EXHIBIT 99.1
EXHIBIT D-2B
to Credit Agreement
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FORM OF
NRG ENERGY EQUITY UNDERTAKING
among
NRG ENERGY, INC.,
a Delaware corporation
(Sponsor)
and
NRG FINANCE COMPANY I LLC,
a Delaware limited liability company
(Borrower)
and
CREDIT SUISSE FIRST BOSTON,
acting through its New York Branch
(Administrative Agent)
DATED AS OF _______ __, ____
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TABLE OF CONTENTS
Page
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ARTICLE 1. DEFINITIONS............................................................................................2
1.1 Defined Terms and Rules of Interpretation.......................................................2
1.2 Credit Agreement Definitions....................................................................7
1.3 Rules of Interpretation.........................................................................7
ARTICLE 2. OBLIGATIONS OF SPONSOR.................................................................................7
2.1 Equity Contributions............................................................................7
2.1.1. Final Equity Funding Payment...........................................................8
2.1.2. Final Plant Funding Payment............................................................8
2.1.3. Initial Plant Funding Payment..........................................................8
2.1.4. Turbine Funding Commitment.............................................................9
2.1.5. Turbine Default Funding Commitment.....................................................9
2.1.6. Fraudulent Conveyance Funding Commitment...............................................9
2.1.7. Non-Fixed Price Construction Completion Funding Commitment.............................9
2.1.8. Committed Equity Funds................................................................10
2.1.9. Recourse Interest Funding Commitment..................................................10
2.1.10. Sponsor Equity Contributions Cap......................................................11
2.2 Payments.......................................................................................11
2.2.1. Taxes.................................................................................11
2.2.2. Late Payment..........................................................................11
2.3 Equity Contribution Support....................................................................11
2.4 Waiver of Defenses; Obligations Unconditional..................................................12
2.4.1. Waiver of Defenses....................................................................12
2.4.2. Obligations Unconditional.............................................................13
2.5 Subrogation....................................................................................14
ARTICLE 3. SPECIFIC PROVISIONS...................................................................................15
3.1 Reinstatement..................................................................................15
3.2 Specific Performance...........................................................................15
3.3 Bankruptcy Code Waiver.........................................................................15
3.4 No Commencement of Bankruptcy Proceedings......................................................15
3.5 Grant of Security Interest; Actions by Administrative Agent....................................16
3.6 Set-Off........................................................................................16
ARTICLE 4. PURCHASE OF PARTICIPATING INTEREST....................................................................17
4.1 Required Purchase of Participating Interest....................................................17
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4.2 Effect of Purchase of Participating Interest...................................................17
4.3 Subordinate Nature of Participating Interest...................................................17
4.4 Rights of Administrative Agent and Secured Parties.............................................17
4.5 No Voting Rights...............................................................................18
4.6 Obligations Unconditional......................................................................18
ARTICLE 5. REPRESENTATIONS AND WARRANTIES........................................................................18
5.1 Corporate Existence and Business...............................................................18
5.2 Compliance with Law............................................................................19
5.3 Power and Authorization; Enforceable Obligations...............................................19
5.4 No Consent.....................................................................................19
5.5 No Legal Bar...................................................................................19
5.6 No Proceeding or Litigation....................................................................19
5.7 Financial Statements...........................................................................20
5.8 Taxes..........................................................................................20
5.9 Full Disclosure................................................................................20
5.10 Credit Documents...............................................................................20
5.11 Regulatory Matters.............................................................................20
5.12 Solvency Matters...............................................................................20
5.12.1. Financial Information.................................................................20
5.12.2. Insolvency............................................................................20
ARTICLE 6. COVENANTS.............................................................................................21
6.1 Maintenance of Corporate Existence.............................................................21
6.2 Restrictions on Consolidations and Mergers.....................................................22
6.3 Notice of Sponsor Material Adverse Effect......................................................22
6.4 Compliance with Laws...........................................................................22
6.5 Taxes..........................................................................................22
6.6 Insurance......................................................................................22
6.7 Ranking........................................................................................22
6.8 Further Assurances.............................................................................22
6.9 Consolidated Net Worth.........................................................................23
6.10 Indebtedness to Consolidated Capitalization....................................................23
6.11 Financial and Other Information................................................................23
6.12 Additional Financial Covenants.................................................................24
6.13 Prohibition on Incurrence of Indebtedness and Liens............................................24
6.14 Negative Pledge................................................................................24
ARTICLE 7. MISCELLANEOUS.........................................................................................24
7.1 No Waiver; Separate Causes of Action...........................................................24
7.2 Remedies Cumulative............................................................................25
7.3 Severability...................................................................................25
7.4 Headings.......................................................................................25
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7.5 Succession.....................................................................................25
7.6 Amendments, Etc................................................................................25
7.7 Governing Law..................................................................................25
7.8 Payments.......................................................................................25
7.9 Expenses.......................................................................................26
7.10 Notices........................................................................................26
7.11 Counterparts...................................................................................27
7.12 Submission to Jurisdiction.....................................................................27
7.13 Waiver of Jury Trial...........................................................................27
7.14 Limitation of Liability........................................................................27
7.15 Third Party Rights.............................................................................28
7.16 Survival of Obligations........................................................................28
7.17 Scope of Liability.............................................................................28
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This NRG ENERGY EQUITY UNDERTAKING, dated as of _____ __, ____
(as amended, amended and restated, supplemented or otherwise modified from time
to time, this "Agreement"), is entered into among NRG FINANCE COMPANY I LLC, a
limited liability company formed under the laws of the State of Delaware
("Borrower"), NRG ENERGY, INC., a corporation organized under the laws of the
State of Delaware ("Sponsor"), and CREDIT SUISSE FIRST BOSTON, acting through
its New York Branch, as administrative agent (together with its sucessors and
assigns in such capacity, "Administrative Agent") for each of the Secured
Parties.
RECITALS
A. Borrower (together with each of the other Portfolio
Entities) proposes to develop, construct, own and operate certain power
generating plants located in the United States (as more particularly defined in
the Credit Agreement, the "Approved Projects");
B. In order to finance the construction of the Approved
Projects, the acquisition of certain Turbines therefor and the acquisition of
certain other assets and plants related thereto, Borrower has entered into that
certain Credit Agreement, dated as of May 8, 2001 (as amended, amended and
restated, supplemented or otherwise modified from time to time, the "Credit
Agreement"), among Borrower, the financial institutions from time to time
parties thereto (collectively, "Banks"), Credit Suisse First Boston, acting
through its New York Branch, as Lead Arranger, Administrative Agent and
Documentation Agent, and each of the other agents and arrangers listed on the
signature pages thereto pursuant to which, among other things, Banks have
extended Commitments to make Loans to, and for the benefit of, Borrower;
C. Sponsor, as the [DIRECT] [INDIRECT] sole shareholder of the
sole member of Borrower, will derive substantial benefit from the Loans to be
made by Banks to Borrower pursuant to the Credit Documents; and
D. It is a condition precedent to the effectiveness of the
Credit Agreement and the other Credit Documents that the parties hereto shall
have executed and delivered this Agreement and that Sponsor perform its
obligations hereunder.
AGREEMENT
NOW, THEREFORE, in consideration of the premises set forth
above and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged and as an inducement to Administrative Agent and
Banks to enter into the Credit Agreement with Borrower and the other Credit
Documents with the Portfolio Entities, Sponsor hereby consents and agrees as
follows:
ARTICLE 1.
DEFINITIONS
1.1 Defined Terms and Rules of Interpretation.
The following terms (whether or not underscored) when used in
this Agreement, including its preamble and recitals, shall have the following
meanings:
"Administrative Agent" has the meaning given in the preamble
to this Agreement.
"Approved Projects" has the meaning given in the recitals to
this Agreement.
"Borrower" has the meaning given in the preamble to this
Agreement.
"Calculation Date" means the date corresponding to the last
Banking Day of any fiscal quarter which is one Banking Day after the
financial statements, documents and certificates described in Section
6.11 have been delivered to, and the calculations of the ratios and
Minimum Consolidated Net Worth therein have been verified by,
Administrative Agent.
"Capital Lease" means, as applied to any Person, any lease of
any property (whether real, personal or mixed) by that Person as lessee
that, in conformity with GAAP, is accounted for as a capital lease on
the balance sheet of that Person.
"Capital Lease Obligations" means, as applied to any Person,
the obligations of such Person to pay rent or other amounts under any
Capital Lease, the amount of which obligations at any time shall be the
capitalized amount thereof at such time determined in accordance with
GAAP.
"Cash Collateral Account" means one or more cash collateral
account(s) to be held by the Depositary Agent, which accounts shall
each be subject to a valid and perfected first priority Lien in favor
of Administrative Agent, for the benefit of the Secured Parties. For
the avoidance of doubt, the proceeds held on deposit in each such
account shall be part of the Collateral and, to the extent required by
Section 2.1.8(c) or 7.2.2 of the Credit Agreement, be applied to the
prepayment of the Loans.
"Committed Equity Funds Acknowledgment" means an
acknowledgment issued by Sponsor to Borrower and the relevant Project
Owner, in substantially the form of Exhibit D hereto.
"Completion Contribution Notice" means a certificate issued by
Borrower to Sponsor, in substantially the form of Exhibit C hereto.
"Completion Funding Payment" means, at any date of
determination, with respect to any Approved Project being designed,
developed, constructed, installed and tested pursuant to Option D set
forth in Schedule 3.2.6 to the Credit Agreement, a cash capital
contribution or any other cash payment to Borrower in an amount equal
to the aggregate
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amount of all payments then due and payable under each Prime
Construction Contract and any other Project Document directly related
to the design, development, construction, installation or testing of
such Approved Project (other than any Credit Document) in excess of
110% of the anticipated aggregate amount of the Project Costs for such
Approved Project (as set forth in such Approved Project's Project
Budget delivered pursuant to Section 3.2 or 3.5 of the Credit
Agreement).
"Consolidated Capitalization" means, as of the date of
determination thereof, Consolidated Net Worth as of such date plus
Indebtedness of Sponsor as of such date.
"Consolidated Net Income" means, for any period, the net
income (or net loss) of Sponsor for such period computed on a
consolidated basis in accordance with GAAP.
"Consolidated Net Worth" means, as of the date of
determination thereof, the amount which would be reflected as
stockholders' equity upon a consolidated balance sheet of Sponsor
(determined in accordance with GAAP) prior to making any adjustment
thereto (a) as a result of application of the Financial Accounting
Standards Board's Statement of Financial Accounting Standards No. 133,
Accounting for Derivative Instruments and Hedging Activities or (b) in
connection with the account entitled "currency translation account" on
such balance sheet.
"Contingent Performance Guarantees" means a Performance
Guarantee as to which (a) the guarantor's obligation cannot be
reasonably quantified, and (b) neither Sponsor nor any of its
Subsidiaries has information which raises a reasonable possibility that
a demand under such Performance Guarantee will be made during the term
of this Agreement. A Contingent Performance Guarantee which for any
reason fails to meet the criteria set forth in either clause (a) and
(b) of this definition shall immediately cease to be deemed a
Contingent Performance Guarantee for purposes of this Agreement.
"Credit Agreement" has the meaning given in the recitals to
this Agreement.
"Defaulted Payment" has the meaning given in Section 4.1.1 to
this Agreement.
"Disqualified Project" has the meaning given in Section 6.15
to this Agreement.
"Downgrade Event" has the meaning given in Section 2.3 to this
Agreement.
"Eligible Non-Recourse Entity" means an Affiliate of NRG
Energy (a) (i) whose sole purpose is the ownership and maintenance of a
power project that has been financed on a non-recourse basis or (ii)
whose sole purpose is the ownership of an Affiliate of NRG Energy whose
sole purpose is the ownership and maintenance of a power project that
has been financed on a non-recourse basis or (b) that is not directly
connected to a power project that has been financed on a non-recourse
basis (including any Approved Project) or responsible for actions
materially and directly affecting a power project that has been
financed on a non-recourse basis (including any Approved Project).
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"Equity Contribution Date" means the date a Sponsor Equity
Contribution is required to be made hereunder.
"Equity Contribution Support Instrument" means an
unconditional, irrevocable, direct pay letter of credit, substantially
in the form of Exhibit A hereto (with such changes as Administrative
Agent may reasonably agree to), issued by a commercial bank in, and
drawable in, New York, New York, whose senior unsecured non-credit
enhanced long-term debt at the time of issuance and at all times such
letter of credit shall be outstanding is rated at least "A-" by S&P and
"A3" by Xxxxx'x.
"Final Equity Payment Contribution" has the meaning given in
Section 2.1.1 to this Agreement.
"Final Plant Payment Contribution" has the meaning given in
Section 2.1.2 to this Agreement.
"Fraudulent Conveyance Payment Contribution" has the meaning
given in Section 2.1.6 to this Agreement.
"Guaranty" by any Person means all obligations (other than
endorsements in the ordinary course of business of negotiable
instruments for deposit or collection) of such Person guaranteeing or
in effect guaranteeing any Indebtedness, dividend or other obligation
(including, without limitation, limited or full recourse obligations in
connection with sales of receivables or any other property and
Performance Guarantees) of any other Person (for purposes of this
definition, the "primary obligor") in any manner, whether directly or
indirectly, including, without limitation, all obligations incurred
through an agreement, contingent or otherwise, by such Person: (a) to
purchase such Indebtedness or obligation or any property or assets
constituting security therefor, (b) to advance or supply funds (i) for
the purchase or payment of such Indebtedness or obligation, or (ii) to
maintain working capital or other balance sheet condition, or otherwise
to advance or make available funds for the purchase or payment of such
Indebtedness or obligation, (c) to lease property or to purchase
securities or other property or services primarily for the purpose of
assuring the owner of such Indebtedness or obligation of the ability of
the primary obligor to make payment of the Indebtedness or obligation,
or (d) otherwise to assure the owner of the Indebtedness or obligation
of the primary obligor against loss in respect thereof. For the purpose
of all computations made under this Agreement, the amount of a Guaranty
in respect of any obligation shall be deemed to be equal to the maximum
aggregate amount of such obligation or, if the Guaranty is limited to
less than the full amount of such obligation, the maximum aggregate
potential liability under the terms of the Guaranty. Notwithstanding
anything in this definition to the contrary, a Person's support of its
subsidiary's obligation to (A) make equity contributions or (B) pay
liquidated damages under an operating and maintenance agreement should
such subsidiary fail to comply with the terms thereof shall not be
considered a "Guaranty" by such Person.
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"Indebtedness" means and includes, for any Person, subject to
Section 1.3(c), all obligations of such Person, without duplication,
which are required by GAAP to be shown as liabilities on its balance
sheet, and in any event shall include all of the following whether or
not so shown as liabilities: (a) obligations of such Person for
borrowed money; (b) obligations of such Person representing the
deferred purchase price of property or services; (c) obligations of
such Person evidenced by notes, acceptances, or other instruments of
such Person or arising out of letters of credit issued for such
Person's account; (d) obligations, whether or not assumed, secured by
Liens or payable out of the proceeds or production from property now or
hereafter owned or acquired by such Person; (e) Capital Lease
Obligations of such Person; and (f) obligations for which such Person
is obligated pursuant to a Guaranty, provided that Contingent
Performance Guarantees of Sponsor and the obligations of Sponsor
hereunder shall be deemed not to be "Indebtedness" for purposes of this
Agreement.
"Initial Plant Payment Contribution" has the meaning given in
Section 2.1.3 to this Agreement.
"Make-Whole Date" means any day on which (a) any of the
proceeds received by Administrative Agent (for the benefit of Secured
Parties) from any Project Owner under any Project Owner Guaranty are
determined to be unlawful or voidable under any applicable fraudulent
conveyance or fraudulent transfer law or any comparable law (including
Sections 547 and 548 of the federal Bankruptcy Law) or (b) a
determination is made that the transfer or receipt of proceeds from any
Project Owner under any Project Owner Guaranty is or would be unlawful
or voidable under any applicable fraudulent conveyance or fraudulent
transfer law or any comparable law (including Sections 547 and 548 of
the federal Bankruptcy Law).
"Make-Whole Payment" means, at any date of determination, a
cash capital contribution or any other cash payment to Borrower in an
amount equal to the sum of (without duplication) (a) the aggregate
amount of proceeds received by Administrative Agent (for the benefit of
Secured Parties) from the Project Owners under the Project Owner
Guaranties which are reclaimed from the Administrative Agent because
they are determined to be unlawful or voidable under any applicable
fraudulent conveyance or fraudulent transfer law or any comparable law
(including Sections 547 and 548 of the federal Bankruptcy Law) as of
such day plus (b) the aggregate amount of proceeds which would have
been but were not received by Administrative Agent (for the benefit of
Secured Parties) from the Project Owners under the Project Owner
Guaranties by Administrative Agent (for the benefit of Secured Parties)
through the exercise of remedies by Administrative Agent or Banks in
accordance with the terms of the Credit Documents but for the
determination that the transfer or receipt of proceeds from any Project
Owner under any Project Owner Guaranty is unlawful or voidable under
any applicable fraudulent conveyance or fraudulent transfer law or any
comparable law (including Sections 547 and 548 of the federal
Bankruptcy Law) as of such day.
"Minimum Consolidated Net Worth" means an amount, as of any
determination thereof, equal to the sum of $1,000,000,000 plus 25% of
Consolidated Net Income for the
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period from and including January 1, 2001 to such determination date,
but which minimum amount shall in no event be less than $1,000,000,000.
"Non-Conforming Period" has the meaning given in Section 6.10
to this Agreement.
"NRG Corporate Credit Documents" means, collectively, (a) the
Credit Agreement, dated as of March 9, 2001, among Sponsor, the
financial institutions party thereto from time to time and ABN AMRO
Bank N.V., as agent for the lenders thereunder, (b) each agreement,
document or instrument evidencing any refinancing of the Sponsor's
obligations under the agreement referred to in clause (a) of this
definition and (c) each other agreement evidencing Indebtedness
described in clause (a) of the definition thereof with an aggregate
principal amount in excess of $50,000,000.
"Performance Guarantees" means a guarantee issued by Sponsor
or any of its Subsidiaries that Sponsor or such Subsidiary will cause
some action (other than the payment of money) to be performed, whether
by performing the action itself or paying others to perform such
action. For the avoidance of doubt, the obligations of Sponsor
hereunder shall be deemed not to be a "Performance Guarantee".
"Rating" means the rating given to senior unsecured non-credit
enhanced long-term debt obligations of Sponsor by Xxxxx'x and S&P and
any successors thereto.
"Retained Interest" has the meaning given in Section 4.3 to
this Agreement.
"Sponsor" has the meaning given in the preamble to this
Agreement.
"Sponsor Completion Contribution" has the meaning given in
Section 2.1.7 to this Agreement.
"Sponsor Default Turbine Contribution" has the meaning given
in Section 2.1.5 to this Agreement.
"Sponsor Equity Commitments" means, collectively, the
unconditional and irrevocable commitments of Sponsor to make equity
contributions or other cash payments to any Portfolio Entity pursuant
to Sections 2.1.1 through 2.1.9.
"Sponsor Equity Contributions" means, collectively, the Final
Payment Contribution, each Final Plant Payment Contribution, each
Initial Plant Payment Contribution, each Sponsor Turbine Contribution,
each Sponsor Default Turbine Contribution, each Fraudulent Conveyance
Payment Contribution, each Sponsor Completion Contribution and each
Contribution made pursuant to Sections 2.1.8 and 2.1.9.
"Sponsor Equity Contributions Cap" has the meaning given in
Section 2.1.10 to this Agreement.
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"Sponsor Turbine Contribution" has the meaning given in
Section 2.1.4 to this Agreement.
"Sponsor Turbine Contribution Notice" means a certificate
issued by Borrower to Sponsor, in substantially the form of Exhibit B
hereto.
"Turbine Funding Payment" means, at any date of determination,
with respect to any Approved Turbine, a cash capital contribution or
any other cash payment to Borrower in an amount equal to (a) the
aggregate amount of all payments then due and payable under each
Turbine Purchase Contract and any other agreement directly related to
the purchase of such Approved Turbine (other than any Credit Document)
minus (b) the aggregate amount of the Available Working Capital
Commitment then available to be utilized by Borrower under the Credit
Agreement for the funding of payments then due and payable under each
such Turbine Purchase Contract and other agreement.
1.2 Credit Agreement Definitions. Unless otherwise defined herein or
unless the context otherwise requires, terms used in this Agreement, including
its preamble and recitals, have the meanings provided in Exhibit A to the Credit
Agreement.
1.3 Rules of Interpretation.
(a) Unless otherwise provided herein, the rules of
interpretation set forth in Exhibit A to the Credit Agreement shall apply to
this Agreement, including its preamble and recitals.
(b) With respect to any Sponsor Equity Contribution to be
made hereunder, the amount of such Sponsor Equity Contribution shall be
determined based on the Capitalization and obligations owing under the
applicable Project Documents on the date any such Sponsor Equity Contribution is
actually made (whether or not such date is the date any such Sponsor Equity
Contribution was due and payable hereunder).
(c) All calculations of the Indebtedness of any Person
(and the components thereof) shall be performed on a consolidated basis,
provided, that Indebtedness shall not include obligations which are required by
GAAP to be shown as liabilities on such Person's balance sheet, but which
obligations have been incurred by an Eligible Non-Recourse Entity.
ARTICLE 2.
OBLIGATIONS OF SPONSOR
2.1 Equity Contributions.
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2.1.1. Final Equity Funding Payment. Sponsor hereby agrees, for the
benefit of Borrower and Administrative Agent (on behalf of the Secured Parties),
to contribute, or cause to be contributed, to Borrower a Final Equity Funding
Payment on the Loan Maturity Date ("Final Payment Contribution"). Any such Final
Payment Contribution shall be paid in immediately available funds through the
deposit of such funds directly into the Cash Collateral Account, for ultimate
transfer to the Secured Parties in accordance with the terms of the Credit
Agreement (including Sections 2.1.8(c) and 7.2.2 thereof).
2.1.2. Final Plant Funding Payment. With respect to any Approved
Project (other than any Approved Project in respect of which an Initial Plant
Payment Contribution has previously been made in accordance with the terms
hereof), Sponsor hereby agrees, for the benefit of Borrower and Administrative
Agent (on behalf of the Secured Parties), to contribute, or cause to be
contributed, to Borrower on the date which is six months after the date such
Approved Project achieved Provisional Acceptance the positive difference (if
any) between (a) the aggregate amount of the applicable Final Plant Funding
Payment and (b) the then remaining Cash Equity Credit (each, a "Final Plant
Payment Contribution"). Each such Final Plant Payment Contribution shall be paid
in immediately available funds through the deposit of such funds directly into
the Cash Collateral Account, for ultimate transfer to the Secured Parties in
accordance with the terms of the Credit Agreement (including Section 2.1.8(c)
thereof).
2.1.3. Initial Plant Funding Payment.
(a) With respect to each Subject Acquisition in respect of
which the relevant Acquisition Plant has achieved or will achieve Provisional
Acceptance as of the applicable initial Funding Date, Sponsor hereby agrees, for
the benefit of Borrower and Administrative Agent (on behalf of the Secured
Parties), to contribute, or cause to be contributed, to Borrower the positive
difference (if any) between (i) the aggregate amount of the applicable Plant
Equity Funding Payment and (ii) the then remaining Cash Equity Credit prior to
or concurrently with the making of any initial Development Loan in respect of
such Subject Acquisition pursuant to and in accordance with Section 3.5.37 of
the Credit Agreement (each, an "Initial Plant Payment Contribution"). Each such
Initial Plant Payment Contribution shall be paid in immediately available funds
in accordance with Section 3.5.37 of the Credit Agreement, for ultimate transfer
to the applicable Major Project Participants or other Persons in accordance with
the terms of the Credit Documents.
(b) With respect to each Approved Project in respect of which
an Initial Plant Payment Contribution has previously been made or was not made
as a result of the application of the Cash Equity Credit in accordance with the
terms of clause (a) above, if any portion of the Cash Equity Credit was applied
to reduce or eliminate the applicable Plant Equity Funding Payments in
accordance with clause (a) above and subsequent to such application the Cash
Equity Credit was reduced pursuant to and in accordance with Section 6.14 (to
the extent that no Cash Equity Credit remains to replace the amount being so
reduced), then Sponsor shall, for the benefit of Borrower and Administrative
Agent (on behalf of the Secured Parties), contribute, or cause to be
contributed, to Borrower a cash capital contribution or any other cash payment
in an aggregate amount equal to the positive difference (if any) between (i) the
amount of the Cash Equity Credit which was reduced pursuant to and in accordance
with Section 6.14
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and (ii) the amount of the Cash Equity Credit which was applied to reduce the
applicable Plant Equity Funding Payments for all such Approved Projects. Each
such cash capital contribution or other cash payment shall be paid in
immediately available funds through the deposit of such funds (on a pro rata
basis among such Approved Projects) directly into the applicable Development
Sub-Accounts no later than 11:00 a.m. on the date the Cash Equity Credit is
reduced pursuant to and in accordance with Section 6.14, for ultimate transfer
in accordance with the terms of the Credit Documents.
2.1.4. Turbine Funding Commitment. Sponsor hereby agrees, for
the benefit of Borrower and Administrative Agent (on behalf of the Secured
Parties), to contribute, or cause to be contributed, to Borrower a Turbine
Funding Payment on the date and in the amount specified in any Sponsor Turbine
Contribution Notice delivered by Borrower to Sponsor (each, a "Sponsor Turbine
Contribution"). Borrower hereby agrees to promptly deliver an appropriately
completed Sponsor Turbine Contribution Notice to Sponsor in the event that it
has insufficient funds available to it to pay any costs due and payable under
any agreement (including any Turbine Purchase Contract) in respect of any
Approved Turbine (as reasonably determined by Borrower or Administrative Agent).
Each such Sponsor Turbine Contribution shall be paid in immediately available
funds through the deposit of such funds directly into the applicable Working
Capital Sub-Account, as specified in the applicable Sponsor Turbine Contribution
Notice, no later than 11:00 a.m. on the date specified in such Sponsor Turbine
Contribution Notice, for ultimate transfer to the applicable Turbine Purchase
Contractor or other Person in accordance with the terms of the Credit Documents.
2.1.5. Turbine Default Funding Commitment. Sponsor hereby
agrees, for the benefit of Borrower and Administrative Agent (on behalf of the
Secured Parties), to contribute, or cause to be contributed, to Borrower a
Turbine Default Funding Payment on the date the Loans (or any portion thereof)
are accelerated in accordance with the terms of the Credit Agreement (each, a
"Sponsor Default Turbine Contribution"). Any such Sponsor Default Turbine
Contribution shall be paid in immediately available funds through the deposit of
such funds directly into the Cash Collateral Account, for ultimate transfer to
the Secured Parties in accordance with the terms of the Credit Agreement
(including Section 7.2.2 thereof).
2.1.6. Fraudulent Conveyance Funding Commitment. Sponsor
hereby agrees, for the benefit of Borrower and Administrative Agent (on behalf
of the Secured Parties), to contribute, or cause to be contributed, to Borrower
a Make-Whole Payment on each Make-Whole Date (each, a "Fraudulent Conveyance
Payment Contribution"). Each such Fraudulent Conveyance Payment Contribution
shall be paid in immediately available funds through the deposit of such funds
directly into the Cash Collateral Account, for ultimate transfer to the Secured
Parties in accordance with the terms of the Credit Agreement (including Section
7.2.2 thereof).
2.1.7. Non-Fixed Price Construction Completion Funding
Commitment. Sponsor hereby agrees, for the benefit of Borrower and
Administrative Agent (on behalf of the Secured Parties), to contribute, or cause
to be contributed, to Borrower a Completion Funding Payment on the date and in
the amount specified in any Completion Contribution Notice delivered by Borrower
to Sponsor (each, a "Sponsor Completion Contribution"). Borrower
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hereby agrees to promptly deliver an appropriately completed Completion
Contribution Notice to Sponsor in the event that the aggregate amount of costs,
expenses and fees due under any Prime Construction Contract for any Approved
Project which is being designed, developed, constructed, installed and tested
pursuant to Option D set forth in Schedule 3.2.6 to the Credit Agreement exceeds
110% of the anticipated aggregate amount of such costs, expenses and fees for
such Approved Project (as set forth in such Approved Project's Project Budget
delivered pursuant to Section 3.2 or 3.5 of the Credit Agreement). Each such
Sponsor Completion Contribution shall be paid in immediately available funds
through the deposit of such funds directly into the applicable Development
Sub-Account, as specified in the applicable Completion Contribution Notice, no
later than 11:00 a.m. on the date specified in such Completion Contribution
Notice, for ultimate transfer to the applicable Major Project Participant or
other Person in accordance with the terms of the Credit Documents.
2.1.8. Committed Equity Funds. In order to satisfy the
requirements set forth in Section 3.3.2(iii) of the Credit Agreement that
Borrower have sufficient development funds to complete all Approved Projects
then under development, Sponsor may, at its option, unconditionally and
irrevocably agree to commit to make cash equity contributions to a Project Owner
to fund Project Costs for the relevant Approved Project in an amount equal to
the difference between (a) the aggregate amount of all unfunded Project Costs
(as set forth in each such Approved Project's then current Project Budget) for
all Approved Projects which have not achieved Provisional Acceptance as of the
date of determination and (b) the then current Available Development Funds (in
each case, without giving effect to the funding of the relevant Subject Project
or Subject Acquisition, as the case may be). In the event that Sponsor elects to
commit to make any such Contribution, Sponsor shall on the date of any such
election, execute and deliver a properly completed Committed Equity Funds
Acknowledgment in substantially the form of Exhibit D hereto. Sponsor agrees to
make each such Contribution from and after the date Borrower fully utilizes the
Available Development Commitment, and each such Contribution shall be in an
aggregate amount equal to all payments then due and payable under each relevant
Project Document. Each such Contribution shall be paid in immediately available
funds through the deposit of such funds directly into the applicable Development
Sub-Account specified in the relevant Committed Equity Funds Acknowledgment no
later than 11:00 a.m. on the 15th Banking Day of the month in which such
Contribution is due, for ultimate transfer to the applicable Major Project
Participant or other Person in accordance with the terms of the Credit
Documents.
2.1.9. Recourse Interest Funding Commitment. In the event that
Borrower does not have sufficient funds to pay all interest on the Recourse
Loans as and when such interest is due and payable under the Credit Agreement,
Sponsor hereby agrees, for the benefit of Borrower and Administrative Agent (on
behalf of the Secured Parties), to contribute, or cause to be contributed, to
Borrower a cash equity contribution to fund such interest payments in an amount
equal to the difference between (a) the aggregate amount of all interest on the
Recourse Loans then due and payable and (b) the aggregate amount of funds on
deposit in the Revenue Account which have been applied to the payment of
interest on the Recourse Loans then due and payable (after giving effect to the
withdrawals and transfers specified in clause third of Section 2.2.3(b) of the
Depositary Agreement). Each such Contribution shall be paid in immediately
available
10
funds through the deposit of such funds directly into the Revenue Account no
later than 11:00 a.m. on the date such interest payment is due, for ultimate
transfer to Banks in accordance with the terms of the Depositary Agreement.
2.1.10. Sponsor Equity Contributions Cap. Notwithstanding
anything to the contrary contained herein, the aggregate amount of Sponsor
Equity Commitments hereunder at any time shall not exceed $1,000,000,000 (the
"Sponsor Equity Contributions Cap"); provided that such Sponsor Equity
Contributions Cap shall not apply to any Sponsor Equity Contributions which are
due and payable hereunder (a) on the date of any acceleration of the Loans (or
any portion thereof), (b) as a result of the acceleration of the Loans (or any
portion thereof), or (c) pursuant to Section 2.1.5, 2.1.6, 2.1.7 or 2.1.9.
2.2 Payments.
2.2.1. Taxes. Except as otherwise required by Legal
Requirements, each payment required to be made by Sponsor hereunder shall be
made without deduction or withholding for or on account of Taxes or Other Taxes.
If such deduction or withholding is so required, Sponsor shall, upon notice
thereof from Borrower or Administrative Agent, (a) pay the amount required to be
deducted or withheld to the appropriate authorities before penalties attach
thereto or interest accrues thereon, (b) on or before the 60th day after payment
of such amount, forward to Borrower and Administrative Agent an official receipt
evidencing such payment (or a certified copy thereof), and (c) in the case of
any such deduction or withholding, forthwith pay to Borrower such additional
amount as may be necessary to ensure that the net amount actually received by
Borrower is free and clear of such Taxes or Other Taxes, as the case may be,
including any Taxes or Other Taxes on such additional amount, is equal to the
amount that Borrower would have received had there been no such deduction or
withholding.
2.2.2. Late Payment. In the event that any Sponsor Equity
Contribution is not made on the related Equity Contribution Date, the amount of
such delinquent Sponsor Equity Contribution shall bear interest at the Default
Rate (computed on the basis of a 365 or 366 day year, as the case may be, and
the actual days elapsed) until such time as such Sponsor Equity Contribution is
made.
2.3 Equity Contribution Support. If at any time during the term of this
Agreement Sponsor's senior unsecured non-credit enhanced long-term debt is rated
below "BBB-" by S&P or "Baa3" by Xxxxx'x or ceases to be rated by either S&P or
Xxxxx'x (a "Downgrade Event"), then, within 15 Banking Days from the occurrence
of any such Downgrade Event, Sponsor shall deliver to Administrative Agent the
Equity Contribution Support Instrument in a stated amount which shall at all
times provide for an amount available to be drawn thereunder that is greater
than or equal to the aggregate amount of Sponsor Equity Contributions remaining
to be paid hereunder (as reasonably determined by Administrative Agent, after
consultation with Borrower). If an Equity Contribution Support Instrument is
delivered pursuant to the preceding sentence, Sponsor shall cause such Equity
Contribution Support Instrument to remain in full force and effect until the
cessation of such Downgrade Event. If for any reason the full amount of any
Sponsor Equity Contribution is not made by Sponsor on the relevant Equity
Contribution Date, Administrative Agent is hereby irrevocably authorized and
directed to immediately make a claim
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under the Equity Contribution Support Instrument for an amount equal to the
amount of the Sponsor Equity Contribution that was to have been made on such
date. Payments made under the Equity Contribution Support Instrument pursuant to
this Section 2.3 shall be deemed to have been Sponsor Equity Contributions,
provided, however, that any payment made pursuant to this Section 2.3 which is
rescinded or otherwise restored to the issuer of the Equity Contribution Support
Instrument shall not be considered a Sponsor Equity Contribution hereunder and,
promptly upon any such recision or restoration, Sponsor shall cause the Equity
Contribution Support Instrument to be restored to the extent of the amount of
such recision or restoration.
2.4 Waiver of Defenses; Obligations Unconditional.
2.4.1. Waiver of Defenses. Sponsor hereby waives and
relinquishes all rights and remedies accorded by applicable Legal Requirements
to sureties or guarantors and agrees not to assert or take advantage of any such
rights or remedies, including (a) any right to require Administrative Agent or
the other Secured Parties to proceed against any Portfolio Entity or any other
Person or to proceed against or exhaust any security held by Administrative
Agent or the other Secured Parties at any time or to pursue any other remedy in
Administrative Agent's or any other Secured Party's power before proceeding
against Sponsor, (b) any defense that may arise by reason of the incapacity,
lack of power or authority, death, dissolution, merger, termination or
disability of any Portfolio Entity or any other Person or the failure of
Administrative Agent or any other Secured Party to file or enforce a claim
against the estate (in administration, bankruptcy or any other proceeding) of
any Portfolio Entity or any other Person, (c) demand, presentment, protest and
notice of any kind, including notice of the existence, creation or incurring of
any new or additional indebtedness or obligation or of any action or non-action
on the part of any Portfolio Entity, Administrative Agent, the other Secured
Parties, any endorser or creditor of the foregoing or on the part of any other
Person under this or any other instrument in connection with any obligation or
evidence of indebtedness held by Administrative Agent or the other Secured
Parties as collateral or in connection with any Obligations, (d) any defense
based upon an election of remedies by Administrative Agent or the other Secured
Parties, including an election to proceed by non-judicial rather than judicial
foreclosure, which destroys or otherwise impairs the subrogation rights of
Sponsor, the right of Sponsor to proceed against a Portfolio Entity or another
Person for reimbursement, or both, (e) any defense based on any offset against
any amounts which may be owed by any Person to Sponsor for any reason
whatsoever, (f) any defense based on any act, failure to act, delay or omission
whatsoever on the part of a Portfolio Entity of the failure by a Portfolio
Entity to do any act or thing or to observe or perform any covenant, condition
or agreement to be observed or performed by it under the Credit Documents, (g)
any defense based upon any statute or rule of law which provides that the
obligation of a surety must be neither larger in amount nor in other respects
more burdensome than that of the principal, (h) any defense, setoff or
counterclaim which may at any time be available to or asserted by a Portfolio
Entity against Administrative Agent, the other Secured Parties or any other
Person under the Credit Documents, (i) any duty on the part of Administrative
Agent or any other Secured Party to disclose to Sponsor any facts Administrative
Agent or any other Secured Party may now or hereafter know about any Portfolio
Entity, regardless of whether Administrative Agent or any other Secured Party
has reason to believe that any such facts materially increase the risk beyond
that which Sponsor intends to assume, or have reason to
12
believe that such facts are unknown to Sponsor, or have a reasonable opportunity
to communicate such facts to Sponsor, since Sponsor acknowledges that Sponsor is
fully responsible for being and keeping informed of the financial condition of
the Portfolio Entities and of all circumstances bearing on the risk of
non-payment of any obligations and liabilities hereby guaranteed, (j) the fact
that any Portfolio Entity may at any time in the future dispose of all or part
of its direct or indirect interest in any other Portfolio Entity, (k) any
defense based on any change in the time, manner or place of any payment under,
or in any other term of, the Credit Documents or any other amendment, renewal,
extension, acceleration, compromise or waiver of or any consent or departure
from the terms of the Credit Documents, (l) any defense arising because of
Administrative Agent's or any other Secured Party's election, in any proceeding
instituted under the Federal Bankruptcy Code, of the application of Section
1111(b)(2) of the Federal Bankruptcy Code, and (m) any defense based upon any
borrowing or grant of a security interest under Section 364 of the Federal
Bankruptcy Code.
2.4.2. Obligations Unconditional. All rights of Administrative
Agent, the Secured Parties and all obligations of Sponsor hereunder shall be
absolute and unconditional irrespective of:
(a) any lack of validity, legality or enforceability of
the Credit Agreement, any Note, this Agreement, or any other Credit Document;
(b) the failure of any Secured Party or any holder of
any Note:
(i) to assert any claim or demand or to enforce any
right or remedy against Borrower, Sponsor, any other
Portfolio Entity or any other Person (including any
guarantor) under the provisions of the Credit
Agreement, any Note, any other Credit Document or
otherwise, or
(ii) to exercise any right or remedy against any
other guarantor of, or collateral securing, any of the
Obligations;
(c) any change in the time, manner or place of payment
of, or in any other term of, all of the Obligations, or any other extension or
renewal of any Obligation of Borrower, Sponsor or any other Portfolio Entity;
(d) any reduction, limitation, impairment or
termination of any of the Obligations for any reason other than the written
agreement of the Secured Parties to terminate the Obligations in full, including
any claim of waiver, release, surrender, alteration or compromise, and shall not
be subject to, and Sponsor hereby waives any right to or claim of, any defense
or setoff, counterclaim, recoupment, or termination whatsoever by reason of the
invalidity, illegality, nongenuineness, irregularity, compromise,
unenforceability of, or any other event or occurrence affecting, any Obligation
of Borrower, any other Portfolio Entity or otherwise;
13
(e) any amendment to, rescission, waiver, or other
modification of, or any consent to departure from, any of the terms of the
Credit Agreement, any Note, this Agreement, or any other Credit Document;
(f) any addition, exchange, release, surrender or
non-perfection of any collateral, or any amendment to or waiver or release or
addition of, or consent to departure from, any other security interest held by
any Secured Party or any holder of any Note securing any of the Obligations; or
(g) any other circumstance which might otherwise
constitute a defense available to, or a legal or equitable discharge of, the
Borrower, any other Portfolio Entity, Sponsor, any surety or any guarantor.
2.5 Subrogation. So long as this Agreement remains in effect, (a)
Sponsor shall not have any right of subrogation and waives all rights to enforce
any remedy which the Secured Parties now have or may hereafter have against
Borrower or any other Portfolio Entity, and waives the benefit of, and all
rights to participate in, any security now or hereafter held by Administrative
Agent or any other Secured Party from Borrower or any other Portfolio Entity and
(b) Sponsor waives any claim, right or remedy which Sponsor may now have or
hereafter acquire against Borrower or any other Portfolio Entity that arises
hereunder and/or from the performance by Sponsor hereunder, including any claim,
remedy or right of subrogation, reimbursement, exoneration, contribution,
indemnification, or participation in any claim, right or remedy of the Secured
Parties against Borrower or any other Portfolio Entity, or any security which
the Secured Parties now have or hereafter acquire, whether or not such claim,
right or remedy arises in equity, under contract, by statute, under common law
or otherwise. Any amount paid to Sponsor on account of any such subrogation
rights prior to the indefeasible payment in full in cash of the Obligations, the
termination of all Interest Rate Agreements as to which any Secured Party is the
counterparty and the termination of all Commitments and other obligations of the
Secured Parties under the Credit Documents shall be held in trust for the
benefit of Administrative Agent and shall immediately thereafter be paid to
Administrative Agent for the benefit of the Secured Parties.
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ARTICLE 3.
SPECIFIC PROVISIONS
3.1 Reinstatement. This Agreement and the obligations of Sponsor
hereunder shall automatically be reinstated if and to the extent that for any
reason any payment made pursuant to this Agreement is rescinded or otherwise
restored to Sponsor, whether as a result of any proceedings in bankruptcy or
reorganization or otherwise with respect to Borrower or any other Person or as a
result of any settlement or compromise with any Person (including Sponsor) in
respect of such payment, and Sponsor shall pay Administrative Agent on demand
all of its reasonable costs and expenses (including reasonable fees of counsel)
incurred by Administrative Agent in connection with such rescission or
restoration.
3.2 Specific Performance. Sponsor hereby irrevocably waives, to the
extent it may do so under applicable Legal Requirements, any defense based on
the adequacy of a remedy at law that may be asserted as a bar to the remedy of
specific performance in any action brought against Sponsor for specific
performance of this Agreement by Borrower or any successor or assign thereof
(including Administrative Agent) or for their benefit by a receiver, custodian
or trustee appointed for Borrower or in respect of all or a substantial part of
its assets, under the bankruptcy or insolvency laws of any jurisdiction to which
Borrower or its assets are subject.
3.3 Bankruptcy Code Waiver. Sponsor hereby irrevocably waives, to the
extent it may do so under applicable Legal Requirements, any protection to which
it may be entitled under Sections 365(c)(1), 365(c)(2) and 365(e)(2) of the
Bankruptcy Law or equivalent provisions of the laws or regulations of any other
jurisdiction with respect to any proceedings, or any successor provision of law
of similar import, in the event of any Bankruptcy Event. Specifically, in the
event that the trustee (or similar official) in a Bankruptcy Event or the
debtor-in-possession takes any action (including the institution of any action,
suit or other proceeding for the purpose of enforcing the rights of Borrower
under this Agreement), Sponsor shall not assert any defense, claim or
counterclaim denying liability hereunder on the basis that this Agreement is an
executory contract or a "financial accommodation" that cannot be assumed,
assigned or enforced or on any other theory directly or indirectly based on
Section 365(c)(1), 365(c)(2) or 365(e)(2) of the Bankruptcy Law, or equivalent
provisions of the laws or regulations of any other jurisdiction with respect to
any proceedings or any successor provision of law of similar import. If a
Bankruptcy Event shall occur, Sponsor agrees, after the occurrence of the
Bankruptcy Event, to reconfirm in writing, to the extent permitted by applicable
Legal Requirements, its pre-petition waiver of any protection to which it may be
entitled under Sections 365(c)(1), 365(c)(2) and 365(e)(2) of the Bankruptcy Law
or equivalent provisions of the laws or regulations of any other jurisdiction
with respect to proceedings and, to give effect to such waiver, Sponsor consents
to the assumption and enforcement of each provision of this Agreement by the
debtor-in-possession or Borrower's trustee in bankruptcy, as the case may be.
3.4 No Commencement of Bankruptcy Proceedings. So long as the Credit
Documents remain in effect, Sponsor shall not, without the prior written consent
of Required Banks, commence, or join with any other Person in commencing, any
bankruptcy, reorganization, or insolvency proceeding against any Affiliate
Pledgor, the Member, Borrower or any other Portfolio Entity. The obligations of
Sponsor under this Agreement shall not be altered, limited or
15
affected by any proceeding, voluntary or involuntary, involving the bankruptcy,
reorganization, insolvency, receivership, liquidation or arrangement of any
Affiliate Pledgor, the Member, Borrower or any other Portfolio Entity, or by any
defense which any Affiliate Pledgor, the Member, Borrower or any other Portfolio
Entity may have by reason of any order, decree or decision of any court or
administrative body resulting from any such proceeding.
3.5 Grant of Security Interest; Actions by Administrative Agent.
Sponsor hereby consents to the assignment by Borrower of all of its right, title
and interest in, to and under this Agreement to Administrative Agent, for the
benefit of the Secured Parties, pursuant to Borrower Security Agreement, dated
as of the date hereof, by Borrower in favor of Administrative Agent. Sponsor
agrees that Administrative Agent and any assignee thereof shall be entitled to
enforce this Agreement in its own name and to exercise any and all rights of
Borrower under this Agreement in accordance with the terms hereof (either in its
own name or in the name of Borrower, as Administrative Agent may elect), and
Sponsor and Borrower agree to comply and cooperate in all respects with such
exercise. Without limiting the generality of the foregoing, Administrative Agent
and any assignee thereof shall have the full right and power to enforce directly
against Sponsor all obligations of Sponsor under this Agreement, and otherwise
to exercise all remedies available to Borrower hereunder and to make all demands
and give all notices (including any Sponsor Turbine Contribution Notice or any
Completion Contribution Notice) and make all requests (either in its own name or
in the name of Borrower, as Administrative Agent may elect) required or
permitted to be made or given by Borrower under this Agreement, including the
right to make demand for payment of Sponsor Equity Contributions pursuant to
Article 2 and to make a claim under the Equity Contribution Support Instrument,
and Sponsor acknowledges and agrees that any such action taken by Administrative
Agent shall be deemed effective for all purposes of this Agreement to the same
extent as if such action had been taken directly by Borrower. If Sponsor shall
receive inconsistent directions from Borrower and Administrative Agent, the
directions of Administrative Agent shall be deemed the effective directions, and
Sponsor shall accordingly comply with such directions of Administrative Agent.
3.6 Set-Off. In addition to any rights now or hereafter granted under
applicable Legal Requirements or otherwise, and not by way of limitation of any
such rights, upon (a) the failure of Sponsor to make any Sponsor Equity
Contribution as required hereunder, and (b) the failure of the issuer of the
Equity Contribution Support Instrument to make such payment in accordance with
its terms, Administrative Agent is hereby authorized at any time or from time to
time, without presentment, demand, protest or other notice of any kind to
Sponsor or to any other Person, any such notice being hereby expressly waived,
to set-off and to appropriate and apply any and all deposits (general or
special) and any other indebtedness at any time held or owing by any Secured
Party (including by branches and agencies of each of the Secured Parties
wherever located) to or for the credit or the account of Sponsor, against and on
account of the obligations of Sponsor under this Agreement, irrespective of
whether or not Administrative Agent shall have made any demand hereunder and
although said obligations, or any of them, shall be contingent or unmatured.
16
ARTICLE 4.
PURCHASE OF PARTICIPATING INTEREST
4.1 Required Purchase of Participating Interest. If by reason of a
Bankruptcy Event or any act of a Governmental Authority, (a) any Sponsor Equity
Contribution due hereunder has not been deposited in the applicable account
within five Banking Days after the date on which such amount is payable
hereunder or has not been deposited in the applicable account within five
Banking Days after demand shall have been made on the Equity Contribution
Support Instrument hereunder, whichever is later, or (b) any Sponsor Equity
Contribution theretofore deposited pursuant to Article 2 is rescinded or
otherwise restored to Sponsor or the issuer of the Equity Support Instrument and
five days have elapsed after the date that such Sponsor Equity Contribution was
rescinded or otherwise restored (such Sponsor Equity Contribution, whether
required but not made as provided in clause (a) or made and returned to Sponsor
as provided in clause (b), being herein called the "Defaulted Payment"), Sponsor
shall, within five days after demand upon Sponsor by Administrative Agent,
purchase an undivided participating interest in each of the Loans which shall
then be outstanding, as provided in the following sentence, in an aggregate
principal amount equal to the amount of the Defaulted Payment. Sponsor's
purchase of an undivided participating interest in such Loans shall be made pro
rata among such Loans based on the respective outstanding principal amounts
thereof. Sponsor shall effect its purchase of undivided participating interests
in such Loans pursuant to this Section 4.1 by paying to Administrative Agent,
for the account of the holders of such Loans, in immediately available funds in
Dollars, the amount of the Defaulted Payment.
4.2 Effect of Purchase of Participating Interest. Sponsor's purchase of
an undivided participating interest in the Loans in the full amount (if any)
required pursuant to Section 4.1 following a Defaulted Payment in respect of
Sponsor Equity Contributions, shall satisfy Sponsor's obligation pursuant to
Section 2.1 to make Sponsor Equity Contributions to the extent of the amount of
such Loans so purchased by Sponsor.
4.3 Subordinate Nature of Participating Interest. Sponsor hereby agrees
that its participating interest in the Loans purchased by it pursuant to Section
4.1 shall be subordinate in all respects to the interest in such Loans retained
by the holders (other than Sponsor) thereof (the "Retained Interest"), so that
all payments received or collected on account of such Loans and applied to the
payment thereof, whether received or collected through repayment of such Loans
by Borrower or through right of set-off with respect thereto or realization upon
any collateral security therefor or otherwise, shall first be applied to the
payment of the principal, interest, fees and other amounts then due (whether at
its stated maturity, by acceleration or otherwise) on the Retained Interest
until such principal, interest, fees and other amounts are paid in full, before
any such payments are applied on account of Sponsor's participating interest in
such Loans.
4.4 Rights of Administrative Agent and Secured Parties. Notwithstanding
the purchase and ownership by Sponsor of participating interests in the Loans,
and notwithstanding the rights of participants under the Credit Agreement,
Administrative Agent and, to the extent permitted, each Secured Party shall have
the right, in its sole discretion in each instance and without any notice to
Sponsor, (a) to agree to the modification or waiver of any of the terms of any
of the Credit Documents or any other agreement or instrument relating thereto
(but not to
17
reduce any amount payable in respect of the portion of the Loans subject to
participations purchased pursuant to Section 4.1), (b) to consent to any action
or failure to act by Borrower, the Member, Sponsor or any Portfolio Entity or
any other Person party to a Credit Document, and (c) to exercise or refrain from
exercising any rights or remedies which Administrative Agent or any Secured
Party may have under the Credit Documents or any other agreement or instrument
relating thereto, including the right at any time to declare, or refrain from
declaring, the Obligations due and payable upon the occurrence of any Event of
Default, and to rescind and annul any such declaration, and to foreclose and
sell or exercise any other remedy, or refrain from foreclosing and selling or
exercising any other remedy, with respect to any collateral securing the
Obligations. Neither Administrative Agent nor any Secured Party shall be liable
to Sponsor for any error in judgment or for any action taken or omitted to be
taken by it while Sponsor holds a participating interest in the Loans, except
for its gross negligence or willful misconduct. Neither Administrative Agent nor
any Secured Party shall have any duty or responsibility to provide Sponsor with
any credit or other information concerning the affairs, financial condition or
business of Borrower or any other party to a Credit Document which may come into
their possession or the possession of any of their respective affiliates, or to
notify Sponsor of any Project Default, Project Inchoate Default, Inchoate
Default or Event of Default or any default by Borrower or any other Person under
any of the Credit Documents.
4.5 No Voting Rights. Without limiting the generality of the provisions
of Section 4.4, in determining whether the required consent of Banks (or any
portion thereof) has been obtained for all purposes under the Credit Documents,
the participating interests in the Loans purchased by Sponsor pursuant to
Section 4.1 shall not be deemed to be outstanding.
4.6 Obligations Unconditional. The obligation of Sponsor under this
Section 4 to purchase participating interests in the Loans is absolute and
unconditional and shall not be affected by the occurrence of any Project
Default, Project Inchoate Default, Inchoate Default or Event of Default or any
other circumstance, including any circumstance of the nature described in
Section 2.4.
ARTICLE 5.
REPRESENTATIONS AND WARRANTIES
Sponsor hereby represents and warrants to and in favor of
Borrower, Administrative Agent and the other Secured Parties that, as of the
Closing Date and as of each Equity Contribution Date:
5.1 Corporate Existence and Business. Sponsor is a corporation duly
organized and validly existing in good standing under the laws of the State of
Delaware. Sponsor is duly qualified, authorized to do business and in good
standing in each other jurisdiction where the character of its properties or the
nature of its activities makes such qualification necessary, except where such
failure to be qualified, authorized or in good standing could not be reasonably
expected to have a Borrower Material Adverse Effect or Sponsor Material Adverse
Effect.
18
5.2 Compliance with Law. Sponsor is in compliance with applicable Legal
Requirements, except to the extent any non-compliance could not be reasonably
expected to have a Borrower Material Adverse Effect or Sponsor Material Adverse
Effect.
5.3 Power and Authorization; Enforceable Obligations. Sponsor has all
requisite corporate power and authority to execute, deliver and perform this
Agreement and each other Credit Document to which it is a party and to take each
action as may be necessary to consummate the transactions contemplated
hereunder. Sponsor has duly authorized the execution, delivery and performance
of this Agreement and each other Credit Document to which it is a party. This
Agreement and each other Credit Document to which Sponsor is a party has been
duly executed and delivered by Sponsor and constitutes, and each other Credit
Document to which Sponsor is to become a party will, upon execution and delivery
thereof by Sponsor and the other parties thereto (if any), constitute, a legal,
valid and binding obligation of Sponsor enforceable against Sponsor in
accordance with its terms, except to the extent that any enforceability may be
limited by applicable bankruptcy, insolvency, moratorium, reorganization, or
other similar laws affecting the enforcement of creditors' rights or by the
effect of general equitable principles (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
5.4 No Consent. No consent or authorization of, filing with, or other
act by or in respect of any other Person or any Governmental Authority or agency
is required in connection with the execution, delivery or performance by
Sponsor, or the validity or enforceability as to Sponsor, of this Agreement and
each other Credit Document to which it is a party, except such consents or
authorizations as have already been obtained or such consents or authorizations
that the failure to obtain could not reasonably be expected to have a Borrower
Material Adverse Effect or a Sponsor Material Adverse Effect.
5.5 No Legal Bar. The execution, delivery and performance by Sponsor of
this Agreement and each other Credit Document to which it is a party and the
making by Sponsor of Sponsor Equity Contributions hereunder (a) will not violate
or result in a default under any constituent document or any Legal Requirement
applicable to or binding on Sponsor or any of its properties, (b) will not
violate or result in a default under any material agreement or contract to which
Sponsor is a party or bound by, except where such violation or default could not
reasonably be expected to have a Borrower Material Adverse Effect or a Sponsor
Material Adverse Effect or (c) will not result in or require the creation of any
Lien (other than Permitted Liens) upon any of Sponsor's properties under any
agreement or contract applicable to or binding on Sponsor or any of its
properties.
5.6 No Proceeding or Litigation. Except as set forth on Exhibit G-5 to
the Credit Agreement, there are no pending, or the best knowledge of Sponsor,
threatened actions or proceedings of any kind, including actions or proceeds of
or before any Governmental Authority with respect to the transactions
contemplated by this Agreement and the other Credit Documents, which, if
adversely determined, could reasonably be expected to have a Borrower Material
Adverse Effect or a Sponsor Material Adverse Effect.
19
5.7 Financial Statements. In the case of each financial statement and
accompanying information delivered by Sponsor (or by Borrower on its behalf)
pursuant to the terms of the Credit Agreement and this Agreement, each such
financial statement and information shall have been prepared in conformity with
GAAP and fairly present, in all material respects, the financial position (on a
consolidated and, where applicable, consolidating basis) of the Persons
described in such financial statements as at the respective dates thereof and
the results of operations and cash flows (on a consolidated and, where
applicable, consolidating basis) of the Persons described therein for each of
the periods then ended, subject, in the case of any such unaudited financial
statements, to changes resulting from audit and normal year-end adjustments.
5.8 Taxes. Sponsor has filed all United States federal tax returns, and
all other tax returns, required to be filed and have paid all taxes due pursuant
to such returns or pursuant to any assessment received by Sponsor, except such
taxes, if any, as are being contested in good faith and for which adequate
reserves have been provided. No notices of tax liens have been filed and no
claims are being asserted concerning any such taxes, which liens or claims are
material to the financial condition of Sponsor. The charges, accruals and
reserves on the books of Sponsor for any taxes or other governmental charges are
adequate.
5.9 Full Disclosure. All information heretofore furnished by Sponsor to
Administrative Agent, the Lead Arranger or any Bank for purposes of or in
connection with the Credit Documents or any transaction contemplated thereby is,
and all such information hereafter furnished by Sponsor to Administrative Agent,
the Lead Arranger or any Bank will be, true and accurate in all material
respects and not misleading on the date as of which such information is stated
or certified.
5.10 Credit Documents. Sponsor has reviewed and is familiar with the
terms of the Credit Documents, and, to the best knowledge of Sponsor, Borrower
has provided Sponsor with a copy of each Credit Document in existence as of such
date.
5.11 Regulatory Matters. Sponsor is not an investment company or a
company controlled by an investment company, within the meaning of the
Investment Company Act of 1940, as amended, and Sponsor is not, nor has Sponsor
been determined by the Securities and Exchange Commission or any other
Governmental Authority to be, subject to, or not exempt from, regulation under
PUHCA or the FPA.
5.12 Solvency Matters
5.12.1. Financial Information. Sponsor has established
adequate means of obtaining financial and other information pertaining to the
businesses, operations and condition (financial and otherwise) of Borrower and
the other Portfolio Entities and their respective properties on a continuing
basis (including any amendments to any relevant Operative Document), and Sponsor
now is and hereafter will be completely familiar with the businesses, operations
and condition (financial and otherwise) of Borrower and the other Portfolio
Entities and their respective properties.
5.12.2. Insolvency.
20
(a) After giving effect to the transactions
contemplated by this Agreement and the contingent obligations evidenced hereby,
Sponsor is not, on either an unconsolidated basis or a consolidated basis,
insolvent as such term is used or defined in any applicable Bankruptcy Law, and
Sponsor has and will have assets which, fairly valued, exceeds its indebtedness,
liabilities or obligations.
(b) Sponsor is not executing this Agreement with any
intention to hinder, delay or defraud any present or future creditor or
creditors of Sponsor.
(c) Sponsor is not engaged in any business or
transaction which, after giving effect to the transactions contemplated by this
Agreement, will leave Sponsor with unreasonably small capital or assets which
are unreasonably small in relation to the business or transactions engaged by
Sponsor, and Sponsor does not intend to engage in any such business or
transaction.
(d) Sponsor does not intend to incur, nor does Sponsor
believe that it will incur, debts beyond Sponsor's ability to repay such debts
as they mature.
ARTICLE 6.
COVENANTS
Sponsor hereby covenants and agrees for the benefit of
Borrower, Administrative Agent and the other Secured Parties that:
6.1 Maintenance of Corporate Existence. Subject to the proviso
contained in Section 6.2, Sponsor will at all times do, or cause to be done, all
things necessary to preserve and maintain its corporate existence, franchises,
rights and privileges in each jurisdiction in which the conduct of its business
so requires, except where loss of any such franchises, rights or privileges
could not reasonably be expected to have a Borrower Material Adverse Effect or a
Sponsor Material Adverse Effect.
21
6.2 Restrictions on Consolidations and Mergers. Sponsor shall not
consolidate or merge with or into another Person or sell, convey, transfer or
lease its properties and assets substantially as an entirety to any Person, and
Sponsor shall not permit any Person to consolidate with or merge into Sponsor,
unless: (a) immediately prior to and immediately following such consolidation,
merger, sale, conveyance, transfer or lease, and after giving effect thereto, no
Inchoate Default or Event or Default shall have occurred and be continuing; and
(b) (i) Sponsor is the surviving or continuing corporation, or (ii) the
surviving or continuing corporation that acquires Sponsor by sale, conveyance,
transfer or lease (A) has a Rating equal to or better than the Rating of Sponsor
in effect prior to and after giving effect to such consolidation or merger, (B)
has a Rating of at least "BBB-" by S&P and "Baa3" by Xxxxx'x, (C) is
incorporated in the United States and (D) specifically assumes in writing (such
written assumption to be in form and substance reasonably satisfactory to
Administrative Agent) all obligations of Sponsor hereunder and under each other
Credit Document to which Sponsor is a party.
6.3 Notice of Sponsor Material Adverse Effect. Promptly, and in any
event within 15 Banking Days after any Responsible Officer of Sponsor obtains
knowledge thereof, Sponsor shall give to Administrative Agent notice of the
occurrence of any event, any litigation or governmental proceeding affecting or
pending against Sponsor or any of its Affiliates which has had, or could
reasonably be expected to have, a Sponsor Material Adverse Effect.
6.4 Compliance with Laws. Sponsor shall comply, or cause compliance, in
all material respects, with all Legal Requirements relating to Sponsor, except
where such non-compliance could not reasonably be expected to have a Borrower
Material Adverse Effect or a Sponsor Material Adverse Effect.
6.5 Taxes. Sponsor shall duly pay and discharge all taxes, rates,
assessments, fees and governmental charges upon or against it or against its
properties, in each case before the same becomes delinquent and before penalties
accrue thereon, unless and to the extent that the same is being contested in
good faith by appropriate proceedings and reserves in conformity with GAAP have
been provided therefor on the books of Sponsor.
6.6 Insurance. Sponsor shall insure, and keep insured with good and
responsible insurance companies, all insurable property owned by it of a
character usually insured by companies similarly situated and operating like
property. To the extent usually insured (subject to self-insured retentions) by
companies similarly situated and conducting similar businesses, Sponsor will
also insure employers' and public and product liability risks with good and
responsible insurance companies. Sponsor shall upon request of Administrative
Agent furnish to Administrative Agent a summary setting forth the nature and
extent of the insurance maintained pursuant to this Section.
6.7 Ranking. Sponsor shall cause its obligations hereunder to at all
times rank at least pari passu with all other senior unsecured obligations of
Sponsor.
6.8 Further Assurances. Sponsor shall promptly provide Administrative
Agent with such information and other documents that it may reasonably request.
22
6.9 Consolidated Net Worth. Sponsor shall at all times cause its
Consolidated Net Worth to be equal to or greater than the Minimum Consolidated
Net Worth.
6.10 Indebtedness to Consolidated Capitalization. Sponsor shall at the
end of each of its fiscal quarters maintain a ratio of its Indebtedness to
Consolidated Capitalization of not more than 0.68 to 1.00, provided that for not
more than two consecutive months in any six month period (any such two month
period being referred to herein as a "Non-Conforming Period"), the ratio of
Sponsor's Indebtedness to Consolidated Capitalization may increase to not more
than 0.72 to 1.00 so long as Sponsor delivers to Administrative Agent within 30
days after the end of any such Non-Conforming Period written affirmation from
Xxxxx'x and S&P that the respective Ratings which were in effect prior to such
Non-Conforming Period remains in effect and that Sponsor has not been placed in
any "credit-watch with negative implications" or similar type of category. For
purposes of this covenant, only 50% of any Indebtedness of Sponsor constituting
Performance Guarantees of obligations of the Sponsor's Affiliates shall be
deemed Indebtedness, provided that if any demand has been made on such
guarantee, the full amount of such guarantee shall be included in calculating
Indebtedness.
6.11 Financial and Other Information.
6.11.1. Sponsor shall cause Borrower to deliver to
Administrative Agent, in form and detail reasonably satisfactory to
Administrative Agent, each of the financial statements and related information
and documentation provided for and described in Sections 5.4(a) and (b) of the
Credit Agreement.
6.11.2. Concurrently with the delivery of each of the
financial statements referred to in Section 6.11.1, Sponsor shall deliver to
Administrative Agent an officer's certificate, in form reasonably satisfactory
to Administrative Agent, executed by the chief financial officer, treasurer,
assistant chief financial officer or assistant treasurer of Sponsor (a) stating
that such officer, on behalf of Sponsor, has reviewed the terms of this
Agreement and has made, or caused to be made under its supervision, a review in
reasonable detail of the transactions and condition of Sponsor during the
accounting period covered by such financial statements and that such review has
not disclosed the existence during or at the end of such accounting period, and
that such officer does not have knowledge of the existence as at the date of
such officer's certificate, of any condition or event that constitutes a default
hereunder, or, if any such condition or event existed or exists, specifying the
nature and period of existence thereof and what action Sponsor has taken, is
taking and proposes to take with respect thereto and (b) demonstrating in
reasonable detail compliance during and at the end of the applicable accounting
periods with the covenants contained in Sections 6.9, 6.10 and 6.12.
6.11.3. Promptly, and in any event within five Banking Days
after the execution and delivery thereof, Sponsor shall deliver to
Administrative Agent a copy of the NRG Corporate Credit Documents, each
amendment, supplement or other modification thereto and each other document
referred to in Section 6.12.
6.11.4. Without limiting anything set forth in Section 5.3.1
of the Credit Agreement, Sponsor shall deliver to Administrative Agent within 15
days after the end of each
23
quarter a report setting forth in reasonable detail the status of each of the
actions or proceedings set forth in Exhibit G-5 to the Credit Agreement as of
the Closing Date. Furthermore, Sponsor shall provide to Administrative Agent
such other information in respect of such actions or proceedings as
Administrative Agent may reasonably request from time to time.
6.12 Additional Financial Covenants. Sponsor shall perform, comply with
and be bound by all of the agreements, covenants and obligations contained in
the NRG Corporate Credit Documents which (a) measure the actual or prospective
financial condition of Sponsor (i.e., so-called financial or maintenance
covenants) and (b) are expressly applicable to Sponsor or its properties, each
such agreement, covenant and obligation contained in the NRG Corporate Credit
Documents and all other terms of the agreements and other documents to which
reference is made therein, together with all related definitions and ancillary
provisions, all of which being hereby incorporated into this Agreement by
reference as though specifically set forth herein.
6.13 Prohibition on Incurrence of Indebtedness and Liens. Sponsor shall
cause each of the Portfolio Entities to perform, comply with and be bound by all
of the agreements, covenants and obligations contained in any Credit Document to
which any such Portfolio Entity is a party which limit, constrain, govern or
directly relate to any such Portfolio Entity's ability to (a) create, assume or
suffer to exist any Lien (except Permitted Liens) or (b) create, assume or
permit to exist any Debt (except Permitted Debt), including Sections 6.2 and 6.3
of the Credit Agreement and Sections 5.2 and 5.3 of the applicable Project Owner
Guaranty.
6.14 Negative Pledge. Sponsor shall not permit the creation, assumption
or incurrence of any Lien (other than a Permitted Lien of the nature described
in clause (b) or (d) of the definition thereof) upon any of the ownership
interests in any Person which directly owns any portion of the Batesville
Expansion Project, the Xxxxxx Project, the Xxxxxx Project or the Pike Project
(other than any Lien which is created, assumed or incurred pursuant to the
Collateral Documents); provided, that if Sponsor creates, assumes or incurs (or
permits the creation, assumption or incurrence of) any Lien in respect of the
Batesville Expansion Project, the Xxxxxx Project, the Xxxxxx Project or the Pike
Project which is not permitted pursuant to the terms of the preceding sentence,
and such unpermitted Lien is not discharged or removed within 10 Banking Days of
the date of any such creation, assumption or incurrence, then (a) such affected
Identified Project shall not become an Approved Project under the terms of the
Credit Documents (a "Disqualified Project") and (b) the then current Cash Equity
Credit shall be decreased by (i) $11,250,000 if such Disqualified Project is the
Batesville Expansion Project, (ii) $18,750,000 if such Disqualified Project is
the Xxxxxx Project, (iii) $190,000,000 if such Disqualified Project is the
Xxxxxx Project and (iv) $180,000,000 if such Disqualified Project is the Pike
Project. Sponsor hereby agrees to promptly give Administrative Agent written
notice of any event or circumstance which results in any such Identified Project
becoming a Disqualified Project.
ARTICLE 7.
MISCELLANEOUS
7.1 No Waiver; Separate Causes of Action. No delay or omission to
exercise any right, power or remedy accruing to Borrower or Administrative Agent
upon the occurrence of any breach or default of Sponsor under this Agreement or
any other Credit Document to which it is a
24
party shall impair any such right, power or remedy of Borrower or Administrative
Agent, nor shall it be construed to be a waiver of any such breach or default,
or an acquiescence therein, or of or in any similar breach or default thereafter
occurring, nor shall any waiver of any other breach or default under this
Agreement or any other Credit Document be deemed a waiver of any other breach or
default theretofore or thereafter occurring. Any waiver, permit, consent or
approval of any kind or character on the part of Borrower or Administrative
Agent of any breach or default under this Agreement or any other Credit
Document, or any waiver on the part of Borrower, Secured Parties or
Administrative Agent of any provision or condition of this Agreement, must be in
writing and shall be effective only to the extent in such writing specifically
set forth. Each and every default by Sponsor in payment hereunder shall give
rise to a separate cause of action hereunder, and separate suits may be brought
hereunder as each cause of action arises.
7.2 Remedies Cumulative. Each and every right and remedy of
Administrative Agent hereunder shall be cumulative and shall be in addition to
any other right or remedy given hereunder or under the Credit Documents now or
hereafter existing at law or in equity or by statute.
7.3 Severability. In case any one or more of the provisions contained
in this Agreement should be invalid, illegal or unenforceable in any respect,
the validity, legality and enforceability of the remaining provisions shall not
in any way be affected or impaired thereby.
7.4 Headings. Article and Section headings have been inserted in this
Agreement as a matter of convenience for reference only and it is agreed that
such article and section headings are not a part of this Agreement and shall not
be used in the interpretation of any provision of this Agreement.
7.5 Succession. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns,
provided that neither Sponsor nor Borrower may assign or otherwise transfer any
of its rights or obligations hereunder (other than the assignment by Borrower in
favor of Administrative Agent pursuant to the terms of the Collateral Documents
or this Agreement) without the prior written consent of Administrative Agent
(which consent may be withheld in its sole discretion and which consent may be
granted only with the approval of all of the Banks).
7.6 Amendments, Etc. This Agreement may not be amended, modified or
supplemented, except in a writing signed by each of the parties hereto and
otherwise in accordance with the provisions of Section 11.5 of the Credit
Agreement.
7.7 Governing Law. This Agreement, and any instrument or agreement
required hereunder (to the extent not otherwise expressly provided for therein),
shall be governed by, and construed under, the laws of the State of New York,
without reference to conflicts of laws (other than Section 5-1401 of the New
York General Obligations Law).
7.8 Payments. All amounts required to be paid by Sponsor hereunder
shall be paid in Dollars without set-off or counterclaim in immediately
available funds.
25
7.9 Expenses. Sponsor agrees to pay on demand to Administrative Agent
all costs and expenses incurred by Administrative Agent (including the
reasonable fees and disbursements of counsel) incident to its enforcement,
protection or preservation of any of its rights or claims (or the rights or
claims of any other Secured Party) under this Agreement.
7.10 Notices. Any communications between the parties hereto or notices
provided herein to be given may be given to the following addresses:
If to Administrative Agent: Credit Suisse First Boston, New York Branch
Eleven Madison Avenue
New York, New York 10010-3629
Attn: Vice President - Project Finance - CPG
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
and
Credit Suisse First Boston, New York Branch
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attn: Department Manager - Agency Group
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
If to Borrower: NRG Finance Company I LLC
000 Xxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attn: General Counsel
Telephone No. (000) 000-0000
Telecopy No.: (000) 000-0000
If to Sponsor: NRG Energy, Inc.
000 Xxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attn: General Counsel
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
All notices or other communications required or permitted to be given hereunder
shall be in writing and shall be considered as properly given (a) if delivered
in person, (b) if sent by overnight delivery service (including Federal Express,
UPS, ETA, Xxxxx, DHL, AirBorne and other similar overnight delivery services),
(c) in the event overnight delivery services are not
26
readily available, if mailed by first class United States Mail, postage prepaid,
registered or certified with return receipt requested, (d) if sent by prepaid
telegram or by telecopy or (e) other electronic means (including electronic
mail) confirmed by telecopy or telephone. Notice so given shall be effective
upon receipt by the addressee, except that communication or notice so
transmitted by telecopy or other direct electronic means shall be deemed to have
been validly and effectively given on the day (if a Banking Day and, if not, on
the next following Banking Day) on which it is transmitted if transmitted before
4:00 p.m., recipient's time, and if transmitted after that time, on the next
following Banking Day; provided, however, that if any notice is tendered to an
addressee and the delivery thereof is refused by such addressee, such notice
shall be effective upon such tender. Any party shall have the right to change
its address for notice hereunder to any other location within the continental
United States by giving of 30 days' notice to the other parties in the manner
set forth hereinabove.
7.11 Counterparts. This Agreement and any amendments, waivers, consents
or supplements hereto or in connection herewith may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed and delivered shall be deemed an original, but all such
counterparts together shall constitute but one and the same instrument;
signature pages may be detached from multiple separate counterparts and attached
to a single counterpart so that all signature pages are physically attached to
the same document.
7.12 Submission to Jurisdiction. Administrative Agent, Sponsor and
Borrower agree that any legal action or proceeding by or against Borrower or
Sponsor or with respect to or arising out of this Agreement may be brought in or
removed to the courts of the State of New York, in and for the County of New
York, or of the United States of America for the Southern District of New York,
as Administrative Agent may elect. By execution and delivery of the Agreement,
Administrative Agent, Sponsor and Borrower accept, for themselves and in respect
of their property, generally and unconditionally, the jurisdiction of the
aforesaid courts. Administrative Agent, Sponsor and Borrower irrevocably consent
to the service of process out of any of the aforementioned courts in any manner
permitted by Legal Requirements. Administrative Agent, Sponsor and Borrower
hereby waive any right to stay or dismiss any action or proceeding under or in
connection with this Agreement or any other Credit Document brought before the
foregoing courts on the basis of forum non-conveniens.
7.13 Waiver of Jury Trial. BORROWER, ADMINISTRATIVE AGENT AND SPONSOR
HEREBY KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVE ANY RIGHTS THEY MAY HAVE
TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF,
UNDER, OR IN CONNECTION WITH, THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT, OR
ANY COURSE OR CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR
WRITTEN), OR ACTIONS OF ADMINISTRATIVE AGENT, SPONSOR OR BORROWER. THIS
PROVISION IS A MATERIAL INDUCEMENT FOR EACH PARTY TO ENTER INTO THIS AGREEMENT.
7.14 Limitation of Liability. Except as may be specifically provided in
this Agreement or in any other Credit Document to which it is a party, and
except for any liabilities and
27
obligations expressly assumed by Sponsor pursuant to the terms of this Agreement
or any other Credit Document to which it is a party, neither Administrative
Agent nor any other Secured Party shall have any recourse to Sponsor in respect
of the obligations of Borrower or any other Portfolio Entity under the Credit
Documents.
7.15 Third Party Rights. Except to the extent set forth in Section 3.5,
nothing in this Agreement, expressed or implied, is intended or shall be
construed to confer upon, or give to any Person (other than Borrower, Sponsor,
Administrative Agent and the Secured Parties) any security, rights, remedies or
claims, legal or equitable, under or by reason hereof, or any covenant or
condition hereof; and this Agreement and the covenants and agreements herein
contained are and shall be held to be for the sole and exclusive benefit of
Borrower, Sponsor, Administrative Agent and the Secured Parties.
7.16 Survival of Obligations. All representations, warranties,
covenants and agreements made herein and in the certificates or other
instruments delivered in connection with or pursuant to this Agreement shall be
considered to have been relied upon by the parties hereto and shall survive the
execution and delivery of this Agreement, the termination of this Agreement and
the making of the Sponsor Equity Contributions. Notwithstanding anything in this
Agreement or implied by law to the contrary, the agreements of Sponsor set forth
in Sections 3.1 and 7.9 shall survive the making of the Sponsor Equity
Contributions and the termination of this Agreement.
7.17 Scope of Liability. Notwithstanding anything herein to the
contrary, recourse against Sponsor and its stockholders, officers, directors and
employees under this Agreement shall be limited to the extent provided in
Article 8 of the Credit Agreement. Without limiting the foregoing, but subject
to Section 2.1.3(b), Sponsor's sole liability for failure to comply with the
provisions of (a) Section 6.13(a) shall be limited to the payment of all amounts
necessary to discharge or remove any Lien which is not permitted pursuant to the
terms of such Section and any all costs and expenses reasonably incidental
thereto, (b) Section 6.13(b) shall be limited to the payment of all amounts
necessary to repay or prepay any Debt which is not permitted pursuant to the
terms of such Section in full and any all costs and expenses reasonably
incidental thereto, and (c) Section 6.14 shall be limited to deeming the
affected Identified Project a "Disqualifed Project" and reducing the amount of
the then current Cash Equity Credit, as all more particularly described in the
proviso set forth in such Section.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
28
IN WITNESS WHEREOF, the parties hereto, by their officers duly
authorized, intending to be legally bound, have caused this NRG Energy Equity
Undertaking to be duly executed and delivered as of the date first above
written.
NRG FINANCE COMPANY I LLC,
as Borrower
By:
--------------------------------------
Name:
Title:
NRG ENERGY, INC.,
as Sponsor
By:
--------------------------------------
Name:
Title:
CREDIT SUISSE FIRST BOSTON, NEW YORK
BRANCH, as Administrative Agent
By:
--------------------------------------
Name:
Title:
By:
--------------------------------------
Name:
Title:
S-1
[NRG Equity Undertaking]
Exhibit A
to NRG Energy Equity Undertaking
FORM OF LETTER OF CREDIT
Issuance Date: ________ __, ___
Letter of Credit No.:
Applicant:
[SPONSOR--ACCOUNT PARTY]
Stated Amount:
Stated Amount in Words:
Beneficiary:
[____________________],
as Administrative Agent
_______________________
_______________________
Ladies and Gentlemen:
We hereby issue in your favor our irrevocable letter of credit (this
"Letter of Credit") for the account of [___________] for a sum not exceeding
[__________________________________] U.S. DOLLARS (US $[____________]) (the
"Stated Amount"), which shall be available at the times and on the conditions
set forth herein against presentation of your sight draft accompanied by a
signed certificate in the form attached as Annex A hereto, appropriately
completed.
Presentation of such draft and certificate shall be made at our office
located at [________] Attn: [_______], Telephone (___) ___-____, Fax (___)
___-____ (or at any other office in the City of New York which may be designated
by us by written notice delivered to you at the address specified herein) either
by physical delivery of such documents or by facsimile transmission of such
draft and certificate (which facsimile transmission shall be confirmed forthwith
by the immediate delivery of the original documents to us on or before next
Banking Day (as defined below)). Upon such presentation, the payment of a
drawing shall be made in accordance with the terms herein. Our only obligation
with regard to a drawing under this Letter
A-1
of Credit shall be to examine the draft and certificate and to pay in accordance
therewith, and we shall not be obligated to make any inquiry in connection with
the presentation of the draft and certificate.
If the requisite draft and certificate are presented to us purportedly
by your duly authorized officer at or prior to 11:00 a.m. New York time on a
Banking Day, and provided that such drawing and the certificate presented in
connection therewith conform to the terms and conditions hereof, payment of the
amount specified shall be made to your purportedly duly authorized officer, or
to such other person purportedly designated in a written notice to us
purportedly signed by you, in immediately available funds, on the next Banking
Day. If a drawing is made hereunder after 11:00 a.m. New York time on a Banking
Day, and provided that such drawing and the certificate presented in connection
therewith conform to the terms and conditions hereof, payment of the amount
specified shall be made to you (or such other designated person, as provided
above), in immediately available funds, not later than 11:00 a.m., New York time
on the second succeeding Banking Day. If a demand for payment purportedly made
by you hereunder does not, in any instance, conform to the terms and conditions
of this Letter of Credit, we shall give you prompt notice thereof, stating the
reasons therefor and that we will upon your instructions hold any documents at
your disposal or return the same to you. Upon being notified that the demand for
payment was not effected in conformity with this Letter of Credit, you may
attempt to correct any such non-conforming demand.
This irrevocable Letter of Credit No. __________ is effective
immediately and expires at the close of banking business at our offices in New
York, on the Expiration Date (as defined below); provided, that if the
Expiration Date would otherwise occur on a date that is not a Banking Day, the
Expiration Date shall automatically be extended to the next Banking Day. All
drawings under this Letter of Credit will be paid with our own funds.
Only you may make a drawing under this Letter of Credit. Multiple
drawings may be made under this Letter of Credit. Drawings hereunder shall not,
in the aggregate, exceed the original Stated Amount. Each drawing under this
Letter of Credit shall reduce the Stated Amount by the amount drawn. In
addition, upon the delivery to us of a certificate in the form of Annex B
hereto, approximately completed, the Stated Amount shall be reduced as set forth
in such certificate.
This Letter of Credit shall terminate on the date (the "Expiration
Date") which is the earlier of (a) the date on which the Stated Amount is
reduced to zero pursuant to the preceding paragraph of this Letter of Credit,
(b) the date we receive a certificate purportedly signed by an officer of each
of you and NRG Energy, Inc. in the form of Annex C, and (c) [INSERT OTHER
EXPIRATION EVENTS, TO THE EXTENT APPLICABLE]. After termination, the original of
this Letter of Credit shall be delivered to us by overnight courier for
cancellation.
A-2
Communications with respect to this Letter of Credit shall be in
writing and shall be addressed to us at [_______________], Attn.: [_____],
Telephone (___) ___-____, Fax (___) ___-____, specifically referring therein to
this Letter of Credit by number.
As used herein "Banking Day" shall mean any day on which commercial
banks in the City of New York are open for the purpose of conducting a
commercial banking business.
This Letter of Credit sets forth in full our undertaking, and such
undertaking shall not in any way be modified, amended, amplified or limited by
reference to any document, instrument or agreement referred to herein, other
than the certificates referred to herein, and any such reference shall not be
deemed to incorporate herein by reference any documents, instruments or
agreement except for such certificates.
This Letter of Credit shall be subject to the provisions (to the extent
that such provisions are not inconsistent with the Letter of Credit) of the
Uniform Customs and Practice for Documentary Credits, 1993 Revision,
International Chamber of Commerce Publication No. 500. To the extent that the
provisions of this Letter of Credit are not covered by such Uniform Customs and
Practice, this Letter of Credit shall be governed by, and enforced and construed
in accordance with, the laws of the State of New York, without reference to
conflicts of laws (other than Section 5-1401 of the New York General Obligations
Law).
Very truly yours,
[NAME OF INSTITUTION]
By: _____________________________
Name:
Title:
[ADDRESS]
Telephone: (___) ___-____
Fax: (___) ___-____
A-3
ANNEX A
TO LETTER OF CREDIT
[FORM OF CERTIFICATE FOR DRAWING]
Date:____________ __, ___
To: [NAME OF INSTITUTION]
[______________________]
[______________________]
Attention:______________
Re: Irrevocable Letter of Credit No. ___________
The undersigned, a duly authorized officer of Credit Suisse First
Boston, acting through its New York Branch, as Administrative Agent (in such
capacity, "Administrative Agent"), hereby certifies to [NAME OF INSTITUTION]
with reference to Irrevocable Letter of Credit No. _______ (as amended,
supplemented or otherwise modified from time to time, the "Letter of Credit")
that:
1. The undersigned is duly authorized to execute and deliver
this certificate on behalf of Administrative Agent;
2. Pursuant to the provisions of Section 2.1 of the NRG Energy
Equity Undertaking, dated as of May 8, 2001 (as heretofore amended,
amended and restated, supplemented or otherwise modified, the "Equity
Undertaking"), among Administrative Agent, NRG Energy, Inc. and NRG
Finance Company I LLC, payment of a Sponsor Equity Contribution (as
defined in the Equity Undertaking) in the amount of $____________
(U.S.) is due and payable and has not been paid;
3. Administrative Agent hereby makes a demand against the
Letter of Credit by Administrative Agent's presentation of this
certificate for payment of $__________ (U.S.), which amount is not in
excess of the Stated Amount (as defined in the Letter of Credit); [AND]
4. You are hereby directed to make payment of the requested
drawing to [INSERT APPLICABLE PAYMENT INSTRUCTIONS]; [AND]
[5. WE HAVE THIS DAY CAUSED THE LETTER OF CREDIT TO BE
DEPOSITED WITH AN OVERNIGHT COURIER SERVICE FOR DELIVERY TO YOU WITHIN
THREE BANKING DAYS.] [TO BE INCLUDED IF DRAWING IS FOR FULL STATED
AMOUNT OF LETTER OF CREDIT]
Very truly yours,
CREDIT SUISSE FIRST BOSTON, NEW YORK
BRANCH, as Administrative Agent
By:______________________________________
Name:
Title:
By:______________________________________
Name:
Title:
2
ANNEX B
TO LETTER OF CREDIT
Date:______________ __, ____
To: [NAME OF INSTITUTION]
[______________________]
[______________________]
Attention:______________
Re: Irrevocable Letter of Credit No. ___________
The undersigned, a duly authorized officer Credit Suisse First Boston,
acting through its New York Branch, as Administrative Agent (in such capacity,
"Administrative Agent"), hereby certifies to _________________ with reference to
Irrevocable Letter of Credit No. _______ (the "Letter of Credit") that:
1. The undersigned is duly authorized to execute and deliver
this certificate on behalf of Administrative Agent;
2. As of the date hereof, the Stated Amount of the Letter of
Credit equals $________;
3. Pursuant to the provisions of Section 2.1 of the NRG Energy
Equity Undertaking, dated as of May 8, 2001 (as heretofore amended,
amended and restated, supplemented or otherwise modified, the "Equity
Undertaking"), among Administrative Agent, NRG Energy, Inc. ("Sponsor")
and NRG Finance Company I LLC, payment of a Sponsor Equity Contribution
(as defined in the Equity Undertaking) in the amount of $____________
(U.S.) has been paid by Sponsor to Administrative Agent (the "Paid
Contribution"); and
4. The Stated Amount of the Letter of Credit is hereby reduced
by an amount equal to [THE PAID CONTRIBUTION] [INSERT OTHER AMOUNT
WHICH, AFTER GIVING EFFECT TO ANY SUCH REDUCTION, REDUCES THE AMOUNT
AVAILABLE TO BE DRAWN UNDER THE LETTER OF CREDIT TO AN AMOUNT GREATER
THAN OR EQUAL TO THE AGGREGATE AMOUNT OF SPONSOR EQUITY CONTRIBUTIONS
REMAINING TO BE PAID UNDER THE EQUITY UNDERTAKING], and the Stated
Amount of the Letter of Credit, after giving effect to such reduction,
shall be $_______.
Very truly yours,
CREDIT SUISSE FIRST BOSTON, NEW YORK
BRANCH, as Administrative Agent
By:__________________________________
Name:
Title:
By:__________________________________
Name:
Title:
2
ANNEX C
TO LETTER OF CREDIT
Date:______________ __, ____
To: [NAME OF INSTITUTION]
[______________________]
[______________________]
ATTENTION:______________
Re: Irrevocable Letter of Credit No. ___________
The undersigned, a duly authorized officer of Credit Suisse First
Boston, acting through its New York Branch, as Administrative Agent, and NRG
Energy, Inc. ("Sponsor"), respectively, hereby certify to
[_________________________] with reference to Irrevocable Letter of Credit No.
_______ (the "Letter of Credit"), that in accordance with the terms of the NRG
Energy Equity Undertaking, dated as of May 8, 2001 (as heretofore amended,
amended and restated, supplemented or otherwise modified, the "Equity
Undertaking"), among Administrative Agent, Sponsor and NRG Finance Company I
LLC, Sponsor has satisfied all of its obligations under the Equity Undertaking,
no other obligations of Sponsor under the Equity Undertaking will exist during
the remaining term of the Equity Undertaking and, accordingly, the Letter of
Credit is to be terminated.
Very truly yours,
CREDIT SUISSE FIRST BOSTON, NEW YORK
BRANCH, as Administrative Agent
By:______________________________________
Name:
Title:
By:______________________________________
Name:
Title:
NRG ENERGY, INC.
By:______________________________________
Name:
Title:
2
EXHIBIT B
to NRG Energy Equity Undertaking
FORM OF SPONSOR TURBINE CONTRIBUTION NOTICE
Date: ___________ __, ___
To: NRG Energy, Inc.
000 Xxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: General Counsel
Telecopy No.: (000) 000-0000
cc: Credit Suisse First Boston, New York Branch
Eleven Madison Avenue
New York, New York 10010-3629
Attn: Vice President - Project Finance - CPG
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
and
Credit Suisse First Boston, New York Branch
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attn: Department Manager - Agency Group
Telecopy No.: (000) 000-0000
Re: Request for Cash Equity Contribution
Reference is hereby made to the NRG Energy Equity Undertaking,
dated as of May 8, 2001 (as heretofore amended, amended and restated,
supplemented or otherwise modified, the "Equity Undertaking"), by and among NRG
Finance Company I LLC ("we"), you, as Sponsor, and Credit Suisse First Boston,
acting through its New York Branch, as Administrative Agent, and the Credit
Agreement referred to therein. Capitalized terms used herein and not otherwise
defined herein shall have the meanings assigned to them in the Equity
Undertaking.
Pursuant to the provisions of Section 2.1.4 of the Equity
Undertaking, we hereby request that you make a Turbine Funding Contribution in
the amount of $[_________] by depositing, or causing the deposit of such amount,
into the Working Capital Sub-Account located at [INSERT PAYMENT INSTRUCTIONS],
within [INSERT DATE WHICH IS NO MORE THAN FIVE BANKING DAYS FROM THE DATE
HEREOF] Banking Days of the date hereof.
B-1
We hereby certify to you that the conditions to the making of
the requested Turbine Funding Contribution contained in Section 2.1.4 of the
Equity Undertaking have been satisfied and, to our knowledge, the amount of the
requested Turbine Funding Contribution is accurate and proper.
This Notice shall be construed as a part of the Equity
Undertaking and any breach of this Notice by Sponsor shall be deemed to be a
breach thereunder.
[ALTERNATIVELY, ADMINISTRATIVE AGENT MAY SUBMIT A NOTICE IN
SIMILAR FORM AND SUBSTANCE ON BEHALF OF BORROWER, AS PROVIDED IN SECTION 3.5 OF
THE NRG ENERGY EQUITY UNDERTAKING]
Very truly yours,
NRG Finance Company I LLC, as Borrower
By:
---------------------------------------
Name:
Title:
B-2
EXHIBIT C
to NRG Energy Equity Undertaking
FORM OF COMPLETION CONTRIBUTION NOTICE
Date: ___________ __, ___
To: NRG Energy, Inc.
000 Xxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: General Counsel
Telecopy No.: (000) 000-0000
cc: Credit Suisse First Boston, New York Branch
Eleven Madison Avenue
New York, New York 10010-3629
Attn: Vice President - Project Finance - CPG
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
and
Credit Suisse First Boston, New York Branch
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attn: Department Manager - Agency Group
Telecopy No.: (000) 000-0000
Re: Request for Cash Equity Contribution
Reference is hereby made to the NRG Energy Equity Undertaking,
dated as of May 8, 2001 (as heretofore amended, amended and restated,
supplemented or otherwise modified, the "Equity Undertaking"), by and among NRG
Finance Company I LLC ("we"), you, as Sponsor, and Credit Suisse First Boston,
acting through its New York Branch, as Administrative Agent, and the Credit
Agreement referred to therein. Capitalized terms used herein and not otherwise
defined herein shall have the meanings assigned to them in the Equity
Undertaking.
Pursuant to the provisions of Section 2.1.7 of the Equity
Undertaking, we hereby request that you make a Completion Funding Contribution
in the amount of $[_________] by depositing, or causing the deposit of such
amount, into the Development Sub-Account located at [INSERT PAYMENT
INSTRUCTIONS], within [INSERT DATE WHICH IS NO MORE THAN FIVE BANKING DAYS FROM
THE DATE HEREOF] Banking Days of the date hereof.
C-1
We hereby certify to you that the conditions to the making of
the requested Completion Funding Contribution contained in Section 2.1.7 of the
Equity Undertaking have been satisfied and, to our knowledge, the amount of the
requested Completion Funding Contribution is accurate and proper.
This Notice shall be construed as a part of the Equity
Undertaking and any breach of this Notice by Sponsor shall be deemed to be a
breach thereunder.
[ALTERNATIVELY, ADMINISTRATIVE AGENT MAY SUBMIT A NOTICE IN
SIMILAR FORM AND SUBSTANCE ON BEHALF OF BORROWER, AS PROVIDED IN SECTION 3.5 OF
THE NRG ENERGY EQUITY UNDERTAKING]
Very truly yours,
NRG Finance Company I LLC, as Borrower
By:
--------------------------------------
Name:
Title:
C-2
EXHIBIT D
to NRG Energy Equity Undertaking
FORM OF COMMITTED EQUITY FUNDS ACKNOWLEDGMENT
Date: ___________ __, ___
To: NRG Energy, Inc.
000 Xxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: General Counsel
Telecopy No.: (000) 000-0000
[INSERT NAME OF PROJECT OWNER]
___________________
___________________
Attention: ________________
Telecopy No.: ____________
cc: Credit Suisse First Boston, New York Branch
Eleven Madison Avenue
New York, New York 10010-3629
Attn: Vice President - Project Finance - CPG
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
and
Credit Suisse First Boston, New York Branch
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attn: Department Manager - Agency Group
Telecopy No.: (000) 000-0000
Re: Commitment to Make Equity Contribution
Reference is hereby made to the NRG Energy Equity Undertaking,
dated as of May 8, 2001 (as heretofore amended, amended and restated,
supplemented or otherwise modified, the "Equity Undertaking"), by and among NRG
Finance Company I LLC ("Borrower"), NRG Energy, Inc., as Sponsor, and Credit
Suisse First Boston, acting through its New York Branch, as Administrative
Agent, and the Credit Agreement referred to therein. Capitalized terms used
herein and not otherwise defined herein shall have the meanings assigned to them
in the Equity Undertaking.
D-1
Pursuant to the provisions of Section 2.1.8 of the Equity
Undertaking, we hereby unconditionally commit (the "Commitment") to make a
Contribution to [INSERT NAME OF PROJECT OWNER] ("Project Owner") (for the
benefit of Secured Parties, Borrower and Project Owner) in the amount of
$[_________] by depositing, or causing the deposit of such amount, into the
Development Sub-Account located at [INSERT PAYMENT INSTRUCTIONS], all in
accordance with Section 2.1.8 of the Equity Agreement. The Commitment shall be
irrevocable unless otherwise agreed in writing by Borrower, the Project Owner
and Administrative Agent (which agreement may be withheld in each such Person's
sole discretion).
We hereby acknowledge that Administrative Agent and any
assignee thereof shall have the full right and power to enforce directly against
Sponsor all obligations of Sponsor hereunder and to make all demands and make
all requests (either in its own name or in the name of Borrower or Project
Owner, as Administrative Agent may elect) for payment of the Contributions
described in this Committed Equity Funds Acknowledgment.
This Committed Equity Funds Acknowledgment shall be construed
as a part of the Equity Undertaking and any breach of this Committed Equity
Funds Acknowledgment by Sponsor shall be deemed to be a breach thereunder.
Very truly yours,
NRG Energy, Inc.
By:
-----------------------------------
Name:
Title:
AGREED AND ACCEPTED:
NRG Finance Company I LLC
By:
--------------------------------
Name:
Title:
[INSERT NAME OF PROJECT OWNER]
By:
--------------------------------
Name:
Title:
D-2
