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Exhibit 4.15
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PLEDGE AND SECURITY AGREEMENT
Dated as of March 30, 2000
by
NRG SOUTH CENTRAL GENERATING LLC
as Pledgor
to
THE CHASE MANHATTAN BANK
as Collateral Agent
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TABLE OF CONTENTS
Page
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RECITALS ...............................................................................1
AGREEMENT ..............................................................................1
ARTICLE 1
DEFINED TERMS; RULES OF INTERPRETATION
Section 1.1 Defined Terms ..............................................................2
Section 1.2 Rules of Interpretation ....................................................3
ARTICLE 2
PLEDGE
Section 2.1 Pledged Collateral .........................................................3
Section 2.2 Delivery of Certificates and Instruments ...................................4
Section 2.3 Pledgor's Rights ...........................................................5
Section 2.4 Secured Parties Not Liable .................................................6
Section 2.5 Attorney-in-Fact ...........................................................7
Section 2.6 Collateral Agent May Perform ...............................................7
Section 2.7 Reasonable Care ............................................................7
Section 2.8 Security Interest Absolute .................................................8
Section 2.9 Effective as a Financing Statement .........................................8
ARTICLE 3
REPRESENTATIONS AND WARRANTIES
Section 3.1 Necessary Filings ..........................................................9
Section 3.2 No Liens ...................................................................9
Section 3.3 Other Financing Statements .................................................9
Section 3.4 Chief Executive Office .....................................................9
Section 3.5 Consents, etc. .............................................................9
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ARTICLE 4
COVENANTS
Section 4.1 Sale of Pledged Collateral ................................................10
Section 4.2 No Other Liens ............................................................10
Section 4.3 Chief Executive Office ....................................................10
Section 4.4 Supplements; Further Assurances, etc ......................................10
Section 4.5 Amendment of Operating Agreement ..........................................10
Section 4.6 Certificates and Instruments ..............................................11
Section 4.7 Financing Statements ......................................................11
Section 4.8 Records; Statements and Schedules .........................................11
Section 4.9 Improper Distributions ....................................................12
Section 4.10 Bankruptcy ...............................................................12
ARTICLE 5
EXERCISE OF REMEDIES UPON AN EVENT OF DEFAULT
Section 5.1 Remedies Generally ........................................................12
Section 5.2 Sale of Pledged Collateral ................................................12
Section 5.3 Purchase of Pledged Collateral ............................................14
Section 5.4 Application of Proceeds ...................................................14
ARTICLE 6
MISCELLANEOUS PROVISIONS
Section 6.1 Notices ...................................................................14
Section 6.2 Continuing Security Interest ..............................................15
Section 6.3 Release ...................................................................15
Section 6.4 Reinstatement .............................................................15
Section 6.5 Independent Security ......................................................15
Section 6.6 Amendments ................................................................16
Section 6.7 Successors and Assigns ....................................................16
Section 6.8 Third Party Beneficiaries .................................................16
Section 6.9 Conflict with Indenture ...................................................16
Section 6.10 Survival .................................................................17
Section 6.11 No Waiver; Remedies Cumulative ...........................................17
Section 6.12 Counterparts .............................................................17
Section 6.13 Headings Descriptive .....................................................17
Section 6.14 Severability .............................................................17
Section 6.15 Governing Law; Submission to Jurisdiction; Waiver of Jury Trial ..........17
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Section 6.16 Entire Agreement .........................................................19
Section 6.17 Independent Obligations ..................................................19
Section 6.18 Limitation of Liability ..................................................19
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PLEDGE AND SECURITY AGREEMENT
This PLEDGE AND SECURITY AGREEMENT (this "Agreement"), dated as of
March 30, 2000, is made by NRG SOUTH CENTRAL GENERATING LLC, a Delaware limited
liability company (the "Pledgor") to THE CHASE MANHATTAN BANK, as collateral
agent (together with its successors in such capacity, the "Collateral Agent")
for the benefit of the Secured Parties.
RECITALS
WHEREAS, the Subsidiary Guarantor is acquiring the Project from
Cajun in the Acquisition; and
WHEREAS, in order to, among other things, fund the Acquisition of
the Project and to pay financing and other fees, expenses and costs associated
with the Acquisition, the Pledgor has determined to issue Bonds pursuant to the
Indenture initially in the aggregate principal amount of $800,000,000; and
WHEREAS, the Initial Bonds will be issued pursuant to the
Indenture, of even date herewith, between the Pledgor, the Subsidiary Guarantor
and the Bond Trustee; and
WHEREAS, the Pledgor, the Subsidiary Guarantor, the Members, the
Collateral Agent, and the Depositary Bank are entering into the other Security
Documents, pursuant to which the Collateral Agent, acting on behalf of the
Secured Parties, will obtain a continuing Lien on and perfected Security
Interest in the Collateral; and
WHEREAS, the Pledgor, the Subsidiary Guarantor, the Bond Trustee,
the Depositary Bank, the Working Capital Agent and the Collateral Agent have
entered into the Intercreditor Agreement; and
WHEREAS, as additional security for the Secured Obligations, the
Pledgor desires to grant to the Collateral Agent a Lien on and security interest
in, the Pledged Collateral.
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AGREEMENT
NOW THEREFORE, in consideration of the Secured Parties entering into the
Finance Documents and to induce the Secured Parties to release the proceeds of
the issuance and sale of the Initial Bonds, and for other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, the
Pledgor hereby agrees with the Collateral Agent as follows:
ARTICLE 1
DEFINED TERMS; RULES OF INTERPRETATION
Section 1.1 Defined Terms. (a) Unless otherwise defined herein, terms
defined in Appendix A to the Trust Indenture, dated as of March 30, 2000, among
the Pledgor, Louisiana Generating LLC and The Chase Manhattan Bank as Bond
Trustee (the "Indenture") shall have such defined meanings when used herein.
(b) The following terms shall have the following respective
meanings:
"Bankruptcy Event" shall mean, for any Person:
(a) such Person shall (i) apply for or authorize or approve or
consent to the appointment of, or the taking of possession by, a
receiver, custodian, trustee or liquidator of itself or all or a
substantial part of its property, (ii) admit in writing its inability or
be generally unable to pay its debts as such debts become due, (iii) make
a general assignment for the benefit of its creditors, (iv) commence a
voluntary case under the Federal Bankruptcy Code, (v) file a petition
seeking to take advantage of any other Debtor Relief Law, (vi) fail to
controvert in a timely and appropriate manner, or acquiesce in writing
to, any petition filed against it in an involuntary case under the
Federal Bankruptcy Code or any other Debtor Relief Law or (vii) take any
action for the purpose of effecting any of the foregoing including,
without limitation, commencing a shareholder vote in connection with any
of the foregoing; or
(b) a proceeding or case shall be commenced without the
application or consent of such Person in any court of competent
jurisdiction, seeking (i) its liquidation, reorganization, dissolution,
winding-up or the composition or readjustment of debts or (ii) the
appointment of a trustee, receiver, custodian,
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liquidator or the like of such Person or all or a substantial part of its
property under any Debtor Relief Law and such proceeding or case shall
continue undismissed, or any order, judgment or decree approving any of
the foregoing shall be entered and continue unstayed and in effect, for a
period of sixty (60) or more consecutive days, or any order for relief
against such Person shall be entered in any involuntary case under the
Federal Bankruptcy Code or any other Debtor Relief Law.
"Financing Statements" shall mean all financing statements,
recordings, filings or other instruments of registration necessary and
appropriate to perfect a security interest or Lien by filing in any appropriate
filing or recording office in accordance with the UCC as enacted in any and all
relevant jurisdictions or any other relevant applicable law.
"Membership Interests" shall have the meaning ascribed thereto in
Section 2.1(a)(i).
"Operating Agreement" shall mean the Third Amended and Restated
Limited Liability Company Agreement of Louisiana Generating LLC, dated as of
March 22, 2000, by the Pledgor.
"Pledged Collateral" shall have the meaning ascribed thereto in
Section 2.1(a).
"Securities Act" shall have the meaning ascribed thereto in
Section 5.2(b).
Section 1.2 Rules of Interpretation. Except as otherwise expressly
provided herein, the rules of interpretation set forth in Section 1.1 to the
Indenture shall apply to this Agreement.
ARTICLE 2
PLEDGE
Section 2.1 Pledged Collateral. (a) As collateral security for the prompt
and complete payment and performance when due, whether at stated maturity, by
acceleration or otherwise (including the payment of amounts which would become
due but for the operation of the automatic stay under Section 362(a) of the U.S.
Bankruptcy Code, 11 U.S.C. Section 362(a)), of all of the Secured Obligations,
whether
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now existing or hereafter arising and howsoever evidenced, the Pledgor hereby
pledges, grants, assigns, hypothecates, transfers and delivers to the Collateral
Agent, for its benefit and the ratable benefit of the other Secured Parties, a
first priority security interest in the following, whether now existing or
hereafter from time to time acquired (collectively, the "Pledged Collateral"):
(i) all of the Pledgor's membership interests in the
Subsidiary Guarantor (the "Membership Interests") and all of the
Pledgor's rights to acquire membership interests in the Subsidiary
Guarantor in addition to or in exchange or substitution for the
Membership Interests;
(ii) all of the Pledgor's rights, privileges, authority and
powers as a member of the Subsidiary Guarantor under the Operating
Agreement;
(iii) all certificates or other documents (if any)
representing any and all of the foregoing in clauses (i) and (ii),
including, without limitation, the certificates listed on Schedule I
hereto;
(iv) all dividends, distributions, cash, securities,
instruments and other property or proceeds of any kind to which the
Pledgor may be entitled in its capacity as a member of the Subsidiary
Guarantor by way of distribution, return of capital or otherwise;
(v) any other claim which the Pledgor now has or may in the
future acquire in its capacity as a member of the Subsidiary Guarantor
against the Subsidiary Guarantor and its property; and
(vi) all proceeds, products and accessions of and to any of
the property described in the preceding clauses (i) through (v).
(b) As used herein, the term "proceeds" shall be construed in its
broadest sense and shall include whatever is received or receivable when any of
the Membership Interests, or any proceeds thereof, are sold, collected,
exchanged or otherwise disposed of, whether voluntarily or involuntarily, and
shall include, without limitation, all rights to payment, including interest and
premiums, with respect to any of the Membership Interests or any proceeds
thereof.
Section 2.2 Delivery of Certificates and Instruments. All certificates or
instruments representing or evidencing the Membership Interests shall be
delivered
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to and held by or on behalf of the Collateral Agent pursuant hereto and shall be
in suitable form for transfer by delivery and shall be accompanied by duly
executed instruments of transfer or assignment in blank in the form as attached
as Exhibit A hereto, all in form and substance satisfactory to the Collateral
Agent. The Collateral Agent shall have the right, at any time following the
occurrence and during the continuation of an Event of Default, in its discretion
and without notice to the Pledgor, to transfer to or to register in its name or
in the name of any of its nominees any or all of the Membership Interests. Upon
the occurrence and during the continuance of an Event of Default, the
Collateral Agent shall have the right to exchange certificates or instruments
representing or evidencing any of the Membership Interests for certificates or
instruments of smaller or larger denominations.
Section 2.3 Pledgor's Rights.
(a) Distributions. Unless a Trigger Event shall have occurred, the
Pledgor shall be entitled to receive and retain any and all distributions paid
in respect of the Membership Interests (whether in cash or other property) in
compliance with the terms of the other Project Documents; provided, however,
that any and all
(i) distributions paid or payable in respect of the
Membership Interests (whether paid in cash, securities or other property)
in connection with (A) any partial or total liquidation or dissolution of
the Subsidiary Guarantor, (B) any distribution of capital of the
Subsidiary Guarantor, (C) any recapitalization or reclassification of the
capital of the Subsidiary Guarantor and (D) any reorganization of the
Subsidiary Guarantor, and
(ii) property (whether cash, securities or other property)
paid, payable or otherwise distributed in redemption of, or in exchange
for, the property described in clause (i) immediately above,
shall be, and shall be forthwith delivered to the Collateral Agent to hold as,
Pledged Collateral and shall, if received by the Pledgor, be received in trust
for the benefit of the Collateral Agent, be segregated from the other property
or funds of the Pledgor, be forthwith delivered to the Collateral Agent as
Pledged Collateral in the same form as so received (with any necessary
endorsement). Upon the occurrence of a Trigger Event, all rights of the Pledgor
to receive the distributions which it would otherwise be authorized to receive
and retain pursuant to the preceding sentence shall cease, and all such rights
shall thereupon become vested in the Collateral Agent which shall
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thereupon have the sole right to receive and hold as Pledged Collateral such
distributions.
(b) Other Rights. Unless a Trigger Event shall have occurred, the
Pledgor shall be entitled to exercise all voting and other rights with respect
to the Membership Interests; provided, however, that no vote shall be cast,
right exercised or other action taken which would knowingly have a Material
Adverse Effect or which would knowingly be materially inconsistent with or
knowingly result in any violation of any provision of this Agreement or any
other Finance Document unless so required by law. Upon the occurrence of a
Trigger Event and upon election by the Collateral Agent, all voting and other
rights of the Pledgor with respect to the Membership Interests which the Pledgor
would otherwise be entitled to exercise pursuant to the terms of this Agreement
shall cease, and all such rights shall be vested in the Collateral Agent which
shall thereupon have the sole right to exercise such rights.
(c) Turnover. All distributions and other amounts which are
received by the Pledgor contrary to the provisions of this Agreement shall be
received in trust for the benefit of the Collateral Agent, shall be segregated
from other funds of the Pledgor and shall be forthwith paid over to the
Collateral Agent as Pledged Collateral in the same form as so received (with
any necessary endorsement).
Section 2.4 Secured Parties Not Liable. Notwithstanding any other
provision contained in this Agreement, the Pledgor shall remain liable under the
Operating Agreement to observe and perform all of the conditions and obligations
to be observed and performed by the Pledgor thereunder. None of the Collateral
Agent, any other Secured Party or any of their respective directors, officers,
employees, affiliates or agents shall have any obligations or liability under or
with respect to any Pledged Collateral by reason of or arising out of this
Agreement, except as set forth in Section 9-207 of the UCC as in effect from
time to time in the State of New York, or the receipt by the Collateral Agent of
any payment relating to any Pledged Collateral, nor shall any of the Collateral
Agent, any other Secured Party or any of their respective directors, officers,
employees, affiliates or agents be obligated in any manner to (a) perform any of
the obligations of the Pledgor under or pursuant to the Operating Agreement or
any other agreement to which the Pledgor is a party, (b) make any payment or
inquire as to the nature or sufficiency of any payment or performance with
respect to any Pledged Collateral, (c) present or file any claim or collect the
payment of any amounts or take any action to enforce any performance with
respect to the Pledged Collateral or (d) take any other action whatsoever with
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respect to the Pledged Collateral, in each case, other than as required under
this Agreement and the other Security Documents.
Section 2.5 Attorney-in-Fact. (a) The Pledgor hereby appoints the
Collateral Agent, on behalf of the Secured Parties, or any Person, officer or
agent whom the Collateral Agent may designate, as its true and lawful
attorney-in-fact and proxy, with full irrevocable power and authority in the
place and stead of the Pledgor and in the name of the Pledgor or in its own
name, at the Pledgor's reasonable cost and expense, from time to time in the
Collateral Agent's reasonable discretion to take any action and to execute any
instrument which the Collateral Agent may reasonably deem necessary or advisable
to enforce its rights under this Agreement, including, without limitation,
authority to receive, endorse and collect all instruments made payable to the
Pledgor representing any distribution, interest payment or other payment in
respect of the Pledged Collateral or any part thereof to be paid over to the
Collateral Agent pursuant to Section 2.3(c) and to give full discharge for the
same.
(b) The Pledgor hereby ratifies all that said attorney shall
lawfully do or cause to be done by virtue hereof, in each case pursuant to the
powers granted hereunder. The Pledgor hereby acknowledges and agrees that the
Collateral Agent shall have no fiduciary duties to the Pledgor and the Pledgor
hereby waives any claims or rights of a beneficiary of a fiduciary relationship
hereunder.
Section 2.6 Collateral Agent May Perform. If the Pledgor fails to perform
any agreement contained herein after receipt of a written request to do so from
the Collateral Agent, the Collateral Agent may (but shall not be obligated to)
itself perform, or cause performance of, such agreement, and the reasonable
expenses of the Collateral Agent, including the reasonable fees and expenses of
its counsel, incurred in connection therewith shall be payable by the Pledgor
under Section 5.5; provided that if a Bankruptcy Event shall have occurred with
respect to the Pledgor, the written request described in this Section 2.6 shall
not be required and shall be deemed to have been delivered upon the failure of
the Pledgor to perform such agreement.
Section 2.7 Reasonable Care. The Collateral Agent shall be deemed to have
exercised reasonable care in the custody and preservation of the Pledged
Collateral in its possession if the Pledged Collateral is accorded treatment
substantially equivalent to that which the Collateral Agent accords its own
property of the type of which the Pledged Collateral consists, it being
understood that the Collateral Agent shall have no responsibility for (a)
ascertaining or taking action with respect to calls, conver-
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sions, exchanges, maturities, tenders or other matters relative to any Pledged
Collateral, whether or not the Collateral Agent has or is deemed to have
knowledge of such matters, or (b) taking any necessary steps to preserve rights
against any parties with respect to any Pledged Collateral.
Section 2.8 Security Interest Absolute. All rights of the Collateral Agent
and security interests hereunder, and all obligations of the Pledgor hereunder,
shall be absolute and unconditional irrespective of:
(a) any lack of validity or enforceability of any of the Finance
Documents or any other agreement or instrument relating thereto;
(b) any change in the time, manner or place of payment of, or in
any other term of, all or any of the Secured Obligations, or any other
amendment or waiver of or any consent to any departure from the Finance
Documents or any other agreement or instrument relating thereto;
(c) any exchange, release or non-perfection of any other
collateral, or any release or amendment or waiver of or consent to any
departure from any guaranty, for all or any of the Secured Obligations; or
(d) any other circumstance which might otherwise constitute a
defense available to, or a discharge of, the Pledgor, except as otherwise
provided herein.
Section 2.9 Effective as a Financing Statement. This Agreement shall also
be effective as a Financing Statement covering any Pledged Collateral and may be
filed in any appropriate filing or recording office. A carbon, photographic,
facsimile or other reproduction of this Agreement or of any Financing Statement
relating to this Agreement shall be sufficient as a Financing Statement for any
of the purposes referred to in the preceding sentence.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES
The Pledgor represents and warrants, as of the date of this Agreement and
the Closing Date, as follows, which representations and warranties shall survive
the execution and delivery of this Agreement and the making and repayment of the
Secured Obligations:
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Section 3.1 Necessary Filings. All filings, registrations and recordings
necessary or appropriate to create, preserve, protect and perfect the security
interest granted to the Collateral Agent hereby in respect of the Pledged
Collateral have been accomplished and the security interest granted to the
Collateral Agent pursuant to this Agreement in and to the Pledged Collateral
constitutes (i) a valid and enforceable perfected security interest therein 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) is prior to all other Liens on the Pledged Collateral in existence on
the date hereof.
Section 3.2 No Liens. The Pledgor is the owner of all of its right, title
and interest in the Pledged Collateral pledged by it hereunder free from any
Lien or other right, title or interest of any Person other than the Lien created
pursuant to this Agreement and other than Permitted Liens.
Section 3.3 Other Financing Statements. There is no Financing Statement
(or similar statement or instrument of registration under the law of any
jurisdiction) executed by the Pledgor, or, to the knowledge of the Pledgor after
due inquiry, by any other Person covering or purporting to cover any interest of
any kind in the Pledged Collateral hereunder, except Financing Statements filed
or to be filed in respect of and covering the security interests granted hereby
by the Pledgor.
Section 3.4 Chief Executive Office. The chief executive office of the
Pledgor and the office where the Pledgor keeps its records concerning the
Pledged Collateral is located at: 1221 Nicollet Mall, Suite 700, Minneapolis,
Minnesota 55403.
Section 3.5 Consents, etc. No consent, authorization, approval or other
action by, and no notice to or filing with, any governmental authority is
required either (i) for the pledge by the Pledgor of the Pledged Collateral
pursuant to this Agreement or for the due execution, delivery or performance of
this Agreement by the Pledgor, or (ii) for the exercise by the Collateral Agent
of the voting or other rights provided for in this Agreement or of the remedies
in respect of the Pledged Collateral pursuant to this Agreement, except as may
be required in connection with the disposition of the Pledged Collateral by laws
affecting the offering and sale of securities generally.
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ARTICLE 4
COVENANTS
The Pledgor hereby covenants and agrees from and after the date of this
Agreement until the termination of this Agreement in accordance with the
provisions of Section 6.3:
Section 4.1 Sale of Pledged Collateral. Except as otherwise permitted by
the Finance Documents, the Pledgor shall not sell or otherwise dispose of, or
grant any option or warrant with respect to, any of the Pledged Collateral.
Section 4.2 No Other Liens. The Pledgor shall not create, incur or permit
to exist, shall defend the Pledged Collateral owned by it against and shall take
such other action as is reasonably necessary to remove, any Lien or claim on or
to the Pledged Collateral, other than the Lien created pursuant to this
Agreement, and shall defend the right, title and interest of the Collateral
Agent in and to the Pledged Collateral against the claims and demands of all
Persons whomsoever.
Section 4.3 Chief Executive Office. The Pledgor shall not establish a new
location for its chief executive office or change its name until (i) it has
given to the Collateral Agent not less than thirty (30) days prior written
notice of its intention so to do, clearly describing such new location or
specifying such new name, as the case may be, and (ii) with respect to such new
location or such new name, as the case may be, it shall have taken all action,
satisfactory to the Collateral Agent, to maintain the security interest of the
Collateral Agent in the Pledged Collateral intended to be granted hereby at all
times fully perfected and in full force and effect.
Section 4.4 Supplements; Further Assurances, etc. The Pledgor shall at
any time and from time to time, at the reasonable expense of the Pledgor,
promptly execute and deliver all further instruments and documents, and take all
further action, that may be necessary or desirable, or that the Collateral Agent
may reasonably request, in order to perfect and protect any security interest
granted or purported to be granted hereby or to enable the Collateral Agent to
exercise and enforce its rights and remedies hereunder with respect to any
Pledged Collateral.
Section 4.5 Amendment of Operating Agreement. Except as otherwise
specifically provided in the Finance Documents, the Pledgor shall not, without
the prior written consent of the Collateral Agent, acting upon directions from
the Secured Parties pursuant to the Intercreditor Agreement, or as otherwise
expressly.
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provided herein, agree to or permit (a) the cancellation or termination of the
Operating Agreement, except upon the expiration of the stated term thereof, or
(b) any amendment, supplement, or modification of, or waiver with respect to any
of the provisions of, the Operating Agreement, except to the extent that such
amendment, supplement, modification or waiver would not reasonably be expected
to result in a Material Adverse Effect.
Section 4.6 Certificates and Instruments. The Pledgor shall deliver all
certificates or other documents representing the Pledged Collateral to the
Collateral Agent with all necessary instruments of transfer or assignment duly
indorsed in blank. In the event the Pledgor obtains possession of any other
certificates, or other securities or instruments forming a part of the Pledged
Collateral, the Pledgor shall promptly deliver same to the Collateral Agent
together with all necessary instruments of transfer or assignment duly indorsed
in blank. Prior to any such delivery, any Pledged Collateral in the Pledgor's
possession shall be held by the Pledgor in trust for the Collateral Agent.
Section 4.7 Financing Statements. The Pledgor shall sign and deliver to
the Collateral Agent and the other Secured Parties such Financing Statements (or
similar statements or instruments of registration under the law of any
jurisdiction), as are necessary under applicable law to establish and maintain
the security interests contemplated hereunder as valid, enforceable, first
priority security interests as provided herein and the other rights and security
contemplated herein, all in accordance with the UCC as enacted in any and all
relevant jurisdictions or any other applicable law. The Pledgor shall pay any
applicable filing fees and related expenses. The Pledgor authorizes the
Collateral Agent to file any such Financing Statements (or similar statements or
instruments of registration under the law of any jurisdiction) without the
signature of the Pledgor.
Section 4.8 Records; Statements and Schedules. The Pledgor shall keep and
maintain, at its own cost and expense, records of the Pledged Collateral owned
by it, including, but not limited to, records of all payments received with
respect thereto, and upon reasonable notice, and during normal business hours,
the Pledgor shall make the same available to the Collateral Agent for inspection
at the Pledgor's chief executive office, at the Pledgor's own cost and expense.
The Pledgor shall furnish to the Collateral Agent from time to time statements
and schedules further identifying and describing the Pledged Collateral and such
other reports in connection with the Pledged Collateral as the Collateral Agent
may reasonably request, all in reasonable detail.
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Section 4.9 Improper Distributions. Notwithstanding any other provision
contained in this Agreement, the Pledgor shall not accept any distributions,
dividends or other payments (or any collateral in lieu thereof) in respect of
the Pledged Collateral, except to the extent the same are expressly permitted
by the terms of this Agreement and the other Finance Documents.
Section 4.10 Bankruptcy. The Pledgor shall not authorize or permit the
Subsidiary Guarantor to (a) commence a voluntary case or other proceeding
seeking liquidation, reorganization or other relief with respect to the
Subsidiary Guarantor or the Subsidiary Guarantor's debts under any Bankruptcy
Law now or hereafter in effect or seeking the appointment of a trustee,
receiver, liquidator, custodian or other similar official of the Subsidiary
Guarantor or any substantial part of the Subsidiary Guarantor's property, (b)
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
Subsidiary Guarantor or (c) make a general assignment for the benefit of the
Subsidiary Guarantor's creditors. The Pledgor shall not commence or join with
any other Person (other than the Collateral Agent and the other Secured Parties)
in commencing any proceeding against the Subsidiary Guarantor under any
Bankruptcy Law now or hereafter in effect in any jurisdiction.
ARTICLE 5
EXERCISE OF REMEDIES UPON AN EVENT OF DEFAULT
_______The provisions of this Article 5 shall apply only upon the occurrence and
during the continuance of an Event of Default.
Section 5.1 Remedies Generally. If an Event of Default shall have
occurred and be continuing, the Collateral Agent, upon directions from the
Secured Parties pursuant the Intercreditor Agreement, or as otherwise expressly
provided herein, may exercise, in addition to all other rights and remedies
granted in this Agreement and in any other instrument or agreement securing,
evidencing or relating to the Secured Obligations, all rights and remedies of a
secured party under the UCC in effect from time to time in any relevant
jurisdiction and all other rights and remedies available at law or in equity.
Section 5.2 Sale of Pledged Collateral. (a) Without limiting the
generality of Section 5.1, the Collateral Agent, upon directions from the
Secured Parties pursuant to the Intercreditor Agreement, or as otherwise
expressly provided herein,
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may, with notice as required by applicable law, sell the Pledged Collateral or
any part thereof in one or more parcels at public or private sale or at any of
the Collateral Agent's corporate trust office or elsewhere, for cash, on credit
or for future delivery, and at such price or prices and upon such other terms as
the Collateral Agent may reasonably deem commercially reasonable, irrespective
of the impact of any such sales on the market price of the Pledged Collateral at
any such sale. Each purchaser at any such sale shall hold the property sold
absolutely free from any claim or right on the part of the Pledgor, and the
Pledgor hereby waives (to the extent permitted by law) all rights of redemption,
stay and/or appraisal which it now has or may at any time in the future have
under any rule of law or statute now existing or hereafter enacted. The Pledgor
agrees that, to the extent notice of sale shall be required by law, at least ten
(10) days' notice to the Pledgor of the time and place of any public sale or the
time after which any private sale is to be made shall constitute reasonable
notification. The Collateral Agent shall not be obligated to make any sale of
Pledged Collateral regardless of notice of sale having been given. The
Collateral Agent may adjourn any public or private sale from time to time by
announcement at the time and place fixed therefor, and such sale may, without
further notice, be made at the time and place to which it was so adjourned.
Assuming that such sales are made in compliance with federal and state
securities laws and the UCC, the Collateral Agent shall incur no liability as a
result of the sale of the Pledged Collateral, or any part thereof, at any public
or private sale. The Pledgor hereby waives any claims against the Collateral
Agent arising by reason of the fact that the price at which any Pledged
Collateral may have been sold at such a private sale, if commercially
reasonable, was less than the price which might have been obtained at a public
sale, even if the Collateral Agent accepts the first offer received and does not
offer the Pledged Collateral to more than one offeree.
(b) The Pledgor recognizes that the Collateral Agent, upon directions
from the Secured Parties pursuant to the Intercreditor Agreement, or as
otherwise expressly provided herein, may elect to sell all or any part of the
Pledged Collateral to one or more purchasers in privately negotiated
transactions in which the purchasers will be obligated to agree, among other
things, to acquire the Pledged Collateral for their own account, for investment
and not with a view to the distribution or resale thereof. The Pledgor
acknowledges that any such private sales may be at prices and on terms less
favorable than those obtainable through a public sale (including, without
limitation, a public offering made pursuant to a registration statement under
the Securities Act of 1933, as amended (the "Securities Act")), and the Pledgor
and the Collateral Agent agree that such private sales shall be made in a
commercially reasonable manner and that the Collateral Agent has no obligation
to engage in
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public sales and no obligation to delay sale of any Pledged Collateral to permit
the issuer thereof to register the Pledged Collateral for a form of public sale
requiring registration under the Securities Act. If the Collateral Agent, upon
directions from the Secured Parties pursuant to the Intercreditor Agreement, or
as otherwise expressly provided herein, determines to exercise its right to sell
any or all of the Pledged Collateral, upon written request, the Pledgor shall,
from time to time, furnish to the Collateral Agent all such information as the
Collateral Agent may request in order to determine the number of shares and
other instruments included in the Pledged Collateral which may be sold by the
Collateral Agent as exempt transactions under the Securities Act and rules of
the Securities and Exchange Commission thereunder, as the same are from time to
time in effect.
Section 5.3 Purchase of Pledged Collateral. The Collateral Agent may be a
purchaser of the Pledged Collateral or any part thereof or any right or interest
therein at any sale thereof, whether pursuant to foreclosure, power of sale or
otherwise hereunder and the Collateral Agent may apply the purchase price to the
payment of the Secured Obligations. Any purchaser of all or any part of the
Pledged Collateral shall, upon any such purchase, acquire good title to the
Pledged Collateral so purchased, free of the security interests created by this
Agreement.
Section 5.4 Application of Proceeds. The Collateral Agent shall apply any
proceeds from time to time held by it and the net proceeds of any collection,
recovery, receipt, appropriation, realization or sale with respect to the
Pledged Collateral in accordance with Section 5.3 of the Intercreditor
Agreement. For avoidance of doubt, it is understood that the Subsidiary
Guarantor shall remain liable to the extent of any deficiency between the amount
of proceeds of the Pledged Collateral and the aggregated amount of the Secured
Obligations in accordance with the Finance Documents.
ARTICLE 6
MISCELLANEOUS PROVISIONS
Section 6.1 Notices. Unless otherwise specifically herein provided, all
notices required or permitted under the terms and provisions hereof shall be in
writing and any such notice shall become effective if given in accordance with
the provisions of Section 12.5 of the Indenture
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Section 6.2 Continuing Security Interest. This Agreement shall create a
continuing security interest in the Pledged Collateral until the release thereof
pursuant to Section 6.3.
Section 6.3 Release. (a) Upon the indefeasible payment in full of the
Secured Obligations in cash or cash equivalents and the termination of all
commitments of the Secured Parties under the Finance Documents, the Collateral
Agent, upon the written request, and at the expense, of the Pledgor, shall
execute and deliver all such documentation necessary to release the security
interest created pursuant to this Agreement.
(b) Upon the sale or disposition of any portion of the Pledged Collateral
permitted pursuant to the terms of the Finance Documents, including, but not
limited to, any Permitted Asset Sale, the purchaser of such portion of the
Pledged Collateral shall, upon such purchase, acquire good title to the Pledged
Collateral so purchased, free of the security interests created by this
Agreement. The Collateral Agent, upon the written request, and at the expense,
of the Pledgor, shall execute and deliver all such documentation necessary to
evidence such release of the security interest created in such Pledged
Collateral pursuant to this Agreement.
Section 6.4 Reinstatement. This Agreement shall continue to be effective
or be reinstated, as the case may be, if at any time any amount received by the
Collateral Agent or any other Secured Party hereunder or pursuant hereto is
rescinded or must otherwise be restored or returned by the Collateral Agent or
such Secured Party upon a Bankruptcy Event of the Pledgor or the Subsidiary
Guarantor or upon the appointment of any intervenor or conservator of, or
trustee or similar official for, the Pledgor or the Subsidiary Guarantor or any
substantial part of the Pledgor's or the Subsidiary Guarantor's assets, or upon
the entry of an order by any court avoiding the payment of such amount, or
otherwise, all as though such payments had not been made.
Section 6.5 Independent Security. The security provided for in this
Agreement shall be in addition to and shall be independent of every other
security which the Secured Parties may at any time hold for any of the Secured
Obligations hereby secured, whether or not under the Finance Documents. The
execution of any other Finance Document shall not modify or supersede the
security interest or any rights or obligations contained in this Agreement and
shall not in any way affect, impair or invalidate the effectiveness and validity
of this Agreement or any term or condition hereof. The Pledgor hereby waives its
right to plead or claim in any court that the
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execution of any other Finance Document is a cause for extinguishing,
invalidating, impairing or modifying the effectiveness and validity of this
Agreement or any term or condition contained herein. The Collateral Agent shall
be at liberty to accept further security from the Pledgor or from any third
party and/or release such security without notifying the Pledgor and without
affecting in any way the obligations of the Pledgor under the Finance Documents.
The Collateral Agent, upon written directions from the Secured Parties pursuant
to the Intercreditor Agreement, or as otherwise expressly provided herein,
shall determine if any security conferred upon the Collateral Agent under the
Finance Documents shall be enforced by the Collateral Agent, as well as the
sequence of securities to be so enforced.
Section 6.6 Amendments. No waiver, amendment, modification or
termination of any provision of this Agreement, or consent to any departure by
the Pledgor therefrom, shall in any event be effective without the prior written
consent of the Collateral Agent, acting upon written directions from the Secured
Parties pursuant to the Intercreditor Agreement, or as otherwise expressly
provided herein, and none of the Pledged Collateral shall be released without
the written consent of the Collateral Agent, acting upon directions from the
Secured Parties pursuant to the Intercreditor Agreement, or as otherwise
expressly provided herein. Any such waiver or consent shall be effective only in
the specific instance and for the specific purpose for which given.
Section 6.7 Successors and Assigns. This Agreement shall be binding upon
the Pledgor and its successors and assigns and shall inure to the benefit of the
Collateral Agent and the other Secured Parties and their respective successors
and assigns. The Pledgor may not assign or otherwise transfer any of its rights
or obligations under this Agreement without the written consent of the
Collateral Agent, acting upon written directions from the Secured Parties
pursuant to the Intercreditor Agreement, or as otherwise expressly provided
herein.
Section 6.8 Third Party Beneficiaries. The agreements of the parties
hereto are intended to benefit the Secured Parties and their respective
successors and assigns.
Section 6.9 Conflict with Indenture. In case of a conflict between any
provision of this Agreement and any provision of the Indenture, the provisions
of the Indenture shall control and govern. No such conflict shall be deemed to
exist thereby because this Agreement imposes greater obligations on the
Subsidiary Guarantor or the Pledgor than the Indenture.
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Section 6.10 Survival. All agreements, statements, representations and
warranties made by the Pledgor herein or in any certificate or other instrument
delivered by the Pledgor or on its behalf under this Agreement shall be
considered to have been relied upon by the Collateral Agent and the other
Secured Parties and shall survive the execution and delivery of this Agreement
and the other Finance Documents until termination thereof or the indefeasible
payment in full in cash or cash equivalents of all of the Secured Obligations
and the termination of all commitments of the Secured Parties under the Finance
Documents regardless of any investigation made by the Collateral Agent or the
other Secured Parties or made on their behalf.
Section 6.11 No Waiver; Remedies Cumulative. No failure or delay on the
part of the Collateral Agent in exercising any right, power or privilege
hereunder and no course of dealing between the Pledgor and the Collateral Agent
shall operate as a waiver thereof; nor shall any single or partial exercise of
any right, power or privilege hereunder preclude any other or further exercise
thereof or the exercise of any other right, power or privilege hereunder or
thereunder. The rights and remedies herein expressly provided are cumulative and
not exclusive of any rights or remedies which the Collateral Agent would
otherwise have.
Section 6.12 Counterparts. This Agreement may be executed in any number
of counterparts and by the different parties hereto on separate counterparts,
each of which when so executed and delivered shall be an original, but all of
which shall together constitute one and the same instrument.
Section 6.13 Headings Descriptive. The headings of the several Sections
and subsections of this Agreement are inserted for convenience only and shall
not in any way affect the meaning or construction of any provision of this
Agreement.
Section 6.14 Severability. In case any provision contained in or
obligation under this Agreement shall be invalid, illegal or unenforceable in
any jurisdiction, the validity, legality and enforceability of the remaining
provisions or obligations, or of such provision or obligation in any other
jurisdiction, shall not in any way be affected or impaired thereby.
Section 6.15 Governing Law; Submission to Jurisdiction; Waiver of Jury
Trial.
(a) THIS AGREEMENT IS A CONTRACT MADE UNDER THE LAWS OF THE STATE
OF NEW YORK OF THE UNITED STATES AND
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SHALL FOR ALL PURPOSES BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF SUCH STATE WITHOUT REGARD TO THE CONFLICT OF LAW RULES THEREOF (OTHER THAN
SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW).
(b) Any legal action or proceeding against the Pledgor with
respect to this Agreement may be brought in the courts of the State of New York
in the County of New York or of the United States for the Southern District of
New York and, by execution and delivery of this Agreement, the Pledgor hereby
irrevocably submits and accepts for itself and in respect of its property,
generally and unconditionally, the jurisdiction of the aforesaid courts. The
Pledgor agrees that a judgment, after exhaustion of all available appeals, in
any such action or proceeding shall be conclusive and binding upon the Pledgor
and may be enforced in any other jurisdiction, by a suit upon such judgment, a
certified copy of which shall be conclusive evidence of the judgment. The
Pledgor hereby irrevocably designates, appoints and empowers CT Corporation
System with offices on the date hereof at 111 Eighth Avenue, New York, N.Y.
10011, as its designee, appointee and agent to receive, accept and acknowledge
for and on its behalf, and in respect of its property, service of any and all
legal process, summons, notice and documents which may be served in any such
action or proceeding. If for any reason such designee, appointee and agent shall
cease to be available to act as such agent, the Pledgor agrees to designate a
new designee, appointee and agent in New York City on the terms and for the
purposes of this provision satisfactory to the Collateral Agent. The Pledgor
further irrevocably consents to the service of process out of any of the
aforementioned courts in any such action or proceeding by the mailing of copies
thereof by registered or certified mail, postage prepaid, to the Pledgor at its
address referred to in Section 6.1, such service to become effective thirty (30)
days after such mailing. Nothing herein shall affect the right of the Collateral
Agent or any other Person to serve process in any other manner permitted by law
or to commence legal proceedings or otherwise proceed against the Pledgor in any
other jurisdiction.
(c) The Pledgor hereby irrevocably waives any objection which it
may now or hereafter have to the laying of venue of any of the aforesaid actions
or proceedings arising out of or in connection with this Agreement in the courts
referred to in clause (b) above and hereby further irrevocably waives and agrees
not to plead or claim in any such court that any such action or proceeding
brought in any such court has been brought in an inconvenient forum.
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(d) WITH REGARD TO THIS AGREEMENT, EACH PARTY HERETO HEREBY WAIVES
THE RIGHT TO A TRIAL BY JURY.
Section 6.16 Entire Agreement. This Agreement, together with any other
agreement executed in connection herewith, is intended by the parties as a final
expression of their agreement as to the matters covered hereby and is intended
as a complete and exclusive statement of the terms and conditions thereof.
Section 6.17 Independent Obligations. The Pledgor's obligations under
this Agreement are independent of those of the Subsidiary Guarantor. The
Collateral Agent may bring a separate action against the Pledgor without first
proceeding against the Subsidiary Guarantor or any other Person or any other
security held by the Collateral Agent and without pursuing any other remedy.
Section 6.18 Limitation of Liability. The provisions of Section 12.11 of
the Indenture shall apply to this Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Pledge and
Security Agreement to be duly executed and delivered by their officers thereunto
duly authorized as of the date first above written.
NRG SOUTH CENTRAL GENERATING LLC
By: /s/ Craig A. Mataczynski
----------------------------
Name: Craig A. Mataczynski
Title: President
THE CHASE MANHATTAN BANK,
solely in its capacity as the Collateral Agent
By: /s/ Annette M. Marsula
----------------------------
Name: Annette M. Marsula
Title: Vice President
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Schedule I to
Pledge and
Security Agreement
Certificates
Certificate No. 3 representing a 100% interest in Louisiana Generating LLC.
Sch. I - 1
26
Exhibit A to
Pledge and
Security Agreement
ASSIGNMENT SEPARATE FROM CERTIFICATE
FOR VALUE RECEIVED, NRG SOUTH CENTRAL GENERATING LLC hereby assigns and
transfers unto ___________________________ [ ] membership interests of
LOUISIANA GENERATING LLC, a Delaware limited liability company (the "Limited
Liability Company"), standing in its name on the books of the Limited Liability
Company, which is represented by Certificate No. [ ], authorizing any officer
of the Limited Liability Company to transfer said membership interests on the
books of the within named Limited Liability Company with full power of
substitution.
DATED as of __________ ___, 20000
NRG SOUTH CENTRAL GENERATING LLC
a Delaware limited liability company
By:
------------------------------------
Sch. I - 2