Exhibit 10.8.3
STOCK PLEDGE AGREEMENT
between
NRG GENERATING (U.S.) INC.
(as Pledgor)
and
CREDIT SUISSE
(as Agent)
Dated as of June 28, 1996
TABLE OF CONTENTS
Page
1. Definitions 2
2. Grant of Security Interest 2
3. Delivery of Collateral 3
4. Representations and Warranties 4
5. Covenants and Agreements 6
6. Voting Power, Dividends; Pledgor's
Obligations Upon Event of Default 10
7. Remedies; Rights Upon Event of Default 10
8. Application of Proceeds 13
9. Security Interest Absolute 13
10. Agent Appointed Attorney-in-Fact 14
11. Agent May Perform 15
12. No Duty on Agent's Part; Limitation on Agent's
Obligations 16
13. Reasonable Care 16
14. Role of Agent 17
15. Notices 17
16. Subrogation, etc. 17
17. Absence of Fiduciary Relation 18
18. Survival of Representations and Warranties 18
19. No Waiver; Cumulative Remedies 18
20. Severability 18
21. Exculpatory Provisions; Reliance by Agent 19
22. Amendment 20
23. Successors and Assigns 20
24. Number and Gender 20
25. Headings Descriptive 20
26. Governing Law; Jurisdiction; Waiver of Trial
by Jury 20
27. Continuing Pledge and Security
Interest; Termination 21
28. Payments Set Aside 21
29. Counterparts 22
Schedule
Schedule A: Pledged Shares
Schedule B: Financing Statement Filings
STOCK PLEDGE AGREEMENT
This STOCK PLEDGE AGREEMENT (the "Stock Pledge Agreement"), dated
as of June 28, 1996, by and between NRG GENERATING (U.S.) INC., a Delaware
corporation ("Pledgor"), and CREDIT SUISSE, as agent ("Agent") on behalf of
and for the benefit of the Secured Parties under the Credit Agreement (as
defined below).
W I T N E S S E T H :
WHEREAS, Pledgor is the sole stockholder of NRG Generating
(Parlin) Cogeneration Inc., a Delaware corporation ("Borrower");
WHEREAS, Borrower has entered into the Credit Agreement, dated as
of May 17, 1996, by and among (i) Borrower and NRG Generating (Newark)
Cogeneration Inc., a Delaware corporation ("NRG Newark"), (ii) Credit
Suisse, Greenwich Funding Corporation and each Purchasing Lender and (iii)
Agent (as the same may be amended, modified or supplemented from time to
time, the "Credit Agreement"), pursuant to which the Lenders are willing to
provide the Loans and Commitments to Borrower and NRG Newark on the terms
and subject to the conditions set forth in the Credit Agreement;
WHEREAS, pursuant to this Stock Pledge Agreement, the Parlin
Security Agreement, the Parlin Mortgage and certain other Loan Instruments,
Agent is being appointed to assume and undertake, among other things, the
rights and obligations conferred herein and therein on Agent for the equal
and ratable benefit of the Secured Parties;
WHEREAS, Pledgor shall derive substantial benefit from the making
of the Additional Loan to Borrower and NRG Newark by the Lenders pursuant
to the Credit Agreement; and
WHEREAS, it is a condition precedent to the Lenders making of the
Additional Loan under the Credit Agreement that Pledgor enter into this
Stock Pledge Agreement and pledge the Pledged Shares (as defined below) to
the Secured Parties in order to secure the obligations of Borrower and NRG
Newark under the Credit Agreement and the other Loan Instruments;
NOW, THEREFORE, in consideration of the mutual covenants
contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, and in order to
induce the Lenders and Agent to make the Additional Loan and to make
available the Debt Service Line of Credit Facility Commitment under the
Credit Agreement, the parties hereto hereby agree as follows:
1. Definitions. Unless otherwise defined herein, all
capitalized terms used herein which are defined in the Credit Agreement
shall have their respective meanings as therein defined. For purposes of
this Stock Pledge Agreement, all other terms used herein and not otherwise
defined herein which are defined in Article 9 of the Uniform Commercial
Code (as the same may be in effect in the State of New York or any other
applicable jurisdiction, the "Code"), shall have their respective meanings
as therein defined.
2. Grant of Security Interest.
(a) Collateral. As security for the prompt and complete payment
and performance when due (whether at stated maturity, by acceleration or
otherwise) of any and all of the Obligations (as defined below) now
existing or hereafter arising, Pledgor hereby pledges, collaterally
assigns, conveys, mortgages, hypothecates, transfers and delivers to Agent,
and grants and creates a lien on and first priority security interest (the
"Security Interest") in favor of Agent, for the equal and ratable benefit
of the Secured Parties, in all right, title and interest of Pledgor in, to
and under the following, whether now existing or hereafter acquired (the
"Collateral"):
(i) all shares of capital stock of Borrower now owned by Pledgor
(as set forth on Schedule A) or hereafter acquired, directly or
indirectly, by Pledgor (the "Pledged Shares");
(ii) any cash dividends or other cash payments, additional
shares or securities or other property at any time receivable or
otherwise distributable in respect of, in exchange for, or in
substitution of, any and all of the Pledged Shares (other than any
cash dividends or other cash payments which are derived from
distributions permitted under Section 5.1(c)(ix) of the Credit
Agreement); and
(iii) to the extent not otherwise included, all proceeds,
products and accessions of and to any and all of the foregoing,
including, without limitation, "proceeds" as defined in Section
9-306(l) of the Code, including whatever is received upon any sale,
exchange, collection or other disposition of any of the Collateral,
and any property into which any of the Collateral is converted,
whether cash or noncash proceeds, and any and all other amounts paid
or payable under or in connection with any of the Collateral.
(b) Obligations. This Stock Pledge Agreement secures, in
accordance with the provisions hereof, the following obligations, now
existing or hereafter arising (collectively, the "Obligations"):
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(i) payment and performance of the Obligations (as defined in
the Parlin Security Agreement) and each and every obligation,
indebtedness, covenant and agreement of Pledgor now or hereafter
existing contained in any Loan Instrument to which Pledgor is a party,
including, without limitation, this Stock Pledge Agreement and any
amendments or supplements thereto, extensions or renewals thereof or
replacements therefor;
(ii) payment of all sums advanced in accordance herewith or in
accordance with any other Parlin Security Document by or on behalf of
the Secured Parties (or any of them), to protect, retake, hold,
prepare for sale or lease or otherwise dispose of or realize upon any
of the collateral purported to be covered hereby or thereby,
including, without limitation, those fees and expenses described in
Section 5(c), with interest thereon at a rate equal to the Default
Interest Rate from the date of demand therefor;
(iii) performance of every obligation, indebtedness, covenant
and agreement of Pledgor contained in any agreement now or hereafter
executed by Pledgor which recites that the obligations thereunder are
secured by this Stock Pledge Agreement; and
(iv) payment of all sums, with interest thereon at the Default
Interest Rate, that may become due and payable to or for the benefit
of the Secured Parties (or any of them) pursuant to the terms of this
Stock Pledge Agreement;
in each case whether direct or indirect, joint or several, absolute or
contingent, liquidated or unliquidated, now or hereafter existing, renewed
or restructured, reinstated, created or incurred, and including, without
limitation, all indebtedness of Pledgor under any instrument now or
hereafter evidencing or securing any of the foregoing.
3. Delivery of Collateral. On or prior to the Initial Funding
Date, the certificates evidencing the Pledged Shares pledged hereunder
shall be delivered to Agent, duly endorsed in blank or with stock powers
executed in blank annexed to each certificate. Agent shall have the right
(a) to hold any certificate(s) representing the Pledged Shares in its own
name, or in the name of Pledgor endorsed or assigned in blank or in favor
of Agent, or (b) to have the Pledged Shares or any part thereof registered
in the name of Agent or in the name or names of Agent's nominees.
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4. Representations and Warranties. Pledgor hereby represents
and warrants to each of the Secured Parties as follows:
(a) Organization and Existence. Pledgor is a corporation duly
organized, validly existing and in good standing under the laws of the
State of Delaware and is duly qualified to do business and is in good
standing in each other jurisdiction in which the character of the
properties owned or leased by it or in which the transaction of its
business as presently conducted or proposed to be conducted makes such
qualification necessary. Pledgor has the full power and authority to own
its property and to carry on its business as now being conducted and as
proposed to be conducted.
(b) Authority, Enforceability. Pledgor has full power and
authority to enter into and perform this Stock Pledge Agreement and any
other Project Agreement to which it is a party and the entering into and
performance of each such agreement by Pledgor has been duly authorized by
all proper and necessary corporate action. This Stock Pledge Agreement and
any other Project Agreement to which it is a party, when executed and
delivered, will constitute the legal, valid and binding obligation of
Pledgor, and the other parties thereto, enforceable in accordance with
their respective terms.
(c) No Breach. The execution, delivery and performance by
Pledgor of this Stock Pledge Agreement do not and will not (i) require any
Governmental Approval or any consent, filing or approval of any party which
has not been obtained or made, (ii) violate any organization documents of
Pledgor, (iii) violate any provisions of any Governmental Requirement
applicable to Pledgor or any of its assets or the Parlin Project, (iv)
contravene, violate or result in any breach of any provision of, or
constitute a default under, any mortgage, indenture, contract, agreement or
other undertaking to which Pledgor is a party or which purports to be
binding upon Pledgor or upon any of Pledgor's assets or (v) result in the
creation or imposition of any Lien (other than the Lien created pursuant to
this Stock Pledge Agreement) on any of the assets of Pledgor pursuant to
the provisions of any mortgage, indenture, contract, agreement or other
undertaking to which Pledgor is a party or which purports to be binding
upon Pledgor or upon any of Pledgor's assets.
(d) No Litigation. There is no action, suit, investigation or
proceeding by or before any court, arbitrator, administrative agency or
other Governmental Authority pending or, to the best knowledge of Pledgor,
threatened, against or affecting Pledgor or any of its property, revenues
or assets or either Project that could have a Material Adverse Effect.
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Pledgor is not in default with respect to any order of any court,
arbitrator, administrative agency, or other Governmental Authority.
(e) Regulation of Pledgor. Pledgor is not now nor will it be,
solely as a result of the participation by Pledgor or any of its
Affiliates, separately or as a group, in the transactions contemplated
hereby or any other Project Agreement to which it is a party, subject to
regulation by any Governmental Authority as a "public utility," an
"electric utility," an "electric utility holding company," a "public
utility holding company," a "holding company," or a subsidiary or affiliate
of any of the foregoing under any Governmental Requirements (including,
without limitation, PUHCA and PURPA); provided, however, that Borrower
alone shall be subject to regulation as a public utility under the FPA.
(f) Compliance with Laws; Governmental Requirements. Pledgor is
in compliance in all material respects with all Governmental Requirements.
No Governmental Approvals are required in connection with the execution and
delivery of this Stock Pledge Agreement or any other Project Agreement to
which Pledgor is a party or the performance by Pledgor of its obligations
hereunder or thereunder other than those which have been duly obtained or
made and are in full force and effect, are final and are not subject to
appeal or subject to any pending or, to Pledgor's knowledge, threatened
judicial or administrative proceeding.
(g) Title; No Other Liens. Pledgor is the legal and beneficial
owner of the Collateral in existence on the date hereof and will be the
sole owner of the Collateral hereafter acquired, free and clear of any and
all Liens or claims of others (other than Permitted Liens), and Pledgor has
full power and authority to grant the liens and security interests in and
to the Collateral hereunder.
(h) Perfection. Financing Statements or other appropriate
instruments have been filed in the public offices set forth in Schedule B
as may be necessary to perfect any Security Interest granted or purported
to be granted hereby to the extent any such Security Interest may be
perfected by the filing of a Financing Statement. All action necessary or
desirable to perfect the Security Interest in each item of the Collateral
will have been duly taken. Upon delivery of the Collateral to Agent, this
Stock Pledge Agreement will constitute a valid and continuing Lien on and
perfected Security Interest in the Collateral in favor of Agent for the
equal and ratable benefit of the Secured Parties, superior and prior to the
rights of all Persons, whether the Collateral subject to the Security
Interest is now owned by Pledgor or is hereafter acquired.
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(i) No Default. Pledgor is not in any material respect in
default in the performance, observance or fulfillment of any of the
obligations, covenants or conditions applicable to Pledgor contained in any
Project Agreement to which it is a party.
(j) Governmental Authority. No authorization, approval or other
action by, and no notice to or filing with, any Governmental Authority, any
regulatory body or any other Person is required of Pledgor with respect to
the exercise by Agent of the rights provided in this Stock Pledge Agreement
or the remedies in respect of the Collateral pursuant to this Stock Pledge
Agreement.
(k) Taxes. Pledgor has filed or caused to be filed all tax
returns that are required to be filed by it and has paid all taxes shown to
be due and payable on said returns or on any assessments made against it or
any of its assets and properties and all other taxes, fees or other charges
imposed on it by any Governmental Authority (except taxes, fees and charges
which are the subject of a Good Faith Contest by Pledgor), and Pledgor has
no knowledge of any actual or additional assessment in connection therewith
for which adequate provision is not made, and there is no assessment in
connection therewith which is delinquent, unless it is the subject of a
Good Faith Contest by Pledgor.
(l) Chief Executive Office and Principal Place of Business.
Pledgor's chief executive office is located in the State of Minnesota and
its principal place of business and the place where Pledgor's records
concerning the Collateral are kept is located in the States of New Jersey,
Delaware or Minnesota.
(m) Pledgor's Total Shares. The Pledged Shares pledged
hereunder represent the total number of Pledged Shares owned by Pledgor and
all of the issued and outstanding capital stock of Borrower, in each case,
as of the date hereof.
5. Covenants and Agreements. Pledgor hereby covenants and
agrees that Pledgor shall faithfully observe and fulfill, and shall cause
to be observed and fulfilled, each and all of the following covenants until
all Obligations have been paid and performed in full:
(a) Notice of Adverse Claims. Pledgor shall, promptly and in no
event later than five days after Pledgor becomes aware of any information
or knowledge of any adverse claim against the Collateral which could have a
Material Adverse Effect, deliver to Agent and each of the Lenders notice of
each such claim.
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(b) Further Assurances. Pledgor shall, from time to time, at
Pledgor's expense, and upon request by Agent on behalf of the Secured
Parties, promptly execute and deliver all further instruments and
documents, and take all further action that Agent determines may be
necessary, advisable or desirable in order to perfect and protect the
Security Interest granted or purported to be granted hereby or to enable
Agent to exercise and enforce its rights and remedies hereunder with
respect to the Collateral.
(c) Fees and Expenses. Pledgor shall upon demand pay or cause
to be paid to Agent the amount of any and all out-of-pocket costs and
expenses (including, without limitation, the fees and expenses of its
counsel and of any experts, any special consultants engaged, and any local
counsel who might be retained by Agent, in connection with the transactions
contemplated hereby) which Agent may incur in connection with (i) the sale
of, collection from, custody or preservation of or other realization upon,
any of the Collateral pursuant to the exercise or enforcement of any of the
rights of Agent hereunder or (ii) the failure by Pledgor to perform or
observe any of the provisions hereof, together with interest thereon at the
Default Interest Rate or (iii) the execution, delivery and performance of
this Stock Pledge Agreement, any agreement supplemental hereto and any
instruments of further assurance. Any amounts payable by Pledgor pursuant
to this Section 5(c) shall be payable on demand and shall constitute
Obligations; provided, that recourse with respect to the obligations of
Pledgor under this Section 5(c) shall be limited to the Collateral.
(d) Filing Fees, Taxes, etc. Pledgor shall pay or cause to be
paid all filing, registration and recording fees or re-filing, re-
registration and re-recording fees, and all federal, state, county and
municipal stamp taxes and other similar taxes, duties, imposts, assessments
and charges arising out of or in connection with the execution and delivery
of this Stock Pledge Agreement, any agreement supplemental hereto and any
instruments of further assurance; provided, that recourse with respect to
the obligations of Pledgor under this Section 5(d) shall be limited to the
Collateral.
(e) Certificated Interest. If Pledgor shall become entitled to
receive or shall receive any certificate, instrument, option or rights,
whether as an addition to, in substitution of, or in exchange for the
Collateral or any part thereof, or otherwise, Pledgor shall accept any such
certificate, instrument, option or rights as Agent's agent, shall hold them
in trust for Agent, and shall deliver them forthwith to Agent in the exact
form received, with Pledgor's endorsement when necessary, or accompanied by
duly executed instruments of transfer or assignment in blank or, if
requested
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by Agent, an additional pledge agreement or security agreement executed and
delivered by Pledgor, all in form and substance reasonably satisfactory to
Agent, to be held by Agent, subject to the terms hereof, as further
Collateral for the Obligations.
(f) Change in Location, Name, etc. Pledgor shall not change its
name, including, without limitation, any trade name or fictitious business,
name or the location of its chief executive office, principal place of
business or the place where its records concerning the Collateral are kept
without giving Agent 30 days' advance written notice of such change.
(g) Maintenance of Existence, Privileges, etc. Pledgor shall at
all times (i) preserve and maintain in full force and effect (A) its
existence as a corporation in good standing under the laws of the State of
Delaware, (B) its qualification to do business in each jurisdiction in
which the character of the properties owned or leased by it or in which the
transaction of its business as conducted or proposed to be conducted makes
such qualification necessary and where the failure to maintain such
qualification could reasonably be expected to result in a Material Adverse
Effect and (C) all of its powers, rights, privileges and franchises
necessary for the ownership, maintenance and operation of the Project and
the maintenance of its existence, except, in the case of clause (C) only,
where the failure to do so could not reasonably be expected to result in a
Material Adverse Effect and (ii) obtain and maintain in full force and
effect all Governmental Approvals and other consents and approvals required
to be obtained and maintained by Pledgor at any time in connection with the
maintenance, ownership or operation of the Borrower and where the failure
to obtain and maintain in full force and effect such Governmental
Approvals, consents and approvals could reasonably be expected to result in
a Material Adverse Effect; provided, however, Pledgor may be merged or
consolidated with or into another Person if: (i) either (x) Pledgor shall
be the surviving Person or (y) the Person (if other than Pledgor) formed by
such consolidation or into which Pledgor is merged shall be a corporation
organized and existing under the laws of the United States or any State
thereof or the District of Columbia and shall expressly assume, by an
agreement supplemental hereto, executed and delivered to the Lenders and
the Agent in form and substance satisfactory to the Majority Lenders and
the Agent, all of the obligations of Pledgor under this Stock Pledge
Agreement, (ii) immediately before and immediately after giving effect to
such transaction, no Default shall have occurred and be continuing, (iii)
immediately after, and giving effect to, such transaction and the
assumption contemplated by clause (i)(y) above, and the incurrence or
anticipated incurrence of any Indebtedness to be incurred in connection
therewith, the surviving Person shall have a Net Worth (as defined in the
Tax
8
Indemnification Agreement) equal to or greater than the Net Worth of
Pledgor immediately preceding such transaction and Pledgor shall have
delivered to the Agent a certificate of an Authorized Officer of Pledgor
stating that such consolidation or merger and such supplemental agreement
comply with this Section 5(g) and that all conditions precedent herein
provided relating to such transaction have been complied with.
(h) Limitations on Liens on the Collateral. Pledgor shall not
create, incur or permit to exist, shall defend the Collateral now owned or
hereafter acquired by it against, and shall take such other action as is
necessary to remove, any Lien or claim (other than Permitted Liens) on or
to the Collateral, and shall defend the right, title and interest of Agent
in and to any of the Collateral against the claims and demands of all
Persons whomsoever.
(i) Prohibition Against Transfers of Collateral. Without the
prior written consent of the Majority Lenders, Pledgor shall not exchange,
sell, transfer, pledge, hypothecate, assign, convey or otherwise dispose
of, or permit to be exchanged, sold, transferred, pledged, hypothecated,
assigned, conveyed or disposed of, any of the Pledged Shares.
(j) No Additional Shares. Pledgor shall cause the Pledged
Shares pledged hereunder to constitute at all times not less than all of
the total number of shares of capital stock of Borrower then issued and
outstanding (including treasury shares, if any), and shall not permit
Borrower to issue or have outstanding any shares of any other class of its
capital stock or to have outstanding any subscription agreements, warrants,
rights or options to acquire any shares of any class of its capital stock.
(k) Governmental Authority Requirements. Pledgor shall not
take, or omit to take, any action (unless ordered to do so by a competent
Governmental Authority having jurisdiction) in respect of Borrower and its
business if, as a consequence directly or indirectly of such action or
omission, Borrower becomes subject to regulation by any Governmental
Authority as a "public utility," an "electric utility," an "electric
utility holding company," a "public utility holding company" or a
subsidiary or affiliate of any of the foregoing under any Governmental
Requirement (including, without limitation, PUHCA, FPA and PURPA) or as a
"holding company" within the meaning of PUHCA; provided, however, that
Borrower shall be subject to regulation as a public utility under the FPA.
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6. Voting Power, Dividends; Pledgor's Obligations Upon Event of
Default.
(a) Voting Power, Dividends. Notwithstanding any other
provision contained in this Stock Pledge Agreement to the contrary, unless
an Event of Default shall have occurred and be continuing, Pledgor shall be
entitled to receive all dividends and other payments payable with respect
to the Pledged Shares and exercise all voting and other consensual rights
and take all action permitted to a stockholder of Borrower in its capacity
as such, and Agent, upon the written request of Pledgor, shall promptly
deliver such proxies and other documents, if any, as shall be reasonably
requested by Pledgor which are necessary to allow Pledgor to exercise
voting power with respect to any of the Pledged Shares; provided, Pledgor
(i) shall not vote such Pledged Shares in any manner that would violate the
terms of this Stock Pledge Agreement, the Credit Agreement or any other
Loan Instrument or that would cause an Event of Default and (ii) agrees
that any dividends and other payments paid by Borrower to Pledgor where
such dividends and other payments, as the case may be, are derived from
distributions made to Borrower in violation of the Credit Agreement shall
be restored to Borrower by deposit into an account designated by Agent
promptly upon demand by Agent or upon Pledgor becoming aware of receipt of
such dividends made from a non-complying distribution.
(b) Pledgor's Obligations Upon Event of Default. If an Event of
Default shall occur and be continuing then, following notice from Agent to
Pledgor, (i) all payments received by Pledgor under or in connection with
any of the Collateral shall be held by Pledgor in trust for Agent, shall be
segregated from other funds of Pledgor and shall, forthwith upon receipt by
Pledgor, be turned over to Agent or its designee in the same form as
received by Pledgor (duly endorsed by Pledgor to Agent, if requested), and
(ii) any and all such payments so received by Agent or its designee
(whether from Pledgor or otherwise) may, in the sole discretion of Agent or
its designee, be held by Agent or such designee as collateral security for,
and/or then or at any time thereafter be applied, subject only to the
relevant provisions of the Credit Agreement or as otherwise may be required
by applicable law, in whole or in part by Agent or its designee in the
manner specified in Section 8 hereof, unless otherwise agreed to by the
Majority Lenders in a writing delivered to Agent.
7. Remedies; Rights Upon Event of Default. Pledgor hereby
relinquishes to Agent upon the occurrence and during the continuance of an
Event of Default all right, title and interest which Pledgor has in the
Collateral. Upon the occurrence and during the continuance of an Event of
Default Agent, for the
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equal and ratable benefit of and on behalf of the Secured Parties, may do
one or more of the following:
(a) Declare, without presentment, demand, protest or notice of
any kind, all of which Pledgor hereby expressly waives, all Obligations to
be immediately due and payable, whereupon all of such Obligations declared
due and payable shall be and become immediately due and payable; provided,
however, if an Event of Default occurs pursuant to Section 6.1(h), (i) or
(t) of the Credit Agreement the acceleration provided for in this Section
7(a) shall be deemed to have been made upon the occurrence of such Event of
Default without declaration or any other action by Agent;
(b) Upon notice to Pledgor, which notice need not be in writing,
make such payments and do such acts as Agent may deem necessary to protect,
perfect or continue the perfection of the Secured Parties' Security
Interest in the Collateral including, without limitation, paying,
purchasing, contesting or compromising any Lien which is, or purports to
be, prior to or superior to the Security Interest granted hereunder, and
commencing, appearing or otherwise participating in or controlling any
action or proceeding purporting to affect the Secured Parties' Security
Interest in or ownership of the Collateral;
(c) Foreclose on the Collateral as herein provided or in any
manner permitted by law and exercise any and all of the rights and remedies
conferred upon the Secured Parties by any of the Project Agreements either
concurrently or in such order as Agent may determine without affecting the
rights or remedies to which the Secured Parties may be entitled under the
Credit Agreement or any other Loan Instrument. Pledgor hereby waives, to
the extent permitted by applicable law, notice and judicial hearing in
connection with Agent's taking possession or collection, recovery, receipt,
appropriation, repossession, retention, set-off, sale, leasing, conveyance,
assignment, transfer or other disposition of or realization upon any or all
of the Collateral, including, without limitation, any and all prior notice
and hearing for any prejudgment remedy or remedies and any such right which
Pledgor would otherwise have under the constitution or any statute or other
law of the United States of America or of any state;
(d) Without notice, except as specified below, sell the
Collateral, or any part thereof, in one or more parcels at public or
private sale, at any of Agent's offices or elsewhere, at such time or
times, for cash, on credit or for future delivery, and at such price or
prices and upon such other terms as Agent may deem commercially reasonable.
Pledgor agrees that, to the extent notice of sale shall be required by law,
at least
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10 days' notice to Pledgor of the time and the place of any public sale or
the time after which any private sale is to be made shall constitute
reasonable notification. At any sale of the Collateral, if permitted by
law, Agent may bid (which bid may be, in whole or in part, in the form of
cancellation of indebtedness) for the purchase of the Collateral or any
portion thereof for the account of Agent on behalf of the Secured Parties.
Agent shall not be obligated to make any sale of the Collateral regardless
of notice of sale having been given. Agent may adjourn any public or
private sale from time to time by announcement at the time and place fixed
therefor, and such sale may, without further notice, be made at the time
and place to which it was so adjourned. Agent shall incur no liability as
a result of the manner of sale of the Collateral, or any part thereof, at
any private sale conducted in a commercially reasonable manner. Agent may,
in its sole discretion, at any such sale restrict the prospective bidders
or purchasers as to their number, nature of business and investment
intention, including a requirement that the prospective bidders or
purchasers represent and agree, to the satisfaction of Agent, that they are
purchasing the Collateral for their own account, for investment, and not
with a view to the distribution or resale of any thereof. Pledgor hereby
waives, to the extent permitted by applicable law, any claims against Agent
arising by reason of the fact that the price at which the Collateral, or
any part thereof, may have been sold at a private sale was less than the
price which might have been obtained at public sale or was less than the
aggregate amount of the Obligations, even if Agent accepts the first offer
received which Agent in good faith deems to be commercially reasonable
under the circumstances and does not offer the Collateral to more than one
offeree. To the full extent permitted by law, Pledgor shall have the
burden of proving that any such sale of the Collateral was conducted in a
commercially unreasonable manner. To the extent permitted by law, Pledgor
hereby specifically waives all rights of redemption, stay or appraisal
which it has or may have under any law now existing or hereafter enacted.
Pledgor authorizes Agent, at any time and from time to time, to execute, in
connection with a sale of the Collateral pursuant to the provisions of this
Stock Pledge Agreement, any endorsements, assignments or other instruments
of conveyance or transfer with respect to the Collateral;
(e) At any time, upon notice to Pledgor, register the Collateral
in the name of Agent or its nominee as pledgee or otherwise take such
action as Agent shall in its sole discretion deem necessary or desirable
with respect to the Collateral, and Agent or its nominee may thereafter, in
its sole discretion, without notice, exercise all voting and other rights
relating to the Collateral and exercise any and all rights, privileges or
options pertaining to the Collateral as if it were the absolute owner
thereof, and exchange, at its sole discretion, any and all
12
of the Collateral upon the merger, consolidation, reorganization,
recapitalization or other readjustment of either Borrower, all without
liability except to account for property actually received by Agent, but
Agent shall have no duty to exercise any of the aforesaid rights,
privileges or options and shall not be responsible for any failure to do so
or delay in so doing, except to the extent that such failure or delay
constitutes gross negligence or willful misconduct;
(f) Exercise such voting and other consensual rights and rights
to receive and hold as Collateral dividends and other payments which
Pledgor would otherwise be entitled to receive or exercise, as the case may
be, pursuant to Section 6(a) and all such voting and consensual rights and
rights to receive the dividends and other payments which Pledgor would
otherwise be authorized to exercise, receive and retain pursuant to Section
6(a) shall cease and all such rights shall thereupon become vested in
Agent; and
(g) Exercise in respect of the Collateral, in addition to other
rights and remedies provided for herein or otherwise available to it, all
the rights and remedies of a secured party after default under the Code.
8. Application of Proceeds. The net proceeds of any
foreclosure, collection, recovery, receipt, appropriation, realization or
sale of the Collateral shall be applied in the following order:
(a) To the repayment of the costs and expenses of retaking,
holding and preparing for the sale and the selling of the Collateral
(including, without limitation, attorneys' fees and expenses and court
costs and those amounts payable to Agent pursuant to Section 5(c)) and
the discharge of all assessments, encumbrances, charges or liens, if
any, on the Collateral prior to the lien hereof;
(b) To the payment in full of the Obligations in accordance with
the priority of application specified in Section 2.10(c) of the Credit
Agreement; and
(c) If all Obligations have been indefeasibly paid, satisfied
and discharged in full, any surplus then remaining shall be paid to
Pledgor, subject, however, to the rights of the holders of any then
existing liens on the Collateral of which Agent has actual notice
(without investigation).
9. Security Interest Absolute. All the rights of Agent and
Secured Parties hereunder and the Security Interest
13
and all obligations of Pledgor hereunder shall be absolute and
unconditional irrespective of:
(i) any lack of validity or enforceability of any of the Project
Agreements or any other agreement or instrument relating thereto;
(ii) any change in the time, manner or place of payment of, or
in any other term of, all or any of the Obligations, or any other
amendment or waiver of or any consent to any departure from any of the
Project Agreements or any of the Collateral or any other agreement or
instrument related thereto;
(iii) any exchange or release of any Collateral or any other
collateral, or the non-perfection of any of the Security Interest, or
any release or amendment or waiver of or consent to or departure from
any guaranty, for all or any of the Obligations; or
(iv) to the full extent permitted by law, any other circumstance
that might otherwise constitute a defense available to, or a discharge
of, Pledgor or any third party pledgor other than payment in full of
the Obligations.
10. Agent Appointed Attorney-in-Fact.
(a) Powers. Pledgor hereby irrevocably constitutes and appoints
Agent and any officer or agent thereof, with full power of substitution, as
its true and lawful attorney-in-fact (which appointment as attorney-in-fact
shall be coupled with an interest), with full authority in the place and
stead of Pledgor and in the name of Pledgor or otherwise, from time to time
upon the occurrence and during the continuance of an Event of Default in
Agent's discretion, to take any action and to execute any and all documents
and instruments which Agent may deem necessary or advisable to accomplish
the purposes of this Stock Pledge Agreement, without notice to Pledgor,
including, without limitation:
(i) to exercise all rights, powers and privileges of a
stockholder of Borrower;
(ii) to receive, endorse and collect all instruments made
payable to Pledgor representing any dividends, payments or other
distributions in respect of the Collateral or any part thereof and to
give full discharge for the same and to file any claim or to take any
other action or proceeding in any court of law or equity or otherwise
deemed appropriate by Agent for the purpose of
14
collecting any and all of such dividends, or other distributions;
(iii) to pay or discharge taxes and liens levied or placed on
the Collateral; and
(iv) (A) to direct any party liable for any payment under or in
respect of or arising out of any of the Collateral to make payment of
any and all moneys due or to become due in connection therewith
directly to Agent or as Agent shall direct, (B) to ask or demand for,
collect, receive payment of and receipt for, any and all moneys,
claims and other amounts due or to become due at any time in respect
of or arising out of any Collateral, (C) to commence and prosecute any
suits, actions or proceedings at law or in equity in any court of
competent jurisdiction to collect the Collateral or any part thereof
and to enforce any other right in respect of any Collateral, (D) to
defend any suit, action or proceeding brought against Pledgor with
respect to any Collateral, (E) to settle, compromise or adjust any
suit, action or proceeding described in clauses (C) and (D) above and,
in connection therewith, to give such discharges or releases as Agent
acting in good faith may deem appropriate and (F) generally, to sell,
transfer, pledge and make any agreement with respect to or otherwise
deal with any of the Collateral as fully and completely as though
Agent were the absolute owner thereof for all purposes, and (G) to do,
at Agent's option and at Pledgor's expense, at any time, or from time
to time, all acts and things which Agent deems necessary to protect,
preserve or realize upon the Collateral and the Security Interest
granted herein and to effect the intent of this Stock Pledge
Agreement, all as fully and effectively as Pledgor might do.
(b) Other Powers. Pledgor further authorizes Agent, at any time
and from time to time (i) to execute, in connection with any sale provided
for hereunder, any endorsements, assignments or other instruments of
conveyance or transfer with respect to the Collateral and (ii) to the full
extent permitted by applicable law, to file one or more financing or
continuation statements, and amendments thereto, relative to all or any
part of the Collateral without the signature of Pledgor.
11. Agent May Perform. Upon the occurrence and during the
continuance of an Event of Default, Agent, without releasing Pledgor from
any obligation, covenant or condition hereof, itself may make any payment
or perform, or cause the performance of, any such obligation, covenant,
condition or agreement or any other action in such manner and to such
extent as Agent may deem necessary to protect, perfect or continue the
15
perfection of the Secured Parties' Security Interest in the Collateral.
Any costs or expenses incurred by Agent in connection with the foregoing
shall be governed by the Loan Instruments, constitute a part of the Debt
secured by the Parlin Security Documents, shall bear interest at a rate
equal to the Default Interest Rate and be payable by Pledgor upon demand by
Agent.
12. No Duty on Agent's Part; Limitation on Agent's Obligations.
(a) No Duty on Agent's Part. The powers conferred on Agent
hereunder are solely to protect Agent's and the other Secured Parties'
interests in the Collateral and shall not impose any duty upon Agent to
exercise any such powers. Agent shall be accountable only for amounts that
it actually receives as a result of the exercise of such powers.
(b) Limitations on Agent's Obligations. Anything herein to the
contrary notwithstanding, Pledgor shall remain liable with respect to the
Collateral, and with respect to this Stock Pledge Agreement and any other
Project Agreement to which it is a party to the extent set forth therein,
to perform all of its duties and obligations in connection therewith or
thereunder, to the same extent as if this Stock Pledge Agreement had not
been executed. The exercise by Agent of any of the rights or remedies
hereunder shall not release the Pledgor from any of its duties or
obligations under this Stock Pledge Agreement or any other Project
Agreement to which it is a party. All of the Collateral is hereby assigned
to Agent solely as security, and Agent shall have no duty, liability or
obligation whatsoever with respect to any of the Collateral, unless Agent
so elects in writing consistent with its rights under this Stock Pledge
Agreement.
13. Reasonable Care. Agent shall exercise the same degree of
care hereunder as it exercises in connection with similar transactions for
its own account. Agent shall be deemed to have exercised reasonable care
in the custody and preservation of the Collateral in its possession if the
Collateral is accorded treatment substantially equal to that which Agent
accords or would accord collateral held by Agent in similar transactions
for its own account. Without limiting the generality of the foregoing and
except as otherwise provided by applicable law, Agent shall not be required
to marshall any collateral, including, without limitation, the Collateral
subject to the Security Interest created hereby and any guaranties of the
Obligations, or to resort to any item of Collateral or guaranties in any
particular order; and all of Agent's rights hereunder and in respect of
such Collateral and guaranties shall be cumulative and in addition to all
other
16
rights, however existing or arising. To the extent that Pledgor lawfully
may, Pledgor hereby (a) agrees that it will not invoke any law relating to
the marshalling of collateral which might cause delay in or impede the
enforcement of Agent's rights under this Stock Pledge Agreement or under
any other instrument evidencing any of the Obligations or under which any
of the Obligations is outstanding or by which any of the Obligations is
secured or guaranteed and (b) irrevocably waives the benefits of all Laws
and any and all rights to equity of redemption or other rights of
redemption that it may have in equity or at law with respect to the
Collateral.
14. Role of Agent. The rights, duties, liabilities and
immunities of Agent and its appointment and replacement hereunder shall be
governed by Article 7 of the Credit Agreement.
15. Notices. All notices, demands, requests and other
communications required or permitted hereunder shall be in writing, and
shall be given and deemed to have been given in accordance with Section 8.1
of the Credit Agreement and the information set forth immediately below
shall apply to Pledgor:
If to Pledgor:
NRG Generating (U.S.) Inc.
1221 Nicollet Mall
Suite 700
Minneapolis, MN 55403
Attn: Leonard A. Bluhm
Tel: (612) 373-5305
Fax: (612) 373-5312
16. Subrogation, etc. Notwithstanding any payment or payments
made by Pledgor or the exercise by Agent of any of the remedies provided
under this Stock Pledge Agreement, the Credit Agreement or any other Loan
Instrument, until all amounts owing to the Secured Parties by Borrower for
or on account of the Obligations are indefeasibly paid in full, Pledgor
shall not be entitled to be subrogated to any of the rights of the Secured
Parties against Borrower or any collateral security or guaranty held by the
Secured Parties for the satisfaction of any of the Obligations, nor shall
Pledgor seek any reimbursement, indemnity, exoneration or contribution from
Borrower in respect of payments made by Pledgor hereunder. Notwithstanding
the foregoing, if any amount shall be paid to Pledgor on account of such
subrogation, reimbursement, indemnity, exoneration or contribution rights
at any time prior to such time as all Obligations are indefeasibly paid in
full, such amount shall be held by Pledgor in trust for the Secured
Parties, segregated from other funds of Pledgor, and shall be turned over
to Agent
17
for the benefit of the Secured Parties, in the exact form received by
Pledgor (duly endorsed by Pledgor to Agent for the benefit of the Secured
Parties, if required), to be applied against such amounts in such order as
Agent may elect.
17. Absence of Fiduciary Relation. Agent undertakes to perform
or to observe only such of its agreements and obligations as are
specifically set forth in this Stock Pledge Agreement or any other Loan
Instrument, and no implied agreements, covenant or obligations with respect
to Pledgor, any Affiliate of Pledgor or any other party to any of the
Project Agreements shall be read into this Stock Pledge Agreement against
Agent or any of the Secured Parties. Neither Agent nor any of the Secured
Parties in its and their capacity as such is a fiduciary of and shall not
owe or be deemed to owe any fiduciary duty to Pledgor or any Affiliate of
Pledgor or any other party to any of the Project Agreements, except as
otherwise specifically provided by applicable law.
18. Survival of Representations and Warranties. All agreements,
representations and warranties made herein shall survive the execution and
delivery of this Stock Pledge Agreement and the other Loan Instruments, and
shall be deemed to be material and to have been relied upon by Agent and
the Secured Parties, regardless of any investigation made by or on behalf
of Agent or the Secured Parties.
19. No Waiver; Cumulative Remedies. By exercising or failing to
exercise any of its rights, options or elections hereunder (without also
expressly waiving the same in writing), Agent, on behalf of the Secured
Parties, shall not be deemed to have waived any breach or default on the
part of Pledgor or to have released Pledgor from any of its obligations
secured hereby. No failure on the part of Agent to exercise, and no delay
in exercising (without also expressly waiving the same in writing) any
right, power or privilege hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise of any such right, power or privilege
preclude any other or further exercise thereof, or the exercise of any
other right, power or privilege. The remedies provided herein are
cumulative and not exclusive of any remedies provided by law. Agent,
acting on behalf of the Secured Parties, shall have all of the rights and
remedies granted under the Credit Agreement or any other Loan Instrument,
and available at law or in equity, and these same rights and remedies may
be pursued separately, successively or concurrently against Pledgor or any
Collateral, at the discretion of Agent with the consent of the Majority
Lenders.
20. Severability. Any provision of this Stock Pledge Agreement
which is prohibited, unenforceable or not authorized in any jurisdiction
shall, as to such jurisdiction, be
18
ineffective to the extent of such prohibition, unenforceability or non-
authorization, without invalidating the remaining provisions hereof or
affecting the validity, enforceability or legality of such provision in any
other jurisdiction. Where provisions of any law or regulation resulting in
such prohibition or unenforceability may be waived they are hereby waived
by Pledgor and Agent to the full extent permitted by law so that this Stock
Pledge Agreement shall be deemed a valid, binding agreement, and the
Security Interest created hereby shall constitute a continuing first lien
on and first perfected security interest in the Collateral, in each case
enforceable in accordance with its terms.
21. Exculpatory Provisions; Reliance by Agent.
(a) Exculpatory Provisions. Subject to Section 13 hereof,
neither Agent nor any Secured Party, nor any of their respective officers,
directors, employees, agents, attorneys-in-fact or affiliates shall be
liable to Pledgor for any action taken or omitted to be taken by it or them
under or in connection with this Stock Pledge Agreement or any other
Project Agreement, or responsible in any manner to any Person for any
recitals, statements, representations or warranties made by Pledgor or any
officer thereof contained in this Stock Pledge Agreement or any other
Project Agreement or in any certificate, report, statement or other
document referred to or provided for in, or received by Agent or any
Secured Party under or in connection with, this Stock Pledge Agreement or
any other Project Agreement or for the value, validity, effectiveness,
genuineness, enforceability or sufficiency of this Stock Pledge Agreement
or any other Project Agreement or for any failure of Pledgor to perform any
of the Obligations. Neither Agent nor any Secured Party shall be under any
obligation to any Person to ascertain or to inquire as to the observance or
performance of any of the agreements contained in, or conditions of, this
Stock Pledge Agreement or any other Project Agreement, or to inspect the
properties or records of Pledgor.
(b) Reliance by Agent. Agent shall be entitled to rely, and
shall be fully protected in relying, upon any note, writing, resolution,
notice, consent, certificate, affidavit, letter, cablegram, telegram,
telecopy, telex or teletype message, statement, order or other document or
conversation believed by it to be genuine and correct and to have been
signed, sent or made by the proper Person or Persons and upon advice and
statements of legal counsel (including, without limitation, counsel to
Pledgor), independent accountants and other experts selected by Agent.
Agent shall have no obligation to any Person to act or refrain from acting
or exercising any of its rights under this Stock Pledge Agreement.
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22. Amendment. This Stock Pledge Agreement may be amended,
modified or rescinded only by a writing expressly referring to this Stock
Pledge Agreement and signed by all the parties hereto.
23. Successors and Assigns. This Stock Pledge Agreement shall
be binding upon and inure to the benefit of Pledgor and Agent for the
benefit of the Secured Parties and their respective successors and
permitted assigns. In the event of any assignment or transfer by any
Secured Party of any instrument evidencing all or any part of the
Obligations, the holder of such instrument shall, subject to the Credit
Agreement, be entitled to the benefits of this Stock Pledge Agreement.
24. Number and Gender. Whenever used in this Stock Pledge
Agreement, the singular number shall include the plural and the plural the
singular, and the use of any gender shall be applicable to all genders.
25. Headings Descriptive. The captions or headings of the
several sections and subsections and the table of contents of this Stock
Pledge Agreement are inserted for convenience only and shall not in any way
affect the meaning or construction of any provision of this Stock Pledge
Agreement.
26. Governing Law; Jurisdiction; Waiver of Trial by Jury.
(a) Governing Law. This Stock Pledge Agreement shall be
governed by and construed in accordance with the internal laws of the State
of New York as to interpretation, enforcement, validity, construction,
effect and in all other respects, but excluding perfection, which shall be
governed by the laws of the jurisdiction relevant thereto.
(b) Jurisdiction. With respect to any legal action or
proceeding brought by Agent or the Secured Parties against Pledgor arising
out of or in connection with this Stock Pledge Agreement, Pledgor hereby
irrevocably (i) consents to the jurisdiction of any state or federal court
located in the State of New York, (ii) consents to the service of process
outside the territorial jurisdiction of said courts in any such action or
proceeding by mailing copies thereof by registered United States mail,
postage prepaid, to the address specified by Pledgor for the receipt of
notices if such address is outside such territorial jurisdiction and (iii)
waives any objection to the venue of the aforesaid courts. Pledgor hereby
irrevocably designates, appoints and empowers CT Corporation System, 1633
Broadway, New York, NY, 10019, as its designee, appointee and agent to
receive and accept service of any and all legal
20
process, summons, notices and documents arising out of this Stock Pledge
Agreement. Pledgor agrees it will at all times continuously maintain
either a registered office or an agent to receive service of process in the
State of New York on behalf of itself and its properties with respect to
this Stock Pledge Agreement.
(c) Waiver of Trial by Jury. WITH REGARD TO THIS STOCK PLEDGE
AGREEMENT, EACH OF THE PARTIES HEREBY WAIVES THE RIGHT TO A TRIAL BY JURY
IN ANY ACTION OR PROCEEDING AND FOR ANY COUNTERCLAIM THEREIN.
27. Continuing Pledge and Security Interest; Termination.
This Stock Pledge Agreement shall create a continuing assignment, pledge
and first priority Security Interest in the Collateral and shall remain in
full force and effect for the benefit of Agent and the Secured Parties
until all Obligations have been paid and performed in full. Upon the
happening of such event, the Security Interest granted hereby shall
terminate. Upon such termination, Agent shall, upon the request and at the
expense of Pledgor, execute and deliver to Pledgor such documents as
Pledgor shall reasonably request to evidence such termination or
expiration.
28. Payments Set Aside. To the extent that Pledgor or Borrower
or any other Person on behalf of Pledgor or Borrower makes a payment or
payments to Agent and/or any Secured Party, or Agent and/or any Secured
Party enforce the Security Interests or exercise their rights of set-off,
and such payment or payments or the proceeds of such enforcement or set-off
or any part thereof are subsequently invalidated, declared to be fraudulent
or preferential, set aside and/or required to be repaid to a trustee,
receiver or any other party under any bankruptcy law, state or federal law,
common law or equitable cause, then to the extent of such recovery, the
Obligations or any part thereof originally intended to be satisfied, and
this Stock Pledge Agreement and all Liens, rights and remedies therefor,
shall be revived and continued in full force and effect as if such payment
had not been made or such enforcement or set-off had not occurred.
21
29. Counterparts. This Stock Pledge Agreement may be executed
in several counterparts, each of which shall be an original, but all of
which together shall constitute one and the same agreement.
IN WITNESS WHEREOF, the parties have caused this Stock Pledge
Agreement to be duly executed as of the day and year first written above.
NRG GENERATING (U.S.) INC., as Pledgor
By:
Name: Leonard A. Bluhm
Title: President
CREDIT SUISSE, as Agent
By:
Name:
Title:
By:
Name:
Title:
Schedule A
to the
Stock Pledge Agreement
Pledged Shares
Issuer Class No. of Shares
NRG Generating Common 100
(Parlin)
Cogeneration, Inc.
Schedule B
to the
Stock Pledge Agreement
FINANCING STATEMENT FILINGS
1. Secretary of State, Delaware
2. Secretary of State, Minnesota
3. County Clerk, Hennepin County, Minnesota
4. Secretary of State, New Jersey
5. County Clerk, Middlesex County, New Jersey
6. Secretary of the Commonwealth, Pennsylvania
7. Prothanatary, Philadelphia County, Pennsylvania