Exhibit 4.14-c
KEYSPAN CORPORATION
GUARANTY
This Guaranty (the "Guaranty") is made and given as of this 26th day of
November, 2003, by KeySpan Corporation, a corporation organized under the laws
of the State of New York, having its principal office at One MetroTech Center,
Brooklyn, New York 11201 ("KeySpan"), in favor of the Suffolk County Industrial
Development Agency, a corporate governmental agency constituting a body
corporate and a public benefit corporation organized under the laws of the State
of New York (the "IDA"), having its principal office at H. Lee Dennison
Building, 100 Veterans Memorial Highway, Hauppauge, New York 11788.
WHEREAS, KeySpan-Port Jefferson Energy Center, LLC (the "Primary Obligor") is a
wholly owned, indirect subsidiary of KeySpan ;
WHEREAS, KeySpan is desirous that the IDA and the Primary Obligor enter into a
lease agreement, dated as of November 1, 2003 (the "Lease Agreement"), in
connection with a certain electric power generation facility operated by the
Primary Obligor; and
WHEREAS, KeySpan is willing to enter into this Guaranty in order to guarantee to
the IDA the obligations of the Primary Obligor (i) to make certain rental
payments under the Lease Agreement, and (ii) to pay amounts when due under a
certain Payment Agreement (the "Payment Agreement") delivered by the Primary
Obligor to the IDA (collectively, the "Guaranteed Obligations");
NOW, THEREFORE, in consideration of the foregoing and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, and
intending to be legally bound hereby, KeySpan covenants and agrees as follows:
KeySpan unconditionally guarantees, subject to the exceptions and limitations
set forth below, the full, faithful, and prompt payment by the Primary Obligor
of the Guaranteed Obligations. In the event of any default by the Primary
Obligor in the payment of the Guaranteed Obligations, KeySpan shall forthwith
pay the defaulted obligation to the IDA (or the Trustee, at the written
direction of the IDA), without requiring any proceedings to be taken against the
Primary Obligor, or any third party, and without the necessity of enforcing any
remedy available under the terms of the Lease Agreement. This is a guaranty of
payment and not collection.
KeySpan's liability hereunder is limited to the direct monetary obligations
incurred by the Primary Obligor under the Lease Agreement and the Payment
Agreement, provided that, in no event will KeySpan be subject to consequential,
special, exemplary, equitable, loss of profits, tort or any other damages.
KeySpan reserves to itself all rights, setoffs, counterclaims, and other
defenses to which the Primary Obligor, or any other KeySpan affiliate, is or may
be entitled to under the Lease Agreement.
This Guaranty shall become effective as of the date hereof and will terminate
without further notice as of the date that the payment obligations under the
Lease Agreement are paid in full ("Termination Date"). No termination of this
Guaranty shall affect any valid and enforceable obligations incurred by KeySpan
under this Guaranty at the time of termination. KeySpan's obligations
hereunder shall continue until the later of (x) the Termination Date or (y) the
satisfaction of only those valid obligations existing at the time of
termination.
KeySpan shall not delegate or assign its duties and obligations hereunder
without the IDA's consent. This Guaranty shall not apply if the Primary
Obligor's obligation arises pursuant to an assignment of contracts and/or
agreements to a non-affiliated entity for which the IDA's consent was granted.
This Guaranty shall be governed by the laws of the State of New York.
The obligations of KeySpan hereunder shall continue in full force and effect and
be automatically reinstated, notwithstanding any termination of this Guaranty,
if and to the extent that for any reason any payment to the IDA in respect of
the obligations under the Lease Agreement is rescinded by, or must be otherwise
repaid or restored by, the Primary Obligor, whether as a result of any
proceedings in bankruptcy or reorganization or otherwise under other applicable
laws or any settlement in a proceeding therein, subject in any and all such
cases to the limits on KeySpan's liability hereunder.
KeySpan hereby waives the giving of any notice, including, but not limited to:
(i) notice of the acceptance of this Guaranty by the IDA; (ii) notice that the
Primary Obligor has entered into the Lease Agreement and the Payment Agreement
and that obligations of the Primary Obligor guaranteed hereby have arisen
thereunder; (iii) notice of the modification or amendment of the Lease Agreement
or the Payment Agreement; (iv) notice of any extension of time or other
modification of terms for the payment of any obligation under the Lease
Agreement or the Payment Agreement; (v) notice of presentment, demand for
payment, default, dishonor, protest or notice of protest with respect to any
obligation under the Lease Agreement or the Payment Agreement; (vi) any notice
of any defaults by or disputes with the Primary Obligor with respect to payment
or performance under the Lease Agreement or the Payment Agreement; and (vii)
notice of any action the Primary Obligor may at any time take involving the
sale, exchange, release, surrender, or other action with respect to any property
at any time securing, directly or indirectly, the Primary Obligor's obligations
under the Lease Agreement or the Payment Agreement.
KeySpan shall not consolidate, amalgamate or merge with or into, sell or
transfer all or substantially all of its assets to or undertake any similar
event with another entity, unless the resulting, surviving or transferee entity
is liable for all obligations of KeySpan under this Guaranty.
KeySpan represents and warrants to the IDA that:
(1) KeySpan is a corporation duly organized and existing in good standing under
the laws of the State of New York and has full power and authority to make
and deliver this Guaranty;
(2) The execution, delivery and performance of this Guaranty by KeySpan has
been duly authorized by all necessary corporate action and does not and
will not violate the provisions of, or constitute default under, any
presently applicable law or its organizational, instruments or any
agreement presently binding on it;
(3) This Guaranty has been duly executed and delivered by the authorized
officers of KeySpan and constitutes its lawful, binding, and legally
enforceable obligation; and
(4) The obligations of KeySpan hereunder will result in a direct benefit to
KeySpan.
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Any provision contained in this Guaranty which is prohibited or unenforceable in
any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
KeySpan agrees that any suit, action, or proceeding, whether claim or
counterclaim, brought or instituted by KeySpan, by the Primary Obligor or by any
successor or assign of the Primary Obligor on or with respect to this Guaranty
or which in any way relates, directly or indirectly, to the Lease Agreement,
Payment Agreement or obligations thereunder, or any event, transaction, or
occurrence arising out of or in any way connected with the Lease Agreement, the
Payment Agreement or the dealings of the parties with respect thereto, shall be
tried only by a court and not by a jury.
This Guaranty shall be binding upon KeySpan and its successors, transferees and
permitted assigns hereunder and shall inure to the benefit of and be enforceable
by the IDA and its successors and assigns.
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IN WITNESS WHEREOF, the undersigned has executed this Guaranty the 26th day of
November, 2003.
KEYSPAN CORPORATION
By: /s/
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Name: Michael J. Taunton
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Title: VP & Treasurer
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