Consent, dated as of December 30, 1997 among NRG
Energy, NRGG Funding, the Company and Equistar
Chemicals, LP a successor in interest to Millennium
Petrochemicals, Inc.
Exhibit 10.27.16
ASSIGNMENT, ASSUMPTION AND CONSENT
This Assignment, Assumption and Consent is made on this
30th day of December, 1997, by and between NRG Energy, Inc.,
a Delaware corporation (the Assignor), NRG Generating (U.S.)
Inc., a Delaware corporation ("NRGG"), NRGG Funding Inc., a
Delaware corporation and wholly-owned subsidiary of NRGG
(the "Assignee") and Equistar Chemicals LP, a Delaware
limited partnership, as successor in interest to Millennium
Petrochemicals Inc. ("Millennium Petrochemicals").
RECITALS
A. That certain Energy Services Agreement dated as of
June 3, 1997, as amended by letter agreements dated August 28,
1997 and September 19,1997 (as so amended, the "ESA") by and
between NRG (Xxxxxx) Xxxxx, LLC, a Delaware limited liability
company (the "Company") and Millennium Petrochemicals Inc., sets
forth certain obligations of Assignor to Equistar pursuant to
Sections 19.1, 19.3 and 19.5 thereof. Assignor acknowledged such
obligations with respect to Section 19.3 of the ESA in a letter
dated June 6, 1997. Assignor has also subsequently orally
acknowledged its obligations to Equistar under Sections 19.1 and
19.5 of the ESA.
B. Pursuant to that certain Membership Interest Purchase
Agreement dated December 10, 1997 (the "PSA"), Assignor, is
transferring all of its membership interests in the Company to
Assignee.
C. Assignor and Assignee desire to assign to Assignee all
of Assignor's obligations under Sections 19.1, 19.3 and 19.5 of
the ESA.
NOW, THEREFORE, in consideration of these recitals which are
hereby incorporated herein and of the mutual covenants herein set
forth and other good and valuable consideration, the receipt of
which is hereby acknowledged, it is agreed:
1. Assignment By Assignor. Assignor hereby assigns and
transfers to Assignee any and all of Assignor's obligations
under Sections 19.1, 19.3 and 19.5 of the ESA (all such
obligations, the "Obligations").
2. Acceptance, Assumption and Indemnification by Assignee.
Assignee hereby accepts the foregoing assignment and
promises and agrees to assume all of the Obligations and to
comply with the Obligations. Assignee shall indemnify and
hold Assignor harmless from any and all claims, demands,
actions, causes of action, suits, proceedings, damages,
liabilities, costs and expenses of every nature whatsoever,
including reasonable attorneys' fees, relating to the
Obligations arising from or after the date hereof.
3. Consent. Equistar hereby consents to the assignment herein
of the Obligations from Assignor to Assignee.
4. NRGG Commitment. NRGG agrees and covenants with Equistar to
cause Assignee to comply with the assumed Obligations and
further agrees not to sell, assign or otherwise dispose of
any of the stock of Assignee, without the prior written
consent of Equistar under Section 19.3 of the ESA, unless
NRGG, after giving effect to such sale, assignment or other
disposition, directly or indirectly owns 100% of the
membership interests of the Company, and if any subsidiary
of NRGG other than Assignee owns any portion of the
membership interests of the Company, NRGG will cause such
subsidiary to undertake the obligations in Sections 19.1,
19.3 and 19.5 of the ESA assumed by Assignee herein and will
agree and covenant to cause such subsidiary to comply with
such obligations.
5. Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be deemed an original,
but all of which together shall constitute one and the same
instrument.
6. Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Illinois, excluding
conflicts of law provisions.
7. Agreement Binding. This Agreement shall be binding upon the
successors and assigns of the parties hereto. The parties
shall execute and deliver such further and additional
instruments, agreements and other documents as may be
necessary to evidence or carry out the provisions of this
Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties hereto have caused their
duly authorized representative to execute this Amendment as
of the day and year first above written.
"Assignor" NRG ENERGY, INC.
By:/s/ Xxxxx Xxxxxxxxxxx
Name: Xxxxx Xxxxxxxxxxx
Title: Vice President U.S. Business Development
"Assignee" NRGG FUNDING INC.
By:/s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: President & CEO
"NRGG" NRG GENERATING (U.S.) INC.
By:/s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: President
"Equistar" EQUISTAR CHEMICALS LP
By:/s/ Xxxxxx X. Xxxxxxxx
Name: Xxxxxx X. Xxxxxxxx
Title: President
