Exhibit 10.22.2
CONSENT TO ASSIGNMENT
OF
SYSTEM OPERATING AND MAINTENANCE AGREEMENT
This Consent to Assignment (this "Consent") is entered into as May 1,
1996 by ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ Operations, Inc., a Delaware Corporation (the
"Company"), NRG Generating (▇▇▇▇▇▇) Cogeneration Inc. (formerly known as
O'Brien (▇▇▇▇▇▇) Cogeneration, Inc.), a Delaware Corporation ("NRG
▇▇▇▇▇▇"), and Credit Suisse, a bank organized and existing under the laws
of Switzerland, 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
May 1, 1996 by and among (i) NRG ▇▇▇▇▇▇ and NRG Generating (Newark)
Cogeneration Inc. (formerly known as O'Brien (Newark) Cogeneration, Inc.),
a Delaware Corporation ("NRG Newark") (collectively, the "Borrowers"), (ii)
Credit Suisse, 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 and NRG ▇▇▇▇▇▇ have entered into the System
Operating and Maintenance Agreement, dated as of May 1, 1996 (as the same
may be amended, modified or supplemented from time to time, the "Assigned
Agreement"); and
WHEREAS, NRG ▇▇▇▇▇▇ 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 NRG ▇▇▇▇▇▇'▇
obligations under the Credit Agreement; and
WHEREAS, the Company is willing to consent to such assignment and the
grant of a security interest by NRG ▇▇▇▇▇▇ 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:
1. Assignment and Security Interest
As security for the due and punctual performance and payment of all of
NRG ▇▇▇▇▇▇'▇ obligations under the Credit Agreement, NRG ▇▇▇▇▇▇ has
assigned or will assign to Assignee as collateral security, all of NRG
▇▇▇▇▇▇'▇ rights to and under the Assigned Agreement upon the terms set
forth in the Security Agreement (as defined in the Credit Agreement).
2. 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 the 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 representations, warranties,
indemnities and agreements (other than those representations and warranties
expressly made only as of an earlier date) 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.
3. Default and Cure
(a) If NRG ▇▇▇▇▇▇ defaults under the Assigned Agreement the Company
shall, before terminating the Assign Agreement or exercising any other
remedy, give written notice to Agent specifying the default and the steps
necessary to cure the same and Agent or Assignee shall have sixty (60) days
(30 days in the case of a default in payment by NRG ▇▇▇▇▇▇) after receipt
of such notice (or such longer period of time as may be reasonably
necessary under the circumstances, provided that Agent or Assignee is
diligently pursuing such cure) to cure such default or to cause it to be
cured. If Agent and Assignee fail to cure or cause to be cured any such
default within the appropriate period set forth above, the Company shall
have all of its rights and remedies with respect to such default as set
forth in the Assigned Agreement and at law or in equity.
(b) In the event that the Assigned Agreement is terminated by
rejection, or otherwise, during a case in which NRG ▇▇▇▇▇▇ is the debtor
under Title 11, United States Code, or other similar federal state statute,
then the Company shall, at the option of Agent and Assignee and so long as
all existing payment defaults by NRG ▇▇▇▇▇▇ under the Assigned Agreement
are cured by Agent, Assignee or their nominee or designee, enter into a new
Assigned Agreement with 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 of the rights and obligations of NRG ▇▇▇▇▇▇
under the Assigned Agreement.
(c) If Agent notifies the Company in writing that NRG ▇▇▇▇▇▇ has defaulted
under the Credit Agreement and requests that the Company continue
performance under the Assigned Agreement, the Company shall thereafter
perform under the Assigned Agreement in accordance with its terms, so
long as all existing defaults by NRG ▇▇▇▇▇▇ under the Assigned
Agreement are cured by Agent, Assignee or
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their nominee or designee and the obligations of NRG ▇▇▇▇▇▇ thereunder
shall continue to be paid and performed by NRG ▇▇▇▇▇▇, Agent, Assignee
or their nominee or designee.
4. Payments
The Company agrees that until receipt of written notice from Agent
that all obligations of NRG ▇▇▇▇▇▇ under the Credit Agreement have been
fully satisfied, the Company hereby agrees to make all payments due to NRG
▇▇▇▇▇▇ 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.
5. Delivery of Notices
The Company agrees that it will promptly notify Agent of any breach by
NRG ▇▇▇▇▇▇ of any of the terms of the Assigned Agreement and will deliver
to Agent simultaneously with the delivery thereof to NRG ▇▇▇▇▇▇ (i) any
notices delivered pursuant to the Assigned Agreement or otherwise and (ii)
all invoices, budgets, plans and reports delivered pursuant to Article VI
of the Assigned Agreement.
6. Liability of Assignee
The Company acknowledges and agrees that Agent and Assignee have not
assumed and do not have any obligation or liability under or pursuant to
the Assigned Agreement, and that the exercise by Agent or Assignee of its
rights and remedies under the Security Agreement shall not constitute an
assumption of NRG ▇▇▇▇▇▇'▇ obligations under the Assigned Agreement (except
to the extent such obligations shall be expressly assumed by an instrument
in writing executed by the Agent or Assignee).
7. Amendment or Termination of Assigned Agreement
The Company covenants and agrees with Agent that without the prior
written consent of Agent (i) the Company will not materially amend, modify,
terminate (prior to the expiration of the applicable cure periods in
Section 3 hereof) or assign, transfer or encumber any of its interest in
the Assigned Agreement and (ii) no waiver by NRG ▇▇▇▇▇▇ of any of the
obligations of the Company under the Assigned Agreement, and no consent,
approval or election made by .NRG ▇▇▇▇▇▇ in connection with the Assigned
Agreement shall be effective as against Agent and Assignee.
8. Representations and Warranties
The Company hereby represents and warrants to Agent and Assignee as
follows:
(a) The company is a corporation duly organized, validly
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existing and in good standing under the laws of the State of Delaware. The
Company has full power, authority 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, and no default has occurred or exists under the Assigned
Agreement and no event or condition has occurred, or exists and is
continuing which with the lapse of time, the giving of notice, or both
would constitute such a default under the Assigned Agreement.
(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 maybe
limited by general principles of equity and by applicable bankruptcy,
insolvency, moratorium or similar laws affecting creditors rights
generally.
(e) All representations and warranties made by the Company in the
Assigned Agreement were true and correct in all material respects on and as
of the date when made and, except for those that by their terms speak as of
a specific date, are true and correct in all material respects on and as of
this Consent.
(f) No consent, approval, order or authorization of or registration,
declaration of a filing with, or giving of notice to, obtaining of any
license or permit from, or taking any other action with respect to, any
federal, state or local government or public body, authority or agency is
required in connection with the valid authorization, execution, delivery
and performance of this Consent or the Assigned Agreement.
(g) 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
or any of the transactions contemplated hereby or thereby.
(h) 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
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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 or result in the creation of any lien upon any of its properties
or assets.
(i) The Company has not received notice of, or consented to the
assignment of any of NRG ▇▇▇▇▇▇'▇ right, title, or interest in the Assigned
Agreement to any person or entity other than Agent and Assignee.
9. 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:
If to Agent:
Credit Suisse
Tower 49
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Project Finance
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
If to NRG ▇▇▇▇▇▇:
NRG Generating (▇▇▇▇▇▇) Cogeneration Inc.
c/o NRG Energy, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention:
Telecopy:
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If to the Company:
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ Operations, Inc-
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Vice President - North American
Operations
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ Services, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
Attention: Group Vice President - EPS
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
All such notices and communications shall, when mailed, be effective seven
(7) days after being after being deposited in the mail in the manner
aforesaid, or when sent by telecopier, upon receipt thereof.
10. 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).
11. 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.)
12. 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.
13. Counterparts
This Consent may be executed in any number of counterparts, all Of
which counterparts shall together constitute one and the same instrument.
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14. 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.
15. 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.
IN WITNESS WHEREOF, each of the undersigned has duly executed this
Consent as of the date first above written.
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ OPERATIONS, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name:
Title:
NRG GENERATING (▇▇▇▇▇▇) COGENERATION, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
Name:
Title:
Accepted:
CREDIT SUISSE, as Agent
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Associate
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇
Name: ▇▇▇▇▇▇ ▇▇▇▇
Title: Associate
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