Exhibit 10.27.9
CONSENT AND AMENDMENT
CONSENT AND AMENDMENT, dated as of December 10, 1997
(this "Consent and Amendment"), among NRG (XXXXXX) XXXXX, LLC
(the "Borrower"), the banks party to the Credit Agreement (as
defined below) (the "Banks"), and THE CHASE MANHATTAN BANK, in
its capacity as Agent Bank (as defined below) under the Credit
Agreement (as defined below).
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 Consent and Amendment shall have
the meanings given to such terms in the Credit Agreement;
WHEREAS, the Borrower entered into that certain
Operation and Maintenance Agreement, dated September 19, 1997
(the "Operation and Maintenance Agreement"), with NRG Xxxxxx
Operations Inc. (the "Operator") to provide for the operation
and maintenance of the Project;
WHEREAS, NRG Energy, Inc. ("NRG Energy") issued that
certain Limited Guaranty, dated September 19, 1997 (the "O&M
Guarantee"), in favor of the Borrower, pursuant to which NRG
Energy guarantees, to a limited extent, payment by the Operator
of liquidated damages under the Operation and Maintenance
Agreement;
WHEREAS, (i) the Borrower and the Operator would like
to modify certain provisions of the Operation and Maintenance
Agreement in accordance with the terms thereof and (ii) the
Borrower would like to consent to the modification of certain
provisions of the O&M Guarantee;
WHEREAS, pursuant to the Credit Agreement, the
Borrower must obtain the prior written consent of the Agent
Bank to modify, or consent to the modification of, any
provision of the Operation and Maintenance Agreement or the O&M
Guarantee;
WHEREAS, the Borrower is requesting that the Agent
Bank consent to the proposed modifications of the Operation and
Maintenance Agreement and the O&M Guarantee and the Agent Bank
is willing to grant such consent;
WHEREAS, the Borrower has also requested that
Schedule 5.7 to the Credit Agreement be amended as set forth
herein and the Banks are willing to enter into such amendment;
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, the
Banks and the Agent Bank hereby agree as follows:
1. Acknowledgment and Consent. The Agent Bank, in
its capacity as such under the Credit Agreement, hereby (a)
acknowledges that it has reviewed the form and substance of (i)
the proposed First Amendment to Operation and Maintenance
Agreement to be entered into between the Borrower and the
Operator (the "O&M Amendment"), a copy of which is attached
hereto as Exhibit A, and (ii) the proposed First Amendment to
Limited Guaranty to be executed by the O&M Guarantor (the "O&M
Guarantee Amendment"), a copy of which is attached hereto as
Exhibit B, and (b) consents to (i) the execution by the
Borrower of the O&M Amendment and the performance by the
Borrower of the terms thereof in accordance with the Credit
Agreement and (ii) the consent by the Borrower to the execution
of the O&M Guarantee Amendment.
2. Amendment to Credit Agreement. Section (C) of
Schedule 5.7 to the Credit Agreement is hereby amended by
deleting the phrase "at its own expense" from the first and
second lines thereof.
3. Consent and Amendment Limited Precisely as
Written; Ratification; References. Each of the consents set
forth in Section 1 hereof is limited precisely as written and
shall not be deemed to be a consent to any modification of any
other term of the Operation and Maintenance Agreement or the
O&M Guarantee, or any of the documents referred to herein or
therein or a consent to any modification of any other
Transaction Document. The amendment set forth in Section 2
hereof is 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 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.
4. Governing Law. This Consent and Amendment 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).
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5. Waiver of Jury Trial. EACH OF THE BORROWER, THE
BANKS AND THE AGENT BANK HEREBY IRREVOCABLY WAIVES ALL RIGHT OF
TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING
OUT OF OR IN CONNECTION WITH THIS CONSENT AND AMENDMENT OR ANY
MATTER ARISING HEREUNDER.
6. Counterparts. This Consent and Amendment 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
Consent and Amendment to be duly executed by their officers
thereunto duly authorized as of the day and year first written
above.
NRG (XXXXXX) XXXXX, LLC
By: /s/ Xxxxx
Xxxxxxxxxxx
Name: Xxxxx Xxxxxxxxxxx
Title: President
THE CHASE MANHATTAN BANK,
as a Bank
By: /s/ Xxxxx X. X'Xxxxx
Name: Xxxxx X. X'Xxxxx
Title: Vice President
THE CHASE MANHATTAN BANK,
as Agent Bank
By: /s/ Xxxxx X. X'Xxxxx
Name: Xxxxx X. X'Xxxxx
Title: Vice President
THE BANK OF NEW YORK
By: /s/ Xxxx X. Xxxx
Name: Xxxx X. Xxxx
Title: Vice President
NATEXIS BANQUE
By: /s/ D.J.R. Xxxxx
Name: D.J.R. Xxxxx
Title: First V.P.
THE SUMITOMO TRUST AND BANKING
COMPANY, LTD.
By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Senior Vice President
