Exhibit 4.12
FORM OF CALCULATION AGENT AGREEMENT
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THIS AGREEMENT dated as of ____________ between CONSOLIDATED NATURAL
GAS COMPANY (hereinafter called the "Issuer"), having its principal office at
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and BANK ONE TRUST COMPANY,
NATIONAL ASSOCIATION (hereinafter sometimes called the "Calculation Agent" which
term shall, unless the context shall otherwise require, include its successors
and assigns), having its principal corporate trust office at ▇▇▇ ▇▇▇▇ ▇▇/▇▇/
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
Recitals of the Issuer
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The Issuer proposes to issue from time to time its medium-term notes
(the "Notes") under the Indenture dated as of April 1, 2001, as supplemented and
amended from time to time (the "Indenture"), among the Issuer and Bank One Trust
Company, National Association, as Trustee. Capitalized terms used in this
Agreement and not otherwise defined herein are used as defined in the Indenture.
Certain of the Notes may bear interest at one of several floating rates
determined by reference to an interest rate formula (the "Floating Rate Notes")
and the Issuer desires to engage the Calculation Agent to perform certain
services in connection therewith.
NOW IT IS HEREBY AGREED THAT:
1. The Issuer hereby appoints Bank One Trust Company, National
Association as Calculation Agent for the Floating Rate Notes, upon the terms and
subject to the conditions herein mentioned, and Bank One Trust Company, National
Association hereby accepts such appointment. The Calculation Agent shall act as
an agent of the Issuer for the purpose of determining the interest rate or rates
of the Floating Rate Notes.
2. The Issuer agrees to deliver to the Calculation Agent, prior to
the issuance of any Floating Rate Notes, copies of the proposed forms of such
Notes, including copies of all terms and conditions relating to the
determination of the interest rate thereunder. The Issuer shall not issue any
Floating Rate Note prior to the receipt of confirmation from the Calculation
Agent of its acceptance of the proposed form of such Note. The Calculation
Agent hereby acknowledges its acceptance of the proposed form of Floating Rate
Note previously delivered to it.
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3. The Issuer shall notify the Calculation Agent of the issuance of
any Floating Rate Notes prior to the issuance thereof and at the time of such
issuance, shall deliver to the Calculation Agent the information required to be
provided by the Issuer for the calculation of the applicable interest rates
thereunder. The Calculation Agent shall calculate the applicable interest rates
for Floating Rate Notes in accordance with the terms of such Notes, the
Indenture and the provisions of this Agreement.
4. Promptly following the determination of each change to the
interest rate applicable to any Floating Rate Note, the Calculation Agent will
cause to be forwarded to the Issuer, the Trustee and the principal Paying Agent
information regarding the interest rate then in effect for such Floating Rate
Note.
5. The Issuer will pay such compensation as shall be agreed upon
with the Calculation Agent and the out-of-pocket expenses, including reasonable
counsel fees, incurred by the Calculation Agent in connection with its duties
hereunder, upon receipt of such invoices as the Issuer shall reasonably require.
6. Notwithstanding any satisfaction or discharge of the Notes or the
Indenture, the Issuer will indemnify the Calculation Agent against any losses,
liabilities, costs, claims, actions or demands which it may incur or sustain or
which may be made against it in connection with its appointment or the exercise
of its powers and duties hereunder as well as the reasonable costs, including
the reasonable expenses and fees of counsel in defending any claim, action or
demand, except such as may result from the gross negligence, wilful misconduct
or bad faith of the Calculation Agent or any of its employees. Except as
provided in the preceding sentence, the Calculation Agent shall incur no
liability and shall be indemnified and held harmless by the Issuer for, or in
respect of, any actions taken or suffered to be taken in good faith by the
Calculation Agent in reliance upon (i) the written opinion or advice of counsel
or (ii) written instructions from the Issuer.
7. The Calculation Agent accepts its obligations herein set forth
upon the terms and conditions hereof, including the following, to all of which
the Issuer agrees:
(i) in acting under this Agreement and in connection with the Notes,
the Calculation Agent, acting as agent for the Issuer, does not assume any
obligation towards, or any relationship of agency or trust for or with, any
of the Holders of the Notes;
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(ii) unless herein otherwise specifically provided, any order,
certificate, notice, request or communication from the Issuer made or given
under any provisions of this Agreement shall be sufficient if signed by any
person whom the Calculation Agent reasonably believes to be a duly
authorized officer or attorney-in-fact of the Issuer;
(iii) the Calculation Agent shall be obligated to perform only such
duties as are set forth specifically herein and any duties necessarily
incidental thereto;
(iv) the Calculation Agent shall be protected and shall incur no
liability for or in respect of any action taken or omitted to be taken or
anything suffered by it in reliance upon anything contained in a Floating
Rate Note, the Indenture or any information supplied to it by the Issuer
pursuant to this Agreement, including the information to be supplied
pursuant to paragraph 3 above;
(v) the Calculation Agent, whether acting for itself or in any other
capacity, may become the owner or pledgee of Notes with the same rights as
it would have had if it were not acting hereunder as Calculation Agent;
(vi) the Calculation Agent shall incur no liability hereunder except
for loss sustained by reason of its gross negligence, wilful misconduct or
bad faith; and
(vii) in no event shall the Calculation Agent be liable for special,
indirect or consequential loss or damage of any kind whatsoever (including
but not limited to lost profits), even if the Calculation Agent has been
advised of the likelihood of such loss or damage and regardless of the form
of action.
8. (a) The Issuer agrees to notify the Calculation Agent at least 3
Business Days prior to the issuance of any Floating Rate Note with an interest
rate to be determined by any formula that would require the Calculation Agent to
select banks or other financial institutions (the "Reference Banks") for
purposes of quoting rates. Immediately prior to seeking such quotes from such
Reference Banks, the Calculation Agent will notify the Issuer (unless, in
accordance with the Floating Rate Notes, the selection of such Reference Banks
must be made after consultation with the Issuer) and the Trustee of the names
and addresses of such Reference Banks. The Calculation Agent shall not be
responsible to the Issuer or any third party for any failure of the Reference
Banks to fulfill their duties or meet their obligations as Reference Banks or as
a result of the
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Calculation Agent having acted (except in the event of gross negligence, wilful
misconduct or bad faith) on any quotation or other information given by any
Reference Bank which subsequently may be found to be incorrect.
(b) Except as provided below, the Calculation Agent may at any time
resign as Calculation Agent by giving written notice to the Issuer and the
Trustee of such intention on its part, specifying the date on which its desired
resignation shall become effective, provided that such notice shall be given not
less than 60 days prior to the said effective date unless the Issuer and the
Trustee otherwise agree in writing. Except as provided below, the Calculation
Agent may be removed by the filing with it and the Trustee of an instrument in
writing signed by the Issuer specifying such removal and the date when it shall
become effective (such effective date being at least 20 days after said filing).
Any such resignation or removal shall take effect upon:
(i) the appointment by the Issuer as hereinafter provided of a
successor Calculation Agent; and
(ii) the acceptance of such appointment by such successor
Calculation Agent;
provided, however, that in the event the Calculation Agent has given not less
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than 60 days' prior notice of its desired resignation, and during such 60 days
there has not been acceptance by a successor Calculation Agent of its
appointment as successor Calculation Agent, the Calculation Agent so resigning
may petition any court of competent jurisdiction for the appointment of a
successor Calculation Agent. The Issuer covenants that it shall appoint a
successor Calculation Agent as soon as practicable after receipt of any notice
of resignation hereunder. Upon its resignation or removal becoming effective,
the retiring Calculation Agent shall be entitled to the payment of its
compensation and the reimbursement of all expenses (including reasonable counsel
fees) incurred by such retiring Calculation Agent pursuant to paragraph 5 hereof
to the date such resignation or removal becomes effective.
(c) If at any time the Calculation Agent shall resign or be removed,
or shall become incapable of acting or shall be adjudged bankrupt or insolvent,
or liquidated or dissolved, or an order is made or an effective resolution is
passed to wind up the Calculation Agent, or if the Calculation Agent shall file
a voluntary petition in bankruptcy or make an assignment for the benefit of its
creditors, or shall consent to the appointment of a receiver, administrator or
other similar official of all or any substantial part of its property, or shall
admit in
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writing its inability to pay or meet its debts as they mature, or if a receiver,
administrator or other similar official of the Calculation Agent or of all or
any substantial part of its property shall be appointed, or if any order of any
court shall be entered approving any petition filed by or against the
Calculation Agent under the provisions of any applicable bankruptcy or
insolvency law, or if any public officer shall take charge or control of the
Calculation Agent or its property or affairs for the purpose of rehabilitation,
conservation or liquidation, then a successor Calculation Agent shall be
appointed by the Issuer by an instrument in writing filed with the successor
Calculation Agent and the Trustee. Upon the appointment as aforesaid of a
successor Calculation Agent and acceptance by the latter of such appointment the
former Calculation Agent shall cease to be Calculation Agent hereunder.
(d) Any successor Calculation Agent appointed hereunder shall execute
and deliver to its predecessor, the Issuer and the Trustee an instrument
accepting such appointment hereunder, and thereupon such successor Calculation
Agent, without any further act, deed or conveyance, shall become vested with all
the authority, rights, powers, immunities, duties and obligations of such
predecessor with like effect as if originally named as the Calculation Agent
hereunder, and such predecessor, upon payment of its compensation, charges and
disbursements then unpaid, shall thereupon become obliged to transfer and
deliver, and such successor Calculation Agent shall be entitled to receive,
copies of any relevant records maintained by such predecessor Calculation Agent.
(e) Any corporation into which the Calculation Agent may be merged or
converted or any corporation with which the Calculation Agent may be
consolidated or any corporation resulting from any merger, conversion or
consolidation to which the Calculation Agent shall be a party shall, to the
extent permitted by applicable law, be the successor Calculation Agent under
this Agreement without the execution or filing of any paper or any further act
on the part of any of the parties hereto. Notice of any such merger, conversion
or consolidation shall forthwith be given to the Issuer and the Trustee.
(f) The provisions of paragraphs 5 and 6 hereof shall survive any
resignation or removal hereunder.
9. Any notice required to be given hereunder shall be delivered in
person against written receipt, sent by letter or telex or telecopy or
communicated by telephone (subject, in the case of communication by telephone,
to confirmation dispatched within two business days by letter, telex or
telecopy), in the case of the Issuer, to it at the address set forth in the
heading of this Agreement,
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Attention: Financing Manager - Public Markets; in the case of the Calculation
Agent, to it at the address set forth in the heading of this Agreement,
Attention: Institutional Trust Services; in the case of the Trustee, to it at
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: _________________;
or, in any case, to any other address of which the party receiving notice shall
have notified the party giving such notice in writing.
10. This Agreement may be amended only by a writing duly executed and
delivered by each of the parties signing below.
11. The provisions of this Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York.
12. This Agreement may be executed in counterparts and the executed
counterparts shall together constitute a single instrument.
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IN WITNESS WHEREOF, this Agreement has been executed and delivered as
of the day and year first above written.
CONSOLIDATED NATURAL GAS COMPANY
By_______________________
Title:
BANK ONE TRUST COMPANY, NATIONAL
ASSOCIATION
By_______________________
Title:
