EXHIBIT 4-5
ENERGY EAST CORPORATION
Issuer
TO
THE CHASE MANHATTAN BANK
Trustee
-------------------
___________Supplemental Indenture
Dated as of _______, 20___
-------------------
___% Junior Subordinated Debt Securities
Due ______, 20__
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
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SECTION 1.1 Definition of Terms................................... 2
ARTICLE II
GENERAL TERMS AND CONDITIONS OF THE JUNIOR SUBORDINATED
DEBT SECURITIES
SECTION 2.1 Designation and Principal Amount...................... 6
SECTION 2.2 Stated Maturity....................................... 6
SECTION 2.3 Form and Payment; Minimum Transfer Restriction........ 6
SECTION 2.4 Exchange and Registration of Transfer of Junior
Subordinated Debt Securities; Restriction on Transfers;
Depositary........................................ 7
SECTION 2.5 Interest.............................................. 9
SECTION 2.6 Direct Action......................................... 9
SECTION 2.7 Subordination......................................... 10
ARTICLE III
REDEMPTION OF THE JUNIOR SUBORDINATED DEBT SECURITIES
SECTION 3.1 Tax Event or Investment Company Event Redemption...... 10
SECTION 3.2 Optional Redemption by Company........................ 10
SECTION 3.3 Notice of Redemption.................................. 10
ARTICLE IV
EXTENSION OF INTEREST PAYMENT PERIOD
SECTION 4.1 Extension of Interest Payment Period.................. 11
SECTION 4.2 Notice of Extension................................... 13
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ARTICLE V
EXPENSES
SECTION 5.1 Payment of Expenses................................... 13
SECTION 5.2 Payment Upon Resignation or Removal................... 14
ARTICLE VI
FORM OF JUNIOR SUBORDINATED DEBT SECURITY
SECTION 6.1 Form of Junior Subordinated Debt Security.............. 14
ARTICLE VII
ORIGINAL ISSUE OF JUNIOR SUBORDINATED DEBT SECURITIES
ARTICLE 7.1 Original Issue of Junior Subordinated Debt Securities. 14
ARTICLE VIII
MISCELLANEOUS
ARTICLE 8.1 Ratification of Base Indenture; _______ Supplemental
Indenture Controls................................ 15
ARTICLE 8.2 Trustee Not Responsible for Recitals ................. 15
ARTICLE 8.3 Governing Law......................................... 15
ARTICLE 8.4 Separability.......................................... 15
ARTICLE 8.5 Counterparts.......................................... 15
EXHIBIT A ...................................................... 17
iii
_________ SUPPLEMENTAL INDENTURE
THIS __________ SUPPLEMENTAL INDENTURE, dated as of ________, 20__ (the
"________ Supplemental Indenture"), is between ENERGY EAST CORPORATION, a New
York corporation (the "Company"), and THE CHASE MANHATTAN BANK, as trustee (the
"Trustee") under the Indenture, dated as of ________, 2001, between the Company
and the Trustee, as heretofore supplemented and amended (the "Base Indenture,"
and as further supplemented by this _____ Supplemental Indenture, the
"Indenture").
WHEREAS, the Company executed and delivered the Base Indenture to the
Trustee to provide for the future issuance of the Company's unsecured junior
subordinated debt securities (the "Debt Securities") to be issued from time to
time in one or more series as might be determined by the Company under the
Indenture, in an unlimited aggregate principal amount which may be authenticated
and delivered as provided in the Base Indenture;
WHEREAS, pursuant to the terms of the Base Indenture, the Company desires
to provide for the establishment of a series of its Debt Securities, to be known
as its ___% Junior Subordinated Debt Securities due ___________, 20__ (the
"Junior Subordinated Debt Securities"), the form and substance of such Junior
Subordinated Debt Securities and the terms, provisions and conditions thereof to
be set forth as provided in the Base Indenture and this ______ Supplemental
Indenture;
[WHEREAS, the Company desires that this series of Junior Subordinated Debt
Securities be originally issued on ___________, 20__ pursuant to the Indenture
and sold pursuant to the Underwriting Agreement (as defined below);]
[WHEREAS, Energy East Capital Trust ___, a Delaware statutory business
trust (the "Trust"), has offered to the purchasers (the "Underwriters") named in
Schedule I to the Underwriting Agreement, dated ___________, 20__ (the
"Underwriting Agreement"), among the Underwriters, the Trust and the Company
$_________ aggregate liquidation amount of its ___% Capital Securities (the
"Capital Securities"), representing undivided beneficial interests in the assets
of the Trust and proposes to invest the proceeds from the sale of the Capital
Securities, together with the proceeds of the sale by the Trust to the Company
of $________ aggregate liquidation amount of its Common Securities, in $________
aggregate principal amount of the Junior Subordinated Debt Securities;] and
WHEREAS, the Company has requested that the Trustee execute and deliver
this ______ Supplemental Indenture and all requirements necessary to make this
______ Supplemental Indenture a valid instrument in accordance with its terms,
and to make the Junior Subordinated Debt Securities, when executed by the
Company and authenticated and delivered by the Trustee, the valid obligations of
the Company, have been performed, and the execution and delivery of this ______
Supplemental Indenture has been duly authorized in all respects;
NOW, THEREFORE, in consideration of the purchase and acceptance of the
Junior Subordinated Debt Securities by the Trust, and for the purpose of setting
forth, as provided in the Base Indenture, the form and substance of the Junior
Subordinated Debt Securities and the terms, provisions and conditions thereof,
the Company covenants and agrees with the Trustee as follows:
ARTICLE I
DEFINITIONS
1.1 DEFINITION OF TERMS. For all purposes of this ______ Supplemental
Indenture, except as otherwise expressly provided or unless the context
otherwise requires:
(a) the terms not otherwise defined herein which are defined in the
Base Indenture have the same meanings when used in this ______ Supplemental
Indenture;
(b) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(c) all other terms used herein which are defined in the Trust
Indenture Act of 1939, as amended, whether directly or by reference therein,
have the meanings assigned to them therein;
(d) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles in the United States of America, and, except as otherwise herein
expressly provided, the term "generally accepted accounting principles" with
respect to any computation required or permitted hereunder shall mean such
accounting principles as are generally accepted in the United States of America
at the date of such computation; provided, that when two or more principles are
so generally accepted, it shall mean that set of principles consistent with
those in use by the Company;
(e) a reference to a Section or Article is to a Section or Article
of this ______ Supplemental Indenture unless otherwise stated;
(f) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this ______ Supplemental Indenture as a whole and not to
any particular Article, Section or other subdivision;
(g) headings are for convenience of reference only and do not
affect interpretation;
(h) the term "Capital Securities" as used herein means "Preferred
Securities" as such term is used in the Base Indenture and has the meaning
specified in the fourth recital to this ______ Supplemental Indenture; and
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(i) the following terms have the meanings given to them in the Trust
Agreement [(as defined herein)]: (i) Administrative Trustee, (ii) Business Day,
(iii) Closing Date, (iv) Delaware Trustee, (v) Distributions, (vi) Property
Trustee, and (vii) Common Security.
"ADDITIONAL INTEREST" has the meaning specified in Section 2.5.
[FIRST ALTERNATIVE - OPTIONAL REDEMPTION - "COMPARABLE TREASURY
ISSUE" means, with respect to any redemption date, the United States Treasury
security selected by the Quotation Agent as having a maturity comparable to the
time period from the redemption date to ___________, 20__ that would be
utilized, at the time of selection and in accordance with customary financial
practice, in pricing new issues of corporate debt securities of comparable
maturity to such time period. If no United States Treasury security has a
maturity which is within a period from three months before to three months after
___________, 20__, the two most closely corresponding United States Treasury
securities shall be used as the Comparable Treasury Issue, and the Treasury Rate
shall be interpolated or extrapolated on a straight-line basis, rounding to the
nearest month using such securities.]
[FIRST ALTERNATIVE - OPTIONAL REDEMPTION - "COMPARABLE TREASURY
PRICE" means, with respect to any redemption date, (A) the average of up to five
Reference Treasury Dealer Quotations for such redemption date, after excluding
the highest and lowest such Reference Treasury Dealer Quotations, or (B) if the
Trustee obtains fewer than five such Reference Treasury Dealer Quotations, the
average of all such Quotations.]
"COUPON RATE" has the meaning specified in Section 2.5(a).
"DEBT SECURITIES" has the meaning specified in the first recital to
this ______ Supplemental Indenture.
"DEFINITIVE DEBT SECURITY CERTIFICATES" means Debt Securities issued
in definitive, fully registered form.
"EXTENSION PERIOD" has the meaning specified in Section 4.1.
"GLOBAL DEBT SECURITY" has the meaning specified in Section 2.4(a).
"INTEREST PAYMENT DATE" has the meaning specified in Section 2.5.
[OPTIONAL REDEMPTION - "INVESTMENT COMPANY EVENT" means the receipt
by the Trust of an opinion of a nationally recognized independent counsel (an
"Investment Company Act Opinion"), to the effect that, as a result of the
occurrence of a change in law or regulation or a written change in
interpretation or application of law or regulation by any legislative body,
court, governmental agency or regulatory authority (a "Change in 1940 Act Law"),
there is more than an insubstantial risk that the Trust is or
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will be considered an "investment company" that is required to be registered
under the Investment Company Act of 1940, as amended, which Change in 1940 Act
Law becomes effective on or after the initial Closing Date.]
"JUNIOR SUBORDINATED DEBT SECURITIES" has the meaning specified in
the second recital to this ______ Supplemental Indenture.
"LIQUIDATION AMOUNT" means the stated amount of $_____ per Capital
Security.
[FIRST ALTERNATIVE - OPTIONAL REDEMPTION - "OPTIONAL REDEMPTION
MAKE-WHOLE AMOUNT" means an amount equal to the greater of (i) 100% of the
principal amount of the Junior Subordinated Debt Securities or (ii) as
determined by a Quotation Agent as of the redemption date, the sum of the
present value of the scheduled payments of principal and interest on the Junior
Subordinated Debt Securities from the redemption date to ___________, 20__
discounted to the redemption date on a semi-annual basis (assuming a 360-day
year consisting of twelve 30-day months) at a discount rate equal to the
Treasury Rate plus __ basis points.]
[FIRST ALTERNATIVE - OPTIONAL REDEMPTION - "QUOTATION AGENT" means
____________________ and its respective successors as selected by the Company;
provided, however, that if both of the foregoing shall cease to be a primary
United States Government securities dealer in New York City (a "Primary Treasury
Dealer"), the Company shall substitute therefor another Primary Treasury
Dealer.]
[OPTIONAL REDEMPTION - "OPTIONAL REDEMPTION PRICE" has the meaning
specified in Section 3.2.]
"RECORD DATE" has the meaning specified in Section 2.5(a).
[FIRST ALTERNATIVE - OPTIONAL REDEMPTION - "REFERENCE TREASURY
DEALER" means (i) __________________ and its respective successors; provided,
however, that if either of the foregoing shall cease to be a Primary Treasury
Dealer, the Company shall substitute therefor another Primary Treasury Dealer;
and (ii) up to three other Primary Treasury Dealers selected by the Trustee
after consultation with the Company.]
[FIRST ALTERNATIVE - OPTIONAL REDEMPTION - "REFERENCE TREASURY
DEALER QUOTATIONS" means, with respect to each Reference Treasury Dealer and any
redemption date, the average, as determined by the Trustee, of the bid and asked
prices for the Comparable Treasury Issue (expressed in each case as a percentage
of its principal amount) quoted in writing to the Trustee by such Reference
Treasury Dealer at 5:00 p.m., New York City time, on the third Business Day
preceding such redemption date.]
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[FIRST ALTERNATIVE - OPTIONAL REDEMPTION - "SPECIAL EVENT REDEMPTION
MAKE-WHOLE AMOUNT" means an amount equal to the greater of (i) 100% of the
principal amount of the Junior Subordinated Debt Securities or (ii) as
determined by a Quotation Agent as of the redemption date, the sum of the
present value of scheduled payments of principal and interest on the Junior
Subordinated Debt Securities from the redemption date to ___________, 20__,
discounted to the redemption date on a semi-annual basis (assuming a 360-day
year consisting of twelve 30-day months) at a discount rate equal to (a) the
Treasury Rate plus __ basis points before ___________, 20__, and (b) the
Treasury Rate plus __ basis points if on or after such date.]
[OPTIONAL REDEMPTION - "SPECIAL EVENT REDEMPTION PRICE" has the
meaning specified in Section 3.1.]
[OPTIONAL REDEMPTION - "TAX EVENT" means the receipt by the Company
and the Trust of an opinion of independent tax counsel experienced in such
matters ("Tax Event Opinion"), to the effect that, as a result of (a) any
amendment to, change in or announced prospective change in the laws (or any
regulations thereunder) of the United States or any political subdivision or
taxing authority thereof or therein, or (b) any official administrative
written decision, pronouncement or action, or judicial decision interpreting
or applying such laws or regulations, which amendment or change is effective
or which proposed change, pronouncement, decision or action is announced on
or after the Closing Date, there is more than an insubstantial risk that (i)
the Trust is, or will be within 90 days of the date of such opinion, subject
to the United States federal income tax with respect to income received or
accrued on the Junior Subordinated Debt Securities, (ii) interest payable to
the Trust by the Company on the Junior Subordinated Debt Securities is not,
or within 90 days of the date of such opinion will not be, deductible, in
whole or in part, by the Company for United States federal income tax
purposes, or (iii) the Trust is, or will be within 90 days of the date of
such opinion, subject to a material amount of other taxes, duties or other
governmental charges.]
[FIRST ALTERNATIVE - OPTIONAL REDEMPTION - "TREASURY RATE" means (i)
the yield, under the heading which represents the average for the immediately
preceding week, appearing in the most recently published statistical release
designated "H.15(519)" or any successor publication which is published weekly by
the Federal Reserve and which establishes yields on actively traded United
States Treasury securities adjusted to constant maturity under the caption
"Treasury Constant Maturities," for the maturity corresponding to the time
period from the redemption date to ___________, 20__ (if no maturity is within
three months before or after such time period, yields for the two published
maturities most closely corresponding to such time period shall be determined
and the Treasury Rate shall be interpolated or extrapolated from such yields on
a straight-line basis, rounding to the nearest month) or (ii) if such release
(or any successor release) is not published during the week preceding the
calculation date or does not contain such yields, the rate per annum equal to
the semi-annual equivalent yield to maturity of the Comparable Treasury Issue,
calculated using a price for the Comparable Treasury Issue (expressed as a
percentage of its principal
5
amount) equal to the Comparable Treasury Price for such redemption date. The
Treasury Rate shall be calculated on the third Business Day preceding the
redemption date.]
["TRUST" has the meaning specified in the fourth recital to this
______ Supplemental Indenture.]
["TRUST AGREEMENT" means the Amended and Restated Trust Agreement of
Energy East Capital Trust ___ dated as of ___________, 20__ among the Company,
as Sponsor, The Chase Manhattan Bank, as Property Trustee, Chase Manhattan Bank
USA, National Association, as Delaware Trustee, the Administrative Trustees
named therein and the holders, from time to time, of undivided beneficial
interests in the assets of the Trust.]
["TRUST SECURITIES" means the Common Securities and the Capital
Securities.]
["UNDERWRITERS" has the meaning specified in the fourth recital to
this ______ Supplemental Indenture.]
["UNDERWRITING AGREEMENT" has the meaning specified in the fourth
recital to this ______ Supplemental Indenture.]
ARTICLE II
GENERAL TERMS AND CONDITIONS OF THE JUNIOR SUBORDINATED
DEBT SECURITIES
2.1 DESIGNATION AND PRINCIPAL AMOUNT. There is hereby authorized one
series of Debt Securities, to be designated the "___% Junior Subordinated Debt
Securities due ___________, 20__," in the initial aggregate principal amount of
$__________, which amount shall be as set forth in any written orders of the
Company for the authentication and delivery of Junior Subordinated Debt
Securities pursuant to Section 2.1 of the Base Indenture and Section 7.1 hereof.
Additional Junior Subordinated Debt Securities without limitation as to amount,
and without the consent of the holders of the then Outstanding Junior
Subordinated Debt Securities, may also be authenticated and delivered in the
manner provided in Section 2.1 of the Base Indenture. Any such additional Junior
Subordinated Debt Securities will have the same Stated Maturity and other terms
as those initially issued.
2.2 STATED MATURITY. The Stated Maturity of the Junior Subordinated Debt
Securities is ___________, 20__ which may be shortened or extended pursuant to
Section 2.12 of the Base Indenture.
2.3 FORM AND PAYMENT; MINIMUM TRANSFER RESTRICTION.
(a) The Junior Subordinated Debt Securities shall be issued to the
[holders] [Property Trustee] in fully registered definitive form without coupons
in
6
minimum denominations of $____ and integral multiples of $____ in excess
thereof. Principal and interest on the Junior Subordinated Debt Securities
issued in definitive form will be payable, the transfer of such Junior
Subordinated Debt Securities will be registrable and such Junior Subordinated
Debt Securities will be exchangeable for Junior Subordinated Debt Securities
bearing identical terms and provisions at the principal office of the Trustee;
provided, however, that payment of interest may be made at the option of the
Company by check mailed to the registered holder at such address as shall appear
in the Register. [Notwithstanding the foregoing, so long as the registered
holder of any Junior Subordinated Debt Securities is the Property Trustee, the
payment of the principal of and interest (including Additional Interest and
Additional Tax Sums, if any) on such Junior Subordinated Debt Securities held by
the Property Trustee will be made at such place, or by wire transfer of
immediately available funds to such account, as may be designated by the
Property Trustee.] The Register for the Junior Subordinated Debt Securities
shall be kept at the principal office of the Trustee and the Trustee is hereby
appointed registrar for the Junior Subordinated Debt Securities.
(b) The Junior Subordinated Debt Securities may be transferred or
exchanged only in minimum denominations of $____ and integral multiples of $____
in excess thereof, and any attempted transfer, sale or other disposition of
Junior Subordinated Debt Securities in a denomination of less than $____ shall
be deemed to be void and of no legal effect whatsoever. Any such transferee
shall be deemed not to be the holder of such Junior Subordinated Debt Securities
for any purpose, including but not limited to the receipt of payments in respect
of such Junior Subordinated Debt Securities and such transferee shall be deemed
to have no interest whatsoever in such Junior Subordinated Debt Securities.
2.4 EXCHANGE AND REGISTRATION OF TRANSFER OF JUNIOR SUBORDINATED DEBT
SECURITIES; RESTRICTIONS ON TRANSFERS; DEPOSITARY. [If distributed to holders of
Capital Securities pursuant to Section 8.2 of the Trust Agreement, the Junior
Subordinated Debt Securities will be issued to such holders in the same form as
the Capital Securities that such Junior Subordinated Debt Securities replace in
accordance with the following procedures:]
(a) So long as Junior Subordinated Debt Securities are eligible for
book-entry settlement with the Depositary, or unless required by law, all
Junior Subordinated Debt Securities that are so eligible will be represented by
one or more Junior Subordinated Debt Securities in global form (a "Global Debt
Security") registered in the name of the Depositary or the nominee of the
Depositary. Except as provided in Section 2.4(c) below, beneficial owners of a
Global Debt Security shall not be entitled to have Definitive Debt Security
Certificates registered in their names, will not receive or be entitled to
receive physical delivery of Definitive Debt Security Certificates and will not
be registered holders of such Global Debt Securities.
(b) The transfer and exchange of beneficial interests in Global Debt
Securities shall be effected through the Depositary in accordance with the
Indenture and the procedures and standing instructions of the Depositary and the
Trustee shall make
7
appropriate endorsements to reflect increases or decreases in principal amounts
of such Global Debt Securities.
(c) Notwithstanding any other provisions of the Indenture (other
than the provisions set forth in this Section 2.4(c)), a Global Debt Security
may not be exchanged in whole or in part for Junior Subordinated Debt Securities
registered, and no transfer of a Global Debt Security may be registered, in the
name of any person other than the Depositary or a nominee thereof unless (i)
such Depositary (A) has notified the Company that it is unwilling or unable to
continue as Depositary for such Global Debt Security or (B) has ceased to be a
clearing agency registered as such under the Exchange Act and no successor
Depositary has been appointed by the Company within 90 days after its receipt of
such notice or its becoming aware of such ineligibility, (ii) there shall have
occurred and be continuing an Event of Default, or any event which after notice
or lapse of time or both would be an Event of Default under the Indenture, with
respect to such Debt Security, or (iii) the Company, in its sole discretion,
instructs the Trustee to exchange such Global Debt Security for a Junior
Subordinated Debt Security that is not a Global Debt Security (in which case
such exchange shall be effected by the Trustee).
The Depositary shall be a clearing agency registered under the
Exchange Act. The Company initially appoints The Depository Trust Company to act
as Depositary with respect to the Global Debt Securities. Initially, any Global
Debt Securities shall be registered in the name of Cede & Co., as the nominee of
the Depositary, and deposited with the Trustee as custodian for Cede & Co.
Definitive Junior Subordinated Debt Securities issued in exchange
for all or a part of a Global Debt Security pursuant to this Section 2.4(c)
shall be registered in such names and in such authorized denominations as the
Depositary, pursuant to instructions from its direct or indirect participants or
otherwise, shall instruct the Trustee. Upon execution and authentication, the
Trustee shall deliver such definitive Junior Subordinated Debt Securities to the
person in whose names such definitive Junior Subordinated Debt Securities are so
registered.
So long as Junior Subordinated Debt Securities are represented by
one or more Global Debt Securities, (i) the registrar for the Junior
Subordinated Debt Securities and the Trustee shall be entitled to deal with the
clearing agency for all purposes of the Indenture relating to such Global Debt
Securities as the sole holder of the Junior Subordinated Debt Securities
evidenced by such Global Debt Securities and shall have no obligations to the
holders of beneficial interests in such Global Debt Securities; and (ii) the
rights of the holders of beneficial interests in such Global Debt Securities
shall be exercised only through the clearing agency and shall be limited to
those established by law and agreements between such holders and the clearing
agency and/or the participants in the clearing agency.
At such time as all interests in a Global Debt Security have been
paid, redeemed, exchanged, repurchased or canceled, such Global Debt Security
shall be, upon receipt thereof, canceled by the Trustee in accordance with
standing procedures and
8
instructions of the Depositary. At any time prior to such cancellation, if any
interest in a Global Debt Security is exchanged for definitive Junior
Subordinated Debt Securities, redeemed by the Company pursuant to Article III or
canceled, or transferred for part of a Global Debt Security, the principal
amount of such Global Debt Security shall, in accordance with the standing
procedures and instructions of the Depositary be reduced or increased, as the
case may be, and an endorsement shall be made on such Global Debt Security by,
or at the direction of, the Trustee to reflect such reduction or increase.
2.5 INTEREST.
(a) Each Junior Subordinated Debt Security will bear interest at the
rate of ___% per annum (the "Coupon Rate") from ___________, 20__ until the
principal thereof becomes due and payable, and will bear interest on any overdue
principal at the Coupon Rate and (to the extent that payment of such interest is
enforceable under applicable law) on any overdue installment of interest at the
Coupon Rate ("Additional Interest"), compounded [semi-annually], payable
(subject to the provisions of Article IV) [semi-annually] in arrears on the 15th
day of [_______] and [_______] of each year (each, an "Interest Payment Date"),
commencing on ______ 15, 20__ to the Person in whose name such Junior
Subordinated Debt Security is registered, subject to certain exceptions, at the
close of business on the Record Date next preceding such Interest Payment Date.
The "Record Date" for payment of interest will be the Business Day next
preceding the Interest Payment Date, unless such Junior Subordinated Debt
Security is registered to a holder other than the Property Trustee or a nominee
of the Depositary, in which case the Record Date for payment of interest will be
the fifteenth calendar day preceding the applicable Interest Payment Date,
whether or not a Business Day. [Until liquidation, if any, of the Trust, each
Junior Subordinated Debt Security will be held in the name of the Property
Trustee in trust for the benefit of the holders of the Trust Securities.]
(b) The amount of interest payable for any period will be computed
on the basis of a 360-day year of twelve 30-day months. In the event that any
date on which interest is payable on the Junior Subordinated Debt Securities is
not a Business Day, then payment of interest payable on such date will be made
on the next succeeding day which is a Business Day (and without any interest or
other payment in respect of any such delay), except that, if such Business Day
is in the next succeeding calendar year, such payment shall be made on the next
preceding day which is a Business Day, in each case with the same force and
effect as if made on the date such payment was originally payable.
(c) [The Company will also pay any Additional Tax Sums as additional
distributions on the Junior Subordinated Debt Securities if the Trust is
required to pay any additional taxes, duties or other governmental charges as a
result of a Tax Event.]
2.6 [DIRECT ACTION. In addition to any right of Direct Action granted
under Section 3.8(e) of the Trust Agreement to the holders of Capital
Securities, if the Property Trustee fails to enforce its rights under the Trust
Agreement or the Indenture to the fullest
9
extent permitted by law and subject to the terms of the Trust Agreement and the
Indenture, then a holder of Capital Securities may directly institute a
proceeding against the Company to enforce the Property Trustee's rights under
the Trust Agreement or the Indenture without first instituting a legal
proceeding against the Property Trustee or any other person.]
2.7 SUBORDINATION. The indebtedness evidenced by the Junior Subordinated
Debt Securities shall be, to the extent and in the manner set forth in the
Base Indenture, subordinate and junior in right of payment to the prior
payment in full of all Senior Indebtedness of the Company with respect to the
Junior Subordinated Debt Securities, and the Junior Subordinated Debt
Securities shall rank pari passu in right of payment with each other series
of Securities issued under the Indenture.
ARTICLE III
[OPTIONAL REDEMPTION - REDEMPTION OF THE JUNIOR SUBORDINATED
DEBT SECURITIES
3.1 TAX EVENT OR INVESTMENT COMPANY EVENT REDEMPTION. If a Tax Event or
Investment Company Event (either a "Special Event") shall occur and be
continuing, the Company may redeem the Junior Subordinated Debt Securities at
any time within 90 days after the occurrence of that Special Event, in whole but
not in part, at a redemption price (the "Special Event Redemption Price") equal
to [FIRST ALTERNATIVE - the Special Event Make-Whole Amount] [SECOND ALTERNATIVE
- 100% of the principal amount of the Junior Subordinated Debt Securities] plus
accrued and unpaid interest thereon to but excluding the redemption date. The
Special Event Redemption Price shall be paid prior to 2:00 p.m., New York City
time, on the date of such redemption, provided that the Company shall deposit
with the Trustee an amount sufficient to pay the Special Event Redemption Price
by 11:00 a.m., New York City time, on the date such Special Event Redemption
Price is to be paid.
3.2 OPTIONAL REDEMPTION BY COMPANY. [FIRST ALTERNATIVE - The Company
shall have the option to redeem the Junior Subordinated Debt Securities at any
time, in whole but not in part, at a redemption price (the "Optional Redemption
Price") equal to the Optional Redemption Make-Whole Amount plus accrued and
unpaid interest thereon to but excluding the redemption date.] [SECOND
ALTERNATIVE - The Company shall have the option to redeem the Junior
Subordinated Debt Securities at any time on or after _________, 20__, in whole
or in part, at a redemption price (the "Optional Redemption Price") equal to
100% of the principal amount of the Junior Subordinated Debt Securities plus
accrued and unpaid interest thereon to but excluding the redemption date.] The
Optional Redemption Price shall be paid prior to 2:00 p.m., New York City time,
on the date of such redemption, provided that the Company shall deposit with the
Trustee an amount sufficient to pay the Optional Redemption Price by 11:00 a.m.,
New York City time, on the date such Optional Redemption Price is to be paid.
3.3 NOTICE OF REDEMPTION. Subject to Article III of the Base Indenture,
notice of any redemption pursuant to this Article III will be mailed at least 20
days but not more than 60 days before the redemption date to each holder of
Junior Subordinated Debt Securities to be redeemed at such holder's registered
address. Unless the Company defaults in payment of the applicable redemption
price, on and after the redemption date interest shall cease to accrue on such
Junior Subordinated Debt Securities called for redemption. [FIRST ALTERNATIVE -
The Company will notify the Trustee of the
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amount of the redemption price promptly after the calculation thereof and the
Trustee will not be responsible for such calculation.]]
ARTICLE IV
[EXTENSION OF INTEREST PAYMENT PERIOD
4.1 EXTENSION OF INTEREST PAYMENT PERIOD. So long as no Event of Default
under Section 6.1 of the Base Indenture has occurred and is continuing, the
Company shall have the right, subject to the provisions of Section 2.10 of the
Base Indenture, at any time during the term of the Junior Subordinated Debt
Securities, from time to time to defer the payment of interest by extending the
interest payment period of such Junior Subordinated Debt Securities for a period
not exceeding 10 consecutive semi-annual periods (an "Extension Period"), during
which Extension Period the Company shall not have the right to make partial
payments of interest. No Extension Period shall end on a date other than an
Interest Payment Date or extend beyond the Stated Maturity of the Junior
Subordinated Debt Securities. To the extent permitted by applicable law,
interest, the payment of which has been deferred because of an Extension Period
imposed pursuant to this Section 4.1, will bear Additional Interest compounded
[semi-annually]. At the end of the Extension Period, the Company shall pay all
interest then accrued and unpaid on the Junior Subordinated Debt Securities,
including any Additional Interest and Additional Tax Sums, if applicable, to the
holders of the Junior Subordinated Debt Securities in whose names the Junior
Subordinated Debt Securities are registered in the Register on the first Record
Date preceding the end of the Extension Period. Before the termination of any
Extension Period, the Company may further extend such Extension Period, provided
that such period together with all such further extensions thereof shall not
exceed 10 consecutive [semi-annual] periods, or extend beyond the Stated
Maturity. At any time following the termination of any Extension Period and upon
the payment of any accrued and unpaid Additional Interest and Additional Tax
Sums, if applicable, then due, the Company may elect to begin a new Extension
Period, subject to the foregoing requirements. No interest shall be due and
payable during an Extension Period, except at the end thereof.
During any such Extension Period, the Company shall not (i) declare or pay
any dividends or distributions on, or redeem, purchase, acquire or make a
liquidation payment with respect to, any of the Company's Capital Stock or (ii)
make any payment of principal of or interest on or repay, repurchase or redeem
any debt securities of the Company that rank on a parity with or junior to this
Debt Security or make any guarantee payments with respect to any guarantee by
the Company of the debt securities of any Subsidiary of the Company that by its
terms ranks on a parity with or junior to this Debt Security (other than (a)
dividends or distributions in Common Stock, (b) any declaration of a dividend in
connection with the implementation of a Rights Plan, the issuance of any Capital
Stock of the Company under any Rights Plan or the redemption or repurchase of
any rights distributed pursuant to a Rights Plan, (c) payments under any
Energy East Guarantee relating to the Capital Securities issued by the Energy
East Trust holding the Junior Subordinated Debt Securities, and (d) purchases
of Common Stock related to the issuance of Common Stock or rights under the
11
Company's dividend reinvestment plan, or under any of the Company's benefit
plans for its directors, officers, employees, consultants or advisors).
4.2 NOTICE OF EXTENSION.
(a) If the Property Trustee is the only registered holder of the
Junior Subordinated Debt Securities at the time the Company elects to begin or
extend an Extension Period, the Company shall give written notice to the
Property Trustee, the Administrative Trustees and the Trustee of its election to
begin or extend any Extension Period at least five Business Days prior to the
earlier of (i) the next succeeding date on which Distributions on the Capital
Securities issued by the Trust would have been payable but for the election to
begin or extend such Extension Period or (ii) subject to applicable principles
of federal securities law, the date the Administrative Trustees are required to
give notice to any securities exchange or other applicable self-regulatory
organization or to holders of such Capital Securities of the record date or the
date such Distributions are payable, but in any event not less than five
Business Days prior to such record date. An Administrative Trustee shall give
notice of the Company's election to begin or extend an Extension Period to the
holders of such Capital Securities.
(b) If the Property Trustee is not the only holder of the Junior
Subordinated Debt Securities at the time the Company elects to begin or extend
an Extension Period, the Company shall give the holders of the Junior
Subordinated Debt Securities, the Administrative Trustees and the Trustee
written notice of its election to begin or extend such Extension Period at least
10 Business Days prior to the earlier of (i) the next succeeding Interest
Payment Date or (ii) subject to applicable principles of federal securities law,
the date the Company is required to give notice of the record or payment date of
such interest payment to any applicable self-regulatory organization or to
holders of the Junior Subordinated Debt Securities.
(c) The semi-annual period in which any notice is given pursuant to
paragraphs (a) or (b) of this Section 4.2 shall be counted as one of the 10
consecutive semi-annual periods permitted in the maximum Extension Period
permitted under Section 4.1 herein.]
ARTICLE V
EXPENSES
5.1 PAYMENT OF EXPENSES. In connection with the offering, sale and
issuance of the Junior Subordinated Debt Securities [to the Property Trustee and
in connection with the offering, sale and issuance of the Trust Securities by
the Trust], the Company, in its capacity as borrower with respect to the Junior
Subordinated Debt Securities, shall:
(a) pay all costs and expenses relating to the offering, sale and
issuance of the Junior Subordinated Debt Securities [and the Trust Securities],
including [commissions to the Underwriters payable pursuant to the Underwriting
Agreement and]
12
compensation of the Trustee under the Indenture in accordance with the
provisions of Section 7.6 of the Base Indenture;
(b) [pay all costs and expenses of the Trust (including, but not
limited to, costs and expenses relating to the organization of the Trust, the
fees and expenses of the Property Trustee and the Delaware Trustee, the costs
and expenses relating to the operation of the Trust, including without
limitation, costs and expenses of accountants, attorneys, statistical or
bookkeeping services, expenses for printing and engraving and computing or
accounting equipment, paying agent(s), registrar(s), transfer agent(s),
duplicating, travel and telephone and other telecommunications expenses and
costs and expenses incurred in connection with the acquisition, financing, and
disposition of Trust assets);]
(c) [pay all costs and expenses related to the enforcement by the
Property Trustee of the rights of the registered holders of the Capital
Securities;
(d) be primarily liable for any indemnification obligations arising
with respect to the Trust Agreement and the Underwriting Agreement; and
(e) pay any and all taxes and all liabilities, costs and expenses
with respect to such taxes of the Trust (but not including withholding taxes
imposed on holders of Capital Securities or Common Securities of the Trust).]
5.2 PAYMENT UPON RESIGNATION OR REMOVAL. Upon termination of this
Supplemental Indenture or the Base Indenture or the removal or resignation of
the Trustee pursuant to Section 7.10 of the Base Indenture, the Company shall
pay to the Trustee all amounts owed to it under Section 7.6 of the Base
Indenture accrued to the date of such termination, removal or resignation. [Upon
termination of the Trust Agreement or the removal or resignation of the Delaware
Trustee or the Property Trustee, as the case may be, pursuant to Section 6.6 of
the Trust Agreement, the Company shall pay to the Delaware Trustee or the
Property Trustee, as the case may be, and their respective counsel, all amounts
owed to them under Section 4.2 of the Trust Agreement accrued to the date of
such termination, removal or resignation.]
ARTICLE VI
FORM OF JUNIOR SUBORDINATED DEBT SECURITY
6.1 FORM OF JUNIOR SUBORDINATED DEBT SECURITY. The Junior Subordinated
Debt Securities and the Trustee's Certificate of Authentication to be endorsed
thereon are to be substantially in the form attached hereto as Exhibit A.
ARTICLE VII
ORIGINAL ISSUE OF JUNIOR SUBORDINATED DEBT SECURITIES
7.1 ORIGINAL ISSUE OF JUNIOR SUBORDINATED DEBT SECURITIES. Junior
Subordinated Debt Securities in the initial aggregate principal amount of up to
13
$__________ may be executed by the Company and delivered to the Trustee for
authentication by it, and the Trustee shall thereupon authenticate and deliver
said Junior Subordinated Debt Securities to or upon the written order of the
Company, signed by its Chairman, the Chief Executive Officer, the President or
any Vice President (whether or not designated by a number or word or words added
before or after the title Vice President) and by its Treasurer, Controller or
its Corporate Secretary without any further corporate action by the Company.
Additional Junior Subordinated Debt Securities without limitation as to amount,
and without the consent of the holders the then outstanding Junior Subordinated
Debt Securities, may also be authenticated and delivered in the manner provided
in Section 2.1 of the Base Indenture. Any such additional Junior Subordinated
Debt Securities will have the same Stated Maturity and other terms as those
initially issued.
ARTICLE VIII
MISCELLANEOUS
8.1 RATIFICATION OF BASE INDENTURE; ______ SUPPLEMENTAL INDENTURE
CONTROLS. The Base Indenture, as supplemented by this ______ Supplemental
Indenture, is in all respects ratified and confirmed, and this ______
Supplemental Indenture shall be deemed part of the Base Indenture in the
manner and to the extent herein and therein provided. The provisions of this
______ Supplemental Indenture shall supersede the provisions of the Base
Indenture to the extent the Base Indenture is inconsistent herewith.
8.2 TRUSTEE NOT RESPONSIBLE FOR RECITALS. The recitals herein contained
are made by the Company and not by the Trustee, and the Trustee assumes no
responsibility for the correctness thereof. The Trustee makes no representation
as to the validity or sufficiency of this ______ Supplemental Indenture.
8.3 GOVERNING LAW. This ______ Supplemental Indenture and each Junior
Subordinated Debt Security shall be deemed to be a contract made under the
internal laws of the State of New York, and for all purposes shall be governed
by and construed in accordance with the laws of said State, without regard to
the conflicts of law principles thereof.
8.4 SEPARABILITY. In case any one or more of the provisions contained in
this ______ Supplemental Indenture or in the Junior Subordinated Debt Securities
shall for any reason be held to be invalid, illegal or unenforceable in any
respect, such invalidity, illegality or unenforceability shall not affect any
other provisions of this ______ Supplemental Indenture or of the Junior
Subordinated Debt Securities, but this ______ Supplemental Indenture and the
Junior Subordinated Debt Securities shall be construed as if such invalid or
illegal or unenforceable provision had never been contained herein or therein.
8.5 COUNTERPARTS. This ______ Supplemental Indenture may be executed in
any number of counterparts each of which shall be an original; but such
counterparts shall together constitute but one and the same instrument.
14
IN WITNESS WHEREOF, the parties hereto have caused this ______
Supplemental Indenture to be duly executed as of the date first above written.
ENERGY EAST CORPORATION
By:___________________________
Name:
Title:
THE CHASE MANHATTAN BANK,
as Trustee
By:____________________________
Name:
Title:
15
EXHIBIT A
(FORM OF FACE OF JUNIOR SUBORDINATED DEBT SECURITY)
[THIS DEBT SECURITY IS A GLOBAL DEBT SECURITY WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY
OR A NOMINEE OF A DEPOSITARY. THIS DEBT SECURITY IS EXCHANGEABLE FOR JUNIOR
SUBORDINATED DEBT SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE
DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
INDENTURE, AND NO TRANSFER OF THIS DEBT SECURITY (OTHER THAN A TRANSFER OF THIS
DEBT SECURITY AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY
A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE
DEPOSITARY) MAY BE REGISTERED EXCEPT IN SUCH LIMITED CIRCUMSTANCES.]*
[UNLESS THIS DEBT SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY (55 XXXXX XXXXXX, XXX XXXX, XXX XXXX) TO THE ISSUER
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY DEBT
SECURITY ISSUED IS REGISTERED IN THE NAME OF [CEDE & CO.] OR SUCH OTHER NAME AS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND
ANY PAYMENT HEREON IS MADE TO [CEDE & CO.], ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS WRONGFUL SINCE THE REGISTERED OWNER
HEREOF, [CEDE & CO.], HAS AN INTEREST HEREIN.]*
THE DEBT SECURITIES EVIDENCED HEREBY WILL BE ISSUED, AND MAY BE
TRANSFERRED, ONLY IN BLOCKS HAVING A PRINCIPAL AMOUNT OF NOT LESS THAN $_____.
ANY TRANSFER, SALE OR OTHER DISPOSITION OF SUCH DEBT SECURITIES IN A BLOCK
HAVING A PRINCIPAL AMOUNT OF LESS THAN $_____ SHALL BE DEEMED TO BE VOID AND OF
NO LEGAL EFFECT WHATSOEVER. ANY SUCH TRANSFEREE SHALL BE DEEMED NOT TO BE THE
HOLDER OF SUCH DEBT SECURITIES FOR ANY PURPOSE, INCLUDING BUT NOT LIMITED TO THE
RECEIPT OF PAYMENTS IN RESPECT OF SUCH DEBT SECURITIES, AND SUCH TRANSFEREE
SHALL BE DEEMED TO HAVE NO INTEREST WHATSOEVER IN SUCH DEBT SECURITIES.
------------
* Insert in Global Debt Securities.
16
ENERGY EAST CORPORATION
=======================
[Up to]* $___________
___% JUNIOR SUBORDINATED
DEBT SECURITY DUE ___________, 20__
Dated:__________________
NUMBER ____ [CUSIP NO: ___________________]
Registered Holder:
ENERGY EAST CORPORATION, a corporation duly organized and existing under
the laws of the State of New York (herein referred to as the "Company," which
term includes any successor corporation under the Indenture hereinafter referred
to), for value received, hereby promises to pay to the Registered Holder named
above, the principal sum [of __________________________ Dollars]**[specified in
the Schedule annexed hereto]* on ___________, 20__ (the "Stated Maturity"), in
such coin or currency of the United States of America as at the time of payment
is legal tender for the payment of public and private debt. The Company further
promises to pay to the registered Holder hereof as hereinafter provided (a)
interest on said principal sum (subject to deferral as set forth herein) at the
rate per annum specified in the title of this debt security (the "Debt
Security"), in like coin or currency, semi-annually in arrears on the 15th day
of ________ and _______ (each an "Interest Payment Date") commencing ______ 15,
20__, from the Interest Payment Date next preceding the date hereof to which
interest has been paid or duly provided for (unless (i) no interest has yet been
paid or duly provided for on this Debt Security, in which case from ___________,
20__, or (ii) the date hereof is before an Interest Payment Date but after the
related Record Date (as defined below), in which case from such following
Interest Payment Date; provided, however, that if the Company shall default in
payment of the interest due on such following Interest Payment Date, then from
the next preceding Interest Payment Date to which interest has been paid or duly
provided for), until the principal hereof is paid or duly provided for, plus (b)
Additional Interest, as defined in the Indenture, to the extent permitted by
applicable law, on any interest payment that is not made on the applicable
Interest Payment Date, which shall accrue at the rate per annum specified in the
title of this Debt Security, compounded semi-annually.
-----------------
* Insert in Global Debt Securities and Debt Securities issued to the Property
Trustee.
** Insert in Debt Securities other than Global Debt Securities and Debt
Securities issued to the Property Trustee.
17
The interest so payable will, subject to certain exceptions provided in
the Indenture hereinafter referred to, be paid to the person in whose name this
Debt Security is registered at the close of business on the Record Date next
preceding such Interest Payment Date. The Record Date shall be the Business Day
next preceding the Interest Payment Date, unless this Debt Security is
registered to a holder other than [the Property Trustee or] a nominee of The
Depository Trust Company, in which case the Record Date will be the fifteenth
calendar day preceding such Interest Payment Date whether or not a Business Day.
This Debt Security may be presented for payment of principal and interest at the
principal corporate trust office of The Chase Manhattan Bank, as paying agent
for the Company, maintained for that purpose in the Borough of Manhattan, The
City of New York; provided, however, that payment of interest may be made at the
option of the Company (i) by check mailed to such address of the person entitled
thereto as the address shall appear on the Register of the Debt Securities or
(ii) by transfer to an account maintained by the Person entitled thereto as
specified in the Register, provided that proper transfer instructions have been
received by the Record Date. Interest on the Debt Security will be computed on
the basis of a 360-day year of twelve 30-day months.
[So long as no Event of Default has occurred and is continuing, the
Company shall have the right, at any time during the term of this Debt Security,
from time to time to defer the payment of interest by extending the interest
payment period of this Debt Security for a period not exceeding 10 consecutive
semi-annual periods (an "Extension Period"), during which Extension Period the
Company shall not have the right to make partial payments of interest. No
Extension Period shall end on a date other than an Interest Payment Date or
extend beyond the Stated Maturity of this Debt Security. To the extent permitted
by applicable law, interest, the payment of which has been deferred because of
an Extension Period, will bear Additional Interest compounded [semi-annually].
At the end of the Extension Period, the Company shall pay all interest then
accrued and unpaid on this Debt Security, including any Additional Interest
and Additional Tax Sums, if applicable, to the Person in whose name this Debt
Security is registered in the Register on the first Record Date preceding the
end of the Extension Period. Before the termination of any Extension Period,
the Company may further extend such Extension Period, provided that such
period together with all such further extensions thereof shall not exceed 10
consecutive semi-annual periods, or extend beyond the Stated Maturity. At any
time following the termination of any Extension Period and upon the payment
of any accrued and unpaid Additional Interest and Additional Tax Sums, if
applicable, then due, the Company may elect to begin a new Extension Period,
subject to the foregoing requirements. No interest shall be due and payable
during an Extension Period, except at the end thereof.]
[During any such Extension Period, the Company shall not (i) declare or
pay any dividends or distributions on, or redeem, purchase, acquire or make a
liquidation payment with respect to, any of the Company's Capital Stock or (ii)
make any payment of principal of or interest on or repay, repurchase or redeem
any debt securities of the Company that rank on a parity with or junior to this
Debt Security or make any guarantee payments with respect to any guarantee by
the Company of the debt securities of any
18
Subsidiary of the Company that by its terms ranks on a parity with or junior
to this Debt Security (other than (a) dividends or distributions in Common
Stock, (b) any declaration of a dividend in connection with the
implementation of a Rights Plan, the issuance of any Capital Stock of the
Company under any Rights Plan or the redemption or repurchase of any rights
distributed pursuant to a Rights Plan, (c) payments under the Energy East
Guarantee relating to the Capital Securities issued by the Trust, and (d)
purchases of Common Stock related to the issuance of Common Stock or rights
under the Company's dividend reinvestment plan or under any of the Company's
benefit plans for its directors, officers, employees, consultants or
advisors).]
[[If the Property Trustee is the only registered holder of the Debt
Securities of this series at the time the Company elects to begin or extend an
Extension Period, the Company shall give written notice to the Property Trustee,
the Administrative Trustees and the Trustee of its election to begin or extend
any Extension Period at least five Business Days prior to the earlier of (i) the
next succeeding date on which Distributions on the Capital Securities issued by
the Trust would have been payable but for the election to begin or extend such
Extension Period or (ii) subject to applicable principles of federal securities
law, the date the Administrative Trustees are required to give notice to any
securities exchange or other applicable self-regulatory organization or to
holders of such Capital Securities of the record date or the date such
Distributions are payable, but in any event not less than five Business Days
prior to such record date.] [An Administrative Trustee shall give notice of the
Company's election to begin or extend an Extension Period to the holders of such
Capital Securities.]]
[[If the Property Trustee is not the only holder of the Debt Securities of
this series at the time the Company elects to begin or extend an Extension
Period,] the Company shall give the holders of the Debt Securities of this
series, the Administrative Trustees and the Trustee written notice of its
election to begin or extend such Extension Period at least 10 Business Days
prior to the earlier of (i) the next succeeding Interest Payment Date or (ii)
subject to applicable principles of federal securities law, the date the Company
is required to give notice of the record or payment date of such interest
payment to any applicable self-regulatory organization or to holders of the Debt
Securities of this series.]
[The semi-annual period in which any notice is given pursuant to the two
preceding paragraphs shall be counted as one of the 10 consecutive semi-annual
periods permitted in the maximum Extension Period.]
This Debt Security is issued pursuant to an Indenture, dated as of
_________, 2001, between the Company, as issuer, and The Chase Manhattan Bank, a
New York banking corporation, as trustee, as [supplemented by and amended and as
further] supplemented by a ________ Supplemental Indenture dated as of
___________, 20__ (the "Indenture"). Reference is made to the Indenture for a
description of the respective rights, limitations of rights, obligations, duties
and immunities thereunder of the Trustee, the Company and the Holders (the word
"Holder" or "Holders" meaning the registered holder or registered holders) of
the Debt Securities. Capitalized terms used herein but not
19
defined herein shall have the respective meanings assigned thereto in the
Indenture. By acceptance of this Debt Security, the Holder hereof agrees to be
bound by the provisions of the Indenture.
The Debt Securities of this series shall have an initial aggregate
principal amount of _________________________________ Dollars ($__________).
The Debt Securities evidenced by this Certificate may be transferred or
exchanged only in minimum denominations of $_____ and integral multiples of
$_____ in excess thereof, and any attempted transfer, sale or other disposition
of Debt Securities in a denomination of less than $_____ shall be deemed to be
void and of no legal effect whatsoever.
The indebtedness of the Company evidenced by this Debt Security, including
the principal hereof and interest hereon, is, to the extent and in the manner
set forth in the Indenture, subordinate and junior in right of payment to the
Company's obligations to Holders of Senior Indebtedness of the Company and each
Holder of this Debt Security, by acceptance hereof, agrees to and shall be bound
by such provisions of the Indenture and all other provisions of the Indenture.
This Debt Security shall not be valid or become obligatory for any purpose
until the certificate of authentication hereon shall have been signed by or on
behalf of the Trustee under the Indenture.
20
IN WITNESS WHEREOF, ENERGY EAST CORPORATION has caused this instrument to
be signed, manually or in facsimile, by its Chairman, or its Chief Executive
Officer, or its President, or any Vice President and by its Treasurer or its
Controller or its Corporate Secretary under the corporate seal of Energy East
Corporation
ENERGY EAST CORPORATION
[SEAL]
By:______________________________________
Name: Title:
By: _____________________________________
Name: Title:
21
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities, of the series designated herein, referred
to in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK, as Trustee
By: ______________________________________
Authorized Officer
22
REVERSE OF DEBT SECURITY
[As provided in and subject to the provisions in the Indenture, the
Company shall have the option to redeem the Debt Securities of this series
[FIRST ALTERNATIVE - OPTIONAL REDEMPTION - at any time, in whole but not in
part,] [SECOND ALTERNATIVE - OPTIONAL REDEMPTION - at any time on or after
_________, 20__, in whole or in part,] at the Optional Redemption Price. In
addition, if a Special Event shall occur and be continuing, the Company may
redeem the Debt Securities of this series at any time within 90 days after the
occurrence of that Special Event, in whole but not in part, at the Special Event
Redemption Price.]
In the case an Event of Default, as defined in the Indenture, shall have
occurred and be continuing, the principal of all of the Debt Securities of this
series may be declared, and upon such declaration shall become, due and payable,
in the manner, with the effect and subject to the conditions provided in the
Indenture.
Any consent or waiver by the Holder of this Debt Security given as
provided in the Indenture (unless effectively revoked as provided in the
Indenture) shall be conclusive and binding upon such Holder and upon all future
Holders of this Debt Security and of any Debt Security issued in exchange,
registration of transfer, or otherwise in lieu hereof irrespective of whether
any notation of such consent or waiver is made upon this Debt Security or such
other Debt Securities. No reference herein to the Indenture and no provision of
this Debt Security or of the Indenture shall alter or impair the obligation of
the Company, which is absolute and unconditional, to pay the principal of and
interest on this Debt Security, at the places, at the respective times, at the
rate and in the coin or currency herein prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Debt Security may be registered on the Register
of the Debt Securities of this series upon surrender of this Debt Security for
registration of transfer at the offices maintained by the Company or its agent
for such purpose, duly endorsed by the Holder hereof or his attorney duly
authorized in writing, or accompanied by a written instrument of transfer in
form satisfactory to the Company and the Securities registrar duly executed by
the Holder hereof or his attorney duly authorized in writing, but without
payment of any charge other than a sum sufficient to reimburse the Company for
any tax or other governmental charge incident thereto. Upon any such
registration of transfer, a new Debt Security or Debt Securities of authorized
denomination or denominations for the same aggregate principal amount will be
issued to the transferee in exchange herefor.
Prior to due presentment for registration of transfer of this Debt
Security, the Company, the Trustee, and any agent of the Company or the Trustee
may deem and treat the person in whose name this Debt Security shall be
registered upon the Register of the Debt Securities of this series as the
absolute owner of this Debt Security (whether or not this Debt Security shall be
overdue and notwithstanding any notation of ownership or other writing hereon)
for the purpose of receiving payment of or on account of the
23
principal hereof and, subject to the provisions on the face hereof, interest due
hereon and for all other purposes; and neither the Company nor the Trustee nor
any such agent shall be affected by any notice to the contrary.
No recourse shall be had for the payment of the principal of or interest
on this Debt Security, or for any claim based hereon or otherwise in respect
hereof, or based on or in respect of the Indenture or any indenture supplemental
thereto, against any stockholder, officer, director or employee, as such, past,
present or future, of the Company or of any successor corporation, either
directly or through the Company, whether by virtue of any constitution, statute
or rule of law, or by the enforcement of any assessment or penalty or otherwise,
all such liability being, by the acceptance hereof and as a part of the
consideration for the issue hereof, expressly waived and released.
The Company and, by acceptance of this Debt Security or a beneficial
interest in this Debt Security, each holder hereof and any person acquiring a
beneficial interest herein, agree that for United States federal, state and
local tax purposes it is intended that this Debt Security constitute
indebtedness.
This Debt Security shall be deemed to be a contract made under the laws of
the State of New York (without regard to conflicts of laws principles thereof)
and for all purposes shall be governed by, and construed in accordance with, the
laws of said State.
24
FOR VALUE RECEIVED, the undersigned hereby sell(s) and transfer(s) unto
-------------------------------------------------------------------------------.
(please insert Social Security or other identifying number of assignee)
-------------------------------------------------------------------------------.
-------------------------------------------------------------------------------.
-------------------------------------------------------------------------------.
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING POSTAL ZIP CODE OF
ASSIGNEE
the within Debt Security and all rights thereunder, hereby irrevocably
constituting and appointing
-------------------------------------------------------------------------------.
-------------------------------------------------------------------------------.
-------------------------------------------------------------------------------.
-------------------------------------------------------------------------------.
-------------------------------------------------------------------------------.
-------------------------------------------------------------------------------.
agent to transfer said Debt Security on the books of the Company, with full
power of substitution in the premises.
Dated: ___________, 2001
--------------------
NOTICE: The signature to this assignment must correspond with the name as
written upon the face of the within instrument in every particular without
alteration or enlargement, or any change whatever.
25
