EX-4.1







Exhibit 4.1






 

 






NRG ENERGY, INC.,




as Issuer




8.50% SENIOR NOTES DUE 2019




 






TWENTY-SECOND SUPPLEMENTAL INDENTURE




Dated as of June 5, 2009




To




INDENTURE




Dated as of February 2, 2006




 






The Law Debenture Trust Company of New York




as Trustee




 

 






 









 












CROSS-REFERENCE TABLE*




	 	 	 	 	 	 
	Trust Indenture	 	Supplemental
	Act Section	 	Indenture Section
	310
	(a)(1)	 	 	N.A	 
	 
	(a)(2)	 	 	N.A.	 
	 
	(a)(3)	 	 	N.A.	 
	 
	(a)(4)	 	 	N.A.	 
	 
	(a)(5)	 	 	N.A.	 
	 
	(b)	 	 	N.A.	 
	 
	(c)	 	 	N.A.	 
	311
	(a)	 	 	N.A.	 
	 
	(b)	 	 	N.A.	 
	 
	(c)	 	 	N.A.	 
	312
	(a)	 	 	N.A.	 
	 
	(b)	 	 	12.03	 
	 
	(c)	 	 	12.03	 
	313
	(a)	 	 	N.A.	 
	 
	(b)(1)	 	 	N.A.	 
	 
	(b)(2)	 	 	N.A.	 
	 
	(c)	 	 	12.02	 
	 
	(d)	 	 	N.A.	 
	314
	(a)	 	 	4.03;12.02; 12.05	 
	 
	(b)	 	 	N.A.	 
	 
	(c)(1)	 	 	12.04	 
	 
	(c)(2)	 	 	12.04	 
	 
	(c)(3)	 	 	N.A.	 
	 
	(d)	 	 	N.A.	 
	 
	(e)	 	 	N.A.	 
	 
	(f)	 	 	N.A.	 
	315
	(a)	 	 	N.A.	 
	 
	(b) 	 	 	12.02	 
	 
	(c) 	 	 	N.A.	 
	 
	(d) 	 	 	N.A.	 
	 
	(e) 	 	 	N.A.	 
	316
	(a) (last sentence) 	 	 	N.A.	 
	 
	(a)(1)(A) 	 	 	6.05	 
	 
	(a)(1)(B) 	 	 	6.04	 
	 
	(a)(2) 	 	 	N.A.	 
	 
	(b) 	 	 	N.A.	 
	 
	(c) 	 	 	N.A.	 
	317
	(a)(1) 	 	 	6.08	 
	 
	(a)(2) 	 	 	N.A.	 
	 
	(b) 	 	 	N.A.	 
	318
	(a) 	 	 	12.01	 
	 
	(b) 	 	 	N.A.	 
	 
	(c) 	 	 	12.01	 








 




			
	N.A. means not applicable.
	 
	*	 	This Cross Reference Table is not part of the Indenture.




 









 










TABLE OF CONTENTS




	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	ARTICLE 1.
 DEFINITIONS AND INCORPORATION
 BY REFERENCE

	 
	 	 	 	 	 	 
	Section 1.01
	 	Definitions	 	 	1	 
	Section 1.02
	 	Other Definitions	 	 	29	 
	Section 1.03
	 	Incorporation by Reference of Trust Indenture Act	 	 	30	 
	Section 1.04
	 	Rules of Construction	 	 	30	 
	Section 1.05
	 	Relationship with Base Indenture	 	 	31	 
	 
	 	 	 	 	 	 
	ARTICLE 2.
THE NOTES

	 
	 	 	 	 	 	 
	Section 2.01
	 	Form and Dating	 	 	31	 
	Section 2.02
	 	Execution and Authentication	 	 	32	 
	Section 2.03
	 	Holder Lists	 	 	32	 
	Section 2.04
	 	Transfer and Exchange	 	 	32	 
	Section 2.05
	 	Issuance of Additional Notes	 	 	36	 
	 
	 	 	 	 	 	 
	ARTICLE 3.
REDEMPTION AND PREPAYMENT

	 
	 	 	 	 	 	 
	Section 3.01
	 	Notices to Trustee	 	 	36	 
	Section 3.02
	 	Selection of Notes to Be Redeemed or Purchased	 	 	37	 
	Section 3.03
	 	Notice of Redemption	 	 	37	 
	Section 3.04
	 	Effect of Notice of Redemption	 	 	38	 
	Section 3.05
	 	Deposit of Redemption or Purchase Price	 	 	38	 
	Section 3.06
	 	Notes Redeemed or Purchased in Part	 	 	39	 
	Section 3.07
	 	Optional Redemption	 	 	39	 
	Section 3.08
	 	Mandatory Redemption	 	 	40	 
	Section 3.09
	 	Offer to Purchase by Application of Excess Proceeds	 	 	40	 
	 
	 	 	 	 	 	 
	ARTICLE 4.
COVENANTS

	 
	 	 	 	 	 	 
	Section 4.01
	 	Payment of Notes	 	 	41	 
	Section 4.02
	 	Maintenance of Office or Agency	 	 	42	 
	Section 4.03
	 	Reports	 	 	42	 
	Section 4.04
	 	Compliance Certificate	 	 	43	 
	Section 4.05
	 	Taxes	 	 	43	 
	Section 4.06
	 	Stay, Extension and Usury Laws	 	 	43	 
	Section 4.07
	 	Restricted Payments	 	 	43	 
	Section 4.08
	 	Dividend and Other Payment Restrictions Affecting Subsidiaries	 	 	47	 
	Section 4.09
	 	Incurrence of Indebtedness and Issuance of Preferred Stock	 	 	49	 
	Section 4.10
	 	Asset Sales	 	 	53	 
	Section 4.11
	 	Transactions with Affiliates	 	 	55	 
	Section 4.12
	 	Liens	 	 	57	 
	Section 4.13
	 	Corporate Existence	 	 	57	 
	Section 4.14
	 	Offer to Repurchase Upon Change of Control Triggering Event	 	 	58	 
	Section 4.15
	 	Limitation on Sale and Leaseback Transactions	 	 	59	 
	Section 4.16
	 	Payments for Consent	 	 	60	 






i 









 






	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	 
	 	 	 	 	 	 
	Section 4.17
	 	Additional Subsidiary Guarantees	 	 	60	 
	Section 4.18
	 	Designation of Restricted, Unrestricted and Excluded Project Subsidiaries	 	 	60	 
	Section 4.19
	 	Changes in Covenants When Notes Rated Investment Grade	 	 	61	 
	 
	 	 	 	 	 	 
	ARTICLE 5.
SUCCESSORS

	 
	 	 	 	 	 	 
	Section 5.01
	 	Merger, Consolidation, or Sale of Assets	 	 	62	 
	Section 5.02
	 	Successor Corporation Substituted	 	 	63	 
	 
	 	 	 	 	 	 
	ARTICLE 6.
DEFAULTS AND REMEDIES

	 
	 	 	 	 	 	 
	Section 6.01
	 	Events of Default	 	 	64	 
	Section 6.02
	 	Acceleration	 	 	65	 
	Section 6.03
	 	Waiver of Past Defaults	 	 	65	 
	Section 6.04
	 	Control by Majority	 	 	66	 
	Section 6.05
	 	Limitations on Suits	 	 	66	 
	Section 6.06
	 	Collection Suit by Trustee	 	 	66	 
	Section 6.07
	 	Priorities	 	 	67	 
	 
	 	 	 	 	 	 
	ARTICLE 7.
TRUSTEE’S COMPENSATION AND INDEMNITY

	 
	 	 	 	 	 	 
	Section 7.01
	 	Compensation and Indemnity	 	 	67	 
	 
	 	 	 	 	 	 
	ARTICLE 8.
LEGAL DEFEASANCE AND COVENANT DEFEASANCE

	 
	 	 	 	 	 	 
	Section 8.01
	 	Option to Effect Legal Defeasance or Covenant Defeasance	 	 	68	 
	Section 8.02
	 	Legal Defeasance and Discharge	 	 	68	 
	Section 8.03
	 	Covenant Defeasance	 	 	69	 
	Section 8.04
	 	Conditions to Legal or Covenant Defeasance	 	 	69	 
	Section 8.05
	 	Deposited Money and Government Securities to be Held in Trust; Other Miscellaneous Provisions	 	 	70	 
	Section 8.06
	 	Repayment to Company	 	 	70	 
	Section 8.07
	 	Reinstatement	 	 	71	 
	 
	 	 	 	 	 	 
	ARTICLE 9.
AMENDMENT, SUPPLEMENT AND WAIVER

	 
	 	 	 	 	 	 
	Section 9.01
	 	Without Consent of Holders of Notes	 	 	71	 
	Section 9.02
	 	With Consent of Holders of Notes	 	 	72	 
	Section 9.03
	 	Compliance with Trust Indenture Act	 	 	73	 
	Section 9.04
	 	Revocation and Effect of Consents	 	 	74	 
	Section 9.05
	 	Notation on or Exchange of Notes	 	 	74	 
	Section 9.06
	 	Trustee to Sign Amendments, etc.	 	 	74	 
	 
	 	 	 	 	 	 
	ARTICLE 10.
SUBSIDIARY GUARANTEES

	 
	 	 	 	 	 	 
	Section 10.01
	 	Guarantee	 	 	74	 
	Section 10.02
	 	Limitation on Guarantor Liability	 	 	75	 
	Section 10.03
	 	Execution and Delivery of Subsidiary Guarantee	 	 	75	 
	Section 10.04
	 	Guarantors May Consolidate, etc., on Certain Terms	 	 	76	 
	Section 10.05
	 	Releases	 	 	77	 






ii









 






	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	 
	 	 	 	 	 	 
	ARTICLE 11.
SATISFACTION AND DISCHARGE

	 
	 	 	 	 	 	 
	Section 11.01
	 	Satisfaction and Discharge	 	 	78	 
	Section 11.02
	 	Application of Trust Money	 	 	79	 
	 
	 	 	 	 	 	 
	ARTICLE 12.
MISCELLANEOUS

	 
	 	 	 	 	 	 
	Section 12.01
	 	Trust Indenture Act Controls	 	 	79	 
	Section 12.02
	 	Notices	 	 	79	 
	Section 12.03
	 	Communication by Holders of Notes with Other Holders of Notes	 	 	80	 
	Section 12.04
	 	No Personal Liability of Directors, Officers, Employees and Stockholders	 	 	80	 
	Section 12.05
	 	Governing Law	 	 	81	 
	Section 12.06
	 	No Adverse Interpretation of Other Agreements	 	 	81	 
	Section 12.07
	 	Successors	 	 	81	 
	Section 12.08
	 	Severability	 	 	81	 
	Section 12.09
	 	Counterpart Originals	 	 	81	 
	Section 12.10
	 	Table of Contents, Headings, etc.	 	 	81	 






EXHIBITS




	 	 	 
	Exhibit A

	 	Form of Note
	Exhibit B

	 	Form of Subsidiary Guarantee
	Exhibit C

	 	Form of Supplemental Indenture — Additional Subsidiary Guarantees







iii











 





     TWENTY-SECOND SUPPLEMENTAL INDENTURE, dated as of June 5, 2009, by and among NRG Energy, Inc.,
a Delaware corporation (the “Company”), the Guarantors (as defined herein) and Law Debenture Trust
Company of New York, as trustee (the “Trustee”).



     The Company has heretofore executed and delivered to the Trustee an Indenture, dated as of
February 2, 2006 (the “Base Indenture”) providing for the issuance from time to time of one or more
series of the Company’s securities.



     The Company and the Guarantors desire and have requested the Trustee pursuant to Section 9.1
of the Base Indenture to join with them in the execution and delivery of this Supplemental
Indenture in order to supplement the Base Indenture as and to the extent set forth herein to
provide for the issuance and the terms of the Notes (as defined below).



     Section 9.1 of the Base Indenture provides that the Company and the Trustee, without the
consent of any holders of the Company’s Securities, may amend or waive certain terms and covenants
in the Indenture as permitted by Sections 2.1 and 2.2 of the Base Indenture.



     The execution and delivery of this Supplemental Indenture has been duly authorized by a Board
Resolution of the Company and each of the Guarantors.



     All conditions and requirements necessary to make this Supplemental Indenture a valid, binding
and legal instrument in accordance with its terms have been performed and fulfilled by the parties
hereto and the execution and delivery thereof have been in all respects duly authorized by the
parties hereto.



     The Company, the Guarantors and the Trustee agree as follows for the benefit of each other and
for the equal and ratable benefit of the Holders (as defined herein) of the 8.50% Senior Notes due
2019 (the “Notes”):



ARTICLE 1.

DEFINITIONS AND INCORPORATION

BY REFERENCE




          Section 1.01 Definitions.




     For all purposes of the Supplemental Indenture, the following terms shall have the respective
meanings set forth in this Section.



     “Acquired Debt” means, with respect to any specified Person:




     (1) Indebtedness of any other Person or asset existing at the time such other Person or
asset is merged with or into, is acquired by, or became a Subsidiary of such specified
Person, as the case may be, whether or not such Indebtedness is incurred in connection with,
or in contemplation of, such other Person merging with or into, or becoming a Restricted
Subsidiary of, such specified Person; and




     (2) Indebtedness secured by a Lien encumbering any asset acquired by such specified
Person.



     “Additional Notes” means additional notes (other than the Initial Notes) issued from time to
time under this Supplemental Indenture in accordance with Section 2.05 hereof, as part of the same
series as the Initial Notes



1









 





     “Affiliate” of any specified Person means any other Person directly or indirectly controlling
or controlled by or under direct or indirect common control with such specified Person. For
purposes of this definition, “control,” as used with respect to any Person, means the possession,
directly or indirectly, of the power to direct or cause the direction of the management or policies
of such Person, whether through the ownership of voting securities, by agreement or otherwise;
provided that beneficial ownership of 10% or more of the Voting Stock of a Person will be deemed to
be control. For purposes of this definition, the terms “controlling,” “controlled by” and “under
common control with” have correlative meanings.



     “Agent” means any Registrar, co-registrar, Paying Agent or additional paying agent.



     “Applicable Law” shall mean, as to any Person, any ordinance, law, treaty, rule or regulation
or determination by an arbitrator or a court or other Governmental Authority, including ERCOT, in
each case, applicable to or binding on such Person or any of its property or assets or to which
such Person or any of its property is subject.



     “Applicable Premium” means, with respect to any note on any redemption date, the greater of:



     (1) 1.0% of the principal amount of the note; or



     (2) the excess of:



     (a) the present value at such redemption date of (i) the redemption price of the Note at
January 15, 2012, (such redemption price being set forth in the table appearing under Section 3.07
hereof) plus (ii) all required interest payments due on the Note through January 15, 2012
(excluding accrued but unpaid interest to the redemption date), computed using a discount rate
equal to the Treasury Rate as of such redemption date plus 50 basis points; over



     (b) the principal amount of the Note, if greater.



     “Applicable Procedures” means, with respect to any transfer or exchange of or for beneficial
interests in any Global Note, the rules and procedures of the Depositary that apply to such
transfer or exchange.



     “Asset Sale” means:




     (1) the sale, lease (other than an Operating Lease), conveyance or other disposition of
any assets or rights; provided that the sale, conveyance or other disposition of all or
substantially all of the assets of the Company and its Restricted Subsidiaries taken as a
whole will be governed by the provisions of this Supplemental Indenture described under
Sections 4.14 and 5.01 hereof and not by the provisions of Section 4.10 hereof; and




     (2) the issuance of Equity Interests in any of the Company’s Restricted Subsidiaries or
the sale of Equity Interests in any of its Subsidiaries.



     Notwithstanding the preceding, none of the following items will be deemed to be an Asset Sale:




     (1) any single transaction or series of related transactions for which the Company or
its Restricted Subsidiaries receive aggregate consideration of less than $100.0 million;



2









 






     (2) a transfer of assets or Equity Interests between or among the Company and its
Restricted Subsidiaries;




     (3) an issuance of Equity Interests by a Restricted Subsidiary of the Company to the
Company or to a Restricted Subsidiary of the Company;




     (4) the sale or lease of products or services and any sale or other disposition of
damaged, worn-out or obsolete assets;




     (5) the sale or discount, in each case without recourse, of accounts receivable, but
only in connection with the compromise or collection thereof;




     (6) the licensing of intellectual property;




     (7) the sale, lease, conveyance or other disposition for value of energy, fuel or
emission credits or contracts for any of the foregoing;




     (8) the sale or other disposition of cash or Cash Equivalents;




     (9) a Restricted Payment that does not violate Section 4.07 hereof or a Permitted
Investment;




     (10) to the extent allowable under Section 1031 of the Internal Revenue Code of 1986,
any exchange of like property (excluding any “boot” thereon) for use in a Permitted
Business;




     (11) a disposition of assets in connection with a foreclosure, transfer or deed in lieu
of foreclosure or other exercise of remedial action; and




     (12) any sale and leaseback transaction that is a Permitted Tax Lease.



     “Asset Sale Offer” has the meaning assigned to that term in this Supplemental Indenture.



     “Attributable Debt” in respect of a sale and leaseback transaction means, at the time of
determination, the present value of the obligation of the lessee for net rental payments during the
remaining term of the lease included in such sale and leaseback transaction including any period
for which such lease has been extended or may, at the option of the lessor, be extended. Such
present value shall be calculated using a discount rate equal to the rate of interest implicit in
such transaction, determined in accordance with GAAP; provided, however, that if such sale and
leaseback transaction results in a Capital Lease Obligation, the amount of Indebtedness represented
thereby will be determined in accordance with the definition of “Capital Lease Obligation.”



     “Bankruptcy Law” means Title 11, U.S. Code or any similar federal or state law for the relief
of debtors.



     “Base Indenture” means has the meaning set forth in the preamble to this Supplemental
Indenture, as amended, supplemented or otherwise modified from time to time in accordance with the
terms thereof.



3









 





     “Beneficial Owner” has the meaning assigned to such term in Rule 13d-3 and Rule 13d-5 under
the Exchange Act. The terms “Beneficially Owns” and “Beneficially Owned” have a corresponding
meaning.



     “Board of Directors” means:




     (1) with respect to a corporation, the board of directors of the corporation or any
committee thereof duly authorized to act on behalf of such board;




     (2) with respect to a partnership, the board of directors of the general partner of the
partnership;




     (3) with respect to a limited liability company, the managing member or members or any
controlling committee of managing members thereof; and




     (4) with respect to any other Person, the board or committee of such Person serving a
similar function.



     “Business Day” means any day other than a Legal Holiday.



     “Capital Lease Obligation” means, at the time any determination is to be made, the amount of
the liability in respect of a capital lease that would at that time be required to be capitalized
on a balance sheet in accordance with GAAP, and the Stated Maturity thereof shall be the date of
the last payment of rent or any other amount due under such lease prior to the first date upon
which such lease may be prepaid by the lessee without payment of a penalty.



     “Capital Stock” means:




     (1) in the case of a corporation, corporate stock;




     (2) in the case of an association or business entity, any and all shares, interests,
participations, rights or other equivalents (however designated) of corporate stock;




     (3) in the case of a partnership or limited liability company, partnership interests
(whether general or limited) or membership interests; and




     (4) any other interest or participation that confers on a Person the right to receive a
share of the profits and losses of, or distributions of assets of, the issuing Person, but
excluding from all of the foregoing any debt securities convertible into Capital Stock,
whether or not such debt securities include any right of participation with Capital Stock.



     “Cash Equivalents” means:




     (1) United States dollars, Euros or, in the case of any Foreign Subsidiary, any local
currencies held by it from time to time;




     (2) securities issued or directly and fully guaranteed or insured by the United States
government or any agency or instrumentality of the United States government (provided that
the full faith and credit of the United States is pledged in support of those securities)
having maturities of not more than twelve months from the date of acquisition;



4









 






     (3) certificates of deposit and eurodollar time deposits with maturities of twelve
months or less from the date of acquisition, bankers’ acceptances with maturities not
exceeding 12 months and overnight bank deposits, in each case, with any domestic commercial
bank having capital and surplus in excess of $500.0 million and a Thomson Bank Watch Rating
of “B” or better;




     (4) repurchase obligations with a term of not more than seven days for underlying
securities of the types described in clauses (2) and (3) above entered into with any
financial institution meeting the qualifications specified in clause (3) above;




     (5) commercial paper and auction rate securities having one of the two highest ratings
obtainable from Moody’s or S&P and in each case maturing within 12 months after the date of
acquisition;




     (6) readily marketable direct obligations issued by any state of the United States or
any political subdivision thereof, in either case having one of the two highest rating
categories obtainable from either Moody’s or S&P; and




     (7) money market funds that invest primarily in securities described in clauses (1)
through (6) of this definition.



     “Change of Control” means the occurrence of any of the following:




     (1) the direct or indirect sale, transfer, conveyance or other disposition (other than
by way of merger or consolidation), in one or a series of related transactions, of all or
substantially all of the properties or assets of the Company and its Subsidiaries taken as a
whole to any “person” (as that term is used in Section 13(d) of the Exchange Act, but
excluding any employee benefit plan of the Company or any of its Restricted Subsidiaries,
and any Person or entity acting in its capacity as trustee, agent or other fiduciary or
administrator of such plan);




     (2) the adoption of a plan relating to the liquidation or dissolution of the Company;




     (3) the consummation of any transaction (including, without limitation, any merger or
consolidation) the result of which is that any “person” (as defined above), other than a
corporation owned directly or indirectly by the stockholders of the Company in substantially
the same proportion as their ownership of stock of the Company prior to such transaction,
becomes the Beneficial Owner, directly or indirectly, of more than 50% of the Voting Stock
of the Company, measured by voting power rather than number of shares; or




     (4) the first day on which a majority of the members of the Board of Directors of the
Company are not Continuing Directors.



     “Change of Control Offer” has the meaning assigned to it in this Supplemental Indenture.



     “Change of Control Triggering Event” means (i) a Change of Control has occurred and (ii) the
Notes are downgraded by either S&P or Moody’s on any date during the period commencing 60 days
prior to the consummation of such Change of Control and ending 60 days following consummation of
such Change of Control.



     “Company” means NRG Energy, Inc., and any and all successors thereto.



5









 





     “Concurrent Cash Distributions” has the meaning assigned to it in the definition of
“Investments.”



     “Consolidated Cash Flow” means, with respect to any specified Person for any period, the
Consolidated Net Income of such Person for such period plus, without duplication:




     (1) an amount equal to any extraordinary loss (including any loss on the extinguishment
or conversion of Indebtedness) plus any net loss realized by such Person or any of its
Restricted Subsidiaries in connection with an Asset Sale (without giving effect of the
threshold provided in the definition thereof), to the extent such losses were deducted in
computing such Consolidated Net Income; plus




     (2) provision for taxes based on income or profits of such Person and its Restricted
Subsidiaries for such period, to the extent that such provision for taxes was deducted in
computing such Consolidated Net Income; plus




     (3) the Fixed Charges of such Person and its Restricted Subsidiaries for such period,
to the extent that such Fixed Charges were deducted in computing such Consolidated Net
Income; plus




     (4) any expenses or charges related to any Equity Offering, Permitted Investment,
acquisition, disposition, recapitalization or Indebtedness permitted to be incurred by the
indenture including a refinancing thereof (whether or not successful), including such fees,
expenses or charges related to the offering of the Notes and the Credit Agreement, and
deducted in computing Consolidated Net Income; plus




     (5) any professional and underwriting fees related to any equity offering, Permitted
Investment, acquisition, recapitalization or Indebtedness permitted to be incurred under
this Supplemental Indenture and, in each case, deducted in such period in computing
Consolidated Net Income; plus




     (6) the amount of any minority interest expense deducted in calculating Consolidated
Net Income (less the amount of any cash dividends paid to the holders of such minority
interests); plus




     (7) any non cash gain or loss attributable to Mark to Market Adjustments in connection
with Hedging Obligations; plus




     (8) without duplication, any writeoffs, writedowns or other non-cash charges reducing
Consolidated Net Income for such period, excluding any such charge that represents an
accrual or reserve for a cash expenditure for a future period, plus




     (9) all items classified as extraordinary, unusual or nonrecurring non-cash losses or
charges (including, without limitation, severance, relocation and other restructuring
costs), and related tax effects according to GAAP to the extent such non-cash charges or
losses were deducted in computing such Consolidated Net Income; plus




     (10) depreciation, depletion, amortization (including amortization of intangibles but
excluding amortization of prepaid cash expenses that were paid in a prior period) and other
non-cash charges and expenses (excluding any such non-cash expense to the extent that it
represents an accrual of or reserve for cash expenses in any future period or amortization
of a



6









 







prepaid cash expense that was paid in a prior period) of such Person and its Restricted
Subsidiaries for such period to the extent that such depreciation, depletion, amortization
and other non-cash expenses were deducted in computing such Consolidated Net Income; minus




     (11) non-cash items increasing such Consolidated Net Income for such period, other than
the accrual of revenue in the ordinary course of business; in each case, on a consolidated
basis and determined in accordance with GAAP (including, without limitation, any increase in
amortization or depreciation or other non-cash charges resulting from the application of
purchase accounting in relation to any acquisition that is consummated after the Issue
Date); minus




     (12) interest income for such period;


provided, however, that Consolidated Cash Flow of the Company will exclude the Consolidated Cash
Flow attributable to (i) Excluded Subsidiaries to the extent that the declaration or payment of
dividends or similar distributions by the Excluded Subsidiary of that Consolidated Cash Flow is
not, as a result of an Excluded Subsidiary Debt Default, then permitted by operation of the terms
of the relevant Excluded Subsidiary Debt Agreement (provided that the Consolidated Cash Flow of the
Excluded Subsidiary will only be so excluded for that portion of the period during which the
condition described in the preceding proviso has occurred and is continuing), and (ii) for purposes
of Section 4.07 hereof only, Excluded Project Subsidiaries, except to the extent of any dividends
or similar distributions paid in cash to the Company or a Restricted Subsidiary of the Company that
is not an Excluded Project Subsidiary.




     “Consolidated Interest Expense” means, with respect to any Person for any period, the
consolidated cash interest expense of such Person and its Restricted Subsidiaries (other than
Excluded Project Subsidiaries) for such period, whether paid or accrued (including, without
limitation, the interest component of any deferred payment obligations, the interest component of
all payments associated with Capital Lease Obligations, imputed interest with respect to
Attributable Debt, commissions, discounts and other fees and charges incurred in respect of letter
of credit or bankers’ acceptance financings, and net payments (if any) pursuant to interest rate
Hedging Obligations, but not including amortization of original issue discount and other non-cash
interest payments), net of cash interest income. For purposes of the foregoing, interest expense
shall be determined after giving effect to any net payments made or received by the Company or any
Restricted Subsidiary (other than an Excluded Project Subsidiary) with respect to any interest rate
hedging agreements.



     “Consolidated Net Income” means, with respect to any specified Person for any period, the
aggregate of the Net Income of such Person and its Restricted Subsidiaries for such period, on a
consolidated basis, determined in accordance with GAAP; provided that:




     (1) the Net Income of any Person that is not a Restricted Subsidiary or that is
accounted for by the equity method of accounting will be included only to the extent of the
amount of dividends or similar distributions (including pursuant to other intercompany
payments but excluding Concurrent Cash Distributions) paid in cash to the specified Person
or a Restricted Subsidiary of the Person;




     (2) for purposes of Section 4.07 hereof only, the Net Income of any Restricted
Subsidiary will be excluded to the extent that the declaration or payment of dividends or
similar distributions by that Restricted Subsidiary of that Net Income is not at the date of
determination permitted without any prior governmental approval (that has not been obtained)
or, directly or indirectly, by operation of the terms of its charter or any agreement,
instrument,



7









 







judgment, decree, order, statute, rule or governmental regulation applicable to that
Restricted Subsidiary or its stockholders;




     (3) the cumulative effect of a change in accounting principles will be excluded;




     (4) any net after-tax non-recurring or unusual gains, losses (less all fees and
expenses relating thereto) or other charges or revenue or expenses (including, without
limitation, relating to severance, relocation and one-time compensation charges) shall be
excluded;




     (5) any non-cash compensation expense recorded from grants of stock appreciation or
similar rights, stock options, restricted stock or other rights to officers, directors or
employees shall be excluded, whether under FASB 123R or otherwise;




     (6) any net after-tax income (loss) from disposed or discontinued operations and any
net after-tax gains or losses on disposal of disposed or discontinued operations shall be
excluded;




     (7) any gains or losses (less all fees and expenses relating thereto) attributable to
asset dispositions shall be excluded; and




     (8) any impairment charge or asset write-off pursuant to Financial Accounting Statement
No. 142 and No. 144 or any successor pronouncement shall be excluded.



     “Continuing Director” means, as of any date of determination, any member of the Board of
Directors of the Company who:




     (1) was a member of such Board of Directors on the Issue Date; or




     (2) was nominated for election or elected to such Board of Directors with the approval
of a majority of the Continuing Directors who were members of such Board at the time of such
nomination or election.



     “Contribution Indebtedness” means Indebtedness of the Company in an aggregate principal amount
not to exceed two times the aggregate amount of cash received by the Company after the Issue Date
from the sale of its Equity Interests (other than Disqualified Stock) or as a contribution to its
common equity capital (in each case, other than to or from a Subsidiary of the Company); provided
that such Indebtedness (a) is incurred within 180 days after the sale of such Equity Interests or
the making of such capital contribution and (b) is designated as “Contribution Indebtedness”
pursuant to an Officers’ Certificate on the date of its incurrence. Any sale of Equity Interests
or capital contribution that forms the basis for an incurrence of Contribution Indebtedness will
not be considered to be a sale of Qualifying Equity Interests and will be disregarded for purposes
of Section 4.07 hereof and will not be considered to be an Equity Offering for purposes of Section
3.07 hereof.



     “Corporate Trust Office of the Trustee” will be at the address of the Trustee specified in
Section 12.02 hereof or such other address as to which the Trustee may give notice to the Company.



     “Credit Agreement” means the Second Amended and Restated Credit Agreement, dated June 8, 2007,
among the Company, the lenders from time to time party thereto, Citigroup Global Markets Inc. and
Credit Suisse Securities (USA) LLC, as joint book runners and joint lead arrangers, Citicorp North
America, Inc., as administrative agent and collateral agent, and Credit Suisse, as syndication
agent.



8









 





     “Credit Facilities” means (i) one or more debt facilities (including, without limitation, the
Credit Agreement) or commercial paper facilities, in each case with banks or other institutional
lenders providing for revolving credit loans, term loans, credit-linked deposits (or similar
deposits) receivables financing (including through the sale of receivables to such lenders or to
special purpose entities formed to borrow from such lenders against such receivables) or letters of
credit and (ii) debt securities sold to institutional investors, in each case, as amended,
restated, modified, renewed, refunded, replaced or refinanced (including by means of sales of debt
securities to institutional investors) in whole or in part from time to time.



     “Custodian” means the Trustee, as custodian with respect to the Notes in global form, or any
successor entity thereto.



     “Debt to Cash Flow Ratio” means, as of any date of determination (for purposes of this
definition, the “Calculation Date”), the ratio of (a) the Total Debt of the Company as of such date
to (b) the Consolidated Cash Flow of the Company for the four most recent full fiscal quarters
ending immediately prior to such date for which financial statements are publicly available. For
purposes of making the computation referred to above:



     (1) Investments and acquisitions that have been made by the Company or any of its Restricted
Subsidiaries, including through mergers or consolidations, or any Person or any of its Restricted
Subsidiaries acquired by the Company or any of its Restricted Subsidiaries, and including any
related financing transactions and including increases in ownership of Restricted Subsidiaries,
during the four-quarter reference period or subsequent to such reference period and on or prior to
the Calculation Date will be given pro forma effect (in accordance with Regulation S-X under the
Securities Act, but including all Pro Forma Cost Savings) as if they had occurred on the first day
of the four-quarter reference period;



     (2) the Consolidated Cash Flow attributable to discontinued operations, as determined in
accordance with GAAP, and operations or businesses (and ownership interests therein) disposed of
prior to the Calculation Date, will be excluded;



     (3) any Person that is a Restricted Subsidiary on the Calculation Date will be deemed to have
been a Restricted Subsidiary at all times during such four-quarter period;



     (4) any Person that is not a Restricted Subsidiary on the Calculation Date will be deemed not
to have been a Restricted Subsidiary at any time during such four-quarter period; and



     (5) the Consolidated Cash Flow attributable to Excluded Project Subsidiaries will be excluded
for purposes of all calculations required by this definition.



     “Default” means any event that is, or with the passage of time or the giving of notice or both
would be, an Event of Default.



     “Definitive Note” means a certificated Note registered in the name of the Holder thereof and
issued in accordance with Section 2.04 hereof, substantially in the form of Exhibit A hereto except
that such Note shall not bear the Global Note Legend.



     “Description of Notes” means the section titled “Description of the Notes” in the Prospectus
Supplement, dated June 2, 2009, related to the issuance and sale of the Initial Notes.



9









 





     “Designated Noncash Consideration” means the fair market value of non-cash consideration
received by the Company or any Person who is an Affiliate of the Company as a result of the
Company’s ownership of Equity Interests in such Person in connection with an Asset Sale that is so
designated as Designated Noncash Consideration pursuant to an Officers’ Certificate, setting forth
the basis of such valuation, executed by a senior financial officer of the Company, less the amount
of cash or Cash Equivalents received in connection with a subsequent sale of such Designated
Noncash Consideration.



     “Disqualified Stock” means any Capital Stock that, by its terms (or by the terms of any
security into which it is convertible, or for which it is exchangeable, in each case at the option
of the holder of the Capital Stock), or upon the happening of any event, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable at the option of the
holder of the Capital Stock, in whole or in part, on or prior to the date that is 91 days after the
date on which the Notes mature. Notwithstanding the preceding sentence, any Capital Stock that
would constitute Disqualified Stock solely because the holders of the Capital Stock have the right
to require the Company to repurchase such Capital Stock upon the occurrence of a change of control
or an asset sale will not constitute Disqualified Stock if the terms of such Capital Stock provide
that the Company may not repurchase or redeem any such Capital Stock pursuant to such provisions
unless such repurchase or redemption complies with Section 4.07 hereof. The amount of Disqualified
Stock deemed to be outstanding at any time for purposes of the indenture will be the maximum amount
that the Company and its Restricted Subsidiaries may become obligated to pay upon the maturity of,
or pursuant to any mandatory redemption provisions of, such Disqualified Stock, exclusive of
accrued dividends.



     “Domestic Subsidiary” means any Restricted Subsidiary of the Company that was formed under the
laws of the United States or any state of the United States or the District of Columbia or that
guarantees or otherwise provides direct credit support for any Indebtedness of the Company.



     “Environmental CapEx Debt” shall mean Indebtedness of the Company or its Restricted
Subsidiaries incurred for the purpose of financing Environmental Capital Expenditures.



     “Environmental Capital Expenditures” shall mean capital expenditures deemed necessary by the
Company or its Restricted Subsidiaries to comply with Environmental Laws.



     “Environmental Law” shall mean any applicable Federal, state, foreign or local statute, law,
rule, regulation, ordinance, code and rule of common law now or hereafter in effect and in each
case as amended, and any binding judicial or administrative interpretation thereof, including any
binding judicial or administrative order, consent decree or judgment, relating to the environment,
human health or safety or Hazardous Materials.



     “Equity Interests” means Capital Stock and all warrants, options or other rights to acquire
Capital Stock (but excluding any debt security that is convertible into, or exchangeable for,
Capital Stock).



     “Equity Offering” means a sale of Capital Stock (other than Disqualified Stock) of the Company
pursuant to (1) a public offering or (2) a private placement to Persons who are not Affiliates of
the Company.



     “ERCOT” means the Electric Reliability Council of Texas.



     “Exchange Act” means the Securities Exchange Act of 1934, as amended.



     “Excluded Foreign Subsidiary” means, at any time, any Foreign Subsidiary that is (or is
treated as) for United States federal income tax purposes either (1) a corporation or (2) a
pass-through entity



10









 







owned directly or indirectly by another Foreign Subsidiary that is (or is treated as) a
corporation; provided that notwithstanding the foregoing, the following entities will be deemed to
be “Excluded Foreign Subsidiaries”: Sterling Luxembourg (No. 4) S.a.r.l., NRG Pacific Corporate
Services Pty Ltd., Tosli Acquisition B.V. and any subsidiary of Tosli Acquisition B.V. incorporated
or formed in connection with the Itiquira Refinancing.



     “Excluded Proceeds” means any Net Proceeds of an Asset Sale involving:



     (1) the sale of up to $300,000,000 in the aggregate received since the Issue Date from one or
more Asset Sales of Equity Interests in, or property or assets of, any Foreign Subsidiaries or any
Foreign Subsidiary Holding Company; and



     (2) the sale of up to $50,000,000 of assets per year, in either event if and to the extent
such Net Proceeds are designated by a Responsible Officer of the Company as Excluded Proceeds.



     “Excluded Project Subsidiary” shall mean, at any time,



     (1) each Subsidiary of the Company that is an obligor or otherwise bound with respect to
Non-Recourse Debt on the Issue Date,



     (2) any Person that becomes a Subsidiary of the Company after the Issue Date that is an
obligor or otherwise bound with respect to Indebtedness that constitutes Non-Recourse Debt and that
is not an obligor with respect to any other Indebtedness,



     (3) any Person that is a Subsidiary of the Company on the Issue Date or any Person that
becomes a Subsidiary of the Company after the Issue Date and that, in each case, has been
designated, by a certificate executed by a Responsible Officer of the Company, as an Excluded
Project Subsidiary dedicated to constructing or acquiring power generation facilities or related or
ancillary assets or properties that are to be financed only with equity contributions and
Non-Recourse Debt (and not any other Indebtedness), and



     (4) any Subsidiary of the Company that (i) has been released as a Guarantor under this
Supplemental Indenture pursuant to Section 10.05(a)(7) hereof or (ii), in the case of newly
acquired or formed Subsidiaries, is not otherwise required to execute a Guarantee pursuant to
Section 4.17 hereof.



     “Excluded Subsidiaries” means the Excluded Project Subsidiaries, the Excluded Foreign
Subsidiaries and the Immaterial Subsidiaries.



     “Excluded Subsidiary Debt Agreement” means the agreement or documents governing the relevant
Indebtedness referred to in the definition of “Excluded Subsidiary Debt Default.”



     “Excluded Subsidiary Debt Default” means, with respect to any Excluded Subsidiary, the failure
of such Excluded Subsidiary to pay any principal or interest or other amounts due in respect of any
Indebtedness, when and as the same shall become due and payable, or the occurrence of any other
event or condition that results in any Indebtedness of such Excluded Subsidiary becoming due prior
to its scheduled maturity or that enables or permits (with or without the giving of notice, lapse
of time or both) the holder or holders of such Indebtedness or any trustee or agent on its or their
behalf to cause such Indebtedness to become due, or to require the prepayment, repurchase,
redemption or defeasance thereof, prior to its scheduled maturity.



11









 





     “Exempt Subsidiaries” means, collectively, NRG Ilion LP LLC, NRG Ilion Limited Partnership,
Meriden Gas Turbine LLC, LSP-Nelson Energy LLC, NRG Nelson Turbines LLC, NRG Jackson Valley Energy
I, Inc., NRG McClain LLC, NRG Audrain Holding LLC, NRG Audrain Generating LLC, NRG Peaker Finance
Company LLC, Bayou Cove Peaking Power, LLC, Big Cajun I Peaking Power LLC, NRG Rockford LLC, NRG
Rockford II LLC, NRG Rockford Equipment II LLC, NRG Sterlington Power LLC and NRG Rockford
Acquisition LLC.



     “Existing Indebtedness” means Indebtedness of the Company and its Subsidiaries (other than
Indebtedness under the Credit Agreement and the Existing Genco Credit Facility and Notes
Indebtedness) in existence on the Issue Date, until such amounts are repaid.



     “Existing Indentures” means the indentures governing the Existing Senior Notes.



     “Existing Senior Notes” means all notes issued pursuant to the indentures governing NRG’s
outstanding 7.250% Senior Notes due 2014, 7.375% Senior Notes due 2016 and 7.375% Senior Notes due
2017.



     “Facility” means a power or energy related facility.



     “fair market value” means the value that would be paid by a willing buyer to an unaffiliated
willing seller in a transaction not involving distress or necessity of either party, determined in
good faith by a Responsible Officer of the Company.



     “Fixed Charge Coverage Ratio” means with respect to any specified Person for any period, the
ratio of the Consolidated Cash Flow of such Person for such period to the Fixed Charges of such
Person for such period. In the event that the specified Person or any of its Restricted
Subsidiaries incurs, assumes, Guarantees, repays, repurchases, redeems, defeases or otherwise
discharges any Indebtedness (other than ordinary working capital borrowings) or issues, repurchases
or redeems preferred stock subsequent to the commencement of the period for which the Fixed Charge
Coverage Ratio is being calculated and on or prior to the date on which the event for which the
calculation of the Fixed Charge Coverage Ratio is made (for the purposes of this definition, the
“Calculation Date”), then the Fixed Charge Coverage Ratio will be calculated giving pro forma
effect to such incurrence, assumption, Guarantee, repayment, repurchase, redemption, defeasance or
other discharge of Indebtedness, or such issuance, repurchase or redemption of preferred stock, and
the use of the proceeds therefrom, as if the same had occurred at the beginning of the applicable
four-quarter reference period.



     In addition, for purposes of calculating the Fixed Charge Coverage Ratio:




     (1) Investments and acquisitions that have been made by the specified Person or any of
its Restricted Subsidiaries, including through mergers or consolidations, or any Person or
any of its Restricted Subsidiaries acquired by the specified Person or any of its Restricted
Subsidiaries, and including any related financing transactions and including increases in
ownership of Restricted Subsidiaries, during the four-quarter reference period or subsequent
to such reference period and on or prior to the Calculation Date will be given pro forma
effect (in accordance with Regulation S-X under the Securities Act, but including all Pro
Forma Cost Savings) as if they had occurred on the first day of the four-quarter reference
period and Consolidated Cash Flow for such reference period will be calculated on the same
pro forma basis;




     (2) the Consolidated Cash Flow attributable to discontinued operations, as determined
in accordance with GAAP, and operations or businesses (and ownership interests therein)
disposed of prior to the Calculation Date, will be excluded;



12









 






     (3) the Fixed Charges attributable to discontinued operations, as determined in
accordance with GAAP, and operations or businesses (and ownership interests therein)
disposed of prior to the Calculation Date, will be excluded, but only to the extent that the
obligations giving rise to such Fixed Charges will not be obligations of the specified
Person or any of its Restricted Subsidiaries following the Calculation Date;




     (4) any Person that is a Restricted Subsidiary on the Calculation Date will be deemed
to have been a Restricted Subsidiary at all times during such four-quarter period;




     (5) any Person that is not a Restricted Subsidiary on the Calculation Date will be
deemed not to have been a Restricted Subsidiary at any time during such four-quarter period;
and




     (6) if any Indebtedness that is being incurred on the Calculation Date bears a floating
rate of interest, the interest expense on such Indebtedness will be calculated as if the
rate in effect on the Calculation Date had been the applicable rate for the entire period
(taking into account any Hedging Obligation applicable to such Indebtedness).



     If since the beginning of such period any Person (that subsequently became a Restricted
Subsidiary or was merged with or into the Company or any Restricted Subsidiary since the beginning
of such period) shall have made any Investment, acquisition, disposition, merger, consolidation or
disposed operation that would have required adjustment pursuant to this definition, then the Fixed
Charge Coverage Ratio shall be calculated giving pro forma effect thereto (including any Pro Forma
Cost Savings) for such period as if such Investment, acquisition or disposition, or classification
of such operation as discontinued had occurred at the beginning of the applicable four-quarter
period.



     “Fixed Charges” means, with respect to any specified Person for any period, the sum, without
duplication, of:




     (1) the consolidated interest expense of such Person and its Restricted Subsidiaries
(other than interest expense of any Excluded Subsidiary the Consolidated Cash Flow of which
is excluded from the Consolidated Cash Flow of such Person pursuant to the definition of
Consolidated Cash Flow hereof) for such period, whether paid or accrued, including, without
limitation, amortization of debt issuance costs and original issue discount, non-cash
interest payments, the interest component of any deferred payment obligations, the interest
component of all payments associated with Capital Lease Obligations, imputed interest with
respect to Attributable Debt, and net of the effect of all payments made or received
pursuant to Hedging Obligations in respect of interest rates; plus




     (2) the consolidated interest of such Person and its Restricted Subsidiaries that was
capitalized during such period; plus




     (3) any interest accruing on Indebtedness of another Person that is Guaranteed by such
Person or one of its Restricted Subsidiaries or secured by a Lien on assets of such Person
or one of its Restricted Subsidiaries, whether or not such Guarantee or Lien is called upon;
plus




     (4) the product of (a) all dividends, whether paid or accrued and whether or not in
cash, on any series of preferred stock of such Person or any of its Restricted Subsidiaries,
other than dividends on Equity Interests payable in Equity Interests of the Company (other
than Disqualified Stock) or to the Company or a Restricted Subsidiary of the Company, times
(b) a



13









 







fraction, the numerator of which is one and the denominator of which is one minus the
then current combined federal, state and local statutory tax rate of such Person, expressed
as a decimal, in each case, on a consolidated basis and in accordance with GAAP; minus




     (5) interest income for such period.



     “Foreign Subsidiary” means any Restricted Subsidiary that is not a Domestic Subsidiary.



     “Foreign Subsidiary Holding Company” means any Domestic Subsidiary that is a direct parent of
one or more Foreign Subsidiaries and holds, directly or indirectly, no other assets other than
Equity Interests of Foreign Subsidiaries and other de minimis assets related thereto.



     “GAAP” means generally accepted accounting principles set forth in the opinions and
pronouncements of the Accounting Principles Board of the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial Accounting Standards Board or in
such other statements by such other entity as have been approved by a significant segment of the
accounting profession, which are in effect from time to time.



     “Global Note Legend” means the legend set forth in Section 2.04(f), which is required to be
placed on all Global Notes issued under this Supplemental Indenture.



     “Global Notes” means, individually and collectively, each of the Global Notes substantially in
the form of Exhibit A hereto issued in accordance with Section 2.01 hereof.



     “Goldman Sachs Hedge Agreement” means the Master Power Purchase and Sale Agreement dated as of
July 21, 2004, between an affiliate of Goldman, Sachs & Co. and Texas Genco, LP, as amended to the
Issue Date, and any agreements related thereto.



     “Government Securities” means direct obligations of, or obligations guaranteed by, the United
States of America (including any agency or instrumentality thereof) for the payment of which
obligations or guarantees the full faith and credit of the United States of America is pledged and
which are not callable or redeemable at the issuer’s option.



     “Governmental Authority” shall mean any nation or government, any state, province, territory
or other political subdivision thereof, and any entity exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to government, or any non-governmental
authority regulating the generation and/or transmission of energy.



     “Guarantee” means a guarantee other than by endorsement of negotiable instruments for
collection in the ordinary course of business, direct or indirect, in any manner including, without
limitation, by way of a pledge of assets or through letters of credit or reimbursement agreements
in respect thereof, of all or any part of any Indebtedness (whether arising by virtue of
partnership arrangements, or by agreements to keep-well, to purchase assets, goods, securities or
services, to take or pay or to maintain financial statement conditions or otherwise).



     “Guarantors” means each of:




     (1) the Company’s Restricted Subsidiaries other than the Excluded Foreign Subsidiaries,
the Excluded Project Subsidiaries, and the Immaterial Subsidiaries; and



14









 






     (2) any other Restricted Subsidiary that executes a Subsidiary Guarantee in accordance
with the provisions of this Supplemental Indenture;


and their respective successors and assigns.




     “Hazardous Materials” shall mean (a) any petroleum or petroleum products, radioactive
materials, friable asbestos, urea formaldehyde foam insulation, transformers or other equipment
that contain dielectric fluid containing regulated levels of polychlorinated biphenyls and radon
gas; (b) any chemicals, materials or substances defined as or included in the definition of
“hazardous substances,” “hazardous waste,” “hazardous materials,” “extremely hazardous waste,”
“restricted hazardous waste,” “toxic substances,” “toxic pollutants,” “contaminants,” or
“pollutants” or words of similar import, under any applicable Environmental Law; and (c) any other
chemical, material or substance, which is prohibited, limited or regulated by any Environmental
Law.



     “Hedging Obligations” means, with respect to any specified Person, the obligations of such
Person under:




     (1) currency exchange, interest rate or commodity swap agreements, currency exchange,
interest rate or commodity cap agreements and currency exchange, interest rate or commodity
collar agreements, and




     (2) (i) agreements or arrangements designed to protect such Person against fluctuations
in currency exchange, interest rates, commodity prices or commodity transportation or
transmission pricing or availability, including but not limited to the Goldman Sachs Hedge
Agreement; (ii) any netting arrangements, power purchase and sale agreements, fuel purchase
and sale agreements, swaps, options and other agreements, in each case, that fluctuate in
value with fluctuations in energy, power or gas prices; and (iii) agreements or arrangements
for commercial or trading activities with respect to the purchase, transmission,
distribution, sale, lease or hedge of any energy related commodity or service.



     “Holder” means a Person in whose name a Note is registered.



     “Immaterial Subsidiary” shall mean, at any time, any Restricted Subsidiary of the Company that
is designated by the Company as an “Immaterial Subsidiary” if and for so long as such Restricted
Subsidiary, together with all other Immaterial Subsidiaries, has (i) total assets at such time not
exceeding 5% of the Company’s consolidated assets as of the most recent fiscal quarter for which
balance sheet information is available and (ii) total revenues and operating income for the most
recent 12-month period for which income statement information is available not exceeding 5% of the
Company’s consolidated revenues and operating income, respectively; provided that such Restricted
Subsidiary shall be an Immaterial Subsidiary only to the extent that and for so long as all of the
above requirements are satisfied.



     “Indebtedness” means, with respect to any specified Person, any indebtedness of such Person
(excluding accrued expenses and trade payables, except as provided in clause (5) below), whether or
not contingent:




     (1) in respect of borrowed money;




     (2) evidenced by bonds, notes, debentures or similar instruments or letters of credit
(or reimbursement agreements in respect thereof);




     (3) in respect of banker’s acceptances;



15









 






     (4) representing Capital Lease Obligations or Attributable Debt in respect of sale and
leaseback transactions;




     (5) representing the balance deferred and unpaid of the purchase price of any property
(including trade payables) or services due more than six months after such property is
acquired or such services are completed; or




     (6) representing the net amount owing under any Hedging Obligations,


if and to the extent any of the preceding items (other than letters of credit, Attributable Debt
and Hedging Obligations) would appear as a liability upon a balance sheet of the specified Person
prepared in accordance with GAAP. In addition, the term “Indebtedness” includes all Indebtedness
of others secured by a Lien on any asset of the specified Person (whether or not such Indebtedness
is assumed by the specified Person) and, to the extent not otherwise included, the Guarantee by the
specified Person of any Indebtedness of any other Person; provided, that the amount of such
Indebtedness shall be deemed not to exceed the lesser of the amount secured by such Lien and the
value of the Person’s property securing such Lien.




     “Indenture” means the Base Indenture, as supplemented by this Supplemental Indenture,
governing the Notes, in each case, as amended, supplemented or otherwise modified from time to time
in accordance with its respective terms.



     “Independent Financial Advisor” means an accounting, appraisal, investment banking firm or
consultant to Persons engaged in a Permitted Business of nationally recognized standing that is, in
the good faith judgment of the Company, qualified to perform the task for which it has been
engaged.



     “Indirect Participant” means a Person who holds a beneficial interest in a Global Note through
a Participant.



     “Initial Notes” means the first $700 million aggregate principal amount of Notes issued under
this Supplemental Indenture on the Issue Date.



     “Investment Grade Rating” means a rating equal to or higher than BBB- (or the equivalent) by
S&P and equal to or higher than Baa3 (or the equivalent) by Moody’s.



     “Investments” means, with respect to any Person, all direct or indirect investments by such
Person in other Persons (including Affiliates) in the forms of loans (including Guarantees or other
obligations), advances or capital contributions (excluding commission, travel and similar advances
to officers and employees), purchases or other acquisitions for consideration of Indebtedness,
Equity Interests or other securities, together with all items that are or would be classified as
investments on a balance sheet prepared in accordance with GAAP. If the Company or any Subsidiary
of the Company sells or otherwise disposes of any Equity Interests of any direct or indirect
Subsidiary of the Company such that, after giving effect to any such sale or disposition, such
Person is no longer a Subsidiary of the Company, the Company will be deemed to have made an
Investment on the date of any such sale or disposition equal to the fair market value of the
Company’s Investments in such Subsidiary that were not sold or disposed of in an amount determined
as provided in the final paragraph of Section 4.07(b) hereof. The acquisition by the Company or
any Subsidiary of the Company of a Person that holds an Investment in a third Person will be deemed
to be an Investment by the Company or such Subsidiary in such third Person in an amount equal to
the fair market value of the Investments held by the acquired Person in such third Person in an
amount determined as provided in the final paragraph of Section 4.07(b) hereof. Except as
otherwise



16









 







provided in the indenture, the amount of an Investment will be determined at the time the
Investment is made and without giving effect to subsequent changes in value.



     Notwithstanding anything to the contrary herein, in the case of any Investment made by the
Company or a Restricted Subsidiary of the Company in a Person substantially concurrently with a
cash distribution by such Person to the Company or a Guarantor (a “Concurrent Cash Distribution”),
then:



     (a) the Concurrent Cash Distribution shall be deemed to be Net Proceeds received in connection
with an Asset Sale and applied as set forth above under Section 4.10 hereof; and



     (b) the amount of such Investment shall be deemed to be the fair market value of the
Investment, less the amount of the Concurrent Cash Distribution.



     “Issue Date” means June 5, 2009.



     “Itiquira” shall mean Itiquira Energetica S.A.



     “Itiquira Acquisition Sub” shall have the meaning assigned to such term in the definition of
Itiquira Refinancing hereof.



     “Itiquira Refinancing” means the transaction or series of related transactions pursuant to
which (a) any or all of the outstanding preferred stock of Itiquira directly or indirectly held by
Eletrobrás is acquired by Itiquira or a subsidiary of Tosli Acquisition BV (“Itiquira Acquisition
Sub”) for an aggregate consideration not to exceed to $70,000,000, and, following such acquisition,
such preferred stock is redeemed, repaid or otherwise retired or held as treasury stock or
otherwise treated in accordance with the requirements of Brazilian law, and (b) pursuant to which
Itiquira or the Itiquira Acquisition Sub may incur up to $70,000,000 in aggregate principal amount
of Indebtedness secured by Liens on the assets of Itiquira and the Itiquira Acquisition Sub
(“Permitted Itiquira Indebtedness”), in each case on terms and conditions (which may include terms
and conditions other than those set forth in this definition) reasonably satisfactory to the
Administrative Agent under the Credit Agreement.



     “Legal Holiday” means a Saturday, a Sunday or a day on which banking institutions in the City
of New York or at a place of payment are authorized by law, regulation or executive order to remain
closed. If a payment date is a Legal Holiday at a place of payment, payment may be made at that
place on the next succeeding day that is not a Legal Holiday, and no interest shall accrue on such
payment for the intervening period.



     “Lien” means, with respect to any asset:



     (1) any mortgage, deed of trust, deed to secure debt, lien (statutory or otherwise), pledge,
hypothecation, encumbrance, restriction, collateral assignment, charge or security interest in, on
or of such asset;



     (2) the interest of a vendor or a lessor under any conditional sale agreement, capital lease
or title retention agreement (or any financing lease having substantially the same economic effect
as any of the foregoing) relating to such asset; and



     (3) in the case of Equity Interests or debt securities, any purchase option, call or similar
right of a third party with respect to such Equity Interests or debt securities.


For the avoidance of doubt, “Lien” shall not be deemed to include licenses of intellectual
property.




17









 








     “Mark-to-Market Adjustments” means:



     (1) any non-cash loss attributable to the mark-to-market movement in the valuation of Hedging
Obligations (to the extent the cash impact resulting from such loss has not been realized) or other
derivative instruments pursuant to Financial Accounting Standards Board Statement No. 133,
“Accounting for Derivative Instruments and Hedging Activities,” or any similar successor provision;
plus




     (a) any loss relating to amounts paid in cash prior to the stated settlement date of
any Hedging Obligation that has been reflected in Consolidated Net Income in the current
period; plus




     (b) any gain relating to Hedging Obligations associated with transactions recorded in
the current period that has been reflected in Consolidated Net Income in prior periods and
excluded from Consolidated Cash Flow pursuant to clauses (2)(a) and (2)(b) below; less,



     (2) any non-cash gain attributable to the mark-to-market movement in the valuation of Hedging
Obligations (to the extent the cash impact resulting from such gain has not been realized) or other
derivative instruments pursuant to Financial Accounting Standards Board Statement No. 133,
“Accounting for Derivative Instruments and Hedging Activities,” or any similar successor provision;
less




     (a) any gain relating to amounts received in cash prior to the stated settlement date
of any Hedging Obligation that has been reflected in Consolidated Net Income in the current
period; less




     (b) any loss relating to Hedging Obligations associated with transactions recorded in
the current period that has been reflected in Consolidated Net Income in prior periods and
excluded from Consolidated Cash Flow pursuant to clauses (1)(a) and (1)(b) above.



     “Minority Investment” shall mean any Person (other than a Subsidiary) in which the Company or
any Restricted Subsidiary owns Capital Stock.



     “Moody’s” means Moody’s Investors Service, Inc. or any successor entity.



     “Necessary CapEx Debt” shall mean Indebtedness of the Company or its Restricted Subsidiaries
incurred for the purpose of financing Necessary Capital Expenditures.



     “Necessary Capital Expenditures” shall mean capital expenditures that are required by
Applicable Law (other than Environmental Laws) or undertaken for health and safety reasons. The
term “Necessary Capital Expenditures” does not include any capital expenditure undertaken primarily
to increase the efficiency of, expand or re-power any power generation facility.



     “Net Income” means, with respect to any specified Person, the net income (loss) of such
Person, determined in accordance with GAAP and before any reduction in respect of preferred stock
dividends or accretion, excluding, however:




     (1) any gain or loss, together with any related provision for taxes on such gain or
loss, realized in connection with: (a) any Asset Sale (without giving effect to the
threshold provided for in the definition thereof); or (b) the disposition of any securities
by such Person or any of its Restricted Subsidiaries or the extinguishment of any
Indebtedness of such Person or any of its Restricted Subsidiaries; and



18









 






     (2) any extraordinary gain or loss, together with any related provision for taxes on
such extraordinary gain or loss.



     “Net Proceeds” means the aggregate cash proceeds received by the Company or any of its
Restricted Subsidiaries in respect of any Asset Sale (including, without limitation, any cash
received upon the sale or other disposition of any non-cash consideration received in any Asset
Sale), net of the direct costs relating to such Asset Sale, including, without limitation, legal,
accounting and investment banking fees, and sales commissions, and any relocation expenses incurred
as a result of the Asset Sale, taxes paid or payable as a result of the Asset Sale, in each case,
after taking into account any available tax deductions and any tax sharing arrangements, and
amounts required to be applied to the repayment of Indebtedness, other than Indebtedness under a
Credit Facility, secured by a Lien on the asset or assets that were the subject of such Asset Sale
and any reserve for adjustment in respect of the sale price of such asset or assets established in
accordance with GAAP.



     “Non-Recourse Debt” means Indebtedness:




     (1) as to which neither the Company nor any of its Restricted Subsidiaries (other than
an Excluded Project Subsidiary) (a) provides credit support of any kind (including any
undertaking, agreement or instrument that would constitute Indebtedness) other than pursuant
to a Non-Recourse Guarantee or any arrangement to provide or guarantee to provide goods and
services on an arm’s length basis, (b) is directly or indirectly liable as a guarantor or
otherwise, other than pursuant to a Non-Recourse Guarantee, or (c) constitutes the lender;




     (2) no default with respect to which (including any rights that the holders of the
Indebtedness may have to take enforcement action against an Unrestricted Subsidiary) would
permit upon notice, lapse of time or both any holder of any other Indebtedness of the
Company (other than the notes and the Credit Agreement) or any of its Restricted
Subsidiaries to declare a default on such other Indebtedness or cause the payment of such
other Indebtedness to be accelerated or payable prior to its Stated Maturity; and




     (3) in the case of Non-Recourse Debt incurred after the Issue Date, as to which the
lenders have been notified in writing, or have otherwise agreed, that they will not have any
recourse to the stock or assets of the Company or any of its Restricted Subsidiaries except
as otherwise permitted by clauses (1) or (2) above;


provided, however, that the following shall be deemed to be Non-Recourse Debt: (i) Guarantees with
respect to debt service reserves established with respect to a Subsidiary to the extent that such
Guarantee shall result in the immediate payment of funds, pursuant to dividends or otherwise, in
the amount of such Guarantee; (ii) contingent obligations of the Company or any other Subsidiary to
make capital contributions to a Subsidiary; (iii) any credit support or liability consisting of
reimbursement obligations in respect of Letters of Credit issued under and subject to the terms of,
the Credit Agreement to support obligations of a Subsidiary; (iv) agreements of the Company or any
Subsidiary to provide, or guarantees or other credit support (including letters of credit) by the
Company or any Subsidiary of any agreement of another Subsidiary to provide, corporate, management,
marketing, administrative, technical, energy management or marketing, engineering, procurement,
construction, operation and/or maintenance services to such Subsidiary, including in respect of the
sale or acquisition of power, emissions, fuel, oil, gas or other supply of energy; (v) any
agreements containing Hedging Obligations, and any power purchase or sale agreements, fuel purchase
or sale agreements, emissions credit purchase or sales agreements, power transmission agreements,
fuel transportation agreements, fuel storage agreements, commercial or trading agreements and any
other similar agreements entered into between the Company or any Subsidiary with or otherwise
involving any other Subsidiary, including any guarantees or other credit


19









 






support (including letters of credit) in connection therewith; and (vi) any Investments in a
Subsidiary, to the extent in the case of (i) through (vi) otherwise permitted by this Supplemental
Indenture.




     “Non-Recourse Guarantee” means any Guarantee by the Company or a Guarantor of Non-Recourse
Debt incurred by an Excluded Project Subsidiary as to which the lenders of such Non-Recourse Debt
have acknowledged that they will not have any recourse to the stock or assets of the Company or any
Guarantor, except to the limited extent set forth in such guarantee.



     “Notes” has the meaning assigned to it in the preamble to this Supplemental Indenture. The
Initial Notes and the Additional Notes shall be treated as a single class for all purposes under
this Supplemental Indenture. Unless the context otherwise requires, all references to the Notes
shall include the Initial Notes and any Additional Notes.



     “Obligations” means any principal, interest, penalties, fees, indemnifications,
reimbursements, damages and other liabilities payable under the documentation governing any
Indebtedness.



     “Officers’ Certificate” means a certificate signed on behalf of the Company by two Officers of
the Company, one of whom must be the principal executive officer, the principal financial officer,
the treasurer or the principal accounting officer of the Company, that meets the requirements of
Section 12.05 hereof.



     “Opinion of Counsel” means an opinion from legal counsel who is reasonably acceptable to the
Trustee, that meets the requirements of Section 12.05 hereof. The counsel may be an employee of or
counsel to the Company, any Subsidiary of the Company or the Trustee.



     “Officer” means, with respect to any Person, the Chairman of the Board, the Chief Executive
Officer, the President, the Chief Operating Officer, the Chief Financial Officer, the Treasurer,
any Assistant Treasurer, the Controller, the Secretary, Assistant Secretary, or any Vice-President
of such Person.



     “Participant” means, with respect to the Depositary, a Person who has an account with the
Depositary.



     “Permitted Business” means the business of acquiring, constructing, managing, developing,
improving, maintaining, leasing, owning and operating Facilities, together with any related assets
or facilities, as well as any other activities reasonably related to, ancillary to, or incidental
to, any of the foregoing activities (including acquiring and holding reserves), including investing
in Facilities.



     “Permitted Investments” means:




     (1) any Investment in the Company or in a Restricted Subsidiary of the Company that is
a Guarantor;




     (2) any Investment in an Immaterial Subsidiary;




     (3) any Investment in an Excluded Foreign Subsidiary for so long as the Excluded
Foreign Subsidiaries do not collectively own more than 20% of the consolidated assets of the
Company as of the most recent fiscal quarter end for which financial statements are publicly
available;



20









 






     (4) any issuance of letters of credit to support the obligations of any of the Excluded
Subsidiaries;




     (5) any Investment in Cash Equivalents (and, in the case of Excluded Subsidiaries only,
Cash Equivalents or other liquid investments permitted under any Credit Facility to which it
is a party);




     (6) any Investment by the Company or any Restricted Subsidiary of the Company in a
Person, if as a result of such Investment:




          (A) such Person becomes a Restricted Subsidiary of the Company and a Guarantor or an
Immaterial Subsidiary; or




          (B) such Person is merged, consolidated or amalgamated with or into, or transfers or
conveys substantially all of its assets to, or is liquidated into, the Company or a
Restricted Subsidiary of the Company that is a Guarantor;




     (7) any Investment made as a result of the receipt of non-cash consideration from an
Asset Sale that was made pursuant to and in compliance with Section 4.10 hereof;




     (8) Investments made as a result of the sale of Equity Interests of any Person that is
a Subsidiary of the Company such that, after giving effect to any such sale, such Person is
no longer a Subsidiary of the Company, if the sale of such Equity Interests constitutes an
Asset Sale and the Net Proceeds received from such Asset Sale are applied as set forth under
Section 4.10 hereof;




     (9) Investments to the extent made in exchange for the issuance of Equity Interests
(other than Disqualified Stock) of the Company;




     (10) any Investments received in compromise or resolution of (a) obligations of trade
creditors or customers of the Company or any of its Restricted Subsidiaries, including
pursuant to any plan of reorganization or similar arrangement upon the bankruptcy or
insolvency of any trade creditor or customer; or (b) litigation, arbitration or other
disputes with Persons who are not Affiliates;




     (11) Investments represented by Hedging Obligations;




     (12) loans or advances to employees;




     (13) repurchases of the notes or pari passu Indebtedness;




     (14) any Investment in securities of trade creditors, trade counter-parties or
customers received in compromise of obligations of those Persons, including pursuant to any
plan of reorganization or similar arrangement upon the bankruptcy or insolvency of such
trade creditors or customers;




     (15) negotiable instruments held for deposit or collection;




     (16) receivables owing to the Company or any Restricted Subsidiary of the Company and
payable or dischargeable in accordance with customary trade terms; provided,




21











 






however, that such trade terms may include such concessionary trade terms as the Company of
any such Restricted Subsidiary of the Company deems reasonable under the circumstances;




     (17) payroll, travel and similar advances to cover matters that are expected at the
time of such advances ultimately to be treated as expenses for accounting purposes;




     (18) Investments resulting from the acquisition of a Person that at the time of such
acquisition held instruments constituting Investments that were not acquired in
contemplation of the acquisition of such Person;




     (19) any Investment in any Person engaged primarily in one or more Permitted Businesses
(including, without limitation, Excluded Subsidiaries, Unrestricted Subsidiaries, and
Persons that are not Subsidiaries of the Company) made for cash since the Issue Date;




     (20) the contribution of any one or more of the Specified Facilities to a Restricted
Subsidiary that is not a Guarantor;




     (21) Investments made pursuant to a commitment that, when entered into, would have
complied with the provisions of this Supplemental Indenture;




     (22) Investments in any Excluded Subsidiary made by another Excluded Subsidiary; and




     (23) other Investments made since the Issue Date in any Person having an aggregate fair
market value (measured on the date each such Investment was made and without giving effect
to subsequent changes in value), when taken together with all other Investments made
pursuant to this clause (23) that are at the time outstanding not to exceed the greater of
(a) $500.0 million and (b) 2.5% of Total Assets; provided, however, that if any Investment
pursuant to this clause (23) is made in any Person that is not a Restricted Subsidiary of
the Company and a Guarantor at the date of the making of the Investment and such Person
becomes a Restricted Subsidiary and a Guarantor after such date, such Investment shall
thereafter be deemed to have been made pursuant to clause (1) above, and shall cease to have
been made pursuant to this clause (23).



     “Permitted Itiquira Indebtedness” shall have the meaning assigned to such term in the
definition of Itiquira Refinancing hereof.



     “Permitted Liens” means:




     (1) Liens on assets of the Company or any Guarantor securing Indebtedness and other
Obligations under Credit Facilities, in an aggregate principal amount not exceeding, on the
date of the creation of such Liens, the greater of (a) 30.0% of Total Assets or (b) $6.0
billion less the aggregate amount of all repayments, optional or mandatory, of the principal
of any term Indebtedness under a Credit Facility that have been made by the Company or any
of its Restricted Subsidiaries since the Issue Date with the Net Proceeds of Asset Sales
(other than Excluded Proceeds) and less, without duplication, the aggregate amount of all
repayments or commitment reductions with respect to any revolving credit borrowings under a
Credit Facility that have been made by the Company or any of its Restricted Subsidiaries
since the Issue Date as a result of the application of the Net Proceeds of Asset Sales
(other than Excluded Proceeds) in accordance with



22









 







Section 4.10 hereof (excluding temporary reductions in revolving credit borrowings as
contemplated by that covenant);




     (2) Liens to secure obligations with respect to (i) contracts (other than for
Indebtedness) for commercial and trading activities for the purchase, transmission,
distribution, sale, lease or hedge of any energy related commodity or service, and (ii)
Hedging Obligations;




     (3) Liens on assets of Excluded Subsidiaries securing Indebtedness and/or other
obligations of Excluded Subsidiaries that was permitted by the terms of the indenture to be
incurred;




     (4) Liens (a) in favor of the Company or any of the Guarantors; (b) incurred by
Excluded Project Subsidiaries in favor of any other Excluded Project Subsidiary; or (c)
incurred by Excluded Foreign Subsidiaries in favor of any other Excluded Foreign Subsidiary;




     (5) Liens to secure the performance of statutory obligations, surety or appeal bonds,
performance bonds or other obligations of a like nature;




     (6) Liens to secure obligations to vendors or suppliers covering the assets sold or
supplied by such vendors or suppliers, including Liens to secure Indebtedness or other
obligations (including Capital Lease Obligations) permitted by clauses (4), (13), (20) and
(21) of Section 4.09(b) hereof covering only the assets acquired with or financed by such
Indebtedness;




     (7) Liens existing on the Issue Date;




     (8) Liens for taxes, assessments or governmental charges or claims that are not yet
delinquent or that are being contested in good faith by appropriate proceedings promptly
instituted and diligently concluded; provided that any reserve or other appropriate
provision as is required in conformity with GAAP has been made therefor;




     (9) Liens imposed by law, such as carriers’, warehousemen’s, landlord’s and mechanics’
Liens;




     (10) survey exceptions, easements or reservations of, or rights of others for,
licenses, rights-of-way, sewers, electric lines, telegraph and telephone lines, oil and gas
and other mineral interests and leases and other similar purposes, or zoning or other
restrictions as to the use of real property that were not incurred in connection with
Indebtedness and that do not in the aggregate materially adversely affect the value of said
properties or materially impair their use in the operation of the business of such Person;




     (11) Liens created for the benefit of (or to secure) the notes (or the Subsidiary
Guarantees);




     (12) Liens to secure any Permitted Refinancing Indebtedness permitted to be incurred
under this Supplemental Indenture; provided, however, that:




          (A) the new Lien shall be limited to all or part of the same property and assets that
secured or, under the written agreements pursuant to which the original Lien arose, could
secure the original Lien (plus improvements and accessions to, such property or proceeds or
distributions thereof); and



23









 






          (B) the Indebtedness secured by the new Lien is not increased to any amount greater
than the sum of (x) the outstanding principal amount or, if greater, committed amount, of
the Permitted Referencing Indebtedness and (y) an amount necessary to pay any fees and
expenses, including premiums, related to such refinancings, refunding, extension, renewal or
replacement;




     (13) Liens incurred or deposits made in connection with workers’ compensation,
unemployment insurance and other types of social security;




     (14) Liens encumbering deposits made to secure obligations arising from statutory,
regulatory, contractual or warranty requirements of the Company or any of its Restricted
Subsidiaries, including rights of offset and set-off;




     (15) leases or subleases granted to others that do not materially interfere with the
business of the Company and its Restricted Subsidiaries;




     (16) statutory Liens arising under ERISA;




     (17) Liens on property (including Capital Stock) existing at the time of acquisition of
the property by the Company or any Subsidiary of the Company; provided that such Liens were
in existence prior to, such acquisition, and not incurred in contemplation of, such
acquisition;




     (18) Liens arising from Uniform Commercial Code financing statements filed on a
precautionary basis in respect of operating leases intended by the parties to be true leases
(other than any such leases entered into in violation of the indenture);




     (19) Liens on assets and Equity Interests of a Subsidiary that is an Excluded
Subsidiary;




     (20) Liens granted in favor of Xcel pursuant to the Xcel Indemnification Agreements as
in effect on the Issue Date held by Xcel thereunder;




     (21) Liens to secure Indebtedness or other obligations incurred to finance Necessary
Capital Expenditures that encumber only the assets purchased, installed or otherwise
acquired with the proceeds of such Indebtedness;




     (22) Liens to secure Environmental CapEx Debt that encumber only the assets purchased,
installed or otherwise acquired with the proceeds of such Environmental CapEx Debt;




     (23) Liens on assets or securities deemed to arise in connection with the execution,
delivery or performance of contracts to sell such assets or stock otherwise permitted under
this Supplemental Indenture;




     (24) Liens on assets of Itiquira incurred pursuant to the Itiquira Refinancing;




     (25) any Liens resulting from restrictions on any Equity Interest or undivided
interests, as the case may be, of a Person providing for a breach, termination or default
under any joint venture, stockholder, membership, limited liability company, partnership,
owners’, participation or other similar agreement between such Person and one or more other
holders of Equity Interests or undivided interests of such Person, as the case may be, if a
security interest or



24









 







Lien is created on such Equity Interest or undivided interest, as the case may be, as a
result thereof;




     (26) Liens resulting from any customary provisions limiting the disposition or
distribution of assets or property (including without limitation Equity Interests) or any
related restrictions thereon in joint venture, partnership, membership, stockholder and
limited liability company agreements, asset sale agreements, sale-leaseback agreements,
stock sale agreements and other similar agreements, including owners’, participation or
similar agreements governing projects owned through an undivided interest; provided,
however, that any such limitation is applicable only to the assets that are the subjects of
such agreements;




     (27) those Liens or other exceptions to title, in either case on or in respect of any
facility of the Company or any Subsidiary, arising as a result of any shared facility
agreement entered into after the closing date with respect to such facility, except to the
extent that any such Liens or exceptions, individually or in the aggregate, materially
adversely affect the value of the relevant property or materially impair the use of the
relevant property in the operation of the business of the Company or such Subsidiary;




     (28) Liens on cash deposits and other funds maintained with a depositary institution,
in each case arising in the ordinary course of business by virtue of any statutory or common
law provision relating to banker’s liens, including Section 4-210 of the UCC;




     (29) any Liens on property and assets (other than certain properties or assets defined
as “core” collateral) designated as Excluded Assets from time to time by the Company under
clause (xiii) of the related definition under the Credit Agreement, which shall not have,
when taken together with all other “non-core” property and assets that constitute Excluded
Assets pursuant to such clause at the relevant time of determination, a fair market value in
excess of $500.0 million in the aggregate (and, to the extent that such fair market value of
such property and assets exceeds $500.0 million in the aggregate, such property or assets
shall cease to be an Excluded Asset only to the extent of such excess fair market value);
and




     (30) Liens incurred by the Company or any Subsidiary of the Company with respect to
obligations not to exceed $500.0 million at any one time outstanding.



     “Permitted Refinancing Indebtedness” means any Indebtedness of the Company or any of its
Restricted Subsidiaries issued in exchange for, or the net proceeds of which are used to refund,
refinance, replace, defease or discharge other Indebtedness of the Company or any of its Restricted
Subsidiaries (other than intercompany Indebtedness); provided that:




     (1) the principal amount (or accreted value, if applicable) of such Permitted
Refinancing Indebtedness does not exceed the principal amount (or accreted value, if
applicable) of the Indebtedness extended, refinanced, renewed, replaced, defeased or
refunded (plus all accrued interest on the Indebtedness and the amount of all expenses and
premiums incurred in connection therewith);




     (2) such Permitted Refinancing Indebtedness has a Weighted Average Life to Maturity
equal to or greater than the Weighted Average Life to Maturity of, the Indebtedness being
extended, refinanced, renewed, replaced, defeased or refunded;




     (3) if the Indebtedness being extended, refinanced, renewed, replaced, defeased or
refunded is subordinated in right of payment to the Notes, such Permitted



25









 







Refinancing Indebtedness is subordinated in right of payment to, the Notes on terms at
least as favorable to the Holders of Notes as those contained in the documentation governing
the Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded;




     (4) such Indebtedness is incurred either by the Company (and may be guaranteed by any
Guarantor) or by the Restricted Subsidiary who is the obligor on the Indebtedness being
extended, refinanced, renewed, replaced, defeased or refunded; and




     (5) (a) if the Stated Maturity of the Indebtedness being refinanced is earlier than the
Stated Maturity of the notes, the Permitted Refinancing Indebtedness has a Stated Maturity
no earlier than the Stated Maturity of the Indebtedness being refinanced or (b) if the
Stated Maturity of the Indebtedness being refinanced is later than the Stated Maturity of
the Notes, the Permitted Refinancing Indebtedness has a Stated Maturity at least 91 days
later than the Stated Maturity of the Notes.



     “Permitted Tax Lease” means a sale and leaseback transaction consisting of a “payment in lieu
of taxes” program or any similar structure (including but not limited to leases and
sale-leasebacks) primarily intended to provide tax benefits (and not primarily intended to create
Indebtedness).



     “Person” means any individual, corporation, partnership, joint venture, association,
joint-stock company, trust, unincorporated organization, limited liability company or government or
other entity.



     “PMI” means NRG Power Marketing Inc., a Delaware corporation.



     “Pro Forma Cost Savings” means, without duplication, with respect to any period, reductions in
costs and related adjustments that have been actually realized or are projected by the Company’s
Chief Financial Officer in good faith to result from reasonably identifiable and factually
supportable actions or events, but only if such reductions in costs and related adjustments are so
projected by the Company to be realized during the consecutive four-quarter period commencing after
the transaction giving rise to such calculation.



     “Prospectus Supplement” means the Prospectus Supplement, dated June 2, 2009, related to the
issuance and sale of the Initial Notes.



     “Prudent Industry Practice” shall mean those practices and methods as are commonly used or
adopted by Persons in the Permitted Business in the United States in connection with the conduct of
the business of such industry, in each case as such practices or methods may evolve from time to
time, consistent in all material respects with all applicable legal requirements.



     “Qualifying Equity Interests” means Equity Interests of the Company other than (1)
Disqualified Stock; (2) Equity Interests that were used to support an incurrence of Contribution
Indebtedness and (3) Equity Interests sold in an Equity Offering prior to the third anniversary of
the Issue Date that are eligible to be used to support an optional redemption of notes pursuant to
Section 3.07 hereof.



     “Responsible Officer” of a Person means the chief executive officer, chief financial officer,
treasurer or general counsel of such Person.



     “Restricted Investment” means an Investment other than a Permitted Investment.



26









 





     “Restricted Payments” has the meaning assigned to such term under Section 4.07 hereof. For
purposes of determining compliance with Section 4.07 hereof, no Hedging Obligation shall be deemed
to be contractually subordinated to the notes or any Subsidiary Guarantee.



     “Restricted Subsidiary” of a Person means any Subsidiary of the referent Person that is not an
Unrestricted Subsidiary.



     “S&P” means Standard & Poor’s Financial Services LLC or any successor entity.



     “SEC” means the Securities and Exchange Commission.



     “Second Supplemental Indenture” means the Second Supplemental Indenture, dated February 2,
2006, governing NRG’s 7.375% Senior Notes due 2016.



     “Securities Act” means the Securities Act of 1933, as amended.



     “Significant Subsidiary” means any Subsidiary that would be a “significant subsidiary” as
defined in Article 1, Rule 1-02 of Regulation S-X, promulgated pursuant to the Securities Act, as
such Regulation is in effect on the Issue Date.



     “Specified Facility” means each of the following Facilities, or any part thereof: (a) the
Facilities held on the Issue Date by Vienna Power LLC, Meriden Gas Turbine LLC, Norwalk Power LLC,
Connecticut Jet Power LLC (excluding the Cos Cob assets), Devon Power LLC, Montville Power LLC
(including the Capital Stock of the entities owning such Facilities provided that such entities do
not hold material assets other than the Facilities held on the Issue Date); (b) the following
Facilities: P.H. Robinson, H.O. Clarke, Webster, Unit 3 at Cedar Bayou, Unit 2 at T.H. Wharton;
and (c) the Capital Stock of the following Subsidiaries of the Company if such Subsidiary holds no
assets other than the Capital Stock of a Foreign Subsidiary of the Company: NRG Latin America,
Inc., NRG International LLC, NRG Insurance Ltd. (Cayman Islands), NRG Asia Pacific, Ltd., NRG
International II Inc. and NRG International III Inc.



     “Stated Maturity” means, with respect to any installment of interest or principal on any
series of Indebtedness, the date on which the payment of interest or principal was scheduled to be
paid in the documentation governing such Indebtedness as of the Issue Date, and will not include
any contingent obligations to repay, redeem or repurchase any such interest or principal prior to
the date originally scheduled for the payment thereof.



     “Subsidiary” means, with respect to any specified Person:




     (1) any corporation, association or other business entity of which more than 50% of the
total voting power of shares of Capital Stock entitled (without regard to the occurrence of
any contingency and after giving effect to any voting agreement or stockholders’ agreement
that effectively transfers voting power) to vote in the election of directors, managers or
trustees of the corporation, association or other business entity is at the time owned or
controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries
of that Person (or a combination thereof); and




     (2) any partnership (a) the sole general partner or the managing general partner of
which is such Person or a Subsidiary of such Person or (b) the only general partners of
which are that Person or one or more Subsidiaries of that Person (or any combination
thereof).



27









 





     “Subsidiary Guarantee” means the Guarantee by each Guarantor of the Company’s obligations
under the Indenture and on the Notes, executed pursuant to the provisions of this Supplemental
Indenture.



     “Supplemental Indenture” means this Supplemental Indenture, dated as of the Issue Date, by and
among the Company, the Guarantors and the Trustee, governing the Notes, as amended, supplemented or
otherwise modified from time to time in accordance with the Base Indenture and the terms hereof.



     “TIA” means the Trust Indenture Act of 1939, as amended (15 U.S.C. §§ 77aaa-77bbbb).



     “Total Assets” means the total consolidated assets of the Company and its Restricted
Subsidiaries, determined on a consolidated basis in accordance with GAAP, as shown on the most
recent balance sheet of the Company.



     “Total Debt” means, as of any date of determination, the aggregate principal amount of
Indebtedness of the Company and its Restricted Subsidiaries (other than Excluded Project
Subsidiaries) outstanding on such date, determined on a consolidated basis in accordance with GAAP;
provided that (1) Total Debt will include only the amount of payments that the Company or any of
its Restricted Subsidiaries (other than Excluded Project Subsidiaries) would be required to make,
on the date Total Debt is being determined, in the event of any early termination or similar event
on such date of determination and (2) for the avoidance of doubt, Total Debt will not include the
undrawn amount of any outstanding letters of credit.



     “Treasury Rate” means, as of any redemption date, the yield to maturity as of such redemption
date of United States Treasury securities with a constant maturity (as compiled and published in
the most recent Federal Reserve Statistical Release H.15 (519) that has become publicly available
at least two business days prior to the redemption date (or, if such Statistical Release is no
longer published, any publicly available source of similar market data)) most nearly equal to the
period from the redemption date to June 15, 2014; provided, however, that if the period from the
redemption date to June 15, 2014, is less than one year, the weekly average yield on actually
traded United States Treasury securities adjusted to a constant maturity of one year will be used.



     “UCC” means the Uniform Commercial Code as in effect in the State of New York or any other
applicable jurisdiction.



     “Unrestricted Subsidiary” means any Subsidiary of the Company that is designated by the
Company as an Unrestricted Subsidiary pursuant to a certificate executed by a Responsible Officer
of the Company, but only to the extent that such Subsidiary:




     (1) has no Indebtedness other than Non-Recourse Debt;




     (2) except as permitted by Section 4.11 hereof, is not party to any agreement,
contract, arrangement or understanding with the Company or any Restricted Subsidiary of the
Company unless the terms of any such agreement, contract, arrangement or understanding are
no less favorable to the Company or such Restricted Subsidiary than those that might be
obtained at the time from Persons who are not Affiliates of the Company;




     (3) is a Person with respect to which neither the Company nor any of its Restricted
Subsidiaries has any direct or indirect obligation (a) to subscribe for additional Equity
Interests or (b) to maintain or preserve such Person’s financial condition or to cause such
Person to achieve any specified levels of operating results except as otherwise permitted by
the Credit Agreement as in effect on the Issue Date; and



28









 






     (4) has not guaranteed or otherwise directly or indirectly provided credit support for
any Indebtedness of the Company or any of its Restricted Subsidiaries except as otherwise
permitted by the Credit Agreement as in effect on the Issue Date.



     Any designation of a Subsidiary of the Company as an Unrestricted Subsidiary will be evidenced
to the Trustee by filing with the Trustee a certified copy of the certificate executed by a
Responsible Officer of the Company giving effect to such designation and certifying that such
designation complied with the conditions described under Section 4.19 hereof and was permitted by
Section 4.07 hereof. If, at any time, any Unrestricted Subsidiary fails to meet the requirements
as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for
purposes of this Supplemental Indenture and any Indebtedness of such Subsidiary will be deemed to
be incurred by a Restricted Subsidiary of the Company as of such date and, if such Indebtedness is
not permitted to be incurred as of such date under Section 4.09 hereof, the Company will be in
default of such covenant. The Company may at any time designate any Unrestricted Subsidiary to be
a Restricted Subsidiary; provided that such designation will be deemed to be an incurrence of
Indebtedness by a Restricted Subsidiary of the Company of any outstanding Indebtedness of such
Unrestricted Subsidiary and such designation will only be permitted if (1) such Indebtedness is
permitted under Section 4.09 hereof, calculated on a pro forma basis as if such designation had
occurred at the beginning of the four-quarter reference period; and (2) no Default or Event of
Default would be in existence following such designation.



     “Voting Stock” of any Person as of any date means the Capital Stock of such Person that is at
the time entitled to vote in the election of the Board of Directors of such Person.



     “Weighted Average Life to Maturity” means, when applied to any Indebtedness at any date, the
number of years obtained by dividing:




     (1) the sum of the products obtained by multiplying (a) the amount of each then
remaining installment, sinking fund, serial maturity or other required payments of
principal, including payment at final maturity, in respect of the Indebtedness, by (b) the
number of years (calculated to the nearest one-twelfth) that will elapse between such date
and the making of such payment; by




     (2) the then outstanding principal amount of such Indebtedness.



     “Xcel” means Xcel Energy Inc., a Minnesota corporation.



     “Xcel Indemnification Agreements” means: (i) the Indemnification Agreement, dated as of
December 5, 2003, between Xcel Energy Inc., Northern States Power Company and the Company; and (ii)
the Indemnification Agreement, dated as of December 5, 2003, between Xcel Energy Inc., Northern
States Power Company and the Company.



     Section 1.02 Other Definitions.



	 	 	 	 	 
	 	 	Defined in
	Term	 	Section
	 
	 	 	 	 
	“Affiliate Transaction”
	 	 	4.11	 
	“Asset Sale Offer”
	 	 	4.10	 
	“Change of Control Offer”
	 	 	4.14	 
	“Change of Control Payment”
	 	 	4.14	 
	“Change of Control Payment Date”
	 	 	4.14	 
	“Covenant Defeasance”
	 	 	8.03	 






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	 	 	Defined in
	Term	 	Section
	 
	 	 	 	 
	“Event of Default”
	 	 	6.01	 
	“Excess Proceeds”
	 	 	4.10	 
	“incur”
	 	 	4.09	 
	“Legal Defeasance”
	 	 	8.02	 
	“Offer Amount”
	 	 	3.09	 
	“Offer Period”
	 	 	3.09	 
	“Permitted Debt”
	 	 	4.09	 
	“Purchase Date”
	 	 	3.09	 
	“Restricted Payments”
	 	 	4.07	 






     Section 1.03 Incorporation by Reference of Trust Indenture Act.



     Whenever this Supplemental Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Supplemental Indenture.



     The following TIA terms used in this Supplemental Indenture have the following meanings:



     “obligor” on the Notes and the Subsidiary Guarantees means the Company and the Guarantors,
respectively, and any successor obligor upon the Notes and the Subsidiary Guarantees, respectively.



     All other terms used in this Supplemental Indenture that are defined by the TIA, defined by
TIA reference to another statute or defined by SEC rule under the TIA have the meanings so assigned
to them. All other capitalized terms used herein and not otherwise defined shall have the meanings
provided in the Base Indenture.



     Section 1.04 Rules of Construction.



     Unless the context otherwise requires:




     (1) a term has the meaning assigned to it;




     (2) an accounting term not otherwise defined has the meaning assigned to it in
accordance with GAAP;




     (3) “or” is not exclusive;




     (4) words in the singular include the plural, and in the plural include the singular;




     (5) “will” shall be interpreted to express a command;




     (6) provisions apply to successive events and transactions;




     (7) references to sections of or rules under the Securities Act will be deemed to
include substitute, replacement of successor sections or rules adopted by the SEC from
time to time; and




     (8) references to sections of the Indenture refer to sections of this Supplemental
Indenture.



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     Section 1.05 Relationship with Base Indenture.



     The terms and provisions contained in the Base Indenture shall constitute, and are hereby
expressly made, a part of this Supplemental Indenture and the Company, the Guarantors and the
Trustee, by their execution and delivery of this Supplemental Indenture, expressly agree to such
terms and provisions and to be bound thereby. However, to the extent any provision of the Base
Indenture conflicts with the express provisions of this Supplemental Indenture, the provisions of
this Supplemental Indenture shall govern and be controlling.



     The Trustee accepts the amendment of the Base Indenture effected by this Supplemental
Indenture and agrees to execute the trust created by the Base Indenture as hereby amended, but only
upon the terms and conditions set forth in the Indenture, including the terms and provisions
defining and limiting the liabilities and responsibilities of the Trustee in the performance of the
trust created by the Base Indenture, and without limiting the generality of the foregoing, the
Trustee shall not be responsible in any manner whatsoever for or with respect to any of the
recitals or statements contained herein, all of which recitals or statements are made solely by the
Company and the Guarantors, or for or with respect to (1) the validity or sufficiency of this
Supplemental Indenture or any of the terms or provisions hereof, (2) the proper authorization
hereof by the Company and the Guarantors, (3) the due execution hereof by the Company and the
Guarantors or (4) the consequences (direct or indirect and whether deliberate or inadvertent) of
any amendment herein provided for, and the Trustee makes no representation with respect to any such
matters.



ARTICLE 2.

THE NOTES




     Section 2.01 Form and Dating.



     (a) General. The Notes shall be issued in registered global form without interest coupons.
The Notes and the Trustee’s certificate of authentication shall be substantially in the form of
Exhibit A hereto. The Notes may have notations, legends or endorsements required by law, stock
exchange rule or usage. The Company shall furnish any such notations, legends or endorsements to
the Trustee in writing. Each Note shall be dated the date of its authentication. The Notes shall
be in denominations of $5,000 and integral multiples of $5,000.



     The terms and provisions contained in the Notes shall constitute, and are hereby expressly
made, a part of the Indenture and the Company, the Guarantors and the Trustee, by their execution
and delivery of this Supplemental Indenture, expressly agree to such terms and provisions and to be
bound thereby. However, to the extent any provision of any Note conflicts with the express
provisions of the Base Indenture, the provisions of the Note shall govern and be controlling, and
to the extent any provision of the Note conflicts with the express provisions of this Supplemental
Indenture, the provisions of this Supplemental Indenture shall govern and be controlling.



     (b) Global Notes. Notes issued in global form shall be substantially in the form of Exhibit A
attached hereto (including the Global Note Legend thereon). Notes issued in definitive form shall
be substantially in the form of Exhibit A attached hereto (but without the Global Note Legend
thereon). Each Global Note shall represent such of the outstanding Notes as will be specified
therein and each shall provide that it represents the aggregate principal amount of outstanding
Notes from time to time as reflected in the records of the Trustee and that the aggregate principal
amount of outstanding Notes represented thereby may from time to time be reduced or increased, as
appropriate, to reflect exchanges and redemptions. The Trustee’s records shall be noted to reflect
the amount of any increase or decrease



31









 







in the aggregate principal amount of outstanding Notes represented thereby, in accordance with
instructions given by the Holder thereof as required by Section 2.04 hereof.



     Section 2.02 Execution and Authentication.



     One Officer must sign the Notes for the Company by manual or facsimile signature.



     If an Officer whose signature is on a Note no longer holds that office at the time a Note is
authenticated, the Note will nevertheless be valid.



     A Note will not be valid until authenticated by the manual signature of the Trustee. The
signature will be conclusive evidence that the Note has been authenticated under this Supplemental
Indenture.



     The Trustee shall, upon receipt of a Company Order, authenticate Notes for original issue
under this Supplemental Indenture, including any Additional Notes issued pursuant to Section 2.05
hereof. The aggregate principal amount of Notes outstanding at any time may not exceed the
aggregate principal amount of Notes authorized for issuance by the Company pursuant to one or more
Company Orders, except as provided in Section 2.8 of the Base Indenture.



     The Trustee may appoint an authenticating agent acceptable to the Company to authenticate
Notes. An authenticating agent may authenticate Notes whenever the Trustee may do so. Each
reference in this Supplemental Indenture to authentication by the Trustee includes authentication
by such agent. An authenticating agent has the same rights as an Agent to deal with Holders, the
Company or an Affiliate of the Company.



     Section 2.03 Holder Lists.



     The Trustee shall preserve in as current a form as is reasonably practicable the most recent
list available to it of the names and addresses of all Holders and shall otherwise comply with TIA
§ 312(a). If the Trustee is not the Registrar, the Company shall furnish to the Trustee at least
seven Business Days before each interest payment date and at such other times as the Trustee may
request in writing, a list in such form and as of such date as the Trustee may reasonably require
of the names and addresses of the Holders and the Company shall otherwise comply with TIA § 312(a).



     Section 2.04 Transfer and Exchange.



     (a) Transfer and Exchange of Global Notes. A Global Note may not be transferred as a whole
except by the Depositary to a nominee of the Depositary, by a nominee of the Depositary to the
Depositary or to another nominee of the Depositary, or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary. All Global Notes shall be
exchanged by the Company for Definitive Notes if:




     (1) the Company delivers to the Trustee notice from the Depositary that it is
unwilling or unable to continue to act as Depositary or that it is no longer a clearing
agency registered under the Exchange Act and, in either case, a successor Depositary is
not appointed by the Company within 120 days after the date of such notice from the
Depositary;




     (2) the Company in its sole discretion determines that the Global Notes (in whole but
not in part) should be exchanged for Definitive Notes and delivers a written notice to
such effect to the Trustee; or



32









 






     (3) there has occurred and is continuing a Default or Event of Default with respect
to the Notes.



     Upon the occurrence of any of the preceding events in (1), (2) or (3) above, Definitive Notes
shall be issued in such names and in any approved denominations as the Depositary shall instruct
the Trustee. Global Notes also may be exchanged or replaced, in whole or in part, as provided in
Sections 2.8 and 2.11 of the Base Indenture. Every Note authenticated and delivered in exchange
for, or in lieu of, a Global Note or any portion thereof, pursuant to this Section 2.04 hereof or
Sections 2.8 and 2.11 of the Base Indenture, shall be authenticated and delivered in the form of,
and shall be, a Global Note. A Global Note may not be exchanged for another Note other than as
provided in this Section 2.04(a), however, beneficial interests in a Global Note may be transferred
and exchanged as provided in Section 2.04(b), (c) and (d) hereof.



     (b) Transfer and Exchange of Beneficial Interests in the Global Notes. The transfer and
exchange of beneficial interests in the Global Notes shall be effected through the Depositary, in
accordance with the provisions of this Supplemental Indenture and the Applicable Procedures.
Transfers of beneficial interests in the Global Notes also will require compliance with either
subparagraph (1) or (2) below, as applicable, as well as one or more of the other following
subparagraphs, as applicable:




     (1) Transfer of Beneficial Interests in the Same Global Note. Beneficial interests
in any Global Note may be transferred to Persons who take delivery thereof in the form of
a beneficial interest in a Global Note. No written orders or instructions shall be
required to be delivered to the Registrar to effect the transfers described in this
Section 2.04(b)(1).




     (2) All Other Transfers and Exchanges of Beneficial Interests in Global Notes. In
connection with all transfers and exchanges of beneficial interests that are not subject
to Section 2.04(b)(1) above, the transferor of such beneficial interest must deliver to
the Registrar both:




     (A) a written order from a Participant or an Indirect Participant given to the
Depositary in accordance with the Applicable Procedures directing the Depositary to
credit or cause to be credited a beneficial interest in another Global Note in an
amount equal to the beneficial interest to be transferred or exchanged; and




     (B) instructions given in accordance with the Applicable Procedures containing
information regarding the Participant account to be credited with such increase.




     Upon satisfaction of all of the requirements for transfer or exchange of beneficial
interests in Global Notes contained in this Supplemental Indenture and the Notes or
otherwise applicable under the Securities Act, the Trustee shall adjust the principal amount
of the relevant Global Note(s) pursuant to Section 2.04(g) hereof.



     (c) Transfer or Exchange of Beneficial Interests in Global Notes for Definitive Notes.




     (1) If any holder of a beneficial interest in a Global Note proposes to exchange such
beneficial interest for a Definitive Note or to transfer such beneficial interest to a
Person who takes delivery thereof in the form of a Definitive Note, then, upon
satisfaction of the conditions set forth in Section 2.04(b)(2) hereof, the Trustee shall
cause the aggregate principal amount of the applicable Global Note to be reduced
accordingly pursuant to Section 2.04(g) hereof, and the Company shall execute and the
Trustee shall authenticate and deliver to the Person designated in the instructions a
Definitive Note in the appropriate principal amount. Any Definitive Note issued in
exchange for a beneficial interest pursuant to this Section 2.04(c)(1)



33









 







shall be registered in such name or names and in such authorized denomination or
denominations as the holder of such beneficial interest requests through instructions to
the Registrar from or through the Depositary and the Participant or Indirect Participant.
The Trustee shall deliver such Definitive Notes to the Persons in whose names such Notes
are so registered.



     (d) Transfer and Exchange of Definitive Notes for Beneficial Interests in Global Notes.




     A Holder of a Definitive Note may exchange such Note for a beneficial interest in a
Global Note or transfer such Definitive Notes to a Person who takes delivery thereof in the
form of a beneficial interest in a Global Note at any time. Upon receipt of a request for
such an exchange or transfer, the Trustee shall cancel the applicable Definitive Note and
increase or cause to be increased the aggregate principal amount of one of the Global Notes.




     If any such exchange or transfer from a Definitive Note to a beneficial interest is
effected pursuant to the previous paragraph at a time when a Global Note has not yet been
issued, the Company shall issue and, upon receipt of a Company Order in accordance with
Section 2.02 hereof, the Trustee shall authenticate one or more Global Notes in an aggregate
principal amount equal to the principal amount of Definitive Notes so transferred.




     A Holder of Definitive Notes may transfer such Notes to a Person who takes delivery
thereof in the form of a Definitive Note.



     (e) Transfer and Exchange of Definitive Notes for Definitive Notes. Upon request by a Holder
of Definitive Notes and such Holder’s compliance with the provisions of this Section 2.04(e), the
Registrar shall register the transfer or exchange of Definitive Notes. Prior to such registration
of transfer or exchange, the requesting Holder must present or surrender to the Registrar the
Definitive Notes duly endorsed or accompanied by a written instruction of transfer in form
satisfactory to the Registrar duly executed by such Holder or by its attorney, duly authorized in
writing. In addition, the requesting Holder must provide any additional certifications, documents
and information, as applicable, required pursuant to the following provisions of this Section
2.04(e).



     (f) Legends. A legend in substantially the following form will appear on the face of all
Global Notes issued under this Supplemental Indenture unless specifically stated otherwise in the
applicable provisions of this Supplemental Indenture.


“THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE TWENTY-SECOND SUPPLEMENTAL
INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS
HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (1) THE TRUSTEE
MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 2.04 OF THE TWENTY-SECOND
SUPPLEMENTAL INDENTURE, (2) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO
SECTION 2.04(a) OF THE TWENTY-SECOND SUPPLEMENTAL INDENTURE, (3) THIS GLOBAL NOTE MAY BE DELIVERED
TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.12 OF THE BASE INDENTURE AND (4) THIS GLOBAL
NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF NRG ENERGY,
INC.



UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE FORM, THIS NOTE MAY
NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A
NOMINEE OF THE


34









 






DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH
NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS
CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER
STREET, NEW YORK, NEW YORK) (“DTC”), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH
OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.”




     (g) Cancellation and/or Adjustment of Global Notes. At such time as all beneficial interests
in a particular Global Note have been exchanged for Definitive Notes or a particular Global Note
has been redeemed, repurchased or canceled in whole and not in part, each such Global Note shall be
returned to or retained and canceled by the Trustee in accordance with Section 2.12 of the Base
Indenture. At any time prior to such cancellation, if any beneficial interest in a Global Note is
exchanged for or transferred to a Person who will take delivery thereof in the form of a beneficial
interest in another Global Note or for Definitive Notes, the principal amount of Notes represented
by such Global Note will be reduced accordingly and a notation will be made on the records
maintained by the Trustee or by the Depositary at the direction of the Trustee to reflect such
reduction; and if the beneficial interest is being exchanged for or transferred to a Person who
will take delivery thereof in the form of a beneficial interest in another Global Note, such other
Global Note will be increased accordingly and a notation will be made on the records maintained by
the Trustee or by the Depositary at the direction of the Trustee to reflect such increase.



     (h) General Provisions Relating to Transfers and Exchanges.




     (1) To permit registrations of transfers and exchanges, the Company shall execute and
the Trustee shall authenticate Global Notes and Definitive Notes upon receipt of a Company
Order in accordance with Section 2.02 hereof or at the Registrar’s request.




     (2) No service charge shall be made to a Holder of a Global Note or to a Holder of a
Definitive Note for any registration of transfer or exchange, but the Company may require
payment of a sum sufficient to cover any transfer tax or similar governmental charge
payable in connection therewith (other than any such transfer taxes or similar
governmental charge payable upon exchange or transfer pursuant to Sections 3.06, 3.09,
4.10, 4.14 and 9.05 hereof and Section 2.11 of the Base Indenture).




     (3) The Registrar shall not be required to register the transfer of or exchange any
Note selected for redemption in whole or in part, except the unredeemed portion of any
Note being redeemed in part.




     (4) All Global Notes and Definitive Notes issued upon any registration of transfer or
exchange of Global Notes or Definitive Notes shall be the valid obligations of the
Company, evidencing the same debt, and entitled to the same benefits under this
Supplemental Indenture, as the Global Notes or Definitive Notes surrendered upon such
registration of transfer or exchange.




     (5) The Company shall not be required:



35









 






     (A) to issue, to register the transfer of or to exchange any Notes during a
period beginning at the opening of business 15 days before the day of any selection
of Notes for redemption under Section 3.02 hereof and ending at the close of
business on the day of selection;




     (B) to register the transfer of or to exchange any Note selected for redemption
in whole or in part, except the unredeemed portion of any Note being redeemed in
part; or




     (C) to register the transfer of or to exchange a Note between a record date and
the next succeeding interest payment date.




     (6) Prior to due presentment for the registration of a transfer of any Note, the
Trustee, any Agent and the Company may deem and treat the Person in whose name any Note is
registered as the absolute owner of such Note for the purpose of receiving payment of
principal of and interest on such Notes and for all other purposes, and none of the
Trustee, any Agent or the Company shall be affected by notice to the contrary.




     (7) The Trustee shall authenticate Global Notes and Definitive Notes in accordance
with the provisions of Section 2.02 hereof.




     (8) All orders, certifications, certificates and Opinions of Counsel required to be
submitted to the Registrar pursuant to this Section 2.04 to effect a registration of
transfer or exchange may be submitted by facsimile.



     Section 2.05 Issuance of Additional Notes.



     The Company shall be entitled, upon delivery of an Officers’ Certificate, Opinion of Counsel
and Company Order, subject to its compliance with Sections 4.09 hereof, to issue Additional Notes
under this Supplemental Indenture which shall have identical terms as the Initial Notes issued on
the Issue Date, other than with respect to the date of issuance and issue price. The Initial Notes
issued on the Issue Date and any Additional Notes issued shall be treated as a single class for all
purposes under this Supplemental Indenture.



     With respect to any Additional Notes, the Company shall set forth in a resolution of its Board
of Directors and an Officers’ Certificate, a copy of each which shall be delivered to the Trustee,
the following information:




     (a) the aggregate principal amount of such Additional Notes to be authenticated and
delivered pursuant to this Supplemental Indenture; and




     (b) the issue price, the issue date and the CUSIP number of such Additional Notes.



ARTICLE 3.

REDEMPTION AND PREPAYMENT




     Section 3.01 Notices to Trustee.



     If the Company elects to redeem Notes pursuant to the optional redemption provisions of
Section 3.07 hereof, it must furnish to the Trustee, at least 30 days (45 days in the case of a
partial redemption) but not more than 60 days before a redemption date, an Officers’ Certificate
setting forth:



36









 






     (1) the clause of this Supplemental Indenture pursuant to which the redemption shall
occur;




     (2) the redemption date;




     (3) the principal amount of Notes to be redeemed; and




     (4) the redemption price.



     Section 3.02 Selection of Notes to Be Redeemed or Purchased.



     If less than all of the Notes are to be redeemed at any time, the Trustee shall select Notes
for redemption on a pro rata basis among all outstanding Notes or, if the Notes are listed on any
national securities exchange, in compliance with the requirements of the principal national
securities exchange on which the Notes are listed, in either case, unless otherwise required by
law.



     In the event of partial redemption by lot, the particular Notes to be redeemed or purchased
shall be selected, unless otherwise provided herein, not less than 30 nor more than 60 days prior
to the redemption by the Trustee from the outstanding Notes not previously called for redemption.



     The Trustee shall promptly notify the Company in writing of the Notes selected for redemption
and, in the case of any Note selected for partial redemption, the principal amount thereof to be
redeemed. Notes and portions of Notes selected shall be in amounts of $5,000 or whole multiples of
$5,000 in excess of $5,000; except that if all of the Notes of a Holder are to be redeemed, the
entire outstanding amount of Notes held by such Holder, even if not a multiple of $5,000, shall be
redeemed. Except as provided in the preceding sentence, provisions of this Supplemental Indenture
that apply to Notes called for redemption also apply to portions of Notes called for redemption.



     No Notes of $5,000 or less shall be redeemed in part. Notices of redemption shall be mailed
by first class mail at least 30 but not more than 60 days before the redemption date to each Holder
of Notes to be redeemed at its registered address, except that redemption notices may be mailed
more than 60 days prior to a redemption date if the notice is issued in connection with a
defeasance of the Notes or a satisfaction and discharge of this Supplemental Indenture.



     If any Note is to be redeemed in part only, the notice of redemption that relates to that Note
shall state the portion of the principal amount of that Note that is to be redeemed. A new Note in
principal amount equal to the unredeemed portion of the original Note shall be issued in the name
of the Holder of notes upon cancellation of the original Note. Notes called for redemption become
due on the date fixed for redemption. On and after the redemption date, interest ceases to accrue
on notes or portions of them called for redemption.



     Section 3.03 Notice of Redemption.



     At least 30 days but not more than 60 days before a redemption date, the Company shall mail or
cause to be mailed, by first class mail, a notice of redemption to each Holder whose Notes are to
be redeemed at its registered address, except that redemption notices may be mailed more than 60
days prior to a redemption date if the notice is issued in connection with a defeasance of the
Notes or a satisfaction and discharge of this Supplemental Indenture pursuant to Article 8 or 11 of
this Supplemental Indenture.



     The notice will identify the Notes to be redeemed and will state:



37









 






     (1) the redemption date;




     (2) the redemption price;




     (3) if any Note is being redeemed in part, the portion of the principal amount of
such Note to be redeemed and that, after the redemption date upon surrender of such Note,
a new Note or Notes in principal amount equal to the unredeemed portion will be issued
upon cancellation of the original Note;




     (4) the name and address of the Paying Agent;




     (5) that Notes called for redemption must be surrendered to the Paying Agent to
collect the redemption price;




     (6) that, unless the Company defaults in making such redemption payment, interest on
Notes called for redemption ceases to accrue on and after the redemption date;




     (7) the paragraph of the Notes and/or section of this Supplemental Indenture pursuant
to which the Notes called for redemption are being redeemed; and




     (8) that no representation is made as to the correctness or accuracy of the CUSIP
number, if any, listed in such notice or printed on the Notes.



     At the Company’s request, the Trustee shall give the notice of redemption in the Company’s
name and at its expense; provided, however, that the Company has delivered to the Trustee, at least
45 days prior to the redemption date (or such shorter period as the Trustee in its sole discretion
may allow), an Officers’ Certificate requesting that the Trustee give such notice and setting forth
the information to be stated in such notice as provided in the preceding paragraph.



     Section 3.04 Effect of Notice of Redemption.



     Once notice of redemption is mailed in accordance with Section 3.03 hereof, Notes called for
redemption become irrevocably due and payable on the redemption date at the redemption price. A
notice of redemption may not be conditional.



     Section 3.05 Deposit of Redemption or Purchase Price.



     One Business Day prior to the redemption or Purchase Date, the Company shall deposit with the
Trustee or with the Paying Agent money sufficient to pay the redemption or purchase price of,
accrued interest, and premium, if any, on all Notes to be redeemed or purchased on that date.
Promptly after the Company’s written request, the Trustee or the Paying Agent shall promptly return
to the Company any money deposited with the Trustee or the Paying Agent by the Company in excess of
the amounts necessary to pay the redemption or purchase price of, accrued interest, and premium, if
any, on, all Notes to be redeemed or purchased.



     If the Company complies with the provisions of the preceding paragraph, on and after the
redemption or Purchase Date, interest will cease to accrue on the Notes or the portions of Notes
called for redemption or purchase. If a Note is redeemed or purchased on or after an interest
record date but on or prior to the related interest payment date, then any accrued and unpaid
interest shall be paid to the Person in whose name such Note was registered at the close of
business on such record date. If any Note called for redemption or purchase is not so paid upon
surrender for redemption or purchase because of the



38









 







failure of the Company to comply with the preceding paragraph, interest shall be paid on the
unpaid principal, from the redemption or Purchase Date until such principal is paid, and to the
extent lawful on any interest not paid on such unpaid principal, in each case at the rate provided
in the Notes and in Section 4.01 hereof.



     Section 3.06 Notes Redeemed or Purchased in Part.



     Upon surrender of a Note that is redeemed or purchased in part, the Company shall issue and,
upon receipt of a Company Order, the Trustee shall authenticate for the Holder at the expense of
the Company a new Note equal in principal amount to the unredeemed or unpurchased portion of the
Note surrendered.



     Section 3.07 Optional Redemption.



     (a) At any time prior to June 15, 2012, the Company may on any one or more occasions redeem up
to 35% of the aggregate principal amount of the Notes issued under this Supplemental Indenture,
upon not less than 30 nor more than 60 days’ notice, at a redemption price of 108.50% of the
principal amount, plus accrued and unpaid interest to the redemption date, with the proceeds of one
or more Equity Offerings; provided that:




     (1) at least 65% of the aggregate principal amount of the Initial Notes issued under
this Supplemental Indenture (excluding Notes held by the Company and its Subsidiaries)
remains outstanding immediately after the occurrence of such redemption; and




     (2) the redemption occurs within 90 days of the date of the closing of such Equity
Offering.



     (b) At any time prior to June 15, 2014, the Company may on any one or more occasions redeem
all or a part of the Notes, upon not less than 30 nor more than 60 days’ prior notice, at a
redemption price equal to 100% of the principal amount of Notes redeemed plus the Applicable
Premium as of, and accrued and unpaid interest if any, to the redemption date, subject to the
rights of Holders of Notes on the relevant record date to receive interest due on the relevant
interest payment date.



     (c) Except pursuant to clauses (a) and (b) above, the Notes are not redeemable at the
Company’s option prior to June 15, 2014. The Company is not prohibited, however, from acquiring
the notes in market transactions by means other than a redemption, whether pursuant to a tender
offer or otherwise, assuming such action does not otherwise violate the Indenture.



     (d) On or after June 15, 2014, the Company may on any one or more occasions redeem all or a
part of the Notes upon not less than 30 nor more than 60 days’ notice, at the redemption prices
(expressed as percentages of principal amount) set forth below plus accrued and unpaid interest on
the Notes redeemed, to the applicable redemption date, if redeemed during the twelve-month period
beginning on June 15 of the years indicated below, subject to the rights of Holders on the relevant
record date to receive interest on the relevant interest payment date:



	 	 	 	 	 
	Year	 	Percentage
	2014
	 	 	104.25	%
	2015
	 	 	102.83	%
	2016
	 	 	101.42	%
	2017 and thereafter
	 	 	100.00	%






39









 






     (e) Any redemption pursuant to this Section 3.07 shall be made pursuant to the provisions of
Section 3.01 through 3.06 hereof.



     Section 3.08 Mandatory Redemption.



     Except as required in Section 3.09 hereof, the Company is not required to make mandatory
redemption or sinking fund payments with respect to the Notes.



     Section 3.09 Offer to Purchase by Application of Excess Proceeds.



     In the event that, pursuant to Section 4.10 hereof, the Company is required to commence an
Asset Sale Offer, it shall follow the procedures specified below.



     The Asset Sale Offer shall be made to all Holders of Notes and all holders of other
Indebtedness (including Indebtedness evidenced by Existing Senior Notes) that is pari passu with
the Notes containing provisions similar to those set forth in this Supplemental Indenture with
respect to offers to purchase or redeem with the proceeds of sales of assets. The Asset Sale Offer
shall remain open for a period of at least 20 Business Days following its commencement and not more
than 30 Business Days, except to the extent that a longer period is required by Applicable Law (the
“Offer Period”). No later than three Business Days after the termination of the Offer Period (the
“Purchase Date”), the Company shall apply all Excess Proceeds (the “Offer Amount”) to the purchase
of Notes and such other pari passu Indebtedness (on a pro rata basis, if applicable) or, if less
than the Offer Amount has been tendered, all Notes and other Indebtedness tendered in response to
the Asset Sale Offer. Payment for any Notes so purchased shall be made in the same manner as
interest payments are made.



     If the Purchase Date is on or after an interest record date and on or before the related
interest payment date, any accrued and unpaid interest shall be paid to the Person in whose name a
Note is registered at the close of business on such record date, and no additional interest will be
payable to Holders who tender Notes pursuant to the Asset Sale Offer.



     Upon the commencement of an Asset Sale Offer, the Company shall send, by first class mail, a
notice to the Trustee and each of the Holders. The notice will contain all instructions and
materials necessary to enable such Holders to tender Notes pursuant to the Asset Sale Offer. The
notice, which will govern the terms of the Asset Sale Offer, will state:




     (1) that the Asset Sale Offer is being made pursuant to this Section 3.09 and Section
4.10 hereof and the length of time the Asset Sale Offer will remain open;




     (2) the Offer Amount, the purchase price and the Purchase Date;




     (3) that any Note not tendered or accepted for payment will continue to accrue
interest;




     (4) that, unless the Company defaults in making such payment, any Note accepted for
payment pursuant to the Asset Sale Offer shall cease to accrue interest after the Purchase
Date;




     (5) that Holders electing to have a Note purchased pursuant to an Asset Sale Offer
may elect to have Notes purchased in denominations of $5,000, or integral multiples of
$5,000 in excess of $5,000;




     (6) that Holders electing to have a Note purchased pursuant to any Asset Sale Offer
shall be required to surrender the Note, with the form entitled “Option of Holder to Elect



40









 







Purchase” on the reverse of the Note completed, or transfer by book-entry transfer,
to the Company, a Depositary, if appointed by the Company, or a Paying Agent at the
address specified in the notice at least three days before the Purchase Date;




     (7) that Holders shall be entitled to withdraw their election if the Company, the
Depositary or the Paying Agent, as the case may be, receives, not later than the
expiration of the Offer Period, a telegram, telex, facsimile transmission or letter
setting forth the name of the Holder, the principal amount of the Note the Holder
delivered for purchase and a statement that such Holder is withdrawing his election to
have such Note purchased;




     (8) that, if the aggregate principal amount of Notes and other pari passu
Indebtedness surrendered in connection with the Asset Sale Offer exceeds the Offer Amount,
the Company shall select the Notes and other pari passu Indebtedness to be purchased on a
pro rata basis based on the principal amount of Notes and such other pari passu
Indebtedness surrendered (with such adjustments as may be deemed appropriate by the
Company so that only Notes in denominations of $5,000, or integral multiples of $5,000 in
excess of $5,000, will be purchased); and




     (9) that Holders whose Notes were purchased only in part will be issued new Notes
equal in principal amount to the unpurchased portion of the Notes surrendered (or
transferred by book-entry transfer).



     On or before the Purchase Date, the Company shall, to the extent lawful, accept for payment,
on a pro rata basis to the extent necessary, the Offer Amount of Notes or portions thereof tendered
pursuant to the Asset Sale Offer, or if less than the Offer Amount has been tendered, all Notes
tendered, and shall deliver to the Trustee an Officers’ Certificate stating that such Notes or
portions thereof were accepted for payment by the Company in accordance with the terms of this
Section 3.09. The Company, the Depositary or the Paying Agent, as the case may be, shall promptly
(but in any case not later than five days after the Purchase Date) mail or deliver to each
tendering Holder an amount equal to the purchase price of the Notes tendered by such Holder and
accepted by the Company for purchase, and the Company shall promptly issue a new Note, and the
Trustee, upon written request from the Company shall authenticate and mail or deliver such new Note
to such Holder, in a principal amount equal to any unpurchased portion of the Note surrendered.
Any Note not so accepted shall be promptly mailed or delivered by the Company to the Holder
thereof. The Company shall publicly announce the results of the Asset Sale Offer on or as soon as
practicable after the Purchase Date.



     Other than as specifically provided in this Section 3.09, any purchase pursuant to this
Section 3.09 shall be made pursuant to the provisions of Sections 3.01 through 3.06 hereof.



ARTICLE 4.

COVENANTS




     Section 4.01 Payment of Notes.



     The Company shall pay or cause to be paid the principal of, premium, if any, and interest on
the Notes on the dates and in the manner provided in the Notes. Principal, premium, if any, and
interest will be considered paid on the date due if the Paying Agent, if other than the Company or
a Subsidiary thereof, holds as of 10:00 a.m. Eastern Time on the due date money deposited by the
Company in immediately available funds and designated for and sufficient to pay all principal,
premium, if any, and interest then due.



41









 





     Section 4.02 Maintenance of Office or Agency.



     The Company shall maintain in the Borough of Manhattan, the City of New York, an office or
agency (which may be an office of the Trustee or an affiliate of the Trustee or Registrar) where
Notes may be surrendered for registration of transfer or for exchange and where notices and demands
to or upon the Company in respect of the Notes and the Indenture may be served. The Company shall
give prompt written notice to the Trustee of the location, and any change in the location, of such
office or agency. If at any time the Company fails to maintain any such required office or agency
or fails to furnish the Trustee with the address thereof, such presentations, surrenders, notices
and demands may be made or served at the Corporate Trust Office of the Trustee.



     The Company may also from time to time designate one or more other offices or agencies where
the Notes may be presented or surrendered for any or all such purposes and may from time to time
rescind such designations; provided, however, that no such designation or rescission will in any
manner relieve the Company of its obligation to maintain an office or agency in the Borough of
Manhattan, the City of New York for such purposes. The Company shall give prompt written notice to
the Trustee of any such designation or rescission and of any change in the location of any such
other office or agency.



     The Company hereby designates the Corporate Trust Office of the Trustee as one such office or
agency of the Company in accordance with Section 4.2 of the Base Indenture.



     Section 4.03 Reports.



     (a) Whether or not required by the SEC’s rules and regulations, so long as any Notes are
outstanding, the Company shall furnish to Holders, within the time periods (including any
extensions thereof) specified in the SEC’s rules and regulations:




     (1) all quarterly and annual reports that would be required to be filed with the SEC
on Forms 10-Q and 10-K if the Company were required to file such reports; and




     (2) all current reports that would be required to be filed with the SEC on Form 8-K
if the Company were required to file such reports.



     All such reports shall be prepared in all material respects in accordance with all of the
rules and regulations applicable to such reports. Each annual report on Form 10-K will include a
report on the Company’s consolidated financial statements by the Company’s independent registered
public accounting firm. In addition, the Company shall file a copy of each of the reports referred
to in clauses (1) and (2) above with the SEC for public availability within the time periods
specified in the rules and regulations applicable to such reports (unless the SEC will not accept
such a filing). To the extent such filings are made, the reports shall be deemed to be furnished
to the Trustee and Holders of Notes.



     If, at any time, the Company is no longer subject to the periodic reporting requirements of
the Exchange Act for any reason, the Company shall nevertheless continue filing the reports
specified in this Section 4.03(a) with the SEC within the time periods specified above unless the
SEC will not accept such a filing. The Company agrees that it shall not take any action for the
purpose of causing the SEC not to accept any such filings. If, notwithstanding the foregoing, the
SEC will not accept the Company’s filings for any reason, the Company shall post the reports
referred to in this Section 4.03(a) on its website within the time periods that would apply if the
Company were required to file those reports with the SEC. The Company shall at all times comply
with TIA § 314(a).



42









 





     (b) In addition, the Company and the Guarantors agree that, for so long as any Notes remain
outstanding, at any time they are not required to file the reports required by the preceding
paragraphs with the Commission, they shall furnish to the Holders and to securities analysts and
prospective investors, upon their request, the information required to be delivered pursuant to
Rule 144A(d)(4) under the Securities Act.



     Section 4.04 Compliance Certificate.



     (a) The Company and each Guarantor (to the extent that such Guarantor is so required under the
TIA) shall deliver to the Trustee, within 90 days after the end of each fiscal year, an Officers’
Certificate stating that a review of the activities of the Company and its Subsidiaries during the
preceding fiscal year has been made under the supervision of the signing Officers with a view to
determining whether the Company has kept, observed, performed and fulfilled its obligations under
the Indenture, and further stating, as to each such Officer signing such certificate, that to the
best of his or her knowledge the Company has kept, observed, performed and fulfilled each and every
covenant contained in the Indenture and is not in default in the performance or observance of any
of the terms, provisions and conditions of the Indenture (or, if a Default or Event of Default has
occurred, describing all such Defaults or Events of Default of which he or she may have knowledge
and what action the Company is taking or proposes to take with respect thereto) and that to the
best of his or her knowledge no event has occurred and remains in existence by reason of which
payments on account of the principal of or interest, if any, on the Notes is prohibited or if such
event has occurred, a description of the event and what action the Company is taking or proposes to
take with respect thereto. The Company’s fiscal year ends December 31st.



     (b) So long as any of the Notes are outstanding, the Company shall deliver to the Trustee,
forthwith upon any Officer becoming aware of any Default or Event of Default, an Officers’
Certificate specifying such Default or Event of Default and what action the Company is taking or
proposes to take with respect thereto.



     Section 4.05 Taxes.



     The Company shall pay, and shall cause each of its Subsidiaries to pay, prior to delinquency,
all material taxes, assessments, and governmental levies except such as are contested in good faith
and by appropriate proceedings or where the failure to effect such payment is not adverse in any
material respect to the Holders.



     Section 4.06 Stay, Extension and Usury Laws.



     The Company and each of the Guarantors covenants (to the extent that it may lawfully do so)
that they shall not at any time insist upon, plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay, extension or usury law wherever enacted, now or at any time
hereafter in force, that may affect the covenants or the performance of the Indenture; and the
Company and each of the Guarantors (to the extent that they may lawfully do so) hereby expressly
waive all benefit or advantage of any such law, and covenant that they shall not, by resort to any
such law, hinder, delay or impede the execution of any power herein granted to the Trustee, but
shall suffer and permit the execution of every such power as though no such law has been enacted.



     Section 4.07 Restricted Payments.



     (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to,
directly or indirectly:



43









 






     (1) declare or pay any dividend or make any other payment or distribution on account of
the Company’s or any of its Restricted Subsidiaries’ Equity Interests (including, without
limitation, any payment in connection with any merger or consolidation involving the Company
or any of its Restricted Subsidiaries) or to the direct or indirect holders of the Company’s
or any of its Restricted Subsidiaries’ Equity Interests in their capacity as such (other
than dividends or distributions payable in Equity Interests (other than Disqualified Stock)
of the Company or to the Company or a Restricted Subsidiary of the Company);




     (2) purchase, redeem or otherwise acquire or retire for value (including, without
limitation, in connection with any merger or consolidation involving the Company) any Equity
Interests of the Company or any direct or indirect parent of the Company (other than any
such Equity Interests owned by the Company or any Restricted Subsidiary of the Company);




     (3) make any payment on or with respect to, or purchase, redeem, defease or otherwise
acquire or retire for value any Indebtedness of the Company or any Guarantor that is
contractually subordinated to the Notes or any Subsidiary Guarantee of the Notes (excluding
any intercompany Indebtedness between or among the Company and any of its Restricted
Subsidiaries), except (a) a payment of interest or principal at the Stated Maturity thereof
or (b) a payment, purchase, redemption, defeasance, acquisition or retirement of any
subordinated Indebtedness in anticipation of satisfying a sinking fund obligation, principal
installment or payment at final maturity, in each case due within one year of the date of
payment, purchase, redemption, defeasance, acquisition or retirement; or




     (4) make any Restricted Investment


(all such payments and other actions set forth in these clauses (1) through (4) above being
collectively referred to as “Restricted Payments”), unless, at the time of and after giving effect
to such Restricted Payment:





     (1) no Default or Event of Default has occurred and is continuing or would occur as a
consequence of such Restricted Payment; and




     (2) on a pro forma basis after giving effect to such Restricted Payment and any
transaction related thereto, the Debt to Cash Flow Ratio would not have exceeded 5.75 to
1.00; and




     (3) such Restricted Payment, together with the aggregate amount of all other
Restricted Payments made by the Company and its Restricted Subsidiaries since the Issue
Date (excluding Restricted Payments permitted by clauses (2), (3), (4), (6), (7), (8),
(9), (10), (11), and (12) of Section 4.07(b) hereof), is less than the sum, without
duplication, of:




     (A) Consolidated Cash Flow of the Company, minus 140% of Consolidated Interest
Expense of the Company, in each case for the period (taken as one accounting period)
from the beginning of the fiscal quarter during which the Issue Date occurs to the
end of the Company’s most recently ended fiscal quarter for which financial
statements are publicly available at the time of such Restricted Payment, plus




     (B) 100% of the fair market value of any property or assets and the aggregate
net cash proceeds, in each case received by the Company or any of its Restricted
Subsidiaries since the Issue Date in exchange for Qualifying Equity Interests or
from the issue or sale of Qualifying Equity Interests of the Company (other than
Disqualified



44









 







Stock) or from the issue or sale of convertible or exchangeable Disqualified
Stock or convertible or exchangeable debt securities of the Company that have been
converted into or exchanged for such Qualifying Equity Interests (other than
Qualifying Equity Interests (or Disqualified Stock or debt securities) sold to a
Subsidiary of the Company), plus




     (C) to the extent that any Restricted Investment that was made after February
2, 2006 is sold for cash or otherwise liquidated or repaid for cash, the cash return
with respect to such Restricted Investment (less the cost of disposition, if any) to
the extent not already included in the Consolidated Cash Flow of the Company since
the Issue Date, plus




     (D) 100% of any cash received by the Company or a Restricted Subsidiary after
the Issue Date from an Unrestricted Subsidiary, to the extent that such cash was not
otherwise included in Consolidated Cash Flow of the Company for such period, plus




     (E) to the extent that any Unrestricted Subsidiary of the Company is
redesignated as a Restricted Subsidiary after the Issue Date, the fair market value
of the Company’s Investment in such Subsidiary as of the date of such redesignation.



     (b) The provisions of Section 4.07(a) hereof shall not prohibit:




     (1) the payment of any dividend within 90 days after the date of declaration of the
dividend, if at the date of declaration the dividend payment would have complied with the
provisions of this Supplemental Indenture;




     (2) so long as no Default has occurred and is continuing or would be caused thereby,
the making of any Restricted Payment in exchange for, or out of the aggregate proceeds of
the substantially concurrent sale (other than to a Subsidiary of the Company) of, Equity
Interests of the Company (other than Disqualified Stock) or from the contribution of
equity capital (unless such contribution would constitute Disqualified Stock) to the
Company; provided that the amount of any such proceeds that are utilized for any such
Restricted Payment will be excluded from clause (3)(b) of the preceding paragraph;




     (3) so long as no Default has occurred and is continuing or would be caused thereby,
the defeasance, redemption, repurchase or other acquisition of Indebtedness of the Company
or any Guarantor that is contractually subordinated to the Notes or to any Subsidiary
Guarantee with the proceeds from a substantially concurrent incurrence of Permitted
Refinancing Indebtedness;




     (4) the payment of any dividend (or, in the case of any partnership or limited
liability company, any similar distribution) by a Restricted Subsidiary of the Company to
the holders of its Equity Interests on a pro rata basis;




     (5) so long as no Default has occurred and is continuing or would be caused thereby,
(a) the repurchase, redemption or other acquisition or retirement for value of any Equity
Interests of the Company or any Restricted Subsidiary of the Company held by any current
or former officer, director or employee of the Company or any of its Restricted
Subsidiaries pursuant to any equity subscription agreement, stock option agreement,
severance agreement, shareholders’ agreement or similar agreement, employee benefit plan
or (b) the cancellation of Indebtedness owing to the Company or any of its Restricted
Subsidiaries from any current or former officer, director or employee of the Company or
any of its Restricted Subsidiaries in



45









 







connection with a repurchase of Equity Interests of the Company or any of its
Restricted Subsidiaries; provided that the aggregate price paid for the actions in clause
(a) may not exceed $10.0 million in any twelve-month period (with unused amounts in any
period being carried over to succeeding periods) and may not exceed $50.0 million in the
aggregate since the Issue Date; provided, further that (i) such amount in any calendar
year may be increased by the cash proceeds of “key man” life insurance policies received
by the Company and its Restricted Subsidiaries after the Issue Date less any amount
previously applied to the making of Restricted Payments pursuant to this clause (5) since
the Issue Date and (ii) cancellation of the Indebtedness owing to the Company from
employees, officers, directors and consultants of the Company or any of its Restricted
Subsidiaries in connection with a repurchase of Equity Interests of the Company from such
Persons shall be permitted under this clause (5) as if it were a repurchase, redemption,
acquisition or retirement for value subject hereto;




     (6) the repurchase of Equity Interests in connection with the exercise of stock
options to the extent such Equity Interests represent a portion of the exercise price of
those stock options and the repurchases of Equity Interests in connection with the
withholding of a portion of the Equity Interests granted or awarded to an employee to pay
for the taxes payable by such employee upon such grant or award;




     (7) so long as no Default has occurred and is continuing or would be caused thereby,
the declaration and payment of regularly scheduled or accrued dividends to holders of any
class or series of (a) preferred stock outstanding on the Issue Date, (b) Disqualified
Stock of the Company or any Restricted Subsidiary of the Company issued on or after the
Issue Date in accordance with the terms of this Supplemental Indenture and the Existing
Senior Notes or (c) preferred stock issued on or after the Issue Date in accordance with
the terms of this Supplemental Indenture and the Existing Senior Notes or, in the event
that any of the instruments described in (a) through (c) above have been converted into or
exchanged for Qualifying Equity Interests, other Restricted Payments in an amount no
greater than and with timing of such payments not earlier than the dividends that would
have otherwise been payable on such instruments.




     (8) payments to holders of the Company’s Capital Stock in lieu of the issuance of
fractional shares of its Capital Stock;




     (9) the purchase, redemption, acquisition, cancellation or other retirement for a
nominal value per right of any rights granted to all the holders of Capital Stock of the
Company pursuant to any shareholders’ rights plan adopted for the purpose of protecting
shareholders from unfair takeover tactics; provided that any such purchase, redemption,
acquisition, cancellation or other retirement of such rights is not for the purpose of
evading the limitations of this covenant (all as determined in good faith by a senior
financial officer of the Company);




     (10) so long as no Default has occurred and is continuing or would be caused thereby,
upon the occurrence of a Change of Control or Asset Sale and after the completion of the
offer to repurchase the Notes as described in Sections 4.10 and 4.14 hereof (including the
purchase of all Notes tendered), any purchase, defeasance, retirement, redemption or other
acquisition of Indebtedness that is contractually subordinated to the Notes or any
Subsidiary Guarantee required under the terms of such Indebtedness, or any Disqualified
Stock, with, in the case of an Asset Sale, Net Proceeds, as a result of such Change of
Control or Asset Sale;




     (11) the purchase, redemption, acquisition, cancellation or other retirement of
preferred stock of Itiquira to effectuate the Itiquira Refinancing; and



46









 






     (12) so long as no Default has occurred and is continuing or would be caused thereby,
other Restricted Payments since the Issue Date in an aggregate amount not to exceed the
sum of (a) the amount available for Restricted Payments under clause (3) of the second
paragraph of Section 4.07(a) of each of the Existing Indentures as of the Issue Date plus
(b) $250.0 million.



     The amount of all Restricted Payments (other than cash) will be the fair market value on the
date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued
by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted
Payment. The fair market value of any assets or securities that are required to be valued by this
covenant will be determined by a senior financial officer of the Company whose certification with
respect thereto will be delivered to the Trustee.



     Section 4.08 Dividend and Other Payment Restrictions Affecting Subsidiaries.



     (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries (other than
Excluded Subsidiaries) to, directly or indirectly, create or permit to exist or become effective
any consensual encumbrance or restriction on the ability of any Restricted Subsidiary (other than
an Excluded Subsidiary) to:




     (1) pay dividends or make any other distributions on its Capital Stock to the Company
or any of its Restricted Subsidiaries (other than Excluded Subsidiaries), or with respect
to any other interest or participation in, or measured by, its profits, or pay any
indebtedness owed to the Company or any of its Restricted Subsidiaries (other than
Excluded Subsidiaries);




     (2) make loans or advances to the Company or any of its Restricted Subsidiaries
(other than Excluded Subsidiaries); or




     (3) transfer any of its properties or assets to the Company or any of its Restricted
Subsidiaries (other than Excluded Subsidiaries).



     (b) The restrictions in Section 4.08(a) hereof shall not apply to encumbrances or restrictions
existing under or by reason of:




     (1) the Credit Agreement and other agreements governing Existing Indebtedness on the
Issue Date;




     (2) this Supplemental Indenture, the Notes, and the Subsidiary Guarantees (including
the Exchange Notes and related Subsidiary Guarantees);




     (3) applicable law, rule, regulation or order;




     (4) customary non-assignment provisions in contracts, agreements, leases, permits and
licenses;




     (5) purchase money obligations for property acquired and Capital Lease Obligations
that impose restrictions on the property purchased or leased of the nature described in
clause (3) of the preceding paragraph;




     (6) any agreement for the sale or other disposition of the stock or assets of a
Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending
the sale or other disposition;



47









 






     (7) Permitted Refinancing Indebtedness; provided that the restrictions contained in
the agreements governing such Permitted Refinancing Indebtedness are not materially more
restrictive, taken as a whole, than those contained in the agreements governing the
Indebtedness being refinanced;




     (8) Liens permitted to be incurred under Section 4.12 hereof and associated
agreements that limit the right of the debtor to dispose of the assets subject to such
Liens;




     (9) provisions limiting the disposition or distribution of assets or property in
joint venture, partnership, membership, stockholder and limited liability company
agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and
other similar agreements, including owners’, participation or similar agreements governing
projects owned through an undivided interest, which limitation is applicable only to the
assets that are the subject of such agreements;




     (10) restrictions on cash or other deposits or net worth imposed by customers under
contracts entered into in connection with a Permitted Business;




     (11) restrictions or conditions contained in any trading, netting, operating,
construction, service, supply, purchase, sale or similar agreement to which the Company or
any Restricted Subsidiary of the Company is a party entered into in connection with a
Permitted Business; provided that such agreement prohibits the encumbrance of solely the
property or assets of the Company or such Restricted Subsidiary that are the subject of
that agreement, the payment rights arising thereunder and/or the proceeds thereof and not
to any other asset or property of the Company or such Restricted Subsidiary or the assets
or property of any other Restricted Subsidiary;




     (12) any instrument governing Indebtedness or Capital Stock of a Person acquired by
the Company or any of its Restricted Subsidiaries as in effect at the time of such
acquisition (except to the extent such Indebtedness or Capital Stock was incurred in
connection with or in contemplation of such acquisition), which encumbrance or restriction
is not applicable to any Person, or the properties or assets of any Person, other than the
Person, or the property or assets of the Person, so acquired; provided that, in the case
of Indebtedness, such Indebtedness was permitted by the terms of this Supplemental
Indenture to be incurred;




     (13) Indebtedness of a Restricted Subsidiary of the Company existing at the time it
became a Restricted Subsidiary if such restriction was not created in connection with or
in anticipation of the transaction or series of transactions pursuant to which such
Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Company;




     (14) with respect only to Section 4.08(a)(3) hereof, restrictions encumbering
property at the time such property was acquired by the Company or any of its Restricted
Subsidiaries, so long as such restriction relates solely to the property so acquired and
was not created in connection with or in anticipation of such acquisition;




     (15) provisions limiting the disposition or distribution of assets or property in
agreements governing Non-Recourse Debt, which limitation is applicable only to the assets
that are the subject of such agreements; and




     (16) any encumbrance or restrictions of the type referred to in clauses (1), (2) and
(3) of Section 4.08(a) hereof imposed by any amendments, modifications, restatements,
renewals,



48









 







increases, supplements, refundings, replacements or refinancings of the
contracts, instruments or obligations referred to in clauses (1) through (15) above;
provided that such amendments, modifications, restatements, renewals, increases,
supplements, refundings, replacements or refinancings are, in the good faith judgment of a
senior financial officer of the Company, no more restrictive with respect to such dividend
and other payment restrictions than those contained in the dividend or other payment
restrictions prior to such amendment, modification, restatement, renewals, increase,
supplement, refunding, replacement or refinancing.



     Section 4.09 Incurrence of Indebtedness and Issuance of Preferred Stock.



     (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to,
directly or indirectly, create, incur, issue, assume, guarantee or otherwise become directly or
indirectly liable, contingently or otherwise, with respect to (collectively, “incur”) any
Indebtedness (including Acquired Debt), and the Company shall not issue any Disqualified Stock and
shall not permit any of its Restricted Subsidiaries to issue any shares of preferred stock;
provided, however, that the Company may incur Indebtedness (including Acquired Debt) or issue
Disqualified Stock, and any Restricted Subsidiary may incur Indebtedness (including Acquired Debt)
or issue preferred stock, if the Fixed Charge Coverage Ratio for the Company’s most recently ended
four full fiscal quarters for which internal financial statements are publicly available
immediately preceding the date on which such additional Indebtedness is incurred or such
Disqualified Stock or preferred stock is issued would have been at least 2.0 to 1, determined on a
pro forma basis (including a pro forma application of the net proceeds therefrom), as if the
additional Indebtedness (including Acquired Debt) had been incurred or the Disqualified Stock or
preferred stock had been issued, as the case may be, at the beginning of such four-quarter period.



     (b) The provisions of Section 4.09(a) shall not prohibit the incurrence of any of the
following items of Indebtedness (collectively, “Permitted Debt”):




     (1) the incurrence by the Company and PMI (and the guarantee thereof by the
Guarantors) of additional Indebtedness and letters of credit under Credit Facilities in an
aggregate principal amount at any one time outstanding under this clause (1) (with letters
of credit being deemed to have a principal amount equal to the maximum potential liability
of the Company and its Restricted Subsidiaries thereunder) not to exceed $6.0 billion less
the aggregate amount of all repayments, optional or mandatory, of the principal of any
term Indebtedness under a Credit Facility that have been made by the Company or any of its
Restricted Subsidiaries since the Issue Date with the Net Proceeds of Asset Sales (other
than Excluded Proceeds) and less, without duplication, the aggregate amount of all
repayments or commitment reductions with respect to any revolving credit borrowings under
a Credit Facility that have been made by the Company or any of its Restricted Subsidiaries
since the Issue Date as a result of the application of the Net Proceeds of Asset Sales
(other than Excluded Proceeds) in accordance with Section 4.10 hereof (excluding temporary
reductions in revolving credit borrowings as contemplated by that covenant);




     (2) the incurrence by the Company and its Restricted Subsidiaries of the Existing
Indebtedness;




     (3) the incurrence by the Company and the Guarantors of Indebtedness represented by
the Notes and the related Subsidiary Guarantees to be issued on the Issue Date;




     (4) the incurrence by the Company or any of its Restricted Subsidiaries of
Indebtedness represented by Capital Lease Obligations, mortgage financings or purchase
money obligations, in each case, incurred for the purpose of financing all or any part of
the



49









 







purchase price or cost of design, construction, installation or improvement or lease
of property (real or personal), plant or equipment used or useful in the business of the
Company or any of its Restricted Subsidiaries or incurred within 180 days thereafter, in
an aggregate principal amount, including all Permitted Refinancing Indebtedness incurred
to refund, refinance, replace, defease or discharge any Indebtedness incurred pursuant to
this clause (4), not to exceed at any time outstanding 5.0% of Total Assets;




     (5) the incurrence by the Company or any of its Restricted Subsidiaries of Permitted
Refinancing Indebtedness in exchange for, or the net proceeds of which are used to refund,
refinance, replace, defease or discharge Indebtedness (other than intercompany
Indebtedness) that was permitted by this Supplemental Indenture to be incurred under
Section 4.09(a) hereof or clauses (2), (3), (4), (5), (15), (16), (17), (18), (19) and
(21) of this paragraph;




     (6) the incurrence by the Company or any of its Restricted Subsidiaries of
intercompany Indebtedness between or among the Company and any of its Restricted
Subsidiaries; provided, however, that:




     (A) if the Company or any Guarantor is the obligor on such Indebtedness and the
payee is not the Company or a Guarantor, such Indebtedness must be expressly
subordinated to the prior payment in full in cash of all Obligations then due with
respect to the Notes, in the case of the Company, or the Subsidiary Guarantee, in
the case of a Guarantor; and




     (B) (i) any subsequent issuance or transfer of Equity Interests that results in
any such Indebtedness being held by a Person other than the Company or a Restricted
Subsidiary of the Company and (ii) any sale or other transfer of any such
Indebtedness to a Person that is not either the Company or a Restricted Subsidiary
of the Company;




will be deemed, in each case, to constitute an incurrence of such Indebtedness by
the Company or such Restricted Subsidiary, as the case may be, that was not
permitted by this clause (6);




     (7) the issuance by any of the Company’s Restricted Subsidiaries to the Company or to
any of its Restricted Subsidiaries of shares of preferred stock; provided, however, that:




     (A) any subsequent issuance or transfer of Equity Interests that results in any
such preferred stock being held by a Person other than the Company or a Restricted
Subsidiary of the Company; and




     (B) any sale or other transfer of any such preferred stock to a Person that is
not either the Company or a Restricted Subsidiary of the Company;




will be deemed, in each case, to constitute an issuance of such preferred stock by
such Restricted Subsidiary that was not permitted by this clause (7);




     (8) the incurrence by the Company or any of its Restricted Subsidiaries of Hedging
Obligations;




     (9) the guarantee by (i) the Company or any of the Guarantors of Indebtedness of the
Company or a Guarantor that was permitted to be incurred by another provision of this
covenant; (ii) any of the Excluded Project Subsidiaries of Indebtedness of any other
Excluded



50









 







Project Subsidiary; and (iii) any of the Excluded
Foreign Subsidiaries of
Indebtedness of any other Excluded Foreign Subsidiary; provided that if the Indebtedness
being guaranteed is subordinated to or pari passu with the Notes, then the guarantee shall
be subordinated to the same extent as the Indebtedness guaranteed;




     (10) the incurrence by the Company or any of its Restricted Subsidiaries of
Indebtedness arising from the honoring by a bank or other financial institution of a
check, draft or similar instrument (except in the case of daylight overdrafts)
inadvertently drawn against insufficient funds in the ordinary course of business, so long
as such Indebtedness is covered within five business days;




     (11) the incurrence by the Company or any of its Restricted Subsidiaries of
Indebtedness in respect of (i) workers’ compensation claims, self-insurance obligations,
bankers’ acceptance and (ii) performance and surety bonds provided by the Company or a
Restricted Subsidiary in the ordinary course of business;




     (12) (i) the incurrence of Non-Recourse Debt by any Excluded Project Subsidiary, and
(ii) the incurrence of Indebtedness and guarantees pursuant to the Itiquira Refinancing;




     (13) the incurrence of Indebtedness that may be deemed to arise as a result of
agreements of the Company or any Restricted Subsidiary of the Company providing for
indemnification, adjustment of purchase price or any similar obligations, in each case,
incurred in connection with the disposition of any business, assets or Equity Interests of
any Subsidiary; provided that the aggregate maximum liability associated with such
provisions may not exceed the gross proceeds (including non-cash proceeds) of such
disposition;




     (14) the incurrence by the Company or any Restricted Subsidiary of the Company of
Indebtedness represented by letters of credit, guarantees or other similar instruments
supporting Hedging Obligations of the Company or any of its Restricted Subsidiaries (other
than Excluded Subsidiaries) permitted to be incurred by this Supplemental Indenture;




     (15) Indebtedness, Disqualified Stock or preferred stock of Persons or assets that
are acquired by the Company or any Restricted Subsidiary of the Company or merged into the
Company or a Restricted Subsidiary of the Company in accordance with the terms of this
Supplemental Indenture; provided that such Indebtedness, Disqualified Stock or preferred
stock is not incurred in contemplation of such acquisition or merger; and provided further
that after giving effect to such acquisition or merger, either:




     (A) the Company would be permitted to incur at least $1.00 of additional
Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the first
sentence of Section 4.09(a) hereof; or




     (B) the Fixed Charge Coverage Ratio would be greater than immediately prior to
such acquisition or merger;




     (16) Environmental CapEx Debt; provided, that prior to the incurrence of any
Environmental CapEx Debt, the Company shall deliver to the Trustee an Officers’
Certificate designating such Indebtedness as Environmental CapEx Debt;




     (17) Indebtedness incurred to finance Necessary Capital Expenditures; provided, that
prior to the incurrence of any Indebtedness to finance Necessary Capital Expenditures, the



51









 







Company shall deliver to the Trustee an Officers’ Certificate designating such
Indebtedness as Necessary CapEx Debt;




     (18) Indebtedness of the Company or any Restricted Subsidiary of the Company
consisting of (i) the financing of insurance premiums or (ii) take-or-pay obligations
contained in supply arrangements, in each case, in the ordinary course of business;




     (19) the incurrence by the Company or any of its Restricted Subsidiaries of
Contribution Indebtedness;




     (20) the incurrence by the Company and/or any of its Restricted Subsidiaries of
Indebtedness that constitutes a Permitted Tax Lease; and




     (21) the incurrence by the Company and/or any of its Restricted Subsidiaries of
additional Indebtedness in an aggregate principal amount (or accreted value, as
applicable) at any time outstanding, including all Permitted Refinancing Indebtedness
incurred to refund, refinance, replace, defease or discharge any Indebtedness incurred
pursuant to this clause (21), not to exceed $1.0 billion.



     The Company shall not, and shall not permit any Guarantor to, incur any Indebtedness
(including Permitted Debt) that is contractually subordinated in right of payment to any other
Indebtedness of the Company or that Guarantor unless such Indebtedness is also contractually
subordinated in right of payment to the Notes and the applicable Subsidiary Guarantee on
substantially identical terms; provided, however, that no Indebtedness of the Company shall be
deemed to be contractually subordinated in right of payment to any other Indebtedness of the
Company solely by virtue of being unsecured or by virtue of being secured on a first or junior Lien
basis.



     For purposes of determining compliance with this Section 4.09, in the event that an item of
proposed Indebtedness meets the criteria of more than one of the categories of Permitted Debt
described in clauses (1) through (21) above, or is entitled to be incurred pursuant to Section
4.09(a) hereof, the Company shall be permitted to classify such item of Indebtedness on the date of
its incurrence, or later reclassify all or a portion of such item of Indebtedness, in any manner
that complies with this Section 4.09. Indebtedness under the Credit Agreement outstanding on the
Issue Date will initially be deemed to have been incurred on such date in reliance on the exception
provided by clause (1) above. The accrual of interest, the accretion or amortization of original
issue discount, the payment of interest on any Indebtedness in the form of additional Indebtedness
with the same terms, and the payment of dividends on Disqualified Stock in the form of additional
shares of the same class of Disqualified Stock shall not be deemed to be an incurrence of
Indebtedness or an issuance of Disqualified Stock for purposes of this Section 4.09; provided, in
each such case, that the amount thereof is included in Fixed Charges of the Company as accrued.



     For purposes of determining compliance with any U.S. dollar-denominated restriction on the
incurrence of Indebtedness, the U.S. dollar-equivalent principal amount of Indebtedness denominated
in a foreign currency will be calculated based on the relevant currency exchange rate in effect on
the date such Indebtedness was incurred; provided that if such Indebtedness is incurred to
refinance other Indebtedness denominated in a foreign currency, and such refinancing would cause
the applicable U.S. dollar-dominated restriction to be exceeded if calculated at the relevant
currency exchange rate in effect on the date of such refinancing, such U.S. dollar-dominated
restriction shall be deemed not to have been exceeded so long as the principal amount of such
refinancing Indebtedness does not exceed the principal amount of the Indebtedness being refinanced.



52









 





     The amount of any Indebtedness outstanding as of any date will be:




     (1) the accreted value of the Indebtedness, in the case of any Indebtedness issued
with original issue discount;




     (2) the principal amount of the Indebtedness, in the case of any other Indebtedness;
and




     (3) in respect of Indebtedness of another Person secured by a Lien on the assets of
the specified Person, the lesser of:




     (A) the fair market value of such asset at the date of determination, and




     (B) the amount of the Indebtedness of the other Person;
provided that any changes in any of the above shall not give rise to a default under this Section 4.09.



     Section 4.10 Asset Sales.



     (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to,
consummate an Asset Sale unless:




     (1) the Company (or the Restricted Subsidiary, as the case may be) receives
consideration at the time of the Asset Sale at least equal to the fair market value of the
assets or Equity Interests issued or sold or otherwise disposed of; and




     (2) at least 75% of the consideration received in the Asset Sale by the Company or
such Restricted Subsidiary is in the form of cash. For purposes of this provision, each
of the following will be deemed to be cash:




     (A) any liabilities, as shown on the Company’s most recent consolidated balance
sheet, of the Company or any Restricted Subsidiary (other than contingent
liabilities and liabilities that are by their terms subordinated to the Notes or any
Subsidiary Guarantee) that are assumed by the transferee of any such assets pursuant
to a customary novation agreement that releases the Company or such Restricted
Subsidiary from further liability;




     (B) any securities, notes or other obligations received by the Company or any
such Restricted Subsidiary from such transferee that are converted by the Company or
such Restricted Subsidiary into cash within 180 days of the receipt of such
securities, notes or other obligations, to the extent of the cash received in that
conversion;




     (C) any stock or assets of the kind referred to in clauses (4) or (6) of the
next paragraph of this Section 4.10; and




     (D) any Designated Noncash Consideration received by the Company or any
Restricted Subsidiary of the Company in such Asset Sale having an aggregate fair
market value, taken together with all other Designated Noncash Consideration
received pursuant to this clause (D) since the Issue Date that is at the time
outstanding, not to exceed the greater of (x) $500.0 million or (y) 2.5% of Total
Assets at the time of the receipt of such Designated Noncash Consideration, with the
fair market value of each item of Designated



53









 







Noncash Consideration being measured at
the time received and without giving effect to subsequent changes in value.



     (b) Within 365 days after the receipt of any Net Proceeds from an Asset Sale, other than
Excluded Proceeds, the Company (or the applicable Restricted Subsidiary, as the case may be) may
apply such Net Proceeds or, at its option, enter into a binding commitment to apply such Net
Proceeds within the 365-day period following the date of such commitment (an “Acceptable
Commitment”):




     (1) to repay Indebtedness and other Obligations under a Credit Facility and, if such
Indebtedness is revolving credit Indebtedness, to correspondingly reduce commitments with
respect thereto;




     (2) in the case of a sale of assets pledged to secured Indebtedness (including Capital
Lease Obligations), to repay the Indebtedness secured by those assets;




     (3) in the case of an Asset Sale by a Restricted Subsidiary that is not a Guarantor, to
repay Indebtedness of a Restricted Subsidiary that is not a Guarantor (other than
Indebtedness owed to the Company or another Restricted Subsidiary of the Company);




     (4) to acquire all or substantially all of the assets of, or any Capital Stock of,
another Person engaged primarily in a Permitted Business, if, after giving effect to any
such acquisition of Capital Stock, such Person is or becomes a Restricted Subsidiary of the
Company and a Guarantor;




     (5) to make a capital expenditure;




     (6) to acquire other assets that are not classified as current assets under GAAP and
that are used or useful in a Permitted Business; or




     (7) any combination of the foregoing.


Pending the final application of such Net Proceeds in accordance with this Section 4.10 and
notwithstanding clause (1) above, the Company may temporarily reduce revolving credit borrowings or
otherwise use the Net Proceeds in any manner that is not prohibited by this Supplemental Indenture.




     (c) Notwithstanding the preceding paragraph, in the event that regulatory approval is
necessary for an asset or investment, or construction, repair or restoration of any asset or
investment has commenced, then the Company or any Restricted Subsidiary shall have an additional
365 days to apply the Net Proceeds from such Asset Sale in accordance with the preceding paragraph.



     Any Acceptable Commitment that is later canceled or terminated for any reason before such Net
Proceeds are so applied shall be treated as a permitted application of the Net Proceeds if the
Company or
such Restricted Subsidiary enters into another Acceptable Commitment within the later of (a)
nine months of such cancellation or termination or (b) the end of the initial 365-day period.



     (d) Any Net Proceeds from Asset Sales (other than Excluded Proceeds) that are not applied or
invested as provided in this Section 4.10 shall constitute “Excess Proceeds.” When the aggregate
amount of Excess Proceeds exceeds $100.0 million, or at such earlier date as may be selected by the
Company, the Company will make an Asset Sale Offer to all Holders of Notes and all holders of other
Indebtedness (including Indebtedness evidenced by the Existing Senior Notes) that is pari passu
with the Notes containing provisions similar to those set forth in this Supplemental Indenture with
respect to offers to




54











 




purchase or redeem with the proceeds of sales of assets to purchase the maximum principal
amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess
Proceeds (an “Asset Sale Offer”). The offer price in any Asset Sale Offer will be equal to 100% of
the principal amount plus accrued and unpaid interest to the date of purchase and will be payable
in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company may
use those Excess Proceeds for any purpose not otherwise prohibited by this Supplemental Indenture.
If the aggregate principal amount of Notes and other pari passu Indebtedness tendered into such
Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee will select the Notes and such
other pari passu Indebtedness to be purchased on a pro rata basis. Upon completion of each Asset
Sale Offer, the amount of Excess Proceeds will be reset at zero.




     (e) The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and
any other securities laws and regulations thereunder to the extent such laws and regulations are
applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the
extent that the provisions of any securities laws or regulations conflict with the provisions of
Sections 3.09 or 4.10 hereof, the Company shall comply with the applicable securities laws and
regulations and shall not be deemed to have breached its obligations under Sections 3.09 and 4.10
hereof by virtue of such compliance.



     Section 4.11 Transactions with Affiliates.



     (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to, make
any payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets
to, or purchase any property or assets from, or enter into or make or amend any transaction,
contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any
Affiliate of the Company (each, an “Affiliate Transaction”) involving aggregate payments in excess
of $10.0 million, unless, unless:




     (1) the Affiliate Transaction is on terms that are no less favorable to the Company
(as reasonably determined by the Company) or the relevant Restricted Subsidiary than those
that would have been obtained in a comparable transaction by the Company or such
Restricted Subsidiary with an unrelated Person; and




     (2) the Company delivers to the Trustee:




     (A) with respect to any Affiliate Transaction or series of related Affiliate
Transactions involving aggregate consideration in excess of $75.0 million, a
resolution of the Board of Directors set forth in an Officers’ Certificate
certifying that such Affiliate Transaction complies with this covenant and that such
Affiliate Transaction has been approved by a majority of the disinterested members
of the Board of Directors; and




     (B) with respect to any Affiliate Transaction or series of related Affiliate
Transactions involving aggregate consideration in excess of $150.0 million, an
opinion as to the fairness to the Company or such Restricted Subsidiary of such
Affiliate Transaction from a financial point of view issued by an accounting,
appraisal or investment banking firm of national standing.



     (b) The following items shall not be deemed to be Affiliate Transactions and, therefore, shall
not be subject to the provisions of the prior paragraph:




     (1) any employment agreement or director’s engagement agreement, employee benefit
plan, officer and director indemnification agreement or any similar arrangement entered
into by



55









 







the Company or any of its Restricted Subsidiaries or approved by a Responsible
Officer of the Company in good faith;




     (2) transactions between or among the Company and/or its Restricted Subsidiaries;




     (3) transactions with a Person (other than an Unrestricted Subsidiary of the Company)
that is an Affiliate of the Company solely because the Company owns, directly or through a
Restricted Subsidiary, an Equity Interest in, or controls, such Person;




     (4) payment of directors’ fees;




     (5) any issuance of Equity Interests (other than Disqualified Stock) of the Company
or its Restricted Subsidiaries;




     (6) Restricted Payments that do not violate the provisions of Section 4.07 hereof;




     (7) any agreement in effect as of the Issue Date or any amendment thereto or
replacement thereof and any transaction contemplated thereby or permitted thereunder, so
long as any such amendment or replacement agreement taken as a whole is not more
disadvantageous to the Holders than the original agreement as in effect on the Issue Date;




     (8) payments or advances to employees or consultants that are incurred in the
ordinary course of business or that are approved by a Responsible Officer of the Company
in good faith;




     (9) the existence of, or the performance by the Company or any of its Restricted
Subsidiaries of its obligations under the terms of, any stockholders agreement (including
any registration rights agreement or purchase agreement related thereto) to which it is a
party as of the Issue Date and any similar agreements which it may enter into thereafter;
provided, however, that the existence of, or the performance by the Company or any of its
Restricted Subsidiaries of obligations under, any future amendment to any such existing
agreement or under any similar agreement entered into after the Issue Date shall only be
permitted by this clause (9) to the extent that the terms of any such amendment or new
agreement are not otherwise more disadvantageous to the Holders of the Notes in any
material respect;




     (10) transactions permitted by, and complying with, the provisions of Section 5.01
hereof;




     (11) transactions with customers, clients, suppliers, joint venture partners or
purchasers or sellers of goods or services (including pursuant to joint venture
agreements) in compliance with the terms of this Supplemental Indenture that are fair to
the Company and its Restricted Subsidiaries, in the reasonable determination of a senior
financial officer of the Company, or are on terms not materially less favorable taken as a
whole as might reasonably have been obtained at such time from an unaffiliated party;




     (12) any repurchase, redemption or other retirement of Capital Stock of the Company
held by employees of the Company or any of its Subsidiaries;




     (13) loans or advances to employees or consultants;




     (14) any Permitted Investment in another Person involved in a Permitted Business;



56









 






     (15) transactions in which the Company or any Restricted Subsidiary of the Company,
as the case may be, delivers to the Trustee a letter from an Independent Financial Advisor
stating that such transaction is fair to the Company or such Restricted Subsidiary from a
financial point of view or meets the requirements of clause (1) of the preceding
paragraph;




     (16) guarantee of Permitted Itiquira Indebtedness;




     (17) the issuance of any letters of credit to support obligations of any Excluded
Subsidiary;




     (18) transactions between or among Excluded Subsidiaries, and any Guarantee,
guarantee and/or other credit support provided by the Company and/or any Restricted
Subsidiary in respect of any Subsidiary or any Minority Investment so long as all holders
of Equity Interests in such Subsidiary or Minority Investment (including the Company or
any Restricted Subsidiary, as applicable) shall participate directly or indirectly in such
applicable Guarantee, guarantee and/or other credit support or shall provide a commitment
in respect of any related obligation, in each case, on a pro rata basis relative to their
Equity Interests in such Minority Investment; provided that any such transaction shall be
fair and reasonable and beneficial to the Company and its Restricted Subsidiaries (taken
as a whole) and consistent with Prudent Industry Practice;




     (19) transactions relating to management, marketing, administrative or technical
services between the Company and its Restricted Subsidiaries, or between Restricted
Subsidiaries;




     (20) any tax sharing agreement between or among the Company and its Subsidiaries so
long as such tax sharing agreement is on fair and reasonable terms with respect to each
participant therein; and




     (21) any agreement to do any of the foregoing.



     Section 4.12 Liens.



     The Company will not, and will not permit any of its Restricted Subsidiaries to, create,
incur, assume or otherwise cause or suffer to exist or become effective any Lien of any kind (other
than Permitted Liens) securing Indebtedness or Attributable Debt upon any of their property or
assets, now owned or hereafter acquired, unless all payments due under this Supplemental and the
Notes are secured on an equal and ratable basis with the obligations so secured until such time as
such obligations are no longer secured by a Lien.



     Section 4.13 Corporate Existence.



     Subject to Article 5 hereof, the Company shall do or cause to be done all things necessary to
preserve and keep in full force and effect:




     (1) its corporate existence, and the corporate, partnership or other existence of
each of its Subsidiaries, in accordance with the respective organizational documents (as
the same may be amended from time to time) of the Company or any such Subsidiary; and




     (2) the rights (charter and statutory), licenses and franchises of the Company and
its Subsidiaries;



57









 




provided, however, that the Company shall not be required to preserve any such right, license or
franchise, or the corporate, partnership or other existence of any of its Subsidiaries, if (a) the
Company shall determine that the preservation thereof is no longer desirable in the conduct of the
business of the Company and its Subsidiaries, taken as a whole, and that the loss thereof is not
adverse in any material respect to the Holders of the Notes and (b) if a Subsidiary is to be
dissolved, such Subsidiary has no assets.




     Section 4.14 Offer to Repurchase Upon Change of Control Triggering Event.



     (a) Upon the occurrence of a Change of Control Triggering Event, each Holder of Notes shall
have the right to require the Company to make an offer (a “Change of Control Offer”) to each Holder
to repurchase all or any part (equal to $5,000 or an integral multiple of $5,000) of each Holder’s
Notes at a purchase price equal to 101% of the aggregate principal amount of Notes repurchased plus
accrued and unpaid interest on the Notes repurchased, if any, to the date of purchase, subject to
the rights of Holders of Notes on the relevant record date to receive interest due on the relevant
interest payment date (the “Change of Control Payment”). Within 30 days following any Change of
Control Triggering Event, the Company shall mail a notice to each Holder describing the transaction
or transactions that constitute the Change of Control and stating:




     (1) that the Change of Control Offer is being made pursuant to this Section 4.14 and
that all Notes tendered will be accepted for payment;




     (2) the purchase price and the purchase date, which date will be no earlier than 30
days and no later than 60 days from the date such notice is mailed (the “Change of Control
Payment Date”);




     (3) that any Note not tendered will continue to accrue interest;




     (4) that, unless the Company defaults in the payment of the Change of Control
Payment, all Notes accepted for payment pursuant to the Change of Control Offer will cease
to accrue interest after the Change of Control Payment Date;




     (5) that Holders electing to have any Notes purchased pursuant to a Change of Control
Offer shall be required to surrender the Notes, with the form entitled “Option of Holder
to Elect Purchase” on the reverse of the Notes completed, to the Paying Agent at the
address specified in the notice prior to the close of business on the third Business Day
preceding the Change of Control Payment Date;




     (6) that Holders will be entitled to withdraw their election if the Paying Agent
receives, not later than the close of business on the second Business Day preceding the
Change of Control Payment Date, a telegram, telex, facsimile transmission or letter
setting forth the name of the Holder, the principal amount of Notes delivered for
purchase, and a statement that such Holder is withdrawing his election to have the Notes
purchased; and




     (7) that Holders whose Notes are being purchased only in part will be issued new
Notes equal in principal amount to the unpurchased portion of the Notes surrendered, which
unpurchased portion must be equal to $5,000 in principal amount or an integral multiple of
$5,000.



     The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any
other securities laws and regulations thereunder to the extent those laws and regulations are
applicable in



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connection with the repurchase of the Notes as a result of a Change in Control. To the extent
that the provisions of any securities laws or regulations conflict with the provisions of this
Section 4.14, the Company shall comply with the applicable securities laws and regulations and
shall not be deemed to have breached its obligations under this Section 4.14 by virtue of such
compliance.




     (b) On the Change of Control Payment Date, the Company shall, to the extent lawful:




     (1) accept for payment all Notes or portions of Notes properly tendered pursuant to
the Change of Control Offer;




     (2) deposit with the Paying Agent an amount equal to the Change of Control Payment in
respect of all Notes or portions of Notes properly tendered; and




     (3) deliver or cause to be delivered to the Trustee the Notes properly accepted
together with an Officers’ Certificate stating the aggregate principal amount of Notes or
portions of Notes being purchased by the Company.



     The Paying Agent shall promptly distribute to each Holder of Notes properly tendered the
Change of Control Payment for the Notes, and the Trustee shall promptly authenticate and deliver
(or cause to be transferred by book entry) to each Holder a new Note equal in principal amount to
any unpurchased portion of the Notes surrendered, if any; provided that each new Note shall be in a
principal amount of $5,000 or an integral multiple of $5,000. The Company shall publicly announce
the results of the Change of Control Offer on or as soon as practicable after the Change of Control
Payment Date.



     (c) The provisions described in Sections 4.14 (a) and (b) shall apply whether or not other
provisions of this Supplemental Indenture are applicable. Except as described in Sections 4.14 (a)
and (b) hereof, Holders of Notes shall not be permitted to require that the Company repurchase or
redeem the Notes in the event of a takeover, recapitalization or similar transaction.



     (d) Notwithstanding anything to the contrary in this Section 4.14, the Company shall not be
required to make a Change of Control Offer upon a Change of Control Triggering Event if (1) a third
party makes the Change of Control Offer in the manner, at the times and otherwise in compliance
with the requirements set forth in this Section 4.14 hereof and purchases all Notes properly
tendered and not withdrawn under the Change of Control Offer, or (2) notice of redemption has been
given pursuant to Section 3.07 hereof, unless and until there is a default in payment of the
applicable redemption price. A Change of Control Offer may be made in advance of a Change of
Control Triggering Event, with the obligation to pay and the timing of payment conditioned upon the
occurrence of a Change of Control Triggering Event, if a definitive agreement to effect a Change of
Control is in place at the time the Change of Control Offer is made.



     Section 4.15 Limitation on Sale and Leaseback Transactions.



     The Company shall not, and shall not permit any of its Restricted Subsidiaries to, enter into
any sale and leaseback transaction (other than a Permitted Tax Lease, which shall not be restricted
by this Section 4.15); provided that the Company or any Guarantor may enter into a sale and
leaseback transaction if:




     (1) the Company or that Guarantor, as applicable, could have (a) incurred
Indebtedness in an amount equal to the Attributable Debt relating to such sale and
leaseback transaction under the provisions of Section 4.09 hereof and (b) incurred a Lien
to secure such Indebtedness pursuant to the provisions of Section 4.12 hereof;



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     (2) the gross proceeds of that sale and leaseback transaction are at least equal to
the fair market value of the property that is the subject of that sale and leaseback
transaction, as determined in good faith by a senior financial officer of the Company; and




     (3) if such sale and leaseback transaction constitutes an Asset Sale, the transfer of
assets in that sale and leaseback transaction is permitted by, and the Company applies the
proceeds of such transaction in compliance with, the provisions of Section 4.10 hereof.



     Section 4.16 Payments for Consent.



     The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or
indirectly, pay or cause to be paid any consideration to or for the benefit of any Holder for or as
an inducement to any consent under or waiver or amendment of any of the terms or provisions of the
Indenture governing the Notes unless such consideration is offered to be paid and is paid to all
Holders that consent, waive or agree to amend in the time frame set forth in the solicitation
documents relating to such consent, waiver or agreement.



     Section 4.17 Additional Subsidiary Guarantees.



     If,




     (1) the Company or any of its Restricted Subsidiaries acquires or creates another
Domestic Subsidiary (other than an Excluded Subsidiary or a Domestic Subsidiary that does
not Guarantee any other Indebtedness of the Company) after the Issue Date,




     (2) any Excluded Subsidiary that is a Domestic Subsidiary ceases to be an Excluded
Subsidiary after the Issue Date, or




     (3) any Domestic Subsidiary that does not Guarantee any other Indebtedness of the
Company subsequently Guarantees other Indebtedness of the Company,


then such newly acquired or created Subsidiary, former Excluded Subsidiary, or Domestic Subsidiary,
as the case may be, will become a Guarantor and execute a supplemental indenture in the form
attached hereto as Exhibit C and deliver an Opinion of Counsel satisfactory to the Trustee within
30 business days of the date on which it was acquired or created or ceased to be an Excluded
Subsidiary or Guaranteed other Indebtedness of the Company, as the case may be.




     Section 4.18 Designation of Restricted, Unrestricted and Excluded Project Subsidiaries.



     The Company may designate, by a certificate executed by a Responsible Officer of the Company,
any Restricted Subsidiary to be an Unrestricted Subsidiary if that designation would not cause a
Default. If a Restricted Subsidiary is designated as an Unrestricted Subsidiary, the aggregate
fair market value of all outstanding Investments owned by the Company and its Restricted
Subsidiaries in the Subsidiary designated as Unrestricted will be deemed to be an Investment made
as of the time of the designation and will reduce the amount available for Restricted Payments
under the provisions of Section 4.07 hereof or under one or more clauses of the definition of
Permitted Investments, as determined by the Company. That designation will only be permitted if
the Investment would be permitted at that time and if the Restricted Subsidiary otherwise meets the
definition of an Unrestricted Subsidiary. A Responsible Officer of the Company may redesignate any
Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation would not cause a
Default.



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     The Company may designate, by a certificate executed by a Responsible Officer of the Company,
any Restricted Subsidiary to be an Excluded Project Subsidiary if that designation would not cause
a Default. If a Restricted Subsidiary that is not an Excluded Project Subsidiary is designated as
an Excluded Project Subsidiary, the aggregate fair market value of all outstanding Investments
owned by the Company and its Restricted Subsidiaries in the Subsidiary designated as an Excluded
Project Subsidiary will be deemed to be an Investment made as of the time of the designation and
will reduce the amount available for Restricted Payments under the provisions of Section 4.07
hereof or under one or more clauses of the definition of Permitted Investments, as determined by
the Company. That designation will only be permitted if the Investment would be permitted at that
time and if the Restricted Subsidiary otherwise meets the definition of an Excluded Project
Subsidiary. A Responsible Officer of the Company may redesignate any Excluded Project Subsidiary
to be a Restricted Subsidiary that is not an Excluded Project Subsidiary if that redesignation
would not cause a Default.



     Any designation of a Subsidiary of the Company as an Unrestricted Subsidiary or Excluded
Project Subsidiary will be evidenced to the Trustee by filing with the Trustee a certified copy of
a resolution of the Board of Directors giving effect to such designation and an Officers’
Certificate certifying that such designation complied with the preceding conditions and was
permitted by Section 4.07 hereof. If, at any time, any Unrestricted Subsidiary or Excluded Project
Subsidiary should fail to meet the preceding requirements as, respectively, an Unrestricted
Subsidiary or Excluded Project Subsidiary, it will thereafter cease to be an Unrestricted
Subsidiary or Excluded Project Subsidiary for the purposes of this Supplement Indenture and any
Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary or an
Excluded Project Subsidiary of the Company as of such date and, if such Indebtedness is not
permitted to be incurred as of such date under Section 4.09 hereof, the Company will be in default
of such covenant. The Board of Directors of the Company may at any time designate any Unrestricted
Subsidiary or Excluded Project Subsidiary to be a Restricted Subsidiary; provided that such
designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of the
Company of any outstanding Indebtedness of such Unrestricted Subsidiary or Excluded Project
Subsidiary, and such designation will only be permitted if (1) such Indebtedness is permitted under
Section 4.09(a) hereof, calculated on a pro forma basis as if such designation had occurred at the
beginning of the four-quarter reference period; and (2) no Default or Event of Default would be in
existence following such designation.



     Section 4.19 Changes in Covenants When Notes Rated Investment Grade



     If on any date following the Issue Date:




     (1) the rating assigned to the Notes by each of S&P and Moody’s is an Investment Grade
Rating; and




     (2) no Default or Event of Default shall have occurred and be continuing, then,
beginning on that day and subject to the provisions of the following two paragraphs, the
covenants specifically listed under the following Sections of this Supplemental Indenture
will be suspended as to the Notes:




	 	(a)	 	Section 4.10 hereof;
	 
	 	(b)	 	Section 4.07 hereof;
	 
	 	(c)	 	Section 4.09 hereof;
	 
	 	(d)	 	Section 4.08 hereof;




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	 	(e)	 	Section 4.18 hereof;
	 
	 	(f)	 	Section 4.11 hereof; and
	 
	 	(g)	 	clause (4) of Section 5.01 hereof.




Clauses (a) through (g) above are collectively referred to as the “Suspended Covenants.”




     During any period that the foregoing covenants have been suspended, the Company may not
designate any of its Subsidiaries as Unrestricted Subsidiaries or Excluded Project Subsidiaries
pursuant to Section 4.18 hereof, the second paragraph of the definition of Unrestricted Subsidiary,
or the definition of Excluded Project Subsidiary, unless it could do so if the foregoing covenants
were in effect.



     If at any time the Notes are downgraded from an Investment Grade Rating by either S&P or
Moody’s, the Suspended Covenants will thereafter be reinstated as if such covenants had never been
suspended and be applicable pursuant to the terms of this Supplemental Indenture (including in
connection with performing any calculation or assessment to determine compliance with the terms of
the indenture), unless and until the Notes subsequently attain an Investment Grade Rating from each
of S&P and Moody’s (in which event the Suspended Covenants will again be suspended for such time
that the Notes maintain an Investment Grade Rating from each of S&P and Moody’s); provided,
however, that no Default, Event of Default or breach of any kind will be deemed to exist under this
Supplemental Indenture, the Notes or the Subsidiary Guarantees with respect to the Suspended
Covenants based on, and none of the Company or any of its Subsidiaries will bear any liability for,
any actions taken or events occurring after the Notes attain an Investment Grade Rating from each
of S&P and Moody’s and before any reinstatement of the Suspended Covenants as provided above, or
any actions taken at any time pursuant to any contractual obligation arising prior to the
reinstatement, regardless of whether those actions or events would have been permitted if the
applicable Suspended Covenant had remained in effect during such period.



ARTICLE 5.

SUCCESSORS




     Section 5.01 Merger, Consolidation, or Sale of Assets.



     The Company shall not, directly or indirectly: (1) consolidate or merge with or into another
Person (whether or not the Company is the surviving corporation); or (2) sell, assign, transfer,
convey or otherwise dispose of all or substantially all of the properties or assets of the Company
and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another
Person; unless:




     (1) either:




     (A) the Company is the surviving corporation; or




     (B) the Person formed by or surviving any such consolidation or merger (if
other than the Company) or to which such sale, assignment, transfer, conveyance or
other disposition has been made is a corporation, partnership or limited liability
company organized or existing under the laws of the United States, any state of the
United States or the District of Columbia; provided that if the Person is a
partnership or limited liability company, then a corporation wholly-owned by such
Person organized or existing under the laws of the United States, any state of the
United States or the District of Columbia



62









 







that does not and will not have any material assets or operations shall become
a co-issuer of the Notes pursuant to a supplemental indenture executed by the
Trustee;




     (2) the Person formed by or surviving any such consolidation or merger (if other than
the Company) or the Person to which such sale, assignment, transfer, conveyance or other
disposition has been made assumes all the obligations of the Company under the Notes and
the Indenture pursuant to supplemental indentures or other documents and agreements
reasonably satisfactory to the Trustee;




     (3) immediately after such transaction, no Default or Event of Default exists; and




     (4) (i) the Company or the Person formed by or surviving any such consolidation or
merger (if other than the Company), or to which such sale, assignment, transfer,
conveyance or other disposition has been made will, on the date of such transaction after
giving pro forma effect thereto and to any related financing transactions as if the same
had occurred at the beginning of the applicable four-quarter period, be permitted to incur
at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test
set forth in the provisions of Section 4.09(a) hereof; or (ii) the Company’s Fixed Charge
Coverage Ratio is greater after giving pro forma effect to such consolidation or merger
and any related financing transactions as if the same had occurred at the beginning of the
applicable four-quarter period than the Company’s actual Fixed Charge Coverage Ratio for
the period.



     In addition, the Company shall not, directly or indirectly, lease all or substantially all of
its properties or assets, in one or more related transactions, to any other Person.



     This Section 5.01 shall not apply to:




     (1) a merger of the Company with an Affiliate solely for the purpose of
reincorporating the Company in another jurisdiction or forming a direct holding company of
the Company; and




     (2) any sale, transfer, assignment, conveyance, lease or other disposition of assets
between or among the Company and its Restricted Subsidiaries, including by way of merger
or consolidation.



     Section 5.02 Successor Corporation Substituted.



     Upon any consolidation or merger, or any sale, assignment, transfer, lease, conveyance or
other disposition of all or substantially all of the assets of the Company and its Restricted
Subsidiaries taken as a whole in a transaction that is subject to, and that complies with the
provisions of, Section 5.01 hereof, the successor corporation formed by such consolidation or into
or with which the Company is merged or to which such sale, assignment, transfer, lease, conveyance
or other disposition is made shall succeed to, and be substituted for (so that from and after the
date of such consolidation, merger, sale, lease, conveyance or other disposition, the provisions of
the Indenture referring to the “Company” shall refer instead to the successor corporation and not
to the Company), and may exercise every right and power of the Company under the Indenture with the
same effect as if such successor Person had been named as the Company herein; provided, however,
that the predecessor Company shall not be relieved from the obligation to pay the principal of,
interest, premium on the Notes except in the case of a sale of all of the Company’s assets in a
transaction that is subject to, and that complies with the provisions of, Section 5.01 hereof.



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ARTICLE 6.

DEFAULTS AND REMEDIES




     Section 6.01 Events of Default.



     Each of the following is an “Event of Default”:




     (1) default for 30 days in the payment when due of interest on the Notes;




     (2) default in payment when due of the principal of, or premium, if any, on the
Notes;




     (3) failure by the Company or any of its Restricted Subsidiaries for 45 days after
written notice given by the Trustee or Holders, to comply with any of the other agreements
in this Supplemental Indenture;




     (4) default under any mortgage, indenture or instrument under which there may be
issued or by which there may be secured or evidenced any Indebtedness for money borrowed
by the Company or any of its Restricted Subsidiaries (or the payment of which is
guaranteed by the Company or any of its Restricted Subsidiaries) whether such Indebtedness
or guarantee now exists, or is created after the Issue Date, if that default:




     (A) is caused by a failure to pay principal of, or interest or premium, if any,
on such Indebtedness prior to the expiration of the grace period provided in such
Indebtedness on the date of such default (a “Payment Default”); or




     (B) results in the acceleration of such Indebtedness prior to its express
maturity,




and, in each case, the principal amount of any such Indebtedness, together with the
principal amount of any other such Indebtedness under which there has been a Payment Default
or the maturity of which has been so accelerated, aggregates $150.0 million or more;
provided that this clause (4) shall not apply to (i) secured Indebtedness that becomes due
as a result of the voluntary sale or transfer of the property or assets securing such
Indebtedness to a Person that is not an Affiliate of the Company; (ii) Non-Recourse Debt of
NRG Peaker Finance Company LLC; and (iii) Non-Recourse Debt of the Company or any of its
Subsidiaries (except to the extent that the Company or any of its Restricted Subsidiaries
that are not parties to such Non-Recourse Debt becomes directly or indirectly liable,
including pursuant to any contingent obligation, for any such Non-Recourse Debt and such
liability, individually or in the aggregate, exceeds $150.0 million);




     (5) one or more judgments for the payment of money in an aggregate amount in excess
of $150.0 million (excluding therefrom any amount reasonably expected to be covered by
insurance) shall be rendered against the Company, any Restricted Subsidiary of the Company
that is not an Excluded Project Subsidiary or any combination thereof and the same shall
not have been paid, discharged or stayed for a period of 60 days after such judgment
became final and non-appealable;




     (6) except as permitted by this Supplemental Indenture, any Subsidiary Guarantee
shall be held in any final and non-appealable judicial proceeding to be unenforceable or
invalid or shall cease for any reason to be in full force and effect or any Guarantor (or
any group of Guarantors) that constitutes a Significant Subsidiary, or any Person acting
on behalf of any



64









 







Guarantor (or any group of Guarantors) that constitutes a Significant Subsidiary,
shall deny or disaffirm its or their obligations under its or their Subsidiary
Guarantee(s);




     (7) the Company or any of its Restricted Subsidiaries that is a Significant
Subsidiary or any group of Restricted Subsidiaries of the Company that, taken together,
would constitute a Significant Subsidiary pursuant to or within the meaning of Bankruptcy
Law:




     (A) commences a voluntary case,




     (B) consents to the entry of an order for relief against it in an involuntary
case,




     (C) consents to the appointment of a custodian of it or for all or
substantially all of its property,




     (D) makes a general assignment for the benefit of its creditors, or




     (E) generally is not paying its debts as they become due;




     (8) a court of competent jurisdiction enters an order or decree under any Bankruptcy
Law that:




     (A) is for relief against the Company or any of its Restricted Subsidiaries
that is a Significant Subsidiary or any group of Restricted Subsidiaries of the
Company that, taken together, would constitute a Significant Subsidiary in an
involuntary case;




     (B) appoints a custodian of the Company or any of its Restricted Subsidiaries
that is a Significant Subsidiary or any group of Restricted Subsidiaries of the
Company that, taken together, would constitute a Significant Subsidiary or for all
or substantially all of the property of the Company or any of its Restricted
Subsidiaries that is a Significant Subsidiary or any group of Restricted
Subsidiaries of the Company that, taken together, would constitute a Significant
Subsidiary; or




     (C) orders the liquidation of the Company or any of its Restricted Subsidiaries
that is a Significant Subsidiary or any group of Restricted Subsidiaries of the
Company that, taken together, would constitute a Significant Subsidiary;




and the order or decree remains unstayed and in effect for 60 consecutive days.



     Section 6.02 Acceleration.



     In the case of an Event of Default specified in Section 6.01(7) or (8) hereof, with respect to
the Company, any Restricted Subsidiary (other than the Exempt Subsidiaries) that is a Significant
Subsidiary or any group of Restricted Subsidiaries that, taken together, would constitute a
Significant Subsidiary, all Notes that are outstanding will become due and payable immediately
without further action or notice. If any other Event of Default occurs and is continuing, the
Trustee or the holders of at least 25% in principal amount of all Notes that are outstanding may
declare all the Notes to be due and payable immediately.



     Section 6.03 Waiver of Past Defaults.



65









 





     Holders of not less than a majority in aggregate principal amount of the then outstanding
Notes by notice to the Trustee may on behalf of the Holders of all of the Notes waive any existing
Default or Event of Default and its consequences hereunder, except a continuing Default or Event of
Default in the payment of the principal of, premium, if any, or interest on, the Notes (including
in connection with an offer to purchase); provided, however, that the Holders of a majority in
aggregate principal amount of the then outstanding Notes may rescind an acceleration and its
consequences, including any related payment default that resulted from such acceleration. Upon any
such waiver, such Default shall cease to exist, and any Event of Default arising therefrom shall be
deemed to have been cured for every purpose of the Indenture; but no such waiver shall extend to
any subsequent or other Default or impair any right consequent thereon.



     Section 6.04 Control by Majority.



     Subject to certain limitations, Holders of a majority in principal amount of the Notes that
are then outstanding may direct the Trustee in its exercise of any trust or power. The Trustee may
withhold from holders of the Notes notice of any continuing Default or Event of Default if it
determines that withholding notice is in their interest, except a Default or Event of Default
relating to the payment of principal or interest.



     Section 6.05 Limitations on Suits.



     Subject to the provisions of this Supplemental Indenture relating to the duties of the
Trustee, in case an Event of Default occurs and is continuing, the Trustee will be under no
obligation to exercise any of the rights or powers under this Supplemental Indenture at the request
or direction of any holders of Notes unless such holders have offered to the Trustee reasonable
indemnity or security against any loss, liability or expense. Except to enforce the right to
receive payment of principal, premium (if any) or interest when due, no Holder of a Note may pursue
any remedy with respect to this Supplemental Indenture or the Notes unless:




     (1) such Holder has previously given the Trustee notice that an Event of Default is
continuing;




     (2) Holders of at least 25% in aggregate principal amount of the Notes that are then
outstanding have requested the Trustee to pursue the remedy;




     (3) such Holders have offered the Trustee reasonable security or indemnity against
any loss, liability or expense it may incur;




     (4) the Trustee has not complied with such request within 60 days after the receipt
thereof and the offer of security or indemnity; and




     (5) Holders of a majority in aggregate principal amount of the Notes that are then
outstanding have not given the Trustee a direction inconsistent with such request within
such 60-day period.



     Section 6.06 Collection Suit by Trustee.



     If an Event of Default specified in Section 6.01(1) or (2) occurs and is continuing, the
Trustee is authorized to recover judgment in its own name and as trustee of an express trust
against the Company for the whole amount of principal of, premium, if any, and interest remaining
unpaid on the Notes and interest on overdue principal and, to the extent lawful, interest and such
further amount as shall be



66









 




sufficient to cover the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents and counsel.




     Section 6.07 Priorities.



     If the Trustee collects any money pursuant to this Article 6, it shall pay out the money in
the following order:




     First: to the Trustee, its agents and attorneys for amounts due under Section 7.01
hereof and Section 7.7 of the Base Indenture, including payment of all compensation,
expenses and liabilities incurred, and all advances made, by the Trustee and the costs and
expenses of collection;




     Second: to Holders of Notes for amounts due and unpaid on the Notes for principal,
premium, if any, and interest, ratably, without preference or priority of any kind,
according to the amounts due and payable on the Notes for principal, premium, if any, and
interest, respectively; and




     Third: to the Company or to such party as a court of competent jurisdiction shall
direct.



     The Trustee may fix a record date and payment date for any payment to Holders of Notes
pursuant to this Section 6.07.



ARTICLE 7.

TRUSTEE’S COMPENSATION AND INDEMNITY




     Section 7.01 Compensation and Indemnity.



     (a) The Company and Guarantors, jointly and severally, shall pay to the Trustee from time to
time reasonable compensation for its acceptance of this Supplemental Indenture and services
hereunder. The Trustee’s compensation will not be limited by any law on compensation of a trustee
of an express trust. The Company and Guarantors, jointly and severally, shall reimburse the
Trustee promptly upon request for all reasonable disbursements, advances and expenses incurred or
made by it in addition to the compensation for its services. Such expenses will include the
reasonable compensation, disbursements and expenses of the Trustee’s agents and counsel.



     (b) The Company and the Guarantors, jointly and severally, shall indemnify the Trustee against
any and all losses, liabilities or expenses incurred by it arising out of or in connection with the
acceptance or administration of its duties under this Supplemental Indenture and the Subsidiary
Guarantees including the costs and expenses of enforcing this Supplemental Indenture and the
Subsidiary Guarantees against the Company and the Guarantors (including this Section 7.01) and
defending itself against any claim (whether asserted by the Company, the Guarantors or any Holder
or any other Person) or liability in connection with the exercise or performance of any of its
powers or duties hereunder, except to the extent any such loss, liability or expense may be
attributable to its negligence or bad faith or willful misconduct. The Trustee shall notify the
Company promptly of any claim for which it may seek indemnity. Failure by the Trustee to so notify
the Company shall not relieve the Company or any of the Guarantors of their obligations hereunder.
The Company or such Guarantor shall defend the claim and the Trustee shall cooperate in the
defense. The Trustee may have separate counsel and the Company and / or Guarantors shall pay the
reasonable fees and expenses of such counsel. Neither the Company nor any Guarantor need pay for
any settlement made without its consent, which consent shall not be unreasonably withheld.



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     (c) The obligations of the Company and the Guarantors under this Section 7.01 will survive the
satisfaction and discharge of this Supplemental Indenture.



     (d) When the Trustee incurs expenses or renders services after an Event of Default specified
in Section 6.01(7) and (8) hereof occurs, the expenses and the compensation for the services
(including the fees and expenses of its agents and counsel) are intended to constitute expenses of
administration under any Bankruptcy Law.



     (e) The Trustee shall comply with the provisions of TIA § 313(b)(2) to the extent applicable.



     (f) The Company’s and Guarantors’ obligations under this Section 7.01 shall survive the
resignation or removal of the Trustee, any termination of this Supplemental Indenture, including
any termination or rejection of this Supplemental Indenture in any insolvency or similar proceeding
and the repayment of all the Notes.



ARTICLE 8.

LEGAL DEFEASANCE AND COVENANT DEFEASANCE




     Section 8.01 Option to Effect Legal Defeasance or Covenant Defeasance.



     The Company may, at the option of its Board of Directors evidenced by a resolution set forth
in an Officers’ Certificate, at any time, elect to have either Section 8.02 or 8.03 hereof be
applied to all outstanding Notes upon compliance with the conditions set forth below in this
Article 8.



     Section 8.02 Legal Defeasance and Discharge.



     Upon the Company’s exercise under Section 8.01 hereof of the option applicable to this Section
8.02, the Company and each of the Guarantors shall, subject to the satisfaction of the conditions
set forth in Section 8.04 hereof, be deemed to have been discharged from their obligations with
respect to all outstanding Notes (including the Subsidiary Guarantees) on the date the conditions
set forth in Section 8.04 hereof are satisfied (hereinafter, “Legal Defeasance”). For this
purpose, Legal Defeasance means that the Company and the Guarantors shall be deemed to have paid
and discharged the entire Indebtedness represented by the outstanding Notes (including the
Subsidiary Guarantees), which will thereafter be deemed to be “outstanding” only for the purposes
of Section 8.05 hereof and the other Sections of the Indenture referred to in clauses (1) and (2)
below, and to have satisfied all their other obligations under such Notes, the Subsidiary
Guarantees and this Supplemental Indenture and, to the extent applicable, the Base Indenture (and
the Trustee, on demand of and at the expense of the Company, shall execute proper instruments
acknowledging the same), except for the following provisions which will survive until otherwise
terminated or discharged hereunder:




     (1) the rights of Holders of outstanding Notes to receive payments in respect of the
principal of, or interest or premium, if any, and on such Notes when such payments are due
from the trust referred to in Section 8.04 hereof;




     (2) the Company’s obligations with respect to such Notes under Article 2 and Section
4.02 hereof;




     (3) the rights, powers, trusts, duties, indemnities and immunities of the Trustee
hereunder and under the Base Indenture, and the Company’s and the Guarantors’ obligations
in connection therewith; and



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     (4) this Article 8.



     Subject to compliance with this Article 8, the Company may exercise its option under this
Section 8.02 notwithstanding the prior exercise of its option under Section 8.03 hereof.



     Section 8.03 Covenant Defeasance.



     Upon the Company’s exercise under Section 8.01 hereof of the option applicable to this Section
8.03, the Company and the Guarantors shall, subject to the satisfaction of the conditions set forth
in Section 8.04 hereof, be released from each of their obligations under Sections 4.07, 4.08, 4.09,
4.10, 4.11, 4.12, 4.14, 4.15, 4.16, 4.17, 4.18, 4.19 and 4.20 hereof and clause (4) of Section 5.01
hereof with respect to the outstanding Notes on and after the date the conditions set forth in
Section 8.04 hereof are satisfied (hereinafter, “Covenant Defeasance”), and the Notes will
thereafter be deemed not “outstanding” for the purposes of any direction, waiver, consent or
declaration or act of Holders (and the consequences of any thereof) in connection with such
covenants, but will continue to be deemed “outstanding” for all other purposes hereunder (it being
understood that such Notes will not be deemed outstanding for accounting purposes). For this
purpose, Covenant Defeasance means that, with respect to the outstanding Notes and Subsidiary
Guarantees, the Company and the Guarantors may omit to comply with and shall have no liability in
respect of any term, condition or limitation set forth in any such covenant, whether directly or
indirectly, by reason of any reference elsewhere herein to any such covenant or by reason of any
reference in any such covenant to any other provision herein or in any other document and such
omission to comply will not constitute a Default or an Event of Default under Section 6.01 hereof,
but, except as specified above, the remainder of the Indenture and such Notes and Subsidiary
Guarantees shall be unaffected thereby. In addition, upon the Company’s exercise under Section
8.01 hereof of the option applicable to this Section 8.03, subject to the satisfaction of the
conditions set forth in Section 8.04 hereof, Sections 6.01(3) and 6.01(4) hereof shall not
constitute Events of Default.



     Section 8.04 Conditions to Legal or Covenant Defeasance.



     (a) In order to exercise either Legal Defeasance or Covenant Defeasance under either Section
8.02 or 8.03 hereof:




     (1) the Company must irrevocably deposit with the Trustee, in trust, for the benefit
of the Holders of the Notes, cash in U.S. dollars, non-callable Government Securities, or
a combination of cash in U.S. dollars and non-callable Government Securities, in amounts
as will be sufficient, in the opinion of a nationally recognized investment bank,
appraisal firm or firm of independent public accountants to pay the principal of, or
interest and premium on the Notes that are then outstanding on the Stated Maturity or on
the applicable redemption date, as the case may be, and the Company must specify whether
the Notes are being defeased to maturity or to a particular redemption date;




     (2) in the case of Legal Defeasance, the Company has delivered to the Trustee an
Opinion of Counsel reasonably acceptable to the Trustee confirming that (a) the Company
has received from, or there has been published by, the Internal Revenue Service a ruling
or (b) since the Issue Date, there has been a change in the applicable federal income tax
law, in either case to the effect that, and based thereon such Opinion of Counsel will
confirm that, the holders of the Notes that are then outstanding will not recognize
income, gain or loss for federal income tax purposes as a result of such Legal Defeasance
and will be subject to federal income tax on the same amounts, in the same manner and at
the same times as would have been the case if such Legal Defeasance had not occurred;



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     (3) in the case of Covenant Defeasance, the Company has delivered to the Trustee an
Opinion of Counsel reasonably acceptable to the Trustee confirming that the holders of the
Notes that are then outstanding will not recognize income, gain or loss for federal income
tax purposes as a result of such Covenant Defeasance and will be subject to federal income
tax on the same amounts, in the same manner and at the same times as would have been the
case if such Covenant Defeasance had not occurred;




     (4) no Default or Event of Default has occurred and is continuing on the date of such
deposit (other than a Default or Event of Default resulting from the borrowing of funds to
be applied to such deposit);




     (5) such Legal Defeasance or Covenant Defeasance will not result in a breach or
violation of, or constitute a default under any material agreement or instrument (other
than this Supplemental Indenture) to which the Company or any of its Subsidiaries is a
party or by which the Company or any of its Subsidiaries is bound;




     (6) the Company must deliver to the Trustee an Officers’ Certificate stating that the
deposit was not made by the Company with the intent of preferring the Holders of Notes
over the other creditors of the Company with the intent of defeating, hindering, delaying
or defrauding creditors of the Company or others; and




     (7) the Company must deliver to the Trustee an Officers’ Certificate and an Opinion
of Counsel, each stating that all conditions precedent relating to the Legal Defeasance or
the Covenant Defeasance have been complied with.




Section 8.05 Deposited Money and Government Securities to be Held in Trust; Other
Miscellaneous Provisions.



     Subject to Section 8.06 hereof, all money and non-callable Government Securities (including
the proceeds thereof) deposited with the Trustee (or other qualifying trustee, collectively for
purposes of this Section 8.05, the “Trustee”) pursuant to Section 8.04 hereof in respect of the
outstanding Notes shall be held in trust and applied by the Trustee, in accordance with the
provisions of such Notes and the Indenture, to the payment, either directly or through any Paying
Agent (including the Company acting as Paying Agent) as the Trustee may determine, to the Holders
of such Notes of all sums due and to become due thereon in respect of principal, premium, if any,
and interest, but such money need not be segregated from other funds except to the extent required
by law.



     The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed
on or assessed against the cash or non-callable Government Securities deposited pursuant to Section
8.04 hereof or the principal and interest received in respect thereof other than any such tax, fee
or other charge which by law is for the account of the Holders of the outstanding Notes.



     Notwithstanding anything in this Article 8 to the contrary, the Trustee shall deliver or pay
to the Company from time to time upon the request of the Company any money or non-callable
Government Securities held by it as provided in Section 8.04 hereof which, in the opinion of a
nationally recognized firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee (which may be the opinion delivered under Section 8.04(1) hereof),
are in excess of the amount thereof that would then be required to be deposited to effect an
equivalent Legal Defeasance or Covenant Defeasance.



     Section 8.06 Repayment to Company.



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     Any money deposited with the Trustee or any Paying Agent, or then held by the Company, in
trust for the payment of the principal of, premium, if any, or interest on any Note and remaining
unclaimed for two years after such principal, premium, if any, or interest has become due and
payable shall be paid to the Company on its written request or (if then held by the Company) will
be discharged from such trust; and the Holder of such Note will thereafter be permitted to look
only to the Company for payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee thereof, will thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being required to make any
such repayment, may at the expense of the Company cause to be published once, in the New York Times
and The Wall Street Journal (national edition), notice that such money remains unclaimed and that,
after a date specified therein, which will not be less than 30 days from the date of such
notification or publication, any unclaimed balance of such money then remaining shall be repaid to
the Company.



     Section 8.07 Reinstatement.



     If the Trustee or Paying Agent is unable to apply any United States dollars or non-callable
Government Securities in accordance with Section 8.02 or 8.03 hereof, as the case may be, by reason
of any order or judgment of any court or governmental authority enjoining, restraining or otherwise
prohibiting such application, then the Company’s and the Guarantors’ obligations under the
Indenture and the Notes and the Subsidiary Guarantees will be revived and reinstated as though no
deposit had occurred pursuant to Section 8.02 or 8.03 hereof until such time as the Trustee or
Paying Agent is permitted to apply all such money in accordance with Section 8.02 or 8.03 hereof,
as the case may be; provided, however, that, if the Company makes any payment of principal of,
premium, if any, or interest on any Note following the reinstatement of its obligations, the
Company shall be subrogated to the rights of the Holders of such Notes to receive such payment from
the money held by the Trustee or Paying Agent.



ARTICLE 9.

AMENDMENT, SUPPLEMENT AND WAIVER




     Section 9.01 Without Consent of Holders of Notes.



     Notwithstanding Article IX of the Base Indenture and Section 9.02 of this Supplemental
Indenture, the Company, the Guarantors and the Trustee may amend or supplement this Supplemental
Indenture, the Subsidiary Guarantees or the Notes without the consent of any Holder of Notes:




     (1) to cure any ambiguity, defect or inconsistency;




     (2) to provide for uncertificated notes in addition to or in place of certificated
notes;




     (3) to provide for the assumption of the Company’s obligations to Holders of Notes in
the case of a merger or consolidation or sale of all or substantially all of the Company’s
assets;




     (4) to make any change that would provide any additional rights or benefits to the
Holders of Notes or that does not adversely affect the legal rights under this
Supplemental Indenture of any such Holder;




     (5) to comply with requirements of the SEC in order to effect or maintain the
qualification of this Supplemental Indenture under the Trust Indenture Act;



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     (6) to conform the text of this Supplemental Indenture or the Notes to any provision
of the “Description of the Notes” section of the Company’s Prospectus Supplement, relating
to the initial offering of the Notes, to the extent that such provision in the
“Description of the Notes” was intended to be a verbatim recitation of a provision of this
Supplemental Indenture or the Notes;




     (7) to evidence and provide for the acceptance and appointment under this
Supplemental Indenture of a successor Trustee pursuant to the requirements thereof;




     (8) to provide for the issuance of Additional Notes in accordance with the
limitations set forth in this Supplemental Indenture as of the date hereof; or




     (9) to allow any Guarantor to execute a supplemental indenture and/or a Subsidiary
Guarantee with respect to the Notes.



     Upon the request of the Company accompanied by a resolution of its Board of Directors
authorizing the execution of any such amended or supplemental indenture, and upon receipt by the
Trustee of the documents described in Section 7.2 of the Base Indenture the Trustee shall join with
the Company and the Guarantors in the execution of any amended or supplemental indenture authorized
or permitted by the terms of this Supplemental Indenture and to make any further appropriate
agreements and stipulations that may be therein contained, but the Trustee shall not be obligated
to enter into such amended or supplemental indenture that affects its own rights, duties or
immunities under the Indenture or otherwise.



     Section 9.02 With Consent of Holders of Notes.



     (a) Except as provided below in this Section 9.02, the Company and the Trustee may amend or
supplement this Twenty-Second Supplemental Indenture (including, without limitation, Sections 3.09,
4.10 and 4.14 hereof), the Subsidiary Guarantees and the Notes with the consent of the Holders of
at least a majority in principal aggregate amount of the Notes then outstanding (including, without
limitation, consents obtained in connection with a tender offer or exchange offer for, or purchase
of, the Notes), and, subject to Section 6.04 hereof, any existing Default or Event of Default
(other than a Default or Event of Default in the payment of the principal of, premium or interest
on the Notes, except a payment default resulting from an acceleration that has been rescinded) or
compliance with any provision of this Supplemental Indenture, the Subsidiary Guarantees or the
Notes may be waived with the consent of the Holders of a majority in principal aggregate amount of
the then outstanding Notes (including, without limitation, consents obtained in connection with a
tender offer or exchange offer for, or purchase of, the Notes).



     Section 1.1 of the Base Indenture shall determine which Notes are considered to be
“outstanding” for purposes of this Section 9.02.



     Upon the request of the Company accompanied by a resolution of its Board of Directors and upon
the filing with the Trustee of evidence satisfactory to the Trustee of the consent of the Holders
of Notes as aforesaid, and upon receipt by the Trustee of the documents described in Section 7.2 of
the Base Indenture and Section 9.06 hereof, the Trustee shall join with the Company in the
execution of such amended or supplemental indenture unless such amended or supplemental indenture
directly affects the Trustee’s own rights, duties or immunities under the Indenture or otherwise,
in which case the Trustee may in its discretion, but will not be obligated to, enter into such
amended or supplemental indenture.



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     It is not necessary for the consent of the Holders under this Section 9.02 to approve the
particular form of any proposed amendment or waiver, but it is sufficient if such consent approves
the substance thereof.



     After an amendment, supplement or waiver under this Section 9.02 becomes effective, the
Company shall mail to the Holders affected thereby a notice briefly describing the amendment,
supplement or waiver. Any failure of the Company to mail such notice, or any defect therein, will
not, however, in any way impair or affect the validity of any such amended or supplemental
indenture or waiver.



     Subject to Section 6.04 hereof and Section 8.2 of the Base Indenture, the Holders of a
majority in aggregate principal amount of the Notes then outstanding voting as a single class may
waive compliance in a particular instance by the Company with any provision of this Supplemental
Indenture or the Notes or the Subsidiary Guarantees. However, without the consent of each Holder
affected, an amendment, supplement or waiver under this Section 9.02 may not (with respect to any
Notes held by a non-consenting Holder):




     (1) reduce the principal amount of Notes whose holders must consent to an amendment,
supplement or waiver;




     (2) reduce the principal of or change the fixed maturity of any Note or alter the
provisions with respect to the redemption of the Notes (other than provisions relating to
the covenants described in Section 3.07 hereof);




     (3) reduce the rate of or change the time for payment of interest on any Note;




     (4) waive a Default or Event of Default in the payment of principal of, or interest
or premium on the Notes (except a rescission of acceleration of the Notes by the holders
of at least a majority in aggregate principal amount of the Notes and a waiver of the
payment default that resulted from such acceleration);




     (5) make any Note payable in currency other than that stated in the Notes;




     (6) make any change in the provisions of this Supplemental Indenture relating to
waivers of past Defaults or the rights of holders of Notes to receive payments of
principal of, or interest or premium on the Notes;




     (7) waive a redemption payment with respect to any Note (other than a payment
required by one of the covenants described in Section 3.07 hereof; or




     (8) make any change in Section 9.02 hereof or Section 9.2 of the Base Indenture, as
to the Notes, or in the foregoing amendment and waiver provisions.



     (b) Other than as expressly provided in Section 9.02 above, the Base Indenture may only be
amended, supplemented or otherwise modified as and to the extent provided in the Base Indenture.



     Section 9.03 Compliance with Trust Indenture Act.



     Every amendment or supplement to this Supplemental Indenture or the Notes will be set forth in
a amended or supplemental Indenture that complies with the TIA as then in effect.



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     Section 9.04 Revocation and Effect of Consents.



     Until an amendment, supplement or waiver becomes effective, a consent to it by a Holder of a
Note is a continuing consent by the Holder of a Note and every subsequent Holder of a Note or
portion of a Note that evidences the same debt as the consenting Holder’s Note, even if notation of
the consent is not made on any Note. However, any such Holder of a Note or subsequent Holder of a
Note may revoke the consent as to its Note if the Trustee receives written notice of revocation
before the date the amendment, supplement or waiver becomes effective. An amendment, supplement or
waiver becomes effective in accordance with its terms and thereafter binds every Holder.



     Section 9.05 Notation on or Exchange of Notes.



     The Trustee may place an appropriate notation about an amendment, supplement or waiver on any
Note thereafter authenticated. The Company in exchange for all Notes may issue and the Trustee
shall, upon receipt of a Company Order, authenticate new Notes that reflect the amendment,
supplement or waiver.



     Failure to make the appropriate notation or issue a new Note will not affect the validity and
effect of such amendment, supplement or waiver.



     Section 9.06 Trustee to Sign Amendments, etc.



     The Trustee shall sign any amended or supplemental indenture authorized pursuant to this
Article 9 if the amendment or supplement does not adversely affect the rights, duties, liabilities
or immunities of the Trustee. The Company may not sign an amended or supplemental indenture until
the Board of Directors of the Company approves it. In executing any amended or supplemental
indenture, the Trustee will be entitled to receive and (subject to Section 7.1 of the Base
Indenture) will be fully protected in relying upon an Officers’ Certificate and an Opinion of
Counsel stating that the execution of such amended or supplemental indenture is authorized or
permitted by the Indenture.



ARTICLE 10.

SUBSIDIARY GUARANTEES




     Section 10.01 Guarantee.



     (a) Subject to this Article 10, each of the Guarantors hereby, jointly and severally,
unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and
to the Trustee and its successors and assigns, irrespective of the validity and enforceability of
the Indenture, the Notes or the obligations of the Company hereunder or thereunder, that:




     (1) the principal of, premium, if any, and interest on the Notes shall be promptly
paid in full when due, whether at maturity, by acceleration, redemption or otherwise, and
interest on the overdue principal of and interest on the Notes, if any, if lawful, and all
other obligations of the Company to the Holders or the Trustee hereunder or thereunder
shall be promptly paid in full or performed, all in accordance with the terms hereof and
thereof; and




     (2) in case of any extension of time of payment or renewal of any Notes or any of
such other obligations, that same shall be promptly paid in full when due or performed in
accordance with the terms of the extension or renewal, whether at stated maturity, by
acceleration or otherwise.



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     Failing payment when due of any amount so guaranteed or any performance so guaranteed for
whatever reason, the Guarantors will be jointly and severally obligated to pay the same
immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of
collection.



     (b) The Guarantors hereby agree that their obligations hereunder are unconditional,
irrespective of the validity, regularity or enforceability of the Notes or the Indenture, the
absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with
respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any
action to enforce the same or any other circumstance which might otherwise constitute a legal or
equitable discharge or defense of a guarantor. Each Guarantor hereby waives diligence,
presentment, demand of payment, filing of claims with a court in the event of insolvency or
bankruptcy of the Company, any right to require a proceeding first against the Company, protest,
notice and all demands whatsoever and covenant that this Subsidiary Guarantee will not be
discharged except by complete performance of the obligations contained in the Notes and the
Indenture.



     (c) If any Holder or the Trustee is required by any court or otherwise to return to the
Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in
relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such
Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in
full force and effect.



     (d) Each Guarantor agrees that it will not be entitled to any right of subrogation in relation
to the Holders in respect of any obligations guaranteed hereby until payment in full of all
obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on
the one hand, and the Holders and the Trustee, on the other hand, (1) the maturity of the
obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes
of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing
such acceleration in respect of the obligations guaranteed hereby, and (2) in the event of any
declaration of acceleration of such obligations as provided in Article 6 hereof, such obligations
(whether or not due and payable) will forthwith become due and payable by the Guarantors for the
purpose of this Subsidiary Guarantee. The Guarantors will have the right to seek contribution from
any non-paying Guarantor so long as the exercise of such right does not impair the rights of the
Holders under the Subsidiary Guarantee.



     Section 10.02 Limitation on Guarantor Liability.



     Each Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it is the
intention of all such parties that the Subsidiary Guarantee of such Guarantor not constitute a
fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance
Act, the Uniform Fraudulent Transfer Act or any similar federal or state law to the extent
applicable to any Subsidiary Guarantee. To effectuate the foregoing intention, the Trustee, the
Holders and the Guarantors hereby irrevocably agree that the obligations of such Guarantor will be
limited to the maximum amount that will, after giving effect to such maximum amount and all other
contingent and fixed liabilities of such Guarantor that are relevant under such laws, and after
giving effect to any collections from, rights to receive contribution from or payments made by or
on behalf of any other Guarantor in respect of the obligations of such other Guarantor under this
Article 10, result in the obligations of such Guarantor under its Subsidiary Guarantee not
constituting a fraudulent transfer or conveyance.



     Section 10.03 Execution and Delivery of Subsidiary Guarantee.



     To evidence its Subsidiary Guarantee set forth in Section 10.01, each Guarantor hereby agrees
that a notation of such Subsidiary Guarantee substantially in the form attached as Exhibit B hereto
shall



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be endorsed by an Officer of such Guarantor on each Note authenticated and delivered by the
Trustee and that this Supplemental Indenture shall be executed on behalf of such Guarantor by one
of its Officers.




     Each Guarantor hereby agrees that its Subsidiary Guarantee set forth in Section 10.01 will
remain in full force and effect notwithstanding any failure to endorse on each Note a notation of
such Subsidiary Guarantee.



     If an Officer whose signature is on this Supplemental Indenture or on the Subsidiary Guarantee
no longer holds that office at the time the Trustee authenticates the Note on which a Subsidiary
Guarantee is endorsed, the Subsidiary Guarantee will be valid nevertheless.



     The delivery of any Note by the Trustee, after the authentication thereof hereunder, will
constitute due delivery of the Subsidiary Guarantee set forth in this Supplemental Indenture on
behalf of the Guarantors.



     In the event that the Company creates or acquires any Domestic Subsidiary after the Issue
Date, if required by Section 4.17 hereof, the Company shall cause such Domestic Subsidiary to
comply with the provisions of Section 4.17 hereof and this Article 10, to the extent applicable.



     Section 10.04 Guarantors May Consolidate, etc., on Certain Terms.



     Except as otherwise provided in Section 10.05 hereof, no Guarantor may sell or otherwise
dispose of all or substantially all of its assets to, or consolidate with or merge with or into
(whether or not such Guarantor is the surviving Person) another Person, other than the Company or
another Guarantor, unless:




     (1) immediately after giving effect to that transaction, no Default or Event of
Default exists; and




     (2) either:




          (a) subject to Section 10.05 hereof, the Person acquiring the property in any such sale
or disposition or the Person formed by or surviving any such consolidation or merger assumes
all the obligations of that Guarantor under this Supplemental Indenture and its Subsidiary
Guarantee pursuant to supplemental agreements reasonably satisfactory to the Trustee;




          (b) the Net Proceeds of such sale or other disposition are applied in accordance with
the applicable provisions of this Supplemental Indenture, including without limitation,
Section 4.10 hereof; or




          (c) immediately after giving effect to that transaction, such Person qualifies as an
Excluded Subsidiary.



     In case of any such consolidation, merger, sale or conveyance and upon the assumption by the
successor Person, by supplemental indenture, executed and delivered to the Trustee and satisfactory
in form to the Trustee, of the Subsidiary Guarantee endorsed upon the Notes and the due and
punctual performance of all of the covenants and conditions of this Supplemental Indenture to be
performed by the Guarantor, such successor Person shall succeed to and be substituted for the
Guarantor with the same effect as if it had been named herein as a Guarantor. Such successor
Person thereupon may cause to be signed any or all of the Subsidiary Guarantees to be endorsed upon
all of the Notes issuable hereunder which theretofore shall not have been signed by the Company and
delivered to the Trustee. All the Subsidiary Guarantees so issued will in all respects have the
same legal rank and benefit under this



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Supplemental Indenture as the Subsidiary Guarantees theretofore and thereafter issued in
accordance with the terms of this Supplemental Indenture as though all of such Subsidiary
Guarantees had been issued on the Issue Date.




     Except as set forth in Articles 4 and 5 hereof, and notwithstanding clauses (a) and (b) above,
nothing contained in this Supplemental Indenture or in any of the Notes will prevent any
consolidation or merger of a Guarantor with or into the Company or another Guarantor, or will
prevent any sale or conveyance of the property of a Guarantor as an entirety or substantially as an
entirety to the Company or another Guarantor.



     Section 10.05 Releases.



     (a) The Subsidiary Guarantee of a Guarantor shall be released automatically:



          (1) in connection with any sale or other disposition of all or substantially all of the assets
of that Guarantor (including by way of merger or consolidation) to a Person that is not (either
before or after giving effect to such transaction) the Company or a Restricted Subsidiary of the
Company, if the sale or other disposition does not violate the provisions of Section 4.10 hereof;




          (2) in connection with any sale or other disposition of Capital Stock of that Guarantor to a
Person that is not (either before or after giving effect to such transaction) the Company or a
Restricted Subsidiary of the Company, if (a) the sale or other disposition does not violate the
provisions of Section 4.10 hereof and (b) following such sale or other disposition, that Guarantor
is not a direct or indirect Subsidiary of the Company;




          (3) if the Company designates any Restricted Subsidiary that is a Guarantor to be an
Unrestricted Subsidiary in accordance with the applicable provisions of this Supplemental
Indenture;




          (4) the date that any Subsidiary that is not an Excluded Subsidiary becomes an Excluded
Subsidiary;




          (5) upon defeasance or satisfaction and discharge of the Notes as provided in Sections 8.01,
8.02, 8.03, 8.04 and 11.01 hereof;




          (6) upon the dissolution of a Guarantor that is permitted under this Supplemental Indenture;
or




          (7) otherwise with respect to the Guarantee of any Guarantor, upon:




               (A) the prior consent of Holders of at least a majority in aggregate principal amount of the
Notes then outstanding;



               (B) the consent of requisite lenders under the Credit Agreement (as amended, restated,
modified, renewed, refunded, replaced or refinanced from time to time) to the release of such
Guarantor’s Guarantee of all Obligations under the Credit Agreement; or



               (C) the contemporaneous release of such Guarantor’s Guarantee of all Obligations under the
Credit Agreement (as amended, restated, modified, renewed, refunded, replaced or refinanced from
time to time).



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     (b) The Subsidiary Guarantee of a Guarantor shall be released with respect to the Notes
automatically upon Legal Defeasance, Covenant Defeasance or satisfaction and discharge of this
Supplemental Indenture pursuant to Articles 8 and 11 hereof.



     (c) Upon delivery by the Company to the Trustee of an Officers’ Certificate and an Opinion of
Counsel to the effect that the action or event giving rise to the applicable release has occurred
or was made by the Company in accordance with the provisions of this Supplemental Indenture,
including without limitation Section 4.10 hereof, the Trustee shall execute any documents
reasonably required in order to evidence the release of any Guarantor from its obligations under
its Subsidiary Guarantee.



     (d) Any Guarantor not released from its obligations under its Subsidiary Guarantee as provided
in this Section 10.05 will remain liable for the full amount of principal of and interest and
premium, if any, on the Notes and for the other obligations of any Guarantor under the Indenture as
provided in this Article 10.



ARTICLE 11.

SATISFACTION AND DISCHARGE




     Section 11.01 Satisfaction and Discharge.



     This Supplemental Indenture will be discharged and will cease to be of further effect as to
all Notes issued hereunder, when:




     (1) either:




          (a) all Notes that have been authenticated, except lost, stolen or destroyed Notes that
have been replaced or paid and Notes for whose payment money has been deposited in trust and
thereafter repaid to the Company, have been delivered to the Trustee for cancellation; or




          (b) all Notes that have not been delivered to the Trustee for cancellation have become
due and payable by reason of the distribution of a notice of redemption or otherwise or will
become due and payable within one year and the Company or any Guarantor has irrevocably
deposited or caused to be deposited with the Trustee as trust funds in trust solely for the
benefit of the Holders, cash in U.S. dollars, non-callable Government Securities, or a
combination of cash in U.S. dollars and non-callable Government Securities, in such amounts
as will be sufficient without consideration of any reinvestment of interest, to pay and
discharge the entire indebtedness on the Notes not delivered to the Trustee for cancellation
for principal, premium, if any, and accrued interest to the date of maturity or redemption;




     (2) no Default or Event of Default has occurred and is continuing on the date of the
deposit (other than a Default or Event of Default resulting from the borrowing of funds to
be applied to such deposit) and the deposit will not result in a breach or violation of,
or constitute a default under, any other instrument to which the Company or any Guarantor
is a party or by which the Company or any Guarantor is bound;




     (3) the Company or any Guarantor has paid or caused to be paid all sums payable by it
under this Supplemental Indenture; and




     (4) the Company has delivered irrevocable instructions to the Trustee under this
Supplemental Indenture to apply the deposited money toward the payment of the Notes at
maturity or the redemption date, as the case may be.



78









 




In addition, the Company must deliver an Officers’ Certificate and an Opinion of Counsel to the
Trustee stating that all conditions precedent to satisfaction and discharge have been satisfied.




     Notwithstanding the satisfaction and discharge of this Supplemental Indenture, if money has
been deposited with the Trustee pursuant to subclause (b) of clause (1) of this Section, the
provisions of Section 11.02 hereof and Section 8.06 hereof will survive. In addition, nothing in
this Section 11.01 will be deemed to discharge those provisions of Section 7.01 hereof and Section
7.7 of the Base Indenture, that, by their terms, survive the satisfaction and discharge of this
Supplemental Indenture.



     Section 11.02 Application of Trust Money.



     Subject to the provisions of Section 8.06 hereof, all money deposited with the Trustee
pursuant to Section 11.01 hereof shall be held in trust and applied by it, in accordance with the
provisions of the Notes and the Indenture, to the payment, either directly or through any Paying
Agent (including the Company acting as its own Paying Agent) as the Trustee may determine, to the
Persons entitled thereto, of the principal, premium, if any, and interest for whose payment such
money has been deposited with the Trustee; but such money need not be segregated from other funds
except to the extent required by law.



     If the Trustee or Paying Agent is unable to apply any money or Government Securities in
accordance with Section 11.01 hereof by reason of any legal proceeding or by reason of any order or
judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting
such application, the Company’s and any Guarantor’s obligations under this Supplemental Indenture
and the Notes shall be revived and reinstated as though no deposit had occurred pursuant to Section
11.01 hereof; provided that if the Company has made any payment of principal of, premium, if any,
or interest on any Notes because of the reinstatement of its obligations, the Company shall be
subrogated to the rights of the Holders of such Notes to receive such payment from the money or
Government Securities held by the Trustee or Paying Agent.



ARTICLE 12.

MISCELLANEOUS




     Section 12.01 Trust Indenture Act Controls.



     If any provision of this Supplemental Indenture limits, qualifies or conflicts with the duties
imposed by TIA §318(c), the imposed duties will control.



     Section 12.02 Notices.



     Any notice or communication by the Company, any Guarantor or the Trustee to the others is duly
given if in writing and delivered in Person or mailed by first class mail (registered or certified,
return receipt requested), telex, telecopier or overnight air courier guaranteeing next day
delivery, to the others’ address:



     If to the Company and/or any Guarantor:


NRG Energy, Inc.

211 Carnegie Place

Princeton, NJ 08540

Telecopier No.: (609) 524-4501

Attention: General Counsel




79









 







With a copy to:

Kirkland & Ellis LLP

300 North LaSalle Street

Chicago, IL 60654

Telecopier No.: (312) 862-2200

Attention: Gerald T. Nowak, Esq.



If to the Trustee:

Law Debenture Trust Company of New York

400 Madison Avenue

New York, NY 10017

Telecopier No.: (212) 750-1361

Attention: Corporate Trust Department




     The Company, any Guarantor or the Trustee, by notice to the others may designate additional or
different addresses for subsequent notices or communications.



     All notices and communications (other than those sent to Holders) will be deemed to have been
duly given: at the time delivered by hand, if personally delivered; five Business Days after being
deposited in the mail, postage prepaid, if mailed; when answered back, if telexed; when receipt
acknowledged, if telecopied; and the next Business Day after timely delivery to the courier, if
sent by overnight air courier guaranteeing next day delivery.



     Any notice or communication to a Holder will be mailed by first class mail, certified or
registered, return receipt requested, or by overnight air courier guaranteeing next day delivery to
its address shown on the register kept by the Registrar. Any notice or communication will also be
so mailed to any Person described in TIA § 313(c), to the extent required by the TIA. Failure to
mail a notice or communication to a Holder or any defect in it will not affect its sufficiency with
respect to other Holders.



     If a notice or communication is mailed in the manner provided above within the time
prescribed, it is duly given, whether or not the addressee receives it.



     If the Company mails a notice or communication to Holders, it will mail a copy to the Trustee
and each Agent at the same time.



     Section 12.03 Communication by Holders of Notes with Other Holders of Notes.



     Holders may communicate pursuant to TIA § 312(b) with other Holders with respect to their
rights under the Indenture or the Notes. The Company, the Trustee, the Registrar and anyone else
shall have the protection of TIA § 312(c).



     Section 12.04 No Personal Liability of Directors, Officers, Employees and Stockholders.



     No director, officer, employee, incorporator or stockholder of the Company or any Guarantor,
as such, will have any liability for any obligations of the Company or the Guarantors under the
Notes, this Supplemental Indenture, the Subsidiary Guarantees, or for any claim based on, in
respect of, or by reason of, such obligations or their creation. Each Holder of Notes by accepting
a Note waives and releases all such liability. The waiver and release are part of the consideration
for issuance of the Notes. The waiver may not be effective to waive liabilities under the federal
securities laws.



80









 





     Section 12.05 Governing Law.



     THE INTERNAL LAW OF THE STATE OF NEW YORK WILL GOVERN AND BE USED TO CONSTRUE THIS
SUPPLEMENTAL INDENTURE, THE NOTES AND THE SUBSIDIARY GUARANTEES WITHOUT GIVING EFFECT TO APPLICABLE
PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER
JURISDICTION WOULD BE REQUIRED THEREBY.



     Section 12.06 No Adverse Interpretation of Other Agreements.



     This Supplemental Indenture may not be used to interpret any other indenture, loan or debt
agreement of the Company or its Subsidiaries or of any other Person. Any such indenture, loan or
debt agreement may not be used to interpret this Supplemental Indenture.



     Section 12.07 Successors.



     All agreements of the Company in the Indenture and the Notes will bind its successors. All
agreements of the Trustee in the Indenture will bind its successors. All agreements of each
Guarantor in this Supplemental Indenture will bind its successors.



     Section 12.08 Severability.



     In case any provision in the Indenture or in the Notes is invalid, illegal or unenforceable,
the validity, legality and enforceability of the remaining provisions will not in any way be
affected or impaired thereby.



     Section 12.09 Counterpart Originals.



     The parties may sign any number of copies of this Supplemental Indenture. Each signed copy
will be an original, but all of them together represent the same agreement.



     Section 12.10 Table of Contents, Headings, etc.



     The Table of Contents, Cross-Reference Table and Headings of the Articles and Sections of this
Supplemental Indenture have been inserted for convenience of reference only, are not to be
considered a part of this Supplemental Indenture and will in no way modify or restrict any of the
terms or provisions hereof.



[Signatures on following pages]




81









 









SIGNATURES




Dated as of June 5, 2009




	 	 	 	 	 
	 	NRG ENERGY, INC.,

as Issuer

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



GUARANTORS:



ARTHUR KILL POWER LLC

ASTORIA GAS TURBINE POWER LLC

BERRIANS I GAS TURBINE POWER LLC

BIG CAJUN II UNIT 4 LLC

CABRILLO POWER I LLC

CABRILLO POWER II LLC

CHICKAHOMINY RIVER ENERGY CORP.

COMMONWEALTH ATLANTIC POWER LLC

CONEMAUGH POWER LLC

CONNECTICUT JET POWER LLC

DEVON POWER LLC

DUNKIRK POWER LLC

EASTERN SIERRA ENERGY COMPANY

EL SEGUNDO POWER, LLC

EL SEGUNDO POWER II LLC

GCP FUNDING COMPANY, LLC

HANOVER ENERGY COMPANY

HOFFMAN SUMMIT WIND PROJECT, LLC

HUNTLEY IGCC LLC

HUNTLEY POWER LLC

INDIAN RIVER IGCC LLC

INDIAN RIVER OPERATIONS INC.

INDIAN RIVER POWER LLC

JAMES RIVER POWER LLC

KAUFMAN COGEN LP

KEYSTONE POWER LLC

LAKE ERIE PROPERTIES INC.




[Signature
Page To Twenty-Second Supplemental Indenture]




 









 







LOUISIANA GENERATING LLC

MIDDLETOWN POWER LLC

MONTVILLE IGCC LLC

MONTVILLE POWER LLC

NEO CHESTER-GEN LLC

NEO CORPORATION

NEO FREEHOLD-GEN LLC

NEO POWER SERVICES INC.

NEW GENCO GP, LLC

NORWALK POWER LLC

NRG AFFILIATE SERVICES INC.

NRG ARTHUR KILL OPERATIONS INC.

NRG ASIA-PACIFIC, LTD.

NRG ASTORIA GAS TURBINE OPERATIONS INC.

NRG BAYOU COVE LLC

NRG CABRILLO POWER OPERATIONS INC.

NRG CADILLAC OPERATIONS INC.

NRG CALIFORNIA PEAKER OPERATIONS LLC

NRG CEDAR BAYOU DEVELOPMENT COMPANY, LLC

NRG CONNECTICUT AFFILIATE SERVICES INC.

NRG CONSTRUCTION LLC

NRG DEVON OPERATIONS INC.

NRG DUNKIRK OPERATIONS INC.

NRG EL SEGUNDO OPERATIONS INC.

NRG GENERATION HOLDINGS, INC.

NRG HUNTLEY OPERATIONS INC.

NRG INTERNATIONAL LLC

NRG KAUFMAN LLC

NRG MESQUITE LLC

NRG MIDATLANTIC AFFILIATE SERVICES INC.

NRG MIDDLETOWN OPERATIONS INC.

NRG MONTVILLE OPERATIONS INC.

NRG NEW JERSEY ENERGY SALES LLC

NRG NEW ROADS HOLDINGS LLC

NRG NORTH CENTRAL OPERATIONS INC.

NRG NORTHEAST AFFILIATE SERVICES INC.

NRG NORWALK HARBOR OPERATIONS INC.




[Signature
Page To Twenty-Second Supplemental Indenture]




 









 








NRG OPERATING SERVICES, INC.

NRG OSWEGO HARBOR POWER OPERATIONS INC.

NRG POWER MARKETING LLC

NRG ROCKY ROAD LLC

NRG SAGUARO OPERATIONS INC.

NRG SOUTH CENTRAL AFFILIATE SERVICES INC.

NRG SOUTH CENTRAL GENERATING LLC

NRG SOUTH CENTRAL OPERATIONS INC.

NRG SOUTH TEXAS LP

NRG TEXAS LLC

NRG TEXAS POWER LLC

NRG WEST COAST LLC

NRG WESTERN AFFILIATE SERVICES INC.

OSWEGO HARBOR POWER LLC

PADOMA WIND POWER, LLC

SAGUARO POWER LLC

SAN JUAN MESA WIND PROJECT II, LLC

SOMERSET OPERATIONS INC.

SOMERSET POWER LLC

TEXAS GENCO FINANCING CORP.

TEXAS GENCO GP, LLC

TEXAS GENCO HOLDINGS, INC.

TEXAS GENCO LP, LLC

TEXAS GENCO OPERATING SERVICES, LLC

TEXAS GENCO SERVICES, LP

VIENNA OPERATIONS, INC.

VIENNA POWER LLC

WCP (GENERATION) HOLDINGS LLC

WEST COAST POWER LLC




	 	 	 	 	 
	 	 	 
	 	By:  	
/s/ Christopher Sotos 	 
	 	 	Name:  	Christopher Sotos 	 
	 	 	Title:  	Authorized Signatory 	 
	 



	 	 	 	 	 
	 	Attest:	 
	 
	  	
/s/ Tanuja Dehne 	 	 
	 	Name:  	Tanuja Dehne 	 	 
	 	Title:  	Secretary, NRG Energy, Inc. 	 	 



[Signature
Page To Twenty-Second Supplemental Indenture]





 











 






	 	 	 	 	 
	 	NRG CONSTRUCTION LLC

 	 
	 	By:  	/s/
Rachel Smith	 
	 	 	Name:  	Rachel Smith 	 
	 	 	Title:  	Authorized Signatory 	 
	 



	 	 	 	 	 
	Attest:


 	 
	/s/
Tanuja Dehne 	 
	Name:   	Tanuja Dehne 
	Title:   	Secretary NRG Energy, Inc. 



[Signature page to Twenty-Second Supplemental Indenture]




 









 







	 	 	 	 	 
	 	LAW DEBENTURE TRUST COMPANY OF
NEW YORK,
as Trustee

 	 
	 	By:  	/s/ James D. Heaney	 
	 	 	Name:  	James D. Heaney	 
	 	 	Title:  	Managing Director	 



[Signature page to Twenty-Second Supplemental Indenture]





 









 








Schedule I




SCHEDULE OF GUARANTORS





     The following schedule lists each Guarantor under the Supplemental Indenture as of the Issue
Date:



Arthur Kill Power LLC, a Delaware limited liability company

Astoria Gas Turbine Power LLC, a Delaware limited liability company

Berrians I Gas Turbine Power LLC, a Delaware limited liability company

Big Cajun II Unit 4 LLC, a Delaware limited liability company

Cabrillo Power I LLC, a Delaware limited liability company

Cabrillo Power II LLC, a Delaware limited liability company

Chickahominy River Energy Corp., a Virginia corporation

Commonwealth Atlantic Power LLC, a Delaware limited liability company

Conemaugh Power LLC, a Delaware limited liability company

Connecticut Jet Power LLC, a Delaware limited liability company

Devon Power LLC, a Delaware limited liability company

Dunkirk Power LLC, a Delaware limited liability company

Eastern Sierra Energy Company, a California corporation

El Segundo Power, LLC, a Delaware limited liability company

El Segundo Power II LLC, a Delaware limited liability company

GCP Funding Company, LLC, a Delaware limited liability company

Hanover Energy Company, a California corporation

Hoffman Summit Wind Project, LLC, a California limited liability company

Huntley IGCC LLC, a Delaware limited liability company

Huntley Power LLC, a Delaware limited liability company

Indian River IGCC LLC, a Delaware limited liability company

Indian River Operations Inc., a Delaware corporation

Indian River Power LLC, a Delaware limited liability company

James River Power LLC, a Delaware limited liability company

Kaufman Cogen LP, a Delaware limited partnership

Keystone Power LLC, a Delaware limited liability company

Lake Erie Properties Inc., a Delaware corporation

Louisiana Generating LLC, a Delaware limited liability company

Middletown Power LLC, a Delaware limited liability company

Montville IGCC LLC, a Delaware limited liability company

Montville Power LLC, a Delaware limited liability company

NEO Chester-Gen LLC, a Delaware limited liability company

NEO Corporation, a Minnesota corporation

NEO Freehold-Gen LLC, a Delaware limited liability company

NEO Power Services Inc., a Delaware corporation

New Genco GP, LLC, a Delaware limited liability company

Norwalk Power LLC, a Delaware limited liability company

NRG Affiliate Services Inc., a Delaware corporation

NRG Arthur Kill Operations Inc., a Delaware corporation

NRG Asia-Pacific, Ltd., a Delaware corporation

NRG Astoria Gas Turbine Operations Inc., a Delaware corporation

NRG Bayou Cove LLC, a Delaware limited liability company

NRG Cabrillo Power Operations Inc., a Delaware corporation

NRG Cadillac Operations Inc., a Delaware corporation

NRG California Peaker Operations LLC, a Delaware limited liability company

NRG Cedar Bayou Development Company, LLC, a Delaware limited liability company

NRG Connecticut Affiliate Services Inc., a Delaware corporation

NRG Construction LLC, a Delaware limited liability company






 









 








NRG Devon Operations Inc., a Delaware corporation

NRG Dunkirk Operations Inc., a Delaware corporation

NRG El Segundo Operations Inc., a Delaware corporation

NRG Generation Holdings, Inc., a Delaware corporation

NRG Huntley Operations Inc., a Delaware corporation

NRG International LLC, a Delaware limited liability company

NRG Kaufman LLC, a Delaware limited liability company

NRG Mesquite LLC, a Delaware limited liability company

NRG MidAtlantic Affiliate Services Inc., a Delaware corporation

NRG Middletown Operations Inc., a Delaware corporation

NRG Montville Operations Inc., a Delaware corporation

NRG New Jersey Energy Sales LLC, a Delaware limited liability company

NRG New Roads Holdings LLC, a Delaware limited liability company

NRG North Central Operations Inc., a Delaware corporation

NRG Northeast Affiliate Services Inc., a Delaware corporation

NRG Norwalk Harbor Operations Inc., a Delaware corporation

NRG Operating Services, Inc., a Delaware corporation

NRG Oswego Harbor Power Operations Inc., a Delaware corporation

NRG Power Marketing LLC, a Delaware limited liability company

NRG Rocky Road LLC, a Delaware limited liability company

NRG Saguaro Operations Inc., a Delaware corporation

NRG South Central Affiliate Services Inc., a Delaware corporation

NRG South Central Generating LLC, a Delaware limited liability company

NRG South Central Operations Inc., a Delaware corporation

NRG South Texas LP, a Texas limited partnership

NRG Texas LLC, a Delaware limited liability company

NRG Texas Power LLC, a Delaware limited liability company

NRG West Coast LLC, a Delaware limited liability company

NRG Western Affiliate Services Inc., a Delaware corporation

Oswego Harbor Power LLC, a Delaware limited liability company

Padoma Wind Power, LLC, a California limited liability company

Saguaro Power LLC, a Delaware limited liability company

San Juan Mesa Wind Project II, LLC, a Delaware limited liability company

Somerset Operations Inc., a Delaware corporation

Somerset Power LLC, a Delaware limited liability company

Texas Genco Financing Corp., a Delaware corporation

Texas Genco GP, LLC, a Texas limited liability company

Texas Genco Holdings, Inc., a Texas corporation

Texas Genco LP, LLC, a Delaware limited liability company

Texas Genco Operating Services, LLC, a Delaware limited liability company

Texas Genco Services, LP, a Texas limited partnership

Vienna Operations, Inc., a Delaware corporation

Vienna Power LLC, a Delaware limited liability company

WCP (Generation) Holdings LLC, a Delaware limited liability company

West Coast Power LLC, a Delaware limited liability company







 









 








EXHIBIT A




[Face of Note] 





CUSIP/CINS 629377BG6




8.50% Senior Notes due 2019




No.




NRG ENERGY, INC.



promises to pay to .




or registered assigns,



the principal sum of 




Dollars on June 15, 2019.



Interest Payment Dates: June 15 and December 15



Record Dates: June 1 and December 1



Dated: June 5, 2009




Note




 









 








EXHIBIT A




     IN WITNESS WHEREOF, the Company has caused this Note to be duly executed.



	 	 	 	 	 
	 	NRG ENERGY, INC.

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



	 	 	 	 	 
	Date of Authentication: June 5, 2009



This Note is one of the Securities of

a series designated therein referred to

in the within-mentioned Base Indenture:



LAW DEBENTURE TRUST COMPANY OF NEW YORK,

as Trustee

 	 
	By:  	 	 
	 	Authorized Signatory 	 



Note




 









 








EXHIBIT A




[Back of Note]




8.50% Senior Notes due 2019



THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE TWENTY-SECOND SUPPLEMENTAL INDENTURE
GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND
IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (1) THE TRUSTEE MAY MAKE SUCH
NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 2.04 OF THE TWENTY-SECOND SUPPLEMENTAL
INDENTURE, (2) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION
2.04(a) OF THE TWENTY-SECOND SUPPLEMENTAL INDENTURE, (3) THIS GLOBAL NOTE MAY BE DELIVERED TO THE
TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.12 OF THE BASE INDENTURE AND (4) THIS GLOBAL NOTE
MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF NRG ENERGY, INC.



UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE FORM, THIS NOTE MAY
NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A
NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE
DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY (55 WATER STREET, NEW YORK, NEW YORK) (“DTC”), TO THE COMPANY OR ITS AGENT FOR REGISTRATION
OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE &
CO. OR SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.





     Capitalized terms used herein have the meanings assigned to them in the Supplemental Indenture
referred to below unless otherwise indicated.




1. Interest. NRG Energy, Inc., a Delaware corporation (the “Company”), promises to pay
interest on the principal amount of this Note at 8.50% per annum from June 5, 2009 until
maturity. The Company shall pay interest semi-annually in arrears on June 15 and December 15
of each year, or if any such day is not a Business Day, on the next succeeding Business Day
(each, an “Interest Payment Date”). Interest on the Notes will accrue from the most recent
date to which interest has been paid or, if no interest has been paid, from the date of
issuance; provided that if there is no existing Default in the payment of interest, and if
this Note is authenticated between a record date referred to on the face hereof and the next
succeeding Interest Payment Date, interest shall accrue from such next succeeding Interest
Payment Date; provided, further, that the first Interest Payment Date shall be December 15,
2009. Interest will be computed on the basis of a 360-day year of twelve 30-day months.




2. Method of Payment. The Company shall pay interest on the Notes to the Persons who are
registered Holders of Notes at the close of business on the June 1 or December 1 next
preceding the Interest Payment Date, even if such Notes are canceled after such record date
and on or before such Interest Payment Date, except as provided in Section 2.13 of the Base
Indenture with respect



Note




 









 







EXHIBIT A





to defaulted interest. The Notes will be payable as to principal, premium, if any, and
interest at the office or agency of the Company maintained for such purpose within the City
and State of New York, or, at the option of the Company, payment of interest and may be made
by check mailed to the Holders at their addresses set forth in the register of Holders;
provided that payment by wire transfer of immediately available funds will be required with
respect to principal of and interest and premium, if any, on, all Global Notes and all other
Notes the Holders of which will have provided wire transfer instructions to the Company or
the Paying Agent. Such payment shall be in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public and private debts.




3. Paying Agent and Registrar. Initially, Law Debenture Trust Company of New York, the
Trustee under the Indenture, will act as Paying Agent and the Registrar. The Company may
change any Paying Agent or the Registrar without notice to any Holder. The Company or any of
its Subsidiaries may act in any such capacity.




4. Indenture. This Note is one of a duly authenticated series of securities of the Company
issued and to be issued in one or more series under an Indenture (the “Base Indenture”),
dated as of February 2, 2006, between the Company and the Trustee, as amended by the
Twenty-Second Supplemental Indenture (the “Supplemental Indenture” and, together with the
Base Indenture, the “Indenture”), dated as of June 5, 2009, among the Company, the Guarantors
and the Trustee. The terms of the Notes include those stated in the Indenture and those made
part of the Indenture by reference to the Trust Indenture Act of 1939, as amended (15 U.S.
Code §§ 77aaa-77bbbb). The Notes are subject to all such terms, and Holders are referred to
the Indenture and such Act for a statement of such terms. To the extent any provision of
this Note conflicts with the express provisions of the Base Indenture, the provisions of this
Note shall govern and be controlling, and to the extent any provision of this Note conflicts
with the express provisions of the Supplemental Indenture, the provisions of the Supplemental
Indenture shall govern and be controlling. The Company shall be entitled to issue Additional
Notes pursuant to Section 2.05 of the Supplemental Indenture.




5. Optional Redemption.




     At any time prior to June 15, 2012, the Company may on any one or more occasions redeem
up to 35% of the aggregate principal amount of the Notes, upon not less than 30 nor more than
60 days’ notice, at a redemption price of 108.50% of the principal amount, plus accrued and
unpaid interest to the redemption date, with the proceeds of one or more Equity Offerings;
provided that:




     a. at least 65% of the aggregate principal amount of the Notes issued pursuant to the
Supplemental Indenture (excluding notes held by the Company and its Subsidiaries) remains
outstanding immediately after the occurrence of such redemption; and




     b. the redemption occurs within 90 days of the date of the closing of such Equity
Offering.




     At any time prior to June 15, 2014, the Company may on any one or more occasions redeem
all or a part of the Notes, upon not less than 30 nor more than 60 days’ prior notice, at a
redemption price equal to 100% of the principal amount of Notes redeemed plus the Applicable
Premium as of, and accrued and unpaid interest if any, to the redemption date, subject to the
rights of Holders of Notes on the relevant record date to receive interest due on the
relevant interest payment date.



Note




 









 







EXHIBIT A





     Except pursuant to clauses (a) and (b) above, the Notes are not redeemable at the
Company’s option prior to June 15, 2014. The Company is not prohibited, however, from
acquiring the notes in market transactions by means other than a redemption, whether pursuant
to a tender offer or otherwise, assuming such action does not otherwise violate the
Supplemental Indenture.




     On or after June 15, 2014, the Company may on any one or more occasions redeem all or a
part of the Notes upon not less than 30 nor more than 60 days’ notice, at the redemption
prices (expressed as percentages of principal amount) set forth below plus accrued and unpaid
interest on the Notes redeemed, to the applicable redemption date, if redeemed during the
twelve-month period beginning on June 15 of the years indicated below, subject to the rights
of Holders on the relevant record date to receive interest on the relevant interest payment
date:



	 	 	 	 	 
	Year	 	Percentage
	2014
	 	 	104.25	%
	2015
	 	 	102.83	%
	2016
	 	 	101.42	%
	2017 and thereafter
	 	 	100.00	%







6. Repurchase at Option of Holder.




(a) If there is a Change of Control Triggering Event, the Company shall be required to make
an offer (a “Change of Control Offer”) to repurchase all or any part (equal to $5,000 or
integral multiples of $5,000) of each Holder’s Notes at a purchase price equal to 101% of the
aggregate principal amount of Notes repurchased plus accrued and unpaid interest to the date
of purchase (the “Change of Control Payment”). Within 30 days following any Change of
Control Triggering Event, the Company shall mail a notice to each Holder setting forth the
procedures governing the Change of Control Offer as required by the Indenture.




(b) If the Company or a Restricted Subsidiary consummates any Asset Sales, and the aggregate
amount of Excess Proceeds exceeds $100.0 million, the Company shall commence an offer to all
Holders of Notes and all holders of other Indebtedness that is pari passu with the Notes
containing provisions similar to those set forth in the Supplemental Indenture with respect
to offers to purchase (or repay, prepay or redeem, as applicable) the maximum aggregate
principal amount of Notes and such other pari passu Indebtedness that may be purchased out of
the Excess Proceeds at an offer price in cash in an amount equal to 100% of the principal
amount thereof plus accrued and unpaid interest to the date fixed for the closing of such
offer (the “Asset Sale Offer”), in accordance with the procedures set forth in the
Supplemental Indenture. To the extent that the aggregate amount of Notes and other pari
passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds,
the Company may use such deficiency for any purpose not otherwise prohibited by the
Indenture. If the aggregate principal amount of Notes and other pari passu Indebtedness
surrendered by holders thereof exceeds the amount of Excess Proceeds, the Trustee shall
select the Notes and other pari passu Indebtedness to be purchased on a pro rata basis. Upon
completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero.
Holders of Notes that are the subject of an offer to purchase will receive an Asset Sale
Offer from the Company prior to any related purchase date and may elect to have such Notes
purchased by completing the form entitled “Option of Holder to Elect Purchase” on the reverse
of the Notes.



Note




 









 







EXHIBIT A





7. Notice of Redemption. Notice of redemption will be furnished at least 30 days but not
more than 60 days before the redemption date to each Holder whose Notes are to be redeemed.
Notes in denominations larger than $5,000 may be redeemed in part but only in whole multiples
of $5,000, unless all of the Notes held by a Holder are to be redeemed. On and after the
redemption date interest ceases to accrue on Notes or portions thereof called for redemption.




8. Denominations, Transfer, Exchange. The Notes are in registered form without coupons in
denominations of $5,000 and integral multiples of $5,000. The transfer of Notes may be
registered and Notes may be exchanged as provided in the Supplemental Indenture. The
Registrar and the Trustee may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and the Company may require a Holder to pay any taxes and
fees required by law or permitted by the Supplemental Indenture. The Company need not
exchange or register the transfer of any Note or portion of a Note selected for redemption,
except for the unredeemed portion of any Note being redeemed in part. Also, the Company need
not exchange or register the transfer of any Notes for a period of 15 days before a selection
of Notes to be redeemed or during the period between a record date and the corresponding
Interest Payment Date.




9. Persons Deemed Owners. The registered Holder of a Note may be treated as its owner for
all purposes.




10. Amendment, Supplement and Waiver. The Base Indenture may be amended as provided therein.
Subject to certain exceptions, the Supplemental Indenture or the Notes may be amended or
supplemented with the consent of the Holders of at least a majority in principal amount of
the then outstanding Notes, and any existing default or compliance with any provision of the
Supplemental Indenture or the Notes may be waived with the consent of the Holders of a
majority in principal amount of the then outstanding Notes. Without the consent of any
Holder of a Note, the Supplemental Indenture or the Notes may be amended or supplemented (i)
to cure any ambiguity, defect or inconsistency, (ii) to provide for uncertificated Notes in
addition to or in place of certificated Notes, (iii) to provide for the assumption of the
Company’s obligations to Holders of the Notes in the case of a merger or consolidation or
sale of all or substantially all of the Company’s assets pursuant to Article 5 of the
Supplemental Indenture, (iv) to make any change that would provide any additional rights or
benefits to the Holders of Notes or that does not adversely affect the legal rights under the
Supplemental Indenture of any such Holder, (v) to comply with the requirements of the SEC in
order to effect or maintain the qualification of the Supplemental Indenture under the Trust
Indenture Act, (vi) to conform the text of the Supplemental Indenture or the Notes to any
provision of the Description of Notes in the Prospectus Supplement to the extent that such
provision in the Description of Notes was intended to be a verbatim recitation of a provision
of the Supplemental Indenture or the Notes, (viii) to evidence and provide for the acceptance
and appointment under the Supplemental Indenture of a successor trustee pursuant to the
requirements thereof, (ix) to provide for the issuance of Additional Notes in accordance with
the limitations set forth in the Supplemental Indenture or (x) to allow any Guarantor to
execute a supplemental indenture and/or Subsidiary Guarantee with respect to the Notes to
become a Guarantor.




11. Defaults and Remedies. Events of Default include: (1) default for 30 days in the
payment when due of interest on the Notes; (2) default in payment when due of the principal
of, or premium, if any, on the Notes; (3) failure by the Company or any of its Restricted
Subsidiaries for 45 days after written notice given by the Trustee or Holders, to comply with
any of the other agreements in the Supplemental Indenture; (4) default under any mortgage,
indenture or instrument under which there may be issued or by which there may be secured or
evidenced any



Note




 









 







EXHIBIT A





Indebtedness for money borrowed by the Company or any of its Restricted Subsidiaries (or the
payment of which is guaranteed by the Company or any of its Restricted Subsidiaries) whether
such Indebtedness or guarantee now exists, or is created after the Issue Date, if that
default: (A) is caused by a failure to pay principal of, or interest or premium, if any, on
such Indebtedness prior to the expiration of the grace period provided in such Indebtedness
on the date of such default (a “Payment Default”); or (B) results in the acceleration of such
Indebtedness prior to its express maturity, and, in each case, the principal amount of any
such Indebtedness, together with the principal amount of any other such Indebtedness under
which there has been a Payment Default or the maturity of which has been so accelerated,
aggregates $150.0 million or more; provided that this clause (4) shall not apply to (i)
secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the
property or assets securing such Indebtedness to a Person that is not an Affiliate of the
Company; (ii) Non-Recourse Debt of the NRG Peaker Finance Company LLC; and (iii) Non-Recourse
Debt of the Company or any of its Subsidiaries (except to the extent that the Company or any
of its Restricted Subsidiaries that are not parties to such Non-Recourse Debt becomes
directly or indirectly liable, including pursuant to any contingent obligation, for any such
Non-Recourse Debt and such liability, individually or in the aggregate, exceeds $150.0
million); (5) one or more judgments for the payment of money in an aggregate amount in excess
of $150.0 million (excluding therefrom any amount reasonably expected to be covered by
insurance) shall be rendered against the Company, any Restricted Subsidiary of the Company
that is not an Excluded Project Subsidiary or any combination thereof and the same shall not
have been paid, discharged or stayed for a period of 60 days after such judgment became final
and non-appealable; (6) except as permitted by the Supplemental Indenture, any Subsidiary
Guarantee shall be held in any final and non-appealable judicial proceeding to be
unenforceable or invalid or shall cease for any reason to be in full force and effect or any
Guarantor (or any group of Guarantors) that constitutes a Significant Subsidiary, or any
Person acting on behalf of any Guarantor (or any group of Guarantors) that constitutes a
Significant Subsidiary, shall deny or disaffirm its or their obligations under its or their
Subsidiary Guarantee(s); (7) the Company or any of its Restricted Subsidiaries that is a
Significant Subsidiary or any group of Restricted Subsidiaries of the Company that, taken
together, would constitute a Significant Subsidiary pursuant to or within the meaning of
Bankruptcy Law: (A) commences a voluntary case, (B) consents to the entry of an order for
relief against it in an involuntary case, (C) consents to the appointment of a custodian of
it or for all or substantially all of its property, (D) makes a general assignment for the
benefit of its creditors, or (E) generally is not paying its debts as they become due; or (8)
a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:
(A) is for relief against the Company or any of its Restricted Subsidiaries that is a
Significant Subsidiary or any group of Restricted Subsidiaries of the Company that, taken
together, would constitute a Significant Subsidiary in an involuntary case; (B) appoints a
custodian of the Company or any of its Restricted Subsidiaries that is a Significant
Subsidiary or any group of Restricted Subsidiaries of the Company that, taken together, would
constitute a Significant Subsidiary or for all or substantially all of the property of the
Company or any of its Restricted Subsidiaries that is a Significant Subsidiary or any group
of Restricted Subsidiaries of the Company that, taken together, would constitute a
Significant Subsidiary; or (C) orders the liquidation of the Company or any of its Restricted
Subsidiaries that is a Significant Subsidiary or any group of Restricted Subsidiaries of the
Company that, taken together, would constitute a Significant Subsidiary; and the order or
decree remains unstayed and in effect for 60 consecutive days.




12. Trustee Dealings with Company. The Trustee, in its individual or any other capacity, may
make loans to, accept deposits from, and perform services for the Company or its Affiliates,
and may otherwise deal with the Company or its Affiliates, as if it were not the Trustee.
However, in the event that the Trustee acquires any conflicting interest it must eliminate
such



Note




 









 







EXHIBIT A



conflict within 90 days, apply to the SEC for permission to continue as trustee or resign.
Any Agent may do the same with like rights and duties. The Trustee is also subject to and
entitled to the benefits of Article VII of the Base Indenture.




13. No Recourse Against Others. No director, officer, employee, incorporator or stockholder
of the Company or any Guarantor, as such, will have any liability for any obligations of the
Company or the Guarantors under the Notes, the Indenture, the Subsidiary Guarantees or for
any claim based on, in respect of, or by reason of, such obligations or their creation. Each
Holder of Notes by accepting a Note waives and releases all such liability. The waiver and
release are part of the consideration for issuance of the Notes. The waiver may not be
effective to waive liabilities under the federal securities laws.




14. Authentication. This Note will not be valid until authenticated by the manual signature
of the Trustee or an authenticating agent.




15. Abbreviations. Customary abbreviations may be used in the name of a Holder or an
assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT
TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (=
Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).




16. CUSIP Numbers. Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Company has caused CUSIP numbers to be printed on the
Notes and the Trustee may use CUSIP numbers in notices of redemption as a convenience to
Holders. No representation is made as to the accuracy of such numbers either as printed on
the Notes or as contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.




17. Governing Law. THE INTERNAL LAW OF THE STATE OF NEW YORK WILL GOVERN AND BE USED TO
CONSTRUE THE SUPPLEMENTAL INDENTURE, THE NOTES AND THE SUBSIDIARY GUARANTEES WITHOUT GIVING
EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE
LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.




The Company shall furnish to any Holder upon written request and without charge a copy of the
Base Indenture, the Supplemental Indenture and the Subsidiary Guarantees. Requests may be
made to:


NRG Energy, Inc.

211 Carnegie Center

Princeton, New Jersey 08540

Attention: General Counsel




Note





 









 







EXHIBIT A




Assignment Form




     To assign this Note, fill in the form below:



	 	 	 
	(I) or (we) assign and transfer this Note to:
	 	 
	 

	 	 
	 

	 	(Insert assignee’s legal name)






 
(Insert assignee’s soc. sec. or tax I.D. no.)




 





 





 





 
(Print or type assignee’s name, address and zip code)



and irrevocably appoint 




to transfer this Note on the books of the Company. The agent may substitute another to act for
him.




Date:                     




	 	 	 	 	 
	 

	 	Your Signature:	 	 
	 

	 	 	 	 
	 	 	(Sign exactly as your name appears on the face of this Note)







Signature Guarantee*:                                         






 




			
	*	 	Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).





Note





 









 








Option of Holder to Elect Purchase




     If you want to elect to have this Note purchased by the Company pursuant to Section 4.10 or
4.14 of the Supplemental Indenture, check the appropriate box below:



	 	 	 
	o  Section 4.10
	 	o  Section 4.14






     If you want to elect to have only part of the Note purchased by the Company pursuant to
Section 4.10 or Section 4.14 of the Supplemental Indenture, state the amount you elect to have
purchased:



$_______________




Date:                     




	 	 	 	 	 
	 

	 	Your Signature:	 	 
	 

	 	 	 	 
	 	 	(Sign exactly as your name appears on the face of this Note)

	 
	 	 	 	 
	 	 	Tax Identification No.: 







Signature Guarantee*:                                         






 




			
	*	 	Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).




B-1









 










EXHIBIT B




FORM OF NOTATION OF GUARANTEE




     For value received, each Guarantor (which term includes any successor Person under the
Indenture) has, jointly and severally, unconditionally guaranteed on a senior basis, to the extent
set forth in the Indenture and subject to the provisions in the indenture (the “Base Indenture”),
dated as of February 2, 2006, between NRG Energy, Inc., (the
“Company”) and Law Debenture Trust
Company of New York, as trustee (the “Trustee”), as amended by the Twenty-Second Supplemental
Indenture (the “Supplemental Indenture” and, together with the Base Indenture, the “Indenture”),
dated as of June 5, 2009, among the Company, the Guarantors (as defined in the Supplemental
Indenture) and the Trustee, (a) the due and punctual payment of the principal of, premium, if any,
and interest on the Notes (as defined in the Supplemental Indenture), whether at maturity, by
acceleration, redemption or otherwise, the due and punctual payment of interest on overdue
principal of and interest on the Notes, if any, if lawful, and the due and punctual performance of
all other obligations of the Company to the Holders or the Trustee all in accordance with the terms
of the Indenture and (b) in case of any extension of time of payment or renewal of any Notes or any
of such other obligations, that the same will be promptly paid in full when due or performed in
accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration
or otherwise. The Obligations of the Guarantors to the Holders of Notes and to the Trustee
pursuant to the Subsidiary Guarantee and the Indenture are expressly set forth in Article 10 of the
Supplemental Indenture and reference is hereby made to the Indenture for the precise terms of the
Subsidiary Guarantee. Each Holder of a Note, by accepting the same, agrees to and shall be bound
by such provisions and appoints the Trustee attorney-in-fact of such Holder for such purpose.



ARTHUR KILL POWER LLC

ASTORIA GAS TURBINE POWER LLC

BERRIANS I GAS TURBINE POWER LLC

BIG CAJUN II UNIT 4 LLC

CABRILLO POWER I LLC

CABRILLO POWER II LLC

CHICKAHOMINY RIVER ENERGY CORP.

COMMONWEALTH ATLANTIC POWER LLC

CONEMAUGH POWER LLC

CONNECTICUT JET POWER LLC

DEVON POWER LLC

DUNKIRK POWER LLC

EASTERN SIERRA ENERGY COMPANY

EL SEGUNDO POWER, LLC

EL SEGUNDO POWER II LLC

GCP FUNDING COMPANY, LLC

HANOVER ENERGY COMPANY

HOFFMAN SUMMIT WIND PROJECT, LLC

HUNTLEY IGCC LLC

HUNTLEY POWER LLC

INDIAN RIVER IGCC LLC




Notation of Guarantee




 









 







EXHIBIT B





INDIAN RIVER OPERATIONS INC.

INDIAN RIVER POWER LLC

JAMES RIVER POWER LLC

KAUFMAN COGEN LP

KEYSTONE POWER LLC

LAKE ERIE PROPERTIES INC.

LOUISIANA GENERATING LLC

MIDDLETOWN POWER LLC

MONTVILLE IGCC LLC

MONTVILLE POWER LLC

NEO CHESTER-GEN LLC

NEO CORPORATION

NEO FREEHOLD-GEN LLC

NEO POWER SERVICES INC.

NEW GENCO GP, LLC

NORWALK POWER LLC

NRG AFFILIATE SERVICES INC.

NRG ARTHUR KILL OPERATIONS INC.

NRG ASIA-PACIFIC, LTD.

NRG ASTORIA GAS TURBINE OPERATIONS INC.

NRG BAYOU COVE LLC

NRG CABRILLO POWER OPERATIONS INC.

NRG CADILLAC OPERATIONS INC.

NRG CALIFORNIA PEAKER OPERATIONS LLC

NRG CEDAR BAYOU DEVELOPMENT COMPANY, LLC

NRG CONNECTICUT AFFILIATE SERVICES INC.

NRG DEVON OPERATIONS INC.

NRG DUNKIRK OPERATIONS INC.

NRG EL SEGUNDO OPERATIONS INC.

NRG GENERATION HOLDINGS, INC.

NRG HUNTLEY OPERATIONS INC.

NRG INTERNATIONAL LLC

NRG KAUFMAN LLC

NRG MESQUITE LLC

NRG MIDATLANTIC AFFILIATE SERVICES INC.

NRG MIDDLETOWN OPERATIONS INC.

NRG MONTVILLE OPERATIONS INC.

NRG NEW JERSEY ENERGY SALES LLC




Notation of Guarantee




 









 






EXHIBIT B






NRG NEW ROADS HOLDINGS LLC

NRG NORTH CENTRAL OPERATIONS INC.

NRG NORTHEAST AFFILIATE SERVICES INC.

NRG NORWALK HARBOR OPERATIONS INC.

NRG OPERATING SERVICES, INC.

NRG OSWEGO HARBOR POWER OPERATIONS INC.

NRG POWER MARKETING LLC

NRG ROCKY ROAD LLC

NRG SAGUARO OPERATIONS INC.

NRG SOUTH CENTRAL AFFILIATE SERVICES INC.

NRG SOUTH CENTRAL GENERATING LLC

NRG SOUTH CENTRAL OPERATIONS INC.

NRG SOUTH TEXAS LP

NRG TEXAS LLC

NRG TEXAS POWER LLC

NRG WEST COAST LLC

NRG WESTERN AFFILIATE SERVICES INC.

OSWEGO HARBOR POWER LLC

PADOMA WIND POWER, LLC

SAGUARO POWER LLC

SAN JUAN MESA WIND PROJECT II, LLC

SOMERSET OPERATIONS INC.

SOMERSET POWER LLC

TEXAS GENCO FINANCING CORP.

TEXAS GENCO GP, LLC

TEXAS GENCO HOLDINGS, INC.

TEXAS GENCO LP, LLC

TEXAS GENCO OPERATING SERVICES, LLC

TEXAS GENCO SERVICES, LP

VIENNA OPERATIONS, INC.

VIENNA POWER LLC

WCP (GENERATION) HOLDINGS LLC

WEST COAST POWER LLC




	 	 	 	 	 
	 	 	 
	 	By:  	
 	 
	 	 	Name:  	Christopher Sotos 	 
	 	 	Title:  	Authorized Signatory 	 
	 



Notation of Guarantee




 









 







EXHIBIT B





	 	 	 	 	 
	 	NRG CONSTRUCTION LLC

 	 
	 	By:  	 	 
	 	 	Name:  	Rachel Smith 	 
	 	 	Title:  	Treasurer 	 
	 



Notation of Guarantee





 









 








FORM OF SUPPLEMENTAL INDENTURE

ADDITIONAL SUBSIDIARY GUARANTEES





     Supplemental Indenture (this “Supplemental Indenture for Additional Guarantees”),
dated as of                     , 20___, among                      (the “Guaranteeing
Subsidiary”), a subsidiary of NRG Energy, Inc. (or its permitted successor), a                      corporation
(the “Company”), the Company, the other Guarantors (as defined in the Indenture
referred to herein) and Law Debenture Trust Company of New York, as trustee under the indentures
referred to below (the “Trustee”).



WITNESSETH




     WHEREAS, the Company has heretofore executed and delivered to the Trustee an indenture (the
“Base Indenture”), dated as of February 2, 2006, between the Company and the Trustee, as amended by
a Twenty-Second Supplemental Indenture (the “Supplemental Indenture” and, together with the Base
Indenture, the “Indenture”), dated as of June 5, 2009, among the Company, the Guarantors named
therein and the Trustee, providing for the original issuance of an aggregate principal amount of
$700 million of 8.50% Senior Notes due 2019 (the “Initial Notes”), and, subject to the terms of the
Supplemental Indenture, future unlimited issuances of 8.50% Senior Notes due 2019 (the “Additional
Notes,” and together with the Initial Notes, the “Notes”);



     WHEREAS, the Indenture provides that under certain circumstances the Guaranteeing Subsidiary
shall execute and deliver to the Trustee a supplemental indenture pursuant to which the
Guaranteeing Subsidiary shall unconditionally guarantee all of the Company’s Obligations under the
Notes and the Indenture (the “Subsidiary Guarantee”); and



     WHEREAS, pursuant to Section 4.17 of the Supplemental Indenture, the Trustee, the Company and
the other Guarantors are authorized and required to execute and deliver this Supplemental Indenture
for Additional Guarantees.



     NOW THEREFORE, in consideration of the foregoing and for good and valuable consideration, the
receipt of which is hereby acknowledged, the Guaranteeing Subsidiary, the Trustee, the Company and
the other Guarantors mutually covenant and agree for the equal and ratable benefit of the Holders
of the Notes as follows:



     1. Capitalized Terms. Unless otherwise defined in this Supplemental Indenture for Additional
Guarantees, capitalized terms used herein without definition shall have the meanings assigned to
them in the Supplemental Indenture.



     2. Agreement to be Bound; Guarantee. The Guaranteeing Subsidiary hereby becomes a party to
the Supplemental Indenture as a Guarantor and as such will have all of the rights and be subject to
all of the Obligations and agreements of a Guarantor under the Indenture. The Guaranteeing
Subsidiary hereby agrees to be bound by all of the provisions of the Supplemental Indenture
applicable to a Guarantor and to perform all of the Obligations and agreements of a Guarantor under
the Supplemental Indenture. In furtherance of the foregoing, the Guaranteeing Subsidiary shall be
deemed a Guarantor for purposes of Article 10 of the Supplemental Indenture, including, without
limitation, Section 10.02 thereof.



     3. NEW YORK LAW TO GOVERN. THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED
TO CONSTRUE THIS SUPPLEMENTAL



D-1









 







INDENTURE FOR ADDITIONAL GUARANTEES BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF
CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE
REQUIRED THEREBY.



     4. Counterparts. The parties may sign any number of copies of this Supplemental Indenture for
Additional Guarantees. Each signed copy shall be an original, but all of them together represent
the same agreement.



     5. Effect of Headings. The Section headings herein are for convenience only and shall not
affect the construction hereof.



     6. The Trustee. The Trustee shall not be responsible in any manner whatsoever for or in
respect of the validity or sufficiency of this Supplemental Indenture for Additional Guarantees or
for or in respect of the recitals contained herein, all of which recitals are made solely by the
Guaranteeing Subsidiary and the Company.



     7. Ratification of Indenture; Supplemental Indenture for Additional Guarantees Part of
Indenture. Except as expressly amended hereby, the Indenture is in all respects ratified and
confirmed and all the terms, conditions and provisions thereof shall remain in full force and
effect. This Supplemental Indenture for Additional Guarantees shall form a part of the Indenture
for all purposes, and every Holder of Notes heretofore or hereafter authenticated and delivered
shall by bound hereby.



[Signature Page Follows]




D-2









 







IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture for Additional
Guarantees to be duly executed and attested, all as of the date first above written.




Dated:                     , 20___




	 	 	 	 	 
	 	[Guaranteeing Subsidiary]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	[Company]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	[Existing Guarantors]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	[Trustee],

as Trustee

 	 
	 	By:  	 	 
	 	 	Authorized Signatory 	 
	 	 	 	 
	 




D-3