EX-10.1







Exhibit 10.1




 

 










NUCLEAR INNOVATION NORTH AMERICA LLC,




NUCLEAR INNOVATION NORTH AMERICA INVESTMENTS LLC,




NINA TEXAS 3 LLC and




NINA TEXAS 4 LLC,




as Borrowers




 






$500,000,000




CREDIT AGREEMENT




Dated as of February 24, 2009




 






TOSHIBA AMERICA NUCLEAR ENERGY CORPORATION,




as Administrative Agent and as Collateral Agent




 


 

 




 









 





	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	Page	 
	 
	 	 	 	 	 	 	 	 	 	 
	ARTICLE I	 	DEFINITIONS	 	 	1	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	Section 1.01	 	Certain Defined Terms	 	 	1	 
	 	 	Section 1.02	 	Accounting Principles	 	 	17	 
	 	 	Section 1.03	 	Interpretation	 	 	17	 
	 
	 	 	 	 	 	 	 	 	 	 
	ARTICLE II	 	THE LOANS	 	 	18	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	Section 2.01	 	The Loans	 	 	18	 
	 	 	Section 2.02	 	Borrowing Procedure	 	 	19	 
	 	 	Section 2.03	 	Non-Receipt of Funds	 	 	20	 
	 	 	Section 2.04	 	Lending Offices	 	 	20	 
	 	 	Section 2.05	 	Evidence of Indebtedness	 	 	21	 
	 
	 	 	 	 	 	 	 	 	 	 
	ARTICLE III	 	INTEREST AND FEES	 	 	21	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	Section 3.01	 	Interest	 	 	21	 
	 	 	Section 3.02	 	Default Rate of Interest	 	 	22	 
	 	 	Section 3.03	 	Fees	 	 	22	 
	 	 	Section 3.04	 	Computations	 	 	23	 
	 	 	Section 3.05	 	Highest Lawful Rate	 	 	23	 
	 
	 	 	 	 	 	 	 	 	 	 
	ARTICLE IV	 	REDUCTION OF COMMITMENTS; REPAYMENT; PREPAYMENT	 	 	23	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	Section 4.01	 	Extension of Maturity Date; Reduction or Termination of the Commitments	 	 	23	 
	 	 	Section 4.02	 	Repayment of the Loans	 	 	24	 
	 	 	Section 4.03	 	Prepayments	 	 	25	 
	 	 	Section 4.04	 	Net Payments	 	 	25	 
	 
	 	 	 	 	 	 	 	 	 	 
	ARTICLE V	 	YIELD PROTECTION AND ILLEGALITY	 	 	26	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	Section 5.01	 	Compensation for Losses	 	 	26	 
	 	 	Section 5.02	 	Regulatory Changes	 	 	26	 
	 	 	Section 5.03	 	Illegality	 	 	27	 
	 	 	Section 5.04	 	Obligation to Mitigate	 	 	27	 
	 	 	Section 5.05	 	Substitution of Lenders	 	 	28	 
	 
	 	 	 	 	 	 	 	 	 	 
	ARTICLE VI	 	PAYMENTS	 	 	28	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	Section 6.01	 	Pro Rata Treatment	 	 	28	 
	 	 	Section 6.02	 	Payments	 	 	28	 
	 	 	Section 6.03	 	Taxes	 	 	29	 
	 	 	Section 6.04	 	Non-Receipt of Funds	 	 	31	 
	 	 	Section 6.05	 	Sharing of Payments	 	 	32	 
	 
	 	 	 	 	 	 	 	 	 	 
	ARTICLE VII	 	CONDITIONS PRECEDENT	 	 	32	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	Section 7.01	 	Conditions Precedent to the Initial Loans	 	 	32	 
	 	 	Section 7.02	 	Conditions Precedent to All Loans	 	 	34	 






i









 






	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	Page	 
	 
	 	 	 	 	 	 	 	 	 	 
	ARTICLE VIII	 	REPRESENTATIONS AND WARRANTIES	 	 	35	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	Section 8.01	 	Organization and Powers	 	 	35	 
	 	 	Section 8.02	 	Authorization; No Conflict	 	 	36	 
	 	 	Section 8.03	 	Binding Obligation	 	 	36	 
	 	 	Section 8.04	 	Consents	 	 	36	 
	 	 	Section 8.05	 	Title to Properties; Liens	 	 	37	 
	 	 	Section 8.06	 	Litigation	 	 	37	 
	 	 	Section 8.07	 	Compliance with Environmental Laws	 	 	37	 
	 	 	Section 8.08	 	Investment Company Status	 	 	37	 
	 	 	Section 8.09	 	ERISA	 	 	37	 
	 	 	Section 8.10	 	Subsidiaries and Other Equity Investments	 	 	38	 
	 	 	Section 8.11	 	Margin Regulations	 	 	38	 
	 	 	Section 8.12	 	Taxes	 	 	38	 
	 	 	Section 8.13	 	Patents and Other Rights	 	 	38	 
	 	 	Section 8.14	 	Insurance	 	 	38	 
	 	 	Section 8.15	 	Financial Statements and Projections	 	 	39	 
	 	 	Section 8.16	 	Compliance with Laws, Etc	 	 	39	 
	 	 	Section 8.17	 	Solvency	 	 	39	 
	 	 	Section 8.18	 	Collateral	 	 	39	 
	 	 	Section 8.19	 	Burdensome Agreements	 	 	40	 
	 
	 	 	 	 	 	 	 	 	 	 
	ARTICLE IX	 	AFFIRMATIVE COVENANTS	 	 	40	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	Section 9.01	 	Reporting Covenants	 	 	40	 
	 	 	Section 9.02	 	Preservation of Existence, Etc	 	 	43	 
	 	 	Section 9.03	 	Payment of Certain Obligations	 	 	44	 
	 	 	Section 9.04	 	Maintenance of Insurance	 	 	44	 
	 	 	Section 9.05	 	Keeping of Records and Books of Account	 	 	44	 
	 	 	Section 9.06	 	Inspection Rights	 	 	45	 
	 	 	Section 9.07	 	Compliance with Laws, Etc	 	 	45	 
	 	 	Section 9.08	 	Licenses	 	 	45	 
	 	 	Section 9.09	 	Action Under Environmental Laws	 	 	45	 
	 	 	Section 9.10	 	Use of Proceeds	 	 	46	 
	 	 	Section 9.11	 	Financing Plan	 	 	46	 
	 	 	Section 9.12	 	Reinvestment of Equity Proceeds	 	 	46	 
	 	 	Section 9.13	 	Existing NINA Credit Agreement	 	 	46	 
	 	 	Section 9.14	 	Additional Guarantors and Collateral	 	 	46	 
	 	 	Section 9.15	 	Further Assurances and Additional Acts	 	 	47	 
	 
	 	 	 	 	 	 	 	 	 	 
	ARTICLE X	 	NEGATIVE COVENANTS	 	 	47	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	Section 10.01	 	Indebtedness	 	 	47	 
	 	 	Section 10.02	 	Liens; Burdensome Agreements	 	 	49	 
	 	 	Section 10.03	 	Change in Nature of Business	 	 	49	 
	 	 	Section 10.04	 	Restrictions on Fundamental Changes	 	 	49	 
	 	 	Section 10.05	 	Sales of Assets	 	 	50	 






ii









 






	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	Page	 
	 	 	Section 10.06	 	Loans and Investments	 	 	50	 
	 	 	Section 10.07	 	Capital Expenditures	 	 	51	 
	 	 	Section 10.08	 	Sales and Leasebacks	 	 	51	 
	 	 	Section 10.09	 	Restricted Payments	 	 	52	 
	 	 	Section 10.10	 	Amendments of Certain Documents	 	 	52	 
	 	 	Section 10.11	 	Redemption of Subordinated Debt	 	 	53	 
	 	 	Section 10.12	 	Transactions with Related Parties	 	 	53	 
	 	 	Section 10.13	 	ERISA	 	 	54	 
	 
	 	 	 	 	 	 	 	 	 	 
	ARTICLE XI	 	EVENTS OF DEFAULT	 	 	54	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	Section 11.01	 	Events of Default	 	 	54	 
	 	 	Section 11.02	 	Effect of Event of Default	 	 	57	 
	 
	 	 	 	 	 	 	 	 	 	 
	ARTICLE XII	 	THE ADMINISTRATIVE AGENT	 	 	57	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	Section 12.01	 	Authorization and Action	 	 	57	 
	 	 	Section 12.02	 	Limitation on Liability of the Administrative Agent; Notices; Closing	 	 	58	 
	 	 	Section 12.03	 	The Administrative Agent and Affiliates	 	 	59	 
	 	 	Section 12.04	 	Notice of Defaults	 	 	59	 
	 	 	Section 12.05	 	Non-Reliance on the Administrative Agent	 	 	59	 
	 	 	Section 12.06	 	Indemnification	 	 	60	 
	 	 	Section 12.07	 	Delegation of Duties	 	 	60	 
	 	 	Section 12.08	 	Successor Administrative Agent	 	 	60	 
	 	 	Section 12.09	 	Collateral Matters	 	 	61	 
	 	 	Section 12.10	 	The Administrative Agent May File Proofs of Claim	 	 	61	 
	 
	 	 	 	 	 	 	 	 	 	 
	ARTICLE XIII	 	MISCELLANEOUS	 	 	62	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	Section 13.01	 	Amendments and Waivers	 	 	62	 
	 	 	Section 13.02	 	Notices; Facsimile Copies	 	 	63	 
	 	 	Section 13.03	 	No Waiver; Cumulative Remedies	 	 	64	 
	 	 	Section 13.04	 	Costs and Expenses; Indemnification	 	 	65	 
	 	 	Section 13.05	 	Right of Set-Off	 	 	66	 
	 	 	Section 13.06	 	Survival	 	 	66	 
	 	 	Section 13.07	 	Lender Obligations Several	 	 	67	 
	 	 	Section 13.08	 	Co-Borrower Provisions	 	 	67	 
	 	 	Section 13.09	 	Benefits of Agreement	 	 	68	 
	 	 	Section 13.10	 	Binding Effect; Assignment	 	 	69	 
	 	 	Section 13.11	 	Governing Law	 	 	71	 
	 	 	Section 13.12	 	Submission to Jurisdiction	 	 	71	 
	 	 	Section 13.13	 	Waiver of Jury Trial	 	 	71	 
	 	 	Section 13.14	 	Limitation on Liability	 	 	72	 
	 	 	Section 13.15	 	Confidentiality	 	 	72	 
	 	 	Section 13.16	 	Entire Agreement	 	 	73	 
	 	 	Section 13.17	 	Payments Set Aside	 	 	73	 






 









 






	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	Page	 
	 	 	Section 13.18	 	No Advisory or Fiduciary Responsibility	 	 	73	 
	 	 	Section 13.19	 	Severability	 	 	74	 
	 	 	Section 13.20	 	Counterparts	 	 	74	 
	 	 	Section 13.21	 	USA PATRIOT Act Notice	 	 	74	 
	 	 	Section 13.22	 	Recourse	 	 	74	 






 









 





	 	 	 
	SCHEDULES
	 	 
	 
	 	 
	Schedule 1

	 	Commitments and Pro Rata Shares
	Schedule 2

	 	Administrative Agent’s Account; Lending Offices; Addresses for Notices
	Schedule 7.01(d)(iv)

	 	Required Amendments to NINA’S Operating Agreement and the Limited Liability Company Agreements of Other Borrowers
	Schedule 8.05

	 	Real Property of Borrowers
	Schedule 8.06

	 	Litigation
	Schedule 8.10

	 	Subsidiaries and Equity Investments
	Schedule 10.02(a)

	 	Existing Liens
	Schedule 10.06(g)

	 	Existing Investments
	Schedule 10.12(e)

	 	Affiliate Transaction Documents
	 
	 	 
	EXHIBITS
	 	 
	 
	 	 
	Exhibit A

	 	Form of Assignment and Assumption
	Exhibit B

	 	Form of Borrower Security Agreement
	Exhibit C

	 	Form of Texas Genco Pledge Agreement
	Exhibit D

	 	Form of Notice of Borrowing
	Exhibit E-1

	 	Form of Legal Opinion (New York Law)
	Exhibit E-2

	 	Form of Legal Opinion (Texas Law)
	Exhibit F

	 	Form of Subsidiary Guaranty
	Exhibit G

	 	Form of Subsidiary Security Agreement






 









 





CREDIT AGREEMENT




     THIS CREDIT AGREEMENT, dated as of February 24, 2009 (this “Agreement”), is made among
Nuclear Innovation North America LLC, a Delaware limited liability company (“NINA”),
Nuclear Innovation North America Investments LLC, a Delaware limited liability company (“NINA
Investments”), NINA Texas 3 LLC, a Delaware limited liability company (“NINA3”), NINA
Texas 4 LLC, a Delaware limited liability company (“NINA4” and, together with NINA, NINA
Investments and NINA3, the “Borrowers” and each, a “Borrower”), each lender party
hereto (each a “Lender” and, collectively, the “Lenders”) and Toshiba America
Nuclear Energy Corporation, a Delaware corporation (“TANE”), as administrative agent for
the Lenders (in such capacity, the “Administrative Agent”) and as collateral agent under
the Collateral Agency Agreement referred to below (in such capacity, the “Collateral
Agent”).



WITNESSETH:




     WHEREAS, certain of the Borrowers have entered into the EPC Contract (as defined in Section
1.01) with TANE and certain other parties, pursuant to which TANE, as contractor thereunder (the
“Contractor”), has agreed with the Owners (as defined in Section 1.01) to design, engineer,
procure equipment for and construct a two-unit advanced boiling water reactor nuclear power plant;



     WHEREAS, pursuant to the terms of the EPC Contract, the Borrowers have agreed to purchase from
the Contractor the Equipment and Materials (as defined in Section 1.01) in accordance with the
terms of the EPC Contract; and



     WHEREAS, in order to facilitate the foregoing, the Borrowers have requested the Lenders and
the Agents (and the Lenders and the Agents have agreed, upon the terms and subject to the
conditions set forth in this Agreement) to make available to the Borrowers a credit facility in an
aggregate principal amount equal to $500,000,000 and perform certain other functions in connection
therewith.



     Accordingly, the parties hereto agree as follows:



ARTICLE I


DEFINITIONS




     Section 1.01 Certain Defined Terms. As used in this Agreement, the following
terms shall have the following meanings:



     “Administrative Agent” has the meaning set forth in the introduction to this
Agreement.



     “Administrative Agent’s Account” means the account of the Administrative Agent set
forth on Schedule 2 or such other account as the Administrative Agent from time to time shall
designate in a written notice to the Borrowers and the Lenders.



     “Administrative Questionnaire” means an Administrative Questionnaire in a form
supplied by the Administrative Agent.



1









 





     “Affiliate” means any Person which, directly or indirectly, controls, is controlled by
or is under common control with another Person. For purposes of the foregoing, “control,”
“controlled by” and “under common control with” with respect to any Person shall mean the
possession, directly or indirectly, of the power (i) to vote 10% or more of the securities having
ordinary voting power of the election of the board of directors (or such other similar governing
body with respect to Persons that are not corporations) of such Person, or (ii) to direct or cause
the direction of the management and policies of such Person, whether through the ownership of
voting securities or by contract or otherwise.



     “Agent” means each of the Collateral Agent and the Administrative Agent.



     “Applicable Margin” means (i) if no Rating Agency has issued a rating of the long-term
indebtedness of the Project (the “Rating”), 2.00% per annum; and (ii) on and after the date
on which any Rating Agency has first issued a Rating, a per annum rate determined in accordance
with the following pricing grid based upon such Rating (or upon any other Rating issued by any
other Rating Agency):



	 	 	 
	Rating	 	Applicable Margin
	Level 1: A- or above

	 	1.00%
	Level 2: BBB+, BBB or BBB-

	 	2.00%
	Level 3: BB+, B or BB-

	 	3.00%
	Level 4: B+ or below

	 	4.00%





Any increase or decrease in the Applicable Margin resulting from a change in the Rating shall
become effective as of the first Business Day immediately following the date on which a change in
the Rating is announced.



     “Assignment and Assumption” means an assignment and assumption entered into by a
Lender and an assignee (with the consent of any party whose consent is required hereby), and
accepted by the Administrative Agent, in substantially the form of Exhibit A or any other form
approved by the Administrative Agent with the consent of the Borrowers (which consent shall not
unreasonably be withheld or delayed).



     “Attributable Indebtedness” means, on any date, (a) in respect of any Capital Lease of
any Person, the capitalized amount thereof that would appear on a balance sheet of such Person
prepared as of such date in accordance with GAAP, and (b) in respect of any Synthetic Lease
Obligation, the capitalized amount of the remaining lease payments under the relevant lease that
would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP if
such lease were accounted for as a Capital Lease.



     “Availability Period” means, for any Borrowing, the period from and including the date
on which the conditions set forth in Sections 7.01 and 7.02 are first satisfied, until and
excluding the earlier to occur of (i) Maturity Date for such Borrowing and (ii) the date on which
the DOE Application is rejected.



     “Bankruptcy Code” means Title 11 of the United States Code entitled “Bankruptcy.”



2









 





     “Borrower” and “Borrowers” have the meaning set forth in the introduction to
this Agreement.



     “Borrower Purchase Price” means, with respect to the Equipment and Materials specified
in an Equipment Purchase Approval and which will be paid for in part with the proceeds of any
Borrowing, the total amount payable by the Borrowers pursuant to all Contractor Invoices issued and
to be issued for such Equipment and Materials, which (unless otherwise agreed to by the Majority
Lenders) shall in any event equal the amount of the Purchase Price for such Equipment and Materials
minus the amount of the CPS Purchase Price in respect thereof.



     “Borrower Security Agreement” means that certain security agreement to be executed by
the Borrowers and the Collateral Agent substantially in the form of Exhibit B.



     “Borrowing” means a borrowing consisting of a Loan or simultaneous Loans made or
deemed made at any one time by the Borrowers from the Lenders pursuant to Article II.



     “Business Day” means a day (i) other than Saturday or Sunday, and (ii) on which
commercial banks are open for business in Houston, Texas, New York, New York and Tokyo, Japan and,
if such day relates to any Loan, means any such day on which dealings in Dollar deposits are
conducted by and between banks in the London interbank eurodollar market.



     “Business Plan” means, (i) initially, the budget and financing plan of the Project for
the fiscal year ending December 31, 2008, and (ii) during any fiscal year thereafter, the annual
budget and financing plan of the Project for such fiscal year, in each case, as approved by the
board of managers of NINA from time to time.



     “Capital Lease” means, for any Person, any lease of property (whether real, personal
or mixed) which, in accordance with GAAP, would, at the time a determination is made, be required
to be recorded as a capital lease in respect of which such Person is liable as lessee.



     “Collateral” means the property described in the Collateral Documents, and all other
property now existing or hereafter acquired, which in each case may at any time be or become
subject to a Lien in favor of the Collateral Agent or the Lenders pursuant to the Collateral
Documents or otherwise, in each case securing the payment and performance of any Obligations, and
which in no event shall include any Excluded Asset.



     “Collateral Agency Agreement” means that certain Collateral Agency Agreement, dated as
of the date hereof, between the Lenders and TANE, as collateral agent for the secured parties from
time to time party thereto.



     “Collateral Agent” has the meaning set forth in the introduction to this Agreement.



     “Collateral Documents” means each Security Agreement, the Collateral Agency Agreement
and any other agreement pursuant to which any Lien on Collateral is perfected (or purported to be
perfected), tenant subordination agreements with respect to any real property on which any
Collateral is located, and all control agreements, financing statements, fixture filings, patent,
trademark and copyright security agreements, acknowledgments and other material filings, documents
and agreements made or delivered pursuant thereto.



3









 





     “Commitment” means, when used with reference to any Lender at any time, the amount
then set forth opposite the name of such Lender on Schedule 1, or in the Assignment and Assumption
pursuant to which such Lender becomes a party hereto, as from time to time reduced pursuant to
Section 4.01, or, where the context so requires, the obligation of such Lender to make Loans up to
such amount on the terms and conditions set forth in this Agreement.



     “Common Facilities” has the meaning set forth in the EPC Contract.



     “Contractor” has the meaning set forth in the recitals to this Agreement.



     “Contractor Invoice” means an invoice from the Contractor to the Owners (or STPNOC, on
behalf of the Owners) pursuant to which a Borrower (or STPNOC, on behalf of a Borrower) shall pay
its portion of the Purchase Price of any Equipment and Materials.



     “CPS” means The City of San Antonio, Texas, acting by and through the City Public
Service Board, a Texas municipal utility.



     “CPS Purchase Price” means, with respect to any Equipment and Materials specified in
any Equipment Purchase Approval and which will be paid for in part with the proceeds of any
Borrowing, the portion of the Purchase Price for such Equipment and Materials that is payable by
CPS.



     “Credit Parties” means each Borrower, each Guarantor and Texas Genco.



     “Default” means an Event of Default or an event or condition which with notice or
lapse of time or both would constitute an Event of Default.



     “Default Rate” means a rate of interest equal to 2.00% per annum.



     “Defaulting Lender” means any Lender that (i) has failed to fund any portion of the
Loans required to be funded by it hereunder within one Business Day of the date required to be
funded by it hereunder unless such failure has been cured, (ii) has otherwise failed to pay over to
the Administrative Agent or any other Lender any other amount required to be paid by it hereunder
within one Business Day of the date when due, unless the subject of a good faith dispute or unless
such failure has been cured, or (iii) has been deemed insolvent or become the subject of a
bankruptcy or insolvency proceeding.



     “DOE” means the U.S. Department of Energy.



     “DOE Application” means the application for a loan guaranty under Title XVII of the
Energy Policy Act of 2005 (22 U.S.C. 16511-16514) from the DOE with respect to financing for Unit 3
and/or Unit 4, including the Part I application submitted by NINA on July 31, 2008, the Part II
application submitted by NINA on October 14, 2008, and all supporting materials or information
submitted in writing to DOE in connection therewith.



     “Dollars” and the sign “$” each means lawful money of the United States.



     “Eligible Assignee” has the meaning set forth in Section 13.10.



4









 





     “Environmental Laws” means any and all federal, state, local, laws, statutes,
regulations, ordinances, rules, judgments, orders, decrees, permits, concessions, grants,
franchises, licenses, agreements with a Governmental Authority or governmental restrictions
relating to pollution and the protection of the environment or the release of any materials into
the environment, including those related to hazardous substances or wastes, air emissions and
discharges to waste or public systems.



     “EPC Contract” means that certain Master Engineering, Procurement and Construction
Agreement, dated as of February 24, 2009, among the Owners, executed by STPNOC as agent of the
Owners, and the Contractor.



     “Equipment and Materials” has the meaning set forth in the EPC Contract.



     “Equipment Purchase Approval” has the meaning set forth in the EPC Contract.



     “ERISA” means the Employee Retirement Income Security Act of 1974, including (unless
the context otherwise requires) any rules or regulations promulgated thereunder.



     “ERISA Affiliate” means each trade or business under “common control” with any Credit
Party, within the meaning of Section 4001(a)(14) of ERISA.



     “ERISA Event” means: (i) a reportable event as defined in Section 4043 of ERISA with
respect to a Pension Plan, excluding, however, such events as to which the PBGC by regulation has
waived the notice requirement; (ii) a withdrawal by any Credit Party or any ERISA Affiliate from a
Pension Plan or the termination of any Pension Plan resulting in liability under Sections 4063 or
4064 of ERISA; (iii) the withdrawal of any Credit Party or any ERISA Affiliate in a complete or
partial withdrawal (within the meaning of Section 4203 and 4205 of ERISA) from any Multiemployer
Plan if there is any liability therefore, or the receipt by any Credit Party or any ERISA Affiliate
of notice from any Multiemployer Plan that it is in reorganization or insolvency pursuant to
Section 4241 or 4245 of ERISA; (iv) the filing of a notice of intent to terminate in a non-standard
termination, the treatment of a plan amendment as a termination under Section 4041 or 4041A of
ERISA, or the commencement of proceedings by the PBGC to terminate a Pension Plan or Multiemployer
Plan; (v) the imposition of liability on any Credit Party or ERISA Affiliate pursuant to Sections
4062(e) or 4069 of ERISA or by reason of the application of Section 4212(c) of ERISA; (vi) the
failure by any Credit Party or any ERISA Affiliate to make any required contribution to a Pension
Plan, or the failure to meet the minimum funding standard of Section 412 of the Internal Revenue
Code with respect to any Pension Plan (whether or not waived in accordance with Section 412(d) of
the Internal Revenue Code) or the failure to make by its due date a required installment under
Section 412(m) of the Internal Revenue Code with respect to any Pension Plan or the failure to make
any required contribution to a Multiemployer Plan; (vii) an application for a funding waiver under
Section 303 of ERISA or an extension of any amortization period pursuant to Section 412 of the
Internal Revenue Code with respect to any Pension Plan; (viii) receipt from the IRS of notice of
the failure of any Pension Plan intended to qualify under Section 401(a) of the Internal Revenue
Code to so qualify, or the failure of any trust forming part of any such Pension Plan to fail to
qualify for exemption from taxation under Section 501(a) of the Internal Revenue Code; or (ix) the
imposition of any lien on any of the rights, properties or assets of any Credit Party or any ERISA



5









 




Affiliate, in either case pursuant to Title I or IV of ERISA or to Section 401(a)(29) or 412
of the Internal Revenue Code.



     “Eurodollar Rate” means for each Interest Period for each Loan (i) the rate of
interest per annum reasonably determined by the Administrative Agent to be the offered rate
appearing on the Telerate Page (as defined below) for Dollar deposits having a maturity comparable
to such Interest Period, at approximately 11:00 A.M. (London time) two Business Days prior to the
commencement of such Interest Period, or (ii) if the rate referenced in the preceding clause (i)
does not appear on such page or service or such page or service shall not be available, the rate of
interest per annum equal to the rate reasonably determined by the Administrative Agent to be the
offered rate on such other page or other service that displays an average British Bankers
Association Interest Settlement Rate for Dollar deposits (for delivery on the first day of such
Interest Period) having a maturity comparable to such Interest Period, at approximately 11:00 A.M.
(London time) two Business Days prior to the commencement of such Interest Period, or (iii) if the
rates referenced in the preceding clauses (i) and (ii) are not available, the rate of interest per
annum reasonably determined by the Administrative Agent to be the rate at which deposits in Dollars
would be offered by Sumitomo Mitsui Banking Corporation or Mizuho Corporate Bank, Ltd. to major
banks in the interbank eurodollar market where the eurodollar funding operations of Sumitomo Mitsui
Banking Corporation or Mizuho Corporate Bank, Ltd., as applicable, are customarily conducted, at
approximately 11:00 A.M. (London time), two Business Days before the first day of such Interest
Period, in an amount substantially equal to the proposed Borrowing. As used in this definition,
“Telerate Page” means the page of the Telerate screen (or any successor thereto) that
displays an average British Bankers Association Interest Settlement Rate for deposits in Dollars
(for delivery on the first day of such Interest Period).



     “Event of Default” has the meaning set forth in Section 11.01.



     “Event of Loss” means with respect to any asset of any Borrower or its Subsidiaries
any of the following: (i) any loss, destruction or damage of such asset; (ii) any pending
institution of any proceedings for the condemnation or seizure of such asset or of any right of
eminent domain by a Governmental Authority or lawfully brought by any other Person; or (iii) any
actual condemnation, seizure or taking, by exercise of the power of eminent domain or otherwise by
a Governmental Authority or lawfully conducted by any other Person, of such asset, or confiscation
of such asset or requisition of the use of such asset.



     “Excluded Assets” has the meaning set forth in the Borrower Security Agreement.



     “Excluded NINA Subsidiary” means any (i) direct Subsidiary of NINA formed or acquired
after the date hereof not in violation of the terms hereof, (A) which Subsidiary does not hold,
directly or indirectly, any equity interest in any Borrower, the Project or the Existing Plant or
any property comprising the same and (B) the business purpose and operations of which do not
directly relate to the Project, the Existing Plant or any property comprising the same or directly
related thereto, or the business and operations of any Borrower (other than NINA) and (ii) any
Subsidiary of any direct Subsidiary referred to in clause (i), provided that such Subsidiary also
satisfies the requirements of clauses (i)(A) and (i)(B) above; provided, however,
that a Subsidiary of NINA will not be deemed to have failed to satisfy the foregoing requirements
solely because it directly or indirectly owns an interest in facilities that constitute



6









 




“shared facilities” between Unit 3 and Unit 4, on the one hand, and the Existing Plant or any
other units existing or to be developed at the “South Texas Project” site, on the other hand.



     “Existing NINA Credit Agreement” means that certain Revolving Working Capital Facility
Agreement, dated as of April 18, 2008 (as amended), among NINA, as borrower, the lenders party
thereto, The Royal Bank of Scotland plc, as administrative agent, collateral agent and issuing
bank, and Wells Fargo Bank, N.A. as depository and securities intermediary.



     “Existing Plant” means the “Existing Plant”, as defined in the EPC Contract;
provided that, for the avoidance of doubt, the “Existing Plant” shall not be deemed to
include any development rights with respect to additional nuclear units (i.e., other than
Unit 3 or Unit 4) at the “South Texas Project” site.



     “Federal Funds Rate” means, for any day, the rate per annum (rounded upward, if
necessary, to the nearest 1/100 of 1%), as determined by the Administrative Agent, equal to the
weighted average of the rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, as published for any day of determination (or if
such day of determination is not a Business Day, for the next preceding Business Day) by the
Federal Reserve Bank of New York, or, if such rate is not so published for any day which is a
Business Day, the average of the quotations for such day on such transactions received by the
Administrative Agent from three Federal funds brokers of recognized standing selected by it.



     “Foreign Lender” has the meaning set forth in Section 6.03(d).



     “FRB” means the Board of Governors of the Federal Reserve System, and any Governmental
Authority succeeding to any of its principal functions.



     “GAAP” means generally accepted accounting principles in the U.S. as in effect from
time to time.



     “Governmental Authority” means any federal, state, local or other governmental
department, commission, board, bureau, agency, central bank, court, tribunal or other
instrumentality or authority, domestic or foreign, exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to government (including any supra-national
bodies such as the European Union or the European Central Bank).



     “Guarantor” means (i) each Restricted Subsidiary and (ii) any other Person at any time
providing a Guaranty.



     “Guarantor Documents” means each Guaranty and all other documents, agreements and
instruments delivered to any Agent or the Lenders under or in connection with such Guaranty.



     “Guaranty” means any guaranty at any time made by any other Person in favor of any
Agent or Lender with respect to the Obligations.



     “Guarantee Obligation” means, as applied to any Person, any direct or indirect
liability, contingent or otherwise, of that Person guaranteeing any Indebtedness (the “primary




7









 




obligations”) of another Person (the “primary obligor”), including any (a)
obligation of that Person (i) to purchase, repurchase or otherwise acquire such primary obligations
or any property constituting direct or indirect security therefor, or (ii) to advance or provide
funds (A) for the payment or discharge of any such primary obligation, or (B) to maintain working
capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency
or any balance sheet item, level of income or financial condition of the primary obligor, or (iii)
to purchase property, securities or services primarily for the purpose of assuring the owner of any
such primary obligation of the ability of the primary obligor to make payment of such primary
obligation, (iv) in connection with any synthetic lease or other similar off balance sheet lease
transaction, or (v) otherwise to assure or hold harmless the holder of any such primary obligation
against loss in respect thereof, and (b) any Lien on any assets of such Person securing any
Indebtedness or other obligation of any other Person, whether or not such Indebtedness is assumed
by such Person (or any right, contingent or otherwise, of any holder of such Indebtedness to obtain
any such Lien); provided, however, that standard contractual indemnities not
related to Indebtedness shall not be considered Guarantee Obligations. The amount of any Guarantee
Obligation shall be deemed to be an amount equal to the stated or determinable amount of the
related primary obligation, or portion thereof, in respect of which such Guarantee Obligation is
made or, if not stated or determinable, the maximum reasonably anticipated liability in respect
thereof as determined by the guaranteeing Person in good faith.



     “Hazardous Substances” means any explosive or radioactive substances or wastes and any
toxic or hazardous substances, materials, wastes, contaminants or pollutants, including petroleum
or petroleum distillates, asbestos or asbestos-containing materials, polychlorinated biphenyls,
radon gas, infectious or medical wastes and all other substances defined or listed as “hazardous
substances,” “hazardous materials,” “hazardous wastes” or “toxic substances” (or similarly
identified), regulated under or forming the basis for liability under any applicable Environmental
Law.



     “IRS” means the Internal Revenue Service, or any successor thereto.



     “Indebtedness” means, for any Person: (i) all indebtedness of such Person for
borrowed money or for the deferred purchase price of property or services; (ii) all obligations
evidenced by notes, bonds, debentures or similar instruments; (iii) all indebtedness created or
arising under any conditional sale or other title retention agreement with respect to property
acquired by such Person (even though the rights and remedies of the seller or lender under such
agreement in the event of default are limited to repossession or sale of such property); (iv) all
obligations under Capital Leases and Synthetic Lease Obligations; (v) all reimbursement or other
obligations of such Person under or in respect of letters of credit and bankers acceptances, and
all net obligations in respect of Swap Contracts in an amount equal to the Swap Termination Values
thereof; (vi) all reimbursement or other obligations of such Person in respect of any bank
guaranties, shipside bonds, surety bonds and similar instruments issued for the account of such
Person or as to which such Person is otherwise liable for reimbursement of drawings or payments;
(vii) all Guarantee Obligations; (viii) all obligations of such Person to purchase, redeem, retire,
defease or otherwise make any payment in respect of any preferred equity interest in such Person or
any other Person, valued at the greater of its voluntary or involuntary liquidation preference
plus accrued and unpaid dividends; and (ix) all of the foregoing types of Indebtedness of
another Person secured by any Lien upon or in property owned by the Person for



8









 




whom indebtedness is being determined, whether or not such Person has assumed or become liable
for the payment of such Indebtedness of such other Person (which, for the purpose of calculating
any amount of Indebtedness, shall equal the amount of the fair market value of such property owned
by the Person providing the Lien). For all purposes hereof, the Indebtedness of any Person shall
include the Indebtedness of any partnership or joint venture (other than a joint venture that is
itself a corporation or otherwise is an entity the liabilities of which do not constitute
liabilities of the joint venturer) in which such Person is a general partner or a joint venturer,
unless such Indebtedness is expressly made non-recourse to such Person (subject only to recourse
exceptions acceptable to the Majority Lenders). The amount of any Capital Lease or Synthetic Lease
Obligation as of any date shall be deemed to be the amount of Attributable Indebtedness in respect
thereof as of such date.



     “Insolvency Proceeding” means (i) any case, action or proceeding before any court or
other Governmental Authority relating to bankruptcy, reorganization, insolvency, liquidation,
receivership, dissolution, winding-up or relief of debtors, or (ii) any general assignment for the
benefit of creditors, composition, marshalling of assets for creditors, or other, similar
arrangement in respect of any Person’s creditors generally or any substantial portion of such
Person’s creditors, in each case undertaken under U.S. Federal, state or foreign law, including the
Bankruptcy Code.



     “Interest Payment Date” means a date specified for the payment of interest pursuant to
Section 3.01(c).



     “Interest Period” means, with respect to any Loan, the period determined in accordance
with Section 3.01(b) applicable thereto.



     “Internal Revenue Code” means the Internal Revenue Code of 1986, including (unless the
context otherwise requires) any rules or regulations promulgated thereunder.



     “Investment” means, with respect to any Person, all direct or indirect investments by
such Person in other Persons (including Affiliates) in the forms of (i) loans or advances to, or
guarantees of the obligations of, or (ii) capital contributions to, or purchases or other
acquisitions for consideration of Indebtedness of, equity interests in, other securities of, or all
or substantially all of the assets (or assets constituting a business unit) of, such other Person,
in each case to the extent, and together with all items that are or would be, classified as
investments on a balance sheet prepared in accordance with GAAP. Except as otherwise provided in
this Agreement, the amount of an Investment will be determined at the time the Investment is made
and without giving effect to subsequent changes in value.



     “Lender” and “Lenders” each has the meaning set forth in the introduction to
this Agreement.



     “Lending Office” has the meaning set forth in Section 2.04.



     “Lien” means any mortgage, deed of trust, pledge, security interest, assignment as
collateral, deposit arrangement, charge or encumbrance, lien (statutory or other), or other
preferential arrangement in the nature of a security interest (including any conditional sale or



9









 




other title retention agreement or any financing lease having substantially the same economic
effect as any of the foregoing).



     “Loan Documents” means this Agreement, the Collateral Documents, each Guaranty, each
Guarantor Document, each Subordination Agreement and all other certificates, documents, agreements
and instruments delivered to the Administrative Agent and the Lenders under or in connection with
this Agreement. For the avoidance of doubt, the EPC Contract and the agreements entered into in
accordance therewith for the design, engineering, procurement and construction of the Project are
not Loan Documents.



     “Loans” has the meaning set forth in Section 2.01(a).



     “Majority Lenders” means, at any time, Lenders holding at least 50% of then aggregate
unpaid principal amount of the Loans, or, if no such principal amount is then outstanding, Lenders
having at least 50% of the aggregate Commitments at such time; provided that the Commitment
of, and the portion of the Loans held or deemed held by, any Defaulting Lender shall be excluded
for purposes of making a determination of Majority Lenders.



     “Material Adverse Effect” means a material adverse effect upon (i) the business,
assets, properties, liabilities (actual or contingent), operations or condition (financial or
otherwise) of the Borrowers and the Guarantors, taken as a whole, or (ii) the nuclear industry in
the U.S., in a manner disproportionately more adverse to the Borrowers than to other participants
in such industry.



     “Maturity Date” means (i) with respect to any Unit 3 Borrowing, the earliest to occur
of (A) February 24, 2012, as such date may be extended pursuant to Section 4.01(a), (B) the Full
Notice to Proceed Date (as defined in the EPC Contract) for Unit 3, and (C) the date on which Work
(as defined in the EPC Contract) with respect to Unit 3 is terminated (other than as a result of a
“Contractor Event of Default”, as defined in the EPC Contract), and (ii) with respect to any Unit 4
Borrowing the earliest to occur of (A) February 24, 2012, as such date may be extended pursuant to
Section 4.01(a), (B) the Full Notice to Proceed Date (as defined in the EPC Contract) for Unit 4
and (C) the date on which Work with respect to Unit 4 is terminated (other than as a result of a
“Contractor Event of Default”, as defined in the EPC Contract).



     “Multiemployer Plan” means a “multiemployer plan” (within the meaning of Section
4001(a)(3) of ERISA) to which any Credit Party or any ERISA Affiliate is making, or is obligated to
make contributions.



     “Net Cash Proceeds” means when used in respect of any issuance of any debt or equity
securities of, or incurrence of any Indebtedness for borrowed money by, any Borrower or any
Restricted Subsidiary thereof, the gross proceeds thereof in cash received by such Borrower or such
Subsidiary, as and when received, net of any and all taxes (federal, state, local, foreign or
otherwise) and fees, commissions, costs and other expenses incurred or reasonably expected to be
incurred by such Borrower or Subsidiary in connection therewith.



     “NINA” has the meaning set forth in the introduction to this Agreement.



10









 





     “NINA’s Operating Agreement” means the “Operating Agreement” as defined in the Texas
Genco Pledge Agreement.



     “Non-U.S. Subsidiary” means any Subsidiary (i) that is a Person organized under the
laws of a jurisdiction other than the United States, any state thereof or the District of Columbia,
or (ii) that is exclusively a holding company of equity interests in Persons included in clause (i)
above.



     “Notice of Borrowing” has the meaning set forth in Section 2.02(a).



     “Notice of Prepayment” has the meaning set forth in Section 4.03(c).



     “NINA3” has the meaning set forth in the introduction to this Agreement.



     “NINA4” has the meaning set forth in the introduction to this Agreement.



     “NINA Investments” has the meaning set forth in the introduction to this Agreement.



     “NRC” means the United States Nuclear Regulatory Commission, or any successor thereto.



     “NRG” means NRG Energy Inc., a Delaware corporation.



     “NRG Debt Documents” means, collectively, (i) the Second Amended and Restated Credit
Agreement dated as of June 8, 2007 among NRG, Citicorp North America Inc., as administrative agent,
and the lenders and other Persons party thereto or (ii) any “Note” under and as defined in that
certain Base Indenture, dated as of February 2, 2006, by and between NRG and Law Debenture Trust
Company of New York, as trustee, or any supplemental indenture thereto, in each case, as amended,
restated, refinanced and otherwise modified from time to time.



     “Obligations” means the indebtedness, liabilities and other obligations of the Credit
Parties to any Agent or any Lender under or in connection with the Loan Documents, including all
Loans, all interest accrued thereon (including interest that accrues after the commencement by or
against any Credit Party or any other Person of any Insolvency Proceeding naming any such Person as
the debtor in such proceeding), all fees due under this Agreement and all other amounts payable by
the Borrowers to any Agent or any Lender hereunder or in connection herewith, whether now or
hereafter existing or arising, and whether due or to become due, absolute or contingent, liquidated
or unliquidated, determined or undetermined.



     “Operating Lease” means, for any Person, any lease of any property of any kind by that
Person as lessee which is not a Capital Lease or a Synthetic Lease Obligation.



     “Organization Documents” means, (a) with respect to any corporation, the certificate
or articles of incorporation and the bylaws (or equivalent or comparable constitutional documents
with respect to any non-U.S. jurisdiction); (b) with respect to any limited liability company, the
articles of formation and operating agreement; and (c) with respect to any partnership, joint
venture, trust or other form of business entity, the partnership, joint venture or other applicable
agreement of formation and any agreement, instrument, filing or notice with respect thereto filed



11









 




in connection with its formation with the applicable Governmental Authority in the
jurisdiction of its formation, in each case as amended from time to time.



     “Owners” means, collectively, NINA3, NINA4, CPS and any other Person that may hold any
direct ownership interest in the Project.



     “Participant” has the meaning set forth in Section 13.10(b).



     “PBGC” means the Pension Benefit Guaranty Corporation, or any successor thereto.



     “Pension Plan” means an employee benefit plan (as defined in Section 3(3) of ERISA)
other than a Multiemployer Plan (i) that is maintained or sponsored by any Credit Party or any
ERISA Affiliate, to which any Credit Party or any ERISA Affiliate is obligated to make
contributions or with respect to which any Credit Party or any ERISA Affiliate has any outstanding
liability, and (ii) that is subject to Section 412 of the Internal Revenue Code, Section 302 of
ERISA or Title IV of ERISA.



     “Permitted Cash Equivalent Investments” means any investments in cash, cash
equivalents and other short term marketable debt securities and similar investments, in each case
owned or acquired in accordance with the Borrowers’ investment policy as from time to time in
effect.



     “Permitted Liens” means:



          (i) Liens in favor of the Lenders or the Collateral Agent (for the benefit of the Lenders and
Agents) to secure the Obligations;



          (ii) the existing Liens listed in Schedule 10.02(a) or incurred in connection with the
extension, renewal or refinancing of the Indebtedness or other obligation secured by such existing
Liens to the extent such extension, renewal or refinancing is not prohibited hereunder,
provided that any extension, renewal or replacement Lien shall be limited to the property
encumbered by the existing Lien and the principal amount of the Indebtedness or other obligation
being extended, renewed or refinanced does not increase; provided, however, that
the Liens listed in clauses 1 through 4 of such Schedule shall cease to be Permitted Liens one
Business Day after the date of the initial Borrowing hereunder;



          (iii) Liens for taxes, fees, assessments or other governmental charges or levies, either not
delinquent or being contested in good faith by appropriate proceedings and which are adequately
reserved for in accordance with GAAP;



          (iv) Liens of materialmen, mechanics, warehousemen, carriers or employees or other like Liens
arising in the ordinary course of business and securing obligations either not delinquent or being
contested in good faith by appropriate proceedings which are adequately reserved for in accordance
with GAAP and which do not in the aggregate materially impair the use or value of the applicable
property or risk loss or forfeiture of title thereto;



          (v) Liens consisting of cash deposits to secure (A) the payment of worker’s compensation,
unemployment insurance or other social security benefits or obligations



12









 




or (B) the performance of bids, trade contracts, leases (other than Capital Leases), public or
statutory obligations, surety or appeal bonds or other obligations of a like nature incurred in the
ordinary course of business (other than for indebtedness or any Liens arising under ERISA);



          (vi) statutory landlord’s Liens under leases to which any Borrower or any Subsidiary thereof
is a party;



          (vii) Liens arising solely by virtue of any statutory or common law provision relating to
banker’s liens, rights of set-off or similar rights and remedies as to deposit accounts or other
funds maintained with a creditor depository institution;



          (viii) Liens on cash and Permitted Cash Equivalent Investments (i) deposited by any Borrower
or Restricted Subsidiary thereof in accounts with or on behalf of futures contract brokers to
secure Indebtedness under Permitted Swap Contracts or (ii) deposited or delivered by any Borrower
or Restricted Subsidiary thereof as collateral to a Permitted Swap Contract counterparty or issuer
of surety bonds or letters of credit issued to support obligations of a Borrower or Restricted
Subsidiary thereof that are incurred in the ordinary course of business;



          (ix) Liens, on property described in Section 10.01(i), securing Indebtedness described in
Section 10.01(i);



          (x) Liens, on Shared Collateral (as defined in the form of Borrower Security Agreement
attached hereto as Exhibit B), securing Indebtedness described in Section 10.01(f);



          (xi) survey exceptions, easements or reservations of, or rights of others for, licenses,
rights-of-way, sewers, electric lines, telegraph and telephone lines 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;



          (xii) Liens arising from UCC 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 this Agreement);



          (xiii) non-exclusive licenses of patents, trademarks, copyrights or other intellectual
property rights;



          (xiv) leases, licenses or other agreements pursuant to which any Borrower or any Subsidiary
thereof conveys or grants any Person a leasehold estate in, or the right to use or occupy, any real
property or portion thereof, which do not materially impair the current use or value of the
applicable property or risk the loss of forfeiture thereto;



          (xv) Liens (including judgment Liens) arising in connection with legal proceedings not
constituting an Event of Default under Section 11.01(h); and



13









 





          (xvi) Liens on any equity interests in any Excluded NINA Subsidiary or in any assets thereof.



     “Permitted Swap Contracts” means Swap Contracts entered into by any Borrower or
Restricted Subsidiary thereof in accordance with a hedging policy or transaction approved by NINA’s
board of managers (including the manager appointed by TANE).



     “Person” means an individual, corporation, partnership, limited liability company,
joint venture, trust, unincorporated organization or any other entity of whatever nature or any
Governmental Authority.



     “Plan” means an employee benefit plan (as defined in Section 3(3) of ERISA) other than
a Multiemployer Plan or a Pension Plan which is maintained or sponsored by any Credit Party or any
Subsidiary thereof or with respect to which any Credit Party or Subsidiary thereof has any
outstanding liability.



     “Pro Rata Share” means, as to any Lender at any time, the percentage equivalent
(expressed as a decimal) at such time of such Lender’s Commitments divided by the combined
Commitments of all Lenders (or, if all Commitments have been terminated, the aggregate principal
amount of such Lender’s Loans divided by the aggregate principal amount of the Loans then held by
all Lenders). The initial Pro Rata Share of each Lender is set forth opposite such Lender’s name
in Schedule 1 under the heading “Pro Rata Share” or in the Assignment and Assumption pursuant to
which such Lender becomes a party hereto, as applicable.



     “Project” has the meaning set forth in the EPC Contract.



     “Purchase Price” means, with respect to any Equipment and Materials specified in an
Equipment Purchase Approval and which will be paid for in part with the proceeds of any Borrowing,
the total amount payable by the Borrowers, CPS, any other Owner and any of their Affiliates
pursuant to all Contractor Invoices issued and to be issued for such Equipment and Materials.



     “Rating Agency” means each or any of Fitch Ratings, Inc., Moody’s Investors Service,
Inc. and Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc., and any
successor to any of the foregoing.



     “Regulation D” means Regulation D of the FRB.



     “Regulatory Change” has the meaning set forth in Section 5.02.



     “Related Person” has the meaning set forth in Section 12.06.



     “Responsible Officer” means, with respect to any Person, the chief executive officer,
the president, the chief financial officer, the controller, the treasurer or the general counsel of
such Person, or any other senior officer of such Person having substantially the same authority and
responsibility; or, with respect to compliance with financial covenants, the chief financial
officer, the controller or the treasurer of any such Person, or any other senior officer of such
Person involved principally in the financial administration or controllership function of such
Person and



14









 




having substantially the same authority and responsibility. Any document delivered hereunder
that is signed by a Responsible Officer of a Person shall be conclusively presumed to have been
authorized by all necessary corporate, partnership and/or other action on the part of such Person
and such Responsible Officer shall be conclusively presumed to have acted on behalf of such Person.



     “Restricted Payments” has the meaning set forth in Section 10.09.



     “Restricted Subsidiary” means each Subsidiary of each Borrower, other than (i) any
other Borrower and (ii) any Excluded NINA Subsidiary.



     “SEC” means the Securities and Exchange Commission, or any successor thereto.



     “Security Agreement” means the Borrower Security Agreement, the Texas Genco Pledge
Agreement and any other agreement (including any deed of trust) pursuant to which any Credit Party
provides (or purports to provide) a Lien on its assets in favor or for the benefit of any Lender or
the Collateral Agent (for the benefit of the Lenders and Agents and other “Secured Parties”
identified therein) in respect of the Obligations.



     “Solvent” means, as to any Person at any time, that (i) the fair value of the property
of such Person is greater than the amount of such Person’s liabilities (including contingent
liabilities) as such value is established and liabilities evaluated for purposes of Section 101(32)
of the Bankruptcy Code; (ii) the present fair saleable value of the property of such Person is not
less than the amount that will be required to pay the probable liability of such Person on its
debts as they become absolute and matured; (iii) such Person is able to realize upon its property
and pay its debts and other liabilities (including contingent liabilities) as they mature in the
normal course of business; (iv) such Person does not intend to, and does not believe that it will,
incur debts or liabilities beyond such Person’s ability to pay as such debts and liabilities
mature; and (v) such Person is not engaged in business or a transaction, and is not about to engage
in business or a transaction, for which such Person’s property would constitute unreasonably small
capital. For purposes of this definition, contingent liabilities shall be valued in good faith, as
of the calculation date, by the Chief Financial Officer of the relevant Person (or other officer of
such Person qualified to make such calculation and acceptable to the Majority Lenders) at the
amount which, in light of all the facts and circumstances existing at such time, represents the
amount which would reasonably be expected to become an actual matured liability.



     “Specific License” means a license that is issued to a named person upon application
filed pursuant to regulations issued by the NRC.



     “STPNOC” means STP Nuclear Operating Company, a Texas nonprofit company.



     “Subordinated Debt” means any Indebtedness of any Borrower or any Subsidiary thereof,
which is subject to a Subordination Agreement.



     “Subordination Agreement” means any subordination agreement with respect to any
Indebtedness of any Borrower, or any Subsidiary thereof, at any time contractually subordinated to
the Obligations in right of payment and exercise of remedies against the applicable Borrower and
Subsidiary and the Collateral, among the applicable Borrower, the applicable creditor(s) and



15









 




the Administrative Agent, in form and substance reasonably satisfactory to the Administrative
Agent and the Majority Lenders.



     “Subsidiary” means any corporation, association, partnership, joint venture or other
business entity of which more than 50% of the voting stock or other equity interest is owned
directly or indirectly by any Person or one or more of the other Subsidiaries of such Person or a
combination thereof.



     “Swap Contract” means with respect to any specified Person (i) any and all rate swap
transactions (whether from fixed to floating or from floating to fixed), basis swaps, credit
derivative transactions, forward rate transactions, commodity swaps, commodity options, forward
commodity contracts, equity or equity index swaps or options, bond or bond price or bond index
swaps or options or forward bond or forward bond price or forward bond index transactions, interest
rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar
transactions, currency swap transactions, cross-currency rate swap transactions, currency options,
spot contracts, or any other similar transactions or any combination of any of the foregoing
(including any options to enter into any of the foregoing), whether or not any such transaction is
governed by or subject to any master agreement, (ii) other agreements or arrangements designed to
manage interest rates or interest rate risk, (iii) other agreements or arrangements designed to
protect such Person against fluctuations in currency exchange rates, (iv) agreements (including
each confirmation entered into pursuant to any master agreement) providing for swaps, caps,
collars, puts, calls, floors, futures, options, spots, forwards, or hedges of, any energy,
generation capacity or fuel, or any other energy related commodity or service, any emissions
credit, price or price indices for any such commodities or any other similar derivative agreements
and (v) any and all transactions of any kind, and the related confirmations, which are subject to
the terms and conditions of, or governed by, any form of master agreement published by the
International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master
Agreement, or any other master agreement, including any such obligations or liabilities under any
master agreement.



     “Swap Termination Value” means, in respect of any one or more Swap Contracts, after
taking into account the effect of any legally enforceable netting agreement relating to such Swap
Contracts, (i) for any date on or after the date such Swap Contracts have been closed out and
termination value(s) determined in accordance therewith, such termination value(s), and (ii) for
any date prior to the date referenced in the foregoing clause (i) the amount(s) determined as the
mark-to-market value(s) for such Swap Contracts, as determined by the Borrowers based upon one or
more mid-market or other readily available quotations provided by any recognized dealer in such
Swap Contracts (which may include any Lender or any Affiliate of any Lender).



     “Synthetic Lease Obligation” means the monetary obligation of a Person under (i) a
so-called synthetic, off-balance sheet or tax retention lease, or (ii) an agreement for the use or
possession of property creating obligations that do not appear on the balance sheet of such Person
but which, upon the insolvency or bankruptcy of such Person, would be characterized as the
indebtedness of such Person (without regard to accounting treatment).



     “Taxes” has the meaning set forth in Section 6.03.



16









 





     “Texas Genco” means Texas Genco Holdings, Inc., a Texas corporation.



     “Texas Genco Pledge Agreement” means that certain pledge agreement to be executed by
Texas Genco in favor of the Collateral Agent (for the benefit of the Lenders and Agents)
substantially in the form of as Exhibit C.



     “UCC” means the Uniform Commercial Code of the jurisdiction the law of which governs
the Loan Document in which such term is used or the attachment, perfection or priority of the Lien
on any Collateral.



     “Unit 3” has the meaning set forth in the EPC Contract.



     “Unit 3 Borrowing” means any Borrowing the proceeds of which shall be used to procure
Equipment and Materials comprising a portion of Unit 3 or the Common Facilities.



     “Unit 4” has the meaning set forth in the EPC Contract.



     “Unit 4 Borrowing” means any Borrowing the proceeds of which shall be used to procure
Equipment and Materials comprising a portion of Unit 4.



     “United States” and “U.S.” each means the United States of America.



     Section 1.02 Accounting Principles.



          (a) Accounting Terms. Unless otherwise defined or the context otherwise requires, all
accounting terms not expressly defined herein shall be construed, and all accounting determinations
and computations required under the Loan Documents shall be made, in accordance with GAAP,
consistently applied.



          (b) GAAP Changes. If GAAP shall have been modified after the date hereof and the
application of such modified GAAP shall have a material effect on any financial computations
hereunder, then such computations shall thereafter be made and the financial statements,
certificates and reports due hereunder shall be prepared, and all accounting terms not otherwise
defined herein shall be construed, in accordance with GAAP as in effect prior to such modification,
unless and until the Majority Lenders and the Borrowers shall have agreed upon the terms of the
application of such modified GAAP.



          (c) “Fiscal Year” and “Fiscal Quarter”. References herein to “fiscal year” and
“fiscal quarter” refer to such fiscal periods of the Borrowers.



     Section 1.03 Interpretation. In the Loan Documents, except to the extent the
context otherwise requires:



          (a) Any reference to an Article, a Section, a Schedule or an Exhibit is a reference to an
article or section thereof, or a schedule or an exhibit thereto, respectively, and to a subsection
or a clause is, unless otherwise stated, a reference to a subsection or a clause of the Section or
subsection in which the reference appears.



17









 





          (b) The words “hereof,” “herein,” “hereto,” “hereunder” and the like mean and refer to this
Agreement or any other Loan Document as a whole and not merely to the specific Article, Section,
subsection, paragraph or clause in which the respective word appears.



          (c) The meaning of defined terms shall be equally applicable to both the singular and plural
forms of the terms defined.



          (d) The words “including,” “includes” and “include” shall be deemed to be followed by the
words “without limitation.”



          (e) References to agreements and other contractual instruments shall be deemed to include all
subsequent amendments and other modifications thereto, but only to the extent such amendments and
other modifications are not prohibited by the terms of the Loan Documents.



          (f) References to statutes or regulations are to be construed as including all statutory and
regulatory provisions consolidating, amending, supplementing, interpreting or replacing the statute
or regulation referred to.



          (g) Any table of contents, captions and headings are for convenience of reference only and
shall not affect the construction of this Agreement or any other Loan Document.



          (h) In the computation of periods of time from a specified date to a later specified date, the
word “from” means “from and including”; the words “to” and “until” each mean “to but excluding”;
and the word “through” means “to and including.”



          (i) The use of a word of any gender shall include each of the masculine, feminine and neuter
genders.



          (j) This Agreement and the other Loan Documents are the result of negotiations among the
Administrative Agent, the Borrowers and the other parties thereto, if any, have been reviewed by
counsel to the Administrative Agent, the Borrowers and such other parties, if any, and are the
product of the negotiation thereof by all parties. Accordingly, they shall not be construed
against any party thereto merely because of such party’s involvement in their preparation.



ARTICLE II


THE LOANS




     Section 2.01 The Loans.



          (a) General. Each Lender severally agrees, on the terms and conditions set forth
herein, to make to the Borrowers loans in respect of, and for the sole and exclusive purpose of
funding, 95% of each applicable Borrower Purchase Price (or such lesser amount as is to come due,
prior to the Maturity Date for the applicable Borrowing, pursuant to the applicable invoices issued
by the Contractor in accordance with the applicable Equipment Purchase Approval) (each a
“Loan” and, collectively, the “Loans”) from time to time on any Business Day



18









 




during the applicable Availability Period, in an aggregate principal amount not exceeding such
Lender’s Commitment. Within the limits of each Lender’s Commitment (as the same may be modified
hereunder, including pursuant to Section 4.01(d)), during the Availability Period, the Borrowers
may borrow, repay the Loans in whole or in part, and reborrow, all in accordance with the terms and
conditions hereof.



          (b) TANE as Lender. The Borrowers acknowledge and agree that Loans from TANE in its
capacity as Lender will not be made through cash advances to the Borrowers or any other Person.
Rather, at the time of any Borrowing hereunder, a Loan shall be deemed to be advanced by TANE in
its capacity as Lender in the amount equal to its Pro Rata Share of such Borrowing, and TANE in its
capacity as Contractor shall deem the principal amount of such loan to have been received as a
payment under the EPC Contract.



          (c) Indebtedness for Borrowed Money. It is the intention of the parties hereto that
the Loans constitute indebtedness for borrowed money of the Borrowers and the Guarantors, which
indebtedness for borrowed money shall only be used for the financing (or refinancing) of the
acquisition of Equipment and Materials as set forth herein.



     Section 2.02 Borrowing Procedure.



          (a) Notice to the Administrative Agent. Each Borrowing shall be made on a Business
Day upon written notice from the Borrowers to the Administrative Agent, which notice shall be
received by the Administrative Agent not later than 11:00 A.M. (New York time) at least four
Business Days prior to the date of such proposed Borrowing. Each such notice shall be in
substantially the form of Exhibit D (a “Notice of Borrowing”) and shall include the other
certifications and information and attachments required thereby.



          (b) Notice to the Contractor. The Administrative Agent shall give the Contractor
prompt notice by telephone (confirmed promptly in writing) or by facsimile of each Borrowing, and a
copy of each Notice of Borrowing. The Contractor shall have one Business Day following receipt by
it of a complete Notice of Borrowing during which to examine the applicable Contractor Invoices and
other attachments to the Notice of Borrowing to determine whether the amount of the Borrowing
requested in such Notice of Borrowing is consistent with the financing of 95% of the Borrower’s
Purchase Price for the applicable Equipment and Materials described in such Notice of Borrowing.
Not later than 5:00 p.m. (New York time) on the Business Day following receipt by the Contractor of
such Notice of Borrowing, the Contractor shall notify the Administrative Agent in writing whether
the amount of such Borrowing is so consistent (an affirmative determination being a “Contractor
Approval”).



          (c) Notice to the Lenders. Promptly (and in any case within one Business Day)
following each Contractor Approval (as defined in Section 2.02(b)), the Administrative Agent shall
give each Lender prompt notice by telephone (confirmed promptly in writing) or by facsimile of the
applicable Borrowing, specifying the information contained in the applicable Notice of Borrowing
and such Lender’s Pro Rata Share of the Borrowing. On the date of each Borrowing, each Lender
(other than TANE in its capacity as Lender) shall make available a Loan in an amount equal to such
Lender’s Pro Rata Share of such Borrowing in same day or immediately available funds, to the
Administrative Agent for the Administrative Agent’s



19









 




Account not later than 12:00 noon (New York time). Upon fulfillment of the applicable
conditions set forth in Article VII and after receipt by the Administrative Agent of such funds
advanced to the Administrative Agent by a Lender, (i) the Administrative Agent shall make such
funds available to the Contractor by wire transfer to an account designated by the Contractor, in
same day or immediately available funds on such Borrowing date, and (ii) the applicable Loan from
TANE in its capacity as Lender shall be deemed to be made to the Borrowers as contemplated under
Section 2.01(b). If any Lender makes available to the Administrative Agent funds for any Borrowing
as provided in this Article, and such funds are not made available to the Contractor by the
Administrative Agent because the applicable conditions set forth in Article VII are not satisfied
or waived in accordance with the terms hereof, the Administrative Agent shall return such funds (in
like funds as received from such Lender) to such Lender, without interest.



          (d) Acknowledgment. The parties hereto acknowledge and agree that the advance of
funds hereunder to the Contractor as provided in Section 2.03(b) and the application of Section
2.01(b) shall constitute Loans and indebtedness for borrowed money hereunder even though the
Borrowers have not directly received cash proceeds of such Loans, and the Borrowers shall be
obligated to repay the principal amount of such Loans and to pay interest thereon in accordance
with the terms hereof.



     Section 2.03 Non-Receipt of Funds. Unless the Administrative Agent shall have
received notice from a Lender prior to the date of any Borrowing that such Lender shall not make
available to the Administrative Agent (if applicable) a Loan in an amount equal to such Lender’s
Pro Rata Share of such Borrowing, the Administrative Agent may assume that such Lender has made
such Loan available to the Administrative Agent on the date of such Borrowing in accordance with
Section 2.02(c) and the Administrative Agent may, in reliance upon such assumption, make available
to the Contractor on such date a corresponding amount. If and to the extent such Lender shall not
have so made such Loan available to the Administrative Agent, and the Administrative Agent in such
circumstances shall have made available funds to the Contractor such amount, such Lender agrees to
repay to the Administrative Agent forthwith on demand such corresponding amount together with
interest thereon, for each day from the date such amount is made available to the Contractor until
the date such amount is repaid to the Administrative Agent, at the Federal Funds Rate, plus any
administrative, processing or similar fees customarily charged by the Administrative Agent in
connection with the foregoing. If such Lender shall repay to the Administrative Agent such
corresponding amount, such amount so repaid shall constitute such Lender’s Loan as part of such
Borrowing for purposes of this Agreement. If such amount is not made available by such Lender to
the Administrative Agent on the Business Day following the Borrowing date, the Administrative Agent
shall notify the Borrowers of such failure to fund and, upon demand by the Administrative Agent,
the Borrowers shall pay such amount to the Administrative Agent for the Administrative Agent’s
Account, together with interest thereon for each day elapsed since the date of such Borrowing, at a
rate per annum equal to the interest rate applicable at the time to the Loans comprising such
Borrowing.



     Section 2.04 Lending Offices. The Loans made or deemed made by each Lender
may be made from and maintained at such offices of such Lender (each a “Lending Office”) as
such Lender may from time to time designate (whether or not such office is specified on Schedule
2). A Lender shall not elect a Lending Office that, at the time of making such election,
increases, by



20









 




more than a de minimis amount, the amounts which would have been payable by any Borrower to
such Lender under this Agreement in the absence of such election (including as a result of taxes
imposed by any jurisdiction). With respect to Loans made from and maintained at any Lender’s
non-U.S. offices, the obligation of the Borrowers to repay such Loans shall nevertheless be to such
Lender and shall, for all purposes of this Agreement (including for purposes of the definition of
the term “Majority Lenders”) be deemed made or maintained by it, for the account of any such
office.



     Section 2.05 Evidence of Indebtedness. The Loans made by each Lender shall be
evidenced by one or more loan accounts maintained by such Lender and the Administrative Agent in
accordance with their usual practices. The accounts or records maintained by the Administrative
Agent and each Lender shall be prima facie evidence of the amount of Loans made by the Lenders to
the Borrowers and the interest and payments thereon. Any failure so to record or any error in
doing so shall not, however, limit or otherwise affect the obligation of the Borrowers hereunder to
pay any amount owing with respect to the Loans. In the event of any conflict between the accounts
and records maintained by any Lender and the accounts and records of the Administrative Agent in
respect of such matters, the accounts and records of the Administrative Agent shall control in the
absence of manifest error.



ARTICLE III


INTEREST AND FEES




     Section 3.01 Interest.



          (a) Interest Rate. The Borrowers shall pay interest on the unpaid principal amount of
each Loan from the date of such Loan until such principal amount shall be paid in full, at a rate
per annum equal at all times during each Interest Period for such Loan to the Eurodollar Rate for
such Interest Period plus the Applicable Margin.



          (b) Interest Periods. Each Interest Period for each Loan shall be (i) in the case of
Loans comprising the initial Borrowing hereunder, six months (the last day of each such period, an
“Interest Period End Date”), and (ii) in the case of Loans comprising other Borrowings, (A)
initially, the period from the date of the Borrowing thereof to the first Interest Period End Date
to occur after such Borrowing date, and (B) thereafter, the period from but excluding the
immediately preceding Interest Period End Date to and including the next succeeding Interest Period
End Date; provided, however, that no Interest Period shall extend beyond the Maturity Date.
The determination of Interest Periods shall be subject to the following provisions:



               (i) in the case of immediately successive Interest Periods, each successive Interest Period
shall commence on the day on which the next preceding Interest Period expires;



               (ii) if any Interest Period would otherwise end on a day which is not a Business Day, that
Interest Period shall be extended to the next succeeding Business Day unless, in the case of a
Loan, the result of such extension would be to carry such Interest Period into



21









 




another calendar month, in which event such Interest Period shall end on the immediately
preceding Business Day; and



               (iii) any Interest Period that begins on the last Business Day of a calendar month (or on a
day for which there is no numerically corresponding day in the ending calendar month of such
Interest Period) shall end on the last Business Day of the ending calendar month of such Interest
Period.



          (c) Interest Payment Dates. Subject to Section 3.02, interest on the Loans shall be
payable in arrears on each date that is three months, or any integral multiple thereof, after the
beginning of the initial Interest Period for the initial Borrowing (with every other such date
falling on an Interest Period End Date) and at maturity, provided that if any prepayment is
effected other than on an Interest Period End Date, accrued interest on such Loan shall be due on
such prepayment date as to the principal amount of such Loan prepaid.



          (d) Notice to the Borrowers and the Lenders. Each determination by the Administrative
Agent hereunder of a rate of interest and of any change therein shall be prima facie evidence
thereof and shall be promptly notified by the Administrative Agent to the Borrowers and the
Lenders. Such notice shall set forth in reasonable detail the basis for any such determination or
change. The failure of the Administrative Agent to give any such notice specified in this
subsection shall not affect any Borrower’s obligation to pay such interest.



     Section 3.02 Default Rate of Interest. Notwithstanding Section 3.01, in the
event that any amount of principal on any Loan, or any amount of interest on any Loan or other
amount payable hereunder or under the Loan Documents, is not paid in full when due (without regard
to any applicable grace periods), whether at stated maturity, by acceleration or otherwise, the
Borrowers shall pay interest on such unpaid principal, interest or other amount, from the date such
amount becomes due until the date such amount is paid in full, and after as well as before any
entry of judgment to the extent permitted by law, at a rate per annum equal at all times to the
rate of interest (if any) otherwise applicable to such Obligation, plus the Default Rate.
Additionally, during the continuance of any Event of Default, the Borrowers shall pay interest on
the outstanding Obligations thereof, at a rate per annum equal to the rate of interest otherwise
applicable to the Loans, plus the Default Rate. Accrued and unpaid interest on past due
amounts (including interest on past due interest) shall be due and payable upon demand by the
Majority Lenders.



     Section 3.03 Fees.



          (a) Administrative Agency Fee. The Borrowers agree to pay to the Administrative
Agent, for its own account as Administrative Agent, within five (5) Business Days after the initial
Borrowing, a one-time administrative agency fee in an amount equal to $25,000.



          (b) Foreclosure Fee. The Borrowers agree to pay to the Administrative Agent, for the
account of the Lenders, on the earlier of (i) the date on which any Event of Default set forth in
Section 11.01(e) or (f) shall occur and (ii) the date on which any Agent commences



22









 




direct foreclosure actions with respect to any material portion of the Collateral, a
foreclosure fee in an amount equal to 10% of the Borrowings then outstanding.



          (c) Fees Nonrefundable. All fees payable under this Section 3.03 shall be, upon
payment thereof, nonrefundable.



     Section 3.04 Computations. All computations of fees and of interest hereunder
shall be made on the basis of a year of 360 days for the actual number of days occurring in the
period for which such fee or interest is payable (which results in more fees or interest, as
applicable, being paid than if computed on the basis of a 365-day or 366-day year).
Notwithstanding the foregoing, if any Loan is repaid on the same day on which it is made, such day
shall be included in computing interest on such Loan.



     Section 3.05 Highest Lawful Rate. Anything herein to the contrary
notwithstanding, if during any period for which interest is computed hereunder, the applicable
interest rate, together with all fees, charges and other payments which are treated as interest
under applicable law, as provided for herein or in any other Loan Document, would exceed the
maximum rate of interest which may be charged, contracted for, reserved, received or collected by
any Lender in connection with this Agreement under applicable law (the “Maximum Rate”), the
Borrowers shall not be obligated to pay, and such Lender shall not be entitled to charge, collect,
receive, reserve or take, interest in excess of the Maximum Rate, and during any such period the
interest payable hereunder shall be limited to the Maximum Rate.



ARTICLE IV


REDUCTION OF COMMITMENTS;


REPAYMENT; PREPAYMENT




     Section 4.01 Extension of Maturity Date; Reduction or Termination of the Commitments.



          (a) Extension. On the date (the “Scheduled Maturity Date”) set forth in
clause (i)(A) or (ii)(A) of the definition of “Maturity Date”, such Scheduled Maturity Date shall
automatically be extended for an additional one year period if:



               (i) on or within ten (10) Business Days preceding such Scheduled Maturity Date, the Borrowers
deliver to the Administrative Agent, in form and substance reasonably satisfactory to it (A)
evidence of the consent of the Guarantors and Texas Genco to such extension, and (B) a certificate
of the Borrowers dated as of the Scheduled Maturity Date signed by a Responsible Officer of each
Borrower certifying (1) the resolutions adopted by each Borrower approving or consenting to such
extension and (2) that, before and after giving effect to such extension, the representations and
warranties contained in Article VIII and in the other Loan Documents shall be true and correct in
all respects (with respect to representations and warranties that are qualified by materiality or
Material Adverse Effect) or in all material respects (with respect to representations and
warranties that are not so qualified) on and as of the Scheduled Maturity Date as though made on
and as of such date, except for such representations and warranties that by their terms relate to a
different date, in which case the Borrowers shall certify that such representations and warranties
are true and correct (with respect to



23









 




representations and warranties that are qualified by materiality or Material Adverse Effect)
or in all material respects (with respect to representations and warranties that are not so
qualified) as of such date (provided that the certification made pursuant to this clause (2) by
bringdown of the representations and warranties contained in Section 8.15(a) shall be deemed a
certification not of the financial statements identified in such Section 8.15(a), but of the
financial statements most recently delivered pursuant to Sections 9.01(a)(i) and (ii)), and that no
Default shall have occurred and be continuing; and



               (ii) the certifications made by the Borrowers in clause (i)(B) above are in fact true and
correct to the extent set forth herein; provided, however, that:



                    (A) following any rejection of the DOE Application with respect to Unit 3 or Unit 4, the
Scheduled Maturity Date for Unit 3 Borrowings or Unit 4 Borrowings (as applicable) may only be
extended as provided herein one time, and any additional extensions shall (in addition to all other
conditions thereto set forth in this Section 4.01(a)) be conditioned upon the Borrowers having (1)
submitted to the Lenders a financing plan specifying sources of funds sufficient to cover the
Borrowers’ portion of the contract price under the EPC Contract for Unit 3 or Unit 4 (as
applicable) and (2) demonstrated, to the reasonable satisfaction of the Majority Lenders, that the
Borrowers are reasonably likely to obtain such financing for Unit 3 before October 16, 2013 or such
financing for Unit 4 before October 16, 2014 (as applicable);



                    (B) (1) in no event shall the Scheduled Maturity Date for Unit 3 Borrowings be extended past
(x) October 16, 2013 or (y) the date set forth in clause (i)(B) or (C) of the definition of
“Maturity Date”, and (2) in no event shall the Scheduled Maturity Date for Unit 4 Borrowings be
extended past (x) October 16, 2014 or (y) the the date set forth in clause (ii)(B) or (C) of the
definition of “Maturity Date”.



          (b) Notice. The Administrative Agent shall give written notice to the Lenders, not
earlier than 60 days prior to the Maturity Date, that, subject to the requirements of Section
4.01(a), such Maturity Date may be extended for an additional one year period.



          (c) Mandatory Termination. The Commitments shall terminate on the later to occur of
(i) the Maturity Date with respect to any Unit 3 Borrowing and (ii) the Maturity Date with respect
to any Unit 4 Borrowing.



          (d) Mandatory Reduction. The aggregate amount of the Commitments automatically shall
reduce to $300,000,000 on the first to occur of (i) the actual Maturity Date for Unit 3 Borrowings
and (ii) the actual Maturity Date for Unit 4 Borrowings.



          (e) Notice. The Administrative Agent shall give each Lender prompt notice of any
termination or reduction of its Commitment under this Section 4.01.



     Section 4.02 Repayment of the Loans. The Borrowers shall repay to the
Lenders, in full, the aggregate principal amount of all outstanding Borrowings on the Maturity Date
therefor.



24









 





     Section 4.03 Prepayments.



          (a) Optional Prepayments. Subject to Section 5.01, the Borrowers may, upon written
notice to the Administrative Agent at least three Business Days prior to the date of any prepayment
pursuant to this subsection, prepay the outstanding amount of the Loans in whole or ratably in
part, without premium or penalty. Partial prepayments shall be in the amount of $500,000 or a
greater amount which is an integral multiple of $100,000 (or, if less, the entire principal amount
of the Loans then outstanding).



          (b) Mandatory Prepayments.



               (i) If at any time the aggregate principal amount of the outstanding Loans shall exceed the
aggregate amount of all Lenders’ Commitments, the Borrowers shall immediately prepay the Loans in
the amount of such excess.



               (ii) Following any incurrence by any Borrower or any Restricted Subsidiary thereof of
Indebtedness described in clause (i) of the definition thereof (other than any such Indebtedness
permitted under Section 10.01(f), (g) or (h)), the Borrowers shall, within five Business Days of
receipt of the Net Cash Proceeds thereof, prepay the outstanding principal amount of the Loans in
an amount equal to the lesser of (1) such Net Cash Proceeds and (2) the outstanding principal
amount of the Loans then outstanding, all accrued interest thereon and all other Obligations then
due and payable. The provisions of this subsection shall not be deemed to be implied consent to
any such issuance, sale or incurrence otherwise prohibited by the terms and conditions of this
Agreement.



          (c) Notice; Application. The notice given of any prepayment (a “Notice of
Prepayment”) shall specify the date and amount of the prepayment and whether such prepayment is
pursuant to Section 4.03(a) or Section 4.03(b). Upon receipt of the Notice of Prepayment the
Administrative Agent shall promptly notify each Lender thereof. If the Notice of Prepayment is
given, the Borrowers shall make such prepayment and the prepayment amount specified in such Notice
of Prepayment shall be due and payable on the date specified therein, with accrued interest to such
date on the amount prepaid and any amounts due pursuant to Section 5.01.



     Section 4.04 Net Payments. The Borrowers’ obligations to make payments of
principal and interest on the Borrowings and of other amounts under the Loan Documents to the
extent set forth therein, and the rights of the Administrative Agent and Lenders in and to such
payments, shall be absolute and unconditional and shall not be subject to any abatement, reduction,
set-off, defense, counterclaim or recoupment for any reason whatsoever, including without
limitation abatements or reductions due to any present or future claims of any Borrower against the
Contractor, the Administrative Agent or any Lender under any Loan Document, the EPC Contract or
otherwise, against any vendor of Equipment and Materials used or planned to be used, or against any
other Person for whatever reason. Except as otherwise expressly provided herein, this Agreement
shall not terminate, nor shall the obligations of any Borrower be affected, by reason of (i) any
defect in or damage to, or any loss or destruction of, any of the Equipment and Materials or
otherwise from any cause whatsoever, (ii) any bankruptcy, insolvency, reorganization or other
proceeding relating to, or any action taken by any trustee or receiver of, the Administrative
Agent, any Lender or any other Person, or (iii) for any other cause, whether



25









 




similar or dissimilar to the foregoing, any present or future law or regulation to the
contrary notwithstanding, whether or not such cause shall give rise to a claim by any Borrower
against any Lender or other Person under the EPC Contract, or any Subcontract, Pre-FNTP Task Order
(as defined in the EPC Contract), or Equipment Purchase Approval, or otherwise, it being the
express intention of the parties hereto that all amounts payable by the Borrowers under the Loan
Documents to the extent set forth therein shall be, and continue to be, payable in all events
unless the obligation to pay shall be terminated pursuant to the express provisions of this
Agreement or such other applicable Loan Document. All payments made by the Borrowers hereunder or
under any other Loan Document as required hereby or thereby shall be final, and the Borrowers shall
not seek to recover any such payment or any part thereof for any reason whatsoever. Nothing in
this Agreement, including the preceding sentence, shall, however, release any claim any Borrower
may have against TANE in its capacity as Contractor (and any Person providing credit support for
the Contractor’s obligations), whether in connection with the EPC Contract, any Subcontract,
Pre-FNTP Task Order (as defined in the EPC Contract), Equipment Purchase Approval or otherwise. If
for any reason whatsoever this Agreement shall be terminated in whole or in part by operation of
law or otherwise (other than by the written agreement of the Lenders), the Borrowers shall
nonetheless, to the extent permitted by applicable law, pay to the Administrative Agent, on behalf
of Lenders, an amount equal to each payment due and payable by the Borrowers hereunder at the time
and in the manner that such payment would have become due and payable under the terms of this
Agreement if it had not been terminated in whole or in part.



ARTICLE V


YIELD PROTECTION AND ILLEGALITY




     Section 5.01 Compensation for Losses. In addition to such amounts as are
required to be paid by any Borrower pursuant to Section 5.02, the Borrowers shall compensate each
Lender, promptly upon receipt of such Lender’s written request made to the Borrowers (with a copy
to the Administrative Agent), for all actually incurred losses, costs and expenses (including any
loss or expense incurred by such Lender in obtaining, liquidating or re-employing deposits or other
funds to fund or maintain its Loans), if any, which such Lender sustains: (i) if the Borrowers
repay or prepay any Loan on a date other than the last day of an Interest Period for such Loan
(whether as a result of an optional prepayment, mandatory prepayment, a payment as a result of
acceleration or otherwise); (ii) if the Borrowers fail to borrow any Loan after giving a Notice of
Borrowing; (iii) if the Borrowers fail to prepay any Loan after giving a Notice of Prepayment; or
(iv) if any Loan is assigned pursuant to Section 5.05 other than on the last day of an Interest
Period for such Loan.



     Section 5.02 Regulatory Changes.



          (a) Increased Costs. If after the date hereof, the adoption of, or any change in, any
applicable law, rule or regulation, or any change therein, or any change in the interpretation or
administration thereof by any Governmental Authority charged with the interpretation or
administration thereof (a “Regulatory Change”), or compliance by any Lender (other than
TANE) or such Lender’s Lending Office with any request, guideline or directive (whether or not
having the force of law) of any Governmental Authority shall impose, modify or deem applicable any
reserve, special deposit or similar requirement (including any such requirement



26









 




imposed by the FRB, but excluding with respect to any Loan any such requirement included in
the calculation of the Eurodollar Rate) against assets of, deposits with or for the account of, or
credit extended by, any Lender’s Lending Office or shall impose on any Lender (or its Lending
Office) or on the interbank eurodollar market any other condition affecting its Loans or its
obligation to make Loans, and the result of any of the foregoing is to increase the cost to such
Lender (or its Lending Office) of making, funding or maintaining any Loan, or to reduce the amount
of any sum received or receivable by such Lender (or its Lending Office) under this Agreement with
respect thereto, by an amount deemed by such Lender to be material, then from time to time, within
30 days after demand by such Lender (with a copy to the Administrative Agent), the Borrowers shall
pay to such Lender such additional amounts as shall compensate such Lender for such increased cost
or reduction.



          (b) Capital Requirements. If any Lender (other than TANE) shall have determined that
any Regulatory Change regarding capital adequacy, or compliance by such Lender (or any corporation
controlling such Lender) with any request, guideline or directive regarding capital adequacy
(whether or not having the force of law) of any Governmental Authority, has or shall have the
effect of reducing the rate of return on such Lender’s or such corporation’s capital as a
consequence of such Lender’s obligations hereunder to a level below that which such Lender or such
corporation would have achieved but for such adoption, change or compliance (taking into
consideration such Lender’s or such corporation’s policies with respect to capital adequacy), by an
amount deemed by such Lender to be material, then from time to time, within 30 days after demand by
such Lender (with a copy to the Administrative Agent), the Borrowers shall pay to such Lender such
additional amounts as shall compensate such Lender for such reduction.



          (c) Requests. Any such request for compensation by a Lender under this Section 5.02
shall be in writing and set forth in reasonable detail the basis of calculation thereof and shall
be prima facie evidence of the amount of such compensation. In determining the amount of such
compensation, such Lender may use any reasonable averaging and attribution methods generally used
in the marketplace.



     Section 5.03 Illegality. If any Lender shall determine that it has become
unlawful, as a result of any Regulatory Change, for such Lender to make or maintain Loans as
contemplated by this Agreement, such Lender shall promptly give notice of such determination to the
Borrowers (through the Administrative Agent), and the obligation of such Lender to make Loans shall
be suspended until such Lender gives notice that the circumstances causing such suspension no
longer exist. Any such determination shall be prima facie evidence thereof. Upon receipt of such
notice, the Borrowers shall, within thirty (30) days of demand from such Lender (with a copy to the
Administrative Agent), prepay all Loans of such Lender, unless such Lender may not lawfully
continue to maintain such Loans, in which case the relevant Loans shall be prepaid within five (5)
Business Days of such notice. Upon any such prepayment, the Borrower shall also pay accrued
interest on the amount so prepaid.



     Section 5.04 Obligation to Mitigate. Each Lender (other than TANE) agrees
that as promptly as practicable after it becomes aware of the occurrence of an event that would
entitle it to give notice pursuant to Section 5.02(a), 5.02(b) or 5.03, and in any event if so
requested by any Borrower, such Lender shall use commercially reasonable efforts to make, fund or
maintain




27











 




its affected Loans through another Lending Office if as a result thereof the increased costs
would be avoided or reduced by an amount reasonably determined by such Lender to be material, the
making, funding or maintaining of such Loans through such other Lending Office would not in any
material respect be disadvantageous to such Lender or contrary to such Lender’s normal generally
applied banking practices.



     Section 5.05 Substitution of Lenders. Upon the receipt by any Borrower from
any Lender (an “Affected Lender”) of a request for compensation under Section 5.02, a
notice under Section 5.03 or a request for payment under Section 6.03, the Borrowers may (i)
request one or more of the other Lenders to acquire and assume all or part of such Affected
Lender’s Loans and Commitment(s), or (ii) designate a replacement lending institution (which shall
be an Eligible Assignee) to acquire and assume all or a ratable part of such Affected Lender’s
Loans and Commitment(s) (a “Replacement Lender”); provided, however, that
the Borrowers shall be liable for the payment promptly upon demand of all costs and other amounts
arising under Section 5.01 that result from the acquisition of any Affected Lender’s Loan and/or
Commitment (or any portion thereof) by a Lender or Replacement Lender, as the case may be, on a
date other than the last day of the applicable Interest Period with respect to any Loan then
outstanding. Any such designation of a Replacement Lender under the foregoing clause (ii) shall be
effected in accordance with, and subject to the terms and conditions of, the assignment provisions
contained in Section 13.10 (with the assignment fee to be paid by the Borrowers in such instance),
and shall in any event be subject to the prior written consent of the Administrative Agent (which
consent shall not be unreasonably withheld).



ARTICLE VI


PAYMENTS




     Section 6.01 Pro Rata Treatment. Except as otherwise provided in this
Agreement, each Borrowing hereunder, each Commitment reduction, each payment (including each
prepayment) by any Borrower on account of the principal of and interest on the Loans shall be made
ratably in accordance with the respective Pro Rata Shares of the Lenders (other than in respect of
prepayments made as a result of Article V above).



     Section 6.02 Payments.



          (a) Payments to the Administrative Agent. The Borrowers shall make each payment under
the Loan Documents, unconditionally in full without set-off, counterclaim or other defense, not
later than 1:00 P.M. (New York time) on the day when due to the Administrative Agent in Dollars and
in same day or immediately available funds, to the Administrative Agent’s Account.



          (b) Payments to Lenders. The Administrative Agent shall promptly distribute like
funds relating to the payment of principal or interest or any other amounts payable to the Lenders,
ratably (except as a result of the operation of Article V) to the Lenders in accordance with their
Pro Rata Shares.



          (c) Application. After the exercise of remedies provided for in Section 11.02 (or
after the Loans have automatically become immediately due and payable as set forth in



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Section 11.02), any amounts received on account of the Obligations shall be applied in the
following order: (A) first, to any fees, costs, expenses and other amounts due the Agents
(including interest thereon, if any); (B) second, to any fees, costs, expenses and other amounts
due the Lenders (excluding principal and interest); (C) third, to accrued and unpaid interest on
any principal and other Obligations due the Lenders; and (D) fourth, to principal due the Lenders.



          (d) Extension. Whenever any payment hereunder shall be stated to be due, or whenever
any Interest Payment Date or any other date specified hereunder would otherwise occur, on a day
other than a Business Day, then, except as otherwise provided herein, such payment shall be made,
and such Interest Payment Date or other date shall occur, on the next succeeding Business Day, and
such extension of time shall in such case be included in the computation of payment of interest
hereunder.



     Section 6.03 Taxes.



          (a) No Reduction of Payments. The Borrowers shall pay all amounts of principal,
interest, fees and other amounts due under the Loan Documents free and clear of, and without
reduction for or on account of, any present and future taxes, levies, imposts, duties, fees,
assessments, charges, deductions or withholdings and all liabilities with respect thereto
excluding, in the case of each Lender and the Administrative Agent, (i) taxes imposed on or
measured by its overall net income, overall net profits or overall net receipts (or franchise taxes
imposed on it in lieu of taxes), by the United States, by the jurisdiction under the laws of which
such Lender or the Administrative Agent is organized or in which its principal executive offices
may be located or any political subdivision or taxing authority thereof or therein, or by the
jurisdiction of such Lender’s Lending Office and any political subdivision or taxing authority
thereof or therein, or (ii) any branch profits tax imposed by the United States, or any similar tax
imposed by any jurisdiction described in clause (i) above, or (iii) any United States withholding
tax to the extent it is imposed on amounts payable to a Lender or an Agent at the time such Lender
or Agent becomes a party to this Agreement or designates a new Lending Office (all such
non-excluded taxes, levies, imposts, duties, fees, assessments, charges, deductions, withholdings
and liabilities being hereinafter referred to as “Taxes”), unless required by law. If any
Taxes shall be required by law to be deducted or withheld from any payment, the Borrowers shall
increase the amount paid so that the respective Lender (other than TANE) receives when due (and is
entitled to retain), after deduction or withholding for or on account of such Taxes (including
deductions or withholdings applicable to additional sums payable under this Section 6.03), the full
amount of the payment provided for in the Loan Documents. The Borrowers shall not be obligated to
gross up payments to any Lender (other than TANE) pursuant to this Section 6.03(a) to the extent
the Borrowers are required to deduct or withhold Taxes as a result of such Lender’s failure to
comply with Section 6.03(d)(i), (ii), (iii) or (v), as applicable.



          (b) Deduction or Withholding; Tax Receipts. If any Borrower makes any payment
hereunder to any Lender (other than TANE) in respect of which it is required by law to make any
deduction or withholding, it shall pay the full amount to be deducted or withheld to the relevant
taxation or other authority within the time allowed for such payment under applicable law and
promptly thereafter shall furnish to the Administrative Agent (for itself or for redelivery



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to the
Lender to or for the account of which such payment was made) an original or certified
copy of a receipt evidencing payment thereof, together with such other information and
documents as the Administrative Agent or any Lender (through the Administrative Agent) (other than
TANE) may reasonably request.



          (c) Indemnity. If any Lender (other than TANE) or Agent is required by law to make
any payment on account of Taxes, or any liability in respect of any Tax is imposed, levied or
assessed against any Lender (other than TANE) or Agent, the Borrowers shall indemnify the Agents
and the Lenders (other than TANE) for and against such payment or liability, together with any
incremental or additional taxes, interest or penalties, and all costs and expenses, payable or
incurred in connection therewith, including Taxes imposed on amounts payable under this Section
6.03, whether or not such payment or liability was correctly or legally asserted. A certificate of
any Agent or Lender as to the amount of any such payment shall be prima facie evidence of the
amounts due on account of this indemnity. Borrowers shall have no obligation to indemnify any
Lender or Agent pursuant to this Section 6.03(c) unless such Lender or Agent notifies Borrowers in
writing of its claim for indemnity within 180 days of the earlier of the date such Tax is imposed,
levied or assessed.



          (d) Forms.



               (i) Each Lender that is not a “United States person” within the meaning of Section 7701(a)(30)
of the Internal Revenue Code (a “Foreign Lender”) agrees to deliver to the Administrative
Agent and the Borrowers on or prior to the date of its first Loan, and in a timely fashion
thereafter, two duly signed completed copies of IRS Form W-8BEN, IRS Form W-8ECI or such other
documents and forms of the IRS, as are required under United States law to confirm such Foreign
Lender’s entitlement to exemption from, or reduction of, applicable withholding taxes under the
Internal Revenue Code in respect of payments to be made to such Foreign Lender under or in
connection with this Agreement or otherwise to establish such Foreign Lender’s status for United
States withholding tax purposes.



               (ii) Each Foreign Lender, to the extent it does not act or ceases to act for its own account
with respect to any portion of any sums paid or payable to such Foreign Lender under any of the
Loan Documents (for example, in the case of a typical participation by such Foreign Lender), shall
deliver to the Administrative Agent on the date when such Foreign Lender ceases to act for its own
account with respect to any portion of any such sums paid or payable, and at such other times as
may be necessary in the determination of the Administrative Agent (in the reasonable exercise of
its discretion), (A) two duly signed completed copies of the forms or statements required to be
provided by such Foreign Lender as set forth above, to establish the portion of any such sums paid
or payable with respect to which such Lender acts for its own account that is not subject to U.S.
withholding tax, and (B) two duly signed completed copies of IRS Form W-8IMY (or any successor
thereto), together with any information such Foreign Lender chooses to transmit with such form, and
any other certificate or statement of exemption required under the Internal Revenue Code, to
establish that such Foreign Lender is not acting for its own account with respect to a portion of
any such sums payable to such Foreign Lender.



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               (iii) Upon the request of the Administrative Agent, each Lender that is a “United States
person” within the meaning of Section 7701(a)(30) of the Internal Revenue
Code shall deliver to the Administrative Agent two duly signed completed copies of IRS Form
W-9.



               (iv) If any Governmental Authority asserts that the Administrative Agent did not properly
withhold or backup withhold, as the case may be, any tax or other amount from payments made to or
for the account of any Lender, such Lender shall indemnify the Administrative Agent therefor,
including all penalties and interest, any taxes imposed by any jurisdiction on the amounts payable
to the Administrative Agent under this Section 6.03, any costs and expenses and the reasonable fees
and disbursements of counsel (including allocated costs of internal counsel), of the Administrative
Agent.



               (v) Exemption Certificates. If, at any time while the Obligations are outstanding,
any Lender becomes entitled to claim the benefits of the exemption for portfolio interest under
Section 871(h) or 881(c) of the Code, such Lender shall deliver to the Administrative Agent and the
Borrowers a certificate of a duly authorized officer of such Lender to the effect that such Lender
is not (x) a “bank” within the meaning of Section 881(c)(3)(A) of the Code, (y) a “10 percent
shareholder” of any Borrower within the meaning of Section 881(c)(3)(B) of the Code, or (z) a
“controlled foreign corporation” receiving interest from a related person within the meaning of
Section 881(c)(3)(C) of the Code (such certificate, an “Exemption Certificate”).
Thereafter and from time to time (but only so long as such Lender remains lawfully able to do so),
such Lender shall submit to the Borrowers such additional duly completed signed copies of one or
the other of such certificates, documents, or other evidence as may be (i) notified by the
Borrowers to such Lender through the Administrative Agent and (ii) required under then current law
in the United States to avoid United Sates withholding taxes on payments in respect of all amounts
to be received by such Lender under this Agreement or any other Loan Document.



          (e) Mitigation. Each Lender agrees that as promptly as practicable after it becomes
aware of the occurrence of an event that would cause any Borrower to make any payment in respect of
Taxes to such Lender or a payment in indemnification with respect to any Taxes, and in any event if
so requested by any Borrower following such occurrence, each Lender shall use commercially
reasonable efforts to make, fund or maintain its affected Loan (or relevant part thereof) through
another Lending Office if as a result thereof the additional amounts so payable by the Borrowers
would be avoided or materially reduced and if, in the reasonable opinion of such Lender, the
making, funding or maintaining of such Loan (or relevant part thereof) through such other Lending
Office would not in any material respect be disadvantageous to such Lender or contrary to such
Lender’s normal banking practices.



     Section 6.04 Non-Receipt of Funds. Unless the Administrative Agent shall have
received notice from any Borrower prior to the date on which any payment is due to any of the
Lenders hereunder that the Borrowers shall not make such payment in full, the Administrative Agent
may assume that the Borrowers have made such payment in full to the Administrative Agent on such
date and the Administrative Agent may, in reliance upon such assumption, cause to be distributed to
each Lender on such due date an amount equal to the amount then due such Lender. If and to the
extent the Borrowers shall not have so made such payment in full to the



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Administrative Agent, each
Lender shall repay to the Administrative Agent forthwith on demand such amount distributed to such
Lender together with interest thereon, for each day from the date
such amount is distributed to such Lender until the date such Lender repays such amount to the
Administrative Agent, at the Federal Funds Rate.



     Section 6.05 Sharing of Payments. If any Lender shall obtain any payment
(whether voluntary, involuntary, through the exercise of any right of set-off, or otherwise) on
account of the principal of or interest on any Loans made by it (other than pursuant to a provision
hereof providing for non-pro rata treatment, including Article V hereof) in excess of its Pro Rata
Share of payments on account of the Loans obtained by all the Lenders, such Lender shall forthwith
advise the Administrative Agent of the receipt of such payment, and within five Business Days of
such receipt purchase (for cash at face value) from the other Lenders (through the Administrative
Agent), without recourse, such participations in the Loans made by them as shall be necessary to
cause such purchasing Lender to share the excess payment ratably with each of them in accordance
with the respective Pro Rata Shares of the Lenders; provided, however, that if all
or any portion of such excess payment is thereafter recovered by or on behalf of any Borrower from
such purchasing Lender, the purchase shall be rescinded and the purchase price restored to the
extent of such recovery, but without interest. The Borrowers agree that any Lender so purchasing a
participation from another Lender pursuant to this Section 6.05 may exercise all its rights of
payment (including the right of set-off) with respect to such participation as fully as if such
Lender were the direct creditor of the Borrowers in the amount of such participation. No
documentation other than notices and the like referred to in this Section 6.05 shall be required to
implement the terms of this Section 6.05. The Administrative Agent shall keep records (which shall
be conclusive and binding in the absence of manifest error) of participations purchased pursuant to
this Section 6.05 and shall in each case notify the Lenders following any such purchases.



ARTICLE VII


CONDITIONS PRECEDENT




     Section 7.01 Conditions Precedent to the Initial Loans. The obligation of
each Lender to make its initial Loan as part of the initial Borrowing shall be subject to the
satisfaction of each of the following conditions precedent on or before the date thereof:



          (a) Fees and Expenses. The Borrowers shall have paid to the Administrative Agent
(unless waived by the Administrative Agent) all invoiced costs and expenses, if any, then due in
accordance with Section 13.04(a).



          (b) Material Adverse Effect. On and as of the date of such Borrowing, there shall
have occurred no Material Adverse Effect since June 30, 2008.



          (c) Loan Documents. The Administrative Agent shall have received the following Loan
Documents, signed by each party thereto:



               (i) this Agreement;



               (ii) the Collateral Agency Agreement;



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               (iii) the Texas Genco Pledge Agreement;



               (iv) the Borrower Security Agreement;



               (v) (A) deposit account control agreements with respect to each deposit account comprising
Collateral of each Borrower and (B) securities account control agreements with respect to each
securities account comprising Collateral of each Borrower; and



               (vi) intellectual property security agreements (in form and substance reasonably acceptable to
the Majority Lenders) with respect to patents, trademarks, copyrights or applications therefor
filed with the United States Patent and Trademark Office or the United States Copyright Office (as
applicable) that constitute part of the Collateral as of the date of the initial Borrowing (if
any).



          (d) Documents and Actions Relating to Collateral. The Administrative Agent shall have
received the following, in form and substance reasonably satisfactory to it and the Lenders:



               (i) evidence that all filings, registrations and recordings have been made in the appropriate
governmental offices, and all other action has been taken, which shall be necessary to create, in
favor of the Collateral Agent (for the benefit of the Lenders and Agents), a perfected first
priority Lien on the Collateral (subject to Permitted Liens), including evidence of the filing of
completed UCC-1 financing statements in the appropriate governmental offices;



               (ii) the results, dated as of a recent date prior to the date of such initial Borrowing, of
searches conducted (A) in the UCC filing records in the office of the Secretary of State of each
State where a Credit Party is organized and in each of the governmental offices in each
jurisdiction in which a material portion of fixture Collateral (including that which will be part
of the Project) is or is intended to be located, and (B) of the public records maintained by the
U.S. Patent and Trademark Office and the U.S. Copyright Office with respect to all United States
patents and patent applications and all United States registered trademarks and trademark
applications owned by each Borrower or all copyrights and copyright applications owned by each
Borrower (as applicable), which in each case shall have revealed no Liens with respect to any of
the Collateral, except in each case for Permitted Liens or Liens as to which the Administrative
Agent shall have received (and is authorized to file) termination statements or documents (Form
UCC-3 or such other termination statements or documents as shall be required by applicable law)
fully executed for filing;



               (iii) the certificates or instruments representing any pledged Collateral, together with
undated stock powers or indorsements, as the case may be, executed in blank, with respect thereto;
and



               (iv) evidence that NINA’s Operating Agreement, and the limited liability company agreements of
the other Borrowers, have been amended as set forth on Schedule 7.01(d)(iv).



33









 





          (e) Additional Closing Documents and Actions. The Administrative Agent shall have
received the following, in form and substance reasonably satisfactory to it and the Lenders:



               (i) certificates of insurance and endorsements, naming the Collateral Agent as loss payee and
additional insured, in respect of the insurance policies (other than business interruption
insurance, workers’ compensation insurance and any directors and officers insurance) required under
this Agreement and the Collateral Documents;



               (ii) a certificate of a Responsible Officer of each Borrower, dated the date of the initial
Borrowing, certifying that: (A) attached thereto is evidence that all authorizations or approvals
of any Governmental Authority and approvals or consents of any other Person, required in connection
with the execution, delivery and performance of the Loan Documents have been obtained (if any); (B)
the representations and warranties contained in Article VIII and in the other Loan Documents are
true and correct in all respects (with respect to representations and warranties that are qualified
by materiality or Material Adverse Effect) or in all material respects (with respect to
representations and warranties that are not so qualified) on and as of the date of such certificate
as though made on and as of such date, and (C) on and as of the date of such Borrowing, no Default
shall have occurred and be continuing or shall result from such Borrowing;



               (iii) copies of the financial statements referred to in Section 8.15(a);



               (iv) certificates as to good standing from the Secretary of State of (A) each Credit Party’s
jurisdiction of organization, (B) the jurisdiction in which the chief executive office or principal
place of business of each Credit Party is situated (if different from its jurisdiction of
organization), and (C) each other jurisdiction in which the failure of any Credit Party to be in
good standing would result in a Material Adverse Effect, each dated as of a recent date prior to
the date hereof and prior to the date of the initial Borrowing; and



               (v) a certificate of the Secretary or Assistant Secretary (or, if no such officer has been
appointed, another officer) of each Credit Party, dated the date hereof, and a certificate of the
Secretary or Assistant Secretary of each Credit Party, dated the date of such initial Borrowing,
certifying (A) copies of the Organization Documents of such Credit Party, (B) the resolutions of
the Board of Directors of such Credit Party authorizing the execution, delivery and performance of
the Loan Documents and (C) the incumbency, authority and signatures of each officer of such Credit
Party authorized to execute and deliver the Loan Documents and act with respect thereto.



          (f) Legal Opinions. The Administrative Agent shall have received an opinion of
counsel to the Credit Parties, dated the date of such Borrowing and addressed to the Agents and
Lenders, in the forms attached hereto as Exhibits E-1 and E-2.



     Section 7.02 Conditions Precedent to All Loans. The obligation of each Lender
to make a Loan on the occasion of each Borrowing shall be subject to the satisfaction of each of
the following conditions precedent:



34









 





          (a) Notice. The Borrowers shall have given the Notice of Borrowing as provided in
Section 2.02(a).



          (b) Representations and Warranties; No Default. On the date of such Borrowing, both
immediately before and immediately after giving effect thereto and to the
application of proceeds therefrom: (i) the representations and warranties contained in
Article VIII and in the other Loan Documents shall be true and correct in all respects (with
respect to representations and warranties that are qualified by materiality or Material Adverse
Effect) or in all material respects (with respect to representations and warranties that are not so
qualified) on and as of the date of such Borrowing as though made on and as of such date, except
for such representations and warranties that by their terms relate to a different date, in which
case such representations and warranties shall be true and correct in all respects (with respect to
representations and warranties that are qualified by materiality or Material Adverse Effect) or in
all material respects (with respect to representations and warranties that are not so qualified) as
of such date (provided that for purposes of this clause (i), the representations and warranties
contained in Section 8.15(a) shall be deemed to refer not to the financial statements identified in
such Section 8.15(a), but to the financial statements most recently delivered pursuant to Sections
9.01(a)(i) and (ii)); and (ii) no Default shall have occurred and be continuing or shall result
from such Borrowing. The giving of any Notice of Borrowing shall each be deemed a certification to
the Agents and the Lenders that on and as of the date of such Borrowing such statements are true.



          (c) EPC Contract. The EPC Contract shall be in full force and effect.



          (d) Co-Payment. The Contractor shall have received prior to or contemporaneously with
the funding of the relevant Borrowing an amount of immediately available funds equal to 5% of the
applicable Borrower Purchase Price.



          (e) Additional Documents. The Administrative Agent shall have received, in form and
substance reasonably satisfactory to it, such additional approvals, documents and other information
as the Administrative Agent or any Lender (through the Administrative Agent) may reasonably
request.



ARTICLE VIII


REPRESENTATIONS AND WARRANTIES




     The Borrowers represent and warrant to each Lender and the Administrative Agent that:



     Section 8.01 Organization and Powers. Each Credit Party (i) is duly organized
or formed, as the case may be, validly existing and in good standing (to the extent such concept is
applicable in the relevant jurisdiction) under the laws of the jurisdiction of its incorporation or
organization, (ii) is qualified to do business and is in good standing in each jurisdiction in
which the failure so to qualify or be in good standing would result in a Material Adverse Effect,
(iii) has all requisite power and authority to own its assets and carry on its business, except
where the failure so to have would not reasonably be expected to have a Material Adverse Effect,
and (iv) has all requisite power and authority to execute, deliver and perform its obligations
under the Loan Documents to which it is a party.



35









 





     Section 8.02 Authorization; No Conflict. The execution, delivery and
performance by each Credit Party of the Loan Documents to which such Person is a party have been
duly authorized by all necessary action of such Credit Party and do not and will not (i) subject to
any action, consent or approval that may be required under NINA’s Operating Agreement,
contravene the terms of the Organization Documents of such Credit Party, (ii) result in a
breach of or constitute a default under any indenture or loan or credit agreement or any other
agreement, lease or instrument to which any Credit Party is a party or by which any Credit Party or
its properties may be bound or affected where such breach or default would not reasonably be
expected to result in a Material Adverse Effect, (iii) result in a breach of or constitute a
default under any material indenture or material loan or credit agreement to which NRG is a party
(including the NRG Debt Documents); (iv) subject to obtaining any required approvals as set forth
in Section 8.04, violate any provision of any law, rule, regulation, order, writ, judgment,
injunction, decree or the like binding on or affecting such Credit Party where such violation would
reasonably be expected to result in a material adverse effect on the interests of the Lenders,
taken as a whole, or (v) except as contemplated by this Agreement, result in, or require, the
creation or imposition of any Lien upon or with respect to (A) any of the properties of any
Borrower or Guarantor (other than Permitted Liens) or (B) any of the Collateral pledged under the
Texas Genco Pledge Agreement (other than Permitted Liens).



     Section 8.03 Binding Obligation. This Agreement has been, and each other Loan
Document, when delivered hereunder, will have been, duly executed and delivered by each Credit
Party that is party thereto. This Agreement constitutes, and each other Loan Document when so
delivered will constitute, a legal, valid and binding obligation of such Credit Party, enforceable
against such Credit Party in accordance with its terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer or other laws now or hereafter in
effect relating to creditors’ rights generally and (including with respect to specific
performance), to general principles of equity, regardless of whether considered in a proceeding in
equity or at law, and to the discretion of the court before which any proceeding therefor may be
brought.



     Section 8.04 Consents. No authorization, consent, approval, license,
exemption of, or filing or registration with, any Governmental Authority, or approval or consent of
any other Person, is required for the due execution, delivery or performance by any Credit Party of
any of the Loan Documents, except for (i) recordings or filings or other action in connection with
the perfection of the Liens on the Collateral in favor of the Collateral Agent (for the benefit of
the Lenders and Agents), (ii) following the issuance of any Specific License issued by the NRC to
any Borrower or any Subsidiary thereof, any Specific License or authorization for direct or
indirect transfer of control of a Specific License that may be required by the NRC for the exercise
of any remedy provided for under the Security Documents, (iii) following the generation or
transmission of electric energy by any Borrower or any Subsidiary thereof, applicable state or
federal regulatory approvals that may be required for the exercise of certain remedies provided for
under the Security Documents, (iv) any actions, consents, approvals, registrations or filings where
the failure to obtain or make the same would not reasonably be expected to have a material adverse
effect on the interests of the Lenders, taken as a whole, or (v) such as have been made or granted
and are in full force and effect.



36









 





     Section 8.05 Title to Properties; Liens. Each Borrower and each Restricted
Subsidiary thereof (and Texas Genco, only with respect to the assets pledged pursuant to the Texas
Genco Pledge Agreement) has title to, or valid and subsisting leasehold or license interests in,
its material properties and assets (except for intellectual property rights, for which
representations and warranties under this Agreement are addressed exclusively in Section 8.13),
including all property forming a part of the Collateral, and there is no Lien upon any of such properties or
assets, including any of the Collateral, except for Permitted Liens. All real property in which as
of the date hereof any Borrower or Restricted Subsidiary thereof has an ownership interest is
listed on Schedule 8.05.



     Section 8.06 Litigation. Except as set forth in Schedule 8.06, there are no
actions, suits, investigations or proceedings pending or, to the best of any Borrower’s knowledge,
threatened in writing against or affecting any Credit Party or the properties of any Credit Party
before any Governmental Authority or arbitrator that involve any Loan Document or that, if
determined adversely to such Credit Party, would result in a Material Adverse Effect.



     Section 8.07 Compliance with Environmental Laws. Each Borrower and each
Subsidiary thereof is in compliance with all Environmental Laws, including possession of all
permits required by Environmental Laws, whether in connection with the ownership, use, maintenance
or operation of their respective properties or the conduct of any business thereon, or otherwise,
except for such noncompliance that would not result in a Material Adverse Effect. Neither any
Borrower, any of its Subsidiaries nor to the best of each Borrower’s knowledge, any previous owner,
tenant, occupant, user or operator of their respective businesses, operations or properties, or any
present tenant or other present occupant, user or operator of their respective businesses,
operations or properties has used, generated, manufactured, installed, treated, released, stored or
disposed of any Hazardous Substances on, under, or at their respective properties, except in each
case for such noncompliance that would not result in a Material Adverse Effect. There are no
actions, suits, claims, notices of violation, hearings, investigations or proceedings pending or,
to the best of each Borrower’s knowledge, threatened in writing against or affecting any Borrower
or any Subsidiary thereof or with respect to the ownership, use, maintenance and operation of their
respective properties, relating to Environmental Laws or Hazardous Substances, except as would not
result in a Material Adverse Effect.



     Section 8.08 Investment Company Status. No Borrower or Subsidiary thereof is
an “investment company,” or a company “controlled” by an “investment company,” in each case
required to be registered as such pursuant to, and within the meaning of the Investment Company Act
of 1940.



     Section 8.09 ERISA. Except as would not result in a Material Adverse Effect:



          (a) each Credit Party is in compliance in all material respects with all applicable provisions
and requirements of ERISA with respect to each Pension Plan;



          (b) no ERISA Event has occurred; and



          (c) all liabilities under each Plan are (i) funded to at least the minimum level required by
law or, if higher, to the level required by the terms governing the Plan, (ii) insured



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with a reputable insurance company, (iii) provided for or recognized in the financial statements most
recently delivered to the Administrative Agent and the Lenders pursuant hereto or (iv) estimated in
the formal notes to the financial statements most recently delivered to the Administrative Agent
and the Lenders pursuant hereto.



     Section 8.10 Subsidiaries and Other Equity Investments.



          (a) Each Subsidiary of each Borrower on the date of this Agreement is listed in Schedule 8.10.
Except as set forth in such Schedule, on the date of this Agreement no Borrower holds, directly or
indirectly, any equity interest in any other Person.



          (b) Schedule 8.10 sets forth as of the date hereof (i) the jurisdiction of organization of
each Subsidiary of each Borrower, (ii) the nature of the legal organization of each such
Subsidiary, (iii) the number and percentage of the capital stock or other equity interests of each
such Subsidiary that any Borrower owns, and (iv) any other Persons directly owning any interest in
any such Subsidiary and the number and percentage of the capital stock or other equity interests of
such Subsidiary owned by such other Persons. All of the issued and outstanding capital stock or
other equity interests of each such Subsidiary have been duly authorized and are validly issued and
are fully paid and non-assessable. No securities convertible into or exchangeable for any shares
of capital stock or other ownership interests of any Borrower’s Restricted Subsidiaries, or any
options, warrants or other commitments entitling any Person to purchase or otherwise acquire any
shares of capital stock or other ownership interests of such Subsidiaries, are issued and
outstanding.



     Section 8.11 Margin Regulations. No Borrower is engaged in the business of
extending credit for the purpose of purchasing or carrying “margin stock” (within the meaning of
Regulation U of the FRB) in contravention of Regulation U of the FRB.



     Section 8.12 Taxes. Each Borrower and each Subsidiary thereof have duly filed
all material tax and information returns required to be filed, and have paid or caused to be paid
all taxes, fees, assessments and other governmental charges or levies that have become due and
payable, except to the extent such taxes, fees, assessments or other charges or levies are being
contested in good faith and are adequately reserved against in accordance with GAAP. There is no
proposed tax assessment against any Borrower or any Subsidiary that would, if made, have a Material
Adverse Effect or cause any Borrower or Subsidiary thereof not to be Solvent. No Borrower and no
Subsidiary thereof is party to any tax sharing agreement except as consented by the Majority
Lenders.



     Section 8.13 Patents and Other Rights. To the best of each Borrower’s
knowledge, in respect of all material patents, trademarks, trade names, service marks, copyrights
and all rights with respect thereto of the Borrowers and the Restricted Subsidiaries thereof, no
Borrower and no Restricted Subsidiary thereof is in violation of any rights of others with respect
to the use of the foregoing, except for such violation that would not reasonably be expected to
have a Material Adverse Effect.



     Section 8.14 Insurance. The properties of each Borrower and each Subsidiary
thereof are insured, with financially sound and reputable insurance companies not Affiliates of any



38









 




Borrower (except to the extent that such companies cease to be financially sound or reputable and
the Borrowers are otherwise in compliance with Section 9.04), in such amounts, with such
deductibles and covering such risks as is customarily carried by companies engaged in similar
businesses and owning similar properties in the localities where such Borrower or such Subsidiary
operates.



     Section 8.15 Financial Statements and Projections.



          (a) The unaudited consolidated balance sheet of NINA and its Subsidiaries as of June 30, 2008,
and the related consolidated statements of income, shareholders’ equity and cash flows, for the
applicable fiscal period then ended, are complete and correct in all material respects and fairly
present the financial condition of NINA and its Subsidiaries as of such dates and the results of
operations of NINA and its Subsidiaries for the periods covered by such statements, in each case in
accordance with GAAP consistently applied, subject, in the case of financial statements other than
annual financial statements, to year-end adjustments and the absence of notes.



          (b) Since June 30, 2008, there has been no Material Adverse Effect.



     Section 8.16 Compliance with Laws, Etc. Each Borrower and each Subsidiary
thereof is in compliance with the requirements of all applicable laws, rules, regulations and
orders of any Governmental Authority, and all orders, writs, injunctions and decrees applicable to
it or to its properties, except in each case for such noncompliance that would not result in a
Material Adverse Effect or a material adverse effect on the interests of the Lenders taken as a
whole.



     Section 8.17 Solvency. Each Credit Party is Solvent.



     Section 8.18 Collateral. Each Security Agreement, when executed, by all
parties thereto (i) creates in favor of the Collateral Agent (for the benefit of the Lenders and
Agents) a legal, valid, binding and (subject, with respect to perfection against third parties, to
the following sentence) enforceable security interest (provided that perfection against third
parties is addressed in the following sentence) in the Collateral described therein in which the
applicable Credit Party now has rights and proceeds thereof, and (ii) will create in favor of the
Collateral Agent (for the benefit of the Lenders and Agents) a legal, valid, binding and
enforceable security interest (provided that perfection against third parties is addressed in the
following sentence) in the Collateral described therein in which the applicable Credit Party
hereafter acquires rights upon such Credit Party’s acquisition of rights therein, in each case,
subject to applicable insolvency, bankruptcy, reorganization, moratorium, fraudulent transfer and
other laws now or hereafter in effect generally affecting rights of creditors (including with
respect to specific performance) and principles of equity and to the discretion of a court before
which any procedure may be brought, whether considered in a proceeding in equity or in law and to
the discretion of the court before which any proceeding therefore may be brought. Such security
interest will constitute, upon execution thereof by all parties thereto (or, as applicable, upon
the applicable Credit Party’s acquisition of rights in the Collateral subject thereto), a fully
perfected Lien on all right, title and interest of the Credit Parties in such Collateral and
proceeds thereof, as security for the Obligations hereunder, in each case prior and superior to the
rights of any other Person (except, in the case of all Collateral, with respect to Permitted Liens
to the extent set forth above);



39









 




provided, however, that such security interest
shall not be perfected until (A) in the case of the certificated securities, the time at which such
certificated securities are delivered to the Collateral Agent or financing statements in
appropriate form are filed in the appropriate offices, (B) in the case of cash, the time at which
the Collateral Agent acquires possession thereof, (C) in the case of Deposit Accounts, Securities
Accounts, Commodities Accounts and letter-of-credit rights not constituting Supporting Obligations,
the time at which the Collateral Agent acquires “control” thereof, as described in Section 9-104,
9-106 and 9-107 (as applicable) of the UCC, (D) in the case of intellectual property, the time at
which each intellectual property security agreement is
filed in the United States Patent and Trademark Office or the United States Copyright Office,
respectively, together with financing statements in appropriate form filed in the appropriate
offices, (E) in the case of all other personal property Collateral described therein, the time at
which financing statements in appropriate form are filed in the appropriate offices, and (F) in the
case of all real property Collateral, the time at which the applicable deed of trust or mortgage is
recorded in the appropriate filing office therefor. Nothing in this Agreement or any Security
Agreement shall be given effect as requiring that any Borrower make any filing, registration or
undertake any other action to create or perfect any security interest under the laws of any
jurisdiction other than the United States, any state thereof or the District of Columbia.



     Section 8.19 Burdensome Agreements. No Borrower or Restricted Subsidiary
thereof is party to any contractual obligation (other than any Loan Document and NINA’s Operating
Agreement), that (i) limits the ability (A) of any Restricted Subsidiary of any Borrower to make
Restricted Payments to such Borrower or any Guarantor or to otherwise transfer property to such
Borrower or any Guarantor, (B) of any Restricted Subsidiary of any Borrower to incur any Guarantee
Obligation with respect to the Indebtedness of such Borrower or (C) of any Borrower or any
Restricted Subsidiary thereof to create, incur, assume or suffer to exist Liens on property of such
Person, except as permitted in Section 10.02 hereof or (ii) requires the grant of a Lien to secure
an obligation of such Person if a Lien is granted to secure another obligation of such Person.



ARTICLE IX


AFFIRMATIVE COVENANTS



So long as any of the Obligations (other than indemnities and other contingent Obligations not then
due and payable, unless a written demand or invoice shall have been delivered to the applicable
Borrower or Guarantor with respect thereto) shall remain unpaid or any Lender shall have any
Commitment, the Borrowers agree that:



     Section 9.01 Reporting Covenants.



          (a) Financial Statements. The Borrowers shall furnish (or cause to be furnished) to
the Administrative Agent:



               (i) as soon as available and in any event within 45 days after the end of the first three
fiscal quarters of each fiscal year (beginning with such fiscal quarter ending March 31, 2009), the
consolidated balance sheet of NINA and its Subsidiaries as of the end of such quarter, and the
related consolidated statements of income, shareholders’ equity and cash flows of NINA and its
Subsidiaries for such quarter and the portion of the fiscal year through the



40









 




end of such quarter, prepared in accordance with GAAP consistently applied, all in reasonable detail and setting forth
in comparative form the figures for the corresponding period in the preceding fiscal year, together
with a certificate of a Responsible Officer of NINA stating that such financial statements fairly
present the financial condition of NINA and its Subsidiaries as at such date and the results of
operations of NINA and its Subsidiaries for the period ended on such date and have been prepared in
accordance with GAAP consistently applied, subject to changes resulting from year-end audit
adjustments and except for the absence of notes;



               (ii) as soon as available and in any event within 90 days after the end of each fiscal year,
the consolidated balance sheet of NINA and its Subsidiaries as of the end of such fiscal year, and
the related consolidated statements of income, shareholders’ equity and cash flows of NINA and its
Subsidiaries for such fiscal year, prepared in accordance with GAAP consistently applied, all in
reasonable detail and setting forth in comparative form the figures for the previous fiscal year,
accompanied by a report and opinion thereon of a firm of independent certified public accountants;



               (iii) as soon as available and in any event on or before the last calendar day of each month,
a written report prepared by a Responsible Officer of NINA (A) covering the immediately preceding
calendar month and reporting on any material developments in respect of the ongoing business and
operations of NINA and its Subsidiaries occurring in such immediately preceding calendar month and
(B) comparing actual general and administrative expenses for such immediately preceding calendar
month to budgeted general and administrative expenses for such month;



               (iv) promptly upon receipt thereof, copies of all material written reports submitted to any
Borrower by the Borrowers’ independent certified public accountants in connection with each annual,
interim or special audit examination of NINA and its Subsidiaries made by such accountants,
including the “management letter” submitted by such accountants to any Borrower in connection with
their annual audit;



               (v) as soon as available and in any event not less than 30 days prior to the start of each
fiscal year, the Business Plan for such fiscal year, in form reasonably satisfactory to the
Majority Lenders;



               (vi) promptly after delivery thereof to the applicable recipient, copies of (A) the DOE
Application and any other material information submitted in writing by any Borrower to the DOE in
connection with its loan guaranty program (including as part of the due diligence, underwriting and
negotiation process for loan guaranties) as relevant to the Project, and (B) any material
information submitted in writing by any Borrower to any Rating Agency, financing institution or
insurer as part of such Person’s due diligence process;



               (vii) at the Majority Lenders’ reasonable request, a reasonably detailed report regarding the
progress of due diligence, discussions and negotiations with DOE, Japan Bank for International
Cooperation, Nippon Export and Investment Insurance, any Rating Agency and any prospective
financing institution, in each case, with respect to material transactions with such institution
with respect to any financing arrangement (but excluding any fee letters); and



41









 





               (viii) not later than the first anniversary of the date hereof, a detailed project finance
plan for the Project, including (A) reasonably detailed summaries of all key contracts related
thereto, including power purchase and sale agreements to be entered into with customers, (B)
reasonably detailed plans for arranging non-recourse, or limited recourse, financing for the Units
(as defined in the EPC Contract), (C) descriptions of expected risk allocations among all
participants in the Project, (D) descriptions of risk mitigation plans, from creditor’s
perspective, that in NINA’s opinion will be acceptable to DOE, Japan Bank for
International Cooperation, Nippon Export and Investment Insurance or other project finance
creditors to support a financing, and (E) descriptions of potential sponsor supports that the
Borrowers or their advisors consider likely to be requested by such creditors.



          (b) Additional Information. The Borrowers shall furnish to the Administrative Agent:



               (i) promptly after any Borrower has knowledge or becomes aware thereof, notice of the
occurrence (or written threat) of any Event of Loss with respect to its property or assets
aggregating $5,000,000 (or its equivalent in another currency) or more as reasonably determined by
the Borrower;



               (ii) promptly after any Borrower has knowledge or becomes aware thereof, notice of the
occurrence or existence of any Default;



               (iii) prompt written notice of (A) any proposed acquisition of stock, assets or property by
any Borrower or any Subsidiary thereof that would reasonably be expected to result in a material
environmental liability under Environmental Laws and (B) any unpermitted spillage, leakage,
discharge, disposal, leaching, migration or release of any Hazardous Substances required to be
reported to any Governmental Authority under applicable Environmental Laws;



               (iv) prompt written notice of all actions, suits, claims, notices of violation, hearings,
investigations or proceedings pending, or to the best of each Borrower’s knowledge, threatened in
writing against or affecting any Borrower or any Subsidiary thereof or with respect to the
ownership, use, maintenance and operation of their respective businesses, operations or properties,
relating to Environmental Laws or Hazardous Substances unless such action, suit, claim, notice of
violation, hearing, investigation or proceeding would not reasonably be expected to involve an
aggregate liability greater than $5,000,000;



               (v) prompt written notice of the initiation of all actions, suits and proceedings before any
Governmental Authority or arbitrator pending, or to the best of each Borrower’s knowledge,
threatened in writing against or affecting any Borrower or any Subsidiary thereof which (A) if
adversely determined would involve an aggregate liability equal to $5,000,000 or more, or (B)
otherwise may have a Material Adverse Effect;



               (vi) promptly after any Borrower has knowledge or becomes aware of any of the following events
affecting any Borrower or any ERISA Affiliate (but in no event more than ten days after such
event), together with a copy of any notice with respect to such event that is required to be filed
with a Governmental Authority and any notice delivered by a



42









 




Governmental Authority to any Borrower
or any ERISA Affiliate with respect to such event, in each case to the extent such event would be
reasonably expected to result in a Material Adverse Effect: (A) an ERISA Event; (B) the adoption
of any new Pension Plan by any Borrower or any ERISA Affiliate; (C) the adoption of any amendment
to a Pension Plan, if such amendment will result in a material increase in benefits or unfunded
benefit liabilities (as defined in Section 4001(a)(18) of ERISA); or (D) the commencement of
contributions by any Borrower or any
ERISA Affiliate to any employee benefit plan that is subject to Title IV of ERISA or Section
412 of the Internal Revenue Code;



               (vii) promptly after the giving, sending or filing thereof, or the receipt thereof, copies of
(A) each Schedule B (Actuarial Information) to the annual report (Form 5500 Series) filed by any
Borrower or any ERISA Affiliate with the IRS with respect to each Pension Plan, (B) all notices
received by any Borrower or any ERISA Affiliate from a Multiemployer Plan sponsor concerning an
ERISA Event, and (C) copies of such other documents or governmental reports or filings relating to
any Pension Plan as the Administrative Agent shall reasonably request.



               (viii) the information regarding insurance maintained by NINA and its Subsidiaries as required
under Section 9.04 and, if any, the Collateral Documents;



               (ix) the reports and notices as required by the Collateral Documents;



               (x) promptly after the occurrence thereof, notice of any labor controversy resulting in or
threatening to result in any strike, work stoppage, boycott, shutdown or other material labor
disruption against or involving any Borrower or any Subsidiary thereof which could reasonably be
expected to result in a Material Adverse Effect;



               (xi) prompt written notice of any other condition or event which has resulted, or that would
reasonably be expected to result, in a Material Adverse Effect; and



               (xii) such other information respecting the operations, properties, business or condition
(financial or otherwise) of any Borrower or its Restricted Subsidiaries (including with respect to
the Collateral) as any Lender (through the Administrative Agent) may from time to time reasonably
request.


Each notice pursuant to this subsection (other than clauses (vii), (viii), (ix) and (xii)) shall be
accompanied by a written statement by a Responsible Officer of the applicable Borrower setting
forth information on the occurrence referred to therein, and stating what action the Borrowers
propose to take with respect thereto.



     Section 9.02 Preservation of Existence, Etc. Each Borrower shall, and shall
cause each of its Restricted Subsidiaries to, maintain and preserve (i) its legal existence and its
rights to transact business and (ii) all other rights, franchises and privileges necessary or
desirable in the normal course of its business and operations and the ownership of its properties,
except in connection with transactions not prohibited by Article X or, in the case of clause (ii)
only, as would not result in a Material Adverse Effect.



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     Section 9.03 Payment of Certain Obligations. Each Borrower shall, and shall
cause each of its Restricted Subsidiaries to, pay and discharge (i) all taxes, fees, assessments
and governmental charges or levies imposed upon it or upon its properties or assets prior to the
date on which penalties attach thereto, and all lawful claims for labor, materials and supplies
which, if unpaid, might become a Lien (other than a Permitted Lien) upon any properties or assets
of any Borrower or any Subsidiary thereof, except to the extent such taxes, fees, assessments or
governmental charges or levies, or such claims, are being contested in good faith by appropriate
proceedings and are adequately reserved against in accordance with GAAP; and (ii) all lawful
claims which, if unpaid, would by law become a Lien upon its property that constitutes Collateral
not constituting a Permitted Lien.



     Section 9.04 Maintenance of Insurance. Each Borrower shall, and shall cause
each of its Restricted Subsidiaries to, carry and maintain in full force and effect, at its own
expense and with financially sound and reputable insurance companies not Affiliates of any Borrower
( provided, however, that no Borrower nor any Guarantor or Subsidiary shall be in
breach of any Loan Document if any such insurance company ceases to be financially sound or
reputable if the Borrower or Guarantor or its Subsidiaries promptly obtains insurance coverage from
a different financially sound or reputable insurance company), insurance in such amounts, with such
deductibles and covering such risks as is customarily carried by companies engaged in the same or
similar businesses and owning similar properties in the localities where any Borrower or such
Subsidiary operates. Insurance on the Collateral shall name the Collateral Agent (for the benefit
of the Lenders and Agents), as additional insured and as loss payee. Upon the request of the
Administrative Agent or any Lender, the Borrowers shall furnish the Administrative Agent from time
to time (but not more frequently than once per year) with reasonably detailed information as to the
insurance carried by the Borrowers and, if so requested, copies of all such insurance policies.
The Borrowers shall also furnish to the Administrative Agent from time to time (but not more
frequently than once per year) upon the request of the Administrative Agent or any Lender a
certificate, to the extent such insurance broker customarily issues such certificates, of the
Borrowers’ insurance broker stating that all premiums then due on the policies relating to
insurance on the Collateral have been paid, that such policies are in full force and effect and
that such insurance coverage and such policies comply with all the requirements of this Section
9.04. All insurance policies required under this Section 9.04 shall provide that they shall not be
terminated or cancelled nor shall any such policy be materially changed in a manner adverse to any
Lender or Agent without at least 30 days’ prior written notice to the Borrowers and the
Administrative Agent. Receipt of notice of termination or cancellation of any such insurance
policies or reduction of coverages or amounts thereunder (other than pursuant to a reasonable
request of the Borrowers) shall entitle the Administrative Agent, acting reasonably and in good
faith, to renew any such policies, cause the coverages and amounts thereof to be maintained at
levels required pursuant to the first sentence of this Section 9.04 or otherwise to obtain similar
insurance in place of such policies, in each case at the expense of the Borrowers.



     Section 9.05 Keeping of Records and Books of Account. Each Borrower shall,
and shall cause each of its Subsidiaries to, keep adequate records and books of account, in which
appropriate entries shall be made in accordance with GAAP, reflecting all financial transactions of
such Borrower and its Subsidiaries.



44









 





     Section 9.06 Inspection Rights. Each Borrower shall at any reasonable time
and from time to time (but in no event more frequently than once per year, unless an Event of
Default has occurred and is continuing, in which case such frequency limitation shall not apply)
permit the Administrative Agent or any of their respective agents or representatives to visit and
inspect any of the properties of such Borrower and its Restricted Subsidiaries and to examine and
make copies of and abstracts from the records and books of account of such Borrower and its
Subsidiaries, and to discuss the business affairs, finances and accounts of such Borrower and any
such Subsidiary with any of the officers, employees or accountants of such Borrower or such
Subsidiary, all at the expense of such Borrower.



     Section 9.07 Compliance with Laws, Etc. Each Borrower shall, and shall cause
each of its Subsidiaries to, comply in all material respects with the requirements of all
applicable laws, rules, regulations and orders of any Governmental Authority (other than
Environmental Laws, which are addressed in Section 9.09) and the material terms of any indenture,
contract or other instrument to which it may be a party or under which it or its properties may be
bound, except in each case where any failure to comply would not reasonably be expected to have a
Material Adverse Effect or a material adverse effect on the interests of the Lenders taken as a
whole. Without limiting the generality of the foregoing, except as would not reasonably be
expected to result in a Material Adverse Effect each Borrower shall, and shall cause each ERISA
Affiliate to: (i) maintain each Plan and each Pension Plan in compliance in all respects with the
applicable provisions of ERISA, the Internal Revenue Code or other Federal or state law; (ii) cause
each Plan and each Pension Plan that is intended to be qualified under Section 401(a) of the
Internal Revenue Code to maintain its qualified status under Section 401(a) of the Internal Revenue
Code; (iii) ensure that all liabilities under each Plan are (A) funded to at least the minimum
level required by law or, if higher, to the level required by the terms governing the Plan, (B)
insured with a reputable insurance company, (C) provided for or recognized in the financial
statements most recently delivered to the Administrative Agent and the Lenders pursuant hereto, or
(D) estimated in the formal notes to the financial statements most recently delivered to the
Administrative Agent and the Lenders pursuant hereto; and (iv) make all required contributions to
any Pension Plan or Multiemployer Plan.



     Section 9.08 Licenses. Each Borrower shall, and shall cause each of its
Restricted Subsidiaries to, obtain and maintain all licenses, authorizations, consents, filings,
exemptions, registrations and other governmental approvals necessary in connection with the
execution, delivery and performance of the Loan Documents, the consummation of the transactions
therein contemplated or the operation and conduct of its business and ownership of its properties,
including, once issued, the COL (as defined in the EPC Contract), except in each case as would not
result in a Material Adverse Effect or a material adverse effect on the interests of the Lenders
taken as a whole.



     Section 9.09 Action Under Environmental Laws. Each Borrower shall, and shall
cause each of its Subsidiaries to, upon becoming aware of the presence of any Hazardous Substance,
other than the presence of Hazardous Substances in material compliance with Environmental Laws, or
the existence of any material environmental liability under applicable Environmental Laws with
respect to their respective businesses, operations or properties, take all actions, at their cost
and expense, as required by Environmental Laws to investigate and clean up the condition of their
respective businesses, operations or properties, including all required removal,



45









 




containment and
remedial actions, and restore their respective businesses, operations or properties to a condition
in material compliance with applicable Environmental Laws. Each Borrower shall, and shall cause
each of its Subsidiaries to, use, generate, manufacture, install, treat, release, store or dispose
of any Hazardous Substances solely in compliance in all material respects with all applicable
Environmental Laws.



     Section 9.10 Use of Proceeds. The Borrowers shall use the proceeds of the
Loans solely for the purchase of Equipment and Materials invoiced by the Contractor pursuant to the
EPC Contract.



     Section 9.11 Financing Plan. The Borrowers shall deliver to the
Administrative Agent, within six months after the determination of Fixed Price and the Unit
Contract Price (as defined in the EPC Contract) for each Unit in accordance with Sections 2.15.1
and 2.15.5 of the EPC Contract, a financing plan demonstrating the sources and uses of funds
available for payment of such Fixed Price and Unit Contract Price.



     Section 9.12 Reinvestment of Equity Proceeds. Each Borrower and each
Restricted Subsidiary shall apply the Net Cash Proceeds of any issuance by it of equity to capital
expenditures or working capital of the Borrower or Restricted Subsidiaries thereof.



     Section 9.13 Existing NINA Credit Agreement. Not later than one Business Day
after the date of the initial Borrowing, the Borrowers shall repay in full all obligations (other
than contingent indemnification obligations for which no claim has been made) of the Borrowers
under the Existing NINA Credit Agreement and terminated all commitments thereunder.



     Section 9.14 Additional Guarantors and Collateral.



          (a) Within ten (10) Business Days following the date on which any Borrower or Restricted
Subsidiary incorporates, creates or acquires any additional Restricted Subsidiary (other than a
Non-U.S. Subsidiary), such Borrower shall (i) cause such new Restricted Subsidiary to execute and
deliver a guaranty of the Obligations in substantially the form attached hereto as Exhibit F (or a
supplement to any such existing guaranty pursuant to which it agrees to be bound by the terms and
conditions thereof) to the Administrative Agent and a security agreement in substantially the form
attached hereto as Exhibit G (or a supplement to any such existing Security Agreement pursuant to
which it agrees to be bound by the terms and conditions thereof) to the Collateral Agent and (ii)
cause such new Restricted Subsidiary to file any UCC-1 financing statements furnished by the
Collateral Agent in each jurisdiction in which such filing is necessary to perfect the security
interest of the Collateral Agent in the Collateral of such Subsidiary and in which the Collateral
Agent requests that such filing be made.



          (b) Within ten (10) Business Days after the date any Borrower or Restricted Subsidiary
incorporates, creates or acquires any additional Restricted Subsidiary, such Borrower or Restricted
Subsidiary shall pledge the capital stock or other equity interests of such new Restricted
Subsidiary to the Collateral Agent pursuant to a supplement to the Borrower Security Agreement,
which equity interests shall be in certificated form; provided, however, that with
respect to any such additional Restricted Subsidiary that is a Non-U.S. Subsidiary, any such



46









 




pledge shall be subject to the same limitations as are set forth in Section 2(g) of the Borrower Security
Agreement.



          (c) If at any time any Borrower or any Restricted Subsidiary thereof other than a Non-U.S.
Subsidiary shall become the owner of any real property (including pursuant to Section 6.5.2 of the
South Texas Participation Agreement (as defined in the form of Borrower Security Agreement attached
hereto as Exhibit B)), promptly, and in any event within sixty (60)
days following acquisition of such real property, such Borrower shall (and shall cause any of
its Restricted Subsidiaries to) enter into and deliver to the Collateral Agent a deed of trust,
mortgage or similar Lien in respect to such property, in form and substance reasonably satisfactory
to the Collateral Agent, together with such title insurance polices, evidence of insurance,
insurance certificates and endorsements, surveys, appraisals, consents, subordination agreements
and other documents and other instruments as the Collateral Agent or the Majority Lenders shall
reasonably request.



     Section 9.15 Further Assurances and Additional Acts. Each Borrower shall (and
shall cause its Restricted Subsidiaries to) execute, acknowledge, deliver, file, notarize and
register at its own expense all such further agreements, instruments, certificates, documents,
assurances and other items (including resolutions, incumbency and officers’ certificates, opinions
of counsel, control agreements, search reports and other certificates and documents) and perform
such acts as any Agent or the Majority Lenders shall deem necessary or appropriate to effectuate
the purposes of the Loan Documents, and promptly provide the requesting Agent with evidence of the
foregoing reasonably satisfactory in form and substance to the requesting Agent or the Majority
Lenders.



ARTICLE X


NEGATIVE COVENANTS.




     So long as any of the Obligations shall remain unpaid (other than indemnities and other
contingent Obligations not then due and payable, unless a written demand or invoice shall have been
delivered to the applicable Credit Party with respect thereto) or any Lender shall have any
Commitment, the Borrowers agree that:



     Section 10.01 Indebtedness. Each Borrower shall not, and shall not permit any
of its Subsidiaries to, create, incur, assume or otherwise become liable for or suffer to exist any
Indebtedness, other than:



          (a) Indebtedness of the Borrowers to the Lenders hereunder;



          (b) from the date hereof until the end of the first Business Day after the initial Borrowing,
Indebtedness under the Existing NINA Credit Agreement;



          (c) accounts payable to trade creditors for goods and services and incurred or for the
deferred purchase price of property or services in the ordinary course of business;



          (d) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments
for collection by any Borrower or any Subsidiary thereof in the ordinary course of business;




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          (e) Indebtedness under Permitted Swap Contracts;



          (f) Indebtedness of the Borrowers and Restricted Subsidiaries thereof under a working capital
facility in an aggregate principal amount not to exceed $20,000,000 at any time outstanding;




          (g) Indebtedness of the Borrowers to any wholly-owned Restricted Subsidiary thereof, or of any
wholly-owned Restricted Subsidiary of a Borrower to another such Person;



          (h) Indebtedness of NINA to any Excluded NINA Subsidiary, or of any Excluded NINA Subsidiary
to NINA;



          (i) Attributable Indebtedness, capital lease obligations, mortgage financings or purchase
money obligations, in each case, incurred for the purpose of financing all or any part of the
purchase price or cost of design, construction, installation or improvement or lease of property
(real or personal), plant or equipment used in the business of any Borrower or Subsidiary thereof,
or incurred within 270 days after any of the foregoing, in an aggregate principal amount not to
exceed $5,000,000 at any time outstanding;



          (j) Indebtedness, outstanding for no longer than thirty (30) days, 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;



          (k) Indebtedness in respect of workers’ compensation claims, bankers’ acceptance and
performance and surety bonds in the ordinary course of business;



          (l) Indebtedness of any Excluded NINA Subsidiary (i) in favor of Persons other than any Credit
Party with respect to which no Borrower or Restricted Subsidiary has provided any Guarantee
Obligation and (ii) Indebtedness of any Excluded NINA Subsidiary to a Credit Party of the type
referred to in clause (viii) of the definition of “Indebtedness”;



          (m) Indebtedness that may be deemed to arise as a result of agreements of any Borrower or any
Subsidiary providing for indemnification, adjustment of purchase price or any similar obligations,
in each case, incurred in connection with the acquisition or disposition of any business, assets or
equity interests of any Subsidiary not prohibited under Section 10.05 or 10.06 or any business,
assets or equity interests acquired by any Borrower or any Subsidiary not prohibited under Section
10.05 or 10.06; provided that in the case of any such disposition the aggregate maximum
liability associated with such provisions may not exceed the gross proceeds (including non-cash
proceeds) of such disposition;



          (n) Indebtedness consisting of letters of credit, Guarantee Obligations or other similar
instruments to the extent (i) such Indebtedness, including instruments supporting Permitted Swap
Contracts, are cash collateralized and (ii) such Borrower or such Subsidiary would not have been
prohibited from expending the funds used to cash collateralize such instrument directly under the
terms of this Agreement; and



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          (o) Indebtedness consisting of (i) obligations to pay insurance premiums or (ii) take-or-pay
obligations contained in supply agreements, in each case arising in the ordinary course of
business;


provided that, notwithstanding the foregoing, in no event shall any Borrower or any
Subsidiary thereof at any time incur any Indebtedness (including any Guarantee Obligation) in
respect of the NRG Debt Documents.



     Section 10.02 Liens; Burdensome Agreements.



          (a) No Borrower shall, or shall permit any of its Subsidiaries to, create, incur, assume or
suffer to exist any Lien upon or with respect to any of its properties, revenues or assets, whether
now owned or hereafter acquired, other than Permitted Liens. In no event shall any Borrower or any
Subsidiary thereof grant any Lien on any of its assets securing any of the NRG Debt Documents.



          (b) No Borrower shall, or shall permit any of its Restricted Subsidiaries to, enter into or
suffer to exist any agreement (other than any Loan Document) (A) requiring the grant of a Lien to
secure an obligation of any such Person if a Lien is granted to secure another obligation of such
Person, or (B) prohibiting or conditioning the creation or assumption by such Borrower or any
Subsidiary of any Lien upon any of its properties, revenues or assets generally, whether now owned
or hereafter acquired; provided, however, that this subsection shall not prohibit
any requirement, prohibition or condition (i) incurred or provided in favor of any holder of
Indebtedness permitted under Section 10.01(b) or Section 10.01(i) solely to the extent any such
negative pledge relates to the property financed by or the subject of such Indebtedness, (ii) under
any applicable law, rule, regulation or order, or any governmental permit or license, (iii) under
any agreement between any Borrower or any Affiliate thereof, on the one hand, and the Contractor or
any Affiliate thereof, on the other hand or (iv) provisions limiting the disposition or
distribution of assets or property in any joint venture agreements, ownership, participation,
shareholders, partnership or limited liability company agreements relating to project interests,
asset sale agreements, sale leaseback agreements, stock sale agreements and other similar
agreements, which limitation is applicable only to the assets that are the subject of such
agreements (provided that such agreement specifically permits the Lien in favor of the Lenders and
Agents).



     Section 10.03 Change in Nature of Business. No Borrower shall, or shall
permit any of its Restricted Subsidiaries to, engage in any material line of business substantially
different from those lines of business carried on by it at the date hereof.



     Section 10.04 Restrictions on Fundamental Changes. No Borrower shall, or
shall permit any of its Restricted Subsidiaries to, merge with or consolidate into any Person, or
sell, transfer, lease or otherwise dispose of (whether in one transaction or in a series of
transactions) all or substantially all of its assets, except that:



          (a) each Borrower and the Restricted Subsidiaries thereof may sell or dispose of assets in
accordance with the provisions of Section 10.05;



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          (b) each Borrower and the Restricted Subsidiaries thereof may make any investment not
prohibited by Section 10.06; and



          (c) each Borrower and the Restricted Subsidiaries thereof may merge with or consolidate into
any other Person, provided that (A) such Borrower or Restricted Subsidiary is the surviving
Person, and (B) no such merger or consolidation shall be made while there exists a Default or if a
Default would occur as a result thereof.



     Section 10.05 Sales of Assets. No Borrower shall, or shall permit any of its
Restricted Subsidiaries to, sell, lease, transfer, license or otherwise dispose of (whether in one
transaction or a series of transactions) (each of the foregoing, a “Disposition”) any
assets (including any shares of stock in any Subsidiary or other Person and intellectual property
rights), except:



          (a) Dispositions of cash and Permitted Cash Equivalent Investments;



          (b) Dispositions of assets that have become worn out, damaged or obsolete or that are promptly
being replaced, in each case, in the ordinary course of business;



          (c) Dispositions of any assets by any Restricted Subsidiary of any Borrower to another such
Restricted Subsidiary, or to any Borrower;



          (d) non-exclusive licenses of patents, trademarks, copyrights and other intellectual property
rights granted in the ordinary course of business;



          (e) Dispositions by NINA of (i) equity interests in STP 3&4 to the extent the same would not
constitute an Event of Default under Section 11.01(j) or (ii) any other assets not related to the
Project (including any equity interests in any Excluded NINA Subsidiary), provided in each
case that such Disposition is for at least fair market value; and



          (f) Dispositions by NINA3 and NINA4 of direct, undivided ownership interests in the Project
for at least fair market value.



     Section 10.06 Loans and Investments. No Borrower shall, or shall permit any
of its Restricted Subsidiaries to, make any Investments in any Person, other than:



          (a) extensions of credit in the nature of accounts receivable or notes receivable arising from
the sales of goods or services in the ordinary course of business;



          (b) (i) Investments by any Borrower in the capital stock or other equity interests of
Restricted Subsidiaries, and (ii) unless otherwise prohibited under this Agreement, extensions of
credit and advances by any Borrower to any of the Restricted Subsidiaries or by any Restricted
Subsidiary to any Borrower or Restricted Subsidiaries;



          (c) Permitted Cash Equivalent Investments;



          (d) employee loans and guarantees in accordance with such Borrower’s usual and customary
practices with respect thereto (to the extent permitted by applicable law);



50









 





          (e) Investments received in connection with any Insolvency Proceeding in respect of any
customers, suppliers or clients and in settlement of delinquent obligations of, and other disputes
with, customers, suppliers or clients;



          (f) Investments by a Borrower or any Restricted Subsidiary thereof, to the extent they are
deemed to arise as a result of the incurrence of any Indebtedness permitted under Section 10.01;



          (g) Investments listed on Schedule 10.06(g) and any extensions, renewals or reinvestments
thereof, so long as the aggregate amount of all Investments pursuant to this subsection is not
increased at any time above the amount of such Investments existing on the date hereof;



          (h) Investments made with equity interests of any Borrower (other than NINA) or any Restricted
Subsidiary of any Borrower;



          (i) Investments made to repurchase or retire common stock or membership interests of any
Borrower issued to any employee or director of the Borrower or any Restricted Subsidiary thereof
pursuant to any employee equity ownership or incentive plan or policy and approved by the board of
managers of NINA; and



          (j) Investments by NINA in any Excluded NINA Subsidiaries.



     Section 10.07 Capital Expenditures. No Borrower shall, or shall permit any of
its Restricted Subsidiaries to, make or become legally obligated to make any expenditure in respect
of the purchase or other acquisition of any fixed or capital asset (including obligations under
Capital Leases), except for (i) any expenditures in respect of any normal replacements and
maintenance which are properly charged to current operations, (ii) expenditures made to restore,
rebuild or replace property following any damage, loss, destruction or condemnation of fixed or
capital assets, to the extent such expenditures are made or financed with proceeds received or to
be received from a recovery event, (iii) expenditures constituting reinvestment proceeds from the
sale or other disposition of assets otherwise permitted herein, (iv) expenditures made to the
extent reimbursed by a Person other than the Credit Parties, (v) expenditures constituting
capitalized interest, (vi) expenditures pursuant to the EPC Contract, and (vii) capital
expenditures not otherwise permitted by this Section 10.07 in an amount not to exceed $1,000,000
per fiscal year of NINA ( provided that, if in any fiscal year, the capital expenditures of
the Borrowers and their Restricted Subsidiaries is less than $1,000,000, then such shortfall can be
carried forward and incurred in the following fiscal year but, regardless of whether it is spent,
no fiscal year after that).



     Section 10.08 Sales and Leasebacks. No Borrower shall, or shall permit any of
its Restricted Subsidiaries to, become liable, directly or indirectly, with respect to any lease,
whether an Operating Lease or a Capital Lease, of any property (whether real, personal or mixed),
whether now owned or hereafter acquired, (i) which such Borrower or such Restricted Subsidiary has
sold or transferred or is to sell or transfer to any other Person or (ii) which such Borrower or
such Restricted Subsidiary intends to use for substantially the same purposes as any



51









 




other property which has been or is to be sold or transferred by such Borrower or such Restricted Subsidiary to
any other Person in connection with such lease.



     Section 10.09 Restricted Payments.



          (a) No Borrower shall declare or pay any dividends in respect of such Borrower’s capital stock
or other equity interests, or purchase, redeem, retire or otherwise acquire for value any of its
capital stock or other equity interests now or hereafter outstanding, return any capital to its
shareholders as such, or make any distribution of assets to its
shareholders (or members) as such, or permit any of its Subsidiaries to purchase, redeem,
retire, or otherwise acquire for value any stock or other equity interests of such Borrower
(collectively, “Restricted Payments”), except that each Borrower may (i) declare and
deliver dividends and distributions payable only in common stock of such Borrower; (ii) purchase,
redeem, retire, or otherwise acquire shares of its capital stock or other equity interests with the
proceeds received from a substantially concurrent issue of new shares of its capital stock or other
equity interests; and (iii) make payments to holder of such Borrower’s equity interests in an
amount sufficient to permit such holder to pay income taxes to the extent are attributable to the
operations of such Borrower and its Subsidiaries; provided, however, that for so
long as no Event of Default has occurred and is continuing, (A) NINA may make Restricted Payments
in an amount that does not exceed the net proceeds of Restricted Payments received from Excluded
NINA Subsidiaries, within 90 days after receipt of such net proceeds, (B) any Borrower may make
Restricted Payments to any other Borrower and any Subsidiary may make Restricted Payments to its
equity holders (provided that no proceeds of any Restricted Payment permitted under this clause (B)
shall be used, directly or indirectly, to make Investments in any Excluded NINA Subsidiary) and (C)
any Borrower and any Subsidiary thereof may make Restricted Payments pursuant to any employee,
stock, compensation or other similar plan or agreement approved by the board of managers of NINA
from time to time.



          (b) No Borrower shall, or shall permit any Restricted Subsidiary thereof to, grant or
otherwise agree to or suffer to exist any consensual restrictions on the ability of such Subsidiary
to pay dividends and make other distributions to its equity holders, or to pay any Indebtedness
owed to its equity holders or generally transfer properties and assets to such Borrower;
provided, however, that this subsection shall not prohibit any condition imposed
under (i) applicable law, rule, regulation or order, or any governmental permit or license, (ii)
the Existing NINA Credit Agreement, (iii) any agreement for the sale or other disposition of the
stock or assets of a Borrower or a Subsidiary that restricts distributions by that Subsidiary
pending the sale or other disposition, or (iv) for the avoidance of doubt, provisions in any
document or agreement relating to any Indebtedness permitted under Section 10.01(i) to the extent
that such restriction on transfer applies to the assets financed with such Indebtedness.



     Section 10.10 Amendments of Certain Documents. No Borrower shall, or shall
permit any of its Restricted Subsidiaries to, agree to or permit any amendment, modification or
waiver of any provision of any agreement related to any Subordinated Debt (including any amendment,
modification or waiver pursuant to an exchange of other securities or instruments for outstanding
Subordinated Debt), except as permitted by any Subordination Agreement with respect thereto.



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     Section 10.11 Redemption of Subordinated Debt. No Borrower shall, or shall
permit any of its Restricted Subsidiaries to, make any voluntary or optional payment or repayment
on, redemption, exchange or acquisition for value of, or any sinking fund or similar payment with
respect to, any Subordinated Debt.



     Section 10.12 Transactions with Related Parties. No Borrower shall, or shall
permit any of its Restricted Subsidiaries to, enter into any transaction, including the purchase,
sale or exchange of property or the rendering of any services, with any Affiliate, any officer or
director thereof or any Person which beneficially owns or holds 10% or more of the equity
securities, or 10% or more of the equity interest, thereof (a “Related Party”), or enter
into, assume or suffer to
exist, or permit any Subsidiary to enter into, assume or suffer to exist, any employment or
consulting contract with any Related Party, except:



          (a) any transaction that is upon fair and reasonable terms not less favorable to such Borrower
or Subsidiary thereof than it would obtain in a comparable arm’s length transaction with a Person
not a Related Party;



          (b) transactions between any Borrower and any Restricted Subsidiary or between any Restrict
Subsidiaries;



          (c) any employment agreement or director’s engagement agreement, employee benefit plan,
officer and director indemnification agreement or any similar arrangement entered into by any
Borrower or Subsidiary thereof in the ordinary course of business, or approved by the Borrowers in
good faith, and any transaction pursuant to which a Borrower or a Restricted Subsidiary thereof
repurchase or redeems equity interests in such Borrower or Restricted Subsidiary from any employee
or director thereof that were issued pursuant to any benefit or incentive plan or policy;



          (d) payment of reasonable fees and other compensation to directors of any Borrower or any
Subsidiaries;



          (e) any transaction contemplated by or permitted under any agreement listed on Schedule
10.12(e), and any amendment thereto or replacement thereof, so long as any such transaction,
agreement, amendment or replacement taken as a whole would not result in a Material Adverse Effect,



          (f) payments or advances to employees or consultants that are incurred in the ordinary course
of business or that are approved by any Borrower in good faith;



          (g) unless otherwise prohibited under any other provision of this Article X, the issuance of
any letters of credit and/or the granting of any credit support by any Affiliate of a Credit Party,
in each case to support the obligations of any Borrower and/or any of its Subsidiaries, and the
payment by any Borrower and/or any of its Subsidiaries of any reasonable fees and other
compensation on account of such letters of credit and/or other credit support;



          (h) any tax sharing agreement between or among any Borrower, any Subsidiary of the Borrowers
and/or any of their Affiliates so long as such tax sharing agreement



53









 




is on fair and reasonable terms with respect to the Borrowers and their Subsidiaries and is approved in writing by the
Majority Lenders;



          (i) transactions between any Borrower or any Affiliate thereof, on the one hand, and the
Contractor or any Affiliate thereof, on the other hand;



          (j) unless otherwise prohibited under any other provision of this Article X, (i) any Guarantee
Obligation of any Borrower or any Subsidiary thereof in respect of any Subsidiary of such Borrower
or (ii) any Guarantee Obligation of any Borrower or any Subsidiary thereof in respect of any Person
that does not constitute a Subsidiary of such Borrower, but in which such Borrower directly or
indirectly holds an investment, so long as all holders of equity interests in
such Person (including such Borrower or Subsidiary thereof, as applicable) shall participate
directly or indirectly in such Guarantee Obligation, or shall provide a commitment in respect of
any related obligation, in each case, on a pro rata basis relative to such equityholder’s equity
interests in such Person; provided that any such transaction shall be fair and reasonable
and beneficial to such Borrower and its Subsidiaries (taken as a whole) and consistent with prudent
industry practice; and



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



     Section 10.13 ERISA. Except as would not result in a Material Adverse Effect,
no Borrower shall, or shall permit any ERISA Affiliate to: (i) terminate any Pension Plan so as to
result in any liability to a Credit Party; (ii) permit to exist any ERISA Event which presents the
risk of a liability to any Credit Party; or (iii) make a complete or partial withdrawal (within the
meaning of ERISA Section 4201) from any Multiemployer Plan so as to result in any liability to a
Credit Party.



ARTICLE XI


EVENTS OF DEFAULT




     Section 11.01 Events of Default. Each of the following events shall
constitute an “Event of Default”:



          (a) Payments. Any Borrower shall fail to pay (i) when due, any amount of principal of
any Loan, or (ii) within five Business Days of when due, any amount of interest on any Loan, or any
fee payable hereunder or under any of the Loan Documents.



          (b) Representations and Warranties. Any representation or warranty by any Credit
Party under or in connection with the Loan Documents shall prove to have been incorrect in any
material respect when made or deemed made.



          (c) Failure by Borrower to Perform Certain Covenants. Any Borrower shall fail to
perform or observe any term, covenant or agreement contained in Section 9.04 (solely to the extent
that such failure consists of a lapse of the insurance required under such Section) and in Section
9.02, 9.10, 9.13 or Article X.



          (d) Failure to Perform Other Covenants. Any Borrower shall fail to perform or observe
any other term, covenant or agreement contained in any Loan Document on its part to



54









 




be performed or observed, and any such failure shall remain unremedied for a period of 30 days from the receipt of
notice of default from the Administrative Agent, Collateral Agent or any Secured Party following
the occurrence thereof.



          (e) Insolvency; Voluntary Proceedings. Any Credit Party (i) ceases or fails to be
Solvent, or generally fails to pay, or admits in writing its inability to pay, its debts as they
become due, subject to applicable grace periods, if any, whether at stated maturity or otherwise,
(ii) voluntarily ceases to conduct its business in the ordinary course, (iii) shall liquidate, wind
up or dissolve, or suffer any liquidation, wind-up or dissolution (except to the extent expressly
permitted by Article X), (iv) commences any Insolvency Proceeding with respect to itself, or (v)
takes any material and direct action to effectuate or authorize any of the foregoing.



          (f) Involuntary Proceedings. (i) Any involuntary Insolvency Proceeding is commenced
or filed against any Credit Party, or any writ, judgment, warrant of attachment, execution or
similar process, is issued or levied against a substantial part of such Person’s properties, and
any such proceeding or petition shall not be dismissed, or such writ, judgment, warrant of
attachment, execution or similar process shall not be released, vacated or fully bonded within 60
days after commencement, filing or levy; (ii) any Credit Party admits the material allegations of a
petition against it in any Insolvency Proceeding, or an order for relief (or similar order under
non-U.S. law) is ordered in any Insolvency Proceeding; or (iii) any Credit Party acquiesces in the
appointment of a receiver, trustee, custodian, conservator, liquidator, mortgagee in possession (or
agent therefor), or other similar Person for itself or a substantial portion of its property or
business.



          (g) Default Under Other Indebtedness. (i) Any Credit Party (other than Texas Genco)
shall fail (A) to make any payment of any principal of, or interest or premium on, any Indebtedness
(other than in respect of the Loans) having an aggregate principal amount (including undrawn
committed or available amounts) of $20,000,000 or more when due (whether by scheduled maturity,
required prepayment, acceleration, demand or otherwise) and such failure shall continue after the
applicable notice or grace period, if any, specified in the agreement or instrument relating to
such Indebtedness as of the date of such failure; or (B) to perform or observe any term, covenant
or condition on its part to be performed or observed under any agreement or instrument relating to
any such Indebtedness, when required to be performed or observed, or any other event shall occur or
condition shall exist under any such agreement or instrument, and such failure, event or condition
shall continue after the applicable notice or grace period, if any, specified in such agreement or
instrument, if the effect of such failure, event or condition is to accelerate, or to permit the
acceleration of, the maturity of such Indebtedness ( provided that this clause (i) shall not
apply to secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the
property or assets securing such Indebtedness); or (ii) any such Indebtedness shall be declared to
be due and payable, or required to be prepaid (other than by a regularly scheduled required
prepayment), prior to the stated maturity thereof.



          (h) Judgments. (i) A judgment or order for the payment of money in excess of
$20,000,000, which is not fully covered by third-party insurance shall be rendered against any
Credit Party; or (ii) any non-monetary judgment or order shall be rendered against any Credit Party
which has or would reasonably be expected to have a Material Adverse Effect; and in either case (A)
enforcement proceedings are commenced by any creditor upon such judgment or



55









 




order, or (B) there is a period of 30 consecutive days during which a stay of enforcement of such judgment or order, by
reason of a pending appeal or otherwise, is not in effect.



          (i) ERISA. There shall occur one or more ERISA Events which individually or in the
aggregate results in liability of any Credit Party (including any liability of an ERISA Affiliate
for which a Credit Party could become responsible) in an amount that results in a Material Adverse
Effect.



          (j) Change in Ownership or Control. (i) NINA shall (A) cease to own and control,
directly or indirectly, at least 50% of the issued and outstanding equity interests of NINA
Investments or (B) fail to possess, directly or indirectly, equity interests representing voting
control consistent with the ownership interest described in clause (A)(i) above of NINA
Investments; or (ii) NINA Investments shall (A) cease to own and control 100% of the issued
and outstanding equity interests of NINA3 and NINA4 or (B) fail to possess, directly or indirectly,
equity interests representing voting control of NINA3 or NINA4; or (iii) NRG shall cease to own and
control, directly or indirectly, at least 49% (or such lower amount, if any, as would be necessary
to permit NINA not to be consolidated with NRG on the financial statements of NRG in accordance
with GAAP) of the issued and outstanding equity interests of NINA.



          (k) Other Loan Documents.



               (i) (A) Any Guarantor Document, Collateral Document or Subordination Agreement, after delivery
thereof, shall for any reason be revoked or invalidated, or otherwise cease to be in full force and
effect (other than as agreed in accordance with its terms), or any Credit Party shall contest in
any manner the validity or enforceability thereof, or (B) any Credit Party or any other party to
any such Loan Document shall contest in writing in any manner the validity or enforceability
thereof or deny that it has any further liability or obligation thereunder.



               (ii) Any Guarantor shall fail to perform or observe any term, covenant or agreement contained
in its Guaranty or any other Guarantor Document to which it is a party on its part to be performed
or observed and any such failure shall remain unremedied for a period of 30 days from the receipt
of notice of Default from the Administrative Agent beyond the grace period, if any, specified
therein.



               (iii) (A) Any Credit Party shall fail to perform or observe any term, covenant or agreement
contained in the Collateral Documents on its part to be performed or observed and any such failure
shall remain unremedied beyond the grace period, if any, specified therein, or (B) any of the
Collateral Documents for any reason, except to the extent permitted by the terms thereof, shall
cease to create a valid and perfected first priority (subject only to Permitted Liens) Lien in any
of the Collateral purported to be covered thereby (to the extent such perfection can be
accomplished under applicable law in the applicable jurisdiction).



          (l) EPC Contract. (i) Any “Owner Event of Default” as defined in the EPC Contract
shall have occurred; or (ii) the EPC Contract, after delivery thereof, shall for any reason be
revoked or invalidated, or otherwise cease to be in full force and effect (other than as a result
of any “Contractor Event of Default” as defined therein); or (iii) any Person (other than the



56









 




Contractor) shall contest in any manner in writing the validity or enforceability of the EPC
Contract or deny in writing that it has any further liability or obligation thereunder.



     Section 11.02 Effect of Event of Default. If any Event of Default shall
occur:



          (a) The Administrative Agent shall, at the request of, or may, with the consent of, the
Majority Lenders, (i) by notice to the Borrowers, (A) declare the Commitments of the Lenders to be
terminated, whereupon the same shall forthwith terminate, and (B) declare the entire unpaid
principal amount of the Loans, all interest accrued and unpaid thereon and all other Obligations to
be forthwith due and payable, whereupon the Loans, all such accrued interest and all such other
Obligations shall become and be forthwith due and payable, without presentment, demand, protest or
further notice of any kind, all of which are hereby expressly waived by the
Borrowers, provided that upon the occurrence of an actual or deemed entry of an order
for relief with respect to any Credit Party under the Bankruptcy Code, or any other Event of
Default specified in Section 11.01(e) or (f) which has the effect of staying actions against any
Credit Party, the result which would otherwise occur only upon giving of notice by the
Administrative Agent to the Borrowers as specified in this subsection shall occur automatically,
without the giving of any such notice; and (ii) whether or not the actions referred to in the
foregoing clause (i) have been taken, exercise any or all of the Administrative Agent’s rights and
remedies under the Loan Documents.



          (b) The Collateral Agent shall, at the request of or may, with the consent of, the Majority
Lenders, whether or not the actions referred to in Section 11.02(a) have been taken, (i) exercise
any or all of the Collateral Agent’s rights and remedies under the Collateral Documents, and (ii)
proceed to enforce all other rights and remedies available to the Collateral Agent and the Lenders
under the Collateral Documents and applicable law.



ARTICLE XII


THE ADMINISTRATIVE AGENT




     Section 12.01 Authorization and Action. Each Lender hereby appoints TANE as
the Administrative Agent, and authorizes the Administrative Agent to execute any Subordination
Agreement and to take such action as agent on its behalf and to exercise such powers and perform
such duties under this Agreement and the other Loan Documents as are delegated to the
Administrative Agent by the terms hereof or thereof, together with such powers as are reasonably
incidental thereto. The duties and obligations of the Administrative Agent are strictly limited to
those expressly provided for herein, and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Agreement or otherwise exist against the
Administrative Agent. As to any matters not expressly provided for by the Loan Documents
(including enforcement or collection of the Loan Documents), the Administrative Agent shall not be
required to exercise any discretion or take any action, but shall be required to act or to refrain
from acting (and shall be fully protected in so acting or refraining from acting) upon the
instructions of the Majority Lenders, and such instructions shall be binding upon all Lenders;
provided, however, that except for action expressly required of the Administrative
Agent hereunder, the Administrative Agent shall in all cases be fully justified in failing or
refusing to act under any Loan Document unless it shall be indemnified to its satisfaction by the
Lenders against any and all liability and expense which may be incurred by reason of taking or



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continuing to take any such action, and that the Administrative Agent shall not in any event be
required to take any action which exposes the Administrative Agent to liability or which is
contrary to any Loan Document or applicable law. Nothing in any Loan Document shall, or shall be
construed to, constitute the Administrative Agent a trustee or fiduciary for any Lender. In
performing its functions and duties hereunder, the Administrative Agent shall act solely as the
Administrative Agent of the Lenders and does not assume and shall not be deemed to have assumed any
obligation towards or relationship of agency or trust with or for any Credit Party. Without
limiting the generality of the foregoing, the use of the term “agent” in this Agreement and the
other Loan Documents with reference to the Administrative Agent is not intended to connote any
fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable
law. Instead, such term is used merely as a matter of market custom, and is
intended to create or reflect only an administrative relationship between independent
contracting parties.



     Section 12.02 Limitation on Liability of the Administrative Agent; Notices; Closing.



          (a) Limitation on Liability of the Administrative Agent. Neither the Administrative
Agent nor any Affiliate thereof nor any of their respective directors, officers, employees or
agents shall be liable for any action taken or omitted to be taken by it or them under or in
connection with any Loan Document, except for its or their own gross negligence, bad faith, willful
misconduct. Without limitation of the generality of the foregoing, the Administrative Agent (i)
may treat a Lender as the holder of its Loans for all purposes hereof unless and until such Lender
and its assignee shall have delivered to the Administrative Agent and the Borrowers a fully
executed Assignment and Assumption and the other conditions to assignment set forth in Section
13.10 shall have been satisfied; (ii) may consult with legal counsel (including counsel to the
Credit Parties), independent public accountants and other experts selected by it and shall not be
liable for any action taken or omitted to be taken in good faith by it in accordance with the
advice of such counsel, accountants or experts; and (iii) shall incur no liability to any Lender
under or in respect of any Loan Document by acting upon any notice, consent, certificate, telegram,
facsimile, electronic mail, telex or teletype message, statement or other instrument or writing
believed by it to be genuine and signed or sent by the proper party or parties or by acting upon
any representation or warranty made or deemed to be made hereunder or under any other Loan
Document. Further, the Administrative Agent (A) makes no warranty or representation to any Lender
and shall not be responsible to any Lender for the accuracy or completeness of any information,
exhibit or report furnished under any Loan Document, for any statements, warranties or
representations (whether written or oral) made or deemed made in or in connection with any Loan
Documents; (B) shall have no duty to ascertain or to inquire as to the performance or observance of
any of the terms, covenants or conditions of this Agreement or any other Loan Document on the part
of any Credit Party or any other Person or to inspect the property, books or records of any Credit
Party or any other Person; and (C) shall not be responsible to any Lender for the due execution,
legality, validity, enforceability, genuineness, sufficiency, value or collectibility of this
Agreement or any other Loan Document or any of the Collateral.



          (b) Notices. Except for agreements, instruments, opinions, financial statements,
notices and other documents expressly required to be furnished to the Lenders by the Administrative
Agent hereunder, the Administrative Agent shall not have any duty or



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responsibility to provide any Lender with any credit or other information concerning the business, operations, property,
condition (financial or otherwise), prospects or creditworthiness of the Borrowers which may come
into the possession of the Administrative Agent or any of its officers, directors, employees,
agents, attorneys-in-fact or Affiliates.



          (c) Closing. For purposes of determining compliance with the conditions specified in
Section 7.01, each Lender that has executed this Agreement shall be deemed to have consented to,
approved or accepted or to be satisfied with, each document or other matter either sent (or made
available) by the Administrative Agent to such Lender for consent, approval, acceptance or
satisfaction, or required thereunder to be consented to or approved by or acceptable or
satisfactory to such Lender, unless an officer of the Administrative Agent
responsible for the transactions contemplated by the Loan Documents shall have received notice
from such Lender prior to the date of the initial Borrowing specifying its objection thereto and
either such objection shall not have been withdrawn by notice to the Administrative Agent to that
effect on or prior to the date of the initial Borrowing, such Lender shall not have made available
to the Administrative Agent on or prior to the date hereof such Lender’s Pro Rata Share of such
Borrowing.



     Section 12.03 The Administrative Agent and Affiliates. With respect to its
Commitment, the Loans made by it and all other Obligations owing to it as a Lender, the
Administrative Agent shall have the same rights and powers under the Loan Documents as any other
Lender and may exercise the same as though it were not the Administrative Agent; and the term
“Lender” or “Lenders” shall, unless otherwise expressly indicated, include TANE in its individual
capacity as a Lender. The Administrative Agent and its Affiliates may accept deposits from, lend
money to, act as trustee under indentures of and generally engage in any kind of business with any
Credit Party and any Affiliate thereof, all as if the Administrative Agent were not an Agent
hereunder and without any duty to account therefor to the Lenders.



     Section 12.04 Notice of Defaults. The Administrative Agent shall not be
deemed to have knowledge or notice of the occurrence of a Default hereunder (other than nonpayment
of principal of or interest on the Loans or of any fees or any of its costs and expenses) unless
the Administrative Agent has actual knowledge thereof or has received notice in writing from a
Lender or the Borrowers referring to this Agreement, describing such event or condition and
expressly stating that such notice is a “notice of default.” Should the Administrative Agent
receive such notice of the occurrence of a Default, the Administrative Agent shall promptly give
notice thereof to the Lenders. The Administrative Agent thereupon shall take such action with
respect to such Default as shall be reasonably directed by the Majority Lenders; provided
that, unless and until the Administrative Agent shall have received such directions, the
Administrative Agent may (but shall not be obligated to) take such action, or refrain from taking
such action, with respect to such Default as it shall deem advisable in the best interests of the
Lenders.



     Section 12.05 Non-Reliance on the Administrative Agent. Each Lender has
itself been, and will continue to be, based on such documents and information as it has deemed
appropriate, solely responsible for making its own independent appraisal of and investigations into
the financial condition, creditworthiness, condition, affairs, status and nature of any Credit
Party or any of its Subsidiaries and the nature and value of any of the Collateral. Accordingly,
each Lender confirms to the Administrative Agent that it has not relied, and will not hereafter
rely, on



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the Administrative Agent (i) to check or inquire on such Lender’s behalf into the
adequacy, accuracy or completeness of any information provided by any Credit Party or any other
Person under or in connection with the Loan Documents or the transactions herein contemplated
(whether or not such information has been or is hereafter distributed to such Lender by the
Administrative Agent), or (ii) to assess or keep under review on such Lender’s behalf the financial
condition, creditworthiness, condition, affairs, status or nature of any Credit Party, any
Subsidiary or the nature or value of any of the Collateral.



     Section 12.06 Indemnification. The Lenders agree to indemnify the
Administrative Agent, and any Affiliates, directors, officers, employees, agents, counsel and other
advisors (collectively, the “Related Persons”) of the Administrative Agent (to the extent
not reimbursed by any Credit Party), ratably in accordance with the respective Pro Rata Shares of the
Lenders, against and hold each of them harmless from any and all liabilities, obligations, losses,
claims, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind
or nature whatsoever, including the reasonable fees and disbursements of counsel to the
Administrative Agent (including allocated costs of internal counsel), which may be imposed on,
incurred by, or asserted against the Administrative Agent or any such Related Person to be
indemnified, in any way relating to or arising out of the Loan Documents, the use or intended use
of the proceeds of the Loans or the transactions contemplated hereby or thereby or any action taken
or omitted by the Administrative Agent or other such Related Person to be indemnified in connection
with any of the foregoing; provided that no Lender shall be liable for any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements to the extent they are found by a final decision of a court of competent jurisdiction
to have resulted from the gross negligence or willful misconduct of the Administrative Agent, or
any other Related Person to be indemnified. Without limitation of the foregoing, each Lender
agrees to reimburse the Administrative Agent and its Affiliates promptly upon demand for such
Lender’s Pro Rata Share of any costs and expenses or other charges incurred by the Administrative
Agent or its Affiliates and payable by the Borrowers pursuant to Section 13.04(a) or any other Loan
Document, or by any Guarantor pursuant to any Guarantor Document.



     Section 12.07 Delegation of Duties. The Administrative Agent may, in its
discretion, employ from time to time one or more agents or attorneys-in-fact (including any of the
Administrative Agent’s Affiliates) to perform any of the Administrative Agent’s duties under the
Loan Documents. The Administrative Agent shall not be responsible for the negligence or misconduct
of any agents or attorneys-in-fact selected by it with reasonable care.



     Section 12.08 Successor Administrative Agent. Subject to the appointment and
acceptance of a successor Administrative Agent as provided below, and subject to the consent of the
Borrowers (not to be unreasonably withheld), the Administrative Agent may resign at any time by
giving 30 days’ written notice thereof to the Lenders and the Borrowers. Upon any such
resignation, the Majority Lenders shall have the right to appoint a successor Administrative Agent
from among the Lenders, and the Lenders shall use their best efforts so to appoint a successor the
Administrative Agent (subject to consent of the Borrowers not to be unreasonably withheld). If no
successor Administrative Agent shall have been so appointed by the Majority Lenders, and shall have
accepted such appointment, prior to the effective date of the retiring Administrative Agent’s
resignation, the retiring Administrative Agent may, on behalf of and



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after consulting with the Lenders, appoint a successor Administrative Agent from among the Lenders (subject to consent of the
Borrowers not to be unreasonably withheld). Any such successor Administrative Agent shall be
consented to by the Borrowers at all times other than during the existence of an Event of Default
(which consent of the Borrowers shall not be unreasonably withheld or delayed). Upon the
effectiveness of the acceptance of any appointment as the Administrative Agent hereunder by a
successor Administrative Agent, such successor Administrative Agent shall thereupon succeed to and
become vested with all the rights, powers, privileges, duties and obligations of the retiring the
Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and
obligations under the Loan Documents. After any retiring Administrative Agent’s resignation
hereunder as Administrative Agent, the provisions of this Article XII shall inure to its benefit as
to any actions taken or omitted to be taken by it while it was Agent under the Loan Documents. If no successor has
accepted appointment as the Administrative Agent by the date which is 30 days following a retiring
Administrative Agent’s notice of resignation, the retiring Administrative Agent’s resignation shall
nevertheless thereupon become effective and the Lenders shall perform all of the duties of the
Administrative Agent hereunder until such time, if any, as the Majority Lenders appoint a successor
agent as provided for above.



     Section 12.09 Collateral Matters.



          (a) Guaranty Matters. The Lenders irrevocably authorize the Administrative Agent, at
its option and in its discretion, to release any Guarantor from its obligations under its Guaranty
if such Person ceases to be a Restricted Subsidiary as a result of a transaction permitted
hereunder. Upon request by the Administrative Agent at any time, the Lenders shall confirm in
writing the Administrative Agent’s authority to release any Guarantor pursuant to this Section
12.09, provided that the absence of any such confirmation for whatever reason shall not
affect the Administrative Agent’s rights under this Section 12.09.



     Section 12.10 The Administrative Agent May File Proofs of Claim. In case of
the pendency of any Insolvency Proceeding relative to any Credit Party, the Administrative Agent
(irrespective of whether the principal of any Obligation shall then be due and payable as herein
expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall
have made any demand on the Borrowers) shall be entitled and empowered, by intervention in such
Insolvency Proceeding or otherwise (i) to file and prove a claim for the whole amount of the
principal and interest owing and unpaid in respect of the Obligations that are owing and unpaid and
to file such other documents as may be necessary or advisable in order to have the claims of the
Lenders and the Administrative Agent (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Lenders and the Administrative Agent and their
respective agents and counsel and all other amounts due under Section 12.04) allowed in such
judicial proceeding; and (ii) to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee,
trustee, liquidator, sequestrator or other similar official in any such Insolvency Proceeding is
hereby authorized by each Lender to make such payments to the Administrative Agent and, in the
event that the Administrative Agent shall consent to the making of such payments directly to the
Lenders, to pay to the Administrative Agent any amount due for the reasonable compensation,
expenses, disbursements and advances of the Administrative Agent and its agents and counsel, and
any other amounts due the Administrative Agent under Section




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12.04. Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on
behalf of any Lender any plan of reorganization, arrangement, adjustment or composition affecting
the Obligations or the rights of any Lender or to authorize the Administrative Agent to vote in
respect of the claim of any Lender in any such proceeding.



ARTICLE XIII


MISCELLANEOUS




     Section 13.01 Amendments and Waivers.



          (a) Except as otherwise provided herein or in any other Loan Document, (1) no amendment to any
provision of this Agreement or any of the other Loan Documents shall in any event be effective
unless the same shall be in writing and signed by the Borrowers (and/or any Guarantor or other
party thereto, as applicable), the Administrative Agent and the Majority Lenders (or the
Administrative Agent with the written consent of the Majority Lenders); and (2) no waiver of any
provision of this Agreement or any other Loan Document, or consent to any departure by any Credit
Party or other party therefrom, shall in any event be effective unless the same shall be in writing
and signed by the Administrative Agent and the Majority Lenders (or the Administrative Agent with
the consent of the Majority Lenders). Any such amendment, waiver or consent shall be effective
only in the specific instance and for the specific purpose for which given; provided,
however, that, unless in writing and signed by all of the Lenders (or by the Administrative
Agent with the written consent of all the Lenders), no amendment, waiver or consent shall do any of
the following:



               (i) increase the amount, or extend the stated expiration or termination date, of the
Commitments of the Lenders or change the aggregate amount by which or to which the Commitments are
required to be reduced as provided in Section 4.01(b), except for any such extension made in
accordance with Section 4.01(a) which shall occur automatically upon satisfaction of the terms and
conditions set forth therein;



               (ii) reduce the principal of, or interest on, the Loans or any fee payable to the Lenders
hereunder provided, however, that only the consent of the Majority Lenders shall be
necessary to amend the Default Rate, to waive any obligation of any Borrower to pay interest or any
fee at the Default Rate or for the revision of the Applicable Margin as described in clause (ii) of
the definition thereof;



               (iii) postpone any date fixed for any payment in respect of principal of, or interest on, the
Loans or any fee payable to the Lenders hereunder (excluding the date of any mandatory prepayment
hereunder;



               (iv) change the definition of “Majority Lenders” or any definition or provision of this
Agreement requiring the approval of Majority Lenders or all of the Lenders;



               (v) consent to the assignment or transfer by any Credit Party of any of its rights and
obligations under the Loan Documents;



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               (vi) release any Guaranty or all or a material portion of the Collateral, except as
contemplated in the Loan Documents;



               (vii) contractually subordinate any Lien on any property granted to or held by the Collateral
Agent under any Loan Document, except as contemplated herein and in the Collateral Documents
relating thereto;



               (viii) waive any of the conditions specified in Section 7.01;



               (ix) amend, modify or waive the provisions of Section 6.01 or 6.05; or



               (x) amend, modify or waive the provisions of this Section 13.01(a); and


provided further, however, that no amendment, waiver or consent shall,
unless in writing and signed by the Administrative Agent in addition to the Lenders required
hereinabove to take such action, affect the rights, obligations or duties of the Administrative
Agent under any Loan Document. Notwithstanding anything to the contrary herein, a Defaulting
Lender shall not have any right to approve or disapprove any amendment, waiver or consent
hereunder, except that the Commitments of such Lender may not be increased without its consent.



          (b) Notwithstanding anything in this Agreement to the contrary, any Schedule hereto may be
amended by Borrowers on the first date on which each of the following has occurred: (i) Borrowers
have delivered to the Administrative Agent a replacement Schedule and (ii) the Administrative Agent
and the Majority Lenders have provided written approval thereof.


If any Lender (such Lender, a “Non-Consenting Lender”) has failed to consent to a proposed
amendment, waiver, discharge or termination that pursuant to the terms of this Section 13.01
requires the consent of all of the Lenders and with respect to which the Majority Lenders shall
have granted their consent, then provided no Event of Default then exists, the Borrowers shall have
the right (unless such Non-Consenting Lender grants such consent) to replace such Non-Consenting
Lender by requiring such Non-Consenting Lender to assign its Loans and its Commitments hereunder to
one or more assignees reasonably acceptable to the Majority Lenders, provided that: (a)
all Obligations of the Borrowers due and payable to such Non-Consenting Lender being replaced shall
be paid in full to such Non-Consenting Lender concurrently with such assignment, and (b) the
replacement Lender shall purchase the foregoing by paying to such Non-Consenting Lender a price
equal to the principal amount thereof plus accrued and unpaid interest thereon. In connection with
any such assignment, the Borrowers, the Administrative Agents, such Non-Consenting Lender and the
replacement Lender shall otherwise comply with Section 13.10.



     Section 13.02 Notices; Facsimile Copies.



          (a) Notices. All notices and other communications provided for hereunder and under
the other Loan Documents shall, unless otherwise stated herein, be in writing (including, unless
the context expressly otherwise provides, by facsimile transmission and, subject to subsection (c),
by electronic mail) and mailed (by certified or registered mail), sent or delivered to the
respective parties hereto at or to their respective addresses, facsimile numbers or



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email addresses set forth in Schedule 2 or in any Administrative Questionnaire, or at or to such other address or
facsimile number or email address as shall be designated by any party in a written notice to the
other parties hereto. All such notices and communications shall be effective (i) if delivered by
hand, sent by certified or registered mail or sent by an overnight courier service, when received;
and (ii) if sent by facsimile transmission or electronic mail, when sent; provided,
however, that notices and communications to the Administrative Agent shall not be effective
until received. Each Lender agrees to notify the Administrative Agent from time to time to ensure
that the Administrative Agent has on record (i) an effective address, contact name, telephone
number, facsimile number and electronic mail address to which notices and other communications may
be sent and (ii) accurate wire instructions for such Lender.



          (b) Reliance by the Agents and the Lenders. Each Agent and the Lenders shall be
entitled to rely and act upon any notices (including telephonic notice of a Borrowing) purportedly
given by or on behalf of any Borrower even if (i) such notices were not made in a manner specified
herein, were incomplete or were not preceded or followed by any other form of notice specified
herein, or (ii) the terms thereof, as understood by the recipient, varied from any confirmation
thereof. The Borrowers shall indemnify each Agent-Related Person and each Lender from all losses,
costs, expenses and liabilities resulting from the reliance by such Person on each notice
purportedly given by or on behalf of the Borrowers. All telephonic notices to and other
communications with the Administrative Agent may be recorded by the Administrative Agent, and the
parties hereto hereby consent to such recording.



          (c) Electronic Mail. Electronic mail may be used only to distribute routine
communications, such as financial statements and other information, and to distribute Loan
Documents for execution by the parties thereto, and may not be used for any other purpose.



          (d) Effectiveness of Facsimile Documents and Signatures. Loan Documents may be
transmitted and/or signed by facsimile or electronically (including by delivery of a .pdf or .tif
file). The effectiveness of any such documents and signatures shall, subject to applicable law,
have the same force and effect as manually-signed originals and shall be binding on the Credit
Parties, each Agent and the Lenders. Each Agent may also require that any such documents and
signatures be confirmed by a manually-signed original thereof; provided, however,
that the failure to request or deliver the same shall not limit the effectiveness of any facsimile
or electronic document or signature.



     Section 13.03 No Waiver; Cumulative Remedies. No failure on the part of any
Agent or any Lender to exercise, and no delay in exercising, any right, remedy, power or privilege
under any Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise
of any such right, remedy, power or privilege preclude any other or further exercise thereof or the
exercise of any other right, remedy, power or privilege. The rights and remedies under the Loan
Documents are cumulative and not exclusive of any rights, remedies, powers and privileges that may
otherwise be available to any Agent or any Lender. Notwithstanding anything to the contrary
contained herein or in any other Loan Document, the authority to enforce rights and remedies
hereunder and under the other Loan Documents against the Credit Parties or any of them shall be
vested exclusively in, and all actions and proceedings at law in connection with such enforcement
shall be instituted and maintained exclusively by, the Administrative Agent and the Collateral
Agent in accordance with Section 11.02 for the benefit of all the Lenders;



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provided, however, that the foregoing shall not prohibit (i) the Administrative Agent from exercising
on its own behalf the rights and remedies that inure to its benefit (solely in its capacity as the
Administrative Agent) hereunder and under the other Loan Documents, (ii) any Lender from exercising
setoff rights in accordance with Section 13.05 (subject to the terms of Section 6.05), or (iii) any
Lender from filing proofs of claim or appearing and filing pleadings on its own behalf during the
pendency of any Insolvency Proceeding relative to any Credit Party; and provided,
further, that if at any time there is no Person acting as the Administrative Agent
hereunder and under the other Loan Documents, then (A) the Majority Lenders shall have the rights
otherwise ascribed to the Administrative Agent pursuant to Section 11.02 and (B) in addition to the
matters set forth in clauses (ii) and (iii) of the preceding proviso and subject to
Section 6.05, any Lender may, with the consent of the Majority Lenders, enforce any rights and
remedies available to it and as authorized by the Majority Lenders.



     Section 13.04 Costs and Expenses; Indemnification.



          (a) Costs and Expenses. The Borrowers agree to pay on demand, whether or not the
transactions contemplated hereby shall be consummated:



               (i) all title, appraisal, survey, audit, environmental inspection, search, recording, filing
and similar reasonable and documented out-of-pocket costs, fees and expenses incurred or sustained
by any Agent or any of its Affiliates in connection with the Loan Documents or the Collateral; and



               (ii) all documented out-of-pocket costs and expenses of each Agent, its Affiliates and the
Lenders, and documented out-of-pocket fees and disbursements of counsel, in connection with (A) any
Default, (B) the enforcement or attempted enforcement of, and preservation of any rights or
interests under, the Loan Documents, (C) any out-of-court workout or other similar refinancing or
restructuring or any Insolvency Proceeding, and (D) the preservation of and realization upon any of
the Collateral, including any losses, costs and expenses sustained by any Agent or any Lender as a
result of any failure by any Credit Party to perform or observe its obligations contained in the
Loan Documents in connection therewith.



          (b) Indemnification. From and after the date of this Agreement, the Borrowers hereby
agree to indemnify each Agent, each Lender and any Related Person thereof (each an “Indemnified
Person”) against, and hold each of them harmless from, any and all liabilities, obligations,
losses, claims, damages, penalties, actions, judgments, suits of any kind or nature whatsoever,
including the reasonable fees and disbursements of counsel to an Indemnified Person, and, to the
extent payable by Borrowers pursuant to subsection (a), all costs, expenses or disbursements of any
kind or nature whatsoever, which may be imposed on or incurred by any Indemnified Person, or
asserted against any Indemnified Person by any third party, in any way, relating to or arising out
of, in connection with, or as a result of (i) the performance by the parties hereto of their
respective obligations hereunder or thereunder, the consummation of the transactions contemplated
hereby or thereby, or, in the case of any Agent (and any sub-agent thereof) and its Related Persons
only, the administration and enforcement of this Agreement and the other Loan Documents, (ii) the
Loans or the use or intended use of the proceeds thereof, (iii) the use, generation, manufacture,
installation, treatment, storage or presence, or the spillage, leakage, leaching, migration,
dumping, deposit, discharge, disposal or release, at any time, of any



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Hazardous Substances on, under, at or from the properties of any Borrower or any Subsidiary thereof, including any personal
injury or property damage suffered by any Person, and any investigation, site assessment,
environmental audit, feasibility study, monitoring, clean-up, removal, containment, restoration,
remedial response or remedial work undertaken by or on behalf of the any Indemnified Person at any
time, voluntarily or involuntarily, with respect to the properties of any Borrower or any
Subsidiary thereof, or (iv) any actual or prospective claim, litigation, investigation or
proceeding relating to any of the foregoing, whether based on contract, tort or any other theory,
whether brought by a third party or by any Credit Party (the “Indemnified Liabilities”);
provided that no Borrower shall be liable to any Indemnified Person for any portion or all
of such Indemnified Liabilities to the extent (A) they are found by a final
decision of a court of competent jurisdiction to have resulted from any Indemnified Person’s
gross negligence, bad faith or willful misconduct or solely to the extent such claims are made by
one Indemnified Person against another; (B) such Indemnified Liabilities pertain to any taxes or
other governmental charges, levies, increased costs, regulatory costs, breakage costs and generally
Liabilities addressed in Section 5.02(a) hereof; or (C) such Indemnified Liabilities constitute any
costs or expenses in connection with the Loan Documents or the Collateral (which are fully
addressed in Section 13.04(a) hereof). If and to the extent that the foregoing indemnification is
for any reason held unenforceable, the Borrowers agree to make the maximum contribution to the
payment and satisfaction of each of the Indemnified Liabilities which is permissible under
applicable law.



          (c) Other Charges. The Borrowers agree to indemnify each Agent and each of the
Lenders against and hold each of them harmless from any and all present and future stamp, transfer,
documentary taxes, levies, fees, assessments and other charges made by any jurisdiction by reason
of the execution, delivery, performance and enforcement of the Loan Documents.



     Section 13.05 Right of Set-Off. Upon the occurrence and during the
continuance of any Event of Default, each Lender hereby is authorized at any time and from time to
time, without notice to the Borrowers (any such notice being expressly waived by the Borrowers), to
set off and apply any and all deposits (general or special, time or demand, provisional or final)
at any time held and other indebtedness at any time owing by such Lender to or for the credit or
the account of the Borrowers against any and all of the Obligations of the Borrowers now or
hereafter existing under this Agreement and the other Loan Documents, irrespective of whether or
not such Lender shall have made any demand under this Agreement or any such other Loan Document.
Each Lender agrees promptly to notify the Borrowers (through the Administrative Agent) after any
such set-off and application made by such Lender; provided that the failure to give such
notice shall not affect the validity of such set-off and application. The rights of each Lender
under this Section 13.05 are in addition to other rights and remedies (including other rights of
set-off) which such Lender may have.



     Section 13.06 Survival. All covenants, agreements, representations and
warranties made in any Loan Documents shall, except to the extent otherwise provided therein,
survive the execution and delivery of this Agreement, the making of the Loans, and shall continue
in full force and effect so long as the Lenders have any Commitments, any Loans remain outstanding
or any other Obligations remain unpaid or any obligation to perform any other act under any Loan
Document remains unsatisfied (other than indemnities and other contingent obligations not then due
and payable unless a written demand or invoice shall have been delivered to the applicable



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Borrower or Guarantor). Without limiting the generality of the foregoing, the obligations of the Borrowers
under Sections 5.01, 5.02, 6.03 and 13.04, and of the Lenders under Sections 6.03 and 11.06, and
all obligations to pay costs and expenses and all indemnity obligations under the other Loan
Documents, shall survive the repayment of the Loans and the termination of the Commitments.



     Section 13.07 Lender Obligations Several. The obligations of the Lenders
under the Loan Documents are several. The failure of any Lender or any Agent to carry out its
obligations thereunder shall not relieve any other Lender or any Agent of any obligation
thereunder, nor shall any Lender or any Agent be responsible for the obligations of, or any action
taken or omitted by, any other Person hereunder or thereunder. Nothing contained in any Loan Document
shall be deemed to cause any Lender or any Agent to be considered a partner of or joint venturer
with any other Lender or Lenders, any Agent, any Guarantor or any Borrower.



     Section 13.08 Co-Borrower Provisions.



          (a) Borrower Agent. Each Borrower appoints NINA its agent for purposes of the giving
and receiving of any notice, and the agreement to any consent or waiver under this Agreement (NINA,
in such capacity, the “Borrower Agent”). The Borrower Agent shall have no duties or
responsibilities hereunder by virtue of such appointment other than to grant consents by the
Borrowers pursuant hereto. Any notice required by this Agreement to be delivered to any Borrower
shall be deemed to have been delivered to such Borrower upon delivery of such notice to the
Borrower Agent, and receipt of any notice by the Borrower Agent shall constitute receipt of such
notice by each Borrower. Any notice or consent to be delivered hereunder by any Borrower shall be
deemed to have been delivered by such Borrower upon delivery thereof by the Borrower Agent.



          (b) Joint and Several Nature of Obligations. All Loans made to the Borrowers shall be
deemed to have been made to all Borrowers and each Borrower hereby agrees that it shall jointly and
severally, and unconditionally, be obligated to pay the Obligations, including, without limitation,
the Obligations incurred for the benefit of each of the other Borrowers.



          (c) Co-Borrower Waivers.



               (i) General Waivers. Each Borrower hereby expressly waives (A) diligence,
presentment, demand for payment, protest, benefit of any statute of limitations affecting any
Borrower’s liability under the Loan Documents; (B) discharge due to any disability of any Borrower;
(C) any defenses of any Borrower to obligations under the Loan Documents not arising under the
express terms of the Loan Documents or from a material breach thereof by any Agent or any Lender
which under applicable law has the effect of discharging any Borrower from the Obligations as to
which this Agreement is sought to be enforced; (D) the benefit of any act or omission by any Agent
or Lender which directly or indirectly results in or aids the discharge of any Borrower from any of
the Obligations by operation of law or otherwise; (E) all notices whatsoever, including, without
limitation, notice of acceptance of the incurring of the Obligations; (F) any right it may have to
require Agent or Lenders to disclose to it any information that any Agent or Lender may now or
hereafter acquire concerning the financial condition or any circumstances that bear on the risk of
nonpayment by any other Borrower,



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including without limitation the release of such other Borrower
from its Obligations hereunder; and (G) any requirement that any Agent or Lender exhaust any right,
power or remedy or proceed against the other Borrower or any other security for, or any guarantor
of, or any other party liable for, any of the Obligations, or any portion thereof. Each Borrower
specifically agrees that it shall not be necessary or required, and Borrowers shall not be entitled
to require, that any Agent or Lender (1) file suit or proceed to assert or obtain a claim for
personal judgment against any other Borrower for all or any part of the Obligations; (2) make any
effort at collection or enforcement of all or any part of the Obligations from any Borrower; (3)
foreclose against or seek to realize upon the Collateral or any other security now or hereafter
existing for all or any part of the Obligations; (4) file suit or proceed to obtain or assert a
claim for personal
judgment against any Borrower or any guarantor or other party liable for all or any part of
the Obligations; (5) exercise or assert any other right or remedy to which any Agent or any Lender
is or may be entitled in connection with the Obligations or any security or guaranty relating
thereto to assert; or (6) file any claim against assets of one Borrower before or as a condition of
enforcing the liability of any other Borrower under any Loan Document.



               (ii) Real Property Security Waivers. Each Borrower acknowledges that all or any
portion of the Obligations may now or hereafter be secured by a Lien or Liens upon real property
evidenced by certain documents including, without limitation, deeds of trust and assignments of
rents. The Collateral Agent and Lenders may, pursuant to the terms of said real property security
documents and applicable law, foreclose under all or any portion of one or more of said Liens by
means of judicial or nonjudicial sale or sales. Each Borrower agrees that the Collateral Agent and
Lenders may exercise whatever rights and remedies they may have with respect to said real property
security, all without affecting the liability of any Borrower hereunder, except to the extent the
Collateral Agent and Lenders realize payment by such action or proceeding. No election to proceed
in one form of action or against any party, or on any obligation shall constitute a waiver of the
Collateral Agent’s or Lenders’ rights to proceed in any other form of action or against any
Borrower or any other Person, or diminish the liability of any Borrower, or affect the right of the
Collateral Agent or Lenders to proceed against any Borrower for any deficiency, except to the
extent the Collateral Agent and Lenders realize payment by such action, notwithstanding the effect
of such action upon any Borrower’s rights of subrogation, reimbursement or indemnity, if any,
against Borrower or any other Person.



               (iii) Waiver of Specific Rights. WITHOUT LIMITING THE FOREGOING IN ANY WAY, EACH
BORROWER HEREBY IRREVOCABLY WAIVES AND RELEASES TO THE EXTENT PERMITTED BY LAW ANY AND ALL RIGHTS
IT MAY HAVE AT ANY TIME (WHETHER ARISING DIRECTLY OR INDIRECTLY, BY OPERATION OF LAW, CONTRACT OR
OTHERWISE) TO REQUIRE THE MARSHALING OF ANY ASSETS OF ANY BORROWER, WHICH RIGHT OF MARSHALING MIGHT
OTHERWISE ARISE FROM ANY SUCH PAYMENTS MADE OR OBLIGATIONS PERFORMED.



     Section 13.09 Benefits of Agreement. The Loan Documents are entered into for
the sole protection and benefit of the parties hereto and their successors and assigns, and no
other Person other than Affiliates of any Agent and the Related Persons referred to in Sections
11.06, 12.04 and 12.14 shall be a direct or indirect beneficiary of, or shall have any direct or
indirect cause of action or claim in connection with, any Loan Document.



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     Section 13.10 Binding Effect; Assignment.



          (a) Binding Effect. This Agreement shall become effective when it shall have been
executed by each Borrower and the Agents and when the Administrative Agent shall have been notified
by each Lender that such Lender has executed it, and thereafter shall be binding upon, inure to the
benefit of and be enforceable by the Borrowers, the Agents and each Lender and their respective
successors and assigns.



          (b) Assignment. No Borrower may assign or otherwise transfer any of its rights or
obligations hereunder without the prior written consent of each Lender, and no Lender may assign or
otherwise transfer any of its rights or obligations hereunder, except (1) to an Eligible Assignee
in accordance with the provisions of subsection (b)(i), (2) by way of participation in accordance
with the provisions of subsection (b)(iii) or (3) by way of pledge or assignment of a security
interest subject to the restrictions of subsection (b)(iv) (and any other attempted assignment or
transfer by any party hereto shall be null and void).



               (i) Any Lender may at any time assign to one or more Eligible Assignees all or a portion of
its rights and obligations under this Agreement (including all or a portion of its Commitments and
the Loans at the time owing to it); provided that (A) TANE, as Lender, may not assign more
than 49% of its rights and obligations in respect of each of (x) the Loans and (y) the Commitments
to any Person (including to any Eligible Assignee), (B) except in the case of an assignment of the
entire remaining amount of the assigning Lender’s Commitments and the Loans at the time owing to it
or in the case of an assignment to a Lender or an Affiliate of a Lender or an Approved Fund (as
defined in subsection (b)(vi)) with respect to a Lender, the aggregate amount of the Commitments
(which for this purpose includes Loans outstanding thereunder) or, if the applicable Commitments
are not then in effect, the principal outstanding balance of the Loans of the assigning Lender
subject to each such assignment (determined as of the date the Assignment and Assumption with
respect to such assignment is delivered to the Administrative Agent or, if “Trade Date” is
specified in the Assignment and Assumption, as of the Trade Date) shall not be less than
$5,000,000, unless each of the Administrative Agent and, so long as no Event of Default has
occurred and is continuing, the Borrowers otherwise consents (each such consent not to be
unreasonably withheld or delayed); (C) each partial assignment shall be made as an assignment of a
proportionate part of all the assigning Lender’s rights and obligations under this Agreement with
respect to the Loans or the Commitments assigned; (D) any assignment of any Commitments must be
approved by the Administrative Agent unless the Person that is the proposed assignee is itself a
Lender (whether or not the proposed assignee would otherwise qualify as an Eligible Assignee); and
(E) the parties to each assignment shall execute and deliver to the Administrative Agent an
Assignment and Assumption, together with a processing and recordation fee of $3,500 (except in the
case of assignments to the Affiliates), and the Eligible Assignee, if it shall not be a
Lender, shall deliver to the Administrative Agent an Administrative Questionnaire. Subject to
acceptance and recording thereof by the Administrative Agent pursuant to subsection (b)(ii), from
and after the effective date specified in each Assignment and Assumption, the Eligible Assignee
thereunder shall be a party to this Agreement and, to the extent of the interest assigned by such
Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and
the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment
and Assumption, be released from its obligations under this Agreement (and, in the case of an



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Assignment and Assumption covering all of the assigning Lender’s rights and obligations under this
Agreement, such Lender shall cease to be a party hereto but shall continue to be entitled to the
benefits of Article V and Sections 6.03 and 12.04 with respect to facts and circumstances occurring
prior to the effective date of such assignment). Any assignment or transfer by a Lender of rights
or obligations under this Agreement that does not comply with this subsection (b)(i) shall be
treated for purposes of this Agreement as a sale by such Lender of a participation in such rights
and obligations in accordance with subsection (b)(iii).



               (ii) The Administrative Agent, acting solely for this purpose as an agent of the Borrowers,
shall maintain at its office in Alexandria, Virginia a copy of each Assignment and Assumption
delivered to it and a register for the recordation of the names and addresses of the Lenders, and
the Commitments of, and principal amounts of the Loans owing to, each Lender pursuant to the terms
hereof from time to time (the “Register”). The entries in the Register shall be
conclusive, and the Borrowers, the Agents and the Lenders may treat each Person whose name is
recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of
this Agreement, notwithstanding notice to the contrary. The Register shall be available for
inspection by the Borrowers and any Lender, at any reasonable time and from time to time upon
reasonable prior notice.



               (iii) Any Lender may at any time, without the consent of, or notice to, the Borrowers or any
Agent, sell participations to any Person (other than a natural person or any Borrower or any
Affiliate or Subsidiary thereof) (each, a “Participant”) in all or a portion of such
Lender’s rights and/or obligations under this Agreement (including all or a portion of its
Commitments and/or the Loans owing to it); provided that (A) such Lender’s obligations
under this Agreement shall remain unchanged, (B) such Lender shall remain solely responsible to the
other parties hereto for the performance of such obligations, (C) the Borrowers, each Agent and the
other Lenders shall continue to deal solely and directly with such Lender in connection with such
Lender’s rights and obligations under this Agreement. Any agreement or instrument pursuant to
which a Lender sells such a participation shall provide that such Lender shall retain the sole
right to enforce this Agreement and to approve any amendment, modification or waiver of any
provision of this Agreement and (D) no Borrower or Subsidiary thereof becomes exposed to a claim
pursuant to Article V due to, and upon the occurrence of, such transaction; provided that
such agreement or instrument may provide that such Lender will not, without the consent of the
Participant, agree to any amendment, waiver or other modification which would require unanimous
consent as described in the second proviso to Section 13.01(a) that directly affects such
Participant. Each Participant shall be entitled to the benefits of Sections 5.01, 5.02, 6.03 and
12.04 to the same extent as if it were a Lender and had acquired its interest by assignment
pursuant to subsection (b)(i). To the extent permitted by law, each Participant also shall be
entitled to the benefits of Section 13.05 as though it were a Lender, provided such
Participant agrees to be subject to Section 6.05 as though it were a Lender.



               (iv) Any Lender may at any time pledge or assign a security interest in all or any portion of
its rights under this Agreement to secure obligations of such Lender, including any pledge or
assignment to secure obligations to a Federal Reserve Bank; provided that no such pledge or
assignment shall release such Lender from any of its obligations hereunder or substitute any such
pledgee or assignee for such Lender as a party hereto and no



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Borrower or Subsidiary thereof becomes
exposed to a claim pursuant to Article V due to, and upon the occurrence of, such transaction.



               (v) As used herein, the following terms have the following meanings:



     “Eligible Assignee” means (a) a Lender; (b) an Affiliate of a Lender; (c) an Approved
Fund; and (d) any other Person (other than a natural person) approved by (i) the Administrative
Agent and (ii) unless an Event of Default has occurred and is continuing, the Borrowers (each such
approval not to be unreasonably withheld or delayed); provided that notwithstanding the
foregoing, “Eligible Assignee” shall not include any Borrower or any Affiliate or Subsidiary
thereof (other than TANE and any of its Affiliates that is not a Borrower).



     “Fund” means any Person (other than a natural person) that is (or will be) engaged in
making, purchasing, holding or otherwise investing in commercial loans and similar extensions of
credit in the ordinary course of its business.



     “Approved Fund” means any Fund that is administered or managed by (a) a Lender, (b) an
Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a
Lender.



     Section 13.11 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK (WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAWS THAT WOULD RESULT IN THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION);
PROVIDED THAT SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW SHALL APPLY.



     Section 13.12 Submission to Jurisdiction.



          (a) Submission to Jurisdiction. Each party hereto hereby (i) submits to the
non-exclusive jurisdiction of the courts of the State of New York and the Federal courts of the
United States sitting in the State of Southern District of New York for the purpose of any action
or proceeding arising out of or relating to the Loan Documents, (ii) agrees that all claims in
respect of any such action or proceeding may be heard and determined in such courts, (iii)
irrevocably waives (to the extent permitted by applicable law) any objection which it now or
hereafter may have to the laying of venue of any such action or proceeding brought in any of the
foregoing courts, and any objection on the ground that any such action or proceeding in any such
court has been brought in an inconvenient forum and (iv) agrees that a final judgment in any such
action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner permitted by law.



          (b) No Limitation. Nothing in this Section 13.12 shall limit the right of the Agents
or the Lenders to bring any action or proceeding against such Borrower or its property in the
courts of other jurisdictions.



     Section 13.13 Waiver of Jury Trial. EACH BORROWER, LENDER AND AGENT HEREBY
AGREE TO WAIVE THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED
UPON OR ARISING OUT OF OR



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RELATED TO THIS AGREEMENT, THE OTHER LOAN DOCUMENTS OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY IN ANY ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY
ANY OF THE PARTIES AGAINST ANY OTHER PARTY OR PARTIES, WHETHER WITH RESPECT TO CONTRACT CLAIMS,
TORT CLAIMS, OR OTHERWISE. EACH BORROWER, THE LENDERS AND THE AGENTS HEREBY AGREE THAT ANY SUCH
CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A COURT TRIAL WITHOUT A JURY. WITHOUT IN ANY WAY
LIMITING THE FOREGOING, THE PARTIES FURTHER AGREE THAT
THEIR RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED BY OPERATION OF THIS SECTION 13.13 AS TO
ANY ACTION, COUNTERCLAIM, OR OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE
VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS OR ANY PROVISION HEREOF OR
THEREOF. THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR
MODIFICATIONS TO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS. A COPY OF THIS SECTION 13.13 MAY BE
FILED WITH ANY COURT AS WRITTEN EVIDENCE OF THE WAIVER OF THE RIGHT TO TRIAL BY JURY AND CONSENT TO
TRIAL BY COURT.



     Section 13.14 Limitation on Liability. No claim shall be made by any party
hereto against any other party or any of their respective Related Persons for any special,
indirect, exemplary, consequential or punitive damages in respect of any breach or wrongful conduct
(whether or not the claim therefor is based on contract, tort or duty imposed by law), in
connection with, arising out of or in any way related to the transactions contemplated by the Loan
Documents or any act or omission or event occurring in connection therewith; and each Borrower
hereby waives, releases and agrees not to sue upon any such claim for any such damages, whether or
not accrued and whether or not known or suspected to exist in its favor.



     Section 13.15 Confidentiality. Each Agent and each Lender agrees to maintain
the confidentiality of the Information (as defined below), except that Information may be disclosed
(i) to it, its Affiliates and their respective directors, officers, employees, agents and
representatives (it being understood that the Persons to whom such disclosure is made will be
informed of the confidential nature of such Information and instructed to keep such Information
confidential), (ii) to the extent requested by any regulatory authority purporting to have
jurisdiction over it (including any self-regulatory authority, such as the National Association of
Insurance Commissioners), (iii) to the extent required by applicable laws or regulations or by any
subpoena or similar legal process, (iv) to any other party hereto, (v) in connection with the
exercise of any remedies hereunder or under any other Loan Document or any action or proceeding
relating to this Agreement or any other Loan Document or the enforcement of rights hereunder or
thereunder, (vi) subject to an agreement containing provisions substantially the same as those of
this Section 13.15, to (A) any assignee of or Participant in, or any prospective assignee of or
Participant in, any of its rights or obligations under this Agreement or (B) any actual or
prospective counterparty (or its advisors) to any swap or derivative transaction relating to any
Borrower and its obligations, (vii) with the consent of the Borrowers or (viii) to the extent such
Information (A) becomes publicly available other than as a result of a breach of this Section 13.15
or (B) becomes available to any Agent or any Lender on a non-confidential basis from a source other
than any Borrower. For purposes of this Section 13.15, “Information” means all



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information received from any Borrower or any Subsidiary thereof relating to any Borrower or any Subsidiary
thereof or any of their respective businesses, other than any such information that is available to
any Agent or any Lender on a non-confidential basis prior to disclosure by any Borrower or any
Subsidiary thereof, provided that, in the case of information received from the Borrower or
any of its Subsidiaries after the date hereof, such information is clearly identified at the time
of delivery as confidential. Any Person required to maintain the confidentiality of Information as
provided in this Section 13.15 shall be considered to have complied with its obligation to do so if
such Person has exercised the same degree of care to maintain the
confidentiality of such Information as such Person would accord to its own confidential
information.



     Section 13.16 Entire Agreement. The Loan Documents reflect the entire
agreement among the Borrowers, the Lenders and the Agents with respect to the matters set forth
herein and therein and supersede any prior agreements, commitments, drafts, communications,
discussions and understandings, oral or written, with respect thereto.



     Section 13.17 Payments Set Aside. To the extent that any payment by or on
behalf of any Credit Party under any Loan Document is made to any Agent or any Lender, or any Agent
or any Lender exercises its right of set-off as to any Credit Party, and such payment or the
proceeds of such set-off or any part thereof is subsequently invalidated, declared to be fraudulent
or preferential, set aside or required (including pursuant to any settlement entered into by any
Agent or such Lender in its discretion) to be repaid to a trustee, receiver or any other party, in
connection with any proceeding under the Bankruptcy Code or other U.S. Federal, state or foreign
liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium,
rearrangement, receivership, insolvency, reorganization, or similar debtor relief laws, or
otherwise, then (i) to the extent of such recovery, the obligation or part thereof originally
intended to be satisfied shall be revived and continued in full force and effect as if such payment
had not been made or such set-off had not occurred, and (ii) each Lender severally agrees to pay to
the Administrative Agent upon demand its applicable share of any amount so recovered from or repaid
by any Agent, plus interest thereon from the date of such demand to the date such payment is made
at a rate per annum equal to the Federal Funds Rate from time to time in effect.



     Section 13.18 No Advisory or Fiduciary Responsibility. In connection with all
aspects of each transaction contemplated hereby (including in connection with any amendment, waiver
or other modification hereof or of any other Loan Document), each Borrower acknowledges and agrees,
and acknowledges its Affiliates’ understanding, that:



          (a) (i) the arranging and other services regarding this Agreement provided by the
Administrative Agent (including in its capacity as arranger), are arm’s-length commercial
transactions between the Borrowers, each other Credit Party and their respective Affiliates, on the
one hand, and the Administrative Agent, on the other hand, (ii) each of such Borrower and the other
Credit Parties has consulted its own legal, accounting, regulatory and tax advisors to the extent
it has deemed appropriate, and (iii) such Borrower and each other Credit Party is capable of
evaluating, and understands and accepts, the terms, risks and conditions of the transactions
contemplated hereby and by the other Loan Documents;



73









 





          (b) (i) each Agent is and has been acting solely as a principal and, except as expressly
agreed in writing by the relevant parties, has not been, is not, and will not be acting as an
advisor, agent or fiduciary for such Borrower, any other Credit Party or any of their respective
Affiliates, or any other Person and (ii) each Agent has no obligation to such Borrower, any other
Credit Party or any of their respective Affiliates with respect to the transactions contemplated
hereby except those obligations expressly set forth herein and in the other Loan Documents; and



          (c) each Agent and its Affiliates may be engaged in a broad range of transactions that involve
interests that differ from those of such Borrower, the other Credit
Parties and their respective Affiliates, and each Agent has no obligation to disclose any of
such interests to such Borrower, any other Credit Party or any of their respective Affiliates. To
the fullest extent permitted by law, such Borrower (for itself and on behalf of the other Credit
Parties) hereby waives and releases any claims that it may have against any Agent with respect to
any breach or alleged breach of agency or fiduciary duty in connection with any aspect of any
transaction contemplated hereby.



     Section 13.19 Severability. Whenever possible, each provision of the Loan
Documents shall be interpreted in such manner as to be effective and valid under all applicable
laws and regulations. If, however, any provision of any of the Loan Documents shall be prohibited
by or invalid under any such law or regulation in any jurisdiction, it shall, as to such
jurisdiction, be deemed modified to conform to the minimum requirements of such law or regulation,
or, if for any reason it is not deemed so modified, it shall be ineffective and invalid only to the
extent of such prohibition or invalidity without affecting the remaining provisions of such Loan
Document, or the validity or effectiveness of such provision in any other jurisdiction.



     Section 13.20 Counterparts. This Agreement may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which taken together shall constitute but one
and the same agreement.



     Section 13.21 USA PATRIOT Act Notice. Each Lender that is subject to the Act
(as defined below) and the Administrative Agent (for itself and not on behalf of any Lender) hereby
notifies each Borrower that pursuant to the requirements of the USA PATRIOT Act (Title III of Pub.
L. 107-56 (signed into law October 26, 2001)) (the “Act”), it is required to obtain, verify
and record information that identifies such Borrower, which information includes the name and
address of such Borrower and other information that will allow such Lender or the Administrative
Agent, as applicable, to identify the Borrower in accordance with the Act. Each Borrower shall,
promptly following a request by the Administrative Agent or any Lender, provide all documentation
and other information that the Administrative Agent or such Lender requests in order to comply with
its ongoing obligations under applicable “know your customer” and anti-money laundering rules and
regulations, including the Act.



     Section 13.22 Recourse. The recourse and claims of the Agents, the Lenders,
any Indemnified Person and/or any other Secured Party under or in connection with this Agreement
and the other Loan Documents with respect to the Borrowers and its Affiliates shall be solely and
exclusively against the Borrowers and the Restricted Subsidiaries and, to the limited extent set
forth in the Texas Genco Pledge Agreement, to Texas Genco and its assets. The Agents and



74









 




Lenders agree that the Obligations are non-recourse to the equity or assets of NRG and its Subsidiaries
other than the Borrower, the Restricted Subsidiaries and, to the limited extent set forth in the
Texas Genco Pledge Agreement, Texas Genco and its assets. The foregoing acknowledgement, waiver
and agreement shall be enforceable by the Borrowers and any of their Affiliates.



[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]




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     IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the date first
above written.



	 	 	 	 	 
	 	NUCLEAR INNOVATION NORTH AMERICA LLC, as a Borrower

 	 
	 	By:  	/s/ Steve Winn
 	 
	 	 	Name:  	Steve Winn 	 
	 	 	Title:  	President & Chief Executive Officer 	 
	 
	 	NUCLEAR INNOVATION NORTH AMERICA INVESTMENTS LLC

 	 
	 	By:  	/s/ Steve Winn
 	 
	 	 	Name:  	Steve Winn 	 
	 	 	Title:  	President 	 
	 
	 	NINA TEXAS 3 LLC, as a Borrower

 	 
	 	By:  	/s/ Steve Winn
 	 
	 	 	Name:  	Steve Winn 	 
	 	 	Title:  	President 	 
	 
	 	NINA TEXAS 4 LLC, as a Borrower

 	 
	 	By:  	/s/ Steve Winn
 	 
	 	 	Name:  	Steve Winn 	 
	 	 	Title:  	President 	 
	 




 









 





	 	 	 	 	 
	 	TOSHIBA AMERICA NUCLEAR ENERGY CORPORATION, as

Administrative Agent and as Collateral Agent

 	 
	 	By:  	/s/ Fuyuki Saito
 	 
	 	 	Name:  	Fuyuki Saito 	 
	 	 	Title:  	President and Chief Executive Officer 	 
	 
	 	TOSHIBA AMERICA NUCLEAR ENERGY CORPORATION, as a

Lender

 	 
	 	By:  	/s/ Fuyuki Saito
 	 
	 	 	Name:  	Fuyuki Saito 	 
	 	 	Title:  	President and Chief Executive Officer