FORTY-FOURTH SUPPLEMENTAL INDENTURE
Exhibit 4.33
FORTY-FOURTH SUPPLEMENTAL INDENTURE
FORTY-FOURTH SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”), dated as of May 9, 2011, among NRG Energy, Inc., a Delaware corporation (the “Company”), the guarantors set forth on the signature pages hereto (the “Guarantors”) and Law Debenture Trust Company of New York, as trustee under the indentures referred to below (the “Trustee”).
W I T N E S S E T H
WHEREAS, the Second Supplemental Indenture (the “Second Supplemental Indenture”), dated as of February 2, 2006, among the Company, the guarantors named therein and the Trustee, which amended the indenture (the “Base Indenture” and together with the Second Supplemental Indenture, the “Indenture”), dated as of February 2, 2006, between the Company and the Trustee, providing for the original issuance of an aggregate principal amount of $2,400 million of 7.375% Senior Notes due 2016 (the “Initial Notes”), and, subject to the terms of the Second Supplemental Indenture, future unlimited issuances of 7.375% Senior Notes due 2016 (the “Additional Notes,” and together with the Initial Notes, the “Notes”), currently permits Notes to be issued in denominations of $5,000 and integral multiples of $5,000;
WHEREAS, the Company wishes to issue Notes in minimum denominations of $2,000 and integral multiples of $1,000 in excess thereof; and
WHEREAS, pursuant to Section 9.01(4) of the Second Supplemental Indenture, the Trustee, the Company and the Guarantors are authorized to amend the Second Supplemental Indenture to provide additional rights or benefits to the Holders of Notes.
NOW THEREFORE, in consideration of the foregoing and for good and valuable consideration, the receipt of which is hereby acknowledged, the Trustee, the Company and the Guarantors mutually covenant and agree as follows:
1. Capitalized Terms. Unless otherwise defined in this Supplemental Indenture, capitalized terms used herein without definition shall have the meanings assigned to them in the Indenture.
2. Amendments to the Second Supplemental Indenture. Effective upon the date hereof:
(a) Section 2.01(a) of the Second Supplemental Indenture shall be amended by deleting the sentence “The Notes shall be in denominations of $5,000 and integral multiples of $5,000.” and replacing it with “The Notes shall be in minimum denominations of $2,000 and integral multiples of $1,000 in excess thereof.”.
(b) The third and fourth paragraphs of Section 3.02 of the Second Supplemental Indenture shall be deleted in their entirety and replaced with the following:
“The Trustee shall promptly notify the Company in writing of the Notes selected for redemption and, in the case of any Note selected for partial redemption, the principal amount thereof to be redeemed. Notes and portions of Notes selected shall be in amounts of $2,000 or whole multiples of $1,000 in excess of $2,000; except that if all of the Notes of a Holder are to be redeemed, the entire outstanding amount of Notes held by such Holder, even if not a multiple of $1,000, shall be redeemed. Except as provided in the preceding sentence, provisions of this Supplemental Indenture that apply to Notes called for redemption also apply to portions of Notes called for redemption.
No Notes of $2,000 or less shall be redeemed in part. Notices of redemption shall be mailed by first class mail at least 30 but not more than 60 days before the redemption date to each Holder of Notes to be redeemed at its registered address, except that redemption notices may be mailed more than 60 days prior to a redemption date if the notice is issued in connection with a defeasance of the Notes or a satisfaction and discharge of this Supplemental Indenture.”
(c) Subsection (5) within Section 3.10 of the Second Supplemental Indenture shall be deleted in its entirety and replaced with the following:
“(5) that Holders electing to have a Note purchased pursuant to an Asset Sale Offer may elect to have Notes purchased in minimum denominations of $2,000, or integral multiples of $1,000 in excess thereof;”
(d) Subsection (8) within Section 3.10 of the Second Supplemental Indenture shall be deleted in its entirety and replaced with the following:
“(8) that, if the aggregate principal amount of Notes and other pari passu Indebtedness surrendered in connection with the Asset Sale Offer exceeds the Offer Amount, the Company shall select the Notes and other pari passu Indebtedness to be purchased on a pro rata basis based on the principal amount of Notes and such other pari passu Indebtedness surrendered (with such adjustments as may be deemed appropriate by the Company so that only Notes in minimum denominations of $2,000, or integral multiples of $1,000 in excess thereof, will be purchased); and”
(e) The first sentence of Section 4.14(a) of the Second Supplemental Indenture shall be deleted in its entirety and replaced with the following:
“Upon the occurrence of a Change of Control, each Holder of Notes shall have the right to require the Company to make an offer (a “Change of Control Offer”) to each Holder to repurchase all or any part (equal to $2,000 or integral multiples of $1,000 in excess thereof) of each Holder’s Notes at a purchase price equal to 101% of the aggregate principal amount of Notes repurchased plus accrued and unpaid interest on the Notes repurchased, if any, to the date of purchase, subject to the rights of Holders of Notes on the relevant record date to receive interest due on the relevant interest payment date (the “Change of Control Payment”).”
(f) Subsection (7) within Section 4.14(a) of the Second Supplemental Indenture shall be deleted in its entirety and replaced with the following:
“(7) that Holders whose Notes are being purchased only in part will be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered, which unpurchased portion must be equal to $2,000 in principal amount or integral multiples of $1,000 in excess thereof.”
(g) The last paragraph of Section 4.14(b) of the Second Supplemental Indenture shall be deleted in its entirety and replaced with the following:
“The Paying Agent shall promptly distribute to each Holder of Notes properly tendered the Change of Control Payment for the Notes, and the Trustee shall promptly
authenticate and deliver (or cause to be transferred by book entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes surrendered, if any; provided that each new Note shall be in a principal amount of $2,000 or integral multiples of $1,000 in excess thereof. The Company shall publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date.”
(h) The first sentence of Section 8(a) of Exhibit A to the Second Supplemental Indenture shall be deleted in its entirety and replaced with the following:
“If there is a Change of Control, the Company shall be required to make an offer (a “Change of Control Offer”) to repurchase all or any part (equal to $2,000 or integral multiples of $1,000 in excess thereof) of each Holder’s Notes at a purchase price equal to 101% of the aggregate principal amount of Notes repurchased plus accrued and unpaid interest to the date of purchase (the “Change of Control Payment”).”
(i) The second sentence of Section 9 of Exhibit A to the Second Supplemental Indenture shall be deleted in its entirety and replaced with the following:
“Notes in denominations larger than $2,000 may be redeemed in part but only in whole multiples of $1,000 in excess thereof, unless all of the Notes held by a Holder are to be redeemed.”
(j) The first sentence of Section 10 of Exhibit A to the Second Supplemental Indenture shall be deleted in its entirety and replaced with the following:
“The Notes are in registered form without coupons in minimum denominations of $2,000 and integral multiples of $1,000 in excess thereof.”
3. NEW YORK LAW TO GOVERN. THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
4. Counterparts. The parties may sign any number of copies of this Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same agreement.
5. Effect of Headings. The Section headings herein are for convenience only and shall not affect the construction hereof.
6. The Trustee. The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Supplemental Indenture or for or in respect of the recitals contained herein, all of which recitals are made solely by the Company and the Guarantors.
7. Ratification of Indenture; Supplemental Indenture Part of Indenture. Except as expressly amended hereby, the Indenture is in all respects ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect. This Supplemental Indenture shall form a part of the Indenture for all purposes, and every Holder of Notes heretofore or hereafter authenticated and delivered shall by bound hereby.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed and attested, all as of the date first above written.
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ISSUER: | |
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NRG ENERGY, INC. | |
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By: |
/s/ Xxxxxxxxxxx Xxxxx |
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Name: |
Xxxxxxxxxxx Xxxxx |
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Title: |
Vice President and Treasurer |
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GUARANTORS: | |
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XXXXXX KILL POWER LLC | |
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ASTORIA GAS TURBINE POWER LLC | |
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BERRIANS I GAS TURBINE POWER LLC | |
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BIG CAJUN II UNIT 4 LLC | |
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CABRILLO POWER I LLC | |
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CABRILLO POWER II LLC | |
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CARBON MANAGEMENT SOLUTIONS LLC | |
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CLEAN EDGE ENERGY LLC | |
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CONEMAUGH POWER LLC | |
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CONNECTICUT JET POWER LLC | |
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COTTONWOOD DEVELOPMENT LLC | |
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COTTONWOOD GENERATING PARTNERS I LLC | |
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COTTONWOOD GENERATING PARTNERS II LLC | |
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COTTONWOOD GENERATING PARTNERS III LLC | |
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COTTONWOOD ENERGY COMPANY LP | |
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COTTONWOOD TECHNOLOGY PARTNERS LP | |
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DEVON POWER LLC | |
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DUNKIRK POWER LLC | |
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EASTERN SIERRA ENERGY COMPANY | |
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EL SEGUNDO POWER, LLC | |
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EL SEGUNDO POWER II LLC | |
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GREEN MOUNTAIN ENERGY COMPANY | |
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XXXXXXX IGCC LLC | |
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XXXXXXX POWER LLC | |
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INDIAN RIVER IGCC LLC | |
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INDIAN RIVER OPERATIONS INC. | |
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INDIAN RIVER POWER LLC | |
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XXXXX RIVER POWER LLC | |
Signature Page to Forty-Fourth Supplemental Indenture
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KEYSTONE POWER LLC |
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XXXXXXXX WIND POWER, LLC |
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LOUISIANA GENERATING LLC |
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MIDDLETOWN POWER LLC |
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MONTVILLE IGCC LLC |
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MONTVILLE POWER LLC |
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NEO CORPORATION |
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NEO FREEHOLD-GEN LLC |
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NEO POWER SERVICES INC. |
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NEW XXXXX XX, LLC |
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NORWALK POWER LLC |
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NRG AFFILIATE SERVICES INC. |
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NRG ARTESIAN ENERGY LLC |
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NRG XXXXXX KILL OPERATIONS INC. |
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NRG ASTORIA GAS TURBINE OPERATIONS INC. |
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NRG BAYOU COVE LLC |
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NRG CABRILLO POWER OPERATIONS INC. |
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NRG CALIFORNIA PEAKER OPERATIONS LLC |
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NRG CEDAR BAYOU DEVELOPMENT COMPANY, LLC |
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NRG CONNECTICUT AFFILIATE SERVICES INC. |
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NRG DEVON OPERATIONS INC. |
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NRG DUNKIRK OPERATIONS INC. |
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NRG EL SEGUNDO OPERATIONS INC. |
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NRG ENERGY SERVICES LLC |
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NRG GENERATION HOLDINGS, INC. |
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NRG XXXXXXX OPERATIONS INC. |
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NRG INTERNATIONAL LLC |
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NRG MIDATLANTIC AFFILIATE SERVICES INC. |
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NRG MIDDLETOWN OPERATIONS INC. |
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NRG MONTVILLE OPERATIONS INC. |
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NRG NEW JERSEY ENERGY SALES LLC |
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NRG NEW ROADS HOLDINGS LLC |
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NRG NORTH CENTRAL OPERATIONS INC. |
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NRG NORTHEAST AFFILIATE SERVICES INC. |
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NRG NORWALK HARBOR OPERATIONS INC. |
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NRG OPERATING SERVICES, INC. |
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NRG OSWEGO HARBOR POWER OPERATIONS INC. |
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NRG POWER MARKETING LLC |
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NRG RETAIL LLC |
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NRG SAGUARO OPERATIONS INC. |
Signature Page to Forty-Fourth Supplemental Indenture
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NRG SOUTH CENTRAL AFFILIATE SERVICES INC. | ||
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NRG SOUTH CENTRAL GENERATING LLC | ||
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NRG SOUTH CENTRAL OPERATIONS INC. | ||
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NRG TEXAS C&I SUPPLY LLC | ||
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NRG TEXAS HOLDING INC. | ||
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NRG TEXAS LLC | ||
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NRG TEXAS POWER LLC | ||
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NRG WEST COAST LLC | ||
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NRG WESTERN AFFILIATE SERVICES INC. | ||
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OSWEGO HARBOR POWER LLC | ||
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PENNYWISE POWER LLC | ||
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RE RETAIL RECEIVABLES, LLC | ||
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RELIANT ENERGY POWER SUPPLY, LLC | ||
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RELIANT ENERGY RETAIL HOLDINGS, LLC | ||
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RELIANT ENERGY RETAIL SERVICES, LLC | ||
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RELIANT ENERGY TEXAS RETAIL, LLC | ||
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RERH HOLDINGS, LLC | ||
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SAGUARO POWER LLC | ||
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SOMERSET OPERATIONS INC. | ||
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SOMERSET POWER LLC | ||
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TEXAS GENCO FINANCING CORP. | ||
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TEXAS XXXXX XX, LLC | ||
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TEXAS GENCO HOLDINGS, INC. | ||
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TEXAS GENCO OPERATING SERVICES, LLC | ||
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VIENNA OPERATIONS INC. | ||
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VIENNA POWER LLC | ||
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WCP (GENERATION) HOLDINGS LLC | ||
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WEST COAST POWER LLC | ||
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By: |
/s/ Xxxxxxxxxxx Xxxxx | |
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Name: |
Xxxxxxxxxxx Xxxxx |
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Title: |
Treasurer |
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ELBOW CREEK WIND PROJECT LLC | ||
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By: |
/s/ Xxxxxxxxxxx Xxxxx | |
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Name: |
Xxxxxxxxxxx Xxxxx |
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Title: |
Vice President and Controller |
Signature Page to Forty-Fourth Supplemental Indenture
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GCP FUNDING COMPANY, LLC | ||
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By: |
/s/ Xxxxxxxxxxx Xxxxx | |
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Name: |
Xxxxxxxxxxx Xxxxx |
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Title: |
Management Board Member |
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GREEN MOUNTAIN ENERGY COMPANY | ||
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By: |
/s/ Xxxxxxxxxxx Xxxxx | |
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Name: |
Xxxxxxxxxxx Xxxxx |
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Title: |
Vice President and Treasurer |
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NRG CONSTRUCTION LLC | ||
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By: |
/s/ Xxxxxx Xxxxx | |
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Name: |
Xxxxxx Xxxxx |
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Title: |
Treasurer |
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NRG SOUTH TEXAS LP | ||
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By: |
Texas Xxxxx XX, LLC, its General Partner | |
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By: |
/s/ Xxxxxxxxxxx Xxxxx | |
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Name: |
Xxxxxxxxxxx Xxxxx |
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Title: |
Treasurer |
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TEXAS XXXXX XX, LLC | ||
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By: |
/s/ Xxxxxxxxxxx Xxxxx | |
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Name: |
Xxxxxxxxxxx Xxxxx |
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Title: |
Management Committee Member |
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TEXAS GENCO SERVICES, LP | ||
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By: |
New Xxxxx XX, LLC, its General Partner | |
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By: |
/s/ Xxxxxxxxxxx Xxxxx | |
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Name: |
Xxxxxxxxxxx Xxxxx |
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Title: |
Treasurer |
Signature Page to Forty-Fourth Supplemental Indenture
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LAW DEBENTURE TRUST COMPANY OF NEW YORK, | |||
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as Trustee | |||
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By: |
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/s/ Xxxxx X. Xxxxxx | |
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Name: |
Xxxxx X. Xxxxxx | |
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Title: |
Managing Director | |
Signature Page to Forty-Fourth Supplemental Indenture
