As Filed with the Securities and Exchange Commission on January 20, 2000
Registration No. 333-92003
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Amendment No. 1 to
FORM S-3
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
KEYSPAN CORPORATION KEYSPAN GAS EAST CORPORATION
(Exact name of registrant as specified in its charter)
New York New York
(State of incorporation)
11-3431358 11-3434848
(I.R.S. employer identification number)
Steven L. Zelkowitz
175 East Old Country Road, Hicksville, New York 11801
One MetroTech Center, Brooklyn, New York 11201
(516) 755-6650 (Hicksville)
(718) 403-1000 (Brooklyn)
(Address, including zip code, and telephone number, including area code,
of registrant's principal executive offices and agent for service of both
registrants)
Copies to:
Raymond W. Wagner
Simpson Thacher & Bartlett
425 Lexington Avenue
New York, New York 10017
Matthew G. Maloney
Dickstein Shapiro Morin & Oshinsky
LLP
2101 L Street, N.W.
Washington, D.C. 20037
Approximate date of commencement of proposed sale to public: From
time to time after the effective date of this Registration Statement as
determined by market conditions.
If the only securities being registered on this Form are being
offered pursuant to dividend or interest reinvestment plans, please check
the following box. /__/
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection
with dividend or interest reinvestment plans, check the following
box. /X/
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, please check
the following box and list the Securities Act registration statement
number of the earlier effective registration statement for the same
offering. /__/
<PAGE>
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. /__/
If delivery of the prospectus is expected to be made pursuant to
Rule 434, please check the following box. /__/
The Registrants hereby amend this Registration Statement on such
date or dates as may be necessary to delay its effective date until the
Registrants shall file a further amendment which specifically states that
this Registration Statement shall thereafter become effective in
accordance with Section 8(a) of the Securities Act or until this
Registration Statement shall become effective on such date as the
Securities and Exchange Commission, acting pursuant to said Section 8(a),
may determine.
<TABLE>
CALCULATION OF REGISTRATION FEE Proposed Maximum Proposed Maximum
<CAPTION>
Title Of Each Class of Amount To Be Aggregate Price Aggregate Amount of
Securities To Be Registered Registered Per Unit<F2> Offering Price Registration Fee
<S> <C> <C> <C> <C>
Debt Securities . . . . . . . . . . . . . $600,000,000<F1> 100% $600,000,000 $166,800
Guarantees of Debt Securities . . . . . . -- <F3> <F3> <F4>
Total . . . . . . . . . . . . . . . . . . $600,000,000<F1> 100% $600,000,000 $166,800<F5>
<FN>
<F1> Or an equivalent amount, based upon the exchange rate on the
applicable trade date, in a foreign currency or currency unit identified
by the Issuer on the issue date.
<F2> Estimated solely for the purpose of calculating the registration
fee.
<F3> No separate consideration will be received for the guarantees and
the Guarantor will not be paid any portion of the proceeds in
respect of the guarantees.
<F4> Pursuant to Rule 457(n) under the Securities Act of 1933, no
registration fee is required with respect to the guarantees.
<F5> Previously paid.
</TABLE>
2
<PAGE>
PROSPECTUS
KEYSPAN GAS EAST CORPORATION
$600,000,000
DEBT SECURITIES
Guaranteed Fully and Unconditionally by
KEYSPAN CORPORATION
The Issuer: issue and offer up to
$600,000,000 of its debt
- - KeySpan Gas East Corporation securities.
d/b/a Brooklyn Union of Long
Island sells, distributes - The debt securities may be
and transports natural gas offered as separate series,
to approximately 467,000 in amounts, prices and on
customers in Nassau and terms to be determined at
Suffolk Counties on Long the time of the sale. When
Island and a portion of the Issuer offers debt
Queens County in New York securities, it will provide
City. The Issuer is a you with a prospectus
wholly-owned subsidiary of supplement or a term sheet
KeySpan Corporation, which describing the terms of the
is the guarantor of the debt specific issue of debt
securities. securities including the
offering price of the
The Guarantor: securities.
- - KeySpan Corporation d/b/a - The Issuer may sell the
KeySpan Energy, with its debt securities to agents,
subsidiaries, is the fourth underwriters or dealers, or
largest gas distribution may sell them directly to
company in the United other purchasers.
States, with 1.6 million
customers in New York City - You should read this
and on Long Island. It also prospectus and the
provides power, electric prospectus supplement or
transmission and the term sheet relating to
distribution services and a the specific issue of debt
broad range of related securities carefully before
services in the gas and you invest.
electric power industries.
The Guarantees:
The Debt Securities and the
Offering: - The payment of principal,
premium, if any, and
- - By this prospectus, the interest, if any, on the
Issuer may from time to time debt securities will be
guaranteed fully and
unconditionally by KeySpan
Corporation d/b/a KeySpan
Energy, as Guarantor.
3
<PAGE>
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved these securities or
determined if this prospectus is truthful or complete. Any representation
to the contrary is a criminal offense.
The date of this prospectus is January , 2000.
4
<PAGE>
TABLE OF CONTENTS
Page
ABOUT THIS PROSPECTUS . . . . . . . . . . . . . . . . . . . . . . . . 1
WHERE YOU CAN FIND MORE INFORMATION . . . . . . . . . . . . . . . . . 1
FORWARD-LOOKING STATEMENTS . . . . . . . . . . . . . . . . . . . . . 2
THE ISSUER AND THE GUARANTOR . . . . . . . . . . . . . . . . . . . . 4
USE OF PROCEEDS . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
RATIO OF EARNINGS TO FIXED CHARGES . . . . . . . . . . . . . . . . . 7
DESCRIPTION OF SECURITIES . . . . . . . . . . . . . . . . . . . . . . 8
PLAN OF DISTRIBUTION . . . . . . . . . . . . . . . . . . . . . . . . 24
LEGAL OPINIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
EXPERTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
5
<PAGE>
ABOUT THIS PROSPECTUS
As used in this prospectus and any prospectus supplement or term
sheet, except as the context otherwise requires, "Guarantor" means
KeySpan Corporation doing business as KeySpan Energy, "Issuer" means
KeySpan Gas East Corporation doing business as Brooklyn Union of Long
Island, and references to "we" "us" and "our" mean KeySpan Corporation
doing business as KeySpan Energy, together with its consolidated
subsidiaries, including KeySpan Gas East Corporation doing business as
Brooklyn Union of Long Island.
RISK FACTORS
Each time that the Issuer issues a new series of debt securities,
risk factors, if appropriate, will be included in the prospectus
supplement relating to that new series.
WHERE YOU CAN FIND MORE INFORMATION
The Guarantor files annual, quarterly and special reports, proxy
statements and other information with the SEC. You may read and copy any
of these documents at the SEC's public reference rooms in Washington,
D.C., New York, New York and Chicago, Illinois. Please call the SEC at 1-
800-SEC-0330 for further information on the public reference rooms. The
Guarantor's SEC filings are also available to the public on the SEC's web
site at http://www.sec.gov.
The Issuer and the Guarantor have filed a joint registration
statement on Form S-3 with the SEC covering the debt securities. For
further information on us and the debt securities, you should refer to
the registration statement and its exhibits. This prospectus summarizes
material provisions of the indenture, including the guarantees. Because
the prospectus may not contain all the information that you may find
important, you should review the full text of these documents. We have
included copies of these documents in an exhibit to our registration
statement of which this prospectus is a part.
The SEC allows the Guarantor to "incorporate by reference" the
information the Guarantor files with the SEC, which means that we can
disclose important information to you by referring you to those
documents. The information incorporated by reference is considered to be
part of this prospectus, and later information that the Guarantor files
with the SEC will automatically update and supersede this information.
The Guarantor incorporates by reference the documents listed below and
any future filings made with the SEC under Sections 13(a), 13(c), 14, or
15(d) of the Securities Exchange Act of 1934 until the Issuer sells all
the debt securities.
- Annual Report on Form 10-K of KeySpan Corporation (formerly known
as MarketSpan Corporation) for the transition period from April
1, 1998 to December 31, 1998;
1
<PAGE>
- Quarterly Report on Form 10-Q for the quarterly period ended
March 31, 1999;
- Quarterly Report on Form 10-Q for the quarterly period ended June
30, 1999;
- Quarterly Report on Form 10-Q for the quarterly period ended
September 30, 1999;
- Current Reports on Form 8-K dated February 4, 1999, February 12,
1999, March 31, 1999, May 20, 1999, June 22, 1999, September 16,
1999, November 5, 1999, December 2, 1999 and January 19, 2000.
You may request a copy of these filings, at no cost, over the
Internet at our web site at http://www.keyspanenergy.com or by writing or
telephoning us at the following address:
Investor Relations
KeySpan Corporation
One MetroTech Center
Brooklyn, New York, 11201
(718) 403-3265
You should rely only on the information incorporated by reference
or provided in this prospectus or any supplement or term sheet. We have
not authorized anyone else to provide you with different information. We
are not making an offer of these securities in any state where the offer
is not permitted. You should not assume that the information in this
prospectus or any supplement is accurate as of any date other than the
date on the front of these documents.
FORWARD-LOOKING STATEMENTS
Some of the information included in this prospectus, any prospectus
supplement or term sheet and the documents we have incorporated by
reference contains forward-looking statements within the meaning of the
Private Securities Litigation Reform Act of 1995, as amended. Such
statements relate to future events or our future financial performance.
We use words such as "anticipate", "believe", "expect", "may", "project",
"will" or other similar words to identify forward-looking statements.
Without limiting the foregoing, all statements relating to our
- anticipated capital expenditures,
- future cash flows and borrowings,
- pursuit of potential future acquisition opportunities, and
- sources of funding
2
<PAGE>
are forward-looking statements. These forward-looking statements are
based on numerous assumptions that we believe are reasonable, but they
are open to a wide range of uncertainties and business risks and actual
results may differ materially from those discussed in these statements.
Among the factors that could cause actual results to differ
materially are:
- available sources and costs of fuel;
- federal and state regulatory initiatives that increase
competition, threaten cost and investment recovery and impact
rate structure;
- our ability to successfully reduce our cost structures;
- the successful integration of our subsidiaries;
- the degree to which we develop unregulated business ventures;
- our ability to identify and make complementary acquisitions, as
well as the successful integration of those acquisitions; and
- inflationary trends and interest rates.
When considering these forward-looking statements, you should keep
in mind the cautionary statements in this document, any prospectus
supplement or term sheet and the documents incorporated by reference. We
will not update these statements unless the securities laws require us to
do so.
3
<PAGE>
THE ISSUER AND THE GUARANTOR
The Issuer
The Issuer, KeySpan Gas East Corporation, does business under the
name Brooklyn Union of Long Island. It is a wholly owned subsidiary of
KeySpan Corporation, which does business under the name KeySpan Energy.
The Issuer conducts the gas distribution business formerly carried
on by the Long Island Lighting Company. It sells, distributes and
transports natural gas in a service territory of approximately 1,230
square miles in the Long Island counties of Nassau and Suffolk and the
Rockaway peninsula of Queens County. It owns and operates gas
distribution, transmission and storage systems that consist of
approximately 6,292 miles of distribution pipelines, 333 miles of
transmission pipelines and a gas storage facility. The Issuer serves
approximately 467,000 customers, of which approximately 418,000, or 90%,
are residential.
The Issuer offers gas for sale to residential customers on a "firm"
basis, and to commercial and industrial customers on a "firm" or
"interruptible" basis. The Issuer offers "firm" service to customers
under rate schedules or contracts that anticipate no interruptions. It
offers "interruptible" service to customers under rate schedules or
contracts that anticipate and permit interruption on short notice,
generally in peak-load seasons. Gas is available at any time of the year
on an "interruptible" basis, if the supply is sufficient and the supply
system is adequate.
The Issuer also participates in the interstate markets by releasing
pipeline capacity or bundling pipeline capacity with gas for "off-system"
sales. An "off-system" customer consumes gas at facilities located
outside the Issuer's service territory, by connecting to the Issuer's
facilities or one of its transporter's facilities, at a point of delivery
agreed to by the Issuer and the customer.
The Issuer purchases its natural gas for sale to its customers
under long-term supply contracts and short-term spot contracts. This
gas is transported under both firm and interruptible transportation
contracts. In addition, the Issuer has commitments from third parties for
the provision of gas storage capability and peaking supplies.
The Issuer was incorporated in 1998 when all of the assets used in
the gas distribution business formerly owned by the Long Island Lighting
Company were transferred to it. The principal address of the Issuer is
175 East Old Country Road, Hicksville, New York 11801.
4
<PAGE>
The Guarantor
The Guarantor was formed in connection with a business combination
in May 1998 of KeySpan Energy Corporation, the parent of The Brooklyn
Union Gas Company, and certain businesses of the Long Island Lighting
Company. Our core business is gas distribution, conducted by our two
subsidiaries, Brooklyn Union of New York and the Issuer, which together
distribute gas to approximately 1.6 million customers.
We are also a major, and growing, generator of electricity. We own
and operate five large generating plants and 42 smaller facilities in
Nassau and Suffolk Counties on Long Island and a major facility in Queens
County in New York City. Under contractual arrangements, we provide
power, electric transmission-and-distribution services, billing and
other customer services for approximately one million electric customers
of the Long Island Power Authority. Our other subsidiaries are involved
in gas storage, wholesale and retail gas and electric marketing,
appliance service, and large energy-system ownership, installation and
management. We also invest in, and participate in the development of,
pipelines and other energy projects, domestically and internationally.
In November 1999, the Guarantor and Eastern Enterprises ("Eastern")
announced that they had signed a definitive merger agreement under which
we will acquire all of the common stock of Eastern for $64.00 per share
in cash. The transaction has a total value of approximately $2.5 billion
($1.7 billion in equity and $0.8 billion in assumed debt and preferred
stock). The Guarantor expects to raise $1.7 billion of initial financing
for the transaction in short-term markets which will ultimately be
replaced with long-term financing. The transaction will be accounted for
as a purchase.
Eastern owns and operates Boston Gas Company, Colonial Gas Company,
Essex Gas Company, Midland Enterprises Inc., Transgas Inc. and ServicEdge
Partners, Inc. The following table shows Eastern's revenues, operating
earnings and net earnings for the years 1996 through 1998 and the nine
months ended September 30, 1998 and 1999:
<TABLE>
<CAPTION>
Nine Months Ended
Years Ended December 31, September 30,
1996 1997 1998 1998 1999(1)
($ in thousands)
<S> <C> <C> <C> <C> <C>
Revenues . . . . . $1,057,271 $1,023,740 $935,264 $677,228 $660,327
Operating earnings $ 130,234 $ 115,317 $100,405 $ 62,902 $ 54,813
Net earnings . . . $ 64,501 $ 55,916 $105,981<F2> $$86,348<F2> $ 26,905
<FN>
<F1> Eastern acquired Colonial Gas Company on August 31, 1999 in a
transaction accounted for as a purchase.
<F2> Includes reversal of reserves resulting in an extraordinary gain of
$48.4 million on an after-tax basis.
</TABLE>
5
<PAGE>
At September 30, 1999, Eastern had total assets of $1.9 billion, long-
term debt and preferred stock of $0.5 billion and shareholders' equity of
$0.7 billion.
In July 1999, Eastern announced it had entered into an agreement to
acquire EnergyNorth Inc., owner of New Hampshire's largest natural gas
distributor. EnergyNorth is located across the border from, but
contiguous to, areas served by Eastern's gas distribution subsidiaries.
In connection with our acquisition of Eastern, Eastern has amended its
agreement with EnergyNorth to provide for an all cash acquisition of
EnergyNorth shares at a price per share of $61.13. The restructured
EnergyNorth merger is expected to close contemporaneously with the
KeySpan/Eastern transaction.
The merger of KeySpan Corporation and Eastern is conditioned, among
other things, upon the approval of Eastern's shareholders, the SEC and
the New Hampshire Public Utility Commission. We anticipate that the
transaction can be completed in 6 to 9 months but we are unable to
determine when or if all of the required approvals will be obtained.
The increased size and scope of the combined organization should
enable the combined company to provide enhanced, cost-effective customer
service and to capitalize on the above-average growth opportunities for
natural gas in the Northeast and provide additional resources to our
unregulated businesses. The combined company will serve approximately 2.4
million customers.
6
<PAGE>
USE OF PROCEEDS
The Issuer plans to use the proceeds of the offering for the
satisfaction of outstanding obligations, the construction of utility
plants, for reimbursement of the Issuer's treasury, and for any other
proper corporate purposes, including investment in short-term securities.
RATIO OF EARNINGS TO FIXED CHARGES
The following table shows our consolidated ratio of earnings to
fixed charges for the periods indicated.
Nine Months Nine Months
Years Ended Ended Ended
- --------------------------------------------------------------------------
December December March September
31, 31, March 31, 31, December 31, 30,
1995 1996 1997 1998 1998 1999
- --------------------------------------------------------------------------
2.06 2.15 2.21 2.44 <F1> 3.31
<F1> For the nine months ended December 31, 1998, earnings were
insufficient to cover fixed charges by $365.0 million. During the
nine months ended December 31, 1998, the Guarantor incurred the
following special charges (after tax): charges associated with the
transaction with the Long Island Power Authority of $107.9 million;
charges associated with the combination of Long Island Lighting
Company's gas and electric services businesses with KeySpan Energy
Corporation of $83.5 million; an impairment charge of $54.1 million
to write-down the value of proved gas reserves; and a charge of
$13.0 million to establish a not-for-profit philanthropic
foundation.
7
<PAGE>
DESCRIPTION OF SECURITIES
The debt securities and the guarantees will be issued under an
indenture, dated as of December 1, 1999, among the Issuer, the Guarantor
and The Chase Manhattan Bank, as trustee. The indenture provides for the
issuance from time to time of debt securities in an unlimited dollar
amount and an unlimited number of series. The debt securities will be
guaranteed by the Guarantor under the guarantees described below.
The following description of the terms of the debt securities and
the guarantees summarizes the material terms that will apply to the debt
securities and the guarantees. The description is not complete, and we
refer you to the indenture, a copy of which is an exhibit to the
registration statement of which this prospectus is a part. For your
reference, in several cases below we have noted the section in the
indenture that the paragraph summarizes. Capitalized terms have the
meanings assigned to them in the indenture. The referenced sections of
the indenture and the definitions of capitalized terms are incorporated
by reference in the following summary.
Prospective purchasers of debt securities should be aware that
special U.S. Federal income tax, accounting and other considerations may
be applicable to instruments such as the debt securities. The prospectus
supplement or term sheet relating to an issue of debt securities will
describe these considerations, if they apply.
Description of Debt Securities
Specific terms of each series
Each time that the Issuer issues a new series of debt securities,
the prospectus supplement or term sheet relating to that new series will
specify the particular amount, price and other terms of those debt
securities. These terms may include:
- the title of the debt securities;
- any limit on the total principal amount of the debt securities;
- the date or dates on which the principal of the debt securities
will be payable or their manner of determination;
- the interest rate or rates of the debt securities; the date or
dates from which interest will accrue on the debt securities; and
the interest payment dates and the regular record dates for the
debt securities; or, in each case, their manner of determination;
8
<PAGE>
- the place or places where the principal of and premium and
interest on the debt securities will be paid;
- the period or periods within which, the price or prices at which
and the terms on which any of the debt securities may be
redeemed, in whole or in part at our option, and any remarketing
arrangements;
- the terms on which the Issuer would be required to redeem, repay
or purchase debt securities required by any sinking fund,
mandatory redemption or similar provision; and the period or
periods within which, the price or prices at which and the terms
and conditions on which the debt securities will be so redeemed,
repaid or purchased in whole or in part;
- the denomination in which the debt securities will be issued, if
other than denominations of $1,000 and any whole multiple
thereof;
- the portion of the principal amount of the debt securities that
is payable on the declaration of acceleration of the maturity, if
other than their principal amount; these debt securities could
include OID debt securities or indexed debt securities, which are
each described below;
- whether and under what circumstances the Issuer or the Guarantor
will pay additional amounts under any debt securities held by a
person who is not a U.S. person for tax payments, assessments or
other governmental charges and whether the Issuer or the
Guarantor has the option to redeem the debt securities which are
affected by the additional amounts instead of paying the
additional amounts;
- the form in which the Issuer will issue the debt securities,
whether registered, bearer or both, and any restrictions on the
exchange of one form of debt securities for another and on the
offer, sale and delivery of the debt securities in either form;
- whether the debt securities will be issuable as global
securities;
- whether the amounts of payments of principal of, premium, if any,
and interest, if any, on the debt securities are to be determined
with reference to an index, formula or other method, and if so,
the manner in which such amounts will be determined;
- if the debt securities are issuable in definitive form upon the
satisfaction of certain conditions, the form and terms of such
conditions;
- any trustees, paying agents, transfer agents, registrars,
depositories or similar agents with respect to the debt
securities;
9
<PAGE>
- any additions or deletions to the terms of the debt securities
with respect to the events of default or covenants governing the
debt securities;
- the foreign currency or units of two or more foreign currencies
in which payment of the principal of and premium and interest on
any debt securities will be made, if other than U.S. dollars, and
holders' right, if any, to elect payment in a foreign currency or
foreign currency unit other than that in which the debt
securities are payable;
- whether and to what extent the debt securities are subject to
defeasance on terms different from those described under
"Defeasance of indenture"; and
- any other terms of the debt securities that are not inconsistent
with the indenture.
(section 301)
The Issuer may issue debt securities as original issue discount
("OID") debt securities. OID debt securities bear no interest or bear
interest at below-market rates and are sold at a discount below their
stated principal amount. If the Issuer issues OID debt securities, the
prospectus supplement or term sheet will contain the issue price, the
rate at which interest will accrete, and the date from which such
interest will accrete on the OID debt securities.
The Issuer may also issue indexed debt securities. Payments of
principal of, and premium and interest on, indexed debt securities are
determined with reference to the rate of exchange between the currency or
currency unit in which the debt security is denominated and any other
currency or currency unit specified by the Issuer, to the relationship
between two or more currencies or currency units or by other similar
methods or formulas specified in the prospectus supplement or term sheet.
Ranking
The debt securities will be unsecured and unsubordinated
obligations of the Issuer and will rank equally with all the Issuer's
other unsecured and unsubordinated debt. The guarantees will be unsecured
and unsubordinated obligations of the Guarantor and will rank equally
with all the Guarantor's other unsecured and unsubordinated debt.
Form and denomination
The prospectus supplement or term sheet will describe the form
which the debt securities and the guarantees will have, including
insertions, omissions, substitutions and other variations permitted by
10
<PAGE>
the indenture and any legends required by any laws, rules or regulations.
(section 201)
The Issuer will issue debt securities in denominations of $1,000
and whole multiples thereof, unless the prospectus supplement or term
sheet states otherwise. (section 302)
Payment
The Issuer will pay principal of and premium and interest on its
registered debt securities at the place and time described in the debt
securities. The Issuer will pay installments of interest on any
registered debt security to the person in whose name the registered debt
security is registered at the close of business on the regular record
date for these payments. The Issuer will pay principal and premium on
registered debt securities only against surrender of these debt
securities. (section 1001). If the Issuer issues debt securities in
bearer form, the prospectus supplement or term sheet will describe where
and how payment will be made.
Material covenants
The indenture includes the following material covenants:
Lien on assets
If the Issuer mortgages, pledges or otherwise subjects to any lien
the whole or any part of any property or assets which it now owns or
acquires in the future, then the Issuer will secure the debt securities
to the same extent and in the same proportion as the debt or other
obligation that is secured by that mortgage, pledge or other lien. The
debt securities will remain secured for the same period as the other debt
remains secured. This restriction does not apply, however, to any of the
following:
- purchase-money mortgages or liens;
- liens on any property or asset that existed at the time when the
Issuer acquired that property or asset;
- any deposit or pledge to secure public or statutory obligations;
- any deposit or pledge with any governmental agency required to
qualify the Issuer to conduct its business, or any part of its
business, or to entitle it to maintain self-insurance or to
obtain the benefits of any law relating to workmen's
compensation, unemployment insurance, old age pensions or other
social security;
11
<PAGE>
- any deposit or pledge with any court, board, commission or
governmental agency as security related to the proper conduct of
any proceeding before it;
- any mortgage, pledge or lien on any property or asset of any of
the Issuer's affiliates, even if the affiliate may have acquired
that property or asset from the Issuer;
- liens for taxes, assessments or governmental charges or levies
not yet delinquent or being contested in good faith by the
Issuer, if the Issuer has made appropriate reserves;
- liens of landlords and liens of mechanics and materialmen
incurred in the ordinary course of business for sums not yet due
or being contested in good faith by the Issuer, if the Issuer has
made appropriate reserves;
- leases or subleases which the Issuer has granted to others in the
ordinary course of business;
- easements, rights-of-way, restrictions and other similar
encumbrances which the Issuer has incurred in the ordinary course
of business and which do not interfere with the ordinary conduct
of the Issuer's business;
- liens incurred in connection with the issuance by a state or a
political subdivision of a state of any securities the interest
on which is exempt from federal income taxes under Section 103 of
the Internal Revenue Code or any other laws or regulations in
effect at the time of the issuance; or
- liens for the sole purpose of extending, renewing or replacing
all or a part of the indebtedness secured by any lien referred to
in the foregoing clauses or in this clause.
(section 1007)
Limitation on merger, consolidation and sales of assets
Neither the Issuer nor the Guarantor may consolidate with or merge
into any other entity or transfer or lease substantially all of its
properties and assets to any person unless:
- the successor is organized under the laws of the United States or
a state thereof;
- the successor assumes by supplemental indenture the obligations
of its predecessor (that is, all the Issuer's obligations under
the debt securities and the indenture or all the Guarantor's
obligations under the guarantees and the indenture); and
12
<PAGE>
- after giving effect to the transaction, there is no default under
the indenture.
The surviving transferee or lessee corporation will be the Issuer's
or the Guarantor's successor, and the Issuer will be relieved of all
obligations under the debt securities and the indenture or the Guarantor
will be relieved of all obligations under the guarantees and the
indenture. (sections 801 and 802)
Registration of transfer and exchange
All debt securities issued upon any registration of transfer or
exchange of debt securities will be valid obligations of the Issuer,
evidencing the same debt and entitled to the same rights under the
indenture and the guarantees as the debt securities surrendered in the
registration of transfer or exchange.
Registration of transfer
Holders of registered debt securities may present their securities
for registration of transfer at the office of one or more security
registrars designated and maintained by the Issuer. (section 305)
The Issuer will not be required to register the transfer of or
exchange debt securities under the following conditions:
- The Issuer will not be required to register the transfer of or
exchange any debt securities during a period of 15 days before
any selection of those debt securities to be redeemed.
- The Issuer will not be required to register the transfer of or
exchange any debt securities selected for redemption, in whole or
in part, except the unredeemed portion of any debt securities
being redeemed in part.
- The Issuer will not be required to register the transfer of or
exchange debt securities of any holder who has exercised an
option to require the repurchase of those debt securities prior
to their stated maturity date, except the portion not being
repurchased.
(section 305)
Exchange
At your option, you may exchange your registered debt securities of
any series (except a global security, as set forth below) for an equal
principal amount of other registered debt securities of the same series
having authorized denominations upon surrender to the designated agency
of the Issuer.
13
<PAGE>
The Issuer may at any time exchange debt securities issued as one
or more global securities for an equal principal amount of debt
securities of the same series in definitive registered form. In this case
the Issuer will deliver to the holders new debt securities in definitive
registered form in the same aggregate principal amount as the global
securities being exchanged.
The depositary of the global securities may also decide at any time
to surrender one or more global securities in exchange for debt
securities of the same series in definitive registered form, in which
case the Issuer will deliver the new debt securities in definitive form
to the persons specified by the depositary, in an aggregate principal
amount equal to, and in exchange for, each person's beneficial interest
in the global securities. (section 305)
Notwithstanding the above, the Issuer will not be required to
exchange any debt securities if, as a result of the exchange, the Issuer
would suffer adverse consequences under any United States law or
regulation. (section 305)
Global securities
If the Issuer decides to issue debt securities in the form of one
or more global securities, then the Issuer will register the global
securities in the name of the depositary for the global securities or the
nominee of the depositary and the global securities will be delivered by
the trustee to the depositary for credit to the accounts of the holders
of beneficial interests in the debt securities.
The prospectus supplement or term sheet will describe the specific
terms of the depositary arrangement for debt securities of a series that
are issued in global form. None of the Issuer, the trustee, any paying
agent or the security registrar will have any responsibility or liability
for any aspect of the records relating to or payments made on account of
beneficial ownership interests in a global debt security or for
maintaining, supervising or reviewing any records relating to these
beneficial ownership interests.
Defeasance of indenture
The Issuer and the Guarantor can terminate all of their obligations
under the Indenture with respect to the debt securities and the
guarantees, other than the obligation to pay interest on and the
principal of the debt securities and certain other obligations, at any
time by:
- depositing money or U.S. government obligations with the trustee
in an amount sufficient to pay the principal of and interest on
the debt securities to their maturity; and
14
<PAGE>
- complying with certain other conditions, including delivery to
the trustee of an opinion of counsel to the effect that holders
of debt securities will not recognize income, gain or loss for
federal income tax purposes as a result of the Issuer's and the
Guarantor's defeasance.
In addition, the Issuer and the Guarantor can terminate all of
their obligations under the Indenture with respect to the debt securities
and the guarantees, including the obligation to pay interest on and the
principal of the debt securities, at any time by:
- depositing money or U.S. government obligations with the trustee
in an amount sufficient to pay the principal of and interest on
the debt securities to their maturity, and
- complying with certain other conditions, including delivery to
the trustee of an opinion of counsel stating that there has been
a ruling by the Internal Revenue Service, or a change in the
federal tax law since the date of the indenture, to the effect
that holders of debt securities will not recognize income, gain
or loss for federal income tax purposes as a result of the
Issuer's and the Guarantor's defeasance.
(sections 402-404)
Payments of unclaimed moneys
Moneys deposited with the trustee or any paying agent for the
payment of principal of or premium and interest on any debt security that
remain unclaimed for two years will be repaid to the Issuer at the
Issuer's request, unless the law requires otherwise. If this happens and
you want to claim these moneys, you must look to the Issuer and not to
the trustee or paying agent. (section 409)
Events of default, notices, and waiver
Events of default
An "event of default" regarding any series of debt securities is
any one of the following events:
- default for 30 days in the payment of any interest installment
when due and payable;
- default in the payment of principal or premium when due at its
stated maturity, by declaration, when called for redemption or
otherwise;
- default in the performance of any covenant in the debt securities
or in the indenture by the Issuer or the Guarantor for 60 days
15
<PAGE>
after notice to the Issuer and the Guarantor by the trustee or by
holders of 25% in principal amount of the outstanding debt
securities of that series;
- acceleration of debt securities of another series or any other
indebtedness for borrowed money of the Issuer or the Guarantor,
in an aggregate principal amount exceeding $10.0 million under
the terms of the instrument or instruments under which the
indebtedness is issued or secured, if the acceleration is not
annulled within 30 days after written notice as provided in the
indenture;
- certain events of bankruptcy, insolvency and reorganization of
the Issuer or the Guarantor; and
- any other event of default of that series that is specified in
the prospectus supplement or term sheet.
(section 501)
A default regarding a single series of debt securities will not
necessarily constitute a default regarding any other series.
If an event of default for any series of debt securities occurs and
is continuing (other than an event of default involving the bankruptcy,
insolvency or reorganization of the Issuer or Guarantor), either the
trustee or the holders of 25% in principal amount of the outstanding debt
securities of that series may declare the principal (or, in the case of
(a) OID debt securities, a lesser amount as provided in those OID debt
securities or (b) indexed debt securities, an amount determined by the
terms of those indexed debt securities), of all the debt securities of
that series, together with any accrued interest on the debt securities,
to be immediately due and payable by notice in writing to the Issuer and
the Guarantor. If it is the holders of debt securities who give notice of
that declaration of acceleration to the Issuer and the Guarantor, then
they must also give notice to the trustee. (section 502)
If an event of default occurs which involves the bankruptcy,
insolvency or reorganization of the Issuer or the Guarantor, as set forth
above, then all unpaid principal amounts (or, if the debt securities are
(a) OID debt securities, then the portion of the principal amount that is
specified in those OID debt securities or (b) indexed debt securities, an
amount determined by the terms of those indexed debt securities) and
accrued interest on all debt securities of each series will immediately
become due and payable, without any action by the trustee or any holder
of debt securities. (section 502)
In order for holders of debt securities to initiate proceedings for
a remedy under the indenture, 25% in principal amount must first give
notice to the Issuer and the Guarantor as provided above, must request
that the trustee initiate a proceeding in its own name and must offer the
trustee a reasonable indemnity against costs and liabilities. If the
trustee still refuses for 60 days to initiate the proceeding, and no
16
<PAGE>
inconsistent direction has been given to the trustee by holders of a
majority of the debt securities of the same series, the holders may
initiate a proceeding as long as they do not adversely affect the rights
of any other holders of that series. (section 507)
The holders of a majority in principal amount of the outstanding
debt securities of a series may rescind a declaration of acceleration if
all events of default, besides the failure to pay principal or interest
due solely because of the declaration of acceleration, have been cured or
waived. (section 502)
If the Issuer or the Guarantor defaults on the payment of any
installment of interest and fails to cure the default within 30 days, or
if the Issuer or the Guarantor defaults on the payment of principal when
it becomes due, then the trustee may require the Issuer or the Guarantor
to pay all amounts due to the trustee, with interest on the overdue
principal or interest payments, in addition to the expenses of
collection. (section 503)
A judgment for money damages by courts in the United States,
including a money judgment based on an obligation expressed in a foreign
currency, will ordinarily be rendered only in U.S. dollars. New York
statutory law provides that a court shall render a judgment or decree in
the foreign currency of the underlying obligation and that the judgment
or decree shall be converted into U.S. dollars at the exchange rate
prevailing on the date of entry of the judgment or decree. The indenture
requires the Issuer to pay additional amounts necessary to protect
holders if a court requires a conversion to be made on a date other than
a judgment date.
Notices
The trustee is required to give notice to holders of a series of
debt securities of a default, which remains uncured or has not been
waived, that is known to the trustee within 90 days after the default has
occurred. In the event of a default in the performance of any covenant in
the debt securities or the indenture which results under the indenture in
notice to the Issuer and the Guarantor by the trustee after 90 days, the
trustee shall not give notice to the holders of debt securities until 60
days after the giving of notice to the Issuer and the Guarantor. The
trustee may not withhold the notice in the case of a default in the
payment of principal of and premium or interest on any of the debt
securities. (section 602)
Waiver
The holders of a majority in principal amount of the outstanding
debt securities of a series may waive any past default or event of
default except a default in the payment of principal of or premium or
interest on the debt securities of that series or a default relating to a
17
<PAGE>
provision that cannot be amended without the consent of each affected
holder. (section 513)
Reports
The Issuer and the Guarantor are each required to file every year
with the trustee an officer's certificate confirming that it is complying
with all conditions and covenants in the indenture. (section 1005)
The Issuer and the Guarantor must each file with the trustee copies
of the annual reports and of the information and other documents which
the Issuer and the Guarantor may be required to file with the SEC under
Section 13 or Section 15(d) of the Securities Exchange Act of 1934, as
amended. These documents must be filed with the trustee within 15 days
after they are required to be filed with the SEC. If either the Issuer or
the Guarantor is not required to file the information, documents or
reports under either of these Sections, then the Issuer or the Guarantor
must file with the trustee and the SEC, in accordance with the rules and
regulations of the SEC, the supplementary and periodic information,
documents and reports which may be required by Section 13 of the Exchange
Act, in respect of a debt security listed and registered on a national
securities exchange, as may be required by the rules and regulations of
the SEC.
Within 30 days of filing the information, documents or reports
referred to above with the trustee, the Issuer and the Guarantor must
mail to the holders of the debt securities any summaries of the
information, documents or reports which are required to be sent to the
holders by the rules and regulations of the SEC. (section 704)
Rights and duties of the trustee
The holders of a majority in principal amount of outstanding debt
securities of any series may direct the time, method and place of
conducting any proceeding for any remedy available to the trustee or
exercising any trust or other power conferred on the trustee. The trustee
may decline to follow that direction if it would involve the trustee in
personal liability or would be illegal. (section 512) During a default,
the trustee is required to exercise the standard of care and skill that a
prudent man would exercise under the circumstances in the conduct of his
own affairs. (section 601) The trustee is not obligated to exercise any
of its rights or powers under the indenture at the request or direction
of any of the holders of debt securities unless those holders have
offered to the trustee reasonable security or indemnity. (section 603)
The trustee is entitled, in the absence of bad faith on its part,
to rely on an officer's certificate of the Issuer or the Guarantor before
taking action under the indenture. (section 603)
18
<PAGE>
Supplemental indentures
Supplemental indentures not requiring consent of holders
Without the consent of any holders of debt securities, the Issuer,
the Guarantor and the trustee may supplement the indenture, among other
things, to:
- pledge property to the trustee as security for the debt
securities;
- reflect that another entity has succeeded the Issuer or the
Guarantor and assumed the covenants and obligations of the Issuer
under the debt securities and the indenture or of the Guarantor
under the guarantees and the indenture;
- cure any ambiguity or inconsistency in the indenture or in the
debt securities or the guarantees or make any other provisions
the Issuer and the Guarantor consider necessary or desirable, as
long as the interests of the holders of the debt securities are
not adversely affected in any material respect;
- issue and establish the form and terms of any series of debt
securities or the guarantees as provided in the indenture;
- add to the covenants of the Issuer or the Guarantor further
covenants for the benefit of the holders of debt securities (and
if the covenants are for the benefit of less than all series of
debt securities, stating which series are entitled to benefit);
- add any additional event of default (and if the new event of
default applies to fewer than all series of debt securities,
stating to which series it applies);
- change the trustee or provide for an additional trustee;
- provide additional provisions for bearer debt securities so long
as the action does not adversely affect the interests of holders
of any debt securities in any material respect; or
- modify the indenture in order to continue its qualification under
the Trust Indenture Act of 1939 or as may be necessary or
desirable in accordance with amendments to that Act.
(section 901)
Supplemental indentures requiring consent of holders
With the consent of the holders of at least a majority in principal
amount of the series of the debt securities that would be affected by a
19
<PAGE>
modification of the indenture, the indenture permits the Issuer, the
Guarantor and the trustee to supplement the indenture or modify in any
way the terms of the indenture or the rights of the holders of the debt
securities. However, without the consent of each holder of all of the
debt securities affected by that modification, the Issuer, the Guarantor
and trustee may not:
- reduce the principal of or premium on or change the stated final
maturity of any debt security;
- reduce the rate of or change the time for payment of interest on
any debt security (or, in the case of OID debt securities, reduce
the rate of accretion of the OID);
- change any obligation of the Issuer or the Guarantor to pay
additional amounts under the indenture;
- reduce or alter the method of computation of any amount payable
upon redemption, repayment or purchase of any debt security by
the Issuer or the Guarantor (or the time when the redemption,
repayment or purchase may be made);
- make the principal or interest on any debt security payable in a
currency other than that stated in the debt security or change
the place of payment;
- reduce the amount of principal due on an OID debt security upon
acceleration of maturity or provable in bankruptcy or reduce the
amount payable under the terms of an indexed debt security upon
acceleration of maturity or provable in bankruptcy;
- impair any right of repayment or purchase at the option of any
holder of debt securities;
- modify the right of any holder of debt securities to receive or
sue for payment of the principal or interest on a debt security
that would be due and payable at the maturity thereof or upon
redemption;
- modify the Guarantor's obligation under the guarantees to pay all
amounts due under the debt securities in any way adverse to the
interest of any holders of debt securities; or
- reduce the principal amount of the outstanding debt securities of
any series required to supplement the indenture or to waive any
of its provisions.
(section 902)
A supplemental indenture which modifies or eliminates a provision
intended to benefit the holders of one series of debt securities will not
affect the rights under the indenture of holders of other series of debt
securities.
20
<PAGE>
Redemption
The specific terms of any redemption of a series of debt securities
will be contained in the prospectus supplement or term sheet for that
series. Generally, the Issuer must send notice of redemption to the
holders at least 30 days but not more than 60 days prior to the
redemption date. The notice will specify:
- the principal amount being redeemed;
- the redemption date;
- the redemption price;
- the place or places of payment;
- the CUSIP number of the debt securities being redeemed;
- whether the redemption is pursuant to a sinking fund;
- that on the redemption date, interest (or, in the case of OID
debt securities, original issue discount) will cease to accrue;
and
- if bearer debt securities are being redeemed, that those bearer
debt securities must be accompanied by all coupons maturing after
the redemption date or the amount of the missing coupons will be
deducted from the redemption price, or indemnity must be
furnished, and whether those bearer debt securities may be
exchanged for registered debt securities not being redeemed.
(section 1104)
On or before any redemption date, the Issuer or the Guarantor will
deposit an amount of money with the trustee or with a paying agent
sufficient to pay the redemption price. (section 1103)
If less than all the debt securities are being redeemed, the
trustee shall select the debt securities to be redeemed using a method it
considers fair. (section 1103) After the redemption date, holders of debt
securities which were redeemed will have no rights with respect to the
debt securities except the right to receive the redemption price and any
unpaid interest to the redemption date. (section 1106)
Description of the Guarantees
The Guarantor has unconditionally guaranteed to each holder of debt
securities and to the trustee and its successors the due and punctual
payment of the principal of and premium, if any, and interest, if any, on
the debt securities. The guarantees apply whether the payment is due at
21
<PAGE>
the maturity date of the debt securities, on an interest payment date,
or as a result of acceleration, an offer to purchase or otherwise. The
guarantees include payment of interest on the overdue principal of and
interest, if any, on the debt securities (if lawful) and all other
obligations of the Issuer under the indenture.
The guarantees will remain valid even if the indenture is found to
be invalid. The Guarantor is obligated under the guarantees to pay any
guaranteed amount immediately after the Issuer's failure to do so.
The Guarantor is a holding company with no independent business
operations or source of income of its own. It conducts substantially all
of its operations through its subsidiaries and, as a result, the
Guarantor depends on the earnings and cash flow of, and dividends or
distributions from, its subsidiaries to provide the funds necessary to
meet its debt and contractual obligations. Furthermore, a substantial
portion of the Guarantor's consolidated assets, earnings and cash flow is
derived from the operation of its regulated utility subsidiaries, whose
legal authority to pay dividends or make other distributions to the
Guarantor is subject to regulation by the State of New York Public
Service Commission. In addition, upon consummation of the merger with
Eastern Enterprises, the Guarantor expects to register as a holding
company under the Public Utility Holding Company Act of 1935, as amended.
As a result, the corporate and financial activities of the Guarantor and
each of its subsidiaries (including their ability to pay dividends to the
Guarantor) will be subject to regulation by the SEC.
The Guarantor's holding company status also means that the right of
the Guarantor to participate in any distribution of the assets of any of
its subsidiaries upon liquidation, reorganization or otherwise is subject
to the prior claims of the creditors of each of the subsidiaries (except
to the extent that the claims of the Guarantor itself as a creditor of a
subsidiary may be recognized). Since this is true for the Guarantor, it
is also true for the creditors of the Guarantor (including the holders of
the debt securities). The right of the Guarantor's creditors (including
the holders of the debt securities) to participate in the distribution
of the stock owned by the Guarantor in its regulated subsidiaries would
also be subject to approval by the State of New York Public Service
Commission and the Federal Energy Regulatory Commission.
Concerning the Trustee
We have customary banking relationships with the trustee, The Chase
Manhattan Bank. Among other services, The Chase Manhattan Bank provides
us with cash management and credit services, including payroll account,
lockbox, foreign exchange and investment custody account services. The
Chase Manhattan Bank also serves or has served as administrative agent
and trustee with respect to several other loans and issuances of debt of
the Guarantor or its subsidiaries and is a member of a syndicate of banks
22
<PAGE>
which is party to a $700 million line of credit facility with the
Guarantor. In addition, Chase Securities Inc., an affiliate of The Chase
Manhattan Bank, acts as a placement agent for a commercial paper program
which the Guarantor initiated in November 1999.
Governing Law
The laws of the State of New York govern the indenture and will
govern the debt securities and the guarantees. (section 112)
PLAN OF DISTRIBUTION
The Issuer may sell the debt securities in any of three ways:
- through underwriters or dealers;
- through agents; or
- directly to purchasers.
The prospectus supplement or term sheet for each series of debt
securities will describe that offering, including:
- the name or names of any underwriters, dealers or agents;
- the purchase price and the proceeds to the Issuer from that sale;
- any underwriting discounts and other items constituting
underwriters' compensation;
- any initial public offering price and any discounts or
concessions allowed or reallowed or paid to dealers; and
- any securities exchanges on which the debt securities of that
series may be listed.
Underwriters
If underwriters are used in the sale, we will execute an
underwriting agreement with those underwriters. Unless otherwise set
forth in the prospectus supplement or term sheet, the obligations of the
underwriters to purchase debt securities will be subject to certain
conditions. The underwriters will be obligated to purchase all the debt
securities of a series if any are purchased.
The debt securities will be acquired by the underwriters for their
own account and may be resold by them from time to time in one or more
transactions, including negotiated transactions, at a fixed public
offering price or at varying prices determined at the time of sale.
23
<PAGE>
Underwriters may be deemed to have received compensation from us in the
form of underwriting discounts or commissions and may also receive
commissions from the purchasers of debt securities for whom they may act
as agent. Underwriters may also sell debt securities to or through
dealers. These dealers may receive compensation in the form of discounts,
concessions or commissions from the underwriters and/or commissions from
the purchasers for whom they may act as agent. Any initial public
offering price and any discounts or concessions allowed or reallowed or
paid to dealers may be changed from time to time.
The Issuer may authorize underwriters to solicit offers by certain
types of institutions to purchase debt securities from us at the public
offering price stated in the prospectus supplement or term sheet required
by delayed delivery contracts providing for payment and delivery on a
specified date in the future. If the Issuer sells debt securities under
these delayed delivery contracts, the prospectus supplement or term sheet
will state that as well as the conditions to which these delayed delivery
contracts will be subject and the commissions payable for that
solicitation.
Agents
The Issuer may also sell debt securities through agents designated
by us from time to time. We will name any agents involved in the offer or
sale of the debt securities and will list commissions payable by the
Issuer to these agents in the prospectus supplement or term sheet. These
agents will be acting on a best efforts basis to solicit purchases for
the period of their appointment, unless we state otherwise in the
prospectus supplement or term sheet.
Direct sales
The Issuer may sell debt securities directly to purchasers. In this
case, the Issuer will not engage underwriters or agents in the offer and
sale of debt securities.
Remarketing transactions
The Issuer may also sell debt securities that we have purchased,
redeemed or repaid through one or more remarketing firms acting as
principals for their own accounts or as our agents. The applicable
prospectus supplement or term sheet will identify any remarketing firms
and describe the terms of our agreement with them and their compensation.
Remarketing firms may be deemed to be underwriters of the debt securities
under the Securities Act of 1933, as amended.
24
<PAGE>
Indemnification
We may indemnify underwriters, dealers or agents who participate in
the distribution of debt securities against certain liabilities,
including liabilities under the Securities Act, and agree to contribute
to payments which these underwriters, dealers or agents may be required
to make.
No assurance of liquidity
Each series of debt securities will be a new issue of securities
with no established trading market. Any underwriters that purchase debt
securities from the Issuer may make a market in these debt securities.
The underwriters will not be obligated, however, to make a market in the
debt securities and may discontinue market-making at any time without
notice to holders of debt securities. We cannot assure you that there
will be liquidity in the trading market for any debt securities of any
series.
LEGAL OPINIONS
The validity of the debt securities offered by the Issuer and the
guarantees offered by the Guarantor in this prospectus will be passed
upon for the Issuer and the Guarantor by Steven L. Zelkowitz, Senior Vice
President and Deputy General Counsel of the Guarantor. Mr. Zelkowitz has
been granted options to purchase up to 146,000 shares of common stock of
the Guarantor. Certain other legal matters will be passed upon for the
Issuer and the Guarantor by Dickstein Shapiro Morin & Oshinsky LLP,
Washington, D.C., or other counsel identified in the prospectus
supplement or term sheet. Frederick M. Lowther, a partner of Dickstein
Shapiro Morin & Oshinsky LLP, serves as the General Counsel of the
Guarantor and has been granted options to purchase up to 45,000 shares of
the Guarantor's common stock. In addition, other Dickstein Shapiro Morin
& Oshinsky LLP attorneys may be deemed to be beneficial owners of the
Guarantor's common stock having a fair market value of approximately
$50,000. Certain legal matters will be passed upon for any agents or
underwriters by Simpson Thacher & Bartlett, New York, New York, or other
counsel identified in the prospectus supplement or term sheet. Simpson
Thacher & Bartlett also acts as counsel for us from time to time.
EXPERTS
Arthur Andersen LLP, independent accountants, audited certain
financial statements for the nine months ended December 31, 1998 and
related schedules incorporated by reference in this prospectus and
elsewhere in the registration statement. These documents are incorporated
by reference herein in reliance upon the authority of Arthur Andersen
LLP, as experts in accounting and auditing in giving the report.
25
<PAGE>
Ernst & Young LLP, independent auditors, have audited the financial
statements of Long Island Lighting Company as of March 31, 1998 and for
the twelve months ended March 31, 1998, the three months ended March 31,
1997 and the twelve months ended December 31, 1996 and related schedule
included in our Annual Report on Form 10-K, as amended, for the
Transition Period from April 1, 1998 to December 31, 1998, as set forth
in their Report, which is incorporated by reference, in this prospectus
and elsewhere in the registration statement. These financial statements
and schedule are incorporated by reference herein in reliance upon Ernst
& Young LLP's report, given upon their authority, as experts in
accounting and auditing.
26
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The expenses in connection with the issuance and distribution of
the debt securities and the guarantees being registered, other than the
underwriting discounts and commissions, are as follows:
Securities and Exchange Commission
Registration Fee $166,800
Legal Fees and Expenses $200,000
Accountants Fees and Expenses $120,000
Trustee Fees and Expenses $ 15,000
Rating Agency Fees $250,000
Printing and Delivery Expenses $ 20,000
Miscellaneous Expenses $ 3,200
Total<F1> $775,000
[FN]
<F1> Estimated
Item 15. Indemnification of Directors and Officers.
The New York Business Corporation Law ("BCL"), Article 7, Sections
721-726 provide for the indemnification and advancement of expenses to
officers and directors. Section 721 provides that indemnification and
advancement pursuant to the BCL are not exclusive of any other rights an
officer or director may be entitled to, provided that no indemnification
may be made to or on behalf of any director or officer if a judgment or
other final adjudication adverse to the director or officer establishes
that his acts were committed in bad faith or were the result of active
and deliberate dishonesty and were material to the cause of action so
adjudicated, or that the director personally gained a financial profit or
other advantage to which he was not legally entitled.
Section 722 of the BCL provides that a corporation may indemnify an
officer or director, in the case of third party actions, against
judgments, fines, amounts paid in settlement and reasonable expenses and,
in the case of derivative actions, against amounts paid in settlement and
reasonable expenses, provided that the director or officer acted in good
faith, for a purpose which he reasonably believed to be in the best
interests of the corporation and, in the case of criminal actions, had no
reasonable cause to believe his conduct was unlawful. In addition,
statutory indemnification may not be provided in derivative actions (i)
which are settled or otherwise disposed of or (ii) in which the director
or officer is adjudged liable to the corporation, unless and only to the
extent a court determines that the person is fairly and reasonably
entitled to indemnity.
Section 723 of the BCL provides that statutory indemnification is
mandatory where the director or officer has been successful, on the
II-1
<PAGE>
merits or otherwise, in the defense of a civil or criminal action or
proceeding. Section 723 also provides that expenses of defending a civil
or criminal action or proceeding may be advanced by the corporation upon
receipt of an undertaking to repay them if and to the extent the
recipient is ultimately found not to be entitled to indemnification.
Section 725 provides for repayment of such expenses when the recipient is
ultimately found not to be entitled to indemnification. Section 726
provides that a corporation may obtain indemnification insurance
indemnifying itself and its directors and officers. The Issuer and the
Guarantor have in effect insurance policies providing both directors and
officers liability coverage and corporate reimbursement coverage.
Section 402(b) of the BCL provides that a corporation may include
in its certificate of incorporation a provision limiting or eliminating,
with certain exceptions, the personal liability of directors to a
corporation or its shareholders for damages for any breach of duty in
such capacity. The certificate of incorporation of both the Issuer and
the Guarantor contain provisions eliminating the personal liability of
Directors to the extent permitted by New York law.
The Issuer's and the Guarantor's certificates of incorporation
provide generally that they shall, except to the extent expressly
prohibited by the BCL, indemnify each of their officers and directors
made or threatened to be made a party to any action, suit or proceeding,
or appeal thereof, whether civil or criminal by reason of the fact that
such person is or was an officer or director against all expense,
liability and loss (including, but not limited to all attorneys' fees,
judgments, fines, pension plan taxes or penalties and amounts paid or to
be paid in settlement) reasonably incurred or suffered by such person in
connection therewith. The certificates of incorporation further provide
for advancement and reimbursement of such expenses incurred by an officer
or director in defending any action or proceeding in advance of the final
disposition thereof upon receipt of an undertaking by such person to
repay such amount if, and to the extent that, such person is ultimately
found not to be entitled to indemnification.
Item 16. List of Exhibits.
See Exhibit Index
Item 17. Undertakings.
(a) The undersigned registrants hereby undertake:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in
II-2
<PAGE>
the aggregate, represent a fundamental change in the information
set forth in the registration statement. Notwithstanding the
foregoing, any increase or decrease in volume of securities offered
(if the total dollar value of securities offered would not exceed
that which was registered) and any deviation from the low or high
end of the estimated maximum offering range may be reflected in the
form of prospectus filed with the Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume and price
represent no more than a 20% change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee"
table in the effective registration statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the Registration Statement is on Form S-3, Form S-8, or
Form F-3 and the information required to be included in a post-
effective amendment by those paragraphs is contained in periodic
reports filed with or furnished to the Securities and Exchange
Commission by the Guarantor pursuant to Section 13 or Section 15(d)
of the Securities Exchange Act of 1934 that are incorporated by
reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(b) The undersigned registrants hereby undertake that, for purposes of
determining any liability under the Securities Act of 1933, each filing
of the Guarantor's annual report pursuant to Section 13(a) or Section
15(d) of the Securities Exchange Act of 1934 (and, where applicable, each
filing of an employee benefit plan's annual report pursuant to Section
15(d) of the Securities Exchange Act of 1934) that is incorporated by
reference in the registration statement shall be deemed to be a new
registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of such registrants pursuant to the provisions
referred to in Item 15 of this registration statement, or otherwise, such
registrants have been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as
II-3
<PAGE>
expressed in such Act and is, therefore, unenforceable. In the event that
a claim for indemnification against such liabilities (other than the
payment by such registrants of expenses incurred or paid by a director,
officer or controlling person of such registrants in the successful
defense of any action, suit or proceeding) is asserted by such director,
officer or controlling person in connection with the securities being
registered, such registrants will, unless in the opinion of their counsel
the matter has been settled by controlling precedent, submit to a court
of appropriate jurisdiction the question whether such indemnification by
it is against public policy as expressed in the Securities Act of 1933
and will be governed by the final adjudication of such issue.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, KeySpan Gas
East Corporation, one of the registrants, certifies that it has
reasonable grounds to believe that it meets all of the requirements for
filing on Form S-3 and has duly caused this registration statement
amendment to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Brooklyn, State of New York, on the 19th day
of January , 2000.
KEYSPAN GAS EAST CORPORATION
Issuer of Securities
(Registrant)
By: /s/ Ann C. Jordan
Anne C. Jordan
Vice President and Chief Financial Officer
(Principal Financial Officer)
Pursuant to the requirements of the Securities Act of 1933, this
registration statement amendment has been signed below by the following
persons in the capacities and on the dates indicated.
Signatures and Titles Date
* January 19, 2000
- ------------------------
Robert J. Fani
President, Chief Executive Officer and Director
(Principal Executive Officer)
/s/ Ann C. Jordan January 19, 2000
- ------------------------
Anne C. Jordan
Vice President and Chief Financial Officer
(Principal Financial Officer)
/s/ Paul R. Nick January 19, 2000
- ------------------------
Paul R. Nick
Controller and Chief Accounting Officer
(Principal Accounting Officer)
II-5
<PAGE>
*
- ------------------------ January 19, 2000
Robert J. Fani
Director
*
- ------------------------ January 19, 2000
George B. Jongeling
Director
*By: /s/ Paul R. Nick January 19, 2000
Paul R. Nick, as Attorney-In-Fact
Controller and Chief Accounting Officer
___________________
* Such signature has been affixed pursuant to a power of attorney filed
as an exhibit hereto.
II-6
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, KeySpan
Corporation, one of the registrants, certifies that it has reasonable
grounds to believe that it meets all of the requirements for filing on
Form S-3 and has duly caused this registration statement amendment to be
signed on its behalf by the undersigned, thereunto duly authorized, in
the City of Brooklyn, State of New York, on the 19th day of January,
2000.
KEYSPAN CORPORATION
Guarantor of Securities
(Registrant)
By:/s/ Gerald Luterman
- ------------------------
Gerald Luterman
Chief Financial Officer and Senior Vice-President
(Principal Financial Officer)
Pursuant to the requirements of the Securities Act of 1933, this
registration statement amendment has been signed below by the following
persons in the capacities and on the dates indicated.
Signatures and Titles: Date
* January 19, 2000
- ------------------------
Robert B. Catell
Chief Executive Officer and Director
(Principal Executive Officer)
/s/ Gerald Luterman January 19, 2000
- ------------------------
Gerald Luterman
Chief Financial Officer and Senior Vice-President
(Principal Financial Officer)
II-7
<PAGE>
/s/ Ronald Jendras January 19, 2000
- ------------------------
Ronald Jendras
Vice President, Controller and Chief Accounting
Officer
(Principal Accounting Officer)
* January 19, 2000
- ------------------------
Lilyan H. Affinito
Director
* January 19, 2000
- ------------------------
George Bugliarello
Director
* January 19, 2000
- ------------------------
Howard R. Curd
Director
* January 19, 2000
- ------------------------
Richard N. Daniel
Director
* January 19, 2000
- ------------------------
Donald H. Elliott
Director
* January 19, 2000
- ------------------------
Alan H. Fishman
Director
II-8
<PAGE>
* January 19, 2000
- ------------------------
James R. Jones
Director
* January 19, 2000
- ------------------------
Stephen W. McKessy
Director
* January 19, 2000
- ------------------------
Edward D. Miller
Director
* January 19, 2000
- ------------------------
Basil A. Paterson
Director
* January 19, 2000
- ------------------------
James Q. Riordan
Director
* January 19, 2000
- ------------------------
Frederic V. Salerno
Director
* January 19, 2000
- ------------------------
Vincent Tese
Director
II-9
<PAGE>
/s/ Ronald Jendras January 19, 2000
- ------------------------
Ronald Jendras, as Attorney-in-Fact
Vice President, Controller and Chief Accounting
Officer
_______________
* Such signature has been affixed pursuant to a power of attorney filed
as an exhibit hereto.
II-10
<PAGE>
Exhibit Number Description of Exhibits
1<F1> Form of Distribution Agreement
2<F2> Agreement and Plan of Merger, dated as of November 4, 1999,
by and among KeySpan Corporation, Eastern Enterprises and
ACJ Acquisition LLC (filed as Exhibit 2 to KeySpan's Current
Report on Form 8-K dated November 5, 1999 and incorporated
herein by reference)
4-a<F1> Form of Indenture, dated as of December 1, 1999, between the
registrants and The Chase Manhattan Bank, as trustee. The
form or forms of debt security with respect to each
particular series of debt securities registered hereunder
(other than Medium-Term Notes) will be filed as an exhibit
to a Current Report on Form 8-K and shall be deemed to be
incorporated herein by reference.
4-b<F1> Form of Medium-Term Notes
5<F1> Opinion of Steven L. Zelkowitz as to the legality of the
debt securities to be issued
12<F2> Computation of ratio of earnings to fixed charges
23-a<F1> Consent of Arthur Andersen, LLP, Independent Accountants
23-b<F1> Consent of Ernst & Young, LLP, Independent Auditors
23-c<F1> Consent of Steven L. Zelkowitz (contained in his Opinion
filed as Exhibit 5 hereto)
24-a<F1> Powers of Attorney
24-b<F2> Certified resolution of the Board of Directors of KeySpan
Corporation authorizing signatures pursuant to power of
attorney
24-c<F2> Certified resolution of the Board of Directors of KeySpan
Gas East Corporation authorizing signatures pursuant to
power of attorney
25<F1> Statement of Eligibility of The Chase Manhattan Bank on Form
T-1
__________________
[FN]
<F1> Filed herewith.
<F2> Previously filed.
II-11
Exhibit 1
KeySpan Gas East Corporation
Medium-Term Notes, Series A
Due Nine Months or More From Date of Issue
Guaranteed as to Payment of Principal, Premium
(if any) and Interest (if any) by
KeySpan Corporation
DISTRIBUTION AGREEMENT
January -, 2000
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
World Financial Center
North Tower, 10th Floor
New York, New York 10281-1310
CHASE SECURITIES INC.
270 Park Avenue
8th Floor
New York, New York 10017
J.P. MORGAN SECURITIES INC.
60 Wall Street
New York, New York 10260
Dear Sirs:
KeySpan Gas East Corporation, a New York corporation doing
business as Brooklyn Union of Long Island (the "Company"), and KeySpan
Corporation, a New York corporation doing business as KeySpan Energy (the
"Guarantor"), confirm their agreement with Merrill Lynch & Co., Merrill
Lynch, Pierce, Fenner & Smith Incorporated, Chase Securities Inc. and
J.P. Morgan Securities Inc. (each, an "Agent", and collectively, the
"Agents") with respect to the issue and sale by the Company of its
Medium-Term Notes, Series A, Due Nine Months or More From Date of Issue
(the "Notes"). The Notes are to be issued pursuant to an Indenture,
dated as of December 1, 1999, as amended or modified from time to time
(the "Indenture"), between the Company, the Guarantor and The Chase
Manhattan Bank, as trustee (the "Trustee"). As of the date hereof, the
Company has authorized the issuance and sale of up to U.S. $600,000,000
aggregate initial offering price of Notes (or its equivalent, based upon
the exchange rate on the applicable trade date in such foreign currencies
or currency units as the Company shall designate at the time of issuance)
to or through the Agents pursuant to the terms of this Agreement. It is
understood, however, that the Company may from time to time authorize the
issuance of additional Notes and that such additional Notes may be sold
to or through the Agents pursuant to the terms of this Agreement, all as
though the issuance of such Notes were authorized as of the date hereof.
<PAGE>
The Notes will be guaranteed as to principal (and premium, if
any), interest, if any, and additional amounts, if any, by the Guarantor
pursuant to the guarantee set forth in the Indenture, which will be
endorsed on each Note authenticated and delivered pursuant to the
Indenture (the "Guarantee" and, collectively, the "Guarantees").
This Agreement provides both for the sale of Notes by the
Company to one or more Agents as principal for resale to investors and
other purchasers and for the sale of Notes by the Company directly to
investors (as may from time to time be agreed to by the Company and the
applicable Agent), in which case the applicable Agent will act as an
agent of the Company in soliciting offers for the purchase of Notes.
The Company and the Guarantor have filed with the Securities
and Exchange Commission (the "Commission") a registration statement on
Form S-3 (No. 333-92003) and pre-effective amendment no. 1 thereto for
the registration of debt securities, including the Notes, and the
Guarantees with respect to such debt securities, including the Guarantees
with respect to the Notes, under the Securities Act of 1933, as amended
(the "1933 Act"), and the offering thereof from time to time in accor-
dance with Rule 415 of the rules and regulations of the Commission under
the 1933 Act (the "1933 Act Regulations"). Such registration statement
has been declared effective by the Commission and the Indenture has been
duly qualified under the Trust Indenture Act of 1939, as amended (the
"1939 Act"), and the Company and the Guarantor have filed such post-
effective amendments thereto as may be required prior to the Company's
acceptance of any offer for the purchase of Notes and each such post-
effective amendment has been declared effective by the Commission. Such
registration statement (as so amended, if applicable) is referred to
herein as the "Registration Statement"; and the final prospectus and all
applicable amendments or supplements thereto (including the final
prospectus supplement and pricing supplement relating to the offering of
Notes), in the form first furnished to the applicable Agents for use in
confirming sales of Notes, are collectively referred to herein as the
"Prospectus"; provided, however, that all references to the "Registration
Statement" and the "Prospectus" shall also be deemed to include all
documents incorporated therein by reference pursuant to the Securities
Exchange Act of 1934, as amended (the "1934 Act"), prior to any
acceptance by the Company of an offer for the purchase of Notes;
provided, further, that if the Company and the Guarantor file a
registration statement with the Commission pursuant to Rule 462(b) of the
1933 Act Regulations (the "Rule 462(b) Registration Statement"), then,
after such filing, all references to the "Registration Statement" shall
also be deemed to include the Rule 462(b) Registration Statement. A
"preliminary prospectus" shall be deemed to refer to any prospectus used
before the Registration Statement became effective and any prospectus
furnished by the Company and the Guarantor after the registration
statement became effective and before any acceptance by the Company of an
offer for the purchase of Notes which omitted information to be included
upon pricing in a form of prospectus filed with the Commission pursuant
to Rule 424(b) of the 1933 Act Regulations. For purposes of this
Agreement, all references to the Registration Statement, Prospectus or
preliminary prospectus or to any amendment or supplement thereto shall be
-2-
<PAGE>
deemed to include any copy filed with the Commission pursuant to its
Electronic Data Gathering, Analysis and Retrieval system ("EDGAR").
All references in this Agreement to financial statements and
schedules and other information which is "disclosed", "contained,"
"included" or "stated" (or other references of like import) in the
Registration Statement, Prospectus or preliminary prospectus shall be
deemed to include all such financial statements and schedules and other
information which is incorporated by reference in the Registration
Statement, Prospectus or preliminary prospectus, as the case may be; and
all references in this Agreement to amendments or supplements to the
Registration Statement, Prospectus or preliminary prospectus shall be
deemed to include the filing of any document under the 1934 Act which is
incorporated by reference in the Registration Statement, Prospectus or
preliminary prospectus, as the case may be.
SECTION 1. Appointment as Agent.
(a) Appointment. Subject to the terms and conditions stated
herein and subject to the reservation by the Company of the right to sell
Notes directly on its own behalf, the Company hereby agrees that Notes
will be sold exclusively to or through the Agents. The Company agrees
that it will not appoint any other agents to act on its behalf, or to
assist it, in the placement of the Notes.
(b) Sale of Notes. The Company shall not sell or approve the
solicitation of offers for the purchase of Notes in excess of the amount
which shall be authorized by the Company from time to time or in excess
of the aggregate initial offering price of Notes registered pursuant to
the Registration Statement. The Agents shall have no responsibility for
maintaining records with respect to the aggregate initial offering price
of Notes sold, or of otherwise monitoring the availability of Notes for
sale, under the Registration Statement.
(c) Purchases as Principal. The Agents shall not have any
obligation to purchase Notes from the Company as principal. However,
absent an agreement between an Agent and the Company that such Agent
shall be acting solely as an agent for the Company, such Agent shall be
deemed to be acting as principal in connection with any offering of Notes
by the Company through such Agent. Accordingly, the Agents, individually
or in a syndicate, may agree from time to time to purchase Notes from the
Company as principal for resale to investors and other purchasers
determined by such Agents. Any purchase of Notes from the Company by an
Agent as principal shall be made in accordance with Section 3(a) hereof.
(d) Solicitations as Agent. If agreed upon between an Agent
and the Company, such Agent, acting solely as an agent for the Company
and not as principal, will solicit offers for the purchase of Notes.
Such Agent will communicate to the Company, orally, each offer for the
purchase of Notes solicited by it on an agency basis other than those
offers rejected by such Agent. Such Agent shall have the right, in its
discretion reasonably exercised, to reject any offer for the purchase of
Notes, in whole or in part, and any such rejection shall not be deemed a
-3-
<PAGE>
breach of its agreement contained herein. The Company may accept or
reject any offer for the purchase of Notes, in whole or in part. Such
Agent shall make reasonable efforts to assist the Company in obtaining
performance by each purchaser whose offer for the purchase of Notes has
been solicited by it on an agency basis and accepted by the Company.
Such Agent shall not have any liability to the Company in the event that
any such purchase is not consummated for any reason. If the Company
shall default on its obligation to deliver Notes to a purchaser whose
offer has been solicited by such Agent on an agency basis and accepted by
the Company, the Company shall (i) hold such Agent harmless against any
loss, claim or damage arising from or as a result of such default by the
Company and (ii) pay to such Agent any commission to which it would
otherwise be entitled absent such default.
(e) Reliance. The Company, the Guarantor and the Agents
agree that any Notes purchased from the Company by one or more Agents as
principal shall be purchased, and any Notes the placement of which an
Agent arranges as an agent of the Company shall be placed by such Agent,
in reliance on the representations, warranties, covenants and agreements
of the Company and the Guarantor contained herein and on the terms and
conditions and in the manner provided herein.
SECTION 2. Representations and Warranties.
(a) The Company and the Guarantor represent and warrant to
each Agent as of the date hereof, as of the date of each acceptance by
the Company of an offer for the purchase of Notes (whether to such Agent
as principal or through such Agent as agent), as of the date of each
delivery of Notes (whether to such Agent as principal or through such
Agent as agent) (the date of each such delivery to such Agent as prin-
cipal is referred to herein as a "Settlement Date"), and as of any time
that the Registration Statement or the Prospectus shall be amended or
supplemented (each of the times referenced above is referred to herein as
a "Representation Date"), as follows:
(i) Due Incorporation, Good Standing and Due Qualification of
the Guarantor. The Guarantor has been duly organized and is
validly existing as a corporation in good standing under the laws
of the State of New York with corporate power and authority to own,
lease and operate its properties and to conduct its business as
described in the Prospectus and to enter into this Agreement and
consummate the transactions contemplated in the Prospectus; the
Guarantor is duly qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the
failure to so qualify or be in good standing would not result in a
material adverse change in the condition, financial or otherwise,
or in the earnings, business affairs or business prospects of the
Company or of the Guarantor and its subsidiaries considered as one
enterprise (a "Material Adverse Effect"); all of the issued and
outstanding shares of capital stock of the Guarantor have been duly
authorized and are validly issued, fully paid and non-assessable;
-4-
<PAGE>
and none of the outstanding shares of capital stock of the
Guarantor were issued in violation of preemptive or other similar
rights of any securityholder of the Guarantor.
(ii) Due Incorporation, Good Standing and Due Qualification of
Significant Subsidiaries. Each significant subsidiary (as such
term is defined in Rule 1-02 of Regulation S-X promulgated under
the 1933 Act) of the Guarantor, including the Company (each, a
"Significant Subsidiary") has been duly organized and is validly
existing as a corporation or limited liability company, as the case
may be, in good standing under the laws of the jurisdiction of its
incorporation or organization, has corporate power and authority to
own, lease and operate its properties and conduct its business as
described in the Prospectus and, in the case of the Company, to
enter into this Agreement and consummate the transactions
contemplated in the Prospectus. Each Significant Subsidiary is
duly qualified as a foreign corporation or limited liability
company, as the case may be, to transact business and is in good
standing in each jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property
or the conduct of business, except where the failure to so qualify
or be in good standing would not result in a Material Adverse
Effect; except as stated in the Prospectus, all of the issued and
outstanding shares of capital stock of each Significant Subsidiary
has been duly authorized and is validly issued, fully paid and non-
assessable and is owned by the Guarantor, directly or through
subsidiaries, free and clear of any security interest, mortgage,
pledge, lien, encumbrance, claim or equity; and none of the
outstanding shares of capital stock of any Significant Subsidiary
was issued in violation of preemptive or other similar rights of
any securityholder of such Significant Subsidiary. The Company
does not have any subsidiaries.
(iii) Registration Statement and Prospectus. The Company and
the Guarantor meet the requirements for use of Form S-3 under the
1933 Act; the Registration Statement (or any Rule 462(b)
Registration Statement) has become effective under the 1933 Act and
no stop order suspending the effectiveness of the Registration
Statement (or any Rule 462(b) Registration Statement) has been
issued under the 1933 Act and no proceedings for that purpose have
been instituted or are pending or, to the knowledge of the Company
and the Guarantor, are contemplated by the Commission, and any
request on the part of the Commission for additional information
has been complied with; the Indenture has been duly qualified under
the 1939 Act; at the respective times that the Registration
Statement (including any Rule 462(b) Registration Statement) and
any post-effective amendment thereto (including the filing of the
Guarantor's most recent Annual Report on Form 10-K with the
Commission (the "Annual Report on Form 10-K")) became effective and
at each Representation Date, the Registration Statement (including
any Rule 462(b) Registration Statement) and any amendments thereto
complied and will comply in all material respects with the require-
ments of the 1933 Act and the 1933 Act Regulations and the 1939 Act
-5-
<PAGE>
and the rules and regulations of the Commission under the 1939 Act
(the "1939 Act Regulations") and did not and will not contain an
untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading; each preliminary prospectus and
prospectus filed as part of the Registration Statement as
originally filed or as part of any amendment thereto, or filed
pursuant to Rule 424 under the 1933 Act, complied when so filed in
all material respects with the 1933 Act Regulations; each
preliminary prospectus and the Prospectus delivered to the
applicable Agents for use in connection with the offering of Notes
are identical to any electronically transmitted copies thereof
filed with the Commission pursuant to EDGAR, except to the extent
permitted by Regulation S-T; and at the date hereof, at the date of
the Prospectus and each amendment or supplement thereto and at each
Representation Date, neither the Prospectus nor any amendment or
supplement thereto included or will include an untrue statement of
a material fact or omitted or will omit to state a material fact
necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading;
provided, however, that the representations and warranties in this
subsection shall not apply to statements in or omissions from the
Registration Statement or the Prospectus made in reliance upon and
in conformity with information furnished to the Company or the
Guarantor in writing by the Agents expressly for use in the
Registration Statement or the Prospectus.
(iv) Incorporated Documents. The documents incorporated or
deemed to be incorporated by reference in the Prospectus, at the
time they were or hereafter are filed with the Commission, complied
and will comply in all material respects with the requirements of
the 1934 Act and the rules and regulations of the Commission under
the 1934 Act (the "1934 Act Regulations") and, when read together
with the other information in the Prospectus, at the date hereof,
at the date of the Prospectus and at each Representation Date, did
not and will not include an untrue statement of a material fact or
omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading.
(v) Independent Accountants. The accountants who certified
the financial statements and any supporting schedules thereto
included in the Registration Statement and the Prospectus are
independent public accountants as required by the 1933 Act and the
1933 Act Regulations.
(vi) Financial Statements. The consolidated financial
statements of the Guarantor included in the Registration Statement
and the Prospectus, together with the related schedules and notes,
as well as those financial statements, schedules and notes of any
other entity included in the Registration Statement and the
Prospectus, present fairly the consolidated financial position of
the Guarantor and its subsidiaries, or such other entity, as the
-6-
<PAGE>
case may be, at the dates indicated and the consolidated statement
of operations, stockholders' equity and cash flows of the Guarantor
and its subsidiaries, or such other entity, as the case may be, for
the periods specified; such financial statements have been prepared
in conformity with generally accepted accounting principles
("GAAP") applied on a consistent basis throughout the periods
involved; the supporting schedules, if any, included in the
Registration Statement and the Prospectus present fairly in
accordance with GAAP the information required to be stated therein;
the selected financial data and the summary financial information,
if any, included in the Registration Statement and the Prospectus
present fairly the information shown therein and have been compiled
on a basis consistent with that of the audited financial statements
included in the Registration Statement and the Prospectus; and any
pro forma consolidated financial statements of the Guarantor and
its subsidiaries and the related notes thereto included in the
Registration Statement and the Prospectus present fairly the
information shown therein, have been prepared in accordance with
the Commission's rules and guidelines with respect to pro forma
financial statements and have been properly compiled on the bases
described therein, and the assumptions used in the preparation
thereof are reasonable and the adjustments used therein are
appropriate to give effect to the transactions and circumstances
referred to therein.
(vii) No Material Changes. Since the respective dates as of
which information is given in the Registration Statement and the
Prospectus, except as otherwise stated therein, (1) there has been
no event or occurrence that would result in a Material Adverse
Effect and (2) there have been no transactions entered into by the
Company or the Guarantor or any of its other subsidiaries, other
than those in the ordinary course of business, which are material
with respect to the Guarantor and its subsidiaries considered as
one enterprise.
(viii) Authorization, etc. of this Agreement, the Indenture, the
Notes and the Guarantees.
(A) This Agreement has been duly authorized, executed
and delivered by the Company and the Guarantor;
(B) The Indenture has been duly authorized, executed and
delivered by the Company and the Guarantor and will be a valid and
legally binding agreement of the Company and the Guarantor,
enforceable against the Company and the Guarantor in accordance
with its terms, except as enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting the enforcement of creditors' rights generally or by
general equitable principles (regardless of whether enforcement is
considered in a proceeding in equity or at law) and an implied
covenant of good faith and fair dealing, and except further as
enforcement thereof may be limited by requirements that a claim
with respect to any debt securities issued under the Indenture that
-7-
<PAGE>
are payable in a foreign currency or currency unit (or a foreign
currency or currency unit judgment in respect of such claim) be
converted into U.S. dollars at a rate of exchange prevailing on a
date determined pursuant to applicable law or by governmental
authority to limit, delay or prohibit the making of payments
outside the United States.
(C) The Notes have been duly authorized by the Company
for offer, sale, issuance and delivery pursuant to this Agreement
and, when the Notes are issued, authenticated and delivered in the
manner provided for in the Indenture and delivered against payment
of the consideration therefor, the Notes will constitute valid and
legally binding obligations of the Company, enforceable against the
Company in accordance with their terms, except as enforcement
thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting the enforcement of
creditors' rights generally or by general equitable principles
(regardless of whether enforcement is considered in a proceeding in
equity or at law) and an implied covenant of good faith and fair
dealing, and except further as enforcement thereof may be limited
by requirements that a claim with respect to any Notes payable in a
foreign currency or currency unit (or a foreign currency or
currency unit judgment in respect of such claim) be converted into
U.S. dollars at a rate of exchange prevailing on a date determined
pursuant to applicable law or by governmental authority to limit,
delay or prohibit the making of payments outside the United States;
the Notes will be substantially in a form previously certified to
the Agents and contemplated by the Indenture; and each holder of
Notes will be entitled to the benefits of the Indenture.
(D) The Guarantees have been duly authorized by the
Guarantor and, when the Notes are issued, authenticated and
delivered in the manner provided for in the Indenture and delivered
against payment of the consideration therefor, the Guarantees will
constitute valid and legally binding obligations of the Guarantor,
enforceable against the Guarantor in accordance with their terms,
except as enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws
affecting the enforcement of creditors' rights generally or by
general equitable principles (regardless of whether enforcement is
considered in a proceeding in equity or at law) and an implied
covenant of good faith and fair dealing, and except further as
enforcement thereof may be limited by requirements that a claim
with respect to any Notes payable in a foreign currency or currency
unit (or a foreign currency or currency unit judgment in respect of
such claim) be converted into U.S. dollars at a rate of exchange
prevailing on a date determined pursuant to applicable law or by
governmental authority to limit, delay or prohibit the making of
payments outside the United States; the Guarantees will be
substantially in a form previously certified to the Agents and
contemplated by the Indenture; and each holder of Notes will be
entitled to the benefits of the Guarantees.
-8-
<PAGE>
(ix) Descriptions of the Indenture, the Notes and the
Guarantees. The Indenture, the Notes and the Guarantees conform
and will conform in all material respects to the statements
relating thereto contained in the Prospectus and are substantially
in the form filed or incorporated by reference, as the case may be,
as exhibits to the Registration Statement.
(x) Accuracy of Exhibits. There are no contracts or
documents which are required to be described in the Registration
Statement, the Prospectus or the documents incorporated by
reference therein or to be filed as exhibits thereto which have not
been so described and filed as required.
(xi) Absence of Defaults and Conflicts. Neither the Company
nor the Guarantor or any of its other subsidiaries is in violation
of the provisions of its charter or by-laws or in default in the
performance or observance of any obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, deed of
trust, loan or credit agreement, note, lease or other agreement or
instrument to which the Company or the Guarantor or any of its
other subsidiaries is a party or by which any of them may be bound
or to which any of the property or assets of the Company or the
Guarantor or any of its other subsidiaries is subject
(collectively, "Agreements and Instruments"), except for such
defaults that would not result in a Material Adverse Effect; and
the execution, delivery and performance of this Agreement, the
Indenture, the Notes, the Guarantees and any other agreement or
instrument entered into or issued or to be entered into or issued
by the Company or the Guarantor in connection with the transactions
contemplated by the Prospectus, the consummation of the
transactions contemplated in the Prospectus (including the issuance
and sale of the Notes and the use of proceeds therefrom as
described in the Prospectus) and the compliance by the Company and
the Guarantor with their respective obligations hereunder and under
the Indenture, the Notes, the Guarantees and such other agreements
or instruments have been duly authorized by all necessary corporate
action and do not and will not, whether with or without the giving
of notice or the passage of time or both, conflict with or
constitute a breach of, or default or event or condition which
gives the holder of any note, debenture or other evidence of
indebtedness (or any person acting on such holder's behalf) the
right to require the repurchase, redemption or repayment of all or
a portion of such indebtedness by the Company or the Guarantor or
any of its other subsidiaries (a "Repayment Event") under, or
result in the creation or imposition of any lien, charge or encum-
brance upon any assets, properties or operations of the Company or
the Guarantor or any of its other subsidiaries pursuant to, any
Agreements and Instruments, nor will such action result in any
violation of the provisions of the charter or by-laws of the
Company or the Guarantor or any of its other subsidiaries or any
applicable law, statute, rule, regulation, judgment, order, writ or
decree of any government, government instrumentality or court,
domestic or foreign, having jurisdiction over the Company or the
-9-
<PAGE>
Guarantor or any of its other subsidiaries or any of their assets,
properties or operations.
(xii) Absence of Proceedings. There is no action, suit,
proceeding, inquiry or investigation before or brought by any court
or governmental agency or body, domestic or foreign, now pending,
or to the knowledge of the Company or the Guarantor threatened,
against or affecting the Company or the Guarantor or any of its
other subsidiaries which is required to be disclosed in the
Registration Statement and the Prospectus (other than as stated
therein), or which, individually or in the aggregate, may
reasonably be expected to result in a Material Adverse Effect, or
which may reasonably be expected to materially and adversely affect
the performance by the Company or the Guarantor of its respective
obligations under this Agreement, the Indenture, the Notes and the
Guarantees or the consummation of the transactions contemplated in
the Prospectus.
(xiii) Possession of Licenses and Permits. The Company, the
Guarantor and each of its other subsidiaries possess such permits,
licenses, franchises, approvals, consents and other authorizations
(collectively, "Governmental Licenses") issued by the appropriate
federal, state, local or foreign regulatory agencies or bodies
necessary to conduct the business now operated by them; the
Company, the Guarantor and each of its other subsidiaries are in
compliance with the terms and conditions of all such Governmental
Licenses, except where the failure so to comply would not, singly
or in the aggregate, result in a Material Adverse Effect; all of
the Governmental Licenses are valid and in full force and effect,
except where the invalidity of such Governmental Licenses or the
failure of such Governmental Licenses to be in full force and
effect would not result in a Material Adverse Effect; and none of
the Company, the Guarantor or any of its other subsidiaries has
received any notice of proceedings relating to the revocation or
modification of any such Governmental Licenses which, singly or in
the aggregate, if the subject of an unfavorable decision, ruling or
finding, would result in a Material Adverse Effect.
(xiv) Environmental Laws. Except as otherwise stated in the
Registration Statement and the Prospectus and except as would not,
singly or in the aggregate, result in a Material Adverse Effect,
(A) none of the Company, the Guarantor or any of its other
subsidiaries is in violation of any federal, state, local or
foreign statute, law, rule, regulation, ordinance, code, policy or
rule of common law or any judicial or administrative interpretation
thereof including any judicial or administrative order, consent,
decree or judgment, relating to pollution or protection of human
health, the environment (including, without limitation, ambient
air, surface water, groundwater, land surface or subsurface strata)
or wildlife, including, without limitation, laws and regulations
relating to the release or threatened release of chemicals,
pollutants, contaminants, wastes, toxic substances, hazardous
substances, petroleum or petroleum products (collectively,
-10-
<PAGE>
"Hazardous Materials") or to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or
handling of Hazardous Materials (collectively, "Environmental
Laws"), (B) the Company and the Guarantor and its other
subsidiaries have all permits, authorizations and approvals
required under any applicable Environmental Laws and are each in
compliance with their requirements, (C) there are no pending or
threatened administrative, regulatory or judicial actions, suits,
demands, demand letters, claims, liens, notices of noncompliance or
violation, investigation or proceedings relating to any
Environmental Law against the Company or the Guarantor or any of
its other subsidiaries and (D) there are no events or circumstances
that may reasonably be expected to form the basis of an order for
clean-up or remediation, or an action, suit or proceeding by any
private party or governmental body or agency, against or affecting
the Company or the Guarantor or any of its other subsidiaries
relating to Hazardous Materials or any Environmental Laws.
(xv) No Filings, Regulatory Approvals etc. No filing with, or
approval, authorization, consent, license, registration,
qualification, order or decree of, any court or governmental
authority or agency, domestic or foreign, is necessary or required
for the due authorization, execution and delivery by the Company or
the Guarantor of this Agreement, the Indenture, the Notes and the
Guarantees, as applicable, or for the performance by the Company or
the Guarantor of the transactions contemplated in this Agreement,
the Indenture or the Prospectus, except an order of the Public
Service Commission of the State of New York which has been obtained
and is not subject to abrogation and such others as have been
previously made, obtained or rendered, as applicable.
(xvi) Ratings. The Medium-Term Note Program under which the
Notes are issued (the "Program"), as well as the Notes, are rated
by Moody's Investors Service, Inc. and by Standard & Poor's Ratings
Services.
(xvii) Exemption from Public Utility Holding Company Act. The
Guarantor, pursuant to an order of the Commission, is exempt from
all provisions of the Public Utility Holding Company Act of 1935,
as amended, except for Section 9(a)(ii) thereof, unless otherwise
disclosed in the Registration Statement or the Prospectus.
(b) Additional Certifications. Any certificate signed by any
officer of the Company or the Guarantor or any of its other subsidiaries
and delivered to one or more Agents or to counsel for the Agents in
connection with an offering of Notes to one or more Agents as principal
or through an Agent as agent shall be deemed a representation and
warranty by the Company or the Guarantor, as the case may be, to such
Agent or Agents as to the matters covered thereby on the date of such
certificate and, unless subsequently amended or supplemented, at each
Representation Date subsequent thereto.
-11-
<PAGE>
SECTION 3. Purchases as Principal; Solicitations as Agent.
(a) Purchases as Principal. Notes purchased from the Company
by the Agents, individually or in a syndicate, as principal shall be
purchased in accordance with terms agreed upon between such Agent or
Agents and the Company (which terms, unless otherwise agreed, shall, to
the extent applicable, include those terms specified in Exhibit A hereto
and shall be agreed upon orally, with written confirmation prepared by
such Agent or Agents and mailed to the Company). An Agent's commitment
to purchase Notes as principal shall be deemed to have been made on the
basis of the representations and warranties of the Company and the
Guarantor herein contained and shall be subject to the terms and
conditions herein set forth. Unless the context otherwise requires,
references herein to "this Agreement" shall include the applicable
agreement of one or more Agents to purchase Notes from the Company as
principal. Each purchase of Notes, unless otherwise agreed, shall be at
a discount from the principal amount of each such Note equivalent to the
applicable commission set forth in Schedule A hereto. The Agents may
engage the services of any broker or dealer in connection with the resale
of the Notes purchased by them as principal and may allow all or any
portion of the discount received from the Company in connection with such
purchases to such brokers or dealers. At the time of each purchase of
Notes from the Company by one or more Agents as principal, such Agent or
Agents shall specify the requirements for the officers' certificate,
opinion of counsel and comfort letter pursuant to Sections 7(b), 7(c) and
7(d) hereof.
If the Company and two or more Agents enter into an agreement
pursuant to which such Agents agree to purchase Notes from the Company as
principal and one or more of such Agents shall fail at the Settlement
Date to purchase the Notes which it or they are obligated to purchase
(the "Defaulted Notes"), then the nondefaulting Agents shall have the
right, within 24 hours thereafter, to make arrangements for one of them
or one or more other Agents or underwriters to purchase all, but not less
than all, of the Defaulted Notes in such amounts as may be agreed upon
and upon the terms herein set forth; provided, however, that if such
arrangements shall not have been completed within such 24-hour period,
then:
(A) if the aggregate principal amount of Defaulted Notes does
not exceed 10% of the aggregate principal amount of Notes to be so
purchased by all of such Agents on the Settlement Date, the
nondefaulting Agents shall be obligated, severally and not jointly,
to purchase the full amount thereof in the proportions that their
respective initial underwriting obligations bear to the
underwriting obligations of all nondefaulting Agents; or
(B) if the aggregate principal amount of Defaulted Notes
exceeds 10% of the aggregate principal amount of Notes to be so
purchased by all of such Agents on the Settlement Date, such
agreement shall terminate without liability on the part of any
nondefaulting Agent.
-12-
<PAGE>
No action taken pursuant to this paragraph shall relieve any defaulting
Agent from liability in respect of its default. In the event of any such
default which does not result in a termination of such agreement, either
the nondefaulting Agents or the Company shall have the right to postpone
the Settlement Date for a period not exceeding seven days in order to
effect any required changes in the Registration Statement or the
Prospectus or in any other documents or arrangements.
(b) Solicitations as Agent. On the basis of the represen-
tations and warranties herein contained, but subject to the terms and
conditions herein set forth, when agreed by the Company and an Agent,
such Agent, as an agent of the Company, will use its reasonable efforts
to solicit offers for the purchase of Notes upon the terms set forth in
the Prospectus. The Agents are not authorized to appoint sub-agents with
respect to Notes sold through them as agent. All Notes sold through an
Agent as agent will be sold at 100% of their principal amount unless
otherwise agreed upon between the Company and such Agent.
The Company reserves the right, in its sole discretion, to
suspend solicitation of offers for the purchase of Notes through an
Agent, as an agent of the Company, commencing at any time for any period
of time or permanently. As soon as practicable after receipt of
instructions from the Company, such Agent will suspend solicitation of
offers for the purchase of Notes from the Company until such time as the
Company has advised such Agent that such solicitation may be resumed.
The Company agrees to pay each Agent a commission, in the form
of a discount, equal to the applicable percentage of the principal amount
of each Note sold by the Company as a result of a solicitation made by
such Agent, as an agent of the Company, as set forth in Schedule A here-
to.
(c) Administrative Procedures. The purchase price, interest
rate or formula, maturity date and other terms of the Notes specified in
Exhibit A hereto (as applicable) shall be agreed upon between the Company
and the applicable Agents and specified in a pricing supplement to the
Prospectus (each, a "Pricing Supplement") to be prepared by the Company
in connection with each sale of Notes. Except as otherwise specified in
the applicable Pricing Supplement, the Notes will be issued in denomi-
nations of U.S. $1,000 or any larger amount that is an integral multiple
of U.S. $1,000. Administrative procedures with respect to the issuance
and sale of the Notes (the "Procedures") shall be agreed upon from time
to time among the Company, the Agents and the Trustee. The Agents and
the Company agree to perform, and the Company agrees to cause the Trustee
to agree to perform, their respective duties and obligations specifically
provided to be performed by them in the Procedures.
(d) Distribution and Delivery of Notes. The Agents
represent, warrant and agree that they have not entered and will not
enter into any contractual arrangement with respect to the distribution
or delivery of the Notes, except with their affiliates or with the prior
written consent of the Company. In addition,
-13-
<PAGE>
(i) except to the extent permitted under U.S. Treas.
Reg. Section 1.163-5(c) (2) (i) (D) (the "D Rules"),
(A) the Agents have not offered or sold, and during
the restricted period will not offer or sell, Notes
in bearer form to a person who is within the United
States or its possessions or to a United States
person, and (B) the Agents have not delivered and
will not deliver within the United States or its
possessions definitive notes in bearer form that are
sold during the restricted period;
(ii) the Agents represent and agree that they have and
throughout the restricted period will have in effect
procedures reasonably designed to ensure that their
employees or agents who are directly engaged in
selling Notes in bearer form are aware that such
Notes may not be offered or sold during the
restricted period to a person who is within the
United States or its possessions or to a United
States person, except as permitted by the D Rules;
(iii) if the Agents are United States persons, they
represent that they are acquiring the Notes in
bearer form for purposes of resale in connection
with their original issuance and if they retain
Notes in bearer form for their own account, the
Agents will only do so in accordance with the
requirements of U.S. Treas. Reg. Section 1.163-
5(c)(2)(i)(D)(6); and
(iv) with respect to each affiliate that acquires Notes
in bearer form from the Agents, for the purpose of
offering or selling such Notes during the restricted
period, the Agents either (A) repeat and confirm the
representations and agreements contained in clauses
(i), (ii) and (iii) on the affiliate's behalf or (B)
agree that they will obtain from such affiliate for
the Company's benefit the representations and
agreements contained in clauses (i), (ii) and (iii).
Terms used in this paragraph have the meanings given to them
by the U.S. Internal Revenue Code and regulations thereunder, including
the D Rules.
SECTION 4. Covenants of the Company and the Guarantor.
The Company and the Guarantor covenant and agree with each
Agent as follows:
(a) Notice of Certain Events. The Company or the Guarantor
will notify the Agents immediately, and confirm such notice in
writing, of (i) the effectiveness of any post-effective amendment
to the Registration Statement or the filing of any amendment or
-14-
<PAGE>
supplement to the Prospectus (other than any amendment or
supplement thereto providing solely for the determination of the
variable terms of the Notes or relating solely to the offering of
securities other than the Notes), (ii) the receipt of any comments
from the Commission, (iii) any request by the Commission for any
amendment to the Registration Statement or any amendment or
supplement to the Prospectus or for additional information,
(iv) the issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement, or of any order
preventing or suspending the use of any preliminary prospectus, or
of the initiation of any proceedings for that purpose or (v) any
change in the rating assigned by any nationally recognized
statistical rating organization to the Program or any debt
securities (including the Notes) of the Company or of the
Guarantor, or the public announcement by any nationally recognized
statistical rating organization that it has under surveillance or
review, with possible negative implications, its rating of the
Program or any such debt securities, or the withdrawal by any
nationally recognized statistical rating organization of its rating
of the Program or any such debt securities. The Company and the
Guarantor will make every reasonable effort to prevent the issuance
of any stop order and, if any stop order is issued, to obtain the
lifting thereof at the earliest possible moment.
(b) Filing or Use of Amendments. The Company or the
Guarantor will give the Agents advance notice of their intention to
file or prepare any additional registration statement with respect
to the registration of additional Notes and Guarantees, any
amendment to the Registration Statement (including any filing under
Rule 462(b) of the 1933 Act Regulations) or any amendment or
supplement to the prospectus included in the Registration Statement
at the time it became effective or to the Prospectus (other than an
amendment or supplement thereto providing solely for the
determination of the variable terms of the Notes or relating solely
to the offering of securities other than the Notes), whether
pursuant to the 1933 Act, the 1934 Act or otherwise, will furnish
to the Agents copies of any such document a reasonable amount of
time prior to such proposed filing or use, as the case may be, and
will not file any such document to which the Agents or counsel for
the Agents shall object.
(c) Delivery of the Registration Statement. The Company or
the Guarantor has furnished to each Agent and to counsel for the
Agents, without charge, signed and conformed copies of the
Registration Statement as originally filed and of each amendment
thereto (including exhibits filed therewith or incorporated by
reference therein and documents incorporated or deemed to be
incorporated by reference therein) and signed and conformed copies
of all consents and certificates of experts. The Registration
Statement and each amendment thereto furnished to the Agents will
be identical to any electronically transmitted copies thereof filed
with the Commission pursuant to EDGAR, except to the extent
permitted by Regulation S-T.
-15-
<PAGE>
(d) Delivery of the Prospectus. The Company will deliver to
each Agent, without charge, as many copies of each preliminary
prospectus as such Agent may reasonably request, and the Company
and the Guarantor hereby consent to the use of such copies for
purposes permitted by the 1933 Act. The Company or the Guarantor
will furnish to each Agent, without charge, such number of copies
of the Prospectus (as amended or supplemented) as such Agent may
reasonably request. The Prospectus and any amendments or
supplements thereto furnished to the Agents will be identical to
any electronically transmitted copies thereof filed with the
Commission pursuant to EDGAR, except to the extent permitted by
Regulation S-T.
(e) Preparation of Pricing Supplements. The Company will
prepare, with respect to any Notes to be sold to or through one or
more Agents pursuant to this Agreement, a Pricing Supplement with
respect to such Notes in a form previously approved by the Agents.
The Company will deliver such Pricing Supplement no later than
11:00 a.m., New York City time (or such other time as the Company
and the Agents shall agree upon in writing), on the business day
following the date of the Company's acceptance of the offer for the
purchase of such Notes and will file such Pricing Supplement
pursuant to Rule 424(b)(3) under the 1933 Act not later than the
close of business of the Commission on the fifth business day after
the date on which such Pricing Supplement is first used, or such
earlier date as is required by Rule 424(b).
(f) Revisions of Prospectus -- Material Changes. Except as
otherwise provided in subsection (m) of this Section 4, if at any
time during the term of this Agreement any event shall occur or
condition shall exist as a result of which it is necessary, in the
opinion of counsel for the Agents or counsel for the Company and
the Guarantor, to amend the Registration Statement in order that
the Registration Statement will not contain an untrue statement of
a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading or to amend or supplement the Prospectus in order that
the Prospectus will not include an untrue statement of a material
fact or omit to state a material fact necessary in order to make
the statements therein not misleading in the light of the
circumstances existing at the time the Prospectus is delivered to a
purchaser, or if it shall be necessary, in the opinion of either
such counsel, to amend the Registration Statement or amend or
supplement the Prospectus in order to comply with the requirements
of the 1933 Act or the 1933 Act Regulations, the Company shall give
immediate notice, confirmed in writing, to the Agents to cease the
solicitation of offers for the purchase of Notes in their capacity
as agents and to cease sales of any Notes they may then own as
principal, and the Company and the Guarantor will promptly prepare
and file with the Commission, subject to Section 4(b) hereof, such
amendment or supplement as may be necessary to correct such
statement or omission or to make the Registration Statement and
Prospectus comply with such requirements, and the Company will
-16-
<PAGE>
furnish to the Agents, without charge, such number of copies of
such amendment or supplement as the Agents may reasonably request.
In addition, the Company and the Guarantor will comply with the
1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act
Regulations so as to permit the completion of the distribution of
each offering of Notes.
(g) Prospectus Revisions -- Periodic Financial Information.
Except as otherwise provided in subsection (m) of this Section 4,
on or prior to the date on which there shall be released to the
general public interim financial statement information related to
the Guarantor with respect to each of the first three quarters of
any fiscal year or preliminary financial statement information with
respect to any fiscal year, the Guarantor shall furnish such
information to the Agents, confirmed in writing, and shall cause
the Prospectus to be amended or supplemented to include financial
information with respect thereto and corresponding information for
the comparable period of the preceding fiscal year, as well as such
other information and explanations as shall be necessary for an
understanding thereof or as shall be required by the 1933 Act or
the 1933 Act Regulations.
(h) Prospectus Revisions -- Audited Financial Information.
Except as otherwise provided in subsection (m) of this Section 4,
on or prior to the date on which there shall be released to the
general public financial information included in or derived from
the audited consolidated financial statements of the Guarantor for
the preceding fiscal year, the Guarantor shall furnish such
information to the Agents, confirmed in writing, and shall cause
the Prospectus to be amended or supplemented to include such
audited consolidated financial statements and the report or
reports, and consent or consents to such inclusion, of the
independent accountants with respect thereto, as well as such other
information and explanations as shall be necessary for an
understanding of such consolidated financial statements or as shall
be required by the 1933 Act or the 1933 Act Regulations.
(i) Earnings Statements. The Guarantor will timely file such
reports pursuant to the 1934 Act as are necessary in order to make
generally available to its securityholders, and the Company will
make generally available to its securityholders, as soon as
practicable an earnings statement for the purposes of, and to
provide the benefits contemplated by, the last paragraph of Section
11(a) of the 1933 Act.
(j) Reporting Requirements. The Company and the Guarantor,
during the period when the Prospectus is required to be delivered
under the 1933 Act or the 1934 Act, will file all documents
required to be filed with the Commission pursuant to the 1934 Act
within the time periods prescribed by the 1934 Act and the 1934 Act
Regulations.
-17-
<PAGE>
(k) Restriction on Offers and Sales of Securities. Unless
otherwise agreed upon between one or more Agents acting as
principal and the Company and the Guarantor, between the date of
the agreement by such Agent(s) to purchase the related Notes from
the Company and the Settlement Date with respect thereto, neither
the Company nor the Guarantor will, without the prior written
consent of such Agent(s), issue, sell, offer or contract to sell,
grant any option for the sale of, or otherwise dispose of, any debt
securities having substantially similar terms and maturities, of
the Company or the Guarantor (other than the Notes that are to be
sold pursuant to such agreement or commercial paper in the ordinary
course of business).
(l) Use of Proceeds. The Company will use the net proceeds
received by it from the issuance and sale of the Notes in the
manner specified in the Prospectus.
(m) Suspension of Certain Obligations. Neither the Company
nor the Guarantor shall be required to comply with the provisions
of subsections (f), (g) or (h) of this Section 4, as applicable,
during any period from the time (i) the Agents shall have suspended
solicitation of offers for the purchase of Notes in their capacity
as agents pursuant to a request from the Company, and (ii) no Agent
shall then hold any Notes purchased from the Company as principal,
as the case may be, until the time the Company shall determine that
solicitation of offers for the purchase of Notes should be resumed
or an Agent shall subsequently purchase Notes from the Company as
principal.
SECTION 5. Conditions of Agents' Obligations.
The obligations of one or more Agents to purchase Notes from
the Company as principal and to solicit offers for the purchase of Notes
as an agent of the Company, and the obligations of any purchasers of
Notes sold through an Agent as an agent of the Company, will be subject
to the accuracy on each Representation Date of the representations and
warranties on the part of the Company and the Guarantor herein contained
or contained in any certificate of an officer of the Company or the
Guarantor or any of its other subsidiaries delivered pursuant to the pro-
visions hereof, to the performance and observance by the Company and the
Guarantor of their covenants and other obligations hereunder, and to the
following additional conditions precedent:
(a) Effectiveness of Registration Statement. The
Registration Statement (including any Rule 462(b) Registration
Statement) has become effective under the 1933 Act and no stop
order suspending the effectiveness of the Registration Statement
shall have been issued under the 1933 Act and no proceedings for
that purpose shall have been instituted or shall be pending or
threatened by the Commission, and any request on the part of the
Commission for additional information shall have been complied with
to the reasonable satisfaction of counsel to the Agents.
-18-
<PAGE>
(b) Legal Opinions. On the date hereof, the Agents shall
have received the following legal opinions, dated as of the date
hereof and in form and substance satisfactory to the Agents:
(1) Opinion of General Counsel or Deputy General Counsel
for the Guarantor. The favorable opinion of the General
Counsel or Deputy General Counsel of the Guarantor, or such
other legal counsel employed by the Guarantor agreed to in
writing by the Agents, to the effect set forth in Exhibit B-1
hereto and to such further effect as the Agents may reasonably
request.
(2) Opinion of Counsel for the Company and the
Guarantor. The favorable opinion of Dickstein Shapiro Morin &
Oshinsky LLP, counsel for the Company and the Guarantor, to
the effect set forth in Exhibit C hereto.
(3) Opinion of Counsel for the Agents. The favorable
opinion of Simpson Thacher & Bartlett, counsel for the Agents,
with respect to the matters set forth in the penultimate
paragraph of Exhibit C hereto.
(c) Officer's Certificates. On the date hereof, there shall
not have been, since the respective dates as of which information
is given in the Prospectus, any material adverse change in the
condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Company or the Guarantor and
its subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business, and the Agents shall
have received (A) a certificate of the President or a Vice
President of the Company and of the chief financial officer and
chief accounting officer of the Company, dated as of the date
hereof, to the effect that (i) there has been no material adverse
change as described above, (ii) the representations and warranties
of the Company herein contained are true and correct with the same
force and effect as though expressly made at and as of the date of
such certificate, (iii) the Company has complied with all
agreements and satisfied all conditions on its part to be performed
or satisfied at or prior to the date of such certificate, and (iv)
no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have
been instituted, are pending or, to the best of such officer's
knowledge, are threatened by the Commission, and (B) a certificate
of the President or a Vice President of the Guarantor and of the
chief financial officer and chief accounting officer of the
Guarantor, dated as of the date hereof, to the effect that (i)
there has been no material adverse change as described above, (ii)
the representations and warranties of the Guarantor herein
contained are true and correct with the same force and effect as
though expressly made at and as of the date of such certificate,
(iii) the Guarantor has complied with all agreements and satisfied
all conditions on its part to be performed or satisfied at or prior
to the date of such certificate, and (iv) no stop order suspending
-19-
<PAGE>
the effectiveness of the Registration Statement has been issued and
no proceedings for that purpose have been instituted, are pending
or, to the best of such officer's knowledge, are threatened by the
Commission.
(d) Comfort Letter of Arthur Andersen LLP. On the date
hereof, the Agents shall have received a letter from Arthur
Andersen LLP, dated as of the date hereof and in form and substance
satisfactory to the Agents, to the effect set forth in Exhibit D
hereto.
(e) Comfort Letter of Ernst & Young LLP. On the date hereof,
the Agents shall have received a letter from Ernst & Young LLP,
dated as of the date hereof and in form and substance satisfactory
to the Agents, to the effect set forth in Exhibit E hereto.
(f) Additional Documents. On the date hereof, counsel to the
Agents shall have been furnished with such documents and opinions
as such counsel may reasonably require for the purpose of enabling
such counsel to pass upon the issuance and sale of the Notes and
the issuance of the Guarantees as herein contemplated and related
proceedings, or in order to evidence the accuracy of any of the
representations and warranties, or the fulfillment of any of the
conditions, herein contained; and all proceedings taken by the
Company in connection with the issuance and sale of Notes and the
issuance of the Guarantees as herein contemplated shall be
satisfactory in form and substance to the Agents and to counsel to
the Agents.
If any condition specified in this Section 5 shall not have
been fulfilled when and as required to be fulfilled, this Agreement may
be terminated by the applicable Agent or Agents by notice to the Company
and the Guarantor at any time and any such termination shall be without
liability of any party to any other party except as provided in Section
10 hereof and except that Sections 8, 9, 11, 14 and 15 hereof shall
survive any such termination and remain in full force and effect.
SECTION 6. Delivery of and Payment for Notes Sold through
an Agent as Agent.
Delivery of Notes sold through an Agent as an agent of the
Company shall be made by the Company to such Agent for the account of any
purchaser only against payment therefor in immediately available funds.
In the event that a purchaser shall fail either to accept delivery of or
to make payment for a Note on the date fixed for settlement, such Agent
shall promptly notify the Company and deliver such Note to the Company
and, if such Agent has theretofore paid the Company for such Note, the
Company will promptly return such funds to such Agent. If such failure
has occurred for any reason other than default by such Agent in the
performance of its obligations hereunder, the Company will reimburse such
Agent on an equitable basis for its loss of the use of the funds for the
period such funds were credited to the Company's account.
-20-
<PAGE>
SECTION 7. Additional Covenants of the Company and the
Guarantor .
The Company and the Guarantor further covenant and agree with
each Agent as follows:
(a) Reaffirmation of Representations and Warranties. Each
acceptance by the Company of an offer for the purchase of Notes
(whether to one or more Agents as principal or through an Agent as
agent), and each delivery of Notes (whether to one or more Agents
as principal or through an Agent as agent), shall be deemed to be
an affirmation that the representations and warranties of the
Company and the Guarantor herein contained and contained in any
certificate theretofore delivered to the Agents pursuant hereto are
true and correct at the time of such acceptance or sale, as the
case may be, and an undertaking that such representations and
warranties will be true and correct at the time of delivery to such
Agents or to the purchaser or its agent, as the case may be, of the
Notes relating to such acceptance or sale, as the case may be, as
though made at and as of each such time (it being understood that
such representations and warranties shall relate to the
Registration Statement and Prospectus as amended and supplemented
to each such time).
(b) Subsequent Delivery of Certificates. Each time that (i)
the Registration Statement or the Prospectus shall be amended or
supplemented (other than by an amendment or supplement providing
solely for the determination of the variable terms of the Notes or
relating solely to the offering of securities other than the
Notes), (ii) (if required in connection with the purchase of Notes
from the Company by one or more Agents as principal) the Company
sells Notes to one or more Agents as principal or (iii) the Company
sells Notes in a form not previously certified to the Agents by the
Company, each of the Company and the Guarantor shall furnish or
cause to be furnished to the Agents, forthwith a certificate dated
the date of filing with the Commission or the date of effectiveness
of such amendment or supplement, as applicable, or the date of such
sale, as the case may be, in form satisfactory to the Agents to the
effect that the statements contained in the certificate referred to
in Section 5(c) hereof which were last furnished to the Agents are
true and correct at the time of the filing or effectiveness of such
amendment or supplement, as applicable, or the time of such sale,
as the case may be, as though made at and as of such time (except
that such statements shall be deemed to relate to the Registration
Statement and the Prospectus as amended and supplemented to such
time) or, in lieu of such certificate, a certificate of the same
tenor as the certificate referred to in Section 5(c) hereof, modi-
fied as necessary to relate to the Registration Statement and the
Prospectus as amended and supplemented to the time of delivery of
such certificate (it being understood that, in the case of clause
(ii) above, any such certificate shall also include a certification
that there has been no material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or
-21-
<PAGE>
business prospects of the Company or the Guarantor and its
subsidiaries considered as one enterprise since the date of the
agreement by such Agents to purchase Notes from the Company as
principal).
(c) Subsequent Delivery of Legal Opinions. Each time that
(i) the Registration Statement or the Prospectus shall be amended
or supplemented (other than by an amendment or supplement providing
solely for the determination of the variable terms of the Notes or
relating solely to the offering of securities other than the
Notes), (ii) (if required in connection with the purchase of Notes
from the Company by one or more Agents as principal) the Company
sells Notes to one or more Agents as principal or (iii) the Company
sells Notes in a form not previously certified to the Agents by the
Company, the Company and the Guarantor shall furnish or cause to be
furnished forthwith to the Agents and to counsel to the Agents the
written opinion of the General Counsel or the Deputy General
Counsel of the Guarantor, or other counsel satisfactory to the
Agents, dated the date of filing with the Commission or the date of
effectiveness of such amendment or supplement, as applicable, or
the date of such sale, as the case may be, to the effect set forth
in Exhibit B-2 hereto and to such further effect as the Agents may
reasonably request, but modified, as necessary, to relate to the
Registration Statement and the Prospectus as amended and supple-
mented to the time of delivery of such opinion.
Each time the Guarantor files its Annual Report on Form 10-K,
Simpson Thacher & Bartlett, counsel to the Agents, or such other
counsel satisfactory to the Agents shall furnish to the Agents
their written opinion, dated the date of such Annual Report, in
form and substance satisfactory to the Agents, of the same tenor as
the opinion referred to in Section 5(b)(3) hereof but modified, as
necessary, to relate to the Registration Statement and the
Prospectus as amended and supplemented to the time of delivery of
such opinion or, in lieu of such opinion, counsel last furnishing
such opinion to the Agents shall furnish the Agents with a letter
substantially to the effect that the Agents may rely on such last
opinion to the same extent as though it was dated the date of such
letter authorizing reliance (except that statements in such last
opinion shall be deemed to relate to the Registration Statement and
the Prospectus as amended and supplemented to the time of delivery
of such letter authorizing reliance).
(d) Subsequent Delivery of Comfort Letters. Each time that
(i) the Registration Statement or the Prospectus shall be amended
or supplemented to include additional financial information (other
than by an amendment or supplement relating solely to the issuance
and/or offering of securities other than the Notes) or (ii) (if
required in connection with the purchase of Notes from the Company
by one or more Agents as principal) the Company sells Notes to one
or more Agents as principal, the Company and the Guarantor shall
cause Arthur Andersen LLP forthwith to furnish to the Agents a
letter, dated the date of filing with the Commission or the date of
-22-
<PAGE>
effectiveness of such amendment or supplement, as applicable, or
the date of such sale, as the case may be, in form satisfactory to
the Agents, of the same tenor as the letter referred to in Section
5(d) hereof but modified to relate to the Registration Statement
and Prospectus as amended and supplemented to the date of such
letter.
SECTION 8. Indemnification.
(a) Indemnification of the Agents. The Company and the
Guarantor, jointly and severally, agree to indemnify and hold harmless
each Agent and each person, if any, who controls such Agent within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act as
follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of an untrue statement
or alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), or the omission
or alleged omission therefrom of a material fact required to be
stated therein or necessary to make the statements therein not
misleading, or arising out of an untrue statement or alleged untrue
statement of a material fact included in any preliminary prospectus
or the Prospectus (or any amendment or supplement thereto), or the
omission or alleged omission therefrom of a material fact necessary
in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate
amount paid in settlement of any litigation, or any investigation
or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or
omission, provided that (subject to Section 8(d) hereof) any such
settlement is effected with the written consent of the Company and
the Guarantor; and
(iii) against any and all expense whatsoever, as incurred
(including the reasonable fees and disbursements of counsel chosen
by such Agent), reasonably incurred in investigating, preparing or
defending against any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under
subparagraph (i) or (ii) above;
provided, however, that this indemnity does not apply to any loss,
liability, claim, damage or expense to the extent arising out of an
untrue statement or omission or alleged untrue statement or omission made
in reliance upon and in conformity with written information furnished to
the Company or the Guarantor by the Agents expressly for use in the
-23-
<PAGE>
Registration Statement (or any amendment thereto) or any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto).
(b) Indemnification of Company, Directors and Officers. Each
Agent severally agrees to indemnify and hold harmless the Company and the
Guarantor, their respective directors, each of the officers who signed
the Registration Statement on behalf of the Company or the Guarantor and
each person, if any, who controls the Company or the Guarantor within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act
against any and all loss, liability, claim, damage and expense described
in the indemnity contained in Section 8(a) hereof, as incurred, but only
with respect to untrue statements or omissions, or alleged untrue
statements or omissions, made in the Registration Statement (or any
amendment thereto) or any preliminary prospectus or the Prospectus (or
any amendment or supplement thereto) in reliance upon and in conformity
with written information furnished to the Company or the Guarantor by the
Agents expressly for use in the Registration Statement (or any amendment
thereto) or such preliminary prospectus or the Prospectus (or any
amendment or supplement thereto).
(c) Actions Against Parties; Notification. Each indemnified
party shall give notice as promptly as reasonably practicable to each
indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder, but failure to so notify an
indemnifying party shall not relieve such indemnifying party from any
liability hereunder to the extent it is not materially prejudiced as a
result thereof and in any event shall not relieve it from any liability
which it may have otherwise than on account of this indemnity agreement.
In the case of parties indemnified pursuant to Section 8(a) hereof,
counsel to the indemnified parties shall be selected by the applicable
Agents and, in the case of parties indemnified pursuant to Section 8(b)
hereof, counsel to the indemnified parties shall be selected by the
Company or the Guarantor. An indemnifying party may participate at its
own expense in the defense of any such action; provided, however, that
counsel to the indemnifying party shall not (except with the consent of
the indemnified party) also be counsel to the indemnified party. In no
event shall the indemnifying parties be liable for fees and expenses of
more than one counsel (in addition to any local counsel) separate from
their own counsel for all indemnified parties in connection with any one
action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or
circumstances.
No indemnifying party shall, without the prior written consent
of the indemnified parties, settle or compromise or consent to the entry
of any judgment with respect to any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened,
or any claim whatsoever in respect of which indemnification or
contribution could be sought under this Section 8 or Section 9 hereof
(whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability
arising out of such litigation, investigation, proceeding or claim and
-24-
<PAGE>
(ii) does not include a statement as to or an admission of fault,
culpability or a failure to act by or on behalf of any indemnified party.
(d) Settlement without Consent if Failure to Reimburse. If
at any time an indemnified party shall have requested an indemnifying
party to reimburse the indemnified party for fees and expenses of
counsel, such indemnifying party agrees that it shall be liable for any
settlement of the nature contemplated by Section 8(a)(ii) effected
without its written consent if (i) such settlement is entered into more
than 45 days after receipt by such indemnifying party of the aforesaid
request, (ii) such indemnifying party shall have received notice of the
terms of such settlement at least 30 days prior to such settlement being
entered into and (iii) such indemnifying party shall not have reimbursed
such indemnified party in accordance with such request prior to the date
of such settlement. Notwithstanding the immediately preceding sentence,
if at any time an indemnified party shall have requested an indemnifying
party to reimburse the indemnified party for fees and expenses of
counsel, an indemnifying party shall not be liable for any settlement of
the nature contemplated by Section 8(a)(ii) effected without its consent
if such indemnifying party (i) reimburses such indemnified party in
accordance with such request to the extent it considers such request to
be reasonable and (ii) provides written notice to the indemnified party
substantiating the unpaid balance as unreasonable, in each case prior to
the date of such settlement.
SECTION 9. Contribution. If the indemnification provided for
in Section 8 hereof is for any reason unavailable to or insufficient to
hold harmless an indemnified party in respect of any losses, liabilities,
claims, damages or expenses referred to therein, then each indemnifying
party shall contribute to the aggregate amount of such losses,
liabilities, claims, damages and expenses incurred by such indemnified
party, as incurred, (i) in such proportion as is appropriate to reflect
the relative benefits received by the Company and the Guarantor, on the
one hand, and the applicable Agents, on the other hand, from the offering
of the Notes that were the subject of the claim for indemnification or
(ii) if the allocation provided by clause (i) is not permitted by
applicable law, in such proportion as is appropriate to reflect not only
the relative benefits referred to in clause (i) above but also the
relative fault of the Company and the Guarantor, on the one hand, and the
applicable Agents, on the other hand, in connection with the statements
or omissions which resulted in such losses, liabilities, claims, damages
or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company and the
Guarantor, on the one hand, and the applicable Agents, on the other hand,
in connection with the offering of the Notes that were the subject of the
claim for indemnification shall be deemed to be in the same respective
proportions as the total net proceeds from the offering of such Notes
(before deducting expenses) received by the Company and the total
discount or commission received by each applicable Agent, as the case may
be, bears to the aggregate initial offering price of such Notes.
-25-
<PAGE>
The relative fault of the Company and the Guarantor, on the
one hand, and the applicable Agents, on the other hand, shall be
determined by reference to, among other things, whether any untrue or
alleged untrue statement of a material fact or omission or alleged
omission to state a material fact relates to information supplied by the
Company or the Guarantor or by the applicable Agents and the parties'
relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
The Company, the Guarantor and the Agents agree that it would
not be just and equitable if contribution pursuant to this Section 9 were
determined by pro rata allocation (even if the applicable Agents were
treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations
referred to above in this Section 9. The aggregate amount of losses,
liabilities, claims, damages and expenses incurred by an indemnified
party and referred to above in this Section 9 shall be deemed to include
any legal or other expenses reasonably incurred by such indemnified party
in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced
or threatened, or any claim whatsoever based upon any applicable untrue
or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 9, (i) no Agent
shall be required to contribute any amount in excess of the amount by
which the total discount or commission received by such Agent in
connection with the offering of the Notes that were the subject of the
claim for indemnification exceeds the amount of any damages which such
Agent has otherwise been required to pay by reason of any applicable
untrue or alleged untrue statement or omission or alleged omission and
(ii) no person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the 1933 Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. In
addition, in connection with an offering of Notes purchased from the
Company by two or more Agents as principal, the respective obligations of
such Agents to contribute pursuant to this Section 9 are several, and not
joint, in proportion to the aggregate principal amount of Notes that each
such Agent has agreed to purchase from the Company.
For purposes of this Section 9, each person, if any, who
controls an Agent within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall have the same rights to contribution as
such Agent, and each director of the Company or the Guarantor, each
officer of the Company or the Guarantor and each person, if any, who
controls the Company or the Guarantor within the meaning of Section 15 of
the 1933 Act or Section 20 of the 1934 Act shall have the same rights to
contribution as the Company and the Guarantor.
SECTION 10. Payment of Expenses.
The Company and the Guarantor will pay all expenses incident
to the performance of their respective obligations under this Agreement,
including:
-26-
<PAGE>
(a) The preparation, filing, printing and delivery of the
Registration Statement as originally filed and all amendments
thereto and any preliminary prospectus, the Prospectus and any
amendments or supplements thereto;
(b) The preparation, printing and delivery of this Agreement
and the Indenture;
(c) The preparation, issuance and delivery of the Notes and
the Guarantees, including any fees and expenses relating to the
eligibility and issuance of Notes in book-entry form and the cost
of obtaining CUSIP or other identification numbers for the Notes;
(d) The fees and disbursements of the Company's and the
Guarantor's accountants, counsel and other advisors or agents
(including any calculation agent or exchange rate agent) and of the
Trustee and its counsel;
(e) The reasonable fees and disbursements of counsel to the
Agents incurred in connection with the establishment of the Program
and incurred from time to time in connection with the transactions
contemplated hereby;
(f) The fees charged by nationally recognized statistical
rating organizations for the rating of the Program and the Notes;
(g) The fees and expenses incurred in connection with any
listing of Notes on a securities exchange;
(h) The filing fees incident to, and the reasonable fees and
disbursements of counsel to the Agents in connection with, the
review, if any, by the National Association of Securities Dealers,
Inc. (the "NASD"); and
(i) Any advertising and other out-of-pocket expenses of the
Agents incurred with the approval of the Company and the Guarantor.
SECTION 11. Representations, Warranties and Agreements to
Survive Delivery.
All representations, warranties and agreements contained in
this Agreement or in certificates of officers of the Company or the
Guarantor or any of its other subsidiaries submitted pursuant hereto or
thereto shall remain operative and in full force and effect, regardless
of any investigation made by or on behalf of the Agents or any con-
trolling person of an Agent, or by or on behalf of the Company or the
Guarantor, and shall survive each delivery of and payment for the Notes.
SECTION 12. Termination.
(a) Termination of this Agreement. This Agreement (excluding
any agreement by one or more Agents to purchase Notes from the Company as
principal) may be terminated for any reason, at any time by the Company,
-27-
<PAGE>
the Guarantor or an Agent, as to itself, upon the giving of 30 days'
prior written notice of such termination to the other parties hereto.
(b) Termination of Agreement to Purchase Notes as Principal.
The applicable Agents may terminate any agreement by such Agents to
purchase Notes from the Company as principal, immediately upon notice to
the Company, at any time prior to the Settlement Date relating thereto,
if (i) there has been, since the date of such agreement or since the
respective dates as of which information is given in the Prospectus, any
material adverse change in the condition, financial or otherwise, or in
the earnings, business affairs or business prospects of the Company or
the Guarantor and its subsidiaries considered as one enterprise, whether
or not arising in the ordinary course of business, or (ii) there has
occurred any material adverse change in the financial markets in the
United States or, if such Notes are denominated and/or payable in, or
indexed to, one or more foreign currencies or currency units, in the
international financial markets, or any outbreak of hostilities or
escalation thereof or other calamity or crisis or any change or
development or event involving a prospective change in national or
international political, financial or economic conditions, in each case
the effect of which is such as to make it, in the judgment of such
Agents, impracticable to market such Notes or enforce contracts for the
sale of such Notes, or (iii) trading in any securities of the Company or
the Guarantor has been suspended or materially limited by the Commission
or a national securities exchange, or if trading generally on the New
York Stock Exchange or the American Stock Exchange or in the Nasdaq
National Market has been suspended or materially limited, or minimum or
maximum prices for trading have been fixed, or maximum ranges for prices
have been required, by either of said exchanges or by such system or by
order of the Commission, the NASD or any other governmental authority, or
(iv) a banking moratorium has been declared by either Federal or New York
authorities or by the relevant authorities in the country or countries of
origin of any foreign currency or currency unit in which such Notes are
denominated and/or payable, or (v) the rating assigned by any nationally
recognized statistical rating organization to the Program or any debt
securities (including the Notes) of the Company or the Guarantor as of
the date of such agreement shall have been lowered or withdrawn since
that date or if any such rating organization shall have publicly
announced that it has under surveillance or review its rating of the
Program or any such debt securities, or (vi) there shall have come to the
attention of such Agents any facts that would cause such Agents to
believe that the Prospectus, at the time it was required to be delivered
to a purchaser of such Notes, included an untrue statement of a material
fact or omitted to state a material fact necessary in order to make the
statements therein, in the light of the circumstances existing at the
time of such delivery, not misleading.
(c) General. In the event of any such termination, neither
party will have any liability to the other party hereto, except that (i)
the Agents shall be entitled to any commissions earned in accordance with
the third paragraph of Section 3(b) hereof, (ii) if at the time of
termination (a) any Agent shall own any Notes purchased by it from the
Company as principal or (b) an offer to purchase any of the Notes has
-28-
<PAGE>
been accepted by the Company but the time of delivery to the purchaser or
his agent of such Notes relating thereto has not occurred, the covenants
set forth in Sections 4 and 7 hereof shall remain in effect until such
Notes are so resold or delivered, as the case may be, and (iii) the
covenant set forth in Section 4(i) hereof, the provisions of Section 10
hereof, the indemnity and contribution agreements set forth in Sections 8
and 9 hereof, and the provisions of Sections 11, 14 and 15 hereof shall
remain in effect.
SECTION 13. Notices.
Unless otherwise provided herein, all notices required under
the terms and provisions hereof shall be in writing, either delivered by
hand, by mail or by telex, telecopier or telegram, and any such notice
shall be effective when received at the address specified below.
If to the Company:
KeySpan Gas East Corporation
One MetroTech Center
Brooklyn, New York 11201
Attention: Treasurer
Telecopy No.: (718) 858-7105
with a copy to the Guarantor.
If to the Guarantor:
KeySpan Corporation
One MetroTech Center
Brooklyn, New York 11201
Attention: General Counsel
Telecopy No.: (718) 858-7105
with a copy to the Company.
If to the Agents:
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
World Financial Center
North Tower - 15th Floor
New York, New York 10281-1315
Attention: MTN Product Management
Telecopy No.: (212) 449-2234
Chase Securities Inc.
270 Park Avenue
8th Floor
New York, New York 10017
Attention: Medium-Term Note Desk
Telecopy No.: (212) 834-6081
-29-
<PAGE>
J.P. Morgan Securities Inc.
60 Wall Street, 5th Floor
New York, NY 10260
Attention: Transaction Execution Group
Telecopy No.: (212) 648-5151
or at such other address as such party may designate from time to time by
notice duly given in accordance with the terms of this Section 13.
SECTION 14. Parties.
This Agreement shall inure to the benefit of and be binding
upon the Agents, the Company and the Guarantor and their respective
successors. Nothing expressed or mentioned in this Agreement is intended
or shall be construed to give any person, firm or corporation, other than
the parties hereto and their respective successors and the controlling
persons, officers and directors referred to in Sections 8 and 9 hereof
and their heirs and legal representatives, any legal or equitable right,
remedy or claim under or in respect of this Agreement or any provision
herein contained. This Agreement and all conditions and provisions
hereof are intended to be for the sole and exclusive benefit of the
parties hereto and their respective successors, and said controlling
persons, officers and directors and their heirs and legal
representatives, and for the benefit of no other person, firm or
corporation. No purchaser of Notes shall be deemed to be a successor by
reason merely of such purchase.
SECTION 15. GOVERNING LAW; FORUM.
THIS AGREEMENT AND ALL THE RIGHTS AND OBLIGATIONS OF THE
PARTIES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF NEW YORK. ANY SUIT, ACTION OR PROCEEDING BROUGHT BY THE
COMPANY OR THE GUARANTOR AGAINST ANY AGENT IN CONNECTION WITH OR ARISING
UNDER THIS AGREEMENT SHALL BE BROUGHT SOLELY IN THE STATE OR FEDERAL
COURT OF APPROPRIATE JURISDICTION LOCATED IN THE BOROUGH OF MANHATTAN,
THE CITY OF NEW YORK.
SECTION 16. Effect of Headings.
The Article and Section headings herein are for convenience
only and shall not affect the construction hereof.
SECTION 17. Counterparts.
This Agreement may be executed in one or more counterparts
and, if executed in more than one counterpart, the executed counterparts
hereof shall constitute a single instrument.
-30-
<PAGE>
If the foregoing is in accordance with the Agents' under-
standing of our agreement, please sign and return to the Company a
counterpart hereof, whereupon this Distribution Agreement, along with all
counterparts, will become a binding agreement among the Agents, the
Company and the Guarantor in accordance with its terms.
Very truly yours,
KEYSPAN GAS EAST CORPORATION
By: ________________________________
Name:
Title:
KEYSPAN CORPORATION
By: ________________________________
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By:___________________________________
Authorized Signatory
CHASE SECURITIES INC.
By:___________________________________
Authorized Signatory
J.P. MORGAN SECURITIES INC.
By:___________________________________
-31-
<PAGE>
SCHEDULE A
As compensation for the services of the Agents hereunder, the
Company shall pay the applicable Agent, on a discount basis, a commission
for the sale of each Note equal to the principal amount of such Note
multiplied by the appropriate percentage set forth below:
PERCENT OF
MATURITY RANGES PRINCIPAL AMOUNT
- --------------- ----------------
From 9 months to less than 1 year .125%
From 1 year to less than 18 months .150
From 18 months to less than 2 years .200
From 2 years to less than 3 years .250
From 3 years to less than 4 years .350
From 4 years to less than 5 years .450
From 5 years to less than 6 years .500
From 6 years to less than 7 years .550
From 7 years to less than 10 years .600
From 10 years to less than 15 years .625
From 15 years to less than 20 years .700
From 20 years to 30 years .750
Greater than 30 years. . . . . . . . . . . . . . To be negotiated
-1-
<PAGE>
EXHIBIT A
PRICING TERMS
Principal Amount: $_______
(or principal amount of foreign currency or currency unit)
Interest Rate or Formula:
If Fixed Rate Note,
Interest Rate:
Interest Payment Dates:
If Floating Rate Note,
Interest Rate Basis(es):
If LIBOR,
- LIBOR Reuters Page:
- LIBOR Telerate Page:
Designated LIBOR Currency:
If CMT Rate,
Designated CMT Telerate Page:
If Telerate Page 7051:
If Telerate Page 7052:
- Weekly Average
- Monthly Average
Designated CMT Maturity Index:
If Prime Rate,
- Prime Rate-- Major Ban
- Prime Rate-- H.15
Index Maturity:
Spread and/or Spread Multiplier, if any:
Initial Interest Rate, if any:
Initial Interest Reset Date:
Interest Reset Dates:
Interest Payment Dates:
Maximum Interest Rate, if any:
Minimum Interest Rate, if any:
Fixed Rate Commencement Date, if any:
Fixed Interest Rate, if any:
Day Count Convention:
Calculation Agent:
Regular Record Date:
Redemption Provisions:
Initial Redemption Date:
Initial Redemption Percentage:
Annual Redemption Percentage Reduction, if any:
Repayment Provisions:
Optional Repayment Date(s):
-1-
<PAGE>
Original Issue Date:
Stated Maturity Date:
Specified Currency:
Exchange Rate Agent:
Authorized Denomination:
Purchase Price: ___%, plus accrued interest, if any, from ________
Price to Public: ___%, plus accrued interest, if any, from _______
Issue Price:
Settlement Date and Time:
Additional/Other Terms:
Also, in connection with the purchase of Notes from the Company by one or
more Agents as principal, agreement as to whether the following will be
required:
Officers' Certificates pursuant to Section 7(b) of the Distribution
Agreement.
Legal Opinion pursuant to Section 7(c) of the Distribution
Agreement.
Comfort Letter pursuant to Section 7(d) of the Distribution
Agreement.
-2-
<PAGE>
EXHIBIT B-1
FORM OF OPINION OF GENERAL COUNSEL OR
DEPUTY GENERAL COUNSEL OF GUARANTOR
TO BE DELIVERED PURSUANT TO SECTION 5(b)(1)
(1) The Guarantor has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
New York.
(2) The Guarantor has corporate power and authority to own,
lease and operate its properties and to conduct its business as described
in the Prospectus and to enter into the Distribution Agreement and
consummate the transactions contemplated in the Prospectus.
(3) The Guarantor is duly qualified as a foreign corporation
to transact business and is in good standing in each jurisdiction in
which such qualification is required, whether by reason of the ownership
or leasing of property or the conduct of business, except where the
failure to so qualify or be in good standing would not result in a
Material Adverse Effect.
(4) All of the issued and outstanding shares of capital
stock of the Guarantor have been duly authorized and are validly issued,
fully paid and non-assessable; and none of the outstanding shares of
capital stock of the Guarantor were issued in violation of preemptive or
other similar rights of any securityholder of the Guarantor.
(5) Each Significant Subsidiary has been duly incorporated
and is validly existing as a corporation or a limited liability company,
as the case may be, in good standing under the laws of the jurisdiction
of its incorporation or organization, has corporate power and authority
to own, lease and operate its properties and to conduct its business as
described in the Prospectus and is duly qualified as a foreign
corporation or limited liability company, as the case may be, to transact
business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing
of property or the conduct of business, except where the failure to so
qualify or be in good standing would not result in a Material Adverse
Effect; except as stated in the Prospectus, all of the issued and
outstanding shares of capital stock of each Significant Subsidiary has
been duly authorized and are validly issued, fully paid and non-
assessable and, to the best of my knowledge, are owned by the Guarantor,
directly or through subsidiaries, free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or equity; and none
of the outstanding shares of capital stock of any Significant Subsidiary
were issued in violation of preemptive or other similar rights of any
-1-
<PAGE>
securityholder of such Significant Subsidiary. To the best of my
knowledge, the Company does not have any subsidiaries.
(6) The Distribution Agreement has been duly authorized,
executed and delivered by the Company and the Guarantor.
(7) The Indenture has been duly authorized, executed and
delivered by the Company and the Guarantor and (assuming due
authorization, execution and delivery thereof by the Trustee) constitutes
a valid and legally binding agreement of the Company and the Guarantor,
enforceable against the Company and the Guarantor in accordance with its
terms, except as the enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting
the enforcement of creditors' rights generally or by general equitable
principles (regardless of whether enforcement is considered in a
proceeding in equity or at law) and an implied covenant of good faith and
fair dealing, and except further as enforcement thereof may be limited by
requirements that a claim with respect to any debt securities issued
under the Indenture that are payable in a foreign currency or currency
unit (or a foreign currency or currency unit judgment in respect of such
claim) be converted into U.S. dollars at a rate of exchange prevailing on
a date determined pursuant to applicable law or by governmental authority
to limit, delay or prohibit the making of payments outside the United
States.
(8) The Notes have been duly authorized by the Company for
offer, sale, issuance and delivery pursuant to the Distribution Agreement
and, when the terms of the Notes and of their issue and sale have been
duly established in accordance with the Indenture and the Distribution
Agreement so as not to violate any applicable law or agreement or
instrument then binding on the Company and, when the Notes are issued,
authenticated and delivered in the manner provided for in the Indenture
and delivered against payment of the consideration therefor, the Notes
will constitute valid and legally binding obligations of the Company,
enforceable against the Company in accordance with their terms, except as
enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights generally or by general equitable prin-
ciples (regardless of whether enforcement is considered in a proceeding
in equity or at law) and an implied covenant of good faith and fair
dealing, and except further as enforcement thereof may be limited by
requirements that a claim with respect to any Notes payable in a foreign
currency or currency unit (or a foreign currency or currency unit
judgment in respect of such claim) be converted into U.S. dollars at a
rate of exchange prevailing on a date determined pursuant to applicable
law or by governmental authority to limit, delay or prohibit the making
of payments outside the United States; and the Notes, in the forms
certified on the date hereof, are in the form contemplated by, and each
registered holder thereof will be entitled to the benefits of, the
Indenture.
(9) The Guarantees have been duly authorized by the
Guarantor and, when the Notes are issued, authenticated and delivered in
-2-
<PAGE>
the manner provided for in the Indenture and delivered against payment of
the consideration therefor, the Guarantees will constitute valid and
legally binding obligations of the Guarantor, enforceable against the
Guarantor in accordance with their terms, except as enforcement thereof
may be limited by bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting the enforcement of creditors' rights
generally or by general equitable principles (regardless of whether
enforcement is considered in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing, and except further as
enforcement thereof may be limited by requirements that a claim with
respect to any Notes payable in a foreign currency or currency unit (or a
foreign currency or currency unit judgment in respect of such claim) be
converted into U.S. dollars at a rate of exchange prevailing on a date
determined pursuant to applicable law or by governmental authority to
limit, delay or prohibit the making of payments outside the United
States; the Guarantees, in the forms certified on the date hereof, are in
the form contemplated by the Indenture; and each holder of Notes will be
entitled to the benefits of the Guarantees.
(10) The Indenture, the Notes, and the Guarantees, in the
forms certified on the date hereof, conform in all material respects to
the statements relating thereto contained in the Prospectus and are in
substantially the form filed or incorporated by reference, as the case
may be, as exhibits to the Registration Statement.
(11) The information in the Prospectus under "Description of
Securities" and "Description of Notes" or any caption purporting to cover
such matters, the information in the Annual Report on Form 10-K under
"Legal Proceedings" and "Business--Regulation and Rate Matters" and the
information in the Registration Statement under Item 15, to the extent
that such information constitutes matters of law, summaries of legal
matters, the Company's or the Guarantor's charter and bylaws or legal
proceedings, or legal conclusions, has been reviewed by me and is correct
in all material respects.
(12) To the best of my knowledge, none of the Company, or the
Guarantor or any of its other subsidiaries is in violation of its charter
or by-laws or operating agreement, as the case may be, and no default by
the Company or the Guarantor or any of its other subsidiaries exists in
the due performance or observance of any material obligation, agreement,
covenant or condition contained in any Agreement and Instrument that is
described or referred to in the Registration Statement or the Prospectus
or filed or incorporated by reference as an exhibit to the Registration
Statement.
(13) The execution, delivery and performance of the
Distribution Agreement, the Indenture, the Notes and the Guarantees and
any other agreement or instrument entered into or issued or to be entered
into or issued by the Company or the Guarantor in connection with the
transactions contemplated in the Prospectus, the consummation of the
transactions contemplated in the Prospectus (including the issuance and
sale of the Notes and the use of the proceeds therefrom as described in
the Prospectus) and the compliance by the Company and the Guarantor with
-3-
<PAGE>
their respective obligations thereunder have been duly authorized by all
necessary corporate action and do not and will not, whether with or
without the giving of notice or passage of time or both, conflict with or
constitute a breach of, or default or Repayment Event under, or result in
the creation or imposition of any lien, charge or encumbrance upon any
assets, properties or operations of the Company or the Guarantor or any
of its other subsidiaries pursuant to, any Agreement and Instrument known
to me, nor will such action result in any violation of the provisions of
the charter or by-laws of the Company or the Guarantor or any of its
other subsidiaries or any applicable law, statute, rule, regulation,
judgment, order, writ or decree, known to me, of any government,
government instrumentality or court, domestic or foreign, having
jurisdiction over the Company or the Guarantor or any of its other
subsidiaries or any of their assets, properties or operations.
(14) To the best of my knowledge, except as otherwise
disclosed in the Registration Statement or the Prospectus, there is not
pending or threatened any action, suit, proceeding, inquiry or
investigation to which the Company or the Guarantor or any of its other
subsidiaries is a party or to which the assets, properties or operations
of the Company or the Guarantor or any of its other subsidiaries is
subject, before or brought by any court or governmental agency or body,
domestic or foreign, which might reasonably be expected to result in a
Material Adverse Effect or which might reasonably be expected to
materially and adversely affect the assets, properties or operations of
the Company or the Guarantor or any of its other subsidiaries, the
performance by the Company or the Guarantor of its respective obligations
under the Distribution Agreement, the Indenture, the Notes or the
Guarantees or the consummation of the transactions contemplated in the
Prospectus.
(15) All descriptions in the Prospectus of contracts and
other documents to which the Company or the Guarantor or any of its other
subsidiaries are a party are accurate in all material respects; and, to
the best of my knowledge, there are no franchises, contracts, indentures,
mortgages, loan agreements, notes, leases or other instruments required
to be described or referred to in the Registration Statement or to be
filed as exhibits to the Registration Statement other than those
described or referred to therein or filed or incorporated by reference as
exhibits thereto, and the descriptions thereof or references thereto are
correct in all material respects.
(16) To the best of my knowledge, there are no statutes or
regulations that are required to be described in the Prospectus that are
not described as required.
(17) The Registration Statement has been declared effective
under the 1933 Act; any required filing of the Prospectus pursuant to
Rule 424(b) has been made in the manner and within the time period
required by Rule 424(b); and to the best of my knowledge, no stop order
suspending the effectiveness of the Registration Statement has been
issued under the 1933 Act and no proceedings for that purpose have been
initiated or are pending or threatened by the Commission.
-4-
<PAGE>
(18) The Indenture has been duly qualified under the 1939
Act.
(19) No filing with, or approval, authorization, consent,
license, registration, qualification, order or decree of, any court or
governmental authority or agency, domestic or foreign, is necessary or
required for the due authorization, execution and delivery by the Company
or the Guarantor of the Distribution Agreement, the Indenture, the Notes
and the Guarantees, as applicable, or for the performance by the Company
or the Guarantor of the transactions contemplated in the Distribution
Agreement, the Indenture or the Prospectus, except such as have been
previously made, obtained or rendered, as applicable.
(20) The Guarantor, pursuant to an order of the Commission,
is exempt from all provisions of the Public Utility Holding Company Act
of 1935, as amended, except for Section 9(a)(ii) thereof, unless
otherwise disclosed in the Registration Statement or the Prospectus.
Nothing has come to my attention that would lead me to
believe that the Registration Statement or any post-effective amendment
thereto (except for financial statements, supporting schedules and other
financial data included therein or omitted therefrom and for the Form
T-1, as to which I make no statement), at the time the Registration
Statement or any post-effective amendment thereto became effective or at
the date of any agreement of the applicable Agents to purchase Notes from
the Company as principal, contained an untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading or that the
Prospectus or any amendment or supplement thereto (except for financial
statements, supporting schedules and other financial data included
therein or omitted therefrom, as to which I make no statement), at the
time the Prospectus was issued, at the time any such amended or
supplemented prospectus was issued or at the date hereof, included or
includes an untrue statement of a material fact or omitted or omits to
state a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading.
In rendering my opinion, I may rely as to matters of
fact (but not as to legal conclusions), to the extent they deem proper,
on certificates of responsible officers of the Company, the Guarantor and
public officials.
-5-
<PAGE>
EXHIBIT B-2
FORM OF OPINION OF GENERAL COUNSEL OR
DEPUTY GENERAL COUNSEL OF GUARANTOR
TO BE DELIVERED PURSUANT TO SECTION 7(c)
(1) The Guarantor has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
New York.
(2) The Guarantor has corporate power and authority to own,
lease and operate its properties and to conduct its business as described
in the Prospectus and to enter into the Distribution Agreement and
consummate the transactions contemplated in the Prospectus.
(3) The Guarantor is duly qualified as a foreign corporation
to transact business and is in good standing in each jurisdiction in
which such qualification is required, whether by reason of the ownership
or leasing of property or the conduct of business, except where the
failure to so qualify or be in good standing would not result in a
Material Adverse Effect.
(4) All of the issued and outstanding shares of capital
stock of the Guarantor have been duly authorized and are validly issued,
fully paid and non-assessable; and none of the outstanding shares of
capital stock of the Guarantor were issued in violation of preemptive or
other similar rights of any securityholder of the Guarantor.
(5) Each Significant Subsidiary has been duly incorporated
and is validly existing as a corporation or limited liability company, as
the case may be, in good standing under the laws of the jurisdiction of
its incorporation or organization, has corporate power and authority to
own, lease and operate its properties and to conduct its business as
described in the Prospectus and is duly qualified as a foreign
corporation or limited liability company, as the case may be, to transact
business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing
of property or the conduct of business, except where the failure to so
qualify or be in good standing would not result in a Material Adverse
Effect; except as stated in the Prospectus, all of the issued and
outstanding shares of capital stock of each Significant Subsidiary has
been duly authorized and are validly issued, fully paid and non-
assessable and, to the best of my knowledge, are owned by the Guarantor,
directly or through subsidiaries, free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or equity; and none
of the outstanding shares of capital stock of any Significant Subsidiary
were issued in violation of preemptive or other similar rights of any
securityholder of such Significant Subsidiary. To the best of my
knowledge, the Company does not have any subsidiaries.
-1-
<PAGE>
(6) The Distribution Agreement has been duly authorized,
executed and delivered by the Company and the Guarantor.
(7) The Indenture has been duly authorized, executed and
delivered by the Company and the Guarantor and (assuming due
authorization, execution and delivery thereof by the Trustee) constitutes
a valid and legally binding agreement of the Company and the Guarantor,
enforceable against the Company and the Guarantor in accordance with its
terms, except as the enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting
the enforcement of creditors' rights generally or by general equitable
principles (regardless of whether enforcement is considered in a
proceeding in equity or at law) and an implied covenant of good faith and
fair dealing, and except further as enforcement thereof may be limited by
requirements that a claim with respect to any debt securities issued
under the Indenture that are payable in a foreign currency or currency
unit (or a foreign currency or currency unit judgment in respect of such
claim) be converted into U.S. dollars at a rate of exchange prevailing on
a date determined pursuant to applicable law or by governmental authority
to limit, delay or prohibit the making of payments outside the United
States.
(8) The Notes have been duly authorized by the Company for
offer, sale, issuance and delivery pursuant to the Distribution Agreement
and, when the terms of the Notes and of their issue and sale have been
duly established in accordance with the Indenture and the Distribution
Agreement so as not to violate any applicable law or agreement or
instrument then binding on the Company and, when the Notes are issued,
authenticated and delivered in the manner provided for in the Indenture
and delivered against payment of the consideration therefor, the Notes
will constitute valid and legally binding obligations of the Company,
enforceable against the Company in accordance with their terms, except as
enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights generally or by general equitable prin-
ciples (regardless of whether enforcement is considered in a proceeding
in equity or at law) and an implied covenant of good faith and fair
dealing, and except further as enforcement thereof may be limited by
requirements that a claim with respect to any Notes payable in a foreign
currency or currency unit (or a foreign currency or currency unit
judgment in respect of such claim) be converted into U.S. dollars at a
rate of exchange prevailing on a date determined pursuant to applicable
law or by governmental authority to limit, delay or prohibit the making
of payments outside the United States; and the Notes, in the forms
certified on the date hereof, are in the form contemplated by, and each
registered holder thereof will be entitled to the benefits of, the
Indenture.
(9) The Guarantees have been duly authorized by the
Guarantor and, when the Notes are issued, authenticated and delivered in
the manner provided for in the Indenture and delivered against payment of
the consideration therefor, the Guarantees will constitute valid and
legally binding obligations of the Guarantor, enforceable against the
-2-
<PAGE>
Guarantor in accordance with their terms, except as enforcement thereof
may be limited by bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting the enforcement of creditors' rights
generally or by general equitable principles (regardless of whether
enforcement is considered in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing, and except further as
enforcement thereof may be limited by requirements that a claim with
respect to any Notes payable in a foreign currency or currency unit (or a
foreign currency or currency unit judgment in respect of such claim) be
converted into U.S. dollars at a rate of exchange prevailing on a date
determined pursuant to applicable law or by governmental authority to
limit, delay or prohibit the making of payments outside the United
States; the Guarantees, in the forms certified on the date hereof, are in
the form contemplated by the Indenture; and each holder of Notes will be
entitled to the benefits of the Guarantees.
(10) The Indenture, the Notes, and the Guarantees, in the
forms certified on the date hereof, conform in all material respects to
the statements relating thereto contained in the Prospectus and are in
substantially the form filed or incorporated by reference, as the case
may be, as exhibits to the Registration Statement.
(11) The information in the Prospectus under "Description of
Securities" and "Description of Notes" or any caption purporting to cover
such matters, the information in the Annual Report on Form 10-K under
"Legal Proceedings" and "Business--Regulation and Rate Matters" and the
information in the Registration Statement under Item 15, to the extent
that such information constitutes matters of law, summaries of legal
matters, the Company's or the Guarantor's charter and bylaws or legal
proceedings, or legal conclusions, has been reviewed by me and is correct
in all material respects.
(12) To the best of my knowledge, none of the Company, or the
Guarantor or any of its other subsidiaries is in violation of its charter
or by-laws or operating agreement, as the case may be, and no default by
the Company or the Guarantor or any of its other subsidiaries exists in
the due performance or observance of any material obligation, agreement,
covenant or condition contained in any Agreement and Instrument that is
described or referred to in the Registration Statement or the Prospectus
or filed or incorporated by reference as an exhibit to the Registration
Statement.
(13) The execution, delivery and performance of the
Distribution Agreement, the Indenture, the Notes and the Guarantees and
any other agreement or instrument entered into or issued or to be entered
into or issued by the Company or the Guarantor in connection with the
transactions contemplated in the Prospectus, the consummation of the
transactions contemplated in the Prospectus (including the issuance and
sale of the Notes and the use of the proceeds therefrom as described in
the Prospectus) and the compliance by the Company and the Guarantor with
their respective obligations thereunder have been duly authorized by all
necessary corporate action and do not and will not, whether with or
without the giving of notice or passage of time or both, conflict with or
-3-
<PAGE>
constitute a breach of, or default or Repayment Event under, or result in
the creation or imposition of any lien, charge or encumbrance upon any
assets, properties or operations of the Company or the Guarantor or any
of its other subsidiaries pursuant to, any Agreement and Instrument known
to me, nor will such action result in any violation of the provisions of
the charter or by-laws of the Company or the Guarantor or any of its
other subsidiaries or any applicable law, statute, rule, regulation,
judgment, order, writ or decree, known to me, of any government,
government instrumentality or court, domestic or foreign, having
jurisdiction over the Company or the Guarantor or any of its other
subsidiaries or any of their assets, properties or operations.
(14) To the best of my knowledge, except as otherwise
disclosed in the Registration Statement or the Prospectus, there is not
pending or threatened any action, suit, proceeding, inquiry or
investigation to which the Company or the Guarantor or any of its other
subsidiaries is a party or to which the assets, properties or operations
of the Company or the Guarantor or any of its other subsidiaries is
subject, before or brought by any court or governmental agency or body,
domestic or foreign, which might reasonably be expected to result in a
Material Adverse Effect or which might reasonably be expected to
materially and adversely affect the assets, properties or operations of
the Company or the Guarantor or any of its other subsidiaries, the
performance by the Company or the Guarantor of its respective obligations
under the Distribution Agreement, the Indenture, the Notes or the
Guarantees or the consummation of the transactions contemplated in the
Prospectus.
(15) All descriptions in the Prospectus of contracts and
other documents to which the Company or the Guarantor or any of its other
subsidiaries are a party are accurate in all material respects; and, to
the best of my knowledge, there are no franchises, contracts, indentures,
mortgages, loan agreements, notes, leases or other instruments required
to be described or referred to in the Registration Statement or to be
filed as exhibits to the Registration Statement other than those
described or referred to therein or filed or incorporated by reference as
exhibits thereto, and the descriptions thereof or references thereto are
correct in all material respects.
(16) To the best of my knowledge, there are no statutes or
regulations that are required to be described in the Prospectus that are
not described as required.
(17) The Registration Statement has been declared effective
under the 1933 Act; any required filing of the Prospectus pursuant to
Rule 424(b) has been made in the manner and within the time period
required by Rule 424(b); and to the best of my knowledge, no stop order
suspending the effectiveness of the Registration Statement has been
issued under the 1933 Act and no proceedings for that purpose have been
initiated or are pending or threatened by the Commission.
(18) The Registration Statement and the Prospectus, excluding
the documents incorporated by reference therein, and each amendment or
-4-
<PAGE>
supplement to the Registration Statement and Prospectus, excluding the
documents incorporated by reference therein, as of their respective
effective or issue dates (other than the financial statements and
supporting schedules included therein or omitted therefrom and the
Trustee's Statement of Eligibility on Form T-1 (the "Form T-1"), as to
which no opinion is expressed), complied as to form in all material
respects with the requirements of the 1933 Act and the 1933 Act
Regulations.
(19) The documents incorporated by reference in the
Prospectus (other than the financial statements and supporting schedules
included therein or omitted therefrom, as to which no opinion is
expressed), when they were filed with the Commission, complied as to form
in all material respects with the requirements of the 1934 Act and the
1934 Act Regulations.
(20) The Indenture has been duly qualified under the 1939
Act.
(21) No filing with, or approval, authorization, consent,
license, registration, qualification, order or decree of, any court or
governmental authority or agency, domestic or foreign, is necessary or
required for the due authorization, execution and delivery by the Company
or the Guarantor of the Distribution Agreement, the Indenture, the Notes
and the Guarantees, as applicable, or for the performance by the Company
or the Guarantor of the transactions contemplated in the Distribution
Agreement, the Indenture or the Prospectus, except such as have been
previously made, obtained or rendered, as applicable.
(22) The Guarantor, pursuant to an order of the Commission,
is exempt from all provisions of the Public Utility Holding Company Act
of 1935, as amended, except for Section 9(a)(ii) thereof, except as
otherwise disclosed in the Registration Statement or Prospectus.
Nothing has come to my attention that would lead me to
believe that the Registration Statement or any post-effective amendment
thereto (except for financial statements, supporting schedules and other
financial data included therein or omitted therefrom and for the Form
T-1, as to which I make no statement), at the time the Registration
Statement or any post-effective amendment thereto became effective or at
the date of any agreement of the applicable Agents to purchase Notes from
the Company as principal, contained an untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading or that the
Prospectus or any amendment or supplement thereto (except for financial
statements, supporting schedules and other financial data included
therein or omitted therefrom, as to which I make no statement), at the
time the Prospectus was issued, at the time any such amended or
supplemented prospectus was issued or at the date hereof, included or
includes an untrue statement of a material fact or omitted or omits to
state a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading.
-5-
<PAGE>
In rendering my opinion, I may rely as to matters of
fact (but not as to legal conclusions), to the extent they deem proper,
on certificates of responsible officers of the Company, the Guarantor and
public officials.
-6-
<PAGE>
EXHIBIT C
FORM OF OPINION OF COMPANY'S AND GUARANTOR'S COUNSEL
TO BE DELIVERED PURSUANT TO SECTION 5(b)(2)
(1) The Registration Statement and the Prospectus, excluding the
documents incorporated by reference therein, and each amendment or
supplement to the Registration Statement and Prospectus, excluding the
documents incorporated by reference therein, as of their respective
effective or issue dates (other than the financial statements and
supporting schedules included therein or omitted therefrom and the
Trustee's Statement of Eligibility on Form T-1 (the "Form T-1"), as to
which no opinion is expressed), complied as to form in all material
respects with the requirements of the 1933 Act and the 1933 Act
Regulations.
(2) The documents incorporated by reference in the Prospectus
(other than the financial statements and supporting schedules included
therein or omitted therefrom, as to which no opinion is expressed), when
they were filed with the Commission, complied as to form in all material
respects with the requirements of the 1934 Act and the 1934 Act
Regulations.
Nothing has come to our attention that would lead us to believe
that the Registration Statement or any post-effective amendment thereto
(except for financial statements, supporting schedules and other
financial data included therein or omitted therefrom and for the Form
T-1, as to which we make no statement), at the time the Registration
Statement or any post-effective amendment thereto became effective or at
the date of any agreement of the applicable Agents to purchase Notes from
the Company as principal, contained an untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading or that the
Prospectus or any amendment or supplement thereto (except for financial
statements, supporting schedules and other financial data included
therein or omitted therefrom, as to which we make no statement), at the
time the Prospectus was issued, at the time any such amended or
supplemented prospectus was issued or at the date hereof, included or
includes an untrue statement of a material fact or omitted or omits to
state a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading.
In rendering our opinion, we may rely as to matters of fact (but
not as to legal conclusions), to the extent they deem proper, on
certificates of responsible officers of the Company, the Guarantor and
public officials.
-7-
<PAGE>
EXHIBIT D
FORM OF ACCOUNTANT'S COMFORT LETTER
PURSUANT TO SECTION 5(d)
We are independent public accountants with respect to the Guarantor and
its subsidiaries within the meaning of the 1933 Act and the 1933 Act
Regulations and:
(i) in our opinion, the audited consolidated financial
statements and the related financial statement schedules examined by
us and included or incorporated by reference in the Registration
Statement and the Prospectus comply as to form in all material
respects with the applicable accounting requirements of the 1933 Act
and the 1933 Act Regulations;
(ii) on the basis of procedures (but not an examination in
accordance with generally accepted auditing standards) consisting of
a reading of the unaudited interim consolidated financial statements
of the Guarantor for the three- month periods ended March 31, 1998
and March 31, 1999, the three- and six-month periods ended June 30,
1998 and June 30, 1999 and the three- and nine-month periods ended
September 30, 1998 and September 30, 1999, included or incorporated
by reference in the Registration Statement and the Prospectus
(collectively, the "10-Q Financials") [, a reading of the latest
available unaudited interim consolidated financial statements of the
Guarantor],<F1> a reading of the minutes of all meetings of the
stockholders and directors of the Guarantor and its subsidiaries and
committees thereof since December 31 of the year covered by the
latest available audited financial statements of the Guarantor,
inquiries of certain officials of the Guarantor and its subsidiaries
responsible for financial and accounting matters, a review of
interim financial information in accordance with standards
established by the American Institute of Certified Public
Accountants in Statement on Auditing Standards No. 71, Interim
Financial Information ("SAS 71"), with respect to the three-month
periods ended March 31, 1998 and March 31, 1999, the three- and six-
month periods ended June 30, 1998 and June 30, 1999 and the three-
and nine-month periods ended September 30, 1998 and September 30,
1999, and such other inquiries and procedures as may be specified in
such letter, nothing came to our attention that caused us to believe
that:
(A) the 10-Q Financials included or incorporated by
reference in the Registration Statement and the Prospectus do
not comply as to form in all material respects with the
applicable accounting requirements of the 1934 Act and the 1934
Act Regulations applicable to unaudited financial statements
included in Form 10-Q or any material modifications should be
made to the 10-Q Financials included or incorporated by
reference in the Registration Statement and the Prospectus for
-1-
<PAGE>
them to be in conformity with generally accepted accounting
principles;
(B) at [_________, 1999 and at]<F2> a specified
date not more than five days prior to the date hereof, there was
any change in the consolidated capital stock of the Guarantor
and its subsidiaries, any increase in the consolidated long-term
debt of the Guarantor and its subsidiaries, or any decrease in
the consolidated net assets or total capitalization of the
Guarantor and its subsidiaries, in each case as compared with
amounts shown in the latest balance sheet included or
incorporated by reference in the Registration Statement and the
Prospectus, except in each case for any changes, decreases or
increases that the Registration Statement and the Prospectus
disclose have occurred or may occur; or
(C) for the period from [_________, 19__ to
_________, 19__ and for the period from]<F3> _________, 19__
to a specified date not more than five days prior to the date
hereof, there was any decrease in total revenues, operating
income or earnings applicable to common stock, in each case as
compared with the comparable period in the preceding year,
except in each case for any decreases that the Registration
Statement and the Prospectus discloses have occurred or may
occur;
(iii) based upon the procedures set forth in clause (ii) above
and a reading of the Selected Financial Data included or
incorporated by reference in the Registration Statement and the
Prospectus and a reading of the financial statements examined by us
from which such data were derived, nothing came to our attention
that caused us to believe that Selected Financial Data derived from
such financial statements included or incorporated by reference in
the Registration Statement and the Prospectus do not comply as to
form in all material respects with the disclosure requirements of
Item 301 of Regulation S-K of the 1933 Act, that the amounts
included in the Selected Financial Data are not in agreement with
the corresponding amounts in the audited consolidated financial
statements examined by us for the respective periods or that the
financial statements not included or incorporated by reference in
the Registration Statement and the Prospectus from which certain of
such data were derived are not in conformity with generally accepted
accounting principles;
(iv) we have compared the information included or
incorporated by reference in the Registration Statement and the
Prospectus under selected captions with the disclosure requirements
of Regulation S-K of the 1933 Act and on the basis of limited
procedures specified herein, nothing came to our attention that
caused us to believe that such information does not comply as to
form in all material respects with the disclosure requirements of
Items 302, 402 and 503(d), respectively, of Regulation S-K;
-2-
<PAGE>
[(v) based upon the procedures set forth in clause (ii)
above, a reading of the latest available unaudited financial
statements of the Guarantor that have not been included or
incorporated by reference in the Registration Statement and the
Prospectus and a review of such financial statements in accordance
with SAS 71, nothing came to our attention that caused us to believe
that the unaudited amounts for ________ for the [most recent period]
do not agree with the amounts set forth in the unaudited
consolidated financial statements for those periods or that such
unaudited amounts were not determined on a basis substantially
consistent with that of the corresponding amounts in the audited
consolidated financial statements;]<F4>
(vi) we are unable to and do not express any opinion on the
Pro Forma Combined Balance Sheet and Statement of Operations
(collectively, the "Pro Forma Statements"), if any, included or
incorporated by reference in the Registration Statement and the
Prospectus or on the pro forma adjustments applied to the historical
amounts included in the Pro Forma Statements; however, for purposes
of this letter we have:
(A) read the Pro Forma Statements;
(B) performed an audit or a review in accordance
with SAS 71, as applicable, of the financial statements to which
the pro forma adjustments were applied;
(C) made inquiries of certain officials of the
Company who have responsibility for financial and accounting
matters about the basis for their determination of the pro forma
adjustments and whether the Pro Forma Statements comply as to
form in all material respects with the applicable accounting
requirements of Rule 11-02 of Regulation S-X; and
(D) proved the arithmetic accuracy of the appli-
cation of the pro forma adjustments to the historical amounts in
the Pro Forma Statements; and
on the basis of such procedures and such other inquiries and
procedures as specified herein, nothing came to our attention that
caused us to believe that the Pro Forma Statements included or
incorporated by reference in the Registration Statement and the
Prospectus do not comply as to form in all material respects with
the applicable requirements of Rule 11-02 of Regulation S-X or that
the pro forma adjustments have not been properly applied to the
historical amounts in the compilation of those statements; and
(vii) in addition to the procedures referred to in clause (ii)
above, we have performed other procedures, not constituting an
audit, with respect to certain amounts, percentages, numerical data
and financial information included or incorporated by reference in
the Registration Statement and the Prospectus, which are specified
herein, and have compared certain of such items with, and have found
-3-
<PAGE>
such items to be in agreement with, the accounting and financial
records of the Company.
-4-
<PAGE>
EXHIBIT E
FORM OF ACCOUNTANT'S LETTER
PURSUANT TO SECTION 5(e)
We are independent public accountants with respect to the Guarantor and
its subsidiaries within the meaning of the 1933 Act and the 1933 Act
Regulations and:
(i) in our opinion, the audited consolidated financial
statements and the related financial statement schedules examined
by us and included or incorporated by reference in the Registration
Statement and the Prospectus comply as to form in all material
respects with the applicable accounting requirements of the 1933 Act
and the 1933 Act Regulations;
(ii) based upon a reading of the Selected Financial Data
included or incorporated by reference in the Registration Statement
and the Prospectus and a reading of the financial statements
examined by us from which such data were derived, nothing came to
our attention that caused us to believe that Selected Financial Data
derived from such financial statements included or incorporated by
reference in the Registration Statement and the Prospectus do not
comply as to form in all material respects with the disclosure
requirements of Item 301 of Regulation S-K of the 1933 Act, that the
amounts included in the Selected Financial Data are not in agreement
with the corresponding amounts in the audited consolidated financial
statements examined by us for the respective periods or that the
financial statements not included or incorporated by reference in
the Registration Statement and the Prospectus from which certain of
such data were derived are not in conformity with generally accepted
accounting principles; and
(iii) we have compared the information included or
incorporated by reference in the Registration Statement and the
Prospectus under selected captions with the disclosure requirements
of Regulation S-K of the 1933 Act and on the basis of limited
procedures specified herein, nothing came to our attention that
caused us to believe that such information does not comply as to
form in all material respects with the disclosure requirements of
Items 302, 402 and 503(d), respectively, of Regulation S-K.
-1-
<PAGE>
____________________
[FN]
<F1> Include if the latest available unaudited financial statements
are more recent than the unaudited financial statements included
or incorporated by reference in the Registration Statement and
the Prospectus.
<F2> If the latest available unaudited financial statements are more
recent than the unaudited financial statements included or
incorporated by reference in the Registration Statement and the
Prospectus, include and insert the date of the latest available
financial statements of the Company.
<F3> If the latest available unaudited financial statements are more
recent than the unaudited financial statements included or
incorporated by reference in the Registration Statement and the
Prospectus, include and insert the period from the end of the
period of the unaudited financial statements included or
incorporated by reference in the Registration Statement and the
Prospectus to the date of the latest available financial
statements of the Company. Even if this first period is
applicable, the second period should run from the date of the
most recent financial statements included or incorporated by
reference in the Registration Statement and the Prospectus, not
from the latest available financial statements of the Company.
<F4> This language should be included when the Registration Statement
and the Prospectus include earnings or other data for a period
after the date of the most recent financial statements included
or incorporated by reference in the Registration Statement and
the Prospectus. The blank should be filled in with a
description of the financial statement item(s) included.
-2-
Exhibit 4-a
- -----------------------------------------------------------------------------
KEYSPAN GAS EAST CORPORATION,
Issuer
and
KEYSPAN CORPORATION,
Guarantor
THE CHASE MANHATTAN BANK,
Trustee
_________________
INDENTURE
Dated as of December 1, 1999
_________________
Guaranteed Debt Securities
- -----------------------------------------------------------------------------
<PAGE>
KEYSPAN GAS EAST CORPORATION
and
KEYSPAN CORPORATION
Reconciliation and tie showing the location in the Indenture dated as of
December 1, 1999 of the provisions inserted pursuant to Sections 310 to
318(a), inclusive, of the Trust Indenture Act of 1939.
Trust Indenture Act Section Indenture Section
Section 310 (a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . 609
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . 609
(a)(3) . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(a)(4) . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 608
. . . . . . . . . . . . . . . . . . . . . . . . 610(d)
(c) . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
Section 311 (a) . . . . . . . . . . . . . . . . . . . . . . 613(a) and 613(c)
(b) . . . . . . . . . . . . . . . . . . . . . 613(b) and 613(c)
(c) . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
Section 312 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 701
. . . . . . . . . . . . . . . . . . . . . . . . 702(a)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . 702(b)
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . 702(c)
Section 313 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 703(a)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . 703(b)
(c) . . . . . . . . . . . . . . . . . . . . . 703(a) and 703(b)
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . 703(d)
Section 314 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 704
(b) . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
(c)(3) . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
Section 315 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 601(a)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 602
. . . . . . . . . . . . . . . . . . . . . . 703(a)(7)
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . 601(b)
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . 601(c)
(d)(1) . . . . . . . . . . . . . . . . . . . . . . . . 601(a)(1)
(d)(2) . . . . . . . . . . . . . . . . . . . . . . . . 601(c)(2)
(d)(3) . . . . . . . . . . . . . . . . . . . . . . . . 601(c)(3)
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 514
Section 316 (a)(1)(A) . . . . . . . . . . . . . . . . . . . . . 502 and 512
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . . 513
(a)(2) . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 508
<PAGE>
Section 317 (a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . 503
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . 504
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1003
Section 318 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107
_________________
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to
be a part of the Indenture.
<PAGE>
TABLE OF CONTENTS
Page
PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE I Definitions and Other Provisions of General Application . . . 2
Section 101. Definitions . . . . . . . . . . . . . . . . . . . . . . . . 2
Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Affiliate . . . . . . . . . . . . . . . . . . . . . . . . . 2
Authenticating Agent . . . . . . . . . . . . . . . . . . . 2
Authorized Newspapers . . . . . . . . . . . . . . . . . . . 3
Bearer Security . . . . . . . . . . . . . . . . . . . . . . 3
Board of Directors . . . . . . . . . . . . . . . . . . . . 3
Board Resolution . . . . . . . . . . . . . . . . . . . . . 3
Business Day . . . . . . . . . . . . . . . . . . . . . . . 3
Certificate of a Firm of Independent Public Accountants . . . 3
Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Commission . . . . . . . . . . . . . . . . . . . . . . . . . 4
Company . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Company Request" and "Company Order" and "Guarantor
Request" and "Guarantor Order . . . . . . . . . . . . . . . 4
Component Currency . . . . . . . . . . . . . . . . . . . . 4
Conversion Event . . . . . . . . . . . . . . . . . . . . . 4
Corporate Trust Office . . . . . . . . . . . . . . . . . . 4
corporation . . . . . . . . . . . . . . . . . . . . . . . . 5
coupon . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Currency Determination Agent . . . . . . . . . . . . . . . 5
Defaulted Interest . . . . . . . . . . . . . . . . . . . . 5
Depositary . . . . . . . . . . . . . . . . . . . . . . . . 5
Determination Notice . . . . . . . . . . . . . . . . . . . 5
Dollars . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Election Date . . . . . . . . . . . . . . . . . . . . . . . 5
Euro-clear . . . . . . . . . . . . . . . . . . . . . . . . 5
Event of Default . . . . . . . . . . . . . . . . . . . . . 5
Exchange Act . . . . . . . . . . . . . . . . . . . . . . . 5
Exchange Date . . . . . . . . . . . . . . . . . . . . . . . 5
Foreign Currency . . . . . . . . . . . . . . . . . . . . . 6
Global Exchange Agent . . . . . . . . . . . . . . . . . . . 6
Global Securities . . . . . . . . . . . . . . . . . . . . . 6
Government Obligations . . . . . . . . . . . . . . . . . . 6
Guarantee . . . . . . . . . . . . . . . . . . . . . . . . . 6
Guarantor . . . . . . . . . . . . . . . . . . . . . . . . . 6
Holder . . . . . . . . . . . . . . . . . . . . . . . . . . 6
i
<PAGE>
Indenture . . . . . . . . . . . . . . . . . . . . . . . . . 6
Indexed Security . . . . . . . . . . . . . . . . . . . . . 7
interest . . . . . . . . . . . . . . . . . . . . . . . . . 7
Interest Payment Date . . . . . . . . . . . . . . . . . . . 7
Judgment Date . . . . . . . . . . . . . . . . . . . . . . . 7
LIBOR . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
LIBOR Currency . . . . . . . . . . . . . . . . . . . . . . 7
LIBOR Security . . . . . . . . . . . . . . . . . . . . . . 7
London Business Day . . . . . . . . . . . . . . . . . . . . 7
Market Exchange Rate . . . . . . . . . . . . . . . . . . . 7
Maturity . . . . . . . . . . . . . . . . . . . . . . . . . 7
Notice of Default . . . . . . . . . . . . . . . . . . . . . 8
Officers' Certificate . . . . . . . . . . . . . . . . . . . 8
Opinion of Counsel . . . . . . . . . . . . . . . . . . . . 8
Outstanding . . . . . . . . . . . . . . . . . . . . . . . . 8
Paying Agent . . . . . . . . . . . . . . . . . . . . . . . 9
Person . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Place of Payment . . . . . . . . . . . . . . . . . . . . . 9
Predecessor Security . . . . . . . . . . . . . . . . . . . 10
Principal Financial Center . . . . . . . . . . . . . . . . 10
Redemption Date . . . . . . . . . . . . . . . . . . . . . . 10
Redemption Price . . . . . . . . . . . . . . . . . . . . . 10
Registered Security . . . . . . . . . . . . . . . . . . . . 10
Regular Record Date . . . . . . . . . . . . . . . . . . . . 10
Responsible Officer . . . . . . . . . . . . . . . . . . . . 10
Securities . . . . . . . . . . . . . . . . . . . . . . . . 10
Security Register . . . . . . . . . . . . . . . . . . . . . 11
series . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Special Record Date . . . . . . . . . . . . . . . . . . . . 11
Stated Maturity . . . . . . . . . . . . . . . . . . . . . . 11
Stock Exchange . . . . . . . . . . . . . . . . . . . . . . 11
Substitute Date . . . . . . . . . . . . . . . . . . . . . . 11
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Trust Indenture Act . . . . . . . . . . . . . . . . . . . . 11
United States . . . . . . . . . . . . . . . . . . . . . . . 12
United States Alien . . . . . . . . . . . . . . . . . . . . 12
Yield to Maturity . . . . . . . . . . . . . . . . . . . . . 12
Section 102. Compliance Certificates and Opinions . . . . . . . . . . . 12
Section 103. Form of Documents Delivered to Trustee . . . . . . . . . . 13
Section 104. Acts of Holders . . . . . . . . . . . . . . . . . . . . . . 13
Section 105. Notices, Etc., to Trustee, Company and Guarantor . . . . . 16
Section 106. Notice to Holders; Waiver . . . . . . . . . . . . . . . . . 16
Section 107. Conflict with Trust Indenture Act . . . . . . . . . . . . . 17
Section 108. Effect of Headings and Table of Contents . . . . . . . . . 17
Section 109. Successors and Assigns . . . . . . . . . . . . . . . . . . 18
Section 110. Separability Clause . . . . . . . . . . . . . . . . . . . . 18
Section 111. Benefits of Indenture . . . . . . . . . . . . . . . . . . . 18
ii
<PAGE>
Section 112. Governing Law . . . . . . . . . . . . . . . . . . . . . . . 18
Section 113. Non-Business Day . . . . . . . . . . . . . . . . . . . . . 18
Section 114. Immunity of Incorporators, Stockholders, Officers and
Directors . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 115. Certain Matters Relating to Currencies . . . . . . . . . . 19
Section 116. Language of Notices, Etc . . . . . . . . . . . . . . . . . 20
ARTICLE II Security Forms . . . . . . . . . . . . . . . . . . . . . . 20
Section 201. Forms of Securities . . . . . . . . . . . . . . . . . . . . 20
Section 202. Forms of Guarantees . . . . . . . . . . . . . . . . . . . . 21
Section 203. Form of Trustee's Certificate of Authentication . . . . . . 21
Section 204. Securities in Global Form . . . . . . . . . . . . . . . . . 21
ARTICLE III The Securities . . . . . . . . . . . . . . . . . . . . . . 22
Section 301. Title; Payment and Terms . . . . . . . . . . . . . . . . . 22
Section 302. Denominations and Currencies . . . . . . . . . . . . . . . 27
Section 303. Execution, Authentication, Delivery and Dating . . . . . . 29
Section 304. Temporary Securities and Exchange of Securities . . . . . . 29
Section 305. Registration, Registration of Transfer and Exchange . . . . 33
Section 306. Mutilated, Destroyed, Lost and Stolen Securities and
Coupons. . . . . . . . . . . . . . . . . . . . . . . . . . 37
Section 307. Payment of Interest; Interest Rights Preserved . . . . . . 39
Section 308. Persons Deemed Owners . . . . . . . . . . . . . . . . . . . 41
Section 309. Cancellation . . . . . . . . . . . . . . . . . . . . . . . 41
Section 310. Computation of Interest . . . . . . . . . . . . . . . . . . 42
Section 311. Currency and Manner of Payments in Respect of Securities . . 42
Section 312. Appointment and Resignation of Currency Determination
Agent. . . . . . . . . . . . . . . . . . . . . . . . . . . 45
ARTICLE IV Satisfaction and Discharge . . . . . . . . . . . . . . . . 46
Section 401. Option to Effect Legal Defeasance or Covenant Defeasance . . 46
Section 402. Legal Defeasance and Discharge . . . . . . . . . . . . . . 46
Section 403. Covenant Defeasance . . . . . . . . . . . . . . . . . . . . 47
Section 404. Conditions to Legal or Covenant Defeasance . . . . . . . . 48
Section 405. Satisfaction and Discharge of Indenture . . . . . . . . . . 49
Section 406. Survival of Certain Obligations . . . . . . . . . . . . . . 50
Section 407. Acknowledgment of Discharge by Trustee . . . . . . . . . . 51
Section 408. Application of Trust Moneys . . . . . . . . . . . . . . . . 51
Section 409. Repayment to the Company or the Guarantor; Unclaimed
Money. . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Section 410. Reinstatement . . . . . . . . . . . . . . . . . . . . . . . 52
ARTICLE V Remedies . . . . . . . . . . . . . . . . . . . . . . . . . 53
iii
<PAGE>
Section 501. Events of Default . . . . . . . . . . . . . . . . . . . . . 53
Section 502. Acceleration of Maturity; Rescission and Annulment . . . . 54
Section 503. Collection of Indebtedness and Suits for Enforcement by
Trustee. . . . . . . . . . . . . . . . . . . . . . . . . . 56
Section 504. Trustee May File Proofs of Claim . . . . . . . . . . . . . 57
Section 505. Trustee May Enforce Claims Without Possession of
Securities or Coupons. . . . . . . . . . . . . . . . . . . 58
Section 506. Application of Money Collected . . . . . . . . . . . . . . 59
Section 507. Limitation on Suits . . . . . . . . . . . . . . . . . . . . 59
Section 508. Unconditional Right of Holders to Receive Principal (and
Premium, if any) and Interest, if any. . . . . . . . . . . 60
Section 509. Restoration of Rights and Remedies . . . . . . . . . . . . 60
Section 510. Rights and Remedies Cumulative . . . . . . . . . . . . . . 61
Section 511. Delay or Omission Not Waiver . . . . . . . . . . . . . . . 61
Section 512. Control by Holders . . . . . . . . . . . . . . . . . . . . 61
Section 513. Waiver of Past Defaults . . . . . . . . . . . . . . . . . . 62
Section 514. Undertaking for Costs . . . . . . . . . . . . . . . . . . . 62
Section 515. Waiver of Stay or Extension Laws . . . . . . . . . . . . . 62
Section 516. Judgment Currency . . . . . . . . . . . . . . . . . . . . . 63
ARTICLE VI The Trustee . . . . . . . . . . . . . . . . . . . . . . . . 64
Section 601. Certain Duties and Responsibilities . . . . . . . . . . . . 64
Section 602. Notice of Defaults . . . . . . . . . . . . . . . . . . . . 65
Section 603. Certain Rights of Trustee . . . . . . . . . . . . . . . . . 66
Section 604. Not Responsible for Recitals or Issuance of Securities . . . 67
Section 605. May Hold Securities . . . . . . . . . . . . . . . . . . . . 67
Section 606. Money Held in Trust . . . . . . . . . . . . . . . . . . . . 67
Section 607. Compensation and Reimbursement . . . . . . . . . . . . . . 67
Section 608. Disqualification; Conflicting Interests . . . . . . . . . . 68
Section 609. Corporate Trustee Required; Different Trustees for
Different Series; Eligibility . . . . . . . . . . . . . . 68
Section 610. Resignation and Removal; Appointment of Successor . . . . . 68
Section 611. Acceptance of Appointment by Successor . . . . . . . . . . 71
Section 612. Merger, Conversion, Consolidation or Succession to
Business . . . . . . . . . . . . . . . . . . . . . . . . 72
Section 613. Preferential Collection of Claims Against Company . . . . . 72
Section 614. Authenticating Agents . . . . . . . . . . . . . . . . . . . 72
ARTICLE VII Holders' Lists and Reports by Trustee, Company and Guarantor 74
Section 701. Company and Guarantor to Furnish Trustee Names and
Addresses of Holders . . . . . . . . . . . . . . . . . . .74
Section 702. Preservation of Information; Communications to Holders . . . 75
Section 703. Reports by Trustee . . . . . . . . . . . . . . . . . . . . 76
Section 704. Reports by Company and the Guarantor . . . . . . . . . . . 77
iv
<PAGE>
ARTICLE VIII Consolidation, Merger, Conveyance or Transfer . . . . . . . 78
Section 801. Company or Guarantor May Consolidate, Etc., Only on
Certain Terms . . . . . . . . . . . . . . . . . . . . . . 78
Section 802. Successor Corporation Substituted . . . . . . . . . . . . . 79
ARTICLE IX Supplemental Indentures . . . . . . . . . . . . . . . . . . 79
Section 901. Supplemental Indentures Without Consent of Holders . . . . 79
Section 902. Supplemental Indentures With Consent of Holders . . . . . . 81
Section 903. Execution of Supplemental Indentures . . . . . . . . . . . 83
Section 904. Effect of Supplemental Indentures . . . . . . . . . . . . . 83
Section 905. Conformity With Trust Indenture Act . . . . . . . . . . . . 83
Section 906. Reference in Securities to Supplemental Indentures . . . . 83
ARTICLE X Covenants . . . . . . . . . . . . . . . . . . . . . . . . . 84
Section 1001. Payment of Principal (and Premium, if any) and Interest,
if any . . . . . . . . . . . . . . . . . . . . . . . . . . 84
Section 1002. Maintenance of Office or Agency . . . . . . . . . . . . . . 84
Section 1003. Money for Securities Payments To Be Held in Trust . . . . . 86
Section 1004. Payment of Taxes and Other Claims . . . . . . . . . . . . . 87
Section 1005. Statements as to Compliance . . . . . . . . . . . . . . . . 88
Section 1006. Corporate Existence . . . . . . . . . . . . . . . . . . . . 88
Section 1007. Lien on Assets . . . . . . . . . . . . . . . . . . . . . . 88
Section 1008. Waiver of Certain Covenants . . . . . . . . . . . . . . . . 89
Section 1009. Payment of Additional Amounts . . . . . . . . . . . . . . . 90
ARTICLE XI Redemption of Securities . . . . . . . . . . . . . . . . . 93
Section 1101. Applicability of This Article . . . . . . . . . . . . . . . 93
Section 1102. Election to Redeem; Notice to Trustee . . . . . . . . . . . 93
Section 1103. Selection by Trustee of Securities to Be Redeemed . . . . . 93
Section 1104. Notice of Redemption . . . . . . . . . . . . . . . . . . . 94
Section 1105. Deposit of Redemption Price . . . . . . . . . . . . . . . . 95
Section 1106. Securities Payable on Redemption Date . . . . . . . . . . . 95
Section 1107. Securities Redeemed in Part . . . . . . . . . . . . . . . . 96
Section 1108. Tax Redemption; Special Tax Redemption . . . . . . . . . . 97
ARTICLE XII Sinking Funds . . . . . . . . . . . . . . . . . . . . . . . 100
Section 1201. Applicability of This Article . . . . . . . . . . . . . . . 100
Section 1202. Satisfaction of Sinking Fund Payments With Securities . . . 101
Section 1203. Redemption of Securities for Sinking Fund . . . . . . . . . 101
ARTICLE XIII Meetings of Holders of Securities . . . . . . . . . . . . . 102
v
<PAGE>
Section 1301. Purposes for Which Meetings May Be Called . . . . . . . . . 102
Section 1302. Call, Notice and Place of Meetings . . . . . . . . . . . . 102
Section 1303. Persons Entitled to Vote at Meetings . . . . . . . . . . . 102
Section 1304. Quorum; Action . . . . . . . . . . . . . . . . . . . . . . 103
Section 1305. Determination of Voting Rights; Conduct and Adjournment of
Meetings. . . . . . . . . . . . . . . . . . . . . . . . . 104
Section 1306. Counting Votes and Recording Action of Meetings . . . . . . 105
ARTICLE XIV Guarantees . . . . . . . . . . . . . . . . . . . . . . . . 105
Section 1401. Guarantee . . . . . . . . . . . . . . . . . . . . . . . . . 105
Section 1402. Execution and Delivery of Guarantees . . . . . . . . . . . 107
EXHIBITS
EXHIBIT A. Form of Certificate To Be Delivered to Euro-clear or Cedelbank by
a Beneficial Owner of Securities, in Order to Receive a
Definitive Bearer Security in Exchange for an Interest in a
Temporary Global Security or to Exchange an Interest in a
Temporary Global Security for an Interest in a Permanent Global
Security.
EXHIBIT B. Form of Certificate To Be Given to the Appropriate Trustee by
Euro-clear or Cedelbank Regarding the Exchange of a Temporary
Global Security for Definitive Securities or for a Portion of a
Permanent Global Security.
EXHIBIT C. Form of Certificate To Be Delivered to Euro-clear or Cedelbank by
a Beneficial Owner of Securities, in Order to Receive Payment on
a Temporary Global Security.
EXHIBIT D. Form of Certificate To Be Given to the Appropriate Trustee by
Euro-clear or Cedelbank Regarding Payment on a Temporary Global
Security.
vi
<PAGE>
INDENTURE dated as of December 1, 1999, between KEYSPAN GAS EAST
CORPORATION, doing business as Brooklyn Union of Long Island, a corporation
duly incorporated and existing under the laws of New York and having its
principal office at 175 East Old Country Road, Hicksville, New York 11801
(hereinafter called the "Company"), KEYSPAN CORPORATION, doing business as
KeySpan Energy, a corporation duly incorporated and existing under the laws
of New York and having its principal executive office at One MetroTech
Center, Brooklyn, New York 11201 (hereinafter called "the Guarantor") and THE
CHASE MANHATTAN BANK, a corporation organized and existing under the laws of
the State of New York, as Trustee (hereinafter called the "Trustee").
RECITALS OF THE COMPANY
The Company deems it necessary to issue from time to time for its lawful
purposes securities (hereinafter called the "Securities") evidencing its
unsecured indebtedness and has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of the
Securities, unlimited as to principal amount, to have such titles, to bear
such rates of interest, to mature at such time or times and to have such
other provisions as shall be fixed as hereinafter provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done, and the Company
proposes to do all things necessary to make the Securities, when executed by
the Company and authenticated and delivered by the Trustee hereunder and duly
issued by the Company, the valid obligations of the Company as hereinafter
provided.
RECITALS OF THE GUARANTOR
The Guarantor desires to make the Guarantees provided for herein.
All things necessary to make this Indenture a valid agreement of the
Guarantor, in accordance with its terms, have been done and the Guarantor
will do all things necessary to make the Guarantees, when executed by the
Guarantor and endorsed on the Securities authenticated and delivered
hereunder, the valid obligations of the Guarantor as hereinafter provided.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for
the equal and proportionate benefit of all Holders of the Securities or
series thereof, as follows:
<PAGE>
ARTICLE I
Definitions and Other Provisions of General Application
Section 101. Definitions.
For all purposes of this Indenture and all Securities issued hereunder,
except as otherwise expressly provided or unless the context otherwise
requires:
(1) the terms defined in this Article have the meanings assigned
to them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles in the United States, and the term "generally
accepted accounting principles" with respect to any computation required
or permitted hereunder shall mean such accounting principles as are
generally accepted in the United States at the date or time of such
computation; and
(4) the words "herein", "hereof" and "hereunder" and other words
of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
Certain terms, used principally in Article Three and Article Six, are
defined in those Articles.
"Act", when used with respect to any Holder, has the meaning specified
in Section 104.
"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.
"Authenticating Agent" means any Person authorized to authenticate and
deliver Securities on behalf of the Trustee for the Securities of any series
pursuant to Section 614.
-2-
<PAGE>
"Authorized Newspapers" means a newspaper customarily published at least
once a day for at least five days in each calendar week and of general
circulation in New York City and in London and, to the extent the Securities
are listed on the Stock Exchange and the Stock Exchange shall so require, in
Luxembourg or, if it shall be impracticable in the opinion of the Trustee for
the Securities of the appropriate series to make such publication, in another
capital city in Western Europe. Such publication (which may be in different
newspapers) is expected to be made in the Eastern edition of The Wall Street
Journal, in the London edition of the Financial Times and in the Luxemburger
Wort.
"Bearer Security" means any Security established pursuant to Section 201
which is payable to bearer.
"Board of Directors", when used with reference to the Company or the
Guarantor, means either the board of directors or any duly authorized
committee of that board or any director or directors and/or officer or
officers to whom that board or committee shall have duly delegated its
authority, of the Company or the Guarantor, as the case may be.
"Board Resolution", when used with reference to the Company or the
Guarantor, means (1) a copy of a resolution certified by the Secretary or an
Assistant Secretary of the Company or the Guarantor, as the case may be, to
have been duly adopted by its Board of Directors and to be in full force and
effect on the date of such certification, or (2) a certificate signed by the
director or directors or officer or officers to whom the Board of Directors
of the Company or the Guarantor shall have duly delegated its authority, and
delivered to the Trustee for the Securities of any series.
"Business Day" means any day, other than a Saturday or Sunday, that is
neither a legal holiday nor a day on which commercial banks are authorized or
required by law, regulation or executive order to close in The City of New
York; provided, however, that, with respect to Securities not denominated in
Dollars, the day is also not a day on which commercial banks are authorized
or required by law, regulation or executive order to close in the Principal
Financial Center of the country issuing the Foreign Currency or currency unit
or, if the Foreign Currency or currency unit is euro, the day is also a day
on which the Trans-European Automated Real-time Gross Settlement Express
Transfer (TARGET) System is open; provided, further, that, with respect to
LIBOR Securities, the day is also a London Business Day.
"Certificate of a Firm of Independent Public Accountants" means a
certificate signed by any firm of independent public accountants of
recognized standing selected by the Company. The term "independent" when used
with respect to any specified firm of public accountants means such a firm
which (1) is in fact independent, (2) does not have any direct financial
interest or any material indirect financial interest in the Company, the
-3-
<PAGE>
Guarantor or in any other obligor upon the Securities of any series or in any
affiliate of the Company, the Guarantor or of such other obligor, and (3) is
not connected with the Company, the Guarantor or such other obligor or any
affiliate of the Company, the Guarantor or of such other obligor, as an
officer, employee, promoter, underwriter, trustee, partner, director or
person performing similar functions, but such firm may be the regular
auditors employed by the Company and the Guarantor. Whenever it is herein
provided that any Certificate of a Firm of Independent Public Accountants
shall be furnished to the Trustee for Securities of any series, such
Certificate shall state that the signer has read this definition and that the
signer is independent within the meaning hereof.
"Code" means the Internal Revenue Code of 1986, as amended, and the
regulations thereunder.
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Exchange Act, or if at any time after
the execution of this instrument such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then
the body performing such duties on such date.
"Company" means the Person named as the "Company" in the first paragraph
of this instrument until a successor corporation shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor corporation.
"Company Request" and "Company Order" and "Guarantor Request" and
"Guarantor Order" mean a written request or order signed in the name of the
Company or the Guarantor, as the case may be by (1) the Chairman of the
Board, a Vice Chairman of the Board, the President or a Vice President and by
the Treasurer, an Assistant Treasurer, the Controller, an Assistant
Controller, the Secretary or an Assistant Secretary of the Company or the
Guarantor, as the case may be, or (2) by any two Persons designated in a
Company Order or Guarantor Order previously delivered to the Trustee for
Securities of any series by any two of the foregoing officers and delivered
to the Trustee for Securities of any series.
"Component Currency" has the meaning specified in Section 311(e).
"Conversion Event" means the unavailability of any Foreign Currency or
currency unit due to the imposition of exchange controls or other
circumstances beyond the Company's control.
"Corporate Trust Office" means the office of the Trustee for Securities
of any series at which at any particular time its corporate trust business
shall be principally administered, which office of The Chase Manhattan Bank,
-4-
<PAGE>
at the date of the execution of this Indenture, is located at 450 West 33rd
Street, 15th Floor, New York, New York 10001.
"corporation" includes corporations, limited liability companies,
associations, companies and business trusts.
"coupon" means any interest coupon appertaining to a Bearer Security.
"Currency Determination Agent", with respect to Securities of any
series, means, unless otherwise specified in the Securities of any series, a
New York Clearing House bank designated pursuant to Section 301 or Section
312.
"Defaulted Interest" has the meaning specified in Section 307.
"Depositary" means, with respect to the Securities of any series
issuable or issued in the form of a Global Security, the Person designated as
Depositary by the Company pursuant to Section 301 until a successor
Depositary shall have become such pursuant to the applicable provisions of
this Indenture, and thereafter "Depositary" shall mean or include each Person
who is then a Depositary hereunder, and if at any time there is more than one
such Person, "Depositary" as used with respect to the Securities of any such
series shall mean the Depositary with respect to the Securities of that
series.
"Determination Notice" has the meaning specified in Section 1108(b).
"Dollars" and the sign "$" mean the currency of the United States of
America as at the time of payment is legal tender for the payment of public
and private debts.
"Election Date" has the meaning specified in Section 311(e).
"Euro-clear" means Morgan Guaranty Trust Company of New York, Brussels
office, or its successor, as operator of the Euro-clear system.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, as
in force at the date as of which this Indenture was executed; provided,
however, that in the event the Securities Exchange Act of 1934 is amended
after such date, "Exchange Act" means, to the extent required by any such
amendment, the Securities Exchange Act of 1934 as so amended.
"Exchange Date" has the meaning specified in Section 304.
-5-
<PAGE>
"Foreign Currency" means a currency issued and actively maintained as a
country's recognized unit of domestic exchange by the government of any
country other than the United States and such term shall include the euro.
"Global Exchange Agent" has the meaning specified in Section 304.
"Global Securities" means Securities in global form.
"Government Obligations" means securities which are (i) direct
obligations of the government which issued the currency in which the
Securities of a particular series are payable (except as provided in Sections
311(b) and 311(d), in which case with respect to Securities for which an
election has occurred pursuant to Section 311(b), or a Conversion Event has
occurred as provided in Section 311(d), such obligations shall be issued in
the currency or currency unit in which such Securities are payable as a
result of such election or Conversion Event) or (ii) obligations of a Person
controlled or supervised by or acting as an agency or instrumentality of the
government which issued the currency in which the Securities of such series
are payable (except as provided in Sections 311(b) and 311(d), in which case
with respect to Securities for which an election has occurred pursuant to
Section 311(b), or a Conversion Event has occurred as provided in Section
311(d)), such obligations shall be issued in the currency or currency unit in
which such Securities are payable as a result of such election or Conversion
Event), the payment of which is unconditionally guaranteed by such
government, which, in either case, are full faith and credit obligations of
such government payable in such currency and are not callable or redeemable
at the option of the issuer thereof.
"Guarantee" means any guarantee of the Guarantor endorsed on a Security
authenticated and delivered pursuant to this Indenture and shall include the
Guarantee set forth in Section 1401.
"Guarantor" means the Person named as the "Guarantor" in the first
paragraph of this instrument until a successor corporation shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
"Guarantor" shall mean such successor corporation.
"Holder", when used with respect to any Security, means in the case of a
Registered Security the Person in whose name a Security (including the
Guarantee endorsed thereon) is registered in the Security Register, and in
the case of a Bearer Security (including the Guarantee endorsed thereon) the
bearer thereof and, when used with respect to any coupon, means any bearer
thereof.
"Indenture" means this instrument as it may from time to time be
supplemented or amended by one or more indentures supplemental hereto entered
into pursuant to the applicable provisions hereof and shall include the terms
-6-
<PAGE>
of a particular series of Securities established as contemplated by Section
301.
"Indexed Security" means any Security as to which the amount of payments
of principal, premium, if any, and/or interest, if any, due thereon is
determined with reference to the rate of exchange between the currency or
currency unit in which the Security is denominated and any other specified
currency or currency unit, to the relationship between two or more currencies
or currency units, to the price of one or more specified securities or
commodities, to one or more securities or commodities exchange indices or
other indices or by other similar methods or formulas, all as specified in
accordance with Section 301.
"interest", when used with respect to an OID Security which by its terms
bears interest only after Maturity, means interest payable after Maturity.
"Interest Payment Date", when used with respect to any Security, means
the Stated Maturity of an instalment of interest on such Security.
"Issue Date" means the date on which the Securities of a particular
series are originally issued under this Indenture.
"Judgment Date" has the meaning specified in Section 516.
"LIBOR" means, with respect to any series of Securities, the rate
specified as LIBOR for such Securities in accordance with Section 301.
"LIBOR Currency" means the currency specified pursuant to Section 301 as
to which LIBOR will be calculated or, if no currency is specified pursuant to
Section 301, Dollars.
"LIBOR Security" means any Security which bears interest at a floating
rate calculated with reference to LIBOR.
"London Business Day" means, with respect to any LIBOR Security, a day
on which commercial banks are open for business, including dealings in the
LIBOR Currency, in London.
"Market Exchange Rate" with respect to any Foreign Currency or currency
unit on any date means, unless otherwise specified in accordance with Section
301, the noon buying rate in The City of New York for cable transfers in such
Foreign Currency or currency unit as certified for customs purposes by the
Federal Reserve Bank of New York for such Foreign Currency or currency unit.
"Maturity", when used with respect to any Security, means the date on
which the principal (or, if the context so requires, in the case of an OID
Security, a lesser amount or, in the case of an Indexed Security, an amount
-7-
<PAGE>
determined in accordance with the specified terms of that Security) of that
Security becomes due and payable as therein or herein provided, whether at
the Stated Maturity or by declaration of acceleration, call for redemption,
request for redemption, repayment at the option of the holder, pursuant to
any sinking fund or otherwise.
"Notice of Default" has the meaning specified in Section 501(3).
"Officers' Certificate", when used with reference to the Company or the
Guarantor, means a certificate signed by the Chairman of the Board, a Vice
Chairman of the Board, the Chief Executive Officer, the President or a Vice
President (any reference herein to a Vice President of the Company or the
Guarantor, as the case may be, shall be deemed to include any Vice President
of the Company or the Guarantor, as the case may be, whether or not
designated by a number or a word or words added before or after the title
"Vice President"), and by the Treasurer, an Assistant Treasurer, the
Controller, an Assistant Controller, the Secretary or an Assistant Secretary
of the Company or the Guarantor, as the case may be, and delivered to the
Trustee for the Securities of any series.
"Opinion of Counsel" means, for purposes of Section 1108, a written
opinion of independent legal counsel of recognized standing and, for all
other purposes hereof, means a written opinion of counsel, who may be an
employee of or counsel to the Company or the Guarantor or may be other
counsel satisfactory to the Trustee for the Securities of any series.
"OID Security" means a Security which provides for an amount (excluding
any amounts attributable to accrued but unpaid interest thereon) less than
the principal amount thereof to be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 502.
"Outstanding", when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(1) Securities theretofore cancelled by the Trustee for such
Securities or delivered to such Trustee for cancellation;
(2) Securities or portions thereof for whose payment or redemption
money in the necessary amount and in the required currency or currency
unit has been theretofore deposited with the Trustee for such Securities
or any Paying Agent (other than the Company, the Guarantor or any other
obligor upon the Securities) in trust or set aside and segregated in
trust by the Company, the Guarantor or any other obligor upon the
Securities (if the Company, the Guarantor or any other obligor upon the
Securities shall act as its own Paying Agent) for the Holders of such
Securities; provided, however, that, if such Securities or portions
-8-
<PAGE>
thereof are to be redeemed, notice of such redemption has been duly
given pursuant to this Indenture, or provision therefor satisfactory to
such Trustee has been made; and
(3) Securities which have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented
proof satisfactory to the Trustee for such Securities that any such
Securities are held by bona fide holders in due course;
provided, however, that in determining whether the Holders of the requisite
principal amount of Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, (a) Securities
owned by the Company, the Guarantor or any other obligor upon the Securities
or any Affiliate of the Company, the Guarantor or such other obligor shall be
disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee for such Securities shall be protected in relying upon
any such request, demand, authorization, direction, notice, consent or
waiver, only Securities which such Trustee knows to be so owned shall be so
disregarded. Securities so owned which have been pledged in good faith may
be regarded as Outstanding if the pledgee establishes to the satisfaction of
such Trustee the pledgee's right so to act with respect to such Securities
and that the pledgee is not the Company, the Guarantor or any other obligor
upon the Securities or any Affiliate of the Company, the Guarantor or of such
other obligor, (b) the principal amount of an OID Security that shall be
deemed to be Outstanding for such purposes shall be the amount of the
principal thereof that would be due and payable as of the date of such
determination upon a declaration of acceleration pursuant to Section 502 and
(c) the principal amount of a Security denominated in a Foreign Currency or
currency unit that shall be deemed to be outstanding for such purposes shall
be determined in accordance with Section 115.
"Paying Agent" means The Chase Manhattan Bank or any other Person
authorized by the Company to pay the principal of (and premium, if any) or
interest, if any, on any Securities of any series on behalf of the Company.
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Place of Payment", when used with respect to the Securities of any
particular series, means the place or places where the principal of (and
premium, if any) and interest, if any, on the Securities of that series are
payable, as contemplated by Section 301.
-9-
<PAGE>
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by
that particular Security, and, for the purposes of this definition, any
Security authenticated and delivered under Section 306 in lieu of a
mutilated, destroyed, lost or stolen Security or a Security to which a
mutilated, destroyed, lost or stolen coupon appertains shall be deemed to
evidence the same debt as the mutilated, lost, destroyed or stolen Security
or the Security to which the mutilated, destroyed, lost or stolen coupon
appertains, as the case may be.
"Principal Financial Center" means, unless otherwise specified in
accordance with Section 301:
- the capital city of the country issuing the Foreign Currency or
currency unit, except that with respect to Dollars, Australian
dollars, Canadian dollars, Deutsche marks, Dutch guilders, South
African rand and Swiss francs, the "Principal Financial Center"
will be The City of New York, Sydney and Melbourne, Toronto,
Frankfurt, Amsterdam, Johannesburg and Zurich, respectively, or
- the capital city of the country to which the LIBOR Currency
relates, except that with respect to Dollars, Canadian dollars,
Deutsche marks, Dutch guilders, Portuguese escudos, South African
rand and Swiss francs, the "Principal Financial Center" will be The
City of New York, Toronto, Frankfurt, Amsterdam, London,
Johannesburg and Zurich, respectively.
"Redemption Date", when used with respect to any Security to be redeemed
in whole or in part, means the date fixed for such redemption by or pursuant
to this Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means, unless otherwise specified in such Security, an amount, in
the currency or currency unit in which such Security is denominated or which
is otherwise provided for pursuant hereto, equal to the principal amount
thereof (and premium, if any, thereon) together with accrued interest, if
any, to the Redemption Date.
"Registered Security" means any Security established pursuant to Section
201 which is registered in the Security Register.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Registered Securities of any series, means the date, if any,
specified for that purpose as contemplated by Section 301.
"Responsible Officer", when used with respect to the Trustee for any
series of Securities, means the chairman or vice chairman of the board of
-10-
<PAGE>
directors, the chairman or vice chairman of the executive committee of the
board of directors, the president, any vice president (whether or not
designated by a number or a word or words added before or after the title
"vice president"), the secretary, any assistant secretary, the treasurer, any
assistant treasurer, the cashier, any assistant cashier, any trust officer or
assistant trust officer, the controller or any assistant controller or any
other officer of such Trustee customarily performing functions similar to
those performed by any of the above designated officers and also means, with
respect to a particular corporate trust matter, any other officer to whom
such matter is referred because of his knowledge of and familiarity with the
particular subject.
"Securities" means securities evidencing unsecured indebtedness of the
Company authenticated and delivered under this Indenture.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
A "series" of Securities means all Securities denoted as part of the
same series authorized by or pursuant to a particular Board Resolution.
"Special Record Date" for the payment of any Defaulted Interest on the
Registered Securities of any series means a date fixed by the Trustee for
such series pursuant to Section 307.
"Stated Maturity", when used with respect to any Security or any
instalment of principal thereof or interest thereon, means the date specified
in such Security or a coupon representing such instalment of interest as the
fixed date on which the principal of such Security or such instalment of
principal or interest is due and payable.
"Stock Exchange", unless specified otherwise with respect to any
particular series of Securities, means the Luxembourg Stock Exchange.
"Substitute Date" has the meaning specified in Section 516.
"Trustee" means the Person named as the "Trustee" in the first paragraph
of this instrument and, subject to the provisions of Article Six hereof,
shall also include its successors and assigns as Trustee hereunder. If there
shall be at one time more than one Trustee hereunder, "Trustee" shall mean
each such Trustee and shall apply to each such Trustee only with respect to
those series of Securities with respect to which it is serving as Trustee.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended
by the Trust Indenture Reform Act of 1990, as in force at the date as of
which this Indenture was executed; provided, however, that in the event the
Trust Indenture Act is amended after such date, "Trust Indenture Act" means,
-11-
<PAGE>
to the extent required by any such amendment, the Trust Indenture Act of 1939
as so amended.
"United States" means, unless otherwise specified with respect to
Securities of any series, the United States of America (including the States
and the District of Columbia), its territories, its possessions (which
include, at the date of this Indenture, Puerto Rico, the U.S. Virgin Islands,
Guam, American Samoa, Wake Island and the Northern Mariana Islands) and other
areas subject to its jurisdiction.
"United States Alien" has the meaning specified in Section 1009.
"Yield to Maturity", when used with respect to any OID Security, means
the yield to maturity, if any, set forth on the face thereof.
Section 102. Compliance Certificates and Opinions.
Upon any application or request by the Company or the Guarantor to the
Trustee for any series of Securities to take any action under any provision
of this Indenture, the Company or the Guarantor, as the case may be, shall
furnish to such Trustee an Officers' Certificate stating that all conditions
precedent, if any, provided for in this Indenture relating to the proposed
action have been complied with, and 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 Indenture relating to such particular application or
request, no additional certificate or opinion need be furnished.
Every certificate (other than certificates provided pursuant to Section
1005) or opinion with respect to compliance with a condition or covenant
provided for in this Indenture shall include:
(1) a statement that each individual signing such certificate or
opinion has read such condition or covenant 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
has made such examination or investigation as is necessary to enable him
to express an informed opinion as to whether or not such condition or
covenant has been complied with; and
-12-
<PAGE>
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 103. Form of Documents Delivered to Trustee.
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 the Company or the Guarantor
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 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 the Company or the Guarantor,
as the case may be, stating that the information with respect to such factual
matters is in the possession of the Company or the Guarantor, as the case may
be, 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 Indenture, they may, but need not, be consolidated and
form one instrument.
Section 104. Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture 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 agent duly
appointed in writing. If Securities of a series are issuable as Bearer
Securities, any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given by Holders of
such series may, alternatively, be embodied in and evidenced by the record of
Holders of Securities of such series voting in favor thereof, either in
person or by proxies duly appointed in writing, at any meeting of Holders of
Securities of such series duly called and held in accordance with the
-13-
<PAGE>
provisions of Article Thirteen, or a combination of such instruments and any
such record. Except as herein otherwise expressly provided, such action shall
become effective when such instrument or instruments or record or both are
delivered to the Trustee for the appropriate series of Securities and, where
it is hereby expressly required, to the Company or the Guarantor or both of
them. Such instrument or instruments and any such record (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as
the "Act" of the Holders signing such instrument or instruments or so voting
at any such meeting. Proof of execution of any such instrument or of a
writing appointing any such agent, or of the holding by any Person of a
Security, shall be sufficient for any purpose of this Indenture and (subject
to Section 601) conclusive in favor of the Trustee for the appropriate series
of Securities and the Company and Guarantor and any agent of such Trustee or
the Company or the Guarantor, if made in the manner provided in this Section.
The record of any meeting of Holders of Securities shall be proved in the
manner provided in Section 1306.
The Company may at its discretion set a record date for purposes of
determining the identity of Holders of Registered Securities entitled to vote
or consent to any action by vote or consent authorized or permitted under
this Indenture, but the Company shall have no obligation to do so. If not
set by the Company prior to the first solicitation of Holders of Registered
Securities of a particular series made by any Person in respect of any such
action, or, in the case of any such vote, prior to such vote, the record date
for any such action or vote shall be 30 days prior to the first solicitation
of such vote or consent. Upon the fixing of such a record date, those
persons who were Holders of Registered Securities at such record date (or
their duly designated proxies), and only those persons, shall be entitled
with respect to such Registered Securities to take such action by vote or
consent or to revoke any vote or consent previously given, whether or not
such persons continue to be Holders after such record date.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by the certificate of any notary public or other officer
authorized by law to take acknowledgments of deeds, certifying that the
individual signing such instrument or writing acknowledged to him the
execution thereof. Where such execution is by an officer of a corporation or
association or a member of a partnership, or an official of a public or
governmental body, on behalf of such corporation, association, partnership or
public or governmental body or by a fiduciary, such certificate or affidavit
shall also constitute sufficient proof of his authority.
(c) The fact and date of the execution by any Person of any such
instrument or writing, or the authority of the Person executing the same, may
also be proved in any other manner which the Trustee for the appropriate
series of Securities deems sufficient.
-14-
<PAGE>
(d) The principal amount and serial numbers of Registered Securities
held by any Person, and the date of holding the same, shall be proved by the
Security Register.
(e) The principal amount and serial numbers of Bearer Securities held
by any Person, and the date of holding the same, may be proved by the
production of such Bearer Securities or by a certificate executed, as
depositary, by any trust company, bank, banker or other depositary, wherever
situated, if such certificate shall be deemed by the Trustee for such
Securities to be satisfactory, showing that at the date therein mentioned
such Person had on deposit with such depositary, or exhibited to it, the
Bearer Securities therein described; or such facts may be proved by the
certificate or affidavit of the Person holding such Bearer Securities, if
such certificate or affidavit is deemed by such Trustee to be satisfactory.
The Trustee for such Securities and the Company may assume that such
ownership of any Bearer Security continues until (1) another certificate or
affidavit bearing a later date issued in respect of the same Bearer Security
is produced, (2) such Bearer Security is produced to such Trustee by some
other Person, (3) such Bearer Security is surrendered in exchange for a
Registered Security, or (4) such Bearer Security is no longer Outstanding.
The principal amount and serial numbers of Bearer Securities held by any
Person, and the date of holding the same, may also be proved in any other
manner which the Company and the Trustee for such Securities deem sufficient.
(f) Subject to Section 115, in determining whether the Holders of the
requisite principal amount of Outstanding Securities have given any request,
demand, authorization, direction, notice, consent or waiver under this
Indenture, the principal amount of an OID Security that may be counted in
making such determination and that shall be deemed to be Outstanding for such
purposes shall be equal to the amount of the principal thereof that would be
due and payable upon a declaration of acceleration of the Maturity thereof
pursuant to Section 502 at the time the taking of such action by the Holders
of such requisite principal amount is evidenced to the Trustee for such
Securities.
(g) Any request, demand, authorization, direction, notice, consent,
waiver or other action by the Holder of any Security shall bind every future
Holder of the same Security and the Holder of every Security 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 Trustee
for such Securities, the Security Registrar, any Paying Agent or the Company
or the Guarantor in reliance thereon, whether or not notation of such action
is made upon such Security.
-15-
<PAGE>
Section 105. Notices, Etc., to Trustee, Company and Guarantor.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other documents provided or permitted by this Indenture
to be made upon, given or furnished to, or filed with,
(1) the Trustee for a series of Securities by any Holder or by the
Company or the Guarantor shall be sufficient for every purpose hereunder
if made, given, furnished or filed in writing to or with such Trustee at
its Corporate Trust Office, Attention: Corporate Trustee Administration
Department, or if sent by facsimile transmission, to a facsimile number
provided by the Trustee, with a copy mailed, first class postage prepaid
to the Trustee addressed to it as provided above, or
(2) the Company or the Guarantor by such Trustee or by any Holder
shall be sufficient for every purpose hereunder (except as provided in
paragraphs (3), (4) and (5) of Section 501) if in writing and mailed,
first class postage prepaid, addressed in the case of the Company to it
at the address of its principal office specified in the first paragraph
of this instrument or at any other address previously furnished in
writing to such Trustee by the Company, or if sent by facsimile
transmission, to a facsimile number provided to the Trustee by the
Company, with a copy mailed, first class postage prepaid, to the Company
addressed to it as provided above, and with a copy to the Guarantor, and
addressed in the case of the Guarantor to it at the address specified in
the first paragraph of this instrument or at any other address
previously furnished in writing to such Trustee by the Guarantor, or if
sent by facsimile transmission, to a facsimile number provided to the
Trustee by the Guarantor, with a copy mailed, first class postage
prepaid, to the Guarantor addressed to it as provided above, and with a
copy to the Company.
Section 106. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, (1)
such notice shall be sufficiently given (unless otherwise herein expressly
provided) to Holders of Registered Securities if in writing and mailed, first
class postage prepaid, to each Holder affected by such event, at his address
as it appears in the Security Register, not later than the latest date, and
not earlier than the earliest date, prescribed for the giving of such notice;
and (2) such notice shall be sufficiently given (unless otherwise herein
expressly provided) to Holders of Bearer Securities who have filed their
names and addresses with the Trustee for such purpose within the previous two
years if in writing and mailed, first class postage prepaid, to each such
Holder at his address as so filed not later than the latest date and not
earlier than the earliest date prescribed for the giving of such notice, or
to all other Holders of Bearer Securities if published in an Authorized
-16-
<PAGE>
Newspaper on a Business Day at least twice, the first such publication to be
not earlier than the earliest date, and the second such publication to be not
later than the latest date, prescribed herein for the giving of such notice.
In any case where notice to Holders of Registered Securities is given by
mail, neither the failure to mail such notice, nor any defect in any notice
so mailed, to any particular Holder of a Registered Security shall affect the
sufficiency of such notice with respect to other Holders of Registered
Securities or the sufficiency of any notice to Holders of Bearer Securities
given as provided herein. Any notice mailed in the manner prescribed by this
Indenture shall be deemed to have been given whether or not received by any
particular Holder. 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 to Holders of Registered Securities by mail, then such
notification as shall be made with the approval of the Trustee for such
Securities shall constitute a sufficient notification for every purpose
hereunder.
In case by reason of the suspension of any Authorized Newspaper or
Authorized Newspapers or by reason of any other cause it shall be
impracticable to publish any notice to Holders of Bearer Securities as
provided above, then such notification to Holders of Bearer Securities as
shall be made with the approval of the Trustee for such Securities shall
constitute sufficient notice to such Holders for every purpose hereunder.
Neither the failure to give notice by publication to Holders of Bearer
Securities as provided above, nor any defect in any notice so published,
shall affect the sufficiency of any notice to Holders of Registered
Securities given as provided herein.
Where this Indenture 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 Trustee for
such Securities, but such filing shall not be a condition precedent to the
validity of any action taken in reliance upon such waiver.
Section 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with the duties
imposed by any of Sections 310 through 317, inclusive, of the Trust Indenture
Act through the operation of Section 318(c) thereof, such imposed duties
shall control.
Section 108. 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.
-17-
<PAGE>
Section 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company or the
Guarantor shall bind their successors and assigns, whether so expressed or
not.
Section 110. Separability Clause.
In any case any provision in this Indenture or in the Securities, the
Guarantees or coupons shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not
in any way be affected or impaired thereby.
Section 111. Benefits of Indenture.
Nothing in this Indenture or in the Securities or in the Guarantees or
in any coupons appertaining thereto, expressed or implied, shall give to any
Person, other than the parties hereto, any Paying Agent, any Security
Registrar and their successors hereunder and the Holders of Securities
(including the Guarantees) or coupons, any benefit or any legal or equitable
right, remedy or claim under this Indenture.
Section 112. Governing Law.
This Indenture, the Securities and the Guarantees shall be governed by
and construed in accordance with the laws of the State of New York.
Section 113. Non-Business Day.
Unless otherwise stated with respect to Securities of any series, in any
case where any Interest Payment Date, Redemption Date or Stated Maturity of a
Security of any particular series shall not be a Business Day at any Place of
Payment with respect to Securities of that series, then (notwithstanding any
other provision of this Indenture or of the Securities or coupons) payment of
principal of (and premium, if any) and interest, if any, with respect to such
Security need not be made at such Place of Payment on such date, but may be
made on the next succeeding Business Day at such Place of Payment with the
same force and effect as if made on the Interest Payment Date or Redemption
Date, or at the Stated Maturity, provided that no interest shall accrue for
the period from and after such Interest Payment Date, Redemption Date or
Stated Maturity, as the case may be.
-18-
<PAGE>
Section 114. Immunity of Incorporators, Stockholders, Officers and
Directors.
No recourse shall be had for the payment of the principal of (and
premium, if any), or the interest, if any, on any Security or coupon of any
series, or for any claim based thereon, or upon any obligation, covenant or
agreement of this Indenture, against any incorporator, stockholder, officer
or director, as such, past, present or future, of the Company, the Guarantor
or of any successor corporation, either directly or indirectly through the
Company, the Guarantor or any successor corporation, whether by virtue of any
constitution, statute or rule of law or by the enforcement of any assessment
of penalty or otherwise; it being expressly agreed and understood that this
Indenture and all the Securities (including the Guarantees) and coupons of
each series are solely corporate obligations, and that no personal liability
whatever shall attach to, or is incurred by, any incorporator, stockholder,
officer or director, past, present or future, of the Company, the Guarantor
or of any successor corporation, either directly or indirectly through the
Company, the Guarantor or any successor corporation, because of the incurring
of the indebtedness hereby authorized or under or by reason of any of the
obligations, covenants or agreements contained in this Indenture or in any of
the Securities (including the Guarantees) or coupons of any series, or to be
implied herefrom or therefrom; and that all such personal liability is hereby
expressly released and waived as a condition of, and as part of the
consideration for, the execution of this Indenture and the issuance of the
Securities (including the Guarantees) and coupons of each series.
Section 115. Certain Matters Relating to Currencies.
Subject to Section 311, each reference to any currency or currency unit
in any Security, or in the Board Resolution or supplemental indenture
relating thereto, shall mean only the referenced currency or currency unit
and no other currency or currency unit.
The Trustee shall segregate moneys, funds and accounts held by the
Trustee in one currency or currency unit from any moneys, funds or accounts
held in any other currencies or currency units, notwithstanding any provision
herein which would otherwise permit the Trustee to commingle such amounts.
Whenever any action or Act is to be taken hereunder by the Holders of
Securities denominated in a Foreign Currency or currency unit, then for
purposes of determining the principal amount of Securities held by such
Holders, the aggregate principal amount of the Securities denominated in a
Foreign Currency or currency unit shall be deemed to be that amount of
Dollars that could be obtained for such principal amount on the basis of a
spot rate of exchange specified to the Trustee for such series in an
Officers' Certificate for such Foreign Currency or currency unit into Dollars
as of the date the taking of such action or Act by the Holders of the
-19-
<PAGE>
requisite percentage in principal amount of the Securities is evidenced to
such Trustee.
Section 116. Language of Notices, Etc.
Any request, demand, authorization, direction, notice, consent or waiver
required or permitted under this Indenture shall be in the English language,
and any published notice may also be in an official language of the country
of publication.
ARTICLE II
Security Forms
Section 201. Forms of Securities.
The Registered Securities, if any, of each series and the Bearer
Securities, if any, of each series and related coupons shall be in such form
or forms (including global form) as shall be established by or pursuant to a
Board Resolution of the Company, in each case with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture or any indenture supplemental hereto and may have
such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with any law, with
any rule or regulation made pursuant thereto, with any rules of any
securities exchange, automated quotation system or clearing agency or to
conform to usage, as may, consistently herewith, be determined by the
officers executing such Securities or coupons, as evidenced by their
execution of such Securities or coupons. If temporary Securities of any
series are issued in global form as permitted by Section 304, the form
thereof shall be established as provided in the preceding sentence. The
Guarantees to be endorsed on the Securities of a particular series shall be
in such form as is established pursuant to Section 202.
Unless otherwise specified as contemplated by Section 301, Bearer
Securities shall have interest coupons attached.
The definitive Securities and coupons, if any, shall be printed,
lithographed or engraved or produced by any combination of these methods on a
steel engraved border or steel engraved borders or may be produced in any
other manner, all as determined by the officers executing such Securities or
coupons, as evidenced by their execution thereof.
-20-
<PAGE>
Section 202. Forms of Guarantees
The Guarantees by the Guarantor to be endorsed on the Securities of each
series shall be in substantially the form or forms as shall be established by
or pursuant to a Board Resolution of the Guarantor, with such appropriate
insertions, omissions, substitutions and other corrections as are required or
permitted by this Indenture or any indenture supplemental hereto, and may
have such letters, numbers or other marks of identification and such legends
or endorsements placed thereon as may, consistently herewith, be determined
by the officers executing such Guarantees, as evidenced by their execution of
such Guarantees.
Section 203. Form of Trustee's Certificate of Authentication.
The Certificate of Authentication on all Securities shall be in
substantially the following form:
"This is one of the Securities of the series designated therein
described in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK,
as Trustee
By__________________________________
Authorized Officer
Section 204. Securities in Global Form.
If any Security of a series is issuable in global form, such Security
may provide that it shall represent the aggregate amount of Outstanding
Securities from time to time endorsed thereon and may also provide that the
aggregate amount of Outstanding Securities represented thereby may from time
to time be reduced to reflect exchanges. Any endorsement of a Security in
global form to reflect the amount, or any increase or decrease in the amount,
of Outstanding Securities represented thereby shall be made by the Trustee
and in such manner as shall be specified in such Security. Any instructions
by the Company with respect to a Security in global form, after its initial
issuance, shall be in writing but need not comply with Section 102.
Global Securities may be issued in either registered or bearer form and
in either temporary or permanent form.
-21-
<PAGE>
ARTICLE III
The Securities
Section 301. Title; Payment and Terms.
The aggregate principal amount of Securities which may be authenticated
and delivered and Outstanding under this Indenture is unlimited. The
Securities may be issued up to the aggregate principal amount of Securities
from time to time authorized by or pursuant to Board Resolutions of the
Company and the Guarantor.
The Securities may be issued in one or more series, each of which shall
be issued pursuant to Board Resolutions of the Company and the Guarantor.
There shall be established in one or more Board Resolutions or pursuant to
one or more Board Resolutions of the Company (and, if an Event of Default or
covenant not contained in the Indenture shall be established for a series of
Securities, of the Guarantor) and, subject to Section 303, set forth in, or
determined in the manner provided in, an Officer's Certificate of the Company
(and of the Guarantor if a Board Resolution of the Guarantor is provided as
set forth above), or established in one or more supplemental indentures
hereto, prior to the issuance of Securities of any series all or any of the
following, as applicable (each of which, if so provided, may be determined
from time to time by the Company with respect to unissued Securities of that
series and set forth in the Securities of that series when issued from time
to time):
(1) the title of the Securities of that series (which shall
distinguish the Securities of that series from all other series of
Securities);
(2) any limit upon the aggregate principal amount of the
Securities of that series which may be authenticated and delivered under
this Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of that series pursuant to Section 304, 305, 306, 906 or
1107);
(3) whether Securities of that series are to be issuable as
Registered Securities, Bearer Securities or both and any restrictions on
the exchange of one form of Securities for another and on the offer,
sale and delivery of the Securities in either form;
(4) the date or dates (or manner of determining the same) on which
the principal of the Securities of that series is payable (which, if so
provided in such Board Resolutions, may be determined by the Company
-22-
<PAGE>
from time to time and set forth in the Securities of the series issued
from time to time);
(5) the rate or rates (or the manner of calculation thereof) at
which the Securities of that series shall bear interest (if any), the
date or dates from which such interest shall accrue, the Interest
Payment Dates on which such interest shall be payable (or manner of
determining the same) and the Regular Record Date for the interest
payable on any Registered Securities on any Interest Payment Date and
the extent to which, or the manner in which, any interest payable on a
temporary Global Security on an Interest Payment Date will be paid if
other than in the manner provided in Section 307;
(6) the place or places where, subject to the provisions of
Section 1002, the principal of (and premium, if any) and interest, if
any, on Securities of that series shall be payable, any Registered
Securities of that series may be surrendered for registration of
transfer, any Securities of that series may be surrendered for exchange,
and notices and demands to or upon the Company in respect of the
Securities of that series and this Indenture may be served;
(7) the period or periods within which (or manner of determining
the same), the price or prices at which (or manner of determining the
same), the currency or currency unit in which, and the terms and
conditions upon which Securities of that series may be redeemed, in
whole or in part, at the option of the Company, and any remarketing
arrangements with respect to the Securities of that series;
(8) the obligation, if any, of the Company to redeem, repay or
purchase Securities of that series pursuant to any sinking fund or
analogous provisions or at the option of a Holder thereof, and the
period or periods within which (or manner of determining the same), the
price or prices at which (or manner of determining the same), the
currency or currency unit in which, and the terms and conditions upon
which, Securities of that series shall be redeemed or purchased, in
whole or in part, pursuant to such obligation;
(9) if the currency in which the Securities of that series shall
be issuable is Dollars, the denominations in which any Registered
Securities of that series shall be issuable, if other than denominations
of $1,000 and any integral multiple thereof, and the denominations in
which any Bearer Securities of that series shall be issuable, if other
than the denomination of $5,000;
(10) if other than the principal amount thereof, the portion of
the principal amount of Securities of that series which shall be payable
-23-
<PAGE>
upon a declaration of acceleration of the Maturity thereof pursuant to
Section 502;
(11) any Events of Default and covenants of the Company and the
Guarantor with respect to the Securities of that series, whether or not
such Events of Default or covenants are consistent with the Events of
Default or covenants set forth herein;
(12) if a Person other than The Chase Manhattan Bank is to act as
Trustee for the Securities of that series, the name and location of the
Corporate Trust Office of such Trustee;
(13) if other than Dollars, the currency or currency unit in which
payment of the principal of (and premium, if any) or interest, if any,
on the Securities of that series shall be made or in which the
Securities of that series shall be denominated and the particular
provisions applicable thereto in accordance with, in addition to or in
lieu of the provisions of Section 311;
(14) if the principal of (and premium, if any) and interest, if
any, on the Securities of that series are to be payable, at the election
of the Company or a Holder thereof, in a currency or currency unit other
than that in which such Securities are denominated or stated to be
payable, in accordance with provisions in addition to or in lieu of, or
in accordance with the provisions of, Section 311, the period or periods
within which (including the Election Date), and the terms and conditions
upon which, such election may be made, and the time and manner of
determining the exchange rate between the currency or currency unit in
which such Securities are denominated or stated to be payable and the
currency or currency unit in which such Securities are to be so payable;
(15) the designation of the original Currency Determination Agent,
if any;
(16) if the Securities of such series are issuable as Indexed
Securities, the manner in which the amount of payments of principal,
premium, if any, and interest, if any, on that series shall be
determined;
(17) if the Securities of that series do not bear interest, the
applicable dates for purposes of Section 701;
(18) if other than as set forth in Article Four, provisions for
the satisfaction and discharge of this Indenture with respect to the
Securities of that series;
-24-
<PAGE>
(19) the date as of which any Bearer Securities of that series and
any Global Security representing Outstanding Securities of that series
shall be dated if other than the date of original issuance of the first
Security of that series to be issued;
(20) the application, if any, of Section 1009 to the Securities of
that series;
(21) whether the Securities of the series shall be issued in whole
or in part in the form of a Global Security or Securities and, in such
case, the Depositary and Global Exchange Agent, if any, for such Global
Security or Securities, whether such global form shall be permanent or
temporary and, if applicable, the Exchange Date;
(22) if Securities of the series are to be issuable initially in
the form of a temporary Global Security, the circumstances under which
the temporary Global Security can be exchanged for definitive Securities
and whether the definitive Securities will be Registered Securities
and/or Bearer Securities and will be in global form and whether interest
in respect of any portion of such Global Security payable in respect of
an Interest Payment Date prior to the Exchange Date shall be paid to any
clearing organization with respect to a portion of such Global Security
held for its account and, in such event, the terms and conditions
(including any certification requirements) upon which any such interest
payment received by a clearing organization will be credited to the
Persons entitled to interest payable on such Interest Payment Date if
other than as provided in this Article Three; and
(23) the extent and manner, if any, to which payment on or in
respect of Securities of that series and/or the Guarantees endorsed
thereon will be subordinated to the prior payment of other liabilities
and obligations of the Company or the Guarantor, as the case may be;
(24) the extent, if any, to which payments by the Guarantor under
the Guarantees will be net of taxes, duties, assessments or other
governmental charges imposed or levied by or on behalf of any
governmental taxing authority;
(25) the forms of the Securities of that series and the Guarantees
to be endorsed thereon; and
(26) any other terms of that series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any particular series and the coupons appertaining to
any Bearer Securities of such series shall be substantially identical except
as to denomination, rate of interest, Stated Maturity and the date from which
-25-
<PAGE>
interest, if any, shall accrue, and except as may otherwise be provided in or
pursuant to such Board Resolutions and set forth in such Officer's
Certificate relating thereto or provided in or pursuant to any supplemental
indenture hereto. The terms of such Securities, as set forth above, may be
determined by the Company from time to time if so provided in or established
pursuant to the authority granted in Board Resolutions. All Securities of
any one series need not be issued at the same time, and unless otherwise
provided, a series may be reopened for issuance of additional Securities of
such series.
Prior to the delivery of a Security and the related Guarantee of any
series in any such form to the Trustee for the Securities of such series for
authentication, the Company and the Guarantor shall deliver to such Trustee
the following:
(1) The Board Resolutions of the Company and the Guarantor,
respectively, by or pursuant to which such form of Security and
Guarantee to be endorsed thereon have been approved and, if applicable,
the supplemental indenture by or pursuant to which such form of Security
has been approved;
(2) An Officers' Certificate of the Company and the Guarantor
dated the date such Certificate is delivered to such Trustee stating
that all conditions precedent provided for in this Indenture relating to
the authentication and delivery of Securities and related Guarantees in
such forms have been complied with; and
(3) An Opinion of Counsel stating that Securities and the
Guarantees in such forms, together with any coupons appertaining
thereto, when (a) completed by appropriate insertions and executed and
delivered by the Company and the Guarantor, respectively, to such
Trustee for authentication in accordance with this Indenture, (b)
authenticated and delivered by such Trustee in accordance with this
Indenture within the authorization as to aggregate principal amount
established from time to time by the Board of Directors of the Company
and the Guarantor, and (c) sold in the manner specified in such Opinion
of Counsel, will be the legal, valid and binding obligations of the
Company and the Guarantor, respectively, subject to the effects of
applicable bankruptcy, reorganization, fraudulent conveyance,
moratorium, insolvency and other similar laws generally affecting
creditors' rights, to general equitable principles, to an implied
covenant of good faith and fair dealing and to such other qualifications
as such counsel shall conclude do not materially affect the rights of
Holders of such Securities.
-26-
<PAGE>
Section 302. Denominations and Currencies.
Unless otherwise provided with respect to any series of Securities as
contemplated by Section 301, any Registered Securities of a series shall be
issuable in denominations of $1,000 and any integral multiple thereof, and
any Bearer Securities of a series shall be issuable in the denomination of
$5,000, or the equivalent amounts thereof in the case of Registered
Securities and Bearer Securities denominated in a Foreign Currency or
currency unit.
Section 303. Execution, Authentication, Delivery and Dating.
The Securities and any related coupons shall be executed on behalf of
the Company by its Chairman of the Board, a Vice Chairman of the Board, or
its President or one of its Vice Presidents. The Securities shall be so
executed under the corporate seal of the Company reproduced thereon and
attested to by its Secretary or any one of its Assistant Secretaries. The
signature of any of these officers on the Securities may be manual or
facsimile.
Securities and coupons bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall
bind the Company, notwithstanding that such individuals or any of them have
ceased to hold such offices prior to the authentication and delivery of such
Securities or did not hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series together
with any coupons appertaining thereto, executed by the Company to the Trustee
for the Securities of such series for authentication, together with a Company
Order for the authentication and delivery of such Securities, and such
Trustee, in accordance with the Company Order, shall authenticate and deliver
such Securities; provided, however, that, during the "restricted period" (as
defined in Section 1.163-5(c)(2)(i)(D)(7) of the United States Treasury
Regulations), no Bearer Security shall be mailed or otherwise delivered to
any location in the United States; and provided, further, that a Bearer
Security may be delivered outside the United States in connection with its
original issuance only if the Person entitled to receive such Bearer Security
shall have furnished to the Trustee for the Securities of such series a
certificate substantially in the form set forth in Exhibit A to this
Indenture. If any Security shall be represented by a permanent Global
Security, then, for purposes of this Section and Section 304, the notation of
a beneficial owner's interest therein upon original issuance of such Security
or upon exchange of a portion of a temporary Global Security shall be deemed
to be delivery in connection with the original issuance of such beneficial
owner's interest in such permanent Global Security. Except as permitted by
Section 306 or 307, the Trustee for the Securities of a series shall not
-27-
<PAGE>
authenticate and deliver any Bearer Security unless all appurtenant coupons
for interest then matured other than matured coupons in default have been
detached and cancelled. If all the Securities of any one series are not to be
issued at one time and if a Board Resolution relating to such Securities
shall so permit, such Company Order may set forth procedures acceptable to
the Trustee for the issuance of such Securities, including, without
limitation, procedures with respect to interest rate, Stated Maturity, date
of issuance and date from which interest, if any, shall accrue.
Notwithstanding any contrary provision herein, if all Securities of a
series are not to be originally issued at one time, it shall not be necessary
to deliver the Board Resolution, Officers' Certificate and Opinion of Counsel
otherwise required pursuant to Sections 102 and 301 at or prior to the time
of authentication of each Security of such series if such documents are
delivered at or prior to the authentication upon original issuance of the
first Security of such series to be issued.
Each Registered Security shall be dated the date of its authentication,
and, unless otherwise specified as contemplated by Section 301, each Bearer
Security shall be dated as of the date of original issuance of the first
Security of such series to be issued.
No Security, or Guarantee endorsed thereon, or coupon appertaining
thereto shall be entitled to any benefit under this Indenture or be valid or
obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
manually executed by the Trustee for such Security or on its behalf pursuant
to Section 614, and such certificate upon any Security shall be conclusive
evidence, and the only evidence, that such Security has been duly
authenticated and delivered hereunder.
In case any Securities shall have been authenticated, but not delivered,
by the Trustee or the Authenticating Agent for such series then in office,
any successor by merger, conversion or consolidation to such Trustee, or any
successor Authenticating Agent, as the case may be, may adopt such
authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee or successor Authenticating Agent had
itself authenticated such Securities.
Each Depositary designated pursuant to Section 301 for a Global Security
in registered form must, at the time of its designation and at all times
while it serves as Depositary, be a clearing agency registered under the
Exchange Act and any other applicable statute or regulation.
Reference is made to Section 1402 concerning execution and delivery of
the Guarantees.
-28-
<PAGE>
Section 304. Temporary Securities and Exchange of Securities.
Pending the preparation of definitive Securities of any particular
series, the Company may execute, and upon Company Order the Trustee for the
Securities of such series shall authenticate and deliver, in the manner
specified in Section 303, temporary Securities which are printed,
lithographed, typewritten, photocopied or otherwise produced, in any
denomination, with like terms and conditions as the definitive Securities of
like series in lieu of which they are issued in registered form or, if
authorized, in bearer form with one or more coupons or without coupons, and
having endorsed thereon Guarantees duly executed by the Guarantor
substantially of the tenor of the definitive Guarantees, and with such
appropriate insertions, omissions, substitutions and other variations as the
officers executing such Securities and such Guarantees may determine, as
evidenced by their execution of such Securities and such Guarantees. Any
such temporary Securities and the related Guarantees may be in global form,
representing such of the Outstanding Securities of such series and the
related Guarantees as shall be specified therein.
Except in the case of temporary Securities in global form (which shall
be exchanged only in accordance with the provisions of the following
paragraphs), if temporary Securities of any particular series are issued, the
Company will cause definitive Securities of that series to be prepared
without unreasonable delay. After the preparation of such definitive
Securities, the temporary Securities of such series shall be exchangeable for
such definitive Securities and of a like Stated Maturity and with like terms
and provisions upon surrender of the temporary Securities of such series,
together with all unmatured and matured coupons in default, if any, at the
office or agency of the Company in a Place of Payment for that series,
without charge to the Holder. Upon surrender for cancellation of any one or
more temporary Securities of any particular series, the Company shall execute
and (in accordance with a Company Order delivered at or prior to the
authentication of the first definitive Security of such series) the Trustee
for the Securities of such series or the Global Exchange Agent shall
authenticate and deliver in exchange therefor a like principal amount of
definitive Securities of authorized denominations of the same series and of a
like Stated Maturity and with like terms and provisions having endorsed
thereon Guarantees duly executed by the Guarantor; provided, however, unless
otherwise specified pursuant to Section 301, no definitive Bearer Security
shall be delivered in exchange for a temporary Registered Security; and
provided, further, that a definitive Bearer Security shall be delivered in
exchange for a temporary Bearer Security only in compliance with the
conditions set forth in Section 303. Until exchanged as hereinabove provided,
the temporary Securities of any series shall in all respects be entitled to
the same benefits under this Indenture as definitive Securities of the same
series and with like terms and conditions, except as to payment of interest,
if any, authenticated and delivered hereunder.
-29-
<PAGE>
Any temporary Global Security and any permanent Global Security shall,
unless otherwise provided therein, be delivered to a Depositary designated
pursuant to Section 301.
Without unnecessary delay but in any event not later than the date
specified in or determined pursuant to the terms of any such temporary Global
Security (the "Exchange Date"), the Securities represented by any temporary
Global Security of a series of Securities issuable in bearer form and the
related Guarantees may be exchanged for definitive Securities (subject to the
second succeeding paragraph) or Securities to be represented thereafter by
one or more permanent Global Securities, without interest coupons, and the
related Guarantees. On or after the Exchange Date such temporary Global
Security shall be surrendered by the Depositary to the Trustee for such
Security, as the Company's agent for such purpose, or the agent appointed by
the Company pursuant to Section 301 to effect the exchange of the temporary
Global Security for definitive Securities (the "Global Exchange Agent"), and
following such surrender, such Trustee or the Global Exchange Agent (as
authorized by the Trustee as an Authenticating Agent pursuant to Section 614)
shall (1) endorse the temporary Global Security to reflect the reduction of
its principal amount by an equal aggregate principal amount of such Security,
(2) endorse the applicable permanent Global Security, if any, to reflect the
initial amount, or an increase in the amount of Securities represented
thereby, (3) manually authenticate such definitive Securities or such
permanent Global Security, as the case may be, (4) subject to Section 303,
deliver such definitive Securities to the Holder thereof or, as the case may
be, deliver such permanent Global Security to the Depositary to be held
outside the United States for the accounts of Euro-clear and Cedelbank, for
credit to the respective accounts at Euro-clear and Cedelbank, designated by
or on behalf of the beneficial owners of such Securities (or to such other
accounts as they may direct) and (5) redeliver such temporary Global Security
to the Depositary, unless such temporary Global Security shall have been
cancelled in accordance with Section 309 hereof; provided, however, that,
unless otherwise specified in such temporary Global Security, upon such
presentation by the Depositary, such temporary Global Security shall be
accompanied by a certificate dated the Exchange Date or a subsequent date and
signed by Euro-clear as to the portion of such temporary Global Security held
for its account then to be exchanged for definitive Securities or one or more
permanent Global Securities, as the case may be, and a certificate dated the
Exchange Date or a subsequent date and signed by Cedelbank, as to the portion
of such temporary Global Security held for its account then to be exchanged
for definitive Securities or one or more permanent Global Securities, as the
case may be, each substantially in the form set forth in Exhibit B to this
Indenture. Each certificate substantially in the form of Exhibit B hereto of
Euro-clear or Cedelbank, as the case may be, shall be based on certificates
of the account holders listed in the records of Euro-clear or Cedelbank, as
the case may be, as being entitled to all or any portion of the applicable
temporary Global Security. An account holder of Euro-clear or Cedelbank, as
-30-
<PAGE>
the case may be, desiring to effect the exchange of interest in a temporary
Global Security for an interest in definitive Securities or one or more
permanent Global Securities shall instruct Euro-clear or Cedelbank, as the
case may be, to request such exchange on its behalf and shall deliver to
Euro-clear or Cedelbank, as the case may be, a certificate substantially in
the form of Exhibit A hereto and dated no earlier than 15 days prior to the
Exchange Date. Until so exchanged, temporary Global Securities shall in all
respects be entitled to the same benefits under this Indenture as definitive
Securities and permanent Global Securities of the same series authenticated
and delivered hereunder, except as provided in the fourth succeeding
paragraph.
The delivery to the Trustee for the Securities of the appropriate series
or the Global Exchange Agent by Euro-clear or Cedelbank of any certificate
substantially in the form of Exhibit B hereto may be relied upon by the
Company and such Trustee or the Global Exchange Agent as conclusive evidence
that a corresponding certificate or certificates has or have been delivered
to Euro-clear or to Cedelbank, as the case may be, pursuant to the terms of
this Indenture.
On or prior to the Exchange Date, the Company shall deliver to the
Trustee for the Securities of the appropriate series or the Global Exchange
Agent definitive Securities in aggregate principal amount equal to the
principal amount of such temporary Global Security, executed by the Company
in the case of the Securities and the Guarantor in the case of the
Guarantees. At any time, on or after the Exchange Date, upon 30 days' notice
to the Trustee for the Securities of the appropriate series or the Global
Exchange Agent by Euro-clear or Cedelbank, as the case may be, acting at the
request of or on behalf of the beneficial owner, a Security represented by a
temporary Global Security or a permanent Global Security, as the case may be,
may be exchanged, in whole or from time to time in part, for definitive
Securities without charge and such Trustee or the Global Exchange Agent shall
authenticate and deliver, in exchange for each portion of such temporary
Global Security or such permanent Global Security, an equal aggregate
principal amount of definitive Securities of the same series of authorized
denominations and with like terms and provisions as the portion of such
temporary Global Security or such permanent Global Security to be exchanged,
which, unless the Securities of the series are not issuable both as Bearer
Securities and as Registered Securities, as contemplated by Section 301,
shall be in the form of Bearer Securities or Registered Securities, or any
combination thereof, as shall be specified by the beneficial owner thereof;
provided, however, that definitive Bearer Securities shall be delivered in
exchange for a portion of the temporary Global Security or the permanent
Global Security only in compliance with the requirements of the second
preceding paragraph. On or prior to the thirtieth day following receipt by
the Trustee for the Securities of the appropriate series or the Global
Exchange Agent of such notice with respect to a Security, or, if such day is
-31-
<PAGE>
not a Business Day, the next succeeding Business Day, the temporary Global
Security or the permanent Global Security, as the case may be, shall be
surrendered by the Depositary to such Trustee, as the Company's agent for
such purpose, or the Global Exchange Agent to be exchanged in whole, or from
time to time in part, for definitive Securities without charge following such
surrender, upon the request of Euro- clear or Cedelbank, as the case may be,
and such Trustee or the Global Exchange Agent shall (1) endorse the
applicable temporary Global Security or the permanent Global Security to
reflect the reduction of its principal amount by the aggregate principal
amount of such Security, (2) in accordance with procedures acceptable to the
Trustee cause the terms of such Security and coupons, if any, to be entered
on a definitive Security, (3) manually authenticate such definitive Security
and (4) if a Bearer Security is to be delivered, deliver such definitive
Security outside the United States to Euro- clear or Cedelbank, as the case
may be, for or on behalf of the beneficial owner thereof, in exchange for a
portion of such permanent Global Security.
Unless otherwise specified in such temporary Global Security or
permanent Global Security, any such exchange shall be made free of charge to
the beneficial owners of such temporary Global Security or permanent Global
Security, except that a Person receiving definitive Securities must bear the
cost of insurance, postage, transportation and the like in the event that
such Person does not take delivery of such definitive Securities in person at
the offices of Euro-clear or Cedelbank. Definitive Securities in bearer form
to be delivered in exchange for any portion of a temporary Global Security or
a permanent Global Security shall be delivered only outside the United
States.
Until exchanged in full as hereinabove provided, any temporary Global
Security or permanent Global Security shall in all respects be entitled to
the same benefits under this Indenture as definitive Securities of the same
series and with like terms and conditions, except as to payment of interest,
if any, authenticated and delivered hereunder. Unless otherwise specified as
contemplated by Section 301, interest payable on such temporary Global
Security on an Interest Payment Date for Securities of such series shall be
payable to Euro-clear and Cedelbank on such Interest Payment Date upon
delivery by Euro-clear and Cedelbank to the Trustee for the Securities of the
appropriate series or the Global Exchange Agent in the case of payment of
interest on a temporary Global Security with respect to an Interest Payment
Date occurring prior to the applicable Exchange Date of a certificate or
certificates substantially in the form set forth in Exhibit C to this
Indenture, for credit without further interest on or after such Interest
Payment Date to the respective accounts of the Persons who are the beneficial
owners of such Global Security on such Interest Payment Date and who have, in
the case of payment of interest on a temporary Global Security with respect
to an Interest Payment Date occurring prior to the applicable Exchange Date,
-32-
<PAGE>
each delivered to Euro-clear or Cedelbank, as the case may be, a certificate
substantially in the form set forth in Exhibit D to this Indenture.
Any definitive Bearer Security authenticated and delivered by the
Trustee for the Securities of the appropriate series or the Global Exchange
Agent in exchange for a portion of a temporary Global Security or a permanent
Global Security shall not bear a coupon for any interest which shall
theretofore have been duly paid by such Trustee to Euro-clear or Cedelbank or
by the Company to such Trustee in accordance with the provisions of this
Section 304.
With respect to Exhibits A, B, C and D to this Indenture, the Company
may, in its discretion and if required or desirable under applicable law,
substitute one or more other forms of such exhibits for such exhibits,
eliminate the requirement that any or all certificates be provided, or change
the time that any certificate may be required, provided that such substitute
form or forms or notice of elimination or change of such certification
requirement have theretofore been delivered to the Trustee with a Company
Request and such form or forms, elimination or change is reasonably
acceptable to the Trustee.
Section 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office of the
Trustee for the Securities of each series a register (the register maintained
in such office being herein sometimes referred to as the "Security Register")
in which, subject to such reasonable regulations as it may prescribe, the
Company shall provide for the registration of Registered Securities and of
transfers of Registered Securities. The Trustee for the Securities of each
series is hereby initially appointed "Security Registrar" for the purpose of
registering Registered Securities and transfers of Registered Securities of
such series as herein provided.
Upon surrender for registration of transfer of any Registered Security
of any particular series at the office or agency of the Company in a Place of
Payment for that series, the Company shall execute, and the Trustee for the
Securities of each series shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Registered Securities
of any authorized denominations, and of a like Stated Maturity and of a like
series and aggregate principal amount and with like terms and conditions
having endorsed thereon a Guarantee duly executed by the Guarantor.
Except as set forth below, at the option of the Holder, Registered
Securities of any particular series may be exchanged for other Registered
Securities of any authorized denominations, and of a like Stated Maturity and
of a like series and aggregate principal amount and with like terms and
conditions, having endorsed thereon a Guarantee duly executed by the
-33-
<PAGE>
Guarantor, upon surrender of the Registered Securities to be exchanged at
such office or agency. Whenever any Securities are so surrendered for
exchange, the Company shall execute, and the Trustee for such Securities
shall authenticate and deliver, the Securities which the Holder making the
exchange is entitled to receive. Except as otherwise specified pursuant to
Section 301, Registered Securities may not be exchanged for Bearer
Securities.
Notwithstanding any other provision of this Section or Section 304,
unless and until it is exchanged in whole or in part for Registered
Securities in definitive form, a Global Security representing all or a
portion of the Registered Securities of a series may not be transferred
except as a whole by the Depositary for such series to a nominee of such
Depositary or by a nominee of such Depositary to such Depositary or another
nominee of such Depositary or by such Depositary or any such nominee to a
successor Depositary for such series or a nominee of such successor
Depositary.
At the option of the Holder, Bearer Securities of any series may be
exchanged for Registered Securities of the same series of any authorized
denominations and of a like aggregate principal amount and with like terms
and provisions having endorsed thereon a Guarantee duly executed by the
Guarantor, upon surrender of the Bearer Securities to be exchanged at any
office or agency of the Company in a Place of Payment for that series, with
all unmatured coupons and all matured coupons in default thereto
appertaining. If the Holder of a Bearer Security is unable to produce any
such unmatured coupon or coupons or matured coupon or coupons in default,
such exchange may be effected if the Bearer Securities are accompanied by
payment in funds acceptable to the Company and the Guarantor (or to the
Trustee for the Security in case of matured coupons in default) in an amount
equal to the face amount of such missing coupon or coupons, or the surrender
of such missing coupon or coupons may be waived by the Company, the Guarantor
and such Trustee if there is furnished to them such security or indemnity as
they may require to save each of them and any Paying Agent harmless. If
thereafter the Holder of such Security shall surrender to any Paying Agent
any such missing coupon in respect of which such a payment shall have been
made, such Holder shall be entitled to receive the amount of such payment;
provided, however, that, except as otherwise provided in Section 1002,
interest represented by coupons shall be payable only upon presentation and
surrender of those coupons at an office or agency of the Company in a Place
of Payment for that series located outside the United States.
Notwithstanding the foregoing, in case a Bearer Security of any series is
surrendered at any such office or agency in exchange for a Registered
Security of the same series and with like terms and conditions having
endorsed thereon a Guarantee duly executed by the Guarantor after the close
of business at such office or agency on or after (i) any Regular Record Date
and before the opening of business at such office or agency on the relevant
-34-
<PAGE>
Interest Payment Date, or (ii) any Special Record Date and before the opening
of business at such office or agency on the related proposed date for payment
of Defaulted Interest, such Bearer Security shall be surrendered without the
coupon relating to such Interest Payment Date or proposed date for payment,
as the case may be (or, if such coupon is so surrendered with such Bearer
Security, such coupon shall be returned to the person so surrendering the
Bearer Security), and interest or Defaulted Interest, as the case may be,
will not be payable on such Interest Payment Date or proposed date for
payment, as the case may be, in respect of the Registered Security issued in
exchange for such Bearer Security, but will be payable only to the Holder of
such coupon when due in accordance with the provisions of this Indenture.
Whenever any Securities are so surrendered for exchange, the Company
shall execute, and the Trustee for such Securities shall authenticate and
deliver, the Securities which the Holder making the exchange is entitled to
receive.
If at any time the Depositary for Securities of a series in registered
form notifies the Company that it is unwilling or unable to continue as
Depositary for the Securities of such series or if at any time the Depositary
for the Securities of such series shall no longer be eligible under Section
303, the Company shall appoint a successor Depositary with respect to the
Securities for such series. If (i) a successor Depositary for the Securities
of such series is not appointed by the Company within 90 days after the
Company receives such notice or becomes aware of such ineligibility, (ii) the
Company delivers to the Trustee for Securities of such series in registered
form a Company Order stating that the Securities of such series shall be
exchangeable, or (iii) an Event of Default under Section 501 hereof has
occurred and is continuing with respect to the Securities of such series, the
Company's election pursuant to Section 301 shall no longer be effective with
respect to the Securities for such series and the Company will execute, and
the Trustee, upon receipt of a Company Order for the authentication and
delivery of definitive Securities of such series, will authenticate and
deliver Securities of such series in definitive form in an aggregate
principal amount equal to the principal amount of the Global Security or
Securities representing such series in exchange for such Global Security or
Securities.
The Company may at any time and in its sole discretion determine that
the Registered Securities of any series issued in the form of one or more
Global Securities shall no longer be represented by such Global Security or
Securities. In such event the Company will execute, and the Trustee, upon
receipt of a Company Order for the authentication and delivery of definitive
Registered Securities of such series, will authenticate and deliver,
Registered Securities of such series in definitive form and in an aggregate
principal amount equal to the principal amount of the Global Security or
-35-
<PAGE>
Securities representing such series in exchange for such Global Security or
Securities.
If specified by the Company pursuant to Section 301 with respect to a
series of Securities in registered form, the Depositary for such series of
Securities may surrender a Global Security for such series of Securities in
exchange in whole or in part for Securities of such series of like tenor and
terms having endorsed thereon a Guarantee duly executed by the Guarantor and
in definitive form on such terms as are acceptable to the Company and such
Depositary. Thereupon the Company shall execute, and the Trustee shall
authenticate and deliver, without service charge, (i) to each Person
specified by such Depositary a new Security or Securities of the same series,
of like tenor and terms having endorsed thereon a Guarantee duly executed by
the Guarantor and of any authorized denomination as requested by such Person
in aggregate principal amount equal to and in exchange for such Person's
beneficial interest in the Global Security; and (ii) to such Depositary a new
Global Security of like tenor and terms having endorsed thereon a Guarantee
duly executed by the Guarantor and in a denomination equal to the difference,
if any, between the principal amount of the surrendered Global Security and
the aggregate principal amount of Securities delivered to Holders thereof.
Upon the exchange of a Global Security for Securities in definitive
form, such Global Security shall be cancelled by the Trustee. Registered
Securities issued in exchange for a Global Security pursuant to this Section
shall be registered in such names and in such authorized denominations as the
Depositary for such Global Security, pursuant to instructions from its direct
or indirect participants or otherwise, shall instruct the Trustee in writing.
The Trustee shall deliver such Registered Security to the persons in whose
names such Securities are so registered.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or
exchange shall (if so required by the Company or the Trustee for such
Security) be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Company and the Security Registrar for
such series duly executed, by the Holder thereof or his attorney duly
authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment 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 Securities,
-36-
<PAGE>
other than exchanges pursuant to Section 304, 906 or 1107 not involving any
transfer.
The Company shall not be required (i) to issue, register the transfer of
or exchange Securities of any series during a period beginning at the opening
of business 15 days before the day of the mailing of a notice of redemption
of Securities of that series selected for redemption under Section 1104 and
ending at the close of business on (A) if Securities of the series are
issuable only as Registered Securities, the day of the mailing of the
relevant notice of redemption and (B) if Securities of the series are
issuable as Bearer Securities, the day of the first publication of the
relevant notice of redemption or, if Securities of the series are also
issuable as Registered Securities and there is no publication, the mailing of
the relevant notice of redemption, or (ii) to register the transfer of or
exchange any Registered Security so selected for redemption as a whole or in
part, except the unredeemed portion of any Security being redeemed in part,
or (iii) to exchange any Bearer Security so selected for redemption except
that such a Bearer Security may be exchanged for a Registered Security of
that series and like tenor; provided, however, that such Registered Security
shall be simultaneously surrendered for redemption.
Furthermore, notwithstanding any other provision of this Section 305,
the Company will not be required to exchange any Securities if, as a result
of the exchange, the Company would suffer adverse consequences under any
United States law or regulation.
Section 306. Mutilated, Destroyed, Lost and Stolen Securities and Coupons.
If (i) any mutilated Security or a Security with a mutilated coupon
appertaining thereto is surrendered to the Trustee for such Security or the
Company, the Guarantor and the Trustee for a Security receive evidence to
their satisfaction of the destruction, loss or theft of any Security or
coupon and (ii) there is delivered to the Company, the Guarantor and such
Trustee such security or indemnity as may be required by them to save each of
them and any agent of either of them harmless, then, in the absence of notice
to the Company, the Guarantor or such Trustee that such Security or coupon
has been acquired by a bona fide purchaser, the Company shall execute and
upon its request such Trustee shall authenticate and deliver, in lieu of any
such destroyed, lost or stolen Security or in exchange for such mutilated
Security, or in exchange for the Security to which a mutilated, destroyed,
lost or stolen coupon appertains (with all appurtenant coupons not mutilated,
destroyed, lost or stolen) a new Security of the same series and in a like
principal amount and of a like Stated Maturity and with like terms and
conditions, having endorsed thereon a Guarantee duly executed by the
Guarantor, and bearing a number not contemporaneously outstanding with
coupons corresponding to the coupons, if any, appertaining to such mutilated,
-37-
<PAGE>
destroyed, lost or stolen Security or to the Security to which such
mutilated, destroyed, lost or stolen coupon appertains.
In case any such mutilated, destroyed, lost or stolen Security or coupon
has become or is about to become due and payable, the Company and the
Guarantor in their discretion may, instead of issuing a new Security, pay
such Security or coupon (without surrender thereof except in the case of a
mutilated Security or coupon) if the applicant for such payment shall furnish
to the Company, the Guarantor and the Trustee for such Security such security
or indemnity as may be required by them to save each of them harmless, and in
case of destruction, loss or theft, evidence satisfactory to the Company, the
Guarantor and such Trustee and any agent of any of them of the destruction,
loss or theft of such Security and the ownership thereof; provided, however,
that the principal of (and premium, if any) and interest, if any, on Bearer
Securities shall, except as otherwise provided in Section 1002, be payable
only at an office or agency located outside the United States and, unless
otherwise specified as contemplated by Section 301, any interest on Bearer
Securities shall be payable only upon presentation and surrender of the
coupons appertaining thereto.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including all fees and expenses of the Trustee for such Security)
connected therewith.
Every new Security of any series, with its coupons, if any, issued
pursuant to this Section in lieu of any destroyed, lost or stolen Security or
in exchange for any mutilated Security, or in exchange for a Security to
which a mutilated, destroyed, lost or stolen coupon appertains shall
constitute an original additional contractual obligation of the Company and
the Guarantor, respectively, whether or not the destroyed, lost or stolen
Security and its coupons, if any, or the destroyed, lost or stolen coupon
shall be at any time enforceable by anyone, and each such new Security and
the Guarantee endorsed thereon shall be at any time enforceable by anyone,
and each such new Security shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Securities of
the same series and their coupons, if any, duly issued hereunder and the
Guarantees endorsed thereon duly issued 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 Securities or coupons.
-38-
<PAGE>
Section 307. Payment of Interest; Interest Rights Preserved.
Interest on any Registered Security which is payable, and is punctually
paid or duly provided for, on any Interest Payment Date shall, if so provided
in such Security, be paid to the Person in whose name that Security (or one
or more Predecessor Securities) is registered at the close of business on the
Regular Record Date for such interest payment.
Unless otherwise provided with respect to the Securities of any series,
payment of interest may be made at the Corporate Trust Office or, at the
option of the Company (i) in the case of Registered Securities, may be made
by check mailed to the address of the Person entitled thereto as such address
shall appear in the Security Register, or (ii) in the case of Bearer
Securities, upon presentation and surrender of the appropriate coupon
appertaining thereto or by transfer to an account maintained by the payee
with a bank located outside the United States. Notwithstanding the
foregoing, a Holder of $1,000,000 or more in aggregate principal amount of
Securities of any series in definitive form, whether having identical or
different terms and provisions, having the same Interest Payment Dates will,
at the option of the Company, be entitled to receive interest payments, other
than at Maturity, by wire transfer of immediately available funds if
appropriate wire transfer instructions have been received in writing by the
Trustee for the Securities of such series at least 15 days prior to the
applicable Interest Payment Date. Any wire instructions received by the
Trustee for the Securities of such series shall remain in effect until
revoked by the Holder.
Unless otherwise provided or contemplated by Section 301, every
permanent Global Security will provide that interest, if any, payable on any
Interest Payment Date will be paid to each of Euro-clear and Cedelbank with
respect to that portion of such permanent Global Security held for its
account by the Depositary. Each of Euro-clear and Cedelbank will in such
circumstances credit the interest received by it in respect of such permanent
Global Security to the accounts of the beneficial owners thereof.
Any interest on any Registered Security of any particular series which
is payable, but is not punctually paid or duly provided for, on any Interest
Payment Date (herein called "Defaulted Interest") shall forthwith cease to be
payable to the registered Holder on the relevant Regular Record Date by
virtue of having been such Holder; and such Defaulted Interest may be paid by
the Company, at its election in each case, as provided in clause (1) or (2)
below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Registered Securities of that
series (or their respective Predecessor Securities) are registered at
the close of business on a Special Record Date for the payment of such
-39-
<PAGE>
Defaulted Interest, which shall be fixed in the following manner. The
Company shall notify the Trustee for the Registered Securities of such
series in writing of the amount of Defaulted Interest proposed to be
paid on each Registered Security of that series and the date of the
proposed payment, and at the same time the Company shall deposit with
such Trustee an amount of money in the currency or currency unit in
which the Securities of such series are payable (except as otherwise
specified pursuant to Section 301 for the Securities of such series and
except as provided in Sections 311(b) and 311(d)), equal to the
aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to such Trustee for
such deposit prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons entitled to
such Defaulted Interest as in this clause provided. Thereupon such
Trustee shall fix a Special Record Date for the payment of such
Defaulted Interest which shall not be more than 15 days and not less
than 10 days prior to the date of the proposed payment and not less than
10 days after the receipt by such Trustee of the notice of the proposed
payment. Such Trustee shall promptly notify the Company of such Special
Record Date and, in the name and at the expense of the Company, shall
cause notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor to be mailed, first-class postage prepaid,
to each Holder of Registered Securities of that series at his address as
it appears in the Security Register not less than 10 days prior to such
Special Record Date. Such Trustee may, in its discretion, in the name
and at the expense of the Company, cause a similar notice to be
published at least once in a newspaper published in the English
language, customarily on each Business Day and of general circulation in
New York, New York, but such publication shall not be a condition
precedent to the establishment of such Special Record Date. Notice of
the proposed payment of such Defaulted Interest and the Special Record
Date therefor having been mailed as aforesaid, such Defaulted Interest
shall be paid to the Persons in whose names the Registered Securities of
that series (or their respective Predecessor Securities) are registered
on such Special Record Date and shall no longer be payable pursuant to
the following clause (2).
(2) The Company may make payment of any Defaulted Interest on
Registered Securities of any particular series in any other lawful
manner not inconsistent with the requirements of any securities exchange
on which the Registered Securities may be listed, and upon such notice
as may be required by such exchange, if, after notice is given by the
Company to the Trustee for the Securities of such series of the proposed
manner of payment pursuant to this clause, such manner of payment shall
be deemed practicable by such Trustee.
-40-
<PAGE>
Subject to the foregoing provisions of this Section and Section 305,
each Security delivered under this Indenture upon registration of transfer of
or in exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
Section 308. Persons Deemed Owners.
Prior to due presentment of a Registered Security for registration of
transfer, the Company, the Guarantor, the Trustee for such Security and any
agent of the Company, the Guarantor or such Trustee may treat the Person in
whose name any such Security is registered as the owner of such Security for
the purpose of receiving payment of principal of (and premium, if any) and
(subject to Section 307) interest, if any, on such Security and for all other
purposes whatsoever, whether or not such Security be overdue, and neither the
Company, the Guarantor, such Trustee nor any agent of the Company, the
Guarantor or such Trustee shall be affected by notice to the contrary.
Title to any Bearer Security and any coupons appertaining thereto shall
pass by delivery. The Company, the Guarantor, the Trustee for such Security
and any agent of the Company, the Guarantor or such Trustee may treat the
bearer of any Bearer Security and the bearer of any coupon as the absolute
owner of such Bearer Security or coupon for the purpose of receiving payment
thereof or on account thereof and for all other purposes whatsoever, whether
or not such Security or coupon be overdue, and neither the Company, the
Guarantor, such Trustee nor any agent of the Company, the Guarantor or such
Trustee shall be affected by notice to the contrary.
None of the Company, the Guarantor, the Trustee, any Paying Agent or the
Security Registrar will have any responsibility or liability for any aspect
of the records relating to or payments made on account of beneficial
ownership interests of a Global Security or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
Section 309. Cancellation.
All Securities and coupons surrendered for payment, redemption,
registration of transfer or exchange, or delivered in satisfaction of any
sinking fund payment, shall, if surrendered to any Person other than the
Trustee for such Securities, be delivered to such Trustee and, in the case of
Registered Securities and matured coupons, shall be promptly cancelled by it.
All Bearer Securities and unmatured coupons so delivered to the Trustee for
such Securities shall be cancelled by such Trustee. The Company or the
Guarantor may at any time deliver to the Trustee for Securities of a series
for cancellation any Securities previously authenticated and delivered
hereunder which the Company or the Guarantor, as the case may be, may have
acquired in any manner whatsoever, and all Securities so delivered shall be
-41-
<PAGE>
promptly cancelled by such Trustee. Notwithstanding any other provision of
this Indenture to the contrary, in the case of a series, all the Securities
of which are not to be originally issued at one time, a Security of such
series shall not be deemed to have been Outstanding at any time hereunder if
and to the extent that, subsequent to the authentication and delivery
thereof, such Security is delivered to the Trustee for such Security for
cancellation by the Company, the Guarantor or any agent thereof upon the
failure of the original purchaser thereof to make payment therefor against
delivery thereof, and any Security so delivered to such Trustee shall be
promptly cancelled by it. No Securities shall be authenticated in lieu of or
in exchange for any Securities cancelled as provided in this Section, except
as expressly permitted by this Indenture. All cancelled Securities and
coupons held by the Trustee for such Securities shall be disposed of by such
Trustee in accordance with its standard procedures and a certificate of
disposition evidencing such disposition of Securities and coupons shall be
provided to the Company and the Guarantor by such Trustee. In the case of
any temporary Global Security, which shall be disposed of if the entire
aggregate principal amount of the Securities represented thereby has been
exchanged, the certificate of disposition shall state that all certificates
required pursuant to Section 304 hereof, substantially in the form of Exhibit
B hereto (or in the form of any substitute exhibit as provided in the last
paragraph of Section 304), to be given by Euro-clear or Cedelbank, have been
duly presented to the Trustee for such Securities by Euro-clear or Cedelbank,
as the case may be. Permanent Global Securities shall not be disposed of
until exchanged in full for definitive Securities or until payment thereon is
made in full.
Section 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 for
Securities of any particular series, interest on the Securities of each
series shall be computed on the basis of a 360-day year of twelve 30-day
months.
Section 311. Currency and Manner of Payments in Respect of Securities.
Unless otherwise specified in accordance with Section 301 with respect
to any series of Securities, the following provisions shall apply:
(a) Except as provided in paragraphs (b) and (d) below, the principal
of, premium, if any, and interest on Securities of any series denominated in
a Foreign Currency or currency unit will be payable by the Company in Dollars
based on the equivalent of that Foreign Currency or currency unit converted
into Dollars in the manner described in paragraph (c) below.
(b) It may be provided pursuant to Section 301 with respect to
Registered Securities of any series denominated in a Foreign Currency or
-42-
<PAGE>
currency unit that Holders shall have the option, subject to paragraph (d)
below, to receive payments of principal of, premium, if any, and interest on
such Registered Securities in such Foreign Currency or currency unit by
delivering to the Trustee (or to any duly appointed Paying Agent) for the
Registered Securities of that series a written election, to be in form and
substance satisfactory to such Trustee (or to any such Paying Agent), not
later than the close of business on the Election Date immediately preceding
the applicable payment date. If a Holder so elects to receive such payments
in such Foreign Currency or currency unit, such election will remain in
effect for such Holder until changed by such Holder by written notice to the
Trustee (or to any such Paying Agent) for the Registered Securities of that
series; provided, however, that any such change must be made not later than
the close of business on the Election Date immediately preceding the next
payment date to be effective for the payment to be made on such payment date;
and provided, further, that no such change or election may be made with
respect to payments to be made on any Registered Security of such series with
respect to which an Event of Default has occurred, the Company has exercised
any defeasance, satisfaction or discharge options pursuant to Article Four or
notice of redemption has been given by the Company pursuant to Article
Eleven. If any Holder makes any such election, such election will not be
effective as to any transferee of such Holder and such transferee shall be
paid in Dollars unless such transferee makes an election as specified above;
provided, however, that such election, if in effect while funds are on
deposit with respect to the Registered Securities of such series as described
in Section 404 or Section 405, will be effective on any transferee of such
Holder unless otherwise specified pursuant to Section 301 for such Registered
Securities. Any Holder of any such Registered Security who shall not have
delivered any such election to the Trustee (or to any duly appointed Paying
Agent) for the Registered Securities of such series not later than the close
of business on the applicable Election Date will be paid the amount due on
the applicable payment date in Dollars.
(c) With respect to any Registered Securities of any series denominated
in a Foreign Currency or currency unit and payable in Dollars, the amount of
Dollars so payable will be determined by the Currency Determination Agent
based on the highest indicative quotation in The City of New York selected by
the Currency Determination Agent at approximately 11:00 A.M., New York City
time, on the second Business Day preceding the applicable payment date. Such
selection shall be made from among the quotations appearing on the bank
composite or multi-contributor pages of the Reuters Monitor Foreign Exchange
Service or, if not available, the Telerate Monitor Foreign Exchange Service,
for three (or two if three are not available) major banks in New York City.
The first three (or two) such banks selected by the Currency Determination
Agent which are offering quotes on the Reuters Foreign Exchange Service, as
the case may be, shall be used. If such quotations are unavailable from
either such foreign exchange service, such selection shall be made from the
quotations received by the Currency Determination Agent from no more than
-43-
<PAGE>
three nor less than two recognized foreign exchange dealers in The City of
New York selected by the Currency Determination Agent and approved by the
Company (one of which may be the Currency Determination Agent) for the
purchase by the quoting dealer, for settlement on such payment date, of the
aggregate amount of the Foreign Currency or currency unit payable on such
payment date in respect of all Registered Securities denominated in such
Foreign Currency or currency unit and for which the applicable dealer commits
to execute a contract. If fewer than two such bid quotations are available
at 11:00 a.m., New York City time, on the second Business Day preceding the
applicable payment date, such payment will be based on the Market Exchange
Rate as of the second Business Day preceding the applicable payment date. If
the Market Exchange Rate for such date is not then available, payments shall
be made in the Foreign Currency or currency unit. All currency exchange
costs associated with any payment in Dollars on any such Registered
Securities will be borne by the Holder thereof by deductions from such
payment.
(d) If a Conversion Event occurs with respect to a Foreign Currency or
currency unit in which Registered Securities of any series are payable, then
with respect to each date for the payment of principal of, premium, if any,
and interest on the Registered Securities of that series occurring after the
last date on which such Foreign Currency or currency unit was used, the
Company may make such payment in Dollars. The Dollar amount to be paid by
the Company to the Trustee for the Registered Securities of such series and
by such Trustee or any Paying Agent for the Registered Securities of such
series to the Holders of such Registered Securities with respect to such
payment date shall be determined by the Currency Determination Agent on the
basis of the Market Exchange Rate as of the second Business Day preceding the
applicable payment date or, if such Market Exchange Rate is not then
available, on the basis of the most recently available Market Exchange Rate,
or as otherwise established pursuant to Section 301 with respect to such
Notes. Any payment in respect of such Registered Security made under such
circumstances in Dollars will not constitute an Event of Default hereunder.
(e) For purposes of this Indenture the following terms shall have the
following meanings:
A "Component Currency" shall mean any currency which is a
component currency of any currency unit.
"Election Date" shall mean, for the Registered Securities of
any series, the date specified pursuant to Section 301(14).
(f) Notwithstanding any other provisions of this Section 311, the
following shall apply: (i) if the official unit of any Component Currency is
altered by way of combination or subdivision, the number of units of that
currency as a component shall be divided or multiplied in the same
-44-
<PAGE>
proportion, (ii) if two or more Component Currencies are consolidated into a
single currency, the amounts of those currencies as components shall be
replaced by an amount in such single currency equal to the sum of the amounts
of the consolidated Component Currencies expressed in such a single currency,
(iii) if any Component Currency is divided into two or more currencies, the
amount of that original Component Currency as a component shall be replaced
by the amounts of such two or more currencies having an aggregate value on
the date of division equal to the amount of the former Component Currency
immediately before such division and (iv) in the event of an official
redenomination of any currency (including, without limitation, a currency
unit), the obligations of the Company to make payments in or with reference
to such currency on the Registered Securities of any series shall, in all
cases, be deemed immediately following such redenomination to be obligations
to make payments in or with reference to that amount of redenominated
currency representing the amount of such currency immediately before such
redenomination.
(g) All determinations referred to in this Section 311 made by the
Currency Determination Agent shall be in its sole discretion and shall, in
the absence of manifest error, be conclusive for all purposes and irrevocably
binding upon the Holders of the applicable Securities. The Currency
Determination Agent shall promptly give written notice to the Trustee for the
Securities of such series of any such decision or determination. The
Currency Determination Agent shall promptly give written notice to the
Trustee of any such decision or determination. The Currency Determination
Agent shall have no liability for any determinations referred to in this
Section 311 made by it.
(h) The Trustee for the Securities of a particular series shall be
fully justified and protected in relying and acting upon information received
by it from the Company and the Currency Determination Agent with respect to
any of the matters addressed in or contemplated by this Section 311 and shall
not otherwise have any duty or obligation to determine such information
independently.
Section 312. Appointment and Resignation of Currency Determination Agent.
(a) If and so long as the Securities of any series (i) are denominated
in a currency unit or a currency other than Dollars or (ii) may be payable in
a currency unit or a currency other than Dollars, or so long as it is
required under any other provision of this Indenture, then the Company shall
maintain with respect to each such series of Securities, or as so required, a
Currency Determination Agent. The Company shall cause the Currency
Determination Agent to make the necessary foreign exchange determinations at
the time and in the manner specified pursuant to Section 301 for the purpose
of determining the applicable rate of exchange and for the purpose of
converting the issued currency or currency unit into the applicable payment
-45-
<PAGE>
currency or currency unit for the payment of principal (and premium, if any)
and interest, if any, pursuant to Section 311.
(b) No resignation of the Currency Determination Agent and no
appointment of a successor Currency Determination Agent pursuant to this
Section shall become effective until the acceptance of appointment by the
successor Currency Determination Agent as evidenced by a written instrument
delivered to the Company and the Trustee of the appropriate series of
Securities accepting such appointment executed by the successor Currency
Determination Agent.
(c) If the Currency Determination Agent shall resign, be removed or
become incapable of acting, or if a vacancy shall occur in the office of the
Currency Determination Agent for any cause, with respect to the Securities of
one or more series, the Company, by a Board Resolution, shall promptly
appoint a successor Currency Determination Agent or Currency Determination
Agents with respect to the Securities of that or those series (it being
understood that any such successor Currency Determination Agent may be
appointed with respect to the Securities of one or more or all of such series
and that at any time there shall only be one Currency Determination Agent
with respect to the Securities of any particular series).
ARTICLE IV
Satisfaction and Discharge
Section 401. Option to Effect Legal Defeasance or Covenant Defeasance.
The Company may, at the option of its Board of Directors evidenced by a
Board Resolution set forth in an Officers' Certificate, at any time, with
respect to the Securities of any series, elect to have either Section 402 or
403 be applied to all of the Outstanding Securities of that series upon
compliance with the conditions set forth below in this Article Four.
Section 402. Legal Defeasance and Discharge.
Upon the Company's exercise under Section 401 of the option applicable
to this Section 402, the Company shall be deemed to have been discharged from
its obligations with respect to all Outstanding Securities of the particular
series on the date the conditions set forth below are satisfied (hereinafter,
"Legal Defeasance"). For this purpose, such Legal Defeasance means that the
Company shall be deemed to have paid and discharged all the obligations
relating to the Outstanding Securities of that series and the Securities of
that series shall thereafter be deemed to be "outstanding" only for the
purposes of Section 406, Section 408 and the other Sections of this Indenture
referred to below in this Section 402, and to have satisfied all of its other
obligations under such Securities and this Indenture and cured all then
-46-
<PAGE>
existing Events of Default (and the Trustee, on demand of and at the expense
of the Company, shall execute proper instruments acknowledging the same),
except for the following which shall survive until otherwise terminated or
discharged hereunder: (a) the rights of Holders of outstanding Securities of
the particular series and coupons, if any, of such series to receive payments
in respect of the principal of, premium, if any, and interest, if any, on
such Securities when such payments are due or on the Redemption Date solely
out of the trust created pursuant to this Indenture; (b) the Company's
obligations with respect to such Securities concerning issuing temporary
Securities of that series, or, where relevant, registration of such
Securities, mutilated, destroyed, lost or stolen Securities of that series
and the maintenance of an office or agency for payment and money for Security
payments held in trust; (c) the rights, powers, trusts, duties and immunities
of the Trustee for the Securities of that series, and the Company's
obligations in connection therewith; and (d) this Article Four and the
obligations set forth in Section 406 hereof.
Subject to compliance with this Article Four, the Company may exercise
its option under Section 402 notwithstanding the prior exercise of its option
under Section 403 with respect to the Securities of a particular series.
Section 403. Covenant Defeasance.
Upon the Company's exercise under Section 401 of the option applicable
to this Section 403, the Company shall be released from any obligations under
the covenants contained in Sections 704, 801 and 1007 hereof with respect to
the Outstanding Securities of the particular series on and after the date the
conditions set forth below are satisfied (hereinafter, "Covenant
Defeasance"), and the Securities of that series shall thereafter be deemed
not "Outstanding" for the purposes of any direction, waiver, consent or
declaration or act of Holders (and the consequences of any thereof) in
connection with such covenants, but shall continue to be deemed "Outstanding"
for all other purposes hereunder (it being understood that such Securities
shall not be deemed outstanding for accounting purposes). For this purpose,
such Covenant Defeasance means that, with respect to the Outstanding
Securities of that series, the Company may omit to comply with and shall have
no liability in respect of any term, condition or limitation set forth in any
such covenant, whether directly or indirectly, by reason of any reference
elsewhere herein to any such covenant or by reason of any reference in any
such covenant to any other provision herein or in any other document and such
omission to comply shall not constitute a default or Event of Default under
subsection 501(3) but, except as specified above, the remainder of this
Indenture and the Securities of that series shall be unaffected thereby.
-47-
<PAGE>
Section 404. Conditions to Legal or Covenant Defeasance.
The following shall be the conditions to the application of either
Section 402 or Section 403 to the outstanding Securities of a particular
series:
(a) the Company or the Guarantor must irrevocably deposit, or
cause to be irrevocably deposited, with the Trustee for the Securities
of that series, in trust, for the benefit of the Holders of the
Securities of that series, cash in the currency or currency unit in
which the Securities of that series are payable (except as otherwise
specified pursuant to Section 301 for the Securities of that series and
except as provided in Sections 311(b) and 311(d), in which case the
deposit to be made with respect to Securities for which an election has
occurred pursuant to Section 311(b), or a Conversion Event has occurred
as provided in Section 311(d), shall be made in the currency or currency
unit in which the Securities of that series are payable as a result of
such election or Conversion Event), Government Obligations or a
combination thereof in such amounts as will be sufficient, in the
opinion of an internationally recognized firm of independent public
accountants, to pay the principal of, premium, if any, and interest, if
any, due on the outstanding Securities of that series and any related
coupons at the Stated Maturity, or on the applicable Redemption Date, as
the case may be, with respect to the outstanding Securities of that
series and any related coupons;
(b) in the case of Legal Defeasance, the Company shall have
delivered to the Trustee for the Securities of that series an Opinion of
Counsel in the United States reasonably acceptable to such Trustee
confirming that, subject to customary assumptions and exclusions, (1)
the Company has received from, or there has been published by, the U.S.
Internal Revenue Service a ruling or (2) since the Issue Date, there has
been a change in the applicable U.S. federal income tax law, in either
case to the effect that, and based thereon such Opinion of Counsel in
the United States shall confirm that, subject to customary assumptions
and exclusions, the Holders of the Outstanding Securities of that series
will not recognize income, gain or loss for U.S. federal income tax
purposes as a result of such Legal Defeasance and will be subject to
U.S. federal income tax on the same amounts, in the same manner and at
the same times as would have been the case if such Legal Defeasance had
not occurred;
(c) in the case of Covenant Defeasance, the Company shall have
delivered to the Trustee for the Securities of that series an Opinion of
Counsel in the United States reasonably acceptable to such Trustee
confirming that, subject to customary assumptions and exclusions, the
Holders of the Outstanding Securities of that series will not recognize
-48-
<PAGE>
income, gain or loss for U.S. federal income tax purposes as a result of
such Covenant Defeasance and will be subject to such tax on the same
amounts, in the same manner and at the same times as would have been the
case if such Covenant Defeasance had not occurred;
(d) no Event of Default or event which with the giving of notice
or the lapse of time, or both, would become an Event of Default with
respect to the Securities of that series shall have occurred and be
continuing on the date of such deposit and no Event of Default under
Section 501(5) or Section 501(6) shall have occurred and be continuing
on the 123rd day after such date;
(e) such Legal Defeasance or Covenant Defeasance shall not result
in a breach or violation of, or constitute a default under any material
agreement or instrument to which the Company or the Guarantor is a party
or by which the Company or the Guarantor is bound;
(f) the Company shall have delivered to the Trustee for the
Securities of that series an Officers' Certificate and an Opinion of
Counsel in the United States (which opinion of counsel may be subject to
customary assumptions and exclusions) each stating that all conditions
precedent provided for or relating to the Legal Defeasance or the
Covenant Defeasance, as the case may be, have been complied with.
Section 405. Satisfaction and Discharge of Indenture.
This Indenture will be discharged and will cease to be of further effect
as to all Securities of any particular series issued hereunder when either
(i) all Securities of that series theretofore authenticated and delivered and
all coupons, if any, appertaining thereto (except (A) coupons appertaining to
Bearer Securities surrendered for exchange for Registered Securities and
maturing after such exchange, whose surrender is not required or has been
waived as provided in Section 305, (B) lost, stolen or destroyed Securities
or coupons of such series which have been replaced or paid as provided in
Section 306, (C) coupons appertaining to Securities called for redemption and
maturing after the relevant Redemption Date, whose surrender is not required
as provided in Section 1106 and (D) Securities and coupons of such series for
whose payment money has theretofore been deposited in trust and thereafter
repaid to the Company or the Guarantor or discharged from such trust, as
provided in the last paragraph of Section 1003) have been delivered to the
Trustee for the Securities of that series for cancellation or (ii) (A) all
Securities of that series and any coupons appertaining thereto not
theretofore delivered to Trustee for cancellation are due and payable by
their terms within one year or have become due and payable by reason of the
making of a notice of redemption and the Company has irrevocably deposited or
caused to be deposited with such Trustee as trust funds in trust an amount of
cash in any combination of currency or currency unit in which the Securities
-49-
<PAGE>
of such series are payable (except as otherwise specified pursuant to Section
301 for the Securities of such series and except as provided in Sections
311(b) and 311(d), in which case the deposit to be made with respect to
Securities for which an election has occurred pursuant to Section 311(b) or a
Conversion Event has occurred as provided in Section 311(d), shall be made in
the currency or currency unit in which such Securities are payable as a
result of such election or Conversion Event) sufficient to pay and discharge
the entire indebtedness on such Securities and coupons not theretofore
delivered to the Trustee for the Securities of that series for cancellation
for principal, premium, if any, and accrued and unpaid interest, if any, to
the Stated Maturity or Redemption Date, as the case may be; (B) no Event of
Default or event which with the giving of notice or the lapse of time, or
both, would become an Event of Default shall have occurred and be continuing
on the date of such deposit and no Event of Default under Section 501(5) or
Section 501(6) shall have occurred and be continuing on the 123rd day after
such date; (C) the Company or the Guarantor has paid, or caused to be paid,
all sums payable by it under this Indenture; and (D) the Company or the
Guarantor, as the case may be has delivered irrevocable instructions to the
Trustee for the Securities of that series under this Indenture to apply the
deposited money toward the payment of such Securities and coupons at the
Stated Maturity or the Redemption Date, as the case may be. In addition, the
Company must deliver an Officers' Certificate and an Opinion of Counsel to
the Trustee for the Securities of that series stating that all conditions
precedent to satisfaction and discharge have been satisfied.
Section 406. Survival of Certain Obligations.
Notwithstanding the satisfaction and discharge of this Indenture and of
the Securities of a particular series referred to in Sections 401, 402, 404,
or 405, the respective obligations of the Company, the Guarantor and the
Trustee for the Securities of a particular series under Sections 303, 304,
305, 307, 309, 407, 408, 409, 410, and 508, Article Six, and Sections 701,
702, 1002, 1003, 1004 and 1006, shall survive with respect to Securities of
that series until the Securities of that series are no longer outstanding,
and thereafter the obligations of the Company , the Guarantor and the Trustee
for the Securities of a particular series with respect to that series under
Sections 407, 408, 409, and 410 shall survive. Nothing contained in this
Article Four shall abrogate any of the obligations or duties of the Trustee
of any series of Securities under this Indenture.
Notwithstanding the satisfaction of the conditions set forth in Sections
404 or 405 with respect to all the Securities of any series not payable in
Dollars, upon the happening of any Conversion Event the Company shall be
obligated to make the payments in Dollars required by Section 311(d) to the
extent that the Trustee is unable to convert any Foreign Currency or currency
unit or currency unit in its possession pursuant to Sections 404 or 405 into
the Dollar equivalent of such Foreign Currency or currency unit, as the case
-50-
<PAGE>
may be. If, after the deposits referred to in Sections 404 or 405 have been
made, (x) the Holder of a Security is entitled to, and does, elect pursuant
to Section 311(b) to receive payment in a currency or currency unit other
than that in which the deposit pursuant to Sections 404 or 405 was made, or
(y) a Conversion Event occurs as contemplated in Section 311(d), then the
indebtedness represented by such Security shall be fully discharged to the
extent that the deposit made with respect to such Security shall be converted
into the currency or currency unit in which such Security is payable. The
Trustee shall return to the Company any non-converted funds or securities in
its possession after such payments have been made.
Section 407. Acknowledgment of Discharge by Trustee.
Subject to Section 410, after (i) the conditions of Section 404 or 405
have been satisfied with respect to the Securities of a particular series,
(ii) the Company or the Guarantor has paid or caused to be paid all other
sums payable hereunder by the Company and the Guarantor and (iii) the Company
has delivered to the Trustee for the Securities of that series an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent referred to in clause (i) above relating to the satisfaction and
discharge of this Indenture have been complied with, the Trustee for the
Securities of that series upon written request shall acknowledge in writing
the discharge of all of the Company's and the Guarantor's obligations under
this Indenture except for those surviving obligations specified in this
Article Four.
Section 408. Application of Trust Moneys.
All money and Government Obligations deposited with the Trustee for the
Securities of a particular series pursuant to Section 404 or 405 in respect
of the Securities of that series shall be held in trust and applied by it, in
accordance with the provisions of such Securities and this Indenture, to the
payment, either directly or through any Paying Agent as the Trustee may
determine, to the Holders of the Securities and all related coupons of all
sums due and to become due thereon for principal, premium, if any, and
interest, if any, but such money need not be segregated from other funds
except to the extent required by law.
The Company shall pay and indemnify the Trustee for the Securities of a
particular series against any tax, fee or other charge imposed on or assessed
against the Government Obligations deposited pursuant to Section 404 or 405
with respect to the Securities of that series or the principal and interest
received in respect thereof other than any such tax, fee or other charge
which by law is for the account of the Holders of outstanding Securities of
that series.
-51-
<PAGE>
Section 409. Repayment to the Company or the Guarantor; Unclaimed Money.
The Trustee and any Paying Agent for a series of Securities shall
promptly pay or return to the Company upon Company Order or the Guarantor
upon Guarantor Order, as the case may be, any cash or Government Obligations
held by them at any time that are not required for the payment of the
principal of, premium, if any, and interest, if any, on the Securities and
all related coupons for Securities of that series for which cash or
Government Obligations have been deposited pursuant to Section 404 or 405.
Any money deposited with the Trustee or any Paying Agent for the
Securities of any series, or then held by the Company or the Guarantor, in
trust for the payment of the principal of (and premium, if any) and interest,
if any, on any Security of any particular series and all related coupons
appertaining thereto and remaining unclaimed for two years after such
principal (and premium, if any) and interest, if any, has become due and
payable shall, unless otherwise required by mandatory provisions of
applicable escheat, or abandoned or unclaimed property law, be paid to the
Company or the Guarantor, as the case may be, on Company Request or Guarantor
Request, or (if then held by the Company or the Guarantor) shall be
discharged from such trusts; and the Holder of such Security and all related
coupons shall, thereafter, as an unsecured general creditor, look only to the
Company (or the Guarantor pursuant to its Guarantee) for payment thereof, and
all liability of such Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company or the Guarantor as trustee thereof,
shall thereupon cease; provided, however, that such Trustee or such Paying
Agent, before being required to make any such repayment may give written
notice to the Holder of such Security in the manner set forth in Section 106,
that such money remains unclaimed and that, after a date specified therein,
which shall not be less than 30 days from the date of such publication, any
unclaimed balance of such money then remaining will, unless otherwise
required by mandatory provisions of applicable escheat, or abandoned or
unclaimed property law, be repaid to the Company or the Guarantor, as the
case may be.
Section 410. Reinstatement.
If the Trustee or Paying Agent for a series of Securities is unable to
apply any cash or Government Obligations, as applicable, in accordance with
Section 402, 403, 404 or 405 by reason of any legal proceeding or by reason
of any order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, the Company's and the
Guarantor's obligations under this Indenture and the Securities of that
series shall be revived and reinstated as though no deposit had occurred
pursuant to Section 402, 403, 404 or 405 until such time as the Trustee or
Paying Agent for that series is permitted to apply all such cash or
Government Obligations in accordance with Section 402, 403, 404 or 405;
-52-
<PAGE>
provided, however, that if the Company or the Guarantor has made any payment
of principal, premium, if any, and interest, if any, on any Securities and
any related coupons because of the reinstatement of its obligations, the
Company or the Guarantor as the case may be, shall be subrogated to the
rights of the Holders of such Securities and such coupons to receive such
payment from the cash or Government Obligations, as applicable, held by such
Trustee or Paying Agent.
ARTICLE V
Remedies
Section 501. Events of Default.
"Event of Default" wherever used herein with respect to any particular
series of Securities means any one of the following events and such other
events as may be established with respect to the Securities of such series as
contemplated by Section 301 (whatever the reason for such Event of Default
and whether it shall be voluntary or involuntary or be effected by operation
of law pursuant to any judgment, decree or order of any court or any order,
rule or regulation of any administrative or governmental body):
(1) default in the payment of any instalment of interest upon any
Security of that series and any related coupon when it becomes due and
payable, and continuance of such default for a period of 30 days; or
(2) default in the payment of the principal of (or premium, if
any, on) any Security of that series at its Maturity or default in the
deposit of any sinking fund payment when and as due by the terms of any
Security of that series; or
(3) default in the performance of, or breach of, any covenant or
warranty of the Company or the Guarantor in respect of any Security of
that series contained in this Indenture or in such Securities (other
than a covenant or warranty a default in whose performance or whose
breach is elsewhere in this Section specifically dealt with) or in the
applicable Board Resolutions under which such series is issued as
contemplated by Section 301 and continuance of such default or breach
for a period of 60 days after there has been given, by registered or
certified mail, to the Company and the Guarantor by the Trustee for the
Securities of such series or to the Company, the Guarantor and such
Trustee by the Holders of at least 25% in principal amount of the
Outstanding Securities of that series a written notice specifying such
default or breach and requiring it to be remedied and stating that such
notice is a "Notice of Default" hereunder; or
-53-
<PAGE>
(4) acceleration of maturity of Securities of another series or
any other indebtedness for borrowed money of the Company or the
Guarantor, in an aggregate principal amount exceeding $10 million, under
the terms of the instrument or instruments under which such indebtedness
is issued or secured, if such acceleration is not annulled within 30
days after written notice is provided of such acceleration to the
Company and the Guarantor; or
(5) the Company or the Guarantor shall commence any case or
proceeding seeking to have an order for relief entered on its behalf as
debtor or to adjudicate it as bankrupt or insolvent or seeking
reorganization, liquidation, dissolution, winding-up, arrangement,
composition or readjustment of its debts or any other relief under any
bankruptcy, insolvency, reorganization, liquidation, dissolution,
arrangement, composition, readjustment of debt or other similar act or
law of any jurisdiction, domestic or foreign, now or hereafter existing;
or the Company or the Guarantor shall apply for a receiver, custodian or
trustee (other than any trustee appointed as a mortgagee or secured
party in connection with the issuance of indebtedness for borrowed money
of the Company or the Guarantor) of it or for all or a substantial part
of its property; or the Company or the Guarantor shall make a general
assignment for the benefit of creditors; or the Company or the Guarantor
shall take any corporate action in furtherance of any of the foregoing;
or
(6) an involuntary case or other proceeding shall be commenced
against the Company or the Guarantor with respect to it or its debts
under any bankruptcy, insolvency or other similar law now or hereafter
in effect seeking the appointment of a trustee, receiver, liquidator,
custodian or similar official of the Company or the Guarantor or any
substantial part of either's property; and such case or other proceeding
(A) results in the entry of an order for relief or a similar order
against either the Company or the Guarantor or (B) shall continue
unstayed and in effect for a period of 60 consecutive days; or
(7) any other Event of Default provided in the Security or the
Board Resolution with respect to Securities of that series.
Section 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to any particular series of
Securities and any related coupons occurs and is continuing (other than an
Event of Default described in Section 501(5) or 501(6)), then and in every
such case either the Trustee for the Securities of such series or the Holders
of not less than 25% in principal amount of the Outstanding Securities of
that series may declare the entire principal amount (or, in the case of
(i) OID Securities, such lesser amount as may be provided for in the terms of
-54-
<PAGE>
that series or (ii) Indexed Securities, the amount determined in accordance
with the specified terms of those Securities) of all the Securities of that
series, to be due and payable immediately, by a notice in writing to the
Company and the Guarantor (and to such Trustee if given by Holders), and upon
any such declaration of acceleration such principal or such lesser amount, as
the case may be, together with accrued interest and all other amounts owing
hereunder, shall become immediately due and payable, without presentment,
demand, protest or notice of any kind, all of which are hereby expressly
waived.
If any Event of Default specified in Section 501(5) or 501(6) occurs
with respect to the Company or the Guarantor, all of the unpaid principal
amount (or, if the Securities of any series then outstanding are (i) OID
Securities, such lesser amount as may be provided for in the terms of that
series or (ii) Indexed Securities, the amount determined in accordance with
the specified terms of those Securities) and accrued interest on all
Securities of each series then outstanding shall ipso facto become and be
immediately due and payable without any declaration or other act by the
Trustee or any Holder.
At any time after such a declaration of acceleration has been made and
before a judgment or decree for payment of the money due has been obtained by
the Trustee for the Securities of any series as hereinafter in this Article
provided, the Holders of a majority in principal amount of the Outstanding
Securities of that series, by written notice to the Company, the Guarantor
and such Trustee, may rescind and annul such declaration and its consequences
if:
(1) the Company or the Guarantor has paid or deposited with such
Trustee a sum sufficient to pay in the currency or currency unit in
which the Securities of such series are payable (except as otherwise
specified pursuant to Section 301 for the Securities of such series and
except as provided in Sections 311(b) and 311(d).
(A) all overdue interest on all Securities of that series and
any related coupons;
(B) the principal of (and premium, if any, on) any Securities
of that series which have become due otherwise than by such
declaration of acceleration and interest thereon from the date such
principal became due at a rate per annum equal to the rate borne by
the Securities of such series (or, in the case of (i) OID
Securities, the Securities' Yield to Maturity or (ii) Indexed
Securities, the rate determined in accordance with the specified
terms of those Securities), to the extent that the payment of such
interest shall be legally enforceable;
-55-
<PAGE>
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest at a rate per annum equal to the
rate borne by the Securities of such series (or, in the case of
(i) OID Securities, the Securities' Yield to Maturity or
(ii) Indexed Securities, the rate determined in accordance with the
specified terms of those Securities); and
(D) all sums paid or advanced by such Trustee hereunder and
the reasonable compensation, expenses, disbursements and advances
of such Trustee, its agents and counsel and all other amounts due
to such Trustee under Section 607;
and
(2) all Events of Default with respect to the Securities of such
series, other than the nonpayment of the principal of Securities of that
series which has become due solely by such acceleration, have been cured
or waived as provided in Section 513. No such rescission shall affect
any subsequent default or impair any right consequent thereon.
Section 503. Collection of Indebtedness and Suits for Enforcement by
Trustee.
The Company covenants that if:
(1) default is made in the payment of any interest upon any
Security of any series and any related coupons when such interest
becomes due and payable and such default continues for a period of 30
days; or
(2) default is made in the payment of the principal of (or
premium, if any, on) any Security of any series at its Maturity;
the Company will, upon demand of the Trustee for the Securities of such
series, pay to it, for the benefit of the Holders of such Securities and
coupons, the whole amount then due and payable on such Securities and coupons
for principal (and premium if any) and interest, if any, with interest upon
the overdue principal (and premium, if any) and, to the extent that payment
of such interest shall be legally enforceable, upon any overdue installments
of interest at a rate per annum equal to the rate borne by such Securities
(or, in the case of (i) OID Securities, the Securities' Yield to Maturity or
(ii) Indexed Securities, the rate determined in accordance with the specified
terms of those Securities); and, in addition thereto, such further amount as
shall be sufficient to cover the costs and expenses of collection, including
the reasonable compensation, expenses, disbursements and advances of such
Trustee, its agents and counsel and all other amounts due to such Trustee
under Section 607.
-56-
<PAGE>
If the Company fails to pay such amounts forthwith upon such demand,
such Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding against the Company and/or the Guarantor for
the collection of the sums so due and unpaid, and may prosecute such
proceedings to judgment or final decree, and may enforce the same against the
Company, the Guarantor or any other obligor upon the Securities and collect
the moneys adjudged or decreed to be payable in the manner provided by law
out of the property of the Company, the Guarantor or any other obligor upon
the Securities, wherever situated.
If an Event of Default with respect to Securities of any particular
series occurs and is continuing, the Trustee for the Securities of such
series may in its discretion proceed to protect and enforce its rights and
the rights of the Holders of Securities of that series by such appropriate
judicial proceedings as such Trustee shall deem most effectual to protect and
enforce any such rights, whether for the specific enforcement of any covenant
or agreement in this Indenture or in aid of the exercise of any power granted
herein, or to enforce any other proper remedy.
Section 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relating to the Company, the Guarantor or any other
obligor upon the Securities of any series or the property of the Company, the
Guarantor or of such other obligor or their creditors, the Trustee for the
Securities of such series (irrespective of whether the principal (or, if the
Securities of such series are (i) OID Securities or (ii) Indexed Securities,
such amount as may be due and payable with respect to such Securities
pursuant to a declaration in accordance with Section 502) of any Security of
such series shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether such Trustee shall have
made any demand on the Company or the Guarantor for the payment of overdue
principal or interest) shall be entitled and empowered, by intervention in
such proceeding or otherwise
(i) to file and prove a claim for the whole amount of principal
(or, if the Securities of such series are (i) OID Securities or
(ii) Indexed Securities, such amount as may be due and payable with
respect to such Securities pursuant to a declaration in accordance with
Section 502) (and premium, if any) and interest, if any, owing and
unpaid in respect of the Securities of such series and any related
coupons and to file such other papers or documents as may be necessary
or advisable in order to have the claims of such Trustee (including any
claim for the reasonable compensation, expenses, disbursements and
advances of such Trustee, its agents and counsel and all other amounts
due to such Trustee under Section 607) and of the Holders of the
-57-
<PAGE>
Securities of such series and any related coupons allowed in such
judicial proceeding;
(ii) to collect and receive any moneys or other property payable
or deliverable on any such claims and to distribute the same; and
(iii) unless prohibited by law or applicable regulations, to vote on
behalf of the Holders of the Securities of such series in any election
of a trustee in bankruptcy or other person performing similar functions;
and any receiver, assignee, trustee, liquidator, sequestrator (or other
similar official) in any such judicial proceeding is hereby authorized by
each Holder of Securities and coupons to make such payments to such Trustee,
and in the event that such Trustee shall consent to the making of such
payments directly to the Holders of Securities and coupons, to pay to such
Trustee any amount due to it for the reasonable compensation, expenses,
disbursements and advances of such Trustee, its agents and counsel, and any
other amounts due such Trustee under Section 607.
Nothing herein contained shall be deemed to authorize the Trustee for
the Securities of any series to authorize or consent to or accept or adopt on
behalf of any Holder of a Security or coupon any plan of reorganization,
arrangement, adjustment or composition affecting the Securities of such
series or the rights of any Holder thereof, or to authorize the Trustee for
the Securities or coupons of any series to vote in respect of the claim of
any Holder in any such proceeding, except as aforesaid, for the election of a
trustee in bankruptcy or other person performing similar functions.
Section 505. Trustee May Enforce Claims Without Possession of Securities or
Coupons.
All rights of action and claims under this Indenture or the Securities
or coupons of any series may be prosecuted and enforced by the Trustee for
the Securities of any series without the possession of any of the Securities
or coupons of such series or the production thereof in any proceeding
relating thereto, and any such proceeding instituted by such Trustee shall be
brought in its own name as trustee of an express trust, and any recovery of
judgment shall, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of such Trustee, its
agents and counsel and all other amounts due to such Trustee under Section
607, be for the ratable benefit of the Holders of the Securities and coupons
of such series in respect of which such judgment has been recovered.
-58-
<PAGE>
Section 506. Application of Money Collected.
Any money collected by the Trustee for the Securities of any series
pursuant to this Article with respect to the Securities or coupons of such
series shall be applied in the following order, at the date or dates fixed by
such Trustee and, in case of the distribution of such money on account of
principal (or premium, if any) or interest, if any, upon presentation of the
Securities or coupons of such series, or both, as the case may be, and the
notation thereon of the payment if only partially paid and upon surrender
thereof if fully paid:
First: To the payment of all amounts due such Trustee under
Section 607;
Second: To the payment of the amounts then due and unpaid upon
the Securities and coupons of such series for principal of (and premium,
if any) and interest, if any, on such Securities in respect of which or
for the benefit of which such money has been collected, ratably, without
preference or priority of any kind, according to the amounts due and
payable on such Securities and coupons for principal (and premium, if
any) and interest, if any, respectively; and
Third: The balance, if any, to the Person or Persons entitled
thereto.
Section 507. Limitation on Suits.
No Holder of any Security of any particular series or any related
coupons shall have any right to institute any proceeding, judicial or
otherwise, with respect to this Indenture, or for the appointment of a
receiver or trustee, or for any other remedy hereunder, unless:
(1) an Event of Default with respect to that series shall have
occurred and be continuing and such Holder shall have previously given
written notice to the Trustee for the Securities of such series of such
default and the continuance thereof;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written request to
the Trustee for the Securities of such series to institute proceedings
in respect of such Event of Default in its own name as Trustee
hereunder;
(3) such Holder or Holders have offered to such Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
-59-
<PAGE>
(4) such Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has been
given to such Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Securities of that
series;
it being understood and intended that no one or more Holders of Securities of
that series shall have any right in any manner whatever by virtue of, or by
availing of, any provision of this Indenture to affect, disturb or prejudice
the rights of any other Holders of Securities of that series, or to enforce
any right under this Indenture, except in the manner herein provided and for
the equal and ratable benefit of all the Holders of Securities of that
series.
Section 508. Unconditional Right of Holders to Receive Principal (and
Premium, if any) and Interest, if any.
Notwithstanding any other provision in this Indenture, the Holder of any
Security or coupon shall have the right which is absolute and unconditional
to receive payment of the principal of (and premium, if any) and (subject to
Section 307) interest, if any, on such Security on the respective Stated
Maturities expressed in such Security or coupon (or, in the case of
redemption, on the Redemption Date) and to institute suit for the enforcement
of any such payment, and such right shall not be impaired without the consent
of such Holder.
Section 509. Restoration of Rights and Remedies.
If the Trustee for the Securities of any series or any Holder of a
Security or coupon has instituted any proceeding to enforce any right or
remedy under this Indenture and such proceeding has been discontinued or
abandoned for any reason, or has been determined adversely to such Trustee or
to such Holder, then and in every such case the Company, the Guarantor, such
Trustee and the Holders of Securities or coupons shall, subject to any
determination in such proceeding, be restored severally and respectively to
their former positions hereunder, and thereafter all rights and remedies of
such Trustee and such Holders shall continue as though no such proceeding had
been instituted.
-60-
<PAGE>
Section 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Securities or coupons in the last
paragraph of Section 306, no right or remedy herein conferred upon or
reserved to the Trustee for the Securities of any series or to the Holders of
Securities or coupons 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 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee for the Securities of any series or
of any Holder of any Security of such series to exercise any right or remedy
accruing upon any Event of Default with respect to the Securities of such
series shall impair any such right or remedy or constitute a waiver of any
such Event of Default or an acquiescence therein. Every right and remedy
given by this Article or by law to such Trustee for the Securities or coupons
of any series or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by such Trustee or by the Holders, as the
case may be.
Section 512. Control by Holders.
The Holders of a majority in principal amount of the Outstanding
Securities of any particular series shall have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee for the Securities of such series with respect to the Securities of
that series or exercising any trust or power conferred on such Trustee with
respect to such Securities, provided that:
(1) such direction shall not be in conflict with any rule of law
or with this Indenture and could not involve the Trustee in personal
liability; and
(2) such Trustee may take any other action deemed proper by such
Trustee which is not inconsistent with such direction.
-61-
<PAGE>
Section 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any particular series and any related coupons may
on behalf of the Holders of all the Securities of that series waive any past
default hereunder with respect to that series and its consequences, except:
(1) a default in the payment of the principal of (or premium, if
any) or interest, if any, on any Security of that series; or
(2) a default with respect to a covenant or provision hereof which
under Article Nine cannot be modified or amended without the consent of
the Holder of each Outstanding Security of that series affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent
or other default or impair any right consequent thereon.
Section 514. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security or
coupon by his acceptance thereof 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 Indenture or in any suit against the Trustee for
the Securities or coupons of any series for any action taken or omitted by it
as Trustee, 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; but the provisions of
this Section shall not apply to any suit instituted by the Trustee for the
Securities of any series, to any suit instituted by any Holder, or group of
Holders, holding in the aggregate more than 10% in principal amount of the
Outstanding Securities of any particular series or to any suit instituted by
any Holder of any Security or coupon for the enforcement of the payment of
the principal of (or premium, if any) or interest, if any, on any Security of
such series or the payment of any coupon on or after the respective Stated
Maturities expressed in such Security or coupon (or, in the case of
redemption, on or after the Redemption Date).
Section 515. Waiver of Stay or Extension Laws.
The Company and the Guarantor each 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
-62-
<PAGE>
may affect the covenants or the performance of this Indenture; and the
Company and the Guarantor each (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 Trustee for any series of Securities, but will suffer
and permit the execution of every such power as though no such law had been
enacted.
Section 516. Judgment Currency.
If, for the purpose of obtaining a judgment in any court with respect to
any obligation of the Company or the Guarantor hereunder or under any
Security or any related coupon, it shall become necessary to convert into any
other currency or currency unit any amount in the currency or currency unit
due hereunder or under such Security or coupon, then such conversion shall be
made by the Currency Determination Agent at the Market Exchange Rate as in
effect on the date of entry of the judgment (the "Judgment Date"). If
pursuant to any such judgment, conversion shall be made on a date (the
"Substitute Date") other than the Judgment Date and there shall occur a
change between the Market Exchange Rate as in effect on the Judgment Date and
the Market Exchange Rate as in effect on the Substitute Date, the Company and
the Guarantor agree to pay such additional amounts, if any, as may be
necessary to ensure that the amount paid is equal to the amount in such other
currency or currency unit which, when converted at the Market Exchange Rate
as in effect on the Judgment Date, is the amount due hereunder or under such
Security or coupon. Any amount due from the Company or the Guarantor under
this Section 516 shall be due as a separate debt and is not to be affected by
or merged into any judgment being obtained for any other sums due hereunder
or in respect of any Security or coupon. In no event, however, shall the
Company and the Guarantor be required to pay more in the currency or currency
unit due hereunder or under such Security or coupon at the Market Exchange
Rate as in effect on the Judgment Date than the amount of currency or
currency unit stated to be due hereunder or under such Security or coupon so
that in any event the Company's or the Guarantor's obligations hereunder or
under such Security or coupon will be effectively maintained as obligations
in such currency or currency unit, and the Company and the Guarantor shall be
entitled to withhold (or be reimbursed for, as the case may be) any excess of
the amount actually realized upon any such conversion on the Substitute Date
over the amount due and payable on the Judgment Date.
-63-
<PAGE>
ARTICLE VI
The Trustee
Section 601. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default with respect
to the Securities of any series for which the Trustee is serving as such,
(1) such Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into this Indenture against such
Trustee; and
(2) in the absence of bad faith on its part, such Trustee may
conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon certificates or opinions
furnished to such Trustee and conforming to the requirements of this
Indenture; but in the case of any such certificates or opinions which by
any provisions hereof are specifically required to be furnished to such
Trustee, such Trustee shall be under a duty to examine the same to
determine whether or not they conform to the requirements of this
Indenture.
(b) In case an Event of Default with respect to a series of Securities
has occurred and is continuing, the Trustee for the Securities of such series
shall exercise such of the rights and powers vested in it by this Indenture,
and use the same degree of care and skill in their exercise, as a prudent man
would exercise or use under the circumstances in the conduct of his own
affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee for Securities of any series from liability for its own grossly
negligent action, its own grossly negligent failure to act, or its own
willful misconduct, except that:
(1) this Subsection shall not be construed to limit the effect of
Subsection (a) of this Section;
(2) such Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it shall be proved
that the Trustee was negligent in ascertaining the pertinent facts;
(3) such Trustee shall not be liable with respect to any action
taken, suffered or omitted to be taken by it in good faith in accordance
with the direction of the Holders of a majority in principal amount of
the Outstanding Securities of any particular series, determined as
-64-
<PAGE>
provided in Section 512, relating to the time, method and place of
conducting any proceeding for any remedy available to such Trustee, or
exercising any trust or power conferred upon such Trustee, under this
Indenture with respect to the Securities of that series; and
(4) no provision of this Indenture shall require the Trustee for
any series of Securities 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.
(d) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee for any series of Securities shall be
subject to the provisions of this Section.
Section 602. Notice of Defaults.
Within 90 days after the occurrence of any default hereunder with
respect to Securities of any particular series, the Trustee for the
Securities of such series shall give to Holders of Securities of that series,
in the manner set forth in Section 106, notice of such default known to such
Trustee, unless such default shall have been cured or waived; provided,
however, that, except in the case of a default in the payment of the
principal of (or premium, if any) or interest, if any, on any Security of
that series, or in the deposit of any sinking fund payment with respect to
Securities of that series, such Trustee shall be protected in withholding
such notice if and so long as the board of directors, the executive committee
or a trust committee of directors and/or Responsible Officers of such Trustee
in good faith determines that the withholding of such notice is in the
interest of the Holders of Securities of that series and related coupons; and
provided, further, that in the case of any default of the character specified
in Section 501(3) with respect to Securities of that series no such notice to
Holders shall be given until at least 60 days after the occurrence thereof.
For the purpose of this Section, the term "default" means any event which is,
or after notice or lapse of time or both would become, an Event of Default
with respect to Securities of that series.
-65-
<PAGE>
Section 603. Certain Rights of Trustee.
Except as otherwise provided in Section 601:
(a) the Trustee for any series of Security may rely and shall be
protected in acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice, request,
discretion, consent, order, bond, debenture 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 the Company or the Guarantor
mentioned herein shall be sufficiently evidenced by a Company Request or
Company Order or Guarantor Request or Guarantor Order and any resolution
of the Board of Directors of the Company or the Guarantor may be
sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture such Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, such Trustee (unless
other evidence be herein specifically prescribed) may, in the absence of
bad faith on its part, rely upon an Officers' Certificate;
(d) such Trustee may consult with counsel and the written 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) such Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders of Securities of any series pursuant to
this Indenture for which it is acting as Trustee, unless such Holders
shall have offered to such Trustee reasonable security or indemnity
against the costs, expenses and liabilities which might be incurred by
it in compliance with such request or direction;
(f) such Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, discretion, consent,
order, bond, debenture or other paper or document, but such Trustee, in
its discretion, may make such further inquiry or investigation into such
facts or matters at it may see fit, and, if such Trustee shall determine
to make such further inquiry or investigation, it shall be entitled to
examine the books, records and premises of both the Company and the
Guarantor, personally or by agent or attorney; and
-66-
<PAGE>
(g) such Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents
or attorneys and such Trustee shall not be responsible for any
misconduct or negligence on the part of any agent or attorney appointed
with due care by it hereunder.
Section 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication thereof, and the Guarantees, and in
any coupons shall be taken as the statements of the Company or the Guarantor,
as the case may be, and neither the Trustee for any series of Securities, nor
any Authenticating Agent assumes any responsibility for their correctness.
The Trustee for any series of Securities makes no representations as to the
validity or sufficiency of this Indenture or of the Securities of any series
or the Guarantees or coupons. Neither the Trustee for any series of
Securities nor any Authenticating Agent shall be accountable for the use or
application by the Company of Securities or the proceeds thereof.
Section 605. May Hold Securities.
The Trustee for any series of Securities, any Authenticating Agent,
Paying Agent, Security Registrar or any other agent of the Company, the
Guarantor or such Trustee, in its individual or any other capacity, may
become the owner or pledgee of Securities and, subject to Sections 608 and
613, may otherwise deal with the Company and the Guarantor with the same
rights it would have if it were not such Trustee, Authenticating Agent,
Paying Agent, Security Registrar or such other agent.
Section 606. Money Held in Trust.
Money held by the Trustee for any series of Securities in trust
hereunder need not be segregated from other funds except as provided in
Section 115 and except to the extent required by law. The Trustee for any
series of Securities shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed with the Company or the
Guarantor, as the case may be.
Section 607. Compensation and Reimbursement.
The Company and the Guarantor jointly and severally agree:
(1) to pay to the Trustee for any series of Securities from time
to time reasonable compensation in Dollars for all services rendered by
it hereunder (which compensation shall not be limited by any provision
of law in regard to the compensation of a trustee of an express trust);
-67-
<PAGE>
(2) except as otherwise expressly provided herein, to reimburse
the Trustee for any series of Securities in Dollars upon its request for
all reasonable expenses, disbursements and advances incurred or made by
such Trustee in accordance with any provision of this Indenture
(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 gross negligence
or bad faith; and
(3) to indemnify such Trustee and its agents in Dollars for, and
to hold them harmless against, any loss, liability or expense incurred
without gross negligence or bad faith on their part, arising out of or
in connection with the acceptance or administration of this trust,
including the costs and expenses of defending themselves against any
claim or liability in connection with the exercise or performance of any
of their powers or duties hereunder.
As security for the performance of the obligations of the Company and
the Guarantor under this Section the Trustee for any series of Securities
shall have a lien prior to the Securities upon all property and funds held or
collected by such Trustee as such, except funds held in trust for the payment
of principal of (and premium, if any) or interest, if any, on particular
Securities.
Section 608. Disqualification; Conflicting Interests.
The Trustee for the Securities shall be subject to the provisions of
Section 310(b) of the Trust Indenture Act during the period of time required
thereby. Nothing herein shall prevent the Trustee from filing with the
Commission the application referred to in the penultimate paragraph of
Section 310(b) of the Trust Indenture Act. In determining whether the
Trustee has a conflicting interest as defined in Section 310(b) of the Trust
Indenture Act with respect to the Securities of any series, there shall be
excluded Securities of any particular series of Securities other than that
series.
Section 609. Corporate Trustee Required; Different Trustees for Different
Series; Eligibility.
There shall at all times be a Trustee hereunder which shall be
(i) 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,
and subject to supervision or examination by Federal or State authority,
or
-68-
<PAGE>
(ii) a corporation or other Person organized and doing business
under the laws of a foreign government that is permitted to act as
Trustee pursuant to a rule, regulation, or other order of the
Commission, authorized under such laws to exercise corporate trust
powers, and subject to supervision or examination by authority of such
foreign government or a political subdivision thereof substantially
equivalent to supervision or examination applicable to United States
institutional trustee, having a combined capital and surplus of at least
$50,000,000. If such corporation publishes reports of condition at
least annually, pursuant to law or to requirements of the aforesaid
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. None of the Company, the
Guarantor or any Person directly or indirectly controlling, controlled
by, or under the common control of the Company or the Guarantor shall
serve as Trustee for the Securities. If at any time the Trustee shall
cease to be eligible in accordance with the provisions of this Section,
it shall resign immediately in the manner and with the effect hereunder
specified in this Article.
Section 610. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee for the Securities of any
series and no appointment of a successor Trustee pursuant to this Article
shall become effective until the acceptance of appointment by the successor
Trustee in accordance with the applicable requirements of Section 611.
(b) The Trustee for the Securities of any series may resign at any time
with respect to the Securities of such series by giving written notice
thereof to the Company and the Guarantor. If the instrument of acceptance by
a successor Trustee required by Section 611 shall not have been delivered to
the Trustee for the Securities of such series within 30 days after the giving
of such notice of resignation, the resigning Trustee may petition any court
of competent jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series.
(c) The Trustee for the Securities of any series may be removed at any
time with respect to the Securities of such series by Act of the Holders of a
majority in principal amount of the Outstanding Securities of such series,
delivered to such Trustee and to the Company and to the Guarantor.
(d) If at any time:
(1) the Trustee for the Securities of any series shall fail to
comply with Section 310(b) of the Trust Indenture Act pursuant to
Section 608 hereof after written request therefor by the Company or the
-69-
<PAGE>
Guarantor or by any Holder who has been a bona fide Holder of a Security
of such series for at least six months, unless the Trustee's duty to
resign is stayed in accordance with the provisions of Section 310(b) of
the Trust Indenture Act, or
(2) such Trustee shall cease to be eligible under Section 609 and
shall fail to resign after written request therefor by the Company or
the Guarantor or by any such Holder, or
(3) such Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of such Trustee or of its
property shall be appointed or any public officer shall take charge or
control of such Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation, then, in any such case, (i)
the Company by a Board Resolution may remove such Trustee or (ii)
subject to Section 514, any Holder who has been a bona fide Holder of a
Security of such series 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 such Trustee and the
appointment of a successor Trustee.
(e) If the Trustee for the Securities of any series shall resign, be
removed or become incapable of acting, or if a vacancy shall occur in the
office of Trustee for the Securities of any series for any cause, the
Company, by a Board Resolution, shall promptly appoint a successor Trustee
with respect to the Securities of such series and shall comply with the
applicable requirements of Section 611. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of such series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the
Guarantor and the retiring Trustee, the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment in accordance with the
applicable requirements of Section 611, become the successor Trustee for the
Securities of such series and supersede the successor Trustee appointed by
the Company. If no successor Trustee for the Securities of such series shall
have been so appointed by the Company or the Holders and shall have accepted
appointment in the manner required by Section 611, and if such Trustee is
still incapable of acting, any Holder who has been a bona fide Holder of a
Security of such series for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction
for the appointment of a successor Trustee with respect to the Securities of
such series.
(f) The Company shall give notice of each resignation and each removal
of the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee with respect to the Securities of any
-70-
<PAGE>
series in the manner and to the extent provided in Section 106. Each notice
shall include the name of the successor Trustee with respect to the
Securities of that series and the address of its Corporate Trust Office.
Section 611. Acceptance of Appointment by Successor.
(a) Every such successor Trustee appointed hereunder with respect to
the Securities of any series shall execute, acknowledge and deliver to the
Company and the Guarantor and to the retiring Trustee an instrument accepting
such appointment, and thereupon the resignation or removal of the retiring
Trustee shall become effective and such successor Trustee without any further
act, deed or conveyance, shall become vested with all the rights, powers,
trusts and duties of the retiring Trustee; but, on the request of the
Company, the Guarantor or the successor Trustee, such retiring Trustee shall,
upon payment of its charges, execute and deliver an instrument transferring
to such successor Trustee all the rights, powers and trusts of the retiring
Trustee and shall duly assign, transfer and deliver to such successor Trustee
all property and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company,
the Guarantor, the retiring Trustee and each successor Trustee with respect
to the Securities of one or more series shall execute and deliver an
indenture supplemental hereto wherein each successor Trustee shall accept
such appointment and which (1) shall contain such provisions as shall be
necessary or desirable to transfer and confirm to, and to vest in, each
successor Trustee all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates, (2) if the retiring Trustee is
not retiring with respect to all Securities, shall contain such provisions as
shall be deemed necessary or desirable to confirm that all the rights,
powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series as to which the retiring Trustee is not
retiring shall continue to be vested in the retiring Trustee and (3) shall
add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein
or in such supplemental indenture shall constitute such Trustees co-trustees
of the same trust and each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered
by any other such Trustee; and upon the execution and delivery of such
supplemental indenture the resignation or removal of the retiring Trustee
shall become effective to the extent provided therein and each such successor
Trustee, without any further act, deed or conveyance, shall become vested
with all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series to which the appointment of
such successor Trustee relates; but, on request of the Company, the Guarantor
-71-
<PAGE>
or any successor Trustee, such retiring Trustee shall duly assign, transfer
and deliver to such successor Trustee all property and money held by such
retiring Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company and the
Guarantor shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Trustee all such rights, powers
and trusts referred to in Subsections (a) or (b) of this Section, as the case
may be.
(d) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee for the Securities of any
series shall be qualified and eligible under this Article.
Section 612. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee for the Securities of any series
may be merged or converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or consolidation to which
such Trustee shall be a party, or any corporation succeeding to all or
substantially all of the corporate trust business of such Trustee, shall be
the successor of such Trustee hereunder, provided such corporation shall be
otherwise qualified and eligible under this Article, without the execution or
filing of any paper or any further act on the part of any of the parties
hereto. In case any Securities shall have been authenticated, but not
delivered, by the Trustee or the Authenticating Agent for such series then in
office, any successor by merger, conversion or consolidation to such
authenticating Trustee or Authenticating Agent, as the case may be, may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee or successor Authenticating Agent had
itself authenticated such Securities.
Section 613. Preferential Collection of Claims Against Company.
The Trustee is subject to Section 311(a) of the Trust Indenture Act,
excluding any creditor relationship listed in Section 311(b) of the Trust
Indenture Act. A Trustee who has resigned or been removed shall be subject
to Section 311(a) of the Trust Indenture Act to the extent indicated.
Section 614. Authenticating Agents.
From time to time the Trustee for the Securities of any series may,
subject to its sole discretion, appoint one or more Authenticating Agents
with respect to the Securities of such series, which may include the Company
or any Affiliate of the Company, with power to act on the Trustee's behalf
and subject to its discretion in the authentication and delivery of
-72-
<PAGE>
Securities of such series in connection with transfers and exchanges under
Sections 304, 305 and 1107 as fully to all intents and purposes as though
such Authenticating Agent had been expressly authorized by those Sections of
this Indenture to authenticate and deliver Securities of such series. For all
purposes of this Indenture, the authentication and delivery of Securities of
such series by an Authenticating Agent for such Securities pursuant to this
Section shall be deemed to be authentication and delivery of such Securities
"by the Trustee" for the Securities of such series. Any such Authenticating
Agent shall at all times be a corporation organized and doing business under
the laws of the United States or of any State, authorized under such laws to
exercise corporate trust powers, having a combined capital and surplus of at
least $50,000,000 and subject to supervision or examination by Federal or
State authority. If such Authenticating Agent publishes reports of condition
at least annually pursuant to law or the requirements of such 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 an Authenticating Agent for any series of
Securities shall cease to be eligible in accordance with the provisions of
this Section, such Authenticating Agent shall resign immediately in the
manner and with the effect specified in this Section.
Any corporation into which any Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, consolidation or conversion to which any Authenticating
Agent shall be a party, or any corporation succeeding to the corporate trust
business of any Authenticating Agent, shall be the successor of such
Authenticating Agent hereunder, if such successor corporation is otherwise
eligible under this Section, without the execution or filing of any paper or
any further act on the part of the parties hereto or the Authenticating Agent
or such successor corporation.
Any Authenticating Agent for any series of Securities may resign at
any time by giving written notice of resignation to the Trustee for such
series and to the Company. The Trustee for any series of Securities may at
any time terminate the agency of any Authenticating Agent by giving written
notice of termination to such Authenticating Agent and to the Company and the
Guarantor in the manner set forth in Section 105. Upon receiving such a
notice of resignation or upon such a termination, or in case at any time any
Authenticating Agent for any series of Securities shall cease to be eligible
under this Section, the Trustee for such series may appoint a successor
Authenticating Agent, shall give written notice of such appointment to the
Company and the Guarantor and shall give written notice of such appointment
to all Holders of Securities of such series in the manner set forth in
Section 106. Any successor Authenticating Agent, upon acceptance of its
appointment hereunder, shall become vested with all the rights, powers and
duties of its predecessor hereunder, with like effect as if originally named
-73-
<PAGE>
as an Authenticating Agent. No successor Authenticating Agent shall be
appointed unless eligible under the provisions of this Section.
The Trustee for the Securities of each series agrees to pay to any
Authenticating Agent for such series from time to time reasonable
compensation for its services, and such Trustee shall be entitled to be
reimbursed for such payments, subject to Section 607.
If an appointment with respect to one or more series of Securities is
made pursuant to this Section, the Securities of such series may have
endorsed thereon, in addition to the Trustee's certification of
authentication, an alternate certificate of authentication in the following
form:
"This is one of the Securities of the series designated therein
described in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK, as Trustee
By_________________________ By_______________________________
As Authenticating Agent Authorized Officer"
ARTICLE VII
Holders' Lists and Reports by Trustee, Company and Guarantor
Section 701. Company and Guarantor to Furnish Trustee Names and Addresses of
Holders.
With respect to each particular series of Securities, the Company and
the Guarantor will furnish or cause to be furnished to the Trustee for the
Securities of such series,
(a) semiannually, not more than 15 days after each Regular Record
Date relating to that series (or, if there is no Regular Record Date
relating to that series, on June 30 and December 31), a list, in such
form as such Trustee may reasonably require, containing all the
information in the possession or control of the Company or the Guarantor
or any of its Paying Agents other than such Trustee as to the names and
addresses of the Holders of that series as of such dates,
(b) on semi-annual dates on each year to be determined pursuant to
Section 301 if the Securities of such series do not bear interest, a
list of similar form and content, and
-74-
<PAGE>
(c) at such other times as such Trustee may request in writing,
within 30 days after the receipt by the Company or the Guarantor of any
such request, a list of similar form and content as of a date not more
than 15 days prior to the time such list is furnished,
excluding from any such list names and addresses received by such Trustee in
its capacity as Security Registrar for the Securities of such series, if so
acting.
Section 702. Preservation of Information; Communications to Holders.
(a) The Trustee for each series of Securities shall preserve, in as
current a form as is reasonably practicable, the names and addresses of
Holders of the Securities of such series contained in the most recent lists
furnished to such Trustee as provided in Section 701 and the names and
addresses of Holders of the Securities of such series received by such
Trustee in its capacity as Security Registrar for such series, if so acting.
The Trustee for each series of Securities may destroy any list relating to
such series of Securities furnished to it as provided in Section 701 upon
receipt of a new list relating to such series so furnished.
(b) If three or more Holders of Securities of any particular series
(hereinafter referred to as "applicants") apply in writing to the Trustee for
the Securities of any such series, and furnish to such Trustee reasonable
proof that each such applicant has owned a Security of that series 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 of Securities of that series with respect to their rights under this
Indenture or under the Securities of that series and is accompanied by a copy
of the form of proxy or other communication which such applicants propose to
transmit, then such Trustee shall, within five Business Days after the
receipt of such application, at its election, either
(i) afford such applicants access to the information preserved at
the time by such Trustee in accordance with Section 702(a), or
(ii) inform such applicants as to the approximate number of Holders
of Securities of that series whose names and addresses appear in the
information preserved at the time by such Trustee in accordance with
Section 702(a), and as to the approximate cost of mailing to such
Holders the form of proxy or other communication, if any, specified in
such application.
If any such Trustee shall elect not to afford such applicants access to
that information, such Trustee shall, upon the written request of such
applicants, mail to each Holder of Securities of that series whose name and
address appears in the information preserved at the time by such Trustee in
-75-
<PAGE>
accordance with Section 702(a), a copy of the form of proxy or other
communication which is specified in such request, with reasonable promptness
after a tender to such Trustee of the material to be mailed and of payment,
or provision for the payment, of the reasonable expenses of mailing, unless
within five days after such tender, such Trustee shall mail to such
applicants and file with the Commission, together with a copy of the material
to be mailed, a written statement to the effect that, in the opinion of such
Trustee, such mailing would be contrary to the best interests of the Holders
of Securities of that series or would be in violation of applicable law.
Such written statement shall specify the basis of such opinion. If the
Commission, after opportunity for a hearing upon the objections specified in
the written statement so filed, shall enter an order refusing to sustain any
of such objections or if, after the entry of an order sustaining one or more
of such objections, the Commission shall find, after notice and opportunity
for hearing, that all the objections so sustained have been met and shall
enter an order so declaring, such Trustee shall mail copies of such material
to all such Holders with reasonable promptness after the entry of such order
and the renewal of such tender; otherwise such Trustee shall be relieved of
any obligation or duty to such applicants respecting their application.
(c) Every Holder of Securities of each series or coupons, by receiving
and holding the same, agrees with the Company, the Guarantor and the Trustee
for the Securities of such series that neither the Company, the Guarantor nor
such Trustee, nor any agent of either of them shall be held accountable by
reason of the disclosure of any such information as to the names and
addresses of the Holders of the Securities of such series in accordance with
Section 702(b), regardless of the source from which such information was
derived, and that the Trustee shall not be held accountable by reason of
mailing any material pursuant to a request made under Section 702(b).
Section 703. Reports by Trustee.
(a) Within 60 days after March 15 of each year, the Trustee for the
Securities of each series shall mail to each Holder of the Securities of such
series entitled to receive reports pursuant to Section 704(3), a brief
reported dated as of such date that complies with Section 313(a) of the Trust
Indenture Act. The Trustee for the Securities of each series shall also
comply with Sections 313(b), 313(c) and 313(d) of the Trust Indenture Act.
(b) At the time that the Trustee for the Securities of each series
mails such a report to the Holders of Securities of such series, each such
Trustee shall file a copy of that report with the Commission and with each
stock exchange on which the Securities of that series are listed. The
Company shall provide notice to the appropriate Trustee when the Securities
of any series are listed on any stock exchange.
-76-
<PAGE>
Section 704. Reports by Company and the Guarantor.
The Company and the Guarantor will:
(1) file with the Trustee for the Securities of such series,
within 15 days after the Company or the Guarantor, as the case may be,
is required to file the same with the Commission, copies of the annual
reports and of the information, documents and other reports (or copies
of such portions of any of the foregoing as the Commission may from time
to time by rules and regulations prescribe) which the Company or the
Guarantor may be required to file with the Commission pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934; or,
if the Company or the Guarantor is not required to file information,
documents or reports pursuant to either of said Sections, then it will
file with such Trustee and the Commission, in accordance with rules and
regulations prescribed from time to time by the Commission, such of the
supplementary and periodic information, documents and reports which may
be required pursuant to Section 13 of the Securities Exchange Act of
1934 in respect of a security listed and registered on a national
securities exchange as may be prescribed from time to time in such rules
and regulations;
(2) file with the Trustee for the Securities of such series and
the Commission, in accordance with rules and regulations prescribed from
time to time by the Commission, such additional information, documents,
and reports with respect to compliance by the Company or the Guarantor
with the conditions and covenants of this Indenture as may be required
from time to time by such rules and regulations; and
(3) transmit by mail to all Holders of Securities of each series,
as provided in Section 703(c), within 30 days after the filing thereof
with the Trustee for the Securities of such series, such summaries of
any information, documents and reports required to be filed by the
Company or the Guarantor, as the case may be pursuant to paragraphs (1)
and (2) of this Section as may be required by rules and regulations
prescribed from time to time by the Commission.
-77-
<PAGE>
ARTICLE VIII
Consolidation, Merger, Conveyance or Transfer
Section 801. Company or Guarantor May Consolidate, Etc., Only on Certain
Terms.
Neither the Company nor the Guarantor shall consolidate with or merge
into any other corporation or convey or transfer its properties and assets
substantially as an entirety to any Person unless:
(1) the corporation formed by such consolidation or into which the
Company or the Guarantor is merged or the Person which acquires by
conveyance or transfer the properties and assets of the Company or the
Guarantor substantially as an entirety shall be a corporation organized
and existing under the laws of the United States of America, any State
thereof or the District of Columbia, and shall expressly assume, by an
indenture supplemental hereto, executed and delivered to the Trustee for
each series of Securities, in form satisfactory to each such Trustee,
the due and punctual payment of the principal of (and premium, if any)
and interest, if any, (including all additional amounts, if any, payable
pursuant to Sections 516 or 1010) on all the Securities and any related
coupons and the performance of every covenant of this Indenture on the
part of the Company to be performed or observed and, in the case of the
Guarantor, the due and punctual performance of the Guarantees and the
performance of every covenant of this Indenture on the part of the
Guarantor to be performed or observed;
(2) immediately after giving effect to such transaction, no Event
of Default with respect to any series of Securities, and no event which,
after notice or lapse of time, or both, would become an Event of Default
with respect to any series of Securities, shall have happened and be
continuing;
(3) the Company or the Guarantor, as the case may be, has
delivered to the Trustee for each series of Securities an Officers'
Certificate and an Opinion of Counsel each stating that such
consolidation, merger, conveyance or transfer and such supplemental
indenture comply with this Article and that all conditions precedent
herein provided for relating to such transaction have been complied
with.
-78-
<PAGE>
Section 802. Successor Corporation Substituted.
Upon any consolidation or merger, or any conveyance or transfer of the
properties and assets of the Company or the Guarantor substantially as an
entirety in accordance with Section 801, the successor corporation formed by
such consolidation or into which the Company or the Guarantor is merged or to
which such conveyance or transfer is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Company or
the Guarantor, as the case may be, under this Indenture with the same effect
as if such successor corporation had been named as the Company or the
Guarantor, as the case may be, herein and thereafter the predecessor
corporation shall be relieved of all obligations and covenants under this
Indenture, the Securities, the Guarantees and any related coupons and, in the
event of any such consolidation, merger, conveyance or transfer, the Company
or the Guarantor as the predecessor corporation may thereupon or at any time
thereafter be dissolved, wound up, or liquidated.
ARTICLE IX
Supplemental Indentures
Section 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders of Securities or coupons, the
Company, when authorized by a Board Resolution, the Guarantor, when
authorized by a Board Resolution, and the Trustee for the Securities of any
or all series, at any time and from time to time, may enter into one or more
indentures supplemental hereto, in form satisfactory to such Trustee, for any
of the following purposes:
(1) to evidence the succession of another corporation to the
Company or the Guarantor, and the assumption by any such successor of
the covenants of the Company or the Guarantor herein and in the
Securities or Guarantees; or
(2) to add to the covenants of the Company or the Guarantor, for
the benefit of the Holders of all or any particular series of Securities
and any related coupons (and, if such covenants are to be for the
benefit of fewer than all series of Securities, stating that such
covenants are being included solely for the benefit of such series), or
to surrender any right or power herein conferred upon the Company or the
Guarantor; or
(3) to add any additional Events of Default with respect to any or
all series of Securities (and, if any such Event of Default applies to
fewer than all series of Securities, stating each series to which such
Event of Default applies); or
-79-
<PAGE>
(4) to add to or to change any of the provisions of this Indenture
to provide that Bearer Securities may be registrable as to principal, to
change or eliminate any restrictions on the payment of principal of or
any premium or interest on Bearer Securities, to permit Bearer
Securities to be issued in exchange for Registered Securities, to permit
Bearer Securities to be issued in exchange for Bearer Securities of
other authorized denominations, to provide for the issuance of
uncertificated Securities of any series in addition to or in place of
any certificated Securities and to make all appropriate changes for such
purposes; provided, however, that any such action shall not adversely
affect the interests of the Holders of Securities of any series or any
related coupons in any material respect; or
(5) to change or eliminate any of the provisions of this
Indenture, provided, however, that any such change or elimination shall
become effective only when there is no Security Outstanding of any
series created prior to the execution of such supplemental indenture
which is entitled to the benefit of such provision; or
(6) to evidence and provide for the acceptance of appointment
hereunder of a Trustee other than The Chase Manhattan Bank as Trustee
for a series of Securities and to add to or change any of the provisions
of this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee,
pursuant to the requirements of Section 609; or
(7) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one
or more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee,
pursuant to the requirements of Section 611(b); or
(8) to add to the conditions, limitations and restrictions on the
authorized amount, form, terms or purposes of issue, authentication and
delivery of Securities, as herein set forth, other conditions,
limitations and restrictions thereafter to be observed; or
(9) to supplement any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the defeasance and
discharge of any series of Securities pursuant to Section 401; provided,
however, that any such action shall not adversely affect the interests
of the Holders of Securities of such series and any related coupons or
any other series of Securities in any material respect; or
-80-
<PAGE>
(10) to add to or change or eliminate any provisions of this
Indenture as shall be necessary or desirable in accordance with any
amendments to the Trust Indenture Act; or
(11) to provide for Guarantees, with respect to any one or more
particular series of Securities to be issued and authenticated
hereunder, which are subordinate and junior in right of payment to the
prior payment in full of certain indebtedness of the Guarantor (to be
defined therein as "Senior Indebtedness"), to the extent and in the
manner set forth therein; or
(12) to issue and establish the form and terms of any series of
Securities or the Guarantees to be endorsed thereon; or
(13) to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein, to
convey, transfer, assign, mortgage or pledge any property to or with the
Trustee for the Securities of any series or to surrender any right or
power herein conferred upon the Company or the Guarantor, or to make any
other provisions with respect to matters or questions arising under this
Indenture, provided such action shall not adversely affect the interests
of the Holders of Securities of any particular series in any material
respect.
Section 902. Supplemental Indentures With Consent of Holders.
The Company, when authorized by a Board Resolution, the Guarantor, when
authorized by a Board Resolution, and the Trustee for the Securities of any
or all series may enter into an indenture or indentures supplemental hereto
for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Indenture or of modifying in any
manner the rights of the Holders of such Securities and any related coupons
under this Indenture, but only with the consent of the Holders of more than
50% in aggregate principal amount of the Outstanding Securities of each
series of Securities then Outstanding affected thereby, in each case by Act
of said Holders of Securities of each such series delivered to the Company
and the Trustee for Securities of each such series; provided, however, that
no such supplemental indenture shall, without the consent of the Holder of
each Outstanding Security affected thereby:
(1) change the Stated Maturity of the principal of, or any
instalment of principal of or interest on, any Security, or reduce the
principal amount thereof or the rate of interest thereon, if any (or, in
the case of OID Securities, reduce the rate of accretion of original
issue discount), or any premium payable upon the redemption thereof, or
change any obligation of the Company or the Guarantor to pay additional
amounts pursuant to Section 1009 (except as contemplated by Section
-81-
<PAGE>
801(1) and permitted by Section 901(1)) or reduce the amount of the
principal of an OID Security that would be due and payable upon a
declaration of acceleration of the Maturity thereof, or provable in
bankruptcy, or, in the case of Indexed Securities, reduce the amount
payable in accordance with the terms of those Securities upon a
declaration of acceleration of Maturity thereof, or provable in
bankruptcy, pursuant to Section 502, or change the Place of Payment, or
the currency or currency unit in which any Security or the principal or
interest thereon is payable, or impair the right to institute suit for
the enforcement of any such payment on or after the Stated Maturity
thereof (or, in the case of redemption, on or after the Redemption
Date); or impair any right of Holders of Securities hereunder to repay
or purchase Securities at their option; or reduce or alter the method of
computation of any amount payable upon redemption, repayment or purchase
of any Securities by the Issuer or the Guarantor (or the time when such
redemption, repayment or purchase may be made); or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any particular series, the consent of whose Holders is
required for any such supplemental indenture, or the consent of whose
Holders is required for any waiver (of compliance with certain
provisions of this Indenture or certain defaults hereunder and their
consequences) provided for in this Indenture; or
(3) modify any of the provisions of this Section or Section 513 or
1009, except to increase any such percentage or to provide that certain
other provisions of this Indenture cannot be modified or waived without
the consent of the Holder of each Security affected thereby; provided,
however, that this clause shall not be deemed to require the consent of
any Holder of a Security or coupon with respect to changes in the
references to "the Trustee" and concomitant changes in this Section and
Section 1009, or the deletion of this proviso, in accordance with the
requirements of Sections 609, 61l(b), 901(6) and 901(7); or
(4) change in any manner adverse to the interests of the Holders
of any Outstanding Securities the terms and conditions of the
obligations of the Guarantor in respect of the due and punctual payment
of the principal thereof, premium, if any, and interest, if any, thereon
or any sinking fund payments provided in respect thereof.
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other series.
-82-
<PAGE>
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it
shall be sufficient if such Act shall approve the substance thereof.
Section 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby
of the trusts created by this Indenture, the Trustee for any series of
Securities shall be entitled to receive, and (subject to Section 601) shall
be fully protected in relying upon, an Opinion of Counsel stating that the
execution of such supplemental indenture is authorized or permitted by this
Indenture. The Trustee for any series of Securities may, but shall not be
obligated to, enter into any such supplemental indenture which affects such
Trustee's own rights, liabilities, duties or immunities under this Indenture
or otherwise.
Section 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith and such
supplemental indenture shall form a part of this Indenture for all purposes;
and every Holder of Securities theretofore or thereafter authenticated and
delivered hereunder and of any coupons appertaining thereto shall be bound
thereby.
Section 905. Conformity With Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
Section 906. Reference in Securities to Supplemental Indentures.
Securities of any particular series authenticated and delivered after
the execution of any supplemental indenture pursuant to this Article may, and
shall if required by the Trustee for the Securities of such series, bear a
notation in form approved by such Trustee as to any matter provided for in
such supplemental indenture. If the Company and the Guarantor shall so
determine, new Securities of any series and any related coupons so modified
as to conform, in the opinion of the Trustee for the Securities of such
series and the Board of Directors of both Company and the Guarantor, to any
such supplemental indenture may be prepared and executed by the Company,
Guarantees endorsed thereon may be executed by the Guarantor and such
Securities may be authenticated and delivered by such Trustee in exchange for
Outstanding Securities of such series and any related coupons.
-83-
<PAGE>
ARTICLE X
Covenants
Section 1001. Payment of Principal (and Premium, if any) and Interest, if
any.
The Company agrees, for the benefit of each particular series of
Securities, that it will duly and punctually pay in the currency or currency
unit in which the Securities of such series are payable (except as otherwise
specified pursuant to Section 301 for the Securities of such series and
except as provided in Sections 311(b) and 311(d)) the principal of (and
premium, if any) and interest, if any, on that series of Securities in
accordance with the terms of the Securities of such series, any coupons
appertaining thereto and this Indenture. Unless otherwise specified as
contemplated by Section 301 with respect to any series of Securities, any
interest due on Bearer Securities on or before Maturity shall be payable only
upon presentation and surrender of the several coupons for such interest
installments as are evidenced thereby as they severally mature. The
interest, if any, due in respect of any temporary or permanent Global
Security, together with any additional amounts payable in respect thereof, as
provided in the terms and conditions of such Security, shall be payable,
subject to the conditions set forth in Section 1011, only upon presentation
of such Security to the Trustee thereof for notation thereon of the payment
of such interest.
Section 1002. Maintenance of Office or Agency.
If Securities of a series are issuable only as Registered Securities the
Company and the Guarantor each will maintain in each Place of Payment for
that series an office or agency where Securities of that series may be
presented or surrendered for payment, an office or agency where Securities of
that series may be surrendered for registration of transfer or exchange and
where notices and demands to or upon the Company or the Guarantor with
respect to the Securities of that series and this Indenture may be served.
If Securities of a series are issuable as Bearer Securities, the Company and
the Guarantor each will maintain (A) an office or agency (which may be the
same office or agency) in a Place of Payment for that series in the United
States where any Registered Securities of that series may be presented or
surrendered for payment, where any Registered Securities of that series may
be surrendered for registration of transfer, where Securities of that series
may be surrendered for exchange, where notices and demands to or upon the
Company or the Guarantor in respect of the Securities of that series and this
Indenture may be served and where Bearer Securities of that series and
related coupons may be presented or surrendered for payment in the
circumstances described in the following paragraph (and not otherwise), (B)
subject to any laws or regulations applicable thereto, in a Place of Payment
-84-
<PAGE>
for that series which is located outside the United States, an office or
agency where Securities of that series and related coupons may be presented
and surrendered for payment; provided, however, that if the Securities of
that series are listed on the Stock Exchange or any other stock exchange
located outside the United States and such stock exchange shall so require,
the Company will maintain a Paying Agent for the Securities of that series in
Luxembourg or any other required city located outside the United States, as
the case may be, so long as the Securities of that series are listed on such
exchange, and (C) subject to any laws or regulations applicable thereto, in a
Place of Payment for that series located outside the United States an office
or agency where any Registered Securities of that series may be surrendered
for registration of transfer, where Securities of that series may be
surrendered for exchange and where notices and demands to or upon the Company
or the Guarantor in respect of the Securities of that series and this
Indenture may be served. The Company and the Guarantor will give prompt
written notice to the Trustee for the Securities of that series of the
location, and any change in the location, of any such office or agency. If
at any time the Company or the Guarantor shall fail to maintain any such
required office or agency in respect of any series of Securities or shall
fail to furnish the Trustee for the Securities of that series with the
address thereof, such presentations (to the extent permitted by law), and
surrenders of Securities of that series may be made and notices and demands
may be made or served at the Corporate Trust Office of such Trustee, except
that Bearer Securities of that series and the related coupons may be
presented and surrendered for payment at the offices specified in the
Security, and the Company and the Guarantor hereby appoint the same as their
agent to receive such respective presentations, surrenders, notices and
demands.
No payment of principal (and premium, if any) or interest, if any, on
Bearer Securities shall be made at any office or agency of the Company or the
Guarantor in the United States or by check mailed to any address in the
United States or by transfer to an account maintained with a bank located in
the United States. Payments will not be made in respect of Bearer Securities
or coupons appertaining thereto pursuant to presentation to the Company, the
Guarantor or their designated Paying Agents within the United States.
Notwithstanding the foregoing, payment of principal of (and premium, if any)
and interest, if any, on any Bearer Security denominated and payable in
Dollars will be made at the office of the Company's or the Guarantor's Paying
Agent in the United States, if, and only if, payment in Dollars of the full
amount of such principal, premium or interest, as the case may be, at all
offices or agencies outside the United States maintained for that purpose by
the Company or the Guarantor in accordance with this Indenture is illegal or
effectively precluded by exchange controls or other similar restrictions and
the Company or the Guarantor has delivered to the Trustee an Opinion of
Counsel to that effect.
-85-
<PAGE>
The Company and the Guarantor may also from time to time designate one
or more other offices or agencies (in or outside the Place of Payment) where
the Securities of one or more series may be presented or surrendered for any
or all of the purposes specified above in this Section and may from time to
time rescind such designations; provided, however, that no such designation
or rescission shall in any manner relieve the Company or the Guarantor of its
obligation to maintain an office or agency in each Place of Payment for such
purpose. The Company and the Guarantor will give prompt written notice to
the Trustee for the Securities of each series so affected of any such
designation or rescission and of any change in the location of any such
office or agency.
If and so long as the Securities of any series (i) are denominated in a
currency other than Dollars or (ii) may be payable in a currency other than
Dollars, or so long as it is required under any other provision of the
Indenture, then the Company and the Guarantor will maintain with respect to
each such series of Securities, or as so required, a Currency Determination
Agent.
Section 1003. Money for Securities Payments To Be Held in Trust.
If the Company or the Guarantor shall at any time act as its own Paying
Agent with respect to any particular series of Securities and any related
coupons, it will, on or before each due date of the principal of (and
premium, if any) or interest, if any, on any of the Securities of that
series, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum in the currency or currency unit in which the Securities of
such series are payable (except as otherwise specified pursuant to Section
301 for the Securities of such series and except as provided in Sections
311(b) and 311(d)) sufficient to pay the principal (and premium, if any) and
interest, if any, so becoming due until such sums shall be paid to such
Persons or otherwise disposed of as herein provided, and will promptly notify
the Trustee for the Securities of such series of its action or failure so to
act.
Whenever the Company shall have one or more Paying Agents for any
particular series of Securities and any related coupons, it will, prior to
each due date of the principal of (and premium, if any) or interest, if any,
on any such Securities, deposit with a Paying Agent for the Securities of
such series a sum (in the currency or currency unit described in the
preceding paragraph) sufficient to pay the principal (and premium, if any)
and interest, if any, so becoming due, such sum to be held in trust for the
benefit of the Persons entitled thereto, and (unless such Paying Agent is the
Trustee for the Securities of such series) the Company will promptly notify
such Trustee of its action or failure so to act.
-86-
<PAGE>
The Company will cause each Paying Agent for any particular series of
Securities other than the Trustee for the Securities of such series to
execute and deliver to such Trustee an instrument in which such Paying Agent
shall agree with such Trustee, subject to the provisions of this Section,
that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal of
(and premium, if any) or interest, if any, on Securities of that series
in trust for the benefit of the Persons entitled thereto until such sums
shall be paid to such Persons or otherwise disposed of as herein
provided;
(2) give such Trustee notice of any default by the Company or the
Guarantor (or any other obligor upon the Securities) in the making of
any payment of principal (or premium, if any) and interest, if any, on
Securities of that series; and
(3) at any time during the continuation of any such default, upon
the written request of such Trustee, forthwith pay to such Trustee all
sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay,
or by Company Order direct any Paying Agent to pay, to the Trustee for the
Securities of any series all sums held in trust by the Company or such Paying
Agent, such sums to be held by such Trustee upon the same trusts as those
upon which such sums were held by the Company or such Paying Agent; and, upon
such payment by any Paying Agent to such Trustee, such Paying Agent shall be
released from all further liability with respect to such money.
Section 1004. Payment of Taxes and Other Claims.
The Company and the Guarantor will each pay or discharge or cause to be
paid or discharged, before the same shall become delinquent, (1) all taxes,
assessments and governmental charges levied or imposed upon it or upon its
income, profits or property, and (2) all lawful claims for labor, materials
and supplies which, if unpaid, might by law become a lien upon its property;
provided, however, that neither the Company nor the Guarantor shall be
required to pay or discharge or cause to be paid or discharged any such tax,
assessment, charge or claim whose amount, applicability or validity is being
contested in good faith by appropriate proceedings.
-87-
<PAGE>
Section 1005. Statements as to Compliance.
The Company and the Guarantor will each deliver to the Trustee for each
series of Securities, within 120 days after the end of each fiscal year, a
written statement signed by the principal executive officer, principal
financial officer or principal accounting officer of the Company or the
Guarantor, as the case may be, stating that:
(1) a review of the activities of the Company or the Guarantor, as
the case may be, during such year and of performance under this
Indenture has been made under his supervision; and
(2) to the best of his knowledge, based on such review, the
Company or the Guarantor, as the case may be, is in compliance with all
conditions and covenants under this Indenture.
For purposes of this Section, such compliance shall be determined
without regard to any period of grace or requirement of notice provided under
this Indenture.
Section 1006. Corporate Existence.
Subject to Article Eight, the Company and the Guarantor will each do or
cause to be done all things necessary to preserve and keep in full force and
effect its corporate existence, rights (charter and statutory) and
franchises; provided, however, that neither the Company nor the Guarantor
shall be required to preserve any right or franchise if the Board of
Directors of the Company or the Guarantor, as the case may be, shall
determine that the preservation thereof is no longer desirable in the conduct
of the business of the Company or the Guarantor, as the case may be, and that
the loss thereof is not disadvantageous in any material respect to the
Holders.
Section 1007. Lien on Assets.
If at any time the Company mortgages, pledges or otherwise subjects to
any lien the whole or any part of any property or assets now owned or
hereafter acquired by it except as hereinafter provided in this Section 1007,
the Company will secure the then-Outstanding Securities, and any other
obligations of the Company which may then be outstanding and entitled to the
benefit of a covenant similar in effect to this covenant, equally and ratably
with the indebtedness or obligations secured by such mortgage, pledge or
lien, for as long as any such indebtedness or obligation is so secured. The
foregoing covenant does not apply to the creation, extension, renewal or
refunding of purchase-money mortgages or liens or other liens to which any
property or asset acquired by the Company is subject as of the date of its
acquisition by the Company; or to the making of any deposit or pledge to
-88-
<PAGE>
secure public or statutory obligations or with any governmental agency at any
time required by law in order to qualify the Company to conduct its business
or any part thereof or in order to entitle it to maintain self-insurance or
to obtain the benefits of any law relating to workmen's compensation,
unemployment insurance, old age pensions or other social security; or with
any court, board, commission or governmental agency as security incident to
the proper conduct of any proceeding before it; nor shall this covenant apply
to liens for taxes, assessments or governmental charges or levies not yet
delinquent or being contested in good faith by appropriate proceedings
diligently conducted, if such reserve or other appropriate provision, if any,
as shall be required by generally accepted accounting principles shall have
been made therefor; liens of landlords and liens of mechanics and materialmen
incurred in the ordinary course of business for sums not yet due or being
contested in good faith by appropriate proceedings diligently conducted, if
such reserve or other appropriate provision, if any, as shall be required by
generally accepted accounting principles, shall have been made therefor;
leases or subleases granted to others in the ordinary course of business;
easements, rights-of-way, restrictions and other similar encumbrances
incurred in the ordinary course of business and not interfering with the
ordinary conduct of the business of the Company; liens incurred in connection
with the issuance by a state or political subdivision thereof of any
securities the interest on which is exempt from federal income taxes by
virtue of Section 103 of the Code or any other laws or regulations in effect
at the time of such issuance; or liens for the sole purpose of extending,
renewing or replacing in whole or in part the indebtedness secured by any
lien referred to in the foregoing clauses or in this clause, provided,
however, that the principal amount of indebtedness secured thereby shall not
exceed the principal amount of indebtedness secured at the time of such
extension, renewal or replacement and that such extension, renewal or
replacement shall be limited to all or a part of the property which secured
the lien so extended, renewed or replaced (plus improvements on such
property). Nothing contained in this Indenture prevents any entity other
than the Company from mortgaging, pledging or subjecting to any lien any
property or assets, whether or not acquired by such person from the Company.
Section 1008. Waiver of Certain Covenants.
The Company and the Guarantor may omit in any particular instance to
comply with any covenant or condition set forth in Sections 1004 to 1008,
inclusive, if before or after the time for such compliance the Holders of
more than 50% in principal amount of the Outstanding Securities of each
series of Securities affected by the omission shall, in each case by Act of
such Holders, either waive such compliance in such instance or generally
waive compliance with such covenant or condition, but no such waiver shall
extend to or affect such covenant or condition except to the extent so
expressly waived, and, until such waiver shall become effective, the
obligations of the Company and the duties of the Trustee for the Securities
-89-
<PAGE>
of each series with respect to any such covenant or condition shall remain in
full force and effect.
Section 1009. Payment of Additional Amounts.
If specified pursuant to Section 301, the provisions of this Section
1009 shall be applicable to Securities of any series.
The Company or the Guarantor will, subject to the exceptions and
limitations set forth below, pay to the Holder of any Security or coupon who
is a United States Alien such additional amounts as may be necessary so that
every net payment on such Security or coupon, after deduction or withholding
by the Company or the Guarantor or any of their Paying Agents for or on
account of any present or future tax, assessment or other governmental charge
imposed upon or as a result of such payment by the United States (or any
political subdivision or taxing authority thereof or therein), will not be
less than the amount provided in such Security or in such coupon to be then
due and payable. However, the Company and the Guarantor will not be required
to make any payment of additional amounts for or on account of:
(a) any tax, assessment or other governmental charge that would not
have been so imposed but for (i) the existence of any present or former
connection between such Holder (or between a fiduciary, settler or
beneficiary of, or a person holding a power over, such Holder, if such Holder
is an estate or trust, or a member or shareholder of such Holder, if such
Holder is a partnership or corporation) and the United States, including,
without limitation, such Holder (or such fiduciary, settler, beneficiary,
person holding a power, member or shareholder) being or having been a
citizen, resident or treated as a resident thereof or being or having been
engaged in trade or business or present therein or having or having had a
permanent establishment therein, or (ii) such Holder's present or former
status as a personal holding company, foreign personal holding company,
controlled foreign corporation or passive foreign investment company with
respect to the United States or as a corporation that accumulates earnings to
avoid United States federal income tax;
(b) any tax, assessment or other governmental charge which would not
have been so imposed but for the presentation by the Holder of such Security
or coupon for payment on a date more than 10 days after the date on which
such payment became due and payable or the date on which payment thereof is
duly provided for, whichever occurs later;
(c) any estate, inheritance, gift, sales, transfer, personal property
tax or any similar tax, assessment or other governmental charge;
(d) any tax, assessment or other governmental charge required to be
withheld by any Paying Agent from any payment in respect of any Security or
-90-
<PAGE>
coupon, if such payment can be made without such withholding by at least one
other Paying Agent;
(e) any tax, assessment or other governmental charge which is payable
otherwise than by withholding from payments in respect of such Security or
coupon;
(f) any tax, assessment or other governmental charge imposed on a
Holder of a Security or coupon that actually or constructively owns 10
percent or more of the total combined voting power of all classes of stock of
the Company entitled to vote within the meaning of Section 871(h)(3) of the
Code or that is a controlled foreign corporation related to the Company or
the Guarantor through stock ownership;
(g) any tax, assessment or other governmental charge imposed as a
result of the failure to comply with applicable certification, information,
documentation or other reporting requirements concerning the nationality,
residence, identity or connection with the United States of the Holder or
beneficial owner of a Security or coupon, if such compliance is required by
statute or by regulation of the United States, as a precondition to relief or
exemption from such tax, assessment or other governmental charge;
(h) any tax, assessment or other governmental charge imposed with
respect to payments on any Registered Security by reason of the failure of
the Holder to fulfill the statement requirement of Sections 871(h) or 881(c)
of the Code; or
(i) any combination of items (a), (b), (c), (d), (e), (f), (g) and (h);
nor will additional amounts be paid with respect to any payment on any such
Security or coupon to a Holder who is a fiduciary or partnership or other
than the sole beneficial owner of such payment to the extent such payment
would be required by the laws of the United States (or any political
subdivision thereof) to be included in the income for federal income tax
purposes of a beneficiary or settler with respect to such fiduciary or a
member of such partnership or a beneficial owner who would not have been
entitled to payment of the additional amounts had beneficiary, settler,
member or beneficial owner been the Holder of such Security or coupon.
The term "United States Alien" means any corporation, partnership,
individual or fiduciary that is, as to the United States, a foreign
corporation, a nonresident alien individual, a nonresident fiduciary of a
foreign estate or trust, or a foreign partnership one or more of the members
of which is, as to the United States, a foreign corporation, a nonresident
alien individual or a nonresident fiduciary of a foreign estate or trust.
-91-
<PAGE>
Whenever in this Indenture there is mentioned, in any context, the
payment of the principal of (and premium, if any) and interest, if any, on
any Security or payment with respect to any coupon of any series, such
mention shall be deemed to include mention of the payment of additional
amounts provided for in the terms of such Securities and this Section to the
extent that, in such context, additional amounts are, were or would be
payable in respect thereof pursuant to the provisions of this Section and
express mention of the payment of additional amounts (if applicable) in any
provisions hereof shall not be construed as excluding additional amounts in
those provisions hereof where such express mention is not made.
If the Securities of a series provide for the payment of additional
amounts as contemplated by Section 301(20), at least 10 days prior to the
first Interest Payment Date with respect to that series of Securities (or if
the Securities of that series will not bear interest prior to maturity, the
first day on which a payment of principal and any premium is made), and at
least 10 days prior to each date of payment of principal (and premium, if
any) and interest, if any, if there has been any change with respect to the
matters set forth in the below mentioned Officers' Certificate, the Company
will furnish the Trustee for that series of Securities and the Company's
principal Paying Agent or Paying Agents, if other than such Trustee, with an
Officers' Certificate instructing such Trustee and such Paying Agent or
Paying Agents whether such payment of principal of (and premium, if any) and
interest, if any, on the Securities of that series shall be made to Holders
of Securities of that series or any related coupons who are United States
Aliens without withholding for or on account of any tax, assessment or other
governmental charge referred to above or described in the Securities of that
series. If any such withholding shall be required, then such Officers'
Certificate shall specify by country the amount, if any, required to be
withheld on such payments to such Holders of Securities or coupons and the
Company or the Guarantor will pay to the Trustee for such series of
Securities or such Paying Agent such additional amounts as may be required
pursuant to the terms applicable to such series. The Company and the
Guarantor covenant to indemnify the Trustee for such series of Securities and
any Paying Agent for, and to hold them harmless against, any loss, liability
or expense reasonably incurred without gross negligence or bad faith on their
part arising out of or in connection with actions taken or omitted by any of
them in reliance on any Officers' Certificate furnished pursuant to this
Section 1009.
-92-
<PAGE>
ARTICLE XI
Redemption of Securities
Section 1101. Applicability of This Article.
Redemption of Securities of any series (whether by operation of a
sinking fund or otherwise) as permitted or required by any form of Security
issued pursuant to this Indenture shall be made in accordance with such form
of Security and this Article; provided, however, that if any provision of any
such form of Security shall conflict with any provision of this Article, the
provision of such form of Security shall govern.
Section 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities of any series shall
be evidenced by or pursuant to a Board Resolution. In case of any redemption
at the election of the Company of less than all of the Securities of any
particular series, the Company shall, at least 60 days prior to the
Redemption Date fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee for the Securities of such series) notify such
Trustee by Company Request of such Redemption Date and of the principal
amount of Securities of that series to be redeemed and shall deliver to such
Trustee such documentation and records as shall enable such Trustee to select
the Securities to be redeemed pursuant to Section 1103. In the case of any
redemption of Securities of any series prior to the expiration of any
restriction on such redemption provided in the terms of such Securities or
elsewhere in this Indenture, the Company shall furnish the Trustee for
Securities of such series with an Officers' Certificate evidencing compliance
with such restriction.
Section 1103. Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities are to be redeemed, the Company may
select the series to be redeemed, and if less than all the Securities of any
series are to be redeemed, the particular Securities of that series to be
redeemed shall be selected not more than 60 days prior to the Redemption Date
by the Trustee for the Securities of such series, from the Outstanding
Securities of that series not previously called for redemption, by such
method as such Trustee shall deem fair and appropriate and which may provide
for the selection for redemption of portions (equal to the minimum authorized
denomination for Securities of that series, or any integral multiple thereof)
of the principal amount of Securities of that series of a denomination larger
than the minimum authorized denomination for Securities of that series
pursuant to Section 302 in the currency or currency unit in which the
Securities of such series are denominated.
-93-
<PAGE>
The Trustee for the Securities of any series to be redeemed shall
promptly notify the Company in writing of the Securities of such series
selected for redemption and, in the case of any Securities selected for
partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall
relate, in the case of any Security redeemed or to be redeemed only in part,
to the portion of the principal amount of such Securities which has been or
is to be redeemed.
Section 1104. Notice of Redemption.
Notice of redemption shall be given in the manner provided in Section
106 not later than the thirtieth day and not earlier than the sixtieth day
prior to the Redemption Date, to each Holder of Securities to be redeemed.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all Outstanding Securities of a particular series
are to be redeemed, the identification (and, in the case of partial
redemption, the respective principal amounts) of the particular
Securities to be redeemed, including the CUSIP number of such
Securities,
(4) that on the Redemption Date the Redemption Price will become
due and payable upon each such Security or portion thereof, and that
interest thereon, if any (or in the case of OID Securities, original
issue discount), shall cease to accrue on and after said date,
(5) the place or places where such Securities, together in the
case of Bearer Securities with all coupons appertaining thereto, if any,
maturing after the Redemption Date are to be surrendered for payment of
the Redemption Price,
(6) that the redemption is for a sinking fund, if such is the
case,
(7) that, unless otherwise specified in such notice, Bearer
Securities of any series, if any, surrendered for redemption must be
accompanied by all coupons maturing subsequent to the date fixed for
redemption or the amount of any such missing coupon or coupons will be
deducted from the Redemption Price or security or indemnity satisfactory
-94-
<PAGE>
to the Company, the Trustee for such series and any Paying Agent is
furnished, and
(8) if Bearer Securities of any series are to be redeemed and any
Registered Securities of such series are not to be redeemed, and if such
Bearer Securities may be exchanged for Registered Securities not subject
to redemption on this Redemption Date pursuant to Section 305 or
otherwise, the last date, as determined by the Company, on which such
exchanges may be made.
Notice of redemption of Securities to be redeemed at the election of the
Company shall be given by the Company or, at the Company's request, by the
Trustee for such Securities in the name and at the expense of the Company.
Section 1105. Deposit of Redemption Price.
Prior to the opening of business on any Redemption Date, the Company or
the Guarantor shall deposit with the Trustee for the Securities to be
redeemed or with a Paying Agent for such Securities (or, if the Company or
the Guarantor is acting as its own Paying Agent for such Securities,
segregate and hold in trust as provided in Section 1003) an amount of money
in the currency or currency unit in which the Securities of such series are
payable (except as otherwise specified pursuant to Section 301 for the
Securities of such Series and except as provided in Sections 311(b) and
311(d)) sufficient to pay the principal amount of (and premium, if any,
thereon), and (except if the Redemption Date shall be an Interest Payment
Date) any accrued interest on, all the Securities which are to be redeemed on
that date.
Section 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified in the currency or currency unit in which
the Securities of such series are payable (except as otherwise provided
pursuant to Section 301 for the Securities of such series and except as
provided in Sections 311(b) and 311(d)) and from and after such date (unless
the Company and the Guarantor shall default in the payment of the Redemption
Price) such Securities shall cease to bear interest and the coupons for such
interest appertaining to any Bearer Securities so to be redeemed, except to
the extent provided below, shall be void. Upon surrender of such Security
for redemption in accordance with said notice together with all coupons, if
any, appertaining thereto maturing after the Redemption Date, such Security
or specified portions thereof shall be paid by the Company or the Guarantor
at the Redemption Price; provided, however, that installments of interest on
Bearer Securities whose Stated Maturity is on or prior to the Redemption Date
shall be payable only at an office or agency located outside the United
-95-
<PAGE>
States (except as otherwise provided in Section 1002) and, unless otherwise
specified as contemplated by Section 301, only upon presentation and
surrender of coupons for such interest, and provided, further, that unless
otherwise specified as contemplated by Section 301, installments of interest
on Registered Securities whose Stated Maturity is on or prior to the
Redemption Date shall be payable to the Holders of such Securities, or one or
more Predecessor Securities, registered as such at the close of business on
the relevant Record Dates according to their terms and the provisions of
Section 307.
If any Bearer Security surrendered for redemption shall not be
accompanied by all coupons appertaining thereto maturing after the Redemption
Date, such Security may be paid after deducting from the Redemption Price an
amount equal to the face amount of all such missing coupons or the surrender
of such missing coupon or coupons may be waived by the Company if there is
furnished to the Company, the Guarantor, the Trustee for such Security and
any Paying Agent such security or indemnity as they may require to save the
Company, the Guarantor, such Trustee and any Paying Agent harmless. If
thereafter the Holder of such Security shall surrender to such Trustee or any
Paying Agent any such missing coupon in respect of which a deduction shall
have been made from the Redemption Price, such Holder shall be entitled to
receive the amount so deducted; provided, however, that interest represented
by coupons shall be payable only at an office or agency located outside the
United States (except as otherwise provided in Section 1002) and, unless
otherwise specified as contemplated by Section 301, only upon presentation
and surrender of those coupons.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal thereof (and premium, if any,
thereon) shall, until paid, bear interest from the Redemption Date at a rate
per annum equal to the rate borne by the Security (or, in the case of (i) OID
Securities, the Security's Yield to Maturity or (ii) Indexed Securities, the
rate determined in accordance with the specified terms of those Securities).
Section 1107. Securities Redeemed in Part.
Any Registered Security which is to be redeemed only in part shall be
surrendered at the Place of Payment (with, if the Company, the Guarantor or
the Trustee for such Security so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company, the Guarantor and
the Security Registrar for such Security duly executed by, the Holder thereof
or his attorney duly authorized in writing), and the Company shall execute
and such Trustee shall authenticate and deliver to the Holder of such
Security without service charge, a new Registered Security or Securities, of
any authorized denomination as requested by such Holder, of the same series
and having the same terms and provisions and in an aggregate principal amount
equal to and in exchange for the unredeemed portion of the principal of the
-96-
<PAGE>
Registered Security so surrendered, with the Guarantee endorsed thereon duly
executed by the Guarantor.
Section 1108. Tax Redemption; Special Tax Redemption.
(a) Unless otherwise specified pursuant to Section 301, Securities of
any series may be redeemed at the option of the Company in whole, but not in
part, on not more than 60 days' and not less than 30 days' notice, on any
Redemption Date at the Redemption Price specified pursuant to Section 301, if
the Company determines that (A) as a result of any change in or amendment to
the laws (or any regulations or rulings promulgated thereunder) of the United
States or of any political subdivision or taxing authority thereof or therein
affecting taxation, or any change in official position regarding application
or interpretation of such laws, regulations or rulings (including a holding
by a court of competent jurisdiction in the United States), which change or
amendment is announced or becomes effective on or after a date specified in
Section 301 with respect to any Security of such series, the Company or the
Guarantor has or will become obligated to pay additional amounts pursuant to
Section 1011 with respect to any Security of such series or (B) on or after a
date specified in Section 301 with respect to any Security of such series,
any action has been taken by any taxing authority of, or any decision has
been rendered by a court of competent jurisdiction in, the United States or
any political subdivision or taxing authority thereof or therein, including
any of those actions specified in (A) above, whether or not such action was
taken or decision was rendered with respect to the Company, or any change,
amendment, application or interpretation shall be officially proposed, which,
in any such case, in the Opinion of Counsel to the Company will result in a
material probability that the Company or the Guarantor will become obligated
to pay additional amounts with respect to any Security of such series, and
(C) in any such case specified in (A) or (B) above the Company, in its
business judgment, determines that such obligation cannot be avoided by the
use of reasonable measures available to the Company.
(b) Unless otherwise specified pursuant to Section 301, if the Company
shall determine that any payment made outside the United States by the
Company, the Guarantor or any of their Paying Agents of principal or interest
due in respect of any Bearer Security (an "Affected Security") of such series
or any coupon appertaining thereto would, under any present or future laws or
regulations of the United States, be subject to any certification,
information or other reporting requirement of any kind, the effect of which
requirement is the disclosure to the Company, the Guarantor, any Paying Agent
or any governmental authority of the nationality, residence or identity (as
distinguished from, for example, status as a United States Alien) of a
beneficial owner of such Affected Security of such series or coupon that is a
United States Alien (other than such a requirement that (i) would not be
applicable to a payment made by the Company, the Guarantor or any one of
their Paying Agents (A) directly to the beneficial owner or (B) to a
-97-
<PAGE>
custodian, nominee or other agent of the beneficial owner, (ii) can be
satisfied by such custodian, nominee or other agent certifying to the effect
that such beneficial owner is a United States Alien; provided that, in each
case referred to in clauses (i)(B) or (ii), payment by such custodian,
nominee or other agent to such beneficial owner is not otherwise subject to
any such requirement (other than a requirement which is imposed on a
custodian, nominee or other agent described in item (iv) of this sentence),
(iii) would not be applicable to a payment made by at least one other Paying
Agent of the Company or (iv) is applicable to a payment to a custodian,
nominee or other agent of the beneficial owner of such Security who is a
United States person (as hereinafter defined), a controlled foreign
corporation for United States tax purposes, a foreign person 50 percent or
more of the gross income of which for the three-year period ending with the
close of its taxable year preceding the year of payment is effectively
connected with a United States trade or business, or is otherwise related to
the United States), the Company shall elect by notice to the Trustee for such
series of Securities either (x) to redeem the Affected Securities of such
series, as a whole, at a redemption price equal to the principal amount
thereof, together with interest accrued to the date fixed for redemption, or
(y) if the conditions of the next succeeding paragraph are satisfied, to pay
the additional amounts specified in such paragraph. The Company shall make
such determination and election as soon as practicable and give prompt notice
thereof (the "Determination Notice") in the manner described in Section 106
stating the effective date of such certification, information or reporting
requirement, whether the Company has elected to redeem the Affected
Securities of such series or to pay the additional amounts specified in the
next succeeding paragraph, and (if applicable) the last date by which the
redemption of the Affected Securities of such series must take place, as
provided in the next succeeding sentence. If the Company elects to redeem
the Affected Securities of such series, such redemption shall take place on
such date, not later than one year after the giving of the Determination
Notice, as the Company shall specify by notice to such Trustee given not less
than 45 nor more than 75 days before the Redemption Date. Notice of such
redemption of the Affected Securities of such series shall be given to the
Holders thereof not less than 30 days nor more than 60 days prior to the
Redemption Date. Notwithstanding the foregoing, the Company shall not so
redeem the Affected Securities of such series if the Company shall
subsequently determine by notice to the Trustee, not less than 30 days prior
to the Redemption Date, that subsequent payments on the Affected Securities
of such series would not be subject to any such certification, information or
other reporting requirement, in which case the Company shall give prompt
notice of such subsequent determination in the manner specified in Section
106 and any earlier redemption notice shall be revoked and be of no further
effect. The right of the Holders of Affected Securities called for
redemption to exchange such Affected Securities for Registered Securities
(which Registered Securities will remain Outstanding following such
redemption) will terminate on the fifteenth day prior to the Redemption Date,
-98-
<PAGE>
and no further exchanges of Affected Securities for Registered Securities
shall be permitted unless the Company shall have made the subsequent
determination and given the notice referred to in the preceding sentence. As
used hereinabove, "United States person" means any citizen or resident of the
United States, any corporation, partnership or other entity created or
organized in or under the laws of the United States and any estate or trust
the income of which is subject to United States federal income taxation
regardless of its source.
If and so long as the certification, information or other reporting
requirement referred to in the preceding paragraph would be fully satisfied
by payment of a withholding tax, backup withholding tax or similar charge,
the Company may elect by notice to the Trustee to pay such additional amounts
as may be necessary so that every net payment made outside the United States
following the effective date of such requirement by the Company, the
Guarantor or any of their Paying Agents of principal (or premium, if any) or
interest, if any, due in respect of any Affected Security of such series or
any coupon appertaining thereto to a Holder who certifies that the beneficial
owner is a United States Alien (but without any requirement that the
nationality, residence or identity of such beneficial owner be disclosed to
the Company, the Guarantor, any Paying Agent or any governmental authority),
after deduction or withholding for or on account of such withholding tax,
backup withholding tax or similar charge (other than a withholding tax,
backup withholding tax or similar charge that (i) is the result of a
certification, information or other reporting requirement described in the
third parenthetical clause of the first sentence of the preceding paragraph
or (ii) is imposed as a result of presentation of any such Affected Security
or such coupon for payment more than 10 days after the date on which such
payment becomes due and payable or on which payment thereof was duly provided
for, whichever occurs later), will not be less than the amount provided in
such Affected Security or such coupon to be then due and payable. In the
event the Company elects to pay such additional amounts, (the Company's
election to exercise such right to be evidenced by prompt notice to the
Trustee for the Securities of the appropriate series), the Company will have
the right, at its sole option, at any time, to redeem the Affected Securities
of such series as a whole, but not in part, at the Redemption Price, subject
to the provisions of the last four sentences of the immediately preceding
paragraph. If the Company has made the determination described in the
preceding paragraph with respect to certification, information or other
reporting requirements applicable only to interest and subsequently makes a
determination in the manner and of the nature referred to in such preceding
paragraph with respect to such requirements applicable to principal, the
Company will redeem the Affected Securities of such series in the manner and
on the terms described in the preceding paragraph unless the Company elects
to have the provisions of this paragraph apply rather than the provisions of
the immediately preceding paragraph. If in such circumstances the Affected
Securities of such series are to be redeemed, the Company and the Guarantor
-99-
<PAGE>
shall have no obligation to pay additional amounts pursuant to this paragraph
with respect to principal (or premium, if any) or interest accrued and unpaid
after the date of the notice of such determination indicating such
redemption, but will be obligated to pay such additional amounts with respect
to interest accrued and unpaid to the date of such determination. If the
Company elects to pay additional amounts pursuant to this paragraph and the
condition specified in the first sentence of this paragraph should no longer
be satisfied, then the Company shall promptly redeem the Affected Securities
of such series in whole, but not in part, at the Redemption Price subject to
the provisions of the last four sentences of the immediately preceding
paragraph. If the Company elects to, or is required to, redeem the Affected
Securities of such series pursuant to this paragraph, it shall publish in the
manner and to the extent provided in Section 106 prompt notice thereof. If
the Affected Securities of such series are to be redeemed pursuant to this
paragraph, the redemption shall take place on such date, not later than one
year after publication of the notice of redemption, as the Company shall
specify by notice to the Trustee for such series of Securities at least 60
days prior to the Redemption Date. Any redemption payments made by the
Company or the Guarantor pursuant to this paragraph shall be subject to the
continuing obligation of the Company and the Guarantor to pay additional
amounts pursuant to this paragraph.
ARTICLE XII
Sinking Funds
Section 1201. Applicability of This Article.
Redemption of Securities through operation of a sinking fund as
permitted or required by any form of Security issued pursuant to this
Indenture shall be made in accordance with such form of Security and this
Article; provided, however, that if any provision of any such form of
Security shall conflict with any provision of this Article, the provision of
such form of Security shall govern.
The minimum amount of any sinking fund payment provided for by the terms
of Securities of any particular series is herein referred to as a "mandatory
sinking fund payment", and any payment in excess of such minimum amount
provided for by the terms of Securities of any particular series is herein
referred to as an "optional sinking fund payment". If provided for by the
terms of Securities of any particular series, the cash amount of any sinking
fund payment may be subject to reduction as provided in Section 1202. Each
sinking fund payment shall be applied to the redemption of Securities of any
particular series as provided for by the terms of Securities of that series.
-100-
<PAGE>
Section 1202. Satisfaction of Sinking Fund Payments With Securities.
The Company or the Guarantor (1) may deliver Outstanding Securities of a
series (other than any previously called for redemption), together in the
case of any Bearer Securities of such series with all unmatured coupons
appertaining thereto, and (2) may apply as a credit Securities of a series
which have been redeemed either at the election of the Company pursuant to
the terms of such Securities or through the application of permitted optional
sinking fund payments pursuant to the terms of such Securities, in each case
in satisfaction of all or any part of any sinking fund payment with respect
to the Securities of such series required to be made pursuant to the terms of
such Securities as provided for by the terms of such series; provided,
however, that such Securities have not been previously so credited. Such
Securities shall be received and credited for such purpose by the Trustee for
such Securities at the principal amount thereof and the amount of such
sinking fund payment shall be reduced accordingly.
Section 1203. Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for any
particular series of Securities, the Company will deliver to the Trustee for
the Securities of such series an Officers' Certificate specifying the amount
of the next ensuing mandatory sinking fund payment for that series pursuant
to the terms of that series, the portion thereof, if any, which is to be
satisfied by payment of cash in the currency or currency unit in which the
Securities of that series are payable (except as otherwise specified pursuant
to Section 301 for the Securities of that series and except as provided in
Sections 311(b) and 311(d)) and the portion thereof, if any, which is to be
satisfied by delivering and crediting Securities of that series pursuant to
Section 1202 and shall state the basis for such credit and that such
Securities have not previously been so credited and will also deliver to such
Trustee any Securities to be so delivered. Such Trustee shall select the
Securities to be redeemed upon such sinking fund payment date in the manner
specified in Section 1103 and cause notice of the redemption thereof to be
given in the name of and at the expense of the Company in the manner provided
in Section 1104. Such notice having been duly given, the redemption of such
Securities shall be made upon the terms and in the manner stated in Sections
1106 and 1107.
-101-
<PAGE>
ARTICLE XIII
Meetings of Holders of Securities
Section 1301. Purposes for Which Meetings May Be Called.
If Securities of a series are issuable as Bearer Securities, a meeting
of Holders of Securities of such series may be called at any time and from
time to time pursuant to this Article to make, give or take any request,
demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be made, given or taken by Holders of
Securities of such series.
Section 1302. Call, Notice and Place of Meetings.
(a) The Trustee for any series of Securities that includes Bearer
Securities, may at any time call a meeting of the Holders of Securities of
such series for any purpose specified in Section 1301, to be held at such
time and at such place in the Borough of Manhattan, The City of New York, or
in London, as such Trustee shall determine. Notice of every meeting of
Holders of Securities of such series, setting forth the time and the place of
such meeting and in general terms the action proposed to be taken at such
meeting, shall be given, in the manner provided in Section 106, not less than
20 nor more than 180 days prior to the date fixed for the meeting.
(b) In case at any time the Company, pursuant to a Board Resolution, or
the Holders of at least 10% in principal amount of the Outstanding Securities
of any such series shall have requested the Trustee for any such series to
call a meeting of the Holders of Securities of such series for any purpose
specified in Section 1301, by written request setting forth in reasonable
detail the action proposed to be taken at the meeting, and such Trustee shall
not have made the first publication of the notice of such meeting within 30
days after receipt of such request or shall not thereafter proceed to cause
the meeting to be held as provided herein, then the Company or the Holders of
Securities of such series in the amount above specified, as the case may be,
may determine the time and the place in the Borough of Manhattan, The City of
New York, or in London, for such meeting and may call such meeting for such
purposes by giving notice thereof as provided in subsection (a) of this
Section.
Section 1303. Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders of Securities of any
series, a Person shall be (1) a Holder of one or more Outstanding Securities
of such series, or (2) a Person appointed by an instrument in writing as
proxy for a Holder or Holders of one or more Outstanding Securities of such
series by such Holder or Holders. The only Persons who shall be entitled to
-102-
<PAGE>
be present or to speak at any meeting of Holders of Securities of any series
shall be the Persons entitled to vote at such meeting and their counsel, any
representatives of the Trustee for such series and its counsel and any
representatives of the Company and its counsel.
Section 1304. Quorum; Action.
The Persons entitled to vote a majority in principal amount of the
Outstanding Securities of a series shall constitute a quorum for a meeting of
Holders of Securities of such series. In the absence of a quorum within 30
minutes of the time appointed for any such meeting, the meeting shall, if
convened at the request of Holders of Securities of such series, be
dissolved. In any other case the meeting may be adjourned for a period of not
less than 10 days as determined by the chairman of the meeting prior to the
adjournment of such meeting. In the absence of a quorum at any such
adjourned meeting, such adjourned meeting may be further adjourned for a
period of not less than 10 days as determined by the chairman of the meeting
prior to the adjournment of such adjourned meeting. Subject to Section
1305(d), notice of the reconvening of any adjourned meeting shall be given as
provided in Section 1302(a), except that such notice need be given only once
not less than five days prior to the date on which the meeting is scheduled
to be reconvened. Notice of the reconvening of an adjourned meeting shall
state expressly that Persons entitled to vote a majority in principal amount
of the Outstanding Securities of such series shall constitute a quorum.
Except as limited by the proviso to Section 902, any resolution
presented to a meeting or adjourned meeting duly reconvened at which a quorum
is present as aforesaid may be adopted by the affirmative vote of the Holders
of a majority in principal amount of the Outstanding Securities of that
series; provided, however, that except as limited by the proviso to Section
902, any resolution with respect to any request, demand, authorization,
direction, notice, consent, waiver or other action which this Indenture
expressly provides may be made, given or taken by the Holders of a specified
percentage which is less than a majority in principal amount of the
Outstanding Securities of a series may be adopted at a meeting or an
adjourned meeting duly reconvened and at which a quorum is present as
aforesaid by the affirmative vote of the Holders of such specified percentage
in principal amount of the Outstanding Securities of that series.
Any resolution passed or decision taken at any meeting of Holders of
Securities of any series duly held in accordance with this Section shall be
binding on all the Holders of Securities of such series and the related
coupons, whether or not present or represented at the meeting.
-103-
<PAGE>
Section 1305. Determination of Voting Rights; Conduct and Adjournment of
Meetings.
(a) Notwithstanding any other provision of this Indenture, the Trustee
for any series of Securities that includes Bearer Securities may make such
reasonable regulations as it may deem advisable for any meeting of Holders of
Securities of such series in regard to proof of the holding of Securities of
such series and of the appointment of proxies and in regard to the
appointment and duties of inspectors of votes, the submission and examination
of proxies, certificates and other evidence of the right to vote, and such
other matters concerning the conduct of the meeting as it shall deem
appropriate. Except as otherwise permitted or required by any such
regulations, the holding of Securities shall be proved in the manner
specified in Section 104 and the appointment of any proxy shall be proved in
the manner specified in Section 104 or by having the signature of the person
executing the proxy witnessed or guaranteed by any trust company, bank or
banker authorized by Section 104 to certify to the holding of Bearer
Securities. Such regulations may provide that written instruments appointing
proxies, regular on their face, may be presumed valid and genuine without the
proof specified in Section 104 or other proof.
(b) The Trustee for any series of Securities that includes Bearer
Securities shall, by an instrument in writing, appoint a temporary chairman
of the meeting, unless the meeting shall have been called by the Company or
by Holders of Securities as provided in Section 1302(b), in which case the
Company or the Holders of Securities of the series calling the meeting, as
the case may be, shall in like manner appoint a temporary chairman. A
permanent chairman and a permanent secretary of the meeting shall be elected
by vote of the Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting.
(c) At any meeting each Holder of a Security of such series or proxy
shall be entitled to one vote for each $1,000 principal amount of Securities
of such series held or represented by him as determined in accordance with
Section 115; provided, however, that no vote shall be cast or counted at any
meeting in respect of any Security challenged as not Outstanding and ruled by
the chairman of the meeting to be not Outstanding. The chairman of the
meeting shall have no right to vote, except as a Holder of a Security of such
series or proxy.
(d) Any meeting of holders of Securities of any series duly called
pursuant to Section 1302 at which a quorum is present may be adjourned from
time to time by Persons entitled to vote a majority in principal amount of
the Outstanding Securities of such series represented at the meeting; and the
meeting may be held as so adjourned without further notice.
-104-
<PAGE>
Section 1306. Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of Holders of
Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers
of the Outstanding Securities of such series held or represented by them.
The permanent chairman of the meeting shall appoint two inspectors of votes
who shall count all votes cast at the meeting for or against any resolution
and who shall make and file with the secretary of the meeting their verified
written reports in triplicate of all votes cast at the meeting. A record, at
least in duplicate, of the proceedings of each meeting of Holders of
Securities of any series shall be prepared by the secretary of the meeting
and there shall be attached to said record the original reports of the
inspectors of votes on any vote by ballot taken thereat and affidavits by one
or more persons having knowledge of the facts setting forth a copy of the
notice of the meeting and showing that said notice was given as provided in
Section 1302 and, if applicable, Section 1304. Each copy shall be signed and
verified by the affidavits of the permanent chairman and secretary of the
meeting and one such copy shall be delivered to the Company and the
Guarantor, and another to the Trustee for such series of Securities to be
preserved by such Trustee, the latter to have attached thereto the ballots
voted at the meeting. Any record so signed and verified shall be conclusive
evidence of the matters therein stated.
ARTICLE XIV
Guarantees
Section 1401. Guarantee.
The Guarantor hereby unconditionally guarantees to each Holder of a
Security authenticated and delivered by the Trustee, and to the Trustee on
behalf of each such Holder, the due and punctual payment of the principal of
(and premium, if any) and interest, if any, on each such Security, the due
and punctual payment of any sinking fund payments and the payment of any
additional amounts, each as provided for pursuant to the terms of such
Security when and as the same shall become due and payable, whether at the
Stated Maturity, by declaration of acceleration, call for redemption or
otherwise, in accordance with the terms of such Security and of this
Indenture. In case of the failure of the Company punctually to make any such
payment of principal (or premium, if any) or interest, if any, or sinking
fund payment or payment of additional amounts, the Guarantor hereby agrees to
cause any such payment to be made punctually when and as the same shall
become due and payable, whether at the Stated Maturity or by declaration of
-105-
<PAGE>
acceleration, call for redemption or otherwise, and as if such payment were
made by the Company.
The Guarantor hereby agrees that its obligations hereunder shall be
unconditional, irrespective of the validity, regularity or enforceability of
such Security or this Indenture, the absence of any action to enforce the
same, any waiver or consent by the Holder of such Security or by the Trustee
with respect to any provisions thereof or of this Indenture, the obtaining of
any judgment against the Company or any action to enforce the same or any
other circumstances which might otherwise constitute a legal or equitable
discharge or defense of a guarantor. The Guarantor hereby waives the
benefits of division and discussion, diligence, presentment, demand of
payment, filing of claims with a court in the event of insolvency or
bankruptcy of the Company, any right to require a proceeding first against
the Company, protest or notice with respect to such Security or the
indebtedness evidenced thereby or with respect to any sinking fund payment
required pursuant to the terms of such Security and all demands whatsoever,
and covenants that this Guarantee will not be discharged except by complete
performance of the obligations contained in the Securities and in the
Guarantees. The Guarantees are guarantees of payment and not of collection.
If the Trustee or the Holder of any Security is required by any court or
otherwise to return to the Company or the Guarantor, or any custodian,
receiver, liquidator, trustee, sequestrator or other similar official acting
in relation to the Company or the Guarantor, any amount paid to the Trustee
or such Holder in respect of a Security, this Guarantee, to the extent
theretofore discharged, shall be reinstated in full force and effect. The
Guarantor further agrees, to the fullest extent that it lawfully may do so,
that, as between the Guarantor, on the one hand, and the Holders and the
Trustee, on the other hand, the maturity of the obligations guaranteed hereby
may be accelerated as provided in Article Five hereof for the purposes of
this Guarantee, notwithstanding any stay, injunction or other prohibition
extant under any applicable bankruptcy law preventing such acceleration in
respect of the obligations guaranteed hereby.
The Guarantor shall be subrogated to all rights of the Holders of the
Securities of a particular series against the Company in respect of any
amounts paid by the Guarantor on account of such Security pursuant to the
provisions of the Guarantees or this Indenture; provided, however, that the
Guarantor shall not be entitled to enforce or to receive any payments arising
out of, or based upon, such right of subrogation until the principal of (and
premium, if any) and interest, if any, on all Securities of such series
issued hereunder shall have been paid in full.
-106-
<PAGE>
Section 1402. Execution and Delivery of Guarantees.
To evidence its guarantee provided in Section 1301, the Guarantor hereby
agrees to execute the Guarantees, in a form established pursuant to Section
202, to be endorsed on each Security authenticated and delivered by the
Trustee. Each such Guarantee shall be executed on behalf of the Guarantor by
its Chairman of the Board, Vice Chairman of the Board, President or one of
its Vice Presidents or its Treasurer under a facsimile of its corporate seal
reproduced thereon and attested by its Secretary or one of its Assistant
Secretaries. The signature of any of these officers on the Guarantees may be
manual or facsimile.
Guarantees bearing the manual or facsimile signatures of individuals who
were at any time the proper officers of the Guarantor shall bind the
Guarantor, notwithstanding that such individuals or any of them have ceased
to hold such offices prior to the authentication and delivery of the
Securities upon which Guarantees are endorsed or did not hold such offices at
the date of such Securities.
The delivery of any Security by the Trustee, after the authentication
thereof hereunder, shall constitute due delivery of the Guarantee endorsed
thereon on behalf of the Guarantor. The Guarantor hereby agrees that its
Guarantee set forth in Section 1401 shall remain in full force and effect
notwithstanding any failure to endorse on each Security a notation of such
Guarantee.
* * *
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
-107-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Indenture dated
as of December 1, 1999 to be duly executed, and their respective corporate
seals to be hereunto affixed and attested, all as of December 1, 1999.
KEYSPAN GAS EAST CORPORATION
Issuer
By: ______________________________
[Title]
Attest:
_______________________
Assistant Secretary
KEYSPAN CORPORATION
Guarantor
By: ______________________________
[Title]
Attest:
_______________________
Assistant Secretary
THE CHASE MANHATTAN BANK,
Trustee
By:______________________________
[Title]
Attest:
_______________________
Trust Officer
-108-
<PAGE>
EXHIBIT A
[FORM OF CERTIFICATE TO BE DELIVERED TO EUROCLEAR OR CEDELBANK BY A
BENEFICIAL OWNER OF SECURITIES, IN ORDER TO RECEIVE A DEFINITIVE BEARER
SECURITY IN EXCHANGE FOR AN INTEREST IN A TEMPORARY GLOBAL SECURITY OR TO
EXCHANGE AN INTEREST IN A TEMPORARY GLOBAL SECURITY FOR AN INTEREST IN A
PERMANENT GLOBAL SECURITY]
KEYSPAN GAS EAST CORPORATION
[Insert title or description of Securities]
Reference is hereby made to the Indenture, dated as of December 1, 1999
(the "Indenture") between KeySpan Gas East Corporation(the "Company"),
KeySpan Corporation (the "Guarantor") and The Chase Manhattan Bank, as
Trustee. Terms used herein unless otherwise defined shall have the meanings
ascribed to them in the Indenture.
This is to certify that as of the date hereof [and except as provided
in the fourth paragraph hereof]*, $___________________principal amount of the
above-captioned Securities represented by a temporary Global Security (the
"temporary Global Security") held by you for our account is:
(i) beneficially owned by persons that are not United States
persons (as defined below);
(ii) owned by United States person(s) that are (a) foreign
branches of United States financial institutions (as defined in United
States Treasury Regulation Section 1.165-12(c)(1)(v) ("financial
institutions")) purchasing for their own account or for resale, or (b)
United States person(s) who acquired the beneficial interest in the
temporary Global Security through foreign branches of United States
financial institutions and who hold the beneficial interest in the
temporary Global Security through such United States financial
institutions on the date hereof (and in either case (a) or (b), each
such United States financial institution hereby agrees, for the benefit
of the Company [and the Guarantor], that it will comply with the
requirements of Section 165(j)(3)(A), (B) or (C) of the United States
Internal Revenue Code of 1986, as amended, and the regulations
thereunder); or
(iii) owned by financial institution(s) for the purpose of resale
during the restricted period (as defined in United States Treasury
Regulation Section 1.163-5(c)(2)(i)(D)(7)) and, in addition, financial
institution(s) described in this clause (iii) (whether or not also
described in clause (i) or (ii)), further certify that they have not
acquired the beneficial interest in the temporary Global Security for
the purpose of resale directly or indirectly to a United States person
or to a person within the United States.
<PAGE>
"United States person" means a citizen or resident of the United States,
a corporation, partnership or other entity created or organized in or under
the laws of the United States and an estate or trust the income of which is
subject to United States federal income taxation regardless of its source,
and "United States" means the United States of America (including the States
and the District of Columbia), its territories, its possessions and other
areas subject to its jurisdiction (including the Commonwealth of Puerto
Rico).
-2-
<PAGE>
[This certificate excepts and does not relate to $_________ principal
amount of the temporary Global Security held by you for our account as to
which we are not able to provide a certificate in this form. We understand
that exchange of such portion of the temporary Global Security for
[definitive Bearer Securities] [interests in a permanent Global Security]
cannot be made until we are able to provide a certificate in this form.]* We
undertake to advise you promptly by tested telex on or prior to the date on
which you intend to submit your certification relating to the above-captioned
Securities held by you for our account 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 certification applies as of such date.
We understand that this certificate is required in connection with
certain tax laws and regulations in the United States. 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 or a copy thereof to any interested party in such
proceedings.
Dated:
- -------------------------
[Name of Person Making Certification]
By:__________________________________
* Delete if inappropriate.
-3-
<PAGE>
EXHIBIT B
[FORM OF CERTIFICATE TO BE GIVEN TO THE APPROPRIATE TRUSTEE BY EUROCLEAR OR
CEDELBANK REGARDING THE EXCHANGE OF A TEMPORARY GLOBAL SECURITY FOR
DEFINITIVE SECURITIES OR FOR A PORTION OF A PERMANENT GLOBAL SECURITY]
KEYSPAN GAS EAST CORPORATION
[Insert title or description of Securities]
Reference is hereby made to the Indenture, dated as of December 1,
1999 (the "Indenture") between KeySpan Gas East Corporation (the "Company"),
KeySpan Corporation (the "Guarantor") and The Chase Manhattan Bank, as
Trustee. Terms used herein unless otherwise defined shall have the meanings
ascribed to them in the Indenture.
We refer to that portion of the temporary Global Security in respect
of the above-captioned Securities which is herewith submitted to be exchanged
for [definitive Bearer Securities] [interests in a permanent Global Security]
(the "Submitted Portion") as provided in the Prospectus Supplement dated
[insert date of Prospectus Supplement] in respect of such issue. This is to
certify that (i) we have received in writing or by tested telex or
electronically (in accordance with the requirements of United States Treasury
Regulation Section 1.163-5(c)(2)(i)(D)(3)(ii)) a certificate or certificates
with respect to the entire Submitted Portion, substantially in the form of
Exhibit A to the Indenture, and (ii) the Submitted Portion includes no part
of the temporary Global Security excepted in such certificates.
We further certify that as of the date hereof we have not received any
notification from any of the persons giving such certificates to the effect
that the statements made by them with respect to any part of the Submitted
Portion are no longer true and cannot be relied on as of the date thereof.
<PAGE>
We understand that this certificate is required in connection with
certain tax laws and regulations in the United States of America. 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 or a copy thereof to any interested party in
such proceedings. Submitted Portion:
U.S.$ ___________________
Dated: ___________________
[Morgan Guaranty Trust Company of New
York, Brussels office, as operator of the Euroclear
System]* [Cedelbank]*
By: __________________________
___________________________
* Delete if inappropriate.
-2-
<PAGE>
EXHIBIT C
[FORM OF CERTIFICATE TO BE DELIVERED TO EUROCLEAR OR CEDELBANK BY A
BENEFICIAL OWNER OF SECURITIES, IN ORDER TO RECEIVE PAYMENT ON A TEMPORARY
GLOBAL SECURITY]
KEYSPAN GAS EAST CORPORATION
[Insert title or description of Securities]
Reference is hereby made to the Indenture, dated as of December 1,
1999 (the "Indenture") between KeySpan Gas East Corporation(the "Company"),
KeySpan Corporation (the "Guarantor") and The Chase Manhattan Bank, as
Trustee. Terms used herein unless otherwise defined shall have the meanings
ascribed to them in the Indenture.
This is to certify that as of the date hereof [and except as provided
in the fourth paragraph hereof]*, $___________________principal amount of the
above-captioned Securities represented by a temporary Global Security (the
"temporary Global Security") held by you for our account is:
(i) beneficially owned by persons that are not United States
persons (as defined below);
(ii) owned by United States person(s) that are (a) foreign branches
of United States financial institutions (as defined in United States
Treasury Regulation Section 1.165-12(c)(1)(v) ("financial
institutions")) purchasing for their own account or for resale, or (b)
United States person(s) who acquired the beneficial interest in the
temporary Global Security through foreign branches of United States
financial institutions and who hold the beneficial interest in the
temporary Global Security through such United States financial
institutions on the date hereof (and in either case (a) or (b), each
such United States financial institution hereby agrees, for the benefit
of the Company [and the Guarantor], that it will comply with the
requirements of Section 165(j)(3)(A), (B) or (C) of the United States
Internal Revenue Code of 1986, as amended, and the regulations
thereunder); or
(iii) owned by financial institution(s) for the purpose of resale
during the restricted period (as defined in United States Treasury
Regulation Section 1.163-5(c)(2)(i)(D)(7)) and, in addition, financial
institution(s) described in this clause (iii) (whether or not also
described in clause (i) or (ii)), further certify that they have not
acquired the beneficial interest in the temporary Global Security for
the purpose of resale directly or indirectly to a United States person
or to a person within the United States.
<PAGE>
"United States person" means a citizen or resident of the United
States, a corporation, partnership or other entity created or organized in or
under the laws of the United States and an estate or trust the income of
which is subject to United States federal income taxation regardless of its
source, and "United States" means the United States of America (including the
States and the District of Columbia), its territories, its possessions and
other areas subject to its jurisdiction (including the Commonwealth of Puerto
Rico).
[This certificate excepts and does not relate to $_________ principal
amount of the temporary Global Security held by you for our account as to
which we are not able to provide a certificate in this form. We understand
that payments, if any, due with respect to such portion of the temporary
Global Security cannot be made until we are able to provide a certificate in
this form.]*
We undertake to advise you promptly by tested telex on or prior to the
date on which you intend to submit your certification relating to the
above-captioned Securities held by you for our account 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 certification applies as of such
date.
-2-
<PAGE>
We understand that this certificate is required in connection with
certain tax laws and regulations in the United States. 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 or a copy thereof to any interested party in such
proceedings.
Dated:________________
[Name of Person Making Certification]
By:__________________________________
___________________________
* Delete if inappropriate.
-3-
<PAGE>
EXHIBIT D
[FORM OF CERTIFICATE TO BE GIVEN TO THE APPROPRIATE TRUSTEE BY EUROCLEAR OR
CEDELBANK REGARDING PAYMENT ON A TEMPORARY GLOBAL SECURITY]
KEYSPAN GAS EAST CORPORATION
[Insert title or description of Securities]
Reference is hereby made to the Indenture, dated as of December 1, 1999
(the "Indenture") between KeySpan Gas East Corporation (the "Company"),
KeySpan Corporation (the "Guarantor") and The Chase Manhattan Bank, as
Trustee. Terms used herein unless otherwise defined shall have the meanings
ascribed to them in the Indenture.
We refer to that portion of the temporary Global Security in respect
of the above-captioned Securities for which we hereby request that you make
payment to us of the amounts payable on the relevant payment date (the
"Submitted Portion") as provided in the Prospectus Supplement dated [insert
date of Prospectus Supplement] in respect of such issue. This is to certify
that (i) we have received in writing or by tested telex or electronically (in
accordance with the requirements of United States Treasury Regulation Section
1.163- 5(c)(2)(i)(D)(3)(ii)) a certificate or certificates with respect to
the entire Submitted Portion, substantially in the form of Exhibit C to the
Indenture, and (ii) the Submitted Portion includes no part of the temporary
Global Security excepted in such certificates.
We further certify that as of the date hereof we have not received any
notification from any of the persons giving such certificates to the effect
that the statements made by them with respect to any part of the Submitted
Portion are no longer true and cannot be relied on as of the date thereof.
We understand that this certificate is required in connection with
certain tax laws and regulations in the United States of America. 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 or a copy thereof to any interested party in
such proceedings.
<PAGE>
Submitted Portion:
U.S. $ _______________________
Dated: _______________________
[Morgan Guaranty Trust Company of New York, Brussels office,
as operator of the Euroclear System]*
[Cedelbank]*
By:__________________________________
___________________________
* Delete if inappropriate.
-2-
Exhibit 4-b
FIXED RATE GLOBAL MEDIUM-TERM NOTE
[If this Note is an OID Note (as defined below) the following legend is
applicable:
FOR PURPOSES OF SECTIONS 1272, 1273 AND 1275 OF THE UNITED STATES INTERNAL
REVENUE CODE OF 1986, AS AMENDED, THE ISSUE PRICE OF THIS NOTE IS _____, THE
AMOUNT OF ORIGINAL ISSUE DISCOUNT IS __________, THE YIELD TO MATURITY IS
_______ AND THE ISSUE DATE IS ___________.]
.
THIS NOTE IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE THEREOF. UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR
NOTES IN CERTIFICATED FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A
WHOLE BY THE DEPOSITORY TRUST COMPANY (THE "DEPOSITARY") TO A NOMINEE OF THE
DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY
OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS NOTE IS PRESENTED BY
AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY TO THE COMPANY OR ITS AGENT
FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY (AND ANY PAYMENT 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 INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
REGISTERED PRINCIPAL AMOUNT
No. FX ___________ CUSIP No. ___________ $_______________
<PAGE>
KEYSPAN GAS EAST CORPORATION
MEDIUM-TERM NOTE,
SERIES A
(Fixed Rate)
ORIGINAL ISSUE DATE: INTEREST RATE: STATED MATURITY:
INTEREST PAYMENT DATES: REGULAR RECORD DATE:
ANNUAL
REDEMPTION
INITIAL REDEMPTION DATE: INITIAL REDEMPTION PERCENTAGE
PERCENTAGE: REDUCTION:
OPTIONAL
REPAYMENT DATE(S):
DENOMINATIONS: ADDENDUM
(Integral multiples of ATTACHED:
$1,000,
unless otherwise specified) : Yes
: No
OTHER PROVISIONS:
-2-
<PAGE>
KEYSPAN GAS EAST CORPORATION, a Delaware corporation (the "Issuer"
or the "Company," which terms include any successor corporation under the
Indenture hereinafter referred to), for value received, hereby promises to
pay to CEDE & CO., or registered assigns, the principal sum of
DOLLARS on the Stated Maturity
specified above (except to the extent redeemed or repaid prior to the Stated
Maturity), and to pay interest thereon at the Interest Rate per annum
specified above, until the principal hereof is paid or duly made available
for payment. Reference herein to "this Note", "hereof", "herein" and
comparable terms shall include an Addendum hereto if an Addendum is specified
above.
The Company will pay interest on each Interest Payment Date
specified above, commencing on the first Interest Payment Date next
succeeding the Original Issue Date specified above, and on the Stated
Maturity or any Redemption Date or Optional Repayment Date (as defined below)
(the date of each such Stated Maturity, Redemption Date and Optional
Repayment Date and the date on which principal or an installment of principal
is due and payable by declaration of acceleration pursuant to the Indenture
being referred to hereinafter as a "Maturity" with respect to principal
payable on such date); provided, however, that if the Original Issue Date is
between a Regular Record Date (as defined below) and the next succeeding
Interest Payment Date, interest payments will commence on the second Interest
Payment Date succeeding the Original Issue Date. Unless otherwise specified
above, the "Regular Record Date" shall be the date 15 calendar days (whether
or not a Business Day) prior to the applicable Interest Payment Date.
Interest on this Note will accrue from and including the most recent Interest
Payment Date to which interest has been paid or duly provided for or, if no
interest has been paid, from the Original Issue Date specified above, to, but
excluding such Interest Payment Date. If the Maturity or an Interest Payment
Date falls on a day which is not a Business Day, the payment due on such
Maturity or Interest Payment Date will be paid on the next succeeding
Business Day with the same force and effect as if made on such Maturity or
Interest Payment Date, as the case may be, and no interest shall accrue with
respect to such payment for the period from and after such Maturity or
Interest Payment Date. The interest so payable and punctually paid or duly
provided for on any Interest Payment Date will as provided in the Indenture
be paid to the Person in whose name this Note (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such Interest Payment Date. Any such interest which is payable, but not
punctually paid or duly provided for on any Interest Payment Date (herein
called "Defaulted Interest"), shall forthwith cease to be payable to the
registered Holder on such Regular Record Date, and may be paid to the Person
in whose name this Note (or one or more Predecessor Securities) is registered
at the close of business on a Special Record Date for the payment of such
Defaulted Interest to be fixed by the Trustee, notice whereof shall be given
to the Holder of this Note not less than 10 days prior to such Special Record
-3-
<PAGE>
Date, or may be paid at any time in any other lawful manner, all as more
fully provided in the Indenture.
The Notes are, and all other Securities issued under the Indenture
will be, unconditionally guaranteed as to payment of principal (and premium,
if any), interest, if any, and additional amounts, if any, by KeySpan
Corporation, a Delaware corporation (the "Guarantor").
Payment of the principal of (and premium, if any) and interest on
this Note will be made at the office or agency of the Company maintained by
the Company for such purpose in the Borough of Manhattan, The City of New
York, in such coin or currency of the United States of America as at the time
of payment is legal tender for payment of public and private debts.
Unless the certificate of authentication hereon has been executed
by or on behalf of The Chase Manhattan Bank, the Trustee for this Note under
the Indenture, or its successor thereunder, by the manual signature of one of
its authorized officers, this Note shall not be entitled to any benefit under
the Indenture or be valid or obligatory for any purpose.
This Note is one of a duly authorized issue of Securities
(hereinafter called the "Securities") of the Company designated as its
Medium-Term Notes, Series A (the "Notes"). The Securities are issued and to
be issued under an indenture (the "Indenture") dated as of December 1, 1999,
between the Company, the Guarantor and The Chase Manhattan Bank (herein
called the "Trustee," which term includes any successor Trustee under the
Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights thereunder
of the Company, the Guarantor, the Trustee and the Holders of the Notes and
the terms upon which the Notes are to be authenticated and delivered. The
terms of other Notes may vary with respect to interest rates or interest rate
formulas, issue dates, maturity, redemption, repayment, currency of payment
and otherwise as provided in the Indenture.
The Notes are issuable only in registered form without coupons in
denominations, unless otherwise specified above, of $1,000 and integral
multiples thereof. As provided in the Indenture and subject to certain
limitations therein set forth, the Notes are exchangeable for a like
aggregate principal amount of Notes as requested by the Holder surrendering
the same. If (x) the Depositary is at any time unwilling or unable to
continue as depository and a successor depository is not appointed by the
Company within 90 days, (y) the Company delivers to the Trustee a Company
Order to the effect that this Note shall be exchangeable or (z) an Event of
Default has occurred and is continuing with respect to the Notes, this Note
shall be exchangeable for Notes in definitive form of like tenor and in an
equal aggregate principal amount, in authorized denominations. Such
definitive Notes shall be registered in such name or names as the Depositary
-4-
<PAGE>
shall instruct the Trustee. If definitive Notes are so delivered, the
Company may make such changes to the form of this Note as are necessary or
appropriate to allow for the issuance of such definitive Notes.
This Note is not subject to any sinking fund.
This Note may be subject to repayment at the option of the Holder
prior to its Stated Maturity on any Holder's Optional Repayment Date(s), if
any, indicated above. If no Optional Repayment Dates are set forth above,
this Note may not be so repaid at the option of the Holder hereof prior to
the Stated Maturity. On any Optional Repayment Date this Note shall be
repayable in whole or in part in an amount equal to $1,000 or any integral
multiple thereof (provided that any remaining principal amount shall be an
authorized denomination) at the option of the Holder hereof at a repayment
price equal to 100% of the principal amount to be repaid, together with
interest thereon payable to the date of repayment. For this Note to be
repaid in whole or in part at the option of the Holder hereof, this Note must
be received, with the form entitled "Option to Elect Repayment" below duly
completed, by the Trustee at its office at 450 West 33rd Street, 15th Floor,
New York, New York 10001 or such address which the Company shall from time to
time notify the Holder hereof ("Corporate Trust Office"), not more than 60
nor less than 30 days prior to an Optional Repayment Date. This Note must be
received by the Trustee by 5:00 P.M., New York City time, on the last day for
giving such notice. Exercise of such repayment option by the Holder hereof
shall be irrevocable. In the event of payment of this Note in part only, a
new Note for the unpaid portion hereof shall be issued in the name of the
Holder hereof upon the surrender hereof.
This Note may be redeemed at the option of the Company prior to its
Stated Maturity on any date on and after the Initial Redemption Date, if any,
specified above (the "Redemption Date"). If no Initial Redemption Date is
set forth above, this Note may not be redeemed at the option of the Company
prior to the Stated Maturity. On and after the Initial Redemption Date, if
any, this Note may be redeemed at any time in whole or from time to time in
part in increments of $1,000 (provided that any remaining principal amount
shall be an authorized denomination) at the option of the Company at the
applicable Redemption Price (as defined below) together with interest thereon
payable to the Redemption Date, on notice given not more than 60 nor less
than 30 days prior to the Redemption Date. In the event of redemption of
this Note in part only, a new Note for the unredeemed portion hereof shall be
issued in the name of the Holder hereof upon the surrender hereof.
If this Note is redeemable at the option of the Company prior to
its Stated Maturity, the "Redemption Price" shall initially be the Initial
Redemption Percentage, specified above, of the principal amount of this Note
to be redeemed and shall decline at each anniversary of the Initial
Redemption Date by the Annual Redemption Percentage Reduction, if any,
-5-
<PAGE>
specified above, of the principal amount to be redeemed until the Redemption
Price is 100% of such principal amount.
Interest on this Note will accrue from, and including, the Original
Issue Date indicated above, or the most recent date to which interest has
been paid or duly provided for, to, but excluding, the related Interest
Payment Date or Maturity, as the case may be, at the Interest Rate per annum
stated above until the principal amount hereof is paid or made available for
payment. Unless otherwise specified above, interest will be computed on the
basis of a 360-day year of twelve 30-day months for the period specified
hereunder.
Any provision contained herein with respect to the calculation of
the interest applicable to this Note, its payment dates or any other matter
relating hereto may be modified as specified in an Addendum relating hereto
if so specified above or as set forth under "Other Provisions" if so set
forth above.
If an Event of Default (as defined in the Indenture) with respect
to the Notes shall occur and be continuing, the principal of all the Notes
may be declared due and payable in the manner and with the effect provided in
the Indenture. If the principal of any Original Issue Discount Note is
declared to be due and payable immediately, the amount of principal due and
payable with respect to such Note shall be limited to the amount equal to (i)
the sum of the aggregate principal amount of such Note multiplied by the
price (expressed as a percentage of the aggregate principal amount) at which
such Note will be issued (the "Issue Price") plus (ii) the original issue
discount accrued from the date of issue to the date of declaration, which
accrual shall be calculated using the "interest method" computed in
accordance with generally accepted accounting principals in effect on the
date of declaration. An "Original Issue Discount Note" means (i) a Note,
including any zero-coupon Note, that has a stated redemption price at
maturity that exceeds the initial offering price to the public at which a
substantial amount of an offering is sold by at least 0.25% of its principal
amount multiplied by the number of full years from the Original Issue Date to
the stated Maturity for such Note and which is designated as an Original
Issue Discount Note in the terms of such Note pursuant to the Indenture, and
(ii) any other Note designated by the Company as issued with original issue
discount for United States federal income tax purposes.
The Indenture permits, with certain exceptions as therein provided,
the amendment or modification thereof at any time by the Company, the
Guarantor and the Trustee with the consent of the Holders of more than 50% in
principal amount of the Securities at the time outstanding of each series
issued under the Indenture to be affected thereby. The Indenture also
contains provisions permitting the Holders of more than 50% in principal
amount of the Securities of each series at the time outstanding, on behalf of
-6-
<PAGE>
the Holders of all the Securities of that series, to waive compliance by the
Company and the Guarantor with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences with respect
to such series. Any such consent or waiver by the Holder of this Note shall
be conclusive and binding upon such Holder and upon all future Holders of
this Note and of any Note issued upon the registration of transfer hereof or
in exchange herefor or in lieu hereof, whether or not notation of such
consent or waiver is made upon this Note.
No reference herein to the Indenture and no provision of this Note
or of the Indenture shall alter or impair the obligation of the Company,
which is absolute and unconditional, to pay the principal of (and premium, if
any) and interest on this Note at the time, place and rate, and in the coin
or currency, herein and in the Indenture prescribed.
As provided in the Indenture and subject to certain limitations set
forth therein and above, the transfer of this Note may be registered on the
Security Register of the Company, upon surrender of this Note for
registration of transfer at the office or agency of the Company in the
Borough of Manhattan, The City of New York, duly endorsed by, or accompanied
by a written instrument of transfer in form satisfactory to the Company duly
executed by, the Holder hereof or by his attorney duly authorized in writing,
and thereupon one or more new Notes of authorized denominations and for the
same aggregate principal amount, and having endorsed thereon a Guarantee duly
executed by the Guarantor, will be issued to the designated transferee or
transferees.
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge payable in connection
therewith.
Prior to due presentment of this Note for registration of transfer,
the Company, the Guarantor, the Trustee and any agent of the Company or the
Trustee may treat the Person in whose name this Note is registered as the
owner hereof for all purposes, whether or not this Note be overdue, and
neither the Company, the Guarantor, the Trustee nor any such agent shall be
affected by notice to the contrary.
Certain of the Company's and the Guarantor's obligations under the
Indenture with respect to Notes, may be terminated if the Company or the
Guarantor irrevocably deposits with the Trustee money or Government
Obligations sufficient to pay and discharge the entire indebtedness on all
Notes, as provided in the Indenture.
The Indenture and the Notes shall be governed by and construed in
accordance with the laws of the State of New York.
-7-
<PAGE>
All terms used in this Note which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
IN WITNESS WHEREOF, the Company has caused this instrument to be
duly executed, manually or in facsimile, and an imprint or facsimile of its
corporate seal to be imprinted hereon.
Dated: ____________
KEYSPAN GAS EAST CORPORATION
By: ______________________________
[Name and Title]
[FACSIMILE OF SEAL]
Attest:
By: ______________________________
[Name and Title]
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the
series designated therein referred to in
the within-mentioned Indenture.
THE CHASE MANHATTAN BANK,
as Trustee
By: ______________________________
Authorized Officer
-8-
<PAGE>
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) and instruct(s) the
Company to repay this Note (or portion hereof specified below) pursuant to
its terms at a price equal to the principal amount hereof together with
interest to the repayment date, to the undersigned, at
(Please print or typewrite name and address of the undersigned)
For this Note to be repaid, the Trustee must receive at its
Corporate Trust Office, or at such other place or places of which the Company
shall from time to time notify the Holder of this Note, not more than 60 nor
less than 30 days prior to an Optional Repayment Date, if any, shown on the
face of this Note, this Note with this "Option to Elect Repayment" form duly
completed. This Note notice must be received by the Trustee by 5:00 P.M.,
New York City time, on the last day for giving such notice.
If less than the entire principal amount of this Note is to be
repaid, specify the portion hereof (which shall be in an amount equal to
$1,000 or an integral multiple thereof, provided that any remaining principal
amount is equal to an authorized denomination) which the Holder elects to
have repaid and specify the denomination or denominations (which shall be in
an amount equal to an authorized denomination) of the Notes to be issued to
the Holder for the portion of this Note not being repaid (in the absence of
any such specification, one such Note will be issued for the portion not
being repaid).
$ _______________________ ______________________________________________
NOTICE: The signature on this Option to Elect
Date_____________________ Repayment must correspond with the name as
written upon the face of this Note in every
particular, without alteration or enlargement
or any change whatever
-9-
<PAGE>
ASSIGNMENT/TRANSFER FORM
FOR VALUE RECEIVED the undersigned registered Holder hereby
sell(s), assign(s) and transfer(s) unto (insert Taxpayer Identification No.)
_____________________________________________________________________________
_____________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
_____________________________________________________________________________
the within Note and all rights thereunder, hereby irrevocably constituting
and appointing ________________________________________ attorney to transfer
said Note on the books of the Company with full power of substitution in the
premises.
Date: ____________________ ______________________________________________
NOTICE: The signature of the registered Holder
to this assignment must correspond with the
name as written upon the face of the within
instrument in every particular, without
alteration or enlargement or any change
whatsoever.
-10-
<PAGE>
GUARANTEE
FOR VALUE RECEIVED, KEYSPAN CORPORATION, a New York corporation
(the "Guarantor"), hereby fully and unconditionally guarantees to each Holder
of a Note authenticated and delivered by the Trustee, and to the Trustee on
behalf of each such Holder, the due and punctual payment of the principal of
(and premium, if any) and interest, if any, on each such Note, the due and
punctual payment of any sinking fund payments provided for pursuant to the
terms of such Note and the payment of any additional amounts when and as the
same shall become due and payable, whether at the Stated Maturity, by
declaration of acceleration, call for redemption or otherwise, in accordance
with the terms of such Note and of the Indenture, dated as of December 1,
1999 (the "Indenture") by and among KeySpan Gas East Corporation (the
"Issuer" or the "Company"), the Guarantor and The Chase Manhattan Bank, as
Trustee (the "Trustee"). In case of the failure of the Company punctually to
make any such payment of principal (or premium, if any) or interest, if any,
or sinking fund payment or payment of additional amounts, the Guarantor
hereby agrees to cause any such payment to be made punctually when and as the
same shall become due and payable, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise, and as if such
payment were made by the Company.
The Guarantor hereby agrees that its obligations hereunder shall be
unconditional, irrespective of the validity, regularity or enforceability of
such Note or the Indenture, the absence of any action to enforce the same,
any waiver or consent by the Holder of such Note or by the Trustee with
respect to any provisions thereof or of the Indenture, the obtaining of any
judgment against the Company or any action to enforce the same or any other
circumstances which might otherwise constitute a legal or equitable discharge
or defense of a guarantor. The Guarantor hereby waives the benefits of
diligence, presentment, demand of payment, filing of claims with a court in
the event of insolvency or bankruptcy of the Company, any right to require a
proceeding first against the Company, protest or notice with respect to such
Note or the indebtedness evidenced thereby or with respect to any sinking
fund payment required pursuant to the terms of such Note and all demands
whatsoever, and covenants that this Guarantee will not be discharged except
by complete performance of the obligations contained in the Notes and in this
Guarantee. This Guarantee is a guarantee of payment and not collection. If
the Trustee or the Holder of any Note is required by any court or otherwise
to return to the Company or the Guarantor, or any custodian, receiver,
liquidator, trustee, sequestrator or other similar official acting in
relation to the Company or the Guarantor, any amount paid to the Trustee or
such Holder in respect of a Note, this Guarantee, to the extent theretofore
discharged, shall be reinstated in full force and effect. The Guarantor
further agrees, to the fullest extent that it lawfully may do so, that, as
between the Guarantor on the one hand, and the Holders and the Trustee, on
the other hand, the maturity of the obligations guaranteed hereby may be
-11-
<PAGE>
accelerated as provided in Article V of the Indenture for the purposes of
this Guarantee, notwithstanding any stay, injunction or other prohibition
extant under any applicable bankruptcy law preventing such acceleration in
respect of the obligations guaranteed hereby.
The Guarantor shall be subrogated to all rights of the Holders of
the Notes of a particular series against the Company in respect of any amount
paid by the Guarantor on account of such Note pursuant to the provisions of
this Guarantee or the Indenture; provided, however, that the Guarantor shall
not be entitled to enforce or to receive any payments arising out of, or
based upon, such right of subrogation until the principal of (and premium, if
any) and interest, if any, on all Notes of such series issued hereunder shall
have been paid in full.
The Guarantor hereby certifies and warrants that all acts,
conditions and things required to be done and performed and to have happened
prior to the creation and issuance of this Guarantee and to constitute the
same as the legal, valid and binding obligation of the Guarantor enforceable
in accordance with its terms, have been done and performed and have happened
in due and strict compliance with applicable laws.
The delivery of any Note by the Trustee, after the authentication
thereof, shall constitute due delivery of this Guarantee endorsed thereon on
behalf of the Guarantor. The Guarantor hereby agrees that this Guarantee
shall remain in full force and effect notwithstanding any failure to endorse
on each Note a notation of this Guarantee.
This Guarantee shall be governed by and construed in accordance
with the laws of the State of New York.
All terms used in this Guarantee which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
IN WITNESS WHEREOF, KEYSPAN CORPORATION has caused this Guarantee
to be duly executed in its corporate name by the facsimile signature of one
of its officers thereunto duly authorized and has caused a facsimile of its
corporate seal to be affixed hereunto or imprinted or otherwise reproduced
hereon.
Dated as of: , 2000
KEYSPAN CORPORATION
By: ___________________________________
[Name and Title]
[FACSIMILE OF SEAL]
-12-
Exhibit 4-b
FLOATING RATE GLOBAL MEDIUM-TERM NOTE
[If this Note is an OID Note (as defined below) the following legend is
applicable:
FOR PURPOSES OF SECTIONS 1272, 1273 AND 1275 OF THE UNITED STATES INTERNAL
REVENUE CODE OF 1986, AS AMENDED, THE ISSUE PRICE OF THIS NOTE IS _____, THE
AMOUNT OF ORIGINAL ISSUE DISCOUNT IS _________________, THE YIELD TO
MATURITY IS _______ AND THE ISSUE DATE IS _____________________.]
THIS NOTE IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE THEREOF. UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR
NOTES IN CERTIFICATED FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A
WHOLE BY THE DEPOSITORY TRUST COMPANY (THE "DEPOSITARY") TO A NOMINEE OF THE
DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY
OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS NOTE IS PRESENTED BY
AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY TO THE COMPANY OR ITS AGENT
FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY (AND ANY PAYMENT 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 INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
REGISTERED CUSIP No. PRINCIPAL AMOUNT
No. BFLR______________ ________________ $_______________
<PAGE>
KEYSPAN GAS EAST CORPORATION
MEDIUM-TERM NOTE,
SERIES A
(Floating Rate)
INTEREST RATE BASIS: ORIGINAL ISSUE DATE: STATED MATURITY:
INDEX MATURITY: INITIAL INTEREST RATE: SPREAD:
INITIAL INTEREST RESET DATE: REGULAR RECORD DATE: INTEREST PAYMENT
DATES:
SPREAD MULTIPLIER: INTEREST RESET
DATES:
MAXIMUM INTEREST RATE: MINIMUM INTEREST RATE: INITIAL
REDEMPTION DATE:
INITIAL REDEMPTION ANNUAL REDEMPTION OPTIONAL
PERCENTAGE: PERCENTAGE REDUCTION: REPAYMENT
DATE(S):
-2-
<PAGE>
CALCULATION AGENTS: IF INTEREST RATE
Merrill Lynch, Pierce, Fenner BASIS IS LIBOR:
& Smith Incorporated and J.P.
Morgan Securities Inc.
INDEX CURRENCY:
DESIGNATED LIBOR
PAGE:
[ ]Reuters Page:
_____
[ ]Telerate Page:
_____
INTEREST CALCULATION: DAY COUNT
[ ]Regular Floating Rate Note CONVENTION:
[ ]Floating Rate/Fixed Rate [ ]Actual/360 for
Fixed Rate: the period from
Commencement Date: to .
Fixed Interest Rate:
[ ]Inverse Floating Rate Note [ ]Actual/Actual
Fixed Interest Rate: to the period
from to .
ADDENDUM ATTACHED: DENOMINATIONS:
[ ]Yes (Integral
multiples of
[ ]No $1,000, unless
otherwise
specified)
IF INTEREST RATE BASIS OTHER PROVISIONS:
IS PRIME RATE:
[ ]Prime Rate--Major Ban
[ ]Prime Rate--H.15
IF INTEREST RATE BASIS IS
CMT RATE:
[ ]Designated CMT Telerate
Page is 7051
[ ]Designated CMT Telerate
Page is 7052
[ ]Weekly Average
[ ]Monthly Average
Designated CMT Maturity
Index:
-4-
<PAGE>
KEYSPAN GAS EAST CORPORATION, a Delaware corporation ("Issuer" or
the "Company," which terms include any successor corporation under the
Indenture hereinafter referred to), for value received, hereby promises to
pay to CEDE & CO., or registered assigns, the principal sum of _____________
DOLLARS on the Stated Maturity specified above (except to the extent
redeemed or repaid prior to the Stated Maturity Date), and to pay interest
thereon, at a rate per annum equal to the Initial Interest Rate specified
above until the Initial Interest Reset Date specified above and thereafter at
a rate per annum determined in accordance with the provisions hereof and any
Addendum relating hereto depending upon the Interest Rate Basis or Bases, and
such other terms specified above, until the principal hereof is paid or duly
made available for payment. Reference herein to "this Note", "hereof",
"herein" and comparable terms shall include an Addendum hereto if an Addendum
is specified above.
The Company will pay interest on each Interest Payment Date
specified above, commencing on the first Interest Payment Date specified
above next succeeding the Original Issue Date specified above, and on the
Stated Maturity or any Redemption Date or Optional Repayment Date (as defined
below) (the date of each such Stated Maturity, Redemption Date and Optional
Repayment Date and the date on which principal or an installment of principal
is due and payable by declaration of acceleration pursuant to the Indenture
being referred to hereinafter as a "Maturity" with respect to principal
payable on such date); provided, however, that if the Original Issue Date is
between a Regular Record Date (as defined below) and the next succeeding
Interest Payment Date, interest payments will commence on the second Interest
Payment Date succeeding the Original Issue Date; and provided, further, that
if an Interest Payment Date (other than an Interest Payment Date at Maturity)
would fall on a day that is not a Business Day (as defined below), such
Interest Payment Date shall be postponed to the following day that is a
Business Day, except that in the case the Interest Rate Basis is LIBOR, as
indicated above, if such next Business Day falls in the next calendar month,
such Interest Payment Date shall be the next preceding day that is a Business
Day. Except as provided above, interest payments will be made on the
Interest Payment Dates shown above. Unless otherwise specified above, the
"Regular Record Date" shall be the date 15 calendar days (whether or not a
Business Day) prior to the applicable Interest Payment Date. Interest on
this Note will accrue from, and including the Original Issue Date specified
above, or the most recent date to which interest has been paid or duly
provided for, to, but excluding, the related Interest Payment Date or
Maturity, as the case may be, at the rates per annum determined from time to
time as specified herein, until the principal hereof has been paid or made
available for payment. If the Maturity falls on a day which is not a
Business Day as defined below, the payment due on such Maturity will be paid
on the next succeeding Business Day with the same force and effect as if made
-5-
<PAGE>
on such Maturity and no interest shall accrue with respect to such payment
for the period from and after such Maturity. The interest so payable and
punctually paid or duly provided for on any Interest Payment Date will as
provided in the Indenture be paid to the Person in whose name this Note (or
one or more Predecessor Securities) is registered at the close of business on
the Regular Record Date for such Interest Payment Date. Any such interest
which is payable, but not punctually paid or duly provided for on any
Interest Payment Date (herein called "Defaulted Interest"), shall forthwith
cease to be payable to the registered Holder on such Regular Record Date, and
may be paid to the Person in whose name this Note (or one or more Predecessor
Securities) is registered at the close of business on a Special Record Date
for the payment of such Defaulted Interest to be fixed by the Trustee, notice
whereof shall be given to the Holder of this Note not less than 10 days prior
to such Special Record Date, or may be paid at any time in any other lawful
manner, all as more fully provided in the Indenture.
The Notes are, and all other Securities issued under the Indenture
will be, unconditionally guaranteed as to payment of principal (and premium,
if any), interest, if any, and additional amounts, if any, by KeySpan
Corporation, a Delaware corporation (the "Guarantor").
Payment of the principal of (and premium, if any) and interest on
this Note will be made at the office or agency of the Company maintained by
the Company for such purpose in the Borough of Manhattan, The City of New
York, in such coin or currency of the United States of America as at the time
of payment is legal tender for payment of public and private debts.
Unless the certificate of authentication hereon has been executed
by or on behalf of The Chase Manhattan Bank, the Trustee with respect to the
Notes under the Indenture, or its successor thereunder, by the manual
signature of one of its authorized officers, this Note shall not be entitled
to any benefit under the Indenture or be valid or obligatory for any purpose.
This Note is one of a duly authorized issue of Securities
(hereinafter called the "Securities") of the Company designated as its
Medium-Term Notes, Series A (the "Notes"). The Securities are issued and to
be issued under an indenture (the "Indenture") dated as of December 1, 1999,
between the Company, the Guarantor and The Chase Manhattan Bank (herein
called the "Trustee", which term includes any successor Trustee under the
Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights thereunder
of the Company, the Guarantor, the Trustee and the Holders of the Notes and
the terms upon which the Notes are to be authenticated and delivered. The
terms of other Notes may vary with respect to interest rates or interest rate
formulas, issue dates, maturity, redemption, repayment, currency of payment
and otherwise as provided in the Indenture.
-6-
<PAGE>
The Notes are issuable only in registered form without coupons in
denominations of, unless otherwise specified above, $1,000 and integral
multiples thereof. As provided in the Indenture and subject to certain
limitations therein set forth, the Notes are exchangeable for a like
aggregate principal amount of Notes as requested by the Holder surrendering
the same. If (x) the Depository is at any time unwilling or unable to
continue as depository and a successor depository is not appointed by the
Company within 90 days, (y) the Company executes and delivers to the Trustee
a Company Order to the effect that this Note shall be exchangeable or (z) an
Event of Default has occurred and is continuing with respect to the Notes,
this Note shall be exchangeable for Notes in definitive form of like tenor
and in an equal aggregate principal amount, in authorized denominations.
Such definitive Notes shall be registered in such name or names as the
Depository shall instruct the Trustee. If definitive Notes are so delivered,
the Company may make such changes to the form of this Note as are necessary
or appropriate to allow for the issuance of such definitive Notes.
This Note is not subject to any sinking fund.
This Note may be subject to repayment at the option of the Holder
prior to its Stated Maturity on the Holder's Optional Repayment Date(s), if
any, indicated on the face hereof. If no Holder's Optional Repayment Dates
are set forth on the face hereof, this Note may not be so repaid at the
option of the Holder hereof prior to the Stated Maturity. On any Holder's
Optional Repayment Date, this Note shall be repayable in whole or in part in
an amount equal to $1,000 or integral multiples thereof (provided that any
remaining principal amount shall be an authorized denomination) at the option
of the Holder hereof at a repayment price equal to 100% of the principal
amount to be repaid, together with interest thereon payable to the date of
repayment. For this Note to be repaid in whole or in part at the option of
the Holder hereof, this Note must be received, with the form entitled "Option
to Elect Repayment" below duly completed, by the Trustee at its office at 450
West 33rd Street, 15th Floor, New York, New York 10001 or such address which
the Company shall from time to time notify the Holders of the Medium-Term
Notes (the "Corporate Trust Office"), not more than 60 nor less than 30 days
prior to a Holder's Optional Repayment Date. This Note must be received by
the Trustee by 5:00 P.M., New York City time, on the last day for giving such
notice. Exercise of such repayment option by the Holder hereof shall be
irrevocable. In the event of payment of this Note in part only, a new Note
for the unpaid portion hereof shall be issued in the name of the Holder
hereof upon the surrender hereof.
This Note may be redeemed at the option of the Company prior to its
Stated Maturity on any date on and after the Initial Redemption Date, if any,
specified on the face hereof (the "Redemption Date"). If no Initial
Redemption Date is set forth above, this Note may not be redeemed at the
option of the Company prior to the Stated Maturity. On and after the Initial
-7-
<PAGE>
Redemption Date, if any, this Note may be redeemed at any time in whole or
from time to time in part in increments of $1,000 or integral multiples
thereof (provided that any remaining principal amount shall be an authorized
denomination) at the option of the Company at the applicable Redemption Price
(as defined below) together with interest thereon payable to the Redemption
Date, on notice given not more than 60 nor less than 30 days prior to the
Redemption Date. In the event of redemption of this Note in part only, a new
Note for the unredeemed portion hereof shall be issued in the name of the
Holder hereof upon the surrender hereof.
If this Note is redeemable at the option of the Company prior to
its Stated Maturity, the "Redemption Price" shall initially be the Initial
Redemption Percentage, specified above, of the principal amount of this Note
to be redeemed and shall decline at each anniversary of the Initial
Redemption Date by the Annual Redemption Percentage Reduction, if any,
specified above, of the principal amount to be redeemed until the Redemption
Price is 100% of such principal amount.
The interest rate borne by this Note shall be determined as
follows:
I. If this Note is designated as a Regular Floating Rate Note
above, then, except as described below, this Note shall bear interest at
the rate determined by reference to the applicable Interest Rate Basis
or Bases shown above (1) plus or minus the applicable Spread, if any,
and/or (2) multiplied by the applicable Spread Multiplier, if any,
specified and applied in the manner described above; provided, however,
that the interest rate in effect for the period from the Original Issue
Date to the first Interest Reset Date shall be the Initial Interest
Rate. Commencing on the first Interest Reset Date, the rate at which
interest on this Note is payable shall be reset as of each Interest
Reset Date specified above.
2. If this Note is designated as a Floating Rate/Fixed Rate Note
above, then, except as described below, this Note shall bear interest at
the rate determined by reference to the applicable Interest Rate Basis
or Bases shown above (1) plus or minus the applicable Spread, if any,
and/or (2) multiplied by the applicable Spread Multiplier, if any,
specified and applied in the manner described above; provided, however,
that the interest rate in effect for the period from the Original Issue
Date to the first Interest Reset Date will be the Initial Interest Rate.
Commencing on the first Interest Reset Date, the rate at which interest
on this Note is payable shall be reset as of each Interest Reset Date
specified above; provided, however, that the interest rate in effect
commencing on, and including, the date on which interest begins to
accrue on a fixed rate basis to Maturity shall be the Fixed Interest
Rate, if the rate is specified above, or if no Fixed Interest Rate is
-8-
<PAGE>
specified, the interest rate in effect on the Floating Rate/Fixed Rate
Note on the day immediately preceding the date on which interest begins
to accrue on a fixed rate basis.
3. If this Note is designated as an Inverse Floating Rate Note
above, then, except as described below, this Note shall bear interest
equal to the Fixed Interest Rate specified above minus the rate
determined by reference to the applicable Interest Rate Basis or Bases
shown above (1) plus or minus the applicable Spread, if any, and/or (2)
multiplied by the applicable Spread Multiplier, if any, specified and
applied in the manner described above; provided, however, that unless
otherwise specified on the face hereof, the interest rate hereon shall
not be less than zero percent; provided, however, that the interest rate
in effect for the period from the Original Issue Date to the Initial
Interest Reset Date shall be the Initial Interest Rate. Commencing on
the first Interest Reset Date, the rate at which interest on this Note
is payable shall be reset as of each Interest Reset Date specified
above.
4. Notwithstanding the foregoing, if this Note is designated
above as having an Addendum attached or as having Other Provisions
apply, the Note shall bear interest in accordance with the terms
described in such Addendum or specified under Other Provisions.
Except as provided above, the interest rate in effect on each day
shall be (a) if such day is an Interest Reset Date, the interest rate
determined as of the Interest Determination Date (as defined below)
immediately preceding such Interest Reset Date or (b) if such day is not an
Interest Reset Date, the interest rate determined as of the Interest
Determination Date immediately preceding the immediately preceding Interest
Reset Date. Each Interest Rate Basis shall be determined in accordance with
the applicable provision below. If any Interest Reset Date (which term
includes the term first Interest Reset Date unless the context otherwise
requires) would otherwise be a day that is not a Business Day, that Interest
Reset Date shall be postponed to the next succeeding day that is a Business
Day, except that if an Interest Rate Basis specified on the face hereof is
LIBOR and the next Business Day falls in the next succeeding calendar month,
that Interest Reset Date shall be the immediately preceding Business Day. In
addition, if an Interest Rate Basis specified on the face hereof is the
Treasury Rate and the Interest Determination Date would otherwise fall on an
Interest Reset Date, then that Interest Reset Date shall be postponed to the
next succeeding Business Day.
Unless otherwise specified above, interest payable on this Note on
any Interest Payment Date shall be the amount of interest accrued from and
including the immediately preceding Interest Payment Date in respect of which
interest has been paid (or from and including the Original Issue Date
-9-
<PAGE>
specified above, if no interest has been paid), to but excluding the related
Interest Payment Date; provided, however, that the interest payments on
Maturity shall include interest accrued to but excluding such Maturity.
Unless otherwise specified above, accrued interest hereon shall be an amount
calculated by multiplying the face amount hereof by an accrued interest
factor. The accrued interest factor shall be computed by adding the interest
factor calculated for each day from the date of issue or from the last date
to which interest shall have been paid or duly provided for, to the date for
which accrued interest is being calculated. Unless otherwise specified
above, the interest factor for each such day shall be computed by dividing
the interest rate applicable to such day by 360, if the Day Count Convention
specified above is "Actual/360" for the period specified thereunder or by the
actual number of days in the year if the Day Count Convention specified above
is "Actual/Actual" for the period specified thereunder. In the case of Notes
for which the Interest Rate Basis is the CD Rate, the Commercial Paper Rate,
the Eleventh District Cost of Funds Rate, the Federal Funds Rate, LIBOR or
the Prime Rate, the interest factor for each day will be computed by dividing
the interest rate applicable to each day by 360. In the case of Notes for
which the Interest Rate Basis is the CMT Rate or the Treasury Rate, the
interest factor for each day will be computed by dividing the interest rate
applicable to each day by the actual number of days in the year. The
interest factor for Notes for which the interest rate is calculated with
reference to two or more Interest Rate Bases will be calculated in each
period in the same manner as if only one of the applicable Interest Rate
Bases applied.
Unless otherwise specified above, the "Interest Determination Date"
with respect to the CD Rate, the CMT Rate and the Commercial Paper Rate shall
be the second Business Day preceding each Interest Reset Date; the "Interest
Determination Date" with respect to the Federal Funds Rate and the Prime Rate
shall be the Business Day immediately preceding each Interest Reset Date; the
"Interest Determination Date" with respect to LIBOR shall be the second
London Business Day (as defined below) preceding each Interest Reset Date;
the "Interest Determination Date" with respect to the Eleventh District Cost
of Funds Rate shall be the last working day of the month immediately
preceding each Interest Reset Date on which the Federal Home Loan Bank of San
Francisco (the "FHLB of San Francisco") publishes the Index (as defined
below); and the "Interest Determination Date" with respect to the Treasury
Rate shall be the day in the week in which the related Interest Reset Date
falls on which day Treasury bills (as defined below) are normally auctioned.
Treasury bills are normally sold at auction on Monday of each week, unless
that day is a legal holiday, in which case the auction is normally held on
the following Tuesday, except that the auction may be held on the preceding
Friday; provided, however, that if an auction is held on the Friday of the
week preceding the related Interest Reset Date, the related Interest
Determination Date shall be such preceding Friday; and provided, further,
that if an auction shall fall on any Interest Reset Date, then the related
-10-
<PAGE>
Interest Reset Date shall instead be the first Business Day following such
auction. If the interest rate of this Note is determined with reference to
two or more Interest Rate Bases, the Interest Determination Date pertaining
to this Note shall be the latest Business Day which is at least two Business
Days prior to such Interest Reset Date on which each Interest Rate Basis
shall be determinable. Each Interest Rate Basis shall be determined and
compared on such date, and the applicable interest rate shall take effect on
the related Interest Reset Date.
Unless otherwise specified above, the "Calculation Date", if
applicable, pertaining to any Interest Determination Date shall be the
earlier of (i) the tenth calendar day after such Interest Determination Date
or, if such day is not a Business Day, the next succeeding Business Day, or
(ii) the Business Day preceding the applicable Interest Payment Date or date
of Maturity, as the case may be. All calculations on this Note shall be made
by the calculation agent specified above or such successor thereto as is duly
appointed by the Company.
All percentages resulting from any calculation on this Note will be
rounded to the nearest one hundred-thousandth of a percentage point, with
five one-millionths of a percentage point rounded upwards. For example,
9.876545% or .09876545 would be rounded to 9.87655% or .0987655. All dollar
amounts used in or resulting from such calculation will be rounded to the
nearest cent with one-half cent being rounded upward.
As used herein, "Business Day" means any day, other than a Saturday
or Sunday, that is neither a legal holiday nor a day on which commercial
banks are authorized or required by law, regulation or executive order to
close in The City of New York; provided, however, that, with respect to
non-United State dollar denominated Notes, such day is also not a day on
which commercial banks are authorized or required by law, regulation or
executive order to close in the Principal Financial Center (as hereinafter
defined) of the country issuing the Specified Currency or, if the Specified
Currency is EURO, the day is also a day on which the Trans-European Automated
Real-Time Gross Settlement Express Transfer (TARGET) System is open;
provided, further, that, with respect to Notes as to which LIBOR is an
applicable Interest Rate Basis, such day is also a London Business Day.
As used herein, "London Business Day" means a day on which
commercial banks are open for business, including dealings in the LIBOR
Currency (as hereinafter defined), in London.
As used herein, Principal Financial Center means, unless otherwise
specified in the applicable pricing supplement,
- the capital city of the country issuing the Specified Currency,
except that with respect to United States dollars, Australian
-11-
<PAGE>
dollars, Canadian dollars, Deutsche marks, Dutch guilders, South
African rand and Swiss francs, the "Principal Financial Center"
will be The City of New York, Sydney and Melbourne, Toronto,
Frankfurt, Amsterdam, Johannesburg and Zurich, respectively, or
- the capital city of the country to which the LIBOR Currency, as
defined below, relates, except that with respect to United States
dollars, Canadian dollars, Deutsche marks, Dutch guilders,
Portuguese escudos, South African rand and Swiss francs, the
"Principal Financial Center" will be The City of New York, Toronto,
Frankfurt, Amsterdam, London, Johannesburg and Zurich,
respectively.
Determination of CD Rate. If an Interest Rate Basis for this Note
is the CD Rate, as indicated above, the CD Rate shall be determined on the
applicable Interest Determination Date as:
(1) the rate on the applicable Interest Determination Date for
negotiable United States dollar certificates of deposit having
the Index Maturity specified above published in H.15(519)
under the heading "CDs (secondary market)", or
(2) if the rate referred to in clause (1) above is not so
published by 3:00 P.M., New York City time, on the related
Calculation Date, the rate on the applicable Interest
Determination Date for negotiable United States dollar
certificates of deposit of the Index Maturity specified above
as published in H.15 Daily Update, or other recognized
electronic source used for the purpose of displaying the
applicable rate, under the caption "CDs (secondary market)",
or
(3) if the rate referred to in clause (2) is not so published by
3:00 P.M., New York City time, on the related Calculation
Date, the rate on the applicable Interest Determination Date
calculated by the calculation agent as the arithmetic mean of
the secondary market offered rates as of 10:00 A.M., New York
City time, on the applicable Interest Determination Date, of
three leading non-bank dealers in negotiable United States
dollar certificates of deposit in The City of New York
selected by the calculation agent for negotiable United States
dollar certificates of deposit of major United States money
center banks for negotiable certificates of deposit with a
remaining maturity closest to the Index Maturity specified
above in an amount that is representative for a single
transaction in that market at that time, or
-12-
<PAGE>
(4) if the dealers selected by the calculation agent are not
quoting as mentioned in clause (3) above, the CD rate in
effect on the applicable Interest Determination Date.
"H.15(519)" means the weekly statistical release designated as
H.15(519), or any successor publication, published by the Board of Governors
of the Federal Reserve System.
"H.15 Daily Update" means the daily update of H.15(519), available
through the world-wide-web site of the Board of Governors of the Federal
Reserve System at http://www.bog.frb.fed.us/releases/h15/update, or any
successor site or publication.
Determination of CMT Rate. If an Interest Rate Basis for this
Note is the CMT Rate, as indicated above, the CMT Rate shall be determined as
of the applicable Interest Determination Date as:
(1) the rate displayed on the Designated CMT Telerate Page under
the caption "...Treasury Constant Maturities... Federal
Reserve Board Release H.15... Mondays Approximately 3:45
P.M.", under the column for the Designated CMT Maturity Index
for:
(a) if the Designated CMT Telerate Page is 7051, the rate on
the applicable Interest Determination Date, and
(b) if the Designated CMT Telerate Page is 7052, the weekly
or the monthly average, as specified above, for the week
or the month, as applicable, ended immediately preceding
the week or the month, as applicable, in which the
related Interest Determination Date falls, or
(2) if the rate referred to in clause (1) is no longer displayed
on the relevant page or is not so displayed by 3:00 P.M., New
York City time, on the related Calculation Date, the treasury
constant maturity rate for the Designated CMT Maturity Index
published in H.15(519), or
(3) if the rate referred to in clause (2) is no longer published
or is not published by 3:00 P.M., New York City time, on the
related Calculation Date, the treasury constant maturity rate
for the Designated CMT Maturity Index, or other United States
Treasury rate for the Designated CMT Maturity Index, for the
applicable Interest Determination Date with respect to the
applicable Interest Reset Date as may then be published by
either the Board of Governors of the Federal Reserve System or
the United States Department of the Treasury that the
-13-
<PAGE>
calculation agent determines to be comparable to the rate
formerly displayed on the Designated CMT Telerate Page and
published in H.15(519), or
(4) if the rate referred to in clause (3) applicable information
is not so published by 3:00 P.M., New York City time, on the
applicable Calculation Date, the rate on the applicable
Interest Determination Date calculated by the calculation
agent as a yield to maturity, based on the arithmetic mean of
the secondary market offered rates as of approximately 3:30
P.M., New York City time, on the applicable Interest
Determination Date reported, according to their written
records, by three leading primary United States government
securities dealers in The City of New York, which may include
the agent or its affiliates (each, a "Reference Dealer"),
selected by the calculation agent from five Reference Dealers
selected by the calculation agent after eliminating the
highest quotation, or, in the event of equality, one of the
highest, and the lowest quotation or, in the event of
equality, one of the lowest, for the most recently issued
direct noncallable fixed rate obligations of the United States
("Treasury Notes") with an original maturity of approximately
the Designated CMT Maturity Index and a remaining term to
maturity of not less than such Designated CMT Maturity Index
minus one year, or
(5) if the calculation agent is unable to obtain three applicable
Treasury Note quotations as referred to in clause (4), the
rate on the applicable Interest Determination Date calculated
by the calculation agent as a yield to maturity based on the
arithmetic mean of the secondary market offered rates as of
approximately 3:30 P.M., New York City time, on the applicable
Interest Determination Date of three Reference Dealers in The
City of New York selected by the calculation agent from five
Reference Dealers selected by the calculation agent after
eliminating the highest quotation or, in the event of
equality, one of the highest and the lowest quotation or, in
the event of equality, one of the lowest, for Treasury Notes
with an original maturity of the number of years that is the
next highest to the Designated CMT Maturity Index and a
remaining term to maturity closest to the Designated CMT
Maturity Index and in an amount of at least $100 million, or
(6) if three or four and not five Reference Dealers are quoting as
referred to in clause (5) above, the rate will be calculated
by the calculation agent as the arithmetic mean of the offered
-14-
<PAGE>
rates obtained and neither the highest nor the lowest of
quotes will be eliminated, or
(7) if fewer than three Reference Dealers selected by the
calculation agent are quoting as mentioned in clause (6), the
rate in effect on the applicable Interest Determination Date.
If two Treasury Notes with an original maturity as described
in clause (5) have remaining terms to maturity equally close to the
Designated CMT Maturity Index, the calculation agent will obtain
from five Reference Dealers quotations for the Treasury Notes with
the shorter remaining term to maturity.
"Designated CMT Telerate Page" means the display on Bridge
Telerate, Inc. or any successor service on the page specified above or any
other page as may replace the specified page on that service for the purpose
of displaying Treasury Constant Maturities as reported in H.15(519), or, if
no page is specified above, page 7052.
"Designated CMT Maturity Index" means the original period to
maturity of the U.S. Treasury securities, either 1, 2, 3, 5, 7, 10, 20 or 30
years, specified above with respect to which the CMT Rate will be calculated
or, if no maturity is specified above, 2 years.
Determination of Commercial Paper Rate. If an Interest Rate Basis
for this Note is the Commercial Paper Rate, as indicated above, the
Commercial Paper Rate shall be determined on the applicable Interest
Determination Date as:
(1) the Money Market Yield on the applicable Interest
Determination Date of the rate for commercial paper having the
Index Maturity specified above published in H.15(519) under
the caption "Commercial Paper-Nonfinancial", or
(2) if the rate described in clause (1) is not so published by
3:00 P.M., New York City time, on the related Calculation
Date, the rate on the applicable Interest Determination Date
for commercial paper having the Index Maturity specified above
published in H.15 Daily Update, or other recognized electronic
source used for the purpose of displaying the applicable rate,
under the caption "Commercial Paper-Nonfinancial", or
(3) if the rate referred to in clause (2) is not so published by
3:00 P.M., New York City time, on the related Calculation
Date, the rate on the applicable Interest Determination Date
calculated by the calculation agent as the Money Market Yield
of the arithmetic mean of the offered rates at approximately
-15-
<PAGE>
11:00 A.M., New York City time, on the applicable Interest
Determination Date of three leading dealers of United States
dollar commercial paper in The City of New York, which may
include the calculation agent and its affiliates, selected by
the calculation agent for commercial paper having the Index
Maturity specified above placed for industrial issuers whose
bond rating is "Aa", or the equivalent, from a nationally
recognized statistical rating organization, or
(4) if the dealers selected by the calculation agent are not
quoting as mentioned in clause (3), the rate in effect on the
applicable Interest Determination Date.
"Money Market Yield" means a yield calculated in accordance with
the following formula and expressed as a percentage:
Money Market Yield = D x 360 x 100
------------------
360 - ( D x M )
where "D" refers to the applicable per annum rate for commercial paper quoted
on a bank discount basis and expressed as a decimal, and "M" refers to the
actual number of days in the interest period for which interest is being
calculated.
Eleventh District Cost of Funds Rate. If an Interest Rate Basis
for this Note is the Eleventh District Cost of Funds Rate, as indicated
above, the Eleventh District Cost of Funds Rate shall be determined on the
applicable Interest Determination Date and shall be:
(1) the rate equal to the monthly weighted average cost of funds
for the calendar month immediately preceding the month in
which the applicable Interest Determination Date falls as set
forth under the caption "11th District" on the display on
Bridge Telerate, Inc. or any successor service on page 7058
or any other page as may replace the specified page on that
service ("Telerate Page 7058") as of 11:00 A.M., San Francisco
time, on the applicable Interest Determination Date, or
(2) if the rate referred to in clause (1) does not appear on
Telerate Page 7058 on the related Interest Determination Date,
the monthly weighted average cost of funds paid by member
institutions of the Eleventh Federal Home Loan Bank District
that was most recently announced (the "Index") by the Federal
Home Loan Bank of San Francisco as the cost of funds for the
-16-
<PAGE>
calendar month immediately preceding the applicable Interest
Determination Date, or
(3) if the Federal Home Loan Bank of San Francisco fails to
announce the Index on or before the applicable Interest
Determination Date for the calendar month immediately
preceding the applicable Interest Determination Date, the rate
in effect on the applicable Interest Determination Date.
Determination of Federal Funds Rate. If an Interest Rate Basis
for this Note is the Federal Funds Rate, as indicated above, the Federal
Funds Rate shall be determined on the applicable Interest Determination Date
and shall be:
(1) the rate on the applicable Interest Determination Date for
United States dollar federal funds as published in H.15(519)
under the heading "Federal Funds (Effective)", as displayed on
Bridge Telerate, Inc. or any successor service on page 120 or
any other page as may replace the applicable page on that
service ("Telerate Page 120"), or
(2) if the rate referred to in clause (1) does not appear on
Telerate Page 120 or is not so published by 3:00 P.M., New
York City time, on the related Calculation Date, the rate on
the applicable Interest Determination Date for United States
dollar federal funds published in H.15 Daily Update, or other
recognized electronic source used for the purpose of
displaying the applicable rate, under the caption "Federal
Funds/Effective Rate", or
(3) if the rate referred to in clause (2) is not so published by
3:00 P.M., New York City time, on the related Calculation
Date, the rate on the applicable Interest Determination Date
calculated by the calculation agent as the arithmetic mean of
the rates for the last transaction in overnight United States
dollar federal funds arranged by three leading brokers of
United States dollar federal funds transactions in The City of
New York, which may include the agent or its affiliates,
selected by the calculation agent before 9:00 A.M., New York
City time, on the applicable Interest Determination Date, or
(4) if the brokers selected by the calculation agent are not
quoting as mentioned in clause (3), the rate in effect on the
applicable Interest Determination Date.
-17-
<PAGE>
Determination of LIBOR. If an Interest Rate Basis for this Note is
LIBOR, as indicated above, LIBOR shall be determined by the calculation agent
in accordance with the following provisions:
(1) if "LIBOR Telerate" is specified above or if neither "LIBOR
Reuters" nor "LIBOR Telerate" is specified above as the method
for calculating LIBOR, LIBOR will be the rate for deposits in
the LIBOR Currency, as defined below, having the Index
Maturity specified above, commencing on the second London
Business Day immediately following that Interest Determination
Date that appears on the Designated LIBOR Page as of 11:00
A.M., London time, on the applicable Interest Determination
Date, or
(2) if "LIBOR Reuters" is specified above, LIBOR will be the
arithmetic mean of the offered rates for deposits in the LIBOR
Currency having the Index Maturity specified above, commencing
on the second London Business Day immediately following that
Interest Determination Date, that appear, on the Designated
LIBOR Page specified above as of 11:00 A.M., London time, on
the applicable Interest Determination Date. If the Designated
LIBOR Page by its terms provides only for a single rate, then
the single rate will be used, or
(3) with respect to a LIBOR Interest Determination Date on which
fewer than two offered rates appear, or no rate appears, as
the case may be, on the designated LIBOR Page as specified in
clauses (1) and (2) (except a Designated LIBOR Page which by
its terms provides only for a single rate), the rate
calculated by the calculation agent as the arithmetic mean of
at least two quotations obtained by the calculation agent
after requesting the principal London offices of each of four
major reference banks, which may include affiliates of the
agent, in the London interbank market to provide the
calculation agent with its offered quotation for deposits in
the LIBOR Currency for the period of the Index Maturity
specified above, commencing on the second London Business Day
immediately following the applicable Interest Determination
Date, to prime banks in the London interbank market at
approximately 11:00 A.M., London time, on the applicable
Interest Determination Date and in a principal amount that is
representative for a single transaction in the applicable
LIBOR Currency in that market at that time, or
(4) if fewer than two quotations referred to in clause (3) are so
provided, the rate on the applicable Interest Determination
Date calculated by the calculation agent as the arithmetic
-18-
<PAGE>
mean of the rates quoted at approximately 11:00 A.M., in the
applicable Principal Financial Center(s), on the applicable
Interest Determination Date by three major banks, which may
include affiliates of the calculation agent, in the applicable
Principal Financial Center selected by the calculation agent
for loans in the LIBOR Currency to leading European banks,
having the Index Maturity specified designated above and in a
principal amount that is representative for a single
transaction in the applicable LIBOR Currency in that market at
that time, or
(5) if the banks so selected by the calculation agent are not
quoting as mentioned in clause (4), the rate in effect on the
applicable Interest Determination Date.
"LIBOR Currency" means the currency specified above as to which
LIBOR will be calculated or, if no currency is specified above, United States
dollars.
"Designated LIBOR Page" means either:
- if "LIBOR Telerate" is designated above or neither "LIBOR
Reuters" nor "LIBOR Telerate" is specified above as the method
for calculating LIBOR, the display on Bridge Telerate, Inc.
or any successor service on the page specified in such pricing
supplement or any page as may replace the specified page on
that service for the purpose of displaying the London
interbank rates of major banks for the applicable LIBOR
Currency, or
- if "LIBOR Reuters" is specified above, the display on the
Reuter Monitor Money Rates Service or any successor service on
the page specified above or any other page as may replace the
specified page on that service for the purpose of displaying
the London interbank rates of major banks for the applicable
LIBOR Currency.
Determination of Prime Rate. If an Interest Rate Basis for this
Note is the Prime Rate, as indicated above, the Prime Rate shall be
determined on the applicable Interest Determination Date and shall be:
(1) the rate on the applicable Interest Determination Date as
published in H.15(519) under the heading "Bank Prime Loan", or
(2) if the rate referred to in clause (1) is not so published by
3:00 P.M., New York City time, on the related Calculation
Date, the rate on the applicable Interest Determination Date
-19-
<PAGE>
published in H.15 Daily Update, or such other recognized
electronic source used for the purpose of displaying the
applicable rate under the caption "Bank Prime Loan", or
(3) if the rate referred to in clause (2) is not so published by
3:00 P.M., New York City time, on the related Calculation
Date, the rate calculated by the calculation agent as the
arithmetic mean of the rates of interest publicly announced by
at least four banks that appear on the Reuters Screen US PRIME
1 Page as the particular bank's prime rate or base lending
rate as of 11:00 A.M., New York City time, on the applicable
Interest Determination Date, or
(4) if fewer than four rates described in clause (2) by 3:00 P.M.,
New York City time, on the related Calculation Date as shown
on Reuters Screen US PRIME 1, the rate on the applicable
Interest Determination Date calculated by the calculation
agent as the arithmetic mean of the prime rates or base
lending rates quoted on the basis of the actual number of days
in the year divided by a 360-day year as of the close of
business on the applicable Interest Determination Date by
three major banks, which may include affiliates of the agent,
in The City of New York selected by the calculation agent, or
(5) if the banks selected by the calculation agent are not quoting
as mentioned in clause (4), the rate in effect on the
applicable Interest Determination Date.
"Reuters Screen US PRIME 1 Page" means the display on the Reuter
Monitor Money Rates Service or any successor service on the "US PRIME 1" Page
or other page as may replace the US PRIME 1 Page on such service for the
purpose of displaying prime rates or base lending rates of major United
States banks.
Determination of Treasury Rate. If an Interest Rate Basis for
this Note is the Treasury Rate, as specified above, the Treasury Rate shall
be determined on the applicable Interest Determination Date and shall be:
(1) the rate from the auction held on the applicable Interest
Determination Date (the "Auction") of direct obligations of
the United States ("Treasury Bills") having the Index Maturity
specified above under the caption "INVESTMENT RATE" on the
display on Bridge Telerate, Inc. or any successor service on
page 56 or any other page as may replace page 56 on that
service ("Telerate Page 56") or page 57 or any other page as
may replace page 57 on that service ("Telerate Page 57"), or
-20-
<PAGE>
(2) if the rate described in clause (1) is not so published by
3:00 P.M., New York City time, on the related Calculation
Date, the Bond Equivalent Yield of the rate for the applicable
Treasury Bills as published in H.15 Daily Update, or other
recognized electronic source used for the purpose of
displaying the applicable rate, under the caption "U.S.
Government Securities/Treasury Bills/Auction High", or
(3) if the rate described in clause (2) is not so published by
3:00 P.M., New York City time, on the related Calculation
Date, the Bond Equivalent Yield of the auction rate of the
applicable Treasury Bills announced by the United States
Department of the Treasury, or
(4) if the rate referred to in clause (3) is not announced by the
United States Department of the Treasury, or if the Auction is
not held, the Bond Equivalent Yield of the rate on the
applicable Interest Determination Date of Treasury Bills
having the Index Maturity specified above published in
H.15(519) under the caption "U.S. Government
Securities/Treasury Bills/Secondary Market", or
(5) if the rate referred to in clause (4) is not so published by
3:00 P.M., New York City time, on the related Calculation
Date, the rate on the applicable Interest Determination Date
of the applicable Treasury Bills as published in H.15 Daily
Update, or other recognized electronic source used for the
purpose of displaying the applicable rate, under the caption
"U.S. Government Securities/Treasury Bills/Secondary Market",
or
(6) if the rate referred to in clause (5) is not so published by
3:00 P.M., New York City time, on the related Calculation
Date, the rate on the applicable Interest Determination Date
calculated by the calculation agent as the Bond Equivalent
Yield of the arithmetic mean of the secondary market bid
rates, as of approximately 3:30 P.M., New York City time, on
the applicable Interest Determination Date, of three primary
United States government securities dealers, which may include
the agent or its affiliates, selected by the calculation
agent, for the issue of Treasury Bills with a remaining
maturity closest to the Index Maturity specified above, or
(7) if the dealers selected by the calculation agent are not
quoting as mentioned in clause (6), the rate in effect on the
applicable Interest Determination Date.
-21-
<PAGE>
"Bond Equivalent Yield" means a yield calculated in accordance with
the following formula and expressed as a percentage:
Bond Equivalent Yield = D x N x 100
-----------------
360 - ( D x M )
where "D" refers to the applicable per annum rate for Treasury Bills quoted
on a bank discount basis, "N" refers to 365 or 366, as the case may be, and
"M" refers to the actual number of days in the interest period for which
interest is being calculated.
Any provisions contained herein with respect to the determination
of one or more Interest Rate Bases, the specification of one or more Interest
Rate Bases, calculation of the Interest Rate applicable to this Note, its
payment dates the stated maturity date, any redemption or repayment
provisions, or any other matter relating hereto may be modified by the terms
as specified above under "Other Provisions" or in an Addendum relating hereto
if so specified above.
Notwithstanding the foregoing, the interest rate hereon shall not
be greater than the Maximum Interest Rate, if any, or less than the Minimum
Interest Rate, if any, specified above. The calculation agent shall
calculate the interest rate hereon in accordance with the foregoing on or
before each Calculation Date. The Company hereby covenants for the benefit
of the Holder hereof, to the extent permitted by applicable law, not to claim
voluntarily the benefits of any laws concerning usurious rates of interest
against such Holder.
Unless stated otherwise above, Merrill Lynch, Pierce, Fenner &
Smith Incorporated will be the calculation agent. At the request of the
Holder hereof, the calculation agent shall provide to the Holder hereof the
interest rate hereon then in effect and, if determined, the interest rate
which shall become effective as of the next Interest Reset Date with respect
to this Note.
If an Event of Default (as defined in the Indenture) with respect
to the Notes of this series shall occur and be continuing, the principal of
all of the Notes may be declared due and payable in the manner and with the
effect provided in the Indenture. If the principal of any Original Issue
Discount Note is declared to be due and payable immediately, the amount of
principal due and payable with respect to such Note shall be limited to the
amount equal to (i) the sum of the aggregate principal amount of such Note
multiplied by the price (expressed as a percentage of the aggregate principal
amount) at which such Note will be issued (the "Issue Price") plus (ii) the
original issue discount accrued from the date of issue to the date of
declaration, which accrual shall be calculated using the "interest method"
-22-
<PAGE>
computed in accordance with generally accepted accounting principles in
effect on the date of declaration. An "Original Issue Discount Note" means
(i) a Note, including any zero-coupon Note, that has a stated redemption
price at maturity that exceeds the initial offering price to the public at
which a substantial amount of an offering is sold by at least 0.25% of its
principal amount multiplied by the number of full years from the Original
Issue Date to the Stated Maturity for such Note and which is designated as an
Original Issue Discount Note in the terms of such Note pursuant to the
Indenture, and (ii) any other Note designated by the Company as issued with
original issue discount for United States federal income tax purposes.
The Indenture permits, with certain exceptions as therein provided,
the amendment or modification thereof at any time by the Company, the
Guarantor and the Trustee with the consent of the Holders of more than 50% in
principal amount of the Securities at the time outstanding of each series
issued under the Indenture to be affected thereby. The Indenture also
contains provisions permitting the Holders of more than 50% in principal
amount of the Securities of each series at the time outstanding, on behalf of
the Holders of all Securities of that series, to waive compliance by the
Company and the Guarantor with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences with respect
to such series. Any such consent or waiver by the Holder of this Note shall
be conclusive and binding upon such Holder and upon all future Holders of
this Note and of any Note issued upon the registration of transfer hereof or
in exchange herefor or in lieu hereof, whether or not notation of such
consent or waiver is made upon this Note.
No reference herein to the Indenture and no provision of this Note
or of the Indenture shall alter or impair the obligation of the Company,
which is absolute and unconditional, to pay the principal of (and premium, if
any) and interest on this Note at the time, place and rate, and in the coin
or currency, herein and in the Indenture prescribed.
As provided in the Indenture and subject to certain limitations set
forth therein and on the face hereof, the transfer of this Note may be
registered on the Security Register of the Company, upon surrender of this
Note for registration of transfer at the office or agency of the Company in
the Borough of Manhattan, The City of New York, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company duly executed by, the Holder hereof or by his attorney duly
authorized in writing, and thereupon one or more new Notes of authorized
denominations and for the same aggregate principal amount, and having
endorsed thereon a Guarantee duly executed by the Guarantor, will be issued
to the designated transferee or transferees.
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum sufficient
-23-
<PAGE>
to cover any tax or other governmental charge payable in connection
therewith.
Prior to due presentment of this Note for registration of transfer,
the Company, the Guarantor, the Trustee and any agent of the Company or the
Trustee may treat the Person in whose name this Note is registered as the
owner hereof for all purposes, whether or not this Note be overdue, and
neither the Company, the Trustee nor any such agent shall be affected by
notice to the contrary.
Certain of the Company's and the Guarantor's obligations under the
Indenture with respect to Notes of any series may be terminated if the
Company or the Guarantor irrevocably deposits with the Trustee money or
Government Obligations sufficient to pay and discharge the entire
indebtedness on all Notes of such series, as provided in the Indenture.
The Indenture and the Notes shall be governed by and construed in
accordance with the laws of the State of New York.
All terms used in this Note which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
-24-
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be
duly executed, manually or in facsimile, and an imprint or facsimile of its
corporate seal to be imprinted hereon.
Dated: ____________
KEYSPAN GAS EAST CORPORATION
By:___________________________________
[Name and Title]
[FACSIMILE OF SEAL]
Attest:
By: ___________________________
[Name and Title]
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the
series designated therein referred to
in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK,
as Trustee
By: __________________________
Authorized Officer
-25-
<PAGE>
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) and instruct(s) the
Company to repay this Note (or portion hereof specified below) pursuant to
its terms at a price equal to the principal amount hereof together with
interest to the repayment date, to the undersigned, at
- ---------------------------------------------------------------------------
(Please print or typewrite name and address of the undersigned)
For this Note to be repaid, the Trustee must receive at its
Corporate Trust Office, or at such other place or places of which the Company
shall from time to time notify the Holder of this Note, not more than 60 nor
less than 30 days prior to an Optional Repayment Date, if any, shown on the
face of this Note, this Note with this "Option to Elect Repayment" form duly
completed. This Note must be received by the Trustee by 5:00 P.M., New York
City time, on the last day for giving such notice.
If less than the entire principal amount of this Note is to be
repaid, specify the portion hereof (which shall be in an amount equal to
$1,000 or an integral multiple thereof, provided that any remaining principal
amount shall be an authorized denomination) which the Holder elects to have
repaid and specify the denomination or denominations (which shall be in an
amount equal to an authorized denomination) of the Notes to be issued to the
Holder for the portion of this Note not being repaid (in the absence of any
such specification, one such Note will be issued for the portion not being
repaid).
$____________________ ____________________________________________________
NOTICE: The signature on this Option to Elect Date
Repayment must correspond with the name as written
upon the face of this Note in every particular,
without alteration or enlargement or any change
whatever.
Date _________________
-26-
<PAGE>
ASSIGNMENT/TRANSFER FORM
FOR VALUE RECEIVED the undersigned registered Holder hereby
sell(s), assign(s) and transfer(s) unto (insert Taxpayer Identification No.)
____________________________________________________________________________
____________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
___________________________________________________________________________
the within Note and all rights thereunder, hereby irrevocably constituting
and appointing _______________________________________ attorney to transfer
said Note on the books of the Company with full power of substitution in the
premises.
Date:________________ _________________________________________________
NOTICE: The signature of the registered Holder
to this assignment must correspond with the name as
written upon the face of the within instrument in
every particular, without alteration or enlargement
or any change whatsoever.
-27-
<PAGE>
GUARANTEE
FOR VALUE RECEIVED, KEYSPAN CORPORATION, a New York corporation
(the "Guarantor"), hereby fully and unconditionally guarantees to each Holder
of a Note authenticated and delivered by the Trustee, and to the Trustee on
behalf of each such Holder, the due and punctual payment of the principal of
(and premium, if any) and interest, if any, on each such Note, the due and
punctual payment of any sinking fund payments provided for pursuant to the
terms of such Note and the payment of any additional amounts when and as the
same shall become due and payable, whether at the Stated Maturity, by
declaration of acceleration, call for redemption or otherwise, in accordance
with the terms of such Note and of the Indenture, dated as of December 1,
1999 (the "Indenture") by and among Keyspan Gas East Corporation (the
"Issuer" or the "Company"), the Guarantor and The Chase Manhattan Bank, as
Trustee (the "Trustee"). In case of the failure of the Company punctually to
make any such payment of principal (or premium, if any) or interest, if any,
or sinking fund payment or payment of additional amounts, the Guarantor
hereby agrees to cause any such payment to be made punctually when and as the
same shall become due and payable, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise, and as if such
payment were made by the Company.
The Guarantor hereby agrees that its obligations hereunder shall be
unconditional, irrespective of the validity, regularity or enforceability of
such Note or the Indenture, the absence of any action to enforce the same,
any waiver or consent by the Holder of such Note or by the Trustee with
respect to any provisions thereof or of the Indenture, the obtaining of any
judgment against the Company or any action to enforce the same or any other
circumstances which might otherwise constitute a legal or equitable discharge
or defense of a guarantor. The Guarantor hereby waives the benefits of
diligence, presentment, demand of payment, filing of claims with a court in
the event of insolvency or bankruptcy of the Company, any right to require a
proceeding first against the Company, protest or notice with respect to such
Note or the indebtedness evidenced thereby or with respect to any sinking
fund payment required pursuant to the terms of such Note and all demands
whatsoever, and covenants that this Guarantee will not be discharged except
by complete performance of the obligations contained in the Notes and in this
Guarantee. This Guarantee is a guarantee of payment and not collection. If
the Trustee or the Holder of any Note is required by any court or otherwise
to return to the Company or the Guarantor, or any custodian, receiver,
liquidator, trustee, sequestrator or other similar official acting in
relation to the Company or the Guarantor, any amount paid to the Trustee or
such Holder in respect of a Note, this Guarantee, to the extent theretofore
discharged, shall be reinstated in full force and effect. The Guarantor
further agrees, to the fullest extent that it lawfully may do so, that, as
between the Guarantor on the one hand, and the Holders and the Trustee, on
the other hand, the maturity of the obligations guaranteed hereby may be
-28-
<PAGE>
accelerated as provided in Article V of the Indenture for the purposes of
this Guarantee, notwithstanding any stay, injunction or other prohibition
extant under any applicable bankruptcy law preventing such acceleration in
respect of the obligations guaranteed hereby.
The Guarantor shall be subrogated to all rights of the Holders of
the Notes of a particular series against the Company in respect of any amount
paid by the Guarantor on account of such Note pursuant to the provisions of
this Guarantee or the Indenture; provided, however, that the Guarantor shall
not be entitled to enforce or to receive any payments arising out of, or
based upon, such right of subrogation until the principal of (and premium, if
any) and interest, if any, on all Notes of such series issued hereunder shall
have been paid in full.
The Guarantor hereby certifies and warrants that all acts,
conditions and things required to be done and performed and to have happened
prior to the creation and issuance of this Guarantee and to constitute the
same as the legal, valid and binding obligation of the Guarantor enforceable
in accordance with its terms, have been done and performed and have happened
in due and strict compliance with applicable laws.
The delivery of any Note by the Trustee, after the authentication
thereof, shall constitute due delivery of this Guarantee endorsed thereon on
behalf of the Guarantor. The Guarantor hereby agrees that this Guarantee
shall remain in full force and effect notwithstanding any failure to endorse
on each Note a notation of this Guarantee.
This Guarantee shall be governed by and construed in accordance
with the laws of the State of New York.
All terms used in this Guarantee which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
IN WITNESS WHEREOF, KEYSPAN CORPORATION has caused this Guarantee
to be duly executed in its corporate name by the facsimile signature of one
of its officers thereunto duly authorized and has caused a facsimile of its
corporate seal to be affixed hereunto or imprinted or otherwise reproduced
hereon.
Dated as of: , 2000
KEYSPAN CORPORATION
By:_________________________
[Name and Title]
[FACSIMILE OF SEAL]
-29-
Registration Statement on Form S-3
Exhibit 5
January 19, 2000
KeySpan Corporation
d/b/a KeySpan Energy
One MetroTech Center
Brooklyn, NY 11201
KeySpan Gas East Corporation
d/b/a Brooklyn Union of Long Island
175 East Old Country Road
Hicksville, NY 11801
Ladies and Gentlemen:
I am Senior Vice President and Deputy General Counsel of KeySpan
Corporation d/b/a KeySpan Energy, a New York corporation ("KeySpan") and
counsel to KeySpan Gas East Corporation d/b/a Brooklyn Union of Long Island,
a New York Corporation and a direct, wholly-owned subsidiary of KeySpan
("BULI," and collectively with KeySpan the "Registrants"). I have acted in
such capacities in connection with the Registration Statement on Form S-3, as
amended (the "Registration Statement"), filed on December 2, 1999, by KeySpan
and BULI with the Securities and Exchange Commission (the "Commission") under
the Securities Act of 1933, as amended (the "Act") relating to the issuance,
as described in the Registration Statement, of (1) up to $600,000,000 of
BULI's debt securities (the "Debt Securities"), and (2) the guarantees of
KeySpan which will be issued in connection with the Debt Securities (the
"Guarantees").
Each series of Debt Securities will be issued under, and the Guarantee
of KeySpan applicable thereto will be set forth in, an Indenture (the
"Indenture") dated as of December 1, 1999, by and among KeySpan, as
guarantor, BULI, as issuer, and The Chase Manhattan Bank, as trustee (the
"Trustee"). A copy of such Indenture has been filed as an Exhibit to the
Registration Statement.
As counsel to the Registrants, I have participated in and am familiar
with the corporate proceedings of the Registrants relating to the preparation
of the Registration Statement, and any amendments thereto, providing for the
registration of the Debt Securities, and the Guarantee applicable thereto,
for offering and sale on a delayed or continuous basis under the Act and Rule
415 promulgated thereunder.
<PAGE>
In connection with the foregoing, either I or individuals under my
supervision have researched such questions of law and examined the originals
or copies of the Registration Statement and the Indenture and such corporate
records, agreements or other instruments of the Registrants and other
instruments and documents as I have deemed relevant and necessary in
connection with the opinions hereinafter expressed. As to various questions
of fact material to such opinions, I have, where relevant facts were not
independently established by me, relied upon statements of other officers of
the Registrants, whom I believe to be responsible.
In rendering the opinions set forth below, I have assumed the
genuineness of all signatures, the legal capacity of natural persons, the
authenticity of all documents submitted to me as originals, the conformity to
original documents of all documents submitted to me as duplicates or
certified or conformed copies, and the authenticity of the originals of such
latter documents. I also have assumed that at the time of execution,
authentication, issuance and delivery of the Debt Securities and the
Guarantees, the Indenture will have been duly executed and delivered by BULI
and KeySpan and will be the valid and legally binding obligation of the
Trustee.
Based upon the foregoing, and subject to the qualifications and
limitations stated herein, I am of the opinion that:
1. With respect to the Debt Securities to be issued under the
Indenture, assuming (a) the taking of all necessary corporate action to
approve the issuance and terms of the Debt Securities, the terms of the
offering thereof and related matters by the Board of Directors of BULI,
a duly constituted and acting committee of such Board or duly authorized
officers of BULI (such Board of Directors, committee or authorized
officers being hereinafter referred to as the "BULI Board") and (b) the
due execution, authentication, issuance and delivery of the Debt
Securities, upon payment of the consideration therefor provided for in
the applicable definitive purchase, underwriting or similar agreement
approved by the BULI Board and otherwise in accordance with the
provisions of the Indenture and such agreement, the Debt Securities will
constitute valid and legally binding obligations of BULI enforceable
against BULI in accordance with their terms, except as may be limited by
equitable principles which may limit the availability of certain
equitable remedies (such as specific performance) in certain instances,
and applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or similar laws related to or affecting
creditors' rights generally.
2. With respect to the Guarantees, assuming (a) the taking of all
necessary corporate action to approve the issuance and terms of the
Guarantees and related matters by the Board of Directors of KeySpan, a
-2-
<PAGE>
duly constituted and acting committee of such Board or duly authorized
officers of KeySpan (such Board of Directors, committee or authorized
officers being hereinafter referred to as the "KeySpan Board"), (b) the
due execution, authentication, issuance and delivery of the Debt
Securities upon payment of the consideration therefor provided for in
the applicable definitive purchase, underwriting or similarly agreement
approved by the BULI Board and otherwise in accordance with the
provisions of the Indenture and such agreement and (c) the due issuance
of the Guarantees, the Guarantees will constitute valid and legally
binding obligations of KeySpan enforceable against KeySpan in accordance
with their terms, except as may be limited by equitable principles which
may limit the availability of certain equitable securities (such as
specific performance) in certain instances and applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium or similar
laws related to or affecting creditors' rights generally.
The opinions expressed above are subject to the qualification that I am
a member of the Bar of the State of New York and such opinions are limited to
the laws of the State of New York, the laws of the United States of America
and, to the extent relevant to the opinion expressed above, the Business
Corporation Law of the State of New York (and the Transportation Corporations
Law of the State of New York).
I hereby consent to the reference to me under the caption "Legal
Opinions" in the Prospectus included in the Registration Statement and to the
filing of this opinion as Exhibit 5(a) to the Registration Statement. The
foregoing, however, shall not constitute an admission by me that I am an
expert as provided for in Section 7 and 11 of the Act.
Very truly yours,
-3-
Exhibit 23-a
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement (No. 333-92003) of our report dated
February 12, 1999 included in KeySpan Corporation's form 10-K for the nine
months ended December 31, 1998.
/s/ Arthur Andersen
_________________________
ARTHUR ANDERSEN LLP
January 19, 2000
New York, New York
Exhibit 23-b
Consent of Independent Auditors
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (No. 333-92003) on Form S-3, as amended, and the related
Prospectus of KeySpan Corporation and KeySpan Gas East Corporation for the
registration of $600,000,000 of debt securities and to the incorporation by
reference therein of our report dated May 22, 1998, with respect to the
financial statements and schedule of Long Island Lighting Company included in
the Annual Report (Form 10-K), as amended, of KeySpan Corporation (formerly
known as MarketSpan Corporation) for the transition period from April 1, 1998
to December 31, 1998, filed with the Securities and Exchange Commission.
/S/ ERNST & YOUNG LLP
January 18, 2000
Melville, New York
Registration Statement on Form S-3
Exhibit 24-a
KeySpan Gas East Corporation
Power of Attorney
WHEREAS, KeySpan Gas East Corporation (the "Company"), a New York
Corporation, intends to file with the Securities and Exchange Commission
under the Securities Exchange Act of 1933, as amended, a Registration
Statement on Form S-3, as prescribed by said Commission pursuant to said Act
and the rules and regulations promulgated thereunder, to issue debt
securities.
NOW, THEREFORE, in my capacity either as a director and/or officer of
the Company, I do hereby appoint PAUL R. NICK and NORMA Y. RODRIGUEZ, and
each of them severally, as my attorneys-in-fact with power to execute in my
name and place, and in my capacity as a director and/or officer of the
Company, said registration statement, any amendment to said registration
statement and any other documents required in connection therewith, and to
file the same with the Securities and Exchange Commission.
IN WITNESS WHEREOF, I have executed this power of attorney this 30th day
of November, 1999.
/s/ Robert J. Fani
---------------------------------------------
ROBERT J. FANI, DIRECTOR, PRESIDENT AND CHIEF
EXECUTIVE OFFICER
<PAGE>
Registration Statement on Form S-3
Exhibit 24-a
KeySpan Gas East Corporation
Power of Attorney
WHEREAS, KeySpan Gas East Corporation (the "Company"), a New York
Corporation, intends to file with the Securities and Exchange Commission
under the Securities Exchange Act of 1933, as amended, a Registration
Statement on Form S-3, as prescribed by said Commission pursuant to said Act
and the rules and regulations promulgated thereunder, to issue debt
securities.
NOW, THEREFORE, in my capacity either as a director and/or officer of
the Company, I do hereby appoint PAUL R. NICK and NORMA Y. RODRIGUEZ, and
each of them severally, as my attorneys-in-fact with power to execute in my
name and place, and in my capacity as a director and/or officer of the
Company, said registration statement, any amendment to said registration
statement and any other documents required in connection therewith, and to
file the same with the Securities and Exchange Commission.
IN WITNESS WHEREOF, I have executed this power of attorney this 30th day
of November, 1999.
/s/ George B. Jongeling
-----------------------------
GEORGE B. JONGELING, DIRECTOR
AND VICE PRESIDENT
-2-
Registration Statement on Form S-3
Exhibit 24-a
KeySpan Corporation
Power of Attorney
WHEREAS, KeySpan Corporation (the "Company"), a New York Corporation,
intends to file with the Securities and Exchange Commission under the
Securities Exchange Act of 1933, as amended, a Registration Statement on
Form S-3, as prescribed by said Commission pursuant to said Act and the rules
and regulations promulgated thereunder, as guarantor of debt securities to be
issued by KeySpan Gas East Corporation.
NOW, THEREFORE, in my capacity either as a director and/or officer of
the Company, I do hereby appoint GERALD LUTERMAN and RONALD S. JENDRAS, and
each of them severally, as my attorneys-in-fact with power to execute in my
name and place, and in my capacity as a director and/or officer of the
Company, said registration statement, any amendment to said registration
statement and any other documents required in connection therewith, and to
file the same with the Securities and Exchange Commission.
IN WITNESS WHEREOF, I have executed this power of attorney this 30th day
of November, 1999.
/s/ Lilyan H. Affinito
----------------------------
LILYAN H. AFFINITO, DIRECTOR
<PAGE>
Registration Statement on Form S-3
Exhibit 24-a
KeySpan Corporation
Power of Attorney
WHEREAS, KeySpan Corporation (the "Company"), a New York Corporation,
intends to file with the Securities and Exchange Commission under the
Securities Exchange Act of 1933, as amended, a Registration Statement on
Form S-3, as prescribed by said Commission pursuant to said Act and the rules
and regulations promulgated thereunder, as guarantor of debt securities to be
issued by KeySpan Gas East Corporation.
NOW, THEREFORE, in my capacity either as a director and/or officer of
the Company, I do hereby appoint GERALD LUTERMAN and RONALD S. JENDRAS, and
each of them severally, as my attorneys-in-fact with power to execute in my
name and place, and in my capacity as a director and/or officer of the
Company, said registration statement, any amendment to said registration
statement and any other documents required in connection therewith, and to
file the same with the Securities and Exchange Commission.
IN WITNESS WHEREOF, I have executed this power of attorney this 30th day
of November, 1999.
/s/ George Bugliarello
----------------------------
GEORGE BUGLIARELLO, DIRECTOR
-2-
<PAGE>
Registration Statement on Form S-3
Exhibit 24-a
KeySpan Corporation
Power of Attorney
WHEREAS, KeySpan Corporation (the "Company"), a New York Corporation,
intends to file with the Securities and Exchange Commission under the
Securities Exchange Act of 1933, as amended, a Registration Statement on
Form S-3, as prescribed by said Commission pursuant to said Act and the rules
and regulations promulgated thereunder, as guarantor of debt securities to be
issued by KeySpan Gas East Corporation.
NOW, THEREFORE, in my capacity either as a director and/or officer of
the Company, I do hereby appoint GERALD LUTERMAN and RONALD S. JENDRAS, and
each of them severally, as my attorneys-in-fact with power to execute in my
name and place, and in my capacity as a director and/or officer of the
Company, said registration statement, any amendment to said registration
statement and any other documents required in connection therewith, and to
file the same with the Securities and Exchange Commission.
IN WITNESS WHEREOF, I have executed this power of attorney this 30th day
of November, 1999.
/s/ Robert B. Catell
--------------------------
ROBERT B. CATELL, CHAIRMAN
AND CHIEF EXECUTIVE OFFICER
-3-
<PAGE>
Registration Statement on Form S-3
Exhibit 24-a
KeySpan Corporation
Power of Attorney
WHEREAS, KeySpan Corporation (the "Company"), a New York Corporation,
intends to file with the Securities and Exchange Commission under the
Securities Exchange Act of 1933, as amended, a Registration Statement on
Form S-3, as prescribed by said Commission pursuant to said Act and the rules
and regulations promulgated thereunder, as guarantor of debt securities to be
issued by KeySpan Gas East Corporation.
NOW, THEREFORE, in my capacity either as a director and/or officer of
the Company, I do hereby appoint GERALD LUTERMAN and RONALD S. JENDRAS, and
each of them severally, as my attorneys-in-fact with power to execute in my
name and place, and in my capacity as a director and/or officer of the
Company, said registration statement, any amendment to said registration
statement and any other documents required in connection therewith, and to
file the same with the Securities and Exchange Commission.
IN WITNESS WHEREOF, I have executed this power of attorney this 30th day
of November, 1999.
/s/ Howard R. Curd
-------------------------
HOWARD R. CURD, DIRECTOR
-4-
<PAGE>
Registration Statement on Form S-3
Exhibit 24-a
KeySpan Corporation
Power of Attorney
WHEREAS, KeySpan Corporation (the "Company"), a New York Corporation,
intends to file with the Securities and Exchange Commission under the
Securities Exchange Act of 1933, as amended, a Registration Statement on
Form S-3, as prescribed by said Commission pursuant to said Act and the rules
and regulations promulgated thereunder, as guarantor of debt securities to be
issued by KeySpan Gas East Corporation.
NOW, THEREFORE, in my capacity either as a director and/or officer of
the Company, I do hereby appoint GERALD LUTERMAN and RONALD S. JENDRAS, and
each of them severally, as my attorneys-in-fact with power to execute in my
name and place, and in my capacity as a director and/or officer of the
Company, said registration statement, any amendment to said registration
statement and any other documents required in connection therewith, and to
file the same with the Securities and Exchange Commission.
IN WITNESS WHEREOF, I have executed this power of attorney this 30th day
of November, 1999.
/s/ Richard N. Daniel
---------------------------
RICHARD N. DANIEL, DIRECTOR
-5-
<PAGE>
Registration Statement on Form S-3
Exhibit 24-a
KeySpan Corporation
Power of Attorney
WHEREAS, KeySpan Corporation (the "Company"), a New York Corporation,
intends to file with the Securities and Exchange Commission under the
Securities Exchange Act of 1933, as amended, a Registration Statement on
Form S-3, as prescribed by said Commission pursuant to said Act and the rules
and regulations promulgated thereunder, as guarantor of debt securities to be
issued by KeySpan Gas East Corporation.
NOW, THEREFORE, in my capacity either as a director and/or officer of
the Company, I do hereby appoint GERALD LUTERMAN and RONALD S. JENDRAS, and
each of them severally, as my attorneys-in-fact with power to execute in my
name and place, and in my capacity as a director and/or officer of the
Company, said registration statement, any amendment to said registration
statement and any other documents required in connection therewith, and to
file the same with the Securities and Exchange Commission.
IN WITNESS WHEREOF, I have executed this power of attorney this 30th day
of November, 1999.
/s/ Donald H. Elliott
---------------------------
DONALD H. ELLIOTT, DIRECTOR
-6-
<PAGE>
Registration Statement on Form S-3
Exhibit 24-a
KeySpan Corporation
Power of Attorney
WHEREAS, KeySpan Corporation (the "Company"), a New York Corporation,
intends to file with the Securities and Exchange Commission under the
Securities Exchange Act of 1933, as amended, a Registration Statement on
Form S-3, as prescribed by said Commission pursuant to said Act and the rules
and regulations promulgated thereunder, as guarantor of debt securities to be
issued by KeySpan Gas East Corporation.
NOW, THEREFORE, in my capacity either as a director and/or officer of
the Company, I do hereby appoint GERALD LUTERMAN and RONALD S. JENDRAS, and
each of them severally, as my attorneys-in-fact with power to execute in my
name and place, and in my capacity as a director and/or officer of the
Company, said registration statement, any amendment to said registration
statement and any other documents required in connection therewith, and to
file the same with the Securities and Exchange Commission.
IN WITNESS WHEREOF, I have executed this power of attorney this 30th day
of November, 1999.
/s/ Alan H. Fishman
---------------------------
ALAN H. FISHMAN, DIRECTOR
-7-
<PAGE>
Registration Statement on Form S-3
Exhibit 24-a
KeySpan Corporation
Power of Attorney
WHEREAS, KeySpan Corporation (the "Company"), a New York Corporation,
intends to file with the Securities and Exchange Commission under the
Securities Exchange Act of 1933, as amended, a Registration Statement on
Form S-3, as prescribed by said Commission pursuant to said Act and the rules
and regulations promulgated thereunder, as guarantor of debt securities to be
issued by KeySpan Gas East Corporation.
NOW, THEREFORE, in my capacity either as a director and/or officer of
the Company, I do hereby appoint GERALD LUTERMAN and RONALD S. JENDRAS, and
each of them severally, as my attorneys-in-fact with power to execute in my
name and place, and in my capacity as a director and/or officer of the
Company, said registration statement, any amendment to said registration
statement and any other documents required in connection therewith, and to
file the same with the Securities and Exchange Commission.
IN WITNESS WHEREOF, I have executed this power of attorney this 30th day
of November, 1999.
/s/ James R. Jones
-------------------------
JAMES R. JONES, DIRECTOR
-8-
<PAGE>
Registration Statement on Form S-3
Exhibit 24-a
KeySpan Corporation
Power of Attorney
WHEREAS, KeySpan Corporation (the "Company"), a New York Corporation,
intends to file with the Securities and Exchange Commission under the
Securities Exchange Act of 1933, as amended, a Registration Statement on
Form S-3, as prescribed by said Commission pursuant to said Act and the rules
and regulations promulgated thereunder, as guarantor of debt securities to be
issued by KeySpan Gas East Corporation.
NOW, THEREFORE, in my capacity either as a director and/or officer of
the Company, I do hereby appoint GERALD LUTERMAN and RONALD S. JENDRAS, and
each of them severally, as my attorneys-in-fact with power to execute in my
name and place, and in my capacity as a director and/or officer of the
Company, said registration statement, any amendment to said registration
statement and any other documents required in connection therewith, and to
file the same with the Securities and Exchange Commission.
IN WITNESS WHEREOF, I have executed this power of attorney this 30th day
of November, 1999.
Stephen W. McKessy
----------------------------
STEPHEN W. McKESSY, DIRECTOR
-9-
<PAGE>
Registration Statement on Form S-3
Exhibit 24-a
KeySpan Corporation
Power of Attorney
WHEREAS, KeySpan Corporation (the "Company"), a New York Corporation,
intends to file with the Securities and Exchange Commission under the
Securities Exchange Act of 1933, as amended, a Registration Statement on
Form S-3, as prescribed by said Commission pursuant to said Act and the rules
and regulations promulgated thereunder, as guarantor of debt securities to be
issued by KeySpan Gas East Corporation.
NOW, THEREFORE, in my capacity either as a director and/or officer of
the Company, I do hereby appoint GERALD LUTERMAN and RONALD S. JENDRAS, and
each of them severally, as my attorneys-in-fact with power to execute in my
name and place, and in my capacity as a director and/or officer of the
Company, said registration statement, any amendment to said registration
statement and any other documents required in connection therewith, and to
file the same with the Securities and Exchange Commission.
IN WITNESS WHEREOF, I have executed this power of attorney this 30th day
of November, 1999.
/s/ Edward D. Miller
------------------------------
EDWARD D. MILLER, DIRECTOR
-10-
<PAGE>
Registration Statement on Form S-3
Exhibit 24-a
KeySpan Corporation
Power of Attorney
WHEREAS, KeySpan Corporation (the "Company"), a New York Corporation,
intends to file with the Securities and Exchange Commission under the
Securities Exchange Act of 1933, as amended, a Registration Statement on
Form S-3, as prescribed by said Commission pursuant to said Act and the rules
and regulations promulgated thereunder, as guarantor of debt securities to be
issued by KeySpan Gas East Corporation.
NOW, THEREFORE, in my capacity either as a director and/or officer of
the Company, I do hereby appoint GERALD LUTERMAN and RONALD S. JENDRAS, and
each of them severally, as my attorneys-in-fact with power to execute in my
name and place, and in my capacity as a director and/or officer of the
Company, said registration statement, any amendment to said registration
statement and any other documents required in connection therewith, and to
file the same with the Securities and Exchange Commission.
IN WITNESS WHEREOF, I have executed this power of attorney this 30th day
of November, 1999.
/s/ Basil A. Paterson
---------------------------
BASIL A. PATERSON, DIRECTOR
-11-
<PAGE>
Registration Statement on Form S-3
Exhibit 24-a
KeySpan Corporation
Power of Attorney
WHEREAS, KeySpan Corporation (the "Company"), a New York Corporation,
intends to file with the Securities and Exchange Commission under the
Securities Exchange Act of 1933, as amended, a Registration Statement on
Form S-3, as prescribed by said Commission pursuant to said Act and the rules
and regulations promulgated thereunder, as guarantor of debt securities to be
issued by KeySpan Gas East Corporation.
NOW, THEREFORE, in my capacity either as a director and/or officer of
the Company, I do hereby appoint GERALD LUTERMAN and RONALD S. JENDRAS, and
each of them severally, as my attorneys-in-fact with power to execute in my
name and place, and in my capacity as a director and/or officer of the
Company, said registration statement, any amendment to said registration
statement and any other documents required in connection therewith, and to
file the same with the Securities and Exchange Commission.
IN WITNESS WHEREOF, I have executed this power of attorney this 30th day
of November, 1999.
/s/ James Q. Riordan
----------------------------
JAMES Q. RIORDAN, DIRECTOR
-12-
<PAGE>
Registration Statement on Form S-3
Exhibit 24-a
KeySpan Corporation
Power of Attorney
WHEREAS, KeySpan Corporation (the "Company"), a New York Corporation,
intends to file with the Securities and Exchange Commission under the
Securities Exchange Act of 1933, as amended, a Registration Statement on
Form S-3, as prescribed by said Commission pursuant to said Act and the rules
and regulations promulgated thereunder, as guarantor of debt securities to be
issued by KeySpan Gas East Corporation.
NOW, THEREFORE, in my capacity either as a director and/or officer of
the Company, I do hereby appoint GERALD LUTERMAN and RONALD S. JENDRAS, and
each of them severally, as my attorneys-in-fact with power to execute in my
name and place, and in my capacity as a director and/or officer of the
Company, said registration statement, any amendment to said registration
statement and any other documents required in connection therewith, and to
file the same with the Securities and Exchange Commission.
IN WITNESS WHEREOF, I have executed this power of attorney this 30th day
of November, 1999.
/s/ Frederic V. Salerno
-----------------------------
FREDERIC V. SALERNO, DIRECTOR
-13-
<PAGE>
Registration Statement on Form S-3
Exhibit 24-a
KeySpan Corporation
Power of Attorney
WHEREAS, KeySpan Corporation (the "Company"), a New York Corporation,
intends to file with the Securities and Exchange Commission under the
Securities Exchange Act of 1933, as amended, a Registration Statement on
Form S-3, as prescribed by said Commission pursuant to said Act and the rules
and regulations promulgated thereunder, as guarantor of debt securities to be
issued by KeySpan Gas East Corporation.
NOW, THEREFORE, in my capacity either as a director and/or officer of
the Company, I do hereby appoint GERALD LUTERMAN and RONALD S. JENDRAS, and
each of them severally, as my attorneys-in-fact with power to execute in my
name and place, and in my capacity as a director and/or officer of the
Company, said registration statement, any amendment to said registration
statement and any other documents required in connection therewith, and to
file the same with the Securities and Exchange Commission.
IN WITNESS WHEREOF, I have executed this power of attorney this 30th day
of November, 1999.
/s/ Vincent Tese
------------------------
VINCENT TESE, DIRECTOR
-14-
Exhibit 25
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
___________________________________________
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2) ________
THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
New York 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 Park Avenue 10017
New York, New York (Zip Code)
(Address of principal executive offices)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
____________________________________________
KEYSPAN GAS EAST CORPORATION
KEYSPAN CORPORATION
(Exact name of obligor as specified in its charter)
New York 11-3431358
(State or other jurisdiction of 11-3434848
incorporation or organization) (I.R.S. employer
identification No.)
175 East Old Country Road, Hicksville NY 11801
11801 11201
One MetroTech Center, Brooklyn NY (Zip Code)
(Address of principal executive offices)
Debt Securities
(Title of the indenture securities)
<PAGE>
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising
authority to which it is subject.
New York State Banking Department, State House, Albany,
New York 12110.
Board of Governors of the Federal Reserve System,
Washington, D.C., 20551
Federal Reserve Bank of New York, District No. 2, 33
Liberty Street, New York, N.Y.
Federal Deposit Insurance Corporation, Washington, D.C.,
20429.
(b) Whether it is authorized to exercise corporate trust
powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each
such affiliation.
None.
-2-
<PAGE>
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Articles of Association of the Trustee as
now in effect, including the Organization Certificate and the
Certificates of Amendment dated February 17, 1969, August 31, 1977,
December 31, 1980, September 9, 1982, February 28, 1985, December 2, 1991
and July 10, 1996 (see Exhibit 1 to Form T-1 filed in connection with
Registration Statement No. 333-06249, which is incorporated by
reference).
2. A copy of the Certificate of Authority of the Trustee to
Commence Business (see Exhibit 2 to Form T-1 filed in connection with
Registration Statement No. 33-50010, which is incorporated by reference.
On July 14, 1996, in connection with the merger of Chemical Bank and The
Chase Manhattan Bank (National Association), Chemical Bank, the surviving
corporation, was renamed The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers
being contained in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit
4 to Form T-1 filed in connection with Registration Statement No. 333-
06249, which is incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of
the Act (see Exhibit 6 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July 14,
1996, in connection with the merger of Chemical Bank and The Chase
Manhattan Bank (National Association), Chemical Bank, the surviving
corporation, was renamed The Chase Manhattan Bank).
7. A copy of the latest report of condition of the Trustee,
published pursuant to law or the requirements of its supervising or
examining authority.
8. Not applicable.
9. Not applicable.
-3-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of
1939 the Trustee, The Chase Manhattan Bank, a corporation organized and
existing under the laws of the State of New York, has duly caused this
statement of eligibility to be signed on its behalf by the undersigned,
thereunto duly authorized, all in the City of New York and State of New
York, on the 7th day of January, 2000.
THE CHASE MANHATTAN BANK
By
-------------------------------
F. Springer
Assistant Vice President
-4-
<PAGE>
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Articles of Association of the Trustee as
now in effect, including the Organization Certificate and the
Certificates of Amendment dated February 17, 1969, August 31, 1977,
December 31, 1980, September 9, 1982, February 28, 1985, December 2, 1991
and July 10, 1996 (see Exhibit 1 to Form T-1 filed in connection with
Registration Statement No. 333-06249, which is incorporated by
reference).
2. A copy of the Certificate of Authority of the Trustee to
Commence Business (see Exhibit 2 to Form T-1 filed in connection with
Registration Statement No. 33-50010, which is incorporated by reference.
On July 14, 1996, in connection with the merger of Chemical Bank and The
Chase Manhattan Bank (National Association), Chemical Bank, the surviving
corporation, was renamed The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers
being contained in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit
4 to Form T-1 filed in connection with Registration Statement No. 333-
06249, which is incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of
the Act (see Exhibit 6 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July 14,
1996, in connection with the merger of Chemical Bank and The Chase
Manhattan Bank (National Association), Chemical Bank, the surviving
corporation, was renamed The Chase Manhattan Bank).
7. A copy of the latest report of condition of the Trustee,
published pursuant to law or the requirements of its supervising or
examining authority.
8. Not applicable.
9. Not applicable.
-3-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of
1939 the Trustee, The Chase Manhattan Bank, a corporation organized and
existing under the laws of the State of New York, has duly caused this
statement of eligibility to be signed on its behalf by the undersigned,
thereunto duly authorized, all in the City of New York and State of New
York, on the 7th day of January, 2000.
THE CHASE MANHATTAN BANK
By
-------------------------------
F. Springer
Assistant Vice President
-4-
<PAGE>
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business September 30, 1999, in
accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollars Amounts
ASSETS in Millions
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin . . . . . . . . . . . . . $13,497
Interest-bearing balances . . . . . . . . . . . . . . . . . . . . . . . . . . 6,388
Securities:
Held to maturity securities . . . . . . . . . . . . . . . . . . . . . . . . . . 798
Available for sale securities . . . . . . . . . . . . . . . . . . . . . . . . . 48,655
Federal funds sold and securities purchased under agreement to resell . . . . . 30,373
Loans and lease financing receivables:
Loans and leases, net of unearned income . . . . . . . . . . . . $132,392
Less: Allowance for loan and lease losses . . . . . . . . . . . 2,463
Less: Allocated transfer risk reserve . . . . . . . . . . . . . 0
--------
Loans and leases, net of unearned income, allowance, and reserve . . . . . . . 129,929
Trading Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47,413
Premises and fixed assets (including capitalized leases) . . . . . . . . . . . 3,287
Other real estate owned . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Investments in unconsolidated subsidiaries and associated companies . . . . . . 185
Customers' liability to this bank on acceptances outstanding . . . . . . . . . 716
Intangible assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2,693
Other assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15,430
--------
TOTAL ASSETS $299,390
LIABILITY
Deposits
In domestic offices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $100,324
Noninterest-bearing . . . . . . . . . . . . . . . . . . . . . . . $41,601
Interest-bearing . . . . . . . . . . . . . . . . . . . . . . . . . 58,723
--------
In foreign offices, Edge and Agreement subsidiaries and IBF's . . . . . . . . 88,064
Noninterest-bearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6,363
-5-
<PAGE>
Interest-bearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81,701
Federal funds purchased and securities sold under agreements to repurchase . . 35,773
Demand notes issued to the U.S. Treasury . . . . . . . . . . . . . . . . . . . 892
Trading liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33,565
Other borrowed money (includes mortgage indebtedness and obligations
under capitalized leases):
With a remaining maturity of one year or less . . . . . . . . . . . . . . . . 4,434
With a remaining maturity of more than one year through three years . . . . . 14
With a remaining maturity of more than three years . . . . . . . . . . . . . 97
Bank's liability on acceptances executed and outstanding . . . . . . . . . . . 716
Subordinated notes and debentures . . . . . . . . . . . . . . . . . . . . . . . 5,429
Other liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11,457
TOTAL LIABILITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 280,765
--------
EQUITY CAPITAL
Perpetual preferred stock and related surplus . . . . . . . . . . . . . . . . . 0
Common stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,211
Surplus (exclude all surplus related to preferred stock) . . . . . . . . . . . 11,016
Undivided profits and capital reserves . . . . . . . . . . . . . . . . . . . . 7,333
Net unrealized holding gains (losses)on available-for-sale securities . . . . . (951)
Accumulated net gains (losses) on cash flow hedges . . . . . . . . . . . . . . 0
Cumulative foreign currency translation adjustments . . . . . . . . . . . . . . 16
TOTAL EQUITY CAPITAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18,625
--------
TOTAL LIABILITIES AND EQUITY CAPITAL . . . . . . . . . . . . . . . . . . . . . $299,390
========
</TABLE>
I, Joseph L. Sclafani, E.V.P. & Controller of the above-named bank, do
hereby declare that this Report of Condition has been prepared in
conformance with the instructions issued by the appropriate Federal
regulatory authority and is true to the best of my knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness of this Report
of Condition and declare that it has been examined by us, and to the best
of our knowledge and belief has been prepared in conformance with the
instructions issued by the appropriate Federal regulatory authority and
is true and correct.
WALTER V. SHIPLEY )
WILLIAM B. HARRISON, JR. ) DIRECTORS
SUSAN V. BERRESFORD )
-6-
