NOTE
PURCHASE AMENDMENT AGREEMENT
This
Amendment Agreement (this “ Amendment ”) is made
as of this 19th day of December, 2008 among NRG Common Stock
Finance II 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 hereto desire to 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 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.”
(e) Section 15
of the Note Purchase Agreement shall be deleted in its entirety and
replaced with the following new Section 15:
Increased Cost of Stock Borrow . The Calculation Agent may
reduce the Threshold Price for any Note to account for any period
in which it reasonably determines that an Increased Cost of Stock
Borrow exists in respect of such Note.
SECTION
3. Representations, Warranties and Agreements .
(a) Issuer
and Purchaser each represents and warrants to the other that its
representations and warranties contained
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