ASSIGNMENT AND ASSUMPTION AGREEMENT
ASSIGNMENT AND ASSUMPTION AGREEMENT, dated as of May 28, 1998
(this "ASSIGNMENT AGREEMENT"), by and between LONG ISLAND LIGHTING
COMPANY, a New York corporation ("LILCO"), MARKETSPAN GENERATION LLC, a
New York limited liability company formerly known as BL GENERATION LLC
("Genco") and MARKETSPAN CORPORATION, a New York corporation formerly
known as BL HOLDING CORP. ("MKT"), and acknowledged and agreed to by LONG
ISLAND POWER AUTHORITY, a corporate municipal instrumentality and
political subdivision of the State of New York ("LIPA") and LIPA
ACQUISITION CORP., a New York corporation and a wholly owned subsidiary
of LIPA ("LIPA Sub").
WITNESSETH
WHEREAS, LIPA, LILCO, MKT and LIPA Sub are parties to that
certain Agreement and Plan of Merger, dated as of June 26, 1997 (the
"Merger Agreement");
WHEREAS, in connection with the transactions contemplated by the
Merger Agreement, LIPA and LILCO entered into a Power Supply Agreement,
dated as of June 26, 1997 (as amended and supplemented up to and
including the Closing Date as therein defined, the "PSA"), Section 21.3
of which provided that, effective upon the Closing Date, LILCO shall
assign all of its rights, obligations and interests thereunder to MKT or
any affiliate thereof;
WHEREAS, MKT hereby directs LILCO to assign to Genco, its
wholly-owned subsidiary, all rights, obligations and interests under the
PSA to be assigned pursuant to Section 21.3 thereof;
WHEREAS, in connection with the Merger Agreement and in
accordance with the requirements of Section 21.3 of the PSA, MKT will,
prior to the Effective Time (as defined in the Merger Agreement),
execute a Guaranty Agreement, in substantially the form of the Guaranty
Agreement attached to the Merger Agreement as Exhibit E, pursuant to
which MKT will, among other things, guarantee the obligations of Genco
under the PSA;
NOW THEREFORE, in consideration of the premises, the covenants
and agreements contained herein, and for other good and valuable
consideration, the receipt of which is hereby acknowledged, the parties
hereto, intending to be legally bound hereby, agree as follows:
1. Definitions. Capitalized terms used herein and not otherwise
defined herein have the respective meanings given in the Merger
Agreement.
2. Assignment by LILCO to Genco. Pursuant to the direction of MKT,
LILCO hereby assigns to Genco all of its rights, obligations
and interests under the PSA.
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3. Assumption of Liabilities and Obligations by Genco. Genco hereby agrees
to assume all liabilities and obligations of LILCO under the PSA.
4. Substitution of Genco Where LILCO Appears. The PSA is hereby deemed
amended, such that Genco is substituted for LILCO as a named party,
as the context may indicate, for all purposes under the PSA and all
references to LILCO in the PSA shall be deemed to refer to Genco.
5. Acknowledgment by LIPA and LIPA Sub of Assumption, Assignment and
Substitution. LIPA and LIPA Sub each hereby acknowledge and confirm
that all of the liabilities, obligations, benefits and rights of
LILCO under the PSA shall inure hereby to the benefit of Genco under
the PSA.
6. Counterparts. This Assignment Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but
all of which shall constitute one and the same agreement.
IN WITNESS WHEREOF, LILCO, LIPA, LIPA Sub, MKT and Genco have caused
this Assignment Agreement to be signed by their respective officers thereunto
duty authorized as of the date first written above.
LONG ISLAND LIGHTING COMPANY MARKETSPAN GENERATION LLC
By: /s/ Xxxxxxx X. Xxxxxxx By: /s/ Xxxxxx X. Xxxxxxx
_______________________ _______________________
Name: Xxxxxxx X. Xxxxxxx Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President/General Counsel Tile: Vice President
MARKETSPAN CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx
______________________
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
Acknowledged and Agreed to by:
LONG ISLAND POWER AUTHORITY LIPA ACQUISITION CORP.
By: /s/ Xxxx Xxxxxxxx By: /s/ Xxxx Xxxxxxxx
_______________________ _______________________
Name: Xxxx Xxxxxxxx Name: Xxxx Xxxxxxxx
Title: Executive Director Title: Executive Director
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