COMMON EQUITY PURCHASE AGREEMENT
Exhibit 10.9
This Purchase Agreement (this “Agreement”) is made as of this 4th day of August, 2006 (the
“Issue Date”) between NRG Common Stock Finance I LLC, a Delaware limited liability company
(“Issuer”), and NRG Energy, Inc., a Delaware corporation and sole member of the Issuer (together
with its successor and assigns, “NRG”).
W I T N E S S E T H
WHEREAS, Issuer wishes to sell to NRG, and NRG wishes to purchase, 100% of Issuer’s limited
liability company membership interests (the “Membership Interests”) on the terms and conditions as
set forth herein.
NOW, THEREFORE, in consideration of their mutual covenants herein contained, the parties
hereto, intending to be legally bound, hereby mutually covenant and agree as follows:
1. Definitions. Capitalized terms not defined herein shall have the meaning ascribed to them
in the limited liability company agreement dated August 4, 2006 by NRG and Xxxx X. XxXxxxxx, as
Springing Member (the “LLC Agreement”) or the Note Purchase Agreement dated August 4, 2006 among
the Issuer, Credit Suisse International and Credit Suisse Securities (USA) LLC (the “Note
Agreement”), as applicable.
2. Sale and Purchase.
(a) Upon the terms and subject to the conditions set forth herein, Issuer agrees to
issue and sell to NRG, and NRG agrees to purchase from Issuer, the Membership Interests.
(b) NRG will make payment to Issuer in immediately available funds, by wire transfer
to an account designated by Issuer on each Funding Date, an amount equal to the product of (i) the
Daily Notional Amount for the Scheduled Trading Day in the Reference Period corresponding to such
Funding Date and (ii) 16.9245% (each such amount, the “Daily NRG Funding Amount” for such Funding
Date).
3. Representations and Warranties of NRG. NRG represents and warrants to Issuer, as of the
date hereof, that:
(a) it is duly organized, validly existing and in good standing under the laws of
the jurisdiction of its organization or incorporation;
(b) it has the power to execute this Agreement and any other documentation relating
this Agreement to which it is a party, to deliver this Agreement and any other documentation
relating to this Agreement that it is
required by this Agreement to deliver and to perform its obligations under this Agreement and
has taken all necessary action to authorize such execution, delivery and performance;
(c) such execution, delivery and performance do not violate or conflict with any law
applicable to it, any provision of its constitutional documents, any order or judgment of any court
or other agency of government applicable to it or any of its assets or any contractual restriction
binding on or affecting it or any of its assets;
(d) all governmental and other consents that are required to have been obtained by
it with respect to this Agreement have been obtained and are in full force and effect and all
conditions of any such consents have been complied with;
(e) its obligations under this Agreement constitute its legal, valid and binding
obligations, enforceable in accordance with their respective terms, subject to applicable
bankruptcy, insolvency and similar laws affecting creditors’ rights generally and to general
equitable principles;
equitable principles;
(f) it is an “Accredited Investor” as such term is defined in Rule 501(a)(3) of
Regulation D under the Securities Act;
(g) it is an “eligible contract participant” as such term is defined in Section
1a(12) of the Commodity Exchange Act, as amended; and
(g) it is a “qualified purchaser” as such term is defined in Section 2(51)(A) of the
Investment Company Act of 1940,
as amended.
as amended.
4. Procedure for Funding of Issuer. The satisfaction of Issuer’s obligations under the
Transaction Documents with respect to any Funding Date shall be preceded by the following actions,
in the following order:
(a) NRG shall have issued with respect to such Funding Date a valid notice pursuant
to Section 3(c) of the Note Purchase Agreement with respect to the Daily Notional Number of
Shares;;
(b) NRG shall pay the Daily NRG Funding Amount with respect to such Funding Date;
and
(c) the Daily Funding Amount (as defined in the Note Purchase Agreement) and the
Daily Funding Amount (as defined in the Preferred Interest Purchase Agreement) shall be paid, in
each case pursuant to the terms of the relevant Transaction Document.
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5. Notices. All notices and other communications hereunder shall be in writing and shall be
deemed to have been duly given if mailed or transmitted by any standard form of telecommunication.
Notices to NRG shall be given to it
at NRG Energy, Inc., 000 Xxxxxxxx Xxxxxx, Xxxxxxxxx, Xxx Xxxxxx 00000, Attention: General
Counsel, Fax: (000) 000-0000. Notices to Issuer shall be given to it at CT Corporation System,
0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx, copy to NRG Energy, Inc., 000 Xxxxxxxx Xxxxxx, Xxxxxxxxx,
Xxx Xxxxxx 00000, Attention: General Counsel, Fax: (000) 000-0000.
6. Counterparts. This Agreement may be signed in counterparts, each of which shall be an
original and all of which together shall constitute one and the same instrument.
7. Governing Law.
(a) THIS AGREEMENT AND ANY PRICING CONFIRMATIONS HEREUNDER SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO THE
CONFLICT OF LAWS PROVISIONS THEREOF.
(b) The parties hereto irrevocably and unconditionally submit, for themselves and
their property, to the nonexclusive jurisdiction of the Federal and state courts located in the
Borough of Manhattan, in the City of New York in any suit or proceedings arising out of or relating
to this Agreement, the transactions contemplated hereby, or for the recognition or enforcement of
any judgment. Each party hereto agrees that a final judgment in any such action or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any
other manner provided by law. Nothing in this Agreement shall affect any right that NRG may
otherwise have to bring any action or proceeding relating to this Agreement against Issuer or its
properties in the courts of any jurisdiction.
(c) Issuer irrevocably and unconditionally waives, to the fullest extent it may
legally and effectively do so, any objection that it may now or hereafter have to the laying of
venue of any suit, action or proceeding arising out of or relating to this Agreement in any court
referred to in clause (b) of this section. Each party hereto irrevocably waives, to the fullest
extent permitted by law, the defense of an inconvenient forum to the maintenance of any such suit,
action or proceeding in any such court.
8. Integration; Amendments and Waivers.
(a) Except as provided herein, this Agreement constitutes the complete agreement
between the parties with respect to the subject matter hereof and thereof, supersede any previous
agreement or understanding between them relating hereto or thereto and may not be modified, altered
or amended except as provided therein.
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(b) No amendment or waiver of any provision of this Agreement, nor consent to any
departure by Issuer therefrom, shall in any event be effective unless the same shall be in writing
and signed by Issuer and NRG.
9. Waiver of Jury Trial. The parties hereto waive all right to trial by jury in any action or
proceeding to enforce or defend any rights under this Agreement.
10. Severability. Wherever possible, each provision of this Agreement shall be interpreted in
such manner as to be effective and valid under applicable law, but if any provision of this
Agreement shall be prohibited by or invalid under applicable law, such provision shall be
ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of
such provision or the remaining provisions of this Agreement.
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IN WITNESS WHEREOF, this Agreement has been executed as of the date first written above.
NRG:
| By | /s/ Xxxxxx X.
Xxxxxx Title: Executive Vice President, CFO |
ISSUER:
NRG Common Stock Finance I LLC
| By | /s/ Xxxxx
Xxxxxxxx Title: VP & Treasurer |
