Exhibit 4.10
FORM OF AGREEMENT AS TO EXPENSES AND LIABILITIES
AGREEMENT dated as of ____________ between CONSOLIDATED NATURAL GAS
COMPANY, a Delaware corporation ("CNG"), and DOMINION CNG CAPITAL TRUST II, a
Delaware business trust (the "Trust").
WHEREAS, the Trust intends to issue its ___% Common Securities (the "Common
Securities") to, and purchase ___% Junior Subordinated Debentures (the
"Debentures") from, CNG, and to issue and sell its ___% Trust Preferred
Securities (the "Trust Preferred 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, CNG will directly or indirectly own all of the Common Securities
of the Trust and will issue the Debentures;
NOW, THEREFORE, in consideration of the purchase by each holder of the
Trust Preferred Securities, which purchase CNG hereby agrees shall benefit CNG
and which purchase CNG acknowledges will be made in reliance upon the execution
and delivery of this Agreement, CNG and the Trust hereby agree as follows:
ARTICLE I
GUARANTEE BY CNG
1.1 Guarantee by CNG. Subject to the terms and conditions hereof, CNG
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 Trust Preferred Securities the amounts due
such holders pursuant to the terms of the Trust Preferred Securities. 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 Terms 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 Trust Preferred
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 Trust Preferred Securities or any
Beneficiary must restore payment of any sums paid under the Trust Preferred
Securities, under any Obligation, under the Trust Preferred Securities
Guarantee Agreement dated the date hereof between CNG and Bank One Trust
Company, National Association, as guarantee trustee, or under this Agreement for
any reason whatsoever. This Agreement is continuing, irrevocable, unconditional
and absolute.
1.3 Waiver of Notice. CNG hereby waives notice of acceptance of this
Agreement and of any Obligation to which it applies or may apply, and CNG 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
CNG 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, CNG with respect to the happening of any of the foregoing.
1.5 Enforcement. A Beneficiary may enforce this Agreement directly against
CNG, and CNG waives any right or remedy to require that any action be brought
against the Trust or any other person or entity before proceeding against CNG.
1.6 Subrogation. CNG shall be subrogated to all rights (if any) of the
Trust in respect of any amounts paid to the Beneficiaries by CNG under this
Agreement; provided, however, that CNG 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.
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 CNG and shall inure to the benefit of the Beneficiaries.
2.2 Amendment. So long as there remains any Beneficiary or any Trust
Preferred Securities of any series are outstanding, this Agreement shall not be
modified or amended in any manner adverse to such Beneficiary or to the holders
of the Trust Preferred 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:
Dominion CNG Capital Trust II
c/o Consolidated Natural Gas Company
000 Xxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Treasurer
Telecopy No.: (000) 000-0000
If to CNG:
Consolidated Natural Gas Company
000 Xxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Treasurer
Telecopy No.: (000) 000-0000
2.4 Governing Law. This Agreement shall be governed by and construed and
interpreted in accordance with the laws of the Commonwealth of Virginia (without
regard to conflict of laws principles).
THIS AGREEMENT is executed as of the day and year first above written.
CONSOLIDATED NATURAL GAS COMPANY
By: _____________________________________
Name: ___________________________________
Title: _________________________________
DOMINION CNG CAPITAL TRUST II
By: _____________________________________
_____________________________________
_____________________________________
