EXHIBIT 10.44
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INTERCREDITOR AGREEMENT
DATED AS OF MARCH 28, ▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇, N.A.
AS ADMINISTRATIVE AGENT AND COLLATERAL AGENT
AND
CITICORP USA, INC.
AS TRANCHE A AGENT
AND
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CITIBANK, N.A.
AS TRANCHE A COLLATERAL AGENT
TABLE OF CONTENTS
SECTION 1. Definitions....................................................................................2
1.01. Definition of Terms Used Herein Generally......................................................2
1.02. Definition of Certain Terms Used Herein........................................................2
1.03. Rules of Interpretation........................................................................4
SECTION 2. Treatment of Liens on Synthetic Lease Properties During Preference Period......................4
2.01. Acknowledgment of Liens........................................................................4
2.02. Priority of Tranche A Liens Under Certain Circumstances........................................4
2.03. Tranche A Agent and Tranche A Collateral Agent.................................................5
2.04. Termination of Priority and Tranche A Liens upon Expiration of Preference Period...............5
2.05. Termination of Priority Following Insolvency Event.............................................5
2.06. Treatment of Liens in Certain Circumstances....................................................6
SECTION 3. Priority in Synthetic Lease Properties upon Expiration of Preference Period....................5
3.01. Nature of Claim; No Additional Lien............................................................5
3.02. Priority Claim; Application of Proceeds........................................................6
3.03. Reduction of Priority Claim....................................................................8
3.04. No Sale of Synthetic Lease Properties; No Other Claims.........................................8
SECTION 4. Priority of Senior Priority Facility...........................................................8
4.01. Priority of Senior Priority Obligations........................................................8
4.02. Priority of Senior Priority Liens..............................................................9
4.03. Turnover.......................................................................................9
4.04. Certain Distributions..........................................................................9
4.05. Certain Payments Permitted....................................................................10
4.06. No Action.....................................................................................10
SECTION 5. Miscellaneous.................................................................................10
5.01. Notices.......................................................................................10
5.02. Governing Law; Consent To Jurisdiction........................................................10
5.03. Waiver Of Jury Trial, Etc.....................................................................11
5.04. Counterparts..................................................................................11
5.05. Headings......................................................................................11
5.06. Successors and Assigns........................................................................11
5.07. No Strict Construction........................................................................11
5.08. Severability..................................................................................11
5.09. Amendments....................................................................................11
SCHEDULES
A Pledged Equity Interests
B Grantors
ii
INTERCREDITOR AGREEMENT (this "Intercreditor Agreement"), dated as of
March 28, 2003, between BANK OF AMERICA, N.A., as Administrative Agent and as
Collateral Agent under the Credit Agreement referred to below (in such
capacities, the "Agent"), and CITICORP USA, INC., as Tranche A Agent (the
"Tranche A Administrative Agent") and CITIBANK, N.A., as Tranche A Collateral
Agent under the Credit Agreement referred to below (the "Tranche A Collateral
Agent"; and collectively with the Tranche A Administrative Agent, the "Tranche A
Agents").
W I T N E S S E T H:
WHEREAS, Reliant Resources, Inc. ("RRI"), the lenders party thereto,
and Bank of America, N.A., as administrative agent have previously entered into
that certain 364-Day Credit Agreement dated as of August 23, 2001 (as such
agreement has heretofore been amended, supplemented or otherwise modified as of
the date hereof, the "364-Day Credit Agreement"); and
WHEREAS, RRI, the lenders party thereto, and Bank of America, N.A., as
administrative agent previously have entered into that certain Three-Year Credit
Agreement dated as of August 23, 2001 (as such agreement has heretofore been
amended, supplemented or otherwise modified as of the date hereof, the
"Three-Year Credit Agreement"); and
WHEREAS, RRI, the lenders party thereto, and Bank of America, N.A., as
administrative agent previously have entered into that certain Interim 364-Day
Credit Agreement dated as of November 15, 2001 (as such agreement has heretofore
been amended, supplemented or otherwise modified as of the date hereof, the
"Interim 364-Day Credit Agreement"; and together with the 364-Day Credit
Agreement and the Three-Year Credit Agreement, the "Existing Credit
Agreements"); and
WHEREAS, (a) the Owner Trusts, Signal Peak Trust, the lenders party
thereto, Citicorp USA, Inc., as Administrative Agent and certain other parties
thereto, previously have entered into that certain $2,425,000,000 Amended and
Restated Credit Agreement dated as of November 29, 2001 (the "CAA Credit
Agreement"), (b) the Owner Trusts, Signal Peak Trust, Citicorp USA, Inc., as
Lender Agent, Citibank, N.A., as Collateral Agent, and certain other secured
parties and authorized representatives previously have entered into that certain
Collateral Agency and Intercreditor Agreement dated as of November 29, 2001, (c)
First Union Trust Company, National Association, as Master Owner Trustee,
Citicorp USA, Inc., as Administrative Agent, the Owner Trusts, Signal Peak
Trust, and the Certificate Participants previously have entered into that
certain Master Trust Agreement dated as of November 29, 2001, (d) each Owner
Trust and its corresponding Reliant LLC, as agent, Signal Peak Trust, as owner
trust, Signal Peak LLC, as agent, and, in each case, the other parties thereto
previously have entered into the four Amended and Restated Construction Agency
Agreements dated as of November 29, 2001, (e) each Owner Trust, as Lessor, and
its corresponding Reliant LLC, as Lessee, previously have entered into the three
Lease and Security Agreements dated as of November 29, 2001, (f) each Reliant
LLC, as Ground Lessor, and its corresponding Owner Trust, as Ground Lessee,
previously have entered into the three Ground Leases dated as of November 29,
2001, (g) RRI previously has made, in favor of each Owner Trust, the three
Amended and Restated Guaranties dated as of November 29, 2001, and the Guaranty
dated as of November 21, 2001, guaranteeing to each Owner Trust and the Signal
Peak Trust the obligations of its corresponding Reliant LLC and Signal Peak LLC
(as the case may be) under the corresponding CAA and other agreements, and (h)
certain other documents previously have been executed in connection with the
foregoing, including the other security documents referred to in all of the CAAs
(as all of such foregoing agreements have heretofore been amended, supplemented
or otherwise modified from time to time, the "Synthetic Lease Documents"); and
WHEREAS, at the request of RRI, and in order to (i) amend and restate
the Existing Credit Agreements and the Synthetic Lease Documents to restructure
the obligations thereunder and (ii) provide
for a new revolving credit facility for RRI in the amount of $300 million on
certain terms, RRI, the other Credit Parties referred to therein, the Lenders
referred to therein, the Administrative Agent, the Collateral Agent, the Tranche
A Administrative Agent and the Tranche A Collateral Agent, among others, have
entered into that certain Amended and Restated Credit and Guaranty Agreement
dated as of the date hereof (as the same may be amended, modified or
supplemented from time to time, the "Credit Agreement"); and
WHEREAS, in order to facilitate the general pooling of assets
contemplated by the Lenders under the Credit Agreement and the other Fundamental
Documents, to provide the Lenders previously party to the Synthetic Lease
Documents with, inter alia, a priority claim in any insolvency proceeding
involving RRI or any Grantor arising from the sale or disposition of any
Synthetic Lease Property and to establish certain rights in the event that an
Insolvency Event occurs during the Preference Period or prior to the payment of
the Tranche A Loans or the Adjusted Tranche A Obligations, as the case may be,
the Agent and the Tranche A Agent are entering into this Intercreditor
Agreement.
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
SECTION 1. Definitions.
1.01. Definition of Terms Used Herein Generally. All
capitalized terms used but not defined herein shall have the meanings set forth
in the Credit Agreement.
1.02. Definition of Certain Terms Used Herein. As used herein,
the following terms shall have the following meanings:
"Adjusted Tranche A Lenders" shall mean Lenders holding Adjusted
Tranche A Obligations.
"Adjusted Tranche A Obligations" shall mean, in the event an Insolvency
Event occurs on any date prior to the expiration of the Preference Period, the
sum of the following obligations outstanding on such date: (i) Tranche A Loans,
(ii) the Tranche A Revolving Loans, plus (iii) accrued and unpaid interest on
the foregoing loans, it being agreed that the maximum principal amount of
outstanding obligations referred to in clause (i) shall not exceed
$920,617,731.33 and the maximum principal amount of obligations referred to in
clause (ii) shall not exceed $504,382,268.67.
"Credit Agreement" shall have the meaning assigned to such term in the
fifth recital of this Intercreditor Agreement.
"Effective Date" shall mean the date which is the later of (x) date on
which all the Mortgages and UCC financing statements executed and delivered by
the Grantors in favor of the Collateral Agent (for the benefit of the Secured
Parties) with respect to the Collateral (other than the Synthetic Lease
Properties) have been filed and (y) the date on which the Collateral Agent (for
the benefit of the Secured Parties) takes physical possession of the equity
interests of the entities listed on Schedule A hereto.
"Grantors" shall mean RRI and each of the entities listed on Schedule B
hereto.
"Insolvency Event" shall mean the commencement of any voluntary or
involuntary case or proceeding by or against RRI or any Grantor under the
Bankruptcy Code.
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"Non-SLP Proceeds" shall mean any cash proceeds received by the
Administrative Agent, the Collateral Agent, the Tranche A Administrative Agent
or the Tranche A Collateral Agent in connection with the Fundamental Documents
with respect to, and amounts received from, the sale, transfer or other
disposition of any Collateral or any other asset or property subject to a Lien
other than the Synthetic Lease Property pursuant to any Security Document (or
any portion thereof) or any enforcement, foreclosure or other realization event
relating thereto, in each case net of costs, expenses and taxes payable as a
result of such enforcement, foreclosure or realization.
"Preference Period" shall mean the period beginning on the Effective
Date and ending at 12:01 a.m. (Eastern time) on the date which is ninety-one
(91) days thereafter.
"Priority Claim" shall mean the priority claim provided to the Tranche
A Lenders under Section 3.02(a) or (c) hereof.
"Remaining Lenders" shall mean the Lenders under the Credit Agreement
in their capacities other than as a Tranche A Lender or an Adjusted Tranche A
Lender.
"Remaining Priority" shall mean the amount, determined in the
circumstances where a sale of all or of a portion of the Synthetic Lease
Properties are sold prior to the occurrence of an Insolvency Event (but after
the expiration of the Preference Period), which shall be equal to the excess, if
any, of $200,000,000 over the SLP Proceeds arising from the sale or sales of
Synthetic Lease Property prior to the occurrence of an Insolvency Event.
"Restructuring Liens" shall mean the Liens granted by all of the
Grantors on all of their assets and properties (other than any Excluded
Property, but including the Synthetic Lease Properties) to secure, among other
things, the Restructured Obligations and shall exclude the Liens granted on the
Synthetic Lease Properties pursuant to the SL Security Documents.
"Restructured Obligations" shall mean all Obligations owing by the
Credit Parties to the Term Lenders, the Revolving Lenders, any Revolver Issuing
Bank, any Lender Hedging Banks, the Tranche A Agent (if applicable) and any
Agent under the Credit Agreement and the other Fundamental Documents.
"Senior Priority Liens" shall mean the Liens granted by all of the
Creditor Parties on all of their assets and properties (other than any Excluded
Property, but including the Synthetic Lease Properties) to secure, among other
things, the Senior Priority Obligations.
"Senior Secured Credit Termination Date" shall have the meaning
assigned to such term in Section 4.01 hereof.
"SLP Proceeds" shall mean any cash proceeds received by the
Administrative Agent, the Collateral Agent, the Tranche A Administrative Agent
or the Tranche A Collateral Agent in connection with the Fundamental Documents
with respect to, and amounts received from, the sale, transfer or other
disposition of any Synthetic Lease Property (or any portion thereof) or any
enforcement, foreclosure, Recovery Event or other realization event relating
thereto (including without limitation any realization under any title insurance
policy issued in connection with any Synthetic Lease Property), in each case net
of costs, expenses and taxes payable as a result of such sale, transfer, other
disposition or enforcement, foreclosure or realization.
"SL Security Documents" means the documents listed on Schedule 1H to
the Credit Agreement.
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"Synthetic Lease Property" shall mean (i) the Hunterstown Project
comprised of the land and the improvements and equipment constructed or
installed thereon (including all related appliances, appurtenances, accessions,
controls, interconnection facilities, transmission lines, wiring, furnishings,
materials and parts and other related facilities and equipment, along with any
replacements), and all associated contracts, rights and assets, associated with
the electrical generating facility and related facilities located in, or to be
located in, Straban Township, ▇▇▇▇▇ County, Pennsylvania, excluding the Existing
Hunterstown Facility (as defined in the Amended and Restated Lease and Security
Agreement, dated as of March 28, 2003, between Reliant Energy Hunterstown, LLC
and Hunterstown Trust, (ii) the Choctow County Project comprised of the land and
the improvements and equipment constructed or installed thereon (including all
related appliances, appurtenances, accessions, controls, interconnection
facilities, transmission lines, wiring, furnishings, materials and parts and
other related facilities and equipment, along with any replacements), and all
associated contracts, rights and assets, associated with the electrical
generating facility and related facilities located in, or to be located in,
Choctaw County, Mississippi and (iii) the ▇▇▇▇▇▇ Project comprised of the land
and the improvements and equipment constructed thereon (including all related
appliances, appurtenances, accessions, controls, interconnection facilities,
transmission lines, wiring, furnishings, materials and parts and other related
facilities and equipment, along with any replacements), and all associated
contracts, rights and assets, associated with the electrical generating facility
and related facilities located in, or to be located in, East Wheatfield and West
Wheatfield Townships, Indiana County, Pennsylvania, excluding the Existing
▇▇▇▇▇▇ Facility, but including certain Shared Facilities (as such terms are
defined in the Amended and Restated Lease and Security Agreement, dated as of
March 28, 2003, between Reliant Energy ▇▇▇▇▇▇, LLC and ▇▇▇▇▇▇ Trust).
"Tranche A Liens" shall mean the Liens on the Synthetic Lease
Properties securing the Adjusted Tranche A Obligations which are subject to the
provisions to Section 2.04.
"Tranche A Revolving Loans" shall mean that portion of the Revolving
Loans that, prior to giving effect to the restructuring contemplated by the
Credit Agreement, constituted loans under the CAA Credit Agreement or
investments under the Master Trust Agreement.
1.03. Rules of Interpretation. The rules of interpretation
specified in Article 1 of the Credit Agreement shall be applicable to this
Intercreditor Agreement.
SECTION 2. Treatment of Liens on Synthetic Lease Properties During
Preference Period.
2.01. Acknowledgment of Liens. The parties acknowledge and
agree that, (i) pursuant to the Synthetic Lease Documents, certain Credit
Parties have granted the Tranche A Liens and (ii) pursuant to the Fundamental
Documents, all of the Credit Parties have granted the Restructured Liens. Each
of (i) the Administrative Agent and the Collateral Agent (on their own behalf
and on behalf of the Lenders and the Senior Priority Lenders) and (ii) the
Tranche A Administrative Agent and the Tranche A Collateral Agent (on their own
behalf and on behalf of the Tranche A Lenders and the Adjusted Tranche A
Lenders) agree that they shall not contest the validity, enforceability or
priority of the respective Liens being granted to secure the Senior Priority
Loans, the Restructured Obligations, the Tranche A Loans or the Adjusted Tranche
A Obligations.
2.02. Priority of Tranche A Liens Under Certain Circumstances.
Subject to Sections 2.04, 2.05 and 4.01, if an Insolvency Event shall occur
during the Preference Period, the parties agree that, as between the Adjusted
Tranche A Lenders and the Remaining Lenders, any SLP Proceeds shall be applied
as follows: first, to reimburse the Tranche A Agent for reasonable costs and
expenses incurred
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after the Insolvency Event in respect of the preservation and enforcement of
rights of the Adjusted Tranche A Obligations; second, to pay the accrued but
unpaid interest on the Tranche A Loans and the Tranche A Revolving Loans; third,
to (x) pay the outstanding principal balance of the Adjusted Tranche A
Obligations (with amounts payable to each Adjusted Tranche A Lender to be
determined in accordance with the amount of outstanding Adjusted Tranche A
Obligations) to be applied against the scheduled amortization payments thereof
in direct order of maturity, and (y) to cash collateralize Revolver Letters of
Credit to the extent that the Adjusted Tranche A Lenders are obligated to
reimburse the Revolver Issuing Bank therefor, in an amount equal to 105% of the
outstanding Revolver L/C Exposure of the Adjusted Tranche A Lenders on a pro
rata basis; and fourth, to pay the Restructured Obligations. As between the
Remaining Lenders and the Adjusted Tranche A Lenders, amounts received by the
Adjusted Tranche A Lenders pursuant to this Section 2.02 shall not be subject to
Section 10.3 of the Credit Agreement.
2.03. Tranche A Administrative Agent and Tranche A Collateral
Agent. Pursuant to this Intercreditor Agreement and the Credit Agreement, and
subject to Sections 2.04 and 4.01 hereof, the Tranche A Administrative Agent and
Tranche A Collateral Agent shall act as administrative and collateral agent, as
the case may be, on behalf of the Adjusted Tranche A Lenders with respect to the
Tranche A Liens during the Preference Period. The Tranche A Collateral Agent
shall only be permitted to assert rights and exercise remedies in respect of
Synthetic Lease Properties, the Tranche A Liens and the Adjusted Tranche A
Obligations. Upon the expiration of the Preference Period without there having
occurred an Insolvency Event (or should an Insolvency Event have occurred and
have been dismissed by a final, non-appealable order prior to the expiration of
the Preference Period), the administrative agency and the collateral agency in
respect of the Tranche A Loans, the Tranche A Revolving Loans or the Adjusted
Tranche A Obligations, as the case may be, shall cease, and the Tranche A
Administrative Agent and the Tranche A Collateral Agent shall, automatically and
without any further action on the part of any Person, cease to be the Tranche A
Administrative Agent and Tranche A Collateral Agent hereunder. In such an event,
the Administrative Agent shall have the sole responsibility for the general
administration of the Credit Agreement and the other Fundamental Documents and
any other documents contemplated by the Credit Agreement or any other
Fundamental Document for all of the Loans and the Collateral Agent shall have
sole responsibility in respect of the Collateral under all such documents and
under applicable law.
2.04. Termination of Priority and Tranche A Liens upon
Expiration of Preference Period. If (i) no Insolvency Event shall occur during
the Preference Period or (ii) should an Insolvency Event have occurred and have
been dismissed prior to 12:01 a.m. of the ninety-first day following the
Effective Date pursuant to a final, non-appealable order, (a) this Section 2
shall automatically and without any further action on the part of any Person
terminate and cease to be in effect for all purposes of this Intercreditor
Agreement and the other Fundamental Documents and (b) the Tranche A Liens shall
no longer secure any of the Adjusted Tranche A Obligations and shall be deemed
to secure the Restructured Obligations. For purposes of this Section 2.04, the
occurrence and dismissal of an Insolvency Event prior to the expiration of the
Preference Period as provided in the preceding sentence shall not have the
effect of shortening the Preference Period to a duration of less than the period
set forth in the definition of Preference Period.
2.05. Termination of Priority Following Insolvency Event.
Notwithstanding the occurrence during the Preference Period of an Insolvency
Event, the priority claim set forth in Section 2.02 shall automatically and
without any further action on the part of any Person terminate and cease to be
in effect for all purposes upon the occurrence of any of the following events
with respect to any potential or actual lien avoidance or similar claims
pertaining to the Restructuring Liens or any payments made in respect of any of
the Restructured Obligations: (i) any determination by a court of competent
jurisdiction pursuant to a final non-appealable order that the Restructuring
Liens are not to be
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avoided or payments made in respect of the Restructured Obligations are not to
be recovered, (ii) resolution of any such claims pursuant to a final
non-appealable order confirming a plan of reorganization or liquidation with
respect to any of the Grantors in a manner consistent with the preceding clause
(i), (iii) a settlement or other compromise in which some or all of the
Restructuring Liens remain in effect or payments made in respect of the
Restructured Obligations made prior to or during any Insolvency Proceeding are
retained by the relevant Secured Parties, which settlement or compromise is
approved by a final non-appealable order of a court of competent jurisdiction,
or (iv) all parties in interest fail to properly assert any such avoidance or
recovery actions during any applicable time periods established by a final
non-appealable order of a court of competent jurisdiction in respect of such
avoidance or recovery actions, provided, however in the event such order is
vacated or modified by a court of competent jurisdiction and the applicable time
period is extended, then the extended period arising from such vacated or
modified order shall apply.
2.06. Treatment of Liens in Certain Circumstances. Without
limitation of Section 2.05, if, following the occurrence of an Insolvency Event
during the Preference Period, any of the events described in clauses (i) through
(iv) of Section 2.05 occur whereby a portion of the Restructuring Liens are
retained or a portion of the payments made in respect of the Refinancing
Obligations made prior to or during any Insolvency Proceeding are retained by
the relevant Secured Parties, the Adjusted Tranche A Lenders and the Remaining
Lenders authorize the Agent and the Tranche A Agent to (and each of the Agent
and the Tranche A Agent agrees that it shall) conduct good faith negotiations to
determine the extent of the benefit afforded to the Adjusted Tranche A Lenders
on account of the Tranche A Liens pursuant to this Section 2 and detriment to
the Adjusted Tranche A Lenders on account of any events described in clauses (i)
through (iv) of Section 2.05.
SECTION 3. Priority in Synthetic Lease Properties upon Expiration of
Preference Period.
3.01. Nature of Claim; No Additional Lien. As set forth herein
and subject to Section 3.03 and 3.05, this Section 3 establishes an
intercreditor claim between (i) the Tranche A Administrative Agent, the Tranche
A Collateral Agent and the Tranche A Lenders and (ii) the Administrative Agent,
the Collateral Agent and the Remaining Lenders, and is not intended and shall
not be deemed to provide to the Tranche A Lenders a separate Lien in any
property or assets of any Grantor or any additional rights, claims or standing
in any proceeding under any Debtor Relief Law.
3.02. Priority Claim; Application of Proceeds.
(a) Priority Claim - Tranche A Loans Equal to or
Greater Than $200,000,000. The parties agree that should an Insolvency Event
occur subsequent to the expiration of the Preference Period and there are
outstanding Tranche A Loans in an amount equal to or in excess of two hundred
million dollars ($200,000,000), the Tranche A Lenders shall have a priority
claim as follows:
(i) Sales of Synthetic Lease Properties
Following Insolvency Event with No Prior Sales Conducted: If no Synthetic Lease
Property has been sold prior to the occurrence of such Insolvency Event, then as
between the Tranche A Lenders and the Remaining Lenders (and without limitation
of the priority rights of the Senior Priority Lenders as set forth below and in
the Fundamental Documents) the Tranche A Lenders shall, subject to Sections 3.03
and 4.01, have a priority claim in the first two hundred million dollars
($200,000,000) of SLP Proceeds available for distribution, and such SLP Proceeds
shall be applied as set forth in Section 3.02(b);
(ii) Sales of Synthetic Lease Properties
Prior to an Insolvency Event Where SLP Proceeds Equal to or Greater Than
$200,000,000: If sales of Synthetic Lease Property have occurred prior to such
Insolvency Event resulting in SLP Proceeds in an amount equal to or greater than
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two hundred million dollars ($200,000,000), then as between the Tranche A
Lenders and the Remaining Lenders (and without limitation of the priority rights
of the Senior Priority Lenders as set forth below and in the Fundamental
Documents) the Tranche A Lenders shall, subject to Sections 3.03 and 4.01, have
a priority claim in the first two hundred million dollars ($200,000,000) of
Non-SLP Proceeds available for distribution and such Non-SLP Proceeds shall be
applied as set forth in Section 3.02(b); and
(iii) Sales of Synthetic Lease Properties
Prior to an Insolvency Event Where SLP Proceeds Less Than $200,000,000: If sales
of Synthetic Lease Property have occurred prior to such Insolvency Event
resulting in SLP Proceeds in an amount less than two hundred million dollars
($200,000,000), then as between the Tranche A Lenders and the Remaining Lenders
(and without limitation of the priority rights of the Senior Priority Lenders as
set forth below and in the Fundamental Documents) the Tranche A Lenders shall,
subject to Sections 3.03 and 4.01, have a priority claim in an amount equal to
the sum of (A) the amount of SLP Proceeds arising prior to such Insolvency Event
(which in all events shall be less than $200,000,000) plus (B) the lesser of (I)
the amount of SLP Proceeds arising after the occurrence of such Insolvency Event
and (II) an amount equal to the Remaining Priority, with such Non-SLP Proceeds
and SLP Proceeds, as the case may be, to be applied as set forth in Section
3.02(b).
(b) Application of Proceeds. To the extent that the
Tranche A Lenders are entitled to a priority claim in any SLP Proceeds or
Non-SLP Proceeds pursuant to Section 3.02(a), notwithstanding any other
provision of this Intercreditor Agreement (other than Section 4 hereof) or any
other Fundamental Document, such SLP Proceeds or Non-SLP Proceeds, as the case
may be, shall be applied as follows: first, to pay the accrued but unpaid
interest on the Tranche A Loans, on a pro rata basis determined in accordance
with amounts owed with respect to the foregoing; second, to pay the outstanding
principal balance of the Tranche A Loans (with amounts payable to each Tranche A
Lender to be determined in accordance with the amount of outstanding Tranche A
Loans owed to such Tranche A Lender) and to be applied against the scheduled
amortization payments thereof in direct order of maturity, third, to pay the
accrued but unpaid interest on the Term Loans and Revolving Credit Loans,
accrued but unpaid Revolver Commitment Fees and Letter of Credit Fees in respect
of Revolver Letters of Credit, on a pro rata basis determined in accordance with
amounts owed with respect to the foregoing; fourth, to pay (x) the outstanding
principal balance of the Term Loans and the Revolving Credit Loans (with amounts
payable to each Remaining Lender to be determined in accordance with the amount
of outstanding Term Loans and Revolving Credit Loans owed to such Remaining
Lender) and, in the case of the Term Loans, to be applied against the scheduled
amortization payments thereof in direct order of maturity, (y) to cash
collateralize Revolver Letters of Credit in an amount equal to 105% of the
outstanding Revolver L/C Exposure; and (z) to pay Revolver Issuing Banks for all
unreimbursed drawings under Revolver Letters of Credits on a pro rata basis
determined in accordance with the aggregate outstanding principal balance of the
Terms Loans and the Revolving Credit Loans, the aggregate L/C Exposure
attributable to Revolver Letters of Credit and (without any duplication) the
aggregate amount of all unreimbursed drawings under Revolver Letters of Credit;
and fifth, to pay the remainder of the Restructured Obligations or any other
amounts then due under the Credit Agreement or any other Fundamental Document.
As between the Remaining Lenders and the Synthetic Lease Lenders, amounts
received by the Tranche A Lenders pursuant to this Section 3.02(b) shall not be
subject to Section 10.3 of the Credit Agreement.
(c) Priority Claim - Tranche A Loans Less Than
$200,000,000. The parties agree that, notwithstanding any other provision of
this Intercreditor Agreement (other than Section 4 hereof) or any other
Fundamental Document, after the expiration of the Preference Period and as so
long as an Insolvency Event has not occurred (or if it shall have occurred, has
been dismissed prior to 12:01 A.M. (ET) on the ninety-first day follow the
Effective Date pursuant to a final, non-appealable order), to the extent the
outstanding principal amount of the Tranche A Loans is less than two hundred
million dollars ($200,000,000), the provisions of Sections 3.02(a) and (b) shall
apply in all respects until the
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outstanding principal amount of the Tranche A Loans and accrued interest thereon
is paid in full, provided, that to the extent that any payment of any principal
amount of the Tranche A Loans or interest thereon is rescinded or must otherwise
be restored or returned by any Tranche A Lender to the payor or its trustee in
accordance with the order of any court of competent jurisdiction in any
insolvency, bankruptcy, dissolution, liquidation or reorganization of the payor
(or a settlement of any claim or potential claim made in connection with any
such proceeding), or as required as a result of the appointment of any
custodian, receiver, trustee or other officer with respect to the payor or any
substantial part of its property or assets, the provisions of this Section 3
shall be reinstated as to any Tranche A Loans as to which such restoration or
return shall have occurred.
(d) Termination of Claim Upon Repayment of Tranche A
Loans. Upon the payment in full of the outstanding principal amount of the
Tranche A Loans and accrued interest thereon, the provisions of this Section
3.02 shall automatically and without any further action on the part of any
Person terminate and cease to be in effect for all purposes of this
Intercreditor Agreement and the other Fundamental Documents and the Tranche A
Lenders shall not be entitled to any priority of payment or claims in any
respect, provided, that to the extent that any payment of any principal amount
of the Tranche A Loans or interest thereon is rescinded or must otherwise be
restored or returned by any Tranche A Lender to the payor or its trustee in
accordance with the order of any court of competent jurisdiction in any
insolvency, bankruptcy, dissolution, liquidation or reorganization of the payor
(or a settlement of any claim or potential claim made in connection with any
such proceeding), or as required as a result of the appointment of any
custodian, receiver, trustee or other officer with respect to the payor or any
substantial part of its property or assets, the provisions of this Section 3
shall be reinstated as to any Tranche A Loans as to which such restoration or
return shall have occurred.
(e) Termination of Claim Upon Conclusion of
Insolvency Proceeding. Following the occurrence of an Insolvency Event and the
conclusion of the relevant case or proceeding pursuant to a final,
non-appealable order confirming a plan of reorganization or liquidation with
respect to the Grantors, the provisions of this Section 3.02 shall automatically
and without any further action on the part of any Person terminate and cease to
be in effect for all purposes of this Intercreditor Agreement and the other
Fundamental Documents, provided, that nothing contained herein shall limit any
Tranche A Lender's right to vote for or against a plan of reorganization in any
insolvency case involving the Credit Parties.
3.03. Reduction of Priority Claim. Any priority claim arising
in favor of the Tranche A Lenders pursuant to Section 3.02(a) or (c) shall be
reduced by an amount equal to the amount of any SLP Proceeds received prior to
the occurrence of an Insolvency Event by such Tranche A Lender pursuant to the
Fundamental Documents or under applicable law.
3.04. No Sale of Synthetic Lease Properties; No Other Claims.
(a) If no SLP Proceeds arise prior to or after the
occurrence of an Insolvency Event, the Tranche A Lenders shall not realize upon
or have any rights in respect of any priority claim referred to in this Section.
(b) The Tranche A Lenders shall have no rights with
respect to any priority claim referred to in this Section other than those
rights expressly set forth in this Section.
SECTION 4. Priority of Senior Priority Facility
4.01. Priority of Senior Priority Obligations. Each of the
Tranche A Administrative Agent and the Tranche A Collateral Agent, on its own
behalf and on behalf of the Tranche A Lenders,
8
irrevocably confirms and agrees that (i) all of its and Tranche A Lenders'
rights and interests in, under or in respect of the Fundamental Documents
relating to the Tranche A Loans and the Adjusted Tranche A Obligations, as the
case may be, shall be in all respects subordinate and junior in right of payment
and collection to the prior indefeasible payment in full in cash of the Senior
Priority Obligations and (ii) following the occurrence and continuance of an
Event of Default, no payment of or on account of the Priority Claim or the
Adjusted Tranche A Obligations shall be made, including by means of setoff,
offset, recoupment or by any other means, or any guaranty therefor enforced,
unless and until the date upon which all of the Senior Priority Obligations have
been indefeasibly paid in full in cash, the Senior Priority Commitments shall
have been terminated in their entirety and all Senior Priority Letters of Credit
have expired or been terminated, cancelled, surrendered or cash collateralized
in an amount equal to 105% of the face amount of all such letters of credit
(such date, the "Senior Secured Credit Termination Date").
4.02. Priority of Senior Priority Liens. Each of the Tranche A
Administrative Agent and the Tranche A Collateral Agent, on its own behalf and
on behalf of the Tranche A Lenders, irrevocably confirms and agrees that the
Tranche A Liens are and shall be subordinate and junior in priority, operation
and effect to the Senior Priority Liens notwithstanding the fact that (i) the
Tranche A Liens may have been perfected prior to or simultaneously with the
Senior Priority Liens or (ii) the Senior Priority Liens may not have been
perfected or shall be invalid, avoided or unenforceable.
4.03. Turnover. Except as expressly set forth in Section 4.05,
should any payment, distribution or security or the proceeds thereof (whether in
cash, property or securities) nevertheless be received by the Tranche A
Administrative Agent, the Tranche A Collateral Agent or any Tranche A Lender on
account of or with respect to the Priority Claim or Adjusted Tranche A
Obligations, as the case may be, or any Synthetic Lease Property or proceeds
thereof prior to the Senior Secured Credit Termination Date, the Tranche A
Administrative Agent, Tranche A Collateral Agent or such Tranche A Lender shall
forthwith deliver the same to the Collateral Agent for distribution to the
Senior Priority Lenders, in the form received (together with any endorsement or
assignment by the Tranche A Administrative Agent, Tranche A Collateral Agent or
Tranche A Lenders where required by the Collateral Agent), for application on
account of the Senior Priority Obligations and, until so delivered, the same
shall be held in trust by the Tranche A Administrative Agent, Tranche A
Collateral Agent or the Tranche A Lenders as trustee for the Collateral Agent
for the benefit of the Senior Priority Lenders.
4.04. Certain Distributions. In the event of any receivership,
insolvency, bankruptcy, assignment for the benefit of creditors, readjustment of
indebtedness, composition, reorganization (whether or not pursuant to bankruptcy
laws), sale of all or substantially all of the assets, dissolution, winding up,
liquidation, or any other marshalling of the assets and liabilities of the
Credit Parties while any of the Senior Priority Obligations remain outstanding,
any payment or distribution of assets of the Credit Parties of any kind or
character, whether in cash, securities or other property, which would otherwise
be payable to or deliverable to the Tranche A Administrative Agent, the Tranche
A Collateral Agent or the Tranche A Lenders upon or with respect to any or all
of the Priority Claims or the Adjusted Tranche A Obligations or which would
constitute the Collateral (including any Synthetic Lease Property) or the
proceeds of the Collateral (including any Synthetic Lease Property) shall be
paid or delivered directly to the Collateral Agent for application to the Senior
Priority Obligations in accordance with this Intercreditor Agreement until the
Senior Secured Credit Termination Date. The Senior Priority Lenders shall have
the right to enforce, collect and receive every such payment or distribution and
give acquittance therefor. If any of the events described in the first sentence
of this Section 4.04 occurs, the Tranche A Administrative Agent, the Tranche A
Collateral Agent and the Tranche A Lenders hereby irrevocably consent, in
advance, to the granting to the Collateral Agent or the Senior Priority Lenders
of any replacement liens or other adequate protection to the Collateral Agent or
the Senior Priority Lenders pursuant to 11 U.S.C. Sections 105, 361, 362, 363,
364, 365, 506 or 553 which, during the pendency of an Insolvency Event of any of
the Grantors which was commenced prior to the termination of the Preference
9
Period and if the priority claim established under Section 2.02 hereof has not
been terminated pursuant to the terms of Section 2.05 hereof, such claims shall
not be senior to, or parri passu with, the Tranche A Liens.
4.05. Certain Payments Permitted. So long as no Default or
Event Default shall have occurred and be continuing under the Credit Agreement
and provided that the Credit Parties shall have paid all amounts then due and
owing to the Senior Priority Lenders under the Credit Agreement, the Senior
Priority Lenders and the Collateral Agent consent to the payment by the Credit
Parties of amounts then due and owing to the Tranche A Lenders under the Credit
Agreement.
4.06. No Action. Each of the Tranche A Administrative Agent
and the Tranche A Collateral Agent, on its own behalf and on behalf of the
Tranche A Lenders and the Adjusted Tranche A Lenders, irrevocably confirms and
agrees that it will not directly or indirectly take any action to contest or
challenge (a) the validity, legality, enforceability or perfection of any
Fundamental Document or the Senior Priority Liens or (b) the priority of the
Senior Priority Liens.
SECTION 5. Miscellaneous.
5.01. Notices. Except as otherwise provided herein, whenever
it is provided herein that any notice, demand, request, consent, approval,
declaration or other communication shall or may be given to or served upon any
of the parties by any other party, or whenever any of the parties desires to
give and serve upon any other party any communication with respect to this
Intercreditor Agreement, each such notice, demand, request, consent, approval,
declaration or other communication shall be in writing and shall be given in the
manner and to the address, and deemed received, as provided for in Section 11.1
of the Credit Agreement.
5.02. Governing Law; Consent To Jurisdiction.
(a) THIS INTERCREDITOR AGREEMENT SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
(b) Each party hereto hereby irrevocably and
unconditionally submits, for itself and its property, to the nonexclusive
jurisdiction of any New York State court or Federal court of the United States
of America sitting in New York City, and any appellate court from any thereof,
in any action or proceeding arising out of or relating to this Intercreditor
Agreement or the other Fundamental Documents, or for recognition or enforcement
of any judgment, and each of the parties hereto hereby irrevocably and
unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York State or, to the extent
permitted by law, in such Federal court. Each of the parties hereto agrees that
a final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law.
(c) Each party hereto hereby irrevocably and
unconditionally waives, to the fullest extent it may legally and effectively do
so, any objection which it may now or hereafter have to the laying of venue of
any suit, action or proceeding arising out of or relating to this Intercreditor
or the other Fundamental Documents in any New York State or Federal court. Each
of the parties hereto hereby irrevocably waives, to the fullest extent permitted
by law, the defense of an inconvenient forum to the maintenance of such action
or proceeding in any such court.
10
5.03. WAIVER OF JURY TRIAL, ETC. EACH PARTY HERETO HEREBY
WAIVES ITS RIGHT TO A JURY TRIAL WITH RESPECT TO ANY ACTION OR CLAIM ARISING OUT
OF ANY LITIGATION OR DISPUTE DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN
CONNECTION WITH THIS INTERCREDITOR AGREEMENT, ANY RIGHTS OR OBLIGATIONS
HEREUNDER OR THE PERFORMANCE OF ANY SUCH RIGHTS OR OBLIGATIONS. EXCEPT AS
PROHIBITED BY LAW, EACH PARTY HERETO WAIVES ANY RIGHT WHICH IT MAY HAVE TO CLAIM
OR RECOVER IN ANY LITIGATION OR DISPUTE REFERRED TO IN THE PRECEDING SENTENCE
ANY SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES OTHER
THAN, OR IN ADDITION TO, ACTUAL DAMAGES. EACH PARTY HERETO (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK
TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER
PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS INTERCREDITOR AGREEMENT AND
THE OTHER FUNDAMENTAL DOCUMENTS, AS APPLICABLE, BY, AMONG OTHER THINGS, THE
MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 5.03.
5.04. Counterparts. This Intercreditor Agreement may be
executed in counterparts, each of which shall constitute an original but all of
which when taken together shall constitute but one contract. Delivery of an
executed signature page to this Intercreditor Agreement by facsimile
transmission shall be effective as delivery of a manually executed counterpart
hereof.
5.05. Headings. The headings of each section of this
Intercreditor Agreement are for convenience only and shall not define or limit
the provisions thereof.
5.06. Successors and Assigns. Whenever in this Intercreditor
Agreement any of the parties hereto is referred to, such reference shall be
deemed to include the successors and assigns of such party; and all covenants,
promises and agreements by or on behalf of any party that are contained in this
Intercreditor Agreement shall bind and inure to the benefit of their respective
successors and assigns.
5.07. No Strict Construction. The parties hereto have
participated jointly in the negotiation and drafting of this Intercreditor
Agreement. In the event an ambiguity or question of intent or interpretation
arises, this Intercreditor Agreement shall be construed as if drafted jointly by
the parties hereto and no presumption or burden of proof shall arise favoring or
disfavoring any party by virtue of the authorship of any provisions of this
Intercreditor Agreement.
5.08. Severability. In the event any one or more of the
provisions contained in this Intercreditor Agreement should be held invalid,
illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein shall not in any way
be affected or impaired thereby (it being understood that the invalidity of a
particular provision in a particular jurisdiction shall not in and of itself
affect the validity of such provision in any other jurisdiction). The parties
shall endeavor in good-faith negotiations to replace the invalid, illegal or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable
provisions.
5.09. Amendments. Neither this Intercreditor Agreement nor any
provision hereof may be waived, amended or modified except pursuant to an
agreement or agreements in writing entered into by each party with respect to
which such waiver, amendment or modification is to apply, subject to any consent
required in accordance with Section 11.11 of the Credit Agreement.
[REMAINDER OF THE PAGE INTENTIONALLY LEFT BLANK]
11
IN WITNESS WHEREOF, the parties hereto have duly executed this
Intercreditor Agreement as of the day and year first above written.
BANK OF AMERICA, N.A., as Administrative Agent
and Collateral Agent
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Director
CITICORP USA, INC., as Tranche A Administrative
Agent
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Director
CITIBANK, N.A., as Tranche A Collateral Agent
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Director
SCHEDULE A
PLEDGED EQUITY INTERESTS
1. OPD Group, Inc.'s ownership of:
a. 100% of the membership interest of Beaver River, LLC
b. 100% of the membership interest of Grane Creek, LLC
c. 100% of the membership interest of Free State Electric, LLC
2. Orion Power Atlantic LLC's ownership of .01% general partnership
interest in Orion Power Atlantic, Ltd.
3. Orion Power Atlantic, Inc.'s ownership of:
a. 99.99% limited partnership interest in Orion Power Atlantic,
Ltd.
b. 100% of the membership interest of Orion Power Atlantic LLC
4. Orion Power Development Company, Inc.'s ownership of:
a. 1,127 shares of OPD Group, Inc.
b. 1,000 shares of Orion Power Atlantic, Inc.
c. 1,000 units of the membership interest of Liberty Member, LLC
d. 1,000 units of the membership interest of MidAtlantic Liberty,
LLC
e. 1,000 units of the membership interest of Liberty MidAtlantic,
LLC
f. 1,000 units of the membership interest of Eddystone Power, LLC
5. Orion Power Holdings, Inc.'s ownership of:
a. 100 shares of Orion Power New York ▇▇ ▇▇, Inc.
b. 100 shares of Orion Power Operating Services, Inc.
c. 1,835 shares of Orion Power Development Company, Inc.
d. 100 shares of Orion Power Marketing and Supply, Inc.
6. Orion Power Operating Services, Inc.'s ownership of:
a. 100 shares of Orion Power Operating Services Midwest, Inc.
b. 100 shares of Orion Power Operating Services Astoria, Inc.
c. 100 shares of Orion Power Operating Services Coldwater, Inc.
d. 100 shares of Orion Power Operating Services ▇▇▇▇ Street, Inc.
e. 100 shares of OPOS MidAtlantic, Inc.
7. Reliant Energy Aurora Development, LLC's ownership of:
a. a 1% general partnership interest in Reliant Energy Aurora I,
LP
b. a 1% general partnership interest in Reliant Energy ▇▇▇▇▇▇ ▇▇,
LP
8. Reliant Energy Aurora Holding, LLC's ownership of:
a. 99% limited partnership interest in Reliant Energy Aurora I,
LP
b. 99% limited partnership interest in Reliant Energy ▇▇▇▇▇▇ ▇▇,
LP
c. 1,000 units of the membership interests of Reliant Energy
Aurora Development, LLC
9. Reliant Energy Aurora I, LP's ownership of a 1% general partnership
interest in Reliant Energy Aurora, LP
10. Reliant Energy ▇▇▇▇▇▇ ▇▇, LP's ownership of a 99% limited partnership
interest in Reliant Energy Aurora, LP
11. Reliant Energy California Holdings, LLC's ownership of:
a. 1,000 shares of Reliant Energy Coolwater, Inc.
b. 1,000 shares of Reliant Energy Ellwood, Inc.
c. 1,000 shares of Reliant Energy Etiwanda, Inc.
d. 1,000 shares of Reliant Energy Mandalay, Inc.
e. 1,000 shares of Reliant Energy Ormond Beach, Inc.
12. Reliant Energy Choctaw County, LLC's ownership of 100% of the
beneficial interests of Choctaw County Trust
13. Reliant Energy Communications, Inc.'s ownership of 301,000 shares of
Insync Internet Services, Incorporated
14. Reliant Energy Florida Holdings, LLC's ownership of:
a. 1,000 units of the membership interest of Reliant Energy
Indian River, LLC
b. 1,000 units of the membership interest of Reliant Energy New
Smyrna Beach, LLC
c. 1,000 units of the membership interest of Reliant Energy
Osceola, LLC
d. 1,000 units of the membership interest of Reliant Energy
Winter Haven, LLC
15. Reliant Energy Hunterstown, LLC's ownership of 100% of the beneficial
interests of Hunterstown Trust
16. Reliant Energy Mid-Atlantic Development, Inc.'s ownership of:
a. 100% of the membership interest of Reliant Energy Atlantic,
LLC
b. 100% of the membership interest of Reliant Energy Erie West,
LLC
c. 100% of the membership interest of Reliant Energy ▇▇▇▇▇▇▇, LLC
d. 100% of the membership interest of Reliant Energy Hunterstown,
LLC
e. 100% of the membership interest of Reliant Energy Portland,
LLC
f. 100% of the membership interest of Reliant Energy ▇▇▇▇▇▇, LLC
g. 100% of the membership interest of Reliant Energy ▇▇▇▇▇, LLC
17. Reliant Energy Net Ventures, Inc.'s ownership of 1,000 shares of
Reliant Energy CapTrades Holding Corp.
18. Reliant Energy Northeast Generation, Inc.'s ownership of 1,000 units of
the membership interest of Reliant Energy Key/Con Fuels, LLC
19. Reliant Energy Northeast Holdings, Inc.'s ownership of 1,000 shares of
Reliant Energy Northeast Generation, Inc.
20. Reliant Energy Power Generation, Inc.'s ownership of:
a. 1,000 units of the membership interest of Reliant Energy Arrow
Canyon, LLC
b. 1,000 units of the membership interest of Reliant Energy
Bighorn, LLC
c. 1,000 units of the membership interest of Reliant Energy
Desert Basin, LLC
d. 1,000 units of the membership interest of Reliant Energy
Equipment Company, LLC
e. 1,000 units of the membership interest of Reliant Energy
Signal Peak, LLC
f. 1,000 shares of Reliant Energy Power Operations I, Inc.
g. 1,000 shares of Reliant Energy Power Operations II, Inc.
h. 1,000 shares of Reliant Energy Development Services, Inc.
i. 1,000 units of the membership interest of Reliant Energy
Construction, LLC
j. 1,000 units of the membership interest of Reliant Energy
Partsco, LLC
k. 1,000 units of the membership interest of ▇▇▇▇▇▇ County Land
Associates, LLC
l. 1,000 shares of Reliant Energy Sabine (Delaware), Inc.
m. 1,000 shares of Reliant Energy Sabine (Texas), Inc.
n. 1,000 shares of Reliant Energy Deer Park, Inc.
o. 1,000 shares of Reliant Energy Mid-Atlantic Development, Inc.
p. 1,000 shares of Reliant Energy Shelby Holding Corp.
q. 1,000 units of the membership interest of Reliant Energy
Choctaw County, LLC
r. 1,000 units of the membership interest of Reliant Energy
Florida Holdings, LLC
s. 1,000 units of the membership interest of Reliant Energy
California Holdings, LLC
t. 1,000 shares of Reliant Energy Northeast Holdings, Inc.
u. 1,000 units of the membership interest of Reliant Energy
Aurora Holding, LLC
21. Reliant Energy Renewables Atascocita GP, LLC's ownership of a 1%
general partnership interest in Reliant Energy Renewables Atascocita,
LP
22. Reliant Energy Renewables Baytown GP, LLC's ownership of a 1% general
partnership interest in Reliant Energy Renewables Baytown, LP
23. Reliant Energy Renewables Blue Bonnet GP, LLC's ownership of a 1%
general partnership interest in Reliant Energy Renewables Blue Bonnet,
LP
24. Reliant Energy Renewables Coastal Plains GP, LLC's ownership of a 1%
general partnership interest in Reliant Energy Renewables Coastal
Plains, LP
25. Reliant Energy Renewables Conroe GP, LLC's ownership of a 1% general
partnership interest in Reliant Energy Renewables Conroe, LP
26. Reliant Energy Renewables Fort Worth GP, LLC's ownership of a 1%
general partnership interest in Reliant Energy Renewables Fort Worth,
LP
27. Reliant Energy Renewables Holdings II, LLC's ownership of:
a. 99% limited partnership interest in Reliant Energy Renewables
Atascocita, LP
b. 99% limited partnership interest in Reliant Energy Renewables
Baytown, LP
c. 99% limited partnership interest in Reliant Energy Renewables
Blue Bonnet, LP
d. 99% limited partnership interest in Reliant Energy Renewables
Coastal Plains, LP
e. 99% limited partnership interest in Reliant Energy Renewables
Conroe, LP
f. 99% limited partnership interest in Reliant Energy Renewables
Fort Worth, LP
g. 99% limited partnership interest in Reliant Energy Renewables
Security, LP
28. Reliant Energy Renewables Security GP, LLC's ownership a 1% general
partnership interest in Reliant Energy Renewables Security, LP
29. Reliant Energy Renewables, Inc.'s ownership of:
a. 1,000 units of the membership interest of Reliant Energy
Renewables Holdings II, LLC
b. 1,000 units of the membership interest of Reliant Energy
Renewables Atascocita GP, LLC
c. 1,000 units of the membership interest of Reliant Energy
Renewables Baytown GP, LLC
d. 1,000 units of the membership interest of Reliant Energy
Renewables Blue Bonnet GP, LLC
e. 1,000 units of the membership interest of Reliant Energy
Renewables Coastal Plains GP, LLC
f. 1,000 units of the membership interest of Reliant Energy
Renewables Conroe GP, LLC
g. 1,000 units of the membership interest of Reliant Energy
Renewables Fort Worth GP, LLC
h. 1,000 units of the membership interest of Reliant Energy
Renewables Security GP, LLC
30. Reliant Energy Retail Holdings, LLC's ownership of:
a. 1,000 units of the membership interest of Reliant Energy
Customer Care Services, LLC
b. 1,000 units of the membership interest of Reliant Energy
Retail Services, LLC
c. 1,000 units of the membership interest of Reliant Energy
Solutions, LLC
d. 1,000 units of the membership interest of StarEn Power LLC
e. 1,000 shares of Texas Star Energy Company
f. 1,000 units of the membership interest of Reliant Energy
Electric Solutions, LLC
g. 1,000 units of the membership interest of Reliant Energy
Solutions Holdings, LLC
h. 1,000 shares of Reliant Energy Renewables, Inc.
31. Reliant Energy Retail Services, LLC's ownership of 1,000 units of the
membership interest of RE Retail Receivables, LLC
32. Sixty-five percent (65%) of Reliant Energy Services International,
Inc.'s ownership of 200,000 shares of common stock and 9,010,230 shares
of Redeemable Preferred Class A Stock of Reliant Energy Services
Canada, Ltd.
33. Reliant Energy Services, Inc.'s ownership of:
a. 1,000 units of the membership interest of Reliant Energy Gas
Storage, LLC
b. 1,000 units of the membership interest of Reliant Energy
Services Desert Basin, LLC
c. 1,000 units of the membership interest of Reliant Energy
Services Mid-Stream, LLC
d. 1,000 units of the membership interest of Reliant Energy
Services New Mexico, LLC
34. Reliant Energy ▇▇▇▇▇▇, LLC's ownership of 100% of the beneficial
interests of ▇▇▇▇▇▇ Trust
35. Reliant Energy Shelby Development Corp.'s ownership of:
a. a 1% general partnership interest in Reliant Energy Shelby I,
LP
b. a 1% general partnership interest in Reliant Energy ▇▇▇▇▇▇ ▇▇,
LP
36. Reliant Energy Shelby Holding Corp.'s ownership of:
a. 99% of the limited partnership interest in Reliant Energy
Shelby I, LP
b. 99% of the limited partnership interest in Reliant Energy
▇▇▇▇▇▇ ▇▇, ▇▇
▇. 1,000 shares of Reliant Energy Shelby Development Corp.
37. Reliant Energy Shelby I, LP's ownership of:
a. a 1% general partnership interest in Reliant Energy Shelby
County, LP
b. a 1% general partnership interest in Reliant Energy Shelby
County II, LP
38. Reliant Energy ▇▇▇▇▇▇ ▇▇, LP's ownership of:
a. a 99% limited partnership interest in Reliant Energy Shelby
County, LP
b. a 99% limited partnership interest in Reliant Energy Shelby
County II, LP
39. Reliant Energy Solutions Holdings, LLC's ownership of:
a. 1,000 units of Reliant Energy Solutions East, LLC
b. 1,000 units of Reliant Energy Solutions West, LLC
40. Reliant Energy Solutions, LLC's ownership of 1,000 shares of Reliant
Energy Solutions California, Inc.
41. Reliant Resources, Inc.'s ownership of:
a. 1,000 shares of Reliant Energy Communications, Inc.
b. 1,000 shares of Reliant Energy Ventures, Inc.
c. 1,000 shares of Reliant Energy Broadband, Inc.
d. 9,000,000 shares of Series A Convertible Preferred Stock and
1,000,000 shares of common stock of GuideStreet, Inc.
e. 1,000 shares of Reliant Energy Net Ventures, Inc.
f. 1,000 shares of Reliant Resources International Services, Inc.
g. 1,000 shares of ▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc.
h. 1,000 units of the membership interest of Reliant Energy
Retail Holdings, LLC
i. 1,000 shares of Reliant Energy Services, Inc.
j. 1,000 shares of Reliant Energy Services International, Inc.
k. 1,000 shares of Reliant Energy Europe Trading & Marketing,
Inc.
l. 1,000 shares of Reliant Energy Power Generation, Inc.
m. 1,000 shares of Reliant Energy Wholesale Service Company
n. 1,000 shares of Reliant Energy Trading Exchange, Inc.
o. 1,000 shares of Orion Power Holdings, Inc.
p. 1,000 units of the membership interest of Reliant Energy
Funding, LLC
SCHEDULE B
GRANTORS
Choctaw County Trust
Hunterstown Trust
Reliant Energy Aurora Development, LLC
Reliant Energy Aurora, LP
Reliant Energy Aurora I, LP
Reliant Energy ▇▇▇▇▇▇ ▇▇, LP
Reliant Energy Bighorn, LLC
Reliant Energy Choctaw County, LLC
Reliant Energy Coolwater, Inc.
Reliant Energy Construction, LLC
Reliant Energy Desert Basin, LLC
Reliant Energy Electric Solutions, LLC
Reliant Energy Ellwood, Inc.
Reliant Energy Etiwanda, Inc.
Reliant Energy Hunterstown, LLC
Reliant Energy Indian River, LLC
Reliant Energy Mandalay, Inc.
Reliant Energy Ormond Beach, Inc.
Reliant Energy Osceola, LLC
Reliant Energy Power Generation, Inc.
Reliant Energy Retail Holdings, LLC
Reliant Energy Retail Services, LLC
Reliant Energy Services, Inc.
Reliant Energy ▇▇▇▇▇▇, LLC
Reliant Energy Shelby County, LP
Reliant Energy Shelby I, LP
Reliant Energy ▇▇▇▇▇▇ ▇▇, LP
Reliant Energy Solutions, LLC
Reliant Energy Wholesale Service Company
Reliant Resources, Inc.
▇▇▇▇▇▇ Trust