Exhibit 10.27.12
SUBORDINATION AGREEMENT
SUBORDINATION AGREEMENT (this "Agreement"), dated as
of December 12, 1997, between NRG ENERGY, INC., a Delaware
corporation ("NRG Energy"), and THE CHASE MANHATTAN BANK as
Collateral Agent (as defined below) for the Secured Parties (as
defined below) under the Credit Agreement (as defined below).
RECITALS
WHEREAS, NRG (Morris) Cogen, LLC (the "Borrower")
entered into the Construction and Term Loan Agreement, dated as
of September 15, 1997 (the "Credit Agreement") with the banks
party thereto (the "Banks"), The Chase Manhattan Bank as agent
for the Banks (in such capacity, the "Agent Bank"), and The
Chase Manhattan Bank as collateral agent for the Banks (in such
capacity, the "Collateral Agent" and, together with the Banks
and the Agent Bank, the "Secured Parties"), pursuant to which
the Banks will make construction and term loans and extend
other credit to the Borrower for the purpose of financing the
cost of developing, constructing, starting-up and operating an
approximately 117 megawatt gas-fired cogeneration facility in
Morris, Illinois (the "Project");
WHEREAS, as conditions precedent to the Banks, the
Agent Bank and the Collateral Agent entering into the Credit
Agreement and the Banks extending credit to the Borrower
thereunder, (i) NRG Energy executed and delivered the Equity
Commitment Agreement, dated as of September 15, 1997 (the
"Equity Commitment Agreement"), in favor of the Borrower and
the Collateral Agent, pursuant to which NRG Energy agreed to
make equity contributions to the Borrower from time to time,
and (ii) NRG Energy executed and delivered the Pledge and
Security Agreement, dated as of September 15, 1997, in favor of
the Collateral Agent, pursuant to which NRG Energy granted a
security interest in its membership interests in the Borrower
(and related assets) to the Collateral Agent;
WHEREAS, pursuant to the Membership Interest Purchase
Agreement, dated as of the date hereof (the "Purchase
Agreement"), NRG Energy is transferring all of its equity
interests in the Borrower to NRGG Funding Inc. ("NRGG
Funding");
WHEREAS, in connection with the execution and
delivery of the Purchase Agreement, and as conditions precedent
to the Banks continuing to extend credit to the Borrower under
the Credit Agreement, (i) NRGG Funding is assuming all of NRG
Energy's obligations under the Equity Commitment Agreement
pursuant to an Assignment and Assumption Agreement, dated as of
the date hereof (the "Assignment Agreement"), between NRG
Energy and NRGG Funding, and (ii) NRGG Funding and NRG Morris
Inc. ("NRGMI") are executing and delivering a Pledge and
Security Agreement, dated as of the
date hereof (the "Senior Pledge Agreement"), pursuant to which
NRGG Funding and NRGMI are granting a security interest in
their membership interests in the Borrower (and related assets)
to the Collateral Agent;
WHEREAS, pursuant to the Supplemental Loan Agreement,
dated as of the date hereof (the "NRGG Loan Agreement"),
between NRG Energy, NRGG Funding and NRG Generating (U.S.) Inc.
("NRG Generating"), NRG Energy is making a loan to NRGG Funding
to permit NRGG Funding to make its required equity contribution
under the Equity Commitment Agreement;
WHEREAS, to secure NRGG Funding's obligations under the NRGG
Loan Agreement, NRGG Funding and NRGMI are granting a security
interest in their membership interests in the Borrower (and
related assets) to NRG Energy pursuant to the Subordinated
Pledge and Security Agreement, dated as of the date hereof (the
"Subordinated Pledge Agreement"), between NRGG Funding, NRGMI
and NRG Energy;
WHEREAS, NRG Energy has agreed to subordinate its
claims under the NRGG Loan Agreement and the Subordinated
Pledge Agreement to the claims of the Secured Parties under the
Credit Agreement, the Senior Pledge Agreement and the other
Financing Documents with respect to the Shared Collateral (as
defined herein);
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and
for other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereto
agree as follows:
1. Defined Terms. (a) Capitalized terms used but
not defined herein shall have the meanings given to such terms
in the Credit Agreement.
(b) All terms defined in the foregoing Recitals
shall have the meanings given to such terms therein.
(c) The following terms shall have the following
meanings:
"NRGG Loan Note" shall mean the Note, dated December
10, 1997, executed by NRGG Funding and NRG Generating in favor
of NRG Energy evidencing the indebtedness incurred under the
NRGG Loan Agreement.
"Proceeding" shall mean any (a) insolvency,
bankruptcy, receivership, liquidation, reorganization,
readjustment, composition or other similar proceeding relating
to NRGG Funding or NRGMI, its property or its creditors as
such, (b) proceeding for any liquidation, dissolution or other
winding-up of NRGG Funding or NRGMI, voluntary or
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involuntary, whether or not involving insolvency or bankruptcy
proceedings, (c) assignment for the benefit of creditors of
NRGG Funding or NRGMI or (d) other marshalling of the assets of
NRGG Funding or NRGMI, in each case, under the law of the
United States or any other jurisdiction.
"Senior Agreements" shall mean, collectively, the
Senior Pledge Agree ment, the other Financing Documents, all
Secured Interest Rate Protection Agreements and all other
agreements or instruments evidencing any Senior Claim.
"Senior Claims" shall mean all Secured Obligations
(as defined in the Senior Pledge Agreement).
"Shared Collateral" shall mean all collateral in
which (i) a security interest was granted or purported to be
granted to the Collateral Agent under the Senior Pledge
Agreement and (ii) a security interest was granted or purported
to be granted to NRG Energy under the Subordinated Pledge
Agreement.
"Subordinated Agreements" shall mean, collectively,
the NRGG Loan Agreement, the NRGG Loan Note, the Subordinated
Pledge Agreement and all other agreements or instruments
evidencing any Subordinated Claim.
"Subordinated Claims" shall mean all Secured
Obligations (as defined in the Subordinated Pledge Agreement).
2. Subordination Generally. (a) With respect to
the Shared Collateral, the Senior Claims shall be and at all
times remain senior, paramount and prior in right of payment
and enforcement to the Subordinated Claims and, notwithstanding
(i) any other agreement or instrument, (b) the actual time,
order or method of creation, attachment or perfection of the
respective Liens on and security interests in the Shared
Collateral granted to NRG Energy or the Collateral Agent, as
the case may be, (ii) the date or manner of the filing of
financing statements with respect thereto, (iii) the time or
order of taking possession of any Shared Collateral or (iv) the
giving or failure to give notice of the acquisition or expected
acquisition of purchase money or other security interests in
the Shared Collateral. Notwithstanding any provision of the
Uniform Commercial Code governing perfection thereof, or any
other applicable Law or decision, as between NRG Energy and the
Collateral Agent the Lien on and security interest in the
Shared Collateral held at any time by NRG Energy, and any other
rights NRG Energy may have with respect to the Shared
Collateral, shall be fully subject and subordinate to the
Collateral Agent's Lien on and security interest in the Shared
Collateral to the full extent of the Senior Claims and to all
of the rights of the Secured Parties in the Shared Collateral
with respect to the Senior Claims as set forth in the Credit
Agreement and the other Financing Documents and otherwise
available to the Secured Parties at law or in equity.
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(b) In furtherance of the foregoing, NRG Energy
shall not take or cause to be taken any action, the purpose or
effect of which would give NRG Energy a preference or priority
over the Secured Parties with respect to any Shared Collateral.
In accordance with the terms of the Financing Documents, the
Secured Parties shall have the right (but not the obligation)
hereunder at all times and from time to time to apply all or
any part of the Shared Collateral, including the proceeds
thereof and all collections and remittances thereof (including,
without limitation, insurance proceeds), to the repayment of
Senior Claims and NRG Energy shall not have any right, as
against any of the Secured Parties or any other Person, to
receive all or any portion of the Shared Collateral until the
Senior Claims are indefeasibly paid and satisfied in full in
cash or cash equivalents and all Commitments have been
terminated.
3. Payments on Subordinated Claims. So long as no
Default or Event of Default shall have occurred and be
continuing or would occur as a result of such payments, a
holder of a Subordinated Claim may receive payments on such
Subordinated Claim with amounts received by the obligor on such
Subordinated Claim as Distributions from the Borrower.
4. Subordination in a Bankruptcy Proceeding. In
the event of any Proceeding:
(a) All Senior Claims shall first be
indefeasibly paid and satisfied in full in cash or cash
equivalents before any payment (including any payment which
may be payable to the holder of any Subordinated Claim by
reason of the subordination of any indebtedness or other
obligation to or guarantee of such Subordinated Claim) or
distribution, whether in cash, securities or other property,
shall be made to any holder of any Subordinated Claim on
account of such Subordinated Claim;
(b) Any payment (including any payment which
may be payable to the holder of any Subordinated Claim by
reason of the subordination of any indebtedness or other
obligation to or guarantee of such Subordinated Claim) or
distribution of any kind or character, whether in cash,
securities or other property which would otherwise (but for
this Agreement) be payable or deliverable in respect of any
Subordinated Claim shall be paid or delivered directly to the
holders of Senior Claims for application in payment of the
Senior Claims in accordance with the priorities then existing
among such holders until all Senior Claims have been
indefeasibly paid and satisfied in full in cash or cash
equivalents;
(c) The holders of Senior Claims shall be
authorized and empowered (but shall not be obligated) (i) to
demand, sue for, collect and receive any payment or
distribution made in respect of Subordinated Claims in such
Proceeding and give acquittance therefor, (ii) to file claims
and proofs of claims on behalf of holders of Subordinated
Claims in such Proceeding, (iii) to vote all amounts owing
with respect to the Subordinated Claims in their sole
discretion in connection with any resolution, ar-
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rangement, plan of reorganization, compromise, settlement or
extension and to take all such other action (including,
without limitation, the right to participate in any
composition of creditors and the right to vote at creditors'
meetings for the election of trustees, acceptance of plans and
otherwise), in their own names or in the names of the holders
of Subordinated Claims or otherwise, as the holders of Senior
Claims may deem necessary or advisable for the enforcement of
this Agreement; and
(d) Each holder of Subordinated Claims shall
duly and promptly take such action as may be requested at any
time and from time to time by any of the holders of Senior
Claims to collect hereunder and to file appropriate proofs of
claim in respect thereof and to execute and deliver such
powers of attorney, assignments or other instruments as may be
requested by any of the holders of Senior Claims in order to
enable the holders of Senior Claims to enforce any and all
claims upon or in respect of the Subordinated Agreements and
to collect and receive any and all payments or distributions
which may be payable or deliverable at any time upon or in
respect of any Subordinated Claim.
5. Subordination Upon an Event of Default. Upon
the occurrence of a Default or an Event of Default, or any
event that constitutes a "default" or an "event of default"
under any Financing Document (other than in circumstances when
the provisions of Section 4 of this Agreement are applicable),
then, unless and until such Default, Event of Default or other
event, as the case may be, shall have been remedied or waived
or shall have ceased to exist, no direct or indirect payment
(in cash, property or securities or by set-off or otherwise),
including any payment to the holder of any Subordinated Claim
by reason of the subordination of any indebtedness or other
obligation to or any guarantee of such Subordinated Claim,
shall be made or agreed to be made on account of any
Subordinated Claim, or as a sinking fund for any Subordinated
Claim, or in respect of any redemption, retirement, purchase
or other acquisition of any Subordinated Claim.
6. Turnover of Improper Payments. If any payment
or distribution of any character, whether in cash, securities
or other property, or any security, shall be received by any
holder of any Subordinated Claim in contravention of any of
the terms hereof and before all Senior Claims have been
indefeasibly paid in full in cash or cash equivalents and all
Commitments have been terminated, such payment or distribution
or security shall be received in trust for the benefit of, and
shall forthwith be paid over or delivered and transferred to,
the holders of Senior Claims at the time outstanding in
accordance with the priorities then existing among such
holders for application to the payment of all Senior Claims
remaining unpaid, to the extent necessary to pay all such
Senior Claims in full. In the event of the failure of any
holder of any Subordinated Claim to endorse or assign any such
payment, distribution or security, each holder of any Senior
Claim is hereby irrevocably authorized to endorse or assign
the same.
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7. Limitation on Actions. (a) Each holder of a
Subordinated Claim (or any instrument evidencing the same) by
acceptance thereof agrees and undertakes that, without the
prior written consent of the Collateral Agent (as directed by
the Agent Bank, acting in accordance with the Credit
Agreement), prior to the date on which all Senior Claims shall
have been indefeasibly paid in full in cash or cash
equivalents and all Commitments shall have been terminated:
(i) such holder will not take, obtain or hold
(or permit anyone acting on its behalf to take, obtain or
hold) any assets of NRGG Funding or NRGMI, whether as a
result of any administrative, legal or equitable action,
or otherwise, in violation of this Agreement;
(ii) such holder will not accelerate payment of
such Subordinated Claim or otherwise require such
Subordinated Claim to be paid prior to its stated or
scheduled maturity date;
(iii) such holder will not commence, prosecute
or participate in (A) any administrative, legal or
equitable action against NRGG Funding or NRGMI relating
to any Subordinated Claim, including, without limitation,
any Proceeding, (B) any other administrative, legal or
equitable action relating to any Subordinated Claim or
(C) any action to enforce or collect any judgment
obtained in respect of, or to enforce or exercise
remedies arising under or pursuant to any Lien or other
security interest securing, any Subordinated Claim; and
(iv) such holder shall not in any manner
foreclose upon, take possession of or attempt to realize
on any of the Shared Collateral.
(b) If any holder of a Subordinated Claim, in
violation of the provisions herein set forth, shall commence,
prosecute or participate in any suit, action, case or
Proceeding referred to in clause (a) above, NRGG Funding or
NRGMI, as the case may be, may interpose as a defense or plea
the provisions set forth herein, and any holder of any Senior
Claim may intervene and interpose such defense or plea in its
own name or in the name of NRGG Funding or NRGMI, as the case
may be, and shall, in any event, be entitled to restrain the
enforcement of the provisions of the Subordinated Claims in
its own name or in the name of NRGG Funding or NRGMI, as the
case may be, in the same suit, action, case or Proceeding or
in any independent suit, action, case or Proceeding.
8. Disposition or Release of Collateral. If at
any time or from time to time after the occurrence of an Event
of Default, the Shared Collateral, or any portion thereof, is
in any manner sold or otherwise transferred, each holder of a
Subordinated Claim shall be deemed to have given irrevocable
consent to such disposition if the Collateral Agent (as
directed by the Agent Bank, acting in accordance with the
Credit
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Agreement) for any reason consents to such disposition, and in
any event no holder of a Subordinated Claim shall be entitled
to receive any proceeds (cash or non-cash) of such disposition
unless and until all of the Senior Claims have been
indefeasibly paid in full in cash or cash equivalents and all
Commitments have been terminated. In the event of such
disposition of all or any portion of the Shared Collateral,
each holder of a Subordinated Claim shall, without further
consideration, execute any and all instruments of release as
the Collateral Agent shall require, failing which the
Collateral Agent shall have the right to execute any such
release on behalf of and as attorney-in-fact for such holder,
which power of attorney shall be irrevocable.
9. Breach of Agreement. If NRG Energy or any
other holder of a Subordinated Claim breaches any of the
provisions of this Agreement, or if any payment is made on any
Subordinated Claim that is not permitted by the provisions of
this Agreement, the holders of Senior Claims shall have the
right to declare any or all of such Senior Claims due and
payable and pursue all of their rights and remedies under
applicable state or federal Law. Nothing herein contained,
however, is intended to compel NRG Energy or the Secured
Parties at any time to declare NRGG Funding, NRGMI or the
Borrower, as the case may be, to be in default under their
respective agreements with NRGG Funding, NRGMI or the
Borrower, as the case may be. All rights and remedies of NRG
Energy and the Secured Parties, respectively, with respect to
the Shared Collateral, the Borrower, NRGG Funding, or NRGMI
and any other obligor concerning the Senior Claims or the
Subordinated Claims, respectively, are cumulative and not
alternative.
10. No Prejudice or Impairment. (a) The rights
under these subordination provisions of the holders of any of
the Senior Claims as against the holders of any of the
Subordinated Claims shall remain in full force and effect
without regard to, and shall not be impaired or affected by:
(i) any act or failure to act on the part of
the Borrower, NRGG Funding or NRGMI;
(ii) any extension or indulgence in respect of
any payment or prepayment of any Senior Claim or any part
thereof or in respect of any other amount payable to any
holder of any Senior Claim;
(iii) any amendment, modification or waiver of,
or addition or supplement to, or deletion from, or
compromise, release, consent or other action in respect
of, any of the terms of any Senior Claim, any Senior
Agreement or any other agreement which may be made
relating to any Senior Claim;
(iv) any exercise or non-exercise by the holder
of any Senior Claim of any right, power, privilege or
remedy under or in respect of such Senior Claim, the
Senior Agreements or this Agreement or any waiver of any
such right,
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power, privilege or remedy or of any default in respect
of such Senior Claim, the Senior Agreements or this
Agreement, or any receipt by the holder of any Senior
Claim of any security, or any failure by such holder to
perfect a security interest in, or any release by such
holder of, any security for the payment of such Senior
Claim;
(v) any merger or consolidation of the
Borrower, NRGG Funding or NRGMI or any of their
respective subsidiaries into or with any other Person, or
any sale, lease or transfer of any or all of the assets
of the Borrower, NRGG Funding or NRGMI or any of their
respective subsidiaries to any other Person;
(vi) absence of any notice to, or knowledge by,
any holder of any Subordinated Claim of the existence or
occurrence of any of the matters or events set forth in
the foregoing subdivisions (i) through (v); or
(vii) any other circumstance.
(b) Each holder of a Subordinated Claim
unconditionally waives (i) notice of any of the matters
referred to in clause (a) of this Section 10, (ii) all notices
which may be required, whether by statute, rule of law or
otherwise, to preserve intact any rights of any holder of any
Senior Claim against the Borrower, NRGG Funding or NRGMI,
including, without limitation, any demand, presentment and
protest, proof of notice of nonpayment under any Senior Claim
or the Senior Agreements, and notice of any failure on the
part of the Borrower, NRGG Funding or NRGMI to perform and
comply with any covenant, agreement, term or condition of the
Senior Claims or the Senior Agreements, (iii) any right to the
enforcement, assertion or exercise by any holder of any Senior
Claim of any right, power, privilege or remedy conferred in
such Senior Claim or the Senior Agreements, or otherwise, (iv)
any requirement of diligence on the part of any holder of any
Senior Claim, (v) any requirement on the part of any holder of
any Senior Claim to mitigate damages resulting from any
default under such Senior Claim or the Senior Agreements, and
(vi) any notice of any sale, transfer or other disposition of
any Senior Claim by any holder thereof.
(c) The obligations of the holders of
Subordinated Claims under this Agreement shall continue to be
effective, or be reinstated, as the case may be, if at any
time any payment in respect of any Senior Claim, or any other
payment to any holder of any Senior Claim in its capacity as
such, is rescinded or must otherwise be restored or returned
by the holder of such Senior Claim upon the occurrence of any
Proceeding, or upon or as a result of the appointment of a
receiver, intervenor or conservator of, or trustee or similar
official for, the Borrower, NRGG Funding, NRGMI or any
substantial part of their respective properties, or otherwise,
all of though such payment had not been made.
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11. Subrogation. No holder of any Subordinated
Claim shall have any subrogation or other rights as the holder
of a Senior Claim, and each holder of any Subordinated Claim
hereby waives all such rights of subrogation and all rights of
reimbursement or indemnity whatsoever and all rights of
recourse to any security for any Senior Claim, until such time
as all of the Senior Claims have been indefeasibly paid in
full in cash or cash equivalents and all Commitments have been
terminated.
12. Legend on Subordinated Claims. Each instrument
evidencing a Subordinated Claim including, without limitation,
the NRGG Loan Note, shall contain the following legend
conspicuously noted on the face thereof: "THIS [NAME OF
INSTRUMENT] IS SUBJECT TO THE SUBORDINATION PROVISIONS SET
FORTH IN THE SUBORDINATION AGREEMENT, DATED AS OF DECEMBER 10,
1997, BETWEEN NRG ENERGY, INC. AND THE CHASE MANHATTAN BANK IN
ITS CAPACITY AS COLLATERAL AGENT"; and shall specifically
state that a copy of this Agreement is on file with the
Borrower, NRGG Funding and NRGMI and is available for
inspection at their respective offices.
13. Notices. Except as otherwise expressly
provided herein, all notices, requests and demands to or upon
the respective parties hereto to be effective shall be in
writing (including by telecopy, telex or cable communication),
and shall be deemed to have been duly given or made when
delivered by hand, or upon actual receipt if deposited in the
United States mail, postage prepaid, or, in the case of telex
notice, when answerback is received, or, in the case of
telecopy notice, when confirmation is received, or, in the
case of a nationally recognized overnight courier service, one
Business Day after delivery to such courier service,
addressed, in the case of each party hereto, at its address
specified below, or to such other address as may be designated
by any party in a written notice to the other parties hereto;
provided that notices and communications to the Collateral
Agent shall not be effective until received by the Collateral
Agent:
If to NRG Energy:
NRG Energy, Inc.
1221 Nicollet Mall, Suite 700
Minneapolis, MN 55403-2445
Attention: President
Telephone: (612) 373-5400
Facsimile: (612) 373-5430
If to the Collateral Agent:
The Chase Manhattan Bank
450 West 33rd Street, 15th Floor
New York, NY 10001
Attention: Annette M. Marsula, Assistant Vice President
Telephone: (212) 946-7557
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Facsimile: (212) 946-8177/8178
14. Successors and Assigns. This Agreement shall
be binding upon and inure to the benefit of the parties hereto
and each of their respective successors and assigns; provided
that prior to any transfer by NRG Energy of any of its
interests under any Subordinated Agreement, whether now
existing or hereafter arising, the transferee of such
interests shall acknowledge this Agreement and agree, in
writing, to be bound by the terms and conditions hereof.
15. Third Party Beneficiaries. The agreements of
the parties hereto are intended to benefit the Banks and the
Agent Bank and their respective successors and assigns.
16. No Waiver; Remedies Cumulative. No failure to
exercise, and no delay in exercising, any right, power or
privilege under this Agreement shall operate as a waiver
thereof; nor shall any single or partial exercise of any
right, power or privilege under this Agreement preclude any
other or further exercise thereof or the exercise of any other
right, power or privilege. The rights and remedies provided
in this Agreement and in any agreement relating to any of the
Senior Claims and all other agreements, instruments and
documents referred to in any of the foregoing are cumulative
and shall not be exclusive of any rights or remedies provided
by law.
17. Severability. In case any provision contained
in or obligation under this Agreement shall be invalid,
illegal or unenforceable in any jurisdiction, the validity,
legality and enforceability of the remaining provisions or
obligations, or of such provision or obligation in any other
jurisdiction, shall not in any way be affected or impaired
thereby.
18. Governing Law; Submission to Jurisdiction and
Venue; Waiver of Jury Trial. (a) This Agreement is a contract
made under the Laws of the State of New York of the United
States and shall for all purposes be governed by and construed
in accordance with the Laws of such State without regard to
the conflict of Law rules thereof (other than Section 5-1401
of the New York General Obligations Law).
(b) Any legal action or proceeding against NRG
Energy with respect to this Agreement may be brought in the
courts of the State of New York in the County of New York or
of the United States for the Southern District of New York
and, by execution and delivery of this Agreement, NRG Energy
hereby irrevocably accepts for itself and in respect of its
property, generally and unconditionally, the jurisdiction of
the aforesaid courts. NRG Energy agrees that a judgment,
after exhaustion of all available appeals, in any such action
or proceeding shall be conclusive and binding upon NRG Energy
and may be enforced in any other jurisdiction by a suit upon
such judgment, a certified copy of which shall be conclusive
evidence of the judgment. NRG Energy irre-
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vocably consents for itself and its property to the service of
process out of any of the aforementioned courts in any such
action or proceeding by the mailing of copies thereof by
registered or certified mail, postage prepaid, to NRG Energy
at its address referred to in Section 13, such service to
become effective thirty (30) days after such mailing. Nothing
herein shall affect the right of the Collateral Agent to serve
process in any other manner permitted by law or to commence
legal proceedings or otherwise proceed against NRG Energy in
any other jurisdiction.
(c) NRG Energy hereby irrevocably waives any
objection which it may now or hereafter have to the laying of
venue of any of the aforesaid actions or proceedings arising
out of or in connection with this Agreement brought in the
courts referred to in clause (b) above and hereby further
irrevocably waives and agrees not to plead or claim in any
such court that any such action or proceeding brought in any
such court has been brought in an inconvenient forum.
(D) WITH REGARD TO THIS AGREEMENT, NRG ENERGY
AND THE COLLATERAL AGENT HEREBY WAIVE THE RIGHT TO A TRIAL BY
JURY.
19. Counterparts. This Agreement may be executed
in any number of counterparts and by the different parties
hereto on separate counterparts, each of which when so
executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument.
20. Further Assurances. NRG Energy shall execute
and deliver to the Collateral Agent such further instruments,
agreements, certificates and documents as the Collateral Agent
shall reasonably request and shall take such further action as
the Collateral Agent may at any time or times reasonably
request in order to carry out the provisions or intent of this
Agreement.
21. Amendments. Neither this Agreement nor any
Subordinated Agreement shall be amended, waived, terminated or
modified without the prior written consent of the Collateral
Agent (as directed by the Agent Bank, acting in accordance
with the Credit Agreement).
22. Headings Descriptive. The headings of the
several Sections and subsections of this Agreement are
inserted for convenience only and shall not in any way affect
the meaning or construction of any provision of this
Agreement.
23. Entire Agreement. This Agreement, together
with any other agreement executed in connection herewith, is
intended by the parties as a final expression of their
agreement as to the matters covered hereby and is intended as
a complete and exclusive statement of the terms and conditions
thereof.
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IN WITNESS WHEREOF, the parties hereto have caused
this Subordination Agreement to be duly executed and delivered
by their officers thereunder duly authorized as of the date
first above written.
NRG ENERGY, INC.
By: David
H. Peterson
Name: David H. Peterson
Title: President & CEO
THE CHASE MANHATTAN BANK,
as Collateral Agent
By: Annette
M. Marsula
Name: Annette M. Marsula
Title: Assistant Vice President