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EXHIBIT 4.11
EXECUTION COPY
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SECURITY AGREEMENT
between
NRG POWER MARKETING INC.,
and
THE CHASE MANHATTAN BANK
as Collateral Agent
Dated as of February 22, 2000
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TABLE OF CONTENTS
Page
Section 1. Definitions........................................................1
Section 2. Representations and Warranties.....................................3
Section 3. Collateral.........................................................3
Section 4. Cash Proceeds of Collateral........................................4
4.01 Collateral Account................................................4
4.02 Investment of Balance in Collateral Account.......................5
Section 5. Further Assurances; Remedies.......................................5
5.01 Delivery and Other Perfection.....................................5
5.02 Other Financing Statements and Liens..............................6
5.03 Preservation of Rights............................................6
5.05 Events of Default, Etc............................................7
5.06 Deficiency........................................................8
5.07 Removals, Etc.....................................................8
5.08 Private Sale......................................................8
5.09 Application of Proceeds...........................................8
5.10 Attorney-in-Fact..................................................9
5.11 Perfection........................................................9
5.12 Termination.......................................................9
5.13 Further Assurances................................................9
Section 6. Miscellaneous.....................................................10
6.01 Notices..........................................................10
6.02 No Waiver........................................................10
6.03 Amendments, Etc..................................................11
6.04 Expenses.........................................................11
6.05 Successors and Assigns...........................................11
6.06 Counterparts.....................................................11
6.07 Governing Law....................................................11
6.08 Waiver of Jury Trial.............................................12
6.09 Captions.........................................................12
6.10 Severability.....................................................12
6.11 Agents and Attorneys-in-Fact.....................................12
6.12 Merger...........................................................12
6.13 Cumulative Rights, No Waiver.....................................12
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SECURITY AGREEMENT
SECURITY AGREEMENT dated as of February 22, 2000, between NRG
POWER MARKETING, INC., a Delaware corporation (the "Obligor") and THE CHASE
MANHATTAN BANK, a New York banking corporation, as collateral agent under the
Collateral Agency and Intercreditor Agreement referred to below (in such
capacity, together with its successors in such capacity, the "Collateral
Agent").
WITNESSETH
WHEREAS, NRG Northeast Generating LLC (the "Company"), the
Guarantors party thereto and The Chase Manhattan Bank as trustee for the Holders
(in such capacity, together with its successors in such capacity, the "Trustee")
are parties to an Indenture dated February 22, 2000 (as amended, modified and
supplemented and in effect from time to time, the "Indenture"), providing,
subject to the terms and conditions thereof, for the creation of an issue of the
Company's bonds, debentures, notes or other evidence of indebtedness to be
issued in one or more series from time to time (the "Bonds"); and
WHEREAS, the Company, the Guarantors party thereto and a syndicate
of financial institutions (the "Working Capital Banks"), including The Chase
Manhattan Bank and Citibank, N.A., (the "Working Capital Agents"), are parties
to a Working Capital Agreement dated February 22, 2000 (as amended, modified and
supplemented and in effect from time to time, the "Working Capital Agreement"),
providing, subject to the terms and conditions thereof, for the making of loans
to the Company for working capital purposes; and
WHEREAS, to induce the Trustee to enter into the Indenture, to
induce the Initial Purchasers (as defined in the Indenture) to purchase the
Initial Bonds offered thereunder and to induce the Working Capital Banks to
enter into the Working Capital Agreement and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Obligor has agreed to pledge and grant a security interest in the Collateral (as
hereinafter defined) as security for the Secured Obligations (as hereinafter
defined). Accordingly, the parties agree as follows.
SECTION 1. DEFINITIONS. Terms defined in the Indenture are used
herein as defined therein. In addition, as used herein:
"Assigned Revenues" has the meaning assigned to such term in
Section 3.
"Collateral" has the meaning assigned to such term in Section 3.
"Collateral Account" has the meaning assigned to such term in
Section 4.01.
"Collateral Agency and Intercreditor Agreement" means the
Collateral Agency and Intercreditor Agreement dated as of February 22, 2000
among the Company, the Guarantors,
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the Collateral Agent, The Chase Manhattan Bank, as Trustee under the Indenture
and the Working Capital Agents.
"Holder" means, a Person in whose name a Bond is registered in the
Security Register and any holder of Senior Secured Debt, including, without
limitation, any lender named in the Working Capital Agreement.
"Records" has the meaning assigned to such term in Section 2.
"Secured Obligations" means, collectively, (a) in the case of the
Company, (i) the principal and interest on the Bonds and all other amounts
(including, but not limited to, fees, penalties, indemnities and legal and other
expenses, whether due after acceleration or otherwise) from time to time owing
to the Holders or the Trustee by the Company under the Indenture or the Bonds,
(ii) the principal and interest on the loans made by the Working Capital Banks
to the Company and all other amounts (including, but not limited to, fees,
penalties, indemnities and legal and other expenses, whether due after
acceleration or otherwise) from time to time owing to the Working Capital Banks
by the Company under the Working Capital Agreement, and (iii) the principal and
interest on any other Senior Secured Debt and all other amounts (including, but
not limited to, fees, penalties, indemnities and legal and other expenses,
whether due after acceleration or otherwise) from time to time owing to other
Senior Secured Debt holders or to any Senior Secured Debt Agents by the Company
under any Senior Secured Debt Documents (b) in the case of the Guarantors, all
obligations of the Guarantors under the Indenture and the Working Capital
Agreement (including without limitation, in respect of their Guarantees under
Article 4 of the Indenture and Article III of the Working Capital Agreement)and
all other guarantees of Senior Secured Debt, and (c) all obligations of the
Company and the Guarantors to the Collateral Agent under the Collateral
Documents.
"Secured Parties" has the meaning set forth in the Collateral
Agency and Intercreditor Agreement.
"Senior Secured Debt" means all Permitted Indebtedness of the
Issuer (including Bonds in addition to the Initial Bonds) ranking pari passu as
to payment with the Bonds and which is secured by the Intercreditor Collateral
(as defined in the Collateral Agency and Intercreditor Agreement).
"Senior Secured Debt Agents" any trustees or agents under any
other Senior Secured Debt Documents on behalf of the holders of the indebtedness
or obligations evidenced by such Senior Secured Debt Documents (together with
their respective successors and assigns) in such capacity.
"Senior Secured Debt Documents" shall mean all agreements,
documents and instruments evidencing and/or securing any Senior Secured Debt.
"Uniform Commercial Code" means the Uniform Commercial Code as in
effect from time to time in the State of New York.
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SECTION 2. REPRESENTATIONS AND WARRANTIES. The Obligor represents
and warrants to the Collateral Agent that:
(a) The Obligor is the sole beneficial owner of the Collateral
(other than the Collateral Account and except for Collateral constituting
revenues from any current and future agreements, contracts and documents
where the Obligor does not act as principal) in which it purports to
grant a security interest pursuant to Section 3 and no Lien exists or
will exist upon such Collateral at any time, except for liens permitted
under Sections 6.9 and 7.5 of the Indenture and Sections 6.09 and 7.05 of
the Working Capital Agreement and except for the pledge and security
interest in favor of the Collateral Agent for the benefit of the Secured
Parties created or provided for herein, which pledge and security
interest (i) constitute valid and enforceable perfected security
interests in all of the Collateral in favor of the Collateral Agent as
collateral security for the Secured Obligations to the extent that a
security interest may be perfected by filing and/or the other actions
specified herein, and (ii) are prior to all other Liens on the Collateral
in existence on the date hereof except for Permitted Liens (as defined in
the Indenture and the Working Capital Agreement) which have priority by
operation of law.
(b) The chief place of business and chief executive office of the
Obligor and the office where the Obligor keeps its records concerning the
Collateral (herein collectively called the "Records") and the original
copies of the Assigned Revenues are located at the address specified for
the Obligor pursuant to Section 6.01 of this Agreement.
(c) A certified copy of each Assigned Agreement in effect on the
Effective Date has been furnished to the Collateral Agent, including all
schedules and exhibits thereto, and each such Assigned Agreement sets
forth the entire agreement of the parties thereto relating to the subject
matter thereof, and there are no other agreements or understandings,
written or oral, relating to the matters covered thereby or the rights of
the Obligor in respect thereof.
SECTION 3. COLLATERAL. As collateral security for the prompt
payment in full when due (whether at stated maturity, by acceleration or
otherwise) of the Secured Obligations, the Obligor hereby assigns, transfers,
pledges and grants to the Collateral Agent, for the benefit of the Holders as
hereinafter provided, a continuing first priority perfected security interest
in, and a lien upon, all of the Obligor's right, title and interest in the
following property, whether now owned by the Obligor or hereafter acquired and
whether now existing or hereafter coming into existence (all being collectively
referred to herein as "Collateral"):
(a) all revenues from all current and future power sales
agreements, contracts and documents entered into by the Obligor
associated with the Guarantors (including any Subsequent Guarantor), as
each such agreement, contract and document may be amended, supplemented,
modified or replaced and in effect from time to time (said revenues
collectively, the "Assigned Revenues"), including, without limitation:
(i) all
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rights of the Obligor to receive moneys due and to become due under or
pursuant to the Assigned Revenues and (ii) all rights of the Obligor to
receive proceeds of any insurance, bond, indemnity, warranty or guaranty
with respect to the Assigned Revenues;
(b) the Collateral Account and all property credited thereto,
including but not limited to the balance from time to time in the
Collateral Account (including all Permitted Investments and "securities
entitlements" (as defined in Section 8-102(a)(17) of the Uniform
Commercial Code) credited thereto) and all security entitlements with
respect to any of the foregoing; and
(c) all proceeds, rents, profits, income, benefits, substitutions
and replacements of, and to any of the property of the Obligor described
in the preceding clauses of this Section 3 (including, without
limitation, all causes of action, claims and warranties now or hereafter
held by the Obligor in respect of any of the items listed above) and, to
the extent related to any property described in said clauses or such
proceeds, all books, correspondence, credit files, records, invoices and
other papers, including without limitation all tapes, cards, computer
runs and other papers and documents in the possession or under the
control of the Obligor or any computer bureau or service company from
time to time acting for the Obligor.
SECTION 4. CASH PROCEEDS OF COLLATERAL.
4.01 Collateral Account. The Collateral Agent will cause to be
established at a banking institution to be selected by the Collateral Agent a
cash collateral account (the "Collateral Account"), which may be a "securities
account" (as defined in Section 8-501 of the Uniform Commercial Code), in the
name and under the sole dominion and control of the Collateral Agent (and, in
the case of a securities account, in respect of which the Collateral Agent is
the "entitlement holder" (as defined in Section 8-102(a)(7) of the Uniform
Commercial Code)), into which there shall be deposited from time to time upon
the occurrence and during the continuance of an Event of Default the cash
proceeds of any of the Collateral required to be delivered to the Collateral
Agent pursuant hereto and into which the Obligor may from time to time deposit
any additional amounts that any of them wishes to pledge to the Collateral Agent
for the benefit of the Secured Parties as additional collateral security
hereunder. The balance from time to time in the Collateral Account shall
constitute part of the Collateral hereunder and shall not constitute payment of
the Secured Obligations until applied as hereinafter provided. Except as
expressly provided in the next sentence, the Collateral Agent shall remit the
collected balance standing to the credit of the Collateral Account to or upon
the written order of the Obligor as the Obligor shall from time to time
instruct. However, at any time following the occurrence and during the
continuance of an Event of Default, the Collateral Agent shall at the written
direction of the Required Creditors (as defined in the Collateral Agency and
Intercreditor Agreement) apply or cause to be applied (subject to collection)
the balance from time to time standing to the credit of the Collateral Account
to the payment of the Secured Obligations in the manner specified in Section
5.09. The balance from time to time in the Collateral Account shall be
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subject to withdrawal only as provided herein. In addition to the foregoing, the
Obligor agrees that, at any time after the occurrence and during the continuance
of an Event of Default, if the proceeds of any Collateral hereunder shall be
received by it, the Obligor shall, upon the request of the Collateral Agent, as
promptly as possible deposit such proceeds into the Collateral Account. Until so
deposited, all such proceeds shall be held in trust by the Obligor for and as
the property of the Collateral Agent and shall not be commingled with any other
funds or property of the Obligor.
4.02 Investment of Balance in Collateral Account. The cash balance
standing to the credit of the Collateral Account shall be invested at the
written request of the Obligor from time to time in such Permitted Investments
as the Obligor (or, after the occurrence and during the continuance of an Event
of Default, the Required Creditors) shall determine, which Permitted Investments
shall be held in the name and be under the control of the Collateral Agent (and,
if the Collateral Account is a securities account, credited to the Collateral
Account); provided that at any time after the occurrence and during the
continuance of an Event of Default, the Collateral Agent shall at the written
direction of the Required Creditors at any time and from time to time elect to
liquidate any such Permitted Investments and to apply or cause to be applied the
proceeds thereof to the payment of the Secured Obligations in the manner
specified in Section 5.09.
The Collateral Agent shall have no obligation to invest and
reinvest any cash held in the absence of timely and specific written investment
direction from the Obligor or the Required Creditors. In no event shall the
Collateral Agent be liable for the selection of investments or for investment
losses incurred thereon. The Collateral Agent shall have no liability in respect
of losses incurred as a result of the liquidation of any investment prior to its
stated maturity or the failure of the Obligor to provide timely written
investment direction.
SECTION 5. FURTHER ASSURANCES; REMEDIES. In furtherance of the
grant of the pledge and security interest pursuant to Section 3, the Obligor
hereby agrees:
5.01 Delivery and Other Perfection. The Obligor shall:
(a) give, execute, deliver, file and/or record any financing
statement, notice, instrument, document, agreement or other papers that
may be necessary to create, preserve, perfect or validate the security
interest granted pursuant hereto or to enable the Collateral Agent to
exercise and enforce its rights hereunder with respect to such pledge and
security interest, including, without limitation, upon the occurrence and
during the continuation of an Event of Default;
(b) keep full and accurate books and records relating to the
Collateral, and stamp or otherwise mark such books and records in such
manner in order to reflect the security interests granted by this
Agreement; and
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(c) permit representatives of the Collateral Agent, upon
reasonable notice, at any time during normal business hours to inspect
and make abstracts from its books and records pertaining to the
Collateral, and, upon the occurrence and during the continuation of an
Event of Default, permit representatives of the Collateral Agent to be
present at the Obligor's place of business to receive copies of all
communications and remittances relating to the Collateral, and forward
copies of any notices or communications received by the Obligor with
respect to the Collateral, all in such manner as the Collateral Agent may
require.
The Collateral Agent has no duty or responsibility to ensure or
monitor the Obligor's compliance with the provisions of this Section 5.01
and it shall have no liability if the Company fails to comply with such
provisions.
5.02 Other Financing Statements and Liens. Except as otherwise
permitted under Articles 6.9 and 7.5 of the Indenture and Sections 6.09 or and
7.05 of the Working Capital Agreement, no Obligor shall file or suffer to be on
file, or authorize or permit to be filed or to be on file, in any jurisdiction,
any financing statement or like instrument with respect to the Collateral in
which the Collateral Agent is not named as the sole secured party for the
benefit of the Secured Parties.
5.03 Preservation of Rights. The Collateral Agent shall not be
required to take steps necessary to preserve any rights against prior parties to
any of the Collateral.
5.04 Special Provisions Relating to Assigned Revenues.
(a) The Obligor shall remain liable to perform its respective
duties and obligations under the contracts and agreements relating o the
Assigned Revenues in accordance with their respective terms to the same
extent as if this Agreement had not been executed and delivered. The
exercise by the Collateral Agent or any Secured Party of any right,
remedy, power or privilege in respect of this Agreement shall not release
the Obligor from any of its duties and obligations under such contracts
and agreements. Neither the Collateral Agent nor any Secured Party shall
have any duty, obligation or liability under such contracts and
agreements included in the Collateral by reason of this Agreement or any
other agreement, nor shall the Collateral Agent or any Secured Party be
obligated to perform any of the duties or obligations of the Obligor
under any such contract or agreement or to take any action to collect or
enforce any claim (for payment) under any such contract or agreement.
(b) No Lien granted by this Agreement in the Obligor's right,
title and interest in any contract or agreement shall be deemed to be a
consent by the Collateral Agent or any Secured Party to any such contract
or agreement.
(c) Unless and until an Event of Default has occurred and is
continuing, the Obligors shall be entitled to receive and retain any
Assigned Revenues.
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5.05 Events of Default, Etc. During any period in which an Event
of Default shall have occurred and be continuing:
(a) The Obligor shall, at the request of the Collateral Agent,
assemble the Collateral owned by it at such place or places, reasonably
convenient to both the Collateral Agent and the Obligor, designated in its
request;
(b) the Collateral Agent may make any reasonable compromise or
settlement deemed desirable with respect to any of the Collateral and may extend
the time of payment, arrange for payment in installments, or otherwise modify
the terms of, any of the Collateral;
(c) the Collateral Agent shall have all of the rights and remedies
with respect to the Collateral of a secured party under the Uniform Commercial
Code (whether or not said Code is in effect in the jurisdiction where the rights
and remedies are asserted) and such additional rights and remedies to which a
secured party is entitled under the laws in effect in any jurisdiction where any
rights and remedies hereunder may be asserted, (and the Obligor agrees to take
all such action as may be appropriate to give effect to such right);
(d) the Collateral Agent in its discretion may, in its name or in
the name of the Obligor or otherwise, demand, sue for, collect or receive any
money or property at any time payable or receivable on account of or in exchange
for any of the Collateral, but shall be under no obligation to do so; and
(e) the Collateral Agent may, upon 10 Business Days prior written
notice to the Obligor of the time and place, with respect to the Collateral or
any part thereof that shall then be or shall thereafter come into the
possession, custody or control of the Collateral Agent, the Secured Parties or
any of their respective agents, sell, lease, assign or otherwise dispose of all
or any part of such Collateral, at such place or places as the Collateral Agent
deems best, and for cash or for credit or for future delivery (without thereby
assuming any credit risk), at public or private sale, without demand of
performance or notice of intention to effect any such disposition or of the time
or place thereof (except such notice as is required above or by applicable
statute and cannot be waived), and the Collateral Agent or any Secured Party or
anyone else may be the purchaser, lessee, assignee or recipient of any or all of
the Collateral so disposed of at any public sale (or, to the extent permitted by
law, at any private sale) and thereafter hold the same absolutely, free from any
claim or right of whatsoever kind, including any right or equity of redemption
(statutory or otherwise), of the Obligor, any such demand, notice and right or
equity being hereby expressly waived and released. The Collateral Agent may,
without notice or publication, adjourn any public or private sale or cause the
same to be adjourned from time to time by announcement at the time and place
fixed for the sale, and such sale may be made at any time or place to which the
sale may be so adjourned.
The Collateral Agent shall incur no liability as a result of the
sale of the Collateral, or any part thereof, at any private or public sale or as
a result or exercise of any other rights or remedies available to it.
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The proceeds of each collection, sale or other disposition under
this Section 5.05 shall be applied in accordance with Section 5.09.
5.06 Deficiency. If the proceeds of sale, collection or other
realization of or upon the Collateral pursuant to Section 5.05 are insufficient
to cover the costs and expenses of such realization and the payment in full of
the Secured Obligations, the Obligor shall remain liable for any deficiency to
the extent the Obligor is obligated under this Agreement.
5.07 Removals, Etc. Without at least 30 days' prior written notice
to the Collateral Agent, the Obligor shall not (i) maintain any of its books and
records with respect to the Collateral at any office, or maintain its principal
place of business at any place other than at the address indicated in or
pursuant to Section 6.01 hereof or (ii) change its name, or the name under which
it does business, from the name shown on the signature pages hereto.
5.08 Private Sale. The Collateral Agent and the Secured Parties
shall incur no liability as a result of the sale of the Collateral, or any part
thereof, at any private sale pursuant to Section 5.05 conducted in a
commercially reasonable manner. The Obligor hereby waives any claims against the
Collateral Agent or any Secured Party arising by reason of the fact that the
price at which the Collateral may have been sold at such a private sale was less
than the price that might have been obtained at a public sale or was less than
the aggregate amount of the Secured Obligations, even if the Collateral Agent
accepts the first offer received and does not offer the Collateral to more than
one offeree.
5.09 Application of Proceeds. Except as otherwise herein expressly
provided, the proceeds of any collection, sale or other realization of all or
any part of the Collateral pursuant hereto, and any other cash at the time held
by the Collateral Agent under Section 4 or this Section 5, shall be applied by
the Collateral Agent:
First, to the payment of the costs and expenses of such
collection, sale or other realization, including reasonable out-of-pocket
costs and expenses of the Collateral Agent and the fees and expenses of
its agents and counsel, and all expenses incurred and advances made by
the Collateral Agent in connection therewith;
Next, to the payment in full of the Secured Obligations, in each
case equally and ratably in accordance with the respective amounts
thereof then due and owing or as the Secured Parties holding the same may
otherwise agree; and
Finally, to the payment to the Obligor, or its respective
successors or assigns, or as a court of competent jurisdiction may
direct, of any surplus then remaining.
As used in this Section 5, "proceeds" of Collateral means cash,
securities and other property realized in respect of, and distributions in kind
of, Collateral, including any thereof received under any reorganization,
liquidation or adjustment of debt of the Obligor on any of the Collateral.
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5.10 Attorney-in-Fact. Without limiting any rights or powers
granted by this Agreement to the Collateral Agent while no Event of Default has
occurred and is continuing, upon the occurrence and during the continuance of
any Event of Default the Collateral Agent is hereby appointed the
attorney-in-fact of the Obligor for the purpose of carrying out the provisions
of this Section 5 and taking any action and executing any instruments that the
Collateral Agent may deem necessary or advisable to accomplish the purposes
hereof, which appointment as attorney-in-fact is irrevocable and coupled with an
interest. Without limiting the generality of the foregoing, so long as the
Collateral Agent shall be entitled under this Section 5 to make collections in
respect of the Collateral, the Collateral Agent shall have the right and power
to receive, endorse and collect all checks made payable to the order of the
Obligor representing any dividend, payment or other distribution in respect of
the Collateral or any part thereof and to give full discharge for the same and
will inform the Obligor thereof. The Collateral Agent shall have no obligation
or responsibility for the filing, refiling, rerecording or monitoring the status
of any financing or continuation statements or any other similar documentation
relating to the perfection of the Security Interest granted in the Collateral.
5.11 Perfection. Prior to or concurrently with the execution and
delivery of this Agreement, the Obligor shall (i) file such financing statements
and other documents in such offices as the Collateral Agent may reasonably
request to perfect the security interests granted by Section 3 of this Agreement
and (ii) deliver to the Collateral Agent a copy of all UCC-1 financing
statements filed pursuant to clause (i) naming the Obligor as debtor and duly
signed by the Obligor.
5.12 Termination
(a) When all Secured Obligations shall have been paid in full
and the Commitments of the Working Capital Banks under the Working Capital
Agreement shall have expired or been terminated, this Agreement shall terminate,
and the Collateral Agent shall forthwith cause to be assigned, transferred and
delivered, against receipt but without any recourse, warranty or representation
whatsoever, any remaining Collateral and money received in respect thereof, to
or on the order of the Obligor. The Collateral Agent shall also execute and
deliver to the Obligor upon such termination such Uniform Commercial Code
termination statements and such other documentation as shall be reasonably
requested by the Obligor to effect the termination and release of the Liens on
the Collateral.
(b) If any of the Collateral shall be sold, transferred or
otherwise disposed of by the Obligor in a transaction permitted by the Indenture
and the Working Capital Agreement, then the Collateral Agent, at the request and
reasonable and sole expense of the Obligor, shall execute and deliver to the
Obligor all releases or other documents reasonably necessary or desirable for
the release of the Liens created hereby on such Collateral.
5.13 Further Assurances. The Obligor agrees that, from time to
time upon the written request of the Collateral Agent, the Obligor will execute
and deliver such further
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documents and do such other acts and things as the Collateral Agent may
reasonably request in order to fully effect the purposes of this Agreement.
SECTION 6. MISCELLANEOUS.
6.01 Notices. All notices, requests, consents and demands
hereunder shall be in writing and telecopied or delivered to the intended
recipient at:
Collateral Agent: The Chase Manhattan Bank
Capital Markets Fiduciary Services
As Collateral Agent
450 W. 33rd Street, 15th Floor
New York, New York 10001
ATTENTION: Annette M. Marsula,
International and Project Finance
Group
Telecopier No.: (212) 946-8177
Telephone No.: (212) 946-7557
Obligor: NRG Power Marketing LLC
1221 Nicollet Mall
Suite 700
Minneapolis, MN 55403-2445
Attention: James Bender
Telecopier No.: (612) 373-5392
With Copies to: NRG Energy, Inc.
1221 Nicollet Mall
Suite 700
Minneapolis, MN 55403-2445
Attention: General Counsel
Telecopier No.: (612) 373-5392
6.02 No Waiver. No failure on the part of the Collateral Agent or
any Secured Party to exercise, and no course of dealing with respect to, and no
delay in exercising, any right, power or remedy hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise by the Collateral Agent
or any Secured Party of any right, power or remedy hereunder
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preclude any other or further exercise thereof or the exercise of any other
right, power or remedy. The remedies herein are cumulative and are not exclusive
of any remedies provided by law.
6.03 Amendments, Etc. The terms of this Agreement may be waived,
altered or amended only by an instrument in writing duly executed by the Obligor
and the Collateral Agent and with the consent of the Working Capital Banks as
specified in the last paragraph of Article IX in the Working Capital Agreement.
Any such amendment or waiver shall be binding upon the Collateral Agent and each
Secured Party, each holder of any of the Secured Obligations and the Obligor.
6.04 Expenses. The Obligor agrees to reimburse each of the Secured
Parties and the Collateral Agent for all reasonable costs and expenses of the
Secured Parties and the Collateral Agent (including, without limitation, the
reasonable fees and expenses of legal counsel) in connection with (i) any Event
of Default and any enforcement or collection proceeding resulting therefrom,
including, without limitation, all manner of participation in or other
involvement with (w) performance by the Collateral Agent of any obligations of
the Obligor in respect of the Collateral that the Obligor has failed or refused
to perform, (x) bankruptcy, insolvency, receivership, foreclosure, winding up or
liquidation proceedings, or any actual or attempted sale, or any exchange,
enforcement, collection, compromise or settlement in respect of any of the
Collateral, and for the care of the Collateral and defending or asserting rights
and claims of the Collateral Agent in respect thereof, by litigation or
otherwise, including expenses of insurance, (y) judicial or regulatory
proceedings and (z) workout, restructuring or other negotiations or proceedings
(whether or not the workout, restructuring or transaction contemplated thereby
is consummated) and (ii) the enforcement of this Section 6.04, and all such
costs and expenses shall be Secured Obligations entitled to the benefits of the
collateral security provided pursuant to Section 3. The Obligor's obligations
under this Section 6.04 shall survive the termination of the earlier resignation
or removal of the Collateral Agent.
6.05 Successors and Assigns. This Agreement shall be binding upon
and inure to the benefit of the respective successors and assigns of the
Obligor, the Collateral Agent, the Secured Parties and each holder of any of the
Secured Obligations (provided, however, that the Obligor shall not assign or
transfer its rights hereunder without the prior written consent of the
Collateral Agent).
6.06 Counterparts. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument and any of the parties hereto may execute this Agreement by signing
any such counterpart.
6.07 Governing Law. This Agreement shall be governed by, and
construed in accordance with, the law of the State of New York (without regard
to choice of law principles thereof to the extent the application of such
principles would cause the application of the laws of any other jurisdiction).
NRG Northeast Power Marketing Security Agreement
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6.08 Waiver of Jury Trial. EACH OF THE OBLIGOR, THE COLLATERAL
AGENT AND THE LENDERS HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED
BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
6.09 Captions. The captions and section headings appearing herein
are included solely for convenience of reference and are not intended to affect
the interpretation of any provision of this Agreement.
6.10 Severability. If any provision hereof is invalid and
unenforceable in any jurisdiction, then, to the fullest extent permitted by law,
(a) the other provisions hereof shall remain in full force and effect in such
jurisdiction and shall be liberally construed in favor of the Collateral Agent
and the Secured Parties in order to carry out the intentions of the parties
hereto as nearly as may be possible and (b) the invalidity or unenforceability
of any provision hereof in any jurisdiction shall not affect the validity or
enforceability of such provision in any other jurisdiction.
6.11 Agents and Attorneys-in-Fact. The Collateral Agent may employ
agents and attorneys-in-fact in connection herewith but such employment will not
relieve the Collateral Agent from its duties and obligations hereunder.
6.12 Merger. Any corporation into which the Collateral Agent may
be merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the Collateral
Agent shall be a party, or any corporation succeeding to the business of the
Collateral Agent shall be the successor of the Collateral Agent hereunder
without the execution or filing of any paper with any party hereto or any
further act on the part of any of the parties hereto except where an instrument
of transfer or assignment is required by law to effect such succession, anything
herein to the contrary notwithstanding.
6.13 Cumulative Rights, No Waiver. The rights, powers and remedies
of the Collateral Agent under this Security Agreement are cumulative and in
addition to all rights, powers and remedies provided under any and all
agreements between the Obligor and the Collateral Agent relating hereto, at law,
in equity or otherwise. Neither any delay nor any omission by the Collateral
Agent to exercise any right, power or remedy shall operate as a waiver thereof,
nor shall a single or partial exercise thereof preclude any other or further
exercise thereof or any exercise of any other right, power or remedy.
NRG Northeast Power Marketing Security Agreement
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IN WITNESS WHEREOF, the parties hereto have caused this Security
Agreement to be duly executed and delivered as of the day and year first above
written.
NRG POWER MARKETING, INC.,
By: /s/ Craig Mataczynski
------------------------
Name: Craig Mataczynski
Title: President
THE CHASE MANHATTAN BANK,
as Collateral Agent
By: /s/ Annette M. Marsula
-------------------------------
Name: Annette M. Marsula
Title: Vice President
NRG Northeast Power Marketing Security Agreement