Exhibit 4.6.9



 





Exhibit 4.6.9




 





DUKE ENERGY CORPORATION




TO




JPMORGAN CHASE BANK, N.A.,

Trustee




 






EIGHTY-FOURTH SUPPLEMENTAL INDENTURE

Dated as of March 20, 2006




 






SUPPLEMENTAL TO

FIRST AND REFUNDING MORTGAGE

DATED AS OF DECEMBER 1, 1927




 





 









 








EIGHTY-FOURTH SUPPLEMENTAL INDENTURE




     This Eighty-Fourth Supplemental Indenture, dated as of March 20, 2006 (the
“Supplemental Indenture”), by and between Duke Energy Corporation, a North Carolina corporation
(formerly Duke Power Company) (the “Company”), and JPMorgan Chase Bank, N.A. (successor to Guaranty
Trust Company of New York), a national banking association, as trustee under the Mortgage Indenture
referred to below (the “Trustee”).



W I T N E S S E T H




     WHEREAS, the Company has heretofore entered into a First and Refunding Mortgage, dated
December 1, 1927 (the “Original Mortgage Indenture”) with the Trustee, as supplemented to the date
hereof (as so supplemented, the “Mortgage Indenture”); and



     WHEREAS, the Company currently has issued and outstanding the bonds listed on Schedule A
hereto (collectively, the “Mortgage Bonds”) under the Mortgage Indenture; and



     WHEREAS, Sections 14.06 and 14.09 of the Mortgage Indenture provide that the Company and the
Trustee, with the written consent of the Holders (as defined below) of 662/3% or more in principal
amount of the Mortgage Bonds entitled to vote, may amend the Mortgage Indenture, subject to certain
exceptions (none of which is applicable to the amendments contained in Section 201 of this
Supplemental Indenture (the “Amendments”)) specified in Section 14.06 of the Mortgage Indenture;
and



     WHEREAS, pursuant to its Consent Solicitation Statement, dated March 9, 2006 (the “Consent
Solicitation Statement”), the Company solicited consents of the Holders to the Amendments, which if
adopted would amend Sections 4.13 and 8.10 of the Mortgage Indenture as described herein; and



     WHEREAS, the Holders of 662/3% or more in principal amount of the Mortgage Bonds outstanding
have duly consented to the Amendments set forth in this Supplemental Indenture in accordance with
Sections 14.06 and 14.09 of the Mortgage Indenture; and



     WHEREAS, all the conditions necessary to authorize the execution and delivery of this
Supplemental Indenture and to make this Supplemental Indenture valid and binding have been complied
with or have been done or performed.



     NOW, THEREFORE, in consideration of the foregoing, for other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, and notwithstanding any provision of
the Mortgage Indenture which, absent this Supplemental Indenture, might operate to limit such
action, the Company and the Trustee agree as follows for the equal and ratable benefit of the
bearers, from time to time, of Mortgage Bonds not registered as to principal and the registered
owners, from time to time, of Mortgage Bonds registered as to principal, or his or her executor or
administrator (the “Holders”) as follows:



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ARTICLE I




     Section 101. Capitalized Terms. Capitalized terms used herein without definition
shall have the meanings assigned to them in the Mortgage Indenture.



ARTICLE II




     Section 201. Amendments. The Mortgage Indenture is hereby amended in the following
respects:



(a) Section 4.13 of the Mortgage Indenture is hereby deleted in its entirety and replaced with
the following:





     “Section 4.13 The Company will at all times maintain its existence as a
corporation (as that term is defined in Section 8.10 herein) (except as provided in
Article 8) and duly procure all renewals and extensions thereof and it will
continuously carry on and conduct its business in an efficient manner, except as the
same may be interrupted by strikes, fires, acts of God or causes or casualties
beyond the control of the Company, and will maintain its fixed property in good
physical condition and in a state of good operating efficiency for the purposes of
the Company and make all needful substitutions, renewals and replacements. The
Company will not permit or suffer any waste in respect of the mortgaged property,
subject, however, to the provisions of Article 5. The Company will do or cause to
be done all things necessary to preserve and to keep valid and intact the lien and
encumbrance hereby created; and it will not do or suffer any matter or thing not
hereby expressly permitted whereby the lien of this Indenture might or could be lost
or impaired, in whole or in part, until all bonds issued hereunder with all the
interest accrued thereon shall have been fully paid and satisfied; and it will to
the best of its ability maintain and preserve and cause to be extended and continued
until the termination of this Indenture all corporate, limited liability company or
similar rights, indeterminate permits, franchises, ordinances, easements, powers and
privileges granted and confirmed by law or otherwise to it; provided, however, that
with or without the consent of the Trustee any indeterminate permit, franchise,
ordinance, right, power or privilege may be surrendered, abandoned, canceled and
modified pursuant to the provisions of Article 5. Nothing herein contained shall be
construed to prevent the Company from ceasing to operate any of its plants or other
property, if, in the judgment of the Company, it is advisable not to operate the
same for the time being, or if the Company intends to sell or otherwise dispose of
the same and within a reasonable time endeavors to effect such a sale.”



(b) Section 8.10 of the Mortgage Indenture is hereby deleted in its entirety and replaced with
the following:





     “Section 8.10. The following terms as used in this Indenture shall have the
following meanings:



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	 	(1)	 	“Board of Directors” shall mean the board of directors or any
committee thereof duly authorized to act on behalf of such board, the managing
member or members or any controlling committee of managing members thereof, the
managers or any board of managers thereof; or a similar body;

	 
	 	(2)	 	“charter and by-laws” shall mean charter, by-laws, articles of
organization, operating agreements, limited liability company agreements, or
other similar organizational documents;

	 
	 	(3)	 	“Company” shall mean Duke Energy Corporation or Duke Power
Company LLC and any and all successor corporations thereto;

	 
	 	(4)	 	“corporations” shall mean (i) corporations, (ii) limited
liability companies, provided that, if the applicable law pursuant to which
such company is created does not itself provide for the continued existence of
such company in the event of the bankruptcy or death of any member or a
transfer of membership interests, then notwithstanding any such applicable law,
the organizational documents for such company provide for continued existence
notwithstanding the bankruptcy or death of any member or the transfer of
membership interests, or (iii) other similar forms of organization that provide
for limited liability on behalf of their equity holders and continued existence
notwithstanding the bankruptcy or death of any such equity holder or the
transfer of such equity holder’s interest;

	 
	 	(5)	 	“corporate identity” shall mean the nature and conduct of the
business of a corporation, a limited liability company or other similar forms
of organization that provide for limited liability on behalf of their equity
holders;

	 
	 	(6)	 	“corporate obligation” shall mean obligations of a
corporation, a limited liability company or other similar forms of organization
that provide for limited liability on behalf of their equity holders; and

	 
	 	(7)	 	“corporate action” shall mean actions of a corporation, a
limited liability company or other similar forms of organization that provide
for limited liability on behalf of their equity holders.”






ARTICLE III




     Section 301. Effectiveness. This Supplemental Indenture shall become effective upon
its execution and delivery by the Company and the Trustee. Notwithstanding the execution and
delivery of the Supplemental Indenture by the Company and the Trustee, the Amendments shall become
operative only after the making of the Consent Payment (as defined in the Consent Solicitation
Statement). The Consent Payment will be deemed to have been paid when made by deposit with the
Information and Tabulation Agent (as defined in the Consent Solicitation Statement), which will act
as the agent for the Holders and transmit such payment to such Holders. The Mortgage Indenture
will remain in effect without giving effect to the Amendments if the Consent Payment is not made.
Upon the execution and delivery of this Supplemental Indenture by the Company and the Trustee, the
Mortgage Indenture shall be supplemented in accordance herewith, and this Supplemental Indenture
shall form a part of the Indenture for all purposes, and every Holder of Mortgage Bonds heretofore
or hereafter authenticated and



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delivered under the Mortgage Indenture shall be bound thereby. The Company shall give the
Trustee prompt notice of the making of the Consent Payment.



     Section 302. Indenture and Supplemental Indenture Construed Together. This
Supplemental Indenture is executed and shall be construed as an indenture supplemental to the
Mortgage Indenture and, as provided in the Mortgage Indenture, this Supplemental Indenture forms a
part thereof. Except as expressly amended hereby, the Mortgage Indenture shall continue in full
force and effect in accordance with the provisions thereof and the Mortgage Indenture is in all
respects hereby ratified and confirmed.



     Section 303. Provisions Binding on Successors. All of the covenants, stipulations,
premises and agreements made in this Supplemental Indenture by the Company shall bind its
successors and assigns whether so expressed or not.



     Section 304. Execution and Counterparts. This Supplemental Indenture may be
executed in any number of counterparts, each of which when so executed shall be deemed to be an
original, but all such counterparts shall together constitute but one and the same instrument.



     Section 305. Effect of Headings. The Section headings herein are for convenience
only and shall not affect the construction hereof.



     Section 306. The Trustee. The Trustee shall not be responsible in any manner
whatsoever for or in respect of the validity or sufficiency of this Supplemental Indenture or for
or in respect of the recitals contained herein.



[The remaining portion of this page is intentionally left blank]




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     IN WITNESS WHEREOF, Duke Energy Corporation, the party of the first part hereto, has caused
this Eighty-Fourth Supplemental Indenture to be signed in its name by one of its Vice Presidents
and its corporate seal to be hereunto affixed, and the same to be attested by one of its Assistant
Secretaries, and JPMorgan Chase Bank, N.A., the party of the second part hereto, has caused this
Eighty-Fourth Supplemental Indenture to be signed in its name by one of its Vice Presidents and its
corporate seal to be hereunto affixed, all as of the day and year first above written.



	 	 	 	 	 
	 	DUKE ENERGY CORPORATION

a North Carolina corporation

 	 
	 	By:  	/s/ David L. Hauser
 	 
	 	 	Name:  	David L. Hauser 	 
	 	 	Title:  	Group Vice President and Chief

Financial Officer 	 
	 



	 	 	 
	ATTEST:
	 	 
	 
	 	 
	/s/ Robert L. Lucas
 

Name: Robert L. Lucas III

	 	 
	Title: Assistant Secretary
	 	 
	 
	 	 
	Signed, sealed and delivered by Duke
	 	 
	Energy Corporation, in the presence of:
	 	 
	 
	 	 
	/s/ Sue C. Harrington
 

Sue C. Harrington

	 	 
	 
	 	 
	/s/ Delcia S. Dunlap
 

Delcia S. Dunlap

	 	 






Supplemental Indenture




 









 








	 	 	 	 	 
	 	JPMORGAN CHASE BANK, N.A.,

as Trustee

 	 
	 	By:  	/s/ Carol Ng
 	 
	 	 	Name:  	Carol Ng 	 
	 	 	Title:  	Vice President 	 
	 



	 	 	 
	ATTEST:
	 	 
	 
	 	 
	/s/ Steve Chang
 

Name: Steve Chang

	 	 
	Title: Trust Officer
	 	 
	 
	 	 
	Signed, sealed and delivered by JPMorgan Chase Bank, N.A., in the presence of:
	 
	 	 
	/s/ Larry O’Brien
 


	 	 
	 
	 	 
	/s/ James D. Heaney
 


	 	 






Supplemental Indenture




 









 








	 	 	 
	State of North Carolina

	 	 )
	 

	 	 ) ss.:
	County of Mecklenburg

	 	 )






     Personally appeared before me Sue C. Harrington and made oath that he/she saw David L. Hauser,
a Vice President, and Robert L. Lucas III, an Assistant Secretary, respectively, of Duke Energy
Corporation, sign, attest and affix hereto the corporate seal of said Duke Energy Corporation, and,
as the act and deed of said corporation, deliver the within written and foregoing deed, and that
he/she with Delcia S. Dunlap, witnessed the execution thereof.



	 	 	 	 	 
	 	 	 
	 	     /s/ Sue C. Harrington
 	 
	 	Sue C. Harrington 	 
	 	 	 
	 



Sworn and subscribed before me

this 20th day of March, 2006




	 	 	 
	/s/ Phoebe P. Elliott
 


	 	 






Notary Public

Mecklenburg County

My Commission expires June 26, 2006




	 	 	 
	State of North Carolina

	 	 )
	 

	 	 ) ss.:
	County of Mecklenburg

	 	 )






     I, Phoebe P. Elliott, a Notary Public in and for the State and County aforesaid, certify that
Robert L. Lucas III personally came before me this day and acknowledged that he is an Assistant
Secretary of Duke Energy Corporation, a North Carolina corporation, and that, by authority duly
given and as the act of the corporation, the foregoing instrument was signed in its name by one of
its Vice Presidents, sealed with its corporate seal, and attested by himself or herself as one of
its Assistant Secretaries.



     My commission expires June 26, 2006



     Witness may hand and official seal, this 20th day of March, 2006.



	 	 	 	 	 
	 	 	 
	 	     /s/ Phoebe P. Elliott
 	 
	 	 	 
	 	Notary Public State of North Carolina

Mecklenburg County 	 
	 



Supplemental Indenture




 









 








	 	 	 
	State of New York

	 	 )
	 

	 	 ) ss.:
	County of New York

	 	 )






     Personally appeared before me Larry O’Brien and made oath that he/she saw Carol Ng, a Vice
President, and Steve Chang, a Trust Officer, respectively, of JPMorgan Chase Bank,. N.A., sign,
attest and affix hereto the corporate seal of said JPMorgan Chase Bank, N.A., and , as the act and
deed of said corporation, deliver the within written and foregoing deed, and that he/she, with
James D. Heaney, witnessed the execution thereof.




	 	 	 	 	 
	 

	 	/s/ Larry O’Brien
 

	 	 






Sworn and subscribed before me

this 16th day of March, 2006




	 	 	 
	/s/ Emily Fayan
 


	 	 






Notary Public, State of New York

No. 01FA4737006

Qualified in Kings County

Certificate Filed in New York County

My Commission expires December 31, 2009




	 	 	 
	State of New York

	 	 )
	 

	 	 ) ss.:
	County of New York

	 	 )






           I, Emily Fayan, a Notary Public in and for the State and County aforesaid, certify that Steve
Chang personally came before me this day and acknowledged that he/she is a Trust Officer of
JPMorgan Chase Bank, N.A., a national banking association, and that, by authority duly given and as
the act of the corporation, the foregoing instrument was signed in its name by one of its Vice
Presidents, sealed with its corporate seal, and attested by himself/herself as one of its Trust
Officer.



     Witness may hand and official seal, this 16th day of March, 2006.



	 	 	 	 	 
	 

	 	/s/ Emily Fayan
 

	 	 
	 
	 	 	 	 
	 

	 	Notary Public, State of New York	 	 
	 

	 	No. 01FA4737006	 	 
	 

	 	Qualified in Kings County	 	 
	 

	 	Certificate Filed in New York County	 	 
	 

	 	My Commission expires December 31, 2009	 	 






Supplemental Indenture




 









 








SCHEDULE A





	§	 	3.75% First and Refunding Mortgage Bonds Series A due 2008 and 3.75% First and Refunding
Mortgage Bonds Series B due 2008

	 
	§	 	41/2% First and Refunding Mortgage Bonds due 2010

	 
	§	 	5.30% First and Refunding Mortgage Bonds due 2015

	 
	§	 	First and Refunding Mortgage Bonds, York County Pollution Control Facilities Revenue
Refunding Series due 2014

	 
	§	 	First and Refunding Mortgage Bonds, Medium-Term Notes Series due 2017

	 
	§	 	8.95% First and Refunding Mortgage Bonds, City of Greensboro Series due 2027