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Exhibit 4.5
[FORM OF GLOBAL BOND FOR 9.479% SERIES B-1 SENIOR SECURED BOND DUE 2024]
NRG SOUTH CENTRAL GENERATING LLC
9.479% Senior Secured Series B-1 Bonds Due 2024
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY ("DTC") TO THE COMPANY OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER REPRESENTATIVE OF DTC AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL BOND SHALL BE LIMITED TO TRANSFERS IN WHOLE,
BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL BOND SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE
INDENTURE.
CUSIP Number: 62937MAF6
ISIN Number: US62937MAF68
Principal Amount: $
Maturity Date: September 15, 2024
Issue Date: [__________], 2001
Interest Rate: 9.479%
Registered Holder: Cede & Co.
NRG SOUTH CENTRAL GENERATING LLC, a Delaware limited liability
company (the "Issuer," which term includes any successor or assign under the
Indenture referred to below), for value received hereby promises to pay to
Cede & Co., or its registered assigns, on each date (each a "Payment Date") the
principal sum corresponding to such Payment Date set forth on Schedule I of the
Indenture, or on such earlier date as the entire principal hereof may become due
in accordance with the provisions of the Indenture, and to pay interest in
arrears on each March 15 and September 15 (each an "Interest Payment Date"),
commencing September 15, 2000, on said principal sum at the rate of 9.479% per
annum. Interest shall accrue from and
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including the most recent date to which interest has been paid or duly provided
for, from September 15th, 2000 until payment of said principal sum has been made
or duly provided for. The interest payable on any such Interest Payment Date
will, subject to certain conditions set forth herein, be paid to the person in
whose name this Bond is registered at the end of the fifteenth day next
preceding each Interest Payment Date. Such payments shall be made exclusively in
such coin or currency of the United States of America as at the time of payment
shall be legal tender for the payment of public and private debts.
The statements in the legend set forth above, if any, are an integral
part of the terms of this Bond and by acceptance hereof the holder of this Bond
agrees to be subject to and bound by the terms and provisions set forth in such
legend, if any.
REFERENCE IS MADE TO THE FURTHER PROVISIONS SET FORTH UNDER THE TERMS
AND CONDITIONS OF THE BONDS ENDORSED ON THE REVERSE HEREOF. SUCH FURTHER
PROVISIONS SHALL FOR ALL PURPOSES HAVE THE SAME EFFECT AS THOUGH FULLY SET FORTH
AT THIS PLACE.
Unless the certificate of authentication hereon has been executed by
the Bond Trustee referred to on the reverse hereof by manual signature, this
Bond shall not be entitled to any benefit under the Indenture or be valid for
any purpose.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly
executed.
Dated: ___________, 2001
NRG SOUTH CENTRAL GENERATING LLC
By:
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Name:
Title:
This is one of the Bonds described in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK
as Bond Trustee
By:
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Authorized Signatory
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TERMS AND CONDITIONS OF BONDS
Principal Amount: $
Interest Rate: 9.479%
Payment Dates: March 15 and September 15
(commencing September 15, 2000)
Minimum Denominations: US$100,000 and integral multiples of
$1,000 in excess thereof.
Other Terms:
1. General. This Bond is one of a duly authorized issue of
debt securities (the "Bonds") of NRG SOUTH CENTRAL GENERATING LLC (the "the
Issuer") issued pursuant to an Indenture (the "Indenture") dated as of March 30,
2000, between the Issuer and THE CHASE MANHATTAN BANK, as Bond Trustee. All
capitalized terms used but not otherwise defined herein shall have the meanings
given to such terms in Appendix A of the Indenture. The Holders of the Bonds
will be entitled to the benefits of, be bound by and be deemed to have notice
of, all of the provisions of the Indenture. A copy of the Indenture is on file
and may be inspected at the Corporate Trust Office of the Bond Trustee in The
City of New York, at the offices of the paying agents listed at the foot of this
Bond and at the principal office of the Issuer set forth in Section 18 hereto.
2. Payments and Paying Agencies. (a) All payments on this
Bond shall be made exclusively in immediately available funds and in such coin
or currency of the United States of America which, at the time of payment, is
legal tender for the payment of public and private debts.
(b) The Person in whose name any Bond is registered at the
close of business on any Regular Record Date immediately preceding any Payment
Date shall be entitled to receive the principal, premium (if any) and/or
interest payable on such Payment Date notwithstanding the cancellation of such
Bond upon any transfer or exchange thereof subsequent to such Regular Record
Date and prior to such Payment Date; provided, however, that if and to the
extent there is a default in the payment of the principal, premium (if any)
and/or interest due with respect to any Bond on such Payment Date, such
defaulted principal, premium (if any) and/or interest shall be paid to the
Holder in whose names Outstanding Bonds are registered at the close of business
on a subsequent date (each such date, a "Special Record Date") determined by the
Bond Trustee as provided in Section 2.4 of the Indenture.
(c) If any date for the payment of principal of, premium (if
any) or interest on the Bond is not a Business Day, such payment shall be due on
the first Business Day thereafter. Any payment made on such next succeeding
Business Day shall have the same force and effect as if made on the date on
which such payment is due, and no interest shall accrue for the period after
such date.
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(d) Interest shall be calculated on the basis of a 360-day
year of twelve 30-day months.
3. Amendments and Supplements to Indenture.
(a) Without Consent of Holders.
Subject to the Intercreditor Agreement, the Indenture may be amended
or supplemented by the Issuer and the Bond Trustee at any time and from time to
time, without the consent of the Holders by a Supplemental Indenture authorized
by a resolution of the Management Committee of the Issuer filed with, and in
form satisfactory to, the Bond Trustee, solely for one or more of the following
purposes:
(i) to add additional covenants of the Issuer or any of the
other obligors on the Bonds, to surrender any right or power herein
conferred upon the Issuer or any of the other obligors on the Bonds or to
confer upon the Holders any additional rights, remedies, benefits, powers
or authorities that may lawfully be conferred;
(ii) to increase the assets securing the Issuer's obligations
under the Indenture;
(iii) to provide for the issuance of Additional Bonds on the
conditions set forth in Section 2.3 of the Indenture;
(iv) for any purpose not inconsistent with the terms of the
Indenture to cure any ambiguity or to correct or supplement any provision
contained herein or in any Supplemental Indenture which may be defective
or inconsistent with any other provision contained herein or in any
Supplemental Indenture;
(v) in connection with, and to reflect, any amendments to the
provisions hereof required by the Rating Agencies in circumstances where
confirmation of the Ratings are required under the Indenture in connection
with the issuance of Additional Bonds or the taking of other actions by
the Issuer; provided, however, that such amendments are not, in the
judgment of the Bond Trustee, to the prejudice of the Bond Trustee or the
Holders;
(vi) to provide for the issuance of Exchange Bonds and Private
Exchange Bonds, as contemplated by the Registration Rights Agreement or
similar exchange bonds in respect of Additional Bonds;
(vii) to evidence the succession of another Person to the Issuer
or any other obligor on the Bonds as permitted by the terms of the Finance
Documents, and the assumption by any such successor of the covenants of
the Issuer or such obligor contained herein and in the Bonds;
(viii) to evidence and provide for the acceptance of appointment
of a successor Bond Trustee under the Indenture;
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(ix) to mortgage, pledge, hypothecate or grant a security
interest in favor of the Bond Trustee for the benefit of the Holders as
additional security for the payment and performance of the Issuer's
obligations under the Indenture; or
(x) to comply with any requirements of the Commission or the
Trust Indenture Act in order to effect and maintain the qualification of
the Indenture under the Trust Indenture Act.
(b) With Consent of Holders.
Subject to the Intercreditor Agreement, the Indenture may be amended
or supplemented by the Issuer and the Bond Trustee at any time and from time to
time, with the consent of the Majority Holders, for the purpose of adding any
mutually agreeable provisions to or changing in any manner or eliminating any of
the provisions of, the Indenture, except with respect to (a) the principal,
premium (if any) or interest payable upon any Bonds, (b) the dates on which
interest on or principal of any Bonds is paid, (c) the dates of maturity of any
Bonds and (d) Article 8 of the Indenture. Subject to the Intercreditor
Agreement, the matters of the Indenture described in clauses (a) through (d) of
the preceding sentence may be amended or supplemented by the Issuer and the Bond
Trustee at any time and from time to time only with the consent of the One
Hundred Percent Holders. Notice of any such amendment shall be given by the
Issuer to any Rating Agency then maintaining a Rating for the Bonds.
4. Mutilated, Lost, Destroyed or Stolen Bonds. (a) If any
Bond shall become mutilated, the Issuer shall execute, and the Bond Trustee
shall authenticate and deliver, a new Bond of like tenor, maturity and
denomination in exchange and substitution for the Bond so mutilated, but only
upon surrender to the Bond Trustee of such mutilated Bond for cancellation, and
the Issuer or the Bond Trustee may require reasonable indemnity therefor. If any
Bond shall be reported lost, stolen or destroyed, evidence as to the ownership
and the loss, theft or destruction thereof shall be submitted to the Bond
Trustee. If such evidence shall be satisfactory to both the Bond Trustee and the
Issuer and indemnity satisfactory to both shall be given, the Issuer shall
execute, and thereupon the Bond Trustee shall authenticate and deliver, a new
Bond of like tenor, maturity and denomination. The cost of providing any
substitute Bond under the provisions of Section 2.10 of the Indenture shall be
borne by the Holder for whose benefit such substitute Bond is provided. If any
such mutilated, lost, stolen or destroyed Bond shall have matured or be about to
mature, the Issuer may, with the consent of the Bond Trustee, pay to the Holder
thereof the principal amount of such Bond upon the maturity thereof and
compliance with the aforesaid conditions by such Holder, without the issuance of
a substitute Bond therefor, and likewise pay to the Holder the amount of the
unpaid interest, if any, which would have been paid on a substitute Bond had one
been issued.
(b) Every substitute Bond issued pursuant to Section 2.10 of
the Indenture shall constitute an additional contractual obligation of the
Issuer, whether or not the Bond alleged to have been mutilated, destroyed, lost
or stolen shall be at any time enforceable by anyone, and shall be entitled to
all the benefits of this Indenture equally and proportionally with any and all
other Bonds duly issued hereunder.
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(c) All Bonds shall be held and owned upon the express
condition that the foregoing provisions are, to the extent permitted by
Applicable Law, exclusive with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Bonds, and shall preclude any and all other
rights and remedies with respect thereto.
5. Bond Trustee. For a description of the duties and the
immunities and rights of the Bond Trustee under the Indenture, reference is made
to the Indenture, and the obligations of the Bond Trustee to the Holder hereof
are subject to such immunities and rights.
6. Paying Agents; Authenticating Agents; Registrars. The
Issuer has initially appointed the Bond Trustee as Paying Agent, Authenticating
Agent and Registrar. The Issuer may, subject to the terms of the Indenture, at
any time appoint additional or other paying agents, authenticating agents and
registrars and terminate the appointment thereof, provided, that while the Bonds
are Outstanding, the Issuer will maintain offices or agencies for payment of
principal of and interest on this Bond as herein provided in the Borough of
Manhattan, The City of New York. Notice of any such termination or appointment
and of any change in the office through which any paying agent, authenticating
agent or registrar will act will be promptly given in the manner described in
Section 8 hereof.
7. Enforcement. (a) Subject to the Intercreditor Agreement
and the other provisions of Article 5 of the Indenture, a Holder shall not have
the right to institute any suit, action or proceeding at law or in equity or
otherwise for the appointment of a receiver or for the enforcement of any other
remedy under or upon this Indenture, unless:
(i) such Holder shall have previously given written notice to
the Bond Trustee of a continuing Event of Default;
(ii) Holders representing the percentage of aggregate principal
amount of Outstanding Bonds needed to initiate the exercise of remedies
shall have requested the Bond Trustee in writing to institute such suit,
action or proceeding;
(iii) the Bond Trustee shall have refused or neglected to
institute any such suit, action or proceeding for sixty (60) days after
receipt of such notice by the Bond Trustee; and
(iv) no direction inconsistent with such written request has
been given to the Bond Trustee during such sixty (60) day period by the
Majority Holders.
(b) Subject to the Intercreditor Agreement, it is understood
and intended that one or more of the Holders shall not have any right in any
manner whatsoever hereunder or under the Bonds to (i) surrender, impair, waive,
affect, disturb or prejudice the Lien of the Security Documents on any property
subject thereto or the rights of any other Holders, (ii) obtain or seek to
obtain priority or preference over any other Holders or (iii) enforce any right
under the Indenture, except in the manner provided herein or in the Indenture
and for the equal, ratable and common benefit of all of the Holders.
8. Notices. Notices will be mailed to Holders at their
registered addresses. Notice sent by first class mail, postage prepaid, shall be
deemed to have been given on the date
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of such mailing. In addition, the Issuer will cause all such other publications
of such notices as may be required from time to time by Applicable Law.
9. Redemption at the Option of the Issuer. The Bonds are,
under certain conditions, subject to redemption at the option of the Issuer as
set forth in Section 3.1 of the Indenture.
10. Redemption at the Option of the Holders. The Bonds are,
under certain conditions, subject to redemption at the option of the Holders as
set forth in Section 3.1 of the Indenture.
11. Mandatory Redemption. The Bonds are subject to mandatory
redemption under certain circumstances as set forth in Section 3.2 of the
Indenture.
12. Authentication. This Bond shall not be valid for any
purpose until an Authorized Representative of the Bond Trustee manually signs
the certificate of authentication hereon substantially in the form set forth at
the end of the form of the Bond attached to the Indenture as Exhibit A.
13. Governing Law. This Bond is a contract made under the laws
of the State of New York of the United States and shall for all purposes be
governed by and construed in accordance with the laws of such State without
regard to the conflict of law rules thereof (other than Section 5-1401 of the
New York General Obligations Law).
14. Warranty by the Issuer. Subject to Section 1.2, the Issuer
hereby certifies and warrants that all acts, conditions and things required to
be done and performed and to have happened precedent to the creation and
issuance of this Bond, and to constitute the same a legal, valid and binding
obligation of the Issuer enforceable in accordance with its terms, have been
done and performed and have happened in due and strict compliance with all
Applicable Laws.
15. Bond Trustee Dealings with the Issuer. Subject to certain
limitations imposed by the Act, the Bond Trustee under the Indenture, in its
individual or any other capacity, may become the owner or pledgee of Bonds and
may otherwise deal with and collect obligations owed to it by the Issuer or its
Affiliates and may otherwise deal with the Issuer or its Affiliates with the
same rights it would have if it were not Bond Trustee.
16. No Recourse Against Others. A director, officer, employee,
partner, affiliate, agent, servant or shareholder, as such, of the Issuer or the
Bond Trustee shall not have any liability for any obligations of the Issuer
under the Bonds or the Indenture or for any claim based on, in respect of or by
reason of such obligations or their creation. The Bonds shall be payable from,
and recourse solely to, the Guarantees and the Collateral. By accepting a Bond,
each Holder waives and releases all such liability. The waiver and release are
part of the consideration for the issue of the Bonds.
17. CUSIP Numbers. Pursuant to a recommendation promulgated by
the Committee on Uniform Security Identification Procedures, the Issuer has
caused CUSIP numbers to be printed on the Bonds and has directed the Bond
Trustee to use CUSIP numbers in notices of redemption as a convenience to
Holders. No representation is made as to the accuracy of such
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numbers either as printed on the Bonds or as contained in any notice of
redemption and reliance may be placed only on the other identification number
placed thereon. The Issuer will promptly notify the Bond Trustee of any change
in the CUSIP numbers.
18. Indentures. The Issuer will furnish to any Holder upon
written request and without charge a copy of the Indenture. Requests may be made
to: NRG SOUTH CENTRAL GENERATING LLC at 901 Marquette Avenue, Suite 2300,
Minneapolis, Minnesota 55402-3265, Attention: General Counsel, Telecopier No.:
(612) 373-5392.
19. Abbreviations. Customary abbreviations may be used in the
name of a Holder or an assignee, such as TEN COM (Tenants in Common), TEN ENT
(Tenants by the Entireties), JT TEN (Joint Tenants with Rights of Survivorship
and not as Tenants in Common), CUST (Custodian), and U/G/M/A (Uniform Gift to
Minors Act).
20. Descriptive Headings. The descriptive headings appearing
in these Terms and Conditions are for convenience of reference only and shall
not alter, limit or define the provisions thereof.
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