Exhibit 10.27.3
ASSIGNMENT AND ASSUMPTION AGREEMENT
This ASSIGNMENT AND ASSUMPTION AGREEMENT, dated as of
December 10, 1997 (this "Agreement"), is made and entered into
by and between NRG ENERGY, INC., a Delaware corporation ("NRG
Energy"), and NRGG FUNDING INC., a Delaware corporation ("NRGG
Funding").
RECITALS
WHEREAS, NRG (Xxxxxx) Xxxxx, LLC (the "Borrower") entered
into the Construction and Term Loan Agreement, dated as of
September 15, 1997 (the "Credit Agreement"), with the banks
party thereto (the "Banks"), The Chase Manhattan Bank as agent
for the Banks (in such capacity, the "Agent Bank") and The
Chase Manhattan Bank as collateral agent for the Banks (in such
capacity, the "Collateral Agent"), pursuant to which the Banks
have agreed to make construction and term loans and extend
other credit to the Borrower for the purpose of financing the
cost of developing, constructing, starting-up and operating an
approximately 117 megawatt gas-fired cogeneration facility in
Morris, Illinois (the "Project");
WHEREAS, as a condition precedent to the Banks, the Agent
Bank and the Collateral Agent entering into the Credit
Agreement and the Banks extending credit to the Borrower
thereunder, NRG Energy executed and delivered the Equity
Commitment Agreement, dated as of September 15, 1997 (the
"Equity Commitment Agreement"), in favor of the Borrower and
the Collateral Agent, pursuant to which NRG Energy agreed to
make equity contributions to the Borrower from time to time;
WHEREAS, pursuant to the Membership Interest Purchase
Agreement, dated as of the date hereof (the "Purchase
Agreement"), NRG Energy is transferring all of its equity
interest in the Borrower to NRGG Funding;
WHEREAS, upon execution and delivery of the Purchase
Agreement, NRGG Funding will own 99% of the membership
interests in the Borrower and, accordingly, will derive
substantial benefit from the extension of credit by the Banks
to the Borrower under the Credit Agreement; and
WHEREAS, it is condition precedent to the Banks continuing
to extend credit to the Borrower under the Credit Agreement
that NRG Energy and NRGG Funding execute and deliver this
Agreement, the form and substance of which must be consented to
by the Required Banks;
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and for
other good and valuable consideration, the receipt and adequacy
of which are hereby acknowledged, the parties hereto hereby
agree as follows:
ARTICLE I
DEFINED TERMS; PRINCIPLES OF CONSTRUCTION
Section 1.1 Defined Terms. (a) Unless otherwise defined
herein, capitalized terms used in this Agreement shall have the
meanings given to such terms in the Equity Commitment Agreement
(including terms incorporated therein from the Credit
Agreement).
(b) The following terms shall have the following
respective meanings:
"Amended LLC Agreement" shall have the meaning given
to the term "LLC Agreement" in the Pledge Agreement.
"Equity Guarantee" shall mean the Equity Commitment
Guaranty, dated as of the date hereof, by NRG Energy in favor
of the Borrower and the Collateral Agent.
"First Amendment to the Credit Agreement" shall mean
the Amendment and Consent, dated as of the date hereof, among
the Borrower and the Banks.
"NRGG Documents" shall mean, collectively, the NRGG
Financing Documents and the NRGG Purchase Documents.
"NRGG Financing Documents" shall mean this Agreement,
the Equity Commitment Agreement, the Equity Guarantee, the
Pledge Agreement, the Subordination Agreement, the First
Amendment to the Credit Agreement and the Financing Statements
(as defined under the Pledge Agreement) filed in connection
with the Liens granted to the Collateral Agent in the Pledge
Agreement.
"NRGG Purchase Documents" shall mean the Purchase
Agreement, the Amended LLC Agreement, the Supplemental Loan
Agreement and the Subordinated Pledge Agreement.
"Pledge Agreement" shall mean the Pledge and Security
Agreement, dated as of the date hereof, among NRGG Funding, NRG
MI and the Collateral Agent.
"Purchase Agreement" shall mean the Membership
Interest Purchase Agreement, dated as of the date hereof,
between NRG Energy, NRG Generating and NRGG Funding.
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"Subordinated Pledge Agreement" shall mean the
Subordinated Pledge and Security Agreement, dated as of the
date hereof, among NRGG Funding, NRG MI and NRG Energy.
"Subordination Agreement" shall mean the
Subordination Agreement, dated as of the date hereof, between
NRG Energy and the Collateral Agent.
"Supplemental Loan Agreement" shall mean the
Supplemental Loan Agreement, dated as of the date hereof,
between NRG Energy and NRGG Funding.
Section 1.2 Principles of Construction. Unless otherwise
expressly provided herein, the principles of construction set
forth in Section 1.4 of the Credit Agreement shall apply to
this Agreement.
ARTICLE II
ASSIGNMENT AND ASSUMPTION; ACKNOWLEDGMENT
Section 2.1 Assignment and Assumption. NRG Energy hereby
assigns, conveys and transfers all of NRG Energy's estate,
right, title and interest in, to and under the Equity
Commitment Agreement to NRGG Funding and NRGG Funding hereby
assumes all liabilities, obligations and duties thereunder.
Section 2.2 Acknowledgment and Consent. By executing
this Agreement, the parties hereto acknowledge, consent and
agree that, upon the satisfaction of the conditions set forth
in Article IV of this Agreement, NRG Energy shall be released
from all liabilities, obligations and duties under the Equity
Commitment Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
NRGG Funding represents and warrants as follows, which
representations and warranties shall survive the execution and
delivery of this Agreement:
Section 3.1 Due Incorporation; Qualification. NRGG
Funding is a corporation duly organized and validly existing
under the Laws of the State of Delaware, and is qualified to
own property and transact business in every jurisdiction where
the ownership of its property and the nature of its business as
currently conducted and as contemplated to be conducted
requires it to be qualified, except where the failure to so
qualify could not reasonably be expected to result in a
Material Adverse Effect (as herein defined). For purposes of
this Agreement, "Material Adverse Effect" shall mean a material
adverse effect on any of (i) the operations, business,
financial condition or property of NRGG Funding and its
subsidiaries on a consolidated basis, (ii) the ability of NRGG
Funding to perform in a timely manner its material obligations
under the NRGG Documents to which
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it is or is intended to be a party or (iii) the rights and
interests of the Banks, the Agent Bank and the Collateral Agent
under the Transaction Documents.
Section 3.2 Authority; Authorization, Execution and
Delivery; Enforceability. NRGG Funding has full power,
authority and legal right to enter into this Agreement and the
other NRGG Documents to which it is or is intended to be a
party and to perform its obligations hereunder and thereunder.
The execution, delivery and performance of the NRGG Documents
to which NRGG Funding is or is intended to be a party have been
duly authorized by all necessary corporate action on the part
of NRGG Funding. The NRGG Documents to which NRGG Funding is
or is intended to be a party have been duly executed and
delivered by NRGG Funding and constitute legal, valid and
binding obligations of NRGG Funding enforceable against NRGG
Funding in accordance with their terms, except as
enforceability may be limited by applicable bankruptcy,
insolvency, moratorium or other similar Laws affecting
creditors' rights generally and except as enforceability may be
limited by general principles of equity (whether considered in
a suit at law or in equity).
Section 3.3 Consents; Governmental Approvals. No consent
of any other party (including, without limitation, stockholders
or creditors of NRGG Funding) and no Governmental Approval is
required which has not been obtained for the execution,
delivery and performance by NRGG Funding of the NRGG Documents
to which it is or is intended to be a party, other than any
consent or Governmental Approval not required as of the date
this representation is made or deemed made and that will be
obtained on or before the date on which such consent or
Governmental Approval is required to be obtained.
Section 3.4 No Conflicts. The execution, delivery and
performance by NRGG Funding of the NRGG Documents to which it
is or is intended to be a party will not (i) require any
consent or approval of the Board of Directors of NRGG Funding
which has not been obtained, (ii) violate the provisions of
NRGG Funding's certificate of incorporation or bylaws, (iii)
violate the provisions of any Law (including, without
limitation, any usury Laws), regulation or order of any
Governmental Authority applicable to NRGG Funding, (iv) result
in a breach of or constitute a default under any material
agreement relating to the management or affairs of NRGG
Funding, or any indenture or loan or credit agreement or any
other material agreement, lease or instrument to which NRGG
Funding is or is intended to be a party or by which NRGG
Funding or any of its material properties may be bound or (v)
result in or create any Lien (other than Permitted Liens)
under, or require any consent which has not been obtained
under, any indenture or loan or credit agreement or any other
material agreement, instrument or document, or the provisions
of any order, writ, judgment, injunction, decree, determination
or award of any Governmental Authority binding upon NRGG
Funding or any of its properties.
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Section 3.5 Litigation. No Event of Bankruptcy has
occurred with respect to NRGG Funding and there is no action,
suit or proceeding at Law or in equity or by or before any
Governmental Authority, arbitral tribunal or other body now
pending against NRGG Funding or, to the best knowledge of NRGG
Funding, threatened against NRGG Funding which questions the
validity or legality of or seeks damages in connection with the
NRGG Documents to which NRGG Funding is or is intended to be a
party.
Section 3.6 Compliance with Laws. NRGG Funding has been
in the past and is in current compliance with all Laws
applicable to it, except where failure to comply could not
reasonably be expected to result in a Material Adverse Effect
(as defined in Section 3.1 hereof).
Section 3.7 Financial Statements. The financial
statements of NRGG Funding provided or to be provided as
contemplated in Section 4.5 hereof or in any other Financing
Document are or will be true, correct and complete as of the
dates specified therein and fully and accurately present the
financial condition of NRGG Funding as of the dates and for the
periods specified. There has been no material adverse change
in the financial condition of NRGG Funding from the date of
NRGG Funding's most recent audited financial statements
delivered to the Agent Bank (except as heretofore disclosed to
the Agent Bank in a writing delivered by or on behalf of NRGG
Funding).
Section 3.8 Regulation. NRGG Funding is not (a) an
"investment company" or a company "controlled" by an
"investment company," within the meaning of the ICA. NRGG
Funding is a "subsidiary company" of a "holding company," as
those terms are defined in PUHCA, but NRGG Funding is exempt
from all provisions of PUHCA except Section 9(a) thereof by
virtue of Section 3(a)(2) thereof. NRGG Funding is not a
"public utility" or similar entity under applicable federal or
state Law.
ARTICLE IV
CONDITIONS PRECEDENT
The release of NRG Energy of its liabilities, obligations
and duties under the Equity Commitment Agreement is subject to
the following conditions precedent:
Section 4.1 NRGG Financing Documents. The Agent Bank
shall have received each NRGG Financing Document (together with
all amendments, supplements, schedules and exhibits thereto),
each of which (a) shall have been duly authorized, executed and
delivered by each Person party thereto (other than the Agent
Bank, the Collateral Agent and the Banks), (ii) shall be in
form and substance reasonably satisfactory to each Bank and
(iii) shall be in full force and effect. All representations
and warranties contained in each NRGG Financing Document shall
be true and correct in all material respects and no default or
event of default shall have occurred thereunder.
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Section 4.2 NRGG Purchase Documents. The Agent Bank
shall have received copies of each NRGG Purchase Document
(together with all amendments, supplements, schedules and
exhibits thereto), each of which (a) shall have been duly
authorized, executed and delivered by each Person party thereto
(other than the Agent Bank, the Collateral Agent and the
Banks), (ii) shall be in form and substance reasonably
satisfactory to the Agent Bank and (iii) shall be in full force
and effect. All representations and warranties contained in
each NRGG Purchase Document shall be true and correct in all
material respects and no default or event of default shall have
occurred thereunder.
Section 4.3 Pledged Collateral. Pursuant to the terms of
the Pledge Agreement, the Liens on the Pledged Collateral (as
defined in the Pledge Agreement) shall have been duly created
or attached and such Liens shall have been perfected to create
a first priority security interest in and charge over the
Pledged Collateral (as defined in the Pledge Agreement) in
favor of the Collateral Agent for the benefit of itself and the
other Secured Parties. All Taxes, fees and other charges
payable in connection therewith shall have been paid in full by
NRGG Funding or the Borrower.
Section 4.4 Corporate Documents. The Agent Bank shall
have received each of the following in form and substance
satisfactory to it:
(a) a certificate of an Authorized Officer of NRGG
Funding, dated as of the date hereof, certifying as true,
complete and correct attached copies of (i) the
certificate of incorporation of NRGG Funding, (ii) the
bylaws of NRGG Funding and (iii) the resolutions of the
board of directors of NRGG Funding approving and
authorizing the execution, delivery and performance of the
NRGG Documents to which NRGG Funding is or is intended to
be a party;
(b) a certificate of an Authorized Officer of NRGG
Funding, dated as of the date hereof, certifying the names
and true signatures of the incumbent officers of NRGG
Funding authorized to sign the NRGG Documents to which
NRGG Funding is or is intended to be a party; and
(c) evidence that NRGG Funding is duly authorized to
carry on its business as now being conducted by it, and as
proposed to be conducted by it, in each jurisdiction in
which it is required to be so authorized.
Section 4.5 Financial Statements. The Agent Bank shall
have received true, correct and complete copies of the audited
financial statements for the most recently completed fiscal
year of NRGG Funding.
Section 4.6 Legal Opinions. The Agent Bank shall have
received (a) an opinion of counsel to NRGG Funding
substantially in the form of Exhibit A hereto and otherwise in
form and substance satisfactory to the Agent Bank and (b) an
opinion of counsel to
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NRG Energy substantially in the form of Exhibit B hereto and
otherwise in form and substance satisfactory to the Agent Bank.
Section 4.7 Appointment of Agent. NRGG Funding shall
have appointed an agent for service of process on terms
satisfactory to the Agent Bank and shall have paid all fees
necessary for such process agent to act as such through the
Final Maturity Date.
ARTICLE V
MISCELLANEOUS
Section 5.1 Notices. NRGG Funding's address and
telephone and telecopier numbers for the provision of notices
under each NRGG Document to which it is or is intended to be a
party are as follows:
NRGG Funding Inc.
0000 Xxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxxx, XX 00000
Attention: President and Chief Executive
Officer
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Section 5.2 Third Party Beneficiaries. The agreements of
the parties hereto are intended to benefit the Banks, the Agent
Bank and the Collateral Agent and their respective successors
and assigns.
Section 5.3 Severability. In case any provision in or
obligation under this Agreement shall be invalid, illegal or
unenforceable in any jurisdiction, the validity, legality and
enforceability of the remaining provisions or obligations, or
of such provision or obligation in any other jurisdiction,
shall not in any way be affected or impaired thereby.
Section 5.4 Counterparts. This Agreement may be executed
in any number of counterparts and by the different parties
hereto on separate counterparts, each of which when so executed
and delivered shall be an original, but all of which shall
together constitute one and the same instrument.
Section 5.5 Headings Descriptive. The headings of the
several Sections of this Agreement are inserted for convenience
only and shall not in any way affect the meaning or
construction of any provision of this Agreement.
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Section 5.6 Governing Law. This Agreement is a contract
made under the Laws of the State of New York of the United
States and shall for all purposes be governed by and construed
in accordance with the Laws of such State without regard to the
conflict of law rules thereof (other than Section 5-1401 of the
New York General Obligations Law).
Section 5.7 Entire Agreement. This Agreement, together
with any other agreement executed in connection herewith, is
intended by the parties as a final expression of their
agreement as to the matters covered hereby and is intended as a
complete and exclusive statement of the terms and conditions
thereof.
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IN WITNESS WHEREOF, the parties hereto have caused
this Assignment and Assumption Agreement to be duly executed
and delivered by their officers thereunto duly authorized as of
the date first above written.
NRG ENERGY, INC.
By:/s/ Xxxxx X. Xxxxxxxx
Name: Xxxxx X. Xxxxxxxx
Title: President
NRGG FUNDING INC.
By: /s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: VP-CFO
Acknowledged and consented to:
THE CHASE MANHATTAN BANK,
as a Bank
By: /s/ Xxxxx X. X'Xxxxx
Name: Xxxxx X. X'Xxxxx
Title: Vice President
THE CHASE MANHATTAN BANK,
as Agent Bank
By: /s/ Xxxxx X. X'Xxxxx
Name: Xxxxx X. X'Xxxxx
Title: Vice President
THE CHASE MANHATTAN BANK,
as Collateral Agent
By: /s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Assistant Vice President
Acknolwedged and consented to:
THE BANK OF NEW YORK
By: /s/ Xxxx X. Xxxxx
Name: Xxxx X. Xxxxx
Title: Vice President
NATEXIS BANQUE
By: /s/ D.J.R. Xxxxx
Name: D.J.R. Xxxxx
Title: First VP
THE SUMITOMO TRUST AND BANKING COMPANY, LTD.
By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Senior Vice President
Exhibit A to
Assignment and Assumption Agreement
FORM OF OPINION OF COUNSEL TO NRGG FUNDING
1. NRGG Funding Inc. (the "Company") is a
corporation duly organized and validly existing under the laws
of the State of Delaware and is qualified to do business in
each jurisdiction in which such qualification is required.
2. The Company has the corporate or other applicable
power and authority and full legal right to execute and deliver
each of the NRGG Documents to which it is a party and to
perform its obligations thereunder.
3. The execution, delivery and performance by the
Company of each NRGG Document to which it is a party have been
duly authorized by all requisite action on the part of the
Company.
4. Each of the NRGG Documents to which the Company
is a party has been duly executed and delivered by the Company.
5. Neither the execution and delivery by the Company
of each NRGG Document to which it is a party, nor the
performance by it of its obligations under each such NRGG
Document, contravenes or conflicts with (i) its Certificate of
Incorporation, or other applicable constituent documents, as
the case may be, (ii) any agreement or instrument (including,
without limitation, each other NRGG Document) to which it is a
party or by which its properties or assets are bound and (iii)
any judicial or administrative judgment, injunction, order or
decree that is binding upon it or its properties or assets.
6. No order, consent, approval, license,
authorization or validation of, or filing, recording or
registration with, or exemption by, any court, governmental
body or authority, or any subdivision thereof, is required to
authorize or is required in connection with the execution and
delivery by the Company of any NRGG Document to which it is a
party, or in connection with the performance of its obligations
thereunder or the consummation of the transactions contemplated
thereby other than those that have been obtained or made and
are in full force and effect or will be obtained or made prior
to the time the same is required and thereafter remains in full
force and effect.
7. Each of the NRGG Documents to which the Company
is a party constitutes a valid and binding obligation of the
Company enforceable against the Company in accordance with its
terms.
8. Neither the execution, delivery and performance
by the Company of each of the NRGG Documents to which it is
party, nor the consummation by the Company of the transactions
contemplated therein, violates any Applicable Laws.
9. All Government Approvals which under Applicable
Laws are required to be obtained or made by the Company in
connection with the due execution and delivery of, or
performance by the Company of its obligations under, each of
the NRGG Documents to which it is party have been obtained or
made.
This opinion may be relied upon by the Banks,
the Agent Bank, the Collateral Agent and any assignees of
or participants in the interests of the Banks under the
Credit Agreement.
Exhibit B to
Assignment and Assumption Agreement
FORM OF OPINION OF COUNSEL TO NRG ENERGY
1. NRG Energy, Inc. (the "Company") is a corporation
duly organized and validly existing under the laws of the State
of Delaware and is qualified to do business in each
jurisdiction in which such qualification is required.
2. The Company has the corporate or other applicable
power and authority and full legal right to execute and deliver
each of the NRGG Documents to which it is a party and to
perform its obligations thereunder.
3. The execution, delivery and performance by the
Company of each NRGG Document to which it is a party have been
duly authorized by all requisite action on the part of the
Company.
4. Each of the NRGG Documents to which the Company
is a party has been duly executed and delivered by the Company.
5. Neither the execution and delivery by the Company
of each NRGG Document to which it is a party, nor the
performance by it of its obligations under each such NRGG
Document, contravenes or conflicts with (i) its Certificate of
Incorporation, or other applicable constituent documents, as
the case may be, (ii) any agreement or instrument (including,
without limitation, each other NRGG Document) to which it is a
party or by which its properties or assets are bound and (iii)
any judicial or administrative judgment, injunction, order or
decree that is binding upon it or its properties or assets.
6. No order, consent, approval, license,
authorization or validation of, or filing, recording or
registration with, or exemption by, any court, governmental
body or authority, or any subdivision thereof, is required to
authorize or is required in connection with the execution and
delivery by the Company of any NRGG Document to which it is a
party, or in connection with the performance of its obligations
thereunder or the consummation of the transactions contemplated
thereby other than those that have been obtained or made and
are in full force and effect or will be obtained or made prior
to the time the same is required and thereafter remains in full
force and effect.
7. Each of the NRGG Documents to which the Company
is a party constitutes a valid and binding obligation of the
Company enforceable against the Company in accordance with its
terms.
8. Neither the execution, delivery and performance
by the Company of each of the NRGG Documents to which it is
party, nor the consummation by the Company of the transactions
contemplated therein, violates any Applicable Laws.
9. All Government Approvals which under Applicable
Laws are required to be obtained or made by the Company in
connection with the due execution and delivery of, or
performance by the Company of its obligations under, each of
the NRGG Documents to which it is party have been obtained or
made.
This opinion may be relied upon by the Banks, the
Agent Bank, the Collateral Agent and any assignees of or
participants in the interests of the Banks under the Credit
Agreement.
