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EXHIBIT 10.49
AMENDED AND RESTATED
CORPORATE SERVICES AGREEMENT
THIS AMENDED AND RESTATED CORPORATE SERVICES AGREEMENT (this "Agreement")
dated as of July 15, 1999, is entered into by and between NRG Energy, Inc., a
Delaware Corporation (the "Provider"), and Somerset Power LLC, a Delaware
limited liability company (the "Company").
RECITALS
1. The Company has obtained the rights to acquire, own and operate the
Somerset Generating Station (the"Facility") located in Somerset Massachusetts.
2. The Company and the Provider are parties to that certain Corporate
Services Agreement, dated April 14, 1999 (the "Original Agreement").
3. The Company and the Provider desire to amend and restate the
Original Agreement as hereinafter set forth, effective as of the date hereof.
AGREEMENT
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 acknowledge, the parties hereto
agree as follows:
ARTICLE 1
DEFINITIONS
1.1 Definitions. Whenever used in this Agreement with initial
capitalization, the following terms shall have the meanings specified or
referred to in this Article 1.
"Affiliate" means, with respect to any person or entity, (i) each entity
that such person or entity Controls, (ii) each person or entity that Controls
such person or entity, and (iii) each entity that is under common Control with
such person or entity.
"Agreement" shall have the meaning provided in the introductory
paragraph hereof.
"Effective Date" means the date of this Agreement.
"Outsource" means to cause a Service to be provided by a third-party
provider which is not an Affiliate of the Provider.
"Outsourced Services" shall means those Services which the Provider
Outsources to third-party providers which are not Affiliates of the Provider.
"Services" means the performance of any work, direction of work,
technical or commercial information, data, consulting, staff augmentation or
any other corporate business function performed for or on behalf of the Company
by the Provider in functional areas such as but not limited to: human
resources, accounting, finance, treasury, tax, office administration,
information technology, engineering, construction management, environmental,
legal and safety.
1.2 Terminology. Unless the context of this Agreement clearly requires
otherwise, (a) pronouns,
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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 are
for reference purposed 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 his Agreement unless otherwise specified.
ARTICLE 2
SERVICES
2.01 General. The Company hereby retains the Provider, and the Provider
accepts the obligation, to provide to the Company certain Services in
accordance with the terms of this Agreement. At the Provider's election, it
may cause one or more of its Affiliates or third-party contractors to provide
the Services; provided, however, that the Provider shall remain responsible for
the provision of the Services (including Outsourced Services) in accordance
with the terms of this Agreement.
2.2 Services. The Provider shall provide all Services to the Company
on an as-requested basis in support of the day-to-day business of the Company.
The Company shall use a letter, work order, purchase order or other official
document to authorize the performance of Services by Provider. Such document
shall state, as a minimum, the scope of Services to be performed, schedule
requirements, budget and a reference to this Agreement. The Provider shall
acknowledge requested Services in writing.
2.3 Personnel. The Provider shall provide as required by the Company
all technical, professional, supervisorial, managerial, administrative and
other personnel as are necessary to perform the Services. Such personnel shall
be qualified and experienced in the Services to which they are assigned. The
working hours, rates of compensation and all other matters relating to the
employment of individuals employed by the Provider or its Affiliates in the
performance of the Services shall be determined solely by the Provider or its
respective Affiliates.
2.4 Standards for Performance of Services. The Provider shall, and
shall cause its Affiliates and the providers of Outsourced Services 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 terms and conditions of this Agreement. The Provider may determine in its
sole discretion whether or not to Outsource a Service.
2.5 Right to Request Instruction. At any time, the Provider may, if it
reasonably deems it to be necessary or appropriate, request written
instructions from the Company 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.
ARTICLE 3
PAYMENT
3.1 Payment. The Company, in consideration for the performance of the
Services by the Provider, agrees to pay the Provider all pre-approved charges,
costs, expenses, taxes, fees and losses not compensated by insurance, which are
incurred by Provider in the performance of the Services hereunder. These
charges, costs, expenses, taxes, fees and losses shall include, but are not
limited to:
(a) Charges for the time of all personnel employed by the
Provider in the performance of the Services at the each person's standard
intracompany labor rate as set forth by personnel category on Annex A
hereto, which time charges include federal and state payroll taxes and
insurance, Provider benefit programs, overhead and an arms-length,
commercially reasonable mark-up. Such charges shall be subject to
appropriate adjustment for any changes in payroll taxes or insurance, or
changes in benefit programs.
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(b) Transportation, travel, hotel and living expenses, including
use of employees' personal cars at Provider's current standard rates. All
reasonable moving, relocation, travel and living expenses incurred in
connection with assignment of Provider's permanent personnel to a
location other than Provider's permanent offices and from such location
at the conclusion of assignment.
(c) Miscellaneous expenses, including but not limited to
telegrams, telex, telefacsimile, telephone services, postage and similar
miscellaneous items incurred in connection with the Services, all at
Provider's current standard rates.
(d) Reproduction costs of all drawings, manuals, specifications,
and other documents required for the Services; and costs for the use of
computer, all at Provider's current standard rates or at actual cost to
Provider if prepared by others.
(e) Cost of any permits, fees, licenses or royalties required.
Costs of any sales, use or similar taxes or fees imposed by a federal,
state, municipal or other government or agency thereof.
(f) Fees, costs, damages, or disbursements incurred in connection
with any labor, patent, or commercial litigation or any third party
claim, suit, or cause of action, arising out of or in connection with the
performance of the Services by Provider (except disputes between Provider
and the Company) or claims, suites or causes of action pursued on behalf
of the Company by Provider.
(g) Premiums and brokerage fees on all bonds and insurance
policies which may be required by Company in addition to those listed
herein, and any loss under the deductible features of any insurance
policies, whether furnished by Provider or Company.
3.2 Invoicing.
(a) The Provider shall invoice the Company by the fifteenth
(15th) day of each month for all Services performed with respect to the
preceding month 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 Provider backing up invoiced charges and
shall be due and payable within thirty (30) days after its receipt. 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 Provider within thirty (30) days from receipt of the invoice of the
disputed amount and the reasons each such charge is disputed by the
Company. The Provider shall promptly provide the Company with records
relating to the disputed amount so as to enable the parties to resolve
the dispute.
(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 changes for which statements for payment
are submitted more than two years after the termination of this
Agreement.
ARTICLE 4
LIMITED WARRANTY
4.1 Warranty. Provider warrants that the Services performed under this
Agreement will be in accordance with accepted professional standards and
practices existing as of the date that such Services are performed. The sole
and exclusive remedy for breach of this warranty shall be for Provider to
re-perform the portion of defective Services, written notice of which is
promptly given by Company to Provider within a period of one (1) year from the
date that the defective Service was performed under this Agreement. All costs
of any re-performance shall be reimbursed by Company to Provider but Provider
shall receive no additional profit thereon.
4.2 Disclaimer. There are no warranties other than the above, either
express or implied, including without limitation any warranties of
merchantability or fitness for particular purpose applicable to Providers
services
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performed under this Agreement.
ARTICLE 5
LIMITATION OF LIABILITY
5.1 Limitation of Liability. Whether due to delay, breach of contract
or warranty, tort (including without limitation negligence), or any other
cause, neither Provider nor its Affiliates or subcontractors shall be liable
for any special, indirect, punitive, or consequential damages of any nature,
including without limitation loss of actual or anticipated profits, revenues,
or product, loss by reason of shutdown, nonoperation, or increased expense of
manufacturing or operation, or any costs, labor, or materials required for
reconstruction or repairs. Provider's maximum liability under or arising out
of this Agreement shall in no event exceed the value of the Services performed
during the calendar year prior to the cause giving rise to or creating any such
liability.
ARTICLE 6
TERM AND TERMINATION; EVENTS OF DEFAULT
6.01 Term. The term of this Agreement shall commence on the Effective
Date and shall continue until terminated in writing by the Company.
6.02 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 thirty (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 thirty (30) days,
then the failure of such party to commence to cure such default within
thirty (30) days and to diligently and continuously pursue the cure of
such default thereafter, but in no event may such extended cure period
exceed one hundred eighty (180) days);
(b) Bankruptcy. Such party becomes subject to a bankruptcy or is
declared insolvent.
6.03 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. No failure on the part of either Provider, 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.
ARTICLE 7
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. To the fullest extent permitted by Law, the remedies set
forth in this Section 6.3 are the exclusive remedies for a default hereunder;
provided that with respect to (i) disputed or unpaid invoices relating to
services rendered prior to any termination and (ii) claims for indemnity
relating to events that occurred prior to any termination each party shall also
have all rights and remedies contemplated herein in Sections 7.10 and 7.11 or
otherwise provided in Law or Equity.
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7.2 Assignment. Except for the ability of the Provider 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 New York, 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 of 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:
Somerset Power LLC
c/o NRG Energy, Inc.
1221 Nicollet Mall, Suite 700
Minneapolis, MN 55403
Attention: Vice President
(b) if to Provider, to:
NRG Energy, Inc.
1221 Nicollet Mall, Suite 700
Minneapolis, MN 55403
Attention: Vice President of Corporate Operating Services
7.7 Insurance. The Company shall carry and keep in force, at all
times, Commercial General Liability insurance in such policy limits as are
usual and customary for its business and as it deems necessary to protect it
from risks of loss arising from the performance of Service under this
Agreement. The Company shall name the Provider as an additional insured on
these policies and shall indemnify Provider to the same extent. The Company
waive all rights and any subrogation rights such as it or its insurers may have
against Provider its vendors and subcontractors and their employees, agents,
officers, directors, and any of their affiliated or associated companies, for
any losses or damages, including without limitation all consequential damages
resulting from any and all risks and losses, however and whenever arising, from
the Services performed hereunder, or other risks covered under a Commercial
General Liability insurance policy.
7.8 Prosecution of the Work; Force Majeure. Provider shall
substantially perform the Services in accordance with a schedule mutually
agreed upon between the parties. Any completion dates specified are tentative
only and Provider shall have no liability to the Company for late completion.
If the prosecution of the Services is delayed or affected by any of the
following force majeure occurrences: acts or failures to act by the Company or
any separate contractors, engineers, vendors, or consultants employed by the
Company or any other party not in privity of this Agreement; acts of God or the
elements; acts or failures to act by government or any agency thereof; changes,
inaccuracies, incompleteness, or differences in site conditions or any data or
information supplied to the Provider; changes in laws or regulations; delays in
permitting; delays in receipt of engineering data or vendor drawings; fire;
unusually sever weather, natural disasters, or unavoidable casualties; riot;
civil disorders; labor shortages or disputes; strikes, picketing, or
arbitration proceedings; delays in transportation, material, or equipment
deliveries; material, equipment, or fuel shortages; or any other causes beyond
the Provider's reasonable control, the schedule shall be extended for the
period of time attributable to such delay and all fixed elements of pricing, if
any, shall be equitably adjusted.
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7.9 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 Provider, to enforce
any provision of this Agreement or to compel any party to this Agreement to
comply with the terms of this Agreement.
7.10 Disputes. The Provider 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, at a senior management level the 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.
7.11 Indemnification.
(a) The Company agrees that it will indemnify and hold harmless the
Provider, its Affiliates and their respective directors, officers, employees,
and agents from and against any and all losses, claims, damages and
liabilities, joint or several, to which the Provider may become subject under
any applicable federal or state law, or otherwise, relating to or arising out
of the engagement of the Provider pursuant to, and the performance by the
Provider of the services contemplated by, this Agreement. The Company will
reimburse the Provider 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 Provider or
the relevant Affiliate.
(b) The Provider agrees that it will indemnify and hold harmless the
Company and its directors, officers, employees, and agents from and against any
and all losses, claims, damages and liabilities, joint or several, to which the
Company may become subject under any applicable federal or state law, or
otherwise, relating to or arising out of the willful misconduct or gross
negligence of the Provider or its Affiliates. The Provider will reimburse the
Company 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 Provider 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.
7.12 The Company is Sole Beneficiary. The Company acknowledges that the
Services shall be provided only with respect to the businesses of the Company.
The Company shall request performance of any Services for the benefit of any
entity other than the Company.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
signed on their behalf by their duly authorized officers.
NRG ENERGY, INC.
By: /s/ Craig A. Mataczynski
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Name: Craig A. Mataczynski
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Title: Senior Vice President
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SOMERSET POWER LLC
By:/s/ Michael O'Sullivan
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Name: Michael O'Sullivan
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Title: Vice President
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