Exhibit 10.26.8
SUBORDINATION AGREEMENT
in favor of
MEESPIERSON CAPITAL CORP.
December 10, 1997
SUBORDINATION AGREEMENT
THIS SUBORDINATION AGREEMENT dated as of December 10, 1997
among (1) MEESPIERSON CAPITAL CORP. (the "Agent"), (2) the banks and
financial institutions whose names and addresses are set out in
Schedule 1 (together, the "Senior Lenders", each a "Senior Lender"),
(3) NRG GENERATING (U.S.) INC. (the "Company") and (4) NRG ENERGY, INC.
(the "Subordinated Lender").
BACKGROUND
As a condition to the Senior Lenders providing a credit
facility in favor of the Company, the Subordinated Lender has agreed to
enter into this subordination agreement to provide for the
subordination of the Subordinated Indebtedness to the Senior
Indebtedness.
AGREEMENTS
NOW, THEREFORE, for good and valuable consideration, receipt
of which is hereby acknowledged, the parties hereto agree as follows:
1. Definitions.
1.1. General Terms. For purposes of this Agreement,
the following terms shall have the following meanings:
"Agreements" shall mean, collectively, the Credit
Agreement and the Subordinated Lending Agreement.
"Credit Agreement" shall mean that certain Credit
Agreement dated as of December 10, 1997 by and among, the Company, the
Agent and the Senior Lenders, as the same may be amended, modified or
supplemented from time to time.
"Company" shall mean NRG Generating (U.S.) Inc., a
Delaware corporation.
"Creditors" shall mean, collectively, the Agent, the
Senior Lenders and the Subordinated Lender, and their respective
successors and assigns.
"Distribution" shall mean any payment by the Company,
whether in cash, in kind, securities or any other property.
"Event" shall have the meaning set forth in Section
2.2(c) hereof.
"Subordinated Lender" shall mean NRG Energy, Inc. and
any other Person(s) at any time or in any manner acquiring any right or
interest in any of the Subordinated Indebtedness.
"Person" shall mean an individual, a partnership, a
corporation (including a business trust), a joint stock company, a
trust, a limited liability corporation, a limited liability
partnership, an unincorporated association, a joint venture or other
entity, or a government or any agency, instrumentality or political
subdivision thereof.
"Senior Indebtedness" shall mean all obligations of any
kind owed by the Company to the Senior Lenders and the Agent from time
to time under or pursuant to the Credit Agreement or any Note or
Guaranty issued thereunder including, without limitation, all principal
of and interest on the Advances made thereunder (including all interest
accruing after commencement of any case, proceeding or other action
relating to the bankruptcy, insolvency or reorganization of the
Company) charges, expenses, fees and other sums chargeable to the
Company by the Senior Lenders or the Agent, and reimbursement,
indemnity or other obligations payable to the Senior Lenders and the
Agent. Senior Indebtedness shall continue to constitute Senior
Indebtedness, notwithstanding the fact that such Senior Indebtedness or
any claim for such Senior Indebtedness is subordinated, avoided or
disallowed under the federal Bankruptcy Code or other applicable law.
Senior Indebtedness shall also include any indebtedness of the Company
incurred in connection with an extension, modification, amendment or
refinancing of the Credit Agreement.
"Senior Lender(s)" shall have the meaning set forth in
the introductory paragraph of this Agreement.
"Subordinated Indebtedness" shall mean all principal,
interest and other amounts payable or chargeable, contingent or
otherwise, in connection with the Subordinated Lending Agreement.
"Subordinated Lending Agreement" shall mean that certain
Supplemental Loan Agreement, dated as of December 10, 1997, by and
between the Subordinated Lender, the Company and NRGG Funding Inc.
("Funding") and all promissory notes, agreements, guaranties, documents
and instruments now or at any time
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hereafter executed and/or delivered by the Company with or in favor of
the Subordinated Lender in connection therewith or related thereto, as
all of the foregoing now exist or may hereafter be amended, modified,
supplemented, extended, renewed, restated or replaced.
1.2. Other Terms. Capitalized terms not otherwise
defined herein shall have the meanings given to them in the Credit
Agreement.
1.3. Certain Matters of Construction. The terms
"herein", "hereof" and "hereunder" and other words of similar import
refer to this Agreement as a whole and not to any particular section,
paragraph or subdivision. Any pronoun used shall be deemed to cover
all genders. Wherever appropriate in the context, terms used herein in
the singular also include the plural and vice versa. All references to
statutes and related regulations shall include any amendments of same
and any successor statutes and regulations. All references to any
instruments or agreements, including, without limitation, references to
any of the Credit Agreement or the Subordinated Lending Agreement shall
include any and all modifications or amendments thereto and any and all
extensions or renewals thereof in accordance with the provisions of
this Agreement.
2. Covenants. The Company and the Subordinated Lender
hereby covenant that until the Senior Indebtedness shall have been paid
in full and satisfied in cash and the Credit Agreement shall have been
terminated, all in accordance with the terms of the Credit Agreement,
each will comply with such of the following provisions as are
applicable to it:
2.1. Transfers. The Subordinated Lender covenants that
any transferee from it of any Subordinated Indebtedness shall, prior to
acquiring such interest, execute and deliver a counterpart of this
Subordination Agreement to each other party hereto.
2.2. Subordination Provisions. Notwithstanding any
other provision of the Subordinated Indebtedness to the contrary, any
Distribution with respect to the Subordinated Indebtedness is and shall
be expressly junior and subordinated in right of payment to all amounts
due and owing upon all Senior Indebtedness outstanding from time to
time to the extent and on the terms and conditions set forth herein.
Notwithstanding anything herein to the contrary, this Agreement shall
in no way impair or otherwise affect: (i) the obligations of Funding to
the Subordinated Lender under, or the rights and remedies of the
Subordinated Lender (including, without limitation, the right of the
Subordinated Lender to receive payments of any nature from Funding) in
accordance with, the terms of the Subordinated Lending Agreement; (ii)
subject to the waiver provisions of Section 8.02 of the Subordinated
Lending Agreement, the obligation
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of the Company to return to Funding any payments of any nature received
by the Company in violation of the terms of the Subordinated Lending
Agreement, to which the Senior Lenders hereby consent; ; or (iii) the
obligations of Funding and NRG Morris Inc. (collectively, the
"Pledgors") to the Subordinated Lender under the Pledge and Security
Agreement dated as of December __, 1997 pursuant to which the Pledgors
grant to the Subordinated Lender a security interest in all of the
outstanding membership interests of NRG (Morris) Cogen LLC, all
proceeds thereof and certain other related collateral (collectively,
the "Collateral") or the rights and remedies of the Subordinated Lender
thereunder, including without limitation, its right to receive payments
of any nature relating to such Collateral.
(a) Payments. The Company shall make no Distribution
on the Subordinated Indebtedness until such time as the Senior
Indebtedness shall have been paid in full in cash and the Credit
Agreement shall have been irrevocably terminated; provided, however, so
long as no Event of Default shall have occurred and be continuing under
the Credit Agreement, the Company may pay and the Subordinated Lender
may receive and retain regularly scheduled payments of principal and
interest on the Subordinated Indebtedness as set forth on the Effective
Date in the Subordinated Lending Agreement. No optional redemptions or
mandatory redemptions of Subordinated Indebtedness shall be permitted
without the express written consent of the Senior Lender.
Following the occurrence of an Event of Default, upon
and after receipt by the Company and the Subordinated Lender of written
notice of such Event of Default from the Agent (such notice, the
"Default Notice"), the Company shall make no Distribution on the
Subordinated Indebtedness and the Subordinated Lender shall not be
entitled to receive or retain any such Distribution in respect of the
Subordinated Indebtedness; provided, further, that notwithstanding the
foregoing restriction, the Company may pay and the Subordinated Lender
shall be entitled to receive and retain any principal or interest
payment which shall have become due and payable (on a non-accelerated
basis) on the earliest to occur of (x) the date on which all such
Events of Defaults set forth in the Default Notice shall have been
cured or waived, and (y) payment in full in cash of all Senior
Indebtedness (except for claims which were not in existence at the time
of termination of the Credit Agreement and repayment in full of the
Senior Indebtedness) and the termination of the Credit Agreement. Only
one Default Notice may be sent within any 360-day period with respect
to any Event of Default which was in existence at the time the Default
Notice was sent.
(b) Limitation on Acceleration. During any period described
in Section 2.2 (a) hereof in which a Distribution is not permitted to
be made on Subordinated Indebtedness (any such period, a "Non-Payment
Period"), the Subordinated Lender shall
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not be entitled to accelerate the maturity of the Subordinated
Indebtedness, exercise any remedies or commence any action or
proceeding to recover any amounts due or to become due with respect to
Subordinated Indebtedness, provided, however, the foregoing limitation
on acceleration or exercise of any remedies shall not be applicable
following (x) the occurrence of an Event (as to which Section 2.2 (c)
shall apply) or (y) following the maturity or acceleration of all
Senior Indebtedness; provided, further, the prohibition against
exercise of remedies shall not prohibit the Subordinated Lender from
exercising equitable remedies for defaults under the Subordinated
Lending Agreement which are not payment defaults so long as such
equitable remedies do not result in acceleration of the Subordinated
Indebtedness or payment of any Subordinated Indebtedness.
(c) Prior Payment of Senior Indebtedness in Bankruptcy,
etc. In the event of any insolvency or bankruptcy proceedings relative
to the Company or its property, or any receivership, liquidation,
reorganization or other similar proceedings in connection therewith,
or, in the event of any proceedings for voluntary liquidation,
dissolution or winding-up of the Company or distribution or marshalling
of its assets or any composition with creditors of the Company, whether
or not involving insolvency or bankruptcy, or the appointment of a
receiver, intervenor or conservator of, or trustee, custodian or
similar officer for the Company or any substantial part of its property
(each individually or collectively, an "Event"), then all Senior
Indebtedness shall be paid in full and satisfied in cash and the Credit
Agreement terminated before any Distribution shall be made on account
of any Subordinated Indebtedness. Any such Distribution which would,
but for the provisions hereof, be payable or deliverable in respect of
the Subordinated Indebtedness, shall be paid or delivered directly to
the Agent for the benefit of the Senior Lenders until amounts owing
upon Senior Indebtedness shall have been paid in full in cash and the
Credit Agreement has been irrevocably terminated.
(d) Acceleration. In the event all Senior Indebtedness
becomes due and payable, whether by acceleration, maturity or
otherwise, no Distribution shall thereafter be made on account of the
Subordinated Indebtedness until all Senior Indebtedness shall be paid
in full in cash and the Credit Agreement is terminated.
(e) Power of Attorney. To enable the Agent on behalf
of itself and the Senior Lenders to assert and enforce its rights
hereunder in any proceeding referred to in Section 2.2(c) or upon the
happening of any Event, the Agent or any person whom it may designate
is hereby irrevocably appointed attorney in fact for the Subordinated
Lender with full power to act in the place and stead of the
Subordinated Lender to present and file such proofs of claim against
the Company on account of all or any part of the Subordinated
Indebtedness as the Agent may deem advisable in the event the
Subordinated Lender fails to do so prior to 30 days prior to the
expiration of the time
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to file such claim or claims and to receive and collect any and all
dividends or other payments made thereon and to apply the same on
account of Senior Indebtedness to the extent provided for under this
Agreement. The Subordinated Lender will execute and deliver to the
Agent such instruments as may be required by the Agent to enforce any
and all Subordinated Indebtedness, to effectuate the aforesaid power of
attorney and to effect collection of any and all dividends or other
payments which may be made at any time on account thereof, and the
Subordinated Lender hereby irrevocably appoints the Agent as its lawful
attorney and agent to execute financing statements on behalf of the
Subordinated Lender and hereby further authorizes the Agent to file
such financing statements in any appropriate public office.
(f) Payments Held in Trust. Should any Distribution or
the proceeds thereof, in respect of the Subordinated Indebtedness, be
collected or received by the Subordinated Lender or any Affiliate (as
such term is defined in Rule 405 of Regulation C adopted by the
Securities and Exchange Commission pursuant to the Securities Act of
1933) of the Subordinated Lender at a time when the Subordinated Lender
is not permitted to receive any such Distribution or proceeds thereof
(including if same is collected or received when there is or would be
after giving effect to such payment an Event of Default and the Agent
thereafter gives a Default Notice with respect to such Default), then
the Subordinated Lender will forthwith deliver, or cause to be
delivered, the same to the Agent in precisely the form held by the
Subordinated Lender (except for any necessary endorsement) and until so
delivered, the same shall be held in trust by the Subordinated Lender,
or any such Affiliate, as the property of the Agent and the Senior
Lenders and shall not be commingled with other property of the
Subordinated Lender or any such Affiliate.
(g) Subrogation. Subject to the prior payment in full
in cash of the Senior Indebtedness and the termination of the Credit
Agreement, to the extent that the Agent for the benefit of itself and
the Senior Lenders has received any Distribution on the Senior
Indebtedness which, but for this Agreement, would have been applied to
the Subordinated Indebtedness, the Subordinated Lender shall be
subrogated to the then or thereafter rights of the Agent and the Senior
Lenders including, without limitation, the right to receive any
Distribution made on Senior Indebtedness until the principal of,
interest on and other charges due under the Subordinated Indebtedness
shall be paid in full; and, for the purposes of such subrogation, no
Distribution to the Agent for the benefit of the Senior Lenders to
which the Subordinated Lenders would be entitled except for the
provisions of this Agreement shall, as between the Company, its
creditors (other than the Agent and the Senior Lenders) and the
Subordinated Lenders, be deemed to be a Distribution by the Company to
or on account of Senior Indebtedness, it being understood that the
provisions hereof are and are intended solely for the purpose of
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defining the relative rights of the Subordinated Lender on the one
hand, and the Agent and the Senior Lenders on the other hand.
(h) Scope of Subordination. The provisions of this
Agreement are solely to define the relative rights of the Subordinated
Lender and the Agent and the Senior Lenders. Nothing in this Agreement
shall impair, as between the Company and the Subordinated Lender the
unconditional and absolute obligation of the Company to punctually pay
the principal, interest and any other amounts and obligations owing
under the Subordinated Lending Agreement in accordance with the terms
thereof, subject to the rights of the Agent and the Senior Lenders
under this Agreement.
3. Miscellaneous.
3.1. Provisions of Subordinated Note. From and after
the date hereof, the Company and the Subordinated Lender shall cause
each promissory note or other document evidencing the Subordinated
Indebtedness to contain a provision to the following effect:
"This Note is subject to the Subordination Agreement, dated
as of December __, 1997, among the Maker, the Payee and
MeesPierson Capital Corporation under which this Note and the
Maker's obligations hereunder are subordinated in the manner
set forth therein to the prior payment of certain obligations
to the holders of Senior Indebtedness as defined therein."
Proof of compliance with the foregoing shall be promptly
given to the Agent.
3.2. Additional Agreements. In the event that the
Senior Indebtedness is refinanced in full, the Subordinated Lender
agrees at the request of such refinancing party to enter into a
subordination agreement on terms identical to those contained in this
Subordination Agreement.
3.3. Survival of Rights. The right of Agent or any
Senior Lender to enforce the provisions of this Agreement shall not be
prejudiced or impaired by any act or omitted act of the Company, the
Agent or any Senior Lender including forbearance, waiver, consent,
compromise, amendment, extension, renewal, or taking or release of
security in respect of any Senior Indebtedness or noncompliance by the
Company with such provisions, regardless of the actual or imputed
knowledge of the Agent or such Senior Lender.
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3.4. Receipt of Agreements. The Subordinated Lender
hereby acknowledges that it has delivered to the Agent a correct and
complete copy of the Subordinated Lending Agreement as in effect on the
date hereof. The Agent hereby acknowledges that it has delivered to
the Subordinated Lender a correct and complete copy of the Credit
Agreement as in effect on the date hereof.
3.5. No Amendment of Subordinated Lending Agreement.
So long as the Credit Agreement remains in effect, neither the Company
nor the Subordinated Lender shall enter into any amendment to or
modification of the Subordinated Lending Agreement which relates to or
affects the principal amount, interest rate, payment terms, or any
other material covenant or agreement of the Company thereunder or in
respect thereof (including, without limitation, Section 8.02 thereof),
without the prior written consent of the Agent and the Senior Lenders.
3.6. Amendments to Credit Agreement. Nothing contained
in this Agreement, or in any other agreement or instrument binding upon
any of the parties hereto, shall in any manner limit or restrict the
ability of the Agent and the Senior Lenders from increasing or changing
the terms of the Advances under the Credit Agreement, or to otherwise
waive, amend or modify the terms and conditions of the Credit
Agreement, in such manner as the Agent, the Senior Lenders and the
Company shall mutually determine. The Subordinated Lender hereby
consents to any and all such waivers, amendments, modifications and
compromises, and any other renewals, extensions, indulgences, releases
of collateral or other accommodations granted by the Agent and the
Senior Lenders to the Company from time to time, and agrees that none
of such actions shall in any manner affect or impair the subordination
established by this Subordination Agreement in respect of the
Subordinated Indebtedness.
3.7. Notice of Default and Certain Events. The Agent,
the Senior Lenders and the Subordinated Lender shall undertake in good
faith to notify the other of the occurrence of any of the following as
applicable:
(a) the obtaining of actual knowledge of the
occurrence of any default under the Subordinated Lending Agreement;
(b) the acceleration of any Senior Indebtedness by
the Agent and the Senior Lenders or of any Subordinated Indebtedness by
the Subordinated Lender;
(c) the granting by the Agent and the Senior
Lenders of any waiver of any Event of Default under the Credit
Agreement or the granting by the
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Subordinated Lender of any waiver of any "default" or "event of
default" under the Subordinated Lending Agreement; or
(d) the payment in full by the Company (whether as
a result of refinancing or otherwise) of all Senior Indebtedness.
The failure of any party to give such notice shall not
affect the subordination of the Subordinated Indebtedness as provided
in this Subordination Agreement.
3.8. Notices. Any notice or other communication
required or permitted pursuant to this Subordination Agreement shall be
deemed given (a) when personally delivered to any officer of the party
to whom it is addressed, (b) on the earlier of actual receipt thereof
or three (3) days following posting thereof by certified or registered
mail, postage prepaid, or (c) upon actual receipt thereof when sent by
a recognized overnight delivery service or (d) upon actual receipt
thereof when sent by telecopier to the number set forth below with
telephone communication confirming receipt and subsequently confirmed
by registered, certified or overnight mail to the address set forth
below, in each case addressed to each party at its address set forth
below or at such other address as has been furnished in writing by a
party to the other by like notice:
If to the Agent and the
Senior Lenders: MeesPierson Capital Corporation
445 Park Avenue
New York, New York 10022
Attention: Hendrik Vroege
Telephone: 212-801-0200
Telecopier: 212-801-0420
If to the Subordinated
Lender: NRG Energy, Inc.
1221 Nicollet Mall, Suite 610
Minneapolis, Minnesota 55403
Attention: Vice President-CFO
Telephone: 612-373-5300
Telecopier: 612-373-8833
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1221 Nicollet Mall, Suite 610
Minneapolis, Minnesota 55403
Attention: Vice President-CFO
Telephone: 612-373-5300
Telecopier: 612-373-8833
3.9. Books and Records. The Subordinated Lender shall
(a) make notations on the books of the Subordinated Lender beside all
accounts or on other statements evidencing or recording any
Subordinated Indebtedness to the effect that such Subordinated
Indebtedness is subject to the provisions of this Agreement and
(b) furnish the Agent, upon reasonable request from time to time, a
statement of the account between the Subordinated Lender and the
Company.
3.10 Binding Effect; Other. This Subordination Agreement
shall be a continuing agreement, shall be binding upon and shall inure
to the benefit of the parties hereto from time to time and their
respective successors and assigns, shall be irrevocable and shall
remain in full force and effect until the Senior Indebtedness shall
have been satisfied or paid in full in cash and the Credit Agreement
shall have terminated, but shall continue to be effective, or be
reinstated, as the case may be, if at any time payment, or any part
thereof, of any amount paid by or on behalf of the Company with regard
to the Senior Indebtedness is rescinded or must otherwise be restored
or returned upon or as a result of the occurrence of an Event, or
otherwise, all as though such payments had not been made. If any
payment to the Subordinated Lender is turned over to the Agent and/or
the Senior Lenders pursuant to the provisions of this Subordination
Agreement and such payment is returned upon or as a result of the
occurrence of an Event, the Agent shall reverse the application of such
payments to the Senior Indebtedness and return such payment (without
interest) to the Subordinated Lender. No action which the Agent, any
Senior Lender or the Company may take or refrain from taking with
respect to the Senior Indebtedness, including any amendments thereto,
shall affect the provisions of this Subordination Agreement or the
obligations of the Subordinated Lender hereunder. Any waiver or
amendment hereunder must be evidenced by a signed writing of the party
to be bound thereby, and shall only be effective in the specific
instance. This Subordination Agreement shall be governed by and
construed in accordance with the laws of the State of New York. The
headings in this Subordination Agreement are for convenience of
reference only, and shall not alter or otherwise affect the meaning
hereof.
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4. Representations and Warranties.
(a) The Subordinated Lender represents and warrants to the
Agent and the Senior Lenders that the Subordinated Lender is the holder
of the Subordinated Indebtedness. The Subordinated Lender agrees that
it shall not (i) assign or transfer any of the Subordinated
Indebtedness without (x) prior notice being given to the Agent and
(y) such assignment or transfer being made expressly subject to the
terms of this Subordination Agreement, (ii) exercise any right of set-
off or convert any Subordinated Indebtedness to equity, in either event
without the written consent of the Agent and the Senior Lenders. The
Subordinated Lender further warrants to the Agent and the Senior
Lenders that it has full right, power and authority to enter into this
Subordination Agreement and, to the extent it is an agent or trustee
for other parties, that this Subordination Agreement shall fully bind
all such other parties.
(b) Each Senior Lender severally represents and warrants to
the Subordinated Lender that it is the holder of Senior Indebtedness.
The Agent and each Senior Lender further warrants to the Subordinated
Lender that it has full right, power and authority to enter into this
Subordination Agreement and, to the extent the Senior Lender is an
agent or trustee for other parties, that this Subordination Agreement
shall fully bind all such other parties.
5. Proceedings. ANY JUDICIAL PROCEEDING BROUGHT BY OR
AGAINST ANY SUBORDINATED LENDER WITH RESPECT TO THIS OR ANY RELATED
AGREEMENT MAY BE BROUGHT IN ANY COURT OF COMPETENT JURISDICTION IN THE
SUPREME COURT OF THE STATE OF NEW YORK, ANY FEDERAL DISTRICT COURT
WITHIN THE STATE OF NEW YORK, OR ELSEWHERE AND, BY EXECUTION AND
DELIVERY OF THIS AGREEMENT THE SUBORDINATED LENDER, THE AGENT, EACH
SENIOR LENDER AND THE COMPANY ACCEPT FOR THEMSELVES AND IN CONNECTION
WITH THEIR PROPERTIES, GENERALLY AND UNCONDITIONALLY, THE NON-EXCLUSIVE
JURISDICTION OF THE AFORESAID COURTS, AND IRREVOCABLY AGREE TO BE BOUND
BY ANY FINAL JUDGMENT RENDERED THEREBY IN CONNECTION WITH THIS
AGREEMENT. NOTHING HEREIN SHALL AFFECT THE RIGHT TO SERVE PROCESS IN
ANY MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHTS OF THE AGENT AND
THE SENIOR LENDERS TO BRING PROCEEDINGS AGAINST THE SUBORDINATED LENDER
IN ANY COURTS OF ANY OTHER JURISDICTION. ANY JUDICIAL PROCEEDING BY
THE SUBORDINATED LENDER AGAINST THE AGENT AND/OR ANY SENIOR LENDER
INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER OR CLAIM IN ANY WAY
ARISING OUT OF, RELATED TO OR
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CONNECTED WITH THIS AGREEMENT OR ANY RELATED AGREEMENT, SHALL BE
BROUGHT ONLY IN A COURT LOCATED IN THE CITY OF NEW YORK, STATE OF NEW
YORK. THE SUBORDINATED LENDER WAIVES ANY OBJECTION TO JURISDICTION AND
VENUE OF ANY ACTION INSTITUTED HEREUNDER AND SHALL NOT ASSERT ANY
DEFENSE BASED ON LACK OF JURISDICTION OR VENUE OR BASED UPON FORUM NON
CONVENIENS.
6. Waiver Of Jury Trial. EACH CREDITOR HEREBY EXPRESSLY
WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE
OF ACTION (A) ARISING UNDER THIS AGREEMENT OR ANY OTHER INSTRUMENT,
DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH, OR
(B) IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS
OF ANY CREDITOR OR ANY OF THEM WITH RESPECT TO THIS AGREEMENT OR ANY
OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED BY THEM
IN CONNECTION HEREWITH, OR THE TRANSACTIONS RELATED HERETO OR THERETO,
IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER
SOUNDING IN CONTRACT OR TORT OR OTHERWISE AND EACH CREDITOR HEREBY
AGREES AND CONSENTS THAT ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION
SHALL BE DECIDED BY COURT TRIAL WITHOUT JURY, AND THAT EITHER OF THEM
MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH ANY
COURT AS WRITTEN EVIDENCE OF THEIR CONSENT TO THE WAIVER OF THEIR RIGHT
TO TRIAL BY JURY.
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IN WITNESS WHEREOF, the undersigned have entered into this
Agreement as of this 10th day of December, 1997.
MEESPIERSON CAPITAL CORP.,
as Agent and Lender
By:/s/ Hendrik J. Vroege
Name: Hendrik J. Vroege
Title: Vice President
By:/s/ John O'Connor
Name: John O'Connor
Title: Senior Vice President
NRG ENERGY, INC.
By:/s/ David H. Peterson
Name: David H. Peterson
Title: President & CEO
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COMPANY'S ACKNOWLEDGMENT
The undersigned hereby acknowledges and agrees to the
foregoing Subordination Agreement. The undersigned agrees to be bound
by the terms and provisions thereof as they relate to the relative
rights of the Creditors with respect to each other. However, nothing
therein shall be deemed to amend, modify, supersede or otherwise alter
the terms of the respective agreements between the undersigned and each
Creditor. The undersigned further agrees that the Subordination
Agreement is solely for the benefit of the Creditors and shall not give
the undersigned, its successors and assigns, or any other person, any
rights vis-a-vis any Creditor.
NRG GENERATING (U.S.) INC.
By:/s/ Timothy P. Hunstad
Name: Timothy P. Hunstad
Title: Vice President-CFO
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