\n (e) Good Faith Cooperation; Consents……………………………………………7
\n 2.4 Certain Limitations………………………………………………………………7
\n (a) Service Boundaries and Scope……………………………………………….7
\n (b) Impracticability………………………………………………………….7
\n (c) Sale, Transfer, Assignment…………………………………………………7
\n 2.5 Confidentiality………………………………………………………………….7
\n (a) Information Subject to Other Obligations…………………………………….7
\n (b) All Information Confidential……………………………………………….7
\n (c) Internal Use; Title, Copies, Return…………………………………………8
\n 2.6 Term; Early Termination…………………………………………………………..8
\n (a) Term…………………………………………………………………….8
\n (b) Termination by Receiving Company of Specific Service Categories………………..8
\n (c) Termination of Less than All Services……………………………………….9
\n 2.7 Disclaimer of Warranties, Limitation of Liability and Indemnification………………….9
\n (a) Disclaimer of Warranties…………………………………………………..9
\n (b) Limitation of Liability; Indemnification of Receiving Company………………….9
\n (c) Limitation of Liability; Indemnification of Providing Company…………………10
\n (d) Subrogation of Rights vis-a-vis Third Party Contractors………………………10
\n 2.8 Representatives…………………………………………………………………10<\/p>\nARTICLE III MISCELLANEOUS…………………………………………………………………..11
\n 3.1 Taxes………………………………………………………………………….11
\n 3.2 Laws and Governmental Regulations…………………………………………………11
\n 3.3 Relationship of Parties………………………………………………………….11
\n 3.4 References……………………………………………………………………..11
\n 3.5 Modification and Amendment……………………………………………………….12
\n 3.6 Inconsistency…………………………………………………………………..12
\n 3.7 Resolution of Disputes…………………………………………………………..12
\n 3.8 Successors and Assignment………………………………………………………..12
\n 3.9 Notices………………………………………………………………………..12
\n 3.10 Governing Law…………………………………………………………………..12
\n 3.11 Severability……………………………………………………………………12
\n 3.12 Counterparts……………………………………………………………………13
\n 3.13 Rights of the Parties……………………………………………………………13
\n 3.14 Reservation of Rights……………………………………………………………13
\n 3.15 Entire Agreement………………………………………………………………..13
\n<\/c><\/s><\/c><\/table>\n
-ii-<\/p>\n
4
\n TECHNICAL SERVICES AGREEMENT<\/p>\n
THIS TECHNICAL SERVICES AGREEMENT, dated as of December 31, 2000 (the
\n“Effective Date”), is between Reliant Energy, Incorporated, a Texas corporation
\n(“REI”) acting through its Reliant Energy HL&P Division and Reliant Resources,
\nInc., a Delaware corporation (“Resources”). Capitalized terms used herein and
\nnot otherwise defined shall have the respective meanings assigned to them in
\nArticle I hereof or as assigned to them in the Separation Agreement (as defined
\nbelow).<\/p>\n
WHEREAS, the Board of Directors of REI has determined that it is in
\nthe best interests of REI and its shareholders to separate REI’s existing
\nbusinesses into two independent business groups;<\/p>\n
WHEREAS, in order to effectuate the foregoing, REI and Resources have
\nentered into a Master Separation Agreement, dated as of December 31, 2000 (the
\n“Separation Agreement”); and<\/p>\n
WHEREAS, the Separation Agreement provides, among other things, for
\nREI and Resources to enter into this Agreement in order to set forth the terms
\non which Resources will provide to REI the Services described herein.<\/p>\n
NOW, THEREFORE, in consideration of the premises and the mutual
\ncovenants and agreements herein contained, the parties, intending to be legally
\nbound, agree as follows:<\/p>\n
ARTICLE I
\n DEFINITIONS<\/p>\n
For the purpose of this Agreement the following terms shall have the
\nfollowing meanings:<\/p>\n
1.1 ADDITIONAL SERVICES. “Additional Services” has the meaning set
\nforth in Section 2.1(b).<\/p>\n
1.2 EFFECTIVE DATE. “Effective Date” means the date of this Agreement.<\/p>\n
1.3 COMPUTER SYSTEMS SERVICES. “Computer Systems Services” has the
\nmeaning assigned to that term in Section 2.1(a)(iii).<\/p>\n
1.4 ENVIRONMENTAL AND SAFETY SERVICES. “Environmental and Safety
\nServices” has the meaning assigned to that term in Section 2.1(a)(ii).<\/p>\n
1.5 GENCO ASSETS. “Genco Assets” has the meaning assigned to that term
\nin Section 1.15 of the Separation Agreement.<\/p>\n
1.6 GENCO LP. “Genco LP” has the meaning assigned to that term in the
\nGenco Option Agreement.<\/p>\n
5<\/p>\n
1.7 GENCO OPTION AGREEMENT. “Genco Option Agreement” means the Texas
\nGenco Option Agreement dated as of December 31, 2000 between REI and Resources.<\/p>\n
1.8 IMPRACTICABLE. “Impracticable” (and words of similar import) has
\nthe meaning set forth in Section 2.4(b).<\/p>\n
1.9 INFORMATION TECHNOLOGY SERVICES. “Information Technology Services”
\nhas the meaning assigned to that term in Section 2.1(a)(iv).<\/p>\n
1.10 LIABILITY. “Liability” has the meaning assigned to that term in
\nthe Separation Agreement.<\/p>\n
1.11 OPTION CLOSING DATE. “Option Closing Date” has the meaning
\nassigned to that term in the Genco Option Agreement.<\/p>\n
1.12 OPTION EXPIRATION DATE. “Option Expiration Date” has the meaning
\nassigned to that term in the Genco Option Agreement.<\/p>\n
1.13 PROVIDING COMPANY. “Providing Company” means Resources.<\/p>\n
1.14 RECEIVING COMPANY. “Receiving Company” means REI or a permitted
\nassignee under Section 2.4(c), including Genco.<\/p>\n
1.15 REI GROUP. “REI Group” means REI and its Subsidiaries excluding
\nResources and other members of the Resources Group.<\/p>\n
1.16 REPRESENTATIVE. “Representative” of any party means a managerial
\nlevel employee appointed by such party to have the responsibilities and
\nauthority set forth in Section 2.8.<\/p>\n
1.17 RESOURCES GROUP. “Resources Group” means Resources and its
\nSubsidiaries.<\/p>\n
1.18 SERVICE. “Service” has the meaning set forth in subsection
\n2.1(b).<\/p>\n
1.19 SUBSIDIARY. “Subsidiary” means, with respect to REI or Resources,
\na corporation, partnership, limited liability company or other entity more than
\n50% of the voting common stock or other interests entitled to vote generally for
\nthe election of directors (or comparable governing body) is owned, directly or
\nindirectly, by REI or Resources, respectively.<\/p>\n
1.20 TECHNICAL SERVICES. “Technical Services” has the meaning assigned
\nto that term in Section 2.1(a)(i).<\/p>\n
6<\/p>\n
ARTICLE II
\n SERVICES<\/p>\n
2.1 SERVICES.<\/p>\n
(a) INITIAL SERVICES. Except as otherwise provided herein, during the
\napplicable term determined pursuant to Section 2.6 hereof the following
\n“Initial Services” shall be provided by Resources to Receiving Company:<\/p>\n
(i) TECHNICAL SERVICES consist of engineering and technical support
\n services required to support operation and maintenance of the Genco Assets,
\n including betterment and reliability analysis, surveillance, testing,
\n calibrations, diagnostic analysis and water technology services, all as
\n more particularly described in Exhibit 2.1(a)(i);<\/p>\n
(ii) ENVIRONMENTAL AND SAFETY SERVICES consist of environmental,
\n safety and industrial health services in support of the operation and
\n maintenance of the Genco Assets, all as more particularly described in
\n Exhibit 2.1(a)(ii);<\/p>\n
(iii) COMPUTER SYSTEMS SERVICES consist of the provision of computer
\n systems (software and hardware) used for economic dispatch, QSE scheduling,
\n QSE settlement, ISO settlement and communication, and related functions
\n associated with the operation and maintenance of the Genco Assets,
\n including technical, programming, consulting support, and hardware
\n maintenance services (but excluding the provisions of any plant-specific
\n hardware, which will be purchased by the Receiving Company), all as more
\n particularly described in Exhibit 2.1(a)(iii); and<\/p>\n
(iv) INFORMATION TECHNOLOGY SERVICES consist of the provision of
\n information technology services associated with the operation and
\n maintenance of the Genco Assets, all as more particularly described in
\n Exhibit 2.1(a)(iv).<\/p>\n
(b) ADDITIONAL SERVICES. From time to time after the Effective Date,
\nthe parties may, by mutual agreement, identify additional services that one
\nparty will provide to the other party in accordance with the terms of this
\nAgreement (the “Additional Services” and, together with the Initial Services,
\nthe “Services”). In such case, the parties shall create an Exhibit for each
\nAdditional Service setting forth a description of the Service, the time period
\nduring which the Service will be provided, the charge for the Service and any
\nother terms applicable thereto.<\/p>\n
(c) EXHIBITS. To the extent not affixed at the date of this Agreement,
\nExhibits 2.1(a)(i) through (iv) shall be established by agreement of the parties
\nand, upon such agreement, shall be affixed and made a part hereof.<\/p>\n
(d) SERVICES PERFORMED BY OTHERS. At its option, Resources may cause
\nany Service it is required to provide hereunder to be provided by another member
\nof the Resources Group or by any other Person that is providing, or may from
\ntime to time provide, the same or similar services for members of the Resources
\nGroup. <\/p>\n
7<\/p>\n
Resources shall remain responsible, in accordance with the terms of this
\nAgreement, for performance of any Service it causes to be so provided by others.<\/p>\n
2.2 CHARGES AND PAYMENT.<\/p>\n
(a) CHARGES FOR SERVICES. Subject to Section 2.2(b), Resources will
\ncharge for the Services, and the Receiving Company will pay for them on the
\nfollowing basis:<\/p>\n
(i) Resources will charge the Receiving Company for its direct
\n operating costs incurred in providing the Services, including, but not
\n limited to, allocable salary and wages, incentives, paid absences, payroll
\n taxes, payroll additives (insurance premiums, social security, health care
\n and retirement benefits and the like) and similar expenses, and
\n reimbursement of out-of-pocket third party costs and expenses; and<\/p>\n
(ii) Resources will also charge the Receiving Company for its indirect
\n costs of providing the services, including, but not limited to, allocable
\n charges for management, payroll, procurement, legal, risk management,
\n accounting, tax, audit, human Resources and the like, and similar expenses.<\/p>\n
It is the intent of the parties that the charges for the Services will be based
\non Resources’ fully allocated direct and indirect costs of providing the
\nServices, but without any element of profit, and that the Services under this
\nAgreement and similar services provided by Resources to entities within the
\nResources Group will be charged for on a basis that allocates the costs charged
\nout on a fair and nondiscriminatory basis. <\/p>\n
(b) SPECIAL PROVISIONS APPLICABLE TO COMPUTER SYSTEMS SERVICES. Costs
\nincurred by Resources in providing Computer Systems Services that constitute
\ncapital investment shall be charged to the Receiving Company in the form of a
\nbase service rate on an installed megawatt basis, using the same methodology by
\nwhich capital costs are allocated by Resources to Resources’ generation
\noperations in regions outside the territory served by the business conducted
\nwith the Genco Assets. Capital additions that benefit both the operations
\nconducted with the Genco Assets and Resources’ generation operations in other
\nregions will be allocated on an installed megawatt basis. Capital additions that
\nbenefit only the operation of the Genco Assets or only Resources’ other
\ngeneration operations will be charged directly to the entity that benefits from
\nthose additions, and use by others shall be prohibited.<\/p>\n
(c) BUDGETING. In advance of each calendar year, Resources shall
\nprepare and deliver to the Receiving Party a proposed budget for Services to be
\nperformed during that year, taking into account such information as may be
\nprovided by Receiving Company for the specification of the scope of the Services
\nto be performed during that year and any changes in the scope of work from that
\ntheretofore provided, and including budgetary parameters for the use of third
\nparty service providers. Resources will also prepare on a monthly basis forward
\nbudgetary forecasts for the Services, including an analysis of variances from
\npreviously budgeted amounts.<\/p>\n
8<\/p>\n
(d) CHARGES FOR ADDITIONAL SERVICES. Receiving Company shall pay
\nResources the charges, if any, set forth on each Exhibit hereafter created for
\neach of the Additional Services listed therein. Notwithstanding the foregoing
\nthe agreement of a party to provide or receive any Additional Service at any
\ngiven rate or charge shall be at the sole discretion of such party.<\/p>\n
(e) PAYMENT TERMS. Resources shall bill Receiving Company monthly for
\nall charges pursuant to this Agreement and Receiving Company shall pay Resources
\nfor all Services within thirty days after receipt of an invoice therefor.
\nCharges shall be supported by reasonable documentation (which may be maintained
\nin electronic form) consistent with past practices. Late payments shall bear
\ninterest at the lesser of the prime rate as announced and in effect from time to
\ntime at The Chase Manhattan Bank plus two percent (2%) per annum or the maximum
\nnon-usurious rate of interest permitted by applicable law.<\/p>\n
(f) PERFORMANCE UNDER ANCILLARY AGREEMENTS. Notwithstanding anything
\nto the contrary contained herein, Receiving Company shall not be charged under
\nthis Agreement for any Services that are specifically required to be performed
\nunder the Separation Agreement or any other Ancillary Agreement and any such
\nother Services shall be performed and charged for in accordance with the terms
\nof the Separation Agreement or such other Ancillary Agreement.<\/p>\n
(g) ERROR CORRECTION; TRUE-UPS; ACCOUNTING. Resources shall make
\nadjustments to charges as required to reflect the discovery of errors or
\nomissions in charges. Resources and Receiving Company shall conduct a true-up
\nprocess at least annually and more frequently if necessary to adjust charges
\nbased on a reconciliation of amounts charged and costs incurred. It is the
\nintent of the parties that such true-up process will be conducted using
\nsubstantially the same process, procedures and methods of review as have been
\nheretofore in effect. Resources will maintain such books and records as are
\nnecessary to support the charges for Services, in sufficient detail as may be
\nnecessary to enable REI to satisfy applicable regulatory requirements. Services
\nunder this Agreement and charges therefor shall be subject to the provisions of
\nSection 10.5 of the Separation Agreement (Audit Rights).<\/p>\n
2.3 GENERAL OBLIGATIONS; STANDARD OF CARE.<\/p>\n
(a) PERFORMANCE METRICS: PROVIDING COMPANY. The Providing Company
\nshall maintain sufficient resources to perform its obligations hereunder and
\nshall perform such obligations in a commercially reasonable manner. Specific
\nperformance metrics for the Providing Company may be set forth in Exhibits
\nreferred to herein. Where none is set forth, the Providing Company shall provide
\nServices in accordance with the policies, procedures and practices in effect for
\nthe provision of similar services in support of the operation and maintenance of
\nthe Genco Assets before the date of this Agreement and shall exercise the same
\ncare and skill as it exercises in performing similar services hereafter for
\ngeneration operations conducted by members of the Resources Group and shall not,
\nin situations in which common personnel, equipment or facilities are used in
\nperforming Services hereunder and such similar Services for <\/p>\n
9<\/p>\n
members of the Resources Group, favor either a Receiving Company or a member of
\nthe Resources Group.<\/p>\n
(b) PERFORMANCE METRICS: RECEIVING COMPANY. Specific performance
\nmetrics for the Receiving Company may be set forth in Exhibits referred to
\nherein. Where none is set forth, the Receiving Company shall, in connection with
\nreceiving Services, follow the policies, procedures and practices in effect
\nbefore the date of this Agreement including providing information and
\ndocumentation sufficient for the Providing Company to perform the Services as
\nthey were performed before the date of this Agreement and making available, as
\nreasonably requested by the Providing Company, sufficient resources and timely
\ndecisions, approvals and acceptances in order that Providing Company may
\naccomplish its obligations hereunder in a timely manner. In connection with the
\nprovision of Information Technology Services, Receiving Company will use
\nhardware and software configurations conforming to Resources’ standards when
\nreasonably practicable. If Receiving Company elects to use different standards,
\nResources will use commercially reasonable efforts to provide services
\nconsistent with such standards, but shall have no responsibility for the
\nfunctionality of the nonconforming configurations, and Receiving Company shall
\nbe responsible for all costs incurred by Resources in adapting to the different
\nstandards.<\/p>\n
(c) TRANSITIONAL NATURE OF SERVICES; CHANGES. The parties acknowledge
\nthe transitional nature of the Services and that Providing Company may make
\nchanges from time to time in the manner of performing the Services if Providing
\nCompany is making similar changes in performing similar services for members of
\nthe Resources Group and if Providing Company furnishes to Receiving Company
\nsubstantially the same notice Providing Company shall provide members of the
\nResources Group respecting such changes.<\/p>\n
(d) RESPONSIBILITY FOR ERRORS; DELAYS. Providing Company’s sole
\nresponsibility to Receiving Company:<\/p>\n
(i) for errors or omissions in Services, shall be to furnish correct
\n information and\/or adjustment in the Services, at no additional cost or
\n expense to Receiving Company; provided, Receiving Company must promptly
\n advise Providing Company of any such error or omission of which it becomes
\n aware after having used commercially reasonable efforts to detect any such
\n errors or omissions in accordance with the standard of care set forth in
\n Section 2.3(b); and provided, further, that the responsibility to furnish
\n correct information or an adjustment of services at no additional cost or
\n expense to the Receiving Company shall not be construed to require
\n Providing Company to make any payment or incur any Liability for which it
\n is not responsible, or with respect to which it is provided indemnity,
\n under Section 2.7; and<\/p>\n
(ii) for failure to deliver any Service because of Impracticability,
\n shall be to use commercially reasonable efforts, subject to subsection
\n 2.4(b), to make the Services available and\/or to resume performing the
\n Services as promptly as reasonably practicable.<\/p>\n
10<\/p>\n
(e) GOOD FAITH COOPERATION; CONSENTS. The parties will use good faith
\nefforts to cooperate with each other in all matters relating to the provision
\nand receipt of Services. Such cooperation shall include exchanging information,
\nproviding electronic access to systems used in connection with Services to the
\nextent the systems in use are designed and configured to permit such access,
\nperforming true-ups and adjustments and obtaining all consents, licenses,
\nsublicenses or approvals necessary to permit each party to perform its
\nobligations hereunder. The parties will cooperate with each other in making such
\ninformation available as needed in the event of a tax audit or Regulatory
\nProceeding, whether in the United States or any other country.<\/p>\n
2.4 CERTAIN LIMITATIONS.<\/p>\n
(a) SERVICE BOUNDARIES AND SCOPE. Except as provided in an Exhibit for
\na Service, the Services will be available only for purposes of conducting the
\ngeneration business of REI and its Subsidiaries substantially in the manner as
\nthe generation business of the Reliant Energy HL&P Division of REI was conducted
\nprior to the Effective Date.<\/p>\n
(b) IMPRACTICABILITY. Providing Company shall not be required to
\nprovide any Service to the extent the performance of such Service becomes
\n“Impracticable” as a result of a cause or causes outside the reasonable control
\nof Providing Company including unfeasible technological requirements, or to the
\nextent the performance of such Services would require Providing Company to
\nviolate any applicable laws, rules or regulations or would result in the breach
\nof any software license or other applicable contract.<\/p>\n
(c) SALE, TRANSFER, ASSIGNMENT. No Receiving Company may sell,
\ntransfer, assign or otherwise use the Services provided hereunder, in whole or
\nin part, for the benefit of any Person other than a member of the REI Group.
\nWithout limitation, it is understood and agreed that REI may assign its rights
\nunder this Agreement to Genco LP.<\/p>\n
2.5 CONFIDENTIALITY.<\/p>\n
(a) INFORMATION SUBJECT TO OTHER OBLIGATIONS. Providing Company and
\nReceiving Company agree that all Information regarding the Services, including,
\nbut not limited to, price, costs, methods of operation and software, shall be
\nmaintained in confidence and shall be subject to Sections 10.3 and 10.15 of the
\nSeparation Agreement.<\/p>\n
(b) ALL INFORMATION CONFIDENTIAL. Providing Company’s systems used to
\nperform the Services provided hereunder are confidential and proprietary to
\nProviding Company or third parties. Receiving Company shall treat these systems
\nand all related procedures and documentation as confidential and proprietary to
\nProviding Company or its third party vendors.<\/p>\n
11<\/p>\n
(c) INTERNAL USE; TITLE, COPIES, RETURN. Subject to the applicable
\nprovisions of the Intellectual Property Agreement governing the ownership, use,
\nand licensing of Intellectual Property, Receiving Company agrees that:<\/p>\n
(i) all systems, procedures and related materials provided to
\n Receiving Company are for Receiving Company’s internal use only and only as
\n related to the Services or any of the underlying systems used to provide
\n the Services;<\/p>\n
(ii) title to all systems used in performing the Services provided
\n hereunder shall remain in Providing Company or its third party vendors; and<\/p>\n
(iii) upon the termination of any of the Services, Receiving Company
\n shall return to Providing Company, as soon as practicable, any equipment or
\n other property of Providing Company relating to the Services which is owned
\n or leased by it and is or was in Receiving Company’s possession or control.<\/p>\n
2.6 TERM; EARLY TERMINATION.<\/p>\n
(a) TERM. The term of this Agreement shall commence on the date hereof
\nand shall remain in effect through the earlier of (i) the Option Closing Date,
\n(ii) the sale or disposition by REI, directly or indirectly, of Genco LP or of
\nall or substantially all of the Genco Assets, and (iii) May 31, 2005 or until
\nsuch earlier time as all Services are terminated as provided in this Section.
\nNotwithstanding the foregoing, if the Genco Option is not exercised prior to the
\nOption Expiration Date, Receiving Company may extend the term of this Agreement
\nuntil December 31, 2005 (or such earlier time as Genco LP or all or
\nsubstantially all of the Genco Assets are disposed of as provided in clause (ii)
\nof the preceding sentence). This Agreement may be extended by the parties in
\nwriting either in whole or with respect to one or more of the Services,
\nprovided, however, that such extension shall only apply to the Service for which
\nthe Agreement was extended. Services shall be subject to earlier termination as
\nprovided herein. In the event that any Genco Asset is sold or otherwise disposed
\nof other than through exercise of the Genco Option, Services shall no longer be
\nprovided with respect to the Genco Asset that is sold or otherwise disposed of
\nand the charges for services shall be adjusted to take the same into account. In
\nthe event a change is made to the Option Expiration Date pursuant to Section
\n12.1 of the Genco Option Agreement, corresponding changes shall automatically be
\nmade to the May 31, 2005 and December 31, 2005 dates in this paragraph.<\/p>\n
(b) TERMINATION BY RECEIVING COMPANY OF SPECIFIC SERVICE CATEGORIES. A
\nReceiving Company may terminate this Agreement either with respect to all, or
\nwith respect to any one or more, of the Services provided hereunder at any time
\nand from time to time, for any reason or no reason, by giving written notice to
\nthe Providing Company as follows:<\/p>\n
(i) for Technical Services, except to the extent otherwise provided in
\n Exhibit 2.1(a)(i), a terminated category of Services must include all
\n Services <\/p>\n
12<\/p>\n
included in one of the service categories specified in Exhibit 2.1(a)(i),
\n and notice of termination thereof must be given at least 90 days in advance
\n of the effective date of the termination.<\/p>\n
(ii) for Environmental and Safety Services, except to the extent
\n otherwise provided in Exhibit 2.1(a)(ii), a terminated category of Services
\n must include all of the Services included in one of the service categories
\n specified in Exhibit 2.1(a)(ii), and notice of termination thereof must be
\n given at least 90 days in advance of the effective date of the termination.<\/p>\n
(iii) for Computer Systems Services, except to the extent otherwise
\n provided in Exhibit 2.1(a)(iii), a terminated category of Services must
\n include all of the Services included in one of the service categories
\n specified in Exhibit 2.1(a)(iii), and notice of termination thereof must be
\n given at least 90 days in advance of the effective date of the termination.<\/p>\n
(iv) for Information Technology Services, except to the extent
\n otherwise provided on Exhibit 2.1(a)(iv), a terminated category of Services
\n must include all of the Services included in one of the service categories
\n specified in Exhibit 2.1(a)(iv), and notice of termination thereof must be
\n given at least 90 days in advance of the effective date of the termination.<\/p>\n
(c) TERMINATION OF LESS THAN ALL SERVICES. In the event of any
\ntermination with respect to one or more, but less than all, Services, this
\nAgreement shall continue in full force and effect with respect to any Services
\nnot terminated hereby.<\/p>\n
2.7 DISCLAIMER OF WARRANTIES, LIMITATION OF LIABILITY AND
\nINDEMNIFICATION.<\/p>\n
(a) DISCLAIMER OF WARRANTIES. RESOURCES DISCLAIMS ALL WARRANTIES,
\nEXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF
\nMERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE
\nSERVICES. RESOURCES MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE QUALITY,
\nSUITABILITY OR ADEQUACY OF THE SERVICES FOR ANY PURPOSE OR USE.<\/p>\n
(b) LIMITATION OF LIABILITY; INDEMNIFICATION OF RECEIVING COMPANY.
\nResources and its Subsidiaries shall have no Liability to any Receiving Company
\nwith respect to its furnishing any of the Services hereunder except for
\nLiabilities arising out of or resulting from the gross negligence or willful
\nmisconduct occurring after the Effective Date of Resources or any member of the
\nResources Group. Resources will indemnify, defend and hold harmless each
\nReceiving Company in respect of all such Liabilities arising out of or resulting
\nfrom such gross negligence or willful misconduct. Such indemnification
\nobligation shall be a Liability of Resources for purposes of the Separation
\nAgreement and the provisions of Article III of the Separation Agreement with
\nrespect to indemnification shall govern with respect thereto. IN NO EVENT SHALL
\nRESOURCES OR ANY MEMBER OF THE RESOURCES GROUP HAVE ANY LIABILITY UNDER <\/p>\n
13<\/p>\n
THIS AGREEMENT OR OTHERWISE ARISING OUT OF OR RESULTING FROM THE PERFORMANCE OF,
\nOR THE FAILURE TO PERFORM, SERVICES FOR LOSS OF ANTICIPATED PROFITS BY REASON OF
\nANY BUSINESS INTERRUPTION, FACILITY SHUTDOWN OR NON-OPERATION, LOSS OF DATA OR
\nOTHERWISE OR FOR ANY INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES,
\nWHETHER OR NOT CAUSED BY OR RESULTING FROM NEGLIGENCE, INCLUDING GROSS
\nNEGLIGENCE, AND WHETHER OR NOT RESOURCES OR ANY MEMBER OF THE RESOURCES GROUP
\nWAS INFORMED OF THE POSSIBILITY OF THE EXISTENCE OF SUCH DAMAGES. IN NO EVENT
\nSHALL RESOURCES OR ANY MEMBER OF THE RESOURCES GROUP HAVE ANY LIABILITY
\nHEREUNDER OR OTHERWISE ARISING OUT OF OR RESULTING FROM THE PERFORMANCE OF, OR
\nFAILURE TO PERFORM, SERVICES IN AN AGGREGATE AMOUNT EXCEEDING THE TOTAL CHARGES
\nPAID OR PAYABLE TO RESOURCES HEREUNDER.<\/p>\n
(c) LIMITATION OF LIABILITY; INDEMNIFICATION OF PROVIDING COMPANY. REI
\nand each other Receiving Company shall indemnify and hold harmless Resources in
\nrespect of all Liabilities arising out of or resulting from Resources’
\nfurnishing or failing to furnish the Services to such Receiving Company provided
\nfor in this Agreement, other than Liabilities arising out of or resulting from
\nthe gross negligence or willful misconduct of Resources or any other member of
\nthe Resources Group. The provisions of this indemnity shall apply only to losses
\nwhich relate directly to the provision of Services. Such indemnification
\nobligation shall be a Liability of REI for purposes of the Separation Agreement
\nand the provisions of Article III of the Separation Agreement with respect to
\nindemnification shall govern with respect thereto. IN NO EVENT SHALL REI OR ANY
\nMEMBER OF THE REI GROUP HAVE ANY LIABILITY UNDER THIS AGREEMENT OR OTHERWISE
\nARISING OUT OF OR RESULTING FROM ITS RECEIPT OF SERVICES HEREUNDER FOR LOSS OF
\nANTICIPATED PROFITS OR FOR ANY INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL
\nDAMAGES, WHETHER OR NOT CAUSED BY OR RESULTING FROM NEGLIGENCE, INCLUDING GROSS
\nNEGLIGENCE, AND WHETHER OR NOT REI OR ANY MEMBER OF THE REI GROUP WAS INFORMED
\nOF THE POSSIBILITY OF THE EXISTENCE OF SUCH DAMAGES.<\/p>\n
(d) SUBROGATION OF RIGHTS VIS-A-VIS THIRD PARTY CONTRACTORS. In the
\nevent any Liability arises from the performance of Services hereunder by a third
\nparty contractor, the Receiving Company shall be subrogated to such rights, if
\nany, as the Providing Company may have against such third party contractor with
\nrespect to the Services provided by such third party contractor to or on behalf
\nof the Receiving Company. Subrogation under this Section 2.7(d) shall not affect
\nthe obligation of Providing Company to perform Services under this Agreement.<\/p>\n
2.8 REPRESENTATIVES. Each party shall by notice to the other appoint
\none or more Representatives to facilitate communications and performance under
\nthis Agreement. The maximum number of Representatives for each party shall be
\nfour, one for Technical Services, one for Environmental and Safety Services, one
\nfor Computer Systems Services and one for Information Technology Services. Each
\nparty may treat an act of a Representative of another party as being authorized
\nby such other party without inquiring behind such act or ascertaining whether
\nsuch Representative had authority to so act. Each party shall have the right at
\nany time and from time to time to replace any of its Representatives by giving
\nnotice in writing to the other party setting forth the name of (i) each
\nRepresentative to be replaced and (ii) the replacement, and certifying that the<\/p>\n
14<\/p>\n
replacement Representative is authorized to act for the party giving the notice
\nin all matters relating to this Agreement (or matters relating to one category
\nof Services as aforesaid).<\/p>\n
ARTICLE III
\n MISCELLANEOUS<\/p>\n
3.1 TAXES. (a) GENERAL. The Receiving Company shall bear all taxes,
\nduties and other similar charges (and any related interest and penalties),
\nimposed as a result of its receipt of Services under this Agreement, including
\nany tax which Receiving Company is required to withhold or deduct from payments
\nto Providing Company, except any net income tax imposed upon Providing Company
\nby the country of its incorporation or any governmental entity within its
\ncountry of incorporation.<\/p>\n
(b) SALES TAX LIABILITY AND PAYMENT. Notwithstanding Section 3.1(a),
\neach Receiving Company is liable for and will indemnify and hold harmless any
\nProviding Company from all sales, use and similar taxes (plus any penalties,
\nfines or interest thereon) (collectively, “Sales Taxes”) assessed, levied or
\nimposed by any governmental or taxing authority on the providing of Services by
\nthe Providing Company to the Receiving Company. The Providing Company shall
\ncollect from the Receiving Company any Sales Tax that is due on the Service it
\nprovides to such Receiving Company and shall pay such Sales Tax so collected to
\nthe appropriate governmental or taxing authority.<\/p>\n
3.2 LAWS AND GOVERNMENTAL REGULATIONS. Receiving Company shall be
\nresponsible for (i) compliance with all laws and governmental regulations
\naffecting its business and (ii) any use Receiving Company may make of the
\nServices to assist it in complying with such laws and governmental regulations.
\nThe provision of Services shall comply, to the extent applicable, with REI’s
\nInternal Code of Conduct. Providing Company shall comply with all laws and
\ngovernmental regulations applicable to the provision of Services.<\/p>\n
3.3 RELATIONSHIP OF PARTIES. Nothing in this Agreement shall be deemed
\nor construed by the parties or any third party as creating the relationship of
\nprincipal and agent, partnership or joint venture between the parties, it being
\nunderstood and agreed that no provision contained herein, and no act of the
\nparties, shall be deemed to create any relationship between the parties other
\nthan the relationship of independent contractor nor be deemed to vest any
\nrights, interest or claims in any third parties.<\/p>\n
3.4 REFERENCES. All reference to Sections, Articles, Exhibits or
\nSchedules contained herein mean Sections, Articles, Exhibits or Schedules of or
\nto this Agreement, as the case may be, unless otherwise stated. When a reference
\nis made in this Agreement to a “party” or “parties”, such reference shall be to
\na party or parties to this Agreement unless otherwise indicated. Whenever the
\nwords “include”, “includes” or “including” are used in this Agreement, they
\nshall be deemed to be followed by the words “without limitation”. The use of the
\nsingular herein shall be deemed to be or include the plural (and vice versa)
\nwhenever appropriate. The use of the words “hereof”, “herein”, <\/p>\n
15<\/p>\n
“hereunder”, and words of similar import shall refer to this entire Agreement,
\nand not to any particular article, section, subsection, clause, paragraph or
\nother subdivision of this Agreement, unless the context clearly indicates
\notherwise. The word “or” shall not be exclusive; “may not” is prohibitive and
\nnot permissive.<\/p>\n
3.5 MODIFICATION AND AMENDMENT. This Agreement may not be modified or
\namended, or any provision waived, except in the manner set forth in the
\nSeparation Agreement.<\/p>\n
3.6 INCONSISTENCY. In the event of any Inconsistency between the terms
\nof this Agreement and any of the Exhibits hereto, the terms of this Agreement,
\nother than charges, shall control.<\/p>\n
3.7 RESOLUTION OF DISPUTES. If a dispute, claim or controversy results
\nfrom or arises out of or in connection with this Agreement or the performance
\nof, or failure to perform, the Services, the parties agree to use the procedures
\nset forth in Article IX of the Separation Agreement, in lieu of other available
\nremedies, to resolve the same.<\/p>\n
3.8 SUCCESSORS AND ASSIGNMENT. This Agreement shall be binding upon
\nand inure to the benefit of the parties and their respective successors and
\npermitted assigns. Except as contemplated by Section 2.4(c), no party shall
\nassign this Agreement or any rights herein without the prior written consent of
\nthe other party, which may be withheld for any or no reason.<\/p>\n
3.9 NOTICES. Unless expressly provided herein, all notices, claims,
\ncertificates, requests, demands and other communications hereunder shall be in
\nwriting and shall be deemed to be duly given (i) when personally delivered or
\n(ii) if mailed registered or certified mail, postage prepaid, return receipt
\nrequested, on the date the return receipt is executed or the letter refused by
\nthe addressee or its agent or (iii) if sent by overnight courier which delivers
\nonly upon the signed receipt of the addressee, on the date the receipt
\nacknowledgment is executed or refused by the addressee or its agent or (iv) if
\nsent by facsimile or other generally accepted means of electronic transmission,
\non the date confirmation of transmission is received (provided that a copy of
\nany notice delivered pursuant to this clause (iv) shall also be sent pursuant to
\nclause (ii) or (iii)), addressed to the attention of the addressee’s General
\nCounsel at the address of its principal executive office or to such other
\naddress or facsimile number for a party as it shall have specified by like
\nnotice.<\/p>\n
3.10 GOVERNING LAW. This Agreement shall be governed by and construed
\nin accordance with the laws of the State of Texas.<\/p>\n
3.11 SEVERABILITY. Wherever possible, each provision of this Agreement
\nshall be interpreted in such a manner as to be effective and valid under
\napplicable law. If any portion of this Agreement is declared invalid for any
\nreason, such declaration shall have no effect upon the remaining portions of
\nthis Agreement, which shall continue in full force and effect as if this
\nAgreement had been executed with the invalid portions thereof deleted.<\/p>\n
16<\/p>\n
3.12 COUNTERPARTS. This Agreement may be executed in two or more
\ncounterparts, each of which shall be deemed an original, and all of which shall
\nconstitute one and the same instrument.<\/p>\n
3.13 RIGHTS OF THE PARTIES. Nothing expressed or implied in this
\nAgreement is intended or will be construed to confer upon or give any person or
\nentity, other than the parties and to the extent provided herein their
\nrespective Subsidiaries, any rights or remedies under or by reason of this
\nAgreement or any transaction contemplated thereby.<\/p>\n
3.14 RESERVATION OF RIGHTS. The waiver by either party of any of its
\nrights or remedies afforded hereunder or at law is without prejudice and shall
\nnot operate to waive any other rights or remedies which that party shall have
\navailable to it, nor shall such waiver operate to waive the party’s rights to
\nany remedies due to a future breach, whether of a similar or different nature.
\nThe failure or delay of a party in exercising any rights granted to it hereunder
\nshall not constitute a waiver of any such right and that party may exercise that
\nright at any time. Any single or partial exercise of any particular right by a
\nparty shall exhaust the same or constitute a waiver of any other right.<\/p>\n
3.15 ENTIRE AGREEMENT. All understandings, representations, warranties
\nand agreements, if any, heretofore existing between the parties regarding the
\nsubject matter hereof are merged into this Agreement, which fully and completely
\nexpress the agreement of the parties with respect to the subject matter hereof.<\/p>\n
17<\/p>\n
IN WITNESS WHEREOF, the parties have executed this Technical Services
\nAgreement as of the date first above written.<\/p>\n
RELIANT ENERGY, INCORPORATED<\/p>\n
By: \/s\/ David M. McClanahan
\n ———————————–
\n David M. McClanahan
\n Vice Chairman<\/p>\n
RELIANT RESOURCES, INC.<\/p>\n
By: \/s\/ R. S. Letbetter
\n ———————————–
\n R. S. Letbetter,
\n Chairman, President and
\n Chief Executive Officer<\/p>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[8672,8673],"corporate_contracts_industries":[9534],"corporate_contracts_types":[9613,9620],"class_list":["post-42894","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-reliant-energy-inc","corporate_contracts_companies-reliant-resources-inc","corporate_contracts_industries-utilities__electric","corporate_contracts_types-operations","corporate_contracts_types-operations__services"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/42894","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=42894"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=42894"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=42894"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=42894"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}