Exhibit 4.22
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KEYSPAN CORPORATION
KEYSPAN CORPORATION TRUST ___
and
------------------------,
as Warrant Agent
-------------------------,
as Property Trustee
------------------------,
as Agent
UNIT AGREEMENT
Dated as of _____ __, 20__
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TABLE OF CONTENTS
Page
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RECITALS ................................................................................................1
ARTICLE I Definitions and Other Provisions of General Applications...........................2
Section 1.1. Definitions.....................................................................................2
Section 1.2. Compliance Certificates and Opinions............................................................9
Section 1.3. Form of Documents Delivered to Agent............................................................9
Section 1.4. Acts of Holders; Record Dates..................................................................10
Section 1.5. Notices........................................................................................11
Section 1.6. Notice to Holders; Waiver......................................................................12
Section 1.7. Effect of Headings and Table of Contents.......................................................12
Section 1.8. Successors and Assigns.........................................................................13
Section 1.9. Separability Clause............................................................................13
Section 1.10. Benefits of Agreement..........................................................................13
Section 1.11. Governing Law..................................................................................13
Section 1.12. Legal Holidays.................................................................................13
Section 1.13. Counterparts...................................................................................13
Section 1.14. Inspection of Agreement........................................................................13
ARTICLE II Certificate Forms................................................................14
Section 2.1. Forms of Certificates Generally; Legends.......................................................14
Section 2.2. Form of Agent's Certificate of Authentication..................................................17
ARTICLE III The Securities..................................................................17
Section 3.1. Amount; Form and Denominations.................................................................17
Section 3.2. Rights and Obligations Evidenced by the Certificates...........................................18
Section 3.3. Execution, Authentication, Delivery and Dating.................................................18
Section 3.4. Temporary Certificates.........................................................................19
Section 3.5. Registration; Registration of Transfer and Exchange............................................20
Section 3.6. Separation and Rejoining of Units..............................................................21
Section 3.7. Book-Entry Interests...........................................................................22
Section 3.8. Notices to Holders.............................................................................23
Section 3.9. Appointment of Successor Clearing Agency.......................................................23
Section 3.10. Definitive Certificates........................................................................23
Section 3.11. Mutilated, Destroyed, Lost and Stolen Certificates.............................................23
Section 3.12. Persons Deemed Owners..........................................................................24
Section 3.13. Cancellation...................................................................................25
Section 3.14. CUSIP Numbers..................................................................................25
Section 3.15. Special Transfer Provisions....................................................................25
ARTICLE IV The Preferred Securities.........................................................28
Section 4.1. Payment of Distribution; Rights to Distributions Preserved; Distribution Rate Reset............28
Section 4.2. Notice and Voting..............................................................................28
Section 4.3. Distribution of Debentures.....................................................................29
ARTICLE V Remarketing and Redemption; Early Exercise........................................29
Section 5.1. Remarketing and Redemption.....................................................................29
Section 5.2. Early Exercise of Warrants; Exchange of Preferred Securities and Repurchase of Debentures......32
Section 5.3. Change in Control..............................................................................32
Section 5.4. Certain Rights Following a Remarketing.........................................................33
ARTICLE VI Remedies.........................................................................33
Section 6.1. Unconditional Right of Holders to Receive Payments and to Purchase Common Stock................33
Section 6.2. Restoration of Rights and Remedies.............................................................33
Section 6.3. Rights and Remedies Cumulative.................................................................34
Section 6.4. Delay or Omission Not Waiver...................................................................34
Section 6.5. Undertaking for Costs..........................................................................34
Section 6.6. Waiver of Stay or Extension Laws...............................................................34
ARTICLE VII The Agent.......................................................................35
Section 7.1. Certain Duties and Responsibilities............................................................35
Section 7.2. Notice of Default..............................................................................36
Section 7.3. Certain Rights of Agent........................................................................36
Section 7.4. Not Responsible for Recitals or Issuance of Securities.........................................37
Section 7.5. May Hold Securities............................................................................37
Section 7.6. Money Held in Custody..........................................................................37
Section 7.7. Compensation and Reimbursement.................................................................37
Section 7.8. Corporate Agent Required; Eligibility..........................................................38
Section 7.9. Resignation and Removal; Appointment of Successor..............................................38
Section 7.10. Acceptance of Appointment by Successor.........................................................39
Section 7.11. Merger, Conversion, Consolidation or Succession to Business....................................40
Section 7.12. Preservation of Information; Communications to Holders.........................................40
Section 7.13. No Obligations of Agent........................................................................40
Section 7.14. Tax Compliance.................................................................................41
ARTICLE VIII Supplemental Agreements........................................................41
Section 8.1. Supplemental Agreements Without Consent of Holders.............................................41
Section 8.2. Supplemental Agreements With Consent of Holders; Other Fiduciaries.............................42
Section 8.3. Execution of Supplemental Agreements...........................................................43
Section 8.4. Effect of Supplemental Agreements..............................................................43
Section 8.5. Reference to Supplemental Agreements...........................................................43
ARTICLE IX Consolidation, Merger, Sale or Conveyance........................................43
Section 9.1. Covenant Not to Merge, Consolidate, Sell or Convey Property Except Under Certain Conditions....43
Section 9.2. Rights and Duties of Successor Corporation.....................................................44
Section 9.3. Opinion of Counsel Given to Agent..............................................................44
ARTICLE X Covenants.........................................................................44
Section 10.1. Performance Under Agreements...................................................................44
Section 10.2. Maintenance of Office or Agency................................................................45
Section 10.3. Statements of Officers of KeySpan as to Compliance.............................................45
Section 10.4. ERISA..........................................................................................45
Section 10.5. Statement by Officers as to Default............................................................45
Section 10.6. Calculation of Original Issue Discount.........................................................46
ARTICLE XI Representations of the Agent.....................................................46
Section 11.1. Representations and Warranties of the Agent....................................................46
ARTICLE XII The Warrant Agent and The Property Trustee......................................47
Section 12.1. Certain Duties and Responsibilities............................................................47
EXHIBIT A Form of Certificate
EXHIBIT B Instruction to Disregard Remarketing
EXHIBIT C Notice of Electing Remarketing Holder
EXHIBIT D Notice of Change of Control Redemption Election
EXHIBIT E Notice of Change of Control Exchange and Repurchase
UNIT AGREEMENT, dated as of _____ __, 20__ among KeySpan Corporation, a
New York corporation ("KeySpan "), KeySpan Corporation Trust __ , a statutory
Delaware business trust, ___________________, as Property Trustee for the Trust,
______________________, as Warrant Agent, and ___________________, acting as
unit agent for the Holders of the Securities from time to time (the "Agent").
RECITALS:
WHEREAS, the Issuers desire to issue __________________________________
Units consisting of:
(i) Preferred Securities (stated liquidation amount $___ per
preferred security) issued by the Trust pursuant to the
Declaration of Trust and guaranteed (the "Guarantee"; together
with the Preferred Securities, the "Trust Securities") by
KeySpan, to the extent set forth in the Guarantee Agreement; and
(ii) Warrants issued by KeySpan pursuant to the Warrant Agreement;
WHEREAS, concurrently with the issuance of the Trust Securities, the
Trust will invest the proceeds thereof (together with the proceeds of the
issuance to KeySpan of the common securities of the Trust) in Debentures;
WHEREAS the Issuers have duly authorized the execution and delivery of
this Agreement and the Certificates evidencing the Trust Securities;
WHEREAS, all things necessary to make the Preferred Securities, when
the Certificates are executed by the Trust and authenticated, executed on behalf
of the Holders and delivered by the Agent, as provided in this Agreement, the
valid obligations of the Trust, and to constitute these presents a valid
agreement of the Trust, in accordance with its terms, have been done; and
WHEREAS, all things necessary to make the Warrants and the Debentures,
when the Certificates are executed by KeySpan and authenticated, executed on
behalf of the Holders and delivered by the Agent, as provided in this Agreement,
the valid obligations of KeySpan, and to constitute these presents a valid
agreement of KeySpan, in accordance with its terms, have been done.
W I T N E S S E T H :
- - - - - - - - - -
NOW, THEREFORE, for and in consideration of the premises and the
purchase of the Securities by the Holders thereof, it is mutually agreed as
follows:
ARTICLE I
Definitions and Other Provisions
of General Applications
Section 1.1. Definitions.
For all purposes of this Agreement, except as otherwise expressly
provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned to them in
this Article and include the plural as well as the singular, and nouns
and pronouns of the masculine gender include the feminine and neutral
genders;
(b) all accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting
principles in the United States;
(c) the words "herein," "hereof" and "hereunder" and other words of similar
import refer to this Agreement as a whole and not to any particular
Article, Section, Exhibit or other subdivision;
(d) the following terms have the meanings given to them in this Section
1.1(d):
"Accreted Value" has the meaning given to it in the Declaration.
"Act," when used with respect to any Holder, has the meaning given to
it in Section 1.4.
"Action Expiration Date" has the meaning given to it in Section 1.4(e).
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Agent" means the Person named as the "Agent" in the first paragraph of
this instrument until a successor Agent shall have become such pursuant to the
applicable provisions of this Agreement, and thereafter "Agent" shall mean such
Person.
"Agreement" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more agreements
supplemental hereto entered into pursuant to the applicable provisions hereof.
"Applicable Procedures" means, with respect to any transfer or exchange
of or for the beneficial interests in the Global Units, the rules and procedures
of the Depositary that apply to such transfer or exchange.
"Bankruptcy Code" means title 11 of the United States Code, or any
other law of the United States that from time to time provides a uniform system
of bankruptcy laws.
"Beneficial Owner" means, with respect to a Global Unit, a Person who
is the beneficial owner of such Book-Entry Interest as reflected on the books of
the Clearing Agency or on the books of a Person maintaining an account with such
Clearing Agency (directly as a Clearing Agency Participant or as an indirect
participant, in each case in accordance with the rules of such Clearing Agency).
"Board of Directors" means the board of directors of KeySpan or a duly
authorized committee of that board.
"Board Resolution" means one or more resolutions of the Board of
Directors, a copy of which has been certified by the Secretary or an Assistant
Secretary of KeySpan to have been duly adopted by the Board of Directors and to
be in full force and effect on the date of such certification and delivered to
the Agent.
"Book-Entry Interest" means a beneficial interest in a Global Unit,
ownership and transfers of which shall be maintained and made through book
entries by a Clearing Agency as described in Section 3.7.
"Business Day" means any day other than a Saturday or Sunday or a day
on which banking institutions in The City of New York, or Seattle, Washington
are authorized or required by law or executive order to remain closed or a day
on which the Indenture Trustee, or the principal office of the Property Trustee
under the Declaration, is closed for business.
"Calculation Agent" means _____________________ under the Calculation
Agreement, and any successor thereto.
"Calculation Agreement" means the Calculation Agency Agreement dated as
of _____ __, 20__ between KeySpan and the Calculation Agent, as amended,
supplemented or replaced from time to time.
"Certificate" means a certificate evidencing the rights and obligations
of a Holder in respect of the number of Securities specified on such
Certificate, substantially in the form of Exhibit A hereto.
"Change of Control" has the meaning given to it in the Declaration.
"Change of Control Notice Date" has the meaning given to it in Section
5.3.
"Change of Control Redemption Right" has the meaning given to it in
Section 5.3.
"Change of Control Repurchase Right" has the meaning given to it in
Section 5.3.
"Clearing Agency" means an organization registered as a "Clearing
Agency" pursuant to Section 17A of the Exchange Act that is acting as a
depositary for the Securities and in whose name, or in the name of a nominee of
that organization, shall be registered a Global Unit and which shall undertake
to effect book entry transfers and pledges of the Securities.
"Clearing Agency Participant" means a broker, dealer, bank, other
financial institution or other Person for whom from time to time the Clearing
Agency effects book entry transfers and pledges of securities deposited with the
Clearing Agency.
"Code" means the Internal Revenue Code of 1986, as amended.
"Common Stock" means the common stock, without par value, of KeySpan.
"Corporate Trust Office" means the principal corporate trust office of
the Agent at which, at any particular time, its corporate trust business shall
be administered, which office at the date hereof is located at
_____________________________________________ Attention:
_________________________.
"Coupon Rate" means the percentage rate per annum at which each
Debenture will bear interest initially which rate, on and after the Remarketing
Date, will be the Reset Rate established in the Remarketing on the Remarketing
Date.
"Debenture Certificates" has the meaning given to it in Section 3.10.
"Debentures" means the ______% Junior Subordinated Deferrable Interest
Debentures due _____ __, 20__ to be issued by KeySpan pursuant to the Indenture.
"Declaration" means the Amended and Restated Declaration of Trust of
KeySpan Corporation Trust __, dated as of_____ __, 20__, among KeySpan, as the
sponsor and the trustees named therein.
"Definitive Certificates" means definitive, physical fully registered
Certificates delivered in accordance with Section 3.10.
"Depositary" means DTC until another Clearing Agency becomes its
successor.
"Distribution Rate" has the meaning given to it in Section 5.1.
"DTC" means The Depository Trust Company, the initial Clearing Agency.
"Electing Remarketing Holder" has the meaning given to it in Section
5.1.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"Exchange Act" means the Securities Exchange Act of 1934 and any
statute successor thereto, in each case as amended from time to time, and the
rules and regulations promulgated thereunder.
"Exchange Agent" has the meaning given to it in the Declaration.
"Exercise Price" has the meaning given to it in the Warrant Agreement.
"Expiration Date" has the meaning given to it in the Warrant Agreement.
"Global Unit" means a Certificate that evidences all or part of the
Securities and is registered in the name of a Clearing Agency or a nominee
thereof.
"Guarantee" has the meaning assigned to it in the Recitals hereto.
"Guarantee Agreement" means the Guarantee Agreement dated as of ______
__, 20__ between KeySpan and the Guarantee Trustee, as amended or supplemented
from time to time.
"Guarantee Trustee" means ____________________, as trustee under the
Guarantee Agreement, or any successor thereto
"Holder," when used with respect to a Security, means the Person in
whose name the Security evidenced by a Certificate is registered in the
Register; provided, however, that in determining whether the Holders of the
requisite number of Securities have voted on any matter, then for the purpose of
such determination only (and not for any other purpose hereunder), if the
Security remains in the form of one or more Global Units and if the Clearing
Agency which is the holder of such Global Unit has sent an omnibus proxy
assigning voting rights to the Clearing Agency Participants to whose accounts
the Securities are credited on the record date, the term "Holder" shall mean
such Clearing Agency Participant acting at the direction of the Beneficial
Owners.
"Indenture" means the Indenture, dated as of November 1, 2000, between
KeySpan and the Indenture Trustee, as amended by the First Supplemental
Indenture dated as of ______ __, 20__, as further amended and supplemented
(including any provisions of the TIA that are deemed incorporated therein),
pursuant to which the Debentures are to be issued.
"Indenture Trustee" means The Chase Manhattan Bank, as trustee under
the Indenture, or any successor thereto.
"Initial Purchaser" means ____________________.
"Issuer Order" or "Issuer Request" means a written request or order
signed in the name of KeySpan by its President or a Senior Executive Vice
President and by its Treasurer, its Secretary or an Assistant Secretary, and
delivered to the Agent.
"Issuers" is a collective reference to KeySpan and the Trust.
"Legal Cause Remarketing Event" has the meaning given to it in the
Declaration.
"Maturity Remarketing Date" has the meaning given to it in the
Declaration.
"Notice of Remarketing" means a Notice of Remarketing delivered
pursuant to the Declaration.
"Officers' Certificate" means a certificate signed by the President or
a Senior Executive Vice President and by the Treasurer, the Secretary or an
Assistant Secretary, of KeySpan, and delivered to the Agent. Any Officers'
Certificate delivered with respect to compliance with a condition or covenant
provided for in this Agreement shall include:
(a) a statement that each officer signing the Officers' Certificate has
read the covenant or condition and the definitions relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer in rendering the Officers'
Certificate;
(c) a statement that each such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable
such officer to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such officer, such
condition or covenant has been complied with.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for KeySpan (and who may be an employee of KeySpan), and who shall be
reasonably acceptable to the Agent. An opinion of counsel may rely on
certificates as to matters of fact.
"Outstanding Securities," with respect to any Security means, as of the
date of determination, all Securities evidenced by Certificates theretofore
authenticated, executed and delivered under this Agreement, except:
(i) Securities evidenced by Certificates theretofore cancelled by the
Agent or delivered to the Agent for cancellation or deemed cancelled
pursuant to the provisions of this Agreement; and
(ii) Securities evidenced by Certificates in exchange for or in lieu of
which other Certificates have been authenticated, executed on behalf
of the Holder and delivered pursuant to this Agreement, other than any
such Certificate in respect of which there shall have been presented
to the Agent proof satisfactory to it that such Certificate is held by
a bona fide purchaser in whose hands the Security evidenced by such
Certificate are valid obligations of KeySpan;
provided, however, that in determining whether the Holders of the requisite
number of the Securities have given any request, demand, authorization,
direction, notice, consent or waiver hereunder, Securities owned by KeySpan or
any Affiliate of KeySpan shall be disregarded and deemed not to be Outstanding
Securities, except that, in determining whether the Agent shall be protected in
relying upon any such request, demand, authorization, direction, notice, consent
or waiver, only Securities which a Responsible Officer of the Agent knows to be
so owned shall be so disregarded. Securities so owned which have been pledged in
good faith may be regarded as Outstanding Securities if the pledgee establishes
to the satisfaction of the Agent the pledgee's right so to act with respect to
such Securities and that the pledgee is not KeySpan or any Affiliate of KeySpan.
"Party" or "Parties" have the respective meanings given to them in
Section 12.1.
"Payment Date" means each _________ __, _________ __, _________
__and_________ __, commencing _________ __, 20__.
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint-stock company, limited
liability company, trust, unincorporated organization or government or any
agency or political subdivision thereof or any other entity of whatever nature.
"Plan" means an employee benefit plan that is subject to ERISA, a plan
or individual retirement account that is subject to Section 4975 of the Code or
any entity whose assets are considered assets of any such plan.
"Predecessor Certificate" of any particular Certificate means every
previous Certificate evidencing all or a portion of the rights and obligations
of the Issuers and the Holder under the Securities evidenced thereby; and, for
the purposes of this definition, any Certificate authenticated and delivered
under Section 3.11 in exchange for or in lieu of a mutilated, destroyed, lost or
stolen Certificate shall be deemed to evidence the same rights and obligations
of the Issuers and the Holder as the mutilated, destroyed, lost or stolen
Certificate.
"Preferred Securities" means the Preferred Securities of the Trust,
each having a stated liquidation amount of $___, representing preferred
undivided beneficial ownership interests in the assets of the Trust.
"Property Trustee" means ____________________, as property trustee
under the Declaration, or any successor thereto.
"Record Date" with respect to any Payment Date, means the Business Day
immediately preceding such Payment Date.
"Register" and "Registrar" have the respective meanings given to them
in Section 3.5.
"Regulation S" has the meaning given to it in Section 2.1.
"Regulation S Global Unit" has the meaning given to it in Section 2.1.
"Regulation S Permanent Global Unit" has the meaning given to it in
Section 2.1.
"Remarketing" has the meaning given to it in the Declaration.
"Remarketing Agent" means the remarketing agent under the Remarketing
Agreement.
"Remarketing Agreement" means a Remarketing Agreement to be entered
into among KeySpan, the Trust and the Remarketing Agent.
"Remarketing Date" has the meaning given to it in the Declaration.
"Remarketing Event" has the meaning given to it in the Declaration.
"Remarketing Settlement Date" with respect to any Remarketing, means
the date which is two Business Days following the applicable Remarketing Date.
"Required Repurchase Date" has the meaning given to it in the
Declaration.
"Resale Registration Rights Agreement" means the Resale Registration
Rights Agreement dated _________ __, 20__ among KeySpan, the Trust and the
Initial Purchaser.
"Reset Rate" has the meaning given to it in the Declaration.
"Responsible Officer," when used with respect to the Agent, means any
officer within the corporate trust department of the Agent, including any vice
president, assistant vice president, assistant secretary, assistant treasurer,
trust officer or any other officer of the Agent who customarily performs
functions similar to those performed by the Persons who at the time shall be
such officers, respectively, or to whom any corporate trust matter is referred
because of such person's knowledge of and familiarity with the particular
subject and who shall have direct responsibility for the administration of this
Agreement.
"Restricted Period" has the meaning given to it in Section 2.1.
"Restricted Regulation S Global Unit" has the meaning given to it in
Section 2.1.
"Rule 144A" has the meaning given to it in Section 2.1.
"Rule 144 Global Unit" has the meaning given to it in Section 2.1.
"Securities Act Legend" means, with respect to a Security prior to the
registration thereof under the Securities Act, the applicable legend(s)
appearing in Section 2.1(b).
"Security" means the collective rights and obligations of a Holder of a
Certificate in respect of a Preferred Security, a Debenture and a Warrant.
"TIA" means the Trust Indenture Act of 1939, as amended.
"Trading Remarketing Event" has the meaning given to it in the
Declaration.
"Trust" means KeySpan Corporation Trust __, a statutory business trust
formed under the laws of the State of Delaware, or any successor thereto by
merger or consolidation.
"Trust Securities" has the meaning given to it in the Recitals hereto.
"Vice President" means any vice president, whether or not designated by
a number or a word or words added before or after the title "vice president."
"Warrant" means the Warrants issued by KeySpan pursuant to the Warrant
Agreement representing the right to purchase Common Stock.
"Warrant Agent" means ______________________, as warrant agent under
the Warrant Agreement, or any successor thereto.
"Warrant Agreement" means the Warrant Agreement dated as of _________
__, 20__ between KeySpan and the Warrant Agent, as amended and supplemented,
pursuant to which the Warrants are issued.
"Warrant Value" has the meaning given to it in the Warrant Agreement.
"KeySpan" means KeySpan Corporation, a Washington corporation, until
there shall be a successor thereto pursuant to the applicable provision of this
Agreement, and thereafter "KeySpan" shall mean such successor.
Section 1.2. Compliance Certificates and Opinions.
Except as otherwise expressly provided by this Agreement, upon any
application or request by KeySpan to the Agent to take any action in accordance
with any provision of this Agreement, KeySpan shall furnish to the Agent an
Officers' Certificate stating that all conditions precedent, if any, provided
for in this Agreement relating to the proposed action have been complied with
and, if requested by the Agent, an Opinion of Counsel stating that, in the
opinion of such counsel, all such conditions precedent, if any, have been
complied with, except that in the case of any such application or request as to
which the furnishing of such documents is specifically required by any provision
of this Agreement relating to such particular application or request, no
additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Agreement shall include:
(1) a statement that each individual signing such certificate or opinion has
read such covenant or condition and the definitions herein relating
thereto;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he or she has
made such examination or investigation as is necessary to enable such
individual to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such individual, such
condition or covenant has been complied with.
Section 1.3. Form of Documents Delivered to Agent.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of KeySpan may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of KeySpan stating that the
information with respect to such factual matters is in the possession of KeySpan
unless such counsel knows, or in the exercise of reasonable care should know,
that the certificate or opinion or representations with respect to such matters
are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Agreement, they may, but need not, be consolidated and
form one instrument.
Section 1.4. Acts of Holders; Record Dates.
(a) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Agreement to be given or taken by Holders may
be embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by an agent duly appointed in writing;
and, except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments are delivered to the Agent and,
where it is hereby expressly required, to KeySpan. Such instrument or
instruments (and the action embodied therein and evidenced thereby) are herein
sometimes referred to as the "Act" of the Holders signing such instrument or
instruments. Proof of execution of any such instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this Agreement
and (subject to Section 7.1) conclusive in favor of the Agent and KeySpan, if
made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such instrument
or writing may be proved in any manner which the Agent deems sufficient.
(c) The ownership of Securities shall be proved by the Register.
(d) Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Holder of any Certificate shall bind every future Holder of
the same Certificate and the Holder of every Certificate issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Agent or KeySpan
in reliance thereon, whether or not notation of such action is made upon such
Certificate.
(e) KeySpan may set any day as a record date for the purpose of determining
the Holders of Outstanding Securities entitled to give, make or take any
request, demand, authorization, direction, notice, consent, waiver or other
action provided or permitted by this Agreement to be given, made or taken by
Holders of Securities. If any record date is set pursuant to this paragraph, the
Holders of the Outstanding Securities, on such record date, and no other
Holders, shall be entitled to take the relevant action with respect to the
Securities, whether or not such Holders remain Holders after such record date;
provided that no such action shall be effective hereunder unless taken on or
prior to the applicable Action Expiration Date by Holders of the requisite
number of Outstanding Securities on such record date. Nothing in this paragraph
shall be construed to prevent KeySpan from setting a new record date for any
action for which a record date has previously been set pursuant to this
paragraph (whereupon the record date previously set shall automatically and with
no action by any Person be cancelled and be of no effect), and nothing in this
paragraph shall be construed to render ineffective any action taken by Holders
of the requisite number of Outstanding Securities on the date such action is
taken. Promptly after any record date is set pursuant to this paragraph,
KeySpan, at its own expense, shall cause notice of such record date, the
proposed action by Holders and the applicable Expiration Date to be given to the
Agent in writing and to each Holder of Securities in the manner set forth in
Section 1.6.
With respect to any record date set pursuant to this Section, KeySpan
may designate any date as the "Action Expiration Date" and from time to time may
change the Expiration Date to any earlier or later day; provided that no such
change shall be effective unless notice of the proposed new Action Expiration
Date is given to the Agent in writing, and to each Holder of Securities in the
manner set forth in Section 1.6, on or prior to the existing Action Expiration
Date. If an Action Expiration Date is not designated with respect to any record
date set pursuant to this Section, KeySpan shall be deemed to have initially
designated the 180th day after such record date as the Action Expiration Date
with respect thereto, subject to its right to change the Action Expiration Date
as provided in this paragraph. Notwithstanding the foregoing, no Action
Expiration Date shall be later than the 180th day after the applicable record
date.
Section 1.5. Notices.
Any notice or communication is duly given if in writing and delivered
in Person or mailed by first class mail (registered or certified, return receipt
requested), telecopier (with receipt confirmed) or overnight air courier
guaranteeing next day delivery, to the others' address; provided that notice
shall be deemed given to the Agent only upon receipt thereof:
If to the Agent:
------------------------
------------------------
------------------------
Telecopier No.: ___________
Attention: ____________________
If to KeySpan:
KeySpan Corporation
One Metrotech Center
Brooklyn, New York 11201
Telecopier No.: (718) 403-6121
Attention: General Counsel
If to the Warrant Agent:
------------------------
------------------------
------------------------
Telecopier No.: ___________
Attention: ____________________
If to the Property Trustee:
------------------------
------------------------
------------------------
Telecopier No.: ___________
Attention: ____________________
If to the Indenture Trustee:
The Chase Manhattan Bank
450 West 33rd Street, 15th Floor
New York, New York 10001
Telecopier No.: __________
Attention: __________
Section 1.6. Notice to Holders; Waiver.
Where this Agreement provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at its address as it appears in the Register, not later than the
latest date, and not earlier than the earliest date, prescribed for the giving
of such notice. In any case where notice to Holders is given by mail, neither
the failure to mail such notice, nor any defect in any notice so mailed to any
particular Holder shall affect the sufficiency of such notice with respect to
other Holders. Where this Agreement provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Holders shall be filed with the Agent, but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by mail,
then such notification as shall be made with the approval of the Agent shall
constitute a sufficient notification for every purpose hereunder.
Section 1.7. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
Section 1.8. Successors and Assigns.
All covenants and agreements in this Agreement by KeySpan shall bind
its successors and assigns, whether so expressed or not.
Section 1.9. Separability Clause.
In case any provision in this Agreement or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions hereof and thereof shall not in any way be affected or
impaired thereby.
Section 1.10. Benefits of Agreement.
Nothing in this Agreement or in the Securities, express or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder and, to the extent provided hereby, the Holders, any benefits or any
legal or equitable right, remedy or claim under this Agreement. The Holders from
time to time shall be beneficiaries of this Agreement and shall be bound by all
of the terms and conditions hereof and of the Securities evidenced by their
Certificates by their acceptance of delivery of such Certificates.
Section 1.11. Governing Law.
This Agreement and the Securities shall be governed by and construed in
accordance with the laws of the State of New York, without regard to principles
of conflicts of laws.
Section 1.12. Legal Holidays.
In any case where any Payment Date shall not be a Business Day, then
(notwithstanding any other provision of this Agreement or the Certificates)
payment of any amounts otherwise payable on such date shall not be made on such
date, but such payments shall be made on the next succeeding Business Day with
the same force and effect as if made on such Payment Date, provided that no
interest shall accrue or be payable for the period from and after any such
Payment Date, except that, if such next succeeding Business Day is in the next
succeeding calendar year, such payment shall be made on the immediately
preceding Business Day with the same force and effect as if made on such Payment
Date.
Section 1.13. Counterparts.
This Agreement may be executed in any number of counterparts by the
parties hereto on separate counterparts, each of which, when so executed and
delivered, shall be deemed an original, but all such counterparts shall together
constitute one and the same instrument.
Section 1.14. Inspection of Agreement.
A copy of this Agreement shall be available at all reasonable times
during normal business hours at the Corporate Trust Office for inspection by any
Holder or Beneficial Owner.
ARTICLE II
Certificate Forms
Section 2.1. Forms of Certificates Generally; Legends.
(a) Each Security will consist of one Preferred Security and one
Warrant. The Certificates shall be printed, lithographed or engraved on steel
engraved borders or may be produced in any other manner, all as determined by
the officers of KeySpan executing the Securities evidenced by such Certificates,
consistent with the provisions of this Agreement, as evidenced by their
execution thereof.
Securities offered and sold in reliance on Rule 144A under the
Securities Act ("Rule 144A") shall be issued initially in the form of one or
more permanent global notes in registered form without interest coupons, in
substantially the form set forth in Exhibit A (a "Rule 144A Global Unit"),
deposited with the Unit Agent, as custodian for DTC, as Depositary, duly
executed by each Issuer and authenticated by the Agent as hereinafter provided.
The aggregate principal amount of the Rule 144A Global Units may from time to
time be increased or decreased by adjustments made on the records of the Agent,
as custodian for the Depositary, as hereinafter provided.
Securities offered and sold in reliance on Regulation S under the
Securities Act ("Regulation S") shall be issued initially in the form of one or
more global notes in registered form without interest coupons, in substantially
the form set forth in Exhibit A (a "Restricted Regulation S Global Unit"), which
shall be deposited with the Agent, as custodian for the Depositary, and
registered in the name of the Depositary or the nominee of the Depositary for
the accounts of designated agents holding on behalf of Euroclear or Clearstream,
duly executed by each Issuer and authenticated by the Agent as hereinafter
provided. The one-year restricted period (as defined in Regulation S, the
"Restricted Period") for any Security shall be terminated upon the receipt by
the Agent of:
(i) a written certificate from the Depositary, together with
copies of certificates from Euroclear and Clearstream certifying that
they have received certification of non-United States beneficial
ownership of 100% of the interests in the Restricted Regulation S
Global Unit (except to the extent of any beneficial owners thereof who
acquired an interest therein during the Restricted Period pursuant to
another exemption from registration under the Securities Act and who
will take delivery of a beneficial ownership interest in a 144A Global
Unit, and
(ii) an Officers' Certificate from the Issuers.
Following the termination of the Restricted Period, beneficial
interests in a Restricted Regulation S Global Unit shall be exchanged for
beneficial interests in one or more permanent global notes in registered form
without interest coupons, in substantially the form set forth in Exhibit A (a
"Regulation S Permanent Global Unit" and collectively with the Restricted
Regulation S Global Unit, the "Regulation S Global Units") pursuant to the
Applicable Procedures. Simultaneously with the authentication of the Regulation
S Permanent Global Units, the Agent shall cancel the Restricted Regulation S
Global Units with respect to such Series. The aggregate principal amount of the
Restricted Regulation S Global Units of each series and the Regulation S
Permanent Global Units of each series may from time to time be increased or
decreased by adjustments made on the records of the Trustee and the Depositary
or its nominee, as the case may be, in connection with transfers of interest as
hereinafter provided.
The Rule 144A Global Units, the Restricted Regulation S Global Units
and the Regulation S Permanent Global Units are collectively referred to herein
as the "Global Units."
The provisions of the "Operating Procedures of the Euroclear System"
and "Terms and Conditions Governing Use of Euroclear" and the "General Terms and
Conditions of Clearstream" and "Customer Handbook" of Clearstream shall be
applicable to transfers of beneficial interests in the Restricted Regulation S
Global Units and the Regulation S Global Units that are held by Participants
through Euroclear or Clearstream.
(b) Every Global Unit authenticated, executed on behalf of the Holders
and delivered hereunder shall bear a legend in substantially the following form:
"THIS CERTIFICATE IS A GLOBAL CERTIFICATE WITHIN THE MEANING OF THE
UNIT AGREEMENT HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (THE
"DEPOSITARY"), OR A NOMINEE OF THE DEPOSITARY. THIS CERTIFICATE IS
EXCHANGEABLE FOR CERTIFICATES REGISTERED IN THE NAME OF A PERSON OTHER
THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE UNIT AGREEMENT AND NO TRANSFER OF THIS CERTIFICATE
(OTHER THAN A TRANSFER OF THIS CERTIFICATE 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 LIMITED CIRCUMSTANCES.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITARY FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH
OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITARY (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH
OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITARY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
Unless and until the Securities have been registered as contemplated in
the Resale Registration Rights Agreement, or otherwise, every certificate
authenticated, executed and delivered hereunder shall bear a legend in
substantially the following form:
THE SECURITY EVIDENCED BY THIS CERTIFICATE HAS NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR
ANY STATE SECURITIES LAWS, AND MAY NOT BE OFFERED OR SOLD WITHIN THE
UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS
EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ACQUISITION HEREOF,
THE HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL
BUYER" AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT, OR (B) IT IS
NOT A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN "OFFSHORE
TRANSACTION" PURSUANT TO RULE 903 OR 904 OF REGULATION S; (2) AGREES
THAT IT WILL NOT WITHIN TWO YEARS AFTER THE ORIGINAL ISSUANCE OF THIS
SECURITY RESELL OR OTHERWISE TRANSFER THE SECURITY EVIDENCED HEREBY
EXCEPT (A) TO KEYSPAN OR ANY SUBSIDIARY THEREOF, (B) TO A QUALIFIED
INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES
ACT (IF AVAILABLE), (C) PURSUANT TO OFFERS AND SALES TO NON-U.S.
PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF
REGULATION S UNDER THE SECURITIES ACT, IN COMPLIANCE WITH REGULATION S
UNDER THE SECURITIES ACT, (D) PURSUANT TO THE EXEMPTION FROM
REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF
AVAILABLE) OR (E) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN
DECLARED EFFECTIVE UNDER THE SECURITIES ACT AND WHICH CONTINUES TO BE
EFFECTIVE AT THE TIME OF SUCH TRANSFER; AND (3) AGREES THAT IT WILL
DELIVER TO EACH PERSON TO WHOM THE SECURITY EVIDENCED HEREBY IS
TRANSFERRED (OTHER THAN A TRANSFER PURSUANT TO CLAUSE 2(E) ABOVE) A
NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN CONNECTION WITH
ANY TRANSFER OF THE SECURITY EVIDENCED HEREBY WITHIN TWO YEARS AFTER
THE ORIGINAL ISSUANCE OF SUCH SECURITY (OTHER THAN A TRANSFER PURSUANT
TO CLAUSE 2(E) ABOVE), THE HOLDER MUST CHECK THE APPROPRIATE BOX SET
FORTH ON THE REVERSE HEREOF RELATING TO THE MANNER OF SUCH TRANSFER AND
SUBMIT THIS CERTIFICATE TO THE TRUSTEE (OR ANY SUCCESSOR TRUSTEE, AS
APPLICABLE). IF THE PROPOSED TRANSFER IS PURSUANT TO CLAUSE 2(C) OR
2(D) ABOVE, THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE
TRUSTEE (OR ANY SUCCESSOR TRUSTEE, AS APPLICABLE) SUCH CERTIFICATIONS,
LEGAL OPINIONS OR OTHER INFORMATION AS KEYSPAN MAY REASONABLY REQUIRE,
TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION
FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT. THIS LEGEND WILL BE REMOVED UPON THE EARLIER OF
THE TRANSFER OF THE SECURITY EVIDENCED HEREBY PURSUANT TO CLAUSE 2(E)
ABOVE OR THE EXPIRATION OF TWO YEARS FROM THE ORIGINAL ISSUANCE OF THE
SECURITY EVIDENCED HEREBY. AS USED HEREIN, THE TERMS "OFFSHORE
TRANSACTION," "UNITED STATES" AND "U.S. PERSON" HAVE THE MEANINGS GIVEN
TO THEM BY REGULATION S UNDER THE SECURITIES ACT.
The holder of this security by its acceptance hereof agrees to be bound
by the provisions of the RESALE registration rights agreement relating
to all the securities.
Each Restricted Regulation S Global Unit shall bear the following
legend on the face thereof :
Prior to expiration of the one-year distribution compliance period (as
defined in Regulation S under the Securities Act of 1933 (the
"Securities Act")) ("Regulation S"), this security may not be offered,
sold, pledged or otherwise transferred within the United States (as
defined in Regulation S) or to, or for the account or benefit of, a
U.S. Person (as defined in Regulation S), except (A) to a person
reasonably believed to be a "Qualified Institutional Buyer" (as defined
in Rule 144A ("Rule 144A") under the Securities Act) in a transaction
meeting the requirements of Rule 144A, (B) PURSUANT TO THE EXEMPTION
FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF
AVAILABLE) OR (C) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN
DECLARED EFFECTIVE UNDER THE SECURITIES ACT AND WHICH CONTINUES TO BE
EFFECTIVE AT THE TIME OF SUCH TRANSFER.
Every certificate (which a Global Unit or a definitive
certificate)representing a Security shall bear a legend to the following effect:
THE CONSTITUENT COMPONENTS OF THIS UNIT MUST BE SEPARATED PRIOR TO
TRANSFER (EXCEPT AS PART OF A UNIT) AS PROVIDED IN THE UNIT AGREEMENT."
Finally, the Warrants and Preferred Securities which constitute
components of the Securities shall bear additional legends (including
restrictions on transferability) as described in the constituent documents for
such securities.
Section 2.2. Form of Agent's Certificate of AuthenticationThe form of the
Agent's certificate of authentication of the Securities shall be in
substantially the form set forth on the form of the Certificates.
ARTICLE III
The Securities
Section 3.1. Amount; Form and Denominations.
The aggregate number of Securities evidenced by Certificates
authenticated, executed on behalf of the Holders and delivered hereunder is
limited to _____________ except for Certificates authenticated, executed and
delivered upon registration of transfer of, in exchange for, or in lieu of,
other Certificates pursuant to Section 3.4, 3.5, 3.10, 3.13 or 8.5.
The Certificates shall be issuable only in registered form and only in
denominations of a single Security and any integral multiple thereof.
On the date of issuance of the Units, KeySpan shall allocate $_____ of
the purchase price thereof to the Preferred Securities and $_____ of the
purchase price to the Warrants.
Section 3.2. Rights and Obligations Evidenced by the Certificates.
Each Certificate shall evidence the number of Securities specified
therein, with each such Security representing the ownership by the Holder
thereof of a beneficial interest in a Preferred Security (or Debenture upon a
liquidation of the Trust) and a Warrant and entitled to the benefits of the
Declaration, the Indenture, the Warrant Agreement and all agreements ancillary
thereto.
Section 3.3. Execution, Authentication, Delivery and Dating.
Subject to the provisions of Section 3.6 hereof, upon the execution and
delivery of this Agreement, and at any time and from time to time thereafter,
KeySpan and the Trust may deliver Certificates executed by KeySpan and an
Administrative Trustee on behalf of the Trust to the Agent for authentication,
execution on behalf of the Holders and delivery, together with its Issuer Order
for authentication of such Certificates, and the Agent in accordance with such
Issuer Order shall authenticate, execute on behalf of the Holders and deliver
such Certificates. In authenticating such Securities, and accepting the
additional responsibilities under this Indenture in relation to such Securities,
the Agent shall be entitled to receive, and, shall be fully protected in relying
upon:
(a) copy of the resolution or resolutions of the Board of Directors in or
pursuant to which the terms and form of the Securities were
established, certified by the Secretary or an Assistant Secretary of
the Company to have been duly adopted by the Board of Directors and to
be in full force and effect as of the date of such certificate, and if
the terms and form of such Securities are established by an Officers'
Certificate pursuant to general authorization of the Board of
Directors, such Officers' Certificate;
(b) an Officers' Certificate delivered in accordance with Section 1.3; and
(c) an Opinion of Counsel which shall state:
(1) that the terms of such Securities have been established in
accordance with Section 2.1 and in conformity with the other
provisions of this Agreement;
(2) that such Securities, when authenticated and delivered by the
Agent and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute
valid and legally binding obligations of the Company, enforceable
in accordance with their terms, subject to bankruptcy,
insolvency, reorganization and other laws of general
applicability relating to or affecting the enforcement of
creditors' rights and to general equity principles; and
(3) that all laws and requirements in respect of the execution and
delivery by the Company of such Securities have been complied
with.
The Agent shall have the right to decline to authenticate and deliver
any Securities under this Section if the Agent, being advised by counsel,
determines that such action may not lawfully be taken or if the Agent in good
faith shall determine that such action would expose the Agent to personal
liability to existing Holders.
The Certificates shall be executed on behalf of KeySpan (in respect of
the Warrants) by its President or a Senior Executive Vice President, and shall
be executed on behalf of the Trust (in respect of the Preferred Securities) by
an Administrative Trustee. The signature of any of these officers on the
Certificates may be manual or facsimile.
Certificates bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of KeySpan shall bind KeySpan,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Certificates or did not
hold such offices at the date of such Certificates. Certificates bearing the
manual or facsimile signatures of individuals who were at any time
Administrative Trustees of the Trust shall bind the Trust, notwithstanding that
such individuals or any of them have ceased to hold such offices prior to the
authentication and delivery of such Certificates or did not hold such offices at
the date of such Certificates.
Each Certificate shall be dated the date of its authentication.
No Certificate shall be entitled to any benefit under this Agreement or
be valid or obligatory for any purpose unless there appears on such Certificate
a certificate of authentication substantially in the form provided for herein
executed by an authorized signatory of the Agent by manual signature, and such
certificate upon any Certificate shall be conclusive evidence, and the only
evidence, that such Certificate has been duly authenticated and delivered
hereunder.
Section 3.4. Temporary Certificates.
Pending the preparation of definitive Certificates, KeySpan shall
execute and deliver to the Agent, and the Agent shall authenticate, execute on
behalf of the Holders, and deliver, in lieu of such definitive Certificates,
temporary Certificates which are in substantially the form set forth in Exhibit
A hereto, with such letters, numbers or other marks of identification or
designation and such legends or endorsements printed, lithographed or engraved
thereon as may be required by the rules of any securities exchange on which the
Securities are listed, or as may, consistently herewith, be determined by the
officers of KeySpan executing such Certificates, as evidenced by their execution
of the Certificates.
If temporary Certificates are issued, KeySpan will cause definitive
Certificates to be prepared without unreasonable delay. After the preparation of
definitive Certificates, the temporary Certificates shall be exchangeable for
definitive Certificates upon surrender of the temporary Certificates at the
Corporate Trust Office, at the expense of KeySpan and without charge to the
Holder. Upon surrender for cancellation of any one or more temporary
Certificates, KeySpan shall execute and deliver to the Agent, and the Agent
shall authenticate, execute on behalf of the Holder, and deliver in exchange
therefor, one or more definitive Certificates of like tenor and denominations
and evidencing a like number of Securities as the temporary Certificate or
Certificates so surrendered. Until so exchanged, the temporary Certificates
shall in all respects evidence the same benefits and the same obligations with
respect to the Securities evidenced thereby as definitive Certificates.
Section 3.5. Registration; Registration of Transfer and Exchange.
(a) The Agent shall keep at the Corporate Trust Office a register (the
"Register") in which, subject to such reasonable regulations as it may
prescribe, the Agent shall provide for the registration of Certificates and of
transfers of Certificates (the Agent, in such capacity, the "Registrar").
No beneficial interest in a Warrant or a Preferred Security that is a
component of a Security represented by a Certificate may be transferred or
exchanged (except by a transfer or exchange of such Security) until such
components have been separated in accordance with Section 3.6 hereof, and each
Certificate shall bear a legend to that effect.
Upon surrender for registration of transfer of any Certificate at the
Corporate Trust Office, KeySpan shall execute and deliver to the Agent, and the
Agent shall authenticate, execute on behalf of the designated transferee or
transferees, and deliver, in the name of the designated transferee or
transferees, one or more new Certificates of any authorized denominations, like
tenor, and evidencing a like number of Securities.
At the option of the Holder, Certificates may be exchanged for other
Certificates, of any authorized denominations and evidencing a like number of
Securities upon surrender of the Certificates to be exchanged at the Corporate
Trust Office. Whenever any Certificates are so surrendered for exchange, KeySpan
and the Trust shall execute and deliver to the Agent, and the Agent shall
authenticate, execute on behalf of the Holder, and deliver the Certificates
which the Holder making the exchange is entitled to receive.
All Certificates issued upon any registration of transfer or exchange
of a Certificate shall evidence the ownership of the same number of Securities,
and be entitled to the same benefits and subject to the same obligations, under
this Agreement as the Securities evidenced by the Certificate surrendered upon
such registration of transfer or exchange.
Every Certificate presented or surrendered for registration of transfer
or for exchange shall (if so required by the Agent) be duly endorsed, or be
accompanied by a written instrument of transfer in form satisfactory to KeySpan,
the Trust and the Agent duly executed, by the Holder thereof or its attorney
duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of a Certificate, but KeySpan and the Agent may require payment from
the Holder of a sum sufficient to cover any tax or other governmental charge
that may be imposed in connection with any registration of transfer or exchange
of Certificates, other than any exchanges pursuant to Sections 3.6, 3.7 and 8.5
not involving any transfer and the Trust.
Notwithstanding the foregoing, KeySpan and the Trust shall not be
obligated to execute and deliver to the Agent, and the Agent shall not be
obligated to authenticate, execute on behalf of the Holder and deliver any
Certificate in exchange for any other Certificate presented or surrendered for
registration of transfer or for exchange on or after the Business Day
immediately preceding the Expiration Date. In lieu of delivery of a new
Certificate, upon satisfaction of the applicable conditions specified above in
this Section and receipt of appropriate registration or transfer instructions
from such Holder, the Agent shall deliver the consideration received on such
Expiration Date (which may be shares of Common Stock issuable in respect of the
exercise of Warrants forming a part of the Securities evidenced by such other
Certificate, Warrant Value receivable upon a redemption of such Warrants or
Remarketing Proceeds receivable upon a contemporaneous remarketing of the
Preferred Securities forming a part of the Securities evidenced by such other
Certificate), subject to the applicable conditions and in accordance with the
applicable provisions of Article Five hereof.
Section 3.6. Separation and Rejoining of Units.
Each Global Unit shall represent such of the outstanding Securities as
shall be specified in the "Schedule of Exchanges of Interests of Global Unit"
attached thereto or otherwise in accordance with the Applicable Procedures. At
any time after issuance, the Preferred Security and Warrant components of any
Security may be separated by the Holder and thereafter transferred separately
and, (i) in the event of an election to exercise the Warrant component prior to
the Remarketing Settlement Date (as provided in Section 5.2), (ii) in the event
of an election to have Warrants redeemed or Preferred Securities repurchased
upon a Change of Control (in each case, pursuant to Section 5.3) or (iii) in the
event of a Remarketing, the Preferred Security and Warrant components of any
Security shall be separated. In the event of any separation of the components of
a Security, (i) if such Security is represented by a Definitive Certificate, the
Holder shall present such Definitive Certificate to the Agent for cancellation
and the Agent shall so notify the Registrar and shall return the Preferred
Security and Warrant components of such Security to the Property Trustee and
Warrant Agent, respectively, with an instruction for them to countersign and
deliver to, or upon the instruction of, such Holder a separated Preferred
Security and a separated Warrant, bearing the separate "CUSIP" number assigned
to the Preferred Security and the Warrant, respectively, and (ii) if such
Security is represented by the Global Unit, the Agent shall make the necessary
endorsement to the "Schedule of Exchanges of Interests of Global Unit" attached
to the Global Unit or otherwise comply with the Applicable Procedures to reduce
the amount of Securities represented thereby and shall instruct the Property
Trustee and the Warrant Agent to effect a corresponding increase in the
Preferred Securities and the Warrants, respectively, represented by global
certificates bearing separate "CUSIP" numbers. The Agent shall make such other
necessary endorsements to the Global Unit consistent with the terms of this
agreement to reflect the appropriate number of Securities represented thereby.
Following a Remarketing of the Preferred Securities components of a
Security, (i) if such Security is represented by a Definitive Certificate, the
Holder shall present such Definitive Certificate to the Agent for cancellation
and the Agent shall so notify the Registrar and shall return the Preferred
Security and Warrant components of such Security to the Property Trustee with an
instruction for them to countersign and deliver to, or upon the instruction of
the Remarketing Agent a Preferred Security bearing the separate "CUSIP" number
assigned to the Preferred Security and (ii) if such Security is represented by
the Global Unit, the Agent shall, in accordance with the instructions of the
Remarketing Agent, make the necessary endorsement to the "Schedule of Exchanges
of Interests of Global Unit" attached to the Global Unit or otherwise comply
with the Applicable Procedures to reduce the amount of Securities represented
thereby and shall instruct the Property Trustee to effect a corresponding
increase in the Preferred Securities represented by global certificates bearing
the separate "CUSIP" number. The Agent shall make such other necessary
endorsements to the Global Unit consistent with the terms of this agreement to
reflect the appropriate number of Securities represented thereby.
Once separated in accordance with Section 5.2, a Preferred Security and
a Warrant may be rejoined to form a Security, whether or not such securities
were at one time components of the same Security provided, that, only a
Preferred Security and a Warrant which are both evidenced by a Rule 144A Global
Unit, or both evidenced by a Regulation S Global Unit may be so recombined. In
the event a holder of a Preferred Security and a Warrant desires to rejoin a
Security, (i) if the constituent components are represented by Definitive
Certificates, the holder shall present (x) the Preferred Security to the
Property Trustee and (y) the Warrant to the Warrant Agent, in each case for
cancellation and the Property Trustee and the Warrant Agent shall so notify the
Agent, who shall in turn so notify the Registrar with an instruction for the
Registrar to countersign and deliver to, or upon the instruction of, such holder
a Security bearing the separate "CUSIP" number assigned to the Securities,
respectively, and (ii) if the constituent components are represented by global
certificates, each of the Property Trustee and the Warrant Agent shall make the
necessary endorsement to their respective global certificates or otherwise
comply with the Applicable Procedures to reduce the amount of Preferred
Securities and Warrants, respectively, represented thereby and shall instruct
Agent to effect a corresponding increase in the Securities represented by the
Global Unit bearing separate "CUSIP" number. The Agent, the Property Trustee,
and the Warrant Agent shall make such other necessary endorsements to their
respective global certificates consistent with the terms of this agreement to
reflect the appropriate number of Securities, Preferred Securities and Warrants,
as appropriate, represented thereby.
The Agent is authorized to deliver such further directions to the
Property Trustee, the Warrant Agent, the Exchange Agent and others, and to take
such further actions as shall be necessary to effect the exchanges, separations,
transfer and recreations contemplated by Section 3.5 and 3.6.
Section 3.7. Book-Entry Interests.
The Certificates, on original issuance, will be issued in the form of
one or more fully registered Global Units, to be delivered to the Depositary by,
or on behalf of, KeySpan. Such Global Unit shall initially be registered on the
books and records of KeySpan and the Trust in the name of Cede & Co., the
nominee of the Depositary, and no Beneficial Owner will receive a Definitive
Certificate representing such Beneficial Owner's interest in such Global Unit,
except as provided in Section 3.10. The Agent shall enter into an agreement with
the Depositary if so requested by KeySpan. Unless and until Definitive
Certificates have been issued to Beneficial Owners pursuant to Section 3.10:
(a) the provisions of this Section 3.7 shall be in full force and effect;
(b) KeySpan shall be entitled to deal with the Clearing Agency for all
purposes of this Agreement as the Holder of the Securities and the sole holder
of the Global Unit(s) and shall have no obligation to the Beneficial Owners;
(c) to the extent that the provisions of this Section 3.7 conflict with any
other provisions of this Agreement, the provisions of this Section 3.7 shall
control; and
(d) the rights of the Beneficial Owners shall be exercised only through the
Clearing Agency and shall be limited to those established by law and agreements
between such Beneficial Owners and the Clearing Agency and/or the Clearing
Agency Participants.
Section 3.8. Notices to Holders.
Whenever a notice or other communication to the Holders is required to
be given under this Agreement, KeySpan or KeySpan's agent shall give such
notices and communications to the Holders and, with respect to any Securities
registered in the name of a Clearing Agency or the nominee of a Clearing Agency,
KeySpan or KeySpan's agent shall, except as set forth herein, have no
obligations to the Beneficial Owners.
Section 3.9. Appointment of Successor Clearing Agency.
If any Clearing Agency elects to discontinue its services as securities
depositary with respect to the Securities, KeySpan may, in its sole discretion,
appoint a successor Clearing Agency with respect to the Securities.
Section 3.10. Definitive Certificates.
If (i) a Clearing Agency elects to discontinue its services as
securities depositary with respect to the Securities and a successor Clearing
Agency is not appointed within 90 days after such discontinuance pursuant to
Section 3.9 or (ii) there shall have occurred and be continuing a default by
KeySpan in respect of its obligations under the Warrant Agreement, the
Indenture, the Declaration or this Agreement, upon surrender of the Global Units
representing the Securities by the Clearing Agency, accompanied by registration
instructions, KeySpan and the Trust shall cause Definitive Certificates to be
delivered to Beneficial Owners in accordance with the instructions of the
Clearing Agency. KeySpan shall not be liable for any delay in delivery of such
instructions and may conclusively rely on and shall be protected in relying on,
such instructions.
Section 3.11. Mutilated, Destroyed, Lost and Stolen Certificates.
If any mutilated Certificate is surrendered to the Agent, KeySpan shall
execute and deliver to the Agent, and the Agent shall authenticate, execute on
behalf of the Holder, and deliver in exchange therefor, a new Certificate,
evidencing the same number of Securities and bearing a Certificate number not
contemporaneously outstanding.
If there shall be delivered to KeySpan and the Agent (i) evidence to
their satisfaction of the destruction, loss or theft of any Certificate, and
(ii) such security or indemnity as may be required by them to hold each of them
and any agent of any of them harmless, then, in the absence of notice to KeySpan
and the Trust or the Agent that such Certificate has been acquired by a bona
fide purchaser, KeySpan and the Trust shall execute and deliver to the Agent,
and the Agent shall authenticate, execute on behalf of the Holder, and deliver
to the Holder, in lieu of any such destroyed, lost or stolen Certificate, a new
Certificate, evidencing the same number of Securities and bearing a Certificate
number not contemporaneously outstanding.
Notwithstanding the foregoing, KeySpan shall not be obligated to
execute and deliver to the Agent, and the Agent shall not be obligated to
authenticate, execute on behalf of the Holder, and deliver to the Holder, a
Certificate on or after the Business Day immediately preceding the Expiration
Date. In lieu of delivery of a new Certificate, upon satisfaction of the
applicable conditions specified above in this Section and receipt of appropriate
registration or transfer instructions from such Holder, the Agent shall deliver
the consideration received on such Expiration Date (which may be (i) shares of
Common Stock issuable in respect of the exercise of Warrants pursuant to the
Warrant Agreement, (ii) the Warrant Value receivable upon a redemption of such
Warrants pursuant to the Warrant Agreement or (iii) proceeds of a Remarketing
receivable upon a contemporaneous remarketing of the Preferred Securities
forming a part of the Securities evidenced by such other Certificate as provided
in the Declaration).
Upon the issuance of any new Certificate under this Section, KeySpan,
the Trust, and the Agent may require the payment by the Holder of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto and any other expenses (including the fees and expenses of the
Agent) connected therewith.
Every new Certificate issued pursuant to this Section in lieu of any
destroyed, lost or stolen Certificate shall constitute an original additional
contractual obligation of KeySpan and of the Holder in respect of the Security
evidenced thereby, whether or not the destroyed, lost or stolen Certificate (and
the Securities evidenced thereby) shall be at any time enforceable by anyone,
and shall be entitled to all the benefits and be subject to all the obligations
of this Agreement equally and proportionately with any and all other
Certificates delivered hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Certificates.
Section 3.12. Persons Deemed Owners.
Prior to due presentment of a Certificate for registration of transfer,
KeySpan, the Trust and the Agent, and any agent of KeySpan, the Trust or the
Agent, may treat the Person in whose name such Certificate is registered as the
owner of the Security evidenced thereby, for the purpose of receiving payments
on the Preferred Securities, the Debentures or the Warrants and for all other
purposes whatsoever, whether or not any payments on the Preferred Securities,
the Debentures or the Warrants shall be overdue and notwithstanding any notice
to the contrary, and none of KeySpan, the Trust, the Agent, nor any agent of
KeySpan or the Agent, shall be affected by notice to the contrary.
Notwithstanding the foregoing, with respect to any Global Unit, nothing
herein shall prevent KeySpan, the Agent or any agent of KeySpan, the Trust or
the Agent, from giving effect to any written certification, proxy or other
authorization furnished by any Clearing Agency (or its nominee), as a Holder,
with respect to such Global Unit or impair, as between such Clearing Agency and
owners of beneficial interests in such Global Unit, the operation of customary
practices governing the exercise of rights of such Clearing Agency (or its
nominee) as Holder of such Global Unit.
Section 3.13. Cancellation.
All Certificates surrendered (i) for separation as provided in Section
3.6 hereof, (ii) in connection with a remarketing and redemption as provided in
the Declaration, the Warrant Agreement and Article V hereof or (iii) upon the
transfer of Preferred Securities, Debentures or Warrants upon the registration
of a transfer or exchange of a Security or any of its components shall, if
surrendered to any Person other than the Agent, be delivered to the Agent and,
if not already cancelled, shall be promptly cancelled by it. KeySpan and the
Trust may at any time deliver to the Agent for cancellation any Certificates
previously authenticated, executed and delivered hereunder which KeySpan and the
Trust may have acquired in any manner whatsoever, and all Certificates so
delivered shall, upon Issuer Order, be promptly cancelled by the Agent. No
Certificates shall be authenticated, executed on behalf of the Holder and
delivered in lieu of or in exchange for any Certificates cancelled as provided
in this Section, except as expressly permitted by this Agreement. All cancelled
Certificates held by the Agent shall be held by the Agent or returned to KeySpan
pursuant to an Issuer Order.
If KeySpan, the Trust or any Affiliate of KeySpan shall acquire any
Certificate, such acquisition shall not operate as a cancellation of such
Certificate unless and until such Certificate is delivered to the Agent
cancelled or for cancellation.
Section 3.14. CUSIP Numbers
KeySpan, in issuing the Securities, may use "CUSIP" numbers (if then
generally in use), and, if so, the Agent shall use "CUSIP" numbers in notices of
redemption as a convenience to Holders; provided that any such notice may state
that no representation is made as to the correctness of such numbers either as
printed on the Securities or as contained in any notice of a redemption and that
reliance may be placed only on the other identification numbers printed on the
Securities, and any such redemption shall not be affected by any defect in or
omission of such numbers. KeySpan will promptly notify the Agent of any change
in the "CUSIP" numbers.
Section 3.15. Special Transfer Provisions.
The following provisions will apply prior to the registration of the
Securities pursuant to the Resale Registration Rights Agreement, or otherwise:
The Securities Act Legend shall not be removed from the applicable
Units except as provided in this Section. The Securities Act Legend may be
removed from a Rule 144A Unit if there is delivered to KeySpan and the Agent a
certification in the form of Exhibit H hereto and such satisfactory evidence,
which may include an Opinion of Counsel, as may be reasonably required by
KeySpan, that neither the Securities Act Legend nor the restrictions on transfer
set forth therein are required to ensure that transfers of such Rule 144A Unit
will not violate the registration requirements of the Securities Act. Upon
provision of such certification and any such satisfactory evidence, the Agent
shall authenticate and deliver in exchange for such Rule 144A Unit a Security or
Securities having an equal aggregate amount that does not bear the Securities
Act Legend. If the Securities Act Legend has been removed from a Security as
provided above, no other Security issued in exchange for all or any part of such
Security shall bear such legend, unless KeySpan has reasonable cause to believe
that such other Security is a "restricted security" within the meaning of Rule
144 under the Securities Act and instructs the Agent to cause the Securities Act
Legend to appear thereon.
Before the termination of the Restricted Period, transfers by an owner
of a beneficial interest in the Regulation S Global Unit to a transferee who
takes delivery of such interest through the Rule 144A Unit will be made only in
accordance with the procedures of DTC, to the extent applicable, and upon
receipt by the Agent of a written certification from the transferor of the
beneficial interest in the form of Exhibit G to the effect that such transfer is
being made to a Person who the transferor reasonably believes is a "qualified
institutional buyer" within the meaning of Rule 144A in a transaction meeting
the requirements of Rule 144A and in accordance with any applicable securities
laws of any state of the United States or any other jurisdiction. After the end
of the Restricted Period, such certification requirement will no longer apply to
such transfers.
Transfers by an owner of a certificated Security bearing the Securities
Act Legend or of a beneficial interest in the Rule 144A Unit to a transferee who
takes delivery of such interest through the Regulation S Global Unit or in the
form of a certificated Security not bearing the Securities Act Legend will be
made only upon receipt by the Agent of a written certification from the
transferor in the form of Exhibit F to the effect that such transfer is being
made in accordance with Regulation S.
Upon any such exchange or transfer of all or a portion of any Global
Unit for a certificated Security or an interest in either the Rule 144A Unit or
the Regulation S Global Unit, the Global Unit from which an interest is to be so
exchanged or transferred will be marked to reflect the reduction of its
principal amount or number, as applicable, by the aggregate principal amount or
number of such certificated Security or the interest to be so exchanged or
transferred for an interest in a Regulation S Global Unit or a Rule 144A Unit,
as the case may be. Until so exchanged or transferred in full, such Global Unit
will in all respects be entitled to the same benefits under this Indenture as
the Units authenticated and delivered hereunder.
Each purchaser (other than the Initial Purchaser) of the Securities
(including, without limitation, any purchaser of an interest in the Global
Units) will be deemed to have represented and agreed as follows:
(a) It is (A) a Qualified Institutional Buyer as defined in Rule 144A and is
acquiring the Securities for its own institutional account or for the
account or accounts of a Qualified Institutional Buyer, or (B) purchasing
Securities in an offshore transaction in accordance with Rule 903 or Rule
904 of Regulation S under the Securities Act;
(b) It understands that the Securities are being transferred to it in a
transaction not involving any public offering within the meaning of the
Securities Act, and that, if in the future it decides to resell, pledge or
otherwise transfer any Securities, such Securities may be resold, pledged
or transferred only (A) in a transaction meeting the requirements of Rule
144A to a person who the seller reasonably believes is a Qualified
Institutional Buyer that purchases for its own account or for the account
or accounts of a Qualified Institutional Buyer to whom notice is given that
the resale, pledge or transfer is being made in reliance on Rule 144A, or
(B) in accordance with Regulation S or (C) in a transaction otherwise
exempt from the registration requirements of the Securities Act;
(c) If it is acquiring Securities or any interest or participation therein in
an "offshore transaction" (as defined in Regulation S), it acknowledges
that such Securities initially will be represented by the Restricted
Regulation S Global Unit and that, for so long as required by Regulation S,
transfers thereof or any interest or participation therein are restricted
as provided in this Agreement; and
(d) It understands that each Security will bear a legend substantially to the
effect of the Securities Act Legend.
Holders of a beneficial interest in Securities sold in reliance on
Regulation S as Restricted Regulation S Global Units are prohibited from
receiving distributions or from exchanging beneficial interests in such
Restricted Regulation S Global Units for a beneficial interest in a Permanent
Regulation S Global Unit until the later of (i) the expiration of the Restricted
Period and (ii) the furnishing of a certificate, substantially in the form of
Exhibit I attached hereto, certifying that the beneficial owner of the
Restricted Regulation S Global Units is a non-United States Person (a
"Regulation S Certificate").
Notwithstanding anything to the contrary contained herein, (i) prior to
the expiration of the Restricted Period, transfers of beneficial interests in a
Restricted Regulation S Global Unit may not be made to a U.S. Person or for the
account or benefit of a U.S. Person (other than the Initial Purchaser), and (ii)
a beneficial interest in a Restricted Regulation S Global Unit may not be
exchanged for a certificated Security or transferred to a Person who takes
delivery thereof in the form of a certificated Security prior to (x) the
expiration of the Restricted Period and (y) the receipt by the Registrar of any
certificates required pursuant to Rule 903(c)(3)(ii)(B) under the Securities
Act, except in the case of a transfer pursuant to an exemption from the
registration requirements of the Securities Act other than Rule 903 or Rule 904.
The Registrar shall retain for at least two years copies of
all letters, notices and other written communications received pursuant to
Section 2.16 hereof or this Section 2.17. The Issuers shall have the right to
inspect and make copies of all such letters, notices or other written
communications at any reasonable time upon the giving of reasonable written
notice to the Registrar.
ARTICLE IV
The Preferred Securities
Section 4.1. Payment of Distribution; Rights to Distributions Preserved;
Distribution Rate Reset.
Distributions on the Preferred Securities which are made on any Payment
Date shall, subject to receipt thereof by the Agent, be payable to the Holders
as they appear on the books and records of the Agent at the close of business on
the relevant Record Dates. Distributions on the Preferred Securities which are
made on any Remarketing Settlement Date shall, subject to receipt thereof by the
Agent, be payable to (or, in the case of Section 5.1, for the account of) the
Holders as they appear on the books and records of the Agent at the close of
business on the Remarketing Date. If the Securities are represented by one or
more Global Units, the relevant Record Dates shall be the close of business on
the Business Day preceding the corresponding Payment Date, unless a different
Record Date is established or provided for the corresponding distributions on
the Preferred Securities. If the Securities are not represented by one or more
Global Units, the relevant Record Dates shall be at least one Business Day prior
to the corresponding Payment Dates, or such other dates as may be selected by
the Agent.
Each Certificate evidencing Preferred Securities (or Debentures)
delivered under this Agreement upon registration of transfer of or in exchange
for or in lieu of any other Certificate shall carry the rights to distributions
accumulated and unpaid, and to accumulate distributions, which were carried by
the Preferred Securities (or Debentures) underlying such other Certificate.
The applicable Coupon Rate on the Debentures on and after the
Remarketing Date shall be equal to the Reset Rate established in the Remarketing
on such date.
Section 4.2. Notice and Voting.
The Agent will be entitled to exercise the voting and any other
consensual rights pertaining to the Preferred Securities, Debentures and
Warrants, as the case may be, but only to the extent instructed in writing by
the Holders as described below and in Article V. Upon receipt of notice of any
meeting at which holders of Preferred Securities, Debentures or Warrants are
entitled to vote or upon any solicitation of consents, waivers or proxies of
holders of Preferred Securities, Debentures or Warrants, the Agent shall, as
soon as practicable thereafter, mail to the Holders of Securities a notice (a)
containing such information as is contained in the notice or solicitation, (b)
stating that each Holder on the record date set by the Agent therefor (which, to
the extent possible, shall be the same date as the record date for determining
the holders of Preferred Securities, Debentures or Warrants, as the case may be,
entitled to vote) shall be entitled to instruct the Agent as to the exercise of
the voting rights pertaining to such Preferred Securities, Debentures or
Warrants underlying their Security and (c) stating the manner in which such
instructions may be given. Upon the written request of the Holders of Securities
on such record date received by the Agent at least six days prior to such
meeting, the Agent shall endeavor insofar as practicable to vote or cause to be
voted, in accordance with the instructions set forth in such requests, the
maximum number of Preferred Securities, Debentures or Warrants, as the case may
be, as to which any particular voting instructions are received. In the absence
of specific instructions from the Holder of a Security, the Agent shall abstain
from voting the Preferred Securities, Debentures or Warrants underlying such
Security. KeySpan hereby agrees to solicit Holders of Securities to timely
instruct the Agent in order to enable the Agent to vote such Preferred
Securities, Debentures or Warrants and the Trust shall covenant to such effect
in the Declaration.
Section 4.3. Distribution of Debentures.
Upon the liquidation of the Trust in accordance with the Declaration, a
principal amount at maturity of Debentures constituting the assets of the Trust
and underlying the Preferred Securities equal to the aggregate stated
liquidation amount of the Preferred Securities shall be delivered to the Agent
in exchange for the Preferred Securities. Thereafter, the Debentures will be
substituted for the Preferred Securities as a component of the Securities.
Following the liquidation of the Trust, the Holders shall have such rights and
obligations with respect to the Debentures as the Holders had in respect of the
Preferred Securities. KeySpan may cause to be made in any Certificates
thereafter to be issued such change in phraseology and form (but not in
substance) as may be appropriate to reflect the liquidation of the Trust and the
substitution of Debentures for Preferred Securities.
ARTICLE V
Remarketing and Redemption; Early Exercise
Section 5.1. Remarketing and Redemption.
Pursuant to a Remarketing Agreement to be entered into, KeySpan will
engage a Remarketing Agent to sell the Preferred Securities (or, if the
Debentures have been distributed upon liquidation of the Trust, the Debentures)
upon the occurrence of a Remarketing Event. In connection with a Remarketing of
the Preferred Securities:
(i) upon a Trading Remarketing Event or a Legal Cause Remarketing Event,
the Accreted Value of the Debentures as of the end of the day on the
day next preceding the Remarketing Date shall become due on the date
which is 60 days following the Remarketing Date, and, as a result, the
Accreted Value of the Preferred Securities as of the end of the day on
the day next preceding the Remarketing Date shall be redeemed on the
date which is 60 days following the Remarketing Date;
(ii) on the Remarketing Date, the rate of interest per annum on the Accreted
Value of the Debentures shall become the Reset Rate established in the
Remarketing of the Preferred Securities, and, as a result, the
"Distribution Rate" per annum on the Accreted Value of the Preferred
Securities shall become the Reset Rate established in the Remarketing;
(iii) on the Remarketing Settlement Date, interest accrued and unpaid on the
Debentures from and including the immediately preceding Interest
Payment Date to, but excluding, the Remarketing Settlement Date shall
be payable to the holders of the Debentures, and, as a result,
Distributions accumulated and unpaid on the Securities from and
including the immediately preceding Distribution Date to, but
excluding, the Remarketing Settlement Date shall be payable to the
Holders of the Securities;
(iv) in connection with a Remarketing upon a Trading Remarketing Event or a
Legal Cause Remarketing Event, KeySpan shall be obligated to redeem the
Warrants on the Remarketing Settlement Date at a redemption price per
Warrant equal to the Warrant Value as of the end of the day on the day
next preceding the Remarketing Date; and
(v) on and after the Remarketing Date, the Warrants shall be exercisable at
the Exercise Price.
Upon receipt from KeySpan of a Notice of Remarketing as provided in the
Declaration and of a notice of a Redemption as provided in the Warrant
Agreement, the Agent shall, as soon as practicable thereafter, mail to the
Holders of Securities a notice of such receipt, together with a copy of each
such notice.
IN THE ABSENCE OF AN AFFIRMATIVE ELECTION NOT TO PARTICIPATE IN THE
REMARKETING, EACH HOLDER WILL BE DEEMED TO HAVE ELECTED TO PARTICIPATE
IN SUCH REMARKETING AND, IF APPLICABLE, TO HAVE ITS WARRANTS REDEEMED
ON THE RELATED REMARKETING SETTLEMENT DATE AT THE WARRANT VALUE.
Each Holder of a Security who desires NOT to participate in the
Remarketing shall notify the Agent of such intention by use of a notice in
substantially the form of Exhibit B hereto. Such notice shall be given to the
Agent prior to 5:00 p.m., New York City time, on the Business Day immediately
preceding the Remarketing Date specified in the Notice of Remarketing. A Holder
of Security must affirmatively elect NOT to participate in a Remarketing on or
prior to 5:00 p.m. New York City time on the Business Day immediately preceding
the Remarketing Date. Subject to the next paragraph, an election by a Holder NOT
to participate in the Remarketing will not alter the deemed election by such
Holder to have its Warrants redeemed on the Remarketing Settlement Date. Any
such notice shall be irrevocable and may not be conditioned upon the level at
which the Reset Rate is established in the Remarketing. The Agent, based on such
notices, shall notify the Remarketing Agent, promptly after 5:00 p.m., New York
City time, on the Business Day immediately preceding the Remarketing Date, of
the aggregate number of Preferred Securities (or, if the Debentures have been
distributed in connection with a liquidation of the Trust, the Debentures) that
are a component of Securities to be remarketed. Upon receipt of such notice from
the Agent, the Remarketing Agent shall, on the Remarketing Date, use
commercially reasonable efforts to remarket such Preferred Securities (or
Debentures) on such date at a price equal to: (i) in connection with a
Remarketing upon a Trading Remarketing Event or a Legal Cause Remarketing Event,
100% of the aggregate Accreted Value of such Preferred Securities (or
Debentures) as of the end of the day on the day next preceding the Remarketing
Date; and (ii) on the Maturity Remarketing Date, 100% of the stated liquidation
amount (or principal amount).
Each Holder of a Security who desires to exercise its Warrants on the
Remarketing Settlement Date at the Exercise Price per Warrant described in
clause (v) above in this Section 5.1, instead of having such Warrants redeemed
on such date, shall notify the Agent and the Warrant Agent of such intention by
use of a notice in substantially the form of Exhibit C hereto. Such notice shall
be given to the Agent and the Warrant Agent prior to 5:00 p.m., New York City
time, on the Business Day immediately preceding the Remarketing Settlement Date
specified in the related Notice of Remarketing. As provided above, any Holder
who does not notify the Agent and the Warrant Agent of an election to exercise
its Warrants on the Warrant Settlement Date shall be deemed to have elected to
have such Warrants redeemed. Upon receipt of the foregoing notices the Agent
shall provide notice to the Warrant Agent, no later than 5:00 p.m., New York
City time, on the Business Day immediately preceding the related Remarketing
Settlement Date specified in the related Notice of Remarketing, of the number of
Warrants to be exercised and shall, no later than 5:00 p.m., New York City time,
on the Remarketing Settlement Date, deliver to the Warrant Agent a duly
completed form of election to purchase set forth on the reverse side of the
Warrant Certificate, a form of which is attached to the Global Unit, together
with the proceeds of the Remarketing referred to in the following paragraph.
Upon receipt of the Common Stock deliverable upon exercise of the Warrants, the
Warrant Agent shall deliver such shares to or upon the order of the Agent.
Each Holder who elects to participate in the Remarketing and to
exercise its Warrants on the related Remarketing Settlement Date is referred to
as an "Electing Remarketing Holder." The Agent shall instruct the Remarketing
Agent to deliver the proceeds from the Remarketing of Preferred Securities of
each Electing Remarketing Holder to the Warrant Agent, and the Warrant Agent
shall apply such amounts to satisfy in full such Holders' obligation to pay the
Exercise Price for the Common Stock under the related Warrants on the
Remarketing Settlement Date. Any Holder (other than an Electing Remarketing
Holder) of a Security affirmatively electing to exercise Warrants on the
Remarketing Settlement Date may do so by following the procedures set forth in
Section 5.2 and in the Warrant Agreement. The proceeds from a redemption of the
Warrants which form a part of the Securities shall be paid to the Holders of
such Securities.
The Declaration provides that if, by 4:00 p.m. New York City time, on a
Remarketing Date, the Remarketing Agent is unable to remarket all of the
Preferred Securities deemed tendered for purchase, a "Failed Remarketing" shall
be deemed to have occurred and the Remarketing Agent shall so advise by
telephone the Clearing Agency, the Property Trustee, the Warrant Agent, the
Indenture Trustee, the Administrative Trustees on behalf of the Trust and
KeySpan. KeySpan shall then give notice of the Failed Remarketing to the Agent
no later than 12:00 noon, New York City time, on the Business Day following the
Failed Remarketing and the Agent will, in turn, give notice to the Holders of
the Preferred Securities prior to the close of business on the Business Day
following the Failed Remarketing. Notice of a Failed Remarketing shall be deemed
to constitute a withdrawal of each previously delivered election to exercise
Warrants on the related Remarketing Settlement Date. Following any such
withdrawal a holder may still elect to exercise its Warrants in accordance with
the procedures specified in Section 3.6 hereof and in the Warrant Agreement.
Upon the occurrence of a Trading Remarketing Event or a Legal Cause
Remarketing Event and the election by KeySpan to cause a Remarketing of the
Preferred Securities, and on the Maturity Remarketing Date, as long as the
Securities are evidenced by one or more Global Units, deposited with the
Clearing Agency, KeySpan shall request, not later than four nor more than 20
days prior to the Remarketing Date, that the Clearing Agency notify the Holders
of the Securities of the Remarketing of the Preferred Securities and of the
procedures that must be followed if such Holder of Securities wishes to elect
not to participate in the Remarketing of the Preferred Securities.
Section 5.2. Early Exercise of Warrants; Exchange of Preferred Securities and
Repurchase of Debentures.
A Holder of a Security may elect to exercise the Warrants which form a
part of such Security at any time in accordance with the terms of the Warrant
Agreement. Each Holder, other than an Electing Holder, who desires to exercise
its Warrants shall, prior to any such exercise, separate the Warrant and the
Preferred Security components of the Security in accordance with Section 3.6. In
no event may a Holder satisfy its obligation to pay the Exercise Price by
tendering Preferred Securities.
Following the exercise of a Warrant on a day other than the Remarketing
Settlement Date, the Holder of the Security of which such Warrant formed a part
may require the Trust to exchange the Preferred Securities which formed the
other part of such Security for Debentures having an Accreted Value equal to the
Accreted Value of the Preferred Securities being exchanged and to require
KeySpan to repurchase such Debentures on the applicable Required Repurchase Date
which is no less than 60 days from such exercise date, as specified in the
Declaration.
Section 5.3. Change in Control.
Following a Change in Control, each Holder will have the right to (i)
require the Trust to distribute to such Holder Debentures having an Accreted
Value equal to Accreted Value of the Preferred Securities components of such
Holder's Securities in exchange for its Preferred Securities and (ii) cause
KeySpan to repurchase (a "Change of Control Repurchase Right") such Holder's
Debentures and redeem (a "Change of Control Redemption Right") such Holder's
Warrants at the amounts and on the dates specified in the Warrant Agreement, the
Declaration and the Indenture, as applicable.
Upon receipt from KeySpan of notice of a Change of Control (as provided
in the Declaration and the Warrant Agreement), the Agent shall, as soon as
practicable thereafter, mail to the Holders of Securities a notice of such
receipt, together with a copy of such notice of Change of Control. The date
specified in the notice from KeySpan will be the "Change of Control Notice
Date."
(a) Warrants. To exercise the Change of Control Redemption Right, a Holder
must deliver to the Agent, prior to the 30th day following the Change of Control
Notice Date, irrevocable written notice in the form of Exhibit D hereto, of such
Holder's election to have Warrants redeemed on the date specified in the Warrant
Agreement. The Agent, based on such notices, shall notify the Warrant Agent no
later than the 30th day following the Change in Control Notice Date of the
aggregate number of Warrants to be redeemed. An election to have Warrants
redeemed shall also constitute an election to separate the related Securities
into their component parts and the Agent and the Warrant Agent shall follow the
procedures specified in Section 3.6.
(b) Preferred Securities. To exercise the Change of Control Repurchase
Right, a Holder who has not separated its Securities pursuant to clause (a)
above must deliver to the Agent, no earlier than the 60th and no later than the
90th day following the Change of Control Notice Date, irrevocable written notice
in the form of Exhibit E hereto, of such Holder's election to have Preferred
Securities components of its Securities exchanged for an equivalent Accreted
Value of Debentures and to have such Debentures repurchased on the date
specified in the Indenture. The Agent, based on such notices, shall notify the
Trust, KeySpan, the Property Trustee and the Exchange Agent, no later than the
90th day following the Change of Control Notice Date of the aggregate number of
Preferred Securities to be exchanged for Debentures by the Trust and to be
repurchased by KeySpan. An election to exchange Preferred Securities for
Debentures and to have such Debentures repurchased by KeySpan shall also
constitute an election to separate the related Securities into their component
parts and the Agent, the Exchange Agent and the Property Trustee shall follow
the procedures specified in Section 3.6 hereof (and Section 6.8 of the
Declaration).
Section 5.4. Certain Rights Following a Remarketing.
Following a Remarketing Settlement Date (unless there has been a
"Failed Remarketing" under the Declaration) and a Redemption or exercise of the
Warrants (including the delivery of all shares of Common Stock pursuant to the
exercise of a Warrant or the payment of the Warrant Value payable upon the
related Redemption and the payment of any amounts payable upon the related
Remarketing), a Security shall thereafter represent the right to receive the
Preferred Securities (or if the Debentures have been distributed upon
liquidation of the Trust, the Debentures) forming a part of such Securities.
ARTICLE VI
Remedies
Section 6.1. Unconditional Right of Holders to Receive Payments and to Purchase
Common Stock.
The Holder of any Security shall have all the rights provided to a
holder of Preferred Securities under the Declaration and to a holder of Warrants
under the Warrant Agreement, including the right to institute suit for the
enforcement of any such payments or obligations thereunder, and such rights
shall not be impaired except as provided in the Declaration and the Warrant
Agreement.
Section 6.2. Restoration of Rights and Remedies.
If any Holder has instituted any proceeding to enforce any right or
remedy under this Agreement and such proceeding has been discontinued or
abandoned for any reason, or has been determined adversely to such Holder, then
and in every such case, subject to any determination in such proceeding, KeySpan
and such Holder shall be restored severally and respectively to their former
positions hereunder and thereafter all rights and remedies of such Holder shall
continue as though no such proceeding had been instituted.
Section 6.3. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Certificates in the last paragraph of
Section 3.11, no right or remedy herein conferred upon or reserved to the
Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
Section 6.4. Delay or Omission Not Waiver.
No delay or omission of any Holder to exercise any right or remedy upon
a default shall impair any such right or remedy or constitute a waiver of any
such right. Every right and remedy given by this Article or by law to the
Holders may be exercised from time to time, and as often as may be deemed
expedient, by such Holders.
Section 6.5. Undertaking for Costs.
All parties to this Agreement agree, and each Holder of a Security, by
its acceptance of such Security shall be deemed to have agreed, that any court
may in its discretion require, in any suit for the enforcement of any right or
remedy under this Agreement, or in any suit against the Agent for any action
taken, suffered or omitted by it as Agent, the filing by any party litigant in
such suit of an undertaking to pay the costs of such suit, and that such court
may in its discretion assess reasonable costs, including reasonable attorneys'
fees, against any party litigant in such suit, having due regard to the merits
and good faith of the claims or defenses made by such party litigant; provided
that the provisions of this Section shall not apply to any suit instituted by
KeySpan, to any suit instituted by the Agent, to any suit instituted by any
Holder, or group of Holders, holding in the aggregate more than 10% of the
Outstanding Securities, or to any suit instituted by any Holder for the
enforcement of distributions on any Preferred Securities on or after the
respective Payment Date therefor in respect of any Security held by such Holder,
or for enforcement of the right to purchase shares of Common Stock under the
Warrants constituting part of any Security held by such Holder.
Section 6.6. Waiver of Stay or Extension Laws.
KeySpan covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, or plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the
performance of this Agreement; and KeySpan (to the extent that it may lawfully
do so) hereby expressly waives all benefit or advantage of any such law and
covenants that it will not hinder, delay or impede the execution of any power
herein granted to the Agent or the Holders, but will suffer and permit the
execution of every such power as though no such law had been enacted.
ARTICLE VII
The Agent
Section 7.1. Certain Duties and Responsibilities.
(a) The Agent undertakes to perform, with respect to the Securities, such
duties and only such duties as are specifically set forth in this Agreement, and
no implied covenants or obligations shall be read into this Agreement against
the Agent; and
(1) in the absence of bad faith or negligence on its part, the Agent may,
with respect to the Securities, conclusively rely, as to the truth of
the statements and the correctness of the opinions expressed therein,
upon certificates or opinions furnished to the Agent and conforming to
the requirements of this Agreement but in the case of any certificates
or opinions which by any provision hereof are specifically required to
be furnished to the Agent, the Agent shall be under a duty to examine
the same to determine whether or not they conform to the requirements
of this Agreement (but need not confirm or investigate the accuracy of
mathematical calculations or other facts stated therein).
(b) No provision of this Agreement shall be construed to relieve the Agent
from liability for its own negligent action, its own negligent failure to act,
or its own wilful misconduct, except that
(1) this Subsection shall not be construed to limit the effect of
Subsection (a) of this Section;
(2) the Agent shall not be liable for any error of judgment made in
good faith by a Responsible Officer, unless it shall be proved
that the Agent was negligent in ascertaining the pertinent facts;
(3) no provision of this Agreement shall require the Agent to expend
or risk its own funds or otherwise incur any financial liability
in the performance of any of its duties hereunder, or in the
exercise of any of its rights or powers, if adequate indemnity is
not provided to it; and
(4) no provision of this Agreement shall require the Agent to expend
or risk its own funds or otherwise incur any financial liability
in the performance of any of its duties hereunder, or in the
exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not
reasonably assured to it.
(c) Whether or not therein expressly so provided, every provision of this
Agreement relating to the conduct or affecting the liability of or affording
protection to the Agent shall be subject to the provisions of this Section.
Section 7.2. Notice of Default.
Within 30 days after the occurrence of any default by KeySpan hereunder
of which a Responsible Officer of the Agent has actual knowledge, the Agent
shall transmit by mail to KeySpan and the Holders of Securities, as their names
and addresses appear in the Register, notice of such default hereunder, unless
such default shall have been cured or waived.
Section 7.3. Certain Rights of Agent.
Subject to the provisions of Section 7.1:
(a) the Agent may rely and shall be protected in acting or refraining from
acting upon any resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document believed by it to be genuine
and to have been signed or presented by the proper party or parties;
(b) any request or direction of KeySpan mentioned herein shall be
sufficiently evidenced by an Officers' Certificate, Issuer Order or Issuer
Request, and any resolution of the Board of Directors of KeySpan may be
sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Agreement the Agent shall deem
it desirable that a matter be proved or established prior to taking, suffering
or omitting any action hereunder, the Agent (unless other evidence be herein
specifically prescribed) may, in the absence of bad faith on its part, rely upon
an Officers' Certificate of KeySpan;
(d) the Agent may consult with counsel of its selection and the advice of
such counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon;
(e) the Agent shall not be bound to make any investigation into the facts
or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document, but the Agent,
in its discretion, may make reasonable further inquiry or investigation into
such facts or matters as it may see fit, and, if the Agent shall determine to
make such further inquiry or investigation, it shall be given a reasonable
opportunity to examine the books, records and premises of KeySpan, personally or
by agent or attorney at the sole cost of KeySpan, and shall incur no liability
or additional liability of any kind by reason of such inquiry or investigation;
(f) the Agent may execute any of the powers hereunder or perform any duties
hereunder either directly or by or through agents or attorneys or an Affiliate
and the Agent shall not be responsible for any misconduct or negligence on the
part of any agent or attorney or an Affiliate appointed with due care by it
hereunder;
(g) with respect to the calculation of the Accreted Value and the Warrant
Value, the Agent may conclusively rely upon the calculations thereof determined
by the Calculation Agent;
(h) the Agent shall not be liable for any action taken, suffered, or
omitted to be taken by it in good faith and reasonably believed by it to be
authorized or within the discretion or rights or powers conferred upon it by
this Agreement;
(i) the Agent shall not be deemed or have notice of any Default or Event of
Default unless a Responsible Officer of the Agent has actual knowledge thereof
or unless written notice of any event which is in fact such a default is
received by the Agent at the Corporate Trust Office of the Agent, and such
notice references the Securities and this Agreement; and
(j) the rights, privileges, protections, immunities and benefits given to
the Agent, including, without limitation, its right to be indemnified, are
extended to, and shall be enforceable by, the Agent in each of its capacities
hereunder including, without limitation, in its capacities as Warrant Agent and
Property Trustee, and to each agent, custodian and other Person employed to act
hereunder.
Section 7.4. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Certificates shall be taken as
the statements of KeySpan, and the Agent assumes no responsibility for their
accuracy. The Agent makes no representations as to the validity or sufficiency
of either this Agreement or of the Securities.
The Agent shall not be accountable for the use or application by
KeySpan of Securities or the proceeds thereof.
Section 7.5. May Hold Securities.
Any Registrar or any other agent of KeySpan, or the Agent and its
Affiliates, in their individual or any other capacity, may become the owner or
pledgee of Securities and may otherwise deal with KeySpan or any other Person
with the same rights it would have if it were not Registrar or such other agent,
or the Agent.
Section 7.6. Money Held in Custody.
Money held by the Agent in custody hereunder need not be segregated
from the other funds except to the extent required by law or provided herein.
The Agent shall be under no obligation to invest or pay interest on any money
received by it hereunder except as otherwise agreed in writing with KeySpan.
Section 7.7. Compensation and Reimbursement.
KeySpan agrees:
(1) to pay to the Agent from time to time such compensation as shall from
time to time be agreed to in writing by KeySpan and the Agent for all
services rendered by it hereunder;
(2) except as otherwise expressly provided for herein, to reimburse the
Agent upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Agent in accordance with any provision
of this Agreement (including the reasonable compensation and the
expenses and disbursements of its agents and counsel), except any such
expense, disbursement or advance as may be attributable to its
negligence or bad faith; and
(3) to indemnify the Agent and any predecessor Agent for, and to hold it
harmless against, any loss, liability or expense, including taxes
(other than taxes based upon, measured by or determined by the income
of the Agent) incurred without negligence or bad faith on its part,
arising out of or in connection with the acceptance or administration
of its duties hereunder, including the costs and expenses of defending
itself against any claim or liability in connection with the exercise
or performance of any of its powers or duties hereunder.
The Agent shall have a lien prior to the Securities as to all property
and funds held by it hereunder for any amount owing it or any predecessor Agent
pursuant to this Section 7.7, except with respect to funds held in trust for the
benefit of the Holders of particular Securities.
The provisions of this Section shall survive the termination of this
Agreement and the resignation or removal of the Agent.
Section 7.8. Corporate Agent Required; Eligibility.
There shall at all times be an Agent hereunder which shall be a
corporation organized and doing business under the laws of the United States of
America, any State thereof or the District of Columbia, authorized under such
laws to exercise corporate trust powers, having (or being a member of a bank
holding company having) a combined capital and surplus of at least $50,000,000,
subject to supervision or examination by Federal or State authority and having a
Corporate Trust Office in the Borough of Manhattan, The City of New York, if
there be such a corporation in the Borough of Manhattan, The City of New York,
qualified and eligible under this Article and willing to act on reasonable
terms. If such corporation publishes reports of condition at least annually,
pursuant to law or to the requirements of said supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If at
any time the Agent shall cease to be eligible in accordance with the provisions
of this Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
Section 7.9. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Agent and no appointment of a
successor Agent pursuant to this Article shall become effective until the
acceptance of appointment by the successor Agent in accordance with the
applicable requirements of Section 7.10.
(b) The Agent may resign at any time by giving written notice thereof to
KeySpan 60 days prior to the effective date of such resignation. If the
instrument of acceptance by a successor Agent required by Section 7.10 shall not
have been delivered to the Agent within 30 days after the giving of such notice
of resignation, the resigning Agent may petition any court of competent
jurisdiction for the appointment of a successor Agent.
(c) The Agent may be removed at any time by Act of the Holders of a
majority in number of the Outstanding Securities delivered to the Agent and
KeySpan.
(d) If at any time
(1) the Agent fails to comply with Section 310(b) of the TIA, as if
the Agent were an indenture trustee under an indenture qualified
under the TIA, after written request therefor by KeySpan or by
any Holder who has been a bona fide Holder of a Security for at
least six months, or
(2) the Agent shall cease to be eligible under Section 7.8 and shall
fail to resign after written request therefor by KeySpan or by
any such Holder, or
(3) the Agent shall become incapable of acting or shall be adjudged a
bankrupt or insolvent or a receiver of the Agent or of its
property shall be appointed or any public officer shall take
charge or control of the Agent or of its property or affairs for
the purpose of rehabilitation, conservation or liquidation,
then, in any such case, (i) KeySpan by a Board Resolution may remove the Agent,
or (ii) any Holder who has been a bona fide Holder of a Security for at least
six months may, on behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the removal of the Agent and the
appointment of a successor Agent.
(e) If the Agent shall resign, be removed or become incapable of acting, or
if a vacancy shall occur in the office of Agent for any cause, KeySpan, by a
Board Resolution, shall promptly appoint a successor Agent and shall comply with
the applicable requirements of Section 7.10. If no successor Agent shall have
been so appointed by KeySpan and accepted appointment in the manner required by
Section 7.10, any Holder who has been a bona fide Holder of a Security for at
least six months may, on behalf of itself and all others similarly situated,
petition any court of competent jurisdiction for the appointment of a successor
Agent.
(f) KeySpan shall give, or shall cause such successor Agent to give, notice
of each resignation and each removal of the Agent and each appointment of a
successor Agent by mailing written notice of such event by first-class mail,
postage prepaid, to all Holders as their names and addresses appear in the
applicable Register. Each notice shall include the name of the successor Agent
and the address of its Corporate Trust Office.
Section 7.10. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Agent, every such
successor Agent so appointed shall execute, acknowledge and deliver to KeySpan
and to the retiring Agent an instrument accepting such appointment, and
thereupon the resignation or removal of the retiring Agent shall become
effective and such successor Agent, without any further act, deed or conveyance,
shall become vested with all the rights, powers, agencies and duties of the
retiring Agent; but, on the request of KeySpan or the successor Agent, such
retiring Agent shall, upon payment of its charges, execute and deliver an
instrument transferring to such successor Agent all the rights, powers and
trusts of the retiring Agent and shall duly assign, transfer and deliver to such
successor Agent all property and money held by such retiring Agent hereunder. If
an instrument of acceptance by a successor Agent shall not have been delivered
to the Agent within 30 days after the giving of such notice of removal, the
Agent being removed may petition, at the expense of KeySpan, any court of
competent jurisdiction for the appointment of a successor Agent with respect to
the Securities of such series.
(b) Upon request of any such successor Agent, KeySpan shall execute any and
all instruments for more fully and certainly vesting in and confirming to such
successor Agent all such rights, powers and agencies referred to in paragraph
(a) of this Section.
(c) No successor Agent shall accept its appointment unless at the time of
such acceptance such successor Agent shall be qualified and eligible under this
Article.
Section 7.11. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Agent may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Agent shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Agent, shall be the successor of the Agent hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article, with
the execution or filing of any paper or any further act on the part of any of
the parties hereto. In case any Certificates shall have been authenticated and
executed on behalf of the Holders, but not delivered, by the Agent then in
office, any successor by merger, conversion or consolidation to such Agent may
adopt such authentication and execution and deliver the Certificates so
authenticated and executed with the same effect as if such successor Agent had
itself authenticated and executed such Securities.
Section 7.12. Preservation of Information; Communications to Holders.
(a) The Agent shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders received by the Agent in its
capacity as Registrar.
(b) If three or more Holders (herein referred to as "applicants") apply in
writing to the Agent, and furnish to the Agent reasonable proof that each such
applicant has owned a Security for a period of at least six months preceding the
date of such application, and such application states that the applicants desire
to communicate with other Holders with respect to their rights under this
Agreement or under the Securities and is accompanied by a copy of the form of
proxy or other communication which such applicants propose to transmit, then the
Agent shall mail to all the Holders copies of the form of proxy or other
communication which is specified in such request, with reasonable promptness
after a tender to the Agent of the materials to be mailed and of payment, or
provision for the payment, of the reasonable expenses of such mailing.
Section 7.13. No Obligations of Agent.
Except to the extent otherwise expressly provided in this Agreement,
the Agent assumes no obligations and shall not be subject to any liability under
this Agreement in respect of the obligations of the Holder of any Security
hereunder. KeySpan agrees, and each Holder of a Certificate, by his acceptance
thereof, shall be deemed to have agreed, that the Agent's execution of the
Certificates on behalf of the Holders shall be solely as agent and
attorney-in-fact for the Holders, and that the Agent shall have no obligation
thereunder except to the extent expressly provided in Article Five hereof.
Anything in this Agreement to the contrary notwithstanding, in no event shall
the Agent or its officers, employees or agents be liable under this Agreement to
any third party for indirect, special, punitive, or consequential loss or damage
of any kind whatsoever, including lost profits, whether or not the likelihood of
such loss or damage was known to the Agent, incurred without any act or deed
that is found to be attributable to gross negligence or willful misconduct on
the part of the Agent.
Section 7.14. Tax Compliance.
(a) KeySpan will comply with all applicable certification, information
reporting and withholding (including "backup" withholding) requirements imposed
by applicable tax laws, regulations or administrative practice with respect to
(i) any payments made with respect to the Securities or (ii) the issuance,
delivery, holding, transfer, redemption or exercise of rights under the
Securities. Such compliance shall include, without limitation, the preparation
and timely filing of required returns and the timely payment of all amounts
required to be withheld to the appropriate taxing authority or its designated
agent.
(b) The Agent shall comply in accordance with the terms hereof with any
written direction received from KeySpan with respect to the execution or
certification of any required documentation and the application of such
requirements to particular payments or Holders or in other particular
circumstances, and may for purposes of this Agreement conclusively rely on any
such direction in accordance with the provisions of Section 7.1(a)(2) hereof.
(c) The Agent shall maintain all appropriate records documenting compliance
with such requirements, and shall make such records available, on written
request, to KeySpan or its authorized representative within a reasonable period
of time after receipt of such request.
ARTICLE VIII
Supplemental Agreements
Section 8.1. Supplemental Agreements Without Consent of Holders.
Without the consent of any Holders or any other party hereto, KeySpan
and the Agent, at any time and from time to time, may enter into one or more
agreements supplemental hereto, in form satisfactory to KeySpan and the Agent,
for any of the following purposes:
(1) to evidence the succession of another Person to KeySpan, and the
assumption by any such successor of the covenants of KeySpan
herein and in the Certificates; or
(2) to add to the covenants of KeySpan for the benefit of the
Holders, or to surrender any right or power herein conferred upon
KeySpan; or
(3) to evidence and provide for the acceptance of appointment
hereunder by a successor Agent; or
(4) to cure any ambiguity, to cure, correct or supplement any
provisions herein which may be inconsistent with any other
provisions herein, or to make any other provisions with respect
to such matters or questions arising under this Agreement that
KeySpan and the Agent may deem necessary or desirable, provided
such action shall not adversely affect the interests of the
Holders.
Section 8.2. Supplemental Agreements With Consent of Holders; Other Fiduciaries.
With the consent of the Holders of not less than a majority in number
of the Outstanding Securities voting together as one class, by Act of said
Holders delivered to KeySpan and the Agent, KeySpan, when authorized by a Board
Resolution, the Trust and the Agent may enter into an agreement or agreements
supplemental hereto for the purpose of modifying in any manner the provisions of
this Agreement or the rights of the Holders in respect of the Securities;
provided, however, that, except as contemplated herein, no such supplemental
agreement shall, without the unanimous consent of the Holders of each
Outstanding Security affected thereby,
(1) materially and adversely affect such Holder's rights under a
Security; or
(2) reduce the percentage of the Outstanding Securities the consent
of whose Holders is required for any such supplemental agreement;
provided, that any modification of the Declaration or Warrant Agreement in
accordance with the terms thereof shall be binding on the rights of the Holders
under this Agreement without the need for any further consent.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental agreement, but it shall
be sufficient if such Act shall approve the substance thereof.
No agreement supplemental hereto shall modify in any way any of the
rights or obligations of the Agent, the Property Trustee, the Indenture Trustee,
the Warrant Agent or the Remarketing Agent without such Person's consent.
KeySpan may, but shall not be obligated to, fix a record date for the
purpose of determining the Persons entitled to consent to any indenture
supplemental hereto. If a record date is fixed, the Holders on such record date,
or their duly designated proxies, and only such Persons, shall be entitled to
consent to such supplemental indenture, whether or not such Holders remain
Holders after such record date; provided, that unless such consent shall have
become effective by virtue of the requisite percentage having been obtained
prior to the date which is 90 days after such record date, any such consent
previously given shall automatically and without further action by any Holder be
canceled and of no further effect.
Section 8.3. Execution of Supplemental Agreements.
In executing, or accepting the additional agencies created by, any
supplemental agreement permitted by this Article or the modifications thereby of
the agencies created by this Agreement, the Agent shall be entitled to receive,
and (subject to Section 7.1) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental agreement is
authorized or permitted by this Agreement. The Agent may, but shall not be
obligated to, enter into any such supplemental agreement which affects the
Agent's own rights, duties or immunities under this Agreement or otherwise.
Section 8.4. Effect of Supplemental Agreements.
Upon the execution of any supplemental agreement under this Article,
this Agreement shall be modified in accordance therewith, and such supplemental
agreement shall form a part of this Agreement for all purposes; and every Holder
of Certificates theretofore or thereafter authenticated, executed on behalf of
the Holders and delivered hereunder, shall be bound thereby.
Section 8.5. Reference to Supplemental Agreements.
Certificates authenticated, executed on behalf of the Holders and
delivered after the execution of any supplemental agreement pursuant to this
Article may, and shall if required by the Agent, bear a notation in form
approved by the Agent as to any matter provided for in such supplemental
agreement. If KeySpan shall so determine, new Certificates so modified as to
conform, in the opinion of the Agent and KeySpan, to any such supplemental
agreement may be prepared and executed by KeySpan and authenticated, executed on
behalf of the Holders and delivered by the Agent in exchange for Certificates
representing Outstanding Securities.
ARTICLE IX
Consolidation, Merger, Sale or Conveyance
Section 9.1. Covenant Not to Merge, Consolidate, Sell or Convey Property Except
Under Certain Conditions.
KeySpan covenants that it will not merge or consolidate with any other
Person or sell, assign, transfer, lease or convey all or substantially all of
its properties and assets to any Person or group of affiliated Persons in one
transaction or a series of related transactions, unless (i) either KeySpan shall
be the continuing corporation, or the successor (if other than KeySpan) shall be
a corporation organized and existing under the laws of the United States of
America or a State thereof or the District of Columbia and such corporation
shall expressly assume all the obligations of KeySpan under this Agreement by
one or more supplemental agreements in form reasonably satisfactory to the
Agent, executed and delivered to the Agent by such corporation, and (ii) KeySpan
or such successor corporation, as the case may be, shall not, immediately after
such merger or consolidation, or such sale, assignment, transfer, lease or
conveyance, be in default in the performance of any covenant or condition
hereunder or under any of the Securities (including the component parts
thereof).
Section 9.2. Rights and Duties of Successor Corporation.
In case of any such consolidation, merger, sale, assignment, transfer,
lease or conveyance and upon any such assumption by a successor corporation in
accordance with Section 9.1, such successor corporation shall succeed to and be
substituted for KeySpan with the same effect as if it had been named herein as
KeySpan. Such successor corporation thereupon may cause to be signed, and may
issue either in its own name or in the name of KeySpan, any or all of the
Certificates evidencing Securities issuable hereunder which theretofore shall
not have been signed by KeySpan and delivered to the Agent; and, upon the order
of such successor corporation, instead of KeySpan, and subject to all the terms,
conditions and limitations in this Agreement prescribed, the Agent shall
authenticate and execute on behalf of the Holders and deliver any Certificates
which previously shall have been signed and delivered by the officers of KeySpan
to the Agent for authentication and execution, and any Certificate evidencing
Securities which such successor corporation thereafter shall cause to be signed
and delivered to the Agent for that purpose. All the Certificates issued shall
in all respects have the same legal rank and benefit under this Agreement as the
Certificates theretofore or thereafter issued in accordance with the terms of
this Agreement as though all of such Certificates had been issued at the date of
the execution hereof.
In case of any such consolidation, merger, sale, assignment, transfer,
lease or conveyance such change in phraseology and form (but not in substance)
may be made in the Certificates evidencing Securities thereafter to be issued as
may be appropriate.
Section 9.3. Opinion of Counsel Given to Agent.
The Agent, subject to Sections 7.1 and 7.3, shall receive an Opinion of
Counsel as conclusive evidence that any such consolidation, merger, sale,
assignment, transfer, lease or conveyance, and any such assumption, complies
with the provisions of this Article and that all conditions precedent to the
consummation of any such consolidation, merger, sale, assignment, transfer,
lease or conveyance have been met.
ARTICLE X
Covenants
Section 10.1. Performance Under Agreements.
KeySpan covenants and agrees for the benefit of the Holders from time
to time of the Securities that it will duly and punctually perform its
obligations under the Warrant Agreement and the Declaration in accordance with
the terms thereof and this Agreement.
Section 10.2. Maintenance of Office or Agency.
KeySpan will maintain in the Borough of Manhattan, The City of New York
an office or agency where Certificates may be presented or surrendered for
registration of transfer or exchange, separation or re-establishment of a
Security and where notices and demands to or upon KeySpan in respect of the
Securities and this Agreement may be served. KeySpan will give prompt written
notice to the Agent of the location, and any change in the location, of such
office or agency. If at any time KeySpan shall fail to maintain any such
required office or agency or shall fail to furnish the Agent with the address
thereof, such presentations, surrenders, notices and demands may be made or
served at the Corporate Trust Office, and KeySpan hereby appoints the Agent as
its agent to receive all such presentations, surrenders, notices and demands.
KeySpan may also from time to time designate one or more other offices
or agencies where Certificates may be presented or surrendered for any or all
such purposes and may from time to time rescind such designations; provided,
however, that no such designation or rescission shall in any manner relieve
KeySpan of its obligation to maintain an office or agency in the Borough of
Manhattan, The City of New York for such purposes. KeySpan will give prompt
written notice to the Agent of any such designation or rescission and of any
change in the location of any such other office or agency. KeySpan hereby
designates as the place of payment for the Securities the Corporate Trust Office
and appoints the Agent at its Corporate Trust Office as paying agent in such
city.
Section 10.3. Statements of Officers of KeySpan as to Compliance.
KeySpan will deliver to the Agent, within 120 days after the end of
each fiscal year of KeySpan (which as of the date hereof is December 31) ending
after the date hereof, an Officers' Certificate (one of the signers of which
shall be the principal executive officer, principal financial officer or
principal accounting officer of KeySpan), stating whether or not to the best
knowledge of the signers thereof KeySpan is in default in the performance and
observance of any of the terms, provisions and conditions hereof, and if KeySpan
shall be in default, specifying all such defaults and the nature and status
thereof of which they may have knowledge.
Section 10.4. ERISA.
Each Holder from time to time of the Security which is a Plan hereby
represents that its acquisition of the Security and the holding of the same
satisfies the applicable fiduciary requirements of ERISA and that it is entitled
to exemption relief from the prohibited transaction provisions of ERISA and the
Code in accordance with one or more prohibited transaction exemptions or
otherwise will not result in a nonexempt prohibited transaction.
Section 10.5. Statement by Officers as to Default.
KeySpan shall deliver to the Agent, as soon as possible and in any
event within five days after KeySpan becomes aware of the occurrence of any
Event of Default or an event which, with notice or the lapse of time or both,
would constitute an Event of Default, an Officers' Certificate setting forth the
details of such Event of Default or default and the action which the KeySpan
proposes to take with respect thereto.
Section 10.6. Calculation of Original Issue Discount.
KeySpan shall provide to the Agent on a timely basis such information
as the Agent requires to enable the Agent to prepare and file any form required
to be submitted by KeySpan with the Internal Revenue Service and Holders of
Securities relating to original discount, including, without limitation, Form
1099-OID or any successor form.
ARTICLE XI
Representations of the Agent
Section 11.1. Representations and Warranties of the Agent.
The initial Agent represents and warrants to the Trust and to KeySpan
at the date of this Agreement, and each successor Agent represents and warrants
to the Trust and KeySpan at the time of the successor Agent's acceptance of its
appointment as Agent, that:
(a) the Agent is a banking corporation duly organized, validly
existing and in good standing under the laws of the State of New
York, with trust powers and authority to execute and deliver, and
to carry out and perform its obligations under the terms of, this
Agreement;
(b) the Agent satisfies the requirements set forth in Section 7.8;
(c) the execution, delivery and performance by the Agent of this
Agreement has been duly authorized by all necessary corporate
action on the part of the Agent; this Agreement has been duly
executed and delivered by the Agent and constitutes a legal,
valid and binding obligation of the Agent enforceable against it
in accordance with its terms, subject to applicable bankruptcy,
reorganization, moratorium, insolvency and other similar laws
affecting creditors' rights generally and to general principles
of equity and the discretion of the court (regardless of whether
the enforcement of such remedies is considered in a proceeding in
equity or at law);
(d) the execution, delivery and performance of this Agreement by the
Agent does not conflict with, or constitute a breach of, the
charter or by-laws of the Agent; and
(e) no consent, approval or authorization of, or registration with or
notice to, any New York State or federal banking authority is
required for the execution, delivery or performance by the Agent
of this Agreement.
ARTICLE XII
The Warrant Agent and The Property Trustee
Section 12.1. Certain Duties and Responsibilities.
(a) (1) The Warrant Agent and the Property Trustee (each, a "Party",
together, the "Parties") undertake to perform, with respect to this Agreement,
such duties and only such duties as are specifically set forth in this
Agreement, and no implied covenants or obligations shall be read into this
Agreement against any Party. The provisions regarding the appointment, removal,
resignation, vacancies, meetings, delegation of power and merger, conversion,
consolidation or succession to business applicable to such Party in the
Declaration or Warrant Agreement, as to which such Person is a party, shall
apply to the performance of such Persons duties and obligations hereunder.
Without limiting the foregoing,
(a) In the absence of bad faith or negligence on its part, any Party may,
with respect to the Securities, conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to such Party and conforming to the
requirements of this Agreement but in the case of any certificates or opinions
which by any provision hereof are specifically required to be furnished to a
Party, such Party shall be under a duty to examine the same to determine whether
or not they conform to the requirements of this Agreement.
(b) No provision of this Agreement shall be construed to relieve any Party
from liability for its own negligent action, its own negligent failure to act,
or its own wilful misconduct, except that
(1) this Subsection shall not be construed to limit the effect of
Subsection (a) of this Section;
(2) no Party shall be liable for any error of judgment made in good
faith by a Responsible Officer, unless it shall be proved that
such Party was negligent in ascertaining the pertinent facts; and
(3) no provision of this Agreement shall require any Party to expend
or risk its own funds or otherwise incur any financial liability
in the performance of any of its duties hereunder, or in the
exercise of any of its rights or powers, if adequate indemnity is
not provided to it.
(c) Whether or not therein expressly so provided, every provision of this
Agreement relating to the conduct or affecting the liability of or affording
protection to the Parties shall be subject to the provisions of this Section.
(d) Any Party may rely and shall be protected in acting or refraining from
acting upon any resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document believed by it to be genuine
and to have been signed or presented by the proper party or parties;
(e) Any request or direction of KeySpan mentioned herein shall be
sufficiently evidenced by an Officers' Certificate, Issuer Order or Issuer
Request, and any resolution of the Board of Directors of KeySpan may be
sufficiently evidenced by a Board Resolution;
(f) Whenever in the administration of this Agreement any Party shall deem
it desirable that a matter be proved or established prior to taking, suffering
or omitting any action hereunder, such Party (unless other evidence be herein
specifically prescribed) may, in the absence of bad faith on its part, rely upon
an Officers' Certificate of KeySpan;
(g) Any Party may consult with counsel of its selection and the advice of
such counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon;
(h) No Party shall be bound to make any investigation into the facts or
matters stated in any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document, but any Party, in its
discretion, may make reasonable further inquiry or investigation into such facts
or matters as it may see fit, and, if such Party shall determine to make such
further inquiry or investigation, it shall be given a reasonable opportunity to
examine the books, records and premises of KeySpan, personally or by agent or
attorney at the sole cost of KeySpan and shall incur no liability or additional
liability of any kind by reason of such inquiry or investigation; and
(i) Any Party may execute any of the powers hereunder or perform any duties
hereunder either directly or by or through agents or attorneys or an Affiliate
and no Party shall be responsible for any misconduct or negligence on the part
of any agent or attorney or an Affiliate appointed with due care by it
hereunder.
(j) No Party shall be liable for any action taken, suffered, or omitted to
be taken by it in good faith and reasonably believed by it to be authorized or
within the discretion or rights or powers conferred upon it by this Agreement;
(k) No Party shall be deemed or have notice of any default or event of
default unless an officer in the corporate trust department of such Party has
actual knowledge thereof or unless written notice of any event which is in fact
such a default is received by such Party at its address identified in this
Agreement, and such notice references the Securities and this Agreement.
(l) The rights, privileges, protections, immunities and benefits given to
each Party, including, without limitation, its right to be indemnified, are
extended to, and shall be enforceable by, such Party in each of its capacities
hereunder, and to each agent, custodian and other Person employed to act
hereunder.
(m) The recitals contained herein and in the Certificates shall be taken as
the statements of KeySpan, and no Party assumes any responsibility for their
accuracy. No Party makes any representations as to the validity or sufficiency
of either this Agreement or of the Securities.
(n) Any Party in its individual or any other capacity, may become the owner
or pledgee of Securities and may otherwise deal with KeySpan or any other Person
with the same rights it would have if it were not a Party.
(o) KeySpan agrees to pay each Party such compensation, and to reimburse
each Party for such expenses, as shall be provided from time to time in the
Declaration and the Warrant Agreement to which such Party is a signatory.
(p) The provisions of this Section shall survive the termination of this
Agreement.
(q) No Party shall be accountable for the use or application by KeySpan of
Securities or the proceeds thereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
KEYSPAN CORPORATION
By:
--------------------------------------------
Name:
Title:
____________________________, as Agent
By:______________________________
Name:
Title:
_________________________, as Warrant Agent
By:______________________________
Name:
Title:
________________________, as Property Trustee
By:______________________________
Name:
Title:
KEYSPAN CORPORATION TRUST __
By:______________________________
Name:
Title: Administrative Trustee
By:______________________________
Name:
Title: Administrative Trustee
EXHIBIT A
FACE OF CERTIFICATE
"THIS CERTIFICATE IS A GLOBAL CERTIFICATE WITHIN THE MEANING OF THE
UNIT AGREEMENT HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (THE "DEPOSITARY"), OR A
NOMINEE OF THE DEPOSITARY. THIS CERTIFICATE IS EXCHANGEABLE FOR CERTIFICATES
REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY
IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE UNIT AGREEMENT AND NO TRANSFER OF
THIS CERTIFICATE (OTHER THAN A TRANSFER OF THIS CERTIFICATE 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
LIMITED CIRCUMSTANCES.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITARY FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THE CONSTITUENT COMPONENTS OF THIS UNIT MUST BE SEPARATED PRIOR TO
TRANSFER (EXCEPT AS PART OF A UNIT) AS PROVIDED IN THE UNIT AGREEMENT."
[THE SECURITY EVIDENCED BY THIS CERTIFICATE HAS NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY
STATE SECURITIES LAWS, AND MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES
OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH IN THE
FOLLOWING SENTENCE. BY ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT
IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT, OR (B) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN
AN "OFFSHORE TRANSACTION" PURSUANT TO RULE 903 OR 904 OF REGULATION S; (2)
AGREES THAT IT WILL NOT WITHIN TWO YEARS AFTER THE ORIGINAL ISSUANCE OF THIS
SECURITY RESELL OR OTHERWISE TRANSFER THE SECURITY EVIDENCED HEREBY EXCEPT (A)
TO KEYSPAN OR ANY SUBSIDIARY THEREOF, (B) TO A QUALIFIED INSTITUTIONAL BUYER IN
COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT (IF AVAILABLE), (C) PURSUANT
TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES
WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT, IN COMPLIANCE WITH
REGULATION S UNDER THE SECURITIES ACT, (D) PURSUANT TO THE EXEMPTION FROM
REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE) OR (E)
PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE
SECURITIES ACT AND WHICH CONTINUES TO BE EFFECTIVE AT THE TIME OF SUCH TRANSFER;
AND (3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THE SECURITY
EVIDENCED HEREBY IS TRANSFERRED (OTHER THAN A TRANSFER PURSUANT TO CLAUSE 2(E)
ABOVE) A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN CONNECTION WITH
ANY TRANSFER OF THE SECURITY EVIDENCED HEREBY WITHIN TWO YEARS AFTER THE
ORIGINAL ISSUANCE OF SUCH SECURITY (OTHER THAN A TRANSFER PURSUANT TO CLAUSE
2(E) ABOVE), THE HOLDER MUST CHECK THE APPROPRIATE BOX SET FORTH ON THE REVERSE
HEREOF RELATING TO THE MANNER OF SUCH TRANSFER AND SUBMIT THIS CERTIFICATE TO
THE TRUSTEE (OR ANY SUCCESSOR TRUSTEE, AS APPLICABLE). IF THE PROPOSED TRANSFER
IS PURSUANT TO CLAUSE 2(C) OR 2(D) ABOVE, THE HOLDER MUST, PRIOR TO SUCH
TRANSFER, FURNISH TO THE TRUSTEE (OR ANY SUCCESSOR TRUSTEE, AS APPLICABLE) SUCH
CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS KEYSPAN MAY REASONABLY
REQUIRE, TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION
FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT. THIS LEGEND WILL BE REMOVED UPON THE EARLIER OF THE TRANSFER OF
THE SECURITY EVIDENCED HEREBY PURSUANT TO CLAUSE 2(E) ABOVE OR THE EXPIRATION OF
TWO YEARS FROM THE ORIGINAL ISSUANCE OF THE SECURITY EVIDENCED HEREBY. AS USED
HEREIN, THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND "U.S. PERSON" HAVE
THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT. ]
[THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO BE
BOUND BY THE PROVISIONS OF THE RESALE REGISTRATION RIGHTS AGREEMENT RELATING TO
ALL THE SECURITIES.]
[PRIOR TO EXPIRATION OF THE ONE-YEAR DISTRIBUTION COMPLIANCE PERIOD (AS
DEFINED IN REGULATION S UNDER THE SECURITIES ACT OF 1933 (THE "SECURITIES ACT"))
("REGULATION S"), THIS SECURITY MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE
TRANSFERRED WITHIN THE UNITED STATES (AS DEFINED IN REGULATION S) OR TO, OR FOR
THE ACCOUNT OR BENEFIT OF, A U.S. PERSON (AS DEFINED IN REGULATION S), EXCEPT
(A) TO A PERSON REASONABLY BELIEVED TO BE A "QUALIFIED INSTITUTIONAL BUYER" (AS
DEFINED IN RULE 144A ("RULE 144A") UNDER THE SECURITIES ACT) IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (B) PURSUANT TO THE EXEMPTION FROM
REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE) OR (C)
PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE
SECURITIES ACT AND WHICH CONTINUES TO BE EFFECTIVE AT THE TIME OF SUCH
TRANSFER.]
Certificate No.: _____ Cusip No.: __________
Number of Securities: ___________
KEYSPAN CORPORATION
KEYSPAN CORPORATION TRUST __
Unit Security
This Certificate certifies that Cede & Co. is the registered Holder of
the number of Securities set forth above. Each Security consists of (i)
beneficial ownership by the Holder of one Preferred Security (the "Preferred
Security") of KeySpan Corporation Trust __, a Delaware statutory business trust
(the "Trust"), having a stated liquidation amount of $50, the form of which is
attached as Annex A hereto and (ii) the rights and obligations of the Holder
under one Warrant to purchase shares of common stock of KeySpan Corporation, a
New York corporation (the "Company"), the form of which is attached as Annex B
hereto. All capitalized terms used herein which are defined in the Unit
Agreement (as defined on the reverse hereof) have the meaning set forth therein.
Distributions on any Preferred Security forming part of a Security
evidenced hereby, which are payable quarterly in arrears on ________ __,
________ __, ________ __, and ________ __ of each year, commencing on _____ __,
20__ (a "Payment Date"), shall, subject to receipt thereof by the Agent, be paid
to the Person in whose name this Certificate (or a Predecessor Certificate) is
registered at the close of business on the Record Date for such Payment Date,
except that the proceeds of a Remarketing will be paid to the Warrant Agent in
satisfaction of each Electing Remarketing Holder's obligations to pay the
Exercise Price of Warrants constituting a part of this Security.
Distributions on the Preferred Securities will be payable at the office
of the Agent in The City of New York or, at the option of KeySpan, by check
mailed to the address of the Person entitled thereto as such address appears on
the Register.
Reference is hereby made to the further provisions set forth on the
reverse hereof, which further provisions shall for all purposes have the same
effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Agent by manual signature, this Certificate shall not be entitled to any
benefit under the Unit Agreement, the Warrant Agreement or the Declaration or be
valid or obligatory for any purpose.
IN WITNESS WHEREOF, the undersigned have caused this instrument to be
duly executed.
KEYSPAN CORPORATION
By: _______________________________
Name:
Title:
KEYSPAN CORPORATION TRUST __
By: _______________________________
Name:
Title: Administrative Trustee
AGENT'S CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within mentioned
Unit Agreement.
Dated: By: ________________________, as Agent
By: ___________________________
Authorized Signatory
(FORM OF REVERSE OF CERTIFICATE)
Each Security evidenced hereby is governed by a Unit Agreement, dated
as of _____ __, 20__ (as may be supplemented from time to time, the "Unit
Agreement"), among KeySpan, _________________________, as unit agent (including
its successors hereunder, the "Agent"), _________________________, as Warrant
Agent, and ________________________, as Property Trustee, to which Agreement and
supplemental agreements thereto reference is hereby made for a description of
the respective rights, limitations of rights, obligations, duties and immunities
thereunder of the Agent, KeySpan, and the Holders and of the terms upon which
the Certificates are, and are to be, executed and delivered. Pursuant to the
Unit Agreement, the rights, limitations or rights, obligations, duties and
immunities of the Agent, KeySpan, and the Holders, and the Certificates include
the rights, obligations, duties and immunities set forth in the Warrant
Agreement and the Declaration, to which reference is further made for a
description thereof.
Each Security evidenced hereby consists of (i) beneficial ownership by
the Holder of one Preferred Security of KeySpan Corporation Trust __ having a
stated liquidation amount of $__, the form of which is attached as Annex A
hereto and (ii) the rights and obligations of the Holder under one Warrant to
purchase shares of common stock of KeySpan, the form of which is attached as
Annex B hereto.
KeySpan may, under the circumstances described in the Declaration,
cause a Remarketing of the outstanding Preferred Securities which form a part of
this Security. In connection therewith, KeySpan will, as described in the
Warrant Agreement, redeem all Warrants which form a part of this Security.
In no event may a Holder pay the Exercise Price of a Warrant by
tendering a Preferred Security. In accordance with the terms of the Declaration
and the Unit Agreement, the Holder of this Certificate may pay the Exercise
Price for the shares of Common Stock purchased pursuant to each Warrant
constituting a part of this Security by applying the proceeds of a remarketing
of the related Preferred Securities.
A Holder of a Security who does not affirmatively elect NOT to
participate in a Remarketing on or prior to 5:00 p.m. New York City time on the
Business Day immediately preceding the Remarketing Date, will be deemed to have
consented to participation in such Remarketing. A Holder of a Security who does
not affirmatively elect on or prior to 5:00 p.m. on the Business Day preceding a
Remarketing Settlement Date to exercise the Warrants related to such Security
will be deemed to have consented to a redemption of such Warrants on the
Remarketing Settlement Date. A Remarketing sale will be made by the Remarketing
Agent pursuant to the terms of the Remarketing Agreement on the Remarketing
Date.
A holder may exercise the Warrants which form a part of the Securities
evidenced by this Certificate at any time upon compliance with the procedures
specified in the Warrant Agreement. A Holder of a Security evidenced by this
Certificate who elects to exercise Warrants prior to the Remarketing Settlement
Date shall have the right to require the Trust to exchange the related Preferred
Securities for Debentures having an Accreted Value equal to the Accreted Value
of such Preferred Securities and to require KeySpan to repurchase such
Debentures on the next Required Repurchase Date which is no less than 60 days
after the applicable exercise date.
Upon receipt of notice of any meeting at which holders of Preferred
Securities are entitled to vote or upon the solicitation of consents, waivers or
proxies of holders of Preferred Securities, the Agent shall, as soon as
practicable thereafter, mail to the Holders a notice (a) containing such
information as is contained in the notice or solicitation, (b) stating that each
Holder on the record date set by the Agent therefor (which, to the extent
possible, shall be the same date as the record date for determining the holders
of Preferred Securities entitled to vote) shall be entitled to instruct the
Agent as to the exercise of the voting rights pertaining to the Preferred
Securities constituting a part of such Holder's Security and (c) stating the
manner in which such instructions may be given. Upon the written request of the
Holders on such record date, the Agent shall endeavor insofar as practicable to
vote or cause to be voted, in accordance with the instructions set forth in such
requests, the maximum number of Preferred Securities as to which any particular
voting instructions are received. In the absence of specific instructions from
the Holder of a Security, the Agent shall abstain from voting the Preferred
Security evidenced by such Security.
Upon the liquidation of the Trust, a principal amount of the Debentures
constituting the assets of the Trust and underlying the Preferred Securities
equal to the aggregate Accreted Value of the Preferred Securities shall be
delivered to the Agent in exchange for the Preferred Securities. Thereafter, the
Holders shall have such rights and obligations with respect to the Debentures as
the Holders had in respect of the Preferred Securities and any reference herein
to the Preferred Securities shall be deemed to be a reference to the Debentures.
The Certificates are issuable only in registered form and only in
denominations of a single Security and any integral multiple thereof. The
transfer of any Certificate will be registered and Certificates may be exchanged
as provided in the Unit Agreement. The Registrar may require a Holder, among
other things, to furnish appropriate endorsements and transfer documents
permitted by the Unit Agreement. No service charge shall be required for any
such registration of transfer or exchange, but KeySpan and the Agent may require
payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith. A Security shall be separable into its
components, and Securities may be recreated as provided in the Unit Agreement;
provided, however, this Certificate shall not represent more than 23,000,000
Securities. All such adjustments to the equivalent aggregate principal amount of
this Certificate shall be duly recorded by placing an appropriate notation on
the Schedule attached hereto.
The Holder of this Certificate, by its acceptance hereof, expressly
withholds any consent to the assumption (i.e., affirmance) of the Warrant
Agreement or the Warrants by KeySpan or its trustee in the event that KeySpan
becomes the subject of a case under the Bankruptcy Code.
The Holder of this Certificate, by its acceptance hereof, expressly
agrees to be bound by the terms and provisions of the Unit Agreement, the
Warrant Agreement and the Declaration.
Subject to certain exceptions, the provisions of the Unit Agreement may
be amended with the consent of the Holders of a majority in number of the
Securities.
KeySpan, the Agent and its Affiliates and any agent of KeySpan or the
Agent may treat the Person in whose name this Certificate is registered as the
owner of the Security evidenced hereby for the purpose of receiving payments of
distributions payable quarterly on the Preferred Securities and for all other
purposes whatsoever, whether or not any payments in respect thereof be overdue
and notwithstanding any notice to the contrary, and neither KeySpan, the Agent
nor any such agent shall be affected by notice to the contrary.
The Warrants shall not, prior to the exercise thereof, entitle the
Holder to any of the rights of a holder of shares of Common Stock.
A copy of the Unit Agreement, the Warrant Agreement, the Declaration,
the Resale Registration Rights Agreement and all exhibits to each such agreement
is available for inspection at the offices of the Agent.
This Security shall be governed by the laws of the State of New York,
without regard to principles of conflicts of law.
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - As tenants in common
UNIF GIFT MIN ACT - ---------------Custodian---------------
(cust) (minor)
Under Uniform Gifts to Minors Act of _______
-------------------------------------
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not as
tenants in common
Additional abbreviations may also be used though not in the above list.
-------------------------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto___________________________________________________________________________
___________________________________________________________________________
(Please insert Social Security or Taxpayer I.D. or other Identifying Number
of Assignee)
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
(Please Print or Type Name and Address Including Postal Zip Code of Assignee)
the within Certificates and all rights thereunder, hereby
irrevocably constituting and appointing attorney to transfer said Certificates
on the books of [Name of Company] with full power of substitution in the
premises.
Dated: ___________________ ______________________________________________
Signature
NOTICE: The signature to this
assignment must correspond with
the name as it appears upon the
face of the within Certificates in
every particular, without
alteration or enlargement or any
change whatsoever.
Signature Guarantee: ___________________________________
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL CERTIFICATE
This Global Unit shall represent 20,000,000 Securities unless otherwise
indicated below.
The following increases or decreases in this Global Unit
have been made:
Amount of decrease Amount of increase Number of Securities
in Number of in Number of evidenced by this
Securities evidenced Securities evidenced Global Unit Signature of
by the by the following such authorized officer
Date Global Unit Global Unit decrease or increase of Agent
ANNEX A
[FORM OF PREFERRED SECURITY CERTIFICATE]
This Preferred Security is a Global Preferred Security within the meaning of the
Declaration hereinafter referred to and is registered in the name of The
Depository Trust Company, a New York corporation (the "Clearing Agency"), or a
nominee of the Clearing Agency. This Preferred Security is exchangeable for
Preferred Securities registered in the name of a person other than the Clearing
Agency or its nominee only in the limited circumstances described in the
Declaration, and no transfer of this Preferred Security (other than a transfer
of this Preferred Security as a whole by the Clearing Agency to a nominee of the
Clearing Agency or by a nominee of the Clearing Agency to the Clearing Agency or
another nominee of the Clearing Agency) may be registered except in limited
circumstances. Unless this certificate is presented by an authorized
representative of the Clearing Agency to KeySpan Corporation Trust __ or its
agent for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or such other name as requested
by an authorized representative of the Clearing Agency (and any payment hereon
is made to Cede & Co. or to such other entity as is requested by an authorized
representative of the Clearing Agency), and except as otherwise provided in the
Declaration, ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY
OR TO ANY PERSON IS WRONGFUL since the registered owner hereof, Cede & Co., has
an interest herein.1
CERTIFICATE EVIDENCING PREFERRED SECURITIES
of
KEYSPAN CORPORATION TRUST __
_____% Preferred Securities
(stated liquidation amount $__ per Preferred Security)
Certificate No.:____ Number of Preferred Securities ______________
CUSIP No.: __________
KeySpan Corporation TRUST __, a statutory business trust
created under the laws of the State of Delaware (the "Trust"), hereby certifies
that ______________ (the "Holder") is the registered owner of _________
preferred securities of the Trust representing undivided beneficial ownership
interests in the assets of the Trust designated the Preferred Securities (stated
liquidation amount $__ per Preferred Security) (the "Preferred Securities"). The
Preferred Securities are transferable on the books and records of the Trust, in
person or by a duly authorized attorney, upon surrender of this certificate duly
endorsed and in proper form for
- --------
1. Insert in Global Preferred Securities only.
transfer as provided in the Declaration. The
designation, rights, privileges, restrictions, preferences and other terms and
provisions of the Preferred Securities represented hereby are issued and shall
in all respects be subject to the provisions of the Amended and Restated
Declaration of Trust of the Trust, dated as of _____ __, _____ (as the same may
be amended from time to time (the "Declaration"), among KeySpan Corporation, as
Sponsor, _____________, _____________ and _____________, as Administrative
Trustees, ___________________, as Property Trustee, and _____________________,
as Delaware Trustee. Capitalized terms used but not defined herein shall have
the meaning given them in the Declaration. The Holder is entitled to the
benefits of the Guarantee Agreement, dated as of ______ __, 20__, between
KeySpan Corporation, as Guarantor and _________________, as Guarantee Trustee,
in respect of the Preferred Securities. The Sponsor will provide a copy of the
Declaration, the Guarantee Agreement and the Indenture (including any
supplemental indenture) to a Holder without charge upon written request to the
Sponsor at its principal place of business.
Upon receipt of this certificate, the Holder is bound by the
Declaration and is entitled to the benefits thereunder.
By acceptance, the Holder agrees to treat, for United States
federal income tax purposes, the Debentures as indebtedness and the Preferred
Securities as evidence of undivided indirect beneficial ownership interests in
the Debentures.
IN WITNESS WHEREOF, the Trust has executed this certificate this
_____ day of _________________, 20__.
KEYSPAN CORPORATION TRUST __
By:_____________________________
Name:
Administrative Trustee
PROPERTY TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the Preferred Securities referred to in the within-mentioned
Declaration.
Dated: ____________, 20__
THE BANK OF NEW YORK,
as Property Trustee
By:_________________________
Authorized Signatory
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Preferred
Security Certificate to:
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(Insert assignee's social security or tax identification number)
- -------------------------------------------------------------------------------
(Insert address and zip code of assignee)
and irrevocably appoints _________________________ agent to transfer this
Preferred Security Certificate on the books and records of the Trust. The agent
may substitute another to act for him.
Date:
--------------------------------------
Signature:
---------------------------------
(Sign exactly as your name appears on the Preferred Security Certificate)
Signature Guarantee*:
- --------------------
* Signature must be guaranteed by an "eligible guarantor institution" that is a
bank, stockbroker, savings and loan association or credit union meeting the
requirements of the Registrar, which requirements include membership or
participation in the Securities Transfer Agents Medallion Program ("STAMP") or
such other "signature guarantee program" as may be determined by the Registrar
in addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
SCHEDULE OF INCREASES OR DECREASES IN
GLOBAL PREFERRED SECURITY 2
This Global Preferred Security shall represent 0 Preferred
Securities unless otherwise indicated below.
The following increases or decreases in this Global Preferred
Security have been made:
Number of Preferred
Amount of decrease Amount of increase Securities evidenced
in Number of in Number of by this
Preferred Securities Preferred Securities Global Preferred
evidenced by this evidenced by this Security following Signature of
Global Preferred Global Preferred such authorized officer
Date Security Security decrease or increase of Agent
- --------------------
2 Insert in Global Preferred Securities only.
ANNEX B
[FORM OF WARRANT CERTIFICATE]
THE WARRANTS REPRESENTED BY THIS CERTIFICATE WERE INITIALLY ISSUED AS PART OF AN
ISSUANCE OF UNITS, EACH OF WHICH CONSISTS OF A WARRANT TO PURCHASE ______ SHARES
(SUBJECT TO ANTI-DILUTION ADJUSTMENTS) OF COMMON STOCK OF THE COMPANY AT THE
EXERCISE PRICE SET FORTH IN THE BELOW-REFERENCED WARRANT AGREEMENT AND A
PREFERRED SECURITY OF KEYSPAN CORPORATION TRUST __ (THE "TRUST"). THE WARRANTS
AND THE PREFERRED SECURITIES MAY BE SEPARATED AND TRANSFERRED SEPARATELY, AND
RE-ATTACHED, IN ACCORDANCE WITH THE PROVISIONS OF THE UNIT AGREEMENT.
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), NEW YORK, NEW YORK, TO
THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
[TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT
NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S
NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO
TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE WARRANT
AGREEMENT.]
[THE SECURITY EVIDENCED BY THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE
SECURITIES LAWS, AND MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO,
OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH IN THE
FOLLOWING SENTENCE. BY ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT
IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT, OR (B) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN
AN "OFFSHORE TRANSACTION" PURSUANT TO RULE 903 OR 904 OF REGULATION S; (2)
AGREES THAT IT WILL NOT WITHIN TWO YEARS AFTER THE ORIGINAL ISSUANCE OF THIS
SECURITY RESELL OR OTHERWISE TRANSFER THE SECURITY EVIDENCED HEREBY EXCEPT (A)
TO KEYSPAN OR ANY SUBSIDIARY THEREOF, (B) TO A QUALIFIED INSTITUTIONAL BUYER IN
COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT (IF AVAILABLE), (C) PURSUANT
TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES
WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT, IN COMPLIANCE WITH
REGULATION S UNDER THE SECURITIES ACT, (D) PURSUANT TO THE EXEMPTION FROM
REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE) OR (E)
PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE
SECURITIES ACT AND WHICH CONTINUES TO BE EFFECTIVE AT THE TIME OF SUCH TRANSFER;
AND (3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THE SECURITY
EVIDENCED HEREBY IS TRANSFERRED (OTHER THAN A TRANSFER PURSUANT TO CLAUSE 2(E)
ABOVE) A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN CONNECTION WITH
ANY TRANSFER OF THE SECURITY EVIDENCED HEREBY WITHIN TWO YEARS AFTER THE
ORIGINAL ISSUANCE OF SUCH SECURITY (OTHER THAN A TRANSFER PURSUANT TO CLAUSE
2(E) ABOVE), THE HOLDER MUST CHECK THE APPROPRIATE BOX SET FORTH ON THE REVERSE
HEREOF RELATING TO THE MANNER OF SUCH TRANSFER AND SUBMIT THIS CERTIFICATE TO
THE TRUSTEE (OR ANY SUCCESSOR TRUSTEE, AS APPLICABLE). IF THE PROPOSED TRANSFER
IS PURSUANT TO CLAUSE 2(C) OR 2(D) ABOVE, THE HOLDER MUST, PRIOR TO SUCH
TRANSFER, FURNISH TO THE TRUSTEE (OR ANY SUCCESSOR TRUSTEE, AS APPLICABLE) SUCH
CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS KEYSPAN MAY REASONABLY
REQUIRE, TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION
FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT. THIS LEGEND WILL BE REMOVED UPON THE EARLIER OF THE TRANSFER OF
THE SECURITY EVIDENCED HEREBY PURSUANT TO CLAUSE 2(E) ABOVE OR THE EXPIRATION OF
TWO YEARS FROM THE ORIGINAL ISSUANCE OF THE SECURITY EVIDENCED HEREBY. AS USED
HEREIN, THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND "U.S. PERSON" HAVE
THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT. ]
[THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO BE BOUND BY THE
PROVISIONS OF THE RESALE REGISTRATION RIGHTS AGREEMENT RELATING TO ALL THE
SECURITIES.]
[PRIOR TO EXPIRATION OF THE ONE-YEAR DISTRIBUTION COMPLIANCE PERIOD (AS DEFINED
IN REGULATION S UNDER THE SECURITIES ACT OF 1933 (THE "SECURITIES ACT"))
("REGULATION S"), THIS SECURITY MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE
TRANSFERRED WITHIN THE UNITED STATES (AS DEFINED IN REGULATION S) OR TO, OR FOR
THE ACCOUNT OR BENEFIT OF, A U.S. PERSON (AS DEFINED IN REGULATION S), EXCEPT
(A) TO A PERSON REASONABLY BELIEVED TO BE A "QUALIFIED INSTITUTIONAL BUYER" (AS
DEFINED IN RULE 144A ("RULE 144A") UNDER THE SECURITIES ACT) IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (B) PURSUANT TO THE EXEMPTION FROM
REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE) OR (C)
PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE
SECURITIES ACT AND WHICH CONTINUES TO BE EFFECTIVE AT THE TIME OF SUCH
TRANSFER.]
No. { } Certificate for _____ Warrants
CUSIP No.: __________
WARRANTS TO PURCHASE COMMON STOCK OF
KEYSPAN CORPORATION
THIS CERTIFIES THAT __________, or its registered assigns, is the
registered holder of the number of Warrants set forth above (the "Warrants").
Each Warrant entitles the holder thereof (the "Holder"), at its option and
subject to the provisions contained herein and in the Warrant Agreement referred
to below, to purchase from KeySpan Corporation, a New York corporation ("the
Company"), ______ shares (subject to certain adjustments as set forth in the
Warrant Agreement) of common stock of the Company (the "Common Stock") at the
Exercise Price. This Warrant Certificate shall terminate and become void, and
the related Warrants shall expire, as of 5:00 p.m., New York time, on the
earlier of (i) ______ __, 20__ or (ii) the date the Warrants are redeemed by the
Company pursuant to the terms of the Warrant Agreement, as described below (the
"Expiration Date"), or upon the earlier exercise hereof as to all the shares of
Common Stock subject hereto. The number of shares issuable upon exercise of the
Warrants shall be subject to adjustment from time to time as set forth in the
Warrant Agreement.
This Warrant Certificate is issued under and in accordance with a
Warrant Agreement dated as of _____ __, _____ (the "Warrant Agreement"), between
the Company and ________________________, as warrant agent (the "Warrant Agent",
which term includes any successor Warrant Agent under the Warrant Agreement),
and is subject to the terms and provisions contained in the Warrant Agreement,
to all of which terms and provisions the Holder of this Warrant Certificate
consents by acceptance hereof. The Warrant Agreement is hereby incorporated
herein by reference and made a part hereof. Reference is hereby made to the
Warrant Agreement for a full statement of the respective rights, limitations of
rights, duties and obligations of the Company, the Warrant Agent and the Holders
of the Warrants. Capitalized terms used but not defined herein shall have the
meanings ascribed thereto in the Warrant Agreement. A copy of the Warrant
Agreement may be obtained for inspection by the Holder hereof upon written
request to the Warrant Agent at its address for notices specified in the Warrant
Agreement.
Subject to redemption as described below, the Holder of this Warrant
Certificate shall have the right, prior to the Expiration Date, at such Holder's
option, to exercise the related Warrant and purchase the Exercise Amount
(subject to certain adjustments set forth in the Warrant Agreement) of Common
Stock at the Exercise Price, provided that the Exercise Conditions are met as of
such date. If the Warrant evidenced by this Warrant Certificate is not exercised
at or before 5:00 p.m., New York time, on its Expiration Date, such Warrant
shall become void, and all rights of the Holder of this Warrant Certificate
hereunder and under the Warrant Agreement shall cease. The Warrant or Warrants
evidenced by this Warrant Certificate may be exercised by giving notice to the
Warrant Agent no later than 5:00 p.m., New York time, on the Business Day
preceding the proposed date of exercise of such Warrants and completing the form
of election to purchase set forth on the reverse hereof, and delivering the
same, together with this Warrant Certificate (if this Warrant Certificate shall
then be held in definitive form), to the Warrant Agent no later than 5:00 p.m.,
New York time, on the date of such exercise, together with a Cash Payment
(unless, in accordance with the Warrant Agreement, a Remarketing Payment is to
be made). In no event may a Holder satisfy its obligation to pay the Exercise
Price by tendering Preferred Securities.
On the date of exercise of the Warrant or Warrants evidenced by this
Warrant Certificate, the Company shall issue, and the Warrant Agent shall
deliver, to or upon the order of the Holder hereof, the Exercise Amount of
Common Stock to which such Holder is entitled, registered in such name or names
as may be directed by such Holder. The date on which this Warrant Certificate
and payment are received by the Warrant Agent as aforesaid shall be deemed to be
the date on which the related Warrant is exercised and the related Common Stock
is issued.
Notwithstanding anything to the contrary in this Warrant Certificate or
in the Warrant Agreement, (i) no fractional shares of Common Stock shall be
issued by the Company upon the exercise of any Warrant, (ii) if more than one
Warrant shall be exercised at the same time by the same Holder, the number of
shares of Common Stock issuable in connection with such exercise shall be
computed on the basis of the aggregate Exercise Amount of the Warrants so
exercised, and (iii) on the date a Holder exercises such Holder's Warrant, the
Company shall pay such Holder an amount in cash equal to the then-current Market
Price (multiplied by the related fraction) of Common Stock for such fractional
shares, computed to the nearest whole cent.
If fewer than all of the Warrants evidenced by this Warrant Certificate
are exercised, the Company shall execute, and an authorized officer of the
Warrant Agent shall countersign and deliver, a new Warrant Certificate
evidencing the number of Warrants remaining unexercised.
The "Exercise Conditions" require that, with respect to any Warrant on
any date on which such Warrant is or is proposed to be exercised by the Holder
thereof, such Warrant will not be exercisable unless, at the time of exercise
(i) in the case of a Holder who received Warrants in a transaction exempt from
registration requirements under the Securities Act,
(x) the sale of the shares upon exercise of the Warrants is exempt from the
registration requirements of the Securities Act and such shares of
Common Stock shall bear the legend set forth in Section 2.02(f) of the
Warrant Agreement and
(y) the shares have been registered, qualified or are deemed to be exempt
under the securities laws of the state of residence of the exercising
holder of the Warrants;
or (ii) in the case of a Holder who received Warrants transferred pursuant to an
effective shelf registration statement,
(x) a shelf registration statement covering the issuance of the Common
Stock upon exercise of the Warrant is then in effect;
(y) the shares have been registered, qualified or are deemed to be exempt
under the securities laws of the state of residence of the exercising
holder of the Warrants; and
(z) a then current prospectus is delivered to exercising holders of the
Warrants.
As provided in the Warrant Agreement, the number of shares of Common
Stock issuable upon the exercise of the Warrants is subject to an anti-dilution
adjustment upon the happening of certain events. The Warrant Agreement also
provides for certain adjustments and/or distributions in the event of certain
events relating to a merger or combination of the Company, and similar events.
Subject to satisfaction of the Exercise Conditions and certain other
conditions, the Company may elect to cause a remarketing of the Preferred
Securities and a contemporaneous redemption of the Warrants on the Redemption
Date, for cash, in an amount equal to the Warrant Value as of the Remarketing
Date, in accordance with the Warrant Agreement and related agreements.
A Holder (i) may elect to exercise a Warrant in lieu of Redemption, if
(A) such Warrant is held pursuant to the Unit Agreement, and such Holder has
opted out of participating in the Remarketing, by notice given to the Warrant
Agent and the Unit Agent; or (B) such Warrant is not held pursuant to the Unit
Agreement, by notice given to the Warrant Agent, in each case prior to 5:00
p.m., New York time, on the Business Day prior to the related Redemption Date;
and (ii) as provided in the Unit Agreement, shall be deemed to have elected to
exercise such Warrant in lieu of Redemption, if such Warrant is held pursuant to
the Unit Agreement and such Holder has not opted out of participating in the
Remarketing. In the absence of an election to exercise a Warrant in lieu of a
Redemption, including a deemed election pursuant to clause (ii) of the preceding
sentence, a Holder will be deemed to have elected to have its Warrants redeemed
on the Redemption Date.
If a Holder elects or is deemed to have elected to exercise a Warrant
pursuant to the preceding paragraph, then such Holder must tender the Exercise
Price for such Warrant as a Cash Payment, and must follow certain procedures set
forth in the Warrant Agreement; provided, however, that if (i) such Warrant is,
on the Remarketing Date, held pursuant to the Unit Agreement, (ii) such Holder
has not opted out of participating in the Remarketing, and (iii) a Successful
Remarketing shall have occurred, then the Exercise Price of such Warrant will be
deemed to have been paid by a Remarketing Payment, and the Remarketing Agent
will, in connection with such Remarketing Payment, apply the proceeds of the
Remarketing of the related Preferred Security in accordance with the terms of
the Remarketing Agreement and the Unit Agreement.
Any Warrant so redeemed or exercised will, upon such redemption or
exercise, cease to be outstanding.
If a Redemption cannot occur because of an inability, following the
Company's best efforts, to satisfy the Redemption Conditions, the Company will
promptly notify the Warrant Agent and each Holder (at its address specified in
the Warrant Register) thereof. Such event will not constitute a default under
the Warrant Agreement so long as the Company is not otherwise in violation
thereof; and the Company may, under such circumstances, subsequently seek to
remarket the Preferred Securities and contemporaneously redeem the Warrants.
The Company will, contemporaneously with the giving of notice of
Remarketing, furnish notice of Redemption to the Warrant Agent, which will,
within two Business Days of receipt of such notice, furnish notice thereof to
the Holders of Definitive Warrants, and the Company will request, not later than
four nor more than 20 business days prior to the Remarketing Date, that DTC
notify its Participants holding Warrants of the Remarketing.
The Company may require payment of a sum sufficient to pay all taxes,
assessments or other governmental charges in connection with the transfer or
exchange of the Warrant Certificates pursuant to the Warrant Agreement, but not
for any exchange or original issuance (not involving a transfer) with respect to
temporary Warrant Certificates, the exercise of the Warrants or the issuance of
the Common Stock.
This Warrant Certificate may be exchanged at the office of the Warrant
Agent by presenting this Warrant Certificate properly endorsed with a request to
exchange this Warrant Certificate for other Warrant Certificates evidencing an
equal number of Warrants, in accordance with the Warrant Agreement.
All shares of Common Stock issuable by the Company upon the exercise of
the Warrants shall, upon such issue, be duly and validly issued and fully paid
and non-assessable.
The holder in whose name this Warrant Certificate is registered may be
deemed and treated by the Company and the Warrant Agent as the absolute owner of
this Warrant Certificate for all purposes whatsoever and neither the Company nor
the Warrant Agent shall be affected by notice to the contrary.
Neither this Warrant Certificate, nor the Warrant evidenced hereby,
entitles the Holder hereof to any of the rights of a shareholder of the Company.
This Warrant Certificate shall not be valid or obligatory for any
purpose until it shall have been countersigned by the Warrant Agent.
KEYSPAN CORPORATION
By: ___________________________
Name:
Title:
DATED:
Countersigned:
- ------------------------------
- -------------------------,
as Warrant Agent
By ___________________________
Authorized Signatory
FORM OF ELECTION TO PURCHASE COMMON STOCK
(to be executed only upon exercise of Warrants)
KEYSPAN CORPORATION
The undersigned hereby irrevocably elects to exercise ___ Warrants at
an Exercise Price of $______ per Warrant to acquire the Exercise Amount (as
determined pursuant to the Warrant Agreement) per Warrant of Common Stock of
KeySpan Corporation on the terms and conditions specified within this Warrant
Certificate and the Warrant Agreement therein referred to, surrenders this
Warrant Certificate and all right, title and interest therein and directs that
the shares of Common Stock deliverable upon such exercise be registered or
placed in the name and at the address specified below and delivered thereto.
The signature below must correspond with the name as written upon the
face of the within Warrant Certificate in every particular, without alteration
or enlargement or any change whatsoever, and must be guaranteed.
Dated: ____________, ____
-------------------------------------
(Signature of Holder)
-------------------------------------
(Street Address)
-------------------------------------
(City) (State) (Zip Code)
Signature Guaranteed by:
-------------------------------------
{Signature must be
guaranteed by an eligible
guarantor institution
(banks, stock brokers,
savings and loan
associations and credit
unions) with membership in
an approved guarantee
medallion program pursuant
to Securities and Exchange
Commission Rule 17Ad-5)
Common Stock to be issued to:
Please insert social security or identifying number:
Name:____________________________________________
Street Address:__________________________________
City, State and Zip Code:________________________
Any unexercised Warrants represented by the Warrant Certificate to be issued to:
Please insert social security or identifying number:
Name:____________________________________________
Street Address:__________________________________
City, State and Zip Code:________________________
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL CERTIFICATE
This Global Unit shall represent 0 Warrants unless otherwise indicated
below.
The following increases or decreases in this Global Unit
have been made:
Number of Warrants
Amount of decrease Amount of increase evidenced by the
in Number of in Number of Global Unit Signature of
Warrants evidenced Warrants evidenced following such authorized officer
Date by the Global Unit by the Global Unit decrease or increase of Agent
EXHIBIT B
INSTRUCTION TO DISREGARD REMARKETING
=========================
=========================
=========================
=========================
Attention: Corporate Trust Administration
Re: __________________ Units ("Securities") of KeySpan Corporation
and KeySpan Corporation Trust __
The undersigned Holder hereby advises you that it has elected NOT to
participate in the Remarketing set forth below with respect to the corresponding
number of Preferred Securities that are a component of Securities of which the
undersigned is the beneficial owner:
Remarketing Settlement
Date: ______________________
Number of Preferred
Securities NOT to
Remarket: ______________________
The notification to the Remarketing Agent to be sent by you on the
Business Day immediately preceding the above Remarketing Date shall NOT include
the aggregate number of Preferred Securities set forth above. Unless otherwise
defined herein, terms defined in the Unit Agreement dated _____ __, _____ with
KeySpan Corporation and KeySpan Corporation Trust __ are used herein as defined
therein. This notice is being delivered pursuant to Section 5.1 of the Unit
Agreement relating to the Securities.
Date: _______________________ ____________________________________
Signature
Signature Guarantee:_________________
Please print name and address of Registered Holder:
- ------------------------------------ ---------------------------------
Name Social Security or other Taxpayer
Identification Number, if any
Address
- ------------------------------------
- ------------------------------------
- ------------------------------------
EXHIBIT C
NOTICE OF ELECTING REMARKETING HOLDER
========================
========================
========================
========================
Attention: Corporate Trust Administration
- ----------------------
[Address]
Attention:
Re: __________________ Units ("Securities") of KeySpan Corporation
and KeySpan Corporation Trust __
Reference is made to KeySpan Corporation's notice of Redemption dated
_______ __, 20__ notifying Holders of the Securities of the redemption of the
Warrants on ________ __, 20__. This notice constitutes an election by the
undersigned NOT to redeem the Warrants identified below. The undersigned hereby
advises you of its election to exercise the following number of Warrants which
constitute component parts of Securities beneficially owned by the undersigned:
Number of Warrants to
Be Exercised: _________________.
Unless otherwise defined herein, terms defined in the Unit Agreement
dated ______ __, 20__ with KeySpan Corporation and KeySpan Corporation II are
used herein as defined therein. This notice is being delivered pursuant to
Section 5.1 of the Unit Agreement.
Date: _______________________ ____________________________________
Signature
Signature Guarantee:_________________
Please print name and address of Registered Holder:
- ------------------------------------ ---------------------------------
Name Social Security or other Taxpayer
Identification Number, if any
Address
- ------------------------------------
- ------------------------------------
- ------------------------------------
EXHIBIT D
NOTICE OF CHANGE OF CONTROL REDEMPTION ELECTION
========================
========================
========================
========================
Attention: Corporate Trust Administration
Re: ___________________ Units ("Securities") of KeySpan Corporation
and KeySpan Corporation Trust __
Reference is made to KeySpan Corporation's notice of a Change of
Control dated _____ __, 20__ . The undersigned hereby advises you of its
election to have the following number of Warrants which constitute component
parts of Securities beneficially owned by the undersigned redeemed as aforesaid:
Number of Warrants to
Be Redeemed: _________________.
Unless otherwise defined herein, terms defined in the Unit Agreement
dated _____ __, 20__ with KeySpan Corporation and KeySpan Corporation Trust __
are used herein as defined therein. This notice is being delivered pursuant to
Section 5.3 of the Unit Agreement.
Date: _______________________
------------------------------------
Signature
Signature Guarantee:_________________
Please print name and address of Registered Holder:
- ------------------------------------ ---------------------------------
Name Social Security or other Taxpayer
Identification Number, if any
Address
- ------------------------------------
- ------------------------------------
- ------------------------------------
EXHIBIT E
NOTICE OF CHANGE OF CONTROL EXCHANGE AND REPURCHASE
========================
========================
========================
========================
Attention: Corporate Trust Administration
Re: _____________________ Units ("Securities") of KeySpan Corporation
and KeySpan Corporation Trust __
Reference is made to KeySpan Corporation's notice of a Change of
Control dated _____ __, 20__ . The undersigned Holder hereby advises you that it
has elected (i) to have the number of Preferred Securities set forth below
exchanged for an equivalent Accreted Value of Debentures and (ii) to have such
Debentures repurchased by KeySpan Corporation, or its successor, as provided in
the Unit Agreement, the Declaration and the Indenture:
Number of Preferred
Securities to Exchange: ______________________
Number of Debentures
to Repurchase: ______________________
Unless otherwise defined herein, terms defined in the Unit Agreement
dated _____ __, 20__ with KeySpan Corporation and KeySpan Corporation Trust __
(the "Unit Agreement") are used herein as defined therein. This notice is being
delivered pursuant to Section 5.3 of the Unit Agreement.
Date: _______________________ _________________________________
Signature
Signature Guarantee:_____________
Please print name and address of Registered Holder:
- ------------------------------------ -----------------------------------
Name Social Security or other Taxpayer
Identification Number, if any
Address
- ------------------------------------
- ------------------------------------
- ------------------------------------
EXHIBIT F
FORM OF TRANSFER CERTIFICATE (RULE 144A TO REGULATION S)
- ------------------------
- ------------------------
- ------------------------
Attn.: Corporate Trust Administration
Re: _____________________ Units ("Securities") of KeySpan Corporation
and KeySpan Corporation Trust __
Reference is hereby made to the Unit Agreement dated as of
______ __, 20__ (the "Agreement"), among KeySpan Corporation, KeySpan
Corporation Trust __, ________________________, as warrant agent,
________________________, as Property Trustee and The Bank of New York, as
Agent. Capitalized terms used but not defined herein will have the meanings
given to them in the Agreement.
This letter relates to ____________ amount of Units which are
held in the form of [a beneficial interest in the Rule 144A Global Unit with the
Depositary in the name of the undersigned] [a certificated Unit bearing the
Securities Act Legend].
The undersigned has requested a transfer of such [beneficial
interest] [certificated Unit] to a Person who will take delivery thereof in the
form of [a beneficial interest in the Regulation S Global Unit (ISIN No.
_______) to be held with [Euroclear] [Clearstream] (Common Code ______) through
the Depositary] [a certificated Unit not bearing the Securities Act Legend].
In connection with such transfer, the undersigned does hereby
certify that such transfer will be effected in accordance with the transfer
restrictions set forth in the Agreement and the Units and pursuant to and in
accordance with Rule 903 or 904 of Regulation S under the U.S. Securities Act of
1933, as amended (the "Securities Act"), and, accordingly, the undersigned
further certifies that:
(a) the offer of the Units was not made to a U.S. Person (as defined under
Regulation S);
(b) [at the time the buy order was originated, the transferee was outside
the United States or the undersigned and any Person acting on behalf
of the undersigned reasonably believed that the transferee was outside
the United States] [the transaction was executed in, on or through the
facilities of a designated offshore securities market and neither the
undersigned nor any Person acting on behalf of the undersigned knows
that the transaction was prearranged with a buyer in the United
States];
(c) no directed selling efforts have been made in contravention of the
requirements of Rule 903(b) or 904(b) of Regulation S, as applicable;
(d) the undersigned is not an Issuer or a distributor, an affiliate of
either an Issuer or a distributor, or a Person acting on behalf of any
of the foregoing; and
(e) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act.
This certificate and the statements contained herein are made for the
benefit of the Issuers and the Agent on behalf of the Unit holders.
[NAME OF TRANSFEROR]
By:
----------------------------------------
Name:
Title:
Dated: _________ __, 20__
cc: KeySpan Corporation
EXHIBIT G
FORM OF TRANSFER CERTIFICATE (REGULATION S TO RULE 144A )
- -------------------------------
- -------------------------------
- -------------------------------
Attn.: Corporate Trust Administration
Re: _____________________ Units ("Securities") of KeySpan Corporation
and KeySpan Corporation Trust __
Reference is hereby made to the Unit Agreement dated as of
_____ __, 20__ (the "Agreement"), among KeySpan Corporation, KeySpan Corporation
Trust __, ________________________, as warrant agent, _______________________,
as Property Trustee and ______________________, as Agent. Capitalized terms used
but not defined herein will have the meanings given to them in the Agreement.
This letter relates to ________ of Units which are held in the
form of a beneficial interest in the Regulation S Global Unit (ISIN No. _______)
with the Depositary in the name of the undersigned.
The undersigned has requested a transfer of such beneficial
interest in the Units to a Person who will take delivery thereof in the form of
a beneficial interest in the Rule 144A Global Unit (CUSIP No.
- -------).
In connection with such transfer, the undersigned does hereby
confirm that such transfer will be effected in accordance with the transfer
restrictions set forth in the Indenture and the Units, and accordingly, the
undersigned represents that such transfer is being made to a Person who the
transferor reasonably believes is a "qualified institutional buyer" within the
meaning of Rule 144A in a transaction meeting the requirements of Rule 144A and
in accordance with any applicable securities laws of any state of the United
States or any other jurisdiction.
This certificate and the statements contained herein are made
for the benefit of the Issuers and the Agent on behalf of the Unit holders.
[NAME OF TRANSFEROR]
By:
----------------------------------------
Name:
Title:
Dated: __________ __ 20__
cc: KeySpan Corporation
EXHIBIT H
FORM OF REQUEST FOR REMOVAL OF SECURITIES ACT LEGEND
- --------------------------
- --------------------------
- --------------------------
Attn.: Corporate Trust Administration
Re: __________________ Units ("Securities") of KeySpan Corporation
and KeySpan Corporation Trust __
Reference is hereby made to the Unit Agreement dated as of
_____ __, 20__ (the "Agreement"), among KeySpan Corporation, KeySpan Corporation
Trust __, __________________________, as warrant agent,
__________________________, as Property Trustee and ________________________, as
Agent. Capitalized terms used but not defined herein will have the meanings
given to them in the Agreement.
This letter relates to _________ amount of Securities which
are held in the form of [a beneficial interest in the Rule 144A Global Unit
(CUSIP No. ______) with the Depositary] [[a] certificated Security(ies)] in the
name of the undersigned]].
The undersigned requests that the Securities Act Legend on
such Security (ies) be removed.
The undersigned certifies that neither the Securities Act
Legend nor the restrictions on transfer set forth therein are required to ensure
that transfers of the subject Security(ies) will not violate the registration
requirements of the Securities Act.
This certificate and the statements contained herein are made
for the benefit of the Issuers and the Agent Trustee on behalf of the Unit
holders.
[NAME]
By:
---------------------------------------
Name:
Title:
Dated: ________ __, 20__
cc: KeySpan Corporation
EXHIBIT I
Form of Certificate for Exchange or Transfer from
Restricted Regulation S Global Unit to Permanent Regulation S Global Unit
-------------------------------------------------------------------------
[Euroclear Bank, S.A./N.V., as operator of the Euroclear System]
[Clearstream Banking, S.A.]
Re: KeySpan Corporation and KeySpan Corporation Trust __
(________Units)
------
CUSIP No. ______] [ISIN: _____]
- ------------------
Reference is made to the ________ Units issued by KeySpan
Corporation and KeySpan Corporation Trust __ (the "Issuers") pursuant to a Unit
Agreement dated as of _________, 20__ (the "Agreement"), among KeySpan
Corporation, KeySpan Corporation Trust __, _________________, as warrant agent,
______________________, as Property Trustee and The Bank of New York, as Agent.
Capitalized terms used but not defined herein will have the meanings given to
them in the Agreement.
[For purposes of acquiring a beneficial interest in the
Permanent Regulation S Global Unit upon the expiration of the Restricted
Period,] [For purposes of receiving payments under the Restricted Regulation S
Global Note],3 the undersigned holder of a beneficial interest in the Restricted
Regulation S Global Note issued under the Agreement certifies that it is not a
U.S. Person as defined by Regulation S under the United States Securities Act of
1933, as amended.
We undertake to advise you promptly by telex or other
electronic transmission on or prior to the date on which you intend to submit
your corresponding certification relating to the securities held by you if any
applicable statement herein is not correct on such date, and in the absence of
any such notification it may be assumed that this certificate applies as of such
date.
We understand that this certificate is required in connection
with certain securities laws of the United States. In connection therewith, if
administrative or legal proceedings are commenced or threatened in connection
with which this certificate is or would be relevant, we irrevocably authorize
you to produce this certificate to any interested party in such proceeding. This
certificate and the statements contained herein are made for your benefit and
benefit of the Agent Trustee, the Initial Purchaser and the Issuers.
Dated: ____________________, ____
By: ______________________________
as, or as agent for, the holder of a beneficial interest in the securities to
which this certificate relates.
- -------------------
3 Select, as applicable.