EX-10.23






Exhibit 10.23




NOTE PURCHASE AMENDMENT AGREEMENT




     This Amendment Agreement (this “Amendment”) is made as of this 19th day of December, 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 August 4,
2006 (the “Note Purchase Agreement”), whereby Issuer agreed to sell and Purchaser agreed to
purchase Issuer’s promissory notes on the terms and conditions set forth therein;



     WHEREAS, the Parties have heretofore entered into an Agreement with respect to the Note
Purchase Agreement dated as of September 8, 2006, an Amendment Agreement dated as of February 27,
2008 relating to the Note Purchase Agreement (the “First Amendment Agreement”) and a Note Purchase
Amendment Agreement dated as of August 8, 2008 relating to the Note Purchase Agreement (the “Second
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, such First Amendment Agreement and such Second Amendment
Agreement);



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



     NOW, THEREFORE, in consideration of their mutual covenants herein contained, the parties
hereto, 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 is hereby amended as follows, with such
amendments taking effect as of the date hereof and subject to the further conditions that (1) 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 and (2) the Agreement with respect to the
Note Purchase Agreement among Issuer, Purchaser, Agent and the Company of even date herewith has
been executed by the parties thereto:




     (a) Section 1(a) of the Note Purchase Agreement shall be amended by deleting the phrase “or an
Increased Cost of Hedging” in item (i) of the definition of “Extraordinary Event” and replacing it
with “or an Increased Cost of Stock Borrow.”



     (b) Section 1(a) of the Note Purchase Agreement shall be amended by adding the following
definition immediately after the definition of “Increased Cost of Hedging” thereof:



     “Increased Cost of Stock Borrow” means, in respect of any Note, an Increased Cost of Hedging
(or portion thereof) resulting from the rate that the Noteholder of such Note or its affiliate
would incur to borrow NRG Common Stock.



     (c) Section 1(a) of the Note Purchase Agreement shall be amended by adding the following
definition immediately after the definition of “Number of Underlying Shares” thereof:



     “Other Increased Cost of Hedging” means any Increased Cost of Hedging (or portion thereof)
that is not an Increased Cost of Stock Borrow.



     (d) Section 1(a) of the Note Purchase Agreement shall be amended by amending the definition of
“Transaction Documents” by deleting “and” in subclause (xiii) thereof and deleting the phrase “as
each document or agreement in subclauses (i) through (xiv) may be amended from time to time” in the
last line thereof after the word “Agreement” and adding the phrase “; and (xv) the Agreement with
respect to the Note Purchase Agreement dated as of December 19, 2008 among Issuer, Purchaser, Agent
and the Company, as each document or agreement in subclauses (i) through (xv) may be amended from
time to time” in the last line thereof after the word “Agreement.”



     (e) Section 15 of the Note Purchase Agreement shall be deleted in its entirety and replaced
with the following new Section 15:



     Increased Cost of Stock Borrow.  The Calculation Agent may increase the Accretion Rate for any
Note to account for any period in which it reasonably determines that an Increased Cost of Stock
Borrow exists in respect of such Note.



     SECTION 3. Representations, Warranties and Agreements.



     (a) Issuer and Purchaser each represents and warrants to the other that its representations
and warranties contained in Sections 6 and 7, respectively, of



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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
acknowledges and agrees that it is not relying, and has not relied, upon any communication
(written or oral) of Purchaser or any Affiliate of



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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) 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
Securities Exchange Act of 1934, as amended (the “Exchange Act”);




     (xi) without limiting the generality of Section 3(b)(ii), this Amendment will not
violate Rule 13e-1 or Rule 13e-4 under the Exchange Act; and




     (xii) 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.



     (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



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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




     (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.



     SECTION 4. 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 5. 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 6. 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/ Christopher Sotos
 	 
	 	Name:	Christopher Sotos 	 
	 	Title:	Vice President and Treasurer 	 
	 
	 	PURCHASER:


CREDIT SUISSE INTERNATIONAL

 	 
	 	By:  	/s/ Tobias Schraven
 	 
	 	Name:	Tobias Schraven 	 
	 	Title:	Director 	 
	 
	 	 	 
	 	By:  	                                                /s/ Steve Winnert
 	 
	 	Name:	Steve Winnert 	 
	 	Title:	Managing Director 	 
	 
	 	AGENT:


CREDIT SUISSE SECURITIES (USA) LLC

 	 
	 	By:  	/s/ Barry Dixon
 	 
	 	Name:	Barry Dixon 	 
	 	Title:	Vice President 	 
	 



 









 








Exhibit A




Form of Opinion




A-1