Exhibit 4.34
LETTER OF CREDIT
IRREVOCABLE LETTER OF CREDIT
NO. LCA12090300759NY
December 9, 2003
JPMorgan Chase Bank
4 New York Plaza, 15th Floor
New York, NY 10004
Attention: Capital Markets Fiduciary Services
Dear Sir or Madam:
We hereby establish, at the request and for the account of KeySpan
Generation LLC (the "Company"), in your
favor, as Trustee under the Indenture of
Trust, dated as of December 1, 1997 (as amended from time to time, the
"Indenture"), by and between New York State
Energy Research and Development
Authority (the "Issuer") and you, as
Trustee, pursuant to
which $24,880,000
in
aggregate principal amount of the Issuer's
Electric Facilities Revenue Bonds
(Long Island Lighting Company Project),
1997 Series A (the "Bonds"), are issued,
our Irrevocable Letter of Credit No. LCA12090300759NY, in the amount of
$27,057,000 (subject to reduction and
reinstatement as provided below).
(1) Effective
Date. This Letter of Credit shall become effective only upon
surrender and cancellation of the letter of credit,
dated December 11, 2000,
issued by National Westminster Bank, Plc on behalf of
the Company, pursuant
to
that certain Letter of Credit and
Reimbursement
Agreement dated as of
December
1, 2000 between the Company and National
Westminster Bank, Plc.
(2) Cancellation Date. This Letter of Credit shall
expire on the earliest
to occur of (i) December 8, 2006 (the
"Stated Termination
Date"), (ii) the date
upon which we honor a draft accompanying a written and completed certificate
signed by you in substantially the form of Exhibit 2 attached hereto, and
stating therein that such draft is the
final draft to be drawn under this Letter
of Credit and that, upon the honoring of
such draft, this
Letter of Credit will
expire in accordance with its terms, (iii) the date upon which we receive a
written certificate signed by you and stating therein that no Bonds are
"outstanding" under the Indenture,
(iv) the second
business day (as hereinafter
defined) following the effective date of
the conversion of the Bonds to a "Fixed
Rate" pursuant to Section 2.04 of the Indenture, (v) the 12th business day
following your having received a notice from us that we
are terminating
this
Letter of Credit and directing the Trustee to cause a mandatory tender and
purchase of or to accelerate the Bonds
pursuant to Section
2.05(j) or
10.01(f)
or (g) of the Indenture and (vi) the date upon which we receive a written
certificate signed by you and stating therein that an "Alternate Credit
Facility" has been provided under the Indenture (such earliest date being the
"Cancellation Date").
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As used
herein, "business day" shall mean any day of the year on
which
banks located in The City of New York,
New York, or in the city in which your
principal corporate trust office is located (as specified above), or the
principal corporate trust office designated
to us in a certificate substantially
in the form set forth in Exhibit 5 by any
transferee
who has succeeded you as
Trustee under the Indenture, or in the city in which the office
at which drafts
may be presented hereunder, are not required or authorized by law to remain
closed.
(3) Principal
and Interest
Components. The
aggregate amount which
may be
drawn under this Letter of Credit, subject to reductions in amount and
reinstatement as provided below, is
$27,057,000, of which
the aggregate amounts
set forth below may be drawn as
indicated.
(i) An aggregate amount not exceeding $24,880,000 (Twenty-four
million,
eight hundred
eighty thousand Dollars), as such amount may be
reduced and
restored as provided below, may be drawn in respect of
payment
of principal
(whether upon scheduled or accelerated maturity, or upon
redemption)
of the Bonds or the
portion of the purchase price of Bonds
corresponding to
principal (the "Principal Component").
(ii) An aggregate
amount not exceeding
$2,177,000 (Two million, one
hundred and
seventy-seven thousand
Dollars), as such amount may be reduced
and restored as provided below, may be drawn in respect of payment of
interest
on the Bonds or the portion of the purchase price of Bonds
corresponding
to interest, but not more than an amount
equal to accrued
interest on the
Bonds for the period of 210 days immediately preceding the
date of such
drawing at a maximum rate of 15% per annum, calculated on the
basis of a year
of 360 days (the "Interest Component").
(4) Drawings. Funds under this Letter of Credit are available to you
against (i) your draft dated on the date such draft is
drawn on us, stating
on
its face: "Drawn under Irrevocable Letter
of Credit No.
LCA12090300759NY
dated
December 9, 2003", and (ii) the appropriate
certificate
specified below,
duly
executed by you and appropriately completed (it being understood
that in order
to draw under this Letter of Credit in
respect of both
principal and
interest,
the presentation of two certificates shall
be required).
Exhibit Setting Forth Form
--------------------------
Type of Drawing
of Certificate Required
---------------
-----------------------
Tender
Drawing
Exhibit 1
(as hereinafter defined)
Redemption/Mandatory
Exhibit 2
Purchase
Drawing
(as hereinafter defined)
Drawing
in
respect of
Exhibit 3
interest payment on the Bonds
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Drafts and
certificates
hereunder shall be
dated the date of presentation
and shall be presented at our office
located at The Royal
Bank of Scotland plc,
101 Park Avenue, New York, NY 10178 Attention: Sheila Shaw, Commercial Loans
(Telephone (212) 401-1406) (or at such other office as we may designate by
written notice to you) in the following
manner: If we receive
telephonic notice
of your draft(s) at such office, subsequently confirmed by (i) facsimile
transmission of such draft(s) and your certificate(s) received by us at the
following number: (212) 401-1494 (or at such other
telephone number as we
may
designate by written notice to you) or (ii) by hand
delivery of such
draft(s)
and your certificate(s) received by us at
such office, in any case all in strict
conformity with the terms and conditions of
this Letter of Credit,
at or before
4:00 p.m. (New York City time) on the
business day immediately preceding the day
of presentation, which day of presentation
shall be the business
day on which
your draft(s) and certificate(s) are dated and which shall be on or
before the
Cancellation Date, then we will honor such
draft(s) at or before 12:00 noon (New
York City time) on the day of presentation
to your order in accordance with your
payment instructions; and draft(s) and
certificate(s) so received following 4:00
p.m. (New York City time) will be so
honored at or before
12:00 noon (New York
City time) on the business day immediately following the day of presentation
(notwithstanding that such day of presentation
may have been the
Cancellation
Date). If you request, by written notice to us delivered
in a timely
fashion,
payment under this Letter of Credit will be made by wire transfer of Federal
funds to an account with any bank that is a member of the Federal Reserve
System, or by deposit of immediately
available funds into a
designated account
maintained with us. All payments made by us
under this Letter of Credit will be
made with our own funds and not with any
funds of the Company or the Issuer.
(5) Reductions.
The Principal Component and the Interest Component shall be
reduced immediately following our honoring any draft
drawn hereunder (i) to pay
interest on the Bonds, or (ii) to pay principal of the Bonds or to pay the
purchase price of Bonds that are (A) due upon maturity or as a result of
acceleration or upon redemption of the Bonds in
accordance with Section 2.17 of
the Indenture or (B) subject to
mandatory purchase by
the Company pursuant
to
Sections 2.05(e) or 2.05(j) of the
Indenture (any such drawing in respect of the
circumstances referred to in this clause (ii) being a "Redemption/Mandatory
Purchase Drawing"), or (iii) to pay the purchase price of Bonds that are (A)
purchased pursuant to an election by the
holders thereof
pursuant to
Sections
2.05(a) or 2.05(b) of the Indenture or (B)
subject to mandatory
tender pursuant
to Sections 2.05(d) or 2.05(g) of the
Indenture (any such drawing in respect of
the circumstances referred to in this
clause (iii) being a "Tender Drawing"), in
each case by an amount equal to the
respective
component of the
amount of such
draft.
(6)
Reinstatement. On the
10th day following each drawing hereunder to pay
interest on the Bonds, the amount so drawn shall be
reinstated to the
Interest
Component, unless you shall have theretofore received written notice from us
that we will not reinstate this Letter of Credit in the
amount of such drawing
because (i) we have not been reimbursed in
full by the Company for the amount of
such drawing, together with interest, if any, owing thereon pursuant to the
Letter of Credit and Reimbursement
Agreement, dated as of
December 9, 2003 (the
"Reimbursement Agreement"), between the Company and us, or (ii) an Event of
Default under the Reimbursement Agreement has occurred and is then
continuing;
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provided, however, that we shall not be entitled to give any such notice
pursuant to clause (6)(ii) above in the event that,
pursuant to our
direction,
you shall be required to give notice of mandatory purchase of the Bonds in
accordance with Section 2.05(j) of the
Indenture; and
provided further that
in
no event shall the Interest Component be reinstated to an amount in excess of
210 days' interest computed at the rate of
15% per annum, on the basis of a year
of 360 days.
Immediately
upon
our notice to you by hand delivery or facsimile
transmission in the form set forth in
Exhibit 4 hereto that (a) we have been
reimbursed by or for the account of the Company in respect of any Tender
Drawing, together with interest, if any, owing thereon pursuant to the
Reimbursement Agreement, the amounts of which we notify you we have been
reimbursed in respect of such Tender Drawing shall be reinstated to the
Principal Component and the Interest
Component, as
specified in such notice, or
(b) we have received notice in the form set forth in
Exhibit 6 hereto from you
or from a person stating therein that he or she is a representative of the
"Tender Agent" referred to in the Indenture
that the Remarketing
Agent referred
to in the Indenture has found a purchaser to whom it can remarket Bonds in
connection with a Tender Drawing the Principal Component and the Interest
Component shall be reinstated automatically to the extent of the principal
and
interest components of the purchase price of such Bonds as specified
in such
notice. We agree that if we receive notice
from you or from the Tender Agent as
provided in clause (b), above, at or before 4:00 p.m.
(New York City time)
on
the business day immediately preceding any day of presentation
hereunder,
we
shall deliver to
