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EXHIBIT 10.1
EXECUTION COPY
COLLATERAL AGENCY AND
INTERCREDITOR AGREEMENT
Dated as of February 22, 2000
among
NRG NORTHEAST GENERATING LLC
THE GUARANTORS party hereto,
THE TRUSTEE UNDER THE INDENTURE,
THE WORKING CAPITAL AGENTS party hereto,
EACH SENIOR SECURED DEBT AGENT
and
THE COLLATERAL AGENT
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TABLE OF CONTENTS
Section 1. Definitions .......................................................................2
Section 2. Priority of Security Interests ....................................................4
Section 3. Exercise of Rights ................................................................5
Section 4. Certain Actions ...................................................................6
Section 5. Receipt of Money or Proceeds ......................................................7
Section 6. Application of Proceeds ...........................................................7
Section 7. Event of Eminent Domain; Event of Loss ............................................9
Section 8. Appointment and Duties of Collateral Agent .......................................10
Section 9. Rights of Collateral Agent .......................................................10
Section 10. Lack of Reliance on the Collateral Agent ........................................13
Section 11. Indemnification; Bankruptcy .....................................................14
Section 12. Resignation or Removal of the Collateral Agent ..................................15
Section 13. Representations and Warranties ..................................................15
Section 14. Additional Secured Parties; Agreement for Benefit of Parties Hereto .............16
Section 15. Severability ....................................................................17
Section 16. Notices .........................................................................17
Section 17. Successors and Assigns ..........................................................19
Section 18. Counterparts ....................................................................19
Section 19. Governing Law ...................................................................19
Section 20. Consent to Jurisdiction .........................................................19
Section 21. Waiver of Jury Trial ............................................................20
Section 22. No Impairments of Other Rights ..................................................20
Section 23. Amendment; Waiver ...............................................................20
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Section 24. Headings. .......................................................................20
Section 25. Termination. ....................................................................20
Section 26. Entire Agreement. ...............................................................20
Section 27. Limitation of Liability. ........................................................21
Section 28. Execution in Lieu of Agent. .....................................................22
Section 29. Conflicts With Other Security Documents. ........................................22
Section 30. Effective Date. .................................................................22
EXHIBITS:
Exhibit A - Form of Designation Letter
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This COLLATERAL AGENCY AND INTERCREDITOR AGREEMENT (this
"Agreement") dated as of February 22, 2000 among (i) NRG NORTHEAST GENERATING
LLC, a Delaware limited liability company (together with its successors and
assigns, (the "Issuer"), (ii) the Guarantors party hereto, (iii) the trustee
under the Indenture (together with its successors and assigns in such capacity,
the "Trustee"), acting in such capacity and on behalf of the holders of the
Bonds (as defined in the Indenture), (iv) the agents under the Working Capital
Agreement (as defined in the Indenture) (together with its successors and
assigns in such capacity, the "Working Capital Agents"), acting in such
capacity and on behalf of the lenders party to the Working Capital Agreement,
(v) any trustees or agents under any other Senior Secured Debt Documents (as
defined below), 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, the "Senior Secured Debt Agents") and
(vi) the collateral agent appointed hereunder for the Secured Parties (as
defined below) (together with its successors and assigns in such capacity, the
"Collateral Agent").
WITNESSETH:
WHEREAS, the Issuer intends to finance its operations through,
inter alia, one or more public offerings or private placements of bonds,
debentures, promissory notes or other evidences of indebtedness;
WHEREAS, the Issuer has duly authorized the creation and
issuance of bonds, debentures, notes or other evidences of indebtedness in one
or more series (the "Bonds") pursuant to the Indenture dated as of February 22,
2000 (as amended, supplemented or modified and in effect from time to time, the
"Indenture"), among the Issuer, the Guarantors party thereto and the Trustee;
WHEREAS, the Issuer may incur indebtedness as permitted under
the Indenture in the form of revolving working capital loans made by the
lenders under the Working Capital Agreement;
WHEREAS, the Issuer may incur additional debt, including,
without limitation, any bond, debenture, promissory notes or other evidences of
such indebtedness, as permitted under the Indenture;
WHEREAS, all obligations of the Issuer and the Guarantors
under the Indenture, the Working Capital Agreement and certain future Senior
Secured Debt Documents will be secured as set forth in the Security Documents
(as hereinafter defined); and
WHEREAS, the parties hereto desire to enter into this
Agreement to set forth their mutual understanding with respect to (a) the
exercise of certain rights, remedies and options by the respective parties
hereto under the above-described documents, (b) the priority of their
respective security interests created by the Security Documents and (c) the
appointment of, and the rights and obligations of, the Collateral Agent,
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NOW, THEREFORE, for and in consideration of the premises and
mutual covenants herein contained, and for other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, the
parties hereto, intending to be legally bound, do hereby covenant and agree as
follows:
Section 1. Definitions. The following terms shall have the
meanings herein specified. Such definitions shall be equally applicable to the
singular and plural forms of the terms defined. Capitalized terms not otherwise
defined herein shall have the meanings set forth in, and the interpretations
applicable thereto under, the Indenture as in existence on the Closing Date.
All terms used herein which are not defined herein or in the Indenture and are
defined in the New York Uniform Commercial Code shall have the meanings therein
stated. Unless otherwise stated, any agreement, contract or document defined
or referred to herein shall mean such agreement, contract or document and all
schedules, exhibits and attachments thereto as in effect as of the date hereof,
as the same may thereafter be amended, supplemented or otherwise modified from
time to time. Any reference to any Person shall include its permitted
successors and assigns, and in the case of any Governmental Authority, any
Persons succeeding to its functions and capacities.
"Authorized Representative" of any of the Issuer, the
Guarantors or any other Person means the person or persons authorized to act on
behalf of such entity by its chief executive officer, president, chief
operating officer, chief financial officer or any vice president or its Board
of Directors or any other governing body of such entity.
"Collateral" has the meaning set forth in the Security
Agreement.
"Collateral Agent Claims" means all obligations of the Issuer,
now or hereafter existing, to pay fees, costs and expenses to the Collateral
Agent pursuant to Sections 9(f) and 11 hereof and the Security Documents.
"Combined Exposure" means, as of any date of calculation, the
sum (calculated without duplication) of the following to the extent the same is
held by or represented by a Secured Party: (i) the aggregate principal amount
of all Bonds Outstanding as of the calculation date, (ii) the aggregate
principal amount of all loans (if any) outstanding as of such calculation date
under the Working Capital Facility, (iii) the aggregate amount of all undrawn
Financing Commitments as of such calculation date under the Working Capital
Facility which, as of such calculation date, the lenders party to the Working
Capital Agreement have no right to terminate, (iv) the aggregate principal
amount of all other Senior Secured Debt (if any) outstanding as of such
calculation date and (v) the aggregate amount of all undrawn Financing
Commitments under any Senior Secured Debt Documents as of such calculation date
which, as of such calculation date, the creditors party to such other Senior
Secured Debt Documents have no right to terminate.
"Damages" has the meaning set forth in Section 11(a) hereof.
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"Debt Termination Date" means the date on which all Financing
Liabilities, other than contingent liabilities and obligations which are
unasserted at such date, have been paid and satisfied in full (or legally
defeased in full expressly in accordance with the terms and conditions of the
related Senior Secured Debt Documents) and all Financing Commitments have been
terminated.
"Designation Letter" means any letter executed and delivered
pursuant to Section 14 hereof and substantially in the form of Exhibit A
hereto.
"Event of Default" means an "event of default" (or correlative
term) under any Senior Secured Debt Document.
"Financing Commitment" means any commitment to extend credit to the Issuer.
"Financing Documents" has the meaning set forth in the
Indenture.
"Financing Liabilities" means all indebtedness, financial
liabilities and obligations of the Issuer or the Guarantors, of whatsoever
nature and howsoever evidenced (including, but not limited to, principal,
interest, fees, reimbursement obligations, penalties, indemnities and legal and
other expenses, whether due after acceleration or otherwise) to the Secured
Parties under or pursuant to the Indenture, the Bonds, the Working Capital
Agreement, any other Senior Secured Debt Documents, the Security Documents or
any other agreement, document or instrument evidencing, securing or relating to
such indebtedness, financial liabilities or obligations, to the extent arising
on or prior to the Debt Termination Date, in each case, direct or indirect,
primary or secondary, fixed or contingent, now or hereafter arising out of or
relating to any such agreements.
"Indemnified Party" has the meaning set forth in Section 11(a)
hereof.
"Intercreditor Collateral" means the Collateral and all other
collateral in which there is a Security Interest purported to be granted to a
Secured Party, other than (i) the Security Interest of the Trustee in and to
the Debt Service Reserve Account referred to in the Indenture and any amounts
on deposit therein and (ii) the Security Interest of any other Secured Party in
any debt service reserve account maintained for the benefit of the lenders
under its related Senior Debt Documents.
"Post-Default Rate" means the rate of interest from time to
time announced by The Chase Manhattan Bank, a New York banking corporation (or
such other financial institution that is at such time serving as the Collateral
Agent) at its principal office in New York, New York as its prime commercial
lending rate (the "Prime Rate") plus 1%. Each change in any interest rate
provided for herein or in the Security Documents based upon the Prime Rate
resulting from a change in the Prime Rate shall take effect at the time of such
change in the Prime Rate.
"Required Creditors" means, at any time, Persons that at such
time hold at least 33e% of the Combined Exposure.
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"Responsible Officer", when used with respect to the
Collateral Agent, shall mean any officer in the corporate trust or agency area
(or any successor areas of the Collateral Agent) including any vice president,
assistant vice president, assistant secretary, assistant treasurer or any other
officer of the Collateral Agent customarily performing functions similar to
those performed by the persons who at the time shall be such officers,
respectively, or to whom any corporate trust or agency matter is referred
because of his or her knowledge and familiarity with the particular subject.
"Secured Parties" means the Trustee (as trustee for and
representative of the holders of the Bonds), the Working Capital Agents (as
agent for and representative of the lenders party to the Working Capital
Agreement), each Senior Secured Debt Agent (as agent for and representative of
the holders under the related Senior Secured Debt Documents), in each case to
the extent the same is or by operation of Section 14(a) hereof becomes, a party
hereto.
"Security Documents" means the Collateral Documents (as
defined in the Indenture) and any other document or agreement creating or
evidencing a Security Interest.
"Security Interest" means any Lien on any Intercreditor
Collateral purported to be granted to the Collateral Agent or a Secured Party
for the benefit of one or more of the Secured Parties (or any trustee,
sub-agent or other Person acting for or on behalf of the Collateral Agent)
pursuant to any applicable Senior Secured Debt Document.
"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.
"Senior Secured Debt Documents" shall mean all agreements,
documents and instruments evidencing and/or securing any Senior Secured Debt.
"Trigger Event" means 67% of the Combined Exposure shall have
been declared to be, or shall automatically have become, due and payable (and
shall not have been rescinded) under the Senior Secured Debt Documents, as
determined by the Collateral Agent based upon the written notices provided to
the Collateral Agent by the Secured Parties pursuant to Section 4(a) hereof.
"Trigger Event Date" has the meaning set forth in Section 4(b)
hereof.
Section 2. Priority of Security Interests. So long as any
Financing Liabilities remain outstanding in respect of more than one Secured
Party, each of the Secured Parties hereby acknowledges and agrees as follows:
(a) The Security Interest held for the benefit of each
Secured Party in any Intercreditor Collateral ranks and will rank
equally in priority with the Security Interest held for the benefit of
the other Secured Parties in the same Intercreditor Collateral.
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(b) Notwithstanding anything to the contrary in clause (a),
the allocation of funds among the Secured Parties specified in this
Agreement with respect to (i) the Intercreditor Collateral, (ii) all
proceeds of the Intercreditor Collateral (including without limitation
all Loss Proceeds), and (iii) all amounts and funds retained in
accordance with the Indenture (other than the Debt Service Reserve
Account maintained pursuant thereto) in each case are applicable
irrespective of any statement to the contrary in any Financing
Document, Security Document or any other agreement, the time or order
or method of attachment or perfection of Liens, the time or order of
filing of financing statements, or the giving or failure to give
notice of the acquisition or expected acquisition of purchase money or
other security interests and to the extent not provided for in this
Agreement, the rights and priorities of the Secured Parties shall be
determined in accordance with applicable law.
Section 3. Exercise of Rights. So long as any Financing
Liabilities remain outstanding in respect of more than one Secured Party, each
of the Secured Parties hereby acknowledges and agrees as follows:
(a) The Collateral Agent shall administer the Intercreditor
Collateral in the manner contemplated by the Security Documents and
this Agreement and, only upon the occurrence and continuance of a
Trigger Event, shall exercise, upon the written instruction of the
Required Creditors in accordance with Sections 3 and 4 hereof, such
rights and remedies with respect to the Intercreditor Collateral as
are granted to it under the Security Documents, this Agreement and
applicable law; provided, however, that the Collateral Agent shall not
amend, modify or supplement (or agree or consent to any such
amendment, modification or supplement) directly or indirectly or in
the name of any Obligor, any Senior Secured Debt Document if such
amendment, modification or supplement shall adversely affect any
Secured Party in any material respect, such determination to be made
by the Issuer and evidenced by a certificate of the Issuer certifying
that there will be no material adverse effect, unless the Collateral
Agent shall have obtained the prior written consent of such Secured
Party to such amendment, modification or supplement, provided that,
without the consent of such Secured Party, the Collateral Agent may
make any amendment, modification or supplement permitted by the
related Senior Secured Debt Documents. The Collateral Agent shall
provide each Secured Party with at least 30 days' prior written notice
of all proposed amendments, modifications or supplements to the Senior
Secured Debt Documents that the Collateral Agent proposes to amend,
modify or supplement in accordance with the Security Documents.
(b) No Secured Party and no class or classes of Secured
Parties shall have any right, other than in accordance with Sections 3
and 4 hereof, to (i) sell, exchange, release or otherwise deal with
any property at any time pledged, assigned or mortgaged to secure the
Financing Liabilities in accordance with the Security Documents, (ii)
exercise or refrain from exercising any rights to direct the
Collateral Agent to take any action in respect of the Intercreditor
Collateral or (iii) take any other action with respect to the
Intercreditor Collateral (A) independently of the Collateral Agent or
(B) other than to direct the Collateral Agent to take action in
accordance with Sections 3 and 4 hereof.
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Any of the Secured Parties or the Collateral Agent (in the case of the
Collateral Agent in accordance with written direction in accordance
with this Agreement) may, at any time and from time to time (1) amend
in any manner any outstanding Senior Secured Debt Document to which it
is a party in accordance with the terms thereof, (2) release anyone
liable in any manner, or release any collateral (other than
Intercreditor Collateral) the benefits of which such Secured Party is
entitled, under or in respect of such Secured Party's Financing
Liabilities in accordance with the terms of the Senior Secured Debt to
which it is a party and (3) apply any sums from time to time received
for payment or satisfaction of such Secured Party's Financing
Liabilities except as otherwise provided in Section 5 hereof.
(c) Upon the written request of the Collateral Agent, such
Secured Party shall give the Collateral Agent written notice of the
outstanding Indebtedness amount owed by the Obligors to such Secured
Party under the related Senior Secured Debt Documents and any other
information that the Collateral Agent may reasonably request.
(d) To the extent that such Secured Party is entitled to the
benefits of collateral (other than Intercreditor Collateral), such
Secured Party shall use reasonable efforts to exercise or refrain from
exercising its rights with respect to such collateral in a manner so
as not to adversely affect the rights of the Collateral Agent, or any
other Secured Party in any material respect or to otherwise impair the
Intercreditor Collateral.
Section 4. Certain Actions. So long as any Financing
Liabilities remain outstanding in respect of more than one Secured Party, the
following provisions shall apply:
(a) Each Secured Party hereby agrees to give each other
Secured Party and the Collateral Agent written notice of the
occurrence of an Event of Default under such Secured Party's Senior
Secured Debt Documents of which it has written notice and of the
occurrence of an acceleration of the maturity of such Secured Party's
Financing Liabilities under such Secured Party's Senior Secured Debt
Documents wherein such Secured Party's Financing Liabilities have been
declared to be or have automatically become due and payable earlier
than the scheduled maturity thereof (or similar remedial actions
including, without limitation, demands for cash collateral, have been
taken) and setting forth the aggregate amount of Financing Liabilities
that have been so accelerated under such Senior Secured Debt
Documents, in each case as soon as practicable after the occurrence
thereof; provided, however, that the failure to provide such notice
shall not limit or impair the rights of the Secured Parties hereunder
or under the Senior Secured Debt Documents or the Security Documents.
No Secured Party shall be deemed to have knowledge or notice of the
occurrence of an Event of Default under the Senior Secured Debt to
which it is a party until such Secured Party has received a written
notice of such Event of Default from the Issuer, any Guarantor or any
other Person for whom such Secured Party is acting as agent or
trustee.
(b) The Collateral Agent hereby agrees to give each Secured
Party written notice of the occurrence of a Trigger Event (the date of
such notice, the "Trigger Event Date"), provided, however, that a
Responsible Officer of the Collateral Agent has actual
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knowledge of such occurrence or the Collateral Agent has received
written notice thereof. No Secured Party shall be deemed to have
knowledge or notice of the occurrence of any Trigger Event until such
Secured Party has received a written notice of such Trigger Event from
the Collateral Agent.
(c) The Obligors hereby agree that if a Trigger Event shall
have occurred and is continuing, the Collateral Agent is hereby
irrevocably authorized and empowered to act as the attorney-in-fact
for the Obligors with respect to the giving of any instructions or
notices with respect to the Intercreditor Collateral.
(d) If a Trigger Event shall have occurred, upon the written
request of the Required Creditors, the Collateral Agent shall realize
and foreclose upon the Intercreditor Collateral and take any and all
other actions and exercise any and all rights, remedies and options
which it may have under the Security Documents and which the Required
Creditors direct it to take under this Agreement.
(e) The proceeds of any sale, disposition or other
realization or foreclosure by the Collateral Agent upon the
Intercreditor Collateral or any portion thereof pursuant to the
Security Documents shall be governed by Section 6 hereof. Any
non-cash proceeds resulting from such liquidation of the Intercreditor
Collateral shall be held by the Collateral Agent for the benefit of
the Secured Parties until later sold or otherwise converted into cash,
at which time the Collateral Agent shall apply such cash in accordance
with Section 6.
Section 5. Receipt of Money or Proceeds. The Secured Parties
hereby agree that if, at any time during the term of this Agreement, any
Secured Party receives any payment or distribution of assets of any Obligor
(including any Subsequent Guarantor) of any kind or character (other than the
proceeds of collateral (other than Intercreditor Collateral) the benefits of
which such Secured Party is entitled, which, in each case shall be received,
retained and applied by the Person entitled thereto), whether moneys or cash
proceeds resulting from liquidation of the Intercreditor Collateral, other than
in accordance with the terms of this Agreement and the Senior Secured Debt
Documents, and such Secured Party shall hold such payment or distribution in
trust for the benefit of all of the Secured Parties and shall immediately remit
such payment or distribution to the Collateral Agent and the Collateral Agent
shall apply such moneys in accordance with the terms of this Agreement.
Section 6. Application of Proceeds. Except as otherwise
expressly provided herein, following the occurrence of a Trigger Event or upon
the exercise of remedies by the Secured Parties after an Event of Default, the
proceeds of any collection, sale or other realization of all or any part of the
Intercreditor Collateral pursuant to the Security Documents, and any other cash
at the time of such collection, sale or other realization held by the Collateral
Agent under the Security Documents or this Section 6, shall be applied by the
Collateral Agent in the following order of priority:
first, to the payment of (a) all reasonable costs and expenses
relating to the sale of the Intercreditor Collateral and the collection of all
amounts owing hereunder, including
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reasonable attorneys' fees and disbursements and the just compensation of the
Collateral Agent for services rendered in connection therewith or in connection
with any proceeding to sell if a sale is not completed, in each case whether
arising hereunder or under the other Security Documents or other Senior Secured
Debt Documents, (b) all charges, expenses and advances incurred or made by the
Collateral Agent in order to protect the Liens of the Security Documents, the
Security Interests in the Intercreditor Collateral or the security afforded
thereby, and (c) all liabilities incurred by the Collateral Agent which are
covered by the indemnity provisions of this Agreement or the other Security
Documents or other Senior Secured Debt Documents together with interest at the
rate per annum equal to the Post Default Rate;
second, to the payment to the Trustee, the Working Capital
Agents and each Senior Secured Agent for all fees and expenses due and owing
under the applicable Senior Secured Debt Documents;
third, to the payment to the Trustee, the Working Capital
Agents and each Senior Secured Debt Agent (for the benefit of itself and the
lenders under its related Senior Secured Debt Documents) of accrued and unpaid
interest (and commitment fees, in the case of the Working Capital Facility) on
the Bonds, the Working Capital Facility and any other Senior Secured Debt pro
rata in accordance with the respective amounts of unpaid interest owed to such
Person to be applied by each such Person in accordance with its related Senior
Secured Debt Documents pursuant to which such unpaid interest is payable;
fourth, to the payment to the Trustee, the Working Capital
Agents and each Senior Secured Debt Agent (for the benefit of itself and the
lenders under its related Senior Secured Debt Documents) of principal owed to
the Trustee, the Working Capital Agents and each Senior Secured Debt Agent (for
the benefit of itself and the lenders under its related Senior Secured Debt
Documents), respectively, hereunder or under any other Senior Secured Debt
Document or Security Document, pro rata, in accordance with the respective
amounts of principal owed to such Person to be applied by each such Person in
accordance with its related Senior Secured Debt Documents pursuant to which
such principal is payable;
fifth, to the payment to the Trustee, the Working Capital
Agents and each Senior Secured Debt Agent (for the benefit of itself and the
lenders under its related Senior Secured Debt Documents) of make-whole
premiums, if any, and breakage costs, if any, owed to the Trustee, the Working
Capital Agents and each Senior Secured Debt Agent (for the benefit of itself
and the lenders under its related Senior Secured Debt Documents), respectively,
hereunder or under any other Senior Secured Debt Document or Security Document,
pro rata, in accordance with the respective amounts of make-whole premiums and
breakage costs owed to such Person to be applied by each such Person in
accordance with its related Senior Secured Debt Documents pursuant to which
such make-whole premiums and breakage costs are payable;
sixth, to the payment to the Trustee, the Working Capital
Agents and each Senior Secured Debt Agent (for the benefit of itself and the
lenders under its related Senior Secured Debt Documents), of the other Secured
Obligations owed to the Trustee, the Working Capital Agents and each Senior
Secured Debt Agent (for the benefit of itself and the lenders under its related
Senior Secured Debt Documents), respectively, hereunder or under any Senior
Secured
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Debt Document or Security Document, pro rata in accordance with the respective
outstanding unpaid fees, charges and other unpaid Secured Obligations, owed to
such Person to be applied by each such Person in accordance with its related
Senior Secured Debt Document pursuant to which such Secured Obligations were
incurred; and
finally, to the payment to the relevant Obligor, or its
successors or assigns, or as a court of competent jurisdiction may direct, of
any surplus then remaining.
As used in this Section 6, "proceeds" of Intercreditor Collateral shall mean
cash, securities and other property realized in respect of, and distributions
in kind of, Intercreditor Collateral, including any thereof received under any
reorganization, liquidation or adjustment of Indebtedness of the Issuer or any
Guarantor or any issuer of or obligor on any of the Intercreditor Collateral.
The Collateral Agent waives any right of setoff it may have.
Section 7. Event of Eminent Domain; Event of Loss. (a) If
an Event of Eminent Domain shall occur with respect to any Intercreditor
Collateral, the Issuer or any Guarantor (including any Subsequent Guarantor)
shall (i) diligently pursue all of its rights to compensation against the
appropriate Governmental Authority in respect of such Event of Eminent Domain,
(ii) compromise, settle or consent to the settlement of any claim against the
appropriate Governmental Authority and (iii) hold all amounts and proceeds
(including instruments) received in respect of any Event of Eminent Domain
(after deducting all reasonable expenses incurred by it in litigating,
arbitrating, compromising, settling or consenting to the settlement of any
claims against the appropriate Governmental Authority) ("Eminent Domain
Proceeds") in trust for the Collateral Agent for the benefit of the Secured
Parties.
(b) If an Event of Loss (other than an Event of Eminent
Domain) shall occur with respect to any Intercreditor Collateral, the Issuer
shall (A) diligently pursue all of its rights to compensation against any
Person with respect to such Event of Loss, (B) if advisable in the reasonable
judgment of the Issuer, compromise, settle or consent to the settlement of any
claim against any Person with respect to such Event of Loss and (C) except as
otherwise provided or permitted hereunder, hold all Loss Proceeds (including
instruments) received in respect of any Event of Loss (after deducting all
reasonable expenses incurred by it in litigating, arbitrating, compromising,
settling or consenting to the settlement of any claims) in trust for the
Collateral Agent for the benefit of the Secured Parties.
(c) If an Event of Loss shall occur, as soon as reasonably
practicable, but no later than fifteen (15) days after the date of receipt by
the Issuer or the Collateral Agent of Loss Proceeds, as the case may be, the
Issuer shall make a reasonable good faith determination as to whether the
Affected Property can be rebuilt, repaired or restored. The determination of
the Issuer shall be evidenced by an Officer's Certificate of the Issuer filed
with the Trustee and the Collateral Agent which certifies that such rebuilding,
repair or restoration will not have a Material Adverse effect.
(d) If (x) an Event of Loss occurs and the Issuer has either
(i) determined that the Affected Property cannot be rebuilt, repaired or
restored or (ii) decided not to rebuild, repair or restore the Affected
Property and (y) Loss Proceeds exceed $10,000,000, all Loss Proceeds in
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excess of $10,000,000 shall be distributed pro rata among the Secured Parties;
provided that the pro rata share of Loss Proceeds owing to holders of Bonds
will be applied to a pro rata redemption of the Bonds in accordance with
Section 8.3 of the Indenture.
(e) In the event that the Issuer has determined that the
Affected Property be rebuilt, repaired or restored and the amount of the Loss
Proceeds remaining after the payment of the actual total cost of such
rebuilding, repair or restoration exceeds $5,000,000, the amount by which all
of the Loss Proceeds exceeds the actual total cost of rebuilding, repairing or
restoring the Affected Property which is in excess of $5,000,000 shall be
distributed pro rata among the Secured Parties; provided that the pro rata
share of Loss Proceeds owing to holders of Bonds will be applied to a pro rata
redemption of the Bonds in accordance with Section 8.3 of the Indenture.
Section 8. Appointment and Duties of Collateral Agent.
(a) Each of the Secured Parties hereby designates and
appoints The Chase Manhattan Bank to act as the Collateral Agent under the
Security Documents and this Agreement, and each of the Secured Parties hereby
acknowledges such appointment and the rights and powers of the Collateral Agent
under this Agreement and the Security Documents. The Collateral Agent may take
such actions on its behalf under the provisions of the Security Documents and
this Agreement and to exercise such powers and perform such duties as are
expressly delegated to the Collateral Agent by the terms of the Security
Documents and this Agreement, together with such other powers as are reasonably
incidental thereto. Notwithstanding any provision to the contrary elsewhere in
the Security Documents and this Agreement, the Collateral Agent shall not have
any duties or responsibilities, except those expressly set forth in the
Security Documents and this Agreement, or any fiduciary relationship with any
Secured Party, and no implied covenants, functions or responsibilities shall be
read into the Security Documents, this Agreement or otherwise exist against the
Collateral Agent. The Collateral Agent shall not be liable for any action taken
or omitted to be taken by it hereunder or under any Security Document, or in
connection herewith or therewith, or in connection with the Intercreditor
Collateral, unless caused by its gross negligence or willful misconduct.
(b) Notwithstanding anything to the contrary in this
Agreement or any Security Document, the Collateral Agent shall not exercise any
rights or remedies under any of the Security Documents or this Agreement or
give any consent (except consents given in conjunction with partial releases of
Intercreditor Collateral expressly permitted by the Security Documents) under
any of the Security Documents or this Agreement or enter into any agreement
amending, modifying, supplementing or waiving any provision of any Security
Document or this Agreement unless it shall have been directed to do so in
writing by the Required Creditors; provided that prior to the Debt Termination
Date the Collateral Agent shall not release or consent to release any
Intercreditor Collateral (except partial releases or consents given in
conjunction with partial releases of Intercreditor Collateral expressly
permitted by the Security Documents) without the written consent of all of the
Secured Parties.
Section 9. Rights of Collateral Agent.
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(a) The Collateral Agent may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by or
through agents, attorneys, custodians or nominees appointed with due care, and
shall not be responsible for any willful misconduct or negligence on the part of
any new agent, attorney, custodian or nominee so appointed. The Collateral Agent
may consult with counsel and the advice or any opinion of counsel shall be full
and complete authorization and protection in respect of any action taken or
omitted by it hereunder in good faith and in accordance with such advice or
opinion of counsel.
(b) Neither the Collateral Agent nor any of its officers,
directors, employees, agents, attorneys-in-fact or affiliates shall (i) be
liable for any action lawfully taken by it in good faith or omitted to be taken
by it under or in connection with any Security Document or this Agreement
(except for its gross negligence or willful misconduct) or (ii) be responsible
in any manner to any of the Secured Parties for any recitals, statements,
representations or warranties made by the Issuer or any Guarantor or any of
their representatives thereof contained in any Security Document or this
Agreement or in any certificate, report, statement or other document referred
to or provided for in, or received by the Collateral Agent under or in
connection with, any Security Document or this Agreement or for the value,
validity, effectiveness, genuineness, enforceability or sufficiency of the
Security Documents or this Agreement or for any failure of any Obligor to
perform its obligations thereunder. The Collateral Agent shall not be under
any obligation to any Secured Party to ascertain or to inquire as to the
observance or performance of any of the agreements contained in, or conditions
of, any Security Document or this Agreement, or to inspect the properties,
books or records of the Issuer or any of the Guarantors.
(c) The Collateral Agent shall be entitled to rely, and shall
be fully protected in relying, upon any note, writing, resolution, notice,
consent, certificate, affidavit, letter, cablegram, telegram, telecopy, telex
or teletype message, statement, order or other document or conversation
believed by it to be genuine and correct and to have been signed, sent or made
by the proper Person or Persons and upon advice and statements of legal counsel
(including, without limitation, counsel to the Issuer), independent accountants
and other experts selected by the Collateral Agent. In connection with any
request of the Required Creditors, the Collateral Agent shall be fully
protected in relying on a certificate of any Person, signed by an Authorized
Representative of such Person, setting forth the Financing Liabilities held by
such Person as of the date of such certificate, which certificate shall state
that the Person signing such certificate is an Authorized Representative of
such Person and shall state specifically the Security Document and provision
thereof pursuant to which the Collateral Agent is being directed to act. The
Collateral Agent shall be entitled to rely, and shall be fully protected in
relying on such certificate. The Collateral Agent shall be fully justified in
failing or refusing to take any action under any Security Document or this
Agreement (i) if such action would, in the opinion of the Collateral Agent
(upon consultation with counsel), be contrary to applicable law or the terms of
this Agreement or the other Security Documents, (ii) if such action is not
specifically provided for in such Security Document or this Agreement, and it
shall not have received such advice or concurrence of the Required Creditors as
it deems appropriate, (iii) if, in connection with the taking of any such
action that would constitute an exercise of remedies under such Security
Document or this Agreement, it shall not first be indemnified to its
satisfaction against any and all liability and expense which may be incurred by
it by reason of taking or continuing to take any such action or (iv) if,
notwithstanding anything to the contrary contained in Section 9(e)
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hereof, in connection with the taking of any such action that would constitute
a payment due under any Senior Secured Debt Document pursuant to the terms of
any consent, it shall not first have received from any or all of the Secured
Parties funds equal to the amount payable. The Collateral Agent shall in all
cases be fully protected in acting, or in refraining from acting, under any
Security Document or this Agreement in accordance with a request of the
Required Creditors (to the extent that the Required Creditors are expressly
authorized to direct the Collateral Agent to take or refrain from taking such
action), and such request and any action taken or failure to act pursuant
thereto shall be binding upon all the Secured Parties.
(d) If, with respect to a proposed action to be taken by it,
the Collateral Agent shall determine in good faith that the provisions of any
Security Document or this Agreement relating to the functions or
responsibilities or powers of the Collateral Agent are or may be ambiguous or
inconsistent, the Collateral Agent shall notify the Secured Parties,
identifying the proposed action and the provisions that it considers are or may
be ambiguous or inconsistent, and shall not perform such function or
responsibility or exercise such power unless it has received the written
confirmation of each of the Secured Parties that such Secured Party concurs in
the circumstances that the action proposed to be taken by the Collateral Agent
is consistent with the terms of this Agreement or such Security Document or is
otherwise appropriate. The Collateral Agent shall be fully protected in acting
or refraining from acting upon the confirmation of each of the Secured Parties
in this respect, and such confirmation shall be binding upon the Collateral
Agent. Each Secured Party may consult with counsel in determining the
appropriateness of the proposed action.
(e) The Collateral Agent shall not be deemed to have actual,
constructive, direct or indirect knowledge or notice of the occurrence of any
Event of Default or of the acceleration of the maturity of the Financing
Liabilities under any Secured Party's Senior Secured Debt Documents unless and
until a Responsible Officer of the Collateral Agent has received a written
notice or a certificate from such Secured Party stating that an Event of
Default has occurred under its Senior Secured Debt Documents or that such
acceleration of maturity has occurred. The Collateral Agent shall have no
obligation whatsoever either prior to or after receiving such notice or
certificate to inquire whether a Trigger Event has in fact occurred and shall
be entitled to rely conclusively, and shall be fully protected in so relying,
on any such notice or certificate so furnished to it. No provision of this
Agreement, any Senior Secured Debt Document or any Security Document shall
require the Collateral Agent to expend or risk its own funds or otherwise incur
any financial liability in the performance of any of its duties hereunder or
under any Security Document or in the exercise of any of its rights or powers,
if it shall have reasonable grounds for believing that repayment of such funds
or adequate indemnity against such risk or liability is not reasonably assured
to it. In the event that the Collateral Agent receives such a notice of or
certificate regarding the occurrence of any Trigger Event, the Collateral Agent
shall give notice thereof to the Secured Parties. The Collateral Agent shall
take such action with respect to such Trigger Event as so requested pursuant to
Sections 3 and 4 hereof.
(f) The Issuer shall pay upon demand to the Collateral Agent
the amount of any and all reasonable fees and out-of-pocket expenses, including
the reasonable fees and expenses of its counsel (and any local counsel) and of
any experts and agents, which the Collateral Agent
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may incur in connection with (i) without duplication of amounts payable in
accordance with any fee letter with the Collateral Agent expressly with respect
to the administration of this Agreement and the Security Documents, the
administration of this Agreement and the other Security Documents, (ii) the
custody or preservation of, or the sale of, collection from, or other
realization upon, any of the Intercreditor Collateral, (iii) the exercise or
enforcement (whether through negotiations, legal proceedings or otherwise) of
any of the rights of the Collateral Agent or the Secured Parties hereunder or
under the other Security Documents or (iv) the failure by the Issuer or any
Guarantor to perform or observe any of the provisions hereof or of any of the
other Security Documents.
(g) The Collateral Agent shall not be bound to make any
investigation into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, consent, entitlement
order, approval or other paper or document.
(h) Whenever in the administration of the provisions of this
Agreement the Collateral Agent shall deem it necessary or desirable that a
matter be proved or established prior to taking or suffering any action to be
taken hereunder, such matter (unless other evidence in respect thereof be herein
specifically prescribed) may, in the absence of gross negligence or bad faith on
the part of the Collateral Agent, be deemed to be conclusively proved and
established by a certificate signed by an officer of the Issuer and delivered to
the Collateral Agent and such certificate, in the absence of gross negligence or
bad faith on the part of the Collateral Agent, shall be full warrant to the
Collateral Agent for any action taken, suffered or omitted by it under the
provisions of this Agreement upon the faith thereof.
(i) Neither the Collateral Agent nor any of its officers,
directors, employees or agents shall be liable for any action taken or omitted
under this Agreement or in connection therewith except to the extent caused by
the Collateral Agent's gross negligence or willful misconduct, as determined by
the final judgment of a court of competent jurisdiction, no longer subject to
appeal or review. Anything in this Agreement to the contrary notwithstanding, in
no event shall the Collateral Agent be liable for special, indirect or
consequential loss or damage of any kind whatsoever (including but not limited
to lost profits), even if the Collateral Agent has been advised of the
likelihood of such loss or damage and regardless of the form of action.
(j) 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.
Section 10. Lack of Reliance on the Collateral Agent. Each of
the Secured Parties expressly acknowledges that neither the Collateral Agent nor
any of its officers, directors, employees, agents or attorneys-in-fact has made
any representations or warranties to it and that no act by the Collateral Agent
hereinafter taken, including, without limitation, any review of the affairs of
the Issuer or any Guarantor, shall be deemed to constitute any representation or
NRG Northeast Collateral Agency and Intercreditor Agreement
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warranty by the Collateral Agent to any Secured Party. Each Secured Party
(other than the Trustee or any other Secured Party that has no obligation to
make appraisals, investigations or credit analyses under the Senior Secured
Debt Documents to which it is a party) represents to the Collateral Agent that
it has, independently and without reliance upon the Collateral Agent or any
other Secured Party, and based on such documents and information as it has
deemed appropriate, made its own appraisal of and investigation into the
business, operations, property, financial and other condition and
creditworthiness of the Issuer and the Guarantors. Each Secured Party (other
than the Trustee or any other Secured Party that has no obligation to make
appraisals, investigations or credit analyses under the Senior Secured Debt
Documents to which it is a party) also represents that it will, independently
and without reliance upon the Collateral Agent or any other Secured Party, and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit analysis, appraisals and decisions in
taking or not taking action under this Agreement, and to make such
investigation as it deems necessary to inform itself as to the business,
operations, property, financial and other condition and creditworthiness of the
Issuer and the Guarantors. Except for notices, reports and other documents
expressly required to be furnished to the Secured Parties by the Collateral
Agent hereunder, the Collateral Agent shall not have any duty or responsibility
to provide any Secured Party with any credit or other information concerning
the business, operations, property, financial and other condition or
creditworthiness of the Issuer and the Guarantors which may come into the
possession of the Collateral Agent or any of its officers, directors,
employees, agents or attorneys-in-fact.
Section 11. Indemnification; Bankruptcy. (a) The Issuer and
the Guarantors jointly and severally agree to indemnify each of the Collateral
Agent, the Trustee, the Working Capital Agent, each Senior Secured Debt Agent
and each other Secured Party and, in their capacity as such, their officers,
directors, shareholders, controlling persons, employees, agents and servants
(each an "Indemnified Party") from and against any and all claims, damages,
losses, liabilities, obligations, penalties, actions, causes of action,
judgments, suits, costs, expenses or disbursements (including, without
limitation, reasonable attorneys' and consultants' fees and expenses)
(collectively "Damages") of any kind or nature whatsoever which may at any time
be imposed on, incurred by or asserted against any Indemnified Party (or which
may be claimed against any Indemnified Party by any Person) by reason of, in
connection with or in any way relating to or arising out of any Transaction
Document, any Collateral Document or any other Security Document, Financing
Document, any Intercreditor Collateral, or any other documents or transactions
in connection with or relating thereto (including, without limitation, Damages
in connection with environmental compliance) unless due to the gross negligence
or willful misconduct of such Indemnified Party. The Issuer and the Guarantors
further shall, upon demand by any Indemnified Party, pay to such Indemnified
Party all reasonable costs and expenses incurred by such Indemnified Party in
enforcing any rights under the Transaction Documents, Financing Documents,
Collateral Documents or any other Security Documents, including reasonable fees
and expenses of counsel. For purposes of this Section 11(a), the term "Secured
Party" shall include, but shall not be limited to, each Person for whom the
Trustee, the Working Capital Agent and each Senior Secured Debt Agent acts as
trustee or agent subject to limitations on individual rights of action and
other similar limitations set forth in the relevant Financing Documents.
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(b) The Secured Parties hereby agree that, except upon the
written consent of the Required Creditors, (i) no Secured Party shall authorize
the Issuer or any Guarantor to commence a voluntary case or other proceeding
seeking liquidation, reorganization or other relief with respect to the Issuer
or any Guarantor or their debts under any bankruptcy, insolvency or other
similar law now or hereafter in effect in any jurisdiction or seeking the
appointment of a trustee, receiver, liquidator, custodian or other similar
official of any of the Issuer or any Guarantor or any substantial part of their
property or to consent to any such relief or to the appointment of or taking
possession by any such official in an involuntary case or other proceeding
commenced against the Issuer or any Guarantor, or to make a general assignment
for the benefit of any Secured Party or any other creditor of the Issuer or any
Guarantor, and (ii) none of the Secured Parties shall commence or join with any
other Person (other than upon the written consent of the Required Creditors) in
commencing any proceeding against the Issuer or any Guarantor under any
bankruptcy, reorganization, liquidation or insolvency law or statute now or
hereafter in effect in any jurisdiction.
Section 12. Resignation or Removal of the Collateral Agent.
The Collateral Agent may resign as Collateral Agent upon 60 days' notice to the
Secured Parties and may be removed at any time with or without cause by the
Required Creditors, with any such resignation or removal to become effective
only upon the appointment of a successor Collateral Agent under this Section
12; provided, however, that if no successor Collateral Agent shall have been so
appointed within 60 days, the resigning Collateral Agent may petition any court
of competent jurisdiction for the appointment of a new Collateral Agent; and
provided, further, however, that if at any time prior to the occurrence of a
Trigger Event, the Collateral Agent is the same Person as the Trustee, the
Issuer, at the reasonable request of Persons who become Secured Parties after
the Closing Date, shall have the right to remove the Collateral Agent upon 60
days' notice to the Secured Parties with or without cause, effective upon the
appointment of a successor Collateral Agent under this Section 12. If the
Collateral Agent shall resign or be removed as Collateral Agent by the Required
Creditors or the Issuer, as applicable, then the Required Creditors shall (and
if no such successor shall have been appointed within 60 days of the Collateral
Agent's resignation or removal, the Collateral Agent may) appoint a successor
agent for the Secured Parties, which successor agent shall be reasonably
acceptable to the Issuer, whereupon such successor agent shall succeed to the
rights, powers and duties of the "Collateral Agent", and the term "Collateral
Agent" shall mean such successor agent effective upon its appointment, and the
former Collateral Agent's rights, powers and duties as Collateral Agent shall
be terminated, without any other or further act or deed on the part of such
former Collateral Agent (except that the resigning Collateral Agent shall
deliver all Intercreditor Collateral then in its possession to the successor
Collateral Agent) or any of the other Secured Parties. After any retiring
Collateral Agent's resignation or removal hereunder as Collateral Agent, the
provisions of this Agreement shall inure to its benefit as to any actions taken
or omitted to be taken by it while it was Collateral Agent.
Section 13. Representations and Warranties. Each of the
Secured Parties, excluding the Trustee, (other than any Secured Party that has
delivered an opinion or opinions of counsel referred to in the last sentence of
this Section 13) hereby makes the following representations and warranties as
of the date hereof or as of any date such Secured Party executes
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and delivers a counterpart of, and is designated as a Secured Party pursuant
to, a Designation Letter, with respect to itself and for the benefit of the
other Secured Parties:
(a) It is a corporation (or other such entity as applicable)
validly existing and in good standing under the laws of the
jurisdiction of its incorporation or formation, as the case may be,
and is duly qualified to do business in, and is in good standing in
all jurisdictions where the nature of the activities required to be
performed by it pursuant to this Agreement and the other Senior
Secured Debt Documents to which it is a party makes such qualification
necessary, except where the failure to effect such qualification would
not have a material adverse effect upon its ability to perform its
obligations pursuant to this Agreement.
(b) It has all necessary corporate or other relevant power,
as the case may be, to execute, deliver and perform under this
Agreement. All action on its part that is required for the
authorization, execution, delivery and performance of this Agreement
has been duly and effectively taken.
(c) This Agreement has been duly executed and delivered by
it, and constitutes the valid and binding obligation of it,
enforceable against it in accordance with the terms hereof, except as
such enforceability (i) may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium and other similar laws
affecting the enforcement of creditors' rights and remedies generally
and (ii) is subject to general principles of equity (regardless of
whether enforceability is considered in a proceeding in equity or at
law).
(d) Nothing has come to its attention that would lead it to
believe that the execution, delivery and performance of this Agreement
or the consummation of any of the transactions contemplated hereby or
performance of or compliance with the terms and conditions hereof (i)
contravenes any material requirement of Law applicable to it or (ii)
results in the violation of the provisions in its charter, certificate
of incorporation, by-laws, or other formation or governance document,
as applicable.
(e) Nothing has come to its attention that would lead it to
believe that there are any actions, suits or proceedings at law or in
equity or by or before any Governmental Authority now pending or
threatened which could reasonably be expected to have a material
adverse effect on its performance of its obligations hereunder or
which questions the validity, binding effect or enforceability hereof.
In lieu of making the foregoing representations and warranties, any Secured
Party may deliver to the Collateral Agent on or before the date such
representation and warranties are to be made in accordance with this Section 13
an opinion or opinions of counsel addressed to the Collateral Agent and having
substantially similar scope and subject to customary qualifications.
Section 14. Additional Secured Parties; Agreement for Benefit
of Parties Hereto.
NRG Northeast Collateral Agency and Intercreditor Agreement
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(a) Any Person which executes and delivers a counterpart of,
and is designated as a Secured Party pursuant to the terms of, a
Designation Letter, shall become a party hereto, shall be bound by and
subject to the terms and conditions hereof and the covenants,
stipulations and agreements contained herein.
(b) Nothing in this Agreement, express or implied, is
intended or shall be construed to confer upon, or to give to, any
Person other than the parties hereto and their respective successors
and assigns and Persons for whom the parties hereto are acting as
agents or representatives, any right, remedy or claim under or by
reason of this Agreement or any covenant, condition or stipulation
hereof; and the covenants, stipulations and agreements contained in
this Agreement are and shall be for the sole and exclusive benefit of
the parties hereto and their respective successors and assigns and
Persons for whom the parties hereto are acting as agents or
representatives.
Section 15. Severability. In case any one or more of the
provisions contained in this Agreement shall be invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein shall not in any way be affected or
impaired thereby.
Section 16. Notices. All notices, demands, certificates or
other communications hereunder shall be in writing and shall be deemed
sufficiently given or served for all purposes when delivered personally, when
sent by certified or registered mail, postage prepaid, return receipt
requested, or by private courier service, or, if followed and confirmed by mail
or courier service notice, when telecopied, in each case, with the proper
address as indicated below or as set forth in any effective Designation Letter.
Each party may, by written notice given to the other parties, designate any
other address or addresses to which notices, certificates or other
communications to them shall be sent as contemplated by this Agreement. Notices
shall be deemed to have been given if and when received by an officer, manager
or supervisor in the department of the addressee specified for attention
(unless the addressee refuses to accept delivery, in which case they shall be
deemed to have been given when first presented to the addressee for
acceptance); provided, however, that notices to the Collateral Agent must be
given to a Responsible Officer. Until otherwise so provided by the respective
parties, and as otherwise provided in the relevant Designation Letter, all
notices, certificates and communications to each of them shall be addressed as
follows:
Issuer: NRG Northeast Generating LLC
1221 Nicollet Mall
Suite 700
Minneapolis, MN 55403-2445
Attention: Investor Relations
Telecopier No.: (612) 373-5430
NRG Northeast Collateral Agency and Intercreditor Agreement
21
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With Copies to: NRG Energy, Inc.
1221 Nicollet Mall
Suite 700
Minneapolis, MN 55403-2445
Attention: General Counsel
Telecopier No.: (612) 373-5392
Working Capital Citibank, N.A.
Agents: as Working Capital Agent
399 Park Avenue
Fifth Floor, Zone 24
New York, New York 10043
Attention: Lorraine Frankel
Telecopier No.: (212) 793-4574
The Chase Manhattan Bank
as Working Capital Agent
1 Chase Manhattan Plaza
8th Floor
New York, New York 10081
Attention: Daniel Fischer
Telecopier No.: (212) 552-5777
With Copies to: The Chase Manhattan Bank
270 Park Avenue
New York, New York 10043
Attention: Bob Mathews
Telecopier No.: (212) 270-3089
Trustee: The Chase Manhattan Bank
as Trustee
Capital Markets Fiduciary Services
450 W. 33rd Street, 15th Floor
New York, New York 10001
Attention: Annette Marsula, International
and Project Finance Group
NRG Northeast Collateral Agency and Intercreditor Agreement
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Telecopier No.: 212-946-8177
Collateral Agent: The Chase Manhattan Bank
as Collateral Agent
Capital Markets Fiduciary Services
450 W. 33rd Street, 15th Floor
New York, New York 10001
Attention: Annette Marsula, International
and Project Finance Group
Telecopier No.: (212) 946-8177
Section 17. Successors and Assigns. Whenever in this
Agreement any of the parties hereto is named or referred to, the successors and
assigns of such party shall be deemed to be included and all covenants,
promises and agreements in this Agreement by or on behalf of the respective
parties hereto shall bind and inure to the benefit of the respective successors
and assigns of such parties, whether so expressed or not.
Section 18. Counterparts. This Agreement may be executed in
any number of counterparts, each executed counterpart constituting an original
but all counterparts together constituting only one instrument.
Section 19. Governing Law. THIS AGREEMENT SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO PRINCIPLES OF CONFLICTS OF LAWS THEREOF TO THE EXTENT THE APPLICATION
OF SUCH PRINCIPLES WOULD CAUSE THE APPLICATION OF THE LAWS OF ANY OTHER
JURISDICTION.
Section 20. Consent to Jurisdiction. ALL LEGAL ACTIONS OR
PROCEEDINGS BROUGHT AGAINST THE ISSUER OR THE GUARANTORS WITH RESPECT TO THIS
AGREEMENT OR ANY OTHER FINANCING DOCUMENT MAY BE BROUGHT IN ANY STATE OR
FEDERAL COURT OF COMPETENT JURISDICTION IN THE BOROUGH OF MANHATTAN IN THE
STATE OF NEW YORK, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT THE ISSUER
AND THE GUARANTORS ACCEPT FOR THEMSELVES AND IN CONNECTION WITH THEIR
PROPERTIES, THE JURISDICTION OF THE AFORESAID COURTS, AND IRREVOCABLY AGREE TO
BE BOUND BY ANY JUDGMENT RENDERED THEREBY IN CONNECTION WITH THIS AGREEMENT.
THE ISSUER AND THE GUARANTORS HEREBY EXPRESSLY AND IRREVOCABLY WAIVE ANY CLAIM
OR DEFENSE IN ANY SUCH ACTION OR PROCEEDING BASED ON ANY ALLEGED LACK OF
PERSONAL JURISDICTION, IMPROPER VENUE OR FORUM NON CONVENIENS OR ANY SIMILAR
BASIS. THE ISSUER AND EACH GUARANTOR FURTHER IRREVOCABLY CONSENTS TO THE
SERVICE OF ANY COMPLAINT, SUMMONS, NOTICE OR OTHER PROCESS RELATING TO ANY
LEGAL ACTION OR PROCEEDING BY DELIVERY THEREOF TO IT BY HAND OR BY MAIL TO THE
ADDRESS SET
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FORTH IN SECTION 16 HEREOF. NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE
SECURED PARTIES TO BRING PROCEEDINGS AGAINST THE ISSUER OR THE GUARANTORS IN
THE COURTS OF ANY OTHER JURISDICTION OR TO SERVE PROCESS IN ANY MANNER
PERMITTED BY LAW.
Section 21. Waiver of Jury Trial. AS AMONG THE ISSUER, THE
GUARANTORS AND THE COLLATERAL AGENT AND AS TO THIS AGREEMENT AND EACH SECURITY
DOCUMENT AND FINANCING DOCUMENT TO WHICH SUCH PERSONS ARE A PARTY, THE ISSUER,
THE GUARANTORS AND THE COLLATERAL AGENT HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVE ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT OR COUNTERCLAIM
ARISING IN CONNECTION WITH THIS AGREEMENT, ANY SUCH SECURITY DOCUMENT OR ANY
SUCH FINANCING DOCUMENT.
Section 22. No Impairments of Other Rights. Except as
expressly provided herein, nothing in this Agreement is intended or shall be
construed to impair, diminish or otherwise adversely affect any other rights
the Secured Parties may have or may obtain against the Issuer or the
Guarantors.
Section 23. Amendment; Waiver. No amendment or waiver of any
provision of this Agreement shall be effective unless the same shall be in
writing and signed by all the Secured Parties, and any such waiver or consent
shall be effective only in the specific instance and for the specific purpose
for which given. No delay on the part of any Secured Party in the exercise of
any right, power or remedy shall operate as a waiver thereof, nor shall any
single or partial waiver by such Secured Party of any right, power or remedy
preclude any further exercise thereof, or the exercise of any other right,
power or remedy. The Collateral Agent may, but shall not be obligated to,
execute and deliver any such supplement, modification or amendment which
modifies its rights, powers, duties, immunities or indemnities hereunder. In
executing any supplement, modification or amendment to this Agreement, the
Collateral Agent shall be entitled to receive and shall be fully protected in
relying upon, an opinion of counsel stating that the execution of such
supplement, modification or amendment is authorized or permitted by this
Agreement.
Section 24. Headings. Headings herein are for convenience
only and shall not be relied upon in interpreting or enforcing this Agreement.
Section 25. Termination. This Agreement shall remain in full
force and effect until the Debt Termination Date. Following the Debt
Termination Date, Section 11 hereof shall continue in full force and effect.
Section 26. Entire Agreement. This Agreement, including the
documents referred to herein, embodies the entire agreement and understanding
of the parties hereto and supersedes all prior agreements and understandings of
the parties hereto relating to the subject matter herein contained.
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Section 27. Limitation of Liability. Notwithstanding
anything to the contrary contained in this Collateral Agency Agreement and the
Security Documents,
(a) the liability and obligation of the Issuer and
the Guarantors to perform and observe and make good the obligations
contained in this Collateral Agency Agreement and the Security
Documents (such liability and obligation being herein referred to as
the "Obligations"), or any part thereof, or any claim based thereon or
otherwise in respect thereof shall not (except as expressly provided
in clause (b) below or in the last paragraph of this Section 27) be
enforced by any action or proceeding wherein damages or any money
judgment or any deficiency judgment or any judgment establishing any
personal obligation or liability shall be sought, collected or
otherwise obtained against any Member, any parent of a Member or any
past, present, future or incumbent member partner, officer, director,
shareholder, incorporator, Affiliate or related Person, of any Member
or the Issuer (each such Member, parent of a Member and past, present,
future or incumbent member partner, officer, director or shareholder,
incorporator, Affiliate or related Person being herein referred to as
a "Related Person"), and (except as expressly provided in clause (b)
below or in the last paragraph of this Section 27) the Collateral
Agent and any Person acting on behalf of the Collateral Agent for
itself and its successors and assigns, irrevocably waives any and all
right to sue for, seek or demand any such damages, money judgment,
deficiency judgment or personal judgment against any Related Person
under or by reason of or in connection with the Issuer's or any
Guarantor's Obligations, or any part thereof, or any claim based
thereon or otherwise in respect thereof and (except as expressly
provided in clause (b) below or in the last paragraph of this Section
27) agrees to look solely to the Issuer and Intercreditor Collateral
held under or in connection with the Security Documents for the
enforcement of the Issuer's Obligations; and
(b) The liability of the Related Persons with
respect to the Issuer's or any Guarantor's Obligations, or any part
thereof, or for any claim based thereon or otherwise in respect
thereof is (except as expressly provided in the last paragraph of this
Section 27) limited to the respective interests of such Related
Persons in the Intercreditor Collateral, and (except as expressly
provided in the last paragraph of this Section 27) no recourse shall
be had in the event of any non-performance by the Issuer of any of the
Issuer's Obligations to (i) any assets or properties of any Related
Person other than the respective interests of such Related Persons in
the Intercreditor Collateral or (ii) the Related Persons (except with
respect to the respective interests of such Related Persons in the
Intercreditor Collateral), and no judgment for any deficiency upon the
Issuer's Obligations, or any part thereof, or for any claim based
thereon or otherwise in respect thereof or related thereto, shall be
obtainable by the Collateral Agent or any Person acting on behalf of
the Collateral Agent.
Nothing contained in this Section 27 shall be construed (i) as
preventing the Collateral Agent or any Person acting on behalf of the
Collateral Agent from naming the Issuer, any Guarantor (including any
Subsequent Guarantor) or a Related Person in any action or proceeding brought
by the Collateral Agent or any Person acting on behalf of the Collateral Agent
to enforce and to realize upon the Intercreditor Collateral provided under or
in connection
NRG Northeast Collateral Agency and Intercreditor Agreement
25
-22-
with the Security Documents so long as no judgment, order, decree or other
relief in the nature of a personal or deficiency judgment or otherwise
establishing any personal obligation under or by reason of or in connection
with the Issuer's Obligations, or any part thereof, or any claim based thereon
or otherwise in respect thereof shall be asked for, taken, entered or enforced
against any Related Person, in any such action or proceeding, (ii) as
modifying, qualifying or affecting in any manner whatsoever the lien and
security interests created by this Collateral Agency Agreement and the Security
Documents and the other Transaction Documents or the enforcement thereof by the
Collateral Agent or any Person acting on behalf of the Collateral Agent, (iii)
as modifying, qualifying or affecting in any manner whatsoever the personal
recourse undertakings, obligations and liabilities of any Person (including,
without limitation, any Related Person) under any capital contribution
agreement, any guaranty of payment, completion guaranty or any guaranty or
indemnification agreement now or hereafter executed and delivered to the
Collateral Agent in connection with the Security Documents or (iv) as
modifying, qualifying or affecting in any manner whatsoever the personal
recourse liability of any Related Person, or any other Person for fraud or
willful misrepresentation or any wrongful misappropriation or diversion of any
portion of the Intercreditor Collateral.
Section 28. Execution in Lieu of Agent. To the extent that
any of the lenders under the Working Capital Facility or the holders of any
other indebtedness or obligation evidenced by Financing Documents are not
represented by a Working Capital Agent or Senior Secured Debt Agent, such
lenders under the Working Capital Facility, holder of Senior Secured Debt or
holder of any such other indebtedness or obligations shall be permitted to
execute this Agreement and the Designation Letter on its own behalf in lieu of
any agent on its behalf.
Section 29. Conflicts With Other Security Documents.
Notwithstanding any other provision hereof, in the event of any conflict
between the terms of this Agreement and the other Security Documents, the
provisions of this Agreement shall control.
Section 30. Effective Date. This Agreement and each of the
Security Documents executed and delivered in connection with the transactions
occurring on the Closing Date shall be and become effective on February 22,
2000.
NRG Northeast Collateral Agency and Intercreditor Agreement
26
IN WITNESS WHEREOF, the undersigned have caused this Agreement
to be duly executed by their duly authorized officers, all as of the date first
above written.
NRG NORTHEAST GENERATING LLC
By: /s/ Craig Mataczynski
---------------------
Name: Craig Mataczynski
Title: President
ARTHUR KILL POWER LLC
By: /s/ Brian B. Bird
-----------------
Name: Brian B. Bird
Title: Treasurer
ASTORIA GAS TURBINE POWER LLC
By: /s/ Brian B. Bird
-----------------
Name: Brian B. Bird
Title: Treasurer
CONNECTICUT JET POWER LLC
By: /s/ Brian B. Bird
-----------------
Name: Brian B. Bird
Title: Treasurer
DEVON POWER LLC
By: /s/ Brian B. Bird
-----------------
Name: Brian B. Bird
Title: Treasurer
DUNKIRK POWER LLC
By: /s/ Brian B. Bird
-----------------
Name: Brian B. Bird
Title: Treasurer
NRG Northeast Collateral Agency and Intercreditor Agreement
27
HUNTLEY POWER LLC
By: /s/ Brian B. Bird
-----------------
Name: Brian B. Bird
Title: Treasurer
MIDDLETOWN POWER LLC
By: /s/ Brian B. Bird
-----------------
Name: Brian B. Bird
Title: Treasurer
MONTVILLE POWER LLC
By: /s/ Brian B. Bird
-----------------
Name: Brian B. Bird
Title: Treasurer
NORWALK POWER LLC
By: /s/ Brian B. Bird
-----------------
Name: Brian B. Bird
Title: Treasurer
OSWEGO HARBOR POWER LLC
By: /s/ Brian B. Bird
-----------------
Name: Brian B. Bird
Title: Treasurer
SOMERSET POWER LLC
By: /s/ Brian B. Bird
-----------------
Name: Brian B. Bird
Title: Treasurer
CITIBANK, N.A.,
as Working Capital Agent
By: /s/ Jonathan B. Lindenberg
---------------------------
Name: Jonathan B. Lindenberg
Title: Managing Director
NRG Northeast Collateral Agency and Intercreditor Agreement
28
THE CHASE MANHATTAN BANK,
as Working Capital Agent
By: /s/ Robert M. Bowen II
----------------------
Name: Robert M. Bowen II
Title: Managing Director
THE CHASE MANHATTAN BANK,
as Trustee
By: /s/ Annette M. Marsula
----------------------
Name: Annette M. Marsula
Title: Vice President
THE CHASE MANHATTAN BANK,
as Collateral Agent
By: /s/ Annette M. Marsula
----------------------
Name: Annette M. Marsula
Title: Vice President
NRG Northeast Collateral Agency and Intercreditor Agreement
29
Exhibit A to
Collateral Agency and
Intercreditor Agreement
[FORM OF DESIGNATION LETTER]
[Date]
[COLLATERAL AGENT]
[ADDRESS]
Re: NRG Northeast Generating LLC
Ladies and Gentlemen:
Reference is made to (1) the Collateral Agency and
Intercreditor Agreement (the "Collateral Agency Agreement") dated as of
February 22, 2000 among NRG Northeast Generating LLC (the "Issuer"), the
Guarantors party thereto, the Trustee, the Working Capital Agent (as defined in
the Collateral Agency Agreement), each Senior Secured Debt Agent (as defined in
the Collateral Agency Agreement), and the Collateral Agent (as defined in the
Collateral Agency Agreement) and (2) [DESCRIBE NEW CREDIT DOCUMENTS].
Capitalized terms used herein and not defined herein shall have the meanings
set forth in the Collateral Agency Agreement.
The undersigned is the [BANK/LENDER][AGENT FOR THE [BANKS]
[LENDER]] under the [NEW CREDIT DOCUMENT].
The undersigned is delivering this Designation Letter pursuant
to Section 14 of the Collateral Agency Agreement in order to permit the
undersigned [and the [BANK][LENDER] under the [NEW CREDIT DOCUMENTS] to become
Secured Parties under the Collateral Agency Agreement and the Security
Documents and to benefit from the Intercreditor Collateral under the Security
Documents in accordance with the terms of the Collateral Agency Agreement and
the Security Documents.
Attached hereto is (i) a copy of the certificate delivered by
an executive officer of the Issuer delivered in connection with the [NAME OF
NEW CREDIT DOCUMENT] and (ii) a copy of the Collateral Agency Agreement.
30
2
The undersigned [on behalf of itself and the [BANKS] [LENDERS]
accedes to and agrees to be bound by all of the terms and provisions of the
Collateral Agency Agreement and the Security Documents.
Our address for notices is:
[Insert information]
Our wire transfer instructions are:
[Insert Information]
We agree that any extensions of credit under the [NEW CREDIT
DOCUMENTS] shall be deposited with the Trustee, to the extent required by the
Indenture.
This Designation Letter may be executed in any number of
counterparts, each executed counterpart constituting an original but all
counterparts together constituting only one instrument.
THIS DESIGNATION LETTER SHALL BE GOVERNED BY AND CONSTRUED AND
ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING
EFFECT TO ANY CONFLICTS OF LAWS PROVISIONS TO THE EXTENT THE APPLICATION OF
SUCH PRINCIPLES WOULD CAUSE THE APPLICATION OF THE LAWS OF ANY OTHER
JURISDICTION.
[CREDITOR]
By:
--------------------------
Name:
Title:
31
3
Acknowledged:
[COLLATERAL AGENT],
as Collateral Agent
By:
-------------------------
Name:
Title:
32
CERTIFICATE OF NRG NORTHEAST GENERATING LLC
I, [Name], [Title] of NRG Northeast Generating LLC (the
"Issuer"), NRG Northeast Generating LLC, DO HEREBY CERTIFY on behalf of the
Issuer that (capitalized terms used herein and not defined herein shall have
the meaning assigned thereto in the Collateral Agency Agreement (as amended,
modified and supplemented and in effect on the date hereof, the "Collateral
Agency Agreement") dated as of February 22, 2000 among the Issuer, the Trustee
(as defined in the Collateral Agency Agreement), the Working Capital Agent (as
defined in the Collateral Agency Agreement), each Senior Secured Debt Agent (as
defined in the Collateral Agency Agreement) and the Collateral Agent (as
defined in the Collateral Agency Agreement):
1. Debt incurred pursuant to [NAME OF NEW CREDIT DOCUMENT] is
permitted to be incurred in accordance with Section 6.8 of the Indenture and
each other Financing Document.
2. No event or condition has occurred and is continuing which
constitutes a Default or an Event of Default.
WITNESS my hand this [____] day of [___________, ____].
By:
--------------------------
Name:
Title: