Exhibit 10.27.15
FIRST AMENDMENT
to
OPERATION AND MAINTENANCE AGREEMENT
This FIRST AMENDMENT to OPERATION AND MAINTENANCE AGREEMENT
is entered into as of December 10, 1997 by and between NRG
(Xxxxxx) Xxxxx, LLC, a Delaware limited liability company (the
"Owner") and NRG Xxxxxx Operations Inc. (the "Operator").
WHEREAS, Owner and Operator are parties to that certain
Operation and Maintenance Agreement dated as of September 19,
1997 (the "O&M Agreement");
WHEREAS, Owner and Operator wish to amend the O&M Agreement
as herein provided;
NOW, THEREFORE, Owner and Operator hereby agree as
follows:
1. The definition of the term "Agent" in Article I of the
O&M Agreement shall be deleted in its entirety and the following
shall be substituted therefor:
"Agent" means any agent appointed by the Lender(s) under the
Financing Agreements.
2. Section 4.1.16 of the O&M Agreement shall be amended by
adding the following sentences to the end thereof:
Owner shall have the right upon 30 days' written notice
documenting the basis for such action, to require Operator to
remove for cause the person selected as the Plant Manager,
subject to an Operator's 30-day cure period (but absent such a
cure, Operator will remove such person from such position
following such a request by Owner). As soon as practicable after
any such removal, Operator shall appoint a new Plant Manager
after first obtaining Owner's consent to such new appointment.
Owner will not exercise its right to require such removal in any
manner that causes Operator to violate applicable labor laws,
based on a written opinion of outside counsel of the Operator.
3. Section 4.2.9 of the O&M Agreement shall be amended by
adding the following to the end thereof:
Operator and Owner shall cooperate to maximize excess energy
sales and manage plant operating margins. Owner and Operator
shall work to agree to a detailed plan to accomplish such
objectives prior to Commercial Operation.
4. Section 10.1 of the O&M Agreement shall be deleted in
its entirety and the following shall be substituted therefor:
10.1 Insurance Requirements of Operator. Unless
Owner shall advise Operator that Owner has satisfied the
following requirements in whole or in part by naming
Operator as a named insured on Owner's insurance policies,
Operator shall procure and maintain in full force and effect
at all times that the Project is being operated (and, in
any event, no later than the date on which Operator has
employees at the Project), insurance policies with limits
and coverage provisions in no event less than the limits and
coverage provisions set forth below.
10.1.1 General Liability Insurance: Liability
insurance on an occurrence basis against claims for
personal injury (including bodily injury and death) and
property damage. Such insurance shall provide coverage
for products-completed operations, blanket contractual,
explosion, collapse and underground coverage, broad
form property damage, personal injury insurance,
independent contractors and the hostile fire exception
to the pollution liability exclusion with a $1,000,000
minimum limit per occurrence for combined bodily injury
and property damage; provided that the policy general
aggregate, if any, shall apply separately to the
Project. A maximum deductible or self-insured
retention of $500,000 per occurrence shall be allowed.
10.1.2 Automobile Liability Insurance: Automobile
liability insurance against claims for personal injury
(including bodily injury and death) or property damage
arising out of the use of all owned, leased, non-owned
and hired motor vehicles including loading and
unloading with a $1,000,000 minimum limit per
occurrence for combined bodily injury and property
damage and containing appropriate no-fault insurance
provisions where applicable. A maximum deductible or
self-insured retention of $500,000 per occurrence shall
be allowed.
10.1.3 Workers' Compensation Insurance: Workers'
compensation insurance as required by applicable Legal
and Contractual Requirements. A maximum deductible or
self-insured retention of $500,000 per occurrence shall
be allowed.
10.1.4 Employer's Liability Insurance: Employer's
liability insurance for all employees of the Operator
with a $1,000,000 minimum limit per accident. A
maximum deductible or self-insured retention of
$500,000 shall be allowed.
10.1.5 Excess Insurance: Excess liability insurance
on an occurrence basis (or modified AEGIS claims made
form) covering claims in excess of the underlying
insurance described in Sections 10.1.1, 10.1.2 and
10.1.4 hereof with a $10,000,000 minimum limit per
occurrence; provided, that the general aggregate limit
of liability, if any, shall apply separately to the
Project.
10.1.6 Aircraft Insurance: If the performance of
Operator's obligations under this Agreement requires
the use of any aircraft that is owned, leased or
chartered by Operator, aircraft liability insurance
with a $25,000,000 minimum limit per occurrence for
property damage and bodily injury, including passengers
and crew.
All policies of liability insurance to be maintained by Operator
shall be endorsed (a) to provide a severability of interests or
cross liability clause; (b) to name Owner, the Agent and their
respective directors, officers, employees and agents as
additional insureds; and (c) to provide that the insurance shall
be primary and not excess to or contributing with any insurance
or self-insurance maintained by Owner or the Lenders.
5. Section 12.4 of the O&M Agreement shall be deleted in
its entirety and the following shall be substituted therefor:
12.4 Certain Remedies of Owner and Millennium for
Selected Operator Defaults. In addition to the remedies set
out in Section12.3, Owner shall have the right to terminate
this Agreement, without resort to the arbitration procedures
set out in Article XIII, if (a) Operator is in default under
Section12.2.3 or Section 12.2.7 hereof, (b) Operator is in
default a second time under Section 12.2.8 hereof, (c) the
heat rate of the Project for any Operating Year is greater
than three percent (3%) above the Guaranteed Heat Rate for
such Operating Year, (d) the Owner is required to pay more
than one million five hundred thousand dollars ($1,500,000)
in Operator Standby Power Costs in any Operating Year;
provided, that Operator may cure a default under Section
12.4(d) by paying to Owner an amount equal to the entire
amount of the excess of such Operator Standby Power Costs
over one million five hundred thousand dollars ($1,500,000);
provided further, that Operator may not cure any such
default if the amount of such Operator Standby Power Costs
exceeds one million nine hundred thousand dollars
($1,900,000) , or (e) NRG Energy, Inc. ("NRG Energy")
directly or indirectly owns less than ten percent (10%) of
the outstanding common stock (the "Stock") of NRG Generating
(U.S.), Inc. ("NRGG") as a result of a sale of Stock by NRG;
provided, that, if it has not been previously exercised,
Owner's right to exercise its termination rights under this
Section 12.4(e) shall be suspended for no more than 180 days
during any period in which NRG Energy is, directly or
indirectly, reaquiring an aggregate amount of Stock equal to
or in excess of ten percent (10%) of the Stock. Upon any
such termination, Operator shall turn over to Owner care,
custody and control of the Project and the Leased Equipment,
and shall assign such subcontracts for services provided
hereunder as Owner may request. Operator shall also turn
over all spare parts and other consumables in the inventory.
Operator shall cooperate with Owner and any replacement
operator in a transition of operation and maintenance
responsibilities. In addition, in the event that Operator
fails to deliver Steam to Millennium pursuant to the
requirements of the ESA, Millennium shall have the right to
immediately re-assume operating control of the Leased
Equipment without affording Operator a cure period, pending
the outcome of any arbitration proceedings under Article27
of the ESA. Operator will cooperate with Millennium during
any such period, and shall only be entitled to re-assume
operating control of the Leased Equipment once Owner and
Millennium are satisfied that Operator can meet its
responsibilities under this Agreement. During any period in
which Millennium has assumed operating control of the Leased
Equipment, the Annual Fee to be paid to Operator shall be
reduced by twenty-five percent (25%) and Operator shall not
be entitled to any bonus under Section 8.4.
6. To the extent Operator had in effect insurances meeting
the requirements set forth above in Section 4 of this Amendment,
Owner hereby waives any failure by Operator to meet the
requirements of Section 10.1 of the O&M Agreement prior to the
date hereof.
7. This Amendment is limited as specified and shall not
constitute a modification, acceptance or waiver of any other
provision of the O&M Agreement or any other agreement referred to
therein, or prejudice any right or rights which Owner or Operator
may now have or may have in the future under or in connection
with the O&M Agreement. Except as expressly modified hereby, the
terms and provisions of the O&M Agreement shall continue in full
force and effect. All references to the O&M Agreement shall
hereafter be deemed to refer to the O&M Agreement as modified
hereby.
8. This Amendment may be executed in separate counterparts
by Owner and Operator, each of which when so executed and
delivered shall be an original, but all of which shall constitute
one and the same instrument. A complete set of counterparts
shall be delivered to each of Owner and Operator.
9. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE LAW OF THE STATE OF ILLINOIS, BUT WITHOUT GIVING
EFFECT TO.CONFLICTS OF LAW PROVISIONS.
10. This Amendment shall become effective on the date when
the Agent has consented in writing to the execution hereof by
Owner pursuant to the terms of the Financing Agreements.
IN WITNESS WHEREOF, Owner and Operator have caused their
duly authorized representatives to execute and deliver this
Amendment as of the date first above written.
NRG (XXXXXX) XXXXX, LLC
By /s/ Xxxxx Xxxxxxxxxxx
Name: Xxxxx Xxxxxxxxxxx
Title: President
NRG XXXXXX OPERATIONS INC.
By Xxxxxx X. Will
Name: Xxxxxx X. Will
Title: President
