NOTE PURCHASE AMENDMENT
AGREEMENT
This Amendment
Agreement (this “ Amendment ”) is made as of
this 8 th
day of August 2008 among NRG Common
Stock Finance I LLC, a Delaware limited liability company (“
Issuer ”), Credit Suisse International (together with
its successor and assigns, “ Purchaser ”) and
Credit Suisse Securities (USA) LLC (“ Agent
”), solely in its capacity as agent for Purchaser and Issuer
(Issuer, Purchaser and Agent, collectively, the “
Parties ”).
WHEREAS, the
Parties have heretofore entered into a Note Purchase Agreement
dated as of August 4, 2006 (the “ Note Purchase
Agreement ”) pursuant to which Issuer issued to Purchaser
Note No. 1 thereunder (the “ Note ”) on
August 4, 2006;
WHEREAS, the
Parties have heretofore entered into an Agreement with respect to
the Note Purchase Agreement dated as of September 8, 2006 and
an Amendment Agreement dated as of February 27, 2008 relating to
the Note Purchase Agreement (the “ Amendment Agreement
”) (and, for the avoidance of doubt, references to the Note
Purchase Agreement herein shall mean the Note Purchase Agreement as
modified or amended by such Agreement with respect to the Note
Purchase Agreement and such Amendment Agreement);
WHEREAS, the
Parties hereto desire to amend the Note Purchase Agreement as set
forth herein;
NOW, THEREFORE, in
consideration of their mutual covenants herein contained, the
Parties, intending to be legally bound, hereby mutually covenant
and agree as follows:
SECTION 1 .
Defined Terms; References. Unless otherwise specifically
defined herein, each capitalized term used herein and not otherwise
defined herein has the meaning assigned to such term in the Note
Purchase Agreement. Each reference to “hereof”,
“hereunder”, “herein” and
“hereby” and each other similar reference and each
reference to “this Note Purchase Agreement” and each
other similar reference contained in the Note Purchase Agreement
shall, after this Amendment becomes effective, refer to the Note
Purchase Agreement as amended hereby.
SECTION 2.
Amendments . The Note Purchase Agreement and the Note are
hereby amended as follows, with such amendments taking effect as of
the later of the final day of the Averaging Period (as defined
below) or, if Issuer is required to make a payment pursuant to
Section 4(a) below, the day such payment is made, and subject to
the further condition that as of such date Purchaser shall
have
received an
opinion (in form and substance satisfactory to Purchaser and its
counsel), dated as of the date hereof, of Kirkland & Ellis LLP,
counsel for Issuer, substantially in the form attached hereto as
Exhibit A:
(a) Section 1(a)
of the Note Purchase Agreement is amended by:
(i) deleting the
definitions of “Cash Settlement Percentage,”
“Initial Net Settlement Valuation Date,” “Net
Settlement Amount,” “Net Settlement Date” and
“Net Settlement Valuation Date” in their
entirety;
(ii) deleting the
definition of “Exchangeable Preferred Interests” in its
entirety; and
(iii) adding the
definition of “Preferred Interests” after the
definition of “Preferred Interest Purchase Agreement”
to read in its entirety as follows:
“
Preferred Interests ” means the preferred equity
interests of each NRG CSF issued pursuant to the Preferred Interest
Purchase Agreement to which such NRG CSF is a party.
(b) Sections 4(b)
and (c) of the Note Purchase Agreement are deleted in their
entirety.
(c) Each
reference to the “Exchangeable Preferred Interests” in
the Note Purchase Agreement shall be replaced with the words
“Preferred Interests”.
(d) The
amendments to the Note Purchase Agreement set forth in Sections
3(e) and 3(i) of the Amendment Agreement are hereby
reversed.
(e) The first
Paragraph of the Note is amended by deleting the phrase “,
EXCHANGE” in the fourth line.
(f) The Note
is amended by adding the words “, as amended from time to
time” prior to the parenthetical phrase beginning in the
second to last line of the first paragraph on the second page
thereof.
SECTION 3 .
Payment . On the Amendment Start Date, Issuer shall pay
Purchaser cash in immediately available funds by wire transfer to
an account designated by Purchaser in an amount equal to USD
27,618,479.01 (the “ Initial Payment Amount
”).
SECTION 4.
Payment Adjustment . Promptly following the last day of the
Averaging Period the Calculation Agent shall determine the Final
Payment Amount (as defined below) and notify the Purchaser and the
Issuer of such amount. On the date one Settlement Cycle following
the last day of the Averaging Period:
2
(a) if the
Final Payment Amount is greater than the Initial Payment Amount, as
an adjustment to the payment set forth in Section 3 above,
Issuer shall make a cash payment in USD to Purchaser in an amount
equal to such difference by wire transfer of immediately available
funds to an account designated by Purchaser; or
(b) if the
Final Payment Amount is less than the Initial Payment Amount, as an
adjustment to the payment set forth in Section 3 above,
Purchaser shall make a cash payment in USD to Issuer in an amount
equal to the absolute value of such difference by wire transfer of
immediately available funds to an account designated by
Issuer.
“
Amendment Start Date ” means August 8,
2008.
“ Average
VWAP Price ” means the arithmetic average of the VWAP
Prices for the Trading Days in the Averaging Period.
“
Averaging Period ” means a period of twelve
consecutive Trading Days beginning on the Amendment Start Date;
provided that the Purchaser may accelerate the final day of
the Averaging Period to any Trading Day beginning on or after the
sixth Trading Day following the Amendment Start Date by notice to
the Issuer on or prior to such accelerated final day. The
Calculation Agent may determine that any Scheduled Trading Day is a
Disrupted Day only in part, in which case (i) the Calculation
Agent may, but need not, extend the scheduled final day of the
Averaging Period, (ii) the Calculation Agent shall determine the
VWAP Price for such Disrupted Day based on Rule 10b-18
eligible transactions in NRG Common Stock on the Exchange on such
day during the period on such day that the Exchange is open and no
Market Disruption Event (or circumstance described in
Section 7 of this Amendment) has occurred and is continuing
and (iii) the Average VWAP Price will be determined by the
Calculation Agent using an appropriately weighted average of VWAP
Prices.
“ Final
Payment Amount ” means the amount in USD for a given
Average VWAP Price as set forth in the table in Appendix A
hereto; provided that if the Average VWAP Price is between
two Average VWAP Price amounts in the table, the Final Payment
Amount shall be determined by straight-line interpolation between
the Final Payment Amounts set forth for the next higher and lower
Average VWAP Price amounts in the table.
SECTION 5.
Adjustment of Terms . In the event of any stock split, stock
dividend, bankruptcy, insolvency, reorganization, Merger Event,
Tender Offer, rights offering, recapitalization, spin-off or other
material event involving the Company or the NRG Common Stock), the
Calculation Agent shall adjust the terms of this Amendment as
appropriate to account for such event.
SECTION 6 .
Representations, Warranties and Agreements.
3
(a) Issuer
and Purchaser each represents and warrants to the other that its
representations and warranties contained in Sections 6 and 7,
respectively, of the Note Purchase Agreement are true and correct
on the date hereof as if made on the date hereof.
(b) Issuer
represents and warrants to and for the benefit of, and agrees with,
Purchaser as follows:
(i) it has the
power to execute this Amendment, to deliver this Amendment and
to
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