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(Proof of October 16, 1996)
$
DUKE POWER COMPANY
FIRST AND REFUNDING MORTGAGE BONDS,
% SERIES DUE
UNDERWRITING AGREEMENT
, 199
Gentlemen:
1. Introductory. DUKE POWER COMPANY, a North Carolina corporation
("Company"), proposes to issue and sell $ aggregate principal amount
of First and Refunding Mortgage Bonds, % Series Due ("Bonds"), to be
issued pursuant to the provisions of a First and Refunding Mortgage, dated as of
December 1, 1927 ("Original Indenture"), from the Company to The Chase Manhattan
Bank, successor Trustee, as amended and supplemented by various supplemental
indentures, including the supplemental indenture dated as of , (the
Original Indenture, as so amended and supplemented, being hereinafter called the
"Mortgage"), and hereby agrees with you (the "Underwriter") as follows:
2. Representations and Warranties of the Company. The Company represents
and warrants to, and agrees with, the Underwriter that:
(a) A registration statement (No. ), including a prospectus,
relating to the Bonds has been filed with the Securities and Exchange
Commission ("Commission") under the Securities Act of 1933 (the "1933 Act")
and has been declared effective by the Commission. The Company will file
with, or will transmit for filing to, the Commission a supplemented
prospectus relating to the Bonds pursuant to Rule 424 under the 1933 Act.
The registration statement as amended at the date of this Agreement
(including all documents incorporated by reference therein pursuant to Item
12 of Form S-3 under the 0000 Xxx) is hereinafter referred to as the
"Registration Statement", and such supplemented prospectus (including all
documents incorporated by reference therein pursuant to Item 12 of Form S-3
under the 0000 Xxx) is hereinafter referred to as the "Prospectus".
(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 Company by the Underwriter specifically for use therein.
(c) The documents incorporated by reference in the Prospectus pursuant
to Item 12 of Form S-3 under the 1933 Act, 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
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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.
3. Purchase, Sale and Delivery of Bonds. On the basis of the
representations, warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, the Company agrees to sell to the
Underwriter, and the Underwriter agrees to purchase from the Company, the entire
principal amount of the Bonds at a purchase price of % of the principal
amount thereof, plus accrued interest from , to the Closing Date
(as hereinafter defined).
Payment of the purchase price for the Bonds to be purchased by the
Underwriter shall be made at the offices of Xxxxx Xxxxxxxxxx, 1301 Avenue of the
Americas, New York, N.Y., or at such other place as shall be mutually agreed
upon by you and the Company, at 10:00 A.M., New York City time, on ,
or such other time not later than three full business days after such date
as shall be agreed upon by you and the Company (the "Closing Date"). Payment
shall be made to the Company by certified or official bank check or checks in
New York Clearing House or similar next day funds, payable to the order of the
Company, against delivery to you of the Bonds. The Bonds shall be in such
denominations and registered in such names as you may request in writing at
least two full business days before the Closing Date.
4. Offering by the Underwriter. It is understood that the Underwriter
proposes to offer the Bonds for sale to the public as set forth in the
Prospectus.
5. Covenants of the Company. The Company covenants and agrees with the
Underwriter that:
(a) The Company 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 Bonds 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 Company 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 Company, during the period when a prospectus relating to the
Bonds 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 Company 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 Company'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 Company's fiscal quarter next following
the date of this Agreement.
(e) The Company will furnish to you 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 Company will arrange or cooperate in arrangements for the
qualification of the Bonds for sale under the laws of such jurisdictions as
you designate and will continue such qualifications in effect so
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long as required for the distribution; provided, however, that the Company
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 Company 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, the Blue
Sky Survey and any Underwriter's Questionnaire, (ii) the issuance and
delivery of the Bonds to the Underwriter, (iii) the fees and disbursements
of counsel for the Underwriter in connection with the qualification of the
Bonds 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, and (iv) the printing and
delivery to the Underwriter, in quantities as hereinabove referred to, of
copies of the Registration Statement and any amendments thereto, and of the
Prospectus and any amendments or supplements thereto.
6. Conditions of the Obligations of the Underwriter. The obligations of
the Underwriter to purchase and pay for the Bonds will be subject to the
accuracy of the representations and warranties on the part of the Company
herein, to the accuracy of the statements of Company officers made pursuant to
the provisions hereof, to the performance by the Company 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 Company or you, shall be threatened by the Commission.
(b) Prior to the Closing Date, the rating assigned by Xxxxx'x
Investors Service, Inc. or Standard & Poor's Corporation to any debt
securities or preferred stock of the Company 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 Company, 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 Company other than
transactions contemplated by the Prospectus and transactions in the
ordinary course of business.
(d) You shall have received an opinion of Xxxxx X. Xxxxxxxx, Xx.,
Esq., General Counsel to the Company, dated the Closing Date, to the effect
that:
(i) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of North
Carolina, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus.
(ii) The Company is duly qualified to do business as a foreign
corporation in good standing in all other jurisdictions in which it owns
or leases substantial properties or in which the conduct of its business
requires such qualification.
(iii) The Mortgage has been duly authorized, executed and delivered
by the Company, is duly qualified under the Trust Indenture Act of 1939,
and is a legal, valid and enforceable instrument in accordance with its
terms, except (x) as the same may be limited by the laws of the States
of North Carolina and South Carolina (in which States such counsel is
advised all physical property of the Company subject to the Mortgage is
located except for certain interconnection lines) with respect to or
affecting the remedies to enforce the security provided by the Mortgage,
which laws do not, in the opinion of such counsel, make inadequate the
remedies necessary for the realization of the benefits of such security,
and by bankruptcy, insolvency, reorganization or other laws affecting
the enforcement of creditors' rights, and (y) that the provisions of the
Mortgage subjecting to the lien thereof the revenues and income from the
mortgaged property may not be effective prior to the
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delivery or taking of possession of such revenues or income or of the
mortgaged property by or on behalf of the bondholders.
(iv) The Bonds have been duly authorized by all necessary corporate
action and, when the same have been executed and authenticated as
specified in the Mortgage and delivered to the Underwriter against
payment of the consideration therefor specified in this Agreement, will
be legal, valid and binding obligations of the Company enforceable in
accordance with their terms, except, in each case, as the same may be
limited by bankruptcy, insolvency, reorganization or other laws
affecting the enforcement of creditors' rights, and are entitled to the
benefits and security afforded by the Mortgage in accordance with the
terms of the Mortgage and the Bonds, except as set forth in paragraph
(iii) above.
(v) The Company has good title to all properties owned by it,
subject only (a) to the lien of the Mortgage, (b) to permitted
encumbrances as defined in the Mortgage, (c) to minor exceptions and
defects which do not, in the aggregate, in the opinion of such counsel,
materially interfere with the use by the Company of such properties for
the purposes for which they are held, materially detract from the value
of said properties or in any material way impair the security afforded
by the Mortgage, and (d) in the case of the Company's existing
hydroelectric plants, to provisions of licenses issued by the Federal
Power Commission or the Federal Energy Regulatory Commission and to the
provisions of the Federal Power Act.
(vi) The Mortgage complies as to form with all applicable laws of
the States wherein the properties subjected or intended to be subjected
to the lien of the Mortgage are located, including all applicable
recording laws, and constitutes a valid, direct first mortgage lien on
all properties and franchises purported to be owned by the Company,
except such property as is specifically excepted from the lien thereof,
subject only to the liens, charges and encumbrances stated in paragraph
(v) above; all fixed electric properties hereafter acquired by the
Company will, upon such acquisition, become subject to the lien of the
Mortgage, subject, however, to liens or charges of the character
permitted to exist by the Mortgage, and to liens, if any, existing or
placed on such property at the time of the acquisition thereof by the
Company; and the description of such property and franchises in the
Mortgage is adequate to constitute the same a lien on such property and
franchises of the Company except as aforesaid.
(vii) The Company holds valid and subsisting franchises, licenses
and permits in all communities wherein it operates its properties, which
are free from unduly burdensome restrictions, are individually
satisfactory and vest in the Company adequate authority to operate its
public utility system therein, except that in a few municipalities the
Company is operating either without franchises or with franchises the
validity of which might possibly be called into question; in the opinion
of such counsel, however, the Company's franchises, licenses and permits
relating to its public utility business, as a system, are satisfactory
for the adequate conduct of the business of the Company in the territory
which it serves, the rights of the Company to maintain transmission
lines through unincorporated communities and over public lands not
located in incorporated communities and over private rights of way are,
as a system, satisfactory for the adequate conduct of the business of
the Company in the territory which it serves, and, as a public utility
corporation operating under the laws of the States of North Carolina and
South Carolina, the Company has adequate rights to operate its system.
(viii) The Original Indenture and the supplemental indentures
thereto, other than the supplemental indenture dated as of ,
, have been duly recorded or filed for recordation in all such
offices as are necessary to perfect and to preserve and protect the lien
of the Mortgage upon the property intended to be subjected to the lien
thereof, and upon the filing and recording of the supplemental indenture
dated as of , , no other recording or any periodic or other
refiling or rerecording of the Mortgage is or will be required in order
to perfect and to preserve and protect the lien of the Mortgage upon
such property, and there are no mortgage, recording or other
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taxes required to be paid in connection with such filing and recording
or in connection with the issuance of the Bonds other than customary
filing and recording fees.
(ix) 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.
(x) This Agreement has been duly authorized, executed and delivered
by the Company.
(xi) The North Carolina Utilities Commission and The Public Service
Commission of South Carolina have issued appropriate orders with respect
to the issuance and sale of the Bonds in accordance with this Agreement,
and, to the best of the knowledge of such counsel, such orders are still
in effect; the issuance and sale of the Bonds to the Underwriter are in
conformity with the terms of such orders; and no other authorization,
approval or consent of any other governmental body (other than in
connection or compliance with the provisions of the securities or blue
sky laws of any jurisdiction) is legally required for the issuance and
sale of the Bonds pursuant to this Agreement.
(xii) The performance by the Company of this Agreement will not
contravene any of the provisions of the Restated Articles of
Incorporation or By-Laws of the Company.
(xiii) The descriptions in the Registration Statement and
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 other legal or governmental proceedings required to be
described in the Registration Statement or Prospectus which are not
described as required.
(e) You shall have received an opinion or opinions of Xxxxx
Xxxxxxxxxx, counsel to the Company, dated the Closing Date, with respect to
the matters set forth in (i), (iii), (iv) and (ix) through (xii) of Section
6(d) and to the further effect that:
(i) 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 (in each case, other than
the financial statements and other financial information included
therein, as to which no opinion need be rendered) 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 Company 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.
(ii) The statements made in the Prospectus under the captions
"Description of the New Bonds" and "Certain Terms of the Offered Bonds",
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 giving their opinion Xxxxx Xxxxxxxxxx may rely on the opinion of
Xxxxx X. Xxxxxxxx, Xx., Esq. as to matters of the laws of North Carolina
and South Carolina.
(f) You shall have received the opinion of Xxxxxxx Xxxx & Xxxxxxxxx,
counsel for the Underwriter, dated the Closing Date, with respect to the
matters set forth in (i), (iii), (iv) and (ix) through (xi) of Section 6(d)
and in (i) and (ii) of Section 6(e) and other related matters as you may
require, and the Company shall have furnished to such counsel such
documents as they request for the purpose of
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enabling them to pass upon such matters. In giving their opinion Xxxxxxx
Xxxx & Xxxxxxxxx may rely on the opinion of Xxxxx X. Xxxxxxxx, Xx., Esq. as
to matters of the laws of North Carolina and South Carolina.
(g) You shall have received a certificate of the President or any Vice
President and a principal financial or accounting officer of the Company,
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 Company in this Agreement are true
and correct, that the Company 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.
(h) On the date of this Agreement, you shall have received from
Deloitte & Touche LLP a letter dated the date hereof, in form and substance
reasonably satisfactory to you, to the effect that (i) they are independent
certified public accountants with respect to the Company within the meaning
of the 1933 Act and the applicable published 1933 Act Regulations; (ii) in
their opinion, the financial statements and supplemental schedules
incorporated by reference in the Registration Statement from the Company's
Form 10-K Annual Reports filed with the Commission under Section 13 of the
1934 Act (such 10-K Annual Report for December 31 of the most recent year
for which the Company has filed an Annual Report on Form 10-K, or, if the
Company has filed a Current Report on Form 8-K including audited financial
statements for a later year but has not theretofore filed an Annual Report
on Form 10-K for such year, such Current Report on Form 8-K, being
hereinafter referred to as the "Form 10-K") comply as to form in all
material respects with the applicable accounting requirements of the 1934
Act and the applicable published 1934 Act Regulations; (iii) they have read
the unaudited balance sheets of the Company as of the end of each quarter
since the end of the year covered by the Form 10-K and the related
unaudited statements of income and cash flows of the Company for the
interim periods ended as of the end of each of the quarters since the end
of the year covered by the Form 10-K and the corresponding interim periods
in the preceding year incorporated by reference in the Registration
Statement and included in the Company's Form 10-Q Quarterly Reports, if
any, filed with the Commission under Section 13 of the 1934 Act for the
quarters ended since the end of the year covered by the Form 10-K (the
"Form 10-Q's"); and on the basis of a reading of such unaudited balance
sheets and such unaudited statements of income and cash flows and of the
latest available unaudited financial statements of the Company, the minutes
of the meetings of shareholders, the Board of Directors and the Management
Committee of the Board of Directors of the Company as set forth in the
minute books at a specified date not more than five days prior to the date
of such letter and inquiries of officers of the Company who have
responsibility for financial and accounting matters (it being understood
that the foregoing procedures do not constitute an examination made in
accordance with generally accepted auditing standards and that they would
not necessarily reveal matters of significance with respect to the comments
made in such letter, and, accordingly, that Deloitte & Touche LLP make no
representation as to the sufficiency of such procedures for your purposes),
nothing has come to their attention which caused them to believe that (A)
any material modifications should be made to the unaudited financial
statements of the Company as at the end of each quarter since the end of
the year covered by the Form 10-K and for the interim periods ended as of
the end of each of the quarters since the end of the year covered by the
Form 10-K and the corresponding interim periods in the preceding year
included in the Form 10-Q's and incorporated by reference in the
Registration Statement for it to be in conformity with generally accepted
accounting principles, (B) such unaudited financial statements do not
comply as to form in all material respects with the applicable accounting
requirements of the 1934 Act and the applicable published 1934 Act
Regulations or (C) at a specified date not more than five days prior to the
date of such letter there was any change in the capital stock (except for
the issuance of common stock under the Company's Stock Purchase-Savings
Program for Employees, Employees' Stock Ownership Plan, Stock Purchase and
Dividend Reinvestment Plan or Stock Ownership Plan for Nonemployee
Directors) or long-term debt of the Company (except for increases resulting
from issuances of debt pursuant to the Company's Medium-Term Notes Program
or reductions resulting from redemptions, purchases, payments of sinking
fund obligations or scheduled maturities) or any decrease in its net
assets,
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in each case as compared with amounts shown in the most recent balance
sheet of the Company incorporated by reference in the Prospectus except,
with respect to clause (C), for changes or decreases which the Prospectus
discloses have occurred or may occur; and (iv) they have carried out
certain procedures, and made certain findings confirming certain other
financial information contained or incorporated by reference in the
Registration Statement and Prospectus.
(i) At the Closing Date you shall have received from Deloitte & Touche
LLP a letter, dated the Closing Date, to the effect that such accountants
reaffirm the statements made in the letter furnished pursuant to paragraph
(h) of this Section 6, except that the specified date referred to shall be
a date not more than four days prior to the Closing Date.
The Company will furnish you with such conformed copies of such opinions,
certificates, letters and documents as you reasonably request.
7. Indemnification. (a) The Company agrees to indemnify and hold harmless
the Underwriter and each person, if any, who controls the 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 Company by the Underwriter 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
Company; 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 Company be liable under this indemnity agreement with
respect to any claim made against the Underwriter or any such controlling person
unless the Company 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 Company shall not relieve it from any liability which it may have otherwise
than on account of this indemnity agreement. The Company 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 controlling person or persons, defendant or defendants in any
suit so brought, which approval shall not be unreasonably withheld. In any such
suit, the 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 the Underwriter or such controlling person unless (i) the Company
and the 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 the Underwriter or such controlling person and the Company
and the Underwriter or such controlling person shall have been advised by such
counsel that a conflict of interest
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between the Company and the 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 Company 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 the
Underwriter and all such controlling persons, which firm shall be designated in
writing by you). The Company 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 Company within the meaning of Section 15 of the 1933
Act, in connection with the sale of the Bonds.
(b) The Underwriter agrees that it will indemnify and hold harmless the
Company, its directors, and each of its officers who signed the Registration
Statement and each person, if any, who controls the Company 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 Company by the Underwriter 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 Company 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 the
Underwriter, the Underwriter shall have the rights and duties given to the
Company, and the Company and each person so indemnified shall have the rights
and duties given to the Underwriter, by the provisions of subsection (a) of this
Section.
8. Termination of this Agreement. (a) You shall have the right to
terminate this Agreement by giving the notice indicated below in this Section at
any time at or prior to the Closing Date if (i) trading on the New York Stock
Exchange shall be suspended by that Exchange or by order of the Commission or
any other governmental authority having jurisdiction, (ii) a banking moratorium
shall have been declared by either Federal or New York authorities, or (iii)
there shall have occurred any outbreak of hostilities or other national or
international calamity or crisis, or any declaration of war or a national
emergency by the United States, the effect of which on the financial markets of
the United States shall be such as, in your reasonable judgment, to make it
impracticable for you to enforce contracts for the sale of the Bonds. If you
shall so terminate this Agreement, such termination shall be without liability
of any party to any other party except for any expenses to be paid or reimbursed
by the Company pursuant to Section 5(g).
(b) If the Underwriter elects to terminate this Agreement as provided in
this Section, the Company shall be notified promptly by the Underwriter, by
telephone or telecopy, confirmed by letter.
9. Representations and Indemnities to Survive Delivery. The respective
indemnities, agreements, representations, warranties and other statements of the
Company or its officers and of the Underwriter 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
the Underwriter or the Company, or any of its officers or directors or any
controlling person, and will survive delivery of and payment for the Bonds.
10. Notices. All communications hereunder will be in writing and, if sent
to the Underwriter, will be mailed, delivered, or telecopied and confirmed to
you at ,
, , ,
attention of
, or, if sent to the Company, will be mailed, delivered,
or telecopied and confirmed to it at 000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxx, X.X.
00000-0000, attention of Xxxxxxx X. Xxxxxxx, Senior Vice President and Chief
Financial Officer.
11. Successors. This Agreement shall inure to the benefit of and be
binding upon the Underwriter and the Company 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
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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 representatives,
and for the benefit of no other person, firm or corporation. No purchaser of
Bonds from the Underwriter shall be deemed to be a successor by reason merely of
such purchase.
12. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
13. 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 of our agreement,
kindly sign and return to us the enclosed duplicate hereof, whereupon it will
become a binding agreement between the Company and the Underwriter in accordance
with its terms.
Very truly yours,
DUKE POWER COMPANY
By:
The foregoing Underwriting Agreement is hereby
confirmed and accepted as of the date first above
written.
By:
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