EX-10.1







	 	 	 	 	 



EXHIBIT 10.1




NOTE PURCHASE AMENDMENT AGREEMENT





     This Amendment Agreement (this “Amendment”) is made as of this 8th day of August
2008 among NRG Common Stock Finance I LLC, a Delaware limited liability company (“Issuer”), Credit
Suisse International (together with its successor and assigns, “Purchaser”) and Credit Suisse
Securities (USA) LLC (“Agent”), solely in its capacity as agent for Purchaser and Issuer (Issuer,
Purchaser and Agent, collectively, the “Parties”).



W I T N E S S E T H




     WHEREAS, the Parties have heretofore entered into a Note Purchase Agreement dated as of August
4, 2006 (the “Note Purchase Agreement”) pursuant to which Issuer issued to Purchaser Note No. 1
thereunder (the “Note”) on August 4, 2006;



     WHEREAS, the Parties have heretofore entered into an Agreement with respect to the Note
Purchase Agreement dated as of September 8, 2006 and an Amendment Agreement dated as of February
27, 2008 relating to the Note Purchase Agreement (the “Amendment Agreement”) (and, for the
avoidance of doubt, references to the Note Purchase Agreement herein shall mean the Note Purchase
Agreement as modified or amended by such Agreement with respect to the Note Purchase Agreement and
such Amendment Agreement);



     WHEREAS, the Parties hereto desire to amend the Note Purchase Agreement as set forth herein;



     NOW, THEREFORE, in consideration of their mutual covenants herein contained, the Parties,
intending to be legally bound, hereby mutually covenant and agree as follows:



     SECTION 1. Defined Terms; References. Unless otherwise specifically defined herein, each
capitalized term used herein and not otherwise defined herein has the meaning assigned to such term
in the Note Purchase Agreement. Each reference to “hereof”, “hereunder”, “herein” and “hereby” and
each other similar reference and each reference to “this Note Purchase Agreement” and each other
similar reference contained in the Note Purchase Agreement shall, after this Amendment becomes
effective, refer to the Note Purchase Agreement as amended hereby.



     SECTION 2. Amendments. The Note Purchase Agreement and the Note are hereby amended as
follows, with such amendments taking effect as of the later of the final day of the Averaging
Period (as defined below) or, if Issuer is required to make a payment pursuant to Section 4(a)
below, the day such payment is made, and subject to the further condition that as of such date
Purchaser shall have



 









 







received an opinion (in form and substance satisfactory to Purchaser and its counsel), dated
as of the date hereof, of Kirkland & Ellis LLP, counsel for Issuer, substantially in the form
attached hereto as Exhibit A:



     (a) Section 1(a) of the Note Purchase Agreement is amended by:




     (i) deleting the definitions of “Cash Settlement Percentage,” “Initial Net Settlement
Valuation Date,” “Net Settlement Amount,” “Net Settlement Date” and “Net Settlement
Valuation Date” in their entirety;




     (ii) deleting the definition of “Exchangeable Preferred Interests” in its entirety;
and




     (iii) adding the definition of “Preferred Interests” after the definition of
“Preferred Interest Purchase Agreement” to read in its entirety as follows:




     “Preferred Interests” means the preferred equity interests of each NRG CSF
issued pursuant to the Preferred Interest Purchase Agreement to which such NRG
CSF is a party.



     (b) Sections 4(b) and (c) of the Note Purchase Agreement are deleted in their entirety.



     (c) Each reference to the “Exchangeable Preferred Interests” in the Note Purchase Agreement
shall be replaced with the words “Preferred Interests”.



     (d) The amendments to the Note Purchase Agreement set forth in Sections 3(e) and 3(i) of the
Amendment Agreement are hereby reversed.



     (e) The first Paragraph of the Note is amended by deleting the phrase “, EXCHANGE” in the
fourth line.



     (f) The Note is amended by adding the words “, as amended from time to time” prior to the
parenthetical phrase beginning in the second to last line of the first paragraph on the second page
thereof.



     SECTION 3. Payment. On the Amendment Start Date, Issuer shall pay Purchaser cash in
immediately available funds by wire transfer to an account designated by Purchaser in an amount
equal to USD 27,618,479.01 (the “Initial Payment Amount”).



     SECTION 4. Payment Adjustment. Promptly following the last day of the Averaging Period the
Calculation Agent shall determine the Final Payment Amount (as defined below) and notify the
Purchaser and the Issuer of such amount. On the date one Settlement Cycle following the last day
of the Averaging Period:



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     (a) if the Final Payment Amount is greater than the Initial Payment Amount, as an adjustment
to the payment set forth in Section 3 above, Issuer shall make a cash payment in USD to Purchaser
in an amount equal to such difference by wire transfer of immediately available funds to an account
designated by Purchaser; or



     (b) if the Final Payment Amount is less than the Initial Payment Amount, as an adjustment to
the payment set forth in Section 3 above, Purchaser shall make a cash payment in USD to Issuer in
an amount equal to the absolute value of such difference by wire transfer of immediately available
funds to an account designated by Issuer.



     “Amendment Start Date” means August 8, 2008.



     “Average VWAP Price” means the arithmetic average of the VWAP Prices for the Trading Days in
the Averaging Period.



     “Averaging Period” means a period of twelve consecutive Trading Days beginning on the
Amendment Start Date; provided that the Purchaser may accelerate the final day of the Averaging
Period to any Trading Day beginning on or after the sixth Trading Day following the Amendment Start
Date by notice to the Issuer on or prior to such accelerated final day. The Calculation Agent may
determine that any Scheduled Trading Day is a Disrupted Day only in part, in which case (i) the
Calculation Agent may, but need not, extend the scheduled final day of the Averaging Period, (ii)
the Calculation Agent shall determine the VWAP Price for such Disrupted Day based on Rule 10b-18
eligible transactions in NRG Common Stock on the Exchange on such day during the period on such day
that the Exchange is open and no Market Disruption Event (or circumstance described in Section 7 of
this Amendment) has occurred and is continuing and (iii) the Average VWAP Price will be determined
by the Calculation Agent using an appropriately weighted average of VWAP Prices.



     “Final Payment Amount” means the amount in USD for a given Average VWAP Price as set forth in
the table in Appendix A hereto; provided that if the Average VWAP Price is between two Average VWAP
Price amounts in the table, the Final Payment Amount shall be determined by straight-line
interpolation between the Final Payment Amounts set forth for the next higher and lower Average
VWAP Price amounts in the table.



     SECTION 5. Adjustment of Terms. In the event of any stock split, stock dividend, bankruptcy,
insolvency, reorganization, Merger Event, Tender Offer, rights offering, recapitalization, spin-off
or other material event involving the Company or the NRG Common Stock), the Calculation Agent shall
adjust the terms of this Amendment as appropriate to account for such event.



     SECTION 6. Representations, Warranties and Agreements.



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     (a) Issuer and Purchaser each represents and warrants to the other that its representations
and warranties contained in Sections 6 and 7, respectively, of the Note Purchase Agreement are true
and correct on the date hereof as if made on the date hereof.



     (b) Issuer represents and warrants to and for the benefit of, and agrees with, Purchaser as
follows:




     (i) it has the power to execute this Amendment, to deliver this Amendment and to
perform its obligations under this Amendment and has taken all necessary action to
authorize such execution, delivery and performance;




     (ii) such execution, delivery and performance do not violate or conflict with any law
applicable to it, any provision of its constitutional documents, any order or judgment of
any court or other agency of government applicable to it or any of its assets or any
contractual restriction binding on or affecting it or any of its assets;




     (iii) all governmental and other consents that are required to have been obtained by
it with respect to the execution and delivery of and the performance of its obligations
under this Amendment have been obtained and are in full force and effect and all
conditions of any such consents have been complied with;




     (iv) its obligations under this Amendment constitute its legal, valid and binding
obligations, enforceable in accordance with their respective terms, subject to applicable
bankruptcy, insolvency and similar laws affecting creditors’ rights generally and to
general equitable principles;




     (v) no Event of Default with respect to it has occurred and is continuing and no such
event or circumstance would reasonably be expected to occur as a result of its entering
into or performing its obligations under this Amendment;




     (vi) there is not pending or, to its knowledge, threatened against it or any of its
affiliates any action, suit or proceeding at law or in equity or before any court,
tribunal, governmental body, agency or official or any arbitrator that is likely to affect
the legality, validity or enforceability against it of this Amendment or its ability to
perform its obligations under this Amendment;




     (vii) it is acting for its own account, and has made its own independent decision to
enter into this Amendment and as to whether this Amendment is appropriate or proper for it
based upon its own judgment and upon advice of such advisors as it deems necessary; Issuer



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acknowledges and agrees that it is not relying, and has not relied, upon any
communication (written or oral) of Purchaser or any Affiliate of Purchaser with respect to
the legal, accounting, tax or other implications of this Amendment and that it has
conducted its own analyses of the legal, accounting, tax and other implications hereof (it
being understood that information and explanations related to the terms and conditions of
this Amendment shall not be considered investment advice or a recommendation to enter into
this Amendment); it further acknowledges and confirms that it has taken independent tax
advice with respect to this Amendment;




     (viii) it is entering into this Amendment with a full understanding of all of the
terms and risks hereof (economic and otherwise) and is capable of evaluating and
understanding (on its own behalf or through independent professional advice), and
understands and accepts, the terms, conditions and risks; it is also capable of assuming
(financially and otherwise), and assumes, those risks;




     (ix) it acknowledges that neither Purchaser nor any Affiliate of Purchaser is acting
as a fiduciary for or an advisor to Issuer in respect of this Amendment;




     (x) (A) none of it and its officers and directors is aware of any material nonpublic
information regarding the Company or the NRG Common Stock, (B) all reports and other
documents filed by the Company with the Securities and Exchange Commission pursuant to the
Securities Exchange Act of 1934, as amended (the “Exchange Act”) when considered as a
whole (with the more recent such reports and documents deemed to amend inconsistent
statements contained in any earlier such reports and documents), do not contain any untrue
statement of a material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein, in the light of the circumstances in
which they were made, not misleading and (C) it is entering into this Amendment in good
faith and not as part of a plan or scheme to evade compliance with the federal securities
laws, including without limitation Rule 10b5-1 promulgated under the Exchange Act;




     (xi) it is not entering into this Amendment to create actual or apparent trading
activity in the NRG Common Stock (or any security convertible into or exchangeable for NRG
Common Stock) or to manipulate the price of the NRG Common Stock (or any security
convertible into or exchangeable for NRG Common Stock) or otherwise in violation of the
Exchange Act;




     (xii) without limiting the generality of Section 6(b)(ii), this Amendment will not
violate Rule 13e-1 or Rule 13e-4 under the Exchange Act;



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     (xiii) it is not, and after giving effect to the transactions contemplated hereby
will not be, required to register as an “investment company” as such term is defined in
the Investment Company Act of 1940, as amended;




     (xiv) during the Averaging Period, it shall not, and shall cause its affiliates and
affiliated purchasers (each as defined in Rule 10b-18) not to, directly or indirectly
(including, without limitation, by means of any cash-settled or other derivative
instrument) purchase, offer to purchase, place any bid or limit order that would effect a
purchase of, or commence any tender offer relating to, NRG Common Stock (or an equivalent
interest, including a unit of beneficial interest in a trust or limited partnership or a
depository share) or any security convertible into or exchangeable or exercisable for NRG
Common Stock, except through Purchaser;




     (xv) each of it and the Company is, and shall be as of the date of any payment or
delivery by it hereunder, solvent and able to pay its debts as they come due, with assets
having a fair value greater than liabilities and with capital sufficient to carry on the
businesses in which it engages;




     (xvi) during the Averaging Period, the NRG Common Stock shall not be subject to a
“restricted period,” as such term is defined in Regulation M under the Exchange Act;




     (xvii) it shall not, at any time during the Averaging Period, communicate, directly
or indirectly, any material nonpublic information concerning itself or the NRG Common
Stock or purchases of NRG Common Stock by Purchaser (or its agent or affiliate) to any
Relevant CSNY Personnel (as defined below); “Relevant CSNY Personnel” means any employee
of Purchaser or any affiliate, except employees that Purchaser has notified Issuer in
writing are not “Relevant CSNY Personnel”;




     (xviii) it shall not enter into or alter any hedging transaction relating to the NRG
Common Stock corresponding to this Amendment; it also acknowledges and agrees that any
amendment, modification, waiver or termination of this Amendment or the Note Purchase
Agreement must be effected in accordance with the requirements for the amendment or
termination of a “plan” as defined in Rule 10b5-1(c) under the Exchange Act; without
limiting the generality of the foregoing, any such amendment, modification, waiver or
termination shall be made in good faith and not as part of a plan or scheme to evade the
prohibitions of Rule 10b-5 under the Exchange Act;




     (xix) none of it, the Company and their respective affiliated purchasers (as defined
in Rule 10b-18) have made any block purchases (as defined in Rule 10b-18) during the
calendar week in which the



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Amendment Start Date occurs or any of the four calendar weeks
preceding such week; and




     (xx) it shall (i) notify Purchaser prior to the opening of trading in the NRG Common
Stock on any day on which the Company makes any public announcement (as defined in Rule
165(f) under the Securities Act) of any merger, acquisition, or similar transaction
involving a recapitalization relating to the Company (other than any such transaction in
which the consideration consists solely of cash and there is no valuation period), (ii)
promptly notify Purchaser following any such announcement that such announcement has been
made, and (iii) promptly deliver to Purchaser following the making of any such
announcement a certificate indicating (A) the Company’s average daily Rule 10b-18
purchases (as defined in Rule 10b-18) during the three full calendar months preceding the
date of the announcement of such transaction and (B) the Company’s block purchases (as
defined in Rule 10b-18) effected pursuant to paragraph (b)(4) of Rule 10b-18 during the
three full calendar months preceding the date of the announcement of such transaction. In
addition, Issuer shall promptly notify Purchaser of the earlier to occur of the completion
of such transaction and the completion of the vote by target stockholders. Issuer
acknowledges that any such public announcement may cause Purchaser to elect to treat one
or more Trading Days as Disrupted Days pursuant to Section 7 below. Accordingly, Issuer
acknowledges that its actions in relation to any such announcement or transaction must
comply with the standards set forth in subclause (xviii) above.



     (c) Purchaser represents and warrants to and for the benefit of, and agrees with, Issuer as
follows:




     (i) it has the power to execute this Amendment, to deliver this Amendment and to
perform its obligations under this Amendment and has taken all necessary action to
authorize such execution, delivery and performance;




     (ii) such execution, delivery and performance do not violate or conflict with any law
applicable to it, any provision of its constitutional documents, any order or judgment of
any court or other agency of government applicable to it or any of its assets or any
contractual restriction binding on or affecting it or any of its assets;




     (iii) all governmental and other consents that are required to have been obtained by
it with respect to this Amendment have been
obtained and are in full force and effect and all conditions of any such consents
have been complied with; and



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     (iv) its obligations under this Amendment constitute its legal, valid and binding
obligations, enforceable in accordance with their respective terms, subject to applicable
bankruptcy, insolvency and similar laws affecting creditors’ rights generally and to
general equitable principles.



     (d) The Parties intend for the Amendment to comply with the requirements of Rule
10b5-1(c)(1)(i)(B) under the Exchange Act and to constitute a binding contract, instruction or plan
satisfying the requirements of 10b5-1(c) and to be interpreted to comply with the requirements of
Rule 10b5-1(c).



     SECTION 7. Additional Averaging Period Disruption. If on any Scheduled Trading Day during the
Averaging Period, Purchaser determines that (i) its or its affiliates’ market activities in
connection with this Amendment may raise material risks under applicable securities laws or (ii) a
Hedging Disruption has occurred, Purchaser may, in its discretion, elect to treat such Trading Day
as a Disrupted Day in whole or in part as appropriate with regard to such relevant securities laws
or Hedging Disruption, as the case may be, and Purchaser shall so notify Issuer.



     SECTION 8. Counterparts. This Amendment may be signed in counterparts, each of which shall be
an original and all of which together shall constitute one and the same instrument.



     SECTION 9. Governing Law; Jurisdiction. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO THE CONFLICT OF LAWS
PROVISIONS THEREOF.



     SECTION 10. Note Purchase Agreement. Except as otherwise specified in this Amendment,
the Note Purchase Agreement shall remain in full force and effect.



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     IN WITNESS WHEREOF, this Amendment has been executed as of the date first written above.



	 	 	 	 	 
	 

	 	ISSUER:	 	 
	 
	 	 	 	 
	 

	 	NRG COMMON STOCK FINANCE I LLC	 	 
	 
	 	 	 	 
	 

	 	By: /s/ Clint Freeland
 

Name: Clint Freeland
	 	 
	 

	 	Title: Director and President	 	 
	 
	 	 	 	 
	 

	 	PURCHASER:	 	 
	 
	 	 	 	 
	 

	 	CREDIT SUISSE INTERNATIONAL	 	 
	 
	 	 	 	 
	 

	 	By: /s/ Timothy D. Bock
 

Name: Timothy D. Bock
	 	 
	 

	 	Title: Managing Director	 	 
	 
	 	 	 	 
	 

	 	By: /s/ James J. Jaxon
 

Name: James J. Jaxon
	 	 
	 

	 	Title: Director	 	 






 









 






	 	 	 	 	 
	 

	 	AGENT:	 	 
	 
	 	 	 	 
	 

	 	CREDIT SUISSE SECURITIES (USA) LLC	 	 
	 
	 	 	 	 
	 

	 	By: /s/ Marisa Scauzillo
 

Name: Marisa Scauzillo
	 	 
	 

	 	Title: Vice President