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First Supplemental Indenture |
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2000 |
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FIRST SUPPLEMENTAL INDENTURE
dated as of February 22, 2000
to
INDENTURE
dated as of February 22, 2000
among
NRG NORTHEAST GENERATING LLC
the GUARANTORS party hereto
and
THE CHASE MANHATTAN BANK, as Trustee
================================================================================
<PAGE> 2
FIRST SUPPLEMENTAL INDENTURE, dated as of February 22, 2000
(this "First Supplemental Indenture"), among NRG NORTHEAST GENERATING LLC, a
Delaware limited liability company (together with its successors and assigns,
the "Company"), its executive office and mailing address being at 1221 Nicollet
Mall, Suite 700, Minneapolis, Minnesota 55403, the GUARANTORS party hereto and
THE CHASE MANHATTAN BANK, a New York banking corporation (the "Trustee"), its
corporate trust office and mailing address being at 450 W. 33rd Street, 15th
Floor, New York, NY 10001 to the Indenture dated as of February 22, 2000 (the
"Original Indenture") among the Company, the Guarantors and the Trustee.
WHEREAS, the Company, the Guarantors and the Trustee have
heretofore executed and delivered the Original Indenture to provide for the
issuance from time to time of bonds, debentures, notes or other evidences of
indebtedness to be issued in one or more series;
WHEREAS, Sections 2.1, 2.3 and 14.1 of the Original Indenture
provide, among other things, that the Company and the Trustee may enter into
indentures supplemental to the Original Indenture for, among other things, the
purpose of establishing the designation, form, terms and provisions of Bonds of
any series as permitted by Sections 2.1, 2.3 and 14.1 of the Original Indenture;
WHEREAS, the Company (i) desires the issuance of three
separate series of Bonds to be designated as hereinafter provided and (ii) has
requested the Trustee to enter into this First Supplemental Indenture for the
purpose of establishing the designation, form, terms and provisions of the Bonds
of each such series;
WHEREAS, all action on the part of the Company necessary to
authorize the issuance of the Bonds under the Original Indenture and this First
Supplemental Indenture (the Original Indenture, as supplemented by this First
Supplemental Indenture, being hereinafter called the "Indenture") has been duly
taken; and
WHEREAS, all acts and things necessary to make the Bonds, when
executed by the Company and authenticated and delivered by the Trustee as
provided in the Original Indenture, the legal, valid and binding obligations of
the Company, and to constitute these presents a valid and binding supplemental
indenture according to its terms, have been done and performed, and the
execution of this First Supplemental Indenture and the creation and issuance
under the Indenture of said Bonds have in all respects been duly authorized, and
the Company, in the exercise of the legal right and power vested in it, executes
this First Supplemental Indenture and proposes to create, execute, issue and
deliver the Bonds.
NOW, THEREFORE, THIS FIRST SUPPLEMENTAL INDENTURE WITNESSETH:
That, in order to establish the designation, form, terms and
provisions of, and to authorize the authentication and delivery of, said Bonds,
and in consideration of the acceptance of the Bonds by the Holders thereof and
of other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto hereby agree as follows:
NRG Northeast Generating Supplemental Indenture
<PAGE> 3
-2-
ARTICLE I
DEFINITIONS
(a) Capitalized terms used herein and not otherwise defined
herein shall have the respective meanings ascribed thereto in the Original
Indenture.
(b) For all purposes of this First Supplemental Indenture,
except as otherwise expressly provided or unless the context otherwise requires,
the following terms shall have the following respective meanings (such meanings
shall apply equally to both the singular and plural forms of the respective
terms):
"Closing Date" means February 22, 2000, the date on which the
Initial Bonds are first issued and sold under the Indenture.
"Exchange Bonds" shall mean, collectively, the Series A-1
Senior Secured Bonds Due 2004, the Series B-1 Senior Secured Bonds Due 2010 and
the Series C-1 Senior Secured Bonds Due 2024 to be issued under the Indenture in
exchange for the Initial Bonds pursuant to the Exchange Offer.
"Exchange Offer" shall mean the offer by the Company, pursuant
to an effective registration statement filed with the SEC, to exchange all of
the Exchange Bonds for all of the outstanding Initial Bonds in accordance with
the terms and provisions of the Registration Rights Agreement.
"Exchange Offer Consummation Date" shall mean the date on
which the Exchange Offer is consummated in accordance with the terms and
provisions of the Registration Rights Agreement.
"Guarantor" means each of the Initial Guarantors and any
Subsequent Guarantor.
"Initial Bonds" means, collectively, the Series A Senior
Secured Bonds Due 2004, the Series B Senior Secured Bonds Due 2015 and the
Series C Senior Secured Bonds Due 2024, being issued by the Company under the
Indenture and sold to the Initial Purchasers pursuant to the Purchase Agreement
dated February 15, 2000 among the Company, Arthur Kill Power LLC, a Delaware
limited liability company, Astoria Gas Turbine Power LLC, a Delaware limited
liability company, Connecticut Jet Power LLC, a Delaware limited liability
company, Devon Power LLC, a Delaware limited liability company, Dunkirk Power
LLC, a Delaware limited liability company, Huntley Power LLC, a Delaware limited
liability company, Middletown Power LLC, a Delaware limited liability company,
Montville Power LLC, a Delaware limited liability company, Norwalk Power LLC, a
Delaware limited liability company, Oswego Harbor Power LLC, a Delaware limited
liability company, Somerset Power LLC, a Delaware limited liability company and
the Initial Purchasers.
"Initial Guarantors" means each of Arthur Kill Power LLC,
Astoria Power LLC, Connecticut Jet Power LLC, Devon Power LLC, Dunkirk Power
LLC, Huntley Power LLC,
NRG Northeast Generating Supplemental Indenture
<PAGE> 4
-3-
Middletown Power LLC, Montville Power LLC, Norwalk Harbor Power LLC, Oswego
Harbor Power LLC and Somerset Power LLC.
"Institutional Accredited Investor" shall have the meaning
ascribed thereto in Section 2.1(b) hereof.
"Make-Whole Premium" means an amount equal to the excess, if
any, of (i) the present value of all interest and principal payments scheduled
to become due after the date of the optional redemption by the Issuer in respect
of the Bonds being redeemed (such present value to be determined on the basis of
a discount rate equal to the sum of (a) the Treasury Rate and (b) 25 basis
points) over (ii) the Outstanding principal amount of the applicable Bonds.
"QIB" shall have the meaning given to such term in Section
2.1(b) hereof.
"Regular Record Date", for any Bond of a series for the
Scheduled Payment Date of any installment of principal thereof or payment of
interest thereon, means the 16th day (whether or not a Business Day) next
preceding such Scheduled Payment Date, or any other date specified for such
purpose in the form of Bond of such series attached to the Series Supplemental
Indenture relating to the Bonds of such series.
"Regulation S Global Bond" means one or more Bonds deposited
with a custodian for, and registered in the name of a nominee of, the DTC,
interest in which will be held for the benefit of purchasers of the Bonds in
offshore transactions under Regulation S.
"Resale Restriction Termination Date" means the period of two
years after the later of the original issue date of a Restricted Security and
the last date on which the Issuer or any affiliate of the Issuer was the owner
of such Restricted Security (or any predecessor of such Restricted Security).
"Restricted Securities" shall have the meaning given to such
term in Section 2.8 hereof.
"Rule 144A" means Rule 144A promulgated under the Securities
Act.
"Rule 144A Global Bond" means the one or more Bonds deposited
with a custodian for, and registered in the name of a nominee of, the DTC,
interests in which will be held for the benefit of U.S. purchasers of bonds who
are QIBs under Rule 144A.
"Series A Senior Secured Bonds Due 2004" shall have the
meaning given to such term in Section 2.1(a) hereof.
"Series B Senior Secured Bonds Due 2015" shall have the
meaning given to such term in Section 2.2(a) hereof.
"Series C Senior Secured Bonds Due 2024" shall have the
meaning given to such term in Section 2.3(a) hereof.
NRG Northeast Generating Supplemental Indenture
<PAGE> 5
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"Series A-1 Senior Secured Bonds Due 2004" shall have the
meaning given to such term in Section 2.1(a) hereof.
"Series B-1 Senior Secured Bonds Due 2015" shall have the
meaning given to such term in Section 2.2(a) hereof.
"Series C-1 Senior Secured Bonds Due 2024" shall have the
meaning given to such term in Section 2.3(a) hereof.
"Subsequent Guarantor" means any Subsidiary of the Issuer,
other than an Initial Guarantor, that the Issuer designates as a Guarantor
subsequent to the Closing Date.
"Treasury Rate" means the yield to maturity at the time of
computation of United States Treasury securities with a final maturity (as
compiled and published in the most recent Federal Reserve Statistical Release H.
15(519) which has become publicly available at least two Business Days in New
York prior to the Redemption Date (or, if such statistical release is no longer
published, any publicly available source or similar market data)) most nearly
equal to the remaining average life on the Redemption Date of the Bonds being
redeemed, provided, however, that if the period from the Redemption Date to the
maturity date of the series of Bonds being redeemed is less than one year, the
weekly average yield on actually traded United States Treasury securities
adjusted to a constant maturity of one year shall be used.
ARTICLE II
THE TERMS OF THE BONDS
SECTION 2.1. Terms of 8.065% Series A Senior Secured Bonds
Due 2004 and 8.065% Series A-1 Senior Secured Bonds Due 2004.
(a) There are hereby created two series of Bonds designated:
(i) 8.065% Series A Senior Secured Bonds Due 2004, in the aggregate principal
amount which at any time may not exceed $320,000,000 (the "Series A Senior
Secured Bonds Due 2004"), and (ii) 8.065% Series A-1 Senior Secured Bonds Due
2004, in an aggregate principal amount which at any time may not exceed
$320,000,000 less the aggregate principal amount of Series A Senior Secured
Bonds Due 2004 then Outstanding (the "Series A-1 Senior Secured Bonds Due
2004"). The Series A Senior Secured Bonds Due 2004 may forthwith be executed by
the Company and delivered to the Trustee for authentication and delivery by the
Trustee in accordance with the provisions of Section 2.4 of the Original
Indenture. On or prior to the Exchange Offer Consummation Date for the Series A
Senior Secured Bonds Due 2004, the Company may execute and deliver to the
Trustee, and upon delivery of an Issuer Order to the Trustee in accordance with
the provisions of Section 2.4 of the Original Indenture, the Trustee shall
authenticate and deliver, the Series A-1 Senior Secured Bonds Due 2004 in
exchange for Series A Senior Secured Bonds Due 2004 validly surrendered to the
Trustee pursuant to the Exchange Offer. Such Issuer Order shall specify the
amount of the Series A-1 Senior Secured Bonds Due 2004 to be authenticated and
the date on which such Series A-1 Senior Secured
NRG Northeast Generating Supplemental Indenture
<PAGE> 6
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Bonds Due 2004 are to be authenticated. The aggregate principal amount of the
Series A Senior Secured Bonds Due 2004 together with the Series A-1 Senior
Secured Bonds Due 2004 Outstanding at any time may not exceed $320,000,000,
except as provided in the Original Indenture.
(b) The Series A Senior Secured Bonds Due 2004, (i) if issued
to Persons that are institutional "accredited investors" meeting the
requirements of Rule 501(a)(1), (2), (3) or (7) under the Securities Act (each,
an "Institutional Accredited Investor") that are not QIBs (as defined below),
shall be issued in definitive form, substantially in the form of Schedule 1-A
hereto, registered in the name of the purchaser thereof and (ii) (A) if issued
to "qualified institutional buyers" (as defined in Rule 144A under the
Securities Act; each, a "QIB") in reliance on Rule 144A under the Securities
Act, or (B) if issued in offshore transactions to Non-U.S. Persons in reliance
on Regulation S shall be issued in the form of one or more Global Bonds
substantially in the form of Schedule 1-B hereto, shall be deposited on behalf
of the purchasers of the Initial Bonds represented thereby with the Trustee (at
its respective address for notices set forth in Section 1.4 of the Original
Indenture), as custodian for the Registered Depositary, shall be registered in
the name of the Registered Depositary or a nominee of the Registered Depositary
and the aggregate principal amount of Series A Senior Secured Bonds Due 2004 so
issued may from time to time be increased or decreased by adjustments made on
the records of the Trustee and the Registered Depositary or its nominee.
(c) Each of the Series A Senior Secured Bonds Due 2004 and
the Series A-1 Senior Secured Bonds Due 2004 shall have and be subject to such
other terms as provided in the Indenture.
(d) The forms of the Series A-1 Senior Secured Bonds Due 2004
shall be substantially identical to the forms of the Series A Senior Secured
Bonds Due 2004, except that: (i) the title of the Series A-1 Senior Secured
Bonds Due 2004 shall be "8.065% Series A-1 Senior Secured Bonds Due 2004"; (ii)
the two paragraphs of the legend appearing immediately beneath the title of such
forms of the Series A Senior Secured Bonds Due 2004 shall be omitted; (iii) the
first sentence of the first paragraph of all such forms shall read in its
entirety as follows:
"NRG NORTHEAST GENERATING LLC, a Delaware limited liability company
(hereinafter called the "Company", which term includes any successor or
assign under the Indenture referred to below), for value received hereby
promises to pay to [________________], or its registered assigns, the
outstanding Principal Amount hereof [-- if the Bond is in the form of a
global security insert, "after subtracting the aggregate principal amount
of any definitive Bonds issued in exchange for a portion or portions
hereof"], such payment to be made in semiannual installments on June 15
and December 15 of each year (commencing December 15, 2000) and ending on
the final Scheduled Payment Date set forth above, each such installment
to be in the amount and payable on the date set forth on Annex A attached
hereto (provided that the portion of the Principal Amount remaining
unpaid on the final Scheduled Payment Date, together with all interest
accrued thereon, shall in any and all cases be due and payable on the
final Scheduled Payment Date), and to pay interest on the unpaid portion
of the Principal
NRG Northeast Generating Supplemental Indenture
<PAGE> 7
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Amount at the interest rate set forth above from the most recent
Scheduled Payment Date to which interest has been paid or duly provided
for or, if no interest has been paid or duly provided for, from the date
of the last interest payment made on the Series A Senior Secured Bonds
Due 2004 (as defined in the First Supplemental Indenture) occurring prior
to the issue date set forth above or, if no interest has been paid or
duly provided for on the Series A Senior Secured Bonds Due 2004, from
February 22, 2000 semiannually on June 15 and December 15 in each year
commencing June 15, 2000 (provided, if the issue date is on or after a
Regular Record Date and prior to the related Scheduled Payment Date, the
Company shall pay interest from the Scheduled Payment Date immediately
succeeding the issue date semiannually on June 15 and December 15 in each
year commencing June 15, 2000) until the Principal Amount is paid in full
or payment thereof is duly provided for.";
(iv) the thirteenth and fourteenth paragraphs of the reverse of the forms of the
Series A Senior Secured Bonds Due 2004 shall be omitted; and (v) the first
sentence of the first paragraph of the reverse of all such forms shall read in
its entirety as follows: "This bond is one of an authorized issue of Bonds of
the Company known as its 8.065% Series A-1 Senior Secured Bonds Due 2004 (the
"Bonds")."
SECTION 2.2. Terms of 8.842% Series B Senior Secured Bonds Due
2015 and 8.842% Series B-1 Senior Secured Bonds Due 2015.
(a) There are hereby created two series of Bonds designated:
(i) 8.842% Series B Senior Secured Bonds Due 2015, in the aggregate principal
amount which at any time may not exceed $130,000,000 (the "Series B Senior
Secured Bonds Due 2015"), and (ii) 8.842% Series B-1 Senior Secured Bonds Due
2010, in an aggregate principal amount which at any time may not exceed
$130,000,000 less the aggregate principal amount of Series B Senior Secured
Bonds Due 2015 then Outstanding (the "Series B-1 Senior Secured Bonds Due
2015"). The Series B Senior Secured Bonds Due 2015 may forthwith be executed by
the Company and delivered to the Trustee for authentication and delivery by the
Trustee in accordance with the provisions of Section 2.4 of the Original
Indenture. On or prior to the Exchange Offer Consummation Date for the Series B
Senior Secured Bonds Due 2015, the Company may execute and deliver to the
Trustee, and upon delivery of an Issuer Order to the Trustee in accordance with
the provisions of Section 2.4 of the Original Indenture, the Trustee shall
authenticate and deliver, the Series B-1 Senior Secured Bonds Due 2015 in
exchange for Series B Senior Secured Bonds Due 2015 validly surrendered to the
Trustee pursuant to the Exchange Offer. Such Issuer Order shall specify the
amount of the Series B-1 Senior Secured Bonds Due 2015 to be authenticated and
the date on which such Series B-1 Senior Secured Bonds Due 2015 are to be
authenticated. The aggregate principal amount of the Series B Senior Secured
Bonds Due 2015 together with the Series B-1 Senior Secured Bonds Due 2015
Outstanding at any time may not exceed $130,000,000, except as provided in the
Original Indenture.
(b) The Series B Senior Secured Bonds Due 2015, (i) if issued
to Institutional Accredited Investors that are not QIBs, shall be issued in
definitive form, substantially in the form of Schedule 2-A hereto, registered in
the name of the purchaser thereof and (ii) (A) if
NRG Northeast Generating Supplemental Indenture
<PAGE> 8
-7-
issued to (A) QIBs in reliance on Rule 144A under the Securities Act, or (B) if
issued in offshore transactions to Non-U.S. Persons in reliance on Regulation S
shall be issued in the form of one or more Global Bonds substantially in the
form of Schedule 2-B hereto, shall be deposited on behalf of the purchasers of
the Initial Bonds represented thereby with the Trustee (at its respective
address for notices set forth in Section 1.4 of the Original Indenture), as
custodian for the Registered Depositary, shall be registered in the name of the
Registered Depositary or a nominee of the Registered Depositary and the
aggregate principal amount of Series B Senior Secured Bonds Due 2015 so issued
may from time to time be increased or decreased by adjustments made on the
records of the Trustee and the Registered Depositary or its nominee.
(c) Each of the Series B Senior Secured Bonds Due 2015 and the
Series B-1 Senior Secured Bonds shall have and be subject to such other terms as
provided in the Indenture.
(d) The forms of the Series B-1 Senior Secured Bonds Due 2015
shall be substantially identical to the forms of the Series B Senior Secured
Bonds Due 2015, except that: (i) the title of the Series B-1 Senior Secured
Bonds Due 2015 shall be "8.842% Series B-1 Senior Secured Bonds Due 2015"; (ii)
the two paragraphs of the legend appearing immediately beneath the title of such
forms of the Series B Senior Secured Bonds Due 2015 shall be omitted; (iii) the
first sentence of the first paragraph of all such forms shall read in its
entirety as follows:
"NRG NORTHEAST GENERATING LLC, a Delaware limited liability company
(hereinafter called the "Company", which term includes any successor or
assign under the Indenture referred to below), for value received hereby
promises to pay to [________________], or its registered assigns, the
outstanding Principal Amount hereof [-- if the Bond is in the form of a
global security insert, "after subtracting the aggregate principal amount
of any definitive Bonds issued in exchange for a portion or portions
hereof"], such payment to be made in semiannual installments on June 15
and December 15 of each year (commencing June 15, 2007) and ending on the
final Scheduled Payment Date set forth above, each such installment to be
in the amount and payable on the date set forth on Annex A attached
hereto (provided that the portion of the w remaining unpaid on the final
Scheduled Payment Date, together with all interest accrued thereon, shall
in any and all cases be due and payable on the final Scheduled Payment
Date), and to pay interest on the unpaid portion of the Principal Amount
at the interest rate set forth above from the most recent Scheduled
Payment Date to which interest has been paid or duly provided for or, if
no interest has been paid or duly provided for, from the date of the last
interest payment made on the Series B Senior Secured Bonds Due 2015 (as
defined in the First Supplemental Indenture) occurring prior to the issue
date set forth above or, if no interest has been paid or duly provided
for on the Series B Senior Secured Bonds Due 2015, from February 22, 2000
semiannually on June 15 and December 15 in each year commencing June 15,
2000 (provided, if the issue date is on or after a Regular Record Date
and prior to the related Scheduled Payment Date, the Company shall pay
interest from the Scheduled Payment Date immediately succeeding the issue
date semiannually on June 15 and December 15 in each year commencing June
15, 2000) until the Principal Amount is paid in full or payment thereof
is duly provided for.";
NRG Northeast Generating Supplemental Indenture
<PAGE> 9
-8-
(iv) the thirteenth and fourteenth paragraphs of the reverse of the forms of the
Series B Senior Secured Bonds Due 2015 shall be omitted; and (v) the first
sentence of the first paragraph of the reverse of all such forms shall read in
its entirety as follows: "This bond is one of an authorized issue of Bonds of
the Company known as its 8.842% Series B-1 Senior Secured Bonds Due 2015 (the
"Bonds")."
SECTION 2.3. Terms of 9.292% Series C Senior Secured Bonds
Due 2024 and 9.292% Series C-1 Senior Secured Bonds Due 2024.
(a) There are hereby created two series of Bonds designated:
(i) 9.292% Series C Senior Secured Bonds Due 2024, in the aggregate principal
amount which at any time may not exceed $300,000,000 (the "Series C Senior
Secured Bonds Due 2024"), and (ii) 9.292% Series C-1 Senior Secured Bonds Due
2024, in an aggregate principal amount which at any time may not exceed
$300,000,000 less the aggregate principal amount of Series C Senior Secured
Bonds Due 2024 then Outstanding (the "Series C-1 Senior Secured Bonds Due
2024"). The Series C Senior Secured Bonds Due 2024 may forthwith be executed by
the Company and delivered to the Trustee for authentication and delivery by the
Trustee in accordance with the provisions of Section 2.4 of the Original
Indenture. On or prior to the Exchange Offer Consummation Date for the Series C
Senior Secured Bonds Due 2024, the Company may execute and deliver to the
Trustee, and upon delivery of an Issuer Order to the Trustee in accordance with
the provisions of Section 2.4 of the Original Indenture, the Trustee shall
authenticate and deliver, the Series C-1 Senior Secured Bonds Due 2024 in
exchange for Series C Senior Secured Bonds Due 2024 validly surrendered to the
Trustee pursuant to the Exchange Offer. Such Issuer Order shall specify the
amount of the Series C-1 Senior Secured Bonds Due 2024 to be authenticated and
the date on which such Series C-1 Senior Secured Bonds Due 2024 are to be
authenticated. The aggregate principal amount of the Series C Senior Secured
Bonds Due 2024 together with the Series C-1 Senior Secured Bonds Due 2024
Outstanding at any time may not exceed $300,000,000, except as provided in the
Original Indenture.
(b) The Series C Senior Secured Bonds Due 2024, (i) if issued
to Institutional Accredited Investors that are not QIBs, shall be issued in
definitive form, substantially in the form of Schedule 3-A hereto, registered in
the name of the purchaser thereof and (ii) (A) if issued to QIBs in reliance on
Rule 144A under the Securities Act, (B) if issued in offshore transactions to
Non-U.S. Persons in reliance on Regulation S shall be issued in the form of one
or more Global Bonds substantially in the form of Schedule 3-B hereto, shall be
deposited on behalf of the purchasers of the Initial Bonds represented thereby
with the Trustee (at its respective address for notices set forth in Section 1.4
of the Original Indenture), as custodian for the Registered Depositary, shall be
registered in the name of the Registered Depositary or a nominee of the
Registered Depositary and the aggregate principal amount of Series C Senior
Secured Bonds Due 2024 so issued may from time to time be increased or decreased
by adjustments made on the records of the Trustee and the Registered Depositary
or its nominee.
(c) Each of the Series C Senior Secured Bonds Due 2024 and
the Series C-1 Senior Secured Bonds shall have and be subject to such other
terms as provided in the Indenture.
NRG Northeast Generating Supplemental Indenture
<PAGE> 10
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(d) The forms of the Series C-1 Senior Secured Bonds Due 2024
shall be substantially identical to the forms of the Series C Senior Secured
Bonds Due 2024, except that: (i) the title of the Series C-1 Senior Secured
Bonds Due 2024 shall be "9.292% Series C-1 Senior Secured Bonds Due 2024"; (ii)
the two paragraphs of the legend appearing immediately beneath the title of such
forms of the Series C Senior Secured Bonds Due 2024 shall be omitted; (iii) the
first sentence of the first paragraph of all such forms shall read in its
entirety as follows:
"NRG NORTHEAST GENERATING LLC, a Delaware limited liability company
(hereinafter called the "Company", which term includes any successor or
assign under the Indenture referred to below), for value received hereby
promises to pay to [________________], or its registered assigns, the
outstanding Principal Amount hereof [-- if the Bond is in the form of a
global security insert, "after subtracting the aggregate principal amount
of any definitive Bonds issued in exchange for a portion or portions
hereof"], such payment to be made in semiannual installments on June 15
and December 15 of each year (commencing December 15, 2015) and ending on
the final Scheduled Payment Date set forth above, each such installment
to be in the amount and payable on the date set forth opposite on Annex A
attached hereto (provided that the portion of the Principal Amount
remaining unpaid on the final Scheduled Payment Date, together with all
interest accrued thereon, shall in any and all cases be due and payable
on the final Scheduled Payment Date), and to pay interest on the unpaid
portion of the Principal Amount at the interest rate set forth above from
the most recent Scheduled Payment Date to which interest has been paid or
duly provided for or, if no interest has been paid or duly provided for,
from the date of the last interest payment made on the Series C Senior
Secured Bonds Due 2024 (as defined in the First Supplemental Indenture)
occurring prior to the issue date set forth above or, if no interest has
been paid or duly provided for on the Series C Senior Secured Bonds Due
2024, from February 22, 2000 semiannually on June 15 and December 15 in
each year commencing June 15, 2000 (provided, if the issue date is on or
after a Regular Record Date and prior to the related Scheduled Payment
Date, the Company shall pay interest from the Scheduled Payment Date
immediately succeeding the issue date semiannually on June 15 and
December 15 in each year commencing June 15, 2000) until the Principal
Amount is paid in full or payment thereof is duly provided for.";
(iv) the thirteenth and fourteenth paragraphs of the reverse of the forms of the
Series C Senior Secured Bonds Due 2024 shall be omitted; and (v) the first
sentence of the first paragraph of the reverse of all such forms shall read in
its entirety as follows: "This bond is one of an authorized issue of Bonds of
the Company known as its 9.292% Series C-1 Senior Secured Bonds Due 2024 (the
"Bonds")."
SECTION 2.4. Denominations.
Each Bond of a series created hereby shall be issued in fully
registered form without coupons in minimum denominations of $100,000 and
integral multiples of $1,000 in excess thereof.
NRG Northeast Generating Supplemental Indenture
<PAGE> 11
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SECTION 2.5. Interest and Principal.
Each Bond of a series created hereby shall bear interest on
the unpaid principal amount thereof from time to time outstanding from the date
thereof until such amount is paid in full at the rate of interest set forth in
the forms of such series attached hereto. The principal amount of each Bond of a
series created hereby shall be due and payable in installments as set forth in
the form of Bond of such series attached hereto.
Payment of principal of and interest on each Bond of a series
created hereby shall be made (a) if the Company so elects, by check mailed to
the Holder at his or her registered address or (b) otherwise as provided in
Section 2.10 of the Original Indenture; provided that the final installment of
principal payable with respect to each Bond of a series created hereby shall be
payable as provided in Section 8.5 of the Original Indenture (in the case of any
such Bond redeemed) or payable upon presentation and surrender of each such Bond
at the Place of Payment.
SECTION 2.6. Redemption; Repurchase.
(a) Optional Redemption. Subject to the provisions of Section
8.1 of the Original Indenture, the Bonds of each series created hereby are
subject to optional redemption under the conditions and on the terms set forth
in the Original Indenture at a price equal to the Redemption Price plus the
Make-Whole Premium.
(b) Mandatory Redemption. Subject to the provisions of Section
8.3 of the Original Indenture, the Bonds of each series created hereby are
subject to mandatory redemption under the conditions and on the terms set forth
in the Original Indenture at a price equal to the Redemption Price, but without
a Make-Whole Premium.
SECTION 2.7. Exchange Offer.
Any Initial Bonds which are presented to the Security
Registrar for exchange pursuant to an Exchange Offer in accordance with the
terms thereof shall be exchanged for Exchange Bonds of the same series and of
equal principal amount upon surrender to the Security Registrar of the Initial
Bonds to be exchanged; provided, however, that the Initial Bonds so surrendered
for exchange shall be duly endorsed and accompanied by a letter of transmittal
or written instrument of transfer in form satisfactory to the Company and the
Security Registrar, duly executed by the Holder thereof or its attorney who
shall be duly authorized in writing to execute such document. Whenever any
Initial Bonds are so surrendered for exchange, the Company shall execute, and
the Trustee shall authenticate and deliver to the Security Registrar, the same
aggregate principal amount of Exchange Bonds of the same series that have been
surrendered.
SECTION 2.8. Restrictions on Transfer and Exchange of Initial
Bonds.
(a) Initial Bonds in definitive form, all Global Bonds and all
beneficial interests in one or more Global Bonds, and all Bonds (other than
Exchange Bonds or Bonds sold pursuant
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to an effective registration statement) issued upon registration of transfer of,
or in exchange for, any such Bonds, shall be restricted securities (within the
meaning of Rule 144 under the Securities Act; hereinafter, collectively,
"Restricted Securities") and shall be subject to the restrictions on transfer
provided in the legend set forth on the Restricted Securities. The Holder of
each Restricted Security, by such Holder's acceptance thereof, agrees to be
bound by such restrictions on transfer. All Restricted Securities shall bear the
legend set forth on the face of the Restricted Securities.
Accredited Investors that are not QIBs may hold interests in
the Initial Bonds only in definitive form. Any beneficial interest in a Global
Bond that is a Restricted Security and is transferred to an Accredited Investor
which is not a QIB will be delivered in the form of a definitive Bond and will
cease to be an interest in such Global Bond.
A holder of a beneficial interest in a Global Bond may
exchange such beneficial interest for one or more definitive Bonds if (i) the
Issuer notifies the Trustee in writing that the Registered Depositary is
unwilling or unable to continue as depositary for such Global Bond, or the
Registered Depositary ceases to be a "Clearing Agency" registered under the
Exchange Act and a successor depositary is not appointed by the Issuer within 90
days of such notice or cessation or (ii) the Issuer, at its option, notifies the
Trustee in writing that it elects to cause the issuance of definitive Bonds. If
an exchange of a Global Bond for a definitive Bond is made pursuant to clauses
(i) or (ii) above, then, upon surrender by the Registered Depositary of any
beneficial interest in the Global Bonds, definitive Bonds will be issued to each
person that the Registered Depositary identifies as the beneficial owner of the
Bonds represented by the Global Bonds. Upon any such issuance, the Trustee will
be required to register such definitive Bonds in the name of such person or
persons (or nominee of any thereof) and cause the same to be delivered thereto.
Unless determined otherwise by the Company in accordance with applicable law,
each such Global Bond and all definitive Bonds, upon transfer or exchange of
beneficial interests in a Global Bond (other than for an Exchange Bond) will
bear the legend set forth on the face of the Restricted Securities.
Each Holder of a definitive Bond or a beneficial interest in a
Global Bond that is a Restricted Security will be deemed to have represented and
agreed to offer, sell, pledge or otherwise transfer such Initial Bonds or
beneficial interest only in accordance with the legend set forth on the face of
the Restricted Securities.
Upon the transfer, exchange or replacement of definitive Bonds
bearing the legend, or upon request for removal of the legend on a definitive
Bond, the Trustee will deliver Bonds that do not bear such legend if the Trustee
has been provided evidence satisfactory to the Company (which may include an
opinion of counsel) that neither the legend nor the restrictions on transfer set
forth therein are required to ensure compliance with the Securities Act.
Subject to the restrictions on transfer and exchange set forth
herein and in the Original Indenture, the holder of any Bond may transfer or
exchange such Bond in whole or in part (in a principal amount equal to the
minimum authorized denomination or any greater amount which is an integral
multiple of $1,000 or a lesser amount if the holder is transferring or
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exchanging all of the Bonds held by such holder) by surrendering it at the
Corporate Trust Office of the Trustee or at the office of the transfer agent,
together with (a) an executed instrument of assignment and transfer
substantially in the form set forth in Exhibit A to this First Supplemental
Indenture (in the case of a transfer) or a written request for exchange (in the
case of exchange) and (b) additional certifications and evidence that such
transfer or exchange is in compliance with the Securities Act and the
restrictions on transfer set forth in such Bond as may be required pursuant to
the terms of this First Supplemental Indenture.
Upon surrender of a definitive Bond for transfer or exchange
with the appropriate documentation, or notification of a request for transfer or
exchange of a beneficial interest in a Global Bond for a definitive Bond or
Bonds, subject to the restrictions described herein and in the Original
Indenture, the Trustee will, within five Business Days of such request if made
at the Corporate Trust Office of the Trustee, or within 10 Business Days if made
at the office of a transfer agent (other than the Trustee), authenticate and
deliver at the Corporate Trust Office of the Trustee or the office of the
transfer agent, as the case may be, to the transferee (in the case of transfer)
or Holder (in the case of exchange) or send by first class mail at the risk of
the transferee (in the case of transfer) or Holder (in the case of exchange) to
such address as the transferee or Holder, as applicable, may request, a
definitive Bond or Bonds, as the case may require, for a like aggregate
principal amount and in such authorized denomination or denominations as may be
requested. The presentation for transfer or exchange of any definitive Bond will
not be valid unless made at the Corporate Trust Office of the Trustee or at the
office of a transfer agent by the registered holder in person or by a duly
authorized attorney-in-fact. The Security Registrar is not required (a) to
issue, register the transfer of or exchange any Initial Bonds or any series
during a period beginning at the opening of business 15 days before the day of
the mailing of a notice of redemption of Bonds of such series selected for
redemption and ending at the close of business on the day of such mailing or (b)
to issue, register the transfer of or exchange any Initial Bond selected for
redemption in whole or in part except the unredeemed portion of any Initial Bond
selected for redemption in part. No service charge will be required of any
Holder participating in any transfer or exchange of Bonds in respect of such
transfer or exchange, but, with certain exceptions, payment may be required of
any tax or other governmental charges that may be imposed in connection
therewith.
(b) The following provisions shall apply with respect to any
proposed transfer of a Rule 144A Global Bond or a beneficial interest therein or
an Institutional Accredited Investor Bond prior to the expiration of the Resale
Restriction Termination Date:
(i) a transfer of a Rule 144A Global Bond or a
beneficial interest therein or an Institutional Accredited Investor Bond
to a QIB shall be made upon the representation of the transferee that it
is purchasing the Bond for its own account or an account with respect to
which it exercises sole investment discretion and that it and any such
account is a QIB and is aware that the sale to it is being made in
reliance on Rule 144A and acknowledges that it has received such
information regarding the Issuer and the Guarantors as the undersigned
has requested pursuant to Rule 144A or has determined not to request such
information and that it is aware that the transferor is
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relying upon its foregoing representations in order to claim the
exemption from registration provided by Rule 144A;
(ii) a transfer of a Rule 144A Global Bond or a
beneficial interest therein or an Institutional Accredited Investor Bond
to an Institutional Accredited Investor shall be made upon receipt by the
Trustee or its agent of a certificate substantially in the form set forth
in Exhibit B annexed hereto from the proposed transferee and, if
requested by the Issuer or the Trustee, the delivery of an opinion of
counsel, certifications and/or other information satisfactory to each of
them; and
(iii) a transfer of a Rule 144A Global Bond or a
beneficial interest therein or an Institutional Accredited Investor Bond
to a Non-U.S. Person shall be made upon receipt by the Trustee or its
agent of a certificate substantially in the form set forth in Exhibit C
annexed hereto from the proposed transferee and, if requested by the
Issuer or the Trustee, the delivery of an opinion of counsel,
certifications and/or other information satisfactory to each of them.
(c) The following provisions shall apply with respect to any
proposed transfer of a Regulation S Global Bond prior to the expiration of the
Distribution Compliance Period:
(i) a transfer of a Regulation S Global Bond or a
beneficial interest therein to a QIB shall be made upon the
representation of the transferee that it is purchasing the Bond for its
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