December 10, 1997 among Cogen, LLC and the banks ("Banks")
party to the Credit Agreement, dated as of September 15,
1997, among Cogen, LLC, the Banks and Chase.
Exhibit 10.27.5
AMENDMENT AND CONSENT
AMENDMENT AND CONSENT, dated as of December 10, 1997
(this "Amendment and Consent"), among NRG (MORRIS) COGEN, LLC
(the "Borrower"), a Delaware corporation, and the banks party
to the Credit Agreement (as defined below) (the "Banks").
RECITALS
WHEREAS, the Borrower entered into that certain Construction
and Term Loan Agreement, dated as of September 15, 1997 (the
"Credit Agreement"), with 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"), to obtain funds to
finance the ownership, development, engineering, construction,
start-up, testing, operation and maintenance of an
approximately 117 MW gas fired cogeneration plant in Morris,
Illinois (the "Project"). Capitalized terms used but not
defined in this Amendment and Consent shall have the meanings
given to such terms in the Credit Agreement;
WHEREAS, pursuant to the Membership Interest Purchase
Agreement, dated as of the date hereof (the "Purchase
Agreement"), between NRG Energy and NRGG Funding Inc., a
Delaware corporation ("NRGG Funding"), NRG Energy is
transferring all of its equity interests in the Borrower to
NRGG Funding;
WHEREAS, the Borrower and the Banks would like to
amend the Credit Agreement as set forth herein to reflect the
transactions contemplated by the Purchase Agreement and the
documents executed in connection therewith;
NOW, THEREFORE, in consideration of the foregoing and
for other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the Borrower and the
Banks hereby agree as follows:
Section 1. Amendments.
1.1. Section 1.1 of the Credit Agreement is
hereby amended by inserting the following definitions after the
definition of "Equity Commitment Agreement" therein:
"Equity Guarantee" shall mean the Equity
Commitment Guaranty, dated as of December 10, 1997, by NRG
Energy in favor of the Borrower and the Collateral Agent.
"Equity Guarantor" shall mean NRG Energy.
1.2. Section 1.1 of the Credit Agreement is
hereby amended by inserting the following definition after the
definition of "NRG Morris Consent" therein:
"NRGG Funding" shall mean NRGG Funding Inc., a
Delaware corporation.
1.3. The definition of "Financing Documents" in
Section 1.1 of the Credit Agreement is hereby amended by
deleting " and" after the word "Consents" in the second line
thereof and replacing such deleted text with ","; and is hereby
further amended by inserting the words " and the Equity
Guarantee" after the words "Equity Commitment Agreements" in
the second line thereof.
1.4. The definition of "Pledge Agreement" in
Section 1.1 of the Credit Agreement is hereby amended by
deleting the current definition in its entirety and replacing
such deleted provision with the following:
"Pledge Agreement" shall mean the Pledge and Security
Agreement, dated as of December 10, 1997, among NRGG
Funding, NRG MI and the Collateral Agent.
1.4. Section 3.2(a) of the Credit Agreement is
hereby amended by inserting " the Equity Guarantor," after "any
Equity Contributor," in the tenth line thereof.
1.5. Section 8.1(f) of the Credit Agreement is
hereby amended by deleting " or" in the second line thereof and
replacing such deleted text with ","; and is hereby further
amended by inserting " or the Equity Guarantor if it has
continuing obligations under the Equity Guarantee" at the end
of such Section.
Section 2. Consent. Each Bank hereby (a) consents
to the transactions contemplated in the Purchase Agreement and
(b) agrees that the transfer by NRG Energy of its membership
interests in the Borrower to NRGG Funding pursuant to the
Purchase Agreement constitutes a Permitted Transfer (as defined
in the Pledge and Security Agreement, dated as of September 15,
1997 (the "Original Pledge Agreement"), among NRG Energy, NRG
MI and the Collateral Agent) under Section 4.1(a) of the
Original Pledge Agreement.
Section 3. Amendments and Consent Limited Precisely
as Written; Ratification; References. The amendments and the
consent herein are limited precisely as written and shall not
be deemed to be a consent or waiver to, or modification of, any
other term or condition in the Credit Agreement or any of the
documents referred to herein or therein. Except as expressly
amended hereby, the Credit Agreement is ratified and confirmed
in all respects. On and after the date hereof, whenever the
Credit Agreement is referred to in any of the Transaction
Documents or in any of the other documents or
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papers to be executed and delivered in connection therewith or
with the Credit Agreement, such term shall be deemed to mean
the Credit Agreement as amended hereby.
Section 4. Governing Law. This Amendment and
Consent shall be construed in accordance with and shall be
governed by 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).
Section 5. Waiver of Jury Trial. EACH OF THE
BORROWER AND THE BANKS HEREBY IRREVOCABLY WAIVES ALL RIGHT OF
TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING
OUT OF OR IN CONNECTION WITH THIS AMENDMENT AND CONSENT OR ANY
MATTER ARISING HEREUNDER.
Section 6. Headings Descriptive. The headings of
the several Sections of this Amendment and Consent are inserted
for convenience only and shall not in any way affect the
meaning or construction of any provision of this Amendment and
Consent.
Section 7. Counterparts. This Amendment and Consent
may be executed in one or more counterparts and when signed by
all parties listed below shall constitute a single binding
agreement.
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IN WITNESS WHEREOF, the parties have caused this
Amendment and Consent to be duly executed by their officers
thereunto duly authorized as of the day and year first written
above.
NRG (MORRIS) COGEN, LLC
By: /s/ Craig
Mataczynski
Name: Craig Mataczynski
Title: President
THE CHASE MANHATTAN BANK,
as a Bank
By: /s/ Kevin P. O'Neill
Name: Kevin P. O'Neill
Title: Vice President
THE BANK OF NEW YORK
By: /s/ John N. Watt
Name: John N. Watt
Title: Vice President
NATEXIS BANQUE
By: /s/ D.J.R. Osten
Name: D.J.R. Osten
Title: First V.P.
THE SUMITOMO TRUST AND BANKING
COMPANY, LTD.
By: /s/ Suraj P. Bhatia
Name: Suraj P. Bhatia
Title: Senior Vice President