EXHIBIT 1.2
DUKE CAPITAL CORPORATION
$
SERIES % JUNIOR SUBORDINATED NOTES DUE
UNDERWRITING AGREEMENT
Gentlemen:
1. Introductory. DUKE CAPITAL CORPORATION, a Delaware corporation
("Corporation"), proposes to issue and sell $ aggregate principal
amount of Series % Junior Subordinated Notes Due ("Notes"), to be issued
pursuant to the provisions of a Senior Indenture, dated as of April 1, 1998,
between the Corporation and The Chase Manhattan Bank, as amended and
supplemented to the date hereof and as to be supplemented by a supplemental
indenture, dated as of , , relating to the Notes (the "Indenture"),
and hereby agrees with the several Underwriters hereinafter named
("Underwriters") as follows:
2. Representations and Warranties of the Corporation. The Corporation
represents and warrants to, and agrees with, the several Underwriters that:
(a) A registration statement (No. ), including a prospectus,
relating to the Notes has been filed with the Securities and Exchange
Commission (the "Commission") under the Securities Act of 1933 (the "1933
Act"). Such registration statement and any post-effective amendment
thereto, each in the form heretofore delivered to you, have been declared
effective by the Commission in such form, and no stop order suspending the
effectiveness of such registration statement has been issued and no
proceeding for that purpose has been initiated or threatened by the
Commission (any preliminary prospectus included in such registration
statement or filed with the Commission pursuant to Rule 424(a) of the rules
and regulations of the Commission under the 1933 Act being hereinafter
called a "Preliminary Prospectus"; the various parts of such registration
statement, including all exhibits thereto and including the documents
incorporated by reference in the prospectus contained in the registration
statement at the time such part of the registration statement became
effective, each as amended at the time such part of the registration
statement became effective, being hereinafter called the "Registration
Statement"; and the final prospectus relating to the Notes, in the form
first filed pursuant to Rule 424(b) under the 1933 Act, being hereinafter
called the "Prospectus"; and any reference herein to any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein, as of the date of
such Preliminary Prospectus or Prospectus, as the case may be; any
reference to any amendment or supplement to any Preliminary Prospectus or
Prospectus shall be deemed to refer to and include any documents filed
after the date of such Preliminary Prospectus or Prospectus, as the case
may be, under the Securities Exchange Act of 1934, as amended (the "1934
Act"), and incorporated by reference in such Preliminary Prospectus or
Prospectus, as the case may be; and any reference to any amendment to the
Registration Statement shall be deemed to refer to and include any annual
report of the Corporation filed pursuant to Section 13(a) or 15(d) of the
1934 Act after the effective date of the Registration Statement that is
incorporated by reference in the Registration Statement).
(b) The Registration Statement conforms and the Prospectus will conform in
all material respects to the requirements of the 1933 Act and the rules and
regulations thereunder ("1933 Act Regulations"), and the Registration
Statement does not and the Prospectus will not include any untrue statement
of a material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading, except
that the foregoing does not apply to statements or omissions in any such
document based upon written information furnished to the Corporation by any
Underwriter specifically for use therein.
(c) The documents incorporated by reference in the Prospectus, at the time
they were filed with the Commission, conformed in all material respects to
the requirements of the 1934 Act and the rules and regulations of the
Commission thereunder (the "1934 Act Regulations"), and, when read together
with the other information in the Prospectus, do not contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading, and any documents deemed to be incorporated by reference in the
Prospectus will, when they are filed with the Commission, comply in all
material respects with the requirements of the 1934 Act and the 1934 Act
Regulations, and will not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which
they are made, not misleading.
(d) The compliance by the Corporation with all of the provisions of this
Agreement and the consummation of the transactions herein contemplated will
not conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage, deed
of trust, loan agreement or other agreement or instrument to which the
Corporation or any of its Principal Subsidiaries is a party or by which any
of them or their respective property is bound or to which any of their
property or assets is subject, nor will such action result in any violation
of the provisions of the Restated Certificate of Incorporation or By-Laws
of the Corporation or any statute or any order, rule or regulation of any
court or governmental agency or body having jurisdiction over the
Corporation or its Principal Subsidiaries or any of their respective
property; and no consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or body is
required for the consummation by the Corporation of the transactions
contemplated by this Agreement, except for the registration under the 1933
Act of the Notes and such consents, approvals, authorizations,
registrations or qualifications as may be required under state securities
or Blue Sky laws in connection with the purchase and distribution of the
Notes by the Underwriters.
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(e) Each of PanEnergy Corp, Panhandle Eastern Pipe Line Company, Texas
Eastern Transmission Corporation, Trunkline Gas Company and Algonquin Gas
Transmission Company, each a Delaware corporation (and hereinafter called a
"Principal Subsidiary"), is a direct or indirect wholly-owned subsidiary of
the Corporation.
3. Purchase, Sale and Delivery of Notes. On the basis of the representations,
warranties and agreements herein contained, but subject to the terms and
conditions herein set forth, the Corporation agrees to sell to the
Underwriters, and the Underwriters agree, severally and not jointly, to
purchase from the Corporation, at a purchase price of % of the principal
amount of the Notes, plus accrued interest from , , the respective
principal amount of Notes set forth opposite the names of the Underwriters in
Schedule A hereto plus the respective principal amount of additional Notes
which each such Underwriter may become obligated to purchase pursuant to the
provisions of Section 8 hereof.
Payment of the purchase price for the Notes to be purchased by the Underwriters
shall be made at the offices of Dewey Ballantine LLP, 1301 Avenue of the
Americas, New York, N.Y., or at such other place as shall be mutually agreed
upon by you and the Corporation, at 10:00 A.M., New York City time, on ,
(unless postponed in accordance with the provisions of Section 8) or
such other time not later than three full business days after such date as shall
be agreed upon by you and the Corporation (the "Closing Date"). Payment shall be
made to the Corporation by wire transfer in immediately available funds, payable
to the order of the Corporation against delivery of the Notes, in fully
registered form, to you or upon your order. The Notes shall be delivered in the
form of one or more global certificates in aggregate denomination equal to the
aggregate principal amount of the Notes upon original issuance and registered in
the name of Cede & Co., as nominee for The Depository Trust Company ("DTC").
4. Offering by the Underwriters. It is understood that the several Underwriters
propose to offer the Notes for sale to the public as set forth in the
Prospectus.
5. Covenants of the Corporation. The Corporation covenants and agrees with the
several Underwriters that:
(a) The Corporation will advise you promptly of any amendment or
supplementation of the Registration Statement or the Prospectus and of the
institution by the Commission of any stop order proceedings in respect of
the Registration Statement, and will use its best efforts to prevent the
issuance of any such stop order and to obtain as soon as possible its
lifting, if issued.
(b) If at any time when a prospectus relating to the Notes is required to
be delivered under the 1933 Act any event occurs as a result of which the
Prospectus as then amended or supplemented would include an untrue
statement of a material fact, or omit to state any material fact necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading, or if it is necessary at any time to
amend the Prospectus to comply with the 1933 Act, the Corporation promptly
will prepare and file with the Commission an amendment, supplement or an
appropriate document pursuant to Section 13 or 14 of the 1934 Act which
will correct such statement or omission or which will effect such
compliance.
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(c) The Corporation, during the period when a prospectus relating to the
Notes is required to be delivered under the 1933 Act, will file promptly
all documents required to be filed with the Commission pursuant to Section
13 or 14 of the 1934 Act.
(d) The Corporation will make generally available to its security holders,
in each case as soon as practicable but not later than 60 days after the
close of the period covered thereby, earnings statements (in form complying
with the provisions of Section 11(a) of the 1933 Act, which need not be
certified by independent certified public accountants unless required by
the 1933 Act) covering (i) a twelve-month period beginning not later than
the first day of the Corporation's fiscal quarter next following the
effective date of the Registration Statement and (ii) a twelve-month period
beginning not later than the first day of the Corporation's fiscal quarter
next following the date of this Agreement.
(e) The Corporation will furnish to you, without charge, copies of the
Registration Statement ( of which will be signed and will include all
exhibits other than those incorporated by reference), the Prospectus, and
all amendments and supplements to such documents, in each case as soon as
available and in such quantities as you reasonably request.
(f) The Corporation will arrange or cooperate in arrangements for the
qualification of the Notes for sale under the laws of such jurisdictions as
you designate and will continue such qualifications in effect so long as
required for the distribution; provided, however, that the Corporation
shall not be required to qualify as a foreign corporation or to file any
general consents to service of process under the laws of any state where it
is not now so subject.
(g) The Corporation will not, during the period beginning from the date
hereof and continuing to and including the date fifteen days after the date
hereof, sell, offer to sell, grant any option for the sale of, or otherwise
dispose of any Notes, any security convertible into or exchangeable for the
Notes or any debt security substantially similar to the Notes (except for
the Notes issued pursuant to this Agreement), without your prior written
consent.
(h) The Corporation will pay all expenses incident to the performance of
its obligations under this Agreement including (i) the printing and filing
of the Registration Statement and the printing of this Agreement and the
Blue Sky Survey, (ii) the issuance and delivery of the Notes as specified
herein, (iii) the fees and disbursements of counsel for the Underwriters in
connection with the qualification of the Notes under the securities laws of
any jurisdiction in accordance with the provisions of Section 5(f) and in
connection with the preparation of the Blue Sky Survey, such fees not to
exceed $7,500, (iv) the printing and delivery to the Underwriters, in
quantities as hereinabove referred to, of copies of the Registration
Statement and Prospectus and any amendments thereto, and of the Prospectus
and any amendments or supplements thereto, (v) any fees charged by
independent rating agencies for rating the Notes, (vi) any fees and
expenses in connection with any listing of the Notes on the New York Stock
Exchange, (vii) any filing fee required by the National Association of
Securities Dealers, Inc., and (viii) the costs of any depository
arrangements for the Notes with DTC or any successor depository.
6. Conditions of the Obligations of the Underwriters. The obligations of the
several Underwriters to purchase and pay for the Notes will be subject to the
accuracy of the representations and
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warranties on the part of the Corporation herein, to the accuracy of the
statements of officers of the Corporation made pursuant to the provisions
hereof, to the performance by the Corporation of its obligations hereunder and
to the following additional conditions precedent:
(a) Prior to the Closing Date, no stop order suspending the effectiveness
of the Registration Statement shall have been issued and no proceedings for
that purpose shall have been instituted or, to the knowledge of the
Corporation or you, shall be threatened by the Commission.
(b) Prior to the Closing Date, the rating assigned by Moody's Investors
Service, Inc. or Standard & Poor's Ratings Group to (i) any preferred
securities or any debt securities of the Corporation or (ii) any trust
preferred securities of Duke Capital Financing Trust I or Duke Capital
Financing Trust II as of the date of this Agreement shall not have been
lowered.
(c) Since the respective most recent dates as of which information is given
in the Prospectus and up to the Closing Date, there shall not have been any
material adverse change in the condition of the Corporation, financial or
otherwise, except as reflected in or contemplated by the Prospectus, and,
since such dates and up to the Closing Date, there shall not have been any
material transaction entered into by the Corporation other than
transactions contemplated by the Prospectus and transactions in the
ordinary course of business.
(d) You shall have received an opinion or opinions of Dewey Ballantine LLP,
counsel to the Corporation, dated the Closing Date, to the effect that:
(i) The Corporation has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of
Delaware, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus.
(ii) Each of the Principal Subsidiaries has been duly incorporated and
is validly existing as a corporation in good standing under the laws of
its jurisdiction of incorporation, with power and authority (corporate
and other) to own its properties and conduct its business as described
in the Prospectus.
(iii) The Indenture has been duly authorized, executed and delivered by
the Corporation and duly qualified under the Trust Indenture Act of
1939 and, assuming the due authorization, execution and delivery
thereof by The Chase Manhattan Bank, as Trustee, constitutes a valid
and legally binding instrument of the Corporation, enforceable against
the Corporation in accordance with its terms, subject to the
qualifications that the enforceability of the Corporation's obligations
under the Indenture may be limited by bankruptcy, insolvency,
reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally, and by general principles of
equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law).
(iv) The Notes have been duly authorized and executed by the
Corporation and, when authenticated by The Chase Manhattan Bank, as
Trustee, in the manner provided in the Indenture and delivered against
payment therefor, will constitute valid and legally binding obligations
of the Corporation, enforceable against the Corporation in accordance
with their terms, subject to the qualifications that the enforceability
of the Corporation's obligations under the Notes may be limited by
bankruptcy, insolvency, reorganization, moratorium and other similar
laws relating to or affecting creditors' rights generally and by
general
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principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law), and are entitled to
the benefits afforded by the Indenture in accordance with the terms of
the Indenture and the Notes.
(v) The Registration Statement has become effective under the 1933 Act,
and, to the best of the knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been instituted or are
pending or threatened under the 1933 Act.
(vi) This Agreement has been duly authorized, executed and delivered by
the Corporation.
(vii) The performance by the Corporation of this Agreement will not
contravene any of the provisions of the Restated Certificate of
Incorporation or By-Laws of the Corporation.
(viii) The Corporation is not a holding company under the Public
Utility Holding Company Act of 1935, as amended.
(ix) No consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body is
required for the issue and sale of the Notes or the consummation by the
Corporation of the transactions contemplated by this Agreement or the
Indenture, except such as have been obtained under the 1933 Act and the
Trust Indenture Act and such consents, approvals, authorizations,
orders, registrations or qualifications as may be required under state
securities or Blue Sky laws in connection with the purchase and
distribution of the Notes by the Underwriters.
(x) The Registration Statement as of the date of effectiveness under
the 1933 Act and the Prospectus as of the date it was filed with, or
transmitted for filing to, the Commission complied as to form in all
material respects with the requirements of the 1933 Act and the 1933
Act Regulations; and nothing has come to their attention that would
lead them to believe that the Registration Statement as of the date of
effectiveness under the 1933 Act (or if an amendment to such
Registration Statement or an annual report on Form 10-K has been filed
by the Corporation with the Commission subsequent to the effectiveness
of the Registration Statement, then at the time of the most recent such
filing) contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading or that the Prospectus as of
the date it was filed with, or transmitted for filing to, the
Commission and at the Closing Date contained or contains an untrue
statement of a material fact or omitted or omits to state a material
fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading. Such
opinion may state that such counsel do not assume any responsibility
for the accuracy, completeness or fairness of the statements contained
in the Registration Statement and Prospectus except as otherwise
expressly provided in such opinion and do not express any opinion or
belief as to the financial statements or other financial data contained
in the Registration Statement and the Prospectus or as to the statement
of the eligibility and qualification of the Trustee.
(xi) The statements made in the Prospectus under the captions
"Description of the Junior Subordinated Notes" and "Description of the
Series Junior Subordinated Notes," insofar as they purport to
summarize provisions of documents specifically referred to therein,
fairly present the information called for with respect thereto by Form
S-3.
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In rendering the foregoing opinion or opinions, Dewey Ballantine LLP may
state that such opinion or opinions are limited to the federal laws of the
United States, the laws of the State of New York and the General
Corporation Law of the State of Delaware, and that they are expressing no
opinion as to the effect of the laws of any other jurisdiction. In
addition, such counsel may state that they have relied as to certain
factual matters on information obtained from public officials, officers of
the Corporation and other sources believed by them to be responsible and
that the signatures on all documents examined by them are genuine,
assumptions which such counsel have not independently verified.
(e) You shall have received an opinion, dated the Closing Date, of Ellen T.
Ruff, Esq., General Counsel of the Corporation, to the effect that:
(i) Each of the Corporation and the Principal Subsidiaries is duly
qualified to do business in each jurisdiction in which the ownership or
leasing of its property or the conduct of its business requires such
qualification, except where the failure to so qualify, considering all
such cases in the aggregate, does not have a material adverse effect on
the business, properties, financial position or results of operations
of the Corporation and its subsidiaries taken as a whole.
(ii) The descriptions in the Registration Statement and the Prospectus
of legal or governmental proceedings are accurate and fairly present
the information required to be shown, and such counsel does not know of
any litigation or any legal or governmental proceeding instituted or
threatened against the Corporation or any of its subsidiaries or any of
their respective properties that would be required to be disclosed in
the Prospectus and is not so disclosed.
Such counsel shall also state that nothing has come to her attention that
has caused her to believe that the Registration Statement as of the date of
effectiveness under the 1933 Act and the Prospectus as of the date it was
filed with, or transmitted for filing to, the Commission, contained any
untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading, or that the Prospectus as of the date it was filed with, or
transmitted for filing to, the Commission and at the Closing Date,
contained or contains any untrue statement of a material fact or omitted or
omits to state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading. Such counsel may also state that, except as otherwise expressly
provided in such opinion, she does not assume any responsibility for the
accuracy, completeness or fairness of the statements contained in the
Registration Statement and the Prospectus and does not express any opinion
or belief as to the financial statements or other financial data contained
in the Registration Statement and the Prospectus.
In rendering the foregoing opinion, such counsel may rely, to the extent
recited therein, upon opinions of local counsel. Such counsel may also
state that he has relied as to certain factual matters on information
obtained from public officials, officers of the Corporation and other
sources believed by him to be responsible.
(f) You shall have received the opinion or opinions of Sullivan & Cromwell,
counsel for the Underwriters, dated the Closing Date, with respect to the
incorporation of the Corporation, the
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validity of the Notes, the Registration Statement and the Prospectus, as
amended or supplemented, and such other related matters as you may require,
and the Corporation shall have furnished to such counsel such documents as
they request for the purpose of enabling them to pass upon such matters.
(g) On or after the date hereof, there shall not have occurred any of the
following: (i) a suspension or material limitation in trading in securities
generally or of the securities of Duke Energy Corporation, the Corporation,
Duke Capital Financing Trust I or Duke Capital Financing Trust II on the
New York Stock Exchange; or (ii) a general moratorium on commercial banking
activities in New York declared by either federal or New York State
authorities; or (iii) the outbreak or material escalation of hostilities
involving the United States or the declaration by the United States of a
national emergency or war if the effect of any such event specified in this
clause (g) in your judgment makes it impracticable or inadvisable to
proceed with the public offering or the delivery of the Notes being
delivered at the Closing Date on the terms and in the manner contemplated
in the Prospectus. In such event there shall be no liability on the part of
any party to any other party except as otherwise provided in Section 7
hereof and except for the expenses to be borne by the Corporation as
provided in Section 5(h) hereof.
(h) You shall have received a certificate of the Chairman of the Board and
President or any Vice President and a principal financial or accounting
officer of the Corporation, dated the Closing Date, in which such officers,
to the best of their knowledge after reasonable investigation, shall state
that the representations and warranties of the Corporation in this
Agreement are true and correct, that the Corporation has complied with all
agreements and satisfied all conditions on its part to be performed or
satisfied at or prior to the Closing Date, that the conditions specified in
Section 6(b) and Section 6(c) have been satisfied, and that no stop order
suspending the effectiveness of the Registration Statement has been issued
and no proceedings for that purpose have been instituted or are threatened
by the Commission.
(i) On the date of this Agreement, you shall have received letters dated
the date hereof, in form and substance satisfactory to you, from the
Corporation's independent public accountants, containing statements and
information of the type ordinarily included in accountants' "comfort
letters" to underwriters with respect to the financial statements and
certain financial information contained in or incorporated by reference
into the Prospectus.
(j) At the Closing Date you shall have received from the Corporation's
independent public accountants letters, dated the Closing Date, to the
effect that such accountants reaffirm the statements made in the letters
furnished pursuant to paragraph (i) of this Section 6, except that the
specified date referred to shall be a date not more than three business
days prior to the Closing Date.
The Corporation will furnish you with such conformed copies of such opinions,
certificates, letters and documents as you reasonably request.
7. Indemnification. (a) The Corporation agrees to indemnify and hold harmless
each Underwriter and each person, if any, who controls any Underwriter within
the meaning of Section 15 of the 1933 Act, as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever arising out of any untrue statement or alleged untrue statement
of a material fact contained in the Registration
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Statement (or any amendment thereto), or the omission or alleged omission
therefrom of a material fact required to be stated therein or necessary to
make the statements therein not misleading or arising out of any untrue
statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, the prospectus constituting a part of the
Registration Statement in the form in which it became effective or the
Prospectus (or any amendment or supplement thereto) or the omission or
alleged omission therefrom of a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading, unless such statement or omission or such
alleged statement or omission was made in reliance upon and in conformity
with written information furnished to the Corporation by any Underwriter
through you expressly for use in the Registration Statement (or any
amendment thereto) or such Preliminary Prospectus, such prospectus, or the
Prospectus (or any amendment or supplement thereto);
(ii) against any and all loss, liability, claim, damage and expense
whatsoever to the extent of the aggregate amount paid in settlement of any
litigation, commenced or threatened, or of any claim whatsoever based upon
any such untrue statement or omission or any such alleged untrue statement
or omission, if such settlement is effected with the written consent of the
Corporation; and
(iii) against any and all expense whatsoever reasonably incurred in
investigating, preparing or defending against any litigation, commenced or
threatened, or any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission, to the extent
that any such expense is not paid under (i) or (ii) above.
In no case shall the Corporation be liable under this indemnity agreement with
respect to any claim made against any Underwriter or any such controlling
person unless the Corporation shall be notified in writing of the nature of the
claim within a reasonable time after the assertion thereof, but failure so to
notify the Corporation shall not relieve it from any liability which it may
have otherwise than on account of this indemnity agreement. The Corporation
shall be entitled to participate at its own expense in the defense, or, if it
so elects, within a reasonable time after receipt of such notice, to assume the
defense of any suit brought to enforce any such claim, but if it so elects to
assume the defense, such defense shall be conducted by counsel chosen by it and
approved by the Underwriter or Underwriters or controlling person or persons,
or defendant or defendants in any suit so brought, which approval shall not be
unreasonably withheld. In any such suit, any Underwriter or any such
controlling person shall have the right to employ its own counsel, but the fees
and expenses of such counsel shall be at the expense of such Underwriter or
such controlling person unless (i) the Corporation and such Underwriter shall
have mutually agreed to the employment of such counsel, or (ii) the named
parties to any such action (including any impleaded parties) include both such
Underwriter or such controlling person and the Corporation and such Underwriter
or such controlling person shall have been advised by such counsel that a
conflict of interest between the Corporation and such Underwriter or such
controlling person may arise and for this reason it is not desirable for the
same counsel to represent both the indemnifying party and also the indemnified
party (it being understood, however, that the Corporation shall not, in
connection with any one such action or separate but substantially similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the reasonable fees and expenses of
more than one separate firm of attorneys for all such Underwriters and all such
controlling persons, which firm shall
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be designated in writing by you). The Corporation agrees to notify you within a
reasonable time of the assertion of any claim against it, any of its officers
or directors or any person who controls the Corporation within the meaning of
Section 15 of the 1933 Act, in connection with the sale of the Notes.
(b) Each Underwriter severally agrees that it will indemnify and hold harmless
the Corporation, its directors and each of the officers of the Corporation who
signed the Registration Statement and each person, if any, who controls the
Corporation within the meaning of Section 15 of the 1933 Act to the same extent
as the indemnity contained in subsection (a) of this Section, but only with
respect to statements or omissions made in the Registration Statement (or any
amendment thereto) or any Preliminary Prospectus, such prospectus or the
Prospectus (or any amendment or supplement thereto) in reliance upon and in
conformity with written information furnished to the Corporation by such
Underwriter through you expressly for use in the Registration Statement (or any
amendment thereto), such Preliminary Prospectus, such prospectus or the
Prospectus (or any amendment or supplement thereto). In case any action shall
be brought against the Corporation or any person so indemnified based on the
Registration Statement (or any amendment thereto) or such Preliminary
Prospectus, such prospectus or the Prospectus (or any amendment or supplement
thereto) and in respect of which indemnity may be sought against any
Underwriter, such Underwriter shall have the rights and duties given to the
Corporation, and the Corporation and each person so indemnified shall have the
rights and duties given to the Underwriters, by the provisions of subsection
(a) of this Section.
8. Default by One or More of the Underwriters. (a) If any Underwriter shall
default in its obligation to purchase the Notes which it has agreed to purchase
hereunder on the Closing Date, you may in your discretion arrange for you or
another party or other parties to purchase such Notes on the terms contained
herein. If within thirty-six hours after such default by any Underwriter you do
not arrange for the purchase of such Notes, then the Corporation shall be
entitled to a further period of thirty-six hours within which to procure
another party or other parties satisfactory to you to purchase such Notes on
such terms. In the event that, within the respective prescribed periods, you
notify the Corporation that you have so arranged for the purchase of such
Notes, or the Corporation notifies you that it has so arranged for the purchase
of such Notes, you or the Corporation shall have the right to postpone such
Closing Date for a period of not more than seven days, in order to effect
whatever changes may thereby be made necessary in the Registration Statement or
the Prospectus, or in any other documents or arrangements, and the Corporation
agrees to file promptly any amendments to the Registration Statement or the
Prospectus which may be required. The term "Underwriter" as used in this
Agreement shall include any person substituted under this Section with like
effect as if such person had originally been a party to this Agreement with
respect to such Notes.
(b) If, after giving effect to any arrangements for the purchase of the Notes
of a defaulting Underwriter or Underwriters by you or the Corporation as
provided in subsection (a) above, the aggregate amount of such Notes which
remains unpurchased does not exceed one-eleventh of the aggregate amount of all
the Notes to be purchased at such Closing Date, then the Corporation shall have
the right to require each non-defaulting Underwriter to purchase the amount of
Notes which such Underwriter agreed to purchase hereunder at such Closing Date
and, in addition, to require each non-defaulting Underwriter to purchase its
pro rata share (based on the amount of Notes which such
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Underwriter agreed to purchase hereunder) of the Notes of such defaulting
Underwriter or Underwriters for which such arrangements have not been made; but
nothing herein shall relieve a defaulting Underwriter from liability for its
default.
(c) If, after giving effect to any arrangements for the purchase of the Notes
of a defaulting Underwriter or Underwriters by you or the Corporation as
provided in subsection (a) above, the aggregate amount of such Notes which
remains unpurchased exceeds one-eleventh of the aggregate amount of all the
Notes to be purchased at such Closing Date, or if the Corporation shall not
exercise the right described in subsection (b) above to require non-defaulting
Underwriters to purchase Notes of a defaulting Underwriter or Underwriters,
then this Agreement shall thereupon terminate, without liability on the part of
any non-defaulting Underwriter or the Corporation, except for the expenses to
be borne by the Corporation as provided in Section 5(h) hereof and the
indemnity agreement in Section 7 hereof; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
9. Representations and Indemnities to Survive Delivery. The respective
indemnities, agreements, representations, warranties and other statements of
the Corporation or its officers and of the several Underwriters set forth in or
made pursuant to this Agreement will remain in full force and effect,
regardless of any investigation, or statement as to the results thereof, made
by or on behalf of any Underwriter or the Corporation, or any of its officers
or directors or any controlling person, and will survive delivery of and
payment for the Notes.
10. Notices. All communications hereunder will be in writing and, if sent to
the Underwriters, will be mailed, delivered or telecopied and confirmed to you
in care of at , attention of or,
if sent to the Corporation, will be mailed, delivered or telecopied and
confirmed to it at 422 South Church Street, Charlotte, N.C. 28202, telephone
number (704) 382-5159, attention of Richard J. Osborne, Vice President and
Chief Financial Officer; provided, however, that any notice to an Underwriter
pursuant to Section 7 hereof shall be delivered or sent by mail or telecopy to
such Underwriter at its address or telecopy number set forth in its
Underwriters' Questionnaire or telex constituting such Questionnaire, which
address or telecopy number will be supplied to the Corporation by you. Any such
communications shall take effect upon receipt thereof.
11. Business Day. As used herein, the term "business day" shall mean any day
when the Commission's office in Washington, D.C. is open for business.
12. Successors. This Agreement shall inure to the benefit of and be binding
upon the Underwriters and the Corporation and their respective successors.
Nothing expressed or mentioned in this Agreement is intended or shall be
construed to give any person, firm or corporation, other than the parties
hereto and their respective successors and the controlling persons and the
officers and directors referred to in Section 7, and their respective
successors, heirs and legal representatives any legal or equitable right,
remedy or claim under or in respect of this Agreement or any provision herein
contained; this Agreement and all conditions and provisions hereof being
intended to be and being for the sole and exclusive benefit of the parties
hereto and their respective successors and said controlling persons, officers
and directors and their respective successors, heirs and legal
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representatives, and for the benefit of no other person, firm or corporation.
No purchaser of Notes from any Underwriter shall be deemed to be a successor or
assign by reason merely of such purchase.
13. Counterparts. This Agreement may be executed in two or more counterparts,
each of which shall be deemed to be an original, but all of which together
shall constitute one and the same instrument.
14. Applicable Law. This Agreement shall be governed by, and construed in
accordance with, the internal laws of the State of New York.
If the foregoing is in accordance with your understanding, kindly sign and
return to us two counterparts hereof, and upon your acceptance, this letter and
such acceptance will become a binding agreement between the Corporation, on the
one hand, and each of the Underwriters, on the other hand, in accordance with
its terms.
Very truly yours,
Duke Capital Corporation
By:_______________________
The foregoing Underwriting Agreement
is hereby confirmed and accepted as
of the date first above written.
By:__________________________
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SCHEDULE A
PRINCIPAL
AMOUNT OF
NOTES TO BE
UNDERWRITER PURCHASED
----------- -----------
$
-----------
Total........................................................... $
===========
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