Exhibit 4.6
KEYSPAN CORPORATION
AND
JPMORGAN CHASE BANK,
as Trustee
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FIRST SUPPLEMENTAL INDENTURE
Dated as of _______, 2002
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THIS FIRST SUPPLEMENTAL INDENTURE, dated as of ______, 2002,
is between KEYSPAN CORPORATION, doing business as KeySpan Energy, a corporation
duly incorporated and existing under the laws of the State of New York and
having its principal executive office at Xxx XxxxxXxxx Xxxxxx, Xxxxxxxx, Xxx
Xxxx 00000 (the "Company"), and JPMORGAN CHASE BANK, a corporation organized and
existing under the laws of the State of New York, acting as Trustee under the
Indenture referred to below (the "Trustee").
W I T N E S S E T H
WHEREAS, the Company has duly authorized the execution and
delivery of an Indenture dated as of November 1, 2000 (the "Indenture"), as
amended and supplemented, to provide for the issuance from time to time of its
unsecured notes or other evidences of indebtedness to be issued in one or more
series (the "Securities"), as provided in the Indenture, up to such principal
amount or amounts as may from time to time be authorized in or pursuant to one
or more resolutions of the Board of Directors;
WHEREAS, the Company wishes to supplement the provisions of
the Indenture to provide, among other things, for the issuance of convertible
and exchangeable Securities;
WHEREAS, the Company has duly authorized the execution and
delivery of this First Supplemental Indenture in order to provide for such
modifications to the Indenture; and
WHEREAS, all acts and things necessary to make this First
Supplemental Indenture a valid agreement of the Company according to its terms
have been done and performed, and the execution and delivery of this First
Supplemental Indenture have in all respects been duly authorized;
NOW, THEREFORE, in consideration of the premises, of the
purchase and acceptance of the Securities by the Holders thereof, it is mutually
covenanted and agreed, for the equal and proportionate benefit of the Holders of
the Securities or series thereof, as follows:
SECTION 1. AMENDMENTS TO THE INDENTURE
1.1 Amendment to Section 301 of the Indenture. Section 301 is amended by
adding the following clause in numerical order and renumbering the existing
clauses (24) and (25) as clauses (25) and (26), respectively:
"(24) whether the Securities of the series will be convertible
or exchangeable into other securities of the Company or another Person, and if
so, the terms and conditions upon which such Securities will be so convertible
or exchangeable, including the conversion price or exchange rate and the
conversion or exchange period, and any additions or changes to the Indenture
with respect to the Securities of such series to permit or facilitate such
conversion or exchange;"
1.2 Amendment to Section 310 of the Indenture. Section 310 is amended by
adding "and Determination of Comparable Yield" at the end of the heading and
adding the following sentence and the end thereof:
"If the Securities of a given series are contingent payment
debt instruments within the meaning of Treasury Regulations section 1.1275-4,
the Holders of such Securities will, for U.S. federal income tax purposes, shall
be bound by the Company's determination of the comparable yield and projected
payment schedule for such Securities."
1.3 Amendment to Section 401 of the Indenture. Section 401 is amended and
restated as follows:
"The Company may, at the option of its Board of Directors
evidenced by a Board Resolution set forth in an Officers' Certificate, at any
time, with respect to the Securities of any series, unless otherwise specified
pursuant to Section 301 with respect to a particular series of Securities, elect
to have either Section 402 or 403 be applied to all of the Outstanding
Securities of that series upon compliance with the conditions set forth below in
this Article Four."
1.4 Amendment to Section 403 of the Indenture. Section 403 is amended by
replacing the phrase "704, 801 and 1007" with the phrase "704, 801, 1007 and
1008 or established pursuant to Sections 301(25), 901(2) or 901(11)".
1.5 Amendment to Section 607 of the Indenture. Section 607 of the Indenture
is amended by adding the following paragraphs at the end thereof:
When the Trustee incurs expenses or renders services
in connection with an Event of Default specified in Section
501(5) or (6), the expenses and the compensation for the
services are intended to constitute expenses of administration
under any bankruptcy law.
The Company's obligations under this Section 607 and
any lien arising hereunder shall survive the resignation or
removal of the Trustee, the discharge of the Company's
obligations pursuant to Article Four of this Indenture and/or
the termination of this Indenture."
1.6 Amendment to Section 609 of the Indenture. Section 609 is amended by
adding the following paragraph at the end thereof:
"A different Trustee may be appointed by the Company for each
series of Securities prior to the issuance of such Securities. If the initial
Trustee for any series of Securities is to be other than JPMorgan Chase Bank,
the Company and such Trustee shall, prior to the issuance of such Securities,
execute and deliver an indenture supplemental hereto, which shall provide for
the appointment of such Trustee as Trustee for the Securities of such series and
shall add to or change any of the provisions of this Indenture as shall be
necessary to facilitate the administration of the trusts hereunder by more than
one Trustee, it being understood that nothing herein or in such supplemental
indenture shall constitute such Trustees co-trustees of the same trust and that
each such Trustee shall be trustee of a trust or trusts hereunder separate and
apart from any trust or trusts hereunder administered by any other such Trustee.
1.7 Amendment to Section 902 of the Indenture. Section 902 is amended (i)
to add the following at the end of clause (1) thereof:
"adversely affect the right to convert or exchange any
Security into other securities of the Company or another Person as may be
provided pursuant to Section 301; or";
and (ii) by replacing each occurrence of the term "1007" in clause (3) thereof
with the term "1009".
1.8 Amendment to Section 1009 of the Indenture. Section 1009 of the
Indenture is amended by replacing the phrase "1004 to 1009, inclusive," with the
phrase "1004 to 1008, inclusive, or established pursuant to Sections 301(25),
901(2) or 901(11).
1.9 Addition of Article 14 to the Indenture. The Indenture is amended to
add the following Articles 14:
ARTICLE 14.
CONVERSION AND EXCHANGE
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Section 1401. Applicability of Article.
Securities of any series which are designated as being
convertible into or exchangeable for any other security of the Company or
another Person prior to their Stated Maturity shall be convertible or
exchangeable in accordance with their terms and (except as otherwise specified
pursuant to Section 301 for the Securities of such series) in accordance with
this Article.
Section 1402. Conversion Privilege.
A Holder of a Security of a series, which, by its terms, is
convertible into or exchangeable for any other security of the Company or
another Person, may convert or exchange such Security at any time during the
period and in the manner as is set forth in the terms of the Securities of such
series. The number of shares or units of such other security issuable upon
conversion of or exchange for a Security shall be determined in the manner set
forth in the terms of such Security.
Section 1403. Conversion and Exchange Procedure.
To convert or exchange a Security, the Holder thereof must
comply with and satisfy all of the terms, conditions and other requirements set
forth in the terms of such Security. As soon as practicable, the Company shall
deliver through the relevant conversion or exchange agent a certificate for the
number of shares or units of the security issuable upon the conversion or
exchange.
Section 1404. Fractional Shares.
The terms of a convertible and exchangeable Securities shall set forth
whether the Company will issue or deliver a fractional share or units of a
security upon conversion or exchange of a Security, or will deliver its check
for the value of the fractional share or units of a security.
Section 1405. Taxes on Conversion or Exchange.
The terms of convertible and exchangeable Securities shall
state whether the Company will pay any documentary, stamp or similar issue or
transfer tax, due on the issue of shares or units of the security issuable and
whether upon the conversion or exchange the Holder will be required to pay any
such tax which is due because securities are issued in a name other than that of
such Holder.
Section 1406. Company to Provide Securities Issuable Upon Conversion or
Exchange.
The Company shall reserve or otherwise provide for a
sufficient amount of its respective securities or securities of a third Person
which would be issuable upon the conversion or exchange of the Securities,
including reserving out of its respective authorized but unissued equity
securities or its equity securities held in treasury enough shares to permit the
conversion or exchange of the Securities.
All shares of equity securities of the Company which may be
issued upon conversion or exchange of the Securities shall be fully paid and
nonassessable.
The Company shall endeavor to comply with all securities laws
regulating the offer and delivery of s hares or units of its respective
securities upon conversion or exchange of Securities and will endeavor to list
such shares or units on any national securities exchange on which such shares or
units are listed.
Section 1407. Adjustments.
The terms of the Securities shall set forth the nature of
mechanics for and notice of any adjustments in the number or price of securities
issuable upon conversion or exchange of the Securities.
Section 1408. Valuation.
The terms of the Securities shall set forth the method or
methods for valuing the securities issuable upon conversion or exchange of the
Securities.
Section 1409. Reorganization of Company.
The terms of the Securities shall set forth the rights, if
any, of the Holders to, convert or exchange their Securities in the event that
the Company is a party to a transaction subject to Article 8 or a merger which
reclassifies or changes its outstanding Securities into which the Securities are
convertible or exchangeable.
Section 1410. Trustee's Disclaimer.
The Trustee has no duty to determine when an adjustment under
this Article of the terms of the Securities should be made, how it should be
made or what it should be. The Trustee makes no representation as to the
validity or value of any securities issued upon conversion of or exchange for
Securities. The Trustee shall not be responsible for the failure of the Company
to comply with this Article. Each conversion and exchange agent other than the
Company shall have the same protection under this Section 1410 as the Trustee.
1.10 Amendment to Exhibits A and C to the Indenture. Exhibits A and C are
amended by replacing references to United States Treasury Regulation Section
1.165-12(c)(1)(v) with references to United States Treasury Regulation Section
1.165-12(c)(1)(iv).
SECTION 2. MISCELLANEOUS
2.1 Separability. In case any provision in this First Supplemental
Indenture shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
2.2 Continuance of Indenture. This First Supplemental Indenture supplements
the Indenture and shall be a part of and subject to all the terms thereof. The
Indenture, as supplemented by this First Supplemental Indenture, shall continue
in full force and effect.
2.3 The Trustee. The Trustee shall not be responsible in any manner for or
in respect of the validity or sufficiency of this First Supplemental Indenture,
or for or in respect of the recitals contained herein, all of which recitals are
made by the Company solely.
2.4 Governing Law. This First Supplemental Indenture shall be governed by
and construed in accordance with the laws of the State of New York.
2.5 Defined Terms. All capitalized terms used in this First Supplemental
Indenture that are defined in the Indenture, but not otherwise defined herein,
shall have the same meanings assigned to them in the Indenture.
2.6 Counterparts. This First Supplemental Indenture may be executed in any
number of counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute but one and the
same instrument.
JPMorgan Chase Bank hereby accepts the trusts in this First
Supplemental Indenture declared and provided, upon the terms and conditions
hereinabove set forth.
IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture, dated as of ____, 2002, to be duly executed, and their
respective corporate seals to be hereunto affixed and attested, all as of ___,
2002.
KEYSPAN CORPORATION
By: _______________________
Name:
Title:
Attest:
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JPMORGAN CHASE BANK, as Trustee
By: ___________________________
Name:
Title:
Attest:
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