Exhibit 4.6
, dated as of November 19, 2001 (the
"Agreement") by and between Duke Energy Corporation, a North Carolina
corporation (the "Company"), Duke Capital corporation, a Delaware corporation
and wholly owned subsidiary of the Company ("Duke Capital") JPMorgan Chase Bank,
a New York banking corporation, not individually but solely as Purchase Contract
Agent (the "Purchase Contract Agent") and as attorney-in-fact of the holders of
Purchase Contracts (as defined in the Purchase Contract Agreement (as defined
herein)), and Xxxxxx Xxxxxxx & Co. Incorporated (the "Remarketing Agent").
WITNESSETH:
WHEREAS, the Company will issue $750,000,000 (or $862,500,000
if the Underwriter's (as defined in the Underwriting Agreement) overallotment
option is exercised in full) aggregate Stated Amount of its Equity Units, Series
B (the "Equity Units") under the Purchase Contract Agreement, dated as of
November 19, 2001, by and between the Purchase Contract Agent and the Company
(the "Purchase Contract Agreement"); and
WHEREAS, the Equity Units will initially consist of 30,000,000
(or 34,500,000 if the Underwriter's overallotment option is exercised in full)
Corporate Units, Series B referred to as "Corporate Units"; and
WHEREAS, Duke Capital will issue concurrently in connection
with the issuance of the Equity Units $750,000,000 (or $862,500,000 if the
Underwriters' overallotment option is exercised in full) aggregate principal
amount of 4.32 % Senior Notes due 2006 (the "Senior Notes") of the Company; and
WHEREAS, the Senior Notes forming a part of the Corporate
Units will be pledged pursuant to the Pledge Agreement (the "Pledge Agreement"),
dated as of November 19, 2001, by and among the Company, Bank One Trust Company,
N.A., as collateral agent (the "Collateral Agent") and the Purchase Contract
Agent, to secure a Corporate Units holder's obligations under the related
Purchase Contract on the Purchase Contract Settlement Date; and
WHEREAS, the Senior Notes of the Senior Noteholders electing
to have their Senior Notes remarketed and of the Corporate Unit holders will be
remarketed by the Remarketing Agent on the third Business Day immediately
preceding August 16, 2004 (the "Initial Remarketing Date"); and
WHEREAS, in the event of a Failed Initial Remarketing, the
Senior Notes of the Senior Noteholders electing to have their Senior Notes
remarketed and of the Corporate Unit holders will be remarketed by the
Remarketing Agent on the third Business Day immediately preceding preceding
September 16, 2004 (the "Second Remarketing Date"); and
WHEREAS, in the event of a Failed Second Remarketing, the
Senior Notes of the Senior Noteholders electing to have their Senior Notes
remarketed and of the Corporate Unit holders will be remarketed by the
Remarketing Agent on the third Business Day immediately preceding preceding
October 16, 2004 (the "Third Remarketing Date"); and
WHEREAS, in the event of a Failed Third Remarketing, the
Senior Notes of the Senior Noteholders electing to have their Senior Notes
remarketed and of the Corporate Unit holders who have elected not to settle the
Purchase Contracts related to their Corporate Units by Cash Settlement (or have
so elected, but have not paid the Purchase Price on or prior to the fourth
Business Day immediately preceding the Purchase Contract Settlement Date) and
who have not early settled their Purchase Contracts will be remarketed by the
Remarketing Agent on the third Business Day immediately preceding the Purchase
Contract Settlement Date; and
WHEREAS, in the event of a Successful Initial Remarketing, the
applicable interest rate on the Senior Notes will be reset on the Initial
Remarketing Date, to the Reset Rate to be determined by the Reset Agent as the
rate that such Senior Notes should bear in order for the Applicable Principal
Amount of the Senior Notes to have an approximate aggregate market value of
100.5% of the Treasury Portfolio Purchase Price on the Initial Remarketing Date,
provided that in the determination of such Reset Rate, the Company and Duke
Capital shall, if applicable, limit the Reset Rate to the maximum rate, if any,
permitted by applicable law; and
WHEREAS, in the event of a Failed Initial Remarketing, the
applicable interest rate on the Senior Notes will be reset on the Second
Remarketing Date, to the Reset Rate to be determined by the Reset Agent as the
rate that such Senior Notes should bear in order for the Applicable Principal
Amount of the Senior Notes to have an approximate aggregate market value of
100.5% of the Treasury Portfolio Purchase Price on the Second Remarketing Date,
provided that in the determination of such Reset Rate, the Company and Duke
Capital shall, if applicable, limit the Reset Rate to the maximum rate, if any,
permitted by applicable law; and
WHEREAS, in the event of a Failed Second Remarketing, the
applicable interest rate on the Senior Notes will be reset on the Third
Remarketing Date, to the Reset Rate to be determined by the Reset Agent as the
rate that such Senior Notes should bear in order for the Applicable Principal
Amount of the Senior Notes to have an approximate aggregate market value of
100.5% of the Treasury Portfolio Purchase Price on the Third Remarketing Date,
provided that in the determination of such Reset Rate, the Company and Duke
Capital shall, if applicable, limit the Reset Rate to the maximum rate, if any,
permitted by applicable law; and
WHEREAS, in the event of a Failed Third Remarketing, the
applicable interest rate on the Senior Notes will be reset on the third Business
Day immediately preceding the Purchase Contract Settlement Date, to the Reset
Rate to be determined by the Reset Agent as the rate that such Senior Notes
should bear in order to have an approximate market value of 100.5% of the
aggregate principal amount of the Senior Notes on the third Business Day
immediately preceding the Purchase Contract Settlement Date, provided that in
the determination of such Reset Rate, the Company and Duke Capital shall, if
applicable, limit the Reset Rate to the maximum rate, if any, permitted by
applicable law; and
WHEREAS, the Company and Duke Capital have requested Xxxxxx
Xxxxxxx & Co. Incorporated ("Xxxxxx Xxxxxxx") to act as the Reset Agent and as
the Remarketing Agent, and as such to perform the services described herein; and
WHEREAS, Xxxxxx Xxxxxxx is willing to act as Reset Agent and
Remarketing Agent and as such to perform such duties on the terms and conditions
expressly set forth herein;
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NOW, THEREFORE, for and in consideration of the covenants
made, and subject to the conditions herein set forth, the parties hereto agree
as follows:
Section 1. Definitions. Capitalized terms used and not defined
-----------
in this Agreement, in the recitals hereto or in the paragraph preceding such
recitals shall have the meanings assigned to them in the Purchase Contract
Agreement or, if not therein defined, the Pledge Agreement.
Section 2. Appointment and Obligations of Remarketing Agent.
------------------------------------------------
(a) The Company and Duke Capital hereby appoint Xxxxxx Xxxxxxx and Xxxxxx
Xxxxxxx hereby accepts such appointment, (i) as the Reset Agent to determine in
consultation with the Company and Duke Capital, in the manner provided for
herein and in the Fourth Supplemental Indenture with respect to the Senior
Notes, (1) the Reset Rate that, in the opinion of the Reset Agent, will, when
applied to the Senior Notes, enable the Applicable Principal Amount of the
Senior Notes to have an approximate aggregate market value of 100.5% of the
Treasury Portfolio Purchase Price as of the Initial Remarketing Date, (2) in the
event of a Failed Initial Remarketing, the Reset Rate that, in the opinion of
the Reset Agent, will, when applied to the Senior Notes, enable the Applicable
Principal Amount of the Senior Notes to have an approximate aggregate market
value of 100.5% of the Treasury Portfolio Purchase Price as of the Second
Remarketing Date, (3) in the event of a Failed Second Remarketing, the Reset
Rate that, in the opinion of the Reset Agent, will, when applied to the Senior
Notes, enable the Applicable Principal Amount of the Senior Notes to have an
approximate aggregate market value of 100.5% of the Treasury Portfolio Purchase
Price as of the Third Remarketing Date, and (4) in the event of a Failed Third
Remarketing, the Reset Rate that, in the opinion of the Reset Agent, will, when
applied to the Senior Notes, enable a Senior Note to have an approximate market
value of 100.5% of its principal amount as of the third Business Day preceding
the Purchase Contract Settlement Date, provided, in each case, that the Company
and Duke Capital, by notice to the Reset Agent prior to the tenth Business Day
preceding August 16, 2004, in the case of the Initial Remarketing, September 16,
2004, in the case of the Second Remarketing, October 16, 2004, in the case of
the Third Remarketing or the Purchase Contract Settlement Date, in the case of
the Final Remarketing, shall, if applicable, limit the Reset Rate so that it
does not exceed the maximum rate permitted by applicable law and (ii) as the
exclusive Remarketing Agent (subject to the right of Xxxxxx Xxxxxxx to appoint
additional remarketing agents hereunder as described below) to (1) remarket the
Senior Notes of the Senior Noteholders electing to have their Senior Notes
remarketed and of the Corporate Units holders on the Initial Remarketing Date,
for settlement on August 16, 2004, (2) in the case of a Failed Initial
Remarketing, remarket the Senior Notes of the Senior Noteholders electing to
have their Senior Notes remarketed and of the Corporate Units holders on the
Second Remarketing Date, for settlement on September 16, 2004, (3) in the case
of a Failed Second Remarketing, remarket the Senior Notes of the Senior
Noteholders electing to have their Senior Notes remarketed and of the Corporate
Units holders on the Third Remarketing Date, for settlement on October 16, 2004
and (4) in the case of a Failed Third Remarketing, remarket the Senior Notes of
the Senior Noteholders electing to have their Senior Notes remarketed or of the
Corporate Units holders who have not early settled the related Purchase
Contracts and have failed to notify the Purchase Contract Agent, on or prior to
the fifth Business Day immediately preceding the Purchase Contract Settlement
Date, of their intention to settle the related Purchase Contracts through Cash
Settlement on the fourth Business Day immediately preceding the Purchase
Contract Settlement Date. In connection with the remarketing contemplated
hereby, the
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Remarketing Agent will enter into a Supplemental (the
"Supplemental ") with the Company, Duke Capital and the
Purchase Contract Agent, which shall either be (i) substantially in the form
attached hereto as Exhibit A (with such changes as the Company, Duke Capital and
the Remarketing Agent may agree upon, it being understood that changes may be
necessary in the provisions of the Supplemental due to
changes in law or facts and circumstances or in the event that Xxxxxx Xxxxxxx is
not the sole remarketing agent, and with such further changes therein as the
Remarketing Agent may reasonably request), or (ii) in such other form as the
Remarketing Agent may reasonably request, subject to the approval of the Company
and Duke Capital (such approval not to be unreasonably withheld). Anything
herein to the contrary notwithstanding, to the extent that the parties hereto
are unable to agree on the form or substance of the Supplemental , Xxxxxx Xxxxxxx shall not act as Remarketing Agent or Reset Agent
hereunder. The Company and Duke Capital agree that Xxxxxx Xxxxxxx shall have the
right, on 15 Business Days' notice to the Company and Duke Capital, to appoint
one or more additional remarketing agents so long as any such additional
remarketing agents shall be reasonably acceptable to the Company and Duke
Capital. Upon any such appointment, the parties shall enter into an appropriate
amendment to this Agreement to reflect the addition of any such remarketing
agent.
(b) Pursuant to the Supplemental , the
Remarketing Agent, either as sole remarketing agent or as representative of a
group of remarketing agents appointed as aforesaid, will agree, subject to the
terms and conditions set forth herein and therein, to use its reasonable efforts
to (i) remarket, on the Initial Remarketing Date, the Senior Notes that the
Purchase Contract Agent and the Custodial Agent shall have notified the
Remarketing Agent have been tendered for, or otherwise are to be included in,
the Initial Remarketing, at a price per Senior Note such that the aggregate
price for the Applicable Principal Amount of the Senior Notes is approximately
100.5% of the Treasury Portfolio Purchase Price, (ii) in the event of a Failed
Initial Remarketing, remarket, on the Second Remarketing Date, the Senior Notes
that the Purchase Contract Agent and the Custodial Agent shall have notified the
Remarketing Agent have been tendered for, or otherwise are to be included in,
the Second Remarketing, at a price of approximately 100.5% of the Treasury
Portfolio Purchase Price, (iii) in the event of a Failed Second Remarketing,
remarket, on the Third Remarketing Date, the Senior Notes that the Purchase
Contract Agent and the Custodial Agent shall have notified the Remarketing Agent
have been tendered for, or otherwise are to be included in, the Third
Remarketing, at a price of approximately 100.5% of the Treasury Portfolio
Purchase Price, and (iv) in the event of a Failed Third Remarketing, remarket,
on the third Business Day immediately preceding the Purchase Contract Settlement
Date, the Senior Notes that the Purchase Contract Agent and the Custodial Agent
shall have notified the Remarketing Agent have been tendered for, or otherwise
are to be included in, the Final Remarketing, at a price of approximately 100.5%
of the aggregate principal amount of such Senior Notes. Notwithstanding the
preceding sentence, the Remarketing Agent shall not remarket any Senior Notes
for a price less than the price (the "Minimum Remarketing Price") necessary for
the Applicable Principal Amount of the Senior Notes to have an aggregate price
equal to 100% of the Treasury Portfolio Purchase Price, in the case of the
Initial Remarketing, Second Remarketing or Third Remarketing, or the aggregate
principal amount of such Senior Notes, in the case of the Final Remarketing.
After deducting the fee specified in Section 3 below, the proceeds of such
Initial Remarketing, Second Remarketing, Third Remarketing or Final Remarketing,
as the case may be, shall be paid to the Collateral Agent in accordance with
Section 4.6 or 6.3 of the Pledge Agreement and Section
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5.3A, 5.3B, 5.3C or 5.4 of the Purchase Contract Agreement (each of which
Sections are incorporated herein by reference).
(c) It is understood and agreed that neither the Remarketing
Agent nor the Reset Agent shall have any obligation whatsoever to purchase any
Senior Notes, whether in the Initial Remarketing, Second Remarketing, Third
Remarketing or Final Remarketing or otherwise, and shall in no way be obligated
to provide funds to make payment upon tender of Senior Notes for remarketing or
to otherwise expend or risk their own funds or incur or be exposed to financial
liability in the performance of their respective duties under this Agreement or
the Supplemental , and, without limitation of the
foregoing, the Remarketing Agent shall not be deemed an underwriter of the
remarketed Senior Notes. The Company and Duke Capital shall not be obligated in
any case to provide funds to make payment upon tender of Senior Notes for
remarketing.
(d) The Remarketing Agent agrees to give the notices required
by Sections 3.01(g) and (h), 3.02(g) and (h), 3.03(g) and (h) and 3.04 (h) and
(i) of the Fourth Supplemental Indenture.
Section 3. Fees. In the event of a Successful Initial
----
Remarketing, Successful Second Remarketing, or Successful Third Remarketing, the
Remarketing Agent shall retain as a remarketing fee (the "Remarketing Fee") an
amount not exceeding 25 basis points (0.25%) of the Minimum Remarketing Price
from any amount received in connection with such Initial Remarketing, Second
Remarketing or Third Remarketing in excess of the Minimum Remarketing Price. In
the event of a Successful Final Remarketing, the Remarketing Agent shall retain
as the Remarketing Fee an amount not exceeding 25 basis points (0.25%), of the
principal amount of the remarketed Senior Notes from any amount received in
connection with such Final Remarketing in excess of the aggregate principal
amount of such remarketed Senior Notes. In addition, the Reset Agent shall, in
either case, receive from the Company a reasonable and customary fee (the "Reset
Agent Fee"); provided, however, that if the Remarketing Agent shall also act as
the Reset Agent, then the Reset Agent shall not be entitled to receive any such
Reset Agent Fee. Payment of such Reset Agent Fee shall be made by the Company on
the Initial Remarketing Date, in the case of a Successful Initial Remarketing,
the Second Remarketing Date, in the case of a Successful Second Remarketing, the
Third Remarketing Date, in the case of a Successful Third Remarketing, or on the
third Business Day immediately preceding the Purchase Contract Settlement Date,
in the case of a Successful Final Remarketing, in immediately available funds
or, upon the instructions of the Reset Agent, by certified or official bank
check or checks or by wire transfer.
Section 4. Replacement and Resignation of Remarketing Agent.
------------------------------------------------
(a) The Company and Duke Capital may at any time in their absolute discretion
replace Xxxxxx Xxxxxxx as the Remarketing Agent and as the Reset Agent hereunder
pursuant to a 45 days' prior written notice to Xxxxxx Xxxxxxx, provided, that
the Company and Duke Capital must replace Xxxxxx Xxxxxxx both as Remarketing
Agent and as Reset Agent unless Xxxxxx Xxxxxxx shall otherwise agree. Any such
replacement shall become effective upon the Company and Duke Capital's
appointment of a successor to perform the services that would otherwise be
performed hereunder by the Remarketing Agent and the Reset Agent. Upon providing
such notice, the Company and
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Duke Capital shall use all reasonable efforts to appoint such a successor and to
enter into a with such successor as soon as reasonably
practicable.
(b) Xxxxxx Xxxxxxx may resign at any time and be discharged
from its duties and obligations hereunder as the Remarketing Agent and/or as the
Reset Agent pursuant to a 45 days' prior written notice to the Company. Any such
resignation shall become effective upon the Company and Duke Capital's
appointment of a successor to perform the services that would otherwise be
performed hereunder by the Remarketing Agent and/or the Reset Agent. Upon
receiving notice from the Remarketing Agent and/or the Reset Agent that it
wishes to resign hereunder, the Company and Duke Capital shall appoint such a
successor and enter into a with it as soon as reasonably
practicable.
(c) The Company and Duke Capital shall give the Purchase
Contract Agent, the Trustee, the Collateral Agent and the Custodial Agent prompt
written notice of the appointment of any successor Remarketing Agent and Reset
Agent.
Section 5. Dealing in the Securities. Each of the Remarketing
-------------------------
Agent and the Reset Agent, when acting hereunder or, in the case of the
Remarketing Agent, under the Supplemental Remarketing Agreement, or when acting
in its individual or any other capacity, may, to the extent permitted by law,
buy, sell, hold or deal in any of the Senior Notes, Treasury Units, Corporate
Units or any other securities of the Company or Duke Capital. With respect to
any Senior Notes, Treasury Units, Corporate Units or any other securities of the
Company or Duke Capital owned by it, each of the Remarketing Agent and the Reset
Agent may exercise any vote or join in any action with like effect as if it did
not act in any capacity hereunder. Each of the Remarketing Agent and the Reset
Agent, in its individual capacity, either as principal or agent, may also engage
in or have an interest in any financial or other transaction with the Company or
Duke Capital as freely as if it did not act in any capacity hereunder.
Section 6. Registration Statement and Prospectus. In
-------------------------------------
connection with the Initial Remarketing, Second Remarketing, in the event of a
Failed Initial Remarketing, or Third Remarketing, in the event of a Failed
Second Remarketing, if and to the extent required in the opinion of counsel
(which need not be a formal written opinion) for each of the Remarketing Agent
and the Company and Duke Capital by applicable law, regulations or
interpretations in effect at the time of such Initial Remarketing, Second
Remarketing or Third Remarketing, as the case may be, the Company and Duke
Capital (i) shall use their reasonable efforts to have a registration statement
relating to the Senior Notes effective under the Securities Act of 1933 prior to
the third Business Day immediately preceding August 16, 2004, in the case of the
Initial Remarketing, September 16, 2004, in the case of the Second Remarketing
and October 16, 2004, in the case of the Third Remarketing, (ii) if requested by
the Remarketing Agent shall furnish a current preliminary prospectus and, if
applicable, a current preliminary prospectus supplement to be used by the
Remarketing Agent in the Initial Remarketing not later than seven Business Days
prior to August 16, 2004, in the case of the Initial Remarketing, September 16,
2004, in the case of the Second Remarketing and October 16, 2004, in the case of
the Third Remarketing (or such earlier date as the Remarketing Agent may
reasonably request) and in such quantities as the Remarketing Agent may
reasonably request, and (iii) shall furnish a current final prospectus and, if
applicable, a final prospectus supplement to be used by the Remarketing Agent in
the Initial Remarketing not later than the third Business Day immediately
preceding August 16, 2004, in
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the case of the Initial Remarketing, September 16, 2004, in the case
of the Second Remarketing and October 16, 2004, in the case of the Third
Remarketing, in such quantities as the Remarketing Agent may reasonably request,
and shall pay all expenses relating thereto. In the event of a Failed Third
Remarketing and in connection with the Final Remarketing, if and to the extent
required in the opinion of counsel (which need not be a formal written opinion)
for each of the Remarketing Agent and the Company and Duke Capital by applicable
law, regulations or interpretations in effect at the time of such Final
Remarketing, the Company and Duke Capital (i) shall use their reasonable efforts
to have a registration statement relating to the Senior Notes effective under
the Securities Act of 1933 prior to the third Business Day immediately preceding
the Purchase Contract Settlement Date, (ii) if requested by the Remarketing
Agent, shall furnish a current preliminary prospectus and, if applicable, a
current preliminary prospectus supplement to be used by the Remarketing Agent in
the Final Remarketing not later than seven Business Days prior to the Purchase
Contract Settlement Date (or such earlier date as the Remarketing Agent may
reasonably request) and in such quantities as the Remarketing Agent may
reasonably request, and (iii) shall furnish a current final prospectus and, if
applicable, a final prospectus supplement to be used by the Remarketing Agent in
the Final Remarketing not later than the third Business Day immediately
preceding the Purchase Contract Settlement Date in such quantities as the
Remarketing Agent may reasonably request, and shall pay all expenses relating
thereto. The Company and Duke Capital shall also take all such actions as may
(upon advice of counsel to each of the Company and Duke Capital and the
Remarketing Agent) be necessary or desirable under state securities or blue sky
laws in connection with the Initial Remarketing, Second Remarketing, Third
Remarketing and/or Final Remarketing.
Section 7. Conditions to the Remarketing Agent's Obligations.
-------------------------------------------------
(a) The obligations of the Remarketing Agent and the Reset Agent under this
Agreement and, in the case of the Remarketing Agent, the Supplemental
Remarketing Agreement shall be subject to the terms and conditions of this
Agreement and the Supplemental Remarketing Agreement, including, without
limitation, the following conditions: (i) the Senior Notes tendered for, or
otherwise to be included in the Initial Remarketing, Second Remarketing, Third
Remarketing or Final Remarketing, as the case may be, have not been called for
redemption, (ii) the Remarketing Agent is able to find a purchaser or purchasers
for tendered Senior Notes (1) in the case of the Initial Remarketing, Second
Remarketing or Third Remarketing, at a price not less than the Minimum
Remarketing Price, and (2) in the case of the Final Remarketing, at a price not
less than 100% of the principal amount thereof, (iii) the Purchase Contract
Agent, the Collateral Agent, the Custodial Agent, the Company, Duke Capital and
the Trustee shall have performed their respective obligations in connection with
the Initial Remarketing, in the event of a Failed Intial Remarketing, in
connection with the Second Remarketing, in the event of a Failed Second
Remarketing, in connection with the Third Remarketing, and, in the event of a
Failed Third Remarketing, in connection with the Final Remarketing, in each case
pursuant to the Purchase Contract Agreement, the Pledge Agreement, the
Indenture, this Agreement and the Supplemental Remarketing Agreement (including,
without limitation, giving the Remarketing Agent notice of the Treasury
Portfolio Purchase Price no later than 10:00 a.m., New York City time, on the
third Business Day prior to August 16, 2004, in the case of the Initial
Remarketing, September 16, 2004, in the case of the Second Remarketing, October
16, 2004, in the case of a Third Remarketing, and giving the Remarketing Agent
notice of the aggregate principal amount, as the case may be, of Senior Notes to
be remarketed, no later than 11:00 a.m., New York City time, on the fourth
Business Day prior to the Purchase Contract Settlement Date, in the case of the
Final
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Remarketing, and, in each case, concurrently delivering the
Senior Notes to be remarketed to the Remarketing Agent), (iv) no Event of
Default (as defined in the Indenture) shall have occurred and be continuing, (v)
the accuracy of the representations and warranties of the Company and Duke
Capital included and incorporated by reference in this Agreement and the
Supplemental Remarketing Agreement or in certificates of any officer of the
Company, Duke Capital or any of their subsidiaries delivered pursuant to the
provisions included or incorporated by reference in this Agreement or the
Supplemental Remarketing Agreement, (vi) the performance by the Company and Duke
Capital of their covenants and other obligations included and incorporated by
reference in this Agreement and the Supplemental Remarketing Agreement, and
(vii) the satisfaction of the other conditions set forth and incorporated by
reference in this Agreement and the Supplemental Remarketing Agreement.
(b) If at any time during the term of this Agreement, any Event of
Default (as defined in the Indenture) has occurred and is continuing under the
Indenture, or the occurrence of an Event of Default is imminent, then the
obligations and duties of the Remarketing Agent and the Reset Agent under this
Agreement and the Supplemental Remarketing Agreement shall be suspended until
such default or imminent condition has been cured or eliminated, as the case may
be. The Company and Duke Capital will promptly give the Remarketing Agent notice
of all Events of Default and imminent Events of Default, referred to above of
which any officer of the Company or Duke Capital with responsibility relating
thereto is aware.
Section 8. Termination of Remarketing Agreement. This Agreement shall
------------------------------------
terminate as to any Remarketing Agent or Reset Agent which is replaced on the
effective date of its replacement pursuant to Section 4(a) hereof or pursuant to
Section 4(b) hereof. Notwithstanding any such termination, the obligations set
forth in Section 3 hereof shall survive and remain in full force and effect
until all amounts payable under said Section 3 shall have been paid in full. In
addition, each former Remarketing Agent and Reset Agent hereunder shall be
entitled to the rights and benefits under Section 10 of this Agreement
notwithstanding the replacement or resignation of such Remarketing Agent or
Reset Agent.
Section 9. Remarketing: Agent's Performance; Duty of Care. The duties
----------------------------------------------
and obligations of the Remarketing Agent and the Reset Agent shall be determined
solely by the express provisions of this Agreement and, in the case of the
Remarketing Agent, the Supplemental Remarketing Agreement. No implied covenants
or obligations of or against the Remarketing Agent or the Reset Agent shall be
read into this Agreement or the Supplemental Remarketing Agreement. In the
absence of bad faith on the part of the Remarketing Agent or the Reset Agent, as
the case may be, the Remarketing Agent and the Reset Agent each may conclusively
rely upon any document furnished to it which purports to conform to the
requirements of this Agreement or the Supplemental Remarketing Agreement, as the
case may be, as to the truth of the statements expressed therein. Each of the
Remarketing Agent and the Reset Agent shall be protected in acting upon any
document or communication reasonably believed by it to be signed, presented or
made by the proper party or parties. Neither the Remarketing Agent nor the Reset
Agent shall have any obligation to determine whether there is any limitation
under applicable law on the Reset Rate on the Senior Notes or, if there is any
such limitation, the maximum permissible Reset Rate on the Senior Notes, and
they shall rely solely upon written notice from the Company and Duke Capital
(which the Company and Duke Capital agree to provide prior to the tenth Business
Day before August 16, 2004, in the case of the Initial
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Remarketing, prior to the tenth Business Day before September 16,
2004, in the case of the Second Remarkting, prior to the tenth Business Day
before October 16, 2004, in the case of the Third Remarketing, and prior to the
tenth Business Day before Purchase Contract Settlement Date, in the case of the
Final Remarketing) as to whether or not there is any such limitation and, if so,
the maximum permissible Reset Rate. Neither the Remarketing Agent nor the Reset
Agent shall incur any liability under this Agreement or the Supplemental
Remarketing Agreement to any beneficial owner or holder of Senior Notes, or
other securities, either in its individual capacity or as Remarketing Agent or
Reset Agent, as the case may be, for any action or failure to act in connection
with the Remarketing or otherwise in connection with the transactions
contemplated by this Agreement or the Supplemental Remarketing Agreement. The
provisions of this Section 9 shall survive any termination of this Agreement and
shall also continue to apply to every Remarketing Agent and Reset Agent
hereunder notwithstanding their resignation or removal.
Section 10. Indemnification and Contribution. (a) The Company and Duke
--------------------------------
Capital, jointly and severally, agree to indemnify and hold harmless the
Remarketing Agent, the Reset Agent and their respective directors, officers,
employees, agents, affiliates and each person, if any, who controls the
Remarketing Agent or the Reset Agent within the meaning of either Section 15 of
the Securities Act of 1933, as amended (the " 1933 Act"), or Section 20 of the
Securities Exchange Act of 1934, as amended (the "1934 Act") (the Remarketing
Agent, the Reset Agent and each such person or entity being an "Indemnified
Party"), as discussed below, provided that any such indemnification shall be
payable only in connection with any loss, claim, damage liability or expense
which has been incurred or suffered by the relevant Indemnified Party in
connection with the Remarketing Agent or the Reset Agent performing its
obligations and responsibilities hereunder and any acts incidental thereto:
(i) from and against any and all losses, claims, damages,
liabilities and expenses whatsoever, joint or several, as incurred, to which
suchIndemnified Party may become subject under any applicable federal or state
law,or otherwise, and related to, arising out of, or based on (A) the failure to
have an effective Registration Statement (as defined in the Supplemental
Remarketing Agreement) under the 1933 Act relating to the Senior Notes, as the
case may be, if required, or the failure to satisfy the prospectus delivery
requirements of the 1933 Act because the Company or Duke Capital failed to
provide the Remarketing Agent with a Prospectus (as defined in the Supplemental
Remarketing Agreement) for delivery, or (B) any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement or
any amendment thereto (including any information deemed to be a part of the
Registration Statement at the time it became effective pursuant to paragraph (b)
of Rule 430A under the 1933 Act, if applicable), 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 (C) any untrue statement or
alleged untrue statement of a material fact contained in any preliminary
prospectus 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, or (D) any untrue statement or alleged untrue
statement of a material fact contained in any other information (whether oral or
written) or documents (including, without limitation, any documents incorporated
or deemed to be incorporated by reference in any such information or documents)
provided by the Company for use in connection with the remarketing of the
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Senior Notes or any of the transactions related thereto, or (E) any breach
by the Company or Duke Capital of any of the representations, warranties or
agreements included or incorporated by reference in this Agreement or the
Supplemental Remarketing Agreement, or (F) any failure by the Company or Duke
Capital to make or consummate the remarketing of the Senior Notes (including,
without limitation, any Failed Initial Remarketing, Failed Second Remarketing,
Failed Third Remarketing or Failed Final Remarketing) or the withdrawal,
recession, termination, amendment or extension of the terms of such remarketing,
or (G) any failure on the part of the Company or Duke Capital to comply, or any
breach by the Company of, any of the provisions included or incorporated by
reference in this Agreement, the Supplemental Remarketing Agreement, the
Purchase Contract Agreement, the Corporate Units, the Treasury Units, the Pledge
Agreement, the Indenture or the Senior Notes (collectively, the "Operative
Documents") or (H) the remarketing of the Senior Notes, as the case may be, or
any other transaction contemplated by any of the Operative Documents, or the
engagement of the Remarketing Agent or the Reset Agent pursuant to, or the
performance by the Remarketing Agent or the Reset Agent of the respective
services contemplated by, this Agreement or the Supplemental Remarketing
Agreement, whether or not the Initial Remarketing, the Second Remarketing, the
Third Remarketing or the Final Remarketing or the reset of the interest rate on
the Senior Notes as contemplated herein actually occur;
(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 related to,
or based on any untrue statement or omission on any alleged untrue statement or
omission described in clause (i) above if such settlement is effected with the
written consent of the Company and Duke Capital; 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 related to, based on any untrue
statement or omission on any alleged untrue statement or omission described in
clause (i) above, to the extent that any such expense is not paid under clause
(i) or (ii) above; provided, however, that the Company and Duke Capital shall
not be liable under clause (i) with respect to any claim made against any
Indemnified Party or Parties unless the Company and Duke Capital shall be
notified in writing of the nature of the claim within a reasonable time after
the assertion thereof, but failure so to notify the Company and Duke Capital
shall not relieve it from any liability which it may have otherwise than on
account of this Section 10. The Company and Duke Capital shall be entitled to
participate at their 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
Indemnified Party or Parties or, defendant or defendants in any suit so brought,
which approval shall not be unreasonably withheld. In any such suit, any
Indemnified Party shall have the right to employ its own counsel, but the fees
and expenses of such counsel shall be at the expense of such Indemnified Party
unless (i) the Company and Duke Capital and such Indemnified Party 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 Indemnified
Party and the Company and Duke Capital and such Indemnified Party shall have
been advised by such counsel that a conflict of interest between the Company and
Duke Capital and such Indemnified Party may arise and for this reason it is not
desirable for the same counsel
10
to represent both the indemnifying party and also the Indemnified Party
(it being understood, however, that the Company and Duke Capital 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 Indemnified Parties).
(b) The Remarketing Agent agrees that it will indemnify and hold
harmless the Company and Duke Capital, their directors and each of the officers
of the Company and Duke Capital who signed the respective Registration
Statements and each Person, if any, who controls the Company and Duke Capital
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 Statements (or any amendment
thereto) or any Preliminary Prospectus, such prospectus or the Prospectus (or
any amendment or supplement thereto) in reliance upon and in conformity with
written information furnished to the Company and Duke Capital by the Remarketing
Agent expressly for use in the Registration Statements (or any amendment
thereto), such Preliminary Prospectus, such prospectus or the Prospectus (or any
amendment or supplement thereto). In case any action shall be brought against
the Company and Duke Capital or any Person so indemnified based on the
Registration Statements (or any amendment thereto) or such Preliminary
Prospectus, such prospectus or the Prospectus (or any amendment or supplement
thereto) and in respect of which indemnity may be sought against the Remarketing
Agent, shall have the rights and duties given to the Company and Duke Capital,
and the Company and Duke Capital and each Person so indemnified shall have the
rights and duties given to the Indemnified Parties, 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 10 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 or expense (or actions in respect thereof) in such proportion as
is appropriate to reflect the relative benefits received by the Company and Duke
Capital on the one hand and the Remarketing Agent on the other from the
Remarketing offering of the Units. 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 Company and Duke Capital on
the one hand and the Remarketing Agent on the other in connection with the
statements or omissions which resulted in such losses, liability, claim, damage
or expense (or actions in respect thereof), as well as any other relevant equity
considerations. The relative benefits received by the Company and Duke Capital
on the one hand and the Remarketing Agent on the other shall be deemed to be in
the same proportion as the total net proceeds from the
11
remarketing (before deducting expenses) received by Duke Capital bear to the
total compensation received by the Remarketing Agent in respect of the
Remarketing. 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 Company and Duke Capital on the one hand or the Remarketing
Agent on the other and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and Duke Capital and the Remarketing Agent agree that it would not
be just and equitable if contributions pursuant to this section were determined
by pro rata allocation 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 10, the Remarketing Agent shall not be required to
contribute any amount in excess of the amount by which the aggregate stated
amount of the Senior Notes which were remarketed exceeds the amount of any
damages which the Remarketing Agent 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.
(e) Anything herein or in the Supplemental Remarketing Agreement to
the contrary notwithstanding, the provisions of this Section 10, and the rights
of the Remarketing Agent, the Reset Agent and the other Indemnified Parties
hereunder, shall be in addition to, and not in limitation of, any rights or
benefits (including, without limitation, rights to indemnification or
contribution) which the Remarketing Agent, the Reset Agent or any other
Indemnified Party may have under any other instrument or agreement.
Section 11. Governing Law. This Agreement shall be governed by and
-------------
construed in accordance with the laws of the State of New York.
Section 12. Term of Agreement. (a) Unless otherwise terminated in
-----------------
accordance with the provisions hereof and except as otherwise provided herein,
this Agreement shall remain in full force and effect from the date hereof until
the first day thereafter on which no Senior Notes are outstanding, or, if
earlier, the Business Day immediately following August 16, 2004, in the case of
a Successful Initial Remarketing, the Business Day immediately following
September 16, 2004, in the case of a Successful Second Remarketing, the Business
Day immediately following October 16, 2004, in the case of a Successful Third
Remarketing or the Business Day immediately following the Purchase Contract
Settlement Date, in the case of a Successful Final Remarketing. Anything herein
to the contrary notwithstanding, the provisions of the last sentence of Section
8 hereof and the provisions of Sections 3, 9, 10 and 12(b) hereof shall survive
any termination of this Agreement and remain in full force and effect.
(b) All representations and warranties included or incorporated by
reference in this Agreement, or the Supplemental Remarketing Agreement, or
contained in certificates of officers of the Company or Duke Capital submitted
pursuant hereto or thereto, shall remain
12
operative and in full force and effect, regardless of any investigation made
by or on behalf of the Remarketing Agent, the Reset Agent or any of their
controlling persons, or by or on behalf of the Company, Duke Capital or the
Purchase Contract Agent, and shall survive the remarketing of the Senior Notes.
Section 13. Successors and Assigns. The rights and obligations of the
----------------------
Company, Duke Capital and the Purchase Contract Agent (both in its capacity as
Purchase Contract Agent and as attorney-in-fact) hereunder may not be assigned
or delegated to any other person without the prior written consent of the
Remarketing Agent and the Reset Agent, except, with respect to the Purchase
Contract Agent, in connection with the appointment of a successor thereto
pursuant to the Purchase Contract Agreement. The rights and obligations of the
Remarketing Agent and the Reset Agent hereunder may not be assigned or delegated
to any other person without the prior written consent of the Company and Duke
Capital, except that the Remarketing Agent shall have the right to appoint
additional remarketing agents as provided herein. This Agreement shall inure to
the benefit of and be binding upon the Company, Duke Capital, the Purchase
Contract Agent, the Remarketing Agent and the Reset Agent and their respective
successors and assigns and the other Indemnified Parties (as defined in Section
10 hereof) and the successors, assigns, heirs and legal representatives of the
Indemnified Parties. The terms "successors" and "assigns" shall not include any
purchaser of Securities or Senior Notes merely because of such purchase.
Section 14. Headings. Section headings have been inserted in this
--------
Agreement and the Supplemental Remarketing Agreement as a matter of convenience
of reference only, and it is agreed that such section headings are not a part of
this Agreement or the Supplemental Remarketing Agreement and will not be used in
the interpretation of any provision of this Agreement or the Supplemental
Remarketing Agreement.
Section 15. Severability. If any provision of this Agreement or the
------------
Supplemental Remarketing Agreement shall be held or deemed to be or shall, in
fact, be invalid, inoperative or unenforceable as applied in any particular case
in any or all jurisdictions because it conflicts with any provisions of any
constitution, statute, rule or public policy or for any other reason, then, to
the extent permitted by law, such circumstances shall not have the effect of
rendering the provision in question invalid, inoperative or unenforceable in any
other case, circumstances or jurisdiction, or of rendering any other provision
or provisions of this Agreement or the Supplemental Remarketing Agreement, as
the case may be, invalid, inoperative or unenforceable to any extent whatsoever.
Section 16. Counterparts. This Agreement and the Supplemental
------------
Remarketing Agreement may be executed in counterparts, each of which shall be
regarded as an original and all of which shall constitute one and the same
document.
Section 17. Amendments. This Agreement and the Supplemental
----------
Remarketing Agreement may be amended by any instrument in writing signed by the
parties hereto. The Company, Duke Capital and the Purchase Contract Agent agree
that they will not enter into, cause or permit any amendment or modification of
the Purchase Contract Agreement, the Pledge Agreement, the Equity Units or any
other instruments or agreements relating to the Equity Units which would
materially and adversely affect the rights, duties or obligations of the
Remarketing
13
Agent or the Reset Agent without the prior written consent of the
Remarketing Agent or the Reset Agent, as the case may be.
Section 18. Amendment of the Remarketing Procedures in the
----------------------------------------------
Supplemental Indenture. The parties agree that without the Remarketing Agent's
----------------------
prior written consent Duke Capital shall not amend the Fourth Supplemental
Indenture or the Senior Notes if such amendment would materially and adversely
affect the rights or obligations of the Remarketing Agent or change the
remarketing procedures applicable to the Senior Notes.
Section 19. Notices. Unless otherwise specified, any notices,
-------
requests, consents or other communications given or made hereunder or pursuant
hereto shall be made in writing or transmitted by any standard form of
telecommunication, including telephone or telecopy, and confirmed in writing.
All written notices and confirmations of notices by telecommunication shall be
deemed to have been validly given or made when delivered or mailed, registered
or certified mail, return receipt requested and postage prepaid. All such
notices, requests, consents or other communications shall be addressed as
follows: if to the Company or Duke Capital, to Duke Energy Corporation, 000
Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Attention: Chief Financial
Officer, with a copy to Xxxxxxx Xxxxxxx & Xxxxxxxx, 000 Xxxxxxxxx Xxxxxx, Xxx
Xxxx, XX 00000, Attention: Xxxxxxx Xxxxxx, Esq.; if to the Remarketing Agent or
Reset Agent, to Xxxxxx Xxxxxxx & Co. Incorporated, 0000 Xxxxxxxx, Xxx Xxxx, XX
00000 Attention: Xxxxx Xxx, with a copy to Sidley Xxxxxx Xxxxx & Xxxx LLP, 000
Xxxxx Xxxxxx, Xxx Xxxx, XX 00000, Attention: Xxxxxx X. Xxxxxx, Xx., Esq.; and if
to the Purchase Contract Agent, to JPMorgan Chase Bank, 000 Xxxx 00x Xxxxxx, Xxx
Xxxx, XX 00000, Attention: Institutional Trust Services, or to such other
address as any of the above shall specify to the other in writing.
Section 20. Information. The Company and Duke Capital agree to furnish
-----------
the Remarketing Agent and the Reset Agent with such information and documents as
the Remarketing Agent or the Reset Agent may reasonably request in connection
with the transactions contemplated by this Remarketing Agreement and the
Supplemental Remarketing Agreement, and make reasonably available to the
Remarketing Agent, the Reset Agent and any accountant, attorney or other advisor
retained by the Remarketing Agent or the Reset Agent such information that
parties would customarily require in connection with a due diligence
investigation conducted in accordance with applicable securities laws and cause
the Company's and Duke Capital's officers, directors, employees and accountants
to participate in all such discussions and to supply all such information
reasonably requested by any such person in connection with such investigation.
14
IN WITNESS WHEREOF, each of the Company, Duke Capital, the
Purchase Contract Agent and the Remarketing Agent has caused this Agreement to
be executed in its name and on its behalf by one of its duly authorized
signatories as of the date first above written.
DUKE ENERGY CORPORATION
By: _______________________________________
Name: Xxxxx X. Xxxxxxxx
Title: Vice President, Corporate Finance
DUKE CAPITAL CORPORATION
By: _______________________________________
Name: Xxxxx X. Xxxxxxxx
Title: Vice President, Corporate Finance
CONFIRMED AND ACCEPTED:
XXXXXX XXXXXXX & CO. INCORPORATED
By: _____________________________
Authorized Signatory
JPMORGAN CHASE BANK
not individually but solely as Purchase Contract Agent
and as attorney-in-fact for the holders of the Purchase Contracts
By: _____________________________
Name:
Title:
Exhibit A to
Remarketing Agreement
Form of Supplemental Remarketing Agreement
Supplemental Remarketing Agreement dated ____________, ____ among Duke
Energy Corporation, a North Carolina corporation (the "Company"), Duke Capital
Corporation, a Delaware corporation and wholly owned subsidiary of the Company
("Duke Capital"), Xxxxxx Xxxxxxx & Co. Incorporated (the "Remarketing Agent"),
and JPMorgan Chase Bank, as Purchase Contract Agent and attorney-in-fact for the
Holders of the Purchase Contracts (as such terms are defined in the Purchase
Contract Agreement referred to in Schedule I hereto)
NOW, THEREFORE, for and in consideration of the covenants herein made
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as follows:
1. Definitions. Capitalized terms used and not defined in this
-----------
Agreement shall have the meanings assigned to them in the Remarketing Agreement
dated as of November 19, 2001 (the "Remarketing Agreement") among the Company,
Duke Capital, the Purchase Contract Agent and Xxxxxx Xxxxxxx & Co. Incorporated.
or, if not defined in the Remarketing Agreement, the meanings assigned to them
in the Purchase Contract Agreement (as defined in Schedule I hereto).
2. Registration Statement and Prospectus. Duke Capital has filed with
-------------------------------------
the Securities and Exchange Commission, and there has become effective, a
registration statement on Form S-3, including a prospectus, relating to the
Securities (as such term is defined on Schedule I hereto). Such Registration
Statement, as amended, and including the information deemed to be a part thereof
pursuant to Rule 430A under the Securities Act of 1933, as amended (the "1933
Act"), and the documents incorporated or deemed to be incorporated by reference
therein, are hereinafter called, collectively, the "Registration Statement";
[the related preliminary prospectus dated ____________, including the documents
incorporated or deemed to be incorporated by reference therein, [and preliminary
prospectus supplement dated ____________] are hereinafter called, [collectively]
the "preliminary prospectus"] and the related prospectus dated ____________,
including the documents incorporated or deemed to be incorporated by reference
therein, [and prospectus supplement dated ___________] are hereinafter called,
[collectively,] the "Prospectus." The Company and Duke Capital have provided
copies of the Registration Statement [, the preliminary prospectus] and the
Prospectus to the Remarketing Agent, and hereby consents to the use of the
[preliminary prospectus] and the Prospectus in connection with the remarketing
of the Securities. [In the event that a Registration Statement is not required,
insert the following: The Company and Duke Capital have provided to the
Remarketing Agent, for use in connection with remarketing of the Securities (as
such term is defined on Schedule I hereto), a [preliminary remarketing
memorandum and] remarketing memorandum and [describe other materials, if any].
Such remarketing, memorandum (including the documents incorporated or deemed to
be incorporated by reference therein, [and] [describe other materials] are
hereinafter called, collectively, the "Prospectus," [and such preliminary
marketing memorandum (including the documents incorporated or deemed to be
incorporated by reference therein) is
A-2
hereinafter called a "preliminary prospectus")]. The Company and Duke Capital
hereby consent to the use of the Prospectus [and the preliminary prospectus] in
connection with the remarketing of the Securities]. All references in this
Agreement to amendments or supplements to the Registration Statement [, the
preliminary prospectus] or the Prospectus shall be deemed to mean and include
the filing of any document under the Securities Exchange Act of 1934, as amended
(the " 1934 Act"), which is incorporated or deemed to be incorporated by
reference in the Registration Statement [, the preliminary prospectus] or the
Prospectus, as the case may be.
3. Provisions Incorporated by Reference.
------------------------------------
(a) Subject to Section 3(b) hereof, the provisions of the
Underwriting Agreement (other than Section 1, Section 3, Section 4, Section 5,
Section 8 and Section 9 thereof) are incorporated herein by reference, mutatis
mutandis, and the Company and Duke Capital hereby make the representations and
warranties, and agrees to comply with the covenants and obligations, set forth
in the provisions of the Underwriting Agreement incorporated by reference
herein, as modified by the provisions of Section 3(b) hereof.
(b) With respect to the provisions of the Underwriting Agreement
incorporated herein, for the purposes hereof, (i) all references therein to the
"Underwriter" or "Underwriters" shall be deemed to refer to the Remarketing
Agent and all references to the "Representative" or the "Representatives" shall
be deemed to refer to Xxxxxx Xxxxxxx & Co. Incorporated ("Xxxxxx Xxxxxxx"); (ii)
all references therein to the "Units" or "Firm Units" shall be deemed to refer
to the Securities as defined herein; (iii) all references therein to the "Time
of Delivery" shall be deemed to refer to the Remarketing Closing Date specified
in Schedule I hereto; (iv) all references therein to the "Registration
Statement," [the "Preliminary Prospectus"] or the "final prospectus" shall be
deemed to refer to the Registration Statement[, the preliminary prospectus] and
the Prospectus, respectively, as defined herein; (v) all references therein to
this "Agreement," the "Underwriting Agreement," "hereof," "herein" and all
references of similar import, shall be deemed to mean and refer to this
Supplemental Remarketing Agreement; (vi) all references therein to "the date
hereof," "the date of this Agreement" and all similar references shall be deemed
to refer to the date of this Supplemental Remarketing Agreement; (vii) all
references therein to any "settlement date" shall be disregarded; and (viii)
[other changes].]
4. Remarketing. Subject to the terms and conditions and in reliance upon
-----------
the representations and warranties herein set forth or incorporated by reference
herein and in the Remarketing Agreement, the Remarketing Agent agrees to use its
reasonable efforts to remarket, in the manner set forth in Section 2(b) of the
Remarketing Agreement, the aggregate principal amount, as the case may be, of
Securities set forth in Schedule I hereto at a purchase price not less than 100%
of the [Minimum Remarketing Price] [aggregate principal amount of the
Securities]. In connection therewith, the registered holder or holders thereof
agree, in the manner specified in Section 5 hereof, to pay to the Remarketing
Agent a Remarketing Fee equal to an amount not exceeding 25 basis points (0.25%)
of [the Minimum Remarketing Price] [such aggregate principal amount,] payable by
deduction from any amount received in connection from such [Initial] [Second]
[Third] [Final] Remarketing in excess of the [Minimum Remarketing Price]
[aggregate principal amount of the Securities]. Pursuant to the Fourth
Supplemental Indenture, right of each holder of Securities to have Securities
tendered for purchase shall be limited to the extent set forth in the last
sentence of Section 2(b) of the Remarketing Agreement
A-3
(which is incorporated by reference herein). As more fully provided in
Section 2(c) of the Remarketing Agreement (which is incorporated by reference
herein), the Remarketing Agent is not obligated to purchase any Securities in
the remarketing or otherwise, and neither the Company nor the Remarketing Agent
shall be obligated in any case to provide funds to make payment upon tender of
Securities for remarketing.
5. Delivery and Payment. Delivery of payment for the remarketed
--------------------
Securities by the purchasers thereof identified by the Remarketing Agent and
payment of the Remarketing Fee shall be made on the Remarketing Closing Date at
the location and time specified in Schedule I hereto (or such later date not
later than five Business Days after such date as the Remarketing Agent shall
designate), which date and time may be postponed by agreement between the
Remarketing Agent and the Company and Duke Capital. Delivery of the remarketed
Securities and payment of the Remarketing Fee shall be made to the Remarketing
Agent against payment by the respective purchasers of the remarketed Securities
of the consideration therefor as specified herein, which consideration shall be
paid to the Collateral Agent for the account of the persons entitled thereto by
certified or official bank check or checks drawn on or by a New York Clearing
House bank and payable in immediately available funds or in immediately
available funds by wire transfer to an account or accounts designated by the
Collateral Agent.
If the Securities are not represented by a Global Security held by or on
behalf of The Depository Trust Company, certificates for the Securities shall be
registered in such names and denominations as the Remarketing Agent may request
not less than one full Business Day in advance of the Remarketing Closing Date,
and the Company, Duke Capital, the Collateral Agent and the registered holder or
holders thereof agree to have such certificates available for inspection,
packaging and checking by the Remarketing Agent in New York, New York not later
than 1:00 p.m. on the Business Day prior to the Remarketing Closing Date.
6. Notices. Unless otherwise specified, any notices, requests, consents or
-------
other communications given or made hereunder or pursuant hereto shall be made in
writing or transmitted by any standard form of telecommunication, including
telephone or telecopy, and confirmed in writing. All written notices and
confirmations of notices by telecommunication shall be deemed to have been
validly given or made when delivered or mailed, by registered or certified mail,
return receipt requested and postage prepaid. All such notices, requests,
consents or other communications shall be addressed as follows: if to the
Company or Duke Capital, to 000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx
00000, Attention: Chief Financial Officer, with a copy to Xxxxxxx Xxxxxxx &
Xxxxxxxx, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX 00000, Attention: Xxxxxxx Xxxxxx,
Esq.; if to the Remarketing Agent, to Xxxxxx Xxxxxxx & Co. Incorporated, 0000
Xxxxxxxx, Xxx Xxxx, XX 00000, Attention: Xxxxx Xxx, with a copy to Sidley Xxxxxx
Xxxxx & Xxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000, Attention: Xxxxxx X.
Xxxxxx, Xx., Esq.; and if to the Purchase Contract Agent, to JPMorgan Chase
Bank, 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, XX 00000, Attention: Institutional Trust
Services, or to such other address as any of the above shall specify to the
other in writing.
7. Conditions to Obligations of Remarketing Agent. Anything herein to the
----------------------------------------------
contrary notwithstanding, the parties hereto agree that the obligations of the
Remarketing Agent under this Agreement and the Remarketing Agreement are subject
to the satisfaction of the conditions set forth in Section 7 of the Remarketing
Agreement (which are incorporated herein by
A-4
reference), and to the satisfaction, on the Remarketing Closing Date, of the
conditions incorporated by reference herein from Section 7 of the Underwriting
Agreement as modified by Section 3(b) hereof (including, without limitation, the
delivery of opinions of counsel, officers' certificates and accountants' comfort
letters as reasonably requested by the Remarketing Agent and in form and
substance reasonably satisfactory to the Remarketing Agent, the accuracy as of
the Remarketing Closing Date of the representations and warranties of the
Company and Duke Capital included and incorporated by reference herein and the
performance by the Company and Duke Capital of their obligations under the
Remarketing Agreement and this Agreement as and when required hereby and
thereby). In addition, anything herein or in the Remarketing Agreement to the
contrary notwithstanding, the Remarketing Agreement and this Agreement may be
terminated by the Remarketing Agent, by notice to the Company and Duke Capital
at any time prior to the time of settlement on the Remarketing Closing Date, if
any of the events or conditions set forth in Section 7(h) of the Underwriting
Agreement, as modified by Section 3(b) hereof, shall have occurred or shall
exist.
8. Indemnity and Contribution. Anything herein to the contrary
--------------------------
notwithstanding, the Remarketing Agent shall be entitled to indemnity and
contribution on the terms and conditions set forth in the Remarketing Agreement.
A-5
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us the enclosed duplicate hereof, whereupon this
letter and your acceptance shall represent a binding agreement among the Company
and the Remarketing Agent.
Very truly yours,
DUKE ENERGY CORPORATION
By: _____________________________________
Name:
Title:
DUKE CAPITAL CORPORATION
By: _____________________________________
Name:
Title:
CONFIRMED AND ACCEPTED:
XXXXXX XXXXXXX & CO. INCORPORATED
By: ___________________________________
Authorized Signatory
[Add other Remarketing Agents, if any]
JPMORGAN CHASE BANK
not individually but solely as Purchase Contract Agent
and as attorney-in-fact for the holders of the Purchase Contracts
By: ___________________________________
Name:
Title:
A-6
SCHEDULE I
Securities subject to the remarketing: 4.32% Senior Notes due 2006 of Duke
Capital (the "Securities").
Purchase Contract Agreement, dated as of November 19, 2001 (the "Purchase
Contract Agreement") by and between Duke Energy Corporation, a North
Carolina corporation, and JPMorgan Chase Bank, a New York banking
corporation.
Pledge Agreement dated as of November 19, 2001 (the "Pledge Agreement") by and
between Duke Energy Corporation, a North Carolina corporation, Bank One
Trust Company, a national banking association, and JPMorgan Chase Bank.
Indenture dated as of April 1, 1998 (the "Senior Indenture") by and between Duke
Capital Corporation, a Delaware corporation, and JPMorgan Chase Bank
(formerly known as The Chase Manhattan Bank), a New York banking
corporation, as trustee.
Fourth Supplemental Indenture, dated as of November 19, 2001
(the "Fourth Supplemental Indenture" and, together with the Senior
Indenture, the "Indenture") by and between Duke Capital Corporation, a
Delaware corporation, and JPMorgan Chase Bank, a New York banking
corporation, as trustee.
[Minimum Remarketing Price]
[Aggregate Principal Amount of Securities: $]
Underwriting Agreement, dated November 13, 2001 (the "Underwriting Agreement")
among Duke Energy Corporation, Duke Capital Corporation and Xxxxxx
Xxxxxxx & Co. Incorporated.
Remarketing Closing Date, Time and Location:
A-7
