (even if the Underwriters were treated as one\nentity for such purpose) or by any other method of allocation which does not\ntake account of the equitable considerations referred to above in this Section.\nThe amount paid or payable by an indemnified party as a result of the losses,\nclaims, damages, liabilities or expenses (or actions in respect thereof)\nreferred to above in this Section shall be deemed to include any legal or other\nexpenses reasonably incurred by such indemnified party in connection with\ninvestigating or defending any such action or claim. Notwithstanding the\nprovisions of this Section, no Underwriter shall be required to contribute any\namount in excess of the amount by which the total price at which the Notes\nunderwritten by it and distributed to the public were offered to the public\nexceeds the amount of any damages which such Underwriter has otherwise been\nrequired to pay by reason of such untrue or alleged untrue statement or omission\nor alleged omission. No person guilty of fraudulent misrepresentation (within\nthe meaning of Section 11(f) of the 1933 Act) shall be entitled to contribution\nfrom any person who was not guilty of such fraudulent misrepresentation. The\nUnderwriters' obligations to contribute are several in proportion to their\nrespective underwriting obligations and not joint.\n\n  8. Default by One or More of the Underwriters. (a) If any Underwriter shall\ndefault in its obligation to purchase the Notes which it has agreed to\npurchase hereunder on the Closing Date, you may in your discretion arrange for\nyou or another party or other parties to purchase such Notes on the terms\ncontained herein. If within thirty-six hours after such default by any\nUnderwriter you do not arrange for the purchase of such Notes, then the\nCorporation shall be entitled to a further period of thirty-six hours within\nwhich to procure another party or other parties satisfactory to you to\npurchase such Notes on such terms. In the event that, within the respective\nprescribed periods, you notify the Corporation that you have so arranged for\nthe purchase of such Notes, or the Corporation notifies you that it has so\narranged for the purchase of such Notes, you or the Corporation shall have the\nright to postpone such Closing Date for a period of not more than seven days,\nin order to effect whatever changes may thereby be made necessary in the\nRegistration Statement or the Prospectus, or in any other documents or\narrangements, and the Corporation agrees to file promptly any amendments to\nthe Registration Statement or the Prospectus which may be required. The term\n\"Underwriter\" as used in this Agreement shall include any person substituted\nunder this Section with like effect as if such person had originally been a\nparty to this Agreement with respect to such Notes.\n \n  (b) If, after giving effect to any arrangements for the purchase of the Notes\nof a defaulting Underwriter or Underwriters by you or the Corporation as\nprovided in subsection (a) above, the aggregate amount of such Notes which\nremains unpurchased does not exceed one-tenth of the aggregate amount of all the\nNotes to be purchased at such Closing Date, then the Corporation shall have the\nright to require each non-defaulting Underwriter to purchase the amount of Notes\nwhich such Underwriter agreed to purchase hereunder at such Closing Date and, in\naddition, to require each non-defaulting Underwriter to purchase its pro rata\nshare (based on the amount of Notes which such Underwriter agreed to purchase\nhereunder) of the Notes of such defaulting Underwriter or Underwriters for which\nsuch arrangements have not been made; but nothing herein shall relieve a\ndefaulting Underwriter from liability for its default.\n \n  (c) If, after giving effect to any arrangements for the purchase of the Notes\nof a defaulting Underwriter or Underwriters by you or the Corporation as\nprovided in subsection (a) above, the aggregate amount of such Notes which\nremains unpurchased exceeds one-tenth of the aggregate amount of all the Notes\nto be purchased at such Closing Date, or if the Corporation shall not exercise\nthe right described in subsection (b) above to require non-defaulting\nUnderwriters to purchase Notes of a defaulting Underwriter or Underwriters, then\nthis Agreement shall thereupon terminate, without liability on the part of any\nnon-defaulting Underwriter or the Corporation, except for the expenses to be\nborne by the Corporation as provided in Section 5(g) hereof and the indemnity\nand contribution agreement in Section 7 hereof; but nothing herein shall relieve\na defaulting Underwriter from liability for its default.\n \n  9. Representations and Indemnities to Survive Delivery. The respective\nindemnities, agreements, representations, warranties and other statements of\nthe Corporation or its officers and of the several Underwriters set forth in\nor made pursuant to this Agreement will remain in full force and effect,\nregardless of any\n \n                                       8\n\n\n \n \n\ninvestigation, or statement as to the results thereof, made by or on behalf of\nany Underwriter or the Corporation, or any of its officers or directors or any\ncontrolling person, and will survive delivery of and payment for the Notes.\n \n  10. Reliance on Your Acts. In all dealings hereunder,                  shall \nact on behalf of each of the Underwriters, and the Corporation shall be entitled\nto act and rely upon any statement, request, notice or agreement on behalf of\nany Underwriter made or given by                   .\n \n  11. Notices. All communications hereunder will be in writing and, if sent to\nthe Underwriters, will be mailed or telecopied and confirmed to the \nUnderwriters in care of                  Attn:       ,          ,          ,  \nfacsimile number (  )    -     , or, if sent to the Corporation, will be mailed\nor telecopied and confirmed to it at 526 South Church Street, Charlotte, N.C.\n28202, facsimile number (704) 382-1452, attention of David L. Hauser, Senior\nVice President and Treasurer; provided, however, that any notice to an\nUnderwriter pursuant to Section 7 hereof shall be sent by mail or telecopy to\nsuch Underwriter at its address or telecopy number set forth in its\nUnderwriters' Questionnaire or telex constituting such Questionnaire, which\naddress or telecopy number will be supplied to the Corporation by             . \nAny such communications shall take effect upon receipt thereof.\n \n  12. Business Day. As used herein, the term \"business day\" shall mean any day\nwhen the Commission's office in Washington, D.C. is open for business.\n \n  13. Successors. This Agreement shall inure to the benefit of and be binding\nupon the Underwriters and the Corporation and their respective successors.\nNothing expressed or mentioned in this Agreement is intended or shall be\nconstrued to give any person, firm or corporation, other than the parties hereto\nand their respective successors and the controlling persons, officers and\ndirectors referred to in Section 7 and their respective successors, heirs and\nlegal representatives, any legal or equitable right, remedy or claim under or in\nrespect of this Agreement or any provision herein contained; this Agreement and\nall conditions and provisions hereof being intended to be and being for the sole\nand exclusive benefit of the parties hereto and their respective successors and\nsaid controlling persons, officers and directors and their respective\nsuccessors, heirs and legal representatives, and for the benefit of no other\nperson, firm or corporation. No purchaser of Notes from any Underwriter shall be\ndeemed to be a successor or assign by reason merely of such purchase.\n \n  14. Counterparts. This Agreement may be executed in two or more\ncounterparts, each of which shall be deemed to be an original, but all of\nwhich together shall constitute one and the same instrument.\n \n  15. Applicable Law. This Agreement shall be governed by, and construed in\naccordance with, the laws of the State of New York, without giving effect to the\nchoice of law or conflict of law principles thereof.\n \n  If the foregoing is in accordance with your understanding, kindly sign and\nreturn to us two counterparts hereof, and upon confirmation and acceptance\nby                on behalf of each of the Underwriters, this letter and such \nconfirmation and acceptance will become a binding agreement between the\nCorporation, on the one hand, and each of the Underwriters, on the other hand,\nin accordance with its terms. It is understood that confirmation and acceptance\nof this letter by       on behalf of each of the Underwriters is pursuant to the\nauthority set forth in a form of Agreement Among Underwriters, the form of which\nshall be submitted to the Corporation for examination, but without warranty on\nyour part as to the authority of the signers thereof.\n \n                                          Very truly yours,\n \n                                          Duke Energy Corporation\n \n                                          By: _________________________________\n                                              Name:                            \n                                              Title:                            \n \nThe foregoing Underwriting Agreement\n is hereby confirmed and accepted as\n of the date first above written.\n \n\nBy: \n\n\nBy: _________________________________\n    Name:                             \n    Title:                          \n\nOn behalf of each of the Underwriters\n\n\n                                       9\n\n\n\n \n                                   SCHEDULE A\n \n\n                                                                Principal Amount\n                                                                 of Notes to be\n      Underwriter                                                  Purchased\n      -----------                                               ----------------\n\n\n\n\n\n\n\n \n                                                                     -----\nTotal..........................................................      $\n                                                                     =====\n\n\n \n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7366],"corporate_contracts_industries":[9534],"corporate_contracts_types":[9629,9634],"class_list":["post-43962","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-duke-energy-corp","corporate_contracts_industries-utilities__electric","corporate_contracts_types-securities","corporate_contracts_types-securities__underwriting"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/43962","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=43962"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=43962"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=43962"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=43962"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}