EXHIBIT 4.11
EXECUTION COPY
NRG PARENT AGREEMENT
BY
NRG ENERGY, INC.
IN FAVOR OF
THE BANK OF NEW YORK
(Collateral Agent)
DATED AS OF JANUARY 6, 2004
Table of Contents
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SECTION 1 DEFINITIONS; RULES OF INTERPRETATION........................................................... 2
SECTION 2 NRG OBLIGATIONS................................................................................ 3
Section 2.1 Equity Reimbursement Payments; Corporate Services Accumulation Amount.......... 3
Section 2.2 Claim Swap..................................................................... 3
Section 2.3 Interconnection Solution....................................................... 4
Section 2.4 Rockford Compressor............................................................ 5
Section 2.5 Completion..................................................................... 5
Section 2.6 Deposit in the NRG Claim Settlement Account.................................... 5
Section 2.7 Deposit in the Major Maintenance Reserve Account............................... 5
Section 2.8 Cash Reconciliation............................................................ 5
Section 2.9 Intercompany Account Balances.................................................. 6
Section 2.10 Pledge of Membership Interests................................................. 6
Section 2.11 Energy Marketing Services Agreement............................................ 7
SECTION 3 REPRESENTATIONS AND WARRANTIES................................................................. 7
Section 3.1 Organization and Qualification................................................. 7
Section 3.2 Authorization and Enforceability............................................... 7
Section 3.3 No Conflict; No Default........................................................ 7
Section 3.4 No Consent..................................................................... 8
Section 3.5 Compliance with Law............................................................ 8
Section 3.6 Financing Documents............................................................ 8
Section 3.7 Financial Statements........................................................... 8
Section 3.8 Taxes.......................................................................... 8
Section 3.9 Regulatory Matters............................................................. 8
SECTION 4 COVENANTS...................................................................................... 9
Section 4.1 Corporate Existence; Business.................................................. 9
Section 4.2 Compliance with Legal Requirements............................................. 9
Section 4.3 Taxes.......................................................................... 9
Section 4.4 Ranking........................................................................ 10
Section 4.5 Reporting Requirements......................................................... 10
Section 4.6 Financial and Other Information................................................ 10
SECTION 5 OBLIGATIONS ABSOLUTE, ETC...................................................................... 12
SECTION 6 SPECIFIC PROVISIONS............................................................................ 13
Section 6.1 Reinstatement.................................................................. 13
Section 6.2 Specific Performance........................................................... 13
Section 6.3 Bankruptcy Code Waiver......................................................... 13
Section 6.4 Cash Collateral Accounts....................................................... 14
Table of Contents
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Section 6.5 Set-Off........................................................................ 15
SECTION 7 DEDUCTIONS/WITHHOLDING......................................................................... 15
SECTION 8 NOTICES........................................................................................ 16
Section 8.1 Notices........................................................................ 16
SECTION 9 TERMINATION.................................................................................... 18
SECTION 10 SUCCESSORS AND ASSIGNS......................................................................... 18
SECTION 11 AMENDMENT...................................................................................... 18
SECTION 12 EVENTS OF DEFAULT AND REMEDIES................................................................. 18
Section 12.1 Events of Default.............................................................. 18
Section 12.2 Remedies....................................................................... 20
Section 12.3 Cash Collateralization in Connection with Issuer Event of
Default........................................................................ 21
SECTION 13 HEADINGS....................................................................................... 21
SECTION 14 GOVERNING LAW.................................................................................. 21
SECTION 15 CONSENT TO JURISDICTION; APPOINTMENT OF AGENT FOR SERVICE OF PROCESS........................... 22
SECTION 16 WAIVER OF JURY TRIAL........................................................................... 22
SECTION 17 EXPENSES....................................................................................... 22
SECTION 18 MISCELLANEOUS.................................................................................. 23
Section 18.1 Counterparts................................................................... 23
Section 18.2 Severability................................................................... 23
Section 18.3 Limitation of Liability........................................................ 23
Section 18.4 Third Party Rights............................................................. 23
Section 18.5 Survival of Obligations........................................................ 23
Section 18.6 Rights of Collateral Agent..................................................... 23
SECTION 19 Restricted Payment Amount...................................................................... 2
Section 19.1 ............................................................................... 2
Section 19.2 ............................................................................... 2
SECTION 20 Corporate Services Annual Fee.................................................................. 2
Section 20.1 ............................................................................... 2
Section 20.2 ............................................................................... 2
Table of Contents
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SECTION 21 Corporate Services Accumulation Amount......................................................... 2
Section 21.1 ............................................................................... 2
Section 21.2 ............................................................................... 2
Section 21.3 ............................................................................... 2
Section 21.4 ............................................................................... 3
Section 21.5 ............................................................................... 3
SECTION 22 Equity Reimbursement Amount.................................................................... 3
Section 22.1 ............................................................................... 3
Section 22.2 ............................................................................... 3
Section 22.3 ............................................................................... 3
Section 22.4 ............................................................................... 3
SECTION 23 Supporting Documentation....................................................................... 3
Exhibit A Form of Equity Reimbursement Certificate
Exhibit B Form of Interconnection Solution Transfer Documents
Schedule A, B & C Intercompany Account Balances
Schedule D Regulatory Matters
NRG PARENT AGREEMENT
This NRG PARENT AGREEMENT dated as of January 6, 2004 (as
amended, amended and restated, supplemented or otherwise modified from time to
time, this "Agreement"), is made by NRG ENERGY, INC. ("NRG Energy") in favor of
THE BANK OF NEW YORK, as collateral agent on behalf of the Secured Parties
referred to herein (the "Collateral Agent"). Capitalized terms used herein and
not otherwise defined shall be defined as provided in Section 1 hereof.
RECITALS
WHEREAS:
1. NRG Energy (a) indirectly owns 100% of the membership
interests in NRG Peaker Finance Company LLC (the "Issuer") and (b) indirectly
owns 100% of the membership interests in each of the Project Companies (as
defined in the Common Agreement referred to below).
2. Reference is made to that certain Amended and Restated
Common Agreement, dated as of the date hereof (the "Common Agreement"), among
the Issuer, each of the Project Companies, XL Capital Assurance Inc. ("XLCA"),
the Swap Counterparty, the Trustee and the Collateral Agent, and to the original
Common Agreement, dated as of June 18, 2002 (the "Original Common Agreement"),
among the Issuer, each of the Project Companies, XLCA, the Swap Counterparty and
the Original Trustee.
3. Pursuant to that certain Indenture, dated as of June 18,
2002, the Issuer issued $325 million of Series A Floating Rate Senior Secured
Bonds due 2019 (the "Series A Bonds"). The full and timely payment of regularly
scheduled payments of principal and interest on the Series A Bonds is
unconditionally and irrevocably guaranteed by XLCA pursuant to that certain
Financial Guaranty Insurance Policy dated as of June 18, 2002 (including the
endorsement thereto, the "Policy"), between XLCA and the Original Trustee.
4. Reference is made to that certain ISDA Master Agreement,
dated as of June 18, 2002 (including the schedule, the credit support annex and
the confirmation thereto) (the "Swap Agreement"), between the Issuer and Xxxxxxx
Xxxxx Mitsui Marine Derivative Products, L.P. (the "Swap Counterparty"). The
full and timely payment of regularly scheduled net payments due to the Swap
Counterparty under the Swap Agreement is unconditionally and irrevocably
guaranteed by XLCA pursuant to that certain Financial Guaranty Insurance Policy
dated as of June 18, 2002 (the "Swap Policy"), between XLCA and the Swap
Counterparty.
5. Pursuant to the Common Agreement, each of the Project
Companies guarantees the payment by the Issuer of all of the Issuer's
obligations under (a) the Indenture and the Series A Bonds and (b) the Swap
Agreement and (c) that certain Financial Guaranty Insurance and Reimbursement
Agreement, dated as of June 18, 2002 (the "Insurance and Reimbursement
Agreement"), among XLCA, the Issuer and the Project Companies.
6. As a condition precedent to (a) the issuance of the Series
A Bonds, the Policy and the Swap Policy and (b) the execution of the Swap
Agreement by the Swap Counterparty, NRG Energy executed and delivered a
Contingent Guaranty Agreement, dated June 18, 2002 (the "Contingent Guaranty
Agreement"), in favor of the Collateral Agent on behalf of the Secured Parties
providing for certain guarantees and performance obligations.
7. On May 12, 2003, as a consequence of certain Issuer Events
of Default under the Original Common Agreement, XLCA, as Controlling Party,
declared and made all sums of accrued and outstanding principal, accrued but
unpaid interest and accrued but unpaid premium remaining under the Financing
Documents, together with all unpaid amounts, fees, costs and charges due under
any Financing Documents, immediately due and payable (the "Acceleration"), which
Acceleration gave rise to an Early Termination Date under the Contingent
Guaranty Agreement.
8. On May 14, 2003, NRG Energy and certain of its subsidiaries
filed voluntary petitions for bankruptcy under Chapter 11 of the United States
Bankruptcy Code (the "NRG Bankruptcy").
9. Following the Acceleration and the NRG Bankruptcy, NRG
Energy, NRG Power Marketing Inc., the Issuer, the Project Companies and XLCA
agreed to implement a financial restructuring of the Obligations (the
"Restructuring") substantially on the terms set forth in a Restructuring
Agreement, dated September 18, 2003 (the "Restructuring Agreement"), by and
among NRG Energy, NRG Power Marketing Inc., the Issuer, the Project Companies
and XLCA.
10. On October 1, 2003, the United States District Court for
the Southern District of New York entered an order (the "Approval Order") in the
NRG Bankruptcy authorizing and approving the transactions provided in the
Restructuring including the execution and delivery of this Agreement by NRG
Energy. The Approval Order became a Final Order (as defined in the Restructuring
Agreement) on October 11, 2003.
11. It is a condition precedent to the consummation of the
Restructuring that the parties hereto shall have executed and delivered this
Agreement.
NOW THEREFORE, in consideration of the premises contained
herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and as an inducement to the
consummation of the Restructuring, the parties agree:
SECTION 1
DEFINITIONS; RULES OF INTERPRETATION
All capitalized terms used but not defined in this Agreement shall have
the meanings attributed to them in Annex A to the Common Agreement. The rules of
interpretation set forth in Annex A to the Common Agreement shall apply hereto
as though fully set forth herein.
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SECTION 2
NRG OBLIGATIONS
Section 2.1 Equity Reimbursement Payments; Corporate Services
Accumulation Amount.
(a) If on any Annual Scheduled Payment Date, there exists a
Debt Service Shortfall, then NRG Energy agrees to pay, or cause to be paid, on
such Annual Scheduled Payment Date, an amount in Dollars equal to the lesser of
(x) the Debt Service Shortfall and (y) the Equity Reimbursement Amount, in
immediately available funds (the "Equity Reimbursement Obligation"). Any amount
which is not paid when due pursuant to this Section 2.1 shall bear interest at
the Late Payment Rate, as in effect from time to time, until paid in full.
Equity Reimbursement Payments (plus any accrued interest thereon (if any)) shall
be paid to the Collateral Agent and applied on the applicable Annual Scheduled
Payment Date in accordance with the Depositary Agreement, provided, however,
that any Equity Reimbursement Payment received by the Collateral Agent following
the Annual Scheduled Payment Date on which such Equity Reimbursement Payment was
due in accordance with this Section 2.1 shall be immediately paid by the
Collateral Agent (i) first, to XLCA in respect of the Accrued Insurer Loss
Amount (Swap) (if any), (ii) second, to XLCA in respect of the Accrued Insurer
Loss Amount (Bond) (if any) and (iii) third, to the Debt Payment Account.
(b) The Equity Reimbursement Amount shall be immediately due
and payable upon the occurrence of an NRG Event of Default and no further
Restricted Payments under the Financing Documents shall be permitted upon the
occurrence thereof.
(c) Upon the occurrence and during the continuation of an NRG
Event of Default no payments or distributions of the Corporate Services
Accumulation Amount under the Financing Documents and the Corporate Services
Agreement shall be permitted.
Section 2.2 Claim Swap.
(a) NRG Energy shall use commercially reasonable efforts to
cause an Acceptable Assumption of the Big Cajun PPA and the Sterlington PPA by
Louisiana Generating and the reinstatement of the guarantee by
NRG South Central to occur by March 31, 2004.
(b) NRG Energy hereby unconditionally and irrevocably agrees
that: (i) if an Acceptable Assumption has not occurred by March 31, 2004 and
until an Acceptable Assumption has occurred with respect to the Big Cajun PPA
(including the reinstatement of the guarantee by NRG South Central), it shall,
for the benefit of the Secured Parties, make prompt and complete payment to the
Collateral Agent three (3) days following the date on which payment is due from
Louisiana Generating and NRG South Central under the Big Cajun I PPA, of an
amount in Dollars, in immediately available funds, equal to the amount of any
Big Cajun PPA Shortfall for the month with respect to which such shortfall
relates and (ii) if an Acceptable Assumption has not occurred by March 31, 2004
and until an Acceptable Assumption has occurred with respect to the Sterlington
PPA (including the reinstatement of the guarantee by
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NRG South Central), it shall, for the benefit of the Secured Parties, make
prompt and complete payment to the Collateral Agent three (3) days following the
date on which payment is due from Louisiana Generating and NRG South Central, of
an amount in Dollars, in immediately available funds, equal to the amount of any
Sterlington PPA Shortfall for the month with respect to which such shortfall
relates (such payments under clauses (i) and (ii) hereof, collectively a "PPA
Shortfall Payment"); provided that a PPA Shortfall Payment shall not include any
amounts of any Big Cajun I PPA Shortfall and/or any Sterlington PPA Shortfall
relating to any time period on or prior to December 31, 2003. Any amount which
is not paid when due pursuant to this Section 2.1 shall bear interest at the
Late Payment Rate, as in effect from time to time, until paid in full. PPA
Shortfall Payments (plus any accrued interest thereon) shall be paid to the
Collateral Agent and deposited in the Revenue Account.
(c) NRG Energy shall, upon making any PPA Shortfall Payment,
be subrogated to any claim of Big Cajun Project Company or Sterlington Project
Company, as applicable, against Louisiana Generating or NRG South Central to the
extent of such PPA Shortfall Payments and such right of subrogation shall
survive any termination of this Agreement. Payments to NRG Energy in respect of
the foregoing subrogation shall in all cases be subject to and subordinate to
the rights of Big Cajun Project Company or Sterlington Project Company, as
applicable, to receive payment of all amounts due or to become due (other than
with respect to such subrogated claim) from Louisiana Generating or NRG South
Central and NRG Energy agrees that it shall not be entitled to take any action
to enforce such subrogated claim until such amounts are paid in full.
Section 2.3 Interconnection Solution.
(a) NRG Energy shall take, or cause to be taken, in a timely
manner, all commercially reasonable steps necessary to cause the Interconnection
Solution to be in full force and effect by May 31, 2004, including, without
limitation, (i) by the Closing Date, preparing a deed of transfer and any other
documents appropriate or necessary to transfer title in order to effect the
Interconnection Solution, to be executed upon the transfer of title in
substantially the form attached hereto as Exhibit B, (ii) by January 31, 2004,
make, or cause to be made, filings required to receive any necessary consents
and approvals from FERC or any other Governmental Authority with respect to the
Interconnection Solution and (iii) by April 30, 2004, use commercially
reasonable efforts to obtain any necessary consents and approvals from FERC or
any other Governmental Authority with respect to the Interconnection Solution.
(b) NRG Energy shall pay for (i) all reasonable out-of-pocket
expenses of the Secured Parties and Big Cajun Project Company in connection with
the negotiation, preparation and implementation of the Interconnection Solution,
(ii) all transfer, stamp, documentary or other similar taxes, assessments or
charges levied by any governmental or revenue authority in respect of the
Interconnection Solution and all costs and expenses, taxes, assessments and
other charges incurred in connection with any filing, registration, recording or
perfection of any security interest in favor of the Secured Parties and (iii)
all costs, expenses and other charges in respect of title insurance procured
with respect to liens created pursuant to any mortgage in favor of the
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Secured Parties in connection with the Interconnection Solution. For the
avoidance of doubt, Big Cajun Project Company shall pay to Louisiana Generating
$200,000 as consideration for the actual assets being transferred in connection
with the Interconnection Solution.
Section 2.4 Rockford Compressor. NRG Energy agrees to
pay, or cause to be paid, to, or for the benefit of, each of Rockford I Project
Company and Rockford II Project Company an amount in Dollars which will enable
such Project Company to install (a) a permanent gas compressor at such Project
(i) adequate to maintain a minimum gas pressure of 490 psig or such other
pressure as may be acceptable under the Manufacturer's Guidelines (as defined in
the Rockford I Tolling Agreement) at all times or (ii) as otherwise specified in
the Rockford I Tolling Agreement, if (A) the Independent Engineer determines
that the gas pressure falls below the Manufacturer's Guidelines (as defined in
the Rockford I Tolling Agreement) to operate at full load, (B) if the gas
pressure falls below the minimum pressure of 490 psig or such minimum pressure
as otherwise specified in the Rockford I Tolling Agreement or (C) upon a notice
of default by Exelon to the Collateral Agent in connection with the Rockford I
Tolling Agreement, provided that the obligation under this clause (a) shall
terminate on September 1, 2004, or (b) if a permanent gas compressor has not
previously been installed pursuant to clause (a) hereof, a temporary gas
compressor for the period commencing on May 1, 2004 and ending on September 1,
2004 (collectively, the "Rockford Compressors").
Section 2.5 Completion. In the event that Completion has not
occurred by the Closing Date:
(a) NRG Energy shall pay the Completion Expenses and the costs
associated with the Completion Items; and
(b) NRG shall (x) cause Bayou Cove Project Company to transfer
or assign certain assets to Entergy Gulf States, Inc. in accordance with Section
6.1 of the Bayou Cove EPC Agreement (Electric Interconnection Facilities) and
(y) take, or cause to be taken, any other actions necessary for the Bayou Cove
Project Company to comply with the Bayou Cove EPC Agreement (Electric
Interconnection Facilities).
Section 2.6 Deposit in the NRG Claim Settlement Account. On
the Closing Date, NRG Energy shall deliver, or cause to be delivered, to the
Depositary Agent for credit to the NRG Claim Settlement Account an Acceptable
Letter of Credit with a stated amount equal to $36,236,137.33.
Section 2.7 Deposit in the Major Maintenance Reserve Account.
On the Closing Date, NRG Energy shall deliver to the Depositary Agent for credit
to the Major Maintenance Reserve Account an amount equal to $3,000,000 in
immediately available funds.
Section 2.8 Cash Reconciliation.
(a) NRG Energy shall take, or cause to be taken, all
reasonable steps necessary to (i) perform a cash reconciliation among the
Issuer, the Project Companies, NRG Energy and
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their Affiliates (to the extent such cash reconciliation with respect to such
Affiliates relates to the Issuer and/or any of the Project Companies) covering
the period from September 30, 2003 to December 31, 2003 (the "Cash
Reconciliation III"), in a manner substantially similar in substance and form to
the methodology, which was agreed to by the parties, used to perform a cash
reconciliation for the period from November 1, 2002 to September 30, 2003 ("Cash
Reconciliation II") and any other period prior to December 31, 2003 ("Cash
Reconciliation I"), and (ii) cause the payment of any amounts due in connection
with such Cash Reconciliation III to be paid to the Issuer or the applicable
Project Company and deposited in the Revenue Account, provided that, regardless
of whether NRG Energy succeeds in the correction of the Issuer and the Project
Companies' books, the amounts that would have been due if such corrections would
have been made would still be paid to the Issuer or the applicable Project
Company by January 31, 2004.
(b) NRG Energy shall provide all operating, financial and any
other information, including supporting documentation, regarding the actual O&M
Expenses and Fuel Costs relating to the Cash Reconciliation III as reasonably
requested by XLCA (if XLCA is the Controlling Party) and necessary to effect
such Cash Reconciliation III consistently with historical practices.
(c) NRG Energy shall pay, or cause to paid, an amount equal to
$16,162,852.08 to the Issuer with respect to Cash Reconciliation I and Cash
Reconciliation II to be deposited in the Revenue Account within 30 days
following the Closing Date.
Section 2.9 Intercompany Account Balances.
(a) NRG Energy shall take, within 30 days of the Closing Date,
or cause to be taken, all reasonable steps necessary to (i) clear all
Intercompany Account Balances listed on Schedule A as consideration for the
payment of the Cash Reconciliation I and the Cash Reconciliation II pursuant to
Section 2.8, (ii) reclassify the Intercompany Account Balances listed on
Schedule B as an equity account on the Issuer or the respective Project
Company's balance sheet, (iii) with respect to each Intercompany Account Balance
listed on Schedule C, either (x) clear such Intercompany Account Balance, or (y)
settle such Intercompany Account Balance by reclassifying such balance as an
equity account on the respective Project Company's balance sheet and (iv) clear
all other Intercompany Account Balances which remain outstanding on the Issuer
or the Project Companies' balance sheet as of December 31, 2003, except for the
Intercompany Account Balances that, subject to XLCA's (if XLCA is the
Controlling Party) written consent, may remain outstanding following such
period.
(b) NRG Energy shall provide all operating, financial and any
other information reasonably requested by XLCA (if XLCA is the Controlling
Party) that supports any calculation made in connection with Section 2.9(a)
above and any additional information reasonably requested by XLCA (if XLCA is
the Controlling Party) in connection therewith.
Section 2.10 Pledge of Membership Interests. NRG Energy shall
take, or cause to be taken, all commercially reasonable steps necessary to cause
the membership interests in the
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Big Cajun Project Company and the Sterlington Project Company to be pledged to
the Collateral Agent for the benefit of the Secured Parties within 90 days
following the Closing Date.
Section 2.11 Energy Marketing Services Agreement.
(a) NRG Energy shall provide for letters of credit for the
benefit of the Collateral Agent substantially in the form of Exhibit K to the
Energy Marketing Services Agreements (the "EMS Letter of Credit") in accordance
with the terms, conditions and limitations set forth in the Energy Marketing
Services Agreements to be deposited in the EMS Letter of Credit Account under
the Depositary Agreement. NRG Energy shall provide the initial EMS Letter of
Credit to the Depositary Agent for the benefit of the Collateral Agent on or
before the later of (i) February 1, 2004 or (ii) five (5) Business Days after
the amount of the initial EMS Letter of Credit is determined, but not later than
February 15, 2004.
(b) NRG Energy shall not allow any Person other than Energy
Manager or its permitted successors or assigns under the Energy Marketing
Services Agreement to engage in the wholesale purchase and sale of electric
power on behalf of the Project Companies during the term of the Energy Marketing
Services Agreements, except as otherwise specified in the Energy Marketing
Services Agreement.
SECTION 3
REPRESENTATIONS AND WARRANTIES
NRG Energy represents and warrants to the Collateral Agent for
the benefit of the Secured Parties that, as of the date hereof:
Section 3.1 Organization and Qualification. It is a
corporation, duly organized and validly existing under the laws of the
jurisdiction of its formation, with full right, power and authority under its
certificate of incorporation and bylaws and under the laws of the jurisdiction
of its formation to enter into this Agreement, to perform its obligations
hereunder and to consummate the transactions contemplated hereby.
Section 3.2 Authorization and Enforceability. It has taken all
necessary corporate action to authorize the execution, delivery and performance
by it of this Agreement and no consent of any shareholder of NRG Energy is
required therefore which has not already been obtained. This Agreement has been
duly executed and delivered by NRG Energy and constitutes a legal, valid and
binding obligation of NRG Energy enforceable against it in accordance with its
terms, except as the enforceability thereof may be limited by (i) bankruptcy,
insolvency, reorganization or other similar laws affecting the enforcement of
creditors' rights generally and (ii) general equitable principles regardless of
whether the issue of enforceability is considered in a proceeding in equity or
at law.
Section 3.3 No Conflict; No Default. Neither the execution and
delivery of this Agreement nor compliance with any of the terms and provisions
hereof (a) violates any Legal Requirement, (b) violates the provisions of its
certificate of incorporation and bylaws or
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(c) results in the creation or imposition of any Liens upon any of its property
or assets or in a condition or an event that constitutes (or that, upon notice
or lapse of time or both, would constitute) an event of default under any
material contractual obligation of NRG Energy.
Section 3.4 No Consent. No consent, authorization, filing or
other act by or in respect of any other Person or any Governmental Authority is
required in connection with the execution, delivery or performance by NRG Energy
of this Agreement or the validity or enforceability hereof as to NRG Energy,
except such consents or authorizations which have already been obtained or such
consents or authorizations that the failure to obtain could not reasonably be
expected to have an NRG Energy Material Adverse Effect.
Section 3.5 Compliance with Law. It is in compliance with
applicable Legal Requirements, except to the extent any non-compliance could not
reasonably be expected to have an NRG Energy Material Adverse Effect.
Section 3.6 Financing Documents. In connection with its f
execution of this Agreement, it has received and reviewed copies of the
Operative Documents.
Section 3.7 Financial Statements. In the case of NRG Energy's
delivery on the Closing Date of its (i) Form 10-K for the year ended December
31, 2002 and (ii) Form 10-Q for each of the periods ended March 31, June 30 and
September 30, 2003 (in each of case (i) and (ii), as such may be amended from
time to time (including by Form 8-K or 10-Q/A) and as filed with the Securities
and Exchange Commission) pursuant to the terms of this Agreement, each such
financial statement shall have been prepared in conformity with GAAP and fairly
present, in all material respects, the financial position (on a consolidated
basis) of NRG Energy as of the respective dates thereof and the results of
operations and cash flows (on a consolidated basis) of NRG Energy for each of
the periods ended, subject, in the case of any such unaudited financial
statements, to changes resulting from audit and normal year end adjustments and
the absence of footnotes; provided, the parties acknowledge and agree that in
the event any such financial statements listed in (i) and (ii) above have been
filed with the Securities and Exchange Commission prior to the Closing Date,
such financial statements shall be deemed delivered pursuant to this Agreement.
Section 3.8 Taxes. It has filed all material United States
federal tax returns, and all other material tax returns, required to be filed
and has paid all taxes due pursuant to such returns or pursuant to any
assessment received by it, except such taxes, if any, as are being contested in
good faith and for which adequate reserves have been provided. No notices of tax
liens have been filed and no claims are being asserted concerning any such
taxes, which liens or claims are material to the financial condition of NRG
Energy. The charges, accruals and reserves on the books of NRG Energy for any
taxes or other governmental charges are adequate.
Section 3.9 Regulatory Matters. It is not an investment
company or a company controlled by an investment company, within the meaning of
the Investment Company Act of 1940, as amended. NRG Energy is not a "public
utility company," an "electric utility company" or a "holding company" within
the meaning of PUHCA. The execution, delivery and
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performance of this Agreement by NRG Energy does not violate any provision of
PUHCA or any rule or regulation thereunder. Except as set forth on Schedule D,
NRG Energy is not subject to regulation as a "public utility," an "electric
utility" or a "transmitting utility" under the FPA.
SECTION 4
COVENANTS
Until this Agreement is terminated in accordance with Section
9 hereof, NRG Energy covenants and agrees with the Collateral Agent, for the
benefit of the Secured Parties, as follows:
Section 4.1 Corporate Existence; Business. NRG Energy shall
preserve and maintain (i) its legal existence and form and (ii) all of its
rights, privileges and franchises, if any, necessary to perform its obligations
under this Agreement; provided, however, that NRG Energy may merge or
consolidate with or into, or may sell, convey, transfer or lease all or
substantially all of its properties and assets, as an entirety, to any Person so
long as (A) NRG Energy is the surviving or continuing corporation, or the
surviving or continuing corporation that acquires by sale, conveyance, transfer
or lease is incorporated in the United States of America or Canada and expressly
assumes the payment and performance of all obligations of NRG Energy under this
Agreement and (B) immediately prior to and immediately following such
consolidation, merger, sale, conveyance, transfer or lease, no NRG Event of
Default shall have occurred and be continuing.
Section 4.2 Compliance with Legal Requirements. NRG Energy
shall comply in all material respects with all Legal Requirements binding on it,
except where failure to do so could not reasonably be expected to have an NRG
Energy Material Adverse Effect.
Section 4.3 Taxes.
(a) Other than as provided for in clause (b) below with
respect to taxes of Affiliates, NRG Energy shall duly pay and discharge all
material taxes, rates, assessments, fees and governmental charges upon or
against it or against its properties, in each case before the same becomes
delinquent and before penalties accrue thereon, unless and to the extent that
the same is being contested in good faith by appropriate proceedings and
reserves in conformity with GAAP have been provided therefore on the books of
NRG Energy.
(b) NRG Energy shall cause the due payment and discharge of
all taxes, rates, assessments, fees and governmental charges with respect to
taxes that are payable by an Affiliate of NRG Energy and NRG Energy is not
directly liable for, in each case before the same becomes delinquent and before
penalties accrue thereon, to the extent that a failure to take any such action
shall result in an NRG Energy Material Adverse Effect, unless and to the extent
that the same is being contested in good faith by appropriate proceedings and
reserves in conformity with GAAP have been provided therefor.
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Section 4.4 Ranking. NRG Energy shall cause its obligations
hereunder to at all times rank at least pari passu with all other senior
unsecured obligations of NRG Energy.
Section 4.5 Reporting Requirements. NRG Energy shall, deliver,
or cause to be delivered to the Collateral Agent, the Trustee, the Swap
Counterparty and XLCA (if XLCA is the Controlling Party) with such information
and other documents (it being acknowledged that XLCA shall have no obligation to
provide any notices or other information provided to it pursuant to this Section
4.5 to any other Person): within 20 days following an Annual Scheduled Payment
Date, an Equity Reimbursement Certificate in the form of Exhibit A setting forth
the information required therein. If XLCA is the Controlling Party, XLCA shall
notify NRG Energy of any errors in any of the calculations set forth in such
certificate within 10 days following the receipt of such certificate and NRG
Energy and XLCA shall diligently work to reach a mutual agreement with respect
to the correction of any such errors.
Section 4.6 Financial and Other Information. NRG shall
deliver, or cause to be delivered, to the Collateral Agent, the Trustee, the
Swap Counterparty and XLCA (if XLCA is the Controlling Party) with such other
information and other documents (it being acknowledged that XLCA shall have no
obligation to provide any notices or other information provided to it pursuant
to this Section 4.6 to any other Person):
(a) as soon as available and in any event within 120 days
after the end of each fiscal year of NRG Energy, an audited consolidated balance
sheet of NRG Energy as of the end of such fiscal year and the related audited
statements of income, retained earnings and cash flows for such fiscal year,
setting forth in each case in comparative form the figures for the previous
fiscal year, to the extent available, all reported by an independent public
accountant of nationally recognized standing; provided that NRG Energy shall be
deemed to have satisfied this covenant if it files its annual report on Form
10-K for the applicable fiscal year with the Securities and Exchange Commission
within the period set forth in this Section 4.6(a).
(b) as soon as available and in any event within 60 days after
the end of its first three fiscal quarters, a consolidated balance sheet of NRG
Energy as of the end of such fiscal quarter and the related statements of
income, retained earnings and cash flows for such fiscal quarter; provided that
NRG Energy shall be deemed to have satisfied this covenant if it files its
quarterly report on Form 10-Q for the applicable fiscal quarter with the
Securities and Exchange Commission within the period set forth in this Section
4.6(b).
(c) Concurrently with the delivery of each of the financial
statements referred to in Sections 4.6(a) and (b), an officer's certificate,
executed by the chief financial officer, treasurer, assistant chief financial
officer or assistant treasurer of NRG Energy, stating that (x) such officer, on
behalf of NRG Energy, has reviewed the terms of this Agreement and has made, or
caused to be made under its supervision, a review in reasonable detail of the
transactions and condition of NRG Energy during the accounting period covered by
such financial statements and that such review has not disclosed the existence
during or at the end of such accounting period, and that such officer does not
have knowledge of the existence as at the date of such officer's certificate, of
any condition or event that constitutes a default hereunder, including without
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limitation in respect of the Specified Financial Covenants referred to in
Section 12.1(e), or, if any such condition or event existed or exits, specifying
the nature and period of the existence thereof and what action NRG Energy has
taken, is taking and proposes to take with respect thereto and (y) each
financial statement and accompanying information delivered by NRG Energy
pursuant to the terms of this Agreement, other than those delivered pursuant to
Section 3.7, each such financial statement and accompanying information has been
prepared in conformity with GAAP and fairly present, in all material respects,
the financial position (on a consolidated basis) of the Persons described in
such financial statements as at the respective dates thereof and the results of
operations and cash flows (on a consolidated basis) of the Persons described
therein for each of the periods then ended, subject, in the case of any such
unaudited financial statements, to changes resulting from audit and normal year
end adjustments and the absence of footnotes.
(d) promptly, upon acquiring notice or giving notice, as the
case may be, or obtaining knowledge thereof, written notice (together with
copies of any underlying notices or other documentation) of:
(i) any action, suit, arbitration or litigation
pending or threatened against NRG Energy and involving claims
against NRG Energy in excess of $50,000,000, in the aggregate,
or involving any injunctive, declaratory or other equitable
relief that, if determined adversely to NRG Energy, could
reasonably be expected to have an NRG Material Adverse Effect,
such notice to include, if requested by the Controlling Party,
copies of all material papers filed in such litigation
involving NRG Energy, and such notice to be given monthly if
any such papers have been filed since the last notice given;
(ii) any dispute or disputes which may exist
between NRG Energy and any Governmental Authority and which
involve (A) claims against NRG Energy which exceed $50,000,000
in the aggregate or, (B) injunctive or declaratory relief
that, if determined adversely to NRG Energy, could reasonably
be expected to have an NRG Material Adverse Effect;
(iii) any material amendment, modification or
alteration to the NRG Credit Risk Policy (it being understood
that any change to Appendix I (Enterprise Limits And
Authorization) or Appendix J (Counterparty Credit Risk Policy)
thereof will be deemed to be material); and
(iv) any change in ratings given to NRG Energy by
Xxxxx'x or S&P, including the placement of NRG Energy on
"credit watch negative" or similar status.
Notwithstanding the foregoing, NRG Energy shall not be
required to give notice of any matter described in this Section 4.6(d) that is
described in any form 10-K, 10-Q, or 8-K or other form or document filed by NRG
Energy or any of its Affiliates with the Securities and Exchange Commission and
available on the Commission's Electronic Data Gathering, Analysis and Retrieval
(XXXXX) system which shall be deemed to be a timely notice under this Section
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4.6(d) so long as such document is filed with the Securities and Exchange
Commission in a timely manner.
SECTION 5
OBLIGATIONS ABSOLUTE, ETC.
All rights of the Secured Parties and all obligations of NRG
Energy hereunder shall be absolute and unconditional irrespective of:
(a) any lack of validity, legality or enforceability of this
Agreement or any other Financing Document;
(b) the failure of any Secured Party:
(i) to assert any claim or demand or to enforce
any right or remedy against the Issuer, NRG Energy, any
Project Company or any other Person (including any guarantor)
under the provisions of any Financing Document or otherwise,
or
(ii) to exercise any right or remedy against any
guarantor of, or collateral securing, any of the Obligations;
(c) any change in the time, manner or place of payment, any
change of another term of any of the Obligations or any extension or renewal of
any of the Obligations;
(d) any reduction, limitation, impairment or termination of
any of the Obligations for any reason other than the written agreement of the
Secured Parties to terminate the Obligations in full, including any claim of
waiver, release, surrender, alteration or compromise, and shall not be subject
to, and NRG Energy hereby waives any right to or claim of, any defense or
setoff, counterclaim, recoupment or termination whatsoever by reason of the
invalidity, illegality, nongenuineness, irregularity, compromise,
unenforceability of, or any other event or occurrence affecting, any of the
Obligations;
(e) any amendment, rescission, waiver or other modification
of, or any consent to departure from, any of the terms of this Agreement or any
other Financing Document;
(f) any addition, exchange, release, surrender or
non-perfection of any collateral, or any amendment to or waiver, release or
addition of, or consent to departure from, any other security interest held by
any Secured Party;
(g) the Bankruptcy, dissolution or receivership of the Issuer
or any Project Company and the occurrence of any other proceeding as a result of
such Bankruptcy, any other disposition of all or any portion of the assets of
the Issuer or any Project Company, or the consolidation or merger of the Issuer
or any Project Company;
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(h) any sale, transfer or other disposition by NRG Energy or
any other Person of any capital stock or other voting rights or ownership or
direct or indirect economic interest, including debt, that it may have in the
Issuer and/or the Project Companies; or
(i) any other circumstance which might otherwise constitute a
defense available to, or a legal or equitable discharge of, the Issuer, any
Project Company, NRG Energy, any surety or any guarantor.
SECTION 6
SPECIFIC PROVISIONS
Section 6.1 Reinstatement. This Agreement and the obligations
of NRG Energy hereunder shall be reinstated automatically if and to the extent
that for any reason any payment made pursuant to this Agreement is rescinded or
otherwise restored to NRG Energy, whether as a result of any proceeding in
bankruptcy, reorganization or otherwise with respect to Issuer or any other
Person or as a result of any settlement or compromise with any Person (including
NRG Energy) in respect of such payment. Upon written demand, NRG Energy shall
pay the Collateral Agent all of its reasonable costs and expenses (including
reasonable fees of counsel) incurred by the Collateral Agent in connection with
such rescission or restoration.
Section 6.2 Specific Performance. NRG Energy hereby
irrevocably waives, to the extent it may do so under applicable Legal
Requirements, any defense based on the adequacy of a remedy at law that may be
asserted as a bar to the remedy of specific performance in any action brought
against NRG Energy for specific performance of this Agreement by the Issuer or
any successor or assign thereof (including the Collateral Agent) or for their
benefit by a receiver, custodian or trustee appointed for the Issuer or in
respect of all or a substantial part of its assets, under the bankruptcy or
insolvency laws of any jurisdiction to which the Issuer or its assets are
subject.
Section 6.3 Bankruptcy Code Waiver. NRG Energy hereby
irrevocably waives, to the extent it may do so under applicable Legal
Requirements, any protection to which it may be entitled under Sections
365(c)(l), 365(c)(2) and 365(e)(2) of the Bankruptcy Law or equivalent
provisions of the laws or regulations of any other jurisdiction with respect to
any proceedings, or any successor provision of law of similar import, in the
event of any Bankruptcy Event of it, the Issuer or any Project Company.
Specifically, in the event that the trustee (or similar official) in a
Bankruptcy Event of NRG Energy, the Issuer or any Project Company or the
debtor-in-possession takes any action, NRG Energy shall not assert any defense,
claim or counterclaim denying liability hereunder on the basis that this
Agreement is an executory contract or a "financial accommodation" that cannot be
assumed, assigned or enforced or on any other theory directly or indirectly
based on Section 365(c)(1), 365(c)(2) or 365(e)(2) of the Bankruptcy Law, or
equivalent provisions of the laws or regulations of any other jurisdiction with
respect to any proceedings or any successor provision of law of similar import.
If a Bankruptcy Event of NRG Energy, the Issuer or any Project Company shall
occur, NRG Energy agrees, after the occurrence of such Bankruptcy Event, to
reconfirm in writing, to the extent permitted by applicable Legal Requirements,
its pre-petition waiver of any protection to which it
13
may be entitled under Sections 365(c)(l), 365(c)(2) and 365(e)(2) of the
Bankruptcy Law or equivalent provisions of the laws or regulations of any other
jurisdiction with respect to proceedings and, to give effect to such waiver, NRG
Energy consents to the assumption and enforcement of each provision of this
Agreement by the debtor-in-possession or the Issuer's or any Project Company's
trustee in bankruptcy, as the case may be.
Section 6.4 Cash Collateral Accounts.
(a) All amounts deposited as cash collateral with the
Collateral Agent pursuant to Section 12.3 shall be deposited in separate cash
collateral accounts (such accounts, and any replacement or supplemental account
into which any such cash collateral may at any time be deposited, collectively,
the "Cash Collateral Accounts") established by NRG Energy with the Collateral
Agent and under the dominion and control of the Collateral Agent, to be held or
applied, or released for application, as provided in this Section 6.4. NRG
Energy hereby grants to the Collateral Agent, for the benefit of Secured
Parties, as security for the payment and performance of the NRG's obligations
hereunder, a security interest in and lien on (i) the Cash Collateral Accounts,
(ii) all amounts now or at any time on deposit therein, (iii) all investment
property or other financial assets from time to time credited thereto, and (iv)
all proceeds of any of the foregoing, in whatever form. In connection with the
making of the initial deposit in any Cash Collateral Account, NRG Energy shall
be required to (a) execute such documentation as may be necessary, or that is
reasonably requested by the Collateral Agent, in order to grant to the
Collateral Agent, for the benefit of the Secured Parties, a first priority
perfected security interest in the Cash Collateral Accounts (subject to NRG
Permitted Liens), including, without limitation, an account control agreement
containing control provisions substantially similar to those contained in the
Depositary Agreement and (b) deliver an opinion of counsel with respect to the
Cash Collateral Accounts substantially similar to the opinion given with respect
to the Accounts on the Closing Date. Upon the earlier to occur of (i)
termination of this Agreement in accordance with Section 9 or (ii) the cure of
the NRG Event of Default which triggered the making of a Cash Collateral
Deposit, the Collateral Agent shall take, at NRG Energy's expense, such actions
as NRG Energy may reasonably request to effect the release of such Cash
Collateral Deposit and the security interest and lien granted pursuant to this
clause (a), provided, however, that in the case of clause (ii) of this sentence,
at the time of such proposed release no other NRG Event of Default shall have
occurred and be continuing.
(b) Interest and other payments and distributions made on or
with respect to the cash collateral held by the Collateral Agent pursuant to
clause (a) of this Section 6.4 shall be for the account of NRG Energy and shall
constitute cash collateral to be held by the Collateral Agent or returned to NRG
Energy in accordance with clause (a) of this Section 6.4 or in accordance with
Section 12.3.
(c) NRG Energy may at any time replace cash on deposit in any
Cash Collateral Account with an Acceptable Letter of Credit. Such
Acceptable Letter of Credit shall be administered in accordance with Section 5.2
of the Depositary Agreement.
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(d) Cash held in any Cash Collateral Account shall be invested
and reinvested in Permitted Investments (which Permitted Investments shall be
only those described in clauses (a), (b), (e), (f) or (g) of the definition
thereof) by the Collateral Agent, which shall make such Permitted Investments
(a) when no Issuer Event of Default has occurred and is continuing, at the
written direction of NRG Energy, and (b) when an Issuer Event of Default has
occurred and is continuing, at the written direction of XLCA (if XLCA is the
Controlling Party). If there is no direction from NRG Energy or XLCA (if XLCA is
the Controlling Party), any cash held in any Cash Collateral Account shall be
deposited in the Cash Reserve Account at The Bank of New York, an interest
bearing demand cash account at the Depositary Agent. The Collateral Agent shall
have no obligation to invest or reinvest any amounts held hereunder in the
absence of written investment instructions, and in no event shall the Collateral
Agent be liable for the selection of Permitted Investments or for investment
losses, if any, incurred thereon. Any and all commissions, broker fees or other
charges, penalties, fees or expenses incurred in connection with the investment
in, or liquidation of, any Permitted Investment shall be solely for the account
of NRG Energy, and shall be debited against the cash balance in the applicable
Cash Collateral Account.
(e) The Collateral Agent shall sell or liquidate all or any
portion of the Permitted Investments held in any Cash Collateral Account at any
time the proceeds thereof are required to make any disbursement from such Cash
Collateral Account in accordance with the terms of this Agreement. Any such sale
or liquidation shall be in the order of maturity of the applicable Permitted
Investments, with Permitted Investments closest to maturity being sold or
liquidated first. In no event shall the Collateral Agent be liable for any
losses incurred as a result of the liquidation of any Permitted Investment prior
to its stated maturity (including, without limitation, any early withdrawal or
liquidation penalty) or the failure of any Person to provide timely written
investment instructions.
Section 6.5 Set-Off. In addition to any rights now or
hereafter granted under applicable Legal Requirements or otherwise, and not by
way of limitation of any such rights, upon the failure of NRG Energy to make any
payments as required by Section 2 hereunder, the Collateral Agent is hereby
authorized at any time or from time to time, without presentment, demand,
protest or other notice of any kind to NRG Energy or to any other Person, any
such notice being hereby expressly waived, to set off and to appropriate and
apply any and all deposits (general or special) and any other indebtedness at
any time held or owing by any Secured Party (including by branches and agencies
of each of the Secured parties wherever located) to or for the credit or the
account of NRG Energy, against and on account of the obligations of NRG Energy
then due under this Agreement, irrespective of whether or not the Collateral
Agent shall have made any demand hereunder.
SECTION 7
DEDUCTIONS/WITHHOLDING
All sums, if any, payable by NRG Energy hereunder shall be
paid in full, free of any deductions or withholdings for any and all Taxes
imposed by any governmental authority of
15
any jurisdiction through which payment is made. In the event that NRG Energy is
prohibited by law from making any such payments hereunder free of such
deductions or withholdings, then NRG Energy shall pay such additional amount as
may be necessary in order that the actual amount received after such deduction
or withholding shall equal the full amount stated to be payable hereunder. NRG
Energy shall pay directly to all appropriate taxing authorities any and all
Taxes, and all liabilities with respect to such Taxes imposed by law or by any
taxing authority on or with regard to any payment required to be made by NRG
Energy hereunder. Notwithstanding the foregoing, if a payment due from NRG
Energy hereunder relates to a payment which, if directly made by the Issuer or
other primary obligor, would have been subject to deduction or withholding of
Taxes without any gross-up obligation (or an obligation to pay an additional
amount) on the part of the Issuer or other primary obligor, NRG Energy shall not
be required to pay additional amounts under this Section 7.
SECTION 8
NOTICES
Section 8.1 Notices. Any communication between the parties
hereto or notices provided herein to be given may be given to the following
addresses:
(a) If to NRG Energy, at:
NRG Energy, Inc.
000 Xxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attn: General Counsel
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
with copy to:
Xxxxxxxx & Xxxxx LLP
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx X. Xxxxxxx
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
and
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XL Capital Assurance Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Surveillance
Telecopy: (000) 000-0000
Confirmation: (000) 000-0000
(b) If to the Collateral Agent, at:
The Bank of New York
000 Xxxxxxx Xxxxxx, Xxxxx 0 Xxxx
Xxx Xxxx, XX 00000
Attn: Corporate Trust Administration
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
with copy to:
Xxxxxxxx & Xxxxx LLP
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx X. Xxxxxxx
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
and
XL Capital Assurance Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Surveillance
Telecopy: (000) 000-0000
Confirmation: (000) 000-0000
All notices or other communications required or permitted to
be given hereunder shall be in writing and shall be considered as properly given
(a) if delivered in person, (b) if sent by overnight delivery services
(including Federal Express, UPS, ETA, Xxxxx, DHL, Airborne and other similar
overnight delivery services), (c) in the event overnight delivery services are
not readily available, if mailed by first class United States Mail, postage
prepaid, registered or certified with return receipt requested, (d) if sent by
prepaid telegram or by facsimile or (e) other electronic means (including
electronic mail) confirmed by facsimile or telephone (except to the Collateral
Agent). Notice so given shall be effective upon receipt by the addressee, except
that communication or notice so transmitted by facsimile or other direct
electronic means shall be deemed to have been validly and effectively given on
the day (if a Business Day and, if not, on the next following Business Day) on
which it is transmitted if transmitted before 4:00 p.m.,
17
recipient's time, and if transmitted after that time, on the next following
Business Day; provided, however, that if any notice is tendered to an addressee
and the delivery thereof is refused by such addressee, such notice shall be
effective upon such tender. Any party shall have the right to change its address
for notice hereunder to any other location within the continental United States
by giving of 30 days' notice to the other parties in the manner set forth above.
SECTION 9
TERMINATION
This Agreement shall terminate upon the payment in full of the
Obligations and any obligations hereunder.
SECTION 10
SUCCESSORS AND ASSIGNS
This Agreement shall be binding upon and inure to the benefit
of the parties hereto and their respective successors and permitted assigns.
This Agreement may not be assigned by NRG Energy except with the consent of the
Collateral Agent (in accordance with Section 9.2 of the Common Agreement) unless
assigned, in part, in connection with a Permitted Change of Control in
accordance with the Common Agreement, in which case the Associated Parent
Obligations (if any) in respect of the transferred assets or ownership
interests, as the case may be, shall be assumed by a party (an "Acceptable
Assignee") that either (x) is rated at least A3 by Xxxxx'x and A- by S&P or (y)
is rated at least Baa2 by Xxxxx'x and BBB by S&P and has provided cash,
Acceptable Letters of Credit or other credit support acceptable to the
Controlling Party in its sole discretion in an amount of the Equity
Reimbursement Amount assumed by the Acceptable Assignee.
SECTION 11
AMENDMENT
No amendment or waiver of any provision of this Agreement nor
any consent to any departure by NRG Energy herefrom shall in any event be
effective unless the same shall be in writing and signed by NRG Energy and the
Collateral Agent (in accordance with Section 9.2 of the Common Agreement), and
then such waiver or consent shall be effective only in the specific instance and
for the specific purpose for which given.
SECTION 12
EVENTS OF DEFAULT AND REMEDIES
Section 12.1 Events of Default. The occurrence of any of the
following events shall constitute an event of default hereunder (an "NRG Event
of Default"):
(a) NRG Energy shall fail to make any payment as and when due
under this Agreement;
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(b) any representation or warranty by NRG Energy set forth in
this Agreement or in any document entered into in connection herewith in favor
of or for the benefit of any Secured Party or in any certificate, financial
statement or other document delivered in connection herewith for the benefit of
any Secured Party shall prove to have been incorrect in any material respect (in
the case of any representation or warranty without any materiality
qualification) or in any respect (in the case of any representation or warranty
containing any materiality qualification) when made (or deemed made) and the
facts or events underlying such incorrect representation or warranty shall not
be changed so as to correct such representation or warranty in all material
respects for a period of 30 days (or so long as the facts or events underlying
such incorrect representation or warranty are capable of being changed so as to
correct such incorrect representation or warranty in all material respects and
NRG Energy is diligently proceeding to change such events or facts, such longer
period but in no event for an aggregate period in excess of 90 days) after a
Responsible Officer of NRG Energy becomes aware thereof or NRG Energy first
received a notice from or on behalf of the Controlling Party specifying such
material inaccuracy and requiring that facts or events underlying such incorrect
representation or warranty be changed so as to correct such incorrect
representation or warranty in all material respects;
(c) NRG Energy shall default in the due observance or
performance of any agreement contained in Sections 2.5 through 2.7, 2.11 or 4.1;
(d) NRG Energy shall default in the due observance or
performance of any covenant, condition or agreement contained in this Agreement
(other than Section 2.10 and those specified in Section 12.1(c) above) and such
default shall continue unremedied for a period of 30 days after notice thereof
from the Collateral Agent, provided, however, if (i) such failure does not
consist of a failure to pay money and cannot be cured within such 30 day period,
(ii) such failure is susceptible of cure within 90 days, (iii) NRG Energy is
proceeding with diligence and in good faith to cure such failure, (iv) the
existence of such failure has not had and cannot, after considering the nature
of the cure, be reasonably expected to have an NRG Energy Material Adverse
Effect, and (v) the Collateral Agent shall have received an officer's
certificate signed by a Responsible Officer of NRG Energy, in such Responsible
Officer's capacity as an officer of NRG Energy, to the effect of clauses (i),
(ii), (iii) and (iv) above and stating what action NRG Energy is taking to cure
such failure, then such 30 day cure period shall be extended to such date, not
to exceed a total of 90 days, as shall be necessary for NRG Energy diligently to
cure such failure; provided, further, that in the case of a default in the due
observance or performance of Sections 2.3, 2.4, 2.8 and 2.9 the applicable cure
period shall not exceed a total of 60 days;
(e) NRG Energy shall default for a period beyond any
applicable grace period (i) in the payment of any principal, interest or other
amount due on any Debt for Borrowed Money of NRG Energy (other than amounts
under the Financing Documents) and such defaulted amount, together with any
other principal, interest or other amount due and unpaid on any Debt for
Borrowed Money of NRG Energy (other than amounts under the Financing Documents)
equals or exceeds $50,000,000, or in the performance of any Specified Financial
Covenant; or (ii) in the payment of any amount then due or performance of any
obligation then required under any agreement evidencing Debt of NRG Energy
(other than the Financing Documents) if
19
because of such default, the holder of such Debt accelerates the payment thereof
and such accelerated amount, together with the amount of any other Debt of NRG
Energy then so accelerated (other than the obligations under the Financing
Documents) equals or exceeds $50,000,000, provided, that it shall not constitute
an NRG Event of Default as set forth in clause (i) with respect to a breach of
any Specified Financial Covenant if, and for so long as, NRG Energy provides an
officer's certificate from a responsible officer stating that either NRG Energy
and the holder(s) of the relevant obligation(s) under the relevant agreement(s)
in which such Specified Financial Covenant appears are, and continue to be, in
active discussions with respect to the waiver of such default (such officer's
certificate to be renewed every 10 Business Days) or that a default no longer
exists under such relevant agreements as a result of a breach of any Specified
Financial Covenant;
(f) NRG Energy itself shall be subject to a Bankruptcy Event;
or
(g) One or more final judgments for the payment of money (if
such payments are not fully covered by insurance) in excess of $50,000,000 in
the aggregate shall be rendered against NRG Energy, and NRG Energy shall fail to
discharge the same or provide for its discharge in accordance with its terms, or
procure a stay of execution thereof, within 60 days after the date of entry
thereof; provided, however, that any such judgment shall not be (and shall not
constitute part of) an NRG Event of Default under this Section 12.1(g) if and
for so long as either (i)(A) the amount of such judgment is fully covered by a
valid and binding policy of insurance between the defendant and the insurer
covering payment thereof and (B) such insurer has been notified of, and has not
disputed the claim made for payment of, the amount of such judgment, or (ii)
such judgment if left unstayed could not reasonably be expected to have an NRG
Material Adverse Effect.
Section 12.2 Remedies. Upon the occurrence of an NRG Event of
Default, the Collateral Agent (acting at the direction of the Controlling Party)
shall (a) have the right to declare all obligations pursuant to Sections 2.1
under this Agreement to be immediately due and payable and require NRG Energy to
immediately pay to the Collateral Agent in immediately available funds an amount
equal to the Equity Reimbursement Amount (provided that in the event of an NRG
Event of Default under Section 12.l(f) of this Agreement, such obligations shall
be automatically accelerated) and any amounts due and payable that accrued under
this Agreement prior to such date, and (b) have all the rights and remedies
available to it at law or in equity in respect of any default or breach by NRG
Energy of its obligations under this Agreement. Other than as expressly provided
herein, no remedy conferred upon or reserved to any party is intended to be
exclusive of any other available remedy or remedies, but each and every such
remedy shall be cumulative and shall be in addition to every other remedy given
under this Agreement or now or hereafter existing at law or in equity. In order
to entitle any party to exercise any remedy reserved to it in this Agreement, it
shall not be necessary to give any notice, other than such notice as may be
expressly required by this Agreement. No failure or delay on the part of any
party in exercising any right, power or privilege hereunder and no course of
dealing between NRG Energy and any Secured Party shall operate as a waiver
thereof; nor shall any single or partial exercise of any right, power or
privilege hereunder preclude any other
20
or further exercise thereof or the exercise of any other right, power or
privilege hereunder or thereunder.
Section 12.3 Cash Collateralization in Connection with Issuer
Event of Default.
(a) On any date upon which there exists and is continuing an
NRG Event of Default hereunder (other than an NRG Event of Default pursuant to
Section 12.1(a) hereof), NRG Energy may, in order to cure the Issuer Event of
Default resulting therefrom as contemplated by Section 7.l(m)(iii) of the Common
Agreement, at its sole option, pay, or to cause to be paid in Dollars, in
immediately available funds on such date, an amount equal to (i) the Equity
Reimbursement Amount and (ii) any amounts due and payable that accrued under
this Agreement prior to such date (such payment, a "Cash Collateral Deposit").
Cash Collateral Deposits shall be paid by NRG Energy to the Collateral Agent,
for immediate deposit into a segregated cash collateral account maintained by
the Collateral Agent for the benefit of the Secured Parties as further described
in Section 6.4.
(b) No Issuer Event of Default under Section 7.1(m)(iii) of
the Common Agreement shall occur upon the occurrence and during the continuation
of an NRG Event of Default if at such time (i) there are no amounts due and
payable under this Agreement and (ii) the Equity Reimbursement Amount equals
zero.
(c) No Issuer Event of Default under Section 7.1(m)(iii) of
the Common Agreement shall occur upon the occurrence and during the continuation
of any NRG Event of Default under Section 12.1(e)(i), if at such time, the
Equity Reimbursement Amount and any other amounts due and payable under this
Agreement are less than $3,000,000.
SECTION 13
HEADINGS
The headings herein are included for convenience of reference
only and shall be ignored in the construction or interpretation hereof.
SECTION 14
GOVERNING LAW
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH 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).
21
SECTION 15
CONSENT TO JURISDICTION;
APPOINTMENT OF AGENT FOR SERVICE OF PROCESS
With respect to any legal action or proceeding against NRG
Energy arising out of or in connection with this Agreement, NRG Energy hereby
irrevocably (i) consents to the jurisdiction of the courts of the State of New
York, in and for the County of New York, and of the United States of America for
the Southern District of New York, (ii) consents to the service of process
outside the territorial jurisdiction of said courts in any such action or
proceeding by mailing copies thereof by registered United States mail, postage
prepaid, to the address specified pursuant to Section 8 hereof, and (iii) to the
fullest extent permitted by Applicable Law, waives any objection to the venue of
the aforesaid courts and any objection that the aforesaid courts are an
inconvenient forum. NRG Energy hereby designates, appoints and empowers
Corporation Service Company, with offices on the date hereof at 1177 Avenue of
the Americas, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, as its designee,
appointee and agent with respect to any action or proceeding in New York to
receive for and on its behalf service of any and all legal process, summons,
notices and documents which may be served in any such action or proceeding and
agrees that the failure of such agent to give any advice of any such service of
process to such person shall not impair or affect the validity of such service
or of any judgment based thereon. If for any reason such designee, appointee and
agent shall cease to be available to act as such, NRG Energy agrees to designate
a new designee, appointee and agent in New York City on the terms and for the
purposes of this provision.
SECTION 16
WAIVER OF JURY TRIAL
THE PARTIES HERETO HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVE ANY RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF
ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH,
THIS AGREEMENT OR ANY OTHER FINANCING DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE
OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF THE PARTIES
HERETO. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE COLLATERAL AGENT TO
ENTER INTO THIS AGREEMENT.
SECTION 17
EXPENSES
Upon written demand, NRG Energy shall pay to the Collateral
Agent, for itself and on behalf of the Secured Parties, any and all reasonable
expenses, including reasonable attorneys' fees and expenses, which the
Collateral Agent or the Controlling Party may incur in connection with the
exercise or enforcement of any of the rights or interests of the Collateral
Agent, on behalf of the Secured Parties, hereunder as a result of a breach of
this Agreement by NRG Energy.
22
SECTION 18
MISCELLANEOUS
Section 18.1 Counterparts. This Agreement and any amendments,
waivers, consents or supplements hereto or in connection herewith may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed and delivered shall be
deemed an original, but all such counterparts together shall constitute but one
and the same instrument; signature pages may be detached from multiple separate
counterparts and attached to a single counterpart so that all signature pages
are physically attached to the same document.
Section 18.2 Severability. In case any one or more of the
provisions contained in this Agreement should be invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
Section 18.3 Limitation of Liability. Except as is
specifically provided in this Agreement, neither Collateral Agent nor any other
Secured Party shall have any recourse to NRG Energy in respect of the
Obligations. The provisions of Article 8 of the Common Agreement shall apply to
this Agreement.
Section 18.4 Third Party Rights. Except to the extent set
forth in Section 6.5, nothing in this Agreement, expressed or implied, is
intended or shall be construed to confer upon, or give to any Person (other than
Issuer, Collateral Agent and the Secured Parties) any security, rights, remedies
or claims, legal or equitable, under or by reason hereof, or any covenant or
condition hereof; and this Agreement and the covenants and agreements herein
contained are and shall be held to be for the sole and exclusive benefit of
Issuer, Collateral Agent and the Secured Parties.
Section 18.5 Survival of Obligations. All representations,
warranties, covenants and agreements made herein and in the certificates or
other instruments delivered in connection with or pursuant to this Agreement
shall be considered to have been relied upon by the parties hereto and shall
survive the execution and delivery of this Agreement, the termination of this
Agreement and the making of the payments required under Section 2.
Notwithstanding anything in this Agreement or implied by law to the contrary,
the agreements of NRG Energy set forth in Sections 6.1, 8 and 17 shall survive
the making of the payments required under Section 2 and the termination of this
Agreement.
Section 18.6 Rights of Collateral Agent. In acting under or by
virtue of this Agreement, the Collateral Agent shall be entitled to all the
rights, privileges, and immunities provided to it in the Common Agreement, all
of which are incorporated by reference herein with the same force and effect as
if set forth herein in their entirety.
23
IN WITNESS WHEREOF, the undersigned have caused this Agreement
to be executed by their duly authorized officer(s) or representative(s) all as
of the date first above written.
NRG ENERGY, INC.,
By: ________________________________________
Name:
Title:
THE BANK OF NEW YORK,
as Collateral Agent
By: ________________________________________
Name:
Title:
EXHIBIT A
FORM OF EQUITY REIMBURSEMENT CERTIFICATE
__________ ___, _____ (1)
XL Capital Assurance Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Surveillance
Law Debenture Trust Company of New York, as Trustee
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxx
The Bank of New York, as Collateral Agent
000 Xxxxxxx Xxxxxx, Xxxxx 0 Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Department
Xxxxxxx Xxxxx Mitsui Marine Derivations Products, L.P., as Swap Counterparty
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Swap Administration (with a copy to Treasury Administration)
Re: Equity Reimbursement Amount
Ladies and Gentlemen:
NRG Energy, Inc. ("NRG Energy") is delivering this certificate
pursuant to Section 4.5(a) of the Parent Agreement, dated as of January
6, 2004, by NRG Energy in favor of the Collateral Agent (as amended,
amended and restated, supplemented or otherwise modified from time to
time, the "Parent Agreement"). Capitalized terms used but not defined
herein shall have the meanings given in Annex A to the Amended and
Restated Common Agreement, dated as of January 6, 2004, among XL
Capital Assurance Inc., Swap Counterparty, Trustee, Collateral Agent,
the Issuer, and each party thereto identified as a Project Company on
the signature pages thereto (as amended, amended and restated,
supplemented or otherwise modified from time to time, the "Common
Agreement").
------------------
(1) Certificate to be dated and delivered within 20 days following the
Annual Scheduled Payment Date and subsequently in accordance with
Section 4.5(a) of the Parent Agreement.
SECTION 19 Restricted Payment Amount.
Section 19.1 The aggregate amount of the Restricted Payment
that had been made or distributed to NRG Energy prior to [INSERT THE ANNUAL
SCHEDULED PAYMENT DATE THAT IS IMMEDIATELY PRIOR TO THE DATE HEREOF] is:
$[PROVIDE THE CUMULATIVE AMOUNT OF THE RESTRICTED PAYMENT EXCLUDING PAYMENTS
MADE ON SUCH ANNUAL SCHEDULED PAYMENT DATE].
Section 19.2 The amount of the Restricted Payment that was
made and distributed to NRG Energy on [INSERT THE ANNUAL SCHEDULED PAYMENT DATE
THAT IS IMMEDIATELY PRIOR TO THE DATE HEREOF] is: $[PROVIDE THE AMOUNT OF THE
RESTRICTED PAYMENT MADE ON SUCH ANNUAL SCHEDULED PAYMENT DATE].
SECTION 20 Corporate Services Annual Fee.
Section 20.1 The aggregate amount of the Corporate Services
Annual Fee that had been paid to NRG Energy prior to [INSERT THE ANNUAL
SCHEDULED PAYMENT DATE THAT IS IMMEDIATELY PRIOR TO THE DATE HEREOF] is:
$[PROVIDE THE CUMULATIVE AMOUNT OF THE CORPORATE SERVICES ANNUAL FEE EXCLUDING
PAYMENTS MADE ON SUCH ANNUAL SCHEDULED PAYMENT DATE].
Section 20.2 The amount of the Corporate Services Annual Fee
that was paid to NRG Energy on [INSERT THE ANNUAL SCHEDULED PAYMENT DATE THAT IS
IMMEDIATELY PRIOR TO THE DATE HEREOF] is: $[PROVIDE THE AMOUNT OF THE CORPORATE
SERVICES ANNUAL FEE PAID ON SUCH ANNUAL SCHEDULED PAYMENT DATE].
SECTION 21 Corporate Services Accumulation Amount.
Section 21.1 The aggregate Corporate Services Accumulation
Amount that was outstanding prior to [INSERT THE ANNUAL SCHEDULED PAYMENT DATE
THAT IS IMMEDIATELY PRIOR TO THE DATE HEREOF] is: $[PROVIDE THE CUMULATIVE
AMOUNT OF THE CORPORATE SERVICES SHORTFALL EXCLUDING THE AMOUNT THAT AROSE ON
SUCH ANNUAL SCHEDULED PAYMENT DATE].
Section 21.2 The amount of the Corporate Services Payment
Shortfall that arose on [INSERT THE ANNUAL SCHEDULED PAYMENT DATE THAT IS
IMMEDIATELY PRIOR TO THE DATE HEREOF] is: $[PROVIDE THE AMOUNT OF THE CORPORATE
SERVICES PAYMENT SHORTFALL THAT AROSE ON SUCH ANNUAL SCHEDULED PAYMENT DATE].
Section 21.3 The aggregate amount of the Corporate Services
Payment that had been made pursuant to priority Thirteen of Section 4.1.2 of the
Depositary Agreement in respect of such Corporate Services Accumulation Amount
prior to [INSERT THE ANNUAL SCHEDULED PAYMENT DATE THAT IS IMMEDIATELY PRIOR TO
THE DATE HEREOF] is: $[PROVIDE THE CUMULATIVE AMOUNT OF THE CORPORATE SERVICES
PAYMENT MADE IN RESPECT OF THE CORPORATE SERVICES ACCUMULATION AMOUNT PRIOR TO
SUCH ANNUAL SCHEDULED PAYMENT DATE].
Section 21.4 The amount of the Corporate Services Payment that
was made pursuant to priority Thirteen of Section 4.1.2 of the Depositary
Agreement in respect of such Corporate Services Accumulation Amount on [INSERT
THE ANNUAL SCHEDULED PAYMENT DATE THAT IS IMMEDIATELY PRIOR TO THE DATE HEREOF]
is: $[PROVIDE THE AMOUNT OF THE CORPORATE SERVICES PAYMENT MADE IN RESPECT OF
THE CORPORATE SERVICES ACCUMULATION AMOUNT ON SUCH ANNUAL SCHEDULED PAYMENT
DATE].
Section 21.5 The Corporate Services Accumulation Amount as of
the date hereof is: $[PROVIDE THE CORPORATE SERVICES ACCUMULATION AMOUNT BY
ADDING AMOUNTS UNDER 3(a) AND 3(b) ABOVE AND SUBTRACTING AMOUNTS UNDER 3(c) AND
3(d)].
SECTION 22 Equity Reimbursement Amount.
Section 22.1 The aggregate Equity Reimbursement Amount that
had been made or distributed to NRG Energy prior to [INSERT THE ANNUAL SCHEDULED
PAYMENT DATE THAT IS IMMEDIATELY PRIOR TO THE DATE HEREOF] is: $[PROVIDE THE
AMOUNT OF THE EQUITY REIMBURSEMENT AMOUNT PRIOR TO THE ANNUAL SCHEDULED PAYMENT
DATE BY ADDING AMOUNTS UNDER 1(a), 2(a) AND 3(c)].
Section 22.2 The Equity Reimbursement Amount that was made and
distributed to NRG Energy on [INSERT THE ANNUAL SCHEDULED PAYMENT DATE THAT IS
IMMEDIATELY PRIOR TO THE DATE HEREOF] is: $[PROVIDE THE EQUITY REIMBURSEMENT
AMOUNT MADE ON SUCH ANNUAL SCHEDULED PAYMENT DATE BY ADDING AMOUNTS UNDER 1(b),
2(b) AND 3(d)].].
Section 22.3 The aggregate amount of the Equity Reimbursement
Payments that had been made or paid by NRG Energy pursuant to Section 2.1 of the
Parent Agreement (including that made on such date) as of [INSERT THE ANNUAL
SCHEDULED PAYMENT DATE THAT IS IMMEDIATELY PRIOR TO THE DATE HEREOF] is:
$[PROVIDE THE CUMULATIVE AMOUNT OF THE EQUITY REIMBURSEMENT PAYMENTS ON SUCH
ANNUAL SCHEDULED PAYMENT DATE].
Section 22.4 The Equity Reimbursement Amount of NRG Energy as
of the date hereof is: $[PROVIDE THE EQUITY REIMBURSEMENT AMOUNT BY ADDING
AMOUNTS UNDER 4(a) AND 4(b) ABOVE AND SUBTRACTING AMOUNTS UNDER 4(c)].
SECTION 23 Supporting Documentation.
The following documentation is attached hereto as Annex A in
support of the calculations set forth above: [INSERT DESCRIPTION OF
SUPPORTING DOCUMENTATION].
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, NRG Energy has caused this Equity
Reimbursement Amount Certificate to be duly executed and delivered by a
Responsible Officer of NRG Energy as of the date first above written.
NRG Energy, Inc.
By:________________________________________
Name:
Title:
Annex A to Exhibit A
Supporting Documentation
EXHIBIT B
FORM OF INTERCONNECTION SOLUTION TRANSFER DOCUMENTS
SCHEDULE A
INTERCOMPANY ACCOUNT BALANCES
COUNTER
PARTY PEAKER
COUNTER PARTY ACCOUNT NO PEAKER ACCOUNT NO BALANCE
--------------------------------- ---------- ----------------------------- ---------- -----------
Xxxxxx Kill Power LLC 00000 Xxxxx Xxxx Peaking Power LLC 01442 $ 147,748
Xxxxxx Kill Power LLC 00000 Xxxxx Xxxx Peaking Power LLC 01442 ($ 118)
Xxxxxx Kill Power LLC 01372 Big Cajun 1 Peaking Power LLC 01408 ($ 469,912)
Xxxxxxx 01417 NRG Rockford II LLC 01277 ($ 504,918)
Louisiana Generating 01386 Sterlington $ 5,194,640
Louisiana Generating 01386 Sterlington $ 21,794
Louisiana Generating 01386 Sterlington ($ 4,990,298)
Louisiana Generating 00000 Xxxxx Xxxx Peaking Power LLC 01442 ($ 688,941)
Louisiana Generating 01386 Bayou Cove Peaking Power LLC 01442 $ 211,101
Louisiana Generating 01386 Big Cajun 1 Peaking Power LLC 01408 $ 7,810,642
Louisiana Generating 01386 Big Cajun 1 Peaking Power LLC 01408 ($ 556,687)
Louisiana Generating 01386 NRG Bayou Cove LLC ($ 431)
Louisiana Generating 01386 NRG Rockford LLC 01274 ($ 888)
Middletown Power LLC 00000 Xxxxx Xxxx Peaking Power LLC 01442 ($ 6,576)
Middletown Power LLC 01382 Big Cajun 1 Peaking Power LLC 01408 ($ 121,625)
None Noted - Louisiana
Generating [Blank] Bayou Cove Peaking Power LLC 01442 ($ 107,469)
None Noted - Louisiana
Generating [Blank] Big Cajun 1 Peaking Power LLC 01408 $14,712,001
None Noted - Louisiana
Generating [Blank] NRG Rockford II LLC 01277 $ 43,655
None Noted - Louisiana
Generating [Blank] NRG Sterlington Power LLC 01388 $ 8,528,333
Power Marketing 01350 Bayou Cove Peaking Power LLC 01442 ($ 831,517)
Power Marketing 01350 Big Cajun 1 Peaking Power LLC 01408 ($ 2,003,576)
Power Marketing 01350 NRG Rockford II LLC 01277 $ 1,355,328
Power Marketing 01350 NRG Sterlington Power LLC 01388 $ 181,519
Power Marketing 01350 NRG Rockford LLC 01274 ($ 1,072,380)
-----------
TOTAL SCHEDULE C $26,851,424
===========
SCHEDULE B
INTERCOMPANY ACCOUNT BALANCES
COUNTER PEAKER
PARTY ACCOUNT
COUNTER PARTY ACCOUNT NO PEAKER NO BALANCE
---------------- ---------- ----------------------------- ------- ------------
Xxxxxxx 01417 ($ 45,936)
Xxxxxxx 00000 XXX Xxxxxxxx II LLC 01277 ($ 443,061)
NRG Energy 00001 Bayou Cove Peaking Power LLC 01442 ($ 39,148,297)
NRG Energy 00001 Big Cajun 1 Peaking Power LLC 01408 $ 5,715,496
NRG Energy 00001 NRG Peaking Finance Co LLC 01249 ($ 95,092,537)
NRG Energy 00001 NRG Rockford Equipment II LLC 01278 $ 218,863
NRG Energy 00001 NRG Rockford II LLC 01277 $ 3,851,758
NRG Energy 00001 NRG Rockford LLC 01274 $ 36,115,844
NRG Energy 00001 NRG Sterlington Power LLC 01388 ($ 15,651,242)
XXX Xxxxx XX 00000 XXX Xxxxxxxx LLC 01274 $ 1681,556
------------
TOTAL SCHEDULE C ($103,797,556)
============
SCHEDULE C
INTERCOMPANY ACCOUNT BALANCES
COUNTER PEAKER
PARTY ACCOUNT
COUNTER PARTY ACCOUNT NO PEAKER NO BALANCE
--------------------------------- ---------- ----------------------------- ------- --------
Louisiana Generating 00000 Xxxxx Xxxx Peaking Power LLC 01442 ($ 87,755)
Power Marketing 01350 NRG Rockford II LLC 01277 $218,016
NRG Operating Services 01100 Bayou Cove Peaking Power LLC 01442 ($ 279)
NRG Operating Services 01100 Big Cajun 1 Peaking Power LLC 01408 $117,884
NRG Operating Services 01100 NRG Peaking Finance Co LLC 01249 ($ 1,200)
NRG Operating Services 01100 NRG Rockford II LLC 01277 ($ 376)
NRG Operating Services 01100 NRG Rockford LLC 01274 ($ 1,299)
Vienna Operations, Inc 01407 Big Cajun 1 Peaking Power LLC 01408 ($123,667)
Xxxxxxx Power LLC. 01298 Bayou Cove Peaking Power LLC 01442 ($ 2,293)
Indian River Power LLC 00000 Xxxxx Xxxx Peaking Power LLC 01442 $ 4,524
Xxxxxxx Xxxxx XX 01436 Big Cajun 1 Peaking Power LLC 01408 ($ 5,365)
LSP Energy LP 01427 Big Cajun I ($ 108)
LSP-Xxxxxx Energy LLC 01414 Various Peakers ($ 2,612)
LSP-Pike Energy LLC 01413 Various Peakers $ 8,274
NRG Audrain Generating LLC 01426 NRG Sterlington Power LLC 01388 ($ 13,719)
NRG Bourbonnais LLC 01276 NRG Rockford LLC 01274 ($ 3,103)
NRG Dunkirk Operations Inc. 00000 Xxxxx Xxxx Peaking Power LLC 01442 ($ 3,821)
NRG Energy Center Dover LLC 00000 Xxxxx Xxxx Peaking Power LLC 01442 $ 1,391
NRG Energy Center Harrisburg Inc. 01030 Various Peakers ($ 3,858)
NRG Energy Center Minneapolis
LLC 01001 Various Peakers ($ 978)
NRG Energy Center Pittsburgh LLC 00000 Xxxxx Xxxx Peaking Power LLC 01442 ($ 2,212)
NRG XxXxxxx LLC 01389 Various Peakers ($ 1,237)
NRG Services Inc. 01120 Various Peakers ($ 2,179)
NRG South Central LLC 01390 Bayou Cove Peaking Power LLC 01442 $ 1,000
NRG South Central Operations Inc. 00000 Xxxxx Xxxx Peaking Power LLC 01442 $ 3,796
NRG Turbine LLC 01247 NRG Rockford LLC 01274 ($ 36)
Oswego Harbor Power LLC 01370 Various Peakers ($ 10,282)
Power Marketing 01350 Big Cajun 1 Peaking Power LLC 01408 $ 4,520
Power Marketing 01350 NRG Rockford II LLC 01277 $ 33,270
Power Marketing 01350 NRG Sterlington Power LLC 01388 ($ 1,050)
Vienna Power LLC 01396 Bayou Cove Peaking Power LLC 01442 $ 000
Xxxxxxxxx Xxxxxxxxxx 00000 Xxxxxxxxxxx $ 0
Louisiana Generating 01386 Bayou Cove Peaking Power LLC 01442 $ 0
Louisiana Generating 01386 Big Cajun 1 Peaking Power LLC 01408 $ 0
Power Marketing 01350 NRG Rockford II LLC 01277 $ 6,391
--------
TOTAL SCHEDULE C $132,336
========
SCHEDULE D
REGULATORY MATTERS
FERC has indicated in the following orders that it will treat the Company as a
"public utility" for purposes of Section 204 of the FPA:
1. Letter from Xxxxxxx X. XxXxxxxxxx to Xxxxx X. Xxxxxx,
Docket No. ES03-59-000, 105 FERC p. 62,006 (Oct. 2, 2003);
2. Letter from Xxxxxxx X. XxXxxxxxxx to Xxxxx X. Xxxxxx,
Docket Nos. ES03-59-000, ES03-59-001, 105 FERC p. 62,037 (Oct. 22, 2003); and
3. Letter from Xxxxxxx X. XxXxxxxxxx to Xxxxx X. Xxxxxx,
Docket Nos. ES03-59-003, 105 FERC p. 62,177 (Dec. 12, 2003).
