Exhibit 10.4
MANAGEMENT SERVICES AGREEMENT
THIS MANAGEMENT SERVICES AGREEMENT is entered into on, and effective as of,
the Effective Date (as hereinafter defined) by and between NRG ENERGY,
INC., a Delaware corporation (the "Manager") and NRG GENERATING (U.S.)
INC., a Delaware corporation (the "Company").
R E C I T A L S
1. Pursuant to the Plan of Reorganization (as hereinafter defined), the
Manager acquired 41.86% of the issued and outstanding shares of capital
stock of reorganized O'Brien Environmental Energy, Inc., which has been
renamed "NRG Generating (U.S.) Inc."
2. In connection with the Plan of Reorganization, the Manager has agreed
to provide management, administrative and certain other services to the
Company in connection with the day to day business of the Company.
A G R E E M E N T
In consideration of the premises and the covenants, conditions, and
agreements contained herein, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties
hereto agree as follows:
ARTICLE I
Definitions
1.1. Definitions. The following terms shall have the indicated meanings
for the purposes of this Agreement:
"Affiliates" shall have the meaning given to such term in Rule 12b-2
issued under the Securities and Exchange Act of 1934, as amended.
"Administrative and General Expenditures" shall mean all
administrative and general expenditures, including (i) salaries and
related benefits and expenses of personnel who render Services,
(ii) charges related to the computer and telecommunications services
(both voice and data) that support the provision of such Services and
(iii) the administrative fee charged by the Manager or its Affiliates
to manage, administer and bill for third-party contracts related to
the provision of Services hereunder, but the term "Administrative and
General Expenditures" shall not include charges related to the
Manager's or its Affiliate's senior executive management.
Administrative and General Expenditures shall be allocated to the
Company in a fair and reasonable manner.
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"Agreement" shall mean this Management Services Agreement.
"Bankruptcy Code" -- Title 11 of the United States Code, 101, et
seq, as now or hereafter in effect, or any successor statute thereto.
"Bankruptcy Event" -- If, with respect to any Person, (a) such
Person generally is unable to pay such Person's debts as such debts
become due, or admits in writing such Person's inability to pay such
Person's debts generally, or makes a general assignment for the
benefit of such Person's creditors; or (b) any proceeding is
instituted by or against such Person under any Bankruptcy Law seeking
to adjudicate such Person as bankrupt or insolvent, or seeking
liquidation, winding-up, reorganization, rearrangement, adjustment,
protection, relief or recomposition of such Person or such Person's
debts, or seeking the entry of an order for relief or the appointment
of a receiver, trustee, or other similar official for such Person or
for all or substantially all of such Person's property and, in the
case of any such proceeding instituted against such Person (but not
instituted by or with the consent of such Person), is not
controverted within 20 days and is not dismissed or stayed for a
period of 60 days after such proceeding is filed.
"Bankruptcy Law" -- The Bankruptcy Code and any other applicable
federal, state, local or foreign insolvency, reorganization,
moratorium, fraudulent conveyance or similar Law now or hereafter in
effect for the relief of debtors.
"Company Securities" shall mean the shares of Common Stock of the
Company and any additional securities issued by the Company from time
to time, if any such additional securities are issued.
"Effective Date" shall mean the Effective Date of the Plan of
Reorganization.
"Independent Committee" shall mean the Independent Committee of
the Board of Directors of the Company as defined in the Bylaws of the
Company.
"Outsource" shall mean to cause a Service to be provided by a
third-party provider which is not an Affiliate of the Manager.
"Outsourced Services" shall mean those services which the Manager
Outsources to third-party providers which are not affiliates of the
Manager.
"Plan of Reorganization" shall mean the Chapter 11 plan of
reorganization for O'Brien Environmental Energy, Inc. proposed by the
Manager and certain other parties.
"Person" shall mean any individual, corporation, company,
voluntary association, partnership, joint venture, trust,
unincorporated organization, governmental authority or any other form
of entity.
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"Services" shall have the meaning set forth in Section 2.1.
1.2 Terminology. Unless the context of this Agreement clearly requires
otherwise, (a) pronouns, wherever used herein, and of whatever gender, will
include natural persons and corporations and associations of every kind and
character, (b) the word "included" or "including" will mean "including
without limitation", (c) the word "or" will have the inclusive meaning
represented by the phrase "and/or", (d) the words hereof, herein,
hereunder, and similar terms in this Agreement will refer to this Agreement
as a whole and not any particular section or article in which such words
appear and (e) all terms defined in this Agreement in the singular will
have the same meaning when used in the plural and vice versa. The section,
article and other headings in this Agreement and the Table of Contents to
this Agreement are for reference purposes and will not control or affect
the construction of this Agreement or the interpretation hereof in any
respect. Article, section and subsection references are to this Agreement
unless otherwise specified.
ARTICLE II
Services
2.1 General. The Company hereby appoints and retains the Manager, and the
Manager accepts the appointment, to provide to the Company and its
subsidiaries certain Services in accordance with the terms of this
Agreement. At the Manager's election, it may cause one or more of its
Affiliates or third-party contractors to provide the Services; provided,
however, that the Manager shall remain responsible for the provision of the
Services in accordance with this Agreement. Whenever services are to be
rendered by a third party contractor, the Manager shall cause such third-
party contractor to be engaged directly by the Company. The Independent
Committee will have the sole authority and responsibility to make all
decisions and take all actions on behalf of Generating under this
Agreement.
2.2 Services. The Manager shall provide all services (the "Services")
necessary to manage and administer the day to day business of the Company,
including the following:
2.2.1 General Management and Administration. The Manager
shall be responsible for the management, administration and support of
all of the businesses of the Company or any subsidiary.
2.2.2 Administration of Agreements. The Manager shall
administer all of the obligations and responsibilities of the Company
and its subsidiaries under all agreements to which the Company or any
of its subsidiaries is a party, subject to the availability of funds
therefor in the Company's accounts established pursuant to
Section 2.2.4.
2.2.3 Billing and Collection of Revenues. The Manager shall
implement and maintain billing and collection procedures in respect of
all accounts payable and other amounts due the Company or any of its
subsidiaries.
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2.2.4 Bank Accounts. The Manager shall establish and
maintain on behalf of and in the name of the Company and its
subsidiaries one or more bank accounts as required or convenient in
connection with the business of the Company and its subsidiaries.
2.2.5 Accounting and Documentation. The Manager shall
provide full bookkeeping and accounting services to the Company and
its subsidiaries as required from time to time and, to the extent
pertaining to matters within the knowledge and control of the Manager,
shall prepare and submit on behalf of the Company and its subsidiaries
all necessary documentation, certification and notices required to be
submitted by the Company or its subsidiaries pursuant to any
agreements or otherwise.
2.2.6 Licenses and Permits. The Manager shall maintain
compliance with all required permits, licenses and governmental
approvals obtained by or for the Company or its subsidiaries in
connection with the operation of their respective businesses. Where
permits must be obtained, modified or renewed by the Company and such
responsibility has not been delegated to a third party, the Manager
shall prepare any application, filing or notice related thereto, shall
cause such materials to be submitted to, and shall represent the
Company or the relevant subsidiary in contacts with, the appropriate
governmental agency, and shall perform all ministerial or
administrative acts necessary for timely issuance and the continued
effectiveness thereof. Copies of all permits, licenses and
governmental approvals obtained by or for the Company or its
subsidiaries shall be maintained by the Manager at its offices.
2.2.7 Public Relations. The Manager shall be responsible for
all public and community relations matters of the Company and its
subsidiaries.
2.2.8 Tax Matters. The Manager shall provide the services
necessary to provide required tax information for holders of the
Company Securities and prepare tax returns, if any are required with
respect to the Company and its subsidiaries.
2.2.9 Registration and Transfer of The Company Securities.
The Manager shall cause the registration and transfer of the Company
Securities issued by the Company and replacement of mutilated,
destroyed, lost or stolen certificates representing the Company
Securities including handling of any necessary interaction with
American Stock Transfer and Trust Company, or its successor, as
transfer agent.
2.2.10 SEC Filings. The Manager shall assist in connection
with the Company's obligation to prepare any and all filings required
to be made with the Securities and Exchange Commission pursuant to the
Securities Act of 1933, as amended, or the Securities Exchange Act of
1934, as amended, or other filing and reporting obligations of other
regulatory agencies, or the American Stock Exchange or
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other applicable securities exchange pursuant to the laws, rules and
regulations governing the same, and in the preparation and
distribution of all materials required to be delivered to the holders
of the Company Securities pursuant to such laws or regulations.
2.2.11 Investor Relations. The Manager shall handle all
investor relations matters of the Company and its subsidiaries,
including the preparation of documents, responses to all inquiries
from holders of the Company Securities, analysts or potential
investors and the preparation and issuance of press releases.
2.2.12 Insurance. To the extent permitted by the Manager's
insurers, the business, properties and assets of the Company and its
subsidiaries shall be insured under the Manager's policies in effect
from time to time or separate policies arranged by the Manager. The
Manager shall provide the Company and its subsidiaries with risk
management services.
2.2.13 Audit. The Manager shall assist the Company and its
subsidiaries with negotiating services for both internal and contract
audit functions.
2.3 Personnel. The Manager shall provide and make available as necessary
all professional, supervisorial, managerial, administrative and other
personnel as are necessary to perform the Services. Such personnel shall
be qualified and experienced in the duties to which they are assigned. The
working hours, rates of compensation and all other matters relating to the
employment of individuals employed by the Manager or its Affiliates in the
performance of the Services shall be determined solely by the Manager or
its respective Affiliates. In the performance of the Services, the Manager
also shall be authorized to obtain on behalf of the Company outside
accounting, tax, legal, engineering, and other services as it reasonably
deems necessary.
2.4 Standards for Performance of Services. The Manager shall, and shall
cause its Affiliates to, perform the Services with reasonable diligence and
dispatch in a prudent, cost effective and efficient manner, in accordance
with all applicable laws, regulations, codes, permits, licenses, and
standards, and in accordance with the applicable terms and conditions of
the Company's contracts. The Manager shall not carry out any transaction
or enter into any contract or agreement on behalf of the Company or any
subsidiary hereunder with any Affiliate of the Manager except on terms no
less favorable to the Company or such subsidiary than would be available in
a bona fide arm's length transaction with a non-affiliated person. The
Manager alone may determine whether or not to Outsource a Service.
2.5 Right to Request Instruction. At any time, the Manager may, if it
reasonably deems it to be necessary or appropriate, request written
instructions from the Independent Committee, within a reasonable period
prior to the necessity for taking action, with respect to any matter
contemplated by this Agreement and may defer action thereon pending the
receipt of such written instructions. Actions taken by the Manager, its
Affiliates or its or their officers, employees and representatives in
accordance with the
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written instructions of the Independent Committee, or, except in cases of
the Manager's or such Affiliate's gross negligence or willful misconduct,
failures to act by such persons pending the receipt of such written
instructions, shall be deemed to be proper conduct within the scope of the
Manager's authority under this Agreement.
ARTICLE III
Payment
3.1 Payment. The Company, in consideration for the performance of the
Services by or on behalf of the Manager, agrees to reimburse the Manager
for (i) all expenses actually incurred by the Manager relating to the
Services provided by the Manager hereunder to the Company or its
subsidiaries, including all Administrative and General Expenditures
("Direct Charges"), (ii) the actual cost of any item purchased for the
Company or such subsidiary by the Manager or its Affiliates ("Operating
Charges"), and (iii) all expenses actually incurred by the Manager or its
Affiliates for Outsourced Services or other contract services or utilities
provided by any third-party providers for the Company or its subsidiaries
under an agreement between the Manager or is Affiliates and such third
party ("Outsourced Charges"). If the compensation for the Services does
not include sales, use, excise, value added or similar taxes, and if any
such taxes are imposed on the Services, the Company shall pay or reimburse
the Manager for any such taxes.
3.2 Invoicing.
A. The Manager shall invoice, or cause its Affiliates to
invoice, the Company by the 15th day of each month for all Direct
Charges and Operating Charges with respect to the preceding month and
any adjustments that may be necessary to correct prior invoices. The
Manager shall invoice, or cause its Affiliates to invoice, the Company
by the 15th day of the month following receipt of an invoice from a
third-party contractor for Outsourced Charges for Services provided
hereunder and any adjustments that may be necessary to correct prior
invoices. All invoices shall reflect in reasonable detail a
description of the Services performed during the preceding month and
documentation available to the Manager backing up invoiced charges and
shall be due and payable on the last day of the month of the relevant
invoice in cash by wire transfer or check to an account or accounts
designated by the Manager. In the event of a default in payment by
the Company, upon thirty (30) days' written notice to the Company,
sent by certified mail to the address specified below, the Manager may
terminate this Agreement as to those Services which relate to the
unpaid portion of the invoice if it has not received payment within
such thirty (30) days; provided, however, in the event of a dispute as
to the propriety of invoiced amounts, the Company shall pay all
undisputed amounts on each invoice, but shall be entitled to withhold
payment of any amount in dispute and shall notify the Manager within
ten (10) business days from receipt of the invoice of the disputed
amount and the reasons each such charge is disputed by the Company.
The Manager shall promptly provide the Company with records relating
to the disputed amount so as to
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enable the parties to resolve the dispute. So long as the parties are
attempting in good faith to resolve the dispute, the Manager shall not
be entitled to terminate the Services related to and by reason of the
disputed charge.
B. Any statement or payment not disputed in writing by either
party within two years of the date of such statement or payment shall
be considered final and no longer subject to adjustment. The Company
shall not be obligated to pay for any Direct Charges, Operating
Charges or Outsourced Charges for which statements for payment are
submitted more than two years after the termination of this Agreement.
ARTICLE IV
Limited Warranty; Limitation of Liability
ALL PRODUCTS OBTAINED FOR THE COMPANY ARE AS IS, WHERE IS, WITH ALL FAULTS.
SUBJECT TO THE MANAGER'S AND ITS AFFILIATES RESPONSIBILITIES SET FORTH IN
SECTION 2.4 HEREOF, THE MANAGER AND ITS AFFILIATES MAKE NO (AND HEREBY
DISCLAIM AND NEGATE ANY AND ALL) REPRESENTATIONS AND WARRANTIES, EXPRESS OR
IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE WITH RESPECT TO THE SERVICES RENDERED TO OR PRODUCTS
OBTAINED FOR THE COMPANY. FURTHERMORE, THE COMPANY MAY NOT RELY UPON ANY
REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE MADE TO THE MANAGER OR
ITS AFFILIATES BY ANY PARTY (INCLUDING AN AFFILIATE OF THE MANAGER)
PERFORMING SERVICES ON BEHALF OF THE MANAGER OR ITS AFFILIATES HEREUNDER,
UNLESS SUCH PARTY MAKES AN EXPRESS WRITTEN WARRANTY TO THE COMPANY.
IT IS EXPRESSLY UNDERSTOOD BY THE COMPANY AND THE COMPANY AGREES THAT THE
MANAGER AND ITS AFFILIATES SHALL HAVE NO LIABILITY FOR THE FAILURE OF THIRD-
PARTY PROVIDERS TO PERFORM ANY SERVICES HEREUNDER AND FURTHER THAT THE
MANAGER AND ITS AFFILIATES SHALL HAVE NO LIABILITY WHATSOEVER FOR THE
SERVICES PROVIDED BY SUCH THIRD-PARTY PROVIDERS UNLESS SUCH SERVICES ARE
PROVIDED IN A MANNER WHICH WOULD EVIDENCE GROSS NEGLIGENCE ON THE PART OF
THE MANAGER OR ITS AFFILIATES OR INTENTIONAL MISCONDUCT. THE COMPANY
AGREES THAT THE REMUNERATION TO BE PAID TO THE MANAGER OR AN AFFILIATE
HEREUNDER FOR THE SERVICES TO BE PERFORMED REFLECTS THIS LIMITATION OF
LIABILITY AND DISCLAIMER OF WARRANTIES. IN NO EVENT SHALL THE MANAGER OR
ITS AFFILIATES BE LIABLE TO THE COMPANY OR ANY OTHER PERSON OR ENTITY FOR
ANY INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES RESULTING FROM ANY ERROR
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IN THE PERFORMANCE OF SERVICES OR FROM THE BREACH OF THIS AGREEMENT,
REGARDLESS OF THE FAULT OF THE MANAGER, ANY MANAGER AFFILIATE OR ANY THIRD-
PARTY PROVIDER OR WHETHER THE MANAGER, ANY MANAGER AFFILIATE OR THIRD-PARTY
PROVIDER IS WHOLLY, CONCURRENTLY, PARTIALLY, OR SOLELY NEGLIGENT. TO THE
EXTENT ANY THIRD-PARTY PROVIDER HAS LIMITED ITS LIABILITY TO THE MANAGER OR
ITS AFFILIATE FOR SERVICES UNDER AN OUTSOURCING OR OTHER AGREEMENT, THE
COMPANY AGREES TO BE BOUND BY SUCH LIMITATION OF LIABILITY FOR ANY PRODUCT
OR SERVICE PROVIDED TO THE COMPANY BY SUCH THIRD-PARTY PROVIDER UNDER THE
MANAGER'S OR SUCH AFFILIATE'S AGREEMENT.
ARTICLE V
Force Majeure
A. THE MANAGER AND ITS AFFILIATES SHALL HAVE NO OBLIGATION TO
PERFORM OR CAUSE THE SERVICES TO BE PERFORMED IF ITS FAILURE TO DO SO IS
CAUSED BY OR RESULTS FROM ANY ACT OF GOD, GOVERNMENTAL ACTION, NATURAL
DISASTER, STRIKE, FAILURE OF ESSENTIAL EQUIPMENT OR ANY OTHER CAUSE OR
CIRCUMSTANCE BEYOND THE CONTROL OF THE MANAGER, OR, IF APPLICABLE, ITS
AFFILIATES OR THIRD-PARTY PROVIDERS OF SERVICES TO THE MANAGER ("NRG Event
of Force Majeure"). The Manager will promptly notify the Company of any
NRG Event of Force Majeure. The Manager agrees that upon restoring the
Service following any NRG Event of Force Majeure, the Manager will allow
the Company to have equal priority with the Manager and its Affiliates, in
accordance with prior practice, with respect to access to the restored
Service.
B. THE COMPANY SHALL HAVE NO OBLIGATION TO USE ANY OF THE
SERVICES IF ITS FAILURE TO DO SO IS CAUSED BY OR RESULTS FROM ANY ACT OF
GOD, GOVERNMENTAL ACTION, NATURAL DISASTER, STRIKE, FAILURE OF ESSENTIAL
EQUIPMENT OR ANY OTHER CAUSE OR CIRCUMSTANCE BEYOND THE CONTROL OF THE
COMPANY (a "Company Event of Force Majeure"). IN SUCH CASE, THE COMPANY
WILL NOT BE OBLIGATED TO PAY THE MANAGER FOR ANY SUCH SERVICES WHICH THE
COMPANY DOES NOT USE, BUT THE COMPANY WILL BE OBLIGATED TO PAY THE MANAGER
FOR ANY SUCH SERVICES WHICH THE COMPANY DOES USE. The Company will
promptly notify the Manager of any Company Event of Force Majeure.
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ARTICLE VI
Term and Termination; Events of Default
6.1 Term. The term of this Agreement shall commence on the Effective Date
and shall continue until the expiration or other termination of the Co-
Investment Agreement, subject to earlier termination pursuant to Section
6.2 or 6.3.
6.2 Events of Default. If one or more of the following events occurs with
respect to a party hereto, it will constitute an "Event of Default" with
respect to such party:
(a) Failure to Perform Obligations. Such party fails to perform
or observe any material obligation under this Agreement and such
failure continues for more than 30 days after the non-defaulting party
has given notice thereof to such party (or if the nature of such
default is such that it is not capable of being cured within 30 days,
then the failure of such party to commence to cure such default within
30 days and to diligently and continuously pursue the cure of such
default thereafter, but in no event may such extended cure period
exceed 180 days);
(b) Bankruptcy Event. Such party becomes subject to a
Bankruptcy Event.
6.3 Remedies; Exclusivity. At any time during the continuance of an
Event of Default, the non-defaulting party will have the right to
(a) elect, by giving notice to the defaulting party, not to be bound in any
respect by the provisions of this Agreement during such continuance, in
which case such party will have no obligations or liabilities hereunder
during such period, (b) terminate the Agreement upon giving notice of
termination to the defaulting party, if the Event of Default is a
Bankruptcy Event or otherwise has continued without cure for 180 days
following notice pursuant to Section 6.2(a), and (c) pursue its rights in
accordance with Section 7.11. No failure on the part of either NRG or the
Company to exercise and no delay in exercising, and no course of dealing
with respect to, any right, power or privilege under this Agreement will
operate as a waiver thereof, nor will any single or partial exercise of any
right, power or privilege under this Agreement preclude any other or
further exercise thereof or the exercise of any other right, power or
privilege.
ARTICLE VII
Miscellaneous
7.1 Severability. In the event any portion of this Agreement shall be
found by a court of competent jurisdiction to be unenforceable, that
portion of the Agreement will be null and void and the remainder of the
Agreement will be binding on the parties as if the unenforceable provisions
had never been contained herein.
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7.2 Assignment. Except for the ability of the Manager to cause one or
more of the Services to be performed by one of its Affiliates or a third-
party provider, no party shall have the right to assign its rights or
obligations under this Agreement without the consent of the other party.
7.3 Entire Agreement. This Agreement constitutes the entire agreement of
the parties relating to the performance of the Services. All prior or
contemporaneous written or oral agreements are merged herein.
7.4 Law. This Agreement shall be subject to and governed by the laws of
the State of Minnesota, excluding any conflicts-of-law rule or principle
that might refer the construction or interpretation of this Agreement to
the laws of another state.
7.5 Amendment or Modification. This Agreement may be amended or modified
from time to time only by a written amendment signed by the parties hereto.
7.6 Notices. Any notice, request, instruction, correspondence or other
document to be given hereunder by either party to the other (herein
collectively called "Notice") shall be in writing and delivered personally
or mailed, postage prepaid, or by telegram or telecopier, as follows:
(a) if to the Company, to:
NRG Generating (U.S.) Inc.
1221 Nicollet Mall, Suite 700
Minneapolis, MN 55403
Attention: President and Chief Executive Officer
Telephone: 612-373-5300
Telecopier: 612-373-5346
With a copy to:
Chairman, Independent Committee
of NRG Generating (U.S.) Inc.
c/o NRG Generating (U.S.) Inc.
1221 Nicollet Mall, Suite 700
Minneapolis, MN 55403
Telephone: 612-373-5300
Telecopier: 612-373-5346
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(b) if to NRG, to:
NRG Energy, Inc.
1221 Nicollet Mall, Suite 700
Minneapolis, MN 55403
Attention: Vice President of Operations and
Engineering
Telephone: 612-373-5300
Telecopier: 612-373-5346
With a copy to:
NRG Energy, Inc.
1221 Nicollet Mall, Suite 700
Minneapolis, MN 55403
Attention: Vice President and General Counsel
Telephone: 612-373-5300
Telecopier: 612-373-5392
Notice given by personal delivery or mail shall be effective upon actual
receipt by the person to whom addressed. Notice given by telegram or
telecopier shall be effective upon actual receipt if received during the
recipient's normal business hours, or at the beginning of the recipient's
next business day after receipt if not received during the recipient's
normal business hours. Any party may change any address to which Notice is
to be given to it by giving Notice as provided above of such change of
address.
7.7 Further Assurances. In connection with this Agreement and all
transactions contemplated by this Agreement, each signatory party hereto
agrees to execute and deliver such additional documents and instruments as
may be required for the Manager to provide the Services hereunder and to
perform such other additional acts as may be necessary or appropriate to
effectuate, carry out and perform all of the terms, provisions, and
conditions of this Agreement.
7.8 Designated Contact Person. Without limiting the obligations of the
parties hereto with respect to the delivery of Notices pursuant to
Paragraph 16 hereof, the Manager hereby designates Craig A. Mataczynski
(phone no. (612) 373-5460) as a person with whom representatives of the
Company may communicate regarding any Services to be performed hereunder.
The Company hereby designates Leonard A. Bluhm (phone no. (612) 373-5300)
as its designated person with whom the Manager may communicate regarding
any problems or other matters that the Manager may have in providing any
Service hereunder by itself or any third-party provider. Either party
hereto may redesignate its representative at any time during the term
hereof by written notice to the other party.
7.9 Acknowledgment Regarding Certain Provisions. EACH OF THE PARTIES
HERETO SPECIFICALLY ACKNOWLEDGES AND AGREES (a) THAT IT HAS A DUTY TO READ
THIS AGREEMENT AND THAT IT IS CHARGED WITH
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NOTICE AND KNOWLEDGE OF THE TERMS HEREOF, (b) THAT IT HAS IN FACT READ THIS
AGREEMENT AND IS FULLY INFORMED AND HAS FULL NOTICE AND KNOWLEDGE OF THE
TERMS, CONDITIONS AND EFFECTS OF THIS AGREEMENT, AND (c) THAT IT RECOGNIZES
THAT CERTAIN OF THE TERMS OF THIS AGREEMENT PROVIDE FOR THE ASSUMPTION BY
ONE PARTY OF, AND/OR RELEASE OF THE OTHER PARTY FROM, CERTAIN LIABILITIES
ATTRIBUTABLE TO THE MATTERS COVERED BY THIS AGREEMENT THAT SUCH PARTY WOULD
OTHERWISE BE RESPONSIBLE FOR UNDER THE LAW. EACH PARTY HERETO FURTHER
AGREES AND COVENANTS THAT IT WILL NOT CONTEST THE VALIDITY OR
ENFORCEABILITY OF ANY SUCH PROVISIONS OF THIS AGREEMENT ON THE BASIS THAT
THE PARTY HAD NO NOTICE OR KNOWLEDGE OF SUCH PROVISION OR THAT SUCH
PROVISIONS ARE NOT "CONSPICUOUS."
7.10 No Third-Party Beneficiary. The provisions of this Agreement are
enforceable solely by the parties to this Agreement, and no other person
shall have the right, separate and apart from the Company or the Manager,
to enforce any provision of this Agreement or to compel any party to this
Agreement to comply with the terms of this Agreement.
7.11 Mediation. The Manager and the Company agree to negotiate in good
faith in an effort to resolve any dispute related to this Agreement that
may arise between the parties. If the dispute cannot be resolved promptly
by negotiation, then either party may give the other party written notice
that the dispute should be submitted to mediation. Promptly thereafter, a
mutually acceptable mediator shall be chosen by the parties, who shall
share the cost of mediation services equally. If the dispute has not been
resolved by mediation within ninety (90) days after the date of written
notice requesting mediation, then either party may initiate litigation and
pursue any and all remedies at law or at equity that such party is entitled
to.
7.12 Indemnification. The Company agrees that it will indemnify and
hold harmless the Manager, its Affiliates and their respective directors,
officers, employees, agents and controlling persons (each being a "Manager
Indemnified Party") from and against any and all losses, claims, damages
and liabilities, joint or several, to which such Manager Indemnified Party
may become subject under any applicable federal or state law, or otherwise,
relating to or arising out of the engagement of the Manager pursuant to,
and the performance by the Manager or its Affiliates of the services
contemplated by, this Agreement. The Company will reimburse any Manager
Indemnified Party for all costs and expenses (including reasonable counsel
fees and expenses) as they are incurred in connection with the
investigation of, preparation of or defense of any pending or threatened
claim or any action or proceeding covered by such indemnity. The Company
will not be liable under the foregoing indemnification provisions to the
extent that any loss, claim, damage, liability or expense is found in a
final judgment by a court to have resulted primarily from the bad faith or
gross negligence of the Manager or the relevant Affiliate.
The Manager agrees that it will indemnify and hold harmless the
Company and its directors, officers, employees, agents and controlling
persons (each being a "Company
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Indemnified Party") from and against any and all losses, claims, damages
and liabilities, joint or several, to which the Company Indemnified Party
becomes subject under any applicable federal or state law, or otherwise,
relating to or arising out of the willful misconduct or gross negligence of
the Manager or its Affiliates. The Manager will reimburse the Company
Indemnified Party for all costs and expenses (including reasonable counsel
fees and expenses) as they are incurred in connection with the
investigation of, preparation of or defense of any pending or threatened
claim or any actions or proceedings covered by such indemnity. The Manager
will not be liable under the foregoing indemnification provisions to the
extent that any loss, claim, damage, liability or expense is found in a
final judgment by a court to have resulted primarily from the bad faith or
gross negligence of the Company.
7.13 The Company Is Sole Beneficiary. The Company acknowledges that the
Services shall be provided only with respect to the businesses of the
Company and its subsidiaries. The Company shall not request performance of
any Services for the benefit of any entity other than the Company or its
subsidiaries. The Company represents and agrees that it will use the
Services only in accordance with all applicable, federal, state and local
laws and regulations and communications and common carrier tariffs, and in
accordance with the reasonable conditions, rules, regulations and
specifications which may be set forth in any manuals, materials, documents
or instructions furnished from time to time by the Manager to the Company.
The Manager reserves the right to take all actions, including termination
of any particular Services, that the Manager reasonably believes to be
necessary to assure compliance with applicable laws, regulations and
tariffs. The Manager will notify the Company of the reasons for any such
termination of Services.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
signed on their behalf by there duly authorized officers.
NRG ENERGY, INC.
By: /s/ Craig A. Mataczynski
Name: Craig A. Mataczynski
Title: Vice President, Domestic Business
Development
NRG GENERATING (U.S.) INC.
By: /s/ Leonard Bluhm
Name: Leonard A. Bluhm
Title: President and Chief Executive Officer
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