Exhibit 10.25.7
CONSENT TO ASSIGNMENT
OF
OPERATING GUARANTY AGREEMENT
This Consent to Assignment (this "Consent") is entered into as of
March 21, 1997, to be effective as of December 31, 1997, by NRG Energy,
Inc., a Delaware corporation (the "Company"), NRG Generating (Xxxxxx)
Cogeneration Inc. (formerly known as O'Brien (Xxxxxx") Cogeneration,
Inc.), a Delaware corporation ("NRGG Xxxxxx"), and Credit Suisse First
Boston (formerly known as Credit Suisse), acting through its New York
branch ("CS") as agent (hereinafter in such capacity, together with any
successors thereto in such capacity referred to as "Agent") pursuant to
the Credit Agreement dated as of May 17, 1996 by and amount (i) NRGG
Xxxxxx and NRG Generating (Newark) Cogeneration Inc. (formerly known as
O'Brien (Newark) Cogeneration, Inc.), a Delaware corporation ("NRGG
Newark"; NRGG Xxxxxx and NRGG Newark, collectively, the "Borrowers"),
(ii) Credit Suisse First Boston, as Lender and each additional Lender
from time to time party to the Credit Agreement and (iii) the Agent (as
to same may be amended, modified or supplemented from time to time, the
"Credit Agreement").
RECITALS
WHEREAS, the Company, for the benefit of NRGG Xxxxxx, has entered
into that certain Guaranty Agreement, dated as of even date herewith,
to be effective January 1, 1997, (as the same may be amended, modified
or supplemented from time to time, the "Assigned Agreement") with
respect to the System Operation and Maintenance Agreement, dated as of
December 31, 1997 (as the same may be amended, modified or supplemented
from time to time, the "O&M Agreement"), between Power Operations, Inc.
(the "Operator") and NRGG Xxxxxx; and
WHEREAS, NRGG Xxxxxx has assigned or will assign to Agent for the
benefit of the Secured Parties (as defined in the Credit Agreement and
referred to herein as "Assignee") all of its rights, title and interest
in, to and under the Assigned Agreement as security for NRGG Xxxxxx'x
obligations under the Credit Agreement; and
WHEREAS, the Company is willing to consent to such assignment and
the grant of a security interest by NRGG Xxxxxx in favor of Assignee as
described above.
NOW, THEREFORE, in consideration of the premises and of other valuable
consideration, the parties hereto agree as follows:
19. Assignment and Security Interest
As security for the due and punctual performance and payment of
all of NRGG Xxxxxx'x obligations under the Credit Agreement, NRGG
Xxxxxx has assigned or will assign to Assignee as collateral
security, all of NRGG Xxxxxx'x rights to and under the Security
Agreement (as defined in the Credit Agreement).
20. Consent
The Company hereby (i) irrevocably consents to the assignment
specified in paragraph 1 of this Consent and to any subsequent
assignments by Agent or Assignee upon and after Agent's or
Assignee's exercise of its rights and remedies under the Security
Agreement and (ii) agrees that, following the assumption of the
Assigned Agreement by Agent, Assignee or their nominee, designee
or assignee, all agreements made by the Company under or pursuant
to the Assigned Agreement shall inure to the benefit of such party
and shall be enforceable by such party to the same extent as if
such party were originally named in the Assigned Agreement.
21. Amendment or Termination of Operating Guaranty
(a) The Company covenants and agrees with Agent that without the
prior written consent of Agent (i) the Company will not materially
amend, modify or terminate the Assigned Agreement and (ii) no
waiver by NRGG Xxxxxx of any of the obligations of the Company
under the Assigned Agreement, and no consent, approval or election
made by NRGG Xxxxxx in connection with the Assigned Agreement
shall be effective.
(b) In the event that the Operator and Agent, Assignee or their
nominee or designee enter into a new O&M Agreement pursuant to
Section 3(b) of that certain Consent to Assignment of System
Operating and Maintenance Agreement, dated as December 31, 1997,
entered into by the Operator, NRGG Xxxxxx and Agent, then the
Company shall, at the option of Agent and Assignee, enter into a
new Assigned Agreement for the benefit of Agent, Assignee or (at
the direction of Agent or Assignee) their nominee or designee
having terms substantially identical to the Assigned Agreement,
pursuant to which Agent, Assignee or their nominee or designee
shall have all the rights and obligations of NRGG Xxxxxx under the
Assigned Agreement.
22. Payments
The Company agrees that until receipt of written notice from Agent
that all obligations of NRGG Xxxxxx under the Credit Agreement
have been fully satisfied, the Company hereby agrees to make all
payments due to NRGG Xxxxxx under the Assigned Agreement directly
to such account as Agent may from time to time hereafter specify
in writing and the Company will not be entitled to recover any
amount so paid from Agent.
23. Representations and Warranties
The Company hereby represents and warrants to Agent and Assignee
as follows:
(a) The Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of
Delaware. The Company has full power, authority
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and legal right to incur the obligations provided for in
this Consent and the Assigned Agreement.
(b) The execution, delivery and performance by the Company
of this Consent and the Assigned Agreement have been duly
authorized by all necessary corporate action.
(c) The Assigned Agreement is in full force and effect and
has not been amended.
(d) Each of this Consent and the Assigned Agreement
constitutes the legal, valid and binding obligation of the
Company enforceable against the Company in accordance with
its terms, except as enforceability may be limited by general
principles of equity and by applicable bankruptcy,
insolvency, moratorium or similar laws affecting creditors
rights generally.
(e) There is no litigation, action, suit, investigation or
proceeding pending or, to the best knowledge of the Company,
threatened against the Company nor any basis therefor, before
or by any court, administrative agency, environmental
council, arbitrator or governmental authority, body or
agency, which could adversely affect the performance by the
Company of its obligations hereunder or under the Assigned
Agreement or which questions the validity, binding effect or
enforceability hereof or thereof.
(f) The Company is not in violation of its articles of
incorporation or bylaws, and the execution, delivery and
performance by the Company of this Consent and the Assigned
Agreement, and the consummation of the transactions
contemplated hereby and thereby, will not result in any
violation of any term of its articles of incorporation or
bylaws, of any material contract or agreement applicable to
it, or of any license, permit, franchise, judgment, decree,
writ, injunction, order, charter, law, ordinance, rule or
regulation applicable to it or any of its properties or to
any obligations incurred by it or by which it or any of its
properties may be bound or affected, or of any determination
or award of any arbitrator applicable to it, and will not
conflict with, or cause a breach of, or default under, any
such term.
(g) The Company has not received notice of, or consented to
the assignment of any of NRGG Xxxxxx'x right, title, or
interest in the Assigned Agreement to any person or entity
other than Agent and Assignee.
24. Notices
All notices or other communications which are required or
permitted hereunder to be given to any party shall be in writing
(including facsimile communication) and shall be deemed given if
delivered personally or sent by telecopy or by registered or
certified mail, return receipt requested, to the address of such
party specified below or to such other address as the addressee
may have specified in a notice duly given to the sender as
provided herein:
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If to Agent:
Credit Suisse First Boston
Eleven Madison Avenue
19th Floor
New York, NY 10010-3629
Attention: Project Finance
Telecopy: (000) 000-0000
If to NRGG Xxxxxx:
NRG Generating (Xxxxxx) Cogeneration, Inc.
c/o NRG Generating (U.S.) Inc.
0000 Xxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxxx, XX 00000
Attention: President
Telecopy: (000) 000-0000
If to the Company:
NRG Energy, Inc.
0000 Xxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxxx, XX 00000
Attention:
Telecopy:
All such notices and communications shall, when mailed, be
effective seven (7) days after being deposited in the mail in the
manner aforesaid, or when sent by telecopier, upon receipt thereof.
25. Governing Law
THIS CONSENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK (WITHOUT GIVING EFFECT TO THE
PRINCIPLES THEREOF RELATING TO CONFLICTS OF LAW EXCEPT SECTION 5-
1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW).
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26. Successors and Assigns
This Consent shall be binding upon the parties and their
successors and assigns and inure to the benefit of the parties and
their respective successors and assigns (which assigns, in the
case of Agent and Assignee, shall include, without limitation, any
nominee or designee of Agent and Assignee and any purchaser of all
or any portion of rights under the Assigned Agreement in
connection with an Event of Default under the Credit Agreement or
a foreclosure by Agent and Assignee.)
27. Waiver
No amendment or waiver of any provisions of this Consent shall be
effective unless the same shall be in writing and signed by Agent,
and then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given.
28. Counterparts
This Consent may be executed in any number of counterparts, all of
which counterparts shall together constitute one and the same
instrument.
29. Further Assurances
The Company will at any time and from time to time, upon the
written request of Agent, execute and deliver such further
documents and do such other acts and things as Agent may
reasonably request in order to effectuate more fully the purposes
of this Consent.
30. Conflicts
In the event of a conflict between any provision of this Consent
and the provisions of the Assigned Agreement, the provisions of
this Consent shall prevail.
[SIGNATURES APPEAR ON THE NEXT PAGE]
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IN WITNESS WHEREOF, each of the undersigned has duly executed
this Consent as of the date first above written.
NRG ENERGY, INC.
By:/s/ Xxxxxx X. Will
Name: Xxxxxx X. Will
Title: Vice President
NRG GENERATING (XXXXXX)
COGENERATION INC.
By:
Name:
Title:
Accepted:
CREDIT SUISSE FIRST BOSTON, as Agent
By:/s/ Xxx Xxxxxxxxxx
Name: Xxx Xxxxxxxxxx
Title: Director
By:/s/ Xxxxxx X. Xxxx
Name: Xxxxxx X. Xxxx
Title: Associate
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