EXHIBIT 1.1
DUKE CAPITAL CORPORATION
$
Series % Senior Notes due
UNDERWRITING AGREEMENT
Gentlemen:
1. Introductory. DUKE CAPITAL CORPORATION, a Delaware corporation
("Corporation"), proposes to issue and sell $ aggregate principal amount
of Series % Senior Notes due ("Notes"), to be issued pursuant to the
provisions of a Senior Indenture, dated as of April 1, 1998, between the
Corporation and The Chase Manhattan Bank, as amended and supplemented to the
date hereof and as to be supplemented by a supplemental indenture, dated as of
, , relating to the Notes (the "Indenture"), and hereby agrees with
the several Underwriters hereinafter named ("Underwriters") as follows:
2. Representations and Warranties of the Corporation. The Corporation
represents and warrants to, and agrees with, the several Underwriters that:
(a) A registration statement (No. ), including a prospectus, relating to the
Notes has been filed with the Securities and Exchange Commission ("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, have been declared effective by the
Commission in such form, and no stop order suspending the effectiveness of such
registration statement has been issued and no proceeding for that purpose has
been initiated or threatened by the Commission (any preliminary prospectus
included in such registration statement or filed with the Commission pursuant
to Rule 424(a) of the rules and regulations of the Commission under the 1933
Act being hereinafter called a "Preliminary Prospectus"; the various parts of
such registration statement, including all exhibits thereto and including the
documents incorporated by reference in the prospectus contained in the
registration statement at the time such part of the registration statement
became effective, each as amended at the time such part of the registration
statement became
effective, being hereinafter called the "Registration Statement"; and the final
prospectus relating to the Notes, in the form first filed pursuant to Rule
424(b) under the 1933 Act, being hereinafter called the "Prospectus"; and any
reference herein to any Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include the documents incorporated by reference therein,
as of the date of such Preliminary Prospectus or Prospectus, as the case may
be; any reference to any amendment or supplement to any Preliminary Prospectus
or Prospectus shall be deemed to refer to and include any documents filed after
the date of such Preliminary Prospectus or Prospectus, as the case may be,
under the Securities Exchange Act of 1934, as amended (the "1934 Act"), and
incorporated by reference in such Preliminary Prospectus or Prospectus, as the
case may be; and any reference to any amendment to the Registration Statement
shall be deemed to refer to and include any annual report of the Corporation
filed pursuant to Section 13(a) or 15(d) of the 1934 Act after the effective
date of the Registration Statement that is incorporated by reference in the
Registration Statement).
(b) The Registration Statement conforms and the Prospectus will conform in all
material respects to the requirements of the 1933 Act and the rules and
regulations thereunder ("1933 Act Regulations"), and the Registration Statement
does not and the Prospectus will not include any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, except that the
foregoing does not apply to statements or omissions in any such document based
upon written information furnished to the Corporation by any Underwriter
specifically for use therein.
(c) The documents incorporated by reference in the Prospectus, at the time they
were filed with the Commission, conformed in all material respects to the
requirements of the 1934 Act and the rules and regulations of the Commission
thereunder (the "1934 Act Regulations"), and, when read together with the other
information in the Prospectus, do not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, and any documents
deemed to be incorporated by reference in the Prospectus will, when they are
filed with the Commission, comply in all material respects with the
requirements of the 1934 Act and the 1934 Act Regulations, and will not contain
an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they are made, not misleading.
(d) The compliance by the Corporation with all of the provisions of this
Agreement and the consummation of the transactions herein contemplated will not
conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which the Corporation
or any of its Principal Subsidiaries (as defined below) is a party or by which
any of them or their respective property is bound or to which any of their
property or assets is subject, nor will such action result in any violation of
the provisions of the Restated Certificate of Incorporation or By-Laws of the
Corporation or any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Corporation or its
Principal Subsidiaries or any of their respective property; and no consent,
approval, authorization, order, registration or qualification of or with any
such court or governmental agency or body is required for the consummation by
the Corporation of the transactions contemplated by this Agreement, except for
the registration under the 1933 Act of the Notes and such consents, approvals,
authorizations, registrations or qualifications as may be required under state
securities or Blue Sky laws in connection with the purchase and distribution of
the Notes by the Underwriters.
2
(e) Each of PanEnergy Corp, Texas Eastern Transmission Corporation and
Algonquin Gas Transmission Company, each a Delaware corporation (and herein
called a "Principal Subsidiary"), is a direct or indirect wholly-owned
subsidiary of the Corporation.
3. Purchase, Sale and Delivery of Notes. On the basis of the representations,
warranties and agreements herein contained, but subject to the terms and
conditions herein set forth, the Corporation agrees to sell to the
Underwriters, and the Underwriters agree, severally and not jointly, to
purchase from the Corporation at a purchase price of % of the principal amount
of the Notes, plus accrued interest from , , the respective principal
amount of Notes set forth opposite the names of the Underwriters in Schedule A
hereto plus the respective principal amount of additional Notes which each such
Underwriter may become obligated to purchase pursuant to the provisions of
Section 8 hereof.
Payment of the purchase price for the Notes to be purchased by the Underwriters
shall be made at the offices of Xxxxx Xxxxxxxxxx LLP, 1301 Avenue of the
Americas, New York, N.Y., or at such other place as shall be mutually agreed
upon by you and the Corporation, at 10:00 A.M., New York City time, on ,
(unless postponed in accordance with the provisions of Section 8) or such
other time not later than three full business days after such date as shall be
agreed upon by you and the Corporation (the "Closing Date"). Payment shall be
made to the Corporation by wire transfer in immediately available funds,
payable to the order of the Corporation against delivery of the Notes, in fully
registered form, to you or upon your order. The Notes shall be delivered in the
form of one or more global certificates in aggregate denomination equal to the
aggregate principal amount of the Notes upon original issuance and registered
in the name of Cede & Co., as nominee for The Depository Trust Company ("DTC").
4. Offering by the Underwriters. It is understood that the several Underwriters
propose to offer the Notes for sale to the public as set forth in the
Prospectus.
5. Covenants of the Corporation. The Corporation covenants and agrees with the
several Underwriters that:
(a) The Corporation will advise you promptly of any amendment or
supplementation of the Registration Statement or the Prospectus and of the
institution by the Commission of any stop order proceedings in respect of the
Registration Statement, and will use its best efforts to prevent the issuance
of any such stop order and to obtain as soon as possible its lifting, if
issued.
(b) If at any time when a prospectus relating to the Notes is required to be
delivered under the 1933 Act any event occurs as a result of which the
Prospectus as then amended or supplemented would include an untrue statement of
a material fact, or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, or if it is necessary at any time to amend the Prospectus
to comply with the 1933 Act, the Corporation promptly will prepare and file
with the Commission an amendment, supplement or an appropriate document
pursuant to Section 13 or 14 of the 1934 Act which will correct such statement
or omission or which will effect such compliance.
(c) The Corporation, during the period when a prospectus relating to the Notes
is required to be delivered under the 1933 Act, will file promptly all
documents required to be filed with the Commission pursuant to Section 13 or 14
of the 1934 Act.
3
(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, earning statements (in form complying with the
provisions of Section 11(a) of the 1933 Act, which need not be certified by
independent certified public accountants unless required by the 1933 Act)
covering (i) a twelve-month period beginning not later than the first day of
the Corporation's fiscal quarter next following the effective date of the
Registration Statement and (ii) a twelve-month period beginning not later than
the first day of the Corporation's fiscal quarter next following the date of
this Agreement.
(e) The Corporation will furnish to you, without charge, copies of the
Registration Statement ( of which will be signed and will include all
exhibits other than those incorporated by reference), the Prospectus, and all
amendments and supplements to such documents, in each case as soon as available
and in such quantities as you reasonably request.
(f) The Corporation will arrange or cooperate in arrangements for the
qualification of the Notes for sale under the laws of such jurisdictions as you
designate and will continue such qualifications in effect so long as required
for the distribution; provided, however, that the Corporation shall not be
required to qualify as a foreign corporation or to file any general consents to
service of process under the laws of any state where it is not now so subject.
(g) The Corporation will not, during the period of days from the date
hereof, sell, offer to sell, grant any option for the sale of, or otherwise
dispose of any Notes, any security convertible into or exchangeable for the
Notes or any debt security substantially similar to the Notes (except for the
Notes issued pursuant to this Agreement), without your prior written consent.
(h) The Corporation will pay all expenses incident to the performance of its
obligations under this Agreement including (i) the printing and filing of the
Registration Statement and the printing of this Agreement and the Blue Sky
Survey, (ii) the issuance and delivery of the Notes as specified herein, (iii)
the fees and disbursements of counsel for the Underwriters in connection with
the qualification of the Notes under the securities laws of any jurisdiction in
accordance with the provisions of Section 5(f) and in connection with the
preparation of the Blue Sky Survey, such fees not to exceed $7,500, (iv) the
printing and delivery to the Underwriters, in quantities as hereinabove
referred to, of copies of the Registration Statement and Prospectus and any
amendments thereto, and of the Prospectus and any amendments or supplements
thereto, (v) any fees charged by independent rating agencies for rating the
Notes, (vi) any fees and expenses in connection with any listing of the Notes
on the New York Stock Exchange, (vii) any filing fee required by the National
Association of Securities Dealers, Inc., and (viii) the costs of any depository
arrangements for the Notes with DTC or any successor depository.
6. Conditions of the Obligations of the Underwriters. The obligations of the
several Underwriters to purchase and pay for the Notes will be subject to the
accuracy of the representations and 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.
4
(b) Prior to the Closing Date, the rating assigned by Xxxxx'x Investors
Service, Inc. or Standard & Poor's Ratings Group to (i) any preferred
securities or any debt securities of the Corporation or (ii) any trust
preferred securities of Duke Capital Financing Trust I, Duke Capital Financing
Trust II or Duke Capital Financing Trust III as of the date of this Agreement
shall not have been lowered.
(c) Since the respective most recent dates as of which information is given in
the Prospectus and up to the Closing Date, there shall not have been any
material adverse change in the condition of the Corporation, financial or
otherwise, except as reflected in or contemplated by the Prospectus, and, since
such dates and up to the Closing Date, there shall not have been any material
transaction entered into by the Corporation other than transactions
contemplated by the Prospectus and transactions in the ordinary course of
business.
(d) You shall have received an opinion or opinions of Xxxxx Xxxxxxxxxx LLP,
counsel to the Corporation, dated the Closing Date, to the effect that:
(i) The Corporation has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware, with
power and authority (corporate and other) to own its properties and conduct its
business as described in the Prospectus.
(ii) Each of the Principal Subsidiaries has been duly incorporated and is
validly existing as a corporation in good standing under the laws of its
jurisdiction of incorporation, with power and authority (corporate and other)
to own its properties and conduct its business as described in the Prospectus.
(iii) The Indenture has been duly authorized, executed and delivered by the
Corporation and duly qualified under the Trust Indenture Act of 1939 and,
assuming the due authorization, execution and delivery thereof by The Chase
Manhattan Bank, as Trustee, constitutes a valid and legally binding instrument
of the Corporation, enforceable against the Corporation in accordance with its
terms, subject to the qualifications that the enforceability of the
Corporation's obligations under the Indenture may be limited by bankruptcy,
insolvency, reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally, and by general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law).
(iv) The Notes have been duly authorized and executed by the Corporation and,
when authenticated by The Chase Manhattan Bank, as Trustee, in the manner
provided in the Indenture and delivered against payment therefor, will
constitute valid and legally binding obligations of the Corporation,
enforceable against the Corporation in accordance with their terms, subject to
the qualifications that the enforceability of the Corporation's obligations
under the Notes may be limited by bankruptcy, insolvency, reorganization,
moratorium and other similar laws relating to or affecting creditors' rights
generally and by general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law), and are
entitled to the benefits afforded by the Indenture in accordance with the terms
of the Indenture and the Notes.
(v) The Registration Statement has become effective under the 1933 Act, and, to
the best of the knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement has been issued and no proceedings
for that purpose have been instituted or are pending or threatened under the
1933 Act.
(vi) This Agreement has been duly authorized, executed and delivered by the
Corporation.
5
(vii) The performance by the Corporation of this Agreement and the Indenture
will not contravene any of the provisions of the Restated Certificate of
Incorporation or By-Laws of the Corporation.
(viii) The Corporation is not a holding company under the Public Utility
Holding Company Act of 1935, as amended.
(ix) No consent, approval, authorization, order, registration or qualification
of or with any court or governmental agency or body is required for the issue
and sale of the Notes or the consummation by the Corporation of the
transactions contemplated by this Agreement or the Indenture, except such as
have been obtained under the 1933 Act and the Trust Indenture Act and such
consents, approvals, authorizations, orders, registrations or qualifications as
may be required under state securities or Blue Sky laws in connection with the
purchase and distribution of the Notes by the Underwriters.
(x) The Registration Statement as of the date of effectiveness under the 1933
Act and the Prospectus as of the date it was filed with, or transmitted for
filing to, the Commission complied as to form in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations; and nothing has come
to their attention that would lead them to believe that the Registration
Statement as of the date of effectiveness under the 1933 Act (or if an
amendment to such Registration Statement or an annual report on Form 10-K has
been filed by the Corporation with the Commission subsequent to the
effectiveness of the Registration Statement, then at the time of the most
recent such filing) contained an untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary to make the
statements therein not misleading or that the Prospectus as of the date it was
filed with, or transmitted for filing to, the Commission and at the Closing
Date contained or contains an untrue statement of a material fact or omitted or
omits to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading. Such opinion may state that such counsel do not assume any
responsibility for the accuracy, completeness or fairness of the statements
contained in the Registration Statement and Prospectus except as otherwise
expressly provided in such opinion and do not express any opinion or belief as
to the financial statements or other financial data contained in the
Registration Statement and the Prospectus or as to the statement of the
eligibility and qualification of the Trustee.
(xi) The statements made in the Prospectus under the captions "Description of
the Senior Notes" and "Description of the Series Senior Notes," insofar as
they purport to summarize provisions of documents specifically referred to
therein, fairly present the information called for with respect thereto by
Form S-3.
In rendering the foregoing opinion or opinions, Xxxxx Xxxxxxxxxx LLP may state
that such opinion or opinions are limited to the federal laws of the United
States, the laws of the State of New York and the General Corporation Law of
the State of Delaware, and that they are expressing no opinion as to the effect
of the laws of any other jurisdiction. In addition, such counsel may state that
they have relied as to certain factual matters on information obtained from
public officials, officers of the Corporation and other sources believed by
them to be responsible and that the signatures on all documents examined by
them are genuine, assumptions which such counsel have not independently
verified.
(e) You shall have received an opinion, dated the Closing Date, of Xxxxx X.
Xxxx, Esq., General Counsel of the Corporation, to the effect that:
6
(i) Each of the Corporation and the Principal Subsidiaries is duly qualified to
do business in each jurisdiction in which the ownership or leasing of its
property or the conduct of its business requires such qualification, except
where the failure to so qualify, considering all such cases in the aggregate,
does not have a material adverse effect on the business, properties, financial
position or results of operations of the Corporation and its subsidiaries taken
as a whole.
(ii) The descriptions in the Registration Statement and the Prospectus of legal
or governmental proceedings are accurate and fairly present the information
required to be shown, and such counsel does not know of any litigation or any
legal or governmental proceeding instituted or threatened against the
Corporation or any of its subsidiaries or any of their respective properties
that would be required to be disclosed in the Prospectus and is not so
disclosed.
Such counsel shall also state that nothing has come to her attention that has
caused her to believe that the Registration Statement as of the date of
effectiveness under the 1933 Act and the Prospectus as of the date it was filed
with, or transmitted for filing to, the Commission, contained any untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not misleading, or
that the Prospectus as of the date it was filed with, or transmitted for filing
to, the Commission and at the Closing Date, contained or contains any untrue
statement of a material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. Such counsel may also
state that, except as otherwise expressly provided in such opinion, she does
not assume any responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement and the Prospectus and does
not express any opinion or belief as to the financial statements or other
financial data contained in the Registration Statement and the Prospectus.
In rendering the foregoing opinion, such counsel may rely, to the extent
recited therein, upon opinions of local counsel. Such counsel may also state
that she has relied as to certain factual matters on information obtained from
public officials, officers of the Corporation and other sources believed by her
to be responsible.
(f) You shall have received the opinion or opinions of , counsel for
the Underwriters, dated the Closing Date, with respect to the incorporation of
the Corporation, the validity of the Notes, the Registration Statement and the
Prospectus, as amended or supplemented, and such other related matters as you
may require, and the Corporation shall have furnished to such counsel such
documents as they request for the purpose of enabling them to pass upon such
matters.
(g) On or after the date hereof, there shall not have occurred any of the
following: (i) a suspension or material limitation in trading in securities
generally or of the securities of Duke Energy Corporation, the Corporation,
Duke Capital Financing Trust I, Duke Capital Financing Trust II or Duke Capital
Financing Trust III on the New York Stock Exchange; or (ii) a general
moratorium on commercial banking activities in New York declared by either
federal or New York State authorities; or (iii) the outbreak or material
escalation of hostilities involving the United States or the declaration by the
United States of a national emergency or war if the effect of any such event
specified in this clause (g) in your judgment makes it impracticable or
inadvisable to proceed with the public offering or the delivery of the Notes
being delivered at the Closing Date on the terms and in the manner
7
contemplated in the Prospectus. In such event there shall be no liability on
the part of any party to any other party except as otherwise provided in
Section 7 hereof and except for the expenses to be borne by the Corporation as
provided in Section 5(h) hereof.
(h) You shall have received a certificate of the Chairman of the Board and
President or any Vice President and a principal financial or accounting officer
of the Corporation, dated the Closing Date, in which such officers, to the best
of their knowledge after reasonable investigation, shall state that the
representations and warranties of the Corporation in this Agreement are true
and correct, that the Corporation has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied at or prior
to the Closing Date, that the conditions specified in Section 6(b) and Section
6(c) have been satisfied, and that no stop order suspending the effectiveness
of the Registration Statement has been issued and no proceedings for that
purpose have been instituted or are threatened by the Commission.
(i) On the date of this Agreement, you shall have received letters dated the
date hereof, in form and substance satisfactory to you, from the Corporation's
independent public accountants, containing statements and information of the
type ordinarily included in accountants' "comfort letters" to underwriters with
respect to the financial statements and certain financial information contained
in or incorporated by reference into the Prospectus.
(j) At the Closing Date you shall have received from the Corporation's
independent public accountants letters, dated the Closing Date, to the effect
that such accountants reaffirm the statements made in the letters furnished
pursuant to paragraph (i) of this Section 6, except that the specified date
referred to shall be a date not more than three business days prior to the
Closing Date.
The Corporation will furnish you with such conformed copies of such opinions,
certificates, letters and documents as you reasonably request.
7. Indemnification. (a) The Corporation agrees to indemnify and hold harmless
each Underwriter and each person, if any, who controls any Underwriter within
the meaning of Section 15 of the 1933 Act, as follows:
(i) against any and all loss, liability, claim, damage and expense whatsoever
arising out of any untrue statement or alleged untrue statement of a material
fact contained in the Registration 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
8
whatsoever based upon any such untrue statement or omission or any such alleged
untrue statement or omission, if such settlement is effected with the written
consent of the Corporation; and
(iii) against any and all expense whatsoever reasonably incurred in
investigating, preparing or defending against any litigation, commenced or
threatened, or any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission, to the extent that
any such expense is not paid under (i) or (ii) above.
In no case shall the Corporation be liable under this indemnity agreement with
respect to any claim made against any Underwriter or any such controlling
person unless the Corporation shall be notified in writing of the nature of the
claim within a reasonable time after the assertion thereof, but failure so to
notify the Corporation shall not relieve it from any liability which it may
have otherwise than on account of this indemnity agreement. The Corporation
shall be entitled to participate at its own expense in the defense, or, if it
so elects, within a reasonable time after receipt of such notice, to assume the
defense of any suit brought to enforce any such claim, but if it so elects to
assume the defense, such defense shall be conducted by counsel chosen by it and
approved by the Underwriter or Underwriters or controlling person or persons,
or defendant or defendants in any suit so brought, which approval shall not be
unreasonably withheld. In any such suit, any Underwriter or any such
controlling person shall have the right to employ its own counsel, but the fees
and expenses of such counsel shall be at the expense of such Underwriter or
such controlling person unless (i) the Corporation and such Underwriter shall
have mutually agreed to the employment of such counsel, or (ii) the named
parties to any such action (including any impleaded parties) include both such
Underwriter or such controlling person and the Corporation and such Underwriter
or such controlling person shall have been advised by such counsel that a
conflict of interest between the Corporation and such Underwriter or such
controlling person may arise and for this reason it is not desirable for the
same counsel to represent both the indemnifying party and also the indemnified
party (it being understood, however, that the Corporation shall not, in
connection with any one such action or separate but substantially similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the reasonable fees and expenses of
more than one separate firm of attorneys for all such Underwriters and all such
controlling persons, which firm shall be designated in writing by you). The
Corporation agrees to notify you within a reasonable time of the assertion of
any claim against it, any of its officers or directors or any person who
controls the Corporation within the meaning of Section 15 of the 1933 Act, in
connection with the sale of the Notes.
(b) Each Underwriter agrees, severally and not jointly, that it will indemnify
and hold harmless the Corporation, its directors and each of the officers of
the Corporation who signed the Registration Statement and each person, if any,
who controls the Corporation within the meaning of Section 15 of the 1933 Act
to the same extent as the indemnity contained in subsection (a) of this
Section, but only with respect to statements or omissions made in the
Registration Statement (or any amendment thereto) or any Preliminary
Prospectus, such prospectus or the Prospectus (or any amendment or supplement
thereto) in reliance upon and in conformity with written information furnished
to the Corporation by such Underwriter through you expressly for use in the
Registration Statement (or any amendment thereto), such Preliminary Prospectus,
such prospectus or the Prospectus (or any amendment or supplement thereto). In
case any action shall be brought against the Corporation or
9
any person so indemnified based on the Registration Statement (or any amendment
thereto) or such Preliminary Prospectus, such prospectus or the Prospectus (or
any amendment or supplement thereto) and in respect of which indemnity may be
sought against any Underwriter, such Underwriter shall have the rights and
duties given to the Corporation, and the Corporation and each person so
indemnified shall have the rights and duties given to the Underwriters, by the
provisions of subsection (a) of this Section.
8. Default by One or More of the Underwriters. (a) If any Underwriter shall
default in its obligation to purchase the Notes which it has agreed to purchase
hereunder on the Closing Date, you may in your discretion arrange for you or
another party or other parties to purchase such Notes on the terms contained
herein. If within thirty-six hours after such default by any Underwriter you do
not arrange for the purchase of such Notes, then the Corporation shall be
entitled to a further period of thirty-six hours within which to procure
another party or other parties satisfactory to you to purchase such Notes on
such terms. In the event that, within the respective prescribed periods, you
notify the Corporation that you have so arranged for the purchase of such
Notes, or the Corporation notifies you that it has so arranged for the purchase
of such Notes, you or the Corporation shall have the right to postpone such
Closing Date for a period of not more than seven days, in order to effect
whatever changes may thereby be made necessary in the Registration Statement or
the Prospectus, or in any other documents or arrangements, and the Corporation
agrees to file promptly any amendments to the Registration Statement or the
Prospectus which may be required. The term "Underwriter" as used in this
Agreement shall include any person substituted under this Section with like
effect as if such person had originally been a party to this Agreement with
respect to such Notes.
(b) If, after giving effect to any arrangements for the purchase of the Notes
of a defaulting Underwriter or Underwriters by you or the Corporation as
provided in subsection (a) above, the aggregate amount of such Notes which
remains unpurchased does not exceed one-eleventh of the aggregate amount of all
the Notes to be purchased at such Closing Date, then the Corporation shall have
the right to require each non-defaulting Underwriter to purchase the amount of
Notes which such Underwriter agreed to purchase hereunder at such Closing Date
and, in addition, to require each non-defaulting Underwriter to purchase its
pro rata share (based on the amount of Notes which such Underwriter agreed to
purchase hereunder) of the Notes of such defaulting Underwriter or Underwriters
for which such arrangements have not been made; but nothing herein shall
relieve a defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase of the Notes
of a defaulting Underwriter or Underwriters by you or the Corporation as
provided in subsection (a) above, the aggregate amount of such Notes which
remains unpurchased exceeds one-eleventh of the aggregate amount of all the
Notes to be purchased at such Closing Date, or if the Corporation shall not
exercise the right described in subsection (b) above to require non-defaulting
Underwriters to purchase Notes of a defaulting Underwriter or Underwriters,
then this Agreement shall thereupon terminate, without liability on the part of
any non-defaulting Underwriter or the Corporation, except for the expenses to
be borne by the Corporation as provided in Section 5(h) hereof and the
indemnity agreement in Section 7 hereof; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
10
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 termination of this Agreement, or any investigation, or
statement as to the results thereof, made by or on behalf of any Underwriter or
the Corporation, or any of its officers or directors or any controlling person,
and will survive delivery of and payment for the Notes.
10. Notices. All communications hereunder will be in writing and, if sent to
the Underwriters, will be mailed, delivered or telecopied and confirmed to you
in care of at , attention of or, if
sent to the Corporation, will be mailed, delivered or telecopied and confirmed
to it at 000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxx, X.X. 00000, telephone number
(000) 000-0000, attention of Xxxxxxx X. Xxxxxxx, Vice President and Chief
Financial Officer; provided, however, that any notice to an Underwriter
pursuant to Section 7 hereof shall be delivered or sent by mail or telecopy to
such Underwriter at its address or telecopy number set forth in its
Underwriters' Questionnaire or telex constituting such Questionnaire, which
address or telecopy number will be supplied to the Corporation by you. Any such
communications shall take effect upon receipt thereof.
11. Business Day. As used herein, the term "business day" shall mean any day
when the Commission's office in Washington, D.C. is open for business.
12. Successors. This Agreement shall inure to the benefit of and be binding
upon the Underwriters and the Corporation and their respective successors.
Nothing expressed or mentioned in this Agreement is intended or shall be
construed to give any person, firm or corporation, other than the parties
hereto and their respective successors and the controlling persons and the
officers and directors referred to in Section 7, and their respective
successors, heirs and legal representatives, any legal or equitable right,
remedy or claim under or in respect of this Agreement or any provision herein
contained; this Agreement and all conditions and provisions hereof being
intended to be and being for the sole and exclusive benefit of the parties
hereto and their respective successors and said controlling persons, officers
and directors and their respective successors, heirs and legal representatives,
and for the benefit of no other person, firm or corporation. No purchaser of
Notes from any Underwriter shall be deemed to be a successor or assign by
reason merely of such purchase.
13. Counterparts. This Agreement may be executed in two or more counterparts,
each of which shall be deemed to be an original, but all of which together
shall constitute one and the same instrument.
14. Applicable Law. This Agreement shall be governed by, and construed in
accordance with, the internal laws of the State of New York.
11
If the foregoing is in accordance with your understanding, kindly sign and
return to us two counterparts hereof, and upon your acceptance, this letter and
such acceptance will become a binding agreement between the Corporation, on the
one hand, and each of the Underwriters, on the other hand, in accordance with
its terms.
Very truly yours,
Duke Capital Corporation
By:_______________________
The foregoing Underwriting Agreement
is hereby confirmed and accepted as
of the date first above written.
By: ______________________
12
SCHEDULE A
Principal
Amount of
Notes to
be
Underwriter Purchased
----------- ---------
$
--------
Total............................................................. $
========
13
