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 Subordinated Indenture,
dated as of , , as may be amended and supplemented by
supplemental indentures to the date hereof (including the supplemental indenture
dated as of , , relating to the Notes, between the Corporation
and The Chase Manhattan Bank (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 (Nos. ), including a prospectus,
relating to the Notes has been filed with the Securities and Exchange
Commission ("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, and, excluding
exhibits thereto but including all documents incorporated by reference in
the prospectus contained therein, to you for each of the other
Underwriters, 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 in which it has most recently been filed, or
transmitted for filing, with the Commission prior to the date of this
Agreement, 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, complied in all material respects
with the requirements of the Securities Exchange Act of 1934 (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.
(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 an indirect wholly-owned subsidiary of
the Corporation.
3. Purchase, Sale and Delivery of Notes. 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 , to the Closing Date (as hereinafter
defined), 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 ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ 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 or upon your order. The Notes shall be delivered in
the form of one or more global notes 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 Corporation.
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
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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.
(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 $5,000, (iv) the printing and delivery to the Underwriters, in
quantities
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as hereinabove referred to, of copies of the Registration Statement 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 the 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 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 ▇▇▇▇▇'▇ Investors
Service, Inc. or Standard & Poor's Ratings Services to any debt securities
of the Corporation 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 ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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).
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(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 principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at
law).
(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 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
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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.
In rendering the foregoing opinion or opinions, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ 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 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
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq., 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 his attention
that has caused him 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 he
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 ▇▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇, counsel for the Underwriters, dated the Closing Date, with
respect to the incorporation of the Corporation, the validity of the Notes,
the Registration Statement and the Prospectus, as amended or supplemented,
and 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 in trading in securities generally or of
the securities of Duke Energy Corporation or the Corporation on the New
York Stock Exchange; or (ii) a general moratorium on commercial banking
activities in New York declared by either Federal or New York State
authorities; or (iii) the outbreak 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 Preferred Securities being delivered at the
Closing Date on the terms and in the manner contemplated in the Prospectus.
(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 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);
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(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 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.
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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 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.
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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. Reliance on Your Acts. In all dealings hereunder, you shall act on
behalf of each of the Underwriters, and the parties hereto shall be entitled to
act and rely upon any statement, request, notice or agreement on behalf of any
Underwriter made or given by you.
11. Notices. All communications hereunder will be in writing and, if sent
to the Underwriters, will be mailed, delivered or telecopied and confirmed to
you as the representatives in care of at ,
attention of or, if sent to the Corporation, will be
mailed, delivered or telecopied and confirmed to it at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇, telephone number (▇▇▇) ▇▇▇-▇▇▇▇, attention of ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, Vice President and Chief Financial Officer; provided, however, that
any notice to an Underwriter pursuant to Section 7(a) 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.
12. 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.
13. 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
9
Agreement or any provision herein contained; this Agreement and all conditions
and provisions hereof being intended to be and being for the sole and exclusive
benefit of the parties hereto and their respective successors and said
controlling persons, officers and directors and their respective successors,
heirs and legal representatives, and for the benefit of no other person, firm or
corporation. No purchaser of Notes from any Underwriter shall be deemed to be a
successor or assign by reason merely of such purchase.
14. 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.
15. Applicable Law. This Agreement shall be governed by, and construed in
accordance with, the 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 on behalf of each
of the Underwriters, this letter and such acceptance will become a binding
agreement between the Corporation, on the one hand, and the each of the
Underwriters, on the other hand, in accordance with its terms. It is understood
that your acceptance of this letter on behalf of each of the Underwriters is
pursuant to the authority set forth in a form of Agreement Among Underwriters,
the form of which shall be submitted to the Corporation for examination, but
without warranty on your part as to the authority of the signers thereof.
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.................................................. $
================
