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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): December 30, 1997
NRG Generating (U.S.) Inc.
(Exact name of registrant as specified in its charter)
Delaware 1-9208 59-2076187
(State or other (Commission File Number) (IRS Employer
jurisdiction Identification
of incorporation) Number)
1221 Nicollet Mall, Minneapolis, Minnesota 55403
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (612) 373-8834
(Former name or former address, if changed since last report)
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Item 2. Acquisition or Disposition of Assets.
On December 30, 1997, NRGG Funding Inc. ("NRGG Funding"), a Delaware
corporation and a wholly-owned subsidiary of NRG Generating (U.S.) Inc.
(the "Company"), completed its acquisition from NRG Energy, Inc. ("NRG
Energy") of all of NRG Energy's interest in its Millennium Petrochemicals
project in Illinois. NRG Energy owns 45.21% of the Company's common
stock.
Through its subsidiary, NRG (Morris) Cogen, LLC ("Morris LLC"), NRG
Energy had the exclusive right to build and operate a cogeneration plant
to be located within the Millennium Petrochemicals, Inc. petrochemical
manufacturing facility in Morris, Illinois. NRG Energy commenced
construction of the 117 megawatt steam and electricity cogeneration plant
in September 1997. Pursuant to a Membership Interest Purchase Agreement,
NRGG Funding acquired from NRG Energy 100% of the membership interests in
Morris LLC.
Pursuant to the Membership Interest Purchase Agreement NRGG Funding
agreed to assume all of the obligations of NRG Energy under that certain
Equity Commitment Agreement among NRG, Morris LLC and Chase, including
the obligation to provide future equity contributions to Morris LLC which
are limited to the lesser of 20% of the total project cost or $22.0
million. NRG Energy has guaranteed to Chase that NRGG Funding will make
these future equity contributions. In addition, the Company has
guaranteed to NRG Energy the obligation of NRGG Funding to make these
future equity contributions. NRGG Funding and NRG Morris have also
pledged their membership interests in Morris LLC to Chase to support NRG
Energy's guaranty to Chase and to NRG Energy to support the Company's
guaranty to NRG Energy. In addition, Morris LLC is obligated to pay NRG
Energy $1.0 million as and when permitted under a Construction and Term
Loan Agreement dated as of September 15, 1997, between Morris LLC, The
Chase Manhattan Bank ("Chase") and the Banks (as defined therein) (the
"Construction and Term Loan Agreement"). Morris LLC had previously paid
$4.0 million to NRG Energy in connection with the financial closing of the
construction financing of the Millennium Petrochemicals project. The $1.0
million payment by Morris LLC to NRG Energy is expected to be made with
funds received under the Construction and Term Loan Agreement.
The Company intends to arrange financing for either NRGG Funding or
itself (the terms and manner of which have not been determined by the
Company) to fund the required future equity contributions by NRGG Funding
to Morris LLC. In addition, NRG Energy is obligated under a Supplemental
Loan Agreement between the Company, NRGG Funding and NRG Energy to loan
NRGG Funding and the Company (as co-borrower) the full amount of such
equity contributions by NRGG Funding, all at NRGG Funding's option. The
terms of the Membership Interest Purchase Agreement, including the
consideration paid thereunder, were determined on the basis of arms-length
negotiations between the parties.
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Item 7. Financial Statements, Pro Forma Financial Information and
Exhibits.
(c) Exhibits.
Exhibit
Number Description
2.1 Membership Interest Purchase Agreement.
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Signatures
Pursuant to the requirements of the Securities Exchange Act of 1934,
as amended, the registrant has duly caused this report to be signed on its
behalf by the undersigned hereunto duly authorized.
NRG GENERATING (U.S.) INC.
By: /s/ Timothy P. Hunstad
Name: Timothy P. Hunstad
Title: Vice President and Chief
Financial Officer
Date: January 13, 1998
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Exhibit Index
Exhibit
Number Description
2.1 Membership Interest Purchase Agreement.
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Exhibit 2.1
MEMBERSHIP INTEREST PURCHASE AGREEMENT
This Membership Interest Purchase Agreement (the "Agreement"), dated
as of December 10, 1997, is by and among NRG Energy, Inc., a Delaware
corporation ("NRG"); NRGG Funding Inc., a Delaware corporation (the
"Purchaser"); and NRG Generating (U.S.) Inc., a Delaware corporation
("NRGG").
W I T N E S S E T H:
WHEREAS, NRG Morris Inc., a Delaware corporation ("Morris") and NRG
are the owners of one percent (1%) and 99 percent (99%) membership
interests, respectively, in NRG (Morris) Cogen, LLC, a Delaware limited
liability company (the "Company");
WHEREAS, NRG owns one hundred percent (100%) of the common stock of
Morris and is deemed thereby to be the beneficial owner of all right,
title and interest in and to all of the membership interests in the
Company;
WHEREAS, the Company was formed to produce and sell electricity and
steam from cogeneration facilities;
WHEREAS, Purchaser desires to purchase, and NRG desires to sell to
Purchaser, all of the membership interests in the Company on the terms
and conditions set forth in this Agreement;
WHEREAS, to accomplish such purpose, Purchaser desires to purchase
from NRG, and NRG desires to sell to Purchaser, the ninety-nine percent
(99%) membership interests in the Company that NRG owns directly (the
"Direct Membership Interests") and all of the issued and outstanding
stock of Morris (the "Morris Stock");
WHEREAS, NRG and NRGG, Purchaser's parent company, signed a Letter
of Intent regarding this transaction on December 3, 1997 and on December
4, 1997 made the required filing for the transaction under the Hart-
Scott-Rodino Antitrust Improvements Act of 1976 (the "Hart-Scott-Rodino
Act");
NOW THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
A G R E E M E N T:
1. Purchase and Sale. Contingent upon (i) expiration or early
termination of the applicable waiting period under the Hart-Scott-Rodino
Act, (ii) consent of The Chase Manhattan Bank and such other banks as are
necessary to effectuate the arrangements contemplated in Sections 2.2(a)
through 2.2(d) consistent with the Equity Commitment and its related
Construction and Term Loan Agreement, (iii) completion of the arrangement
contemplated in
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Section 2.2(b) regarding the ESA Obligations, and (iv) completion of the
arrangement contemplated in Section 2.2(d) regarding the Supplemental
Loan Arrangement, NRG hereby sells and delivers to Purchaser the Direct
Membership Interests and the Morris Stock (the Direct Membership
Interests and the Morris Stock shall be referred to collectively as the
"Membership Interests"), free and clear of any and all security
interests, liens and other encumbrances and claims of any kind and nature
whatsoever (except as set forth in Section 4.4), and Purchaser hereby
purchases all of NRG's right, title and interest in and to the Membership
Interests. The effective date of such sale and purchase (the "Effective
Date") shall without further notice or action automatically occur on, and
shall be, the date on which the last of the above-mentioned contingencies
occurs.
2. Consideration for Purchase.
2.1 Payments. The purchase price for the Membership Interests (the
"Purchase Price") is $5,000,000.00, $4,000,000.00 of which has been paid
to NRG as part of the financial closing of construction financing of the
Company's project, and the remaining $1,000,000.00 of which shall be paid
pursuant to the fee letter between the Company and NRG dated as of
October 24, 1997 (the "Fee Letter"). Upon the Effective Date, the
Company will confirm its payment commitment as set forth in the Fee
Letter by letter addressed to NRG. Notwithstanding the fact that the
Purchase Price has been and will be paid to NRG by or on behalf of the
Company, Purchaser shall, for purposes under this Agreement, be deemed to
have paid such Purchase Price to NRG.
2.2 Assumption of Obligations. On or prior to the date hereof (but
subject to the occurrence of the Effective Date), NRG, Purchaser and NRGG
shall have entered into the following arrangements:
(a) an arrangement pursuant to which Purchaser shall assume
the obligations of NRG under that certain Equity
Commitment Agreement among NRG, the Company and The Chase
Manhattan Bank dated as of September 15, 1997 (the "Equity
Commitment") and provide The Chase Manhattan Bank with a
pledge of the Membership Interests as collateral therefor
and for the Company's obligations under the related
Construction and Term Loan Agreement (which will be in
lieu of NRG's current pledge of the same assets to The
Chase Manhattan Bank, with such current pledge being
released by The Chase Manhattan Bank), all in form and
substance satisfactory to the parties; in addition,
Purchaser shall arrange for NRGG to guaranty Purchaser's
obligations under the Equity Commitment, upon the
Effective Date, and Purchaser shall give NRG a subordinate
pledge of the Membership Interests as collateral for
NRGG's guaranty;
(b) an arrangement pursuant to which Purchaser shall assume
the commitments of NRG to comply with certain provisions
of that certain Energy Services Agreement dated June 3,
1997 between the Company and Millennium Petrochemicals
Inc. (the "ESA Obligations");
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(c) arrangements to amend the operation and maintenance
agreement and the construction services agreement for the
Project to give the Company input into the identity of the
construction and operation managements and certain other
rights, in form and substance satisfactory to the parties;
and
(d) an arrangement pursuant to which NRG will commit to a loan
to Purchaser and NRGG, which loan Purchaser may draw upon
at Purchaser's election, and the proceeds from which
Purchaser may use to contribute equity to the Company as
required by the Equity Commitment ("Supplemental Loan
Arrangement"), all in form and substance satisfactory to
the parties.
The Equity Commitment and the ESA Obligations shall be referred to
collectively as the "Shareholder Commitments".
3. Closing; Further Assurances.
3.1 NRG's Deliveries. NRG shall deliver to Purchaser, on the
Effective Date, the following:
(a) All books of account, records, contracts, tax returns,
processes, formulas and all other original documents and
records of the Company held by NRG;
(b) NRG's representative's resignation from the Company's
Governance Committee; and
(c) Good Standing Certificates for NRG, Morris and the Company
issued by the Delaware Secretary of State not earlier than
three (3) days prior to the Effective Date.
3.2 Purchaser Deliveries. Purchaser and NRGG shall deliver to NRG,
on the Effective Date, the following:
(a) Good Standing Certificates for Purchaser and NRGG, issued
by the Delaware Secretary of State not earlier than three
(3) days prior to the Effective Date.
3.3 No Other Payment. Except for the payment contemplated by
Section 2.1 and any obligations contemplated in the Shareholder
Commitments, there will be no other fees, costs or other payments payable
by or on behalf of Purchaser or NRGG to or for the account of NRG for or
in connection with Purchaser's purchase or ownership of the Membership
Interests, the Company, Morris or the Company's co-generation facilities.
Notwithstanding the previous sentence, Purchaser and NRGG each
acknowledges that if Purchaser and NRGG elect to draw on the Supplemental
Loan Arrangement, then Purchaser and NRGG will have obligations in
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connection with such draw(s) under the applicable agreements implementing
the Supplemental Loan Arrangement.
3.4 Post-Effective Date Covenants. At any time, and from time to
time, upon or after the Effective Date, at Purchaser's request and
without further consideration, NRG will execute and deliver such other
instruments and take such actions as Purchaser may reasonably deem
necessary or desirable in order to more effectively transfer, convey and
assign to Purchaser, and to confirm Purchaser's title to, the Membership
Interests or to put Purchaser in actual possession and operating control
of all of the business, properties, assets and goodwill of the business
of the Company and to assist Purchaser in exercising all rights with
respect thereto.
4. Representations and Warranties by NRG. NRG represents and
warrants to Purchaser that, as of the date of execution of this Agreement
and as of the Effective Date (upon which Effective Date, NRG will be
deemed again to have made the following representations and warranties):
4.1 Organization, Standing and Qualification of the Company. The
Company is a limited liability company in good standing under the laws of
the State of Delaware and is qualified to transact business in Illinois;
it has all requisite power and authority to enter into this Agreement and
to consummate the transactions contemplated hereby and is entitled to
carry on its business as it is now being conducted and to own, lease or
operate its properties as and in the places where such business is now
conducted. Morris is a corporation in good standing under the laws of
the State of Delaware; it has all requisite power and authority to enter
into this Agreement and to consummate the transactions contemplated
hereby and is entitled to carry on its business as it is now being
conducted and to own, lease or operate its properties as and in the
places where such business is now being conducted. Neither the Company
nor Morris is required to be qualified, licensed or domesticated as a
foreign limited liability company or corporation in any other
jurisdiction.
4.2 Execution, Delivery and Performance of Agreement; Authority.
Neither the execution, delivery nor performance of this Agreement by NRG,
with or without the giving of notice or the passage of time, or both,
conflicts with, results in a default, right to accelerate or loss of
rights under, or results in the creation of any lien, charge or
encumbrance pursuant to, any provision of the Limited Liability Company
Agreement of NRG (Morris) Cogen LLC (the "LLC Agreement"), the
constituent documents of Morris, or any franchise, mortgage, deed of
trust, lease, license, easement, agreement, understanding, law, rule or
regulation or any order, judgment or decree to which NRG, Morris or the
Company are a party or by which NRG, Morris or the Company or their
respective properties may be bound or affected. NRG has the necessary
corporate power and authority to enter into this Agreement and to carry
out the transactions contemplated by this Agreement, and this Agreement
constitutes a valid and binding obligation of NRG, enforceable in
accordance with its terms.
4.3 Formation and Purpose of the Company. The Company was formed
as a limited liability company by NRG and Morris pursuant to the
provisions of the Delaware Limited Liability Company Act by the filing of
a Certificate of Formation with the Delaware Secretary of
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State on February 27, 1997. The Company was formed as a limited
liability company to produce and sell electricity and steam from the
Company's cogeneration facilities.
4.4 Title to Membership Interests. Purchaser will acquire, lawful,
valid and marketable title to the Direct Membership Interests and the
Morris Stock (and through Morris to the membership interests in the
Company that are owned by Morris) free and clear of all liens,
encumbrances, purchase rights, claims, pledges, mortgages, security
interests, or other limitations or restrictions, except the lien in favor
of The Chase Manhattan Bank, as Collateral Agent (as defined therein)
granted by NRG and NRGMI pursuant to that certain Pledge and Security
Agreement dated as of September 15, 1997.
4.5 Litigation. Except as set forth in Schedule 4.5, there is
neither any claim, legal action, suit, arbitration, governmental
investigation or other legal or administrative proceedings, nor any
order, decree or judgment (any of them, an "Action") in progress, pending
or in effect, or, to the actual knowledge of NRG, threatened, against or
relating to the Company, Morris, the Company's members, Morris'
shareholders, the Company's or Morris' properties, assets or business,
and there is no Action in progress, pending or in effect, or to the
actual knowledge of NRG threatened, against NRG, which could reasonably
likely have a material adverse effect on NRG's ability to consummate the
transactions contemplated hereby
4.6 Ownership and Authority. The Direct Membership Interests and
the membership interests in the Company that are owned by Morris comprise
one hundred percent (100%) of the outstanding membership interests in the
Company, and the Morris Stock comprises one hundred percent (100%) of the
stock of Morris. No consent of any person or entity is required, which
has not been obtained, for NRG to sell the Direct Membership Interests or
the Morris Stock to Purchaser pursuant to this Agreement, other than
expiration or early termination of the applicable waiting period under
the Hart-Scott-Rodino Act.
4.7 No Options. Except as described in the June 3, 1997 Energy
Services Agreement between the Company and Millennium Petrochemicals
Inc., there are no outstanding options, warrants, conversion rights or
similar rights of any kind held by any person or entity to acquire any
membership interest in the Company or any stock of Morris.
4.8 Full Disclosure of Documents. NRG has provided to the
Independent Directors Committee of NRGG's Board of Directors (the
"Independent Committee") or its representatives (which include officers
of NRGG) copies of all contracts, licenses, and permits (collectively,
"Project Documents") that burden or benefit (in any material respect) the
direct or indirect equity interest of NRG and/or Purchaser in the Company
and/or in Morris (collectively, "Ownership Interest") and disclosed in
writing to such Independent Committee or such representatives any breach,
violation or default (or event that with notice or the lapse of time, or
both, would constitute a breach, violation or default) under a Project
Document that could reasonably be expected to have a material adverse
effect on the related Ownership Interest. All documents and data
prepared by NRG and delivered to NRGG have been prepared using good faith
efforts regarding their correctness and accuracy.
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4.9 No Pending Claims. NRG has disclosed in writing to the
Independent Committee or its representatives (which include officers of
NRGG) all pending (or, to its knowledge, threatened) claims by any
individual, corporation, company, voluntary association, partnership,
joint venture, trust, or incorporated organization, governmental
authority or any other form of entity other than NRG, Purchaser or any
corporation, partnership, joint venture or other entity that is
consolidated with Purchaser or claims for violations of any law, rule,
regulation or governmental requirement that could reasonably be expected
to have a material adverse effect on the Ownership Interest.
4.10 No Conflict or Breach. The conveyance to Purchaser of the
Ownership Interest will not conflict with, result in a breach by NRG, the
Company or Morris of, or require any consent which has not been obtained
by NRG, the Company or Morris under, any Project Document or applicable
law (to the extent the failure to obtain same could be reasonably
expected to have a material adverse effect on the Ownership Interest),
other than expiration or early termination of the applicable waiting
period under the Hart-Scott-Rodino Act.
5. Representations and Warranties by Purchaser and NRGG. Each of
Purchaser and NRGG, jointly and severally, represents and warrants to NRG
that, as of the date of execution of this Agreement and as of the
Effective Date (upon which Effective Date, Purchaser and NRGG will be
deemed again to have made the following representations and warranties):
5.1 Organization, Standing and Qualification. Each of Purchaser
and NRGG is a corporation in good standing under the laws of the State of
Delaware; each has all requisite power and authority to enter into this
Agreement and to consummate the transactions contemplated hereby and is
entitled to carry on its business as it is now being conducted and to
own, lease or operate its properties as and in the places where such
business is now conducted. Purchaser is qualified to transact business
in Illinois and is not required to be qualified, licensed or domesticated
as a foreign corporation in any other jurisdiction.
5.2 Execution, Delivery and Performance of Agreement; Authority.
Neither the execution, delivery nor performance of this Agreement by each
of Purchaser and NRGG, with or without the giving of notice or the
passage of time, or both, conflicts with, results in a default, right to
accelerate or loss of rights under, or results in the creation of any
lien, charge or encumbrance pursuant to, any provision of the constituent
documents of Purchaser, or any franchise, mortgage, deed of trust, lease,
license, easement, agreement, understanding, law, rule or regulation or
any order, judgment or decree to which Purchaser is a party or by which
Purchaser or NRGG or its respective properties may be bound or affected.
Each of Purchaser and NRGG has the necessary corporate power and
authority to enter into this Agreement and to carry out the transactions
contemplated by this Agreement, and this Agreement constitutes a valid
and binding obligation of each of Purchaser and NRGG, enforceable in
accordance with its terms.
5.3 Litigation. Except as set forth in Schedule 5.3, there is
neither any claim, legal action, suit, arbitration, governmental
investigation or other legal or administrative proceedings, nor any
order, decree or judgment in progress, pending or in effect, or to the
actual knowledge of
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Purchaser or NRGG threatened, against or relating to Purchaser or NRGG,
which could reasonably likely have a material adverse effect on the
ability of Purchaser or NRGG to perform its obligations hereunder or to
consummate the transactions contemplated hereby.
5.4 Authority. No consent of any person or entity is required,
which has not been obtained, for Purchaser to purchase the Direct
Membership Interests or the Morris Stock from NRG pursuant to this
Agreement, other than expiration or early termination of the waiting
period under the Hart-Scott-Rodino Act.
6. Indemnification.
6.1 Indemnification by NRG. NRG agrees to indemnify, defend, and
hold Purchaser and NRGG harmless from, against and in respect of, and
shall, on demand, reimburse Purchaser (or if Purchaser so directs, NRGG)
for any and all loss, offset, liability or damages suffered or incurred
by Purchaser or NRGG which arises out of:
(a) any untrue representation, breach of warranty or non-
fulfillment of any covenant by NRG contained in this
Agreement or in any certificate, document or instrument
delivered to Purchaser pursuant to this Agreement;
(b) any failure of NRG prior to the Effective Date to comply
with the ESA Obligations prior to assignment to Purchaser
as contemplated in Section 2.2; and
(c) any and all actions, suits, proceedings, claims, demands,
assessments, judgments, costs and expenses, including,
without limitation, reasonable attorneys' fees and
expenses, incident to any of the foregoing or incurred in
investigating or attempting to avoid the same or to oppose
the imposition thereof, or relating to the enforcement of
this indemnity.
6.2 Indemnification by Purchaser and NRGG. Each of Purchaser and
NRGG agrees, jointly and severally, to indemnify and hold NRG harmless
from, against and in respect of and shall, on demand, reimburse NRG for
any, loss, offsets, liability, or damages suffered or incurred by NRG and
resulting from:
(a) any untrue representation, breach of warranty or non-
fulfillment of any covenant or agreement by Purchaser or
NRGG contained in this Agreement or in any certificate,
document or instrument delivered to NRG pursuant to this
Agreement;
(b) any failure of Purchaser on or after the Effective Date to
comply with the ESA Obligations as assumed by Purchaser as
contemplated in Section 2.2; and
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(c) any and all actions, suits, proceedings, claims, demands,
assessments, judgments, costs and expenses, including,
without limitation, reasonable attorneys' fees and
expenses, incident to any of the foregoing or incurred in
investigating or attempting to avoid the same or to oppose
the imposition thereof, or relating to the enforcement of
this indemnity.
6.3 Third Party Actions.
(a) In order for a party (the "indemnified party"), to be
entitled to any indemnification provided for under this
Agreement in respect of, arising out of or involving a
claim made by any person against the indemnified party (a
"Third-Party Claim"), such indemnified party must notify
the indemnifying party in writing of the Third-Party Claim
within a reasonable time after receipt by such indemnified
party of written notice of the Third-Party Claim.
Thereafter, the indemnified party shall deliver to the
indemnifying party, within a reasonable time after the
indemnified party's receipt thereof, copies of all notices
and documents (including court papers) received by the
indemnified party relating to the Third-Party Claim.
(b) If a Third-Party Claim is made against any indemnified
party, the indemnifying party will be entitled to
participate in the defense thereof and, if it so chooses,
to assume the defense thereof with counsel selected by the
indemnifying party; provided such counsel is not
reasonably objected to by the indemnified party. Should
the indemnifying party so elect to assume the defense of a
Third-Party Claim, the indemnifying party will not be
liable to the indemnified party for any legal expenses
subsequently incurred by the indemnified party in
connection with the defense thereof, unless the parties to
the relevant action include such indemnified party and the
indemnifying party, and such indemnified party shall have
been advised by counsel that there may be one or more
legal defenses available to it which are different from or
in addition to those available to the indemnifying party;
provided that the indemnifying party shall not in such
event be responsible hereunder for the fees and expenses
of more than one firm or separate counsel in connection
with such action, in addition to any local counsel. If
the indemnifying party elects to assume the defense of a
Third-party Claim, the indemnified party will (i)
cooperate in all reasonable respects with the indemnifying
party in connection with such defense, (ii) not admit any
liability with respect to, or settle, compromise or
discharge, any Third-Party Claim without the indemnifying
party's prior written consent and (iii) agree to any
settlement, compromise or discharge of a Third-Party Claim
which the indemnifying party may recommend and which by
its terms obligates the indemnifying party to pay the full
amount of the liability in connection with such Third-
Party Claim and which releases the indemnified party
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completely in connection with such Third-Party Claim. In
the event the indemnifying party shall assume the defense
of any Third-Party Claim, the indemnified party shall be
entitled to participate in (but not control) such defense
with its own counsel at its own expense. If the
indemnifying party does not assume the defense of any such
Third-Party Claim, the indemnified party may defend the
same in such manner as it may deem appropriate, including
but not limited to settling such claim or litigation after
giving notice to the indemnifying party of such terms, and
the indemnifying party will promptly reimburse the
indemnified party upon written request for all cost,
expense (including reasonable attorneys' fees), loss,
liability or damage incurred and paid by the indemnified
party in connection with such claim.
7. Nature and Survival of Representations and Warranties;
Limitation of Liability. All representations, warranties, and covenants
made by Purchaser, NRGG or NRG in this Agreement or in any document,
certificate or other instrument delivered pursuant to this Agreement or
in connection with this Agreement will survive the Effective Date for a
period equal to one (1) year, plus any time required to resolve disputes.
NRG shall not have any liability to Purchaser or NRGG under this
Agreement for breach of representation, or for claims for indemnification
from NRG under Sections 6.1(a) and/or (c), in an aggregate amount in
excess of the Purchase Price; and neither Purchaser nor NRGG shall have
any liability under this Agreement for breach of representation, or for
claims for indemnification from Purchaser under Sections 6.2(a) and/or
(c), in an aggregate amount in excess of the Purchase Price (with such
limit being collective as to Purchaser and NRGG, such that the collective
liability of Purchaser and NRGG shall not in the aggregate exceed the
Purchase Price). This limitation of liability does not apply to claims
for indemnification from NRG under Section 6.1(b) (and Section 6.1(c) to
the extent applicable to a claim initiated under Section 6.1(b)) for
failure of NRG to comply with the ESA Obligations prior to the Effective
Date or to claims for indemnification from Purchaser under Section 6.2(b)
(and Section 6.1(c) to the extent applicable to a claim initiated under
Section 6.1(b)) for failure of Purchaser to comply with the ESA
Obligations on or after the Effective Date. Purchaser's, NRGG's and
NRG's respective rights and obligations in connection with Purchaser's
assumption (and NRGG's guaranty thereof) of the Equity Commitment are as
set forth in the documents implementing such assumptions and guaranty and
are not impaired by the terms hereof.
8. Notices. All notices or other communications required or
permitted to be given under any of the provisions of this Agreement must
be in writing and are deemed to have been duly given when personally
delivered, sent by facsimile or mailed by first class registered mail,
return receipt requested, or by a nationally-recognized overnight
delivery service, addressed to the parties at the addresses set forth
below (or such other address as any party may specify by notice to all
other parties given as aforesaid). A copy of a notice sent to counsel
does not constitute notice under this Agreement.
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If to Purchaser to:
NRGG Funding Inc.
1221 Nicollet Mall, Suite 610
Minneapolis, MN 55402
Attn.: President
Facsimile No. (612) 373-8833
If to NRGG:
NRGG Generating (U.S.) Inc.
1221 Nicollet Mall, Suite 610
Minneapolis, MN 55402
Attn.: President
Facsimile No. (612) 373-8833
If to NRG to:
NRG Energy, Inc.
1221 Nicollet Mall, Suite 700
Minneapolis, MN 55403-2445
Attn.: Vice President, U.S. Business Development
Facsimile No. (612) 373-5430
With a copy to:
NRG Energy, Inc.
1221 Nicollet Mall, Suite 700
Minneapolis, MN 55403-2445
Attn.: Vice President and General Counsel
Facsimile No. (612) 373-5392
9. Miscellaneous.
9.1 Entire Agreement. This Agreement constitutes the entire
agreement of the parties with respect to the subject matter of this
Agreement and supersedes any and all prior instruments concerning such
subject matter, including without limitation the Letter of Intent between
NRG and NRGG dated December 3, 1997. This Agreement may not be amended
or terminated except by a written agreement specifically referring to
this Agreement signed by all of the parties to this Agreement. This
Agreement shall not be construed to affect the parties' obligations under
that certain Confidentiality Agreement between NRG and NRGG dated as of
October 3, 1997.
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9.2 Written Waivers. No waiver of any breach or default under this
Agreement is valid unless in writing and signed by the party giving such
waiver, and such a written waiver does not constitute a waiver of any
subsequent breach or default of any nature.
9.3 Binding Nature of Agreement. This Agreement is binding upon
and inures to the benefit of the parties to this Agreement and their
respective successors and assigns but does not confer any rights upon any
third persons except as expressly set forth in this Agreement. No party
may assign its rights or delegate its duties and obligations under this
Agreement without the prior written consent of the other parties, except
that Purchaser may, without any consent of NRG and Morris, assign all or
any portion of Purchaser's rights under this Agreement to any commercial
lender providing financing to Purchaser.
9.4 Headings. The section headings contained in this Agreement are
intended for convenience only and do not define or limit the contents of
such sections.
9.5 Costs and Expenses. Purchaser, NRGG and NRG must each bear
their respective costs and expenses in connection with the negotiation,
execution and performance of this Agreement, including all taxes of any
type and the fees and disbursements of all attorneys, accountants,
appraisers and advisors retained by or representing them in connection
with the preparation and performance of this Agreement. NRG is solely
responsible for any brokers' or advisors' fees payable for services
rendered to NRG or the Company with respect to the transactions
contemplated by this Agreement. If any arbitration or legal proceedings
are instituted to enforce the terms of this Agreement or to declare
rights under this Agreement, the prevailing party is entitled to an award
of reasonable attorneys' fees and expenses. The Company must not pay any
costs, fees or expenses which NRG is obligated to pay.
9.6 Governing Law. This Agreement is governed by and shall be
construed in accordance with the internal laws of the State of Minnesota,
without regard to the conflicts of law principles contained therein.
9.7 Termination. This Agreement shall terminate and be of no
further force or effect if the Effective Date does not occur on or before
January 31, 1998. Notwithstanding such termination, the provisions of
Section 9.5 shall survive termination and continue in full force and
effect.
IN WITNESS WHEREOF, the parties to this Agreement have caused this
Agreement to be duly executed as of the day and year first above written.
NRGG GENERATING (U.S.) INC.
By: /s/ Robert T. Sherman, Jr.
Its: President & CEO
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NRGG FUNDING INC.
By: /s/ Timothy P. Hunstad
Its: VP & CFO
NRG ENERGY, INC.
By: /s/ David H. Peterson
Its: President
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Exhibits and Schedules to Membership Interest Purchase Agreement
Schedules omitted from filing:
4.5 Litigation
5.3 Litigation
The registrant hereby agrees to furnish supplementally a copy of any
omitted schedule to the Securities and Exchange Commission upon request.
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