EX-4.32 34 a2204663zex-4_32.htm EX-4.32

Exhibit 4.32

 

FORTY-THIRD SUPPLEMENTAL INDENTURE

 

FORTY-THIRD SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”), dated as of April 22, 2011, among NRG Energy, Inc., a Delaware corporation (the “Company”), the guarantors set forth on the signature pages hereto (the “Guarantors”) and Law Debenture Trust Company of New York, as trustee under the indentures referred to below (the “Trustee”).

 

W I T N E S S E T H

 

WHEREAS, the Thirty-Sixth Supplemental Indenture (the “Thirty-Sixth Supplemental Indenture”), dated as of August 20, 2010, among the Company, the guarantors named therein and the Trustee, which amended the indenture (the “Base Indenture” and together with the Thirty-Sixth Supplemental Indenture, the “Indenture”), dated as of February 2, 2006, between the Company and the Trustee, providing for the original issuance of an aggregate principal amount of $1,100 million of 8.25% Senior Notes due 2020 (the “Initial Notes”), and, subject to the terms of the Thirty-Sixth Supplemental Indenture, future unlimited issuances of 8.25% Senior Notes due 2020 (the “Additional Notes,” and together with the Initial Notes, the “Notes”), currently permits Notes to be issued in denominations of $5,000 and integral multiples of $5,000;

 

WHEREAS, the Company wishes to issue Notes in minimum denominations of $2,000 and integral multiples of $1,000 in excess thereof; and

 

WHEREAS, pursuant to Section 9.01(4) of the Thirty-Sixth Supplemental Indenture, the Trustee, the Company and the Guarantors are authorized to amend the Thirty-Sixth Supplemental Indenture to provide additional rights or benefits to the Holders of Notes.

 

NOW THEREFORE, in consideration of the foregoing and for good and valuable consideration, the receipt of which is hereby acknowledged, the Trustee, the Company and the Guarantors mutually covenant and agree as follows:

 

1.             Capitalized Terms.  Unless otherwise defined in this Supplemental Indenture, capitalized terms used herein without definition shall have the meanings assigned to them in the Indenture.

 

2.             Amendments to the Thirty-Sixth Supplemental Indenture.  Effective upon the date hereof:

 

(a)   Section 2.01(a) of the Thirty-Sixth Supplemental Indenture shall be amended by deleting the sentence “The Notes shall be in denominations of $5,000 and integral multiples of $5,000.” and replacing it with “The Notes shall be in minimum denominations of $2,000 and integral multiples of $1,000 in excess thereof.”.

 

(b)   The third and fourth paragraphs of Section 3.02 of the Thirty-Sixth Supplemental Indenture shall be deleted in their entirety and replaced with the following:

 

“The Trustee shall promptly notify the Company in writing of the Notes selected for redemption and, in the case of any Note selected for partial redemption, the principal amount thereof to be redeemed. Notes and portions of Notes selected shall be in amounts of $2,000 or whole multiples of $1,000 in excess of $2,000; except that if all of the Notes of a Holder are to be redeemed, the entire outstanding amount of Notes held by such Holder, even if not a multiple of $1,000, shall be redeemed. Except as provided in the preceding sentence, provisions of this Supplemental Indenture that apply to Notes called for redemption also apply to portions of Notes called for redemption.

 

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No Notes of $2,000 or less shall be redeemed in part. Notices of redemption shall be mailed by first class mail at least 30 but not more than 60 days before the redemption date to each Holder of Notes to be redeemed at its registered address, except that redemption notices may be mailed more than 60 days prior to a redemption date if the notice is issued in connection with a defeasance of the Notes or a satisfaction and discharge of this Supplemental Indenture.”

 

(c)   Subsection (5) within Section 3.09 of the Thirty-Sixth Supplemental Indenture shall be deleted in its entirety and replaced with the following:

 

“(5) that Holders electing to have a Note purchased pursuant to an Asset Sale Offer may elect to have Notes purchased in minimum denominations of $2,000, or integral multiples of $1,000 in excess thereof;”

 

(d)   Subsection (8) within Section 3.09 of the Thirty-Sixth Supplemental Indenture shall be deleted in its entirety and replaced with the following:

 

“(8) that, if the aggregate principal amount of Notes and other pari passu Indebtedness surrendered in connection with the Asset Sale Offer exceeds the Offer Amount, the Company shall select the Notes and other pari passu Indebtedness to be purchased on a pro rata basis based on the principal amount of Notes and such other pari passu Indebtedness surrendered (with such adjustments as may be deemed appropriate by the Company so that only Notes in minimum denominations of $2,000, or integral multiples of $1,000 in excess thereof, will be purchased); and”

 

(e)   The first sentence of Section 4.14(a) of the Thirty-Sixth Supplemental Indenture shall be deleted in its entirety and replaced with the following:

 

“Upon the occurrence of a Change of Control Triggering Event, each Holder of Notes shall have the right to require the Company to make an offer (a “Change of Control Offer”) to each Holder to repurchase all or any part (equal to $2,000 or integral multiples of $1,000 in excess thereof) of each Holder’s Notes at a purchase price equal to 101% of the aggregate principal amount of the Notes plus accrued and unpaid interest on the Notes, if any, to the date of purchase, subject to the rights of Holders of Notes on the relevant record date to receive interest due on the relevant interest payment date (the “Change of Control Payment”).”

 

(f)    Subsection (7) within Section 4.14 of the Thirty-Sixth Supplemental Indenture shall be deleted in its entirety and replaced with the following:

 

“(7) that Holders whose Notes are being purchased only in part will be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered, which unpurchased portion must be equal to $2,000 in principal amount or integral multiples of $1,000 in excess thereof.”

 

(g)   The last paragraph of Section 4.14(b) of the Thirty-Sixth Supplemental Indenture shall be deleted in its entirety and replaced with the following:

 

“The Paying Agent shall promptly distribute to each Holder of Notes properly tendered the Change of Control Payment for the Notes, and the Trustee shall promptly

 

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authenticate and deliver (or cause to be transferred by book entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes surrendered, if any; provided that each new Note shall be in a principal amount of $2,000 or integral multiples of $1,000 in excess thereof. The Company shall publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date.”

 

(h)   The first sentence of Section 6(a) of Exhibit A to the Thirty-Sixth Supplemental Indenture shall be deleted in its entirety and replaced with the following:

 

“If there is a Change of Control Triggering Event, the Company shall be required to make an offer (a “Change of Control Offer”) to repurchase all or any part (equal to $2,000 or integral multiples of $1,000 in excess thereof) of each Holder’s Notes at a purchase price equal to 101% of the aggregate principal amount of the Notes plus accrued and unpaid interest to the date of purchase (the “Change of Control Payment”).”

 

(i)    The second sentence of Section 7 of Exhibit A to the Thirty-Sixth Supplemental Indenture shall be deleted in its entirety and replaced with the following:

 

“Notes in denominations larger than $2,000 may be redeemed in part but only in whole multiples of $1,000 in excess thereof, unless all of the Notes held by a Holder are to be redeemed.”

 

(j)    The first sentence of Section 8 of Exhibit A to the Thirty-Sixth Supplemental Indenture shall be deleted in its entirety and replaced with the following:

 

“The Notes are in registered form without coupons in minimum denominations of $2,000 and integral multiples of $1,000 in excess thereof.”

 

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

 

4.             Counterparts. The parties may sign any number of copies of this Supplemental Indenture.  Each signed copy shall be an original, but all of them together represent the same agreement.

 

5.             Effect of Headings.  The Section headings herein are for convenience only and shall not affect the construction hereof.

 

6.             The Trustee.  The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Supplemental Indenture or for or in respect of the recitals contained herein, all of which recitals are made solely by the Company and the Guarantors.

 

7.             Ratification of Indenture; Supplemental Indenture Part of Indenture.  Except as expressly amended hereby, the Indenture is in all respects ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect.  This Supplemental Indenture shall form a part of the Indenture for all purposes, and every Holder of Notes heretofore or hereafter authenticated and delivered shall by bound hereby.

 

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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed and attested, all as of the date first above written.

 

 

 

 

ISSUER:

 

 

 

 

 

NRG ENERGY, INC.

 

 

 

 

 

 

 

 

By:

/s/ Christopher Sotos

 

 

Name:

Christopher Sotos

 

 

Title:

Vice President and Treasurer

 

 

 

 

 

 

 

 

 

 

GUARANTORS:

 

 

 

 

 

ARTHUR KILL POWER LLC

 

 

ASTORIA GAS TURBINE POWER LLC

 

 

BERRIANS I GAS TURBINE POWER LLC

 

 

BIG CAJUN II UNIT 4 LLC

 

 

CABRILLO POWER I LLC

 

 

CABRILLO POWER II LLC

 

 

CARBON MANAGEMENT SOLUTIONS LLC

 

 

CLEAN EDGE ENERGY LLC

 

 

CONEMAUGH POWER LLC

 

 

CONNECTICUT JET POWER LLC

 

 

COTTONWOOD DEVELOPMENT LLC

 

 

COTTONWOOD GENERATING PARTNERS I LLC

 

 

COTTONWOOD GENERATING PARTNERS II LLC

 

 

COTTONWOOD GENERATING PARTNERS III LLC

 

 

COTTONWOOD ENERGY COMPANY LP

 

 

COTTONWOOD TECHNOLOGY PARTNERS LP

 

 

DEVON POWER LLC

 

 

DUNKIRK POWER LLC

 

 

EASTERN SIERRA ENERGY COMPANY

 

 

EL SEGUNDO POWER, LLC

 

 

EL SEGUNDO POWER II LLC

 

 

GREEN MOUNTAIN ENERGY COMPANY

 

 

HUNTLEY IGCC LLC

 

 

HUNTLEY POWER LLC

 

 

INDIAN RIVER IGCC LLC

 

 

INDIAN RIVER OPERATIONS INC.

 

 

INDIAN RIVER POWER LLC

 

 

JAMES RIVER POWER LLC

 

Signature Page to Forty-Third Supplemental Indenture

 


 

 

 

KEYSTONE POWER LLC

 

 

LANGFORD WIND POWER, LLC

 

 

LOUISIANA GENERATING LLC

 

 

MIDDLETOWN POWER LLC

 

 

MONTVILLE IGCC LLC

 

 

MONTVILLE POWER LLC

 

 

NEO CORPORATION

 

 

NEO FREEHOLD-GEN LLC

 

 

NEO POWER SERVICES INC.

 

 

NEW GENCO GP, LLC

 

 

NORWALK POWER LLC

 

 

NRG AFFILIATE SERVICES INC.

 

 

NRG ARTESIAN ENERGY LLC

 

 

NRG ARTHUR KILL OPERATIONS INC.

 

 

NRG ASTORIA GAS TURBINE OPERATIONS INC.

 

 

NRG BAYOU COVE LLC

 

 

NRG CABRILLO POWER OPERATIONS INC.

 

 

NRG CALIFORNIA PEAKER OPERATIONS LLC

 

 

NRG CEDAR BAYOU DEVELOPMENT COMPANY, LLC

 

 

NRG CONNECTICUT AFFILIATE SERVICES INC.

 

 

NRG DEVON OPERATIONS INC.

 

 

NRG DUNKIRK OPERATIONS INC.

 

 

NRG EL SEGUNDO OPERATIONS INC.

 

 

NRG ENERGY SERVICES LLC

 

 

NRG GENERATION HOLDINGS, INC.

 

 

NRG HUNTLEY OPERATIONS INC.

 

 

NRG INTERNATIONAL LLC

 

 

NRG MIDATLANTIC AFFILIATE SERVICES INC.

 

 

NRG MIDDLETOWN OPERATIONS INC.

 

 

NRG MONTVILLE OPERATIONS INC.

 

 

NRG NEW JERSEY ENERGY SALES LLC

 

 

NRG NEW ROADS HOLDINGS LLC

 

 

NRG NORTH CENTRAL OPERATIONS INC.

 

 

NRG NORTHEAST AFFILIATE SERVICES INC.

 

 

NRG NORWALK HARBOR OPERATIONS INC.

 

 

NRG OPERATING SERVICES, INC.

 

 

NRG OSWEGO HARBOR POWER OPERATIONS INC.

 

 

NRG POWER MARKETING LLC

 

 

NRG RETAIL LLC

 

 

NRG SAGUARO OPERATIONS INC.

 

Signature Page to Forty-Third Supplemental Indenture

 


 

 

 

NRG SOUTH CENTRAL AFFILIATE SERVICES INC.

 

 

NRG SOUTH CENTRAL GENERATING LLC

 

 

NRG SOUTH CENTRAL OPERATIONS INC.

 

 

NRG TEXAS C&I SUPPLY LLC

 

 

NRG TEXAS HOLDING INC.

 

 

NRG TEXAS LLC

 

 

NRG TEXAS POWER LLC

 

 

NRG WEST COAST LLC

 

 

NRG WESTERN AFFILIATE SERVICES INC.

 

 

OSWEGO HARBOR POWER LLC

 

 

PENNYWISE POWER LLC

 

 

RE RETAIL RECEIVABLES, LLC

 

 

RELIANT ENERGY POWER SUPPLY, LLC

 

 

RELIANT ENERGY RETAIL HOLDINGS, LLC

 

 

RELIANT ENERGY RETAIL SERVICES, LLC

 

 

RELIANT ENERGY TEXAS RETAIL, LLC

 

 

RERH HOLDINGS, LLC

 

 

SAGUARO POWER LLC

 

 

SOMERSET OPERATIONS INC.

 

 

SOMERSET POWER LLC

 

 

TEXAS GENCO FINANCING CORP.

 

 

TEXAS GENCO GP, LLC

 

 

TEXAS GENCO HOLDINGS, INC.

 

 

TEXAS GENCO OPERATING SERVICES, LLC

 

 

VIENNA OPERATIONS INC.

 

 

VIENNA POWER LLC

 

 

WCP (GENERATION) HOLDINGS LLC

 

 

WEST COAST POWER LLC

 

 

 

 

 

 

 

 

By:

/s/ Christopher Sotos

 

 

 

Name: Christopher Sotos

 

 

 

Title:   Treasurer

 

 

 

 

Elbow Creek Wind Project LLC

 

 

 

 

 

 

 

 

By:

/s/ Christopher Sotos

 

 

 

Name: Christopher Sotos

 

 

 

Title:   Vice President and Controller

 

Signature Page to Forty-Third Supplemental Indenture

 


 

 

 

GCP Funding Company, LLC

 

 

 

 

 

 

 

 

By:

/s/ Christopher Sotos

 

 

 

Name: Christopher Sotos

 

 

 

Title:   Management Board Member

 

 

 

 

 

 

 

 

 

 

Green Mountain Energy Company

 

 

 

 

 

 

 

 

 

 

By:

/s/ Christopher Sotos

 

 

 

Name: Christopher Sotos

 

 

 

Title:   Vice President and Treasurer

 

 

 

 

 

 

 

 

 

 

NRG Construction LLC

 

 

 

 

 

 

 

 

By:

/s/ Rachel Smith

 

 

 

Name: Rachel Smith

 

 

 

Title:   Treasurer

 

 

 

 

 

 

 

 

 

 

NRG South Texas LP

 

 

By:

Texas Genco GP, LLC, its General Partner

 

 

 

 

 

 

 

 

 

 

By:

/s/ Christopher Sotos

 

 

 

Name: Christopher Sotos

 

 

 

Title:   Treasurer

 

 

 

 

 

 

 

 

 

 

Texas Genco LP, LLC

 

 

 

 

 

 

 

 

 

 

By:

/s/ Christopher Sotos

 

 

 

Name: Christopher Sotos

 

 

 

Title:   Management Committee Member

 

 

 

 

 

 

 

 

 

 

Texas Genco Services, LP

 

 

By:

New Genco GP, LLC, its General Partner

 

 

 

 

 

 

 

 

 

 

By:

/s/ Christopher Sotos

 

 

 

Name: Christopher Sotos

 

 

 

Title:   Treasurer

 

Signature Page to Forty-Third Supplemental Indenture

 


 

 

 

LAW DEBENTURE TRUST COMPANY OF NEW YORK, as Trustee

 

 

 

 

 

 

 

 

 

 

By:

/s/ James D. Heaney

 

 

Name:

James D. Heaney

 

 

Title:

Managing Director

 

Signature Page to Forty-Third Supplemental Indenture