EXHIBIT 4-9
TRUST AGREEMENT
OF
ENERGY EAST CAPITAL TRUST I
This TRUST AGREEMENT is made as of May 24, 2001 (this "Trust
Agreement"), by and between Energy East Corporation, a New York corporation, as
sponsor (the "Sponsor"), and Chase Manhattan USA, a National Association, not in
its individual capacity but solely as trustee of the Trust (the "Trustee"). The
Sponsor and the Trustee hereby agree as follows:
1. The trust created hereby shall be known as "Energy East Capital
Trust I" (the "Trust") in which name the Trustee or the Sponsor, to the extent
provided herein, may conduct the business of the Trust, make and execute
contracts, and sue and be sued.
2. The Sponsor hereby assigns, transfers, conveys and sets over to the
Trust the sum of $10. Such amount shall constitute the initial trust estate. It
is the intention of the parties hereto that the Trust created hereby constitute
a business trust under Chapter 38 of Title 12 of the Delaware Code, 12 DEL. C.
ss. 3801, ET SEQ. (the "Business Trust Act"), and that this document constitute
the governing instrument of the Trust. The Trustee is hereby authorized and
directed to execute and file a certificate of trust with the Delaware Secretary
of State in accordance with the provisions of the Business Trust Act.
3. The Sponsor and the Trustee will enter into an amended and restated
Trust Agreement, satisfactory to each such party to provide for the contemplated
operation of the Trust created hereby and the issuance of the Preferred
Securities and the Common Securities referred to therein. Prior to the execution
and delivery of such amended and restated Trust Agreement, the Trustee shall not
have any duty or obligation hereunder or with respect of the trust estate,
except as otherwise required by applicable law or as may be necessary to obtain
prior to such execution and delivery any licenses, consents or approvals
required by applicable law or otherwise. Notwithstanding the foregoing, the
Trustee may take all actions deemed proper as are necessary to effect the
transactions contemplated herein.
4. The Sponsor, as the sponsor of the Trust, is hereby authorized, in
its discretion, (i) to prepare and file with the Securities and Exchange
Commission (the "Commission") and to execute, in each case on behalf of the
Trust, (a) a Registration Statement (the "1933 Act Registration Statement"),
including any pre-effective or post-effective amendments thereto, relating to
the registration under the Securities Act of 1933, as amended (the "1933 Act"),
of the Preferred Securities of the Trust and (b) a Registration Statement on
Form 8-A (the "1934 Act Registration Statement"), including all pre-effective
and post-effective amendments thereto, relating to the registration of the
Preferred Securities of the Trust under the Securities Exchange Act of 1934, as
amended; (ii) if and at such time as determined by the Sponsor, to file with the
New York Stock Exchange or any other exchange or the National Association of
Securities Dealers (each, an "Exchange"), and execute, on behalf of the Trust,
one or more listing applications and all other applications, statements,
certificates, agreements and other instruments as shall be necessary or
desirable to cause the Preferred Securities of the Trust to be listed on any of
the Exchanges; (iii) to negotiate, execute, deliver and perform, on behalf of
the Trust, an underwriting agreement with one or more underwriters relating to
the offering of the Preferred Securities of the Trust; and (iv) to file and
execute on behalf of the Trust, such applications, reports, surety bonds,
irrevocable consents, appointments of attorney for service of process and
other papers and documents as shall be necessary or desirable to register the
Preferred Securities of the Trust under the securities or "Blue Sky" laws of
such jurisdictions as the Sponsor, on behalf of the Trust, may deem necessary or
desirable.
In the event that any filing referred to in this Section 4 is required
by the rules and regulations of the Commission, any Exchange or state securities
or "Blue Sky" laws to be executed on behalf of the Trust by the Trustee, the
Trustee, in its capacity as Trustee of the Trust, is hereby authorized to join
in any such filing and to execute on behalf of the Trust any and all of the
foregoing, it being understood that the Trustee, in its capacity as trustee of
the Trust, shall not be required to join in any such filing or execute on behalf
of the Trust any such document unless required by the rules and regulations of
the Commission, any Exchange or state securities or "Blue Sky" laws.
5. (a) The Trustee (a "Fiduciary Indemnified Person") shall not be
liable, responsible or accountable in damages or otherwise to the Trust, the
Sponsor, or any holder of the Trust securities (the Trust, the Sponsor and any
holder of the Trust securities being a "Covered Person") for any loss, damage or
claim incurred by reason of any act or omission performed or omitted by the
Fiduciary Indemnified Person in good faith on behalf of the Trust and in a
manner the Fiduciary Indemnified Person reasonably believed to be within the
scope of authority conferred on the Fiduciary Indemnified Person by this
Agreement or by law, except that the Fiduciary Indemnified Person shall be
liable for any such loss, damage or claim incurred by reason of the Fiduciary
Indemnified Person's negligence or willful misconduct with respect to such acts
or omissions.
(b) The Fiduciary Indemnified Person shall be fully protected
in relying in good faith upon the records of the Trust and upon such
information, opinions, reports or statements presented to the Trust by any
person as to matters such Fiduciary Indemnified Person reasonably believes are
within such other person's professional or expert competence and who, if
selected by such Fiduciary Indemnified Person, has been selected by it with
reasonable care on behalf of the Trust, including information, opinions, reports
or statements as to the value and amount of the assets, liabilities, profits,
losses, or any other facts pertinent to the existence and amount of assets from
which distributions to holders of Trust securities might properly be paid.
6. The Sponsor agrees, to the fullest extent permitted by applicable
law,
(a) to indemnify and hold harmless each Fiduciary Indemnified
Person, or any of its officers, directors, shareholders, employees
representatives or agents, from and against any loss, damage, liability, tax,
penalty, expense or claim of any kind or nature whatsoever incurred by the
Fiduciary Indemnified Person by reason of the creation, operation or termination
of the Trust in a manner the Fiduciary Indemnified Person reasonably believed to
be within the scope of authority conferred on the Fiduciary Indemnified Person
by this Trust Agreement, except that no Fiduciary Indemnified Person shall be
entitled to be indemnified in respect of any loss, damage or claim incurred by
the Fiduciary Indemnified Person by reason of negligence or willful misconduct
with respect to such acts or omissions; and
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(b) to advance expenses (including legal fees) to be incurred
by a Fiduciary Indemnified Person in defending any claim, demand, action, suit
or proceeding, from time to time, prior to the final disposition of such claim,
demand, action, suit or proceeding upon receipt by the Trust of an undertaking
by, or on behalf of, such Fiduciary Indemnified Person to repay such amount if
it shall be determined that the Fiduciary Indemnified Person is not entitled to
be indemnified as authorized in the preceding subsection.
7. The provisions of Section 6 shall survive the termination of this
Trust Agreement or the earlier resignation or removal of a Fiduciary Indemnified
Person.
8. The Trust may terminate without issuing any Trust securities at the
election of the Sponsor.
9. This Trust Agreement may be executed in one or more counterparts.
10. The number of trustees of the Trust initially shall be one and
thereafter the number of trustees of the Trust shall be such number as shall be
fixed from time to time by a written instrument signed by the Sponsor which may
increase or decrease the number of trustees of the Trust; provided, however,
that to the extent required by the Business Trust Act, one trustee of the Trust
shall either be a natural person who is a resident of the State of Delaware or,
if not a natural person, an entity which has its principal place of business in
the State of Delaware. Subject to the foregoing, the Sponsor is entitled to
appoint or remove without cause any trustee of the Trust at any time. Any
trustee of the Trust may resign upon thirty days' prior notice to the Sponsor.
11. This Trust Agreement shall be governed by, and construed in
accordance with, the laws of the State of Delaware (without regard to conflict
of laws of principles).
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IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement
to be duly executed as of the day and year first above written.
ENERGY EAST CORPORATION
as Sponsor
By: /s/ ROBERT D. KUMP
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Name: Robert D. Kump
Title: Vice President and Treasurer
CHASE MANHATTAN BANK USA,
NATIONAL ASSOCIATION
not in its individual capacity but
solely as trustee of the Trust
By: /s/ DENIS KELLY
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Name: Denis Kelly
Title: Assistant Vice President