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EXHIBIT 1.1
DUKE ENERGY FIELD SERVICES, LLC
$600,000,000
7 1/2% NOTES DUE 2005
$800,000,000
7 7/8% NOTES DUE 2010
$300,000,000
8 1/8% NOTES DUE 2030
August 10, 2000
GLOBAL UNDERWRITING AGREEMENT
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
J.P. MORGAN SECURITIES INC.
As representatives of the several Underwriters
named in Schedule I hereto,
c/o J.P. Morgan Securities Inc.,
60 Wall Street,
New York, New York 10260-0060
Dear Sirs:
Duke Energy Field Services, LLC, a Delaware limited liability company
(the "Company"), proposes, subject to the terms and conditions stated herein, to
issue and sell to the several underwriters named in Schedule I hereto (the
"Underwriters") $600,000,000 aggregate principal amount of 7 1/2% Notes due 2005
(the "2005 Notes"), $800,000,000 aggregate principal amount of 7 7/8% Notes due
2010 (the "2010 Notes") and $300,000,000 aggregate principal amount of 8 1/8%
Notes due 2030 (the "2030 Notes" and, together with the 2005 and the 2010 Notes,
the "Notes"), to be issued pursuant to the provisions of an Indenture, dated as
of August 16, 2000, between the Company and The Chase Manhattan Bank, as
Trustee, as supplemented by a supplemental indenture dated as of August 16,
2000, relating to the Notes (the "Indenture").
1. The Company represents and warrants to, and agrees with, each of the
Underwriters that:
(a) A registration statement (No. 333-41854) in respect of the Notes
(as amended by Amendment No. 1, filed on August 2, 2000) has been filed on
Form S-3 with the Securities and Exchange Commission (the "Commission")
under the Securities Act of 1933, as amended (the "Act"); such registration
statement and any post-effective amendment thereto, each in the form
heretofore delivered to you, and including exhibits thereto and all
documents incorporated by reference in the prospectus contained therein
(including the Registration Statement on Form 10 (No. 0-31095) (the "Form
10"), as amended on August 2, 2000, filed under the
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Securities Exchange Act of 1934, as amended (the "1934 Act")), has been
declared effective by the Commission in such form; no other document with
respect to such registration statement or any document incorporated by
reference therein has heretofore been filed with the Commission which has
not been delivered to you; no stop order suspending the effectiveness of
such registration statement has been issued and no proceeding for that
purpose has been initiated or threatened by the Commission; and the Company
has filed, or proposes to file, with the Commission pursuant to Rule 424 of
the Act a prospectus supplement specifically relating to the Notes (the
various parts of the registration statement, including all exhibits thereto
and including the documents incorporated by reference in the prospectus
contained in the registration statement at the time such part of the
registration statement became effective, as amended to the date hereof,
being hereinafter called the "Registration Statement"; the related
prospectus contained in the Registration Statement, at the time it became
effective, being hereinafter called the "Basic Prospectus"; and the Basic
Prospectus, as supplemented by the prospectus supplement specifically
relating to the Notes, in the form first used to confirm sales, being
hereinafter called the "Prospectus"; and any reference herein to the
Registration Statement or the Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein, as of the date of
the Registration Statement or Prospectus, as the case may be; any reference
to any amendment or supplement to any Registration Statement or Prospectus
shall be deemed to refer to and include any documents filed after the date
of the Registration Statement or Prospectus under the 1934 Act and
incorporated by reference in such Prospectus; and any reference to any
amendment to the Registration Statement shall be deemed to refer to and
include any report of the Company filed pursuant to Section 13(a) or 15(d)
of the 1934 Act after the effective date of the Registration Statement that
is incorporated by reference in the Registration Statement). If the Company
has filed an abbreviated registration statement to register additional
Notes pursuant to Rule 462(b) under the Act (the "Rule 462 Registration
Statement"), then any reference herein to the term "Registration Statement"
shall be deemed to include such Rule 462 Registration Statement.
(b) No order preventing or suspending the use of the Registration
Statement or Basic Prospectus has been issued by the Commission, and each
of the Registration Statement (at the time it was declared effective) and
the Basic Prospectus (at the time of filing thereof) conformed in all
material respects to the requirements of the Act and the respective rules
and regulations of the Commission thereunder.
(c) The Registration Statement and the Basic Prospectus conform and
the Prospectus will conform in all material respects to the requirements of
the Act and, as applicable, to the Trust Indenture Act of 1939, and the
respective rules and regulations thereunder, and the Registration Statement
and the Prospectus do not and the Prospectus will not include any untrue
statement of a material fact or omit to state any material fact required to
be stated therein or necessary to make the statements therein not
misleading, except that this representation and warranty
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shall not apply to statements or omissions made in any such document in
reliance upon and in conformity with information relating to the
Underwriters furnished in writing to the Company by an Underwriter through
you expressly for use therein.
(d) The documents incorporated by reference in the Registration
Statement or the Prospectus, at the time they were filed with the
Commission, conformed in all material respects to the requirements of the
1934 Act and the rules and regulations of the Commission thereunder (the
"1934 Act Regulations"), and, when read together with the other information
in the Registration Statement and the Prospectus, do not contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading, and any documents deemed to be incorporated by reference in the
Prospectus will, when they are filed with the Commission, comply in all
material respects with the requirements of the 1934 Act and the 1934 Act
Regulations, and will not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they
are made, not misleading.
(e) This Agreement has been duly authorized, executed and delivered by
the Company. The compliance by the Company with all of the provisions of
this Agreement, the Indenture and the Notes, and the consummation of the
transactions herein and therein contemplated, will not conflict with or
result in a breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Company or any
entity in which the Company owns at least 50% of the capital stock or other
interests or voting securities or voting interests (each such entity, a
"subsidiary") is a party or by which the Company or any of its subsidiaries
or their respective property is bound or to which any of the property or
assets of the Company or any of its subsidiaries is subject, in each case
that is material to the Company and its subsidiaries taken as a whole; nor
will such action result in any violation of the provisions of the Restated
Certificate of Formation or the Amended and Restated Limited Liability
Company Agreement and the First Amendment, dated August 4, 2000, thereto of
the Company or similar organizational documents of any of its subsidiaries
or any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company or its
subsidiaries or any of their respective properties; and no consent,
approval, authorization, order, registration or qualification of or with
any such court or governmental agency or body is required for the
consummation by the Company of the transactions contemplated by this
Agreement, the Indenture or the Notes, except the registration under the
Act of the Notes and such consents, approvals, authorizations,
registrations or qualifications as may be required under state or foreign
securities or Blue Sky laws in connection with the purchase and
distribution of the Notes by the Underwriters.
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(f) The Company has been duly formed, is validly existing as a limited
liability company in good standing under the laws of the jurisdiction of
its formation, has the limited liability company power and authority to own
its property and to conduct its business as described in the Prospectus and
is duly qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent that
the failure to be so qualified or be in good standing would not have a
material adverse effect on the Company and its subsidiaries, taken as a
whole.
(g) Each subsidiary has been duly incorporated or formed, is validly
existing as a corporation (or limited liability company, as the case may
be) in good standing under the laws of the jurisdiction of its
incorporation or formation, has the corporate (or limited liability
company) power and authority to own its property and to conduct its
business as described in the Prospectus and is duly qualified to transact
business and is in good standing in each jurisdiction in which the conduct
of its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or
be in good standing or to have such power and authority singly or in the
aggregate would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole; all of the issued shares of capital stock
(or limited liability company interests) of each wholly-owned subsidiary of
the Company have been duly and validly authorized and issued, are fully
paid and non-assessable; and the issued shares of capital stock (or limited
liability company interests) of each subsidiary of the Company that are
owned directly by the Company (or if not owned directly by the Company, are
owned by a subsidiary of the Company), are so owned free and clear of all
liens, encumbrances, equities or claims.
(h) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a whole, from that
set forth in the Prospectus (exclusive of any amendments or supplements
thereto subsequent to the date of this Agreement).
(i) The Company and its subsidiaries: (i) are in compliance with any
and all applicable foreign, federal, state and local laws and regulations
relating to the protection of human health and safety, the environment or
hazardous or toxic substances or wastes, pollutants or contaminants
("Environmental Laws"); (ii) have received all permits, licenses or other
approvals required of them under applicable Environmental Laws to conduct
their respective businesses; and (iii) are in compliance with all terms and
conditions of any such permit, license or approval, except where such
noncompliance with Environmental Laws, failure to receive required permits,
licenses or other approvals or failure to comply with the terms and
conditions of such permits, licenses or approvals would not, singly or in
the aggregate, have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
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(j) There are no costs or liabilities associated with Environmental
Laws (including, without limitation, any capital or operating expenditures
required for clean-up, closure of properties or compliance with
Environmental Laws or any permit, license or approval, any related
constraints on operating activities and any potential liabilities to third
parties) that would, singly or in the aggregate, have a material adverse
effect on the Company and its subsidiaries, taken as a whole.
(k) Deloitte & Touche LLP, Ernst & Young LLP and Arthur Andersen LLP,
who have certified certain financial statements of the Company, its
subsidiaries and predecessors, are independent public accountants as
required by the Act and the rules and regulations of the Commission
thereunder.
(l) The Company and its subsidiaries have good and marketable title to
all real property and beneficial or record title to or interest in all
pipeline easements, rights of way, licenses and land use permits owned by
them, except where such failure would not, singly or in the aggregate, have
a material adverse effect on the Company and its subsidiaries taken as a
whole, in each case free and clear of all liens, encumbrances and defects
except (i) such as are described in the Prospectus and (ii) liens securing
taxes and other governmental charges or claims of materialmen, mechanics
and similar persons that are not yet due and payable and that do not
materially affect the value of such property and do not materially
interfere with the use made and proposed to be made of such property by the
Company and its subsidiaries; and any real property and buildings held
under lease by the Company and its subsidiaries are held by them under
leases that are valid, existing and in full force and effect, except as
described in the Prospectus or where the failure to be valid, existing and
in full force and effect would not have a material adverse effect on the
Company and its subsidiaries, taken a whole.
(m) Except as described in the Registration Statement or the
Prospectus, the Company and its subsidiaries possess all certificates,
authorizations and permits issued by the appropriate federal, state or
foreign regulatory authorities necessary to conduct their respective
businesses except where such failure to possess required certificates,
authorizations and permits would not, singly or in the aggregate, have a
material adverse effect on the Company and its subsidiaries, taken as a
whole, and neither the Company nor any of its subsidiaries has received any
notice of proceedings relating to the revocation or modification of any
such certificate, authorization or permit that, singly or in the aggregate,
if the subject of an unfavorable decision, ruling or finding, would have a
material adverse effect on the Company and its subsidiaries, taken as a
whole.
(n) There are no legal or governmental proceedings pending or to the
Company's knowledge threatened to which the Company or any of its
subsidiaries is a party or to which any of the properties of the Company or
any of its subsidiaries is subject that are required to be described in the
Registration Statement or the Prospectus and are not so described or any
statutes, regulations, contracts or other documents that are required to be
described in the Registration
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Statement or the Prospectus or to be filed as exhibits to the Registration
Statement that are not described or filed as required.
(o) No material labor dispute with the employees of the Company or any
of its subsidiaries exists, except as described in the Registration
Statement or the Prospectus, or, to the knowledge of the Company, is
imminent.
(p) There are no contracts, agreements or understandings between the
Company and any person granting such person the right to require the
Company (i) to file a registration statement under the Act with respect to
any securities of the Company (except for contracts, agreements or
understandings described in the Registration Statement or the Prospectus)
or (ii) to include any such securities with the Notes registered pursuant
to the Registration Statement.
(q) The statements from the Form 10 under the caption "Item 7. Certain
Relationships and Related Transactions" incorporated by reference in the
Prospectus and the statements in the Registration Statement under the
caption "Description of Debt Securities" and in the Prospectus under the
caption "Description of the Notes", in each case insofar as such statements
constitute summaries of the documents or proceedings referred to therein,
fairly present the information called for with respect to such documents
and proceedings and fairly summarize the matters referred to therein.
(r) The Company is not a "holding company", or a "public-utility
company", or a "subsidiary company" of a "holding company", as each such
term is defined in the Public Utility Holding Company Act of 1935, as
amended.
(s) The limited liability company member interests outstanding prior
to the issuance of the Notes have been duly authorized and are validly
issued.
(t) The Indenture has been duly authorized and duly qualified under
the Trust Indenture Act of 1939 and when executed and delivered by the
Company, assuming the due authorization, execution and delivery thereof by
The Chase Manhattan Bank, as Trustee, will constitute a valid and legally
binding instrument of the Company, enforceable against the Company in
accordance with its terms, subject to the qualifications that the
enforceability of the Company's obligations under the Indenture may be
limited by bankruptcy, insolvency, reorganization, moratorium and other
similar laws relating to or affecting creditors' rights generally, and by
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
(u) The Notes have been duly authorized, and when executed by the
Company and, when authenticated by The Chase Manhattan Bank, as Trustee, in
the manner provided in the Indenture and delivered against payment
therefor, will constitute valid and legally binding obligations of the
Company, enforceable against the Company in accordance with their terms,
subject to the qualifications that the enforceability of the Company's
obligations under the Notes may be
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limited by bankruptcy, insolvency, reorganization, moratorium and other
similar laws relating to or affecting creditors' rights generally, and by
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law), and will be entitled to
the benefits afforded by the Indenture in accordance with the terms of the
Indenture and the Notes.
2. Subject to the terms and conditions herein set forth, the Company agrees
to sell to each of the Underwriters, and each of the Underwriters agrees,
severally and not jointly, to purchase from the Company the respective principal
amount of each series of Notes, as applicable, set forth opposite the name of
such Underwriter in Schedule I hereto, plus the respective principal amount of
additional Notes of each series, as applicable, which each such Underwriter may
become obligated to purchase pursuant to the provisions of Section 9 hereof, at
a purchase price of (i) 99.023% of the principal amount of the 2005 Notes, (ii)
99.234% of the principal amount of the 2010 Notes and 98.768% of the principal
amount of the 2030 Notes, plus, in each case, accrued interest from August 16,
2000.
3. Upon the authorization by you of the release of the Notes, the several
Underwriters propose to offer the Notes for sale upon the terms and conditions
set forth in the Prospectus.
4. The 2005 Notes, the 2010 Notes and the 2030 Notes, in each case, in the
form of one or more global certificates and in aggregate denominations equal to
the aggregate amount of each series of Notes, as applicable, upon original
issuance and registered in the name of Cede & Co., as nominee for The Depository
Trust Company ("DTC") or such other nominees as the Underwriters may designate
upon at least 48 hours' prior notice to the Company, shall be delivered by or on
behalf of the Company to you for the account of each Underwriter hereunder,
against payment by such Under-writer or on its behalf of the purchase price
therefor by wire transfer in immediately available funds to an account of the
Company properly identified at least 48 hours in advance, at the office of
Sullivan & Cromwell, 125 Broad Street, New York, New York 10004 or at such other
place as you and the Company may determine. The time and date of such delivery
and payment shall be, with respect to each series of Notes, 9:30 a.m., New York
City time, on August 16, 2000, or such other time and date as you and the
Company may agree upon in writing (the "Closing Date").
5. The Company covenants and agrees with the several Underwriters that:
(a) Before amending or supplementing the Registration Statement or the
Prospectus, to furnish to you a copy of each such proposed amendment or
supplement and not to file any such proposed amendment or supplement to
which you reasonably object, and to file with the Commission within the
applicable period specified in Rule 424(b) under the Act any prospectus
required to be filed pursuant to such Rule.
(b) The Company will advise you promptly after it receives notice
thereof of the institution by the Commission of any stop order proceedings
in respect of
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the Registration Statement, and will use its best efforts to prevent the
issuance of any such stop order and to obtain as soon as possible its
withdrawal, if issued.
(c) If at any time when a prospectus relating to the Notes is required
to be delivered under the Act any event occurs as a result of which the
Prospectus as then amended or supplemented would include an untrue
statement of a material fact, or omit to state any material fact necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading, or if it is necessary at any time to
amend the Prospectus to comply with the Act, the Company promptly will
prepare and, subject to Section 5(a), file with the Commission an
amendment, supplement or an appropriate document that will correct such
statement or omission or that will effect such compliance.
(d) The Company, during the period when a prospectus relating to the
Notes is required to be delivered under the Act, will timely file all
documents required to be filed with the Commission pursuant to Section 13
or 14 of the 1934 Act.
(e) The Company will make generally available to its security holders,
in each case as soon as practicable but not later than 60 days after the
close of the period covered thereby, an earnings statement (in form
complying with the provisions of Section 11(a) of the Act, which need not
be certified by independent certified public accountants unless required by
the Act) covering (i) a 12 month period beginning not later than the first
day of the Company's fiscal quarter next following the effective date of
the Registration Statement and (ii) a 12 month period beginning not later
than the first day of the Company's fiscal quarter next following the date
of this Agreement.
(f) The Company will furnish to you copies of the Registration
Statement (three of which will be signed and will include all exhibits
other than those incorporated by reference), the Prospectus, and all
amendments and supplements to such documents, in each case as soon as
available and in such quantities as you reasonably request.
(g) The Company will arrange or cooperate in arrangements for the
qualification of the Notes for sale under the laws of the United States,
each State thereof, the District of Columbia and such jurisdictions as you
reasonably designate and will continue such qualifications in effect so
long as required for the distribution; provided, however, that the Company
shall not be required to qualify as a foreign company or to file any
general consents to service of process under the laws of any state where it
is not now so subject.
(h) The Company will not, during the period of seven days from the
date hereof, sell, offer to sell, grant any option for the sale of, or
otherwise dispose of any Notes, any security convertible into or
exchangeable for the Notes or any debt security substantially similar to
the Notes (except for the Notes issued pursuant to this Agreement), without
your prior written consent.
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6. The Company covenants and agrees with the several Underwriters that the
Company will pay or cause to be paid the following:
(a) The fees, disbursements and expenses of the Company's counsel and
accountants in connection with the registration of the Notes under the Act
and all other expenses in connection with the preparation, printing and
filing with the Commission of the Registration Statement, the Prospectus
and amendments and supplements thereto and the mailing and delivering of
copies thereof to the Underwriters and dealers.
(b) The cost of printing or producing any Agreement among
Underwriters, this Agreement, the Indenture, the Selling Agreements, the
Blue Sky memorandum, closing binders and any other documents in connection
with the offering, purchase, sale and delivery of the Notes.
(c) All expenses in connection with the qualification of the Notes for
offering and sale under state securities laws as provided in Section 5(g)
hereof, including the fees and disbursements of counsel for the
Underwriters in connection with such qualification and in connection with
the Blue Sky survey.
(d) The filing fees and the reasonable fees and disbursements of
counsel to the Underwriters incident to securing any required review by the
National Association of Securities Dealers, Inc. of the terms of the sale
of the Notes.
(e) The costs of any depository clearing and settlement arrangements
for the Notes with DTC or any successor depository.
(f) All expenses incident to the issuance and delivery of the Notes as
specified herein.
(g) Any fees charged by independent rating agencies for rating the
Notes.
(h) The costs and expenses of the Company relating to investor
presentations on any "road show" undertaken in connection with the
marketing of the offering of the Notes, including, without limitation,
expenses associated with the production of road show slides and graphics,
fees and expenses of any consultants engaged in connection with the road
show presentations with the prior approval of the Company, travel and
lodging expenses of the representatives and officers of the Company and any
such consultants, and the cost of any aircraft chartered in connection with
the road show.
(i) All other costs and expenses (other than as provided for in
Section 8) incident to the performance of the Company's obligations
hereunder that are not otherwise specifically provided for in this Section.
It is understood that, except as provided in this Section and Sections 8
and 10 hereof, the Underwriters will pay all of their own costs and
expenses, including the fees of their counsel, and any advertising expenses
connected with any offers they may make.
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7. The obligations of the Underwriters to purchase and pay for the Notes
shall be subject, in their discretion, to the condition that all representations
and warranties of the Company herein and the statements of the officers of the
Company made pursuant to the provisions hereof are, at and as of the Closing
Date, true and correct, the condition that the Company shall have performed all
of its obligations hereunder theretofore to be performed, and the following
additional conditions:
(a) The Prospectus shall have been filed, if required, with the
Commission pursuant to Rule 424(b) within the applicable time period
prescribed for such filing by the rules and regulations under the Act; no
stop order suspending the effectiveness of the Registration Statement or
any part thereof shall have been issued and no proceeding for that purpose
shall have been initiated or, to the knowledge of the Company, threatened
by the Commission; and all requests for additional information on the part
of the Commission shall have been complied with to your reasonable
satisfaction.
(b) Sullivan & Cromwell, counsel for the Underwriters, shall have
furnished to you such opinion or opinions, dated the Closing Date,
generally with respect to the matters set forth in clause (c)(i), (c)(ii),
(c)(iii) and (c)(vi) and with respect to such other matters as are
reasonably requested by you, and such counsel shall have received such
papers and information as they may reasonably request to enable them to
pass upon such matters.
(c) Vinson & Elkins LLP, counsel for the Company, shall have furnished
to you its written opinion, dated the Closing Date, in form and substance
satisfactory to you, to the effect that:
(i) The Company is validly existing as a limited liability
company in good standing under the laws of the jurisdiction of its
formation, and has the limited liability company power and authority
to own its property and to conduct its business as described in the
Prospectus.
(ii) The Indenture has been duly authorized, executed and
delivered by the Company and duly qualified under the Trust Indenture
Act of 1939 and, assuming the due authorization, execution and
delivery thereof by The Chase Manhattan Bank, as Trustee, constitutes
a valid and legally binding instrument of the Company, enforceable
against the Company in accordance with its terms, subject to the
qualifications that the enforceability of the Company's obligations
under the Indenture may be limited by bankruptcy, insolvency,
reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally, and by general principles of
equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law).
(iii) The Notes have been duly authorized and executed by the
Company and, when authenticated by The Chase Manhattan Bank, as
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Trustee, in the manner provided in the Indenture and delivered against
payment therefor, will constitute valid and legally binding
obligations of the Company, enforceable against the Company in
accordance with their terms, subject to the qualifications that the
enforceability of the Company's obligations under the Notes may be
limited by bankruptcy, insolvency, reorganization, moratorium and
other similar laws relating to or affecting creditors' rights
generally, and by general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at
law), and are entitled to the benefits afforded by the Indenture in
accordance with the terms of the Indenture and the Notes.
(iv) Each "Significant Subsidiary" of the Company (as such term
is defined in Rule 1-02 of Regulation S-X) (each a "Significant
Subsidiary" and, collectively, the "Significant Subsidiaries") is
validly existing as a corporation (or limited liability company, as
the case may be) in good standing under the laws of the jurisdiction
of its incorporation or formation, and has the corporate (or limited
liability company) power and authority to own its property and to
conduct its business as described in the Prospectus.
(v) The Registration Statement has become effective under the
Act, and, to the knowledge of such counsel, no stop order suspending
the effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been instituted or are pending or
threatened under the Act.
(vi) This Agreement has been duly authorized, executed and
delivered by the Company.
(vii) The performance by the Company of this Agreement, the
Indenture and the Notes, and the consummation of the transactions
herein and therein contemplated will not contravene any of the
provisions or constitute a default under, any indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument to
which the Company or any of its subsidiaries is a party that in each
case has been filed as an exhibit to the Registration Statement or any
of the provisions of the Restated Certificate of Formation or the
Amended and Restated Limited Liability Company Agreement and the First
Amendment, dated August 4, 2000, thereto of the Company.
(viii) The Company is not and, after giving effect to the
offering and sale of the Notes and the application of the proceeds
thereof as described in the Prospectus, will not be required to
register as an "investment company" under the Investment Company Act
of 1940, as amended.
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(ix) The Company is not, and after giving effect to the offering
and sale of the Notes and the application of the proceeds thereof as
described in the Prospectus will not be, required to register as a
"holding company" under the Public Utility Holding Company Act of
1935, as amended.
(x) No authorization, approval, consent, order, registration or
qualification of or with any court or governmental agency or body is
legally required for the issue and sale of the Notes or the
consummation by the Company of the transactions contemplated by this
Agreement or the Indenture, except the registration under the Act of
the Notes and the qualification of the indenture under Trust Indenture
Act of 1939, and such consents, approvals, authorizations, orders,
registrations and qualifications as may be required under state or
foreign securities or Blue Sky laws in connection with the purchase
and distribution of the Notes by the Underwriters.
(xi) The descriptions incorporated by reference in the
Registration Statement and Prospectus from the Form 10 of legal or
governmental proceedings under the captions "Item 1.
Business-Regulation" and "Item 1. Business-Environmental Matters" are
accurate and fairly present the information required to be shown and
such counsel does not know of any other legal or governmental
proceedings required to be described in the Registration Statement or
Prospectus that are not described as required.
(xii) The Registration Statement as of the date of effectiveness
under the Act and the Prospectus as of the date it was filed with, or
transmitted for filing to, the Commission (in each case, other than
the financial statements and other financial information included
therein, as to which no opinion need be rendered) appeared on their
face to comply as to form in all material respects with the
requirements of the Act and the Trust Indenture Act of 1939 and the
respective rules and regulations thereunder, and nothing has come to
their attention that would lead them to believe that the Registration
Statement as of the date of effectiveness under the Act (or if an
amendment to such Registration Statement has been filed by the Company
with the Commission subsequent to the effectiveness of the
Registration Statement, then at the time of the most recent such
filing) contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading or that the Prospectus as
of the date it was filed with, or transmitted for filing to, the
Commission and at the Closing Date contained or contains an untrue
statement of a material fact or omitted or omits to state a material
fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading.
-12-
<PAGE> 13
(xiii) The statements made in the Registration Statement under
the caption "Description of Debt Securities" and in the Prospectus
under the caption "Description of the Notes", insofar as they purport
to constitute summaries of the terms of the Notes, and in the
Prospectus under the caption "Underwriting" and the statements
incorporated by reference in the Registration Statement and the
Prospectus from the Form 10 under the caption "Item 7. Certain
Relationships and Related Transactions" insofar as they purport to
constitute summaries of the legal matters and documents referred to
therein, are accurate in all material respects.
In rendering such opinion, such counsel may state that they express no
opinion as to the laws of any jurisdiction other than the State of Texas,
the State of New York, the General Corporation Law and the Limited
Liability Company Act of the State of Delaware and the federal laws of the
United States.
(d) Martha Wyrsch, General Counsel to the Company, shall have
furnished to you her written opinion dated the Closing Date, in form and
substance satisfactory to you, to the effect that:
(i) Each of the Company and its subsidiaries is validly existing
as a corporation (or limited liability company, as the case may be),
is in good standing under the laws of the jurisdiction of its
incorporation or formation, has the corporate (or limited liability
company) power and authority to own its property and to conduct its
business as described in the Prospectus and is duly qualified to
transact business and is in good standing in each jurisdiction in
which the conduct of its business or its ownership or leasing of
property requires such qualification, except to the extent that the
failure to be so qualified or be in good standing would not have a
material adverse effect on the Company and its subsidiaries, taken as
a whole.
(ii) The performance by the Company of this Agreement, the
Indenture and the Notes, and the consummation of the transactions
herein and therein contemplated will not, to the best knowledge of
such counsel, contravene any of the provisions or constitute a default
under any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Company or any of its
subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or assets of the
Company or any of its subsidiaries is subject other than such
contraventions or default as would not have a material adverse effect
on the Company and its subsidiaries taken as a whole, nor will such
action, to the best knowledge of such counsel, contravene any of the
provisions of the Certificate of Incorporation or By-Laws or similar
organizational documents of any of its subsidiaries or to the best
knowledge of such counsel any statute or any order, rule or regulation
of any court or governmental agency or body having jurisdiction over
the
-13-
<PAGE> 14
Company or any of its properties (except that no opinion is expressed
as to federal securities laws or other anti-fraud laws) other than
such contraventions as would not have a material adverse effect on the
Company and its subsidiaries taken as a whole or a material adverse
effect on the interests of the holders of the Notes.
(iii) The outstanding limited liability company member interests
of the Company have been duly authorized and issued.
(iv) The descriptions in or incorporated by reference in the
Registration Statement and Prospectus of legal or governmental
proceedings are accurate and fairly present the information required
to be shown and such counsel does not know of any litigation or any
legal or governmental proceedings instituted or threatened in writing
against the Company or any of its subsidiaries or any of their
respective properties that would be required to be described in the
Registration Statement or Prospectus and that are not described as
required.
(e) As of the date of this Agreement and also at the Closing Date,
Deloitte & Touche LLP and Ernst & Young LLP and Arthur Andersen LLP shall
have furnished to you a letter or letters, dated the respective date of
delivery thereof in form and substance satisfactory to you, to the effect
set forth in Annex I hereto.
(f) Since the respective dates as of which information is given in the
Prospectus and up to the Closing Date, there shall not have been any change
or any development involving a prospective change, in the condition,
financial or otherwise, or in the earnings, business or operations of the
Company and its subsidiaries, taken as a whole, from that set forth in the
Prospectus (exclusive of any amendments or supplements thereto subsequent
to the date of this Agreement) and since such dates and up to the Closing
Date, the effect of which is, in your judgment, so material and adverse as
to make it, in your judgment, impracticable or inadvisable to proceed with
the public offering or the delivery of the Notes at the Closing Date on the
terms and in the manner contemplated in the Prospectus.
(g) As of the Closing Date, each of Standard & Poor's Ratings Services
and Fitch IBCA, Inc. have assigned a BBB rating and Moody's Investors
Service, Inc. has assigned a Baa2 rating to the Notes.
(h) There shall not have occurred any downgrading, nor shall any
notice have been given of any intended or potential downgrading or of any
review for a possible change that does not indicate the direction of the
possible change, in the rating accorded the securities of the Company by
any "nationally recognized statistical rating organization", as such term
is defined for purposes of Rule 436(g)(2) under the Act.
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<PAGE> 15
(i) On or after the date hereof there shall not have occurred any of
the following: (i) a suspension or material limitation in trading in
securities generally or of the securities of the Company or Duke Capital
Corporation on the New York Stock Exchange; (ii) a general moratorium on
commercial banking activities in New York declared by either Federal or New
York State authorities; (iii) the outbreak or material escalation of
hostilities involving the United States, or an outbreak or material
escalation of hostilities not involving the United States that could
adversely affect the public offering, or the declaration by the United
States of a national emergency or war; or (iv) any change in financial
markets or any calamity or crisis, if the effect of any such event
specified in these clauses (i) through (iv) in your judgment makes it
impracticable or inadvisable to proceed with the public offering or the
delivery of the Notes on the Closing Date on the terms and in the manner
contemplated in the Prospectus.
(j) The Company shall have furnished or caused to be furnished to you
at the Closing Date certificates of officers of the Company satisfactory to
you as to the accuracy of the representations and warranties of the Company
herein at and as of the Closing Date, as to the performance by the Company
of all of its obligations hereunder to be performed at or prior to the
Closing Date, and as to such other matters relating to the transactions
contemplated herein as you may reasonably request, and the Company shall
have furnished or caused to be furnished certificates as to the matters set
forth in subsections (a), (f), (g) and (h) of this Section, and as to such
other matters relating to the transactions contemplated herein as you may
reasonably request.
(k) As of the Closing Date, the Company shall have furnished or caused
to be furnished to you a certificate of the Company's officer(s) relating
to certain financial and factual data, dated the Closing Date, in form and
substance satisfactory to you.
8. (a) The Company agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within
the meaning of Section 15 of the Act or Section 20 of the 1934 Act, as
follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement (or any amendment thereto), or the omission or alleged
omission therefrom of a material fact required to be stated therein or
necessary to make the statements therein not misleading or arising out
of any untrue statement or alleged untrue statement of a material fact
contained in any preliminary prospectus, the prospectus constituting a
part of the Registration Statement in the form in which it became
effective or the Prospectus (or any amendment or supplement thereto)
or the omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
-15-
<PAGE> 16
(ii) against any and all loss, liability, claim, damage and
expense whatsoever to the extent of the aggregate amount paid in
settlement of any litigation, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission or any
such alleged untrue statement or omission, if such settlement is
effected with the written consent of the Company; and
(iii) against any and all expense whatsoever reasonably incurred
in investigating, preparing or defending against any litigation,
commenced or threatened, or any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under (i) or
(ii) above;
unless in each case of (i), (ii) or (iii) above such statement or omission
or such alleged statement or omission was made in reliance upon and in
conformity with the information relating to the Underwriters furnished in
writing to the Company by an Underwriter through you expressly for use in
the Registration Statement (or any amendment thereto) or the Prospectus (or
any amendment or supplement thereto).
In no case shall the Company be liable under this indemnity agreement
with respect to any claim made against any Underwriter or any such
controlling person unless the Company shall be notified in writing of the
nature of the claim within a reasonable time after the assertion thereof,
but failure so to notify the Company shall not relieve it from any
liability which it may have otherwise than on account of this indemnity
agreement. The Company shall be entitled to participate at its own expense
in the defense, or, if it so elects, within a reasonable time after receipt
of such notice, to assume the defense of any suit brought to enforce any
such claim, but if it so elects to assume the defense, such defense shall
be conducted by counsel chosen by it and approved by the Underwriter or
Underwriters or controlling person or persons, defendant or defendants in
any suit so brought, which approval shall not be unreasonably withheld. In
any such suit, any Underwriter or any such controlling person shall have
the right to employ its own counsel, but the fees and expenses of such
counsel shall be at the expense of such Underwriter or such controlling
person unless (i) the Company and such Underwriter shall have mutually
agreed to the employment of such counsel or (ii) the named parties to any
such action (including any impleaded parties) include both such Underwriter
or such controlling person and the Company and such Underwriter or such
controlling person shall have been advised by such counsel that a conflict
of interest between the Company and such Underwriter or such controlling
person may arise and for this reason it is not desirable for the same
counsel to represent both the indemnifying party and also the indemnified
party (it being understood, however, that the Company shall not, in
connection with any one such action or separate but substantially similar
or related actions in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the reasonable fees and
expenses of more than one separate firm of attorneys (in addition to any
local counsel) for all such Underwriters and all such
-16-
<PAGE> 17
controlling persons, which firm shall be designated in writing by you). The
Company agrees to notify you within a reasonable time of the assertion of
any claim against it, any of its officers or directors or any person who
controls the Company within the meaning of Section 15 of the Act or Section
20 of the 1934 Act, in connection with the sale of the Notes.
(b) Each Underwriter severally agrees to indemnify and hold harmless
the Company, each of its directors and each of the Company's officers who
signed the Registration Statement and each person, if any, who controls the
Company within the meaning of Section 15 of the Act or Section 20 of the
1934 Act, to the same extent as the indemnity contained in subsection (a)
of this Section, but only with respect to statements or omissions made in
the Registration Statement (or any amendment thereto) or the Prospectus (or
any amendment or supplement thereto) in reliance upon and in conformity
with the information relating to the Underwriters furnished in writing to
the Company by such Underwriter through you expressly for use in the
Registration Statement (or any amendment thereto) or the Prospectus (or any
amendment or supplement thereto). In case any action shall be brought
against the Company or any person so indemnified based on the Registration
Statement (or any amendment thereto) or the Prospectus (or any amendment or
supplement thereto) and in respect of which indemnity may be sought against
any Underwriter, such Underwriter shall have the rights and duties given to
the Company, and the Company and each person so indemnified shall have the
rights and duties given to the Underwriters, by the provisions of
subsection (a) of this Section.
(c) No indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is or could have been
a party and indemnity could have been sought hereunder by such indemnified
party, unless such settlement includes an unconditional release of such
indemnified party from all liability on claims that are the subject matter
of such proceeding.
(d) To the extent the indemnification provided for in Sections 8(a) or
8(b) is unavailable to an indemnified party or insufficient in respect of
any losses, claims, damages or liabilities referred to therein, then each
indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims,
damages or liabilities in such proportion as is appropriate to reflect not
only the relative benefits received by the Company on the one hand and the
Underwriters on the other hand from the offering of the Notes but also the
relative fault of the Company on the one hand and of the Underwriters on
the other hand in connection with the statements or omissions that resulted
in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative benefits received by the
Company on the one hand and the Underwriters on the other hand in
connection with the offering of the Notes shall be deemed to be in the same
respective proportions as the net proceeds from the offering of the Notes
(before deducting expenses)
-17-
<PAGE> 18
received by the Company and the total underwriting discounts and
commissions received by the Underwriters, in each case as set forth in the
table on the cover of the Prospectus, bear to the aggregate Public Offering
Price of the Notes. The relative fault of the Company on the one hand and
the Underwriters on the other hand 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 or by the Underwriters and
the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The
Underwriters' respective obligations to contribute pursuant to this Section
8 are several in proportion to the respective principal amount of Notes
they have purchased hereunder, and not joint.
(e) The Company and the Underwriters agree that it would not be just
or equitable if contribution pursuant to this Section 8 were determined by
pro rata allocation (even if the Underwriters were treated as one entity
for such purpose) or by any other method of allocation that does not take
account of the equitable considerations referred to in Section 8(d). The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, 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 8, no Underwriter
shall be required to contribute any amount in excess of the amount by which
the total price at which the Notes underwritten by it and distributed to
the public were offered to the public exceeds the amount of any damages
that such Underwriter has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The remedies
provided for in this Section 8 are not exclusive and shall not limit any
rights or remedies which may otherwise be available to any indemnified
party at law or in equity.
(f) The indemnity and contribution provisions contained in Section 8
and the representations, warranties and other statements of the Company
contained in this Agreement shall remain operative and in full force and
effect regardless of: (i) any termination of this Agreement; (ii) any
investigation made by or on behalf of any Underwriter or any person
controlling any Underwriter or by or on behalf of the Company, its officers
or directors or any person controlling the Company; and (iii) acceptance of
and payment for any of the Notes.
9. The Agreement shall become effective upon the execution and delivery
hereof by the parties hereto.
(a) If any Underwriter shall default in its obligation to purchase the
principal amount of Notes that it has agreed to purchase hereunder on the
Closing
-18-
<PAGE> 19
Date, you may in your discretion arrange for you or another party or other
parties to purchase such principal amount of Notes on the terms contained
herein. If within thirty-six hours after such default by any Underwriter,
you notify the Company that you have so arranged for the purchase of such
principal amount of Notes, you shall have the right to postpone the Closing
Date for a period of not more than seven days, in order to effect whatever
changes may thereby be made necessary in the Registration Statement or the
Prospectus, or in any other documents or arrangements, and the Company
agrees to file promptly any amendments to the Registration Statement or the
Prospectus that may be required. The term "Underwriter" as used in this
Agreement shall include any person substituted under this Section with like
effect as if such person had originally been a party to this Agreement with
respect to such principal amount of Notes.
(b) If, after giving effect to any arrangements for the purchase of
the Notes of a defaulting Underwriter or Underwriters as provided in
subsection (a) above, the aggregate principal amount of such Notes that
remains unpurchased does not exceed 10% of the aggregate principal amount
of all the Notes to be purchased at the Closing Date, then the Company
shall have the right to require each non-defaulting Underwriter to purchase
the principal amount of Notes that such Underwriter agreed to purchase
hereunder at the Closing Date and, in addition, to require each
non-defaulting Underwriter to purchase its pro rata share (based on the
principal amount of Notes that such Underwriter agreed to purchase
hereunder) of the principal amount of Notes of such defaulting Underwriter
or Underwriters for which such arrangements have not been made; but nothing
herein shall relieve a defaulting Underwriter from liability for its
default.
(c) If, after giving effect to any arrangements for the purchase of
the principal amount of Notes of a defaulting Underwriter or Underwriters
by you as provided in subsection (a) above, the aggregate principal amount
of such Notes that remains unpurchased exceeds 10% of the aggregate
principal amount of all the Notes to be purchased at the Closing Date, or
if the Company shall not exercise the right described in subsection (b)
above to require non-defaulting Underwriters to purchase Notes of a
defaulting Underwriter or Underwriters, then this Agreement shall thereupon
terminate, without liability on the part of any non-defaulting Underwriter
or the Company, except for the expenses to be borne by the Company and the
Underwriters as provided in Section 6 hereof and the indemnity agreement in
Section 8 hereof; but nothing herein shall relieve a defaulting Underwriter
from liability for its default.
10. If this Agreement shall be terminated pursuant to Section 9 hereof, the
Company shall not be under any liability to any Underwriter except as provided
in Section 6 and Section 8 hereof; but, if for any other reason any Notes are
not delivered by or on behalf of the Company as provided herein, the Company
will reimburse the Underwriters through you for all out-of-pocket expenses
approved in writing by you, including fees and disbursements of counsel,
reasonably incurred by the Underwriters in making preparations for the purchase,
sale and delivery of the Notes not so delivered, but
-19-
<PAGE> 20
the Company shall then be under no further liability to any Underwriter in
respect of the Notes not so delivered except as provided in Sections 6 and 8
hereof.
11. All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail or
facsimile transmission to you as the representatives in care of J.P. Morgan
Securities Inc., 60 Wall Street, New York, NY 10260-0060, Attention: Steven
Christensen (facsimile: 212-648-5939) (with a copy to Merrill Lynch, Pierce,
Fenner & Smith Incorporated, 250 Vesey Street, New York, NY 10281, Attention:
Jack Sconzo (facsimile: 212-449-2760)); and if to the Company shall be delivered
or sent by mail or facsimile transmission to the address of the Company set
forth in the Registration Statement, Attention: Secretary; provided, however,
that any notice to an Underwriter pursuant to Section 8(a) hereof shall be
delivered or sent by mail or facsimile transmission to such Underwriter at its
address or facsimile number set forth in its Underwriters' Questionnaire or
telex or facsimile constituting such Questionnaire, which address or facsimile
number will be supplied to the Company by you upon request. Any such statements,
requests, notices or agreements shall take effect upon receipt thereof.
This Agreement shall be binding upon, and inure solely to the benefit of,
the Underwriters, the Company and, to the extent provided in Section 8 hereof,
the officers and directors of the Company, and each person who controls the
Company or any Underwriter, and their respective heirs, executors,
administrators, successors and assigns, and no other person shall acquire or
have any right under or by virtue of this Agreement. No purchaser of any of the
Notes from any Underwriter shall be deemed a successor or assign by reason
merely of such purchase.
As used herein, the term "business day" shall mean any day when the
Commission's office in Washington, D.C. is open for business.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK.
This Agreement may be executed by any one or more of the parties hereto in
any number of counterparts, each of which shall be deemed to be an original, but
all such counterparts shall together constitute one and the same instrument.
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<PAGE> 21
If the foregoing is in accordance with your understanding, please sign and
return to us eight counterparts hereof, and upon the acceptance hereof by you,
on behalf of each of the Underwriters, this letter and such acceptance hereof
shall constitute a binding agreement among each of the Underwriters and the
Company. It is understood that your acceptance of this letter on behalf of each
of the Underwriters is pursuant to the authority set forth in a form of
Agreement among Underwriters the form of which shall be submitted to the Company
for examination, upon request, but without warranty on your part as to the
authority of the signers thereof.
Very truly yours,
DUKE ENERGY FIELD SERVICES, LLC
By: ________________________________
Name:
Theforegoing Underwriting Agreement
is hereby confirmed and accepted
as of the date first above written.
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
J.P. MORGAN SECURITIES INC.
By: J.P. MORGAN SECURITIES INC.
By: _______________________________
On behalf of each of the several Underwriters
-21-
<PAGE> 22
SCHEDULE I
<TABLE>
<CAPTION>
$600,000,000 $800,000,000 $300,000,000
PRINCIPAL PRINCIPAL PRINCIPAL
AMOUNT OF 7 1/2% AMOUNT OF 7 7/8% AMOUNT OF 8 1/8%
UNDERWRITER 2005 NOTES 2010 NOTES 2030 NOTES
----------------------------------------- ------------ ------------ ------------
<S> <C> <C> <C>
Merrill Lynch, Pierce, Fenner & Smith
Incorporated $180,000,000 $240,000,000 $ 90,000,000
J.P. Morgan Securities Inc. $180,000,000 $240,000,000 $ 90,000,000
Banc of America Securities LLC $ 60,000,000 $ 80,000,000 $ 30,000,000
Chase Securities Inc. $ 60,000,000 $ 80,000,000 $ 30,000,000
Lehman Brothers Inc. $ 60,000,000 $ 80,000,000 $ 30,000,000
Morgan Stanley & Co. Incorporated $ 60,000,000 $ 80,000,000 $ 30,000,000
------------ ------------ ------------
Total $600,000,000 $800,000,000 $300,000,000
============ ============ ============
</TABLE>
-22-
