Exhibit 1-A
DUKE ENERGY CORPORATION
$ % SENIOR NOTES DUE
UNDERWRITING AGREEMENT
[date]
[Names and Addresses
of Representatives]
Ladies and Gentlemen:
1. Introductory. DUKE ENERGY CORPORATION, a North Carolina
corporation (the "Corporation"), proposes, subject to the terms and conditions
stated herein, to issue and sell $ aggregate principal amount of
% Senior Notes due (the "Notes") to be issued pursuant to the provisions of
a Senior Indenture, dated as of September 1, 1998, as the same may be amended
and supplemented by supplemental indentures, including the supplemental
indenture to be dated as of relating to the Notes (the
"Indenture"), between the Corporation and JPMorgan Chase Bank (formerly known as
The Chase Manhattan Bank) (the "Trustee").
are acting as the representatives (the
"Representatives") of the several underwriters (the "Underwriters") named in
Schedule A hereto. The Corporation hereby agrees with the several 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. 333- , which also
constitutes a post-effective amendment to a previous
registration statement No. 333-58820), including a combined
prospectus, relating to the Notes and certain other securities
has been filed with the Securities and Exchange Commission
("Commission") under the Securities Act of 1933, as amended
(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, 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 ("1933 Act Regulations") 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 Regulations, 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 1933 Act Regulations, and the Registration
Statement does not contain 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 and the Prospectus will not include any 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,
except that the Corporation makes no warranty or
representation to the Underwriters with respect to any
statements or omissions made in reliance upon and in
conformity with written information furnished to the
Corporation by any Underwriter specifically for use therein or
any information set forth in the Prospectus under the caption
"Book-Entry System."
(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 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, in the light of the circumstances under
which they were made, 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
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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 were made, not misleading.
(d) The compliance by the Corporation with all of the provisions
of this Agreement has been duly authorized by all necessary
corporate action 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 (as
hereinafter defined) 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 that would have a material
adverse effect on the business, financial condition or results
of operations of the Corporation and its subsidiaries, taken
as a whole, nor will such action result in any violation of
the provisions of the Restated Articles 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 that would
have a material adverse effect on the business, financial
condition or results of operations of the Corporation and its
subsidiaries, taken as a whole; 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 authorization by
the North Carolina Utilities Commission and The Public Service
Commission of South Carolina and the registration under the
1933 Act of the Notes, qualification under the Trust Indenture
Act of 1939 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) This Agreement has been duly authorized, executed and
delivered by the Corporation.
(f) Each of Duke Capital Corporation, Westcoast Energy Inc.,
PanEnergy Corp and Duke Energy Natural Gas Corporation is a
Delaware corporation, and Texas Eastern Transmission, LP is a
Delaware limited partnership (herein collectively referred to
as the "Principal Subsidiaries"); each such entity is a direct
or indirect wholly owned subsidiary of the Corporation.
(g) 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 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
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principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at
law).
(h) The Notes have been duly authorized and executed by the
Corporation and, when authenticated by the 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), and are entitled to the benefits afforded by the
Indenture in accordance with the terms of the Indenture and
the Notes.
(i) The agreements set forth on Annex A hereto list all
indentures, mortgages, deeds of trust, loan agreements or
other agreements or instruments that are material to the
Corporation and its subsidiaries taken as a whole.
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 Xxxxxxx Xxxxxxx & Xxxxxxxx, 000
Xxxxxxxxx Xxxxxx, Xxx Xxxx, X.X., 00000, 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 and date as shall be agreed upon in writing 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 each 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:
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(a) The Corporation will advise you promptly of the filing of any
amendment (and effectiveness thereof) or supplementation of
the Registration Statement or the Prospectus, of the filing of
any Rule 462(b) registration statement 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.
(c) The Corporation, during the period when a prospectus relating
to the Notes is required to be delivered under the 1933 Act,
will timely file 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 (six 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.
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(g) 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 any Blue Sky Survey, (ii)
the preparation and printing of certificates for the Notes,
(iii) the issuance and delivery of the Notes as specified
herein, (iv) 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, (v) the printing and delivery to the Underwriters, 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, (vi) any
fees charged by independent rating agencies for rating the
Notes, (vii) any fees and expenses in connection with the
listing of the Notes on the New York Stock Exchange, (viii)
any filing fee required by the National Association of
Securities Dealers, Inc., (ix) the costs of any depository
arrangements for the Notes with DTC or any successor
depositary and (x) the costs and expenses of the Corporation
relating to investor presentations on any "road show"
undertaken in connection with the marketing of the offering of
the Notes, including, without limitation, expenses associated
with the production of road show slides and graphics, fees and
expenses of any consultants engaged in connection with the
road show presentations with the prior approval of the
Corporation, travel and lodging expenses of the
Representatives and officers of the Corporation and any such
consultants, provided, however, the Underwriters shall
reimburse a portion of the costs and expenses referred to in
this clause (x).
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 Xxxxx'x
Investors Service, Inc. or Standard & Poor's Ratings Services
to (i) any debt securities or preferred stock of the
Corporation or (ii) any trust preferred securities of Duke
Energy Capital Trust I or Duke Energy Capital 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
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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, the effect of
which in your reasonable judgment is so material and adverse
as to make it impracticable or inadvisable to proceed with the
public offering or the delivery of the Notes on the terms and
in the manner contemplated by the Prospectus.
(d) You shall have received an opinion of Xxxxxx X. Xxxxx, Xx.,
Esq., Deputy General Counsel of 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 North Carolina, with
power and authority (corporate and other) to own its
properties and conduct its business as described in
the Prospectus and to enter into and perform its
obligations under this Agreement.
(ii) 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 condition or results
of operations of the Corporation and its subsidiaries
taken as a whole.
(iii) The Registration Statement has become effective under
the 1933 Act, and, to the best of such counsel's
knowledge, 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.
(iv) 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.
(v) This Agreement has been duly authorized, executed and
delivered by the Corporation.
(vi) The performance by the Corporation of this Agreement
and the Indenture will not contravene any of the
provisions of the Restated Articles of Incorporation
or By-Laws of the Corporation or any statute or any
order, rule or regulation of which such counsel is
aware of any court or governmental agency or body
having jurisdiction over the Corporation or
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any of its Principal Subsidiaries or any of their
respective property, nor will such action 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 known to
such counsel 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
which affects in a material way the Corporation's
ability to perform its obligations under this
Agreement and the Indenture.
(vii) 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 Notes in accordance with
this Agreement, and, to the best of such counsel's
knowledge, such orders are still in effect; the
issuance and sale of the Notes to the Underwriters
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 Notes
pursuant to this Agreement.
(viii) The Indenture has been duly authorized, executed and
delivered by the Corporation and, assuming the due
authorization, execution and delivery thereof by the
Trustee, constitutes a valid and legally binding
instrument of the Corporation, enforceable against
the Corporation in accordance with its terms.
(ix) The Notes have been duly authorized and executed by
the Corporation and, when authenticated by the
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, and are entitled to the
benefits afforded by the Indenture in accordance with
the terms of the Indenture and the Notes.
Such counsel may state that its opinions in paragraphs (viii) and (ix)
are subject to the effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights generally, to general equitable principles (whether considered
in a proceeding in equity or at law) and to an implied covenant of good faith
and fair dealing. 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 (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 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
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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, he does not
assume any responsibility for the accuracy, completeness or fairness of the
statements contained in or incorporated by reference into 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 or incorporated by
reference into the Registration Statement and the Prospectus, the statement of
the eligibility and qualification of the Trustee or as to the information set
forth in the Prospectus under the caption "Book-Entry System."
In rendering the foregoing opinion, such counsel may state that he
expresses no opinion as to the laws of any jurisdiction other than North
Carolina and may rely on the opinion of Xxxxxx, Xxxxx & Xxxxxx of Columbia,
South Carolina as to matters of South Carolina law. 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.
(e) You shall have received an opinion or opinions of Xxxxxxx
Xxxxxxx & Xxxxxxxx, counsel to the Corporation, dated the
Closing Date, to the effect that:
(i) The Corporation has been duly incorporated and is
validly existing and in good standing as a
corporation under the laws of the State of North
Carolina, and has full corporate power and authority
to conduct its business as described in the
Prospectus.
(ii) The Registration Statement has become effective under
the 1933 Act, and, to 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
threatened by the Commission.
(iii) This Agreement has been duly authorized, executed and
delivered by the Corporation.
(iv) The issuance and sale of the Notes by the Corporation
and the compliance by the Corporation with all of the
provisions of this Agreement will not violate the
Restated Articles of Incorporation or By-Laws of the
Corporation or any federal or New York statute or any
rule or regulation that has been issued pursuant to
any federal or New York statute, or any order known
to such counsel issued pursuant to any federal or New
York statute or the Delaware General Corporation Law
or (with respect to Texas Eastern Transmission, LP)
the Delaware Uniform Limited Partnership Act by any
court or governmental agency or body having
jurisdiction over the Corporation or any of the
Principal Subsidiaries (other than Westcoast Energy
Inc.) or any of their properties, nor will such
action breach or result in a default under any of the
agreements set forth on Annex A hereto, which the
Corporation has represented lists all indentures,
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mortgages, deeds of trust, loan agreements or other
agreements or instruments that are material to the
Corporation and its subsidiaries taken as a whole.
(v) 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 Notes in accordance with
this Agreement, and, to the knowledge of such
counsel, such orders are still in effect; the
issuance and sale of the Notes to the Underwriters
are in conformity with the terms of such orders.
(vi) The Indenture has been duly authorized, executed and
delivered by the Corporation and duly qualified under
the Trust Indenture Act of 1939, and, assuming that
the Indenture is the valid and legally binding
obligation of the Trustee, constitutes a valid and
legally binding obligation of the Corporation,
enforceable against the Corporation in accordance
with its terms.
(vii) The Notes have been duly authorized and executed by
the Corporation and, assuming due authentication
thereof by the Trustee, and upon payment and delivery
in accordance with this Agreement, will constitute
valid and legally binding obligations of the
Corporation, enforceable against the Corporation in
accordance with their terms and entitled to the
benefits of the Indenture.
(viii) Each of the Principal Subsidiaries (other than
Westcoast Energy Inc. and Texas Eastern Transmission,
LP) has been duly incorporated and is validly
existing and in good standing as a corporation under
the laws of the State of Delaware, and has full
corporate power and authority to conduct its business
as described in the Prospectus; and Texas Eastern
Transmission, LP has been duly organized and is
validly existing and in good standing as a limited
partnership under the laws of the State of Delaware,
and has full partnership power and authority to
conduct its business as described in the Prospectus.
(ix) The Corporation is not an "investment company" as
such term is defined in the Investment Company Act of
1940, as amended.
(x) The Corporation is not required to be registered as a
"holding company" as such term is defined under the
Public Utility Holding Company Act of 1935, as
amended.
(xi) The statements made in the Prospectus under the
caption "Description of the Notes," insofar as they
purport to constitute summaries of the terms of the
Notes, constitute accurate summaries of the terms of
such Notes in all material respects.
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(xii) No consent, approval, authorization, order,
registration or qualification of or with any federal
or New York governmental agency or body or, to such
counsel's knowledge, any federal or New York court or
any Delaware court acting pursuant to the Delaware
General Corporation Law is required for the issue and
sale of the Notes by the Corporation and the
compliance by the Corporation with all the provisions
of this Agreement, except for (A) authorization by
the North Carolina Utilities Commission and The
Public Service Commission of South Carolina, (B)
registration of the Notes under the 1933 Act and the
qualification of the Indenture under the Trust
Indenture Act of 1939 and (C) 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.
(xiii) The Registration Statement as of its date of
effectiveness under the 1933 Act and the Prospectus
as of its date complied as to form in all material
respects with the requirements of the 1933 Act and
the 1933 Act Regulations; and such counsel has no
reason 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 contained as of its
date or contains at the Closing Date 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 does not assume
any responsibility for the accuracy, completeness or
fairness of the statements contained in or
incorporated by reference into the Registration
Statement and Prospectus except as otherwise
expressly provided in such opinion and does not
express any opinion or belief as to the financial
statements or other financial data contained in or
incorporated by reference into the Registration
Statement and the Prospectus, the statement of the
eligibility and qualification of the Trustee or as to
the information set forth in the Prospectus under the
caption "Book-Entry System."
Xxxxxxx Xxxxxxx & Xxxxxxxx may state that its opinions in paragraphs
(vi) and (vii) are subject to the effects of bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally, to general equitable principles (whether
considered in a proceeding in equity or at law) and to an implied covenant of
good faith and fair dealing. In rendering the foregoing opinion or opinions,
Xxxxxxx Xxxxxxx & Xxxxxxxx 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 such counsel is
relying on the opinion of Xxxxxx X. Xxxxx, Xx., Esq. as to
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matters of North Carolina law and on the opinion of Xxxxxx, Xxxxx & Xxxxxx of
Columbia, South Carolina as to matters of South Carolina law.
(f) You shall have received an opinion of Sidley Xxxxxx Xxxxx &
Wood LLP, 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 such other related
matters as you may require, and the Corporation shall have
furnished to such counsel such documents as such counsel
requests for the purpose of enabling it to pass upon such
matters. In giving its opinion, such counsel may rely on the
opinion of Xxxxxx X. Xxxxx, Xx., Esq. as to matters of North
Carolina law.
(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 the
Corporation, Duke Energy Capital Trust I or Duke Energy
Capital 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 a material disruption in commercial banking services or
securities settlement or clearance services in the United
States; or (iii) the outbreak or 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 subsection (g) in your reasonable
judgment makes it impracticable or inadvisable to proceed with
the public offering or the delivery of the Notes 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(g) hereof.
(h) You shall have received a certificate of the Chairman of the
Board, the President, any Vice President, the Secretary or an
Assistant Secretary and any 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 as of the Closing Date, 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 a
letter 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 as of a specified date not more
than three business days prior to the date of this Agreement.
12
(j) At the Closing Date you shall have received from the
Corporation's independent public accountants a letter, dated
the Closing Date, to the effect that such accountants reaffirm
the statements made in the letter 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, their respective officers and directors, 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);
(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) of this Section 7.
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
13
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, 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) 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, 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). 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, 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) 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
14
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.
(c) No indemnifying party shall, without the prior written consent
of the indemnified party, effect any settlement of any pending
or threatened proceeding in respect of which any indemnified
party is or could have been a party and indemnity could have
been sought hereunder by such indemnified party, unless such
settlement includes an unconditional release of such
indemnified party from all liability on claims that are the
subject matter of such proceeding.
(d) If the indemnification provided for in this Section 7 is
unavailable to or insufficient to hold harmless an indemnified
party in respect of any and all loss, liability, claim, damage
and expense whatsoever (or actions in respect thereof) that
would otherwise have been indemnified under the terms of such
indemnity, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a
result of such loss, liability, claim, damage and expense (or
actions in respect thereof) in such proportion as is
appropriate to reflect the relative benefits received by the
Corporation on the one hand and the Underwriters on the other
from the offering of the Notes. If, however, the allocation
provided by the immediately preceding sentence is not
permitted by applicable law or if the indemnified party failed
to give the notice required above, then each indemnifying
party shall contribute to such amount paid or payable by such
indemnified party in such proportion as is appropriate to
reflect not only such relative benefits but also the relative
fault of the Corporation on the one hand and the Underwriters
on the other in connection with the statements or omissions
which resulted in such loss, liability, claim, damage or
expense (or actions in respect thereof), as well as any other
relevant equity considerations. The relative benefits received
by the Corporation on the one hand and the Underwriters on the
other shall be deemed to be in the same proportion as the
total net proceeds from the offering (before deducting
expenses) received by the Corporation bear to the total
compensation received by the Underwriters in respect of the
underwriting discount as set forth in the table on the cover
page of the Prospectus. The relative fault shall be determined
by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to
information supplied by the Corporation on the one hand or the
Underwriters on the other and the parties' relative intent,
knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Corporation and the
Underwriters agree that it would not be just and equitable if
contributions pursuant to this Section were determined by pro
rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation
which does not take account of the equitable considerations
referred to above in this Section. The amount paid or payable
by an indemnified party as a result of the losses,
liabilities, claims, damages or expenses (or actions in
respect thereof) referred to above in this Section shall be
deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with
investigating or defending any such action or claim.
Notwithstanding the provisions of this Section, no
15
Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the
Notes underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages which
such Underwriter has otherwise been required to pay by reason
of such untrue or alleged untrue statement or omission or
alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the
0000 Xxx) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations to contribute are several in
proportion to their respective underwriting obligations and
not joint.
8. Default by One or More of the Underwriters. (a) If any
Underwriter shall default in its obligation to purchase the Notes that 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-tenth 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-tenth 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
16
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(g) hereof and the indemnity and contribution
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. Reliance on Your Acts. In all dealings hereunder, the
Representatives shall act on behalf of each of the Underwriters, and the
Corporation shall be entitled to act and rely upon any statement, request,
notice or agreement on behalf of any Underwriter made or given by the
Representatives.
11. Notices. All communications hereunder will be in writing and,
if sent to the Underwriters, will be mailed or telecopied and confirmed to the
Underwriters in care of , Attn: , facsimile number ( ) - , or,
if sent to the Corporation, will be mailed or telecopied and confirmed to it at
000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxx, X.X. 00000, facsimile number (000) 000-0000,
attention of Xxxxx X. Xxxxxx, Senior Vice President and Treasurer; provided,
however, that any notice to an Underwriter pursuant to Section 7 hereof shall be
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 the Representatives. 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,
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 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.
17
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.
18
If the foregoing is in accordance with your understanding, kindly sign
and return to us two counterparts hereof, and upon confirmation and acceptance
by the Representatives on behalf of each of the Underwriters, this letter and
such confirmation and 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. It is understood that confirmation and acceptance
of this letter by 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 ENERGY CORPORATION
By:
----------------------------------
Name:
Title:
The foregoing Underwriting Agreement
is hereby confirmed and accepted as of
the date first above written.
BY:
By:
------------------------------------------
Name:
Title:
19
SCHEDULE A
Principal Amount of Notes
to be
Underwriter Purchased
----------- ---------
---------
Total............................................. $
==========
Annex A
Material Agreements
A-1
