EX-10.34






Exhibit 10.34




PREFERRED INTEREST AMENDMENT AGREEMENT




     This Preferred Interest Amendment Agreement (this “Amendment”) is made as of this 19th day of
December, 2008 among NRG Common Stock Finance II LLC, a Delaware limited liability company
(“Issuer”), Credit Suisse Capital LLC (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 Preferred Interest Purchase Agreement
dated August 4, 2006 (the “Preferred Interest Purchase Agreement”), whereby Issuer issued to
Purchaser Issuer’s Series 1 Exchangeable Limited Liability Company Preferred Interests (the
“Preferred Interests”) on the terms and conditions set forth therein;



     WHEREAS, the Preferred Interests have the terms and provisions contained in a Certificate of
Designations dated as of August 4, 2006 (the “Certificate of Designations”);



     WHEREAS, the Parties hereto desire to amend the terms and provisions of the Preferred
Interests 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 Preferred Interest Purchase Agreement. Each reference to “hereof”, “hereunder”, “herein”
and “hereby” and each other similar reference and each reference to “this Preferred Interest
Purchase Agreement” and each other similar reference contained in the Preferred Interest Purchase
Agreement shall, after this Amendment becomes effective, refer to the Preferred Interest Purchase
Agreement as amended hereby.



     SECTION 2 . Amendments. The Preferred Interests are hereby amended as set forth in Exhibit B
hereto, 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 Preferred Interest Purchase Agreement among Issuer, Purchaser, Agent and the
Company of even date herewith has been executed by the parties thereto. The Issuer shall execute
on the date hereof an amendment to the Certificate of Designations substantially in the form of
Exhibit B hereto.



 









 





     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 4 and 5, respectively, of the Preferred Interest 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 Early Redemption Event 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



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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 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



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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




     (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 . Preferred Interest Purchase Agreement. Except as otherwise specified in
this Amendment, the Preferred Interest 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 II LLC	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Christopher Sotos	 	 
	 

	 	Name:

Title:
	 	 

Christopher Sotos

Vice President and Treasurer
	 	 
	 
	 	 	 	 	 	 
	 	 	PURCHASER:	 	 
	 
	 	 	 	 	 	 
	 	 	CREDIT SUISSE CAPITAL LLC	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:

Title:
	 	/s/ Barry Dixon
 

Barry Dixon

Authorized Signatory
	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:

Title:
	 	/s/ Shui Wong
 

Shui Wong

Authorized Signatory
	 	 
	 
	 	 	 	 	 	 
	 	 	AGENT:	 	 
	 
	 	 	 	 	 	 
	 	 	CREDIT SUISSE SECURITIES (USA) LLC	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:

Title:
	 	/s/ Barry Dixon
 

Barry Dixon

Authorized Signatory
	 	 






 









 





Exhibit A




Form of Opinion




A-1









 








Exhibit B




NRG COMMON STOCK FINANCE II LLC




FIRST CERTIFICATE OF AMENDMENT




to




CERTIFICATE OF DESIGNATIONS




establishing the


Voting Powers, Designations, Preferences, Limitations,


Restrictions, and Relative Rights of


Series 1 Exchangeable Limited Liability Company Preferred Interests




 






Pursuant to Section 18-215 of the


Limited Liability Company Act of the State of Delaware




 






 









 





     NRG COMMON STOCK FINANCE II LLC, a limited liability company organized and existing under the
Limited Liability Company Act of the State of Delaware (“Issuer”), does hereby certify as follows:



     1. That the Certificate of Designations establishing the voting powers, designations,
preferences, limitations, restrictions, and relative rights of the Series 1 Exchangeable Limited
Liability Company Preferred Interests, as amended by the First Certificate of Amendment (as defined
below) (as so amended, the “Certificate of Designations”), shall be further amended as follows:



     (a) Section 4.5 of the Certificate of Designations shall be deleted in its entirety and
replaced with the following new Section 4.5:



          Increased Cost of Stock Borrow. The Calculation Agent may reduce the Threshold Price for any
Preferred Interest to account for any period in which it reasonably determines that an Increased
Cost of Stock Borrow exists in respect of such Preferred Interest.



     (b) Section 10.29 of the Certificate of Designations 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.”



     (c) Section 10 of the Certificate of Designations shall be amended by the addition of Section
10.33(A) as follows:



     (d) “First Certificate of Amendment” means the NRG Common Stock Finance II LLC First
Certificate of Amendment to Certificate of Designations establishing the Voting Powers,
Designations, Preferences, Limitations, Restrictions and Relative Rights of Series 1 Exchangeable
Limited Liability Company Preferred Interests executed as of December 19, 2008.



     (e) Section 10 of the Certificate of Designations shall be amended by the addition of Section
10.38(A) as follows:



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



     (f) Section 10 of the Certificate of Designations shall be amended by the addition of Section
10.53(A):


          “Note Purchase Amendment Agreement” means the Note Purchase Amendment Agreement dated as of
December 19, 2008 among Issuer, Credit Suisse International and Credit Suisse Securities (USA) LLC,
as agent.



B-1









 





     (g) Section 10 of the Certificate of Designations shall be amended by the addition of Section
10.60(A) as follows:



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



     (h) Section 10 of the Certificate of Designations shall be amended by the addition of Section
10.62(A):



     “Preferred Interest Amendment Agreement” means the Preferred Interest Amendment Agreement
dated as of December 19, 2008 among Issuer, Credit Suisse Capital LLC and Credit Suisse Securities
(USA) LLC, as agent.



     (i) Section 10 of the Certificate of Designations shall be amended by the addition of Section
10.82(B) as follows:



     “Transaction Amendment Documents” means, (i) the Preferred Interest Amendment Agreement, (ii)
the Note Purchase Amendment Agreement and (iii) the First Certificate of Amendment.



     (j) Section 10.83 of the Certificate of Designations shall be amended by deleting “and” in
subclause (xiii) thereof and adding the phrase “; and (xv) the Agreement with respect to the
Preferred Interest Purchase Agreement dated as of December 19, 2008 among Issuer, Credit Suisse
Capital LLC as Purchaser, Credit Suisse Securities (USA) LLC as Agent and the Company, as each
document or agreement in subclauses (i) through (xv) of this Section 10.83 may be amended from time
to time” in the last line thereof after the word “Agreement.”



     (k) Each reference to a “Transaction Document” or “Transaction Documents” in (i) Sections
5.1(a), 5.1(c)-(e), 5.1(g), 5.1(h) and 4.6 of the Certificate of Designations and (ii) the
definitions of “Hedging Disruption” and “Increased Cost of Hedging” in Section 10 of the
Certificate of Designations shall be deemed to be references to a Transaction Document or
Transaction Amendment Document.



     2. Except as otherwise specified in this First Certificate of Amendment to the Certificate of
Designations, the Certificate of Designations shall remain in full force and effect.



B-2









 





     IN WITNESS WHEREOF, NRG Common Stock Finance II LLC caused this First Certificate of Amendment
of the Certificate of Designation to be signed this day of December, 2008.



	 	 	 	 	 
	 	NRG COMMON STOCK FINANCE II LLC

 	 
	 	By:  	 	 
	 	 	Name:  	Christopher Sotos 	 
	 	 	Title:  	Vice President and
Treasurer