Exhibit 4.5
KEYSPAN CORPORATION
AND
THE CHASE MANHATTAN BANK,
as Trustee
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FIRST SUPPLEMENTAL INDENTURE
Dated as of _______, 2001
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THIS FIRST SUPPLEMENTAL INDENTURE, dated as of ______, 2001,
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 One MetroTech Center, Brooklyn, New
York 11201 (the "Company"), and THE CHASE MANHATTAN 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 subordinated
Securities and 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 101 of the Indenture. Section 101 of the Indenture
is hereby amended by adding the following new definitions thereto, in the
appropriate alphabetical sequence:
"Senior Debt" has the meaning specified in Section 1401.
"Subordinated Securities" has the meaning specified in Section
1401.
1.2 Amendment to Section 111 of the Indenture. Section 111 of the Indenture
is hereby amended by replacing the words "and the Holders of Securities or
coupons" in the third line thereof with ", Holders of Securities or coupons and
holders of Senior Debt."
1.3 Amendment of 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;"
1.4 Amendment of 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."
1.5 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."
1.6 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."
1.7 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 The Chase Manhattan
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.
1.8 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 deleting the "or" at the end of clause (2) and inserting ";or" at
the end of paragraph (3) in place and adding the following at the end thereof:
"(4) modify the provisions of Article 14 in a manner adverse to
the Holders."
1.9 Addition of Articles 14 and 15 to the Indenture. The Indenture is
amended to add the following Articles 14 and 15:
ARTICLE FOURTEEN
SUBORDINATION
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Section 1401. Subordinated Securities.
If specified pursuant to Section 301, Securities of a
particular series may be subordinated to Senior Debt (the "Subordinated
Securities") in accordance with this Article. The Company agrees, and each
Holder of the Subordinated Securities and related coupons by his acceptance
thereof likewise agrees, that the payment of the principal of, premium, if any,
and interest, if any, on the Securities and related coupons is subordinated, to
the extent and in the manner provided in this Article, to the prior payment in
full when due of the principal of, premium, if any, and interest, if any, on all
Senior Debt.
For purposes of this Article, "Senior Debt" means all
obligations (whether now outstanding or hereafter created, assumed or incurred)
for the payment of which the Company is responsible or liable as obligor,
guarantor or otherwise in respect of all principal of (and premium, if any) and
interest if any (including any interest, if any, accruing subsequent to the
commencement of a proceeding in bankruptcy by or against the Company) on (i) any
indebtedness for money borrowed or evidenced by bonds, notes, debentures or
similar instruments, (ii) indebtedness under capitalized leases, (iii) any
indebtedness representing the deferred and unpaid purchase price of any property
or business, and (iv) all deferrals, renewals, extensions and refundings of any
such indebtedness or obligation; provided, that the following shall not
constitute Senior Debt: (a) indebtedness evidenced by the Subordinated
Securities and related coupons, (b) indebtedness which is expressly made equal
in right of payment with the Subordinated Securities or subordinate and subject
in right of payment to the Subordinated Securities, (c) indebtedness for goods
or materials purchased in the ordinary course of business or for services
obtained in the ordinary course of business or indebtedness consisting of trade
payables, or (d) indebtedness which is subordinated to any obligation of the
type specified in clauses (i) through (iv) above.
This Article shall constitute a continuing offer to all
persons who, in reliance upon such provisions, become holders of, or continue to
hold, Senior Debt, and such provisions are made for the benefit of the holders
of Senior Debt and such holders and/or each of them may enforce such provisions.
Section 1402. Company Not to Make Payments with Respect to Subordinated
Securities in Certain Circumstances.
"In the event (a) of any insolvency or bankruptcy proceedings
or any receivership, liquidation, reorganization or other similar proceedings in
respect of the Company or a substantial part of its property, or of any
proceedings for liquidation, dissolution or other winding up of the Company,
whether or not involving insolvency or bankruptcy, or (b) subject to the
provisions of Section 1403, that (i) a default shall have occurred with respect
to the payment of principal of or interest on or other monetary amounts due and
payable on any Senior Debt, or (ii) there shall have occurred an event of
default (other than a default in the payment of principal or interest or other
monetary amounts due and payable) in respect of any Senior Debt, as defined
therein or in the instrument under which the same is outstanding, permitting the
holder or holders thereof to accelerate the maturity thereof (with notice or
lapse of time, or both), and such event of default shall have continued beyond
the period of grace, if any, in respect thereof, and, in the cases of subclauses
(i) and (ii) of this clause (b), such default or event of default shall not have
been cured or waived or shall not have ceased to exist, or (c) that the
principal of and accrued interest, if any, on the Securities of any series shall
have been declared due and payable pursuant to Section 502 and such declaration
shall not have been rescinded and annulled as provided in Section 502, then:
(1) the holders of all Senior Debt shall first be
paid the full amount of the Senior Debt in cash, before the
Holders of any of the Securities or related coupons are
entitled to receive any payment on account of the principal of
(and premium, if any) and interest on the Securities
including, without limitation, any payments made pursuant to
Article Eleven;
(2) any payment by, or distribution of assets of, the
Company of any kind or character, whether in cash, property or
securities, to which the Holders of any of the Securities or
coupons or the Trustee would be entitled except for the
provisions of this Article shall be paid or delivered by the
person making such payment or distribution, whether a trustee
in bankruptcy, a receiver or liquidating trustee or otherwise,
directly to the holders of such Senior Debt or their
representative or representatives or to the trustee or
trustees under any indenture under which any instruments
evidencing any of such Senior Debt may have been issued,
ratably according to the aggregate amounts remaining unpaid on
account of such Senior Debt held or represented by each, to
the extent necessary to make payment in full of all Senior
Debt remaining unpaid after giving effect to any concurrent
payment or distribution to the holders of such Senior Debt,
before any payment or distribution is made to the Holders of
the Securities or related coupons or to the Trustee under this
Indenture; and
(3) in the event that, notwithstanding the foregoing,
any payment by, or distribution of assets of, the Company of
any kind or character, whether in cash, property or
securities, in respect of principal of or interest on the
Securities or in connection with any repurchase by the Company
of the Securities, shall be received by the Trustee or the
Holders of any of the Securities of related coupons before all
Senior Debt is paid in full in cash, such payment or
distribution in respect of principal of or interest on the
Securities or in connection with any repurchase by the Company
of the Securities shall be paid over to the holders of such
Senior Debt or their representative or representatives or to
the trustee or trustees under any indenture under which any
instruments evidencing any such Senior Debt may have been
issued, ratably as aforesaid, for application to the payment
of all Senior Debt remaining unpaid until all such Senior Debt
shall have been paid in full, after giving effect to any
concurrent payment or distribution (or provision therefor) to
the holders of such Senior Debt.
Notwithstanding the foregoing, at any time after the 91st day
following the date of deposit of cash or Government Obligations
pursuant to Section 404(a) (provided all other conditions set out in
such Section shall have been satisfied) the funds so deposited and any
interest thereon will not be subject to any rights of holders of Senior
Debt including, without limitation, those arising under this Article.
The consolidation of the Company with, or the merger of the
Company into, any other corporation or the liquidation or dissolution
of the Company following the conveyance, transfer or lease of its
properties and assets substantially as an entirety to any Person upon
the terms and conditions provided in Article Eight shall not be deemed
a dissolution, winding up, liquidation or reorganization for the
purposes of this Section 1402 if such Person shall, as a part of such
consolidation, merger, conveyance, transfer or lease, comply with the
conditions stated in Article Eight. Nothing in this Section 1402 shall
apply to claims of, or payments to, the Trustee under or pursuant to
Section 607.
The Company shall give prompt written notice to the Trustee of
any insolvency or bankruptcy proceedings or any receivership,
liquidation, reorganization or similar proceedings in respect of the
Company or a substantial part of its property or of any proceedings for
liquidation, dissolution or winding up of the Company. Upon any payment
or distribution of assets of the Company in connection with any such
proceeding, the Trustee and the Holders of the Securities and any
related coupons shall be entitled to rely upon a certificate of the
trustee in bankruptcy, receiver, liquidating trustee, agent or other
person making such payment or distribution, delivered to the Trustee or
to the Holders of the Securities and any related coupons, for the
purpose of ascertaining the persons entitled to participate in such
distribution, the holders of the Senior Debt and other indebtedness of
the Company, the amount thereof or payable thereon, the amount or
amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article.
Section 1403. Disputes with Holders of Certain Senior Debt.
Any failure by the Company to make any payment on or perform
any other obligation under Senior Debt, other than any indebtedness incurred by
the Company or assumed or guaranteed, directly or indirectly, by the Company for
money borrowed (or any deferral, renewal, extension or refunding thereof) or any
indebtedness or obligation as to which the provisions of this Section 1403 shall
have been waived by the Company in the instrument or instruments by which the
Company incurred, assumed, guaranteed or otherwise created such indebtedness or
obligation, shall not be deemed a default or event of default under clause (b)
of the first paragraph of Section 1402 if (i) the Company shall be disputing its
obligation to make such payment or perform such obligation and (ii) either (A)
no final judgment relating to such dispute shall have been issued against the
Company which is in full force and effect and is not subject to further review,
including a judgment that has become final by reason of the expiration of the
time within which a party may seek further appeal or review, and (B) in the
event a judgment that is subject to further review or appeal has been issued,
the Company shall in good faith be prosecuting an appeal or other proceeding for
review and a stay of execution shall have been obtained pending such appeal or
review.
Section 1404. Subordinated Securityholders to be Subrogated to Rights of Holders
of Senior Debt.
Subject to the payment in full of all Senior Debt, the Holders
of the Subordinated Securities and any related coupons shall be subrogated
(equally and ratably with the holders of all obligations of the Company which by
their express terms are subordinated to Senior Debt of the Company to the same
extent as the Securities and related coupons are subordinated and which are
entitled to like rights of subrogation) to the rights of the holders of Senior
Debt to receive payments or distributions of assets of the Company applicable to
the Senior Debt until all amounts owing on the Subordinated Securities shall be
paid in full, and for the purpose of such subrogation no payments or
distributions to the holders of the Senior Debt by or on behalf of the Company
or by or on behalf of the Holders of the Subordinated Securities and any related
coupons by virtue of this Article which otherwise would have been made to the
Holders of the Subordinated Securities and any related coupons shall, as between
the Company and the Holders of the Subordinated Securities and any related
coupons, be deemed to be payment by the Company to or on account of the Senior
Debt, it being understood that the provisions of this Article are and are
intended solely for the purpose of defining the relative rights of the Holders
of the Subordinated Securities and any related coupons, on the one hand, and the
holders of the Senior Debt, on the other hand.
Section 1405. Obligation of Company Unconditional.
Nothing contained in this Article or elsewhere in this
Indenture or in any Subordinated Security or related coupon is intended to or
shall impair, as between the Company and the Holders of the Subordinated
Securities and any related coupons, the obligation of the Company, which is
absolute and unconditional, to pay to the Holders of the Subordinated Securities
and any related coupons the principal of, premium, if any, and interest, if any,
on the Subordinated Securities as and when the same shall become due and payable
in accordance with their terms, or is intended to or shall affect (except to the
extent specifically provided above in Section 1404) the relative rights of the
Holders of the Subordinated Securities and any related coupons and creditors of
the Company other than the holders of the Senior Debt, nor shall anything herein
or therein prevent the Trustee or the Holder of any Subordinated Security or any
related coupon from exercising all remedies otherwise permitted by applicable
law upon the occurrence of an Event of Default under this Indenture, subject to
the rights, if any, under this Article of the holders of Senior Debt in respect
of cash, property or securities of the Company received upon the exercise of any
such remedy. Upon any distribution of assets of the Company referred to in this
Article, the Trustee and the Holders of the Subordinated Securities and any
related coupons shall be entitled to rely upon any order or decree made by any
court of competent jurisdiction in which proceedings therefor are pending, or a
certificate of the liquidating trustee or agent or other person making any
distribution to the Trustee or to the Holders of the Subordinated Securities and
any related coupons, for the purpose of ascertaining the persons entitled to
participate in such distribution, the holders of the Senior Debt and other
indebtedness of the Company, the amount thereof or payable thereon, the amount
or amounts paid or distributed thereon and all other facts pertinent thereto or
to this Article.
Section 1406. Trustee Entitled to Assume Payments Not Prohibited in Absence of
Notice.
The Trustee shall not at any time be charged with knowledge of
the existence of any facts (other than the fact that the principal of (and
premium, if any) or interest, if any, on the Securities of any series shall have
been declared due and payable pursuant to Section 502) which would prohibit the
making of any payment to or by the Trustee, unless and until a Responsible
Officer shall have received written notice thereof from the Company or any
Holder of any Security or related coupon or any paying agent or holder or
representative of any class of Senior Debt; and, prior to the receipt of any
such written notice, the Trustee, subject to the provisions of Article Six,
shall be entitled to assume conclusively that no such facts exist. The Trustee
shall be entitled to rely on the delivery to it of a written notice by a Person
representing such Person to be a holder of Senior Debt (or a trustee or
representative on behalf of such Holder) to establish that such notice has been
given by a holder of Senior Debt or a trustee or representative on behalf of any
such holder or holders. In the event that the Trustee determines in good faith
that further evidence is required with respect to the right of any Person as a
holder of Senior Debt to participate in any payment or distribution pursuant to
this Article, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Debt held by
such Person, the extent to which such Person is entitled to participate in such
payment or distribution and any other facts pertinent to the rights of such
Person under this Article, and, if such evidence is not furnished, the Trustee
may defer payment to such Person pending judicial determination as to the right
of such Person to receive such payment.
If any holder of Senior Debt shall have notified the Trustee
in writing of such holder's desire to receive notice of any of the following
events and shall have provided the Trustee with an address for receipt of such
notices, the Trustee shall send notice of the following events to such holder
immediately upon the Trustee's acquisition of knowledge of any such events: (i)
the occurrence of an Event of Default hereunder, (ii) the acceleration of the
entire principal amount of any series of Securities, (iii) the execution of any
amendment or supplement to the Indenture, or (iv) the resignation or removal of
the Trustee or any change in the notice address of the Trustee.
Section 1407. Application by Trustee of Monies Deposited with It.
Any deposit of monies by the Company with the Trustee or any
Paying Agent (whether or not in trust) for the payment of the principal of,
premium, if any, and interest, if any, on any Securities other than pursuant to
Article Four shall be subject to the provisions of this Article except that, if
prior to the third Business Day prior to the date on which by the terms of this
Indenture any such monies may become payable for any purpose (including, without
limitation, the payment of the principal of, premium, if any, and interest, if
any, on any Subordinated Security) the Trustee or, in the case of any such
deposit of monies with a Paying Agent, the Paying Agent shall not have received
with respect to such monies the notice provided for in Section 1406, then the
Trustee or such Paying Agent, as the case may be, shall have full power and
authority to receive such monies and to apply the same to the purpose for which
they were received, and shall not be affected by any notice to the contrary
which may be received by it on or after such date. In the event that the Trustee
determines in good faith that further evidence is required with respect to the
right of any person as a holder of Senior Debt to participate in any payment or
distribution pursuant to this Article, the Trustee may request such person to
furnish evidence to the reasonable satisfaction of the Trustee as to the amount
of Senior Debt held by such person, the extent to which such person is entitled
to participate in such payment or distribution and any other facts pertinent to
the rights of such person under this Article, and if such evidence is not
furnished the Trustee may defer any payment to such person pending judicial
determination as to the right of such person to receive such payment.
The Trustee, however, shall not be deemed to owe any fiduciary
duty to the holders of Senior Debt but shall have only such obligations to such
holders as are expressly set forth in this Article.
Section 1408. Subordination Rights Not Impaired by Acts or Omissions of Company
or Holders of Senior Debt.
No right of any present or future holders of any Senior Debt
and coupons to enforce subordination as provided herein shall at any time in any
way be prejudiced or impaired by any act or failure to act on the part of the
Company or by any act or failure to act, in good faith, by any such holder, or
by any noncompliance by the Company with the terms of this Indenture, regardless
of any knowledge thereof which any such holder may have or be otherwise charged
with.
Section 1409. Securityholders Authorize Trustee to Effectuate Subordination of
Subordinated Securities.
Each Holder of the Subordinated Securities and related coupons
by his acceptance thereof authorizes and expressly directs the Trustee on his
behalf to take such action as may be necessary or appropriate to effectuate the
subordination provided in this Article and appoints the Trustee his
attorney-in-fact for such purpose, including, in the event of any dissolution,
winding up, liquidation or reorganization of the Company (whether in bankruptcy,
insolvency or receivership proceedings or upon an assignment for the benefit of
creditors or otherwise), the immediate filing of a claim for the unpaid balance
of its or his Subordinated Securities in the form required in said proceedings
and the causing of said claim to be approved. If the Trustee does not file a
proper claim or proof of debt in the form required in such proceeding prior to
30 days before the expiration of time to file such claims, then the holders of
Senior Debt are hereby authorized to have the right to file and are hereby
authorized to file an appropriate claim for and on behalf of the Holders of said
Subordinated Securities and coupons.
Section 1410. Trustee as Holder of Senior Debt.
The Trustee shall be entitled to all of the rights set forth
in this Article in respect of any Senior Debt at any time held by it to the same
extent as any other holder of Senior Debt, and nothing in this Indenture shall
be construed to deprive the Trustee of any of its rights as such holder.
Section 1411. Article Fourteen Not to Prevent Events of Default.
The failure to make a payment on account of principal of,
premium, if any, and interest, if any, by reason of any provision in this
Article shall not be construed as preventing the occurrence of an Event of
Default under Section 501.
ARTICLE 15.
CONVERSION AND EXCHANGE
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Section 1501. 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 1502. 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 1503. 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 1504. 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 1505. 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 1506. 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 1507. 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 1508. 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 1509. 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 1510. 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 1510 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.
The Chase Manhattan 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 ____, 2001, to be duly executed, and their
respective corporate seals to be hereunto affixed and attested, all as of ___,
2001.
KEYSPAN CORPORATION
By: _______________________________
Name:
Title:
Attest:
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THE CHASE MANHATTAN BANK, as Trustee
By: ________________________________
Name:
Title:
Attest:
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