EXHIBIT 4-12
FORM OF AGREEMENT AS TO
EXPENSES AND LIABILITIES
THIS AGREEMENT AS TO EXPENSES AND LIABILITIES (the "Agreement")
dated as of _____________ between ENERGY EAST CORPORATION, a New York
corporation ("Energy East"), and ENERGY EAST CAPITAL TRUST [ ], a Delaware
business trust (the "Trust").
WHEREAS, the Trust intends to issue its ___% Common Securities (the
"Common Securities") to, and purchase ___% Junior Subordinated Notes (the
"Notes") from, Energy East, and to issue and sell its ___% Capital Securities
(the "Capital Securities") with such powers, preferences and special rights and
restrictions as are set forth in the Amended and Restated Trust Agreement of the
Trust dated as of _____________, as the same may be amended from time to time
(the "Trust Agreement");
WHEREAS, Energy East will directly or indirectly own all of the
Common Securities of the Trust and will issue the Notes;
NOW, THEREFORE, in consideration of the purchase by each holder of
the Capital Securities, which purchase Energy East hereby agrees shall benefit
Energy East and which purchase Energy East acknowledges will be made in reliance
upon the execution and delivery of this Agreement, Energy East and the Trust
hereby agree as follows:
ARTICLE I
GUARANTEE BY ENERGY EAST
1.1. GUARANTEE BY ENERGY EAST. Subject to the terms and conditions
hereof, Energy East hereby irrevocably and unconditionally guarantees to each
person or entity to whom the Trust is now or hereafter becomes indebted or
liable (the "Beneficiaries") the full payment, when and as due, of any and all
Obligations (as hereinafter defined) to such Beneficiaries. As used herein,
"Obligations" means any costs, expenses or liabilities of the Trust, other than
obligations of the Trust to pay to holders of any Capital Securities, Common
Securities or other similar interests in the Trust the amounts due such holders
pursuant to the terms of the Capital Securities, Common Securities or such other
similar interests. This Agreement is intended to be for the benefit of, and to
be enforceable by, all such Beneficiaries, whether or not such Beneficiaries
have received notice hereof.
1.2. TERM OF AGREEMENT. This Agreement shall terminate and be of no
further force and effect upon the later of (a) the date on which full payment
has been made of all amounts payable to all holders of all the Capital
Securities (whether upon redemption, liquidation, exchange or otherwise) and (b)
the date on which there are no Beneficiaries remaining; provided, however, that
this Agreement shall continue to be effective or shall be reinstated, as the
case may be, if at any time any holder of Capital Securities or any Beneficiary
must restore payment of any sums paid under the Capital Securities, under any
Obligation, under
the Capital Securities Guarantee Agreement dated the date hereof by Energy East
and The Chase Manhattan Bank, as guarantee trustee, or under this Agreement for
any reason whatsoever. This Agreement is continuing, irrevocable, unconditional
and absolute.
1.3. WAIVER OF NOTICE. Energy East hereby waives notice of
acceptance of this Agreement and of any Obligation to which it applies or may
apply, and Energy East hereby waives presentment, demand for payment, protest,
notice of nonpayment, notice of dishonor, notice of redemption and all other
notices and demands.
1.4. NO IMPAIRMENT. The obligations, covenants, agreements and
duties of Energy East under this Agreement shall in no way be affected or
impaired by reason of the happening from time to time of any of the following:
(a) the extension of time for the payment by the Trust of all or any
portion of the Obligations or for the performance of any other obligation
under, arising out of, or in connection with, the Obligations;
(b) any failure, omission, delay or lack of diligence on the part of
the Beneficiaries to enforce, assert or exercise any right, privilege,
power or remedy conferred on the Beneficiaries with respect to the
Obligations or any action on the part of the Trust granting indulgence or
extension of any kind; or
(c) the voluntary or involuntary liquidation, dissolution, sale of
any collateral, receivership, insolvency, bankruptcy, assignment for the
benefit of creditors, reorganization, arrangement, composition or
readjustment of debt of, or other similar proceedings affecting, the Trust
or any of the assets of the Trust.
There shall be no obligation of the Beneficiaries to give notice to, or obtain
the consent of, Energy East with respect to the happening of any of the
foregoing.
1.5. ENFORCEMENT. A Beneficiary may enforce this Agreement directly
against Energy East, and Energy East waives any right or remedy to require that
any action be brought against the Trust or any other person or entity before
proceeding against Energy East.
1.6. SUBROGATION. Energy East shall be subrogated to all rights (if
any) of the Trust in respect of any amounts paid to the Beneficiaries by Energy
East under this Agreement; provided, however, that Energy East shall not (except
to the extent required by mandatory provisions of law) be entitled to enforce or
exercise any rights which it may acquire by way of subrogation or any indemnity,
reimbursement or other agreement, in all cases as a result of payment under this
Agreement, if, at the time of any such payment, any amounts are due and unpaid
under this Agreement.
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ARTICLE II
BINDING EFFECT
2.1. BINDING EFFECT. All guarantees and agreements contained in this
Agreement shall bind the successors, assigns, receivers, trustees and
representatives of Energy East and shall inure to the benefit of the
Beneficiaries.
2.2. AMENDMENT. So long as there remains any Beneficiary or any
Capital Securities outstanding, this Agreement shall not be modified or amended
in any manner adverse to such Beneficiary or to the holders of the Capital
Securities.
2.3. NOTICES. Any notice, request or other communication required or
permitted to be given hereunder shall be given in writing by delivering the same
by personal delivery, by facsimile transmission or by first-class mail,
addressed as follows (and if so given, shall be deemed given when so delivered,
upon receipt of confirmation if by facsimile, or three days after mailed if by
first-class mail):
If to the Trust to:
Energy East Capital Trust [ ]
c/o Energy East Corporation
X.X. Xxx 00000
Xxxxxx, XX 00000-0000
Attention: __________
Telecopy No.: __________
with a copy to:
Energy East Corporation
X.X. Xxx 00000
Xxxxxx, XX 00000-0000
Attention: __________
Telecopy No.: __________
2.4. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
(WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES).
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THIS AGREEMENT is executed as of the day and year first above
written.
ENERGY EAST CORPORATION
By: ___________________________________
Name:
Title:
ENERGY EAST CAPITAL TRUST [ ]
By: ___________________________________
as Administrative Trustee
By: ___________________________________
as Administrative Trustee
