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AGREEMENT
WITH RESPECT TO
THE STOCK PURCHASE AGREEMENT
This
Agreement with respect to the Stock Purchase Agreement (this
“ Agreement ”) is made as of this 19th day of
December, 2008 among NRG Energy, Inc., a Delaware corporation
(“ Issuer ”), Credit Suisse First Boston Capital
LLC (together with its successor and assigns, “
Purchaser ”) and Credit Suisse First Boston LLC,
solely in its capacity as the Calculation Agent (the “
Calculation Agent ”).
WHEREAS,
Issuer and Purchaser are party to the Stock Purchase Agreement
dated August 11, 2005 (the “ Stock Purchase
Agreement ”), whereby Issuer issued to Purchaser
Issuer’s 3.625% Perpetual Convertible Preferred Stock (the
“ Preferred Stock ”) on the terms and conditions
set forth therein;
WHEREAS,
the Preferred Stock have the terms and provisions contained in a
Certificate of Designations filed with the Delaware Secretary of
State as of August 11, 2005 (the “ Certificate of
Designations ”);
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 . Definitions. As used herein, capitalized terms not
defined herein shall have the meaning ascribed to them in, or as
provided in, the Stock Purchase Agreement and the Certificate of
Designations.
SECTION
2 . Notice of Stock Borrow Disruption . (a) Purchaser
shall provide notice (a “ Stock Borrow Disruption
Notice ”) to Issuer following the end of each calendar
month during which a Stock Borrow Disruption Period occurred or was
continuing of (i) the increase to the dividend rate for the
Preferred Stock, and the period of effectiveness for such increase,
that would be made pursuant to Section 8.2 of the Certificate
of Designations to account for Purchaser’s increased hedging
costs during such period (the “ Dividend Adjustment
”) and (ii) an amount of cash payable in U.S. dollars
(the “ Cash Amount ”) that Issuer may elect to
pay in lieu of such adjustment. Such Stock Borrow Disruption Notice
shall specify the nature of the Stock Borrow Disruption Period and
shall provide a reasonably detailed basis for the determination of
the Dividend Adjustment and the Cash Amount. Purchaser shall
respond in good faith to good faith inquiries or disputes from
Issuer regarding the Stock Borrow Disruption Period, Dividend
Adjustment or Cash Amount
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