NOTE
PURCHASE AMENDMENT AGREEMENT
This
Amendment Agreement (this “ Amendment ”) is made
as of this 19th day of December, 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 August 4, 2006 (the “ Note Purchase
Agreement ”), whereby Issuer agreed to sell and Purchaser
agreed to purchase Issuer’s promissory notes on the terms and
conditions set forth therein;
WHEREAS,
the Parties have heretofore entered into an Agreement with respect
to the Note Purchase Agreement dated as of September 8, 2006,
an Amendment Agreement dated as of February 27, 2008 relating
to the Note Purchase Agreement (the “ First Amendment
Agreement ”) and a Note Purchase Amendment Agreement
dated as of August 8, 2008 relating to the Note Purchase
Agreement (the “ Second 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, such First Amendment Agreement and such Second Amendment
Agreement);
WHEREAS,
the Parties hereto desire to further amend the Note Purchase
Agreement 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:
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 is hereby
amended as follows, with such amendments taking effect as of the
date hereof and subject to the further conditions that (1) 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 and (2) the Agreement with respect to the Note
Purchase Agreement among Issuer, Purchaser, Agent and the Company
of even date herewith has been executed by the parties
thereto:
(a) Section 1(a)
of the Note Purchase Agreement shall be amended by deleting the
phrase “or an Increased Cost of Hedging” in item
(i) of the definition of “ Extraordinary Event
” and replacing it with “or an Increased Cost of Stock
Borrow.”
(b) Section 1(a)
of the Note Purchase Agreement shall be amended by adding the
following definition immediately after the definition of
“Increased Cost of Hedging” thereof:
“
Increased Cost of Stock Borrow ” means, in respect of
any Note, an Increased Cost of Hedging (or portion thereof)
resulting from the rate that the Noteholder of such Note or its
affiliate would incur to borrow NRG Common Stock.
(c) Section 1(a)
of the Note Purchase Agreement shall be amended by adding the
following definition immediately after the definition of
“Number of Underlying Shares” thereof:
“
Other Increased Cost of Hedging” means any Increased
Cost of Hedging (or portion thereof) that is not an Increased Cost
of Stock Borrow.
(d) Section 1(a)
of the Note Purchase Agreement shall be amended by amending the
definition of “Transaction Documents” by deleting
“and” in subclause (xiii) thereof and deleting the
phrase “as each document or agreement in subclauses
(i) through (xiv) may be amended from time to time”
in the last line thereof after the word “Agreement” and
adding the phrase “; and (xv) the Agreement with respect
to the Note Purchase Agreement dated as of December 19, 2008
among Issuer, Purchaser, Agent and the Company, as each document or
agreement in subclauses (i) through (xv) may be amended
from time to time” in the last line thereof after the word
“Agreement.”
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