EXHIBIT 2.04
EXECUTION COPY
SETTLEMENT AGREEMENT
This Settlement Agreement (this "Agreement") is entered into as of
December 5, 2003 by and among (1) Xcel Energy Inc., a Minnesota corporation
("Xcel"), (2) NRG Energy, Inc., a Delaware corporation ("NRG"), on behalf of
itself and each of its direct and indirect majority-owned subsidiaries (the "NRG
Subsidiaries," and together with NRG, the "NRG Entities"), and (3) each of the
NRG Subsidiaries listed as signatories to this Agreement (Xcel and the NRG
Entities are collectively referred to herein as the "Parties").
WHEREAS, NRG and certain of the NRG Subsidiaries have commenced
voluntary chapter 11 bankruptcy cases (the "Chapter 11 Cases") in the United
States Bankruptcy Court for the Southern District of New York (the "Bankruptcy
Court");
WHEREAS, Xcel and NRG are parties to that certain Support and Capital
Subscription Agreement dated May 29, 2002 (the "Capital Support Agreement");
WHEREAS, certain disputes exist between Xcel and NRG and/or NRG's
creditors with respect to Xcel's funding obligations, if any, under the Capital
Support Agreement;
WHEREAS, certain other disputes exist between Xcel and NRG and/or the
NRG Entities' creditors, including various disputes relating to tax matters,
service agreements, and claims allegedly held by some of the NRG Entities'
creditors against Xcel;
WHEREAS, Xcel vigorously denies (i) that it has any liability to NRG or
its creditors under the Capital Support Agreement, (ii) that it has any
liability to NRG relating to tax matters and services agreements, and (iii) that
it has any liability to any creditor of NRG or of any NRG Subsidiary in such
creditor's capacity as such;
WHEREAS, the Parties wish to settle and compromise the disputes and
issues between and among them on the terms set forth herein to avoid the
expense, delay, uncertainty, and risks of litigation and so that NRG can emerge
successfully from chapter 11;
WHEREAS, as a result, the Parties acknowledge that the Released-Based
Amount (as defined below) is being paid by Xcel pursuant to this Agreement
solely to facilitate the NRG Plan (as defined below) and the benefits to Xcel
thereunder and is expressly not being paid as any concession as to the validity
of any claims, whether or not being released, against the Released Parties (as
defined below) pursuant to this Agreement; and
WHEREAS, this Agreement is essential and integral to the NRG Plan.
NOW THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Parties, intending to be legally bound, hereby consent and
agree as follows:
1. Definitions. As used herein, the following terms shall have
the respective meanings specified below:
"4/1/03 Ratings" shall mean the credit ratings of BBB- by Standard &
Poor's Rating Service and Baa3 by Moody's Investor Services on the Xcel
Debt on April 1, 2003.
"9019 Motion" shall mean a motion for approval of this Agreement and
the provisions of sections 9.2, 9.3.B., 9.3.D., and 9.3.G. of the Plan
under Bankruptcy Rule 9019 with respect to NRG Entities that are part
of the Chapter 11 Cases but are not part of the NRG Plan, in the form
attached hereto as Exhibit A, which shall be approved by the
Confirmation Order.
"Affiliate" shall have the meaning set forth in section 2(a)(11) of the
Public Utility Holding Company Act of 1935 (other than the NRG Entities
when the term "Affiliate" is used in connection with Xcel).
"Assumed Agreements" shall mean those agreements between the Debtors
and Xcel (or an Xcel Affiliate) described on Schedule 8(m) hereto to be
assumed by the Debtors.
"Authorized Party" shall mean, collectively, the Creditors' Committee
and the Global Steering Committee. The Creditors' Committee or the
Global Steering Committee acting without the other shall not be an
Authorized Party.
"Ballots" shall mean the ballots for the Unsecured Creditor Class under
the NRG Plan, in the forms attached hereto as Exhibit B.
"Bank Group" shall mean the legal or beneficial holders of all of the
Claims under the Lender Facilities.
"Bankruptcy Code" shall mean title 11 of the United States Code.
"Bankruptcy Court" shall have the meaning set forth in the recitals to
this Agreement.
"Bankruptcy Rules" shall mean the Federal Rules of Bankruptcy Procedure
as promulgated by the United States Supreme Court under section 2075 of
title 28 of the United States Code, as amended from time to time, and
any Local Rules of the Bankruptcy Court, as amended from time to time.
"Bar Date Order" shall mean the Final Order of the Bankruptcy Court,
attached hereto as Exhibit C, setting a bar date for claims against NRG
in the Chapter 11 Cases.
"Business Day" shall mean any day other than a Saturday, Sunday, or any
other day on which commercial banks in the State of New York are
required or authorized to close by law or executive order.
"Capital Support Agreement" shall have the meaning set forth in the
recitals to this Agreement.
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"Cash Refund" shall mean the amount of any cash refund of taxes
(including any interest paid thereon) to be generated by the carryback
of the Worthless Stock Deduction in whole or in part to any taxable
year prior to the Loss Year.
"Cause of Action" shall mean all actions, causes of action,
liabilities, obligations, rights, suits, damages, judgments, remedies,
demands, setoffs, defenses, recoupments, crossclaims, counterclaims,
third-party Claims, indemnity Claims, contribution Claims or any other
Claims whatsoever, whether known or unknown, matured or unmatured,
fixed or contingent, liquidated or unliquidated, disputed or
undisputed, suspected or unsuspected, foreseen or unforeseen, direct or
indirect, choate or inchoate, existing or hereafter arising, in law,
equity or otherwise, based in whole or in part upon any act or omission
or other event occurring prior to the Petition Date or during the
course of the Chapter 11 Cases, including through the Effective Date.
"Chapter 11 Cases" shall have the meaning set forth in the recitals to
this Agreement.
"Claims" shall have the meaning set forth in section 101(5) of
Bankruptcy Code and shall be deemed to include any "Claim" arising on
or after the Petition Date through the Effective Date.
"Confirmation Date" shall mean the date on which there occurs the entry
of the Confirmation Order on the docket of the Bankruptcy Court.
"Confirmation Order" shall mean the order of the Bankruptcy Court, in
the form attached hereto as Exhibit D, confirming the NRG Plan and
approving this Agreement, and the compromises and transactions
contemplated by this Agreement; provided that the Confirmation Order
may be modified or supplemented from the form attached hereto as
Exhibit D in a manner which does not adversely affect Xcel in its sole
opinion.
"Creditors' Committee" shall mean the Official Committee of Unsecured
Creditors appointed in the Chapter 11 Cases.
"Cross-Over Lenders" shall have the meaning set forth in section 8(i)
of this Agreement.
"Cure Obligations" shall mean the cure obligations of the Debtors
pursuant to section 365(b) of the Bankruptcy Code in connection with
the Assumed Agreements.
"D&O Expiration Date" shall mean August 18, 2003.
"D&O Policies" shall mean insurance policies covering director and
officer liabilities, including without limitation: (i) Directors and
Officers Liability Insurance Policy No. D0969A1A00, issued by
Associated Electric & Gas Insurance Services Limited (AEGIS), policy
period beginning August 18, 2000; (ii) Following Form Combined
Liability Indemnity Policy No. 800005-00CL, issued by Energy Insurance
Mutual (EIM), policy period beginning August 18, 2000; (iii) Excess
Policy No. 8179-96-58 DAL, issued by Federal Insurance Company (FIC),
policy period beginning August 18, 2000; (iv) Directors and Officers
Liability Insurance Policy No. D0217A1A99, issued by AEGIS, policy
period beginning November 15, 1999 (including specifically, but not
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limited to, runoff endorsement effective as of August 18, 2000); (v)
Following Form Combined Liability Indemnity Policy No. 800002-97CL,
issued by EIM, policy period beginning November 15, 1997 (including
specifically, but not limited to, runoff endorsement effective as of
August 18, 2000); (vi) Excess Policy No. 8151-42-64B , issued by FIC,
policy period beginning November 15, 1999 (including specifically, but
not limited to, runoff endorsement effective as of August 16, 2000);
and (vii) Fiduciary and Employee Benefit Liability Insurance Policy No.
F0969A1A00, issued by AEGIS, policy period beginning August 18, 2000.
"Debtors" shall mean NRG and any of the NRG Subsidiaries which are part
of the Chapter 11 Cases.
"Disclosure Statement" shall mean the disclosure statement in
connection with the NRG Plan, in the form attached hereto as Exhibit E.
"Disclosure Statement Order" shall mean the Final Order of the
Bankruptcy Court, in the form attached hereto as Exhibit F, approving
various procedures in connection with solicitation of votes with
respect to the NRG Plan.
"Downgrade Date" shall mean the first date on which the Xcel Debt has
not retained at least the 4/1/03 Ratings for a period of at least 120
consecutive days.
"Effective Date" shall mean the date on which the NRG Plan becomes
effective in accordance with its terms.
"Employee Matters Agreement" shall mean that agreement, in the form
attached hereto as Exhibit G, pursuant to which various obligations
with respect to employees and benefit plans shall be allocated between
Xcel and NRG as of the Effective Date on the terms set forth therein.
"Excluded Claims" shall mean any claims against Xcel under (i) this
Agreement; (ii) the Employee Matters Agreement; (iii) the Tax Matters
Agreement; (iv) the Assumed Agreements; and (v) any Separate Bank
Claims and any claims reserved pursuant to section C. of the Separate
Bank Release Agreement.
"Final Order" shall mean an order or judgment of the relevant court of
competent jurisdiction as entered on the docket in the relevant cases
that has not been reversed, stayed, modified or amended, and as to
which the time to appeal or seek certiorari has expired and no appeal
or petition for certiorari has been timely taken, or as to which any
appeal that has been taken or any petition for certiorari that has been
timely filed has been resolved by the highest court to which the order
or judgment was appealed from or from which certiorari was sought.
"Global Steering Committee" shall mean the persons identified on
Schedule A, being legal or beneficial holders of various Claims under
the Lender Facilities and certain other credit facilities with respect
to certain NRG Subsidiaries.
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"Guarantees" shall mean all Xcel guarantees, equity contribution
obligations, indemnification obligations, arrangements whereby Xcel or
any Affiliate has posted cash collateral, and all other credit support
obligations with respect to NRG or any NRG Subsidiary, in each case set
forth on Schedule 5(a)(i) hereto.
"Initial Contribution" shall mean $238 million of the Xcel
Contribution.
"Lender Facilities" shall mean, collectively, the NRG FinCo Secured
Revolver Agreement, the NRG Letter of Credit Facility, and the NRG
Unsecured Revolver Agreement.
"Liabilities" shall mean all debts, liabilities, guarantees,
assurances, commitments and obligations, whether fixed, contingent or
absolute, asserted or unasserted, matured or unmatured, liquidated or
unliquidated, accrued or not accrued, known or unknown, due or to
become due, whenever or however arising (including, without limitation,
whether arising out of any contract or tort based on negligence or
strict liability) and whether or not the same would be required by
generally accepted principles and accounting policies to be reflected
in financial statements or disclosed in the notes thereto. For purposes
of any indemnification hereunder, "Liabilities" shall be deemed also to
include any and all damages, claims, suits, judgments, fines,
penalties, costs and expenses of any kind or character, including
attorney's fees.
"Loss Year" shall mean the year in which the Effective Date occurs.
"Non-Plan Debtors" shall mean those NRG Subsidiaries having commenced
Chapter 11 Cases that are not subject to the NRG Plan.
"Notes" shall mean those public notes of NRG listed on Schedule B to
this Agreement.
"NRG" shall have the meaning set forth in the preamble to this
Agreement.
"NRG Entities" shall have the meaning set forth in the preamble to this
Agreement.
"NRG FinCo" shall mean NRG Finance Company I LLC, a Delaware
corporation.
"NRG FinCo Secured Revolver Agreement" shall mean the revolving credit
agreement entered into by and among NRG FinCo, Credit Suisse First
Boston and certain other lenders party thereto and NRG Audrain
Generation LLC, LSP-Nelson Energy, LLC, LSP-Pike Energy, LLC and NRG
Turbine LLC, as sub-borrowers, as of May 8, 2001 with the purpose of
financing certain domestic construction projects of the Debtors,
together with all amendments, modifications, renewals, restatements,
substitutions and replacements thereof and all documents, agreements or
instruments related thereto, including, but not limited to, the NRG
Equity Undertaking (as defined in Exhibit F of the NRG Plan).
"NRG Letter of Credit Facility" shall mean the $125,000,000 Standby
Letter of Credit Facility, dated as of November 30, 1999, among NRG,
the financial institutions party thereto and the Australia and New
Zealand Banking Group Limited, as administrative
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agent, as amended, supplemented, restated or modified from time to
time, together with all documents, agreements or instruments related
thereto.
"NRG Payment Request" shall mean a written notice pursuant to which the
Authorized Party may request that Xcel not exercise the Xcel Downgrade
Election as set forth in section 2(f)(ii) of this Agreement.
"NRG Payment Revocation" shall mean a written notice pursuant to which
the Authorized Party may revoke the NRG Payment Request as set forth in
section 2(f)(ii) of this Agreement.
"NRG Plan" shall mean the chapter 11 plan of reorganization for NRG, in
the form attached hereto as Exhibit H; provided that the NRG Plan may
be modified or supplemented from the form attached hereto as Exhibit H,
as set forth therein, in a manner which does not adversely affect Xcel
in its sole opinion.
"NRG Released Causes of Action" shall mean, collectively, all Claims or
Causes of Action of any kind or nature (whether known or unknown) which
NRG, any of the NRG Subsidiaries, or any creditor of any of the
Debtors, directly or indirectly, has or may have as of the Effective
Date against any of the Released Parties in respect of any matter
relating to NRG or any of the NRG Subsidiaries, including, without
limitation, the Specified Claims, but the NRG Released Causes of Action
shall not include any Excluded Claims.
"NRG Unsecured Revolver Agreement" shall mean that certain 364-Day
Revolving Credit Agreement dated as of March 8, 2002 among NRG, the
financial institutions party thereto, ABN Amro Bank N.V., as
administrative agent, Salomon Smith Barney, Inc., as syndication agent,
Barclays Bank PLC, as co-syndication agent, and The Royal Bank of
Scotland PLC, and Bayerische Hypo-und Vereinsbank AG, New York Branch,
as co-documentation agents, as amended, supplemented, restated or
modified from time to time, together with all documents, agreements or
instruments related thereto.
"NRG Subsidiaries" shall have the meaning set forth in the preamble to
this Agreement.
"Parties" shall have the meaning set forth in the preamble to this
Agreement.
"Person" has the meaning set forth in section 101(41) of the Bankruptcy
Code.
"Petition Date" shall mean May 14, 2003.
"Plan Support Agreement" shall mean that Plan Support Agreement dated
May 13, 2003 among NRG, Xcel, and the Supporting Creditors.
"Reimbursable Claims" shall mean amounts billed under the Services
Agreement related to corporate insurance obtained for the benefit of
NRG and other services requested by NRG.
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"Release-Based Amount" shall mean up to $390 million of the Xcel
Contribution payable as follows: (i) $38 million out of the Second
Installment, and (ii) the entire Third Installment.
"Released-Based Amount Agreement" shall mean that agreement among NRG
and Xcel, in the form attached hereto as Exhibit I, which specifies how
to calculate the Released-Based Amount payable by Xcel to NRG at any
time.
"Released Parties" shall mean, in respect of any NRG Released Causes of
Action: (i) the Xcel Released Parties, and (ii) any other person or
entity to the extent that such person or entity is entitled to a claim
for indemnification, reimbursement, contribution, subrogation or
otherwise against any of the persons or entities listed in clause (i)
in respect of the NRG Released Causes of Action.
"Reorganized NRG" shall mean NRG on and after the Effective Date
pursuant to the NRG Plan.
"Second Installment" shall mean $50 million of the Xcel Contribution.
"Separate Bank Claims" shall mean those Claims against the Released
Parties being released as part of the Separate Bank Release Agreement.
"Separate Bank Release Agreement" shall mean that certain release
agreement between Xcel and the Bank Group in the form attached hereto
as Exhibit J.
"Services Agreement" shall mean the Service Agreement between Xcel
Energy Services Inc. and NRG dated June, 2002.
"Settled Claims" shall mean all Claims of Xcel or any Affiliate against
any NRG Entity arising or accruing on or prior to January 31, 2003 for
the provision of intercompany goods or services under the Services
Agreement and all Claims for amounts paid by Xcel or any Affiliate on
or prior to January 31, 2003 under any Guaranty.
"Specified Claims" shall mean (i) any Claim that is property of any
Debtor's estate pursuant to section 541 of the Bankruptcy Code or
otherwise; (ii) any preference, fraudulent conveyance and other actions
under sections 510, 544, 545, 547, 548, 549, 550 or 553 of the
Bankruptcy Code or any state law equivalents; (iii) any Claim arising
out of illegal dividends or similar theories of liability; (iv) any
Claim asserting veil piercing, alter ego liability or any similar
theory; (v) any Claim based upon unjust enrichment; (vi) any Claim for
breach of fiduciary duty; (vii) any Claim for fraud, misrepresentation
or any state or federal securities law violations; and (viii) any Claim
that NRG or any NRG Subsidiary may have as a result of having been a
member of the Xcel affiliated tax group or a signatory to an Xcel tax
sharing agreement.
"Support Agreement Amount" shall mean $250 million of the Xcel
Contribution payable out of the entire Initial Contribution and $12
million of the Second Installment.
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"Support Agreement Claims" shall mean all Claims against Xcel arising
under or related to the Capital Support Agreement.
"Supporting Creditors" shall mean, collectively, the Supporting Lenders
and Supporting Noteholders.
"Supporting Lenders" shall mean the Bank Group members that are
signatories to the Plan Support Agreement.
"Supporting Noteholders" shall mean the Noteholders that are
signatories to the Plan Support Agreement.
"Tax Matters Agreement" shall mean that tax matters agreement between
NRG and Xcel, in the form attached hereto as Exhibit K.
"Third Installment" shall mean up to $352 million of the Xcel
Contribution.
"Transfer" shall mean (a) the sale, transfer, assignment, pledge, or
other disposal, directly or indirectly, of any right, title or interest
in respect of any and all Claims and Causes of Action against the
Released Parties, in whole or in part, or any interest therein, and/or
(b) the grant of any proxies, deposit of any Claims or Causes of Action
against the Released Parties into a voting trust, or the entry into a
voting agreement with respect to any of such Claims or Causes of
Action.
"Transferee" means any party who obtains, at any time, a Transfer from
a NRG Entity.
"Unsecured Creditor Class" shall mean Class 5 under the NRG Plan,
together with Class 6 under the NRG Plan in the event Debtor NRG Power
Marketing, Inc. is substantively consolidated with NRG under the NRG
Plan.
"Voting Deadline" shall mean the initial voting deadline for accepting
or rejecting the NRG Plan as established by the Debtors pursuant to the
Disclosure Statement Order.
"Voting Record Date" shall be the voting record date established by the
Disclosure Statement Order.
"Worthless Stock Deduction" shall mean the deduction that Xcel or its
Affiliates will claim under Section 165(g)(3) of the Internal Revenue
Code and any comparable provision of state or local law with respect to
the loss of its investment in NRG.
"Xcel" shall have the meaning set forth in the preamble to this
Agreement.
"Xcel Contribution" shall mean, collectively, (1) up to $640 million,
subject to the provisions of this Agreement; and (2) the Xcel Released
Causes of Action.
"Xcel Credit Waiver" shall have the meaning set forth in section 8(i)
of this Agreement.
"Xcel Debt" shall mean Xcel's senior unsecured public notes.
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"Xcel Downgrade Election" shall mean Xcel's right to pay up to $150
million of the Initial Contribution in XEL Stock no later than 10
Business Days after the Xcel Payment Date pursuant to the terms of
section 2(f)(i) of this Agreement.
"Xcel Payment Date" shall mean the later of (i) 90 days after the
Confirmation Date, and (ii) one Business Day after the Effective Date.
"Xcel Plan Note" shall mean that certain unsecured, 2.5 year
non-amortizing promissory note issued by Reorganized NRG in favor of
Xcel with a principal amount of $10 million bearing interest at the per
annum rate of 3% in the form attached hereto as Exhibit L.
"Xcel Released Causes of Action" shall mean collectively, all Claims or
Causes of Action of any kind or nature (whether known or unknown) which
Xcel has or may have against any of the NRG Entities or any officer,
director, employee, Affiliate or agent of any of the NRG Entities, in
each case in their capacity as such, but the Xcel Released Causes of
Action shall not include: (1) the obligations of any of the NRG
Entities to Xcel or any Affiliate of Xcel under this Agreement, the
Separate Bank Release Agreement, the NRG Plan, the Confirmation Order,
the Employee Matters Agreement, the Release-Based Amount Agreement, the
Tax Matters Agreement, the Xcel Plan Note or any document or agreement
executed in connection with this Agreement, the Separate Bank Release
Agreement, the NRG Plan, or the Confirmation Order, or (2) any rights
of subrogation which Xcel may have against any of the NRG Entities as a
result of Xcel's payment of all or any part of the Claim of any
creditor of such NRG Entity.
"Xcel Released Parties" shall mean Xcel or any officer, director,
employee, subsidiary, Affiliate (other than NRG and the NRG
Subsidiaries), agent, or other party acting on behalf of Xcel or a
subsidiary or an Affiliate of Xcel (other than NRG or the NRG
Subsidiaries), in each case in their capacity as such.
"Xcel Shares Option" shall mean the option of Xcel to make any or all
of the Second Installment in XEL Stock as described in Section 2(d)
hereof.
"Xcel Tax Benefit" shall mean the reduction in federal income tax
liability of Xcel, any Affiliate, and the Xcel consolidated group, as
the case may be, attributable to the Worthless Stock Deduction,
including without limitation, the Cash Refund and the reduction of any
estimated payments of federal income tax liability in the Loss Year or
any subsequent year, which reduction may be made (or not made) by Xcel
in its sole discretion.
"XEL Stock" shall mean common stock of Xcel that has been registered
under the Securities Act of 1933, as amended, pursuant to an effective
registration statement.
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2. Xcel Consideration. Subject to the terms and conditions of
this Agreement, the NRG Plan, the Confirmation Order, and all other
agreements or documents contemplated by this Agreement, the NRG Plan
and the Confirmation Order, Xcel shall contribute the Xcel Contribution
to NRG. The Xcel Contribution shall be paid or provided as follows:
(a) Initial Contribution. The Initial Contribution shall
be paid in cash to NRG on the Xcel Payment Date, except to the
extent that payment of up to $150 million of the Initial
Contribution is payable by Xcel in XEL Stock pursuant to the
exercise by Xcel of the Xcel Downgrade Election under Section
2(f)(i) hereof or Section 2(f)(iii) hereof and except to the
extent that payment of up to $150 million of the Initial
Contribution is delayed pursuant to the delivery by the
Authorized Party of the NRG Payment Request to Xcel under
Section 2(f)(i) hereof or Section 2(f)(iii) hereof.
(b) Second Installment. The Second Installment shall be
paid to NRG on the later of January 1, 2004 or the Xcel
Payment Date in cash, except to the extent that all or any
part of the Second Installment is payable by Xcel in XEL Stock
pursuant to the exercise by Xcel of the Xcel Shares Option
under Section 2(d) hereof.
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(c) Third Installment.
(i) The amount of the Third Installment that is
payable on the later of April 30, 2004 or the Xcel
Payment Date pursuant, subject to paragraph 3(d)
below, to the Release-Based Amount Agreement shall be
paid to NRG in cash on the later of April 30, 2004 or
the Xcel Payment Date, except to the extent that
payment of such amount is delayed pursuant to Section
2(f)(iv) hereof to the later of June 30, 2004 or 60
days after the Xcel Payment Date and except that the
portion of the amount payable on the later of April
30, 2004 or the Xcel Payment Date (or, if Section
2(f)(iv) hereof is applicable, the later of June 30,
2004 or 60 days after the Xcel Payment Date) in
excess of the Cash Refund received by Xcel as of such
date shall not be due and payable until 30 days after
the later of April 30, 2004 or the Xcel Payment Date
(or if Section 2(f)(iv) is applicable, until 30 days
after the later of June 30, 2004 or 60 days after the
Xcel Payment Date). Additional portions of the Third
Installment payable by Xcel to NRG as a result of the
allowance or other liquidation of contingent,
unliquidated, or disputed claims against NRG shall be
paid by Xcel to NRG in cash on such dates as are
required by the Release-Based Amount Agreement,
subject to paragraph 3(d) below.
(ii) The payment of the Third Installment will be
required regardless of whether any Cash Refund is
ever received or whether any Xcel Tax Benefit is
later reduced or eliminated on audit by a taxing
authority. The Third Installment shall be payable
without interest; provided, if Xcel defaults in the
timely payment of the Third Installment, as required,
subject to paragraph 3(d) below, by the Release-Based
Amount Agreement (taking into account the 30 day
grace period set forth in section 2(c)(i) above and
the provisions of section 2(f)(iv) below), the unpaid
amount shall accrue simple interest at 10% per annum
from the date of non-payment until the date of
payment (in addition to any other remedies such as
collection actions, the reasonable cost of which
shall also be payable by Xcel).
(d) Xcel Shares Option. No later than five Business Days
after the Confirmation Date, Xcel can exercise the Xcel Shares
Option by issuing a press release stating that it has elected
to exercise the Xcel Shares Option and the amount (which can
be 100%) of the Second Installment to be paid in XEL Stock. If
Xcel exercises the Xcel Shares Option, Xcel shall pay in XEL
Stock the amount of the Second Installment designated by Xcel
in such press release to be paid in XEL Stock. The number of
shares that Xcel shall be required to deliver shall be the
nearest whole number of shares equal to (x) the amount of the
Second Installment to be made in XEL Stock divided by (y) the
average closing price for XEL Stock on the New York Stock
Exchange for the last ten full trading days through and
including the Business Day prior to the date the Second
Installment is due.
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(e) Xcel Released Causes of Action. The component of the
Xcel Contribution comprised of the Xcel Released Causes of
Action shall be deemed delivered to NRG and effective as of
the Effective Date.
(f) Xcel Downgrade Election.
(i) In the event that on the Confirmation Date
the Xcel Debt has not retained at least the 4/1/03
Ratings for a period of at least 120 consecutive days
through and including the Confirmation Date, then
Xcel, in its sole discretion, may, subject to an NRG
Payment Request described below, exercise the Xcel
Downgrade Election by, no later than five Business
Days after the Confirmation Date, issuing a press
release stating that it has exercised the Xcel
Downgrade Election and the amount (which can be up to
$150 million) of the Initial Contribution that will
be paid in XEL Stock. The number of shares of XEL
Stock that Xcel shall be required to deliver shall be
the nearest whole number of shares equal to (x) the
amount of the Initial Contribution to be made in XEL
Stock divided by (y) the average closing price on the
New York Stock Exchange for Xcel common stock for the
last ten full trading days through and including the
Business Day prior to the date when the portion of
the Initial Contribution to be paid in XEL Stock is
made.
(ii) Notwithstanding the foregoing, the
Authorized Party may request that Xcel not exercise
the Xcel Downgrade Election by delivering to Xcel an
NRG Payment Request within five Business Days after
Xcel's issuance of the press release set forth in
clause (i) above of this Section 2(f). After timely
receipt by Xcel of an NRG Payment Request, Xcel shall
be required to pay NRG in cash, and not in XEL Stock,
the portion of the $150 million of the Initial
Contribution subject to the Xcel Downgrade Election
on the Business Day after the Xcel Debt has achieved
at least the 4/1/03 Ratings for a period of at least
120 consecutive days. In addition, through the
Effective Date and prior to payment in full by Xcel
of the Initial Contribution, the Authorized Party may
revoke the NRG Payment Request by delivering to Xcel
an NRG Payment Revocation. Once given, an NRG Payment
Revocation shall be irrevocable. In addition, on the
180th day after receipt by Xcel of an NRG Payment
Request, if Xcel shall not have been required to pay
NRG in cash prior to such date the portion of the
$150 million of the Initial Contribution subject to
the Xcel Downgrade Election, then the NRG Payment
Revocation shall be deemed to have been given to
Xcel. Upon receipt or deemed receipt by Xcel of an
NRG Payment Revocation, Xcel shall pay the portion of
the Initial Contribution subject to the Xcel
Downgrade Election in XEL Stock within 10 Business
Days after the later of (1) receipt or deemed receipt
of the NRG Payment Revocation and (2) the Xcel
Payment Date. The number of shares of XEL Stock that
Xcel shall be required to deliver shall be the
nearest whole number of shares equal to (x) the
amount of the Initial Contribution to be made in XEL
Stock divided by (y) the average closing
12
price on the New York Stock Exchange for Xcel common
stock for the last ten full trading days through and
including the Business Day prior to the date when the
portion of the Initial Contribution to be paid in XEL
Stock is made.
(iii) If (1) on the Confirmation Date the Xcel
Debt has retained at least the 4/1/03 Ratings for a
period of at least 120 consecutive days but (2) at
any time after the Confirmation Date and prior to the
Xcel Payment Date the Xcel Debt has not retained at
least the 4/1/03 Ratings for a period of at least 120
consecutive days, then the provisions of subsections
(i) and (ii) above shall apply, but Xcel, in its sole
discretion, may, subject to an NRG Payment Request,
exercise the Xcel Downgrade Election and pay the
requisite XEL Stock no later than the later of (1) 10
Business Days after the Xcel Payment Date and (2) 105
days after the Downgrade Date. In such event, Xcel
shall issue a press release stating the specifics of
its Xcel Downgrade Election no later than five
Business Days after the Downgrade Date. In addition,
if Xcel has exercised an Xcel Downgrade Election
pursuant to this subsection (iii) and has
subsequently received an NRG Payment Revocation, then
Xcel shall pay the portion of the Initial
Contribution subject to the Xcel Downgrade Election
in XEL Stock within the later of (i) 10 Business Days
after receipt of the NRG Payment Revocation and (ii)
105 days after the Downgrade Date.
(iv) In addition to the foregoing, in the event
that on the Xcel Payment Date the Xcel Debt has not
retained at least the 4/1/03 Ratings for a period of
at least 120 consecutive days through and including
the date that the initial portion of the Third
Installment is due, then the due date for the initial
portion of the Third Installment shall be extended to
the later of June 30, 2004 and sixty days after the
Xcel Payment Date.
(g) Tax Treatment of Xcel Contribution. The Parties shall
treat the Xcel Contribution as a contribution to the capital
of NRG for federal, state, and local income tax purposes.
3. Allocation of Xcel Contribution and NRG Releases.
(a) Support Agreement Amount. The Support Agreement
Amount shall be made in exchange for the release of the NRG
Released Causes of Action comprised of the Support Agreement
Claims.
(b) Released-Based Amount. The Release-Based Amount
together with the Xcel Released Causes of Action shall be made
in exchange for the releases described in Sections 3(c) and
(d) hereof and such other releases and injunctions for the
benefit of the Released Parties set forth in the Confirmation
Order.
(c) Check the Box Releases. Subject to the terms of the
Release-Based Amount Agreement, the Released-Based Amount
shall be distributed pro rata to
13
each allowed Claim in the Unsecured Creditor Class that checks
the appropriate box on a Ballot indicating that the holder of
such Claim is releasing the Released Parties from all NRG
Released Causes of Action and causes the relevant balloting
agent to receive such Ballot by the Voting Deadline. Subject
to paragraph 3(d) of this Agreement, creditors not checking
the box on their Ballots and so causing the relevant balloting
agent to receive such Ballots by the Voting Deadline shall not
receive any portion of the Release-Based Amount; instead, the
aggregate share of the Release-Based Amount of those creditors
who did not check the box on their Ballots which otherwise
would have been payable to such creditors (if they had checked
the box) will be credited against and deducted from the Xcel
Contribution as set forth in the Release-Based Amount
Agreement.
(d) Third Party Releases. Notwithstanding anything to the
contrary in this Agreement, if the third party releases and
injunctions for the benefit of the Released Parties set forth
in sections 9.2 and 9.3 of the NRG Plan are approved in their
entirety pursuant to a Final Order of the Bankruptcy Court in
form acceptable to Xcel, then Xcel shall be obligated to pay
to NRG for distribution to creditors in the Unsecured Creditor
Class the entire $390 million of the Released-Based Amount;
provided, however, (a) the timing of the payment of the Third
Installment shall not be altered by an obligation to pay the
entire $390 million of Released-Based Amount, and (b) until
there is such a Final Order of the Bankruptcy Court, Xcel's
obligation to pay the Released-Based Amount shall be as
otherwise set forth in this Agreement and the Released-Based
Amount Agreement. In addition, if the third party releases and
injunctions for the benefit of the Released Parties set forth
in sections 9.2 and 9.3 of the NRG Plan are approved in their
entirety pursuant to a Final Order of the Bankruptcy Court in
form acceptable to Xcel, the Released-Based Amount Agreement
shall not be effective except for the indemnity provisions set
forth in section 9 thereof and any other portion of that
agreement applicable to section 9.
4. Xcel Tax Benefit. The Parties agree that:
(a) Worthless Stock Deduction. For federal income tax
purposes, after the Effective Date Xcel or its Affiliates
shall claim the Worthless Stock Deduction for the Loss Year.
Neither Xcel nor any of its Affiliates shall claim the
Worthless Stock Deduction for any year before the Loss Year.
(b) Tax Related Plan Provisions.
(i) The Xcel Tax Benefit shall be the sole and
exclusive property of Xcel, and the NRG Entities and
any party claiming by or through them hereby release
as of the Effective Date any right or interest that
they might otherwise have in the Xcel Tax Benefit.
(ii) NRG and its direct and indirect subsidiaries
shall not be (a) reconsolidated with Xcel or any of
its other Affiliates for tax purposes at any time
after their March, 2001 deconsolidation unless
otherwise
14
required by state or local tax law, or (b) treated as
a party to or otherwise entitled to the benefits of
any tax sharing agreement with Xcel, other than the
Tax Matters Agreement.
5. Xcel Guaranties, Insurance, and Intercompany Claims.
(a) Xcel Guaranties and Insurance. The Parties agree
that:
(i) On the Effective Date, all Guarantees shall
either be terminated or Xcel and NRG shall enter into
other arrangements satisfactory to Xcel and NRG with
respect to such obligations (with Xcel and any
Affiliates thereof having no further liability for
such obligations or arrangements) and all cash
collateral posted by Xcel or any Affiliate shall be
returned as soon as practicable to Xcel, including,
if not previously returned, the $11.5 million of cash
collateral posted by Xcel for the Mid-Atlantic
project. With respect to the $11.5 million of cash
collateral posted by Xcel for the Mid-Atlantic
project, NRG shall cooperate with Xcel in seeking the
return at the earliest practical date after the
current expiration of the relevant Mid-Atlantic
agreement in July of 2003.
(ii) NRG and the NRG Subsidiaries shall be solely
responsible for renewing, administering, and paying
for their own insurance policies starting with
insurance policies relating to property and other
coverages expiring as of June 2003, and D&O Policies
expiring on the D&O Expiration Date; provided,
however, that Xcel shall (1) not cancel any D&O
Policy before the D&O Expiration Date, (2) reasonably
cooperate with NRG's past or current officers and
directors who may be entitled to coverage under any
D&O Policy to allow them to administer their claims,
and (3) if available and at the sole cost of NRG, and
after receiving sufficient funds from NRG, at NRG's
request purchase customary tail coverage, commencing
on the D&O Expiration Date, for NRG's officers and
non-Xcel directors in office on the day prior to the
Petition Date and who are eligible for coverage under
any D&O Policy.
(iii) The Parties acknowledge and agree that the
rights and obligations of Xcel, NRG, and all other
persons or entities insured under any D&O Policy have
been and shall remain unaffected by the Chapter 11
Cases or any subsequent bankruptcy cases or
proceedings commenced by any of the NRG Subsidiaries
and that upon the Effective Date, Xcel, NRG, and all
other persons or entities insured under any D&O
Policy shall have the same status with respect to,
and rights under, any D&O Policy as immediately prior
to the Petition Date, notwithstanding, among other
things, the automatic stay in the Chapter 11 Case for
NRG previously in effect or the automatic stay that
may thereafter remain in effect in the chapter 11
case of any other NRG Subsidiary.
(b) Intercompany Claims. The Parties agree that:
15
(i) Any prepetition or postpetition Claims of
Xcel or any Affiliate against any of the NRG Entities
arising from the provision of intercompany goods or
services of the type set forth on Schedule 5(b)(i)
hereto to any of the NRG Entities or from payment by
Xcel or any Affiliate under any Guaranty shall be
paid in full in cash by NRG in the ordinary course
(including payment during the Chapter 11 Cases) in
the appropriate amount based on the underlying
contracts or agreements between the parties
(including all agreements listed on Schedule 8(m) to
this Agreement), without any subordination or
recharacterization of such Claims, except that the
Claims which are to be paid in full in the ordinary
course during the Chapter 11 Cases shall not include
Claims of Xcel or any Affiliate arising under the
Guarantees listed in Schedule 5(b)(i) hereto (such
Claims, subject to the next sentence, to be paid in
full in cash by NRG on the Effective Date as provided
in clause (ii) below) but shall include any Claims of
Xcel or any Affiliate related to Northern States
Power Company, NRG Energy Center-Rock Tenn LLC, NRG
Thermal f/k/a Norenco Corporation, NRG Resource
Recovery, Inc., Minnesota Waste Processing Company
LLC, and NRG Energy, Inc. Notwithstanding the
foregoing, (A) Settled Claims shall not be paid until
the Effective Date, at which time Xcel shall receive,
on account of and in full and final settlement of
such Claims, the Xcel Plan Note; and (B) after
January 31, 2003 NRG shall only be responsible under
the Services Agreement for Reimbursable Claims. NRG
agrees that it shall not order services from Xcel or
any Affiliate under the Services Agreement or
otherwise inconsistent with any provisions of this
Agreement.
(ii) To the extent, if any, that intercompany
Claims of Xcel or any Affiliate (other than Settled
Claims and other than Claims under the Services
Agreement which are not Reimbursable Claims, but
including Claims for reimbursement of payments made
by Xcel or any Affiliate under Guarantees) are unpaid
as of the Petition Date, such amounts shall be paid
in full in cash on the Effective Date by the relevant
NRG Entity or NRG under the NRG Plan without any
subordination or recharacterization of such Claims.
(iii) The provisions of clauses (i) and (ii) of
this Section 5(b) shall not apply to any tax sharing
agreement. All tax sharing agreements or
understandings to the extent otherwise binding on
Xcel and NRG, shall terminate (without any residual
or ongoing liability of either party to the other) as
of the Effective Date for all taxable periods, past,
present and future. On and after the Effective Date,
tax matters between NRG, Xcel, and any Affiliates
thereof shall be governed exclusively by the Tax
Matters Agreement.
16
6. Representations and Warranties.
(a) Each Party represents and warrants to the other Party
that it is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its formation.
(b) Each Party represents and warrants to the other Party
that its execution, delivery and performance of this Agreement
are within the power and authority of such party and have been
duly authorized by such party.
(c) Each Party represents and warrants to the other Party
that this Agreement has been duly executed and delivered by it
and constitutes its legal, valid and binding obligation,
enforceable in accordance with the terms hereof, except to the
extent that any Party requires regulatory or other approvals
set forth in section 8(f) of this Agreement and such approvals
have not been obtained; provided, that each Party's
acknowledgement that the Effective Date of this Agreement has
occurred shall constitute a representation that it has
obtained all such approvals.
(d) Each Party represents and warrants to the other Party
that neither the execution and delivery of this Agreement nor
compliance with the terms and provisions hereof will violate,
conflict with or result in a breach of, its certificate of
incorporation or bylaws or other constitutive document, any
applicable law or regulation, any order, writ, injunction or
decree of any court or governmental authority or agency, or
any agreement or instrument to which it is a party or by which
it is bound or to which it is subject, except to the extent
that any Party requires regulatory or other approvals set
forth in section 8(f) of this Agreement and such approvals
have not been obtained; provided, that each Party's
acknowledgement that the Effective Date of this Agreement has
occurred shall constitute a representation that it has
obtained all such approvals.
(e) NRG represents and warrants to Xcel that from
January 1, 2003 through the Confirmation Date, (A) no NRG
Entity has caused or permitted to be made any distribution
from an NRG Subsidiary to the extent that (1) the distribution
would be treated as a dividend to NRG for federal income tax
purposes and (2) the distribution or portion thereof treated
as a dividend to NRG, alone or in combination with any other
distribution treated as a dividend to NRG during that period
and any taxable gain described in clause (B) of this paragraph
would exceed $63 million, and (B) NRG has not engaged in any
transaction that is treated as a sale by NRG of stock or
securities for federal income tax purposes and that resulted
in a taxable gain, to the extent that the amount of such
taxable gain, alone or in combination with any other taxable
gain described in this clause (B) and any distribution
described in clause (A) of this paragraph would exceed $63
million.
(f) NRG represents and warrants to Xcel that from the
Petition Date through the Effective Date, no NRG Entity has
taken any action that would increase, or failed to take any
action that would minimize, the likelihood that Xcel or any
17
Affiliate will be required to make any payment on any Guaranty
during the Chapter 11 Cases.
(g) NRG represents that all NRG Subsidiaries, except for
Hsin Yu Energy Development Company Ltd. and NRG Gladstone
Superannuation Pty Ltd., have been included on the signature
pages to this Agreement.
7. Covenants.
(a) Neither Party shall take any action that would delay
or frustrate the occurrence of the Effective Date, the
transactions contemplated by this Agreement, or the
transactions contemplated by any other agreements or documents
referenced in this Agreement, or the consummation of the NRG
Plan.
(b) Each Party shall take all actions necessary or
appropriate to consummate the transactions contemplated by
this Agreement.
(c) During the period beginning on the date of this
Agreement and ending on the Effective Date, NRG shall not (A)
cause or permit to be made any distribution from an NRG
Subsidiary to the extent that (1) the distribution would be
treated as a dividend to NRG for federal income tax purposes
and (2) the distribution or portion thereof treated as a
dividend to NRG, alone or in combination with any other
distribution treated as a dividend to NRG between January 1,
2003 and the Effective Date and any taxable gain described in
clause (B) of this paragraph would exceed $63 million, and (B)
engage in any transaction that is treated as a sale by NRG of
stock or securities for federal income tax purposes and that
results in a taxable gain, to the extent that the amount of
such taxable gain, alone or in combination with any other
taxable gain described in this clause (B) between January 1,
2003 and the Effective Date and any distribution described in
clause (A) of this paragraph would exceed $63 million;
provided, however, that this covenant shall not apply to any
sales or distributions made during any period following the
date of this Agreement in which persons effectively nominated
or designated by Xcel hold a majority of the seats on NRG's
board of directors or on the managing board of the applicable
NRG Subsidiary.
(d) No NRG Entity shall take any action that would
increase, or fail to take any action that would minimize, the
likelihood that Xcel or any Affiliate will be required to make
any payment on any Guaranty during the Chapter 11 Cases.
(e) Except to the extent otherwise provided in the NRG
Plan, NRG shall use its reasonable best efforts to cause all
NRG Subsidiaries which become part of the Chapter 11 Cases or
other bankruptcy cases or proceedings instituted as part of
the reorganization of the NRG Entities to seek a Final Order
in a form acceptable to Xcel from the Bankruptcy Court making
the provisions of sections 9.2, 9.3.C., and 9.3.G. of the NRG
Plan applicable to such NRG Subsidiaries.
8. Condition to Xcel's Obligations Hereunder. All obligations of
Xcel under this Agreement, including the obligation of Xcel to make all
or any part of the Xcel
18
Contribution, are expressly subject to the satisfaction or waiver by
Xcel of each of the following conditions as of the Effective Date:
(a) NRG shall have received the requisite votes in favor
of confirmation of the NRG Plan under section 1129(a) of the
Bankruptcy Code from the Unsecured Creditor Class by the
Voting Deadline for the NRG Plan.
(b) NRG shall have received votes in favor of
confirmation of the NRG Plan from each of the Supporting
Creditors by the Voting Deadline for the NRG Plan, and no such
vote shall have been revoked or withdrawn.
(c) Unless the third party releases and injunctions for
the benefit of the Released Parties set forth in sections 9.2
and 9.3 of the NRG Plan are approved in their entirety
pursuant to a Final Order of the Bankruptcy Court in form
acceptable to Xcel, the following persons shall have released
the Released Parties from all NRG Released Causes of Action by
"checking the box" (as described in Section 3(c) hereof) on
their Ballots and causing the relevant balloting agent to
receive such Ballots no later than the Voting Deadline for the
NRG Plan and such releases shall be in full force and effect
and shall not be stayed or modified:
(i) holders of a majority in number representing
85% in principal amount outstanding of the Claims in
respect of the Notes, including 100% of the
Supporting Noteholders;
(ii) holders of 100% in principal amount
outstanding of the Claims in respect of each of the
NRG Unsecured Revolver Agreement, the NRG Letter of
Credit Facility, and the NRG FinCo Secured Revolver
Agreement; and
(iii) holders of 85% in amount of all Claims in
the Unsecured Creditor Class as determined by the
Release-Based Amount Agreement.
(d) The Confirmation Order shall have been entered on the
docket of the Bankruptcy Court for 11 days (except to the
extent such delay shall cause the Effective Date of the NRG
Plan to occur after December 15, 2003), and the Confirmation
Order shall (i) fully incorporate all of the relevant
provisions of this Agreement (including the releases and
injunctions described herein) and any other matters agreed to
in writing by Xcel, (ii) not contain any provisions
inconsistent with this Agreement or such other matters (other
than a provision to which Xcel has previously consented to in
writing), (iii) confirm the NRG Plan under section 1129(a) of
the Bankruptcy Code and approve this Agreement, and all other
agreements and documents contemplated or referenced in this
Agreement, or the NRG Plan, (iv) not approve any amendments or
supplements to the NRG Plan (other than amendments or
supplements to which Xcel has previously consented to in
writing) which Xcel determines to be adverse to it in its sole
reasonable discretion, and (v) be in full force and effect and
not be stayed or modified.
19
(e) The filing by the relevant NRG Entities of the 9019
Motion, and the entry on the docket of the Bankruptcy Court of
the Confirmation Order which shall approve the 9019 Motion.
(f) The receipt by Xcel and any required Affiliate, and,
to the extent applicable, NRG of all regulatory and other
approvals (including any approvals from the Federal Energy
Regulatory Commission and the Securities and Exchange
Commission) necessary for Xcel or any such Affiliate and, to
the extent applicable, NRG to perform such obligations set
forth in this Agreement, the other agreements and documents
contemplated or referenced herein, and in the NRG Plan and
Confirmation Order.
(g) Each NRG Entity shall comply in all respects with
every covenant, agreement, or other obligation under this
Agreement applicable to it.
(h) All representations and warranties made by any NRG
Entity under this Agreement shall be true and correct in all
material respects when made and as of the Effective Date.
(i) Each of the members of the Bank Group that has a
Claim against Xcel under any Xcel credit facility (the
"Cross-Over Lenders") shall have approved, without payment of
any special fee or expense, any waiver or amendment that Xcel
and the administrative agent under such credit facility
believe is necessary under such credit facility to implement
this Agreement, the NRG Plan, and any of the transactions
contemplated thereby or by agreements referenced herein (an
"Xcel Credit Waiver"), except that if other lenders to Xcel
under any credit facility shall receive a special fee or
expense for their waiver or amendment, the Cross-Over Lenders
shall be entitled to the same pro rata fee or expense, and, in
any case, all Xcel Credit Waivers having been fully obtained
by Xcel and being in full force and effect.
(j) Xcel (or to the extent applicable, any Affiliate of
Xcel) shall have received full payment or satisfaction of all
intercompany Claims in accordance with the provisions of
Section 5(b) of this Agreement.
(k) (1) the Bank Group shall have executed and delivered
to Xcel the Separate Bank Release Agreement, (2) NRG shall
have executed and delivered to Xcel the Release-Based Amount
Agreement, the Employee Matters Agreement, the Tax Matters
Agreement, the Xcel Plan Note, and all other agreements and
documents contemplated by this Agreement and the Separate Bank
Release Agreement simultaneously with the execution and
delivery of this Agreement, and (3) this Agreement, the
Separate Bank Release Agreement, the Release-Based Amount
Agreement, the Employee Matters Agreement, the Tax Matters
Agreement, the Xcel Plan Note, all such other agreements and
documents, the NRG Plan, the Confirmation Order, and any other
orders contemplated by any of the foregoing agreements or
documents shall be in full force and effect and shall not have
been stayed or modified.
20
(l) Such procedures as are acceptable to Xcel shall have
been approved by the Disclosure Statement Order and shall have
been fully instituted and followed so as to permit Xcel to
determine (i) all parties holding or who have held Notes as of
the Voting Record Date and who have released Xcel from all NRG
Released Causes of Action by checking the appropriate box on
the relevant Ballot, and (ii) all parties holding or who have
held Notes and to whom NRG should pay the requisite
Released-Based Amount at any time.
(m) The Confirmation Order shall approve the assumption
by the Debtors of the Assumed Agreements, and the Debtors
shall have satisfied for the benefit of Xcel (or any
applicable Affiliate) all Cure Obligations with respect
thereto. To the extent the Assumed Agreements are between Xcel
or its Affiliates and an NRG Entity which is not a Debtor, NRG
will cause such NRG Entity (i) to pay any and all amounts due
to Xcel or its Affiliates under such Assumed Agreements and
will ensure that such NRG Entity's obligations under such
Assumed Agreements remains current, and (ii) to seek an order
in a form acceptable to Xcel from the Bankruptcy Court
authorizing the assumption of such Assumed Agreements in the
event that such NRG Entity subsequently commences a case under
the Bankruptcy Code.
(n) There shall have been no amendments or supplements to
the Confirmation Order, the NRG Plan, the Bar Date Order,
Disclosure Statement, or the Disclosure Statement Order, other
than those amendments or supplements approved by Xcel in
writing.
(o) The Effective Date for the NRG Plan, and the
satisfaction of all of the other conditions set forth in this
Section 8, shall have occurred by no later than December 15,
2003.
Should the "Effective Date" of this Agreement not occur, all obligations of the
Parties set forth in this Agreement shall be null and void ab initio and all
Xcel Released Causes of Action, NRG Released Causes of Action, and any other
Claims, Causes of Action, remedies, defenses, setoffs, rights or other benefits
of the Parties or any of their respective Affiliates shall be fully preserved
without any estoppel, evidentiary or other effect of any kind or nature
whatsoever. Upon Xcel's determination, which may not be unreasonably delayed,
that each of the foregoing conditions has been satisfied in accordance with the
terms of this Agreement, Xcel shall deliver a written notice to NRG stating as
such and that the effective date of this Agreement has occurred. For purposes of
any agreement or document contemplated by this Agreement, including the NRG
Plan, the "Effective Date" of this Agreement shall be the date on which Xcel
delivers to NRG such written notice. The "Effective Date" of this Agreement
shall not occur unless and until such written notice has been delivered to NRG
by Xcel.
21
9. Condition to NRG's Obligations Hereunder. All obligations of
NRG under this Agreement are expressly subject to the execution by Xcel
of the Tax Matters Agreement in the form agreed to by the Parties.
10. Termination. If all of the conditions set forth in section 8
of this Agreement shall not have occurred by December 15, 2003, this
Agreement shall terminate on December 31, 2003 unless Xcel on or prior
to such date shall have waived any such conditions or shall have
extended such termination date, in each case by written notice
delivered by Xcel to NRG. Upon the termination of this Agreement, all
obligations of the Parties under this Agreement shall terminate and
shall be of no further force and effect; provided, however, that any
claim of any Party for breach of this Agreement shall survive
termination and all rights and remedies with respect to such claims
shall not be prejudiced in any way.
11. Indemnification by NRG. NRG shall, for itself and on behalf
of each of the NRG Subsidiaries, and as agent for each NRG Subsidiary,
indemnify, defend (or, where applicable, pay the reasonable defense
costs for) and hold harmless the Released Parties from and against any
and all Liabilities that any entity seeks to impose upon the Released
Parties, or which are imposed upon the Released Parties, if and to the
extent such Liabilities relate to, arise out of or result from the
failure of any NRG Subsidiary to pay its creditors in full except to
the extent provided for in the NRG Plan and except with respect to (i)
LSP-Pike Energy, LLC, (ii) LSP-Nelson Energy, LLC, (iii) NRG Nelson
Turbines, LLC, (iv) NRG Gila Bend Holdings, and (v) NRG Audrain
Generating LLC, or the failure to have the provisions of sections 9.2,
9.3.B., 9.3.C., and 9.3.G. of the NRG Plan be fully applicable pursuant
to a Final Order of the Bankruptcy Court to any Non-Plan Debtor or any
NRG Subsidiary which subsequently becomes part of the Chapter 11 Cases
or other bankruptcy cases or proceedings.
12. Release and Covenant Not to Sue.
(a) Release. As of the Effective Date, for good and
valuable consideration, the adequacy of which is hereby
confirmed, each of the NRG Entities, in their individual
capacities and, to the extent applicable, as debtors in
possession for and on behalf of their estates and any entity
that may assert a Claim or Cause of Action derivatively or
otherwise, hereby release and discharge, absolutely,
unconditionally, irrevocably and forever, the Released Parties
from any and all NRG Released Causes of Action.
(b) Applicability of Release to Transferees. The releases
set forth in Section 12(a) above shall be binding upon all
Transferees of the releasing party.
(c) Binding Effect of Releases. Each party to which the
releases set forth in Section 12(a) above applies shall be
deemed to have granted such release notwithstanding that it
may hereafter discover facts in addition to, or different
from, those which it now knows or believes to be true, and
without regard to the subsequent discovery or existence of
such different or additional facts, and such party expressly
waives any and all rights that it may have under any statute
or
22
common law principle, including section 1542 of the California
Civil Code, which would limit the effect of such releases to
those Claims or Causes of Action actually known or suspected
to exist at the time of execution of the release. Section 1542
of the California Civil Code generally provides as follows: "a
general release does not extend to claims which the creditor
does not know or suspect to exist in his favor at the time of
executing the release, which if known by him may have
materially affected his settlement with the debtor."
(d) NRG Entity Covenant Not to Sue. As of the Effective
Date, for good and valuable consideration, the adequacy of
which is hereby confirmed, each of the NRG Entities, in their
individual capacities and, to the extent applicable, as
debtors in possession for and on behalf of their estates and
any entity that may assert a claim or cause of action
derivatively or otherwise, hereby covenant and agree not to
commence or prosecute any lawsuit or other legal action,
proceeding, or arbitration against any of the Released Parties
in respect of any and all NRG Released Causes of Action.
(e) Xcel Covenant Not to Sue. As of the Effective Date,
for good and valuable consideration, the adequacy of which is
hereby confirmed, Xcel and, to the extent applicable, any
entity that may assert a claim or cause of action derivatively
or otherwise, hereby covenants and agrees not to commence or
prosecute any lawsuit or other legal action, proceeding, or
arbitration against any of the NRG Entities in respect of any
and all Xcel Released Causes of Action.
13. Miscellaneous Provisions.
(a) Specific Performance. It is understood and agreed
that money damages would not be a sufficient remedy for any
breach of this Agreement, and each non-breaching Party shall
be entitled to specific performance and injunctive or other
equitable relief as a remedy for such breach.
(b) Successors and Assigns. This Agreement is intended to
bind and inure to the benefit of each of the Parties and each
of their respective successors, assigns, heirs, executors,
administrators, and representatives.
(c) Governing Law; Jurisdiction. This Agreement will be
governed by the laws of the State of New York, without regard
to its conflicts of laws principles that would require the law
of another jurisdiction to be applied. Through the first
anniversary of the Effective Date, each of the Parties
irrevocably (a) submits and consents in advance to the
exclusive jurisdiction of the Bankruptcy Court for the purpose
of any action or proceeding in which any NRG Entity is a party
arising out of or relating to this Agreement; (b) agrees that
all claims in respect to such action or proceeding may be
heard and determined exclusively in such court; and (c) waives
any objection that such Party may have based upon lack of
personal jurisdiction, improper venue, or forum non
conveniens.
23
(d) Entire Agreement. This Agreement, the exhibits and
schedules hereto, and the applicable provisions in the NRG
Plan constitute the complete and entire agreement between the
Parties with respect to the matters contained in this
Agreement, and supersede all prior agreements, negotiations,
and discussions between the Parties with respect thereto.
(e) Non-Reliance. Each of the Parties acknowledges that,
in entering into this Agreement, it is not relying upon any
representations or warranties made by anyone other than those
representations, warranties, terms and provisions expressly
set forth in this Agreement, the exhibits and schedules
hereto, and the applicable provisions in the NRG Plan.
(f) 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:
(i) if to any of the NRG Entities, to Matthew A.
Cantor, Kirkland & Ellis, Citigroup Center, 153 East
53rd Street, New York, New York 10022-4611, fax:
212-446-4900;
(ii) if to Xcel, to Brad B. Erens, Jones Day, 77
West Wacker, Chicago, Illinois, 60601-1692, fax:
312-782-8585, with a copy to Scott J. Friedman and
Brian E. Greer, Jones Day, 222 East 41st Street, New
York, New York 10017, fax: 212-755-7306; and
(iii) if to the Creditors' Committee (through its
dissolution), to Evan D. Flaschen, Bingham McCutchen
LLP, One State Street, Hartford, Connecticut
06103-3178.
(g) Amendment; Waiver. It is expressly understood and
agreed that this Agreement may not be altered, amended,
modified or otherwise changed in any respect whatsoever except
by a writing duly executed by authorized representatives of
each of the Parties, and the Parties further acknowledge and
agree that they will make no claim at any time or place that
this Agreement has been orally supplemented, modified, or
altered in any respect whatsoever. In addition, no failure on
the part of any party to this Agreement to exercise, and no
delay on its part in exercising, any right or remedy under
this Agreement will operate as a waiver thereof, nor will any
single or partial exercise of any right or remedy preclude any
other or further exercise thereof or the exercise of any other
right or remedy.
(h) 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 the Parties of any Claim or any
fault or liability or damages whatsoever. Each of them 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 would assert.
24
(i) Headings. The headings of this Agreement are for
reference only and shall not limit or otherwise affect the
meaning hereof.
(j) Representation by Counsel. Each Party acknowledges
that it has been represented by counsel with this Agreement
and the transactions contemplated herein. Accordingly, any
rule of law or any legal decision that would provide any Party
with a defense to the enforcement of the terms of this
Agreement against such Party based upon lack of legal counsel
shall have no application and is expressly waived.
(k) 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.
(l) 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 as effective as delivery of a
manually executed signature page of this Agreement.
25
EXECUTION COPY
NRG ENERGY, INC. XCEL ENERGY, INC.
/s/ SCOTT J. DAVIDO /s/ RICHARD C. KELLY
By: Scott J. Davido By: Richard C. Kelly
Title: Senior Vice President and Title: President and Chief
General Counsel Operating Officer
ARTHUR KILL POWER LLC ASTORIA GAS TURBINE POWER LLC
/s/ SCOTT J. DAVIDO /s/ SCOTT J. DAVIDO
By: Scott J. Davido By: Scott J. Davido
Title: VP/Asst. Secretary Title: VP/Asst. Secretary
BAYOU COVE PEAKING POWER, LLC BERRIANS I GAS TURBINE POWER LLC
/s/ SCOTT J. DAVIDO /s/ SCOTT J. DAVIDO
By: Scott J. Davido By: Scott J. Davido
Title: VP/Asst. Secretary Title: VP/Asst. Secretary
BIG CAJUN I PEAKING POWER LLC BIG CAJUN II UNIT 4 LLC
/s/ SCOTT J. DAVIDO /s/ SCOTT J. DAVIDO
By: Scott J. Davido By: Scott J. Davido
Title: VP/Asst. Secretary Title: VP/Asst. Secretary
CAMAS POWER BOILER LIMITED PARTNERSHIP CAMAS POWER BOILER, INC.
/s/ SCOTT J. DAVIDO /s/ SCOTT J. DAVIDO
By: Scott J. Davido By: Scott J. Davido
Title: Director and VP of GP-Camas Title: Director and VP
Power Boiler, Inc.
CAPISTRANO COGENERATION COMPANY CHICKAHOMINY RIVER ENERGY CORP.
/s/ SCOTT J. DAVIDO /s/ SCOTT J. DAVIDO
By: Scott J. Davido By: Scott J. Davido
Title: Director and VP Title: Director and VP
COBEE ENERGY DEVELOPMENT LLC COBEE HOLDINGS LLC
/s/ SCOTT J. DAVIDO /s/ SCOTT J. DAVIDO
By: Scott J. Davido By: Scott J. Davido
Title: VP/Asst. Secretary Title: VP/Asst. Secretary
COMMONWEALTH ATLANTIC POWER LLC COMPANIA BOLIVIANA DE ENERGIA
ELECTRICA S.A.
/s/ SCOTT J. DAVIDO /s/ SCOTT J. DAVIDO
By: Scott J. Davido By: Scott J. Davido
Title: VP/Asst. Secretary Title: Chairman & Director
CONEMAUGH POWER LLC CONITI HOLDING B.V.
/s/ SCOTT J. DAVIDO /s/ SCOTT J. DAVIDO
By: Scott J. Davido By: Scott J. Davido
Title: VP/Asst. Secretary Title: Director of NRGeneration
Holdings (No. 21) B.V.,
which is sole Director of
Coniti Holding B.V.
CONNECTICUT JET POWER LLC CSEPEL LUXEMBOURG (NO. 1) S.A.R.L.
/s/ SCOTT J. DAVIDO /s/ SCOTT J. DAVIDO
By: Scott J. Davido By: Scott J. Davido
Title: VP/Asst. Secretary Title: Director of NRGenerating
International B.V., which is
sole Director of
NRGenerating Luxembourg
(No. 1) S.a.r.l. which is
sole Director of Csepel
Luxembourg (No. 1) S.a.r.l.
DEVON POWER LLC DUNKIRK POWER LLC
/s/ SCOTT J. DAVIDO /s/ SCOTT J. DAVIDO
By: Scott J. Davido By: Scott J. Davido
Title: VP/Asst. Secretary Title: VP/Asst. Secretary
EASTERN SIERRA ENERGY COMPANY EL SEGUNDO POWER II LLC
/s/ SCOTT J. DAVIDO /s/ JOHN P. BREWSTER
By: Scott J. Davido By: John P. Brewster
Title: Director/VP Title: President
ELK RIVER RESOURCE RECOVERY, INC. ENERGY NATIONAL, INC.
/s/ SCOTT J. DAVIDO /s/ SCOTT J. DAVIDO
By: Scott J. Davido By: Scott J. Davido
Title: Director/VP Title: Director/VP
27
EXECUTION COPY
ENIFUND, INC. ENIGEN, INC.
/s/ SCOTT J. DAVIDO /s/ GEORGE P. SCHAEFER
By: Scott J. Davido By: George P. Schaefer
Title: Director/VP Title: Treasurer
ENTRADE HOLDINGS B.V. ESOCO MOLOKAI, INC.
/s/ SCOTT J. DAVIDO /s/ SCOTT J. DAVIDO
By: Scott J. Davido By: Scott J. Davido
Title: Director Title: Director/VP
ESOCO ORRINGTON, INC. ESOCO, INC.
/s/ SCOTT J. DAVIDO /s/ SCOTT J. DAVIDO
By: Scott J. Davido By: Scott J. Davido
Title: Director/VP Title: Director/VP
EUROPEAN GENERATING S.A.R.L. FLINDERS COAL PTY LTD
/s/ ERSHEL C. REDD, JR. /s/ SCOTT J. DAVIDO
By: Ershel C. Redd, Jr. By: Scott J. Davido
Title: Director Title: Director
FLINDERS LABUAN (NO. 1) LTD. FLINDERS LABUAN (NO. 2) LTD.
/s/ SCOTT J. DAVIDO /s/ SCOTT J. DAVIDO
By: Scott J. Davido By: Scott J. Davido
Title: Director Title: Director
FLINDERS OSBORNE TRADING PTY LTD FLINDERS POWER FINANCE PTY LTD
/s/ SCOTT J. DAVIDO /s/ SCOTT J. DAVIDO
By: Scott J. Davido By: Scott J. Davido
Title: Director Title: Director
GRANITE II HOLDING, LLC GRANITE POWER PARTNERS II, L.P.
/s/ SCOTT J. DAVIDO /s/ SCOTT J. DAVIDO
By: Scott J. Davido By: Scott J. Davido
Title: VP/Manager Title: VP/Corporate Secretary of
NRG Energy, Inc. which is
the sole member of Granite
Acquisition LLC who is the
General Partner of Granite
Power Partners II, L.P.
GUNWALE B.V. HANOVER ENERGY COMPANY
/s/ SCOTT J. DAVIDO /s/ SCOTT J. DAVIDO
By: Scott J. Davido By: Scott J. Davido
Title: Director Title: Director/VP
HUNTLEY POWER LLC INDIAN RIVER OPERATIONS INC.
/s/ SCOTT J. DAVIDO /s/ SCOTT J. DAVIDO
By: Scott J. Davido By: Scott J. Davido
Title: VP/Asst. Secretary Title: Director/VP
INDIAN RIVER POWER LLC JAMES RIVER POWER LLC
/s/ SCOTT J. DAVIDO /s/ SCOTT J. DAVIDO
By: Scott J. Davido By: Scott J. Davido
Title: VP/Asst. Secretary Title: VP/Asst. Secretary
KAUFMAN COGEN LP KEYSTONE POWER LLC
/s/ SCOTT J. DAVIDO /s/ SCOTT J. DAVIDO
By: Scott J. Davido By: Scott J. Davido
Title: VP of NRG Energy, Inc. sole Title: VP/Asst. Secretary
member of NRG Kaufman LLC the
General Partner of Kaufman
Cogen LP
KIKSIS B.V. KLADNO POWER (NO. 1) B.V.
/s/ SCOTT J. DAVIDO /s/ SCOTT J. DAVIDO
By: Scott J. Davido By: Scott J. Davido
Title: Director Title: Director
KLADNO POWER (NO. 2) B.V. LAMBIQUE BEHEER B.V.
/s/ SCOTT J. DAVIDO /s/ SCOTT J. DAVIDO
By: Scott J. Davido By: Scott J. Davido
Title: Director Title: Director
LOUISIANA GENERATING LLC LSP EQUIPMENT, LLC
/s/ SCOTT J. DAVIDO /s/ SCOTT J. DAVIDO
By: Scott J. Davido By: Scott J. Davido
Title: VP/Asst. Secretary Title: VP/Manager
29
LSP-KENDALL ENERGY, LLC LSP-NELSON ENERGY, LLC
/s/ SCOTT J. DAVIDO /s/ SCOTT J. DAVIDO
By: Scott J. Davido By: Scott J. Davido
Title: VP/Asst. Secretary Title: VP/Asst. Secretary
LSP-PIKE ENERGY, LLC MERIDEN GAS TURBINES LLC
/s/ SCOTT J. DAVIDO /s/ SCOTT J. DAVIDO
By: Scott J. Davido By: Scott J. Davido
Title: VP/Asst. Secretary Title: VP/Asst. Secretary
MIDATLANTIC GENERATION HOLDING LLC MIDDLETOWN POWER LLC
/s/ SCOTT J. DAVIDO /s/ SCOTT J. DAVIDO
By: Scott J. Davido By: Scott J. Davido
Title: VP/Asst. Secretary Title: VP/Asst. Secretary
MONTVILLE POWER LLC NEO CALIFORNIA POWER LLC
/s/ SCOTT J. DAVIDO /s/ SCOTT J. DAVIDO
By: Scott J. Davido By: Scott J. Davido
Title: VP/Asst. Secretary Title: Manager
NEO CHESTER-GEN LLC NEO CORPORATION
/s/ SCOTT J. DAVIDO /s/ SCOTT J. DAVIDO
By: Scott J. Davido By: Scott J. Davido
Title: Manager Title: VP/Asst. Secretary
NEO FREEHOLD-GEN LLC NEO FT. SMITH LLC
/s/ SCOTT J. DAVIDO /s/ SCOTT J. DAVIDO
By: Scott J. Davido By: Scott J. Davido
Title: Manager Title: Manager
NEO HACKENSACK, LLC NEO LANDFILL GAS HOLDINGS INC.
/s/ SCOTT J. DAVIDO /s/ SCOTT J. DAVIDO
By: Scott J. Davido By: Scott J. Davido
Title: Manager Title: VP/Asst. Secretary
30
EXECUTION COPY
NEO LANDFILL GAS INC. NEO NASHVILLE LLC
/s/ SCOTT J. DAVIDO /s/ SCOTT J. DAVIDO
By: Scott J. Davido By: Scott J. Davido
Title: VP/Asst. Secretary Title: Manager
NEO PHOENIX LLC NEO POWER SERVICES INC.
/s/ SCOTT J. DAVIDO /s/ SCOTT J. DAVIDO
By: Scott J. Davido By: Scott J. Davido
Title: Manager Title: Manager
NEO PRIMA DESHECHA LLC NEO TAJIGUAS LLC
/s/ SCOTT J. DAVIDO /s/ SCOTT J. DAVIDO
By: Scott J. Davido By: Scott J. Davido
Title: Manager Title: Manager
NEO WOODVILLE LLC NORTHBROOK NEW YORK, LLC
/s/ SCOTT J. DAVIDO /s/ MICHAEL R. CARROLL
By: Scott J. Davido By: Michael R. Carroll
Title: Manager Title: Operating Committee Member
NORTHEAST GENERATION HOLDING LLC NORWALK POWER LLC
/s/ SCOTT J. DAVIDO /s/ SCOTT J. DAVIDO
By: Scott J. Davido By: Scott J. Davido
Title: VP/Asst. Secretary Title: VP/Asst. Secretary
NRG AFFILIATE SERVICES INC. NRG ARTHUR KILL OPERATIONS INC.
/s/ SCOTT J. DAVIDO /s/ SCOTT J. DAVIDO
By: Scott J. Davido By: Scott J. Davido
Title: Director/VP Title: Director/VP
NRG ASIA-PACIFIC, LTD. NRG ASTORIA GAS TURBINE OPERATIONS
INC.
/s/ SCOTT J. DAVIDO /s/ SCOTT J. DAVIDO
By: Scott J. Davido By: Scott J. Davido
Title: Director Title: Director/VP
EXECUTION COPY
NRG AUDRAIN GENERATING LLC NRG AUDRAIN HOLDING LLC
/s/ SCOTT J. DAVIDO /s/ SCOTT J. DAVIDO
By: Scott J. Davido By: Scott J. Davido
Title: VP/Asst. Secretary Title: VP/Asst. Secretary
NRG AUSTRALIA HOLDINGS (NO. 4) PTY LTD. NRG BATESVILLE LLC
/s/ SCOTT J. DAVIDO /s/ SCOTT J. DAVIDO
By: Scott J. Davido By: Scott J. Davido
Title: Director Title: Director/VP of LSP Energy,
Inc., its General Partner
NRG BAYOU COVE LLC NRG BOURBONNAIS EQUIPMENT LLC
/s/ SCOTT J. DAVIDO /s/ SCOTT J. DAVIDO
By: Scott J. Davido By: Scott J. Davido
Title: VP/Asst. Secretary Title: VP/Asst. Secretary
NRG BOURBONNAIS LLC NRG BRAZOS VALLEY GP LLC
/s/ SCOTT J. DAVIDO /s/ SCOTT J. DAVIDO
By: Scott J. Davido By: Scott J. Davido
Title: VP/Asst. Secretary Title: VP/Corporate Secretary of
NRG Energy, Inc. which is the
sole member of NRG Brazos
Valley GP LLC
NRG BRAZOS VALLEY LP LLC NRG CABRILLO POWER OPERATIONS INC.
/s/ SCOTT J. DAVIDO /s/ SCOTT J. DAVIDO
By: Scott J. Davido By: Scott J. Davido
Title: VP/Corporate Secretary of NRG Title: Director/VP
Energy, Inc. which is the sole
member of NRG Brazos Valley
LP LLC
NRG CADILLAC INC. NRG CADILLAC OPERATIONS INC.
/s/ SCOTT J. DAVIDO /s/ SCOTT J. DAVIDO
By: Scott J. Davido By: Scott J. Davido
Title: Director/VP Title: Director
EXECUTION COPY
NRG CALIFORNIA PEAKER OPERATIONS LLC NRG CAPITAL II LLC
/s/ SCOTT J. DAVIDO /s/ SCOTT J. DAVIDO
By: Scott J. Davido By: Scott J. Davido
Title: VP/Asst. Secretary Title: VP/Asst. Secretary
NRG CAPITAL LLC NRG CAYMANS COMPANY
/s/ SCOTT J. DAVIDO /s/ SCOTT J. DAVIDO
By: Scott J. Davido By: Scott J. Davido
Title: VP/Asst. Secretary Title: Director
NRG CAYMANS-C NRG CAYMANS-P
/s/ SCOTT J. DAVIDO /s/ SCOTT J. DAVIDO
By: Scott J. Davido By: Scott J. Davido
Title: Director Title: Director
NRG COLLINSVILLE OPERATING SERVICES
NRG CENTRAL U.S. LLC PTY LTD
/s/ SCOTT J. DAVIDO /s/ SCOTT J. DAVIDO
By: Scott J. Davido By: Scott J. Davido
Title: VP/Asst. Secretary Title: Director
NRG CONNECTICUT AFFILIATE SERVICES
NRG COMLEASE LLC INC.
/s/ SCOTT J. DAVIDO /s/ SCOTT J. DAVIDO
By: Scott J. Davido By: Scott J. Davido
Title: VP of NRG Energy, Inc. sole Title: VP/Director
member of NRG ComLease LLC
NRG DEVELOPMENT COMPANY INC. NRG DEVON OPERATIONS INC.
/s/ SCOTT J. DAVIDO /s/ SCOTT J. DAVIDO
By: Scott J. Davido By: Scott J. Davido
Title: VP/Director Title: Director/VP
NRG DUNKIRK OPERATIONS INC. NRG EASTERN LLC
/s/ SCOTT J. DAVIDO /s/ SCOTT J. DAVIDO
By: Scott J. Davido By: Scott J. Davido
Title: VP/Director Title: VP/Asst. Secretary
NRG EL SEGUNDO OPERATIONS INC. NRG ENERGY CENTER DOVER LLC
/s/ SCOTT J. DAVIDO /s/ SCOTT J. DAVIDO
By: Scott J. Davido By: Scott J. Davido
Title: VP/Director Title: VP of NRG Thermal LLC sole
member of NRG Energy Center
Dover LLC
NRG ENERGY CENTER HARRISBURG LLC NRG ENERGY CENTER MINNEAPOLIS LLC
/s/ SCOTT J. DAVIDO /s/ SCOTT J. DAVIDO
By: Scott J. Davido By: Scott J. Davido
Title: VP of NRG Thermal LLC sole Title: VP of NRG Thermal LLC sole
member of NRG Energy Center member of NRG Energy Center
Harrisburg LLC Minneapolis LLC
NRG ENERGY CENTER PAXTON LLC NRG ENERGY CENTER PITTSBURGH LLC
/s/ SCOTT J. DAVIDO /s/ SCOTT J. DAVIDO
By: Scott J. Davido By: Scott J. Davido
Title: VP/Asst. Secretary Title: VP of NRG Thermal LLC sole
member of NRG Energy Center
Pittsburgh LLC
NRG ENERGY CENTER ROCK TENN LLC NRG ENERGY CENTER SAN DIEGO LLC
/s/ SCOTT J. DAVIDO /s/ SCOTT J. DAVIDO
By: Scott J. Davido By: Scott J. Davido
Title: VP of NRG Thermal LLC sole Title: VP of NRG Thermal LLC sole
member of NRG Energy Center member of NRG Energy Center
Rock Tenn LLC San Diego LLC
NRG ENERGY CENTER SAN FRANCISCO LLC NRG ENERGY CENTER SMYRNA LLC
/s/ SCOTT J. DAVIDO /s/ SCOTT J. DAVIDO
By: Scott J. Davido By: Scott J. Davido
Title: VP of NRG Thermal LLC sole Title: VP/Asst. Secretary
member of NRG Energy Center
San Francisco LLC
34
EXECUTION COPY
NRG ENERGY CENTER WASHCO LLC NRG ENERGY DEVELOPMENT B.V.
/s/ SCOTT J. DAVIDO /s/ SCOTT J. DAVIDO
By: Scott J. Davido By: Scott J. Davido
Title: VP of NRG Thermal LLC sole Title: Director
member of NRG Energy Center
Washco LLC
NRG ENERGY DEVELOPMENT GMBH NRG ENERGY INSURANCE, LTD.
/s/ SCOTT J. DAVIDO /s/ SANDRA L. CALVERT
By: Scott J. Davido By: Sandra L. Calvert
Title: Director Title: Director
NRG ENERGY JACKSON VALLEY I, INC. NRG ENERGY JACKSON VALLEY II, INC.
/s/ SCOTT J. DAVIDO /s/ SCOTT J. DAVIDO
By: Scott J. Davido By: Scott J. Davido
Title: Director/VP Title: Director/VP
NRG ENERGY LTD. NRG FINANCE COMPANY I LLC
/s/ SCOTT J. DAVIDO /s/ SCOTT J. DAVIDO
By: Scott J. Davido By: Scott J. Davido
Title: Director Title: VP/Asst. Secretary
NRG GLADSTONE OPERATING SERVICES PTY
NRG FLINDERS OPERATING SERVICES PTY LTD LTD
/s/ SCOTT J. DAVIDO /s/ JOHN P. BREWSTER
By: Scott J. Davido By: John P. Brewster
Title: Director Title: Director
NRG GRANITE ACQUISITION LLC NRG HUNTLEY OPERATIONS INC.
/s/ SCOTT J. DAVIDO /s/ SCOTT J. DAVIDO
By: Scott J. Davido By: Scott J. Davido
Title: VP of NRG Energy, Inc. sole Title: Director/VP
member of NRG Granite
Acquisition LLC
EXECUTION COPY
NRG ILION LIMITED PARTNERSHIP NRG ILION LP LLC
/s/ SCOTT J. DAVIDO /s/ SCOTT J. DAVIDO
By: Scott J. Davido By: Scott J. Davido
Title: VP of NRG Energy, Inc. sole Title: VP of NRG Energy, Inc. sole
member of NRG Rockford member of NRG Ilion LP LLC
Acquisition LLC General
Partner of NRG Ilion Limited
Partnership
NRG INTERNATIONAL HOLDINGS (NO. 2) GMBH NRG INTERNATIONAL HOLDINGS GMBH
/s/ SCOTT J. DAVIDO /s/ SCOTT J. DAVIDO
By: Scott J. Davido By: Scott J. Davido
Title: Director Title: Director
NRG INTERNATIONAL II INC. NRG INTERNATIONAL III INC.
/s/ SCOTT J. DAVIDO /s/ SCOTT J. DAVIDO
By: Scott J. Davido By: Scott J. Davido
Title: VP/Asst Secretary Title: VP/Asst. Secretary
NRG INTERNATIONAL LLC NRG KAUFMAN LLC
/s/ SCOTT J. DAVIDO /s/ SCOTT J. DAVIDO
By: Scott J. Davido By: Scott J. Davido
Title: VP/Asst. Secretary Title: VP of NRG Energy, Inc. sole
member of NRG Kaufman LLC
NRG LATIN AMERICA INC. NRG MARKETING SERVICES LLC
/s/ SCOTT J. DAVIDO /s/ SCOTT J. DAVIDO
By: Scott J. Davido By: Scott J. Davido
Title: VP/Asst Secretary Title: VP/Asst. Secretary
NRG MCCLAIN LLC NRG MESQUITE LLC
/s/ SCOTT J. DAVIDO /s/ SCOTT J. DAVIDO
By: Scott J. Davido By: Scott J. Davido
Title: VP of NRG Energy, Inc. sole Title: VP/Asst. Secretary
member of NRG McClain LLC
EXECUTION COPY
NRG MIDATLANTIC AFFILIATE SERVICES
NRG MEXTRANS INC. INC.
/s/ SCOTT J. DAVIDO /s/ SCOTT J. DAVIDO
By: Scott J. Davido By: Scott J. Davido
Title: Director/VP Title: Director/VP
NRG MIDATLANTIC GENERATING LLC NRG MIDATLANTIC LLC
/s/ SCOTT J. DAVIDO /s/ SCOTT J. DAVIDO
By: Scott J. Davido By: Scott J. Davido
Title: VP/Asst. Secretary Title: VP/Asst. Secretary
NRG MIDDLETOWN OPERATIONS INC. NRG MONTVILLE OPERATIONS INC.
/s/ SCOTT J. DAVIDO /s/ SCOTT J. DAVIDO
By: Scott J. Davido By: Scott J. Davido
Title: Director/VP Title: VP/Asst. Secretary
NRG NELSON TURBINES LLC NRG NEW JERSEY ENERGY SALES LLC
/s/ SCOTT J. DAVIDO /s/ SCOTT J. DAVIDO
By: Scott J. Davido By: Scott J. Davido
Title: VP/Asst. Secretary Title: VP/Asst. Secretary
NRG NEW ROADS HOLDINGS LLC NRG NORTH CENTRAL OPERATIONS INC.
/s/ SCOTT J. DAVIDO /s/ SCOTT J. DAVIDO
By: Scott J. Davido By: Scott J. Davido
Title: VP/Asst. Secretary Title: Director/VP
NRG NORTHEAST AFFILIATE SERVICES INC. NRG NORTHEAST GENERATING LLC
/s/ SCOTT J. DAVIDO /s/ SCOTT J. DAVIDO
By: Scott J. Davido By: Scott J. Davido
Title: Director/VP Title: VP/Asst. Secretary
NRG NORWALK HARBOR OPERATIONS INC. NRG OPERATING SERVICES, INC.
/s/ SCOTT J. DAVIDO /s/ SCOTT J. DAVIDO
By: Scott J. Davido By: Scott J. Davido
Title: Director/VP Title: Director/VP
NRG OSWEGO HARBOR POWER OPERATIONS INC. NRG PACGEN INC.
/s/ SCOTT J. DAVIDO /s/ SCOTT J. DAVIDO
By: Scott J. Davido By: Scott J. Davido
Title: Director/VP Title: Director/VP
NRG PACIFIC CORPORATE SERVICES PTY LTD NRG PEAKER FINANCE COMPANY LLC
/s/ SCOTT J. DAVIDO /s/ SCOTT J. DAVIDO
By: Scott J. Davido By: Scott J. Davido
Title: Director Title: VP/Asst. Secretary
NRG POWER MARKETING INC. NRG PROCESSING SOLUTIONS LLC
/s/ SCOTT J. DAVIDO /s/ SCOTT J. DAVIDO
By: Scott J. Davido By: Scott J. Davido
Title: Director/VP Title: VP of NRG Energy, Inc. sole
member of NRG Processing
Solutions LLC
NRG ROCKFORD ACQUISITION LLC NRG ROCKFORD EQUIPMENT II LLC
/s/ SCOTT J. DAVIDO /s/ SCOTT J. DAVIDO
By: Scott J. Davido By: Scott J. Davido
Title: VP of NRG Energy, Inc. Title: VP/Asst. Secretary
sole member of NRG Rockford
Acquisition LLC
NRG ROCKFORD EQUIPMENT LLC NRG ROCKFORD II LLC
/s/ SCOTT J. DAVIDO /s/ SCOTT J. DAVIDO
By: Scott J. Davido By: Scott J. Davido
Title: VP/Asst. Secretary Title: VP/Asst. Secretary
NRG ROCKFORD LLC NRG ROCKY ROAD LLC
/s/ SCOTT J. DAVIDO /s/ SCOTT J. DAVIDO
By: Scott J. Davido By: Scott J. Davido
Title: VP/Asst. Secretary Title: VP/Asst. Secretary
NRG SAGUARO OPERATIONS INC. NRG SERVICES CORPORATION
/s/ SCOTT J. DAVIDO /s/ SCOTT J. DAVIDO
By: Scott J. Davido By: Scott J. Davido
Title: Director/VP Title: VP/Asst. Secretary
38
NRG SOUTH CENTRAL AFFILIATE
SERVICES INC. NRG SOUTH CENTRAL GENERATING LLC
/s/ SCOTT J. DAVIDO /s/ SCOTT J. DAVIDO
By: Scott J. Davido By: Scott J. Davido
Title: Director/VP Title: VP/Asst. Secretary
NRG SOUTH CENTRAL OPERATIONS INC. NRG STERLINGTON POWER LLC
/s/ SCOTT J. DAVIDO /s/ SCOTT J. DAVIDO
By: Scott J. Davido By: Scott J. Davido
Title: Director/VP Title: VP/Asst. Secretary
NRG TAIWAN HOLDING COMPANY LIMITED NRG TELOGIA POWER LLC
/s/ SCOTT J. DAVIDO /s/ SCOTT J. DAVIDO
By: Scott J. Davido By: Scott J. Davido
Title: Director Title: VP of NRG Energy, Inc.sole
member of NRG Telogia Power
LLC
NRG THERMAL LLC NRG THERMAL OPERATING SERVICES LLC
/s/ SCOTT J. DAVIDO /s/ SCOTT J. DAVIDO
By: Scott J. Davido By: Scott J. Davido
Title: VP/Asst. Secretary Title: VP/Asst. Secretary of NRG
Thermal LLC sole member of
NRG Thermal Operating
Services LLC
NRG THERMAL SERVICES LLC NRG VICTORIA I PTY LTD
/s/ SCOTT J. DAVIDO /s/ SCOTT J. DAVIDO
By: Scott J. Davido By: Scott J. Davido
Title: VP/Asst. Secretary Title: Director
NRG VICTORIA II PTY LTD NRG VICTORIA III PTY LTD
/s/ SCOTT J. DAVIDO /s/ SCOTT J. DAVIDO
By: Scott J. Davido By: Scott J. Davido
Title: Director Title: Director
39
EXECUTION COPY
NRG WEST COAST II LLC NRG WEST COAST LLC
/s/ SCOTT J. DAVIDO /s/ SCOTT J. DAVIDO
By: Scott J. Davido By: Scott J. Davido
Title: VP/Asst. Secretary Title: VP/Asst. Secretary
NRG WESTERN AFFILIATE SERVICES INC. NRGENERATING (GIBRALTAR)
/s/ SCOTT J. DAVIDO /s/ SCOTT J. DAVIDO
By: Scott J. Davido By: Scott J Davido
Title: Director/VP Title: Attorney in Fact
NRGENERATING ENERGY TRADING LTD. NRGENERATING HOLDINGS (NO. 11) B.V.
/s/ SCOTT J. DAVIDO /s/ SCOTT J. DAVIDO
By: Scott J. Davido By: Scott J. Davido
Title: Director Title: Director
NRGENERATING HOLDINGS (NO. 13) B.V. NRGENERATING HOLDINGS (NO. 14) B.V.
/s/ SCOTT J. DAVIDO /s/ SCOTT J. DAVIDO
By: Scott J. Davido By: Scott J. Davido
Title: Director Title: Director
NRGENERATING HOLDINGS (NO. 15) B.V. NRGENERATING HOLDINGS (NO. 16) B.V.
/s/ SCOTT J. DAVIDO /s/ SCOTT J. DAVIDO
By: Scott J. Davido By: Scott J. Davido
Title: Director Title: Director
NRGENERATING HOLDINGS (NO. 18) B.V. NRGENERATING HOLDINGS (NO. 19) B.V.
/s/ SCOTT J. DAVIDO /s/ SCOTT J. DAVIDO
By: Scott J. Davido By: Scott J. Davido
Title: Director Title: Director
NRGENERATING HOLDINGS (NO. 2) GMBH NRGENERATING HOLDINGS (NO. 21) B.V.
/s/ SCOTT J. DAVIDO /s/ SCOTT J. DAVIDO
By: Scott J. Davido By: Scott J. Davido
Title: Director Title: Director
EXECUTION COPY
NRGENERATING HOLDINGS (NO. 23) B.V. NRGENERATING HOLDINGS (NO. 24) B.V.
/s/ SCOTT J. DAVIDO /s/ SCOTT J. DAVIDO
By: Scott J. Davido By: Scott J. Davido
Title: Director Title: Director
NRGENERATING HOLDINGS (NO. 3) B.V. NRGENERATING HOLDINGS (NO. 4) B.V.
/s/ SCOTT J. DAVIDO /s/ SCOTT J. DAVIDO
By: Scott J. Davido By: Scott J. Davido
Title: Director Title: Director
NRGENERATING HOLDINGS (NO. 4) GMBH NRGENERATING HOLDINGS (NO. 5) B.V.
/s/ SCOTT J. DAVIDO /s/ SCOTT J. DAVIDO
By: Scott J. Davido By: Scott J. Davido
Title: Director Title: Director
NRGENERATING HOLDINGS (NO. 6) B.V. NRGENERATING HOLDINGS (NO. 7) B.V.
/s/ SCOTT J. DAVIDO /s/ SCOTT J. DAVIDO
By: Scott J. Davido By: Scott J. Davido
Title: Director Title: Director
NRGENERATING HOLDINGS (NO. 8) B.V. NRGENERATING HOLDINGS GMBH
/s/ SCOTT J. DAVIDO /s/ SCOTT J. DAVIDO
By: Scott J. Davido By: Scott J. Davido
Title: Director Title: Director
NRGENERATING II (GIBRALTAR) NRGENERATING INTERNATIONAL B.V.
/s/ SCOTT J. DAVIDO /s/ SCOTT J. DAVIDO
By: Scott J Davido By: Scott J. Davido
Title: Attorney in Fact Title: Director
NRGENERATING LUXEMBOURG (NO. 1)
NRGENERATING III (GIBRALTAR) S.A.R.L.
/s/ SCOTT J. DAVIDO /s/ SCOTT J. DAVIDO
By: Scott J Davido By: Scott J. Davido
Title: Attorney in Fact Title: Director
NRGENERATING LUXEMBOURG (NO. 6)
NRGENERATING IV (GIBRALTAR) S.A.R.L.
/s/ SCOTT J. DAVIDO /s/ SCOTT J. DAVIDO
By: Scott J. Davido By: Scott J. Davido
Title: Director Title: Director
NRGENERATING LUXEMBOURG (NO. 2)
S.A.R.L. NRGENERATING, LTD.
/s/ SCOTT J. DAVIDO /s/ SCOTT J. DAVIDO
By: Scott J. Davido By: Scott J. Davido
Title: Director Title: Director
NRGENERATING RUPALI B.V. ONSITE ENERGY, INC.
/s/ SCOTT J. DAVIDO /s/ SCOTT J. DAVIDO
By: Scott J. Davido By: Scott J. Davido
Title: Director Title: Director/VP
O BRIEN COGENERATION, INC. II OSWEGO HARBOR POWER LLC
/s/ SCOTT J. DAVIDO /s/ SCOTT J. DAVIDO
By: Scott J. Davido By: Scott J. Davido
Title: Director/VP Title: VP/Asst. Secretary
ONSITE MARIANAS CORPORATION PACIFIC GENERATION COMPANY
/s/ DAVID LLOYD /s/ SCOTT J. DAVIDO
By: David Lloyd By: Scott J. Davido
Title: Secretary Title: Director/VP
PACIFIC CROCKETT HOLDINGS, INC. PACIFIC GENERATION HOLDINGS COMPANY
/s/ SCOTT J. DAVIDO /s/ ERSHEL C. REDD, JR.
By: Scott J. Davido By: Ershel C. Redd, Jr.
Title: VP/Director Title: Director/President
PACIFIC GENERATION DEVELOPMENT COMPANY SAALE ENERGIE GMBH
/s/ SCOTT J. DAVIDO /s/ SCOTT J. DAVIDO
By: Scott J. Davido By: Scott J. Davido
Title: Director/VP Title: Attorney in Fact
42
PACIFIC-MT. POSO CORPORATION SACHSEN HOLDING B.V.
/s/ GEORGE P. SCHAEFER /s/ SCOTT J. DAVIDO
By: George P. Schaefer By: Scott J. Davido
Title: Treasurer Title: Director
SAALE ENERGIE SERVICES GMBH SAN JOAQUIN VALLEY ENERGY I, INC.
/s/ SCOTT J. DAVIDO /s/ SCOTT J. DAVIDO
By: Scott J. Davido By: Scott J. Davido
Title: Attorney in Fact Title: Director/VP
SAGUARO POWER LLC SOMERSET OPERATIONS INC.
/s/ SCOTT J. DAVIDO /s/ SCOTT J. DAVIDO
By: Scott J. Davido By: Scott J. Davido
Title: VP of sole member NRG West Title: Director/VP
Coast LLC
SAN JOAQUIN VALLEY ENERGY IV, INC. SOUTH CENTRAL GENERATION HOLDING LLC
/s/ SCOTT J. DAVIDO /s/ SCOTT J. DAVIDO
By: Scott J. Davido By: Scott J. Davido
Title: Director/VP Title: VP/Asst. Secretary
SOMERSET POWER LLC STERLING (GIBRALTAR)
/s/ SCOTT J. DAVIDO /s/ SCOTT J. DAVIDO
By: Scott J. Davido By: Scott J Davido
Title: VP/Asst. Secretary Title: Attorney in Fact
STATOIL ENERGY POWER/PENNSYLVANIA, INC. STERLING LUXEMBOURG (NO. 2) S.A.R.L.
/s/ SCOTT J. DAVIDO /s/ SCOTT J. DAVIDO
By: Scott J. Davido By: Scott J. Davido
Title: VP/Asst. Secretary Title: Director
STERLING LUXEMBOURG (NO. 1) S.A.R.L. SUNSHINE STATE POWER (NO. 2) B.V.
/s/ SCOTT J. DAVIDO /s/ SCOTT J. DAVIDO
By: Scott J. Davido By: Scott J. Davido
Title: Director Title: Director
43
STERLING LUXEMBOURG (NO. 4) S.A.R.L. TACOMA ENERGY RECOVERY COMPANY
/s/ SCOTT J. DAVIDO /s/ SCOTT J. DAVIDO
By: Scott J. Davido By: Scott J. Davido
Title: Director Title: VP/Director
SUNSHINE STATE POWER B.V. TOSLI ACQUISITION B.V.
/s/ SCOTT J. DAVIDO /s/ SCOTT J. DAVIDO
By: Scott J. Davido By: Scott J. Davido
Title: Director Title: Director of NRGeneration
Holdings (No. 21) B.V.,
which is sole Director of
Tosli Acquisition B.V.
TOSLI (GIBRALTAR) B.V. VIENNA POWER LLC
/s/ SCOTT J. DAVIDO /s/ SCOTT J. DAVIDO
By: Scott J Davido By: Scott J. Davido
Title: Attorney in Fact Title: VP/Asst. Secretary
VIENNA OPERATIONS INC.
/s/ SCOTT J. DAVIDO
By: Scott J. Davido
Title: Director/VP
44
EXECUTION COPY
ITIQUIRA ENERGETICA S.A. NRG DO BRASIL LTDA.
/s/ SCOTT J. DAVIDO /s/ SCOTT J. DAVIDO
By: Scott J. Davido By: Scott J. Davido
Title: Director Title: Attorney in Fact
SERVICIOS ENERGETICOS, S.A
/s/ SCOTT J. DAVIDO
By: Scott J. Davido
Title: Director
SCHEDULE A
(GLOBAL STEERING COMMITTEE)
Credit Suisse First Boston
ABN AMRO Bank N.V.
Abbey National Treasury Services plc
Australia & New Zealand Banking Group Limited
Bank of America N.A.
Barclays Bank plc
Citibank
Credit Lyonnais
Deutsche Bank AG
Bayerische Hypo-Und Vereinsbank AG
ING Capital LLC
JP Morgan Chase
The Royal Bank of Scotland plc
Societe Generale
TD Securities
Westdeutsche Landesbank Girozentrale, New York Branch
SCHEDULE B
(NOTES)
ISSUANCE ISSUE AMOUNT INDENTURE DATE MATURITY
-------- ------------ -------------- --------
6.750% Senior Notes $340 million March 13, 2001; July 16, 2001 July 15, 2006
7.500% Senior Notes $250 million June 1, 1997 June 15, 2007
7.500% Senior Notes $300 million May 25, 1999 June 1, 2009
7.625% Senior Notes $125 million January 21, 1996 February 1, 2006
7.750% Senior Notes $350 million March 13, 2001; April 5, 2001 April 1, 2011
7.970% Senior Notes (ROARS) $233 million March 20, 2000 March 15, 2020
8.000% Senior Notes (ROARS) $240 million November 8, 1999 November 1, 2013
8.250% Senior Notes $350 million September 11, 2000. September 15, 2010
8.625% Senior Notes $500 million March 13, 2001; April 5, 2001; April 1, 2031
July 16, 2001
6.500% Equity Unit Bond $287.5 million March 13, 2001 May 16, 2006
8.700% Senior Notes (issued in connection $250 million March 20, 2000 March 15, 2005
with a certain debt and derivative
transaction to synthetically issue(pound)160
million debt)
SCHEDULE 5(a)(i)
(CERTAIN OBLIGATIONS AND ARRANGEMENTS BETWEEN XCEL AND NRG)
GUARANTEES
Physical/ Date Guaranty Expires or
Counterparty Financial Commodity Amount of Guaranty Expired (NOTE "A")
------------ --------- --------- ------------------ ------------------
AEP Energy Services, Inc. FINANCIAL ALL $ 7,000,000 12/31/2002
American Electric Power Service Corp FINANCIAL ALL
American Electric Power Service Corp PHYSICAL ELECTRIC
Aquila Merchant Services, Inc. FINANCIAL ALL $ 10,000,000 10/12/2002
Aquila Merchant Services, Inc. PHYSICAL ELECTRIC
Aquila Merchant Services, Inc. PHYSICAL NAT GAS
Bank of America, N.A. FINANCIAL ALL $ 10,000,000 8/31/2003
Consolidated Edison Energy, Inc. PHYSICAL ELECTRIC $ 10,000,000 12/31/2003
Constellation Power Source, Inc. FINANCIAL ALL $ 15,000,000 7/31/2003
Constellation Power Source, Inc. PHYSICAL ELECTRIC
Duke Energy Trading & Marketing LLC FINANCIAL ALL $ 15,000,000 5/24/2003
Duke Energy Trading & Marketing LLC PHYSICAL ELECTRIC
Duke Energy Trading & Marketing LLC PHYSICAL NAT GAS
El Paso Merchant Energy, L.P. FINANCIAL ALL $ 12,000,000 2/28/2002
El Paso Merchant Energy, L.P. PHYSICAL ELECTRIC
El Paso Merchant Energy, L.P. PHYSICAL NAT GAS
Entergy-Koch Trading, LP FINANCIAL ALL $ 8,500,000 3/31/2003
Entergy-Koch Trading, LP PHYSICAL ELECTRIC
Entergy-Koch Trading, LP PHYSICAL NAT GAS
Exelon Generation Company, LLC FINANCIAL ALL $ 7,000,000 3/31/2003
Exelon Generation Company, LLC PHYSICAL ELECTRIC
HQ Energy Services (U.S.) Inc. (tolling agmt) (tolling agmt) Terminated, Effective (n/a)
11/30/02
J. Aron & Company FINANCIAL ALL $ 10,000,000 1/31/2004
Morgan Stanley Capital Group Inc. FINANCIAL ALL $ 15,000,000 9/30/2003
Morgan Stanley Capital Group Inc. PHYSICAL ELECTRIC
PG&E Energy Trading - Gas Corporation FINANCIAL ALL $ 2,000,000 12/31/2002
PG&E Energy Trading - Gas Corporation PHYSICAL NAT GAS
PG&E Energy Trading - Power, L.P. FINANCIAL ALL $ 9,000,000 12/31/2002
PG&E Energy Trading - Power, L.P. PHYSICAL ELECTRIC
PJM Interconnection, LLC FINANCIAL ALL $ 17,000,000 $ 12M 4/30/03,
PJM Interconnection, LLC PHYSICAL ELECTRIC $ 5M 7/31/03
Select Energy, Inc. FINANCIAL ALL $ 3,000,000 8/31/2002
Select Energy, Inc. PHYSICAL ELECTRIC
Sprague Energy Corp. FINANCIAL ALL $ 4,000,000 11/30/2003
Sprague Energy Corp. PHYSICAL NAT GAS
Williams Energy Marketing & Trading FINANCIAL ALL Terminated, Effective (n/a)
Williams Energy Marketing & Trading PHYSICAL ELECTRIC 11/15/02
Atlantic City Electric Company, dba
Conectiv (BGS Auction) FINANCIAL ALL $ 11,500,000 7/31/2003
NEPOOL PHYSICAL ELECTRIC $ 60,000,000 12/31/2003
Obligation total, for the counterparties from above $ 226,000,000
Obligation total above covered under Xcel guaranties or assignments $ 226,000,000
NOTE "A":
Any transactions that were entered into with a CP on or before the expiration
date of the guaranty will be covered through the duration of the trade(s) on an
"evergreen" basis. Thus, for Aquila, El Paso, and PGET Power, all trade
obligations of NRG were entered into prior to the expiration dates of those
guaranties, even though the periods ultimately covered under those trade
obligations are relatively far out into the future (to 12/03 for Aquila and PGET
Power, to 12/06 for El Paso). The inclusion of a guaranty or other item on this
Schedule VI.D. which has expired shall not be deemed a statement that such
guaranty or other item is otherwise effective or in force or effect.
BONDS
BONDS
NUMBER PRINCIPAL AMOUNT DESCRIPTION
------ --------- ------ -----------
INDEMNIFIED BY XCEL ENERGY:
ST. PAUL BONDS
400SD3190 NRG Processing Solutions LLC $ 20,000.00 License Bond
400SF4076 NRG Energy Center Pittsburgh $ 75,000.00 Street Opening Bond
400SH7762 Meriden Gas Turbines, LLC $ 876,800.00 Subdivision Bond
400SH7763 Meridan Gas Turbines, LLC $ 768,490.00 Subdivision Bond
Sub-Total St. Paul $ 1,740,290.00
SAFECO BONDS
6161831 Xcel Energy, Inc. $ 20,000.00 Solid Waste Facility Bond
Sub-Total Safeco $ 20,000.00
CNA BONDS
929214989 NRG Energy Center $ 100,000.00 Highway Occupancy Permit Obligation Bond
929215308 NRG Power Marketing, Inc. $ 250,000.00 License Bond
929215309 NRG Energy Center San Diego LLC $ 5,000.00 Franchise Bond
929222788 NRG Processing Solutions LLC $ 100,000.00 Tree & Yard Waste Permit Bond
929222789 NRG Processing Solutions LLC $ 45,000.00 Yard Waste Composting & Processing Facility
Permit Bond
929222790 NRG Processing Solutions LLC $ 72,400.00 Solid Waste Facility Permit Bond
929222795 NRG Power Marketing, Inc. $ 1,000,000.00 Bond of Distributor of Automotive Fuel
929222796 NRG Power Marketing Inc. $ 1,000,000.00 Motor Fuels Tax Bond
929224970 NRG Processing Solutions LLC $ 100,000.00 Waste Facility License & Permit Bond
929224971 NRG Processing Solutions LLC $ 25,000.00 Waste Facility License/Permit Bond
929224973 El Segundo Power LLC $ 10,000.00 Lease Bond
929224975 MM SKB Energy LLC $ 19,215.00 Processing Facility Bond
929224986 Dunkirk Power LLC $ 25,000.00 Bond of Distributor of Automotive Fuel
929224987 Huntley Power LLC $ 35,000.00 Bond of Distributor of Automotive Fuel
929225083 NRG Northeast Affiliate Services, Inc. $ 29,000.00 Workers' Compensation Bond
929231861 NRG Ilion LP LLC $ 52,308.00 Utility Payment Bond
929239784 NRG Energy Center Pittsburgh LLC $ 80,000.00 Highway Restoration & Maintenance Bond
929239794 Dunkirk Power, LLC $ 53,000.00 Mined Land Reclamation Bond
929239797 Cabrillo Power LLC $ 100,000.00 Lease Bond
929239799 NRG Energy $ 1,500,000.00 Permit Bond
929242598 Arthur Kill Power LLC $ 10,000.00 Performance Bond
BONDS
NUMBER OBLIGEE EFF DATE EXP DATE PREMIUM SURETY DIV. INDEMNITY
------ ------- -------- -------- ------- ------ ---- ---------
INDEMNIFIED BY XCEL ENERGY:
ST. PAUL BONDS
400SD3190 Hennepin County 6/30/2002 6/30/2003 $ 200.00 St. Paul NRG Yes
400SF4076 City of Pittsburgh 5/15/2002 5/15/2003 $ 300.00 St. Paul NRG Yes
400SH7762 City of Meriden 8/24/2001 8/24/2003 $ 1,754.00 St. Paul NRG Yes
400SH7763 City of Meriden 8/24/2001 8/24/2003 $ 1,537.00 St. Paul NRG Yes
Sub-Total St. Paul $ 3,791.00
SAFECO BONDS
6161831 County of Hennepin 8/9/2002 8/9/2003 $ 200.00 Safeco NRG Yes
Sub-Total Safeco $ 200.00
CNA BONDS
929214989 PA Dept. of Trans. 9/21/2002 9/21/2003 $ 450.00 CNA NRG Yes
929215308 Pennsylvania Public Utility Commission 9/12/2002 9/12/2003 $ 2,250.00 CNA NRG Yes
929215309 City of San Diego 9/2/2002 9/2/2003 $ 100.00 CNA NRG Yes
929222788 Scott County 10/12/2002 10/12/2003 $ 560.00 CNA NRG Yes
929222789 Dakota County 10/10/2002 10/10/2003 $ 252.00 CNA NRG Yes
929222790 Dakota County 10/10/2002 10/10/2003 $ 405.00 CNA NRG Yes
929222795 State of New York 10/12/2002 10/12/2003 $ 2,250.00 CNA NRG Yes
929222796 State of New Jersey 10/12/2002 10/12/2003 $ 2,250.00 CNA NRG Yes
929224970 County of Anoka 11/17/2002 11/17/2003 $ 560.00 CNA NRG Yes
929224971 County of Anoka 11/17/2002 11/17/2003 $ 140.00 CNA NRG Yes
929224973 State of California 11/9/2002 11/9/2003 $ 100.00 CNA NRG Yes
929224975 Commonwealth of PA 11/25/2002 11/25/2003 $ 108.00 CNA NRG Yes
929224986 State of New York 1/1/2003 1/1/2004 $ 100.00 CNA NRG Yes
929224987 Sate of New York 1/2/2003 1/3/2004 $ 100.00 CNA NRG Yes
929225083 State of New York 12/31/2002 12/31/2003 $ 351.00 CNA NRG Yes
929231861 Niagra Mohawk Power Corp. 12/12/2002 12/12/2003 $ 471.00 CNA NRG Yes
929239784 Commonwealth of PA 6/18/2002 6/18/2003 $ 160.00 CNA NRG Yes
929239794 State of New York 5/15/2002 5/15/2003 $ 106.00 CNA NRG Yes
929239797 State of California 5/21/2002 5/21/2003 $ 175.00 CNA NRG Yes
929239799 City of St. Paul, MN 5/23/2002 5/23/2003 $ 2,625.00 CNA NRG Yes
929242598 Department of Energy Conservation 3/18/2002 3/18/2003 $ 50.00 CNA NRG Yes
BONDS
BONDS
NUMBER PRINCIPAL AMOUNT DESCRIPTION OBLIGEE
------ --------- ------ ----------- -------
Sub-Total CAN $ 4,610,923.00
TOTAL INDEMNIFIED BY XCEL ENERGY $ 6,371,213.00
NON-INDEMNIFIED BONDS
U668424 NRG Energy, Inc. $30,000.00 Solid Waste Management Bond County of Washington
TOTAL ALL NRG BONDS $6,401,213.00
BONDS
NUMBER EFF DATE EXP DATE PREMIUM SURETY DIV. INDEMNITY
------ -------- -------- ------- ------ ---- ---------
Sub-Total CAN 13,563.00
TOTAL INDEMNIFIED BY XCEL ENERGY $17,554.00
NON-INDEMNIFIED BONDS
U668424 1/20/1999 1/20/2004 $ 400.00 Reliance NRG No
TOTAL ALL NRG BONDS $17,954.00
OTHER INDEMNIFICATION OBLIGATIONS
Agreement and Consent for Transfer to NRG between Northern States Power Company,
NRG Energy, Inc., Anoka County, Hennepin County, Sherburne County, and
Tri-County Solid Waste Management Committee dated on or about August 20, 2001.
Affirmation Agreement between Northern States Power Company and NRG Energy, Inc.
dated August 8, 1993.
OTHER GUARANTY AND CREDIT SUPPORT OBLIGATIONS
Guarantees of employment agreements for three NRG employees.
Deposit in the amount of $5,162,790 relating to security deposit posted by an
Xcel subsidiary in connection with a certain purchase agreement between such
subsidiary and General Electric International, Inc., dated October 3, 2000
SCHEDULE 5(b)(i)
(INTERCOMPANY CLAIMS OWING TO XCEL)
All amounts owed by NRG or any Affiliate to Xcel or any Affiliate in connection
with various payments made by Xcel in connection with the Guarantees.
All amounts owed by NRG or any Affiliate to Xcel or any Affiliate in connection
with the Services Agreement.
All amounts owed by NRG or any Affiliate to Xcel or any Affiliate in connection
with various Northern States Power Company and other agreements listed on
Schedule 8(m).
All amounts owed by NRG or any Affiliate to Xcel or any Affiliate in connection
with various engineering services.
All amounts owed by NRG or any Affiliate to Xcel or any Affiliate in connection
with e prime.
All amounts owed by NRG or any Affiliate to Xcel or any Affiliate in connection
with NSP-Wisconsin.
All amounts owed by NRG or any Affiliate to Xcel or any Affiliate in connection
with PSCo.
All amounts, if any, owed by NRG or any Affiliate to Xcel or any Affiliate for
NRG's own utility usage.
SCHEDULE 8(m)
(ASSUMED AGREEMENTS)
Agreement for the Use and Operation of Certain Facilities Located at the High
Bridge Plant between Northern States Power Company and NRG Energy Center - Rock
Tenn LLC, dated Jan. 23, 2002.
Agreement for the Sale of Thermal Energy and Wood Byproduct between Northern
States Power Company and NRG Thermal f/k/a Norenco Corporation, dated November
16, 1989.
Refuse Derived Fuel Supply Agreement between Northern States Power Company and
NRG Resource Recovery, Inc." (not dated) (Term: 1-1-1992 to 12-31-2001,
automatically renewing for five year terms thereafter, unless terminated by six
month written notice.)
Lease and Agreement between Northern States Power Company and Minnesota Waste
Processing Company, L.L.C. dated September 13, 1994.
Lease and Agreement between Northern States Power Company and NRG Energy Inc.
dated July 21, 1997.
Short Term Coal Agreement for the Sale of Coal from Northern States Power
Company (dba Xcel Energy, Seller) to NRG Energy Center-Rock Tenn LLC (Buyer)
dated January 6, 2003.
Letter Agreement between e prime and NRG Energy, Inc. dated on or about February
25, 2003.
Agreement For Consulting Services Between NRG Energy, Inc. And Utility
Engineering Corporation dated May 22, 2000.
EXHIBIT A
(9019 MOTION)
EXHIBIT B
(BALLOTS)
EXHIBIT C
(BAR DATE ORDER)
EXHIBIT D
(CONFIRMATION ORDER)
Provisions which must be contained in the Confirmation Order:
The Support Agreement Claims belong solely and exclusively to NRG and not to any
creditor of NRG or of any other NRG Entity, and the Support Agreement Claims are
fully released as to all entities as of the Effective Date, subject to payment
in full of the Support Agreement Amount.
The Xcel Tax Benefit shall be the sole and exclusive property of Xcel, and the
NRG Entities and any party claiming by or through them hereby release any right
or interest that they might otherwise have in the Xcel Tax Benefit.
NRG and its direct and indirect subsidiaries shall not be (a) reconsolidated
with Xcel or any of its other Affiliates for tax purposes at any time after
their March, 2001 deconsolidation unless otherwise required by state or local
tax law, or (b) treated as a party to or otherwise entitled to the benefits of
any tax sharing agreement with Xcel, other than the Tax Matters Agreement.
A provision approving and fully incorporating all provisions set forth in
Sections 9.2 and 9.3 of the NRG Plan.
A provision mandating that the NRG Released Causes of Action are released.
A provision approving this Agreement, the Employee Matters Agreement, the
Release-Based Amount Agreement, the Tax Matters Agreement, the Xcel Plan Note,
and all other agreements and documents contemplated by this Agreement or the
Separate Bank Release Agreement.
A finding and holding that the right and obligation of any holder of a NRZ
equity unit to purchase common shares of Xcel was terminated as of the Petition
Date.
A provision approving the assumption by the Debtors of the Assumed Agreements
and requiring the prompt payment by the Debtors in cash of the Cure Obligations
upon entry of the Confirmation Order.
A provision mandating that any agreement between the Debtors and Xcel (or any
Affiliate) that is not an Assumed Agreement shall be rejected by the Debtors as
of the Effective Date.
A finding that this Agreement, and the payments by Xcel and releases provided by
Xcel hereunder, constitute a direct benefit to NRG and an indirect benefit to
each of the other NRG Entities including the Non-Plan Debtors.
A finding that this Agreement is essential and integral to the NRG Plan.
A provision approving the 9019 Motion.
A provision providing that the automatic stay in the Non-Plan Debtors' Chapter
11 Cases, to the extent applicable, be modified to the extent necessary to
permit Xcel to exercise any and all rights it has with respect to the D&O
Policies.
EXHIBIT E
(DISCLOSURE STATEMENT)
EXHIBIT F
(DISCLOSURE STATEMENT ORDER)
EXHIBIT G
(EMPLOYEE MATTERS AGREEMENT)
EXHIBIT H
(NRG PLAN)
EXHIBIT I
(RELEASE-BASED AMOUNT AGREEMENT)
EXHIBIT J
(SEPARATE BANK RELEASE AGREEMENT)
EXHIBIT K
(TAX MATTERS AGREEMENT)
EXHIBIT L
(XCEL PLAN NOTE)