8.50% Senior Notes Due
2019
To the
Representatives of the Underwriters named in Schedule II
hereto
NRG Energy, Inc.,
a Delaware corporation (the “ Company ”),
proposes to issue and sell to the underwriters named in
Schedule II hereto (the “ Underwriters ”),
for whom you are acting as representatives (the “
Representatives ”), the principal amount of its debt
securities identified in Schedule I hereto (the “
Notes ”), to be issued under the last supplemental
indenture specified in Schedule I hereto (the “
Indenture ”) among the Company, the Guarantors (as
defined below) and the Trustee identified in such Schedule (the
“ Trustee ”). The Company’s obligations
under the Notes and the Indenture will be, jointly and severally,
unconditionally guaranteed (the “ Guarantees ”),
on a senior basis, by each of the subsidiaries of the Company
listed on the signature pages hereto (collectively, the “
Guarantors ”). The Notes and the Guarantees are
referred to herein as the “ Securities .” If the
firm or firms listed in Schedule II hereto include only the
Representatives listed in Schedule II hereto, then the terms
“Underwriters” and “Representatives” as
used herein shall each be deemed to refer to such firm or firms.
The terms “you” and “your” as used herein
shall be deemed to refer to the Representatives.
The Company has
filed with the Securities and Exchange Commission (the “
Commission ”) a registration statement, including a
prospectus (the file number of which is set forth in
Schedule I hereto), on Form S-3, relating to securities (the
“ Shelf Securities ”), including the Securities,
to be issued from time to time by the Company. The registration
statement as amended to the date of this Agreement, including the
information (if any) deemed to be part of the registration
statement at the time of effectiveness pursuant to Rule 430B
under the Securities Act of 1933, as amended (the “
Securities Act ”), is hereinafter referred to as the
“ Registration Statement, ” and the related
prospectus covering the Shelf Securities dated February 13,
2009 in the form first used to confirm sales of the Securities (or
in the form first made available to the Underwriters by the Company
to meet requests of purchasers pursuant to Rule 173 under the
Securities Act) is hereinafter referred to as the “ Basic
Prospectus .” The Basic Prospectus, as supplemented by
the prospectus supplement specifically relating to the Securities
in the form first used to confirm sales of the Securities (or in
the form first made available to the Underwriters by the Company to
meet requests of purchasers pursuant to Rule 173 under the
Securities Act) is hereinafter referred to as the “
Prospectus ,” and the term “ preliminary
prospectus ” means any preliminary form of the
Prospectus. For purposes of this Agreement, “ free writing
prospectus ” has the meaning set forth in Rule 405
under the Securities Act (which does not include communications not
deemed a prospectus pursuant to Rule 134 of the Securities Act
and historical issuer information meeting the requirements of Rule
433(e)(2) of the Securities Act) and “ Time of
Sale
Prospectus ” means the Basic Prospectus, each
preliminary prospectus, and each free writing prospectus, if any,
each identified in Schedule I hereto. As used herein, the
terms “Registration Statement,” “Basic
Prospectus,” “preliminary prospectus,”
“Time of Sale Prospectus” and “Prospectus”
shall include the documents, if any, incorporated by reference
therein. The terms “ supplement ,” “
amendment ,” and “ amend ” as used
herein with respect to the Registration Statement, the Basic
Prospectus, the Time of Sale Prospectus, any preliminary prospectus
or free writing prospectus shall include all documents subsequently
filed by the Company with the Commission pursuant to the Securities
Exchange Act of 1934, as amended (the “ Exchange Act
”), that are deemed to be incorporated by reference
therein.
1.
Representations and Warranties . The Company represents and
warrants to and agrees with each of the Underwriters
that:
(a) The
Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement is in
effect, and no proceedings for such purpose are pending before or,
to the knowledge of the Company, threatened by the Commission. The
Company is a well-known seasoned issuer (as defined in
Rule 405 under the Securities Act) eligible to use the
Registration Statement as an automatic shelf registration statement
and the Company has not received notice that the Commission objects
to the use of the Registration Statement as an automatic shelf
registration statement pursuant to Rule 401(g)(2) of the
Securities Act.
(b) (i) Each
document, if any, filed or to be filed pursuant to the Exchange Act
and incorporated by reference in the Time of Sale Prospectus or the
Prospectus complied or will comply when so filed in all material
respects with the Exchange Act and the applicable rules and
regulations of the Commission thereunder, (ii) each part of
the Registration Statement, when such part became effective, did
not contain, and each such part, as amended or supplemented, if
applicable, will not contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading,
(iii) the Registration Statement as of the date hereof does
not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading, (iv) the
Registration Statement and the Prospectus comply, and as amended or
supplemented, if applicable, will comply in all material respects
with the Securities Act and the applicable rules and regulations of
the Commission thereunder, (v) the Time of Sale Prospectus
does not, and at the time of each sale of the Securities in
connection with the offering and at the Closing Date (as defined in
Section 4), the Time of Sale Prospectus, as then amended or
supplemented by the Company, if applicable, will not, contain any
untrue statement of a material fact or omit to state a material
fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading and
(vi) the Prospectus does not contain and, as amended or
supplemented, if applicable, will not contain any untrue statement
of a material
fact or omit to
state a material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not
misleading, except that the representations and warranties set
forth in this paragraph do not apply to (A) statements or
omissions in the Registration Statement, the Time of Sale
Prospectus or the Prospectus, each as amended or supplemented,
based upon information relating to any Underwriter furnished to the
Company in writing by such Underwriter through the Representatives
expressly for use therein or (B) that part of the Registration
Statement that constitutes the Statement of Eligibility (Form T-1)
under the Trust Indenture Act of 1939, as amended (the “
Trust Indenture Act ”), of the Trustee.
(c) The
Company is not an “ineligible issuer” in connection
with the offering pursuant to Rules 164, 405 and 433 under the
Securities Act. Any free writing prospectus that the Company is
required to file pursuant to Rule 433(d) under the Securities Act
has been, or will be, filed with the Commission in accordance with
the requirements of the Securities Act and the applicable rules and
regulations of the Commission thereunder. Each free writing
prospectus that the Company has filed, or is required to file,
pursuant to Rule 433(d) under the Securities Act or that was
prepared by or on behalf of or used or referred to by the Company
complies or will comply in all material respects with the
requirements of the Securities Act and the applicable rules and
regulations of the Commission thereunder. Except for the free
writing prospectuses, if any, identified in Schedule I hereto,
and electronic road shows each furnished to you before first use,
the Company has not prepared, used or referred to, and will not,
without your prior consent, prepare, use or refer to, any free
writing prospectus.
(d) The
Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the state of
Delaware, has the corporate power and authority to own its property
and to conduct its business as described in the Time of Sale
Prospectus, Prospectus and Registration Statement and is duly
qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership
or leasing of property requires such qualification, except
(i) to the extent that the failure to be so qualified or be in
good standing would not have a material adverse effect on the
business or result of operations of the Company and its
subsidiaries, taken as a whole (a “ Material Adverse
Effect ”) and (ii) for jurisdictions not recognizing
the legal concepts of good standing or qualification.
(e) Each
domestic subsidiary of the Company has been duly organized, is
validly existing in good standing under the laws of the
jurisdiction of its organization, has the power and authority to
own its property and to conduct its business as described in the
Time of Sale Prospectus and is duly qualified to transact business
and is in good standing in each jurisdiction in which the conduct
of its business or its ownership or leasing of property requires
such qualification, except (i) to the extent that the failure
to be so qualified or be in good standing would not have a Material
Adverse Effect on the Company and its subsidiaries, taken as a
whole and (ii) for jurisdictions not recognizing the legal
concepts of
good standing
or qualification. Except as set forth in the Registration
Statement, Time of Sale Prospectus and Prospectus, all of the
issued shares of capital stock, or equity interests, as applicable
of each subsidiary of the Company have been duly and validly
authorized and issued, are fully paid and non-assessable and
(except (i) for directors’ qualifying shares or foreign
national qualifying capital stock, and (ii) as pledged to
secure indebtedness of the Company and/or its subsidiaries pursuant
to credit facilities, indentures and other instruments evidencing
indebtedness as set forth in the Exchange Act Reports of the
Company, Registration Statement, Time of Sale Prospectus and
Prospectus and existing on the date hereof) are owned directly by
the Company, free and clear of all liens, encumbrances, equities or
claims.
(f) This
Agreement has been duly authorized, executed and delivered by the
Company.
(g) The
Indenture has been duly qualified under the Trust Indenture Act and
has been duly authorized, executed and, on the Closing Date will
be, duly delivered by, and will be a valid and binding agreement
of, the Company, enforceable in accordance with its terms, subject
to applicable bankruptcy, insolvency and similar laws affecting
creditors’ rights generally and equitable principles of
general applicability.
(h) The
Securities have been duly authorized and, when executed and
authenticated in accordance with the provisions of the Indenture
and delivered to and paid for by the Underwriters in accordance
with the terms of this Agreement will be valid and binding
obligations of the Company and each Guarantor, as applicable, in
each case enforceable in accordance with their respective terms,
subject to applicable bankruptcy, insolvency and similar laws
affecting creditors’ rights generally and equitable
principles of general applicability, and will be entitled to the
benefits of the Indenture.
(i) The
execution and delivery by the Company and the Guarantors of, and
the performance by the Company and the Guarantors of their
respective obligations under, this Agreement, the Indenture and the
Securities will not contravene (i) any provision of the
certificate of limited partnership, agreement of limited
partnership, certificate of formation, limited liability company
agreement, certificate or articles of incorporation, or bylaws of
the Company or any Guarantor, (ii) or any agreement or other
instrument binding upon the Company or any of its subsidiaries that
is material to the Company and its subsidiaries, taken as a whole,
(iii) or any applicable law or judgment, order or decree of
any governmental body, agency or court having jurisdiction over the
Company or any subsidiary except that, in the case of clauses
(ii) and (iii), for any contravention that would not have a
Material Adverse Effect on the Company. No consent, approval,
authorization or order of, or qualification with, any governmental
body or agency is required for the performance by the Company and
the Guarantors of their respective obligations under this
Agreement, the Indenture, or the Securities, except (x) for
such consent, approvals, authorizations, orders or qualifications
that
have been
obtained or where failure to do so would not have a Material
Adverse Effect on the Company and (y) for the registration of
the Securities under the Securities Act, the qualification of the
Indenture under the Trust Indenture Act and such as may be required
by the securities or Blue Sky laws of the various states in
connection with the offer and sale of the Securities.
(j) There has
not occurred any material adverse change, or any development
involving a prospective material adverse change, in the condition,
financial or otherwise, or in the earnings, business or operations
of the Company and its subsidiaries, taken as a whole, from that
set forth in the Time of Sale Prospectus.
(k) There are
no legal or governmental proceedings pending or, to the knowledge
of the Company, threatened to which the Company or any of its
subsidiaries is a party or to which any of the properties of the
Company or any of its subsidiaries is subject other than
proceedings that are disclosed or described in all material
respects in the Registration Statement, Time of Sale Prospectus, or
the Prospectus and proceedings that are not expected to have a
Material Adverse Effect, and there are no statutes, regulations,
contracts or other documents that are required to be described in
the Registration Statement, Time of Sale Prospectus, or the
Prospectus or to be filed as exhibits to the Registration Statement
that are not described in all material respects or filed, or
incorporated by reference as required.
(l) Each
preliminary prospectus supplement filed pursuant to Rule 424
under the Securities Act, complied when so filed in all material
respects with the Securities Act and the applicable rules and
regulations of the Commission thereunder.
(m) The
Company is not, and after giving effect to the offering and sale of
the Securities and the application of the proceeds thereof as
described in the Prospectus will not be, required to register as an
“investment company” as such term is defined in the
Investment Company Act of 1940, as amended.
(n) The
Company and any subsidiary of the Company that is, or after giving
effect to the offering and sale of the Securities and the
application of the proceeds thereof as described in the Prospectus,
will be, subject to regulation under the Public Utility Holding
Company Act of 2005 (“ PUHCA ”) as a
“holding company,” as such term is defined in PUHCA, is
exempt in accordance with 18 CFR § 366.3 from the accounting,
record-retention and reporting requirements of PUHCA.
(o) Except as
set forth in the Registration Statement, Time of Sale Prospectus,
or Prospectus, each subsidiary of the Company that is subject to
regulation as a “public utility” as such term is
defined in the Federal Power Act (“ FPA ”) and
that makes sales of energy or capacity that are not pursuant to a
state regulatory authority’s implementation of PURPA (as
defined below) has an order
from the
Federal Energy Regulatory Commission, such order not subject to any
pending challenge, investigation, complaint, or other proceeding
(other than generic proceedings generally applicable in the
industry) (i) authorizing such subsidiary to engage in
wholesale sales of electricity and, to the extent permitted under
its market-based rate tariff, other transactions, at market-based
rates and (y) granting such waivers and blanket authorizations
as are customarily granted to entities with market-based rate
authority, including blanket authorizations to issue securities and
to assume liabilities pursuant to Section 204 of the
FPA.
(p) With
respect to any subsidiary that owns a “Qualifying
Facility” (“ QF ”), as defined under the
Public Utility Regulatory Policies Act and the current rules and
regulations promulgated thereunder (“ PURPA ”),
such facility is a QF under PURPA.
(q) Except as
disclosed in the Registration Statement, the Time of Sale
Prospectus, or Prospectus, and except for such matters as would
not, individually or in the aggregate, result in a Material Adverse
Effect, the Company and its subsidiaries (1) are conducting
and have conducted their businesses, operations and facilities in
compliance with Environmental Laws (as defined below);
(2) have duly obtained, possess, maintain in full force and
effect, and have fulfilled and performed all of their obligations
under any and all permits, licenses or registrations required under
Environmental Law (“ Environmental Permits ”);
(3) have not received any notice from a governmental authority
or any other third party alleging any violation of Environmental
Law or liability thereunder; (4) are not subject to any
pending or, to the best knowledge of the Company or any of its
subsidiaries, threatened claim in writing or other legal proceeding
under any Environmental Laws against the Company or any of its
subsidiaries; and (5) do not have knowledge of any applicable
Environmental Laws, or any unsatisfied conditions in an
Environmental Permit, that, individually or in the aggregate, can
reasonably be expected to require any material capital expenditures
for either the installation of new pollution control equipment, or
a switch in a project’s fuel or any other material
modification of current operations in order to maintain the
Company’s or the subsidiaries’ compliance with
Environmental Law. As used in this paragraph, “
Environmental Laws ” means any and all applicable
foreign, federal, state and local laws and regulations, or any
enforceable administrative or judicial interpretation thereof,
relating to pollution or the protection of human health or the
environment, including, without limitation, those relating to
(i) emissions, discharges or releases of Hazardous Substances
into ambient air, surface water, groundwater or land, (ii) the
generation, manufacture, processing, distribution, use, treatment,
storage, disposal, release, transport or handling of, or exposure
to, Hazardous Substances, (iii) the protection of wildlife or
endangered or threatened species, or (iv) the investigation,
remediation or cleanup of any Hazardous Substances. As used in this
paragraph, “ Hazardous Substances ” means
pollutants, contaminants, hazardous substances, materials or
wastes, petroleum, petroleum products and their breakdown
constituents, or any other chemical substance regulated under
Environmental Laws.
2.
Agreements to Sell and Purchase . The Company hereby agrees
to sell to the several Underwriters, and each Underwriter, upon the
basis of the representations and warranties herein contained, but
subject to the conditions hereinafter stated, agrees, severally and
not jointly, to purchase from the Company the respective principal
amounts of Securities set forth in Schedule II hereto opposite
its name at the purchase price set forth in Schedule I
hereto.
3. Public
Offering . The Company is advised by you that the Underwriters
propose to make a public offering of their respective portions of
the Securities as soon after this Agreement has become effective as
in your judgment is advisable. The Company is further advised by
you that the Securities are to be offered to the public upon the
terms set forth in the Time of Sale Prospectus.
4.
Payment and Delivery . Payment for the Underwriters’
Securities shall be made by wire transfer in immediately available
funds, or other funds immediately available in New York City on the
closing date and time set forth in Schedule I hereto, or at
such other time on the same or such other date, not later than the
fifth business day thereafter, as may be designated by you in
writing. The time and date of such payment are hereinafter referred
to as the “ Closing Date .”
Payment for the
Securities shall be made against delivery to you on the Closing
Date for the respective accounts of the several Underwriters of the
Securities registered in such names and in such denominations as
you shall request in writing not less than two business day prior
to the Closing Date, with any transfer taxes payable in connection
with the transfer of the Securities to the Underwriters duly paid,
against payment of the purchase price therefor.
5.
Conditions to the Underwriters’ Obligations . The
several obligations of the Underwriters are subject to the
following conditions:
(a) Subsequent
to the execution and delivery of this Agreement and prior to the
Closing Date:
(i) there shall
not have occurred any downgrading, nor shall the Company have
received any notice from any “nationally recognized
statistical rating organization,” as such term is defined for
purposes of Rule 436(g)(2) under the Securities Act of any
intended or potential downgrading or of any review for a possible
change that does not indicate the direction of the possible change,
in the rating accorded the Company or any of the securities of the
Company or any of its subsidiaries or in the rating outlook for the
Company; and
(ii) there shall
not have occurred any change, or any development involving a
prospective change, in the condition, financial or otherwise, or in
the earnings, business or operations of the Company and its
subsidiaries, taken as a whole, from that set forth in the Time of
Sale
Prospectus
that, in the judgment of the Representatives, is material and
adverse and that makes it, in the judgment of the Representatives,
impracticable or inadvisable to proceed with the offer, sale and
delivery of the securities, or market the Securities on the terms
and in the manner contemplated in the this agreement and Time of
Sale Prospectus.
(b) The
Underwriters shall have received on the Closing Date a certificate,
dated the Closing Date and signed by an executive officer of the
Company, to the effect set forth in Section 5(a)(i) above and
to the effect that the representations and warranties of the
Company contained in this Agreement that are not qualified by
materiality are true and correct in all material respects, and that
the representations and warranties of the Company contained in this
Agreement that are qualified by materiality are true and correct,
in each case, as of the Closing Date, and that the Company has
complied in all material respects with all of the agreements and
satisfied all of the conditions on its part to be performed or
satisfied hereunder on or before the Closing Date.
The officer
signing and delivering such certificate may rely upon the best of
his or her knowledge as to proceedings threatened.
(c) The
Underwriters shall have received on the Closing Date an opinion and
a negative assurance letter of Kirkland & Ellis LLP, outside
counsel for the Company, dated the Closing Date, to the effect set
forth on Schedule III. Additionally, Michael Bramnick, General
Counsel of the Company, and other local counsel of the Company
shall provide opinions, dated the Closing Date, as the
Representatives shall reasonably request.
(d) The
Underwriters shall have received on the Closing Date an opinion and
a negative assurance letter of Latham & Watkins LLP, counsel
for the Underwriters, dated the Closing Date to the effect set
forth on Schedule III.
(e) The
Underwriters shall have received, on each of the date hereof and
the Closing Date, a letter dated the date hereof or the Closing
Date, as the case may be, in form and substance satisfactory to the
Underwriters, from KPMG LLP, independent public accountants,
containing statements and information of the type ordinarily
included in accountants’ “comfort letters” to
underwriters with respect to the financial statements and certain
financial information contained in the Registration Statement, the
Time of Sale Prospectus and the Prospectus; provided that
the letter delivered on the Closing Date shall use a “cut-off
date” not ea
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