EXHIBIT 10
, dated as of November [ ], 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") The Chase Manhattan 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 $ [ ] (or $ [ ] if the Underwriters' (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 [ ], 2001, by and
between the Purchase Contract Agent and the Company (the "Purchase Contract
Agreement"); and
WHEREAS, the Equity Units will initially consist of [ ] (or [ ] if the
Underwriters' 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 $ [ ] (or $ [ ] if the Underwriters' overallotment
option is exercised in full) aggregate principal amount of [ ] % 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 [ ], 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 [ ] , 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 who have elected not to settle the Purchase Contracts
related to their Corporate Units by Cash Settlement 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 that remain outstanding on and after the
Purchase Contract Settlement Date 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;
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 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, and (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 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 [ ] , 2004, in the case of the Initial
Remarketing (as defined below), or the Purchase Contract Settlement Date, in the
case of the Secondary Remarketing (as defined below), 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
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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 [ ] , 2004 and (2) in the case of a Failed
Initial 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. In connection
with the remarketing contemplated hereby, the 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 and (ii) in the event of a Failed Initial
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 Secondary
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 Initial 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,
or the aggregate principal amount of such Senior Notes, in the case of the
Secondary Remarketing. After deducting the fee specified in Section 3 below, the
proceeds of such Initial Remarketing or Secondary Remarketing, as the case may
be, shall be paid to the Collateral Agent in accordance
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with Section 4.6 or 6.3 of the Pledge Agreement and Section 5.3A 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, Secondary 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) and 3.02 (h) and (i) of the Fourth Supplemental Indenture.
Section 3. Fees. In the event of a Successful Initial 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 Initial Remarketing
Price from any amount received in connection with such Initial Remarketing in
excess of the Minimum Initial Remarketing Price. In the event of a Successful
Secondary 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
Secondary 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, or on
the third Business Day immediately preceding the Purchase Contract Settlement
Date, in the case of a Successful Secondary 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. 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 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
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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, 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, 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 [ ] , 2004, (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 [ ] , 2004 (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 [ ] , 2004 in such quantities as the Remarketing Agent may reasonably
request, and shall pay all expenses relating thereto. In the event of a Failed
Initial Remarketing and in connection with the Secondary 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 Secondary 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 Secondary 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
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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
Secondary 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 and the Secondary 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 or Secondary 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, at a price not less than Minimum Initial Remarketing Price, and (2)
in the case of the Secondary 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 and, in the event of a Failed Initial Remarketing, in connection
with the Secondary 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 [ ] , 2004,
in the case of the Initial 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 Secondary
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
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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 [ ] , 2004, in the case of the Initial Remarketing, and prior to the
tenth Business Day before Purchase Contract Settlement Date, in the case of the
Secondary 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, agrees 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
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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 such
Indemnified 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 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 or Failed Secondary 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 or the Secondary
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,
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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 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,
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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 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.
10
(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 [ ] , 2004, in the case of a
Successful Initial Remarketing, or the Business Day immediately following the
Purchase Contract Settlement Date, in the case of a Successful Secondary
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 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
11
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 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, [ ], Attention: [ ] , with a
copy to Sidley Xxxxxx Xxxxx & Xxxx, 000 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000,
Attention: Xxxxxx X. Xxxxxx, Xx., Esq.; and if to the Purchase Contract Agent,
to The Chase Manhattan 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.
12
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.
13
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: [ ]
Title: [ ]
DUKE CAPITAL CORPORATION
By:
---------------------------------------------
Name: [ ]
Title: [ ]
CONFIRMED AND ACCEPTED:
XXXXXX XXXXXXX & CO. INCORPORATED
By:
--------------------------------------
Authorized Signatory
THE CHASE MANHATTAN BANK
not individually but solely as Purchase Contract Agent
and as attorney-in-fact for the holders of the Purchase Contracts
By:
--------------------------------------
Name:
Title:
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:
Title:
DUKE CAPITAL CORPORATION
By:
---------------------------------------------
Name:
Title:
CONFIRMED AND ACCEPTED:
[ ]
By:
--------------------------------------
Authorized Signatory
THE CHASE MANHATTAN 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-2
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 The Chase Manhattan 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 [ ], 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-3
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 Initial 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 Initial Remarketing Price] [such aggregate principal amount,]
payable by deduction from any amount received in connection from such [Initial]
[Secondary] Remarketing in excess of the [Minimum Initial 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 (which is
A-4
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, [ ],
Attention: [ ] , with a copy to Sidley Xxxxxx Xxxxx & Xxxx, 000 Xxxxx Xxxxxx,
Xxx Xxxx, XX 00000, Attention: Xxxxxx X. Xxxxxx, Xx., Esq.; and if to the
Purchase Contract Agent, to The Chase Manhattan 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-5
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-6
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]
THE CHASE MANHATTAN 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-7
SCHEDULE I
Securities subject to the remarketing: [ ] % Senior Notes due 2006 of Duke
Capital (the "Securities").
Purchase Contract Agreement, dated as of November [ ], 2001 (the "Purchase
Contract Agreement") by and between Duke Energy Corporation, a North
Carolina corporation, and The Chase Manhattan Bank, a New York banking
corporation.
Pledge Agreement dated as of November [ ], 2001 (the "Pledge Agreement") by and
between Duke Energy Corporation, a North Carolina corporation, Bank One
Trust Company, a national banking association, and The Chase Manhattan
Bank.
Indenturedated as of [ ] (the "Senior Indenture") by and between Duke Capital
Corporation, a Delaware corporation, and The Chase Manhattan Bank, a New
York banking corporation, as trustee.
Fourth Supplemental Indenture, dated as of November [ ], 2001 (the "Fourth
Supplemental Indenture" and, together with the Senior Indenture, the
"Indenture") by and between Duke Capital Corporation, a Delaware
corporation, and The Chase Manhattan Bank, a New York banking corporation,
as trustee.
[Minimum Initial Remarketing Price]
[Aggregate Principal Amount of Securities: $
Underwriting Agreement, dated November [ ], 2001 (the "Underwriting Agreement")
among Duke Energy Corporation, Duke Capital Corporation, Xxxxxx Xxxxxxx &
Co. Incorporated and [ ]
Remarketing Closing Date, Time and Location:
A-8
