Exhibit 4.30-b
EXTENSION AND AMENDMENT AGREEMENT AND CONSENT
This extension and amendment agreement and consent (this "Amendment") is
made as of November 20, 2002, between National Westminster Bank Plc (the "Bank")
and Keyspan Generation LLC (the "Company"), with respect to that certain letter
of credit issued by the Bank in connection with those certain New York State
Energy Research and Development Authority Electric Facilities Revenue Bonds
(KeySpan Generation Project) 1997 Series A (KeySpan Generation Projects) (the
"Letter of Credit"), pursuant to a Letter of Credit and Reimbursement Agreement
dated as of December 1, 2000 (as amended, the "Agreement") between the Bank and
the Company. Capitalized terms used herein and not otherwise defined shall have
the meaning given to them in the Agreement.
1. Pursuant to Section 2.1 (b) of the Agreement, the Company has requested
a waiver of the notice provisions with respect to the extension of the Letter of
Credit and also requested an extension of the Stated Termination Date as of the
date hereof from Dec 11, 2002 to Dec 11, 2003, and the Bank, subject to the
execution of this Amendment and satisfaction of the terms and conditions hereof,
is willing to so extend the Stated Termination Date pursuant to an amendment of
the Letter of Credit in the form of Exhibit "A" hereto.
2. In connection with such request the Company agrees to pay to the Bank
all fees and expenses as set forth in Section 2.6 of the Agreement, and to pay
to the Bank on the date hereof a renewal fee of $13,528.00 and allocated
internal costs of $1,500.00.
3. The Agreement is amended as follows:
a. Section 1.1 of the Agreement is amended by deleting the following defined
terms therein and their respective definitions:
"ABR Loans, Applicable Margin, Board, Borrowing, Borrowing Conditions,
Borrowing Date, Eurocurrency Reserve Requirement, Eurodollar Base Rate,
Eurodollar Loans, Eurodollar Rate, Final Maturity Date, Interest Payment
Date, Interest Period, Loans, and Type";
and by amending the following definitions by amending and restating them in
their entirety as follows:
""Business Day" shall mean a day other than a Saturday, Sunday or other day
on which commercial banks in New York City are authorized or required by
law to close."
"Obligations" shall mean all obligations and liabilities of the Company to
the Bank, whether direct or indirect, absolute or contingent, due or to
become due, or now existing or hereafter incurred, which may arise under,
out of, or in connection with, this Agreement or any other document made,
delivered or given in connection herewith or therewith, whether on account
of principal, interest, reimbursement obligations, fees, indemnities,
costs, expenses (including all fees, charges and disbursements of counsel
to the Bank that are required to be paid by the Company pursuant hereto) or
otherwise."
b. Section 2.2 of the Agreement is amended by amending and restating it in its
entirety as follows:
"Section 2.2 Agreement to Reimburse the Bank for Letter of Credit Payments.
(a) Reimbursement by Company. The Company hereby agrees to reimburse and
pay to the Bank, on the date each payment or disbursement is made by the
Bank under the Letter of Credit honoring any demand for payment made by the
Trustee thereunder (including amounts in respect of the reinstatement of
the Interest Component (as defined in the Letter or Credit) at the election
of the Bank notwithstanding any failure of the Company to reimburse the
Bank for any previous drawing to pay interest on the Bonds), an amount
equal to such payment or disbursement. Any amount not so paid on such date
shall bear interest, payable on demand, in accordance with Section
2.5(c)(ii).
(b) Reimbursement Obligation Absolute and Unconditional. The Company's
obligation to reimburse the Bank when due for payments and disbursements
made by the Bank under the Letter of Credit shall be absolute and
unconditional under any and all circumstances and irrespective of any
setoff, counterclaim or defense to payment that the Company may have or
have had against the Bank, including, without limitation, any counterclaim
or defense which is based upon (i) the failure of such demand for payment
to conform to the terms of the Letter of Credit, (ii) any failure of the
Issuer or the Company to receive all or any part of the proceeds of the
sale of the Bonds, (iii) any non-application or misapplication by the
Issuer, the Trustee or any other person of the proceeds of such demand for
payment or (iv) the illegality, invalidity, irregularity or
unenforceability of the Bonds or the Letter of Credit; provided, however,
that (A) the Company shall not be obligated to reimburse the Bank for any
wrongful payment or disbursement made by the Bank under the Letter of
Credit as a result of acts or omissions constituting intentional or willful
misconduct on the part of the Bank or any of its officers, employees or
agents, and (B) except as specifically provided herein, the Company does
not waive any legal rights to which it is entitled."
c. Section 2.3 of the Agreement is amended by amending and restating it in its
entirety as follows:
"Section 2.3 Intentionally Deleted."
d. Section 2.4 of the Agreement is amended by amending and restating it in its
entirety as follows:
"Section 2.4 Change of Control.(a) Upon the occurrence of a Change of
Control, whether arising through the exercise of the LIPA Option or
otherwise, the Company shall immediately use its best efforts to cause the
Letter of Credit to be terminated and returned to the Bank, or failing
that, the Company shall immediately deposit with, and under the exclusive
dominion and control of, the Bank cash of an amount equal to the Stated
Amount of the Letter of Credit as cash collateral for the Company's
contingent obligation to reimburse the Bank for any subsequent amount paid
or disbursed by the Bank under the Letter of Credit. For the avoidance of
doubt, the foregoing obligation to cash collateralize the Company's
reimbursement obligation shall not affect such reimbursement obligations,
which shall remain in full force and effect. The Company agrees to execute
such documents and take all such other steps as the Bank shall require to
create and perfect a security interest in such cash collateral in favor of
the Bank for such purposes."
e. Section 2.5 of the Agreement is amended by amending and restating it in its
entirety as follows:
"Section 2.5 Interest.(b) If all or a portion of any fee or other amount
payable hereunder including any amount to be reimbursed under Section
2.2(a) shall not be paid when due (whether at the stated maturity, by
acceleration or otherwise), such overdue amount shall bear interest,
payable on demand, at a rate per annum equal to the ABR plus 2%, in each
case from the date due until paid in full."
f. Section 2.6 of the Agreement is amended by deleting subpart (d) thereof.
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g. Section 2.7 of the Agreement is amended by amending and restating it in its
entirety as follows:
"Section 2.7 Computation of Interest and Fees. (c) (a) Fees payable
pursuant hereto shall be calculated on the basis of a 360-day year for the
actual days elapsed, and interest payable hereunder shall be calculated on
the basis of a 365- (or 366-, as the case may be) day year for the actual
days elapsed. Any change in the interest rate resulting from a change in
the ABR shall become effective as of the opening of business on the day on
which such change becomes effective. The Bank shall as soon as practicable
notify the Company of the effective date and the amount of each such change
in interest rate. Each determination of an interest rate by the Bank
pursuant to any provision of this Agreement shall be conclusive and binding
on the Company in the absence of manifest error."
h. Section 2.8 of the Agreement is amended by amending and restating it in its
entirety as follows:
"Section 2.8 Intentionally Deleted."
i. Section 2.9 of the Agreement is amended by amending and restating it in its
entirety as follows:
"Section 2.9 Payments. (d) (a) All payments (including prepayments) to be
made by the Company hereunder, whether on account of principal, interest,
fees or otherwise, shall be made without setoff or counterclaim and shall
be made prior to 12:00 Noon, New York City time, on the due date thereof to
the Bank, at the office specified in Section 8.2 (and such account as the
Bank shall have notified to the Company) (or as otherwise notified to the
Company by the Bank), in Dollars and in immediately available funds. If any
payment hereunder becomes due and payable on a day other than a Business
Day, such payment shall be extended to the next succeeding Business Day. In
the case of any extension of any payment of principal pursuant to the
preceding sentence, interest thereon shall be payable at the applicable
rate during such extension."
j. Section 2.10 of the Agreement is amended by amending and restating it in
its entirety as follows:
"Section 2.10 Requirements of Law. (a) If the Bank shall have determined
that the adoption of or any change in any Requirement of Law regarding
capital adequacy or in the interpretation or application thereof or
compliance by the Bank or any corporation controlling the Bank with any
request or directive regarding capital adequacy (whether or not having the
force of law) from any Governmental Authority made subsequent to the date
of this Agreement shall have the effect of reducing the rate of return on
the Bank's or such corporation's capital as a consequence of its
obligations hereunder to a level below that which the Bank or such
corporation could have achieved but for such adoption, change or compliance
(taking into consideration the Bank's or such corporation's policies with
respect to capital adequacy) by an amount deemed by the Bank to be
material, then from time to time, after submission by the Bank to the
Company of a written request therefor, the Company shall pay to the Bank
such additional amount or amounts as will compensate the Bank for such
reduction; provided that the Company shall not be required to compensate
the Bank pursuant to this paragraph for any amounts incurred more than six
months prior to the date that the Bank notifies the Company of the Bank's
intention to claim compensation therefor; and provided further that, if the
circumstances giving rise to such claim have a retroactive effect, then
such six-month period shall be extended to include the period of such
retroactive effect.
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(b) A certificate as to any additional amounts payable pursuant to
this Section submitted by the Bank to the Company shall be conclusive in
the absence of manifest error. The obligations of the Company pursuant to
this Section shall survive the termination of this Agreement and the
payment of amounts payable hereunder."
(k) Section 2.12 and Section 2.13 are deleted in their entirety.
(l) Section 6.1(a)of the Agreement is amended by amending and restating it in
its entirety as follows:
"(a) (i) the Company shall fail to pay to make any reimbursement payment
under Section 2.2(a) when due in accordance therewith; or (ii) the Company
shall fail to pay any other amount payable hereunder within five days after
such other amount becomes due in accordance with the terms of this
Agreement; or"
(m) Section 6.2of the Agreement is amended by amending and restating it in its
entirety as follows:
"Section 6.2 Remedies Upon an Event of Default. If any Event of Default
shall have occurred and be continuing, the Bank may (i) notify the Trustee
of the occurrence and continuance of such Event of Default whereupon the
Trustee shall accelerate payment of all the outstanding Bonds and the
interest accrued thereon pursuant to and in accordance with Section 10.01
of the Indenture, and notify the Trustee of the Bank's determination to
terminate the Letter of Credit on the 12th Business Day following the
Trustee's receipt of such notice, and, in either case, provide a copy of
such notice to the Company and the Issuer, (ii) if a drawing to pay
interest on the Bonds shall have been made under the Letter of Credit
(other than such a drawing in respect of the payment of interest upon
scheduled or accelerated maturity, or redemption, of the Bonds), notify the
Trustee prior to the tenth day following such drawing that the Bank has not
been reimbursed for such drawing and that the Interest Component (as
defined in the Letter of Credit) in the amount of such drawing will not be
reinstated, (iii) require the Company to provide cash collateral in respect
of the undrawn portion of the Stated Amount of the Letter of Credit,
whereupon the Company shall deposit with the Bank as cash collateral an
amount equal to such undrawn portion, (v) exercise all the rights and
remedies provided herein; provided, however, that in the event of an actual
or deemed entry of an order for relief with respect to the Company or any
of its Subsidiaries under the Federal Bankruptcy Code, all amounts
reimbursable pursuant to Section 2.02(a), all interest accrued and unpaid
thereon and all other amounts payable hereunder shall automatically become
due and payable, without presentment, demand, protest or any notice of any
kind, all of which are hereby expressly waived by the Company."
(n) Section 7.3 is deleted in its entirety.
4. The Company reaffirms each of the representations and warranties contained
in the Agreement as of the date hereof as though made on the date hereof
and reaffirms each of its obligations under the Agreement.
In witness whereof, the Company and the Bank have executed this
Amendment in counterpart copies (all of which shall constitute but one
original) as of the date set forth above.
KEYSPAN GENERATION LLC
By: /s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President and Treasurer
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NATIONAL WESTMINSTER BANK PLC
NEW YORK BRANCH
By: /s/
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Name: ▇▇▇▇▇▇▇▇ ▇. Dundee
Title: Senior Vice President
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EXHIBIT "A"
AMENDMENT TO LETTER OF CREDIT
IRREVOCABLE LETTER OF CREDIT
NO. NWB2030
November 27, ▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Bank
▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
ATTENTION: CAPITAL MARKETS FIDUCIARY SERVICES
Dear Sir or Madam:
At the request of Keyspan Generation LLC, we hereby amend our Irrevocable Letter
of Credit No. NWB2030 by deleting the Stated Termination Date of December 11,
2002 set forth therein and replacing it with December 11, 2003.
Please acknowledge your receipt of and consent to this amendment by executing
the enclosed copy of this amendment and returning it to ▇▇. ▇▇▇▇▇▇ ▇▇▇▇ at the
address set forth above.
Very truly yours,
NATIONAL WESTMINSTER BANK PLC, NEW YORK BRANCH
By: /s/
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Authorized Officer
By: /s/
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Authorized Officer
Acknowledged and consented to on November __, 2002:
The Chase Manhattan Bank
By: /s/
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Name:
Title: