展品10.1
執行版本
第十修正案與修訂後的第二修訂和重新確定的信貸協議
第十 修改第二次修訂的授信協議，日期爲2024年10月30日，NRG能源公司 特拉華州的一家公司（簡稱“借款人”），每個附屬擔保方，每個循環貸款人， 每個發行銀行方以及Citicorp北美公司，作爲行政代理（在此職能下，連同其行政代理人”）和作爲抵押品代理（在此職能下，連同其後繼者， “抵押代理人”），應構成第十次修正（本“第十次修正根據2016年6月30日修訂的第二份修訂和重新制訂的信貸協議（由2017年1月24日的第一修正協議修訂，2018年3月21日的第二修正協議修訂，2018年5月7日的第三修正協議修訂，2018年11月8日的加入協議，2019年5月28日的第四修正協議，2020年8月20日的第五修正協議，2023年2月14日的第六修正協議，2023年3月13日的第七修正協議，2024年4月16日的第八修正協議，2024年4月22日的第九修正協議，以及在修正生效日期（如下文所述）之前不時進行的進一步修訂、重新制訂、修訂和重新制訂、補充和/或其他方式修改，稱爲“授信協議 (Credit Agreement)”，以及根據本第十修正事宜修訂的信貸協議，“修訂後的授信協議”）之間， inter alios，借款人，不時是方參加的貸款銀行和發行銀行，不時是方參與的行政代理和抵押代理。
演奏會
A. 本協議或修訂後的信貸協議中使用但未定義的大寫詞語應按照信貸協議或修訂後的信貸協議中所賦予的含義解釋。
B. 借款人、行政代理、抵押品代理、循環貸款人和發行銀行，以及其他相關各方，均是信貸協議的相關方。
C. 借款人已要求修改信貸協議，本次參與的循環貸款人和髮卡銀行同意修改信貸協議，以(i)將C檔循環授信終止日期延長至修正有效日期（如下所定義）的第五個週年，並(ii)對其進行一些其他更改，具體情況在此處和修正後的信貸協議中更詳細地規定。
D. 在簽署並交付本第十次修正案的簽名頁後，各個循環放款人和髮卡銀行都將在事實上的此類簽署和交付的日期生效日視爲已經無法撤銷地同意本第十次修正案和修改後的信貸協議條款，並按照本文件和修改後的信貸協議所規定的條款和條件進行。
E. 在提交和交付簽署頁給本第十修正案後，行政代理人和擔保代理人將被視爲在修正生效日期對本第十修正案和修改後的信貸協議的條款達成了不可撤銷的一致意見，根據本文件和修改後的信貸協議中規定的條款和條件。
現在，因此，在此包含的相互協議和其他良好而有價值的考慮，茲證明其足夠和收到，並認可，各方一致同意如下：
第一條
修改 信貸協議
1.1章節 信用協議修正案.
(a) 在滿足下文規定的條件的前提下 第3.1條 自修正生效日起生效，各執行代理人、押品代理人和各方現金循環借款人和髮卡銀行（即在修正生效日之前立即生效前在信用協議項下的所有現金循環借款人和髮卡銀行的全部）同意對信用協議按以下方式進行修正：
(i) 「」在信貸協議的第1.01節中的定義特此全文修訂如下：可循環終止日C小組在信貸協議的第1.01節中出現的「」特此全文修訂如下：
“Tranche C 循環終止日期” 表示以下兩者中較早的日期：(x) 所有 Tranche C 循環承諾終止的日期和 (y) 2029年10月30日。
(ii) 信貸協議第1.01節中「」的定義經修改，刪除了該定義末尾的「。」並插入以下新文本到該定義末尾:第十章 轉讓證券 第10.1節 交易 如果發行受託人證明，債券持有人可以交換並迅速交付發行受託人這樣的證明，無論是有欠款未償還，還是實質性週轉的時候，都可以在世界範圍範圍內經由源和債券市場交易。在信貸協議第1.01節的「」處，經修訂(A) 刪除該定義末尾的「。」和(B) 在該定義末尾處插入以下新文本:
“在每種情況下，該B類股東和/或該B類股東的家庭成員需獨立控制在此類帳戶、計劃或信託中持有的B類普通股實時；, 此外在與加拿大基準利率貸款有關時（包括所有有關通知和確定事項 及任何有關其的本金、利息或其他金額的支付），術語“第十章 轉讓證券 第10.1節 交易 如果發行受託人證明，債券持有人可以交換並迅速交付發行受託人這樣的證明，無論是有欠款未償還，還是實質性週轉的時候，都可以在世界範圍範圍內經由源和債券市場交易。”還應排除多倫多、安大略省商業銀行根據法律授權或要求關閉的任何日期。”
(iii) “信用協議"第1.01節中出現的“Compliance Period”已被修訂並完整地重述如下：
“Compliance Period” 如果在此四個財政季度結束時，所有循環貸款的總未償本金金額和已發行及未償的信用證的規定金額（不包括（x）總額高達4億美元的未動用信用證和（y）現金擔保或支持的信用證）超過總循環承諾的35％，則將意味着一個四個財政季度期。
(iv) 信貸協議的第1.01節在適當的字母順序中進一步修改，增加以下定義：
“第十次修正「第十修正條款」指的是借款人、每個子擔保人、行政代理人、擔保代理人、每個循環放款人和每個簽署方發表聲明，同意延長C類循環終結日期及其中規定的其他事項的第二修訂和重新制定信貸協議的第十修正條款生效日期。
“當滿足以下條件時，本第10修改條款生效日期就是：“ 「第10修改條款生效日期 」即指2024年10月30日。
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(v) 信貸協議第2.03節特此通過修改並重述該節中出現的第(c)條款如下：
「（c）對於加拿大基準利率借款，不遲於紐約時間上午11:00，擬定借款前一個工作日（或行政代理可能合理同意的更晚時間）」
(vi) 信貸協議第2.06(a)節經修改，將該節中出現的(y)條款修訂如下：
「優</w>WINcccc529128a</w>WIN</w>datasubfield571299a1</w>datasubfield571299c>「WINcccc665772a</w>WINcccc528935a」的Outstanding Loans，包括每一筆加幣基準利率借款，應按年息計，以實際天數除以365或366天（視情況而定）計算，當加幣基準利率係依據該定義條款第（a）類確定時，按每年360天計算，加幣基準利率加上適用利差。」
(vii) 信貸協議第3.01節現已進行修訂，刪除其中所載「第八次修訂中的4.2(b)節」字樣，並以新的字樣「第十次修訂中的3.2節」作為替代。
(b) 在修訂生效日期發生後，自該日期之個頭大額貸款人首次生效之日期起生效（或就下文所述，所有該日期之個頭貸款人均已同意下文所述之信貸協議修訂（該日期為「大額貸款修訂生效日期」），本授信協議之管理代理人、抵押品代理人及各方附表之循環授信人及開證行（即在生效修訂生效日期前立即構成授信協議下所有循環授信人及開證行之合計）謹同意於修訂生效日期生效，且同意自大額貸款修訂生效日期起，授信協議將自動修正（無需其他任何行動或任何人的同意）如下： clause (vii)下文所述全部貸款人已同意修改信貸協議中所載修訂內容的生效日期是指 Term Loan Amendment 生效日期，本管理代理人、抵押品代理人及各方附表之循環授信人及開證行（即在大額貸款修訂生效日期生效前立即生效修訂生效日期即構成所有循環授信人及開證行）至此確認同意信貸協議將自動被修改。 第(i)款透過上述方式。儘管這裡有相反的規定，根據第8.06條款的授予權利以及 (vii)大額貸款修訂生效日期大額貸款修訂生效日期；本管理代理人、抵押品代理人及各方附表之循環授信人及開證行（即在生效修訂生效日期前立即構成授信協議下所有循環授信人及開證行之合計）謹同意於修訂生效日期生效，且同意自大額貸款修訂生效日期起，授信協議將自動修正（無需其他任何行動或任何人的同意）如下：
(i) Sections 3.08, 3.19(a), 5.09(a), 5.09(c) and 9.25(b) of the Credit Agreement are hereby amended by deleting the text “clause (g) of the definition thereof” appearing in each such Section and inserting the following text in lieu thereof “clauses (g) and (o) of the definition thereof”.
(ii) 所有板塊5.09(a)信貸協議條款已通過刪除文字“立即（且無論如何，（A）關於任何存款賬戶、證券賬戶或商品賬戶，在自述期限內（以及在所有情況下受第5.10條的第二段適用於此等存款賬戶、證券賬戶或商品賬戶的限制）之內（B）關於任何其他抵押品或任何成為抵押品的其他財產或資產，在該取得或指定日期後的20個業務日內，或者在每種情況下經管理代理自行酌情同意的更長期限） ” 在該條款中刪除出現的文字並代之以以下文字：
“(A) with respect to any Deposit Account, Securities Account or Commodities Account, within the time period set forth in (and in all cases subject to) the second paragraph of Section 5.10 applicable to such Deposit Account, Securities Account or Commodities Account and (B) with respect to any other Collateral or any other property or asset which becomes Collateral, within 60 days following the date of such acquisition or designation, or in each case, such longer period as consented to by the Administrative Agent in its sole discretion”
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(iii) Sections 5.09(b) of the Credit Agreement is hereby amended by deleting (A) the text “60-day period” appearing in the last sentence of such Section and inserting the following text in lieu thereof “90-day period (or such longer period as consented to by the Administrative Agent in its sole discretion)” and (B) the text “promptly (and, in any event, subject to the last sentence of this Section 5.09(b), within 60 days following the date of such acquisition or such longer period as consented to by the Administrative Agent in its sole discretion)” appearing in such Section and inserting the following text in lieu thereof:
“subject to the last sentence of this Section 5.09(b), within 90 days following the date of such acquisition or such longer period as consented to by the Administrative Agent in its sole discretion”
(iv) Sections 5.09(c) and (d) of the Credit Agreement are hereby amended by deleting the text “promptly (and, in any event, within 20 Business Days following such creation or the date of such acquisition or such longer period as consented to by the Administrative Agent in its sole discretion)” appearing in each such Section and inserting the following text in lieu thereof:
“within 60 days following such creation or the date of such acquisition or such longer period as consented to by the Administrative Agent in its sole discretion”
(v) Section 6.01(b) of the Credit Agreement is hereby amended by (A) deleting the word “and” appearing at the end of clause (xxvi) thereof, (B) deleting “.” appearing at the end of clause (xxvii) thereof and inserting the text “; and” in lieu thereof and (C) inserting the following new clause (xxviii) immediately following such clause (xxvii) at the end of such Section:
“(xxviii) the incurrence of Indebtedness (or any guarantee thereof) by the Borrower and/or any Restricted Subsidiary that is not a Subsidiary Guarantor (including any Excluded Project Subsidiary) in an aggregate principal amount not to exceed $250,000,000 for the purposes of financing the construction or upgrade of gas turbine power generating facilities located in Texas.”
(vi) Section 6.04(e) of the Credit Agreement is hereby amended and restated in its entirety as follows:
When the aggregate amount of Net Proceeds from Asset Sales received after the Closing Date (other than Excluded Proceeds) that are not applied or invested as provided in this Section 6.04 (including pursuant to Section 6.04(c)(i)) exceeds, in any Fiscal Year, individually for each such Asset Sale, the greatest of (x) $200,000,000, (y) 0.75% of Total Assets and (z) 6.0% of Consolidated Cash Flow for the most recently ended Test Period or, in an aggregate for all such Asset Sales, the greatest of (x) $400,000,000, (y) 1.60% of Total Assets and (z) 12.0% of Consolidated Cash Flow for the most recently ended Test Period (the aggregate amount of such Net Proceeds that exceeds such amounts, being “Excess Proceeds”), the Borrower will make a mandatory prepayment of Term Loans pursuant to and in accordance with the terms of Section 2.13(a) in an amount equal to the Applicable Prepayment Event Percentage of all such Excess Proceeds received.
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(vii) Section 9.08(d) of the Credit Agreement is hereby amended and restated its entirety as follows:
Each Lender grants (i) to the Administrative Agent the right (with the prior written consent of the Borrower) to purchase all, or all of any Class, of such Lender’s Commitments and Loans owing to it and any related promissory notes held by it and all its rights and obligations hereunder and under the other Loan Documents and (ii) to the Borrower the right to (A) repay all, or all of any Class, of such Lender’s Loans owing to it and any related promissory notes held by it on a non-pro rata basis or (B) cause an assignment of all, or all of any Class, of such Lender’s Commitments and Loans owing to it and any related promissory notes held by it and all its rights and obligations hereunder and under the other Loan Documents to one or more eligible assignees pursuant to Section 9.04, which right, in each case of clauses (i), (ii)(A) and (ii)(B) above, may be exercised by the Administrative Agent or the Borrower, as the case may be, if such Lender (a “Non-Consenting Lender”) refuses to execute any amendment, modification, termination, waiver or consent to this Agreement; provided that, such Non-Consenting Lender shall receive in connection with such repayment, purchase or assignment, as applicable, payment equal to the aggregate amount of outstanding Loans owed to such Lender, together with all accrued and unpaid interest, fees and other amounts (other than indemnification and other contingent obligations that expressly survive pursuant to the terms of any Loan Document, in each case, not then due and payable) owed to such Lender under the Loan Documents at such time; and provided, further, that any such assignee under clauses (i) and (ii)(B) above shall agree to such amendment, modification, termination, waiver or consent. Each Lender agrees that, if the Administrative Agent or the Borrower, as the case may be, exercises its option under clauses (i) and (ii)(B) of this Section 9.08(d), such Lender shall promptly, after receipt of written notice of such election, execute and deliver all documentation necessary to effectuate such assignment in accordance with Section 9.04 (including an Assignment and Assumption duly executed by such Lender with respect to such assignment). In the event that a Lender does not comply with the requirements of the immediately preceding sentence within one Business Day after receipt of such notice, the Borrower shall be entitled (but not obligated), and such Lender authorizes, directs and grants an irrevocable power of attorney (which power is coupled with an interest) to the Borrower, to execute and deliver, on behalf of such Lender as assignor, all documentation necessary to effectuate such assignment in accordance with Section 9.04 (including an Assignment and Assumption duly executed by such Lender with respect to such assignment) in the circumstances contemplated by this Section 9.08(d) and any documentation so executed and delivered by the Borrower shall be effective for all purposes of documenting an assignment pursuant to and in accordance with Section 9.04.
Article II
REPRESENTATIONS AND WARRANTIES.
Section 2.1 To induce the Administrative Agent, the Collateral Agent and each Revolving Lender and each Issuing Bank party hereto to enter into this Tenth Amendment, the Borrower and each Subsidiary Guarantor represent and warrant to the Administrative Agent, the Collateral Agent and each such Revolving Lender and Issuing Bank that, as of the Amendment Effective Date:
(a) Each of the Borrower and the Subsidiary Guarantors has all requisite power and authority, and the legal right, to enter into this Tenth Amendment, and to carry out the transactions contemplated by, and perform its obligations under, this Tenth Amendment, the Amended Credit Agreement and the other Loan Documents.
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(b) This Tenth Amendment has been duly authorized, executed and delivered by the Borrower and each Subsidiary Guarantor. This Tenth Amendment and the Amended Credit Agreement (i) constitute the Borrower’s and, with respect to this Tenth Amendment only, each Subsidiary Guarantor’s legal, valid and binding obligation, enforceable against it in accordance with their terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer or other laws now or hereafter in effect affecting creditors’ rights generally and (including with respect to specific performance) subject 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, (ii) will not violate (A) any applicable provision of any material law, statute, rule or regulation, or of the certificate or articles of incorporation or other constitutive documents or by-laws of the Borrower or any Subsidiary Guarantor, (B) any order of any Governmental Authority or arbitrator or (C) after giving effect to the transactions contemplated by this Tenth Amendment, any provision of any indenture or any material agreement or other material instrument to which the Borrower or any Subsidiary Guarantor is a party or by which any of them or any of their property is or may be bound, (iii) after giving effect to the transactions contemplated by this Tenth Amendment, will not be in conflict with, result in a breach of or constitute (alone or with notice or lapse of time or both) a default under, or give rise to any right to accelerate or to require the prepayment, repurchase or redemption of any obligation under any such indenture or material agreement or other material instrument and (iv) will not result in the creation or imposition of any Lien upon or with respect to any property or assets now owned or hereafter acquired by the Borrower or any other Loan Party (other than Liens created under the Security Documents).
(c) No action, consent or approval of, registration or filing with, notice to, or any other action by, any Governmental Authority is or will be required in connection with this Tenth Amendment or the Amended Credit Agreement except for (i) the filing of UCC financing statements and filings with the United States Patent and Trademark Office and the United States Copyright Office, if any, (ii) recordation of modifications of the Mortgages, if any, (iii) actions specifically described in Section 3.19 of the Credit Agreement or any of the Security Documents, if any, (iv) any immaterial actions, consents, approvals, registrations or filings or (v) such as have been made or obtained and are in full force and effect.
(d) The representations and warranties set forth in the Amended Credit Agreement and each other Loan Document are true and correct in all material respects on and as of the Amendment Effective Date, with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties were true and correct in all material respects on and as of such earlier date; provided that, in each case, such materiality qualifier is not applicable to any representations and warranties that already are qualified or modified by materiality (or Material Adverse Effect) in the text thereof.
Article III
CONDITIONS TO EFFECTIVENESS OF THIS TENTH AMENDMENT; CONDITIONS SUBSEQUENT.
Section 3.1 This Tenth Amendment (other than Section 1.1(b) hereof, which shall become effective in accordance with the terms thereof) shall become effective on the date (the “Amendment Effective Date”) on which each of the following conditions has been satisfied:
(a) the Administrative Agent shall have received duly executed and delivered counterparts of this Tenth Amendment that, when taken together, bear the signatures of the Borrower, all Subsidiary Guarantors, the Administrative Agent, the Collateral Agent and each Revolving Lender and Issuing Bank (which collectively shall constitute all of the Revolving Lenders and Issuing Banks under the Credit Agreement immediately prior to giving effect to the Amendment Effective Date);
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(b) (i) the representations and warranties set forth in Article III of the Amended Credit Agreement shall be true and correct in all material respects on and as of the Amendment Effective Date, with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date; provided that, in each case, such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality (or Material Adverse Effect) in the text thereof, and (ii) at the time of and immediately after giving effect to this Tenth Amendment on the Amendment Effective Date, no Default or Event of Default shall have occurred and be continuing;
(c) the Administrative Agent shall have received a certificate, dated as of the Amendment Effective Date, duly executed by a Responsible Officer of the Borrower, confirming compliance with the conditions precedent set forth in Section 3.1(b) above;
(d) the Administrative Agent shall have received all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, that has been reasonably requested by the Administrative Agent or any Revolving Lender;
(e) the Administrative Agent and the Lead Arrangers (as defined below) shall have received, to the extent invoiced, reimbursement or other payment of all reasonable and documented out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder or under any other Loan Document or other agreement with the Borrower relating thereto;
(f) each Revolving Lender shall have received, for its own account, an amendment fee equal to 0.075% of the aggregate dollar amount of its Tranche C Revolving Commitments as of the Amendment Effective Date; and
(g) with respect to each Mortgaged Property required to be insured pursuant to the Flood Disaster Protection Act of 1973 or the National Flood Insurance Act of 1968, and the regulations promulgated thereunder, because it is located in an area which has been identified by the Secretary of Housing and Urban Development as a “special flood hazard area,” the Borrower or the applicable Subsidiary Guarantor shall have delivered to the Administrative Agent (i) a policy of flood insurance that covers such Mortgaged Property and is written in an amount reasonably satisfactory to the Administrative Agent, (ii) a “life of loan” standard flood hazard determination with respect to such Mortgaged Property and (iii) a confirmation that the Borrower or such Subsidiary Guarantor has received the notice requested pursuant to Regulation H.
Section 3.2 Within 60 days after the Amendment Effective Date (or such later date as may be acceptable to the Administrative Agent in its reasonable discretion), the Borrower shall use commercially reasonable efforts to deliver, or cause to be delivered, to the Administrative Agent a certificate from the York State Department of Taxation and Finance reflecting the payment of all franchise taxes and the filing of all franchise tax returns by (I) ACE Energy, Inc., (II) Gateway Energy Services Corporation, (III) NRG Curtailment Solutions, Inc. and (IV) XOOM Energy New York, LLC.
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Article IV
EFFECT OF AMENDED CREDIT AGREEMENT.
Section 4.1 Except as expressly set forth herein or in the Amended Credit Agreement, neither this Tenth Amendment nor the Amended Credit Agreement shall by implication or otherwise limit, impair, constitute a waiver of or otherwise affect the rights and remedies of the Lenders, the Administrative Agent, the Collateral Agent or the Issuing Banks under the Credit Agreement, the Amended Credit Agreement or any other Loan Document, and shall not alter, modify, amend or in any way affect any of the terms, conditions, obligations, covenants or agreements contained in the Credit Agreement or the Amended Credit Agreement or any other provision of the Credit Agreement, the Amended Credit Agreement or of any other Loan Document, all of which are ratified and affirmed in all respects and shall continue in full force and effect. Nothing herein shall be deemed to entitle the Borrower, any Subsidiary Guarantor or any other Person to a consent to, or a waiver, amendment, modification or other change of, any of the terms, conditions, obligations, covenants or agreements contained in the Credit Agreement, the Amended Credit Agreement or any other Loan Document in similar or different circumstances.
Section 4.2 On the Amendment Effective Date, the provisions of this Tenth Amendment and the Amended Credit Agreement will become effective and binding upon, and enforceable against, the Borrower, the Subsidiary Guarantors, the Administrative Agent, the Collateral Agent, each Revolving Lender and each Issuing Bank. Upon and after the execution of this Tenth Amendment by each of the parties hereto, each reference in the Amended Credit Agreement to “this Agreement”, “hereunder”, herein,” “hereinafter,” “hereto,” “hereof” and words of like import referring to the Amended Credit Agreement, and each reference in the other Loan Documents to “the Credit Agreement”, “thereunder”, “thereof” or words of like import referring to the Credit Agreement, shall mean and be a reference to the Amended Credit Agreement.
Section 4.3 This Tenth Amendment shall constitute a Loan Document for all purposes under the Amended Credit Agreement and shall be administered and construed pursuant to the terms of the Amended Credit Agreement.
Article V
MISCELLANEOUS
Section 5.1 Counterparts. This Tenth Amendment may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute an original but all of which when taken together shall constitute a single contract, and shall become effective as provided in Article V. Delivery of an executed signature page to this Tenth Amendment by electronic transmission (including “.pdf”) shall be as effective as delivery of a manually signed counterpart of this Tenth Amendment. The words “execution,” “execute”, “signed,” “signature,” “delivery,” and words of like import in or relating to this Tenth Amendment and any document to be signed in connection with this Tenth Amendment and the transactions contemplated hereby shall be deemed to include electronic signatures, the electronic matching of assignment terms and contract formations on electronic platforms approved by the Administrative Agent, deliveries or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature, physical delivery thereof or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act.
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Section 5.2 Applicable Law; Notices; Waiver of Jury Trial; Severability; Jurisdiction; Consent to Service of Process; Waivers. THIS TENTH AMENDMENT AND ANY CLAIM, CONTROVERSY, DISPUTE, PROCEEDING OR CAUSE OF ACTION (WHETHER IN CONTRACT, TORT OR OTHERWISE AND WHETHER AT LAW OR IN EQUITY) BASED UPON, ARISING OUT OF OR RELATING TO THIS TENTH AMENDMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK. Sections 9.07, 9.11 and 9.15 of the Amended Credit Agreement are hereby incorporated by reference herein, mutatis mutandis.
Section 5.3 Headings. Headings used herein are for convenience of reference only, are not part of this Tenth Amendment and are not to affect the construction of, or to be taken into consideration in interpreting, this Tenth Amendment.
Section 5.4 Reaffirmation. The parties hereto acknowledge and agree that (i) this Tenth Amendment and any other Loan Document or other document or instrument executed and delivered in connection herewith do not constitute a novation or termination of the Guaranteed Obligations of the Borrower and the Subsidiary Guarantors as in effect prior to the Amendment Effective Date and (ii) such Guaranteed Obligations are in all respects continuing (as amended by this Tenth Amendment) with only the terms thereof being modified to the extent provided in this Tenth Amendment. Each of the Borrower and the Subsidiary Guarantors hereby consents to the entering into of this Tenth Amendment and each of the transactions contemplated hereby, confirms its respective guarantees, pledges, grants of security interests, Liens and other obligations, as applicable, under and subject to the terms of the Security Documents to which it is a party and each of the other Loan Documents to which it is party, and agrees that, notwithstanding the effectiveness of this Tenth Amendment or any of the transactions contemplated hereby, such guarantees, pledges, grants of security interests, Liens and other obligations, and the terms of each of the other Security Documents to which it is a party and each of the other Loan Documents to which it is a party, are not impaired or affected in any manner whatsoever and shall continue to be in full force and effect and shall continue to secure all Guaranteed Obligations, as amended, reaffirmed and modified pursuant to this Tenth Amendment or any of the transactions contemplated thereby.
Section 5.5 Arrangers. Pursuant to the terms of that certain Second Amended and Restated Engagement Letter, dated as of October 21, 2024 (the “Engagement Letter”) between, among others, the Borrower and Citi (as defined below), the Borrower has appointed each of Citi, Goldman Sachs Bank USA, Mizuho Bank, Ltd., Truist Securities, Inc., Barclays Bank PLC, BNP Paribas Securities Corp., Credit Agricole Corporate and Investment Bank, Deutsche Bank Securities Inc., MUFG Bank, Ltd., BofA Securities, Inc., JPMorgan Chase Bank, N.A., Morgan Stanley Senior Funding, Inc., Sumitomo Mitsui Banking Corporation, Banco Santander, S.A., New York Branch, BMO Capital Markets Corp., Royal Bank of Canada and KeyBanc Capital Markets Inc. to act as a joint lead arranger and joint bookrunner (collectively, the “Lead Arrangers”) with respect to this Tenth Amendment and the transactions contemplated hereby, in each case, with the rights and privileges afforded to “Lead Arrangers” under and as defined in the Engagement Letter and “Arrangers” under and as defined in Amended Credit Agreement. For the purposes of this Section 5.5, “Citi” shall mean Citigroup Global Markets Inc., Citibank, N.A., Citigroup USA, Inc., Citicorp North America, Inc. and/or any of their affiliates as Citi shall determine to be appropriate to provide the services contemplated the Engagement Letter.
[Signature pages follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Tenth Amendment to be duly executed by their respective officers as of the day and year first above written.
| BORROWER: | ||
| NRG ENERGY, INC. | ||
| By: | /s/ Jean-Pierre Breaux | |
| Name: | Jean-Pierre Breaux | |
| Title: | Vice President and Treasurer | |
[Signature Page to Tenth Amendment to Second Amended and Restated Credit Agreement]
| The Guarantors: | ||
| ASTORIA GAS TURBINE POWER LLC | ||
| DUNKIRK POWER LLC | ||
| ENERGY CHOICE SOLUTIONS LLC | ||
| HUNTLEY POWER LLC | ||
| INDIAN RIVER POWER LLC | ||
| NORWALK POWER LLC | ||
| NRG CEDAR BAYOU DEVELOPMENT COMPANY, LLC | ||
| NRG DISTRIBUTED ENERGY RESOURCES HOLDINGS LLC | ||
| NRG ECOKAP HOLDINGS LLC | ||
| NRG ENERGY SERVICES GROUP LLC | ||
| NRG HQ DG LLC | ||
| NRG INTERNATIONAL LLC | ||
| NRG RETAIL LLC | ||
| NRG ROCKFORD ACQUISITION LLC | ||
| NRG WEST COAST LLC | ||
| Meriden Gas Turbines LLC | ||
| SOMERSET POWER LLC | ||
| VIENNA POWER LLC | ||
| By: | NRG ENERGY, INC., as Sole Member | |
| By: | /s/ Jean-Pierre Breaux | |
| Name: | Jean-Pierre Breaux | |
| Title: | Vice President & Treasurer | |
| Ace Energy, Inc. | ||
| Allied Home Warranty GP LLC | ||
| Allied Warranty LLC | ||
| Cabrillo Power I LLC | ||
| Cabrillo Power II LLC | ||
| Cirro Energy Services, Inc. | ||
| Cirro Group, Inc. | ||
| Direct Energy Business, LLC | ||
| Eastern Sierra Energy Company LLC | ||
| El Segundo Power, LLC | ||
| El Segundo Power II LLC | ||
| By: | /s/ Jean-Pierre Breaux | |
| Name: | Jean-Pierre Breaux | |
| Title: | Vice President & Treasurer | |
[Signature Page to Tenth Amendment to Second Amended and Restated Credit Agreement]
| Energy Plus Holdings LLC | ||
| Energy Plus Natural Gas LLC | ||
| Everything Energy LLC | ||
| Forward Home Security, LLC | ||
| GCP Funding Company, LLC | ||
| Green Mountain Energy Company | ||
| Independence Energy Alliance LLC | ||
| Independence Energy Group LLC | ||
| Independence Energy Natural Gas LLC | ||
| Indian River Operations Inc. | ||
| NEO Corporation | ||
| New Genco GP, LLC | ||
| NRG Affiliate Services Inc. | ||
| NRG Arthur Kill Operations Inc. | ||
| NRG Cabrillo Power Operations Inc. | ||
| NRG California Peaker Operations LLC | ||
| NRG Controllable Load Services LLC | ||
| NRG Curtailment Solutions, Inc. | ||
| NRG Dispatch Services LLC | ||
| NRG Distributed Generation PR LLC | ||
| NRG Dunkirk Operations Inc. | ||
| NRG El Segundo Operations Inc. | ||
| NRG Generation Holdings Inc. | ||
| NRG Home & Business Solutions LLC | ||
| NRG Home Services LLC | ||
| NRG Home Solutions LLC | ||
| NRG Home Solutions Product LLC | ||
| NRG Homer City Services LLC | ||
| NRG Huntley Operations Inc. | ||
| NRG Identity Protect LLC | ||
| NRG Mextrans Inc. | ||
| NRG Norwalk Harbor Operations Inc. | ||
| NRG Portable Power LLC | ||
| NRG Protects Inc. (formerly known as Home Warranty of America Inc.) | ||
| NRG Saguaro Operations Inc. | ||
| NRG Security LLC | ||
| NRG SimplySmart Solutions LLC | ||
| NRG Texas Gregory LLC | ||
| NRG Texas Holding Inc. | ||
| NRG Texas LLC | ||
| NRG Texas Power LLC | ||
| By: | /s/ Jean-Pierre Breaux | |
| Name: | Jean-Pierre Breaux | |
| Title: | Vice President & Treasurer | |
[Signature Page to Tenth Amendment to Second Amended and Restated Credit Agreement]
| NRG Warranty Services LLC | ||
| NRG Western Affiliate Services Inc. | ||
| Reliant Energy Northeast LLC | ||
| Reliant Energy Power Supply, LLC | ||
| Reliant Energy Retail Holdings, LLC | ||
| Reliant Energy Retail Services, LLC | ||
| RERH Holdings, LLC | ||
| Saguaro Power LLC | ||
| SGE Energy Sourcing, LLC | ||
| SGE Texas Holdco, LLC | ||
| Somerset Operations Inc. | ||
| Stream Energy Columbia, LLC | ||
| Stream Energy Delaware, LLC | ||
| Stream Energy Illinois, LLC | ||
| Stream Energy Maryland, LLC | ||
| Stream Energy New Jersey, LLC | ||
| Stream Energy New York, LLC | ||
| Stream Energy Pennsylvania, LLC | ||
| Stream Georgia Gas SPE, LLC | ||
| Stream Ohio Gas & Electric, LLC | ||
| Stream SPE GP, LLC | ||
| Texas Genco GP, LLC | ||
| Texas Genco Holdings, Inc. | ||
| Texas Genco LP, LLC | ||
| US Retailers LLC | ||
| Vienna Operations Inc. | ||
| WCP (Generation) Holdings LLC | ||
| West Coast Power LLC | ||
| By: | /s/ Jean-Pierre Breaux | |
| Name: | Jean-Pierre Breaux | |
| Title: | Vice President & Treasurer | |
[Signature Page to Tenth Amendment to Second Amended and Restated Credit Agreement]
| AWHR America’s Water Heater Rentals, L.L.C. | ||
| Bounce Energy, Inc. | ||
| NRG Business Marketing LLC | ||
| Direct Energy Connected Home US Inc. | ||
| Direct Energy GP, LLC | ||
| Direct Energy HoldCo GP LLC | ||
| Direct Energy Leasing, LLC | ||
| Direct Energy Marketing Inc. | ||
| Direct Energy Operations, LLC | ||
| Direct Energy Services, LLC | ||
| Direct Energy US Holdings Inc. | ||
| First Choice Power, LLC | ||
| Gateway Energy Services Corporation | ||
| Home Warranty Holdings Corp. | ||
| RSG Holding Corp. | ||
| By: | /s/ Jean-Pierre Breaux | |
| Name: | Jean-Pierre Breaux | |
| Title: | Vice President | |
| XOOM British Columbia Holdings, LLC | ||
| XOOM Energy California, LLC | ||
| XOOM Energy Delaware, LLC | ||
| XOOM Energy New York, LLC | ||
| XOOM Energy Texas, LLC | ||
| XOOM Energy Connecticut, LLC | ||
| XOOM Energy Georgia, LLC | ||
| XOOM Energy Illinois, LLC | ||
| XOOM Energy Indiana, LLC | ||
| XOOM Energy Kentucky, LLC | ||
| XOOM Energy Maine, LLC | ||
| XOOM Energy Maryland, LLC | ||
| XOOM Energy Massachusetts, LLC | ||
| XOOM Energy Michigan, LLC | ||
| XOOM Energy New Hampshire, LLC | ||
| XOOM Energy New Jersey, LLC | ||
| XOOM Energy Ohio, LLC | ||
| XOOM Energy Pennsylvania, LLC | ||
| XOOM Energy Rhode Island, LLC | ||
| XOOM Energy Virginia, LLC | ||
| XOOM Energy Washington D.C., LLC | ||
| By: | XOOM Energy, LLC, as sole member | |
| By: | /s/ Jean-Pierre Breaux | |
| Name: | Jean-Pierre Breaux | |
| Title: | Vice President & Treasurer | |
[Signature Page to Tenth Amendment to Second Amended and Restated Credit Agreement]
| XOOM Ontario Holdings, LLC | ||
| XOOM Energy Global Holdings, LLC | ||
| XOOM Alberta Holdings, LLC | ||
| XOOM ENERGY, LLC | ||
| XOOM SOLAR, LLC | ||
| By: | /s/ Jean-Pierre Breaux | |
| Name: | Jean-Pierre Breaux | |
| Title: | Vice President & Treasurer | |
| CPL Retail Energy L.P. | ||
| WTU Retail Energy L.P. | ||
| By: | Direct Energy HoldCo GP LLC, its General Partner | |
| By: | /s/ Jean-Pierre Breaux | |
| Name: | Jean-Pierre Breaux | |
| Title: | Vice President | |
[Signature Page to Tenth Amendment to Second Amended and Restated Credit Agreement]
| Direct Energy, LP | ||
| By: | Direct Energy GP, LLC, its General Partner | |
| By: | /s/ Jean-Pierre Breaux | |
| Name: | Jean-Pierre Breaux | |
| Title: | Vice President | |
| TEXAS GENCO SERVICES, LP | ||
| By: | New Genco GP, LLC, its General Partner | |
| By: | /s/ Jean-Pierre Breaux | |
| Name: | Jean-Pierre Breaux | |
| Title: | Vice President & Treasurer | |
| Stream SPE, Ltd. | ||
| By: | Stream SPE GP, LLC, its General Partner | |
| By: | /s/ Jean-Pierre Breaux | |
| Name: | Jean-Pierre Breaux | |
| Title: | Vice President & Treasurer | |
| NRG CONSTRUCTION LLC | ||
| NRG ENERGY SERVICES LLC | ||
| NRG MAINTENANCE SERVICES LLC | ||
| NRG RELIABILITY SOLUTIONS LLC | ||
| By: | /s/ Linda Weigand | |
| Name: | Linda Weigand | |
| Title: | Treasurer | |
| ENERGY ALTERNATIVES WHOLESALE, LLC | ||
| NRG OPERATING SERVICES, INC. | ||
| By: | /s/ Shawnie McBride | |
| Name: | Shawnie McBride | |
| Title: | Vice President | |
[Signature Page to Tenth Amendment to Second Amended and Restated Credit Agreement]
| CITICORP NORTH AMERICA, INC., as | ||
| Administrative Agent and Collateral Agent | ||
| By: | /s/ Ashwani Khubani | |
| Name: Ashwani Khubani | ||
| Title: Managing Director/Vice President | ||
[Signature Page to Tenth Amendment to Second Amended and Restated Credit Agreement]
| CITICORP NORTH AMERICA, INC., as a Revolving Lender and Issuing Bank |
||
| By: | /s/ Ashwani Khubani | |
| Name: Ashwani Khubani | ||
| Title: Managing Director/Vice President | ||
[Signature Page to Tenth Amendment to Second Amended and Restated Credit Agreement]
| GOLDMAN SACHS BANK USA, | ||
| as a Revolving Lender | ||
| By: | /s/ Dana Siconolfi | |
| Name: Dana Siconolfi | ||
| Title: Authorized Signatory | ||
[Signature Page to Tenth Amendment to Second Amended and Restated Credit Agreement]
| MIZUHO BANK LTD., as a Revolving Lender | ||
| By: | /s/ Edwards Sacks | |
| Name: Edwards Sacks | ||
| Title: Managing Director | ||
[Signature Page to Tenth Amendment to Second Amended and Restated Credit Agreement]
| TRUIST BANK, as a Revolving Lender | ||
| By: | /s/ Justin Lien | |
| Name: Justin Lien | ||
| Title: Director | ||
[Signature Page to Tenth Amendment to Second Amended and Restated Credit Agreement]
| BARCLAYS BANK PLC, as a Revolving Lender and Issuing Bank | ||
| By: | /s/ Sydney G. Dennis | |
| Name: Sydney G. Dennis | ||
| Title: Director | ||
[Signature Page to Tenth Amendment to Second Amended and Restated Credit Agreement]
| BNP PARIBAS, as a Revolving Lender and Issuing Bank | ||
| By: | /s/ Francis Delaney | |
| Name: Francis Delaney | ||
| Title: Managing Director | ||
| By: | /s/ Andrew Pimenov | |
| Name: Andrew Pimenov | ||
| Title: Vice President | ||
[Signature Page to Tenth Amendment to Second Amended and Restated Credit Agreement]
| CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK, as a Revolving Lender | ||
| By: | /s/ Andrew Sidford | |
| Name: Andrew Sidford | ||
| Title: Managing Director | ||
| By: | /s/ Gordon Yip | |
| Name: Gordon Yip | ||
| Title: Director | ||
[Signature Page to Tenth Amendment to Second Amended and Restated Credit Agreement]
| DEUTSCHE BANK AG NEW YORK BRANCH, | ||
| as a Revolving Lender and Issuing Bank | ||
| By: | /s/ Philip Tancorra | |
| Name: Philip Tancorra | ||
| Title: Director | ||
| By: | /s/ Suzan Onal | |
| Name: Suzan Onal | ||
| Title: Director | ||
[Signature Page to Tenth Amendment to Second Amended and Restated Credit Agreement]
| MUFG BANK, LTD., as a Revolving Lender | ||
| By: | /s/ Hazuki Watanabe | |
| Name: Hazuki Watanabe | ||
| Title: Vice President | ||
[Signature Page to Tenth Amendment to Second Amended and Restated Credit Agreement]
| BANK OF AMERICA, N.A., as a Revolving Lender and Issuing Bank | ||
| By: | /s/ Christopher J. Heitker | |
| Name: Christopher J. Heitker | ||
| Title: Director | ||
[Signature Page to Tenth Amendment to Second Amended and Restated Credit Agreement]
| JPMORGAN CHASE BANK, N.A., | ||
| as a Revolving Lender and Issuing Bank | ||
| By: | /s/ Santiago Gascon | |
| Name: Santiago Gascon | ||
| Title: Vice President | ||
[Signature Page to Tenth Amendment to Second Amended and Restated Credit Agreement]
| MORGAN STANLEY SENIOR FUNDING, INC., | ||
| as a Revolving Lender and Issuing Bank | ||
| By: | /s/ Michael King | |
| Name: Michael King | ||
| Title: Vice President | ||
| MORGAN STANLEY BANK, N.A., | ||
| as a Revolving Lender and Issuing Bank | ||
| By: | /s/ Michael King | |
| Name: Michael King | ||
| Title: Vice President | ||
[Signature Page to Tenth Amendment to Second Amended and Restated Credit Agreement]
| SUMITOMO MITSUI BANKING CORPORATION, as a Revolving Lender | ||
| By: | /s/ Alkesh Nanavaty | |
| Name: Alkesh Nanavaty | ||
| Title: Executive Director | ||
[Signature Page to Tenth Amendment to Second Amended and Restated Credit Agreement]
| BANCO SANTANDER, S.A., NEW YORK BRANCH, | ||
| as a Revolving Lender | ||
| By: | /s/ Andres Barbosa | |
| Name: Andres Barbosa | ||
| Title: Managing Director | ||
| By: | /s/ Michael Leonardos | |
| Name: Michael Leonardos | ||
| Title: Executive Director | ||
[Signature Page to Tenth Amendment to Second Amended and Restated Credit Agreement]
| BANK OF MONTREAL, as a Revolving Lender and Issuing Bank | ||
| By: | /s/ Michael Cummings | |
| Name: Michael Cummings | ||
| Title: Managing Director | ||
[Signature Page to Tenth Amendment to Second Amended and Restated Credit Agreement]
| ROYAL BANK OF CANADA, as a Revolving Lender and Issuing Bank | ||
| By: | /s/ Frank Lambrinos | |
| Name: Frank Lambrinos | ||
| Title: Authorized Signatory | ||
[Signature Page to Tenth Amendment to Second Amended and Restated Credit Agreement]
| KEYBANK NATIONAL ASSOCIATION, | ||
| as a Revolving Lender | ||
| By: | /s/ Renee M. Bonnell | |
| Name: Renee M. Bonnell | ||
| Title: Senior Vice President | ||
[Signature Page to Tenth Amendment to Second Amended and Restated Credit Agreement]
| NATIXIS, NEW YORK BRANCH, | ||
| as a Revolving Lender and Issuing Bank | ||
| By: | /s/ Yash Anand | |
| Name: Yash Anand | ||
| Title: Managing Director | ||
| By: | /s/ Jake Reinbolt | |
| Name: Jake Reinbolt | ||
| Title: Associate | ||
[Signature Page to Tenth Amendment to Second Amended and Restated Credit Agreement]