EXHIBIT 2.03
Execution Copy
Released-Based Amount Agreement
This Agreement, is made and entered into as of December 5, 2003, by and
among (i) Xcel Energy Inc., a Minnesota corporation ("Xcel") and (ii) NRG
Energy, Inc., a Delaware corporation ("NRG" and together with Xcel, the
"Parties").
RECITALS
WHEREAS, on May 14, 2003, NRG filed a voluntary petition for relief
under chapter 11 of the Bankruptcy Code with the Bankruptcy Court.
WHEREAS, NRG and certain of the NRG Subsidiaries have filed with the
Bankruptcy Court Debtors' Second Amended Joint Plan of Reorganization Pursuant
to Chapter 11 of the Bankruptcy Code dated October 10, 2003 (as amended,
supplemented or otherwise modified from time to time, the "Plan").
WHEREAS, the Plan contemplates that Xcel will pay up to $390 million to
NRG pursuant to the Settlement Agreement in exchange for the releases of certain
liabilities and claims against the Released Parties.
WHEREAS, a condition precedent to effectiveness of the Plan and the
obligations of Xcel to pay the Release-Based Amount to NRG is that Creditors
holding 85% of the NRG Unsecured Claims properly make the Release Election (the
"85% Condition"), unless such Creditors are otherwise bound to a release of
certain liabilities and claims against the Released Parties by a Final Order
acceptable to Xcel confirming the Plan.
WHEREAS, the Plan contemplates this Agreement specifying the details as
to how to calculate whether the 85% Condition has been satisfied and the
Release-Based Amount payable by Xcel to NRG at any time based upon the allowance
and/or estimation of Claims and other factors.
WHEREAS, this Agreement shall be incorporated into the Plan as an
exhibit thereto.
NOW, THEREFORE, in consideration of the promises and the mutual
covenants and agreements set forth herein, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
Parties hereby agree as follows:
1. Defined Terms.
(a) "85% Condition" shall have the meaning as ascribed to it in
the Recitals.
(b) "Additional Amount" shall have the meaning ascribed in
paragraph 4(b).
(c) "Aggregate Payment Amount" shall mean, as of any Subsequent
Payment Date, the aggregate Release-Based Amount payable by
Xcel to NRG as calculated pursuant to paragraph 4(a) of this
Agreement.
(d) "Agreement" means this Release-Based Amount Agreement.
(e) "Allowed" shall have the meaning ascribed in the Plan.
(f) "Ballot" has the meaning set forth in the Settlement
Agreement.
(g) "Bankruptcy Court" means the United States Bankruptcy Court
for the Southern District of New York and, to the extent the
reference under section 157 of title 28, United States Code is
withdrawn, the United States District Court for the Southern
District of New York.
(h) "Chapter 11 Cases" means the chapter 11 cases styled In re NRG
Energy, Inc. et al., Chapter 11 Case No. 03-13024 (PCB),
Jointly Administered, currently pending before the Bankruptcy
Court.
(i) "Claim" means an NRG Unsecured Claim or a claim against any
NRG Subsidiary that is the subject of paragraph 3.
(j) "Claim Resolution Release" means a Final Order that releases
Xcel from liability to a Creditor in excess of such Creditor's
Allowed Claim and permanently enjoins such Creditor from
pursuing any claim against Xcel with respect to such excess,
or a binding release of such excess executed by a Creditor.
(k) "Creditor" means an entity that holds an NRG Unsecured Claim.
(l) "Date of Determination" shall be the last Business Day that is
at least 45 calendar days before a Release-Based Amount
Payment Date.
(m) "Disclosure Statement Order" has the meaning set forth in the
Settlement Agreement.
(n) "Final Order" shall have the meaning ascribed in the
Settlement Agreement.
(o) "Final Payment Date" means the Subsequent Payment Date that
follows the Date of Determination after the date upon which
(i) all Claims have either been Allowed or not Allowed by a
Final Order and (ii) all conditions to reduce the Maximum
Amount to the aggregate amount of all Allowed Claims as set
forth in paragraph 7 have been satisfied.
(p) "Material" shall mean $15,000,000 or more.
(q) "Maximum Amount" means, as of any Date of Determination, the
maximum amount for which any Claim could be asserted against
Xcel, which shall be, as of any Date of Determination, the
highest of (i) the amount as reflected on NRG's Schedules on
such date, (ii) the amount as reflected on a filed proof of
Claim (if liquidated), and (iii) the Maximum Exposure;
provided, however, that the Maximum Amount shall be multiplied
by a factor of 1.25 in the event the Bankruptcy Court
estimates the Maximum Amount in accordance with paragraph 6.
Upon allowance of a Claim of a Releasing Creditor, or a
Non-Releasing Creditor's agreement to the Claims Resolution
Release, the Maximum Amount
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shall be the Allowed Amount of such Claim. Upon allowance of a
Claim of a Non-Releasing Creditor that does not agree to a
Claims Resolution Release, the Maximum Amount shall be reduced
as set forth in paragraph 7.
(r) "Maximum Exposure" means the maximum damage claim, without
giving effect to the merits of the prima facie case or any
defenses thereto, and in the case of a contingent claim, shall
assume that the contingency will occur.
(s) "Non-Releasing Creditor" means a Creditor who does not
properly make the Release Election.
(t) "Non-Releasing Creditor Release-Based Amount" means the Pro
Rata Share of the Release-Based Amount relating to a
Non-Releasing Creditor individually, and to all such creditors
in the aggregate.
(u) "NRG" shall have the meaning ascribed in the Preamble.
(v) "NRG Released Causes of Action" shall have the meaning
ascribed in the Settlement Agreement.
(w) "NRG Subsidiaries" shall have the meaning ascribed in the
Settlement Agreement.
(x) "NRG Unsecured Claim" means any unsecured "Claim" (as defined
in the Plan) against NRG other than that which (i) is entitled
to priority pursuant to 11 U.S.C. Section 507, (ii) is
subordinated to unsecured claims pursuant to 11 U.S.C. Section
510(b), (iii) is held by Xcel or any affiliate thereof,
including any NRG Subsidiary, or (iv) is a "Convenience Claim"
(as defined in the Plan) unless such Claim has elected to be a
"Convenience Claim".
(y) "Plan" shall have the meaning ascribed in the Recitals.
(z) "Pro Rata" or "Pro Rata Share" means with respect to NRG
Unsecured Claims, a number (expressed as a percentage) equal
to the proportion that the amount of any Allowed NRG Unsecured
Claim, as of the Date of Determination, bears to the aggregate
amount of all NRG Unsecured Claims (including disputed,
contingent, and unliquidated Claims), as determined by the
Maximum Amount, as of the Date of Determination.
(aa) "Release Election" means the election of a Creditor in
exchange for the relevant consideration under the Plan to
release the Released Parties from all NRG Released Causes of
Action made on a Ballot approved by the Disclosure Statement
Order of the Bankruptcy Court, which Ballot (i) has been
received by NRG no later than the Voting Deadline, (ii) is
tabulated by NRG in a manner that Xcel agrees is consistent
with the Disclosure Statement Order, and (iii) for which Xcel
is satisfied that such election has been made in accordance
with the terms of the Disclosure Statement Order.
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(bb) "Release-Based Amount" means the amount payable pursuant to
this Agreement to Releasing Creditors as determined in
accordance herewith.
(cc) "Release-Based Maximum Amount" means the amount of (i) $38
million on and after the Second Installment Date and before
the Third Installment Date, and (ii) $390 million (inclusive
of the $38 million in clause (i)) on and after the Third
Installment Date.
(dd) "Release-Based Amount Payment Date" shall mean the Second
Installment Date, the Third Installment Date, and each
Subsequent Payment Date thereafter.
(ee) "Released Parties" shall have the meaning ascribed in the
Settlement Agreement.
(ff) "Releasing Creditor" means a Creditor who properly makes the
Release Election.
(gg) "Schedules" means the schedules of assets and liabilities, the
list of holders of equity interests, and the statement of
financial affairs of NRG filed by NRG in accordance with
section 521 of the Bankruptcy Code and Rule 1007 of the
Federal Rules of Bankruptcy Procedure, and all amendments and
modifications thereto.
(hh) "Second Installment Date" means the later of January 1, 2004
and the Xcel Payment Date.
(ii) "Settlement Agreement" means the Xcel Settlement Agreement (as
defined in the Plan).
(jj) "Subsequent Payment Date" means the Third Installment Date and
the first Business Day of each calendar quarter thereafter,
commencing with the second calendar quarter after the Third
Installment Date.
(kk) "Supplemental Distribution Claimant" means a Releasing
Creditor who has received a smaller percentage distribution on
account of its Claim than other Releasing Creditors.
(ll) "Third Installment Date" means the first date when any part of
the Third Installment (as defined in the Settlement Agreement)
is due pursuant to the Settlement Agreement.
(mm) "Voting Deadline" has the meaning set forth in the Settlement
Agreement.
(nn) "Xcel" shall have the meaning ascribed in the Preamble.
(oo) "Xcel Payment Date" shall have the meaning ascribed in the
Settlement Agreement.
(pp) "Xcel Reserve Retainage" means 0.15.
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2. Satisfaction of the 85% Condition. The 85% Condition shall be
satisfied if the quotient of (i) the Claims of Releasing Creditors
divided by (ii) sum of (a) Claims of Releasing Creditors and (b) Claims
of Non-Releasing Creditors is greater than or equal to 85%. Solely for
purposes of determining whether the 85% Condition has been satisfied,
the following methodology shall apply for determination of the Claims
referred in the numerator and denominator in such calculation:
(a) Releasing Creditors. Except as may otherwise be agreed by Xcel
and NRG in writing, the amount of the Claim of a Releasing
Creditor shall be deemed to be the amount of (i) if such Claim
is not scheduled as contingent, unliquidated, or disputed in
the Schedules, the lesser of (a) the amount as reflected on
the Schedules or (b) the amount as reflected on the most
recently filed proof of Claim (if liquidated), or (ii) if the
Claim is not listed in the Schedules or is listed in the
Schedules as contingent, unliquidated, or disputed, zero
dollars ($0.00). In addition, such deemed amount shall be
reduced (but not below zero dollars ($0.00)) by the amount(s)
paid or to be paid to such Creditor on account of such Claim
prior to the Effective Date. Upon entry of a Final Order
providing for the Allowed amount of a Claim (including
allowance at an amount equal to $0), the amount of such Claim
for purposes of the 85% Condition shall be the Allowed amount.
(b) Non-Releasing Creditor. The amount of the Claim of a
Non-Releasing Creditor shall be deemed to be the Maximum
Amount of such Claim. Subject to paragraph 7, upon entry of a
Final Order providing for the Allowed amount of a Claim
(including allowance at an amount equal to $0), the amount of
such Claim for purposes of the 85% Condition shall be the
Allowed amount.
(c) Claims Against NRG and an NRG Subsidiary. The provisions of
paragraph 3 shall apply to the calculation with respect to the
85% Condition.
3. Calculation of Claim Amount for A Creditor with Claims against
NRG and An NRG Subsidiary.
(a) If a Creditor with a Claim against NRG and an NRG Subsidiary
as of the date an order for relief was entered with respect to
such entity agrees to eliminate such Claim against NRG as a
result of separate consideration from an NRG Subsidiary, such
Creditor shall have been deemed to have retained its Claim
against NRG for purposes of this Agreement unless (i) such
Creditor's claim against the NRG Subsidiary is unimpaired, but
if and only to the extent that satisfaction of such claim by
the NRG Subsidiary would satisfy such Claim against NRG, or
(ii) such Creditor agrees to release all of its NRG Released
Causes of Action against the Released Parties as part of the
elimination of its Claim against NRG.
(b) If a Creditor is deemed to have retained its Claim against NRG
as described above, the amount of such Claim shall be based
upon the Maximum Amount and resolved and determined by the
same method as applies to other Claims subject to this
Agreement.
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4. Payment by Xcel to NRG of the Release-Based Amount on Account
of Releasing Creditors.
(a) Aggregate Payment by Xcel. Subject to the resolution of this
amount in accordance with paragraph 8, as of any Subsequent
Payment Date, the aggregate Release-Based Amount payable
(inclusive of amounts previously paid) by Xcel to NRG for
distribution to the Releasing Creditors shall be the product
of (i) the applicable Release-Based Maximum Amount, (ii) the
quotient of (a) the aggregate Allowed Claims of the Releasing
Creditors and (b) the aggregate of the Maximum Amount of all
Claims (whether or not the Creditors of such Claims are
Releasing Creditors), and (iii) either (a) on any Subsequent
Payment Date other than the Final Payment Date, 1.0 minus the
Xcel Reserve Retainage, or (b) on the Final Payment Date, 1.0.
(b) Calculation of Additional Amount. The Additional Amount, as of
each Subsequent Payment Date, shall be the difference between
the Aggregate Payment Amount and the aggregate amount
previously paid by Xcel
(c) Payments on Second Installment Date. Notwithstanding paragraph
4(a), on the Second Installment Date Xcel shall pay to NRG for
distribution to the Releasing Creditors on account of their
Allowed Claims $38 million or such number of shares of Xcel
common stock as is permitted by the Settlement Agreement.
(d) Payments on Subsequent Payment Dates. On each Subsequent
Payment Date, Xcel shall pay to NRG for distribution to the
Releasing Creditors (i) first, to each Releasing Creditor
holding a Claim that had not been Allowed as of the
immediately preceding Date of Determination but that has
subsequently been Allowed, the Pro Rata Share of the
Release-Based Amount (without any interest thereon) such
Releasing Creditor would have received from NRG had such Claim
been an Allowed Claim as of the Effective Date and Xcel had
made payments to NRG in accordance with this Agreement on
account of such Claim from and after the Effective Date, and
(ii) then, to all Releasing Creditors holding Allowed Claims,
the their Pro Rata Share of the Additional Amount (as reduced
by the payment made in clause (i) hereof).
(e) Limitation of Payments. Notwithstanding anything to the
contrary contained herein, Xcel shall not be obligated to pay
to NRG any amount so that after giving effect to such payment,
the aggregate amount paid (including such payment) exceeds the
Aggregate Payment Amount as calculated in accordance with
paragraph 8. In the event of overpayment on any prior
Subsequent Payment Date (including an overpayment caused by an
adjustment of Allowed Claims or to the Maximum Amount), such
overpayment shall be reflected in a reduction in the
Additional Amount payable on the next Subsequent Payment Date.
(f) Additional Payment When Retained Amount Exceeds Maximum
Allocation to Non-Releasing Creditors. If, as of any
Subsequent Payment Date, (i) the difference between (a) the
Release-Based Maximum Amount and (b) the
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aggregate amount already paid or to be paid on such Subsequent
Payment Date by Xcel pursuant to this Agreement exceeds (ii)
the aggregate Maximum Amount of Claims of Non-Releasing
Creditors, then Xcel shall pay to NRG the amount of such
difference on such Subsequent Payment Date.
5. Adjustments to the Release-Based Amount on the Subsequent
Payment Dates Based Upon Reconsideration or Liquidation of Claim. On
each Subsequent Payment Date, if, for any reason, including, without
limitation, the reconsideration of a Claim pursuant to section 502(j)
of the Bankruptcy Code, the allowance or liquidation of a Claim in
excess of the Maximum Amount, an amendment to the Schedules or a proof
of Claim, or the creation of additional prepetition Claims by virtue of
sections 502(g) or (h) of the Bankruptcy Code, a Supplemental
Distribution Claimant has received a smaller distribution (calculated
as a percentage) than other Releasing Creditors holding Allowed Claims,
NRG shall pay such Supplemental Distribution Claimant from the
Additional Amount an amount sufficient to achieve the same distribution
(calculated as a percentage) as other Releasing Creditors holding
Allowed Claims who have already received a distribution. If the
Additional Amount with the deduction of the Xcel Reserve Retainage paid
to NRG is insufficient to permit all such Supplemental Distribution
Claimants to receive the same distribution (calculated as a percentage)
as other Releasing Creditors holding Allowed Claims, all of the
Additional Amount shall be distributed to the Supplemental Distribution
Claimants so that each Supplemental Distribution Claimants receives, as
nearly as possible, the same distribution (calculated as a percentage).
6. Estimation of Maximum Amount.
(a) Estimation by the Bankruptcy Court. For purposes of this
Agreement, NRG or Reorganized NRG may, at any time and from
time to time, request that the Bankruptcy Court determine the
Maximum Amount of any unliquidated, disputed, or contingent
Claim pursuant to section 502(c) of the Bankruptcy Code
regardless of whether NRG, Reorganized NRG, the statutory
committee of unsecured creditors, or any other party in
interest (as applicable) previously objected to such Claim or
whether the Bankruptcy Court has ruled on any such objection,
and the Bankruptcy Court will retain jurisdiction to estimate
any Claim at any time during litigation concerning any
objection to any Claim including during the pendency of any
appeal relating to any such objection.
(b) Estimation Conditions. It shall be a condition to occurrence
of the Effective Date of the Settlement Agreement, waivable by
Xcel, that there shall have been entered a Final Order
determining the Maximum Amount of the Claim of any
Non-Releasing Creditor which the Maximum Amount is Material.
It shall be a condition to Xcel's obligation to pay any of the
Release-Based Amount that there shall have been entered a
Final Order determining the Maximum Amount of the Claim of any
Releasing Creditor which is not Allowed and for which the
Allowed amount of such Claim could be Material.
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(c) Estimation By Agreement. NRG and Xcel shall use their
reasonable best efforts to determine the Maximum Amount of
each Claim that could be Material. Xcel and NRG may reasonably
estimate the Maximum Exposure on account of any Claim (or the
aggregate of the Claims) of the Non-Releasing Creditor(s). If
Xcel and NRG cannot agree on an amount, the Court may estimate
the Maximum Exposure of any Claim and, if the Court declines
to do so, the Maximum Exposure shall be the amount estimated
by Xcel.
7. Calculation of Allowed Claims With Non-Releasing Creditors.
Upon the allowance of a Claim of any Non-Releasing Creditor, NRG shall
use its commercially reasonable best efforts to obtain the Claims
Resolution Release, which if obtained, shall reduce the Maximum Amount
to the Allowed Amount. If an action has been commenced against Xcel,
the Maximum Amount shall be increased or decreased, as the case may be,
based upon Xcel's costs (including reasonable attorneys' fees) and
liability, if any, resulting from a Final Order determining such Claim
or settlement thereof.
8. Resolution of Aggregate Payment Amount as of Date of
Determination. Fifteen calendar days after each Date of Determination,
NRG shall deliver to Xcel a written report setting forth NRG's
calculation of the Aggregate Payment Amount. The report shall include a
record of Claims that were Allowed or not Allowed subsequent to the
prior Date of Determination, copies of any stipulations, orders,
releases, and any other documentation related to such Claim, and a
reconciliation of each Claim against such Claim's prior Maximum Amount
(and for Claims of holders of NRG's public securities, a reconciliation
of such Claims held by such Releasing Creditors against the amount of
such securities actually tendered by such Releasing Creditors). In
addition, the report shall include any adjustments to such calculation
of the Aggregate Payment Amount as may be required by paragraph 5. Xcel
will have 20 calendar days to review the report and calculate the
Aggregate Payment Amount. If the Parties disagree as to the Aggregate
Payment Amount, the Parties shall proceed in good faith to reconcile
the calculations. If the Parties cannot reconcile such amounts, on the
applicable Subsequent Payment Date, Xcel shall pay the undisputed
Additional Amount to NRG. Any disputed amount to which Xcel
subsequently agrees shall be paid to NRG on the next Subsequent Payment
Date as if such amount had been agreed on the prior Subsequent Payment
Date. All disputed amounts with respect to the Aggregate Payment Amount
shall be agreed to, or determined by the Bankruptcy Court, prior to the
Final Payment Date.
9. Indemnification.
(a) Claims By Creditors. NRG shall indemnify Xcel or any Released
Party for any loss, claim or damages (including, without
limitation, reasonable attorneys' fees, litigation costs and
expenses) incurred by Xcel or any Released Party as a result
of any action by (i) a Releasing Creditor arising from or
relating to any claim that the Releasing Creditor did not
receive its correct Pro Rata Share of the Release-Based Amount
for any reason whatsoever, including, without limitation,
because of the reconsideration of its claim pursuant to
section 502(j) of the Bankruptcy Code, provided that there
shall be no indemnity if Xcel and NRG actually agree in
writing as to the amount to pay a particular Releasing
Creditor and such Releasing
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Creditor receives such amount from NRG, or (ii) any creditor
arising from or relating to the fact that such creditor did
not receive proper notice with respect to any matter relating
to the Chapter 11 Cases.
(b) Allowed Claim Subsequently Not Allowed. If any Claim is
reported to Xcel pursuant to paragraph 8 as Allowed and NRG
subsequently determines that such Claim is not Allowed (or is
Allowed in a lesser amount than previously reported), NRG
shall pay to Xcel, upon demand, the amount such Releasing
Creditor has received, or if such Claim is Allowed in a lesser
amount, the excess of such amount over the amount such
Releasing Creditor would have received had its Allowed Claim
been reported in the lesser amount.
10. No Interest. Except as provided in paragraph 2(c) of the
Settlement Agreement, any payments to be made by Xcel under this
Agreement shall not include, and Xcel shall have no liability for, any
interest with respect thereto.
11. Conditions. The obligation of Xcel to pay any Release-Based
Amount pursuant to this Agreement is subject to, and conditioned upon,
the satisfaction or waiver by Xcel of any condition to the performance
of Xcel's obligation under the Settlement Agreement as of the Effective
Date.
12. No Additional Payment By Xcel. In no event shall Xcel pay to
NRG more than the product of (a) $390 million and (b) the quotient of
(x) the Allowed Claims of the Releasing Creditors and (y) all Allowed
Claims, regardless of whether any particular Creditor receives less
than its Pro Rata Share of the Release-Based Amount. In no event shall
Xcel be obligated under this Agreement to make any payment to NRG after
the Final Payment Date assuming all amounts due are paid.
13. No Liability of Xcel to Creditors. Xcel shall have no
liability to any Creditor of a Claim with respect to this Agreement.
14. Access to Ballots and Claims. NRG shall, or shall cause the
claims agent appointed in NRG's bankruptcy case (or any ballot or
solicitation agent) to make available to Xcel access to all ballots and
proofs of claim, all reports and summaries related thereto, and any
other information related to the same, and to take all other actions
Xcel may reasonably request in connection with any matter relating to
this Agreement.
15. Amendment or Waiver. Except as otherwise specifically provided
herein, this Agreement may not be modified, amended or supplemented
without the prior written consent of the Parties. No waiver of any of
the provisions of this Agreement shall be deemed or constitute a waiver
of any other provision of this Agreement, whether or not similar, nor
shall any waiver be deemed a continuing waiver.
16. Notices. Any notice required or desired to be served, given or
delivered under this Agreement shall be in writing, and shall be deemed
to have been validly served, given or delivered if provided by personal
delivery, or upon receipt of fax delivery, as follows:
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(a) if to Xcel, Michael C. Connelly, Xcel Energy Inc., 414
Nicollet Mall, Minneapolis, Minnesota, 55401, and to Brad B.
Erens, Jones Day, 77 West Wacker, Chicago, Illinois,
60601-1692, fax: 312-782-8585, with a copy to Scott J.
Friedman, Jones Day, 222 East 41st Street, New York, New York
10017, fax: 212-755-7306.
(b) if to NRG, to Matthew A. Cantor, Kirkland & Ellis LLP,
Citigroup Center, 153 East 53rd Street, New York, New York
10022-4611, fax: 212-446-4900.
A copy of any notice delivered pursuant to paragraph 16 any time prior to the
dissolution of the Official Committee of Unsecured Creditors shall be provided
to Evan D. Flaschen, Bingham McCutchen, One State Street, Hartford, Connecticut,
06103-3178.
17. Governing Law; Jurisdiction. THIS AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
By its execution and delivery of this Agreement, each of the Parties
hereto hereby irrevocably and unconditionally agrees for itself that
any legal action, suit or proceeding against it with respect to any
matter under or arising out of or in connection with this Agreement or
for recognition or enforcement of any judgment rendered in any such
action, suit or proceeding, shall be brought exclusively in the
Bankruptcy Court and each of the Parties hereto irrevocably accepts and
submits itself to the exclusive jurisdiction of each such court,
generally and unconditionally, with respect to any such action, suit or
proceeding, and waives any objection it may have to venue or the
convenience of the forum.
18. Termination. This Agreement shall terminate upon (i) the third
party releases and injunctions for the benefit of the Released Parties
set forth in Sections 9.2 and 9.3 of the Plan being approved in their
entirety pursuant to a Final Order in form acceptable to Xcel or (ii)
the occurrence of the Final Payment Date. The provisions of paragraph 9
and any other provisions applicable to paragraph 9 shall survive
termination of this Agreement.
19. Specific Performance. It is understood and agreed by each of
the Parties hereto that money damages would not be a sufficient remedy
for any breach of this Agreement by any Party and each non-breaching
Party shall be entitled to specific performance and injunctive or other
equitable relief as a remedy of any such breach.
20. Headings and References. The headings of the sections,
paragraphs and subsections of this Agreement are inserted for
convenience only and shall not affect the interpretation hereof.
Reference to a paragraph shall refer to paragraphs of this Agreement
unless the context requires otherwise.
21. Interpretation. This Agreement is the product of negotiations
of the Parties, and in the enforcement or interpretation hereof, is to
be interpreted in a neutral manner, and any presumption with regard to
interpretation for or against any Party by reason of that Party having
drafted or caused to be drafted this Agreement, or any portion hereof,
shall not be effective in regard to the interpretation hereof.
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22. Successors and Assigns. This Agreement is intended to bind and
inure to the benefit of the Parties and their respective successors,
assigns, heirs, executors, administrators and representatives.
23. No Third-Party Beneficiaries. This Agreement shall be solely
for the benefit of the Parties hereto and no other person or entity
shall be a third-party beneficiary hereof. The obligations of Xcel
pursuant to this Agreement are to NRG only and do not run to and are
not enforceable directly by any Creditor; provided, however, that any
Creditor shall have the right to demand that NRG enforce NRG's rights
under this Agreement. In the event NRG fails to enforce this Agreement,
NRG and Xcel agree that any Creditor may do so in the name of NRG;
provided; however, that Xcel shall be required to defend enforcement
actions in only one proceeding.
24. No Admissions. This Agreement shall in no event be construed
as or be deemed to be evidence of an admission or concession on the
part of any Party or any Creditor of any claim or fault or liability or
damages whatsoever. Each of the Parties denies any and all wrongdoing
or liability of any kind and does not concede any infirmity in the
Claims or defenses which it has asserted or could assert.
25. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and all of
which shall constitute one and the same Agreement. Delivery of an
executed signature page of this Agreement by facsimile shall be
effective as delivery of a manually executed signature page of this
Agreement.
26. Entire Agreement. This Agreement constitutes the entire
agreement between the Parties with respect to the calculation of the
Release-Based Amount and the determination of the satisfaction of the
85% Condition and supersedes all prior and contemporaneous agreements,
representations, warranties and understandings of the Parties, whether
oral, written or implied, as to the subject matter hereof and does not
supersede the Plan (including the exhibits thereto) with respect to the
other matters set forth therein.
[Remainder of page intentionally blank; remaining pages are signature pages.]
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IN WITNESS WHEREOF, the undersigned have each caused this Agreement to
be duly executed and delivered by their respective, duly authorized officers as
of the date first above written.
NRG ENERGY, INC.
By: /s/ Scott Davido
------------------------
Name: Scott Davido
Title: Vice President and General Counsel
XCEL ENERGY INC.
By: /s/ Richard C. Kelly
------------------------
Name: Richard C. Kelly
Title: President and Chief Operating Officer