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EXHIBIT 1.1
NRG ENERGY, INC.
$240,000,000
(1)
8% REMARKETABLE OR REDEEMABLE SECURITIES (ROARS)
Due November 1, 2013
(Remarketing Date November 1, 2003)
Underwriting Agreement
November 2, 0000
Xxxx xx Xxxxxxx Securities LLC
CIBC World Markets Corp.
Credit Suisse First Boston Corporation
Xxxxxxx, Xxxxx & Co.
c/o Banc of America Securities LLC
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Ladies and Gentlemen:
NRG Energy, Inc., a Delaware Corporation (the "Company"), proposes to sell
to the several underwriters named in Schedule I hereto (the "Underwriters"), for
whom you (the "Representatives") are acting as representatives, $240,000,000
principal amount of its 8% Remarketable or Redeemable Securities due November 1,
2013 (the "Securities"), to be issued under an indenture (the "Indenture") dated
as of November 8, 1999, between the Company and Norwest Bank Minnesota, National
Association, as trustee (the "Trustee"). In connection with the issuance of the
Securities, the Company and Credit Suisse First Boston Corporation, as
remarketing agent (the "Remarketing Agent"), will enter into a remarketing
agreement (the "Remarketing Agreement"). To the extent there are no additional
Underwriters listed on Schedule I other than you, the term Representatives as
used herein shall mean you, as Underwriters, and the terms Representatives and
Underwriters shall mean either the singular or plural as the context requires.
Any reference herein to the Registration Statement, the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus shall be deemed to refer to
and include the documents incorporated by reference therein pursuant to Item 12
of Form S-3 which were filed under the Exchange Act on or before the Effective
Date of the Registration Statement or the issue date of the Basic Prospectus,
any Preliminary Final Prospectus or the Final Prospectus, as the case may be;
and any reference herein to the terms "amend", "amendment" or "supplement" with
respect to the Registration Statement, the Basic Prospectus, any Preliminary
Final Prospectus or the Final Prospectus shall be deemed to refer to and include
the filing of any document under the Exchange Act after the Effective Date of
the Registration Statement or the
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(1)
Service Xxxx of Banc of America Securities LLC
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issue date of the Basic Prospectus, any Preliminary Final Prospectus or the
Final Prospectus, as the case may be, deemed to be incorporated therein by
reference. Certain terms used herein are defined in Section 17 hereof.
1. Representations and Warranties. The Company represents and
warrants to, and agrees with, each Underwriter as set forth below in this
Section 1.
(a) The Company meets the requirements for use of Form S-3
under the Act and has prepared and filed with the Commission a
registration statement (Registration Statement No. 333-74519) on Form
S-3, including a related basic prospectus, for registration under the
Act of the offering and sale of the Securities. The Company may have
filed one or more amendments thereto, including a Preliminary Final
Prospectus, each of which has previously been furnished to you. The
Registration Statement, as so amended, has been declared effective by
the Commission. The Company will next file with the Commission a final
prospectus supplement relating to the Securities in accordance with
Rules 430A and 424(b). The Company has included in such registration
statement, as amended, all information (other than Rule 430A
Information) required by the Act and the rules thereunder to be
included in such registration statement and the Final Prospectus. As
filed, such final prospectus supplement or such amendment and form of
final prospectus supplement shall contain all Rule 430A Information,
together with all other such required information, and, except to the
extent the Representatives shall agree in writing to a modification,
shall be in all substantive respects in the form furnished to you prior
to the Execution Time or, to the extent not completed at the Execution
Time, shall contain only such specific additional information and other
changes (beyond that contained in the Basic Prospectus and any
Preliminary Final Prospectus) as the Company has advised you, prior to
the Execution Time, will be included or made therein. The Registration
Statement, at the Execution Time, meets the requirements set forth in
Rule 415(a)(1)(x).
(b) On the Effective Date, the Registration Statement did, and
when the Final Prospectus is first filed in accordance with Rule 424(b)
and on the Closing Date (as defined herein), the Final Prospectus (and
any supplement thereto) will, comply in all material respects with the
applicable requirements of the Act, the Exchange Act and the Trust
Indenture Act and the respective rules thereunder; on the Effective
Date and at the Execution Time, the Registration Statement did not
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to
make the statements therein not misleading; on the Closing Date the
Indenture will comply in all material respects with the applicable
requirements of the Trust Indenture Act and the rules thereunder; and,
on the date of any filing pursuant to Rule 424(b) and on the Closing
Date, the Final Prospectus (together with any supplement thereto) will
not, include any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
provided, however, that the Company makes no representations or
warranties as to (i) that part of the Registration Statement which
shall constitute the Statement of Eligibility and Qualification
(Form T-1) under the Trust
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Indenture Act of the Trustee or (ii) the information contained in or
omitted from the Registration Statement or the Final Prospectus (or any
supplement thereto) in reliance upon and in conformity with information
furnished in writing to the Company by or on behalf of any Underwriter
through the Representatives specifically for inclusion in the
Registration Statement or the Final Prospectus (or any supplement
thereto).
(c) None of (i) the Company, (ii) any of its significant
subsidiaries, all of which are set forth on Schedule II hereto (the
"Subsidiaries"), or (iii) any significant entity controlled by the
Company (as determined according to Section 1-02(g) of Regulation S-X)
and through which the Company holds an interest in any project, all of
which are set forth on Schedule II hereto (collectively, "Project
Affiliates"), is required to be registered or regulated as an
"investment company" within the meaning of the Investment Company Act
of 1940, as amended (the "Investment Company Act"), and after giving
effect to the offer and sale of the Securities and the application of
the proceeds thereof as described in the Final Prospectus, none of the
Company, its Subsidiaries or its Project Affiliates will be required to
be registered or regulated as an "investment company" as defined in the
Investment Company Act.
(d) The Company has not paid or agreed to pay to any person
any compensation for soliciting another to purchase any Securities
(except as contemplated by this Agreement).
(e) Except as set forth in the Final Prospectus, the Company,
its Subsidiaries and its Project Affiliates possess and are in
compliance with all approvals, certificates, authorizations, licenses
and permits issued by the appropriate state, Federal or foreign
regulatory agencies or bodies necessary to conduct the business now
being operated by them, except where the failure to possess such
approvals, certificates, authorizations, licenses and permits or be in
compliance therewith is not reasonably likely to have a material
adverse effect on the condition, financial or otherwise, earnings,
business or prospects of the Company, its subsidiaries and its Project
Affiliates, taken as a whole (a "Material Adverse Effect"), and none of
the Company, its Subsidiaries or its Project Affiliates has received
any notice of proceedings relating to the revocation or modification of
any such approval, certificate, authorization, license or permit which,
individually or in the aggregate, is likely to have a Material Adverse
Effect.
(f) Except as set forth in the Final Prospectus, there is no
action, suit or proceeding before or by any court or governmental
agency or body, domestic or foreign, now pending or, to the knowledge
of the Company, its subsidiaries and its Project Affiliates threatened
against the Company, any of its Subsidiaries or any of its Project
Affiliates which is likely to result in any Material Adverse Effect or
threatened against the Company, any of its subsidiaries or any of its
Project Affiliates which is likely to materially and adversely affect
the offering of the Securities in the manner contemplated by the Final
Prospectus.
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(g) This Agreement has been duly authorized, executed and
delivered by the Company.
(h) The Securities have been duly authorized and at the
Closing Date will have been duly executed by the Company and, when
authenticated, issued and delivered in the manner provided for in the
Indenture and delivered against payment of the purchase price therefor
as provided in this Agreement, will constitute valid and binding
obligations of the Company, enforceable against the Company in
accordance with their terms, except as the enforcement thereof may be
limited by bankruptcy, insolvency (including, without limitation, all
laws relating to fraudulent transfers), reorganization, moratorium or
similar laws affecting enforcement of creditors' rights generally and
except as enforcement thereof is subject to general principles of
equity (regardless of whether enforcement is considered in a proceeding
in equity or at law), and will be in the form contemplated by, and
entitled to the benefits of, the Indenture.
(i) Each of the Indenture and the Remarketing Agreement has
been duly authorized and at the Closing Date will have been duly
executed by the Company and, when duly executed and delivered, will
constitute a legal, valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms. Each of
the Indenture and the Remarketing Agreement conforms in all material
respects to the description thereof in the Final Prospectus.
(j) Except as set forth in the Final Prospectus, and, except
for (i) San Francisco Thermal, Limited Partnership, (ii) Pittsburgh
Thermal, Limited Partnership, and (iii) RSD Power Partners, L.P., none
of the Company, its Subsidiaries or its Project Affiliates is subject
to regulation as a "steam corporation", "electric utility", "electric
utility company", "utility company" or "public utility company" or any
similar term by and Federal, state, local or foreign public utility
commission or regulatory body or under any applicable Federal, state,
local or foreign law other than as public utilities that have been
granted market-based rates under the Federal Power Act or any state
regulation applicable to "exempt wholesale generators," as defined in
Section 32 of the Public Utility Holding Company Act of 1935, as
amended (the "PUHCA").
(k) Except for the Company's international generation assets
(as to which no such representation or warranty is made), none of the
Company, its Subsidiaries or its Project Affiliates is an "electric
utility company", a "public utility company", a "holding company", a
"subsidiary company" of any of the foregoing, an "affiliate" of any of
the foregoing, or an "affiliate" of a "subsidiary" of a "holding
company", each as defined in PUHCA, which is subject to regulation as
such an entity or otherwise under PUHCA except pursuant to Section
9(a)(2) or Section 32 thereof.
(l) The summary of the Company's percentage ownership interest
in its facilities, operations or projects under construction as set
forth in the Final Prospectus under the caption "Business--Summary of
Our Projects," is true and accurate in all
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material respects as of the date presented and any changes in the
Company's percentage ownership interest in its facilities, operations
or projects under construction which have occurred between such date
and the date of this Agreement are as set forth on Schedule III hereto.
(m) The Company has reviewed its operations and that of its
subsidiaries and Project Affiliates to evaluate the extent to which the
business or operations of the Company or any of its Subsidiaries or
Project Affiliates will be affected by the Year 2000 Problem. As a
result of such review, the Company reasonably believes, that the Year
2000 Problem will not have a Material Adverse Effect or result in any
material loss or interference with the Company's and of its
Subsidiary's and Project Affiliate's businesses or operations, taken as
a whole. The "Year 2000 Problem" as used herein means any significant
risk that computer hardware or software used in the receipt,
transmission, processing, manipulation, storage, retrieval,
retransmission or other utilization of data or in the operations of
mechanical or electrical systems of any kind will not, in the case of
dates or time periods occurring after December 31, 1999, function at
least as effectively as in the case of dates or time periods occurring
prior to January 1, 2000.
Any certificate signed by any officer of the Company and delivered to
the Representatives or counsel for the Underwriters in connection with the
offering of the Securities shall be deemed a representation and warranty by the
Company, as to matters covered thereby, to each Underwriter.
2. Purchase and Sale. Subject to the terms and conditions and
in reliance upon the representations and warranties herein set forth, the
Company agrees to sell to each Underwriter, and each Underwriter agrees,
severally and not jointly, to purchase from the Company, the Securities, in the
respective principal amounts set forth opposite such Underwriter's name in
Schedule I hereto, at a purchase price equal to 100% of the principal amount
thereof (the "Purchase Price").
3. Delivery and Payment. Delivery of and payment for the
Securities shall be made at 10:00 AM, New York City time, on November 8, 1999,
or at such time on such later date not more than three Business Days after the
foregoing date as the Representatives shall designate, which date and time may
be postponed by agreement between the Representatives and the Company or as
provided in Section 9 hereof (such date and time of delivery and payment for the
Securities being herein called the "Closing Date"). Delivery of the Securities
shall be made to the Representatives for the respective accounts of the several
Underwriters, against payment by the several Underwriters through the
Representatives, of the Purchase Price thereof to or upon the order of the
Company by wire transfer payable in same-day funds to an account specified by
the Company. Delivery of the Securities shall be made through the facilities of
The Depository Trust Company unless the Representatives shall otherwise
instruct.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Securities for sale to the public as set forth
in the Final Prospectus.
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5. Agreements. The Company agrees with the several
Underwriters that:
(a) The Company will use its best efforts to cause any
amendments to the Registration Statement, if not effective at the
Execution Time, to become effective. Prior to the termination of the
offering of the Securities, the Company will not file any amendment of
the Registration Statement or supplement (including the Final
Prospectus or any Preliminary Final Prospectus) to the Basic Prospectus
or any Rule 462(b) Registration Statement unless the Company has
furnished you a copy for your review prior to filing and will not file
any such proposed amendment or supplement to which you reasonably
object. Subject to the foregoing sentence, the Company will cause the
Final Prospectus, properly completed, and any supplement thereto to be
filed with the Commission pursuant to the applicable paragraph of Rule
424(b) within the time period prescribed and will provide evidence
satisfactory to the Representatives of such timely filing. The Company
will promptly advise the Representatives (1) when the Final Prospectus,
and any supplement thereto, shall have been filed (if required) with
the Commission pursuant to Rule 424(b) or when any Rule 462(b)
Registration Statement shall have been filed with the Commission, (2)
when, prior to termination of the offering of the Securities, any
amendment to the Registration Statement shall have been filed or become
effective, (3) of any request by the Commission or its staff for any
amendment of the Registration Statement, or any Rule 462(b)
Registration Statement, or for any supplement to the Final Prospectus
or for any additional information, (4) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any
proceeding for that purpose and (5) of the receipt by the Company of
any notification with respect to the suspension of the qualification of
the Securities for sale in any jurisdiction or the institution or
threatening of any proceeding for such purpose. The Company will use
its best efforts to prevent the issuance of any such stop order or the
suspension of any such qualification and, if issued, to obtain as soon
as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the
Securities is required to be delivered under the Act, any event occurs
as a result of which the Final Prospectus as then supplemented would
include any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein in the light of
the circumstances under which they were made not misleading, or if it
shall be necessary to amend the Registration Statement or supplement
the Final Prospectus to comply with the Act or the Exchange Act or the
respective rules thereunder, the Company promptly will (1) notify the
Representatives of such event, (2) prepare and file with the
Commission, subject to the second sentence of paragraph (a) of this
Section 5, an amendment or supplement which will correct such statement
or omission or effect such compliance and (3) supply any supplemented
Final Prospectus to you in such quantities as you may reasonably
request.
(c) As soon as practicable, the Company will make generally
available to its security holders and to the Representatives an
earnings statement or statements of the
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Company and its subsidiaries which will satisfy the provisions of
Section 11(a) of the Act and Rule 158 under the Act.
(d) The Company will furnish to the Representatives and
counsel for the Underwriters, without charge, signed copies of the
Registration Statement (including exhibits thereto) and to each other
Underwriter a copy of the Registration Statement (without exhibits
thereto) and, so long as delivery of a prospectus by an Underwriter or
dealer may be required by the Act, as many copies of each Preliminary
Final Prospectus and the Final Prospectus and any supplement thereto as
the Representatives may reasonably request. The Company will pay the
expenses of printing or other production of all documents relating to
the offering.
(e) The Company will arrange, if necessary, for the
qualification of the Securities for sale under the laws of such
jurisdictions as the Representatives may designate, will maintain such
qualifications in effect so long as required for the distribution of
the Securities and will pay any fee of the National Association of
Securities Dealers, Inc., in connection with its review of the
offering; provided that in no event shall the Company be obligated to
qualify to do business in any jurisdiction where it is not now so
qualified or to take any action that would subject it to service of
process in suits, other than those arising out of the offering or sale
of the Securities, in any jurisdiction where it is not now so subject.
(f) The Company will not, without the prior written consent of
Banc of America Securities LLC, offer, sell, contract to sell, pledge,
or otherwise dispose of, (or enter into any transaction which is
designed to, or might reasonably be expected to, result in the
disposition (whether by actual disposition or effective economic
disposition due to cash settlement or otherwise) by the Company or any
affiliate of the Company or any person in privity with the Company or
any affiliate of the Company) directly or indirectly, including the
filing (or participation in the filing) of a registration statement
with the Commission in respect of, or establish or increase a put
equivalent position or liquidate or decrease a call equivalent position
within the meaning of Section 16 of the Exchange Act, any debt
securities issued or guaranteed by the Company (other than the
Securities) or publicly announce an intention to effect any such
transaction, within 30 days after the Closing Date.
(g) The Company will not take, directly or indirectly, any
action designed to or which has constituted or which might reasonably
be expected to cause or result, under the Exchange Act or otherwise, in
stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Securities.
6. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase the Securities shall be subject to
the accuracy of the representations and warranties on the part of the Company
contained herein as of the Execution Time and the Closing Date, to the accuracy
of the statements of the Company made in any certificates pursuant to the
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provisions hereof, to the performance by the Company of its obligations
hereunder and to the following additional conditions:
(a) If an amendment to the Registration Statement has not
become effective prior to the Execution Time, unless the
Representatives agree in writing to a later time, such amendment to the
Registration Statement will become effective not later than (i) 6:00 PM
New York City time, on the date of determination of the public offering
price, if such determination occurred at or prior to 3:00 PM New York
City time on such date or (ii) 9:30 AM on the Business Day following
the day on which the public offering price was determined, if such
determination occurred after 3:00 PM New York City time on such date;
if filing of the Final Prospectus, or any supplement thereto, is
required pursuant to Rule 424(b), the Final Prospectus, and any such
supplement, will be filed in the manner and within the time period
required by Rule 424(b); and no stop order suspending the effectiveness
of the Registration Statement shall have been issued and no
proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxxx, Xxxx &
Xxxxxxxx LLP, counsel for the Company, to have furnished to the
Representatives their opinion, dated the Closing Date and addressed to
the Representatives, to the effect that:
(i) the Securities conform to the description thereof
contained in the Final Prospectus in all material respects;
(ii) the Indenture has been duly authorized, executed
and delivered by the Company, has been duly qualified under
the Trust Indenture Act, and (assuming due authorization,
execution and delivery thereof by the Trustee) constitutes a
legal, valid and binding instrument enforceable against the
Company in accordance with its terms (subject, as to
enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium or other laws affecting
creditors' rights generally from time to time in effect and to
general principles of equity, including, without limitation,
concepts of materiality, reasonableness, good faith and fair
dealing, regardless of whether considered in a proceeding in
equity or at law); and the Securities have been duly
authorized by the Company and, when executed and authenticated
in accordance with the provisions of the Indenture and
delivered to and paid for by the Underwriters pursuant to this
Agreement, will constitute legal, valid and binding
obligations of the Company entitled to the benefits of the
Indenture (subject, as to enforcement of remedies, to
applicable bankruptcy, reorganization, insolvency, moratorium
or other laws affecting creditors' rights generally from time
to time in effect and to general principles of equity,
including, without limitation, concepts of materiality,
reasonableness, good faith and fair dealing, regardless of
whether considered in a proceeding in equity or at law);
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(iii) the Remarketing Agreement has been duly
authorized, executed and delivered by the Company, and
constitutes a legal, valid and binding instrument enforceable
against the Company in accordance with its terms (subject, as
to enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium or other laws affecting
creditors' rights generally from time to time in effect and to
general principles of equity, including, without limitation,
concepts of materiality, reasonableness, good faith and fair
dealing, regardless of whether considered in a proceeding in
equity or at law);
(iv) the Registration Statement has become effective
under the Act; any required filing of the Basic Prospectus,
any Preliminary Final Prospectus and the Final Prospectus, and
any supplements thereto, pursuant to Rule 424(b) have been
made in the manner and within the time period required by Rule
424(b); to the knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement has
been issued, no proceedings for that purpose have been
instituted or threatened, and the Registration Statement and
the Final Prospectus (other than the financial statements and
other financial information contained therein, as to which
such counsel need express no opinion) comply as to form in all
material respects with the applicable requirements of the Act,
the Exchange Act and the Trust Indenture Act and the
respective rules thereunder;
(v) this Agreement has been duly authorized, executed
and delivered by the Company;
(vi) 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 Final Prospectus,
will not be an "investment company" required to be registered
under the Investment Company Act of 1940, as amended;
(vii) no holders of securities of the Company have
rights under the Company's charter or by-laws to the
registration of such securities under the Registration
Statement;
Furthermore, following the opinion paragraphs, such counsel shall state the
following:
"We have participated in conferences with officers and other representatives of
the Company, representatives of the independent auditors of the Company and your
representatives and counsel at which the contents of the Registration Statement,
Preliminary Final Prospectus and/or Final Prospectus and related matters were
discussed. Because the purpose of our professional engagement was not to
establish or confirm factual matters and because the scope of our examination of
the affairs of the Company did not permit us to verify the accuracy,
completeness or fairness of the statement set forth in the Registration
Statement, Preliminary Final Prospectus and/or Final Prospectus, we are not
passing upon and do not assume any responsibility for the accuracy, completeness
or fairness of the statements contained in the Registration Statement,
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Preliminary Final Prospectus and/or Final Prospectus, except to the extent set
forth below in the last sentence of the immediately following paragraph.
On the basis of the foregoing, and except for the financial statements and
schedules and other financial and statistical data included therein, as to which
we express no opinion or belief, no facts have come to our attention that lead
us to believe that the Registration Statement, Preliminary Final Prospectus
and/or Final Prospectus, as of their respective dates and as of the date hereof,
contained or contains any untrue statement of a material fact or omitted or
omits to state a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
Furthermore, on the basis of the foregoing, and insofar as the statements in the
Registration Statement, Preliminary Final Prospectus and/or Final Prospectus
under the caption 'Description of the ROARS' and 'Description of Debt
Securities' purport to describe specific provisions of the Indenture, such
statements present in all material respects an accurate summary of such
provisions."
In rendering such opinion, such counsel may rely (A) as to matters involving the
application of laws of any jurisdiction other than the State of New York, the
State of Delaware or the Federal laws of the United States, to the extent they
deem proper and specified in such opinion, upon the opinion of other counsel of
good standing whom they believe to be reliable and who are satisfactory to
counsel for the Underwriters and (B) as to matters of fact, to the extent they
deem proper, on certificates of responsible officers of the Company and public
officials. References to the Final Prospectus in this paragraph (b) include any
supplements thereto at the Closing Date.
(c) The Company shall have furnished to the Representatives
the opinion of Xxxxx X. Xxxxxx, Esq., general counsel of the Company,
dated the Closing Date, to the effect that:
(i) each of the Company and the Subsidiaries has been
duly incorporated and is validly existing as a corporation in
good standing under the laws of the jurisdiction in which it
is chartered or organized, with full corporate power and
authority to own or lease, as the case may be, and to operate
its properties and conduct its business as described in the
Final Prospectus, and is duly qualified to do business as a
foreign corporation and is in good standing under the laws of
each jurisdiction which requires such qualification, except
where the failure to so qualify is not reasonably likely to
have a Material Adverse Effect;
(ii) all the outstanding shares of capital stock of
the Company and of each of the Subsidiaries have been duly and
validly authorized and issued and are fully paid and
nonassessable, and, except as otherwise set forth in the Final
Prospectus, all outstanding shares of capital stock of each of
the Subsidiaries are owned of record by the Company either
directly or through wholly owned Subsidiaries free and clear
of any perfected security interest and, to the knowledge of
such counsel, after due inquiry, any other security interest,
claim, lien or encumbrance, other than such liens or other
security interests granted or created in connection with
indebtedness of the projects owned by such Subsidiaries;
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(iii) the Company's authorized equity capitalization
is as set forth in the Final Prospectus;
(iv) there is no pending, or, to the knowledge of
such counsel, threatened action, suit or proceeding by or
before any court or governmental agency, authority or body or
any arbitrator involving the Company or any of its
subsidiaries or its or their property, of a character required
to be disclosed in the Registration Statement which is not
adequately disclosed in the Final Prospectus, and there is no
franchise, contract or other document of a character required
to be described in the Registration Statement or Final
Prospectus, or to be filed as an exhibit thereto, which is not
described or filed as required; and the statements included or
incorporated by reference in the Final Prospectus under the
heading "Risk Factors -- We are subject to governmental
regulation," fairly summarize the matters therein described;
(v) no consent, approval, authorization, filing with
or order of any court or governmental agency or body is
required in connection with the transactions contemplated
herein, except such as have been obtained under the Act and
such as may be required under the blue sky laws of any
jurisdiction in connection with the purchase and distribution
of the Securities by the Underwriters (about which such
counsel need express no opinion) in the manner contemplated in
this Agreement and in the Final Prospectus and such other
approvals (specified in such opinion) as have been obtained;
(vi) neither the execution and delivery of the
Indenture or the Remarketing Agreement, the issue and sale of
the Securities, nor the consummation of any other of the
transactions herein contemplated nor the fulfillment of the
terms hereof will conflict with, result in a breach or
violation or constitute a default under (i) the charter or
by-laws of the Company or its Subsidiaries, (ii) the terms of
any indenture, contract, lease, mortgage, deed of trust, note
agreement, loan agreement or other agreement, obligation,
condition, covenant or instrument to which the Company or its
Subsidiaries is a party or bound or to which its or their
property is subject, or (iii) any statute, law, rule,
regulation, judgment, order or decree applicable to the
Company or its Subsidiaries of any court, regulatory body,
administrative agency, governmental body, arbitrator or other
authority having jurisdiction over the Company or its
Subsidiaries or any of its or their properties, except in the
cases of clauses (ii) and (iii) above, such conflict, breach,
violation or default which is not reasonably likely to have a
Material Adverse Effect;
(vii) except as set forth in the Final Prospectus,
and except for (i) San Francisco Thermal, Limited Partnership,
(ii) Pittsburgh Thermal, Limited Partnership, and (iii) RSD
Power Partners, L.P., none of the Company, its Subsidiaries or
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its Project Affiliates is subject to regulation as a "steam
corporation", "electric utility", "electric utility company",
"utility company" or "public utility company" or any similar
term by any Federal law, law of the State of Minnesota or
public utility commission or regulatory body or under any such
law other than as public utilities that have been granted
market-based rates under the Federal Power Act or any state
regulation applicable to "exempt wholesale generators," as
defined in Section 32 of PUHCA;
(viii) except for the Company's international
generation assets (as to which no such opinion need be given),
none of the Company, its Subsidiaries or its Project
Affiliates is an "electric utility company", a "public utility
company", a "holding company", a "subsidiary company" of any
of the foregoing, an "affiliate" of any of the foregoing, or
an "affiliate" of a "subsidiary" of a "holding company", each
as defined in PUHCA, which is subject to regulation as such an
entity or otherwise under PUHCA except pursuant to Section
9(a)(2) or Section 32 thereof; and
(ix) except as set forth in the Final Prospectus, the
Company, its Subsidiaries and its Project Affiliates possess
and are in compliance with all approvals, certificates,
authorizations, licenses and permits issued by the appropriate
state, Federal or foreign regulatory agencies or bodies
necessary to conduct their business as described in the Final
Prospectus, except where the failure to possess such
approvals, certificates, authorizations, licenses and permits
or be in compliance therewith would not be reasonably likely
to have a Material Adverse Effect and to the knowledge of such
counsel, none of the Company, its Subsidiaries or its Project
Affiliates, has received any notice of proceedings relating to
the revocation or modification of any such approval,
certificate, authorization, license or permit which,
individually or in the aggregate, if it became the subject of
an unfavorable decision, ruling or finding, would be
reasonably likely to have a Material Adverse Effect.
(d) The Representatives shall have received from Skadden,
Arps, Slate, Xxxxxxx and Xxxx LLP, counsel for the Underwriters, such
opinion or opinions, dated the Closing Date and addressed to the
Representatives, with respect to the issuance and sale of the
Securities, the Indenture, the Remarketing Agreement, the Registration
Statement, the Final Prospectus (together with any supplement thereto)
and other related matters as the Representatives may reasonably
require, and the Company shall have furnished to such counsel such
documents as they request for the purpose of enabling them to pass upon
such matters.
(e) The Company shall have furnished to the Representatives a
certificate of the Company, signed by the Chairman of the Board or the
President and the principal financial or accounting officer of the
Company, dated the Closing Date, to the effect that
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the signers of such certificate have carefully examined the
Registration Statement, the Final Prospectus, any supplements to the
Final Prospectus and this Agreement and that:
(i) the representations and warranties of the Company
in this Agreement are true and correct in all material
respects on and as of the Closing Date with the same effect as
if made on the Closing Date and the Company has complied with
all the agreements and satisfied all the conditions on its
part to be performed or satisfied at or prior to the Closing
Date;
(ii) no stop order suspending the effectiveness of
the Registration Statement has been issued and no proceedings
for that purpose have been instituted or, to the Company's
knowledge, threatened; and
(iii) since the date of the most recent financial
statements included or incorporated by reference in the Final
Prospectus (exclusive of any supplement thereto), there has
been no material adverse effect on the condition (financial or
otherwise), earnings, business or properties of the Company
and its subsidiaries, taken as a whole, whether or not arising
from transactions in the ordinary course of business, except
as set forth in or contemplated in the Final Prospectus
(exclusive of any supplement thereto).
(f) The Company shall have requested and caused
PricewaterhouseCoopers LLP to have furnished to the Representatives, at
the Execution Time and at the Closing Date, letters, (which may refer
to letters previously delivered to one or more of the Representatives),
dated respectively as of the Execution Time and as of the Closing Date,
in form and substance satisfactory to the Representatives, confirming
that they are independent accountants within the meaning of the Act and
the Exchange Act and the respective applicable rules and regulations
adopted by the Commission thereunder and that they have performed a
review of the unaudited interim financial information of the Company
for the six-month period ended June 30, 1999, and as at June 30, 1999,
in accordance with Statement on Auditing Standards No. 71, and stating
in effect that:
(i) in their opinion the audited financial statements
and financial statement schedules included or incorporated by
reference in the Registration Statement and the Final
Prospectus and reported on by them comply as to form in all
material respects with the applicable accounting requirements
of the Act and the Exchange Act and the related rules and
regulations adopted by the Commission;
(ii) on the basis of a reading of the latest
unaudited financial statements made available by the Company
and its subsidiaries; their limited review, in accordance with
standards established under Statement on Auditing Standards
No. 71, of the unaudited interim financial information for the
six-month period ended June 30, 1999 and as at June 30, 1999,
incorporated by reference in the Registration Statement and
the Final Prospectus; carrying out certain specified
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procedures (but not an examination in accordance with
generally accepted auditing standards) which would not
necessarily reveal matters of significance with respect to the
comments set forth in such letter; a reading of the minutes of
the meetings of the stockholders, directors and audit
committees of the Company and the Subsidiaries; and inquiries
of certain officials of the Company who have responsibility
for financial and accounting matters of the Company and its
subsidiaries as to transactions and events subsequent to
December 31, 1998, nothing came to their attention which
caused them to believe that:
(1) any unaudited financial statements included or
incorporated by reference in the Registration
Statement and the Final Prospectus do not comply as
to form in all material respects with applicable
accounting requirements of the Act and with the
related rules and regulations adopted by the
Commission with respect to financial statements
included or incorporated by reference in quarterly
reports on Form 10-Q under the Exchange Act; and said
unaudited financial statements are not in conformity
with generally accepted accounting principles applied
on a basis substantially consistent with that of the
audited financial statements included or incorporated
by reference in the Registration Statement and the
Final Prospectus;
(2) with respect to the period subsequent to June 30,
1999, there were any changes, at a specified date not
more than five days prior to the date of the letter,
in the long-term debt of the Company and its
subsidiaries or capital stock of the Company or
decreases in the stockholders' equity of the Company
as compared with the amounts shown on the June 30,
1999, consolidated balance sheet included or
incorporated by reference in the Registration
Statement and the Final Prospectus, or for the period
from July 1, 1999 to such specified date there were
any decreases, as compared with the six months ended
June 30, 1998 in net revenues or income before income
taxes or in total or per share amounts of net income
of the Company and its subsidiaries, except in all
instances for changes or decreases set forth in such
letter, in which case the letter shall be accompanied
by an explanation by the Company as to the
significance thereof unless said explanation is not
deemed necessary by the Representatives;
(3) the information included or incorporated by
reference in the Registration Statement and Final
Prospectus in response to Regulation S-K, Item 301
(Selected Financial Data), Item 302 (Supplementary
Financial Information), Item 402 (Executive
Compensation) and Item 503(d) (Ratio of Earnings to
Fixed Charges) is not in conformity with the
applicable disclosure requirements of Regulation
S-K; and
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(iii) they have performed certain other specified
procedures as a result of which they determined that certain
information of an accounting, financial or statistical nature
(which is limited to accounting, financial or statistical
information derived from the general accounting records of the
Company and its subsidiaries) set forth in the Registration
Statement and the Final Prospectus and in Exhibit 12 to the
Registration Statement, including the financial information
set forth under the captions "Summary and Consolidated
Financial and Operating Data" and "Selected Consolidated
Financial and Other Data" in the Final Prospectus, the
information included or incorporated by reference in Items 1,
2 and 7 of the Company's Annual Report on Form 10-K,
incorporated by reference in the Registration Statement and
the Final Prospectus, and the information included or
incorporated by reference in the Company's Quarterly Reports
on Form 10-Q, incorporated by reference in the Registration
Statement and the Final Prospectus and the information
included or incorporated by reference in the Company's Reports
on Form 8-K, incorporated by reference in the Registration
Statement and the Final Prospectus, agrees with the accounting
records of the Company and its subsidiaries, excluding any
questions of legal interpretation.
(g) Subsequent to the Execution Time or, if earlier, the dates
as of which information is given in the Registration Statement
(exclusive of any amendment thereof) and the Final Prospectus
(exclusive of any supplement thereto), there shall not have been (i)
any change or decrease in the items specified in the letter or letters
referred to in paragraph (e) of this Section 6 or (ii) any change, or
any development involving a prospective change, in or affecting the
business or properties of the Company and its subsidiaries, taken as a
whole, whether or not arising from transactions in the ordinary course
of business, except as set forth in or contemplated in the Final
Prospectus (exclusive of any supplement thereto) the effect of which,
in any case referred to in clause (i) or (ii) above, is, in the
reasonable judgment of the Representatives, so material and adverse as
to make it impractical or inadvisable to proceed with the offering or
delivery of the Securities as contemplated by the Registration
Statement (exclusive of any amendment thereof) and the Final Prospectus
(exclusive of any supplement thereto).
(h) Subsequent to the Execution Time, there shall not have
been any decrease in the rating of any of the Company's debt securities
by any "nationally recognized statistical rating organization" (as
defined for purposes of Rule 436(g) under the Act) or any notice given
of any intended or potential decrease in any such rating or of a
possible change in any such rating that does not indicate the direction
of the possible change.
(i) Prior to the Closing Date, the Company shall have
furnished to the Representatives such further information, certificates
and documents as the Representatives may reasonably request.
If any of the conditions specified in this Section 6 shall not
have been fulfilled in all material respects when and as provided in this
Agreement, or if any of the opinions and
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certificates mentioned above or elsewhere in this Agreement shall not be in all
material respects reasonably satisfactory in form and substance to the
Representatives and counsel for the Underwriters, this Agreement and all
obligations of the Underwriters hereunder may be canceled at, or at any time
prior to, the Closing Date by the Representatives. Notice of such cancellation
shall be given to the Company in writing or by telephone or facsimile confirmed
in writing.
The documents required to be delivered by this Section 6 shall
be delivered at the office of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel
for the Underwriters, at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, on the
Closing Date.
7. Reimbursement of Underwriters' Expenses. If the sale of the
Securities provided for herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 6 hereof is not satisfied,
because of any termination pursuant to Section 10 hereof or because of any
refusal, inability or failure on the part of the Company to perform any
agreement herein or comply with any provision hereof other than by reason of a
default by any of the Underwriters, the Company will reimburse the Underwriters
severally through Banc of America Securities LLC on demand for all out-of-pocket
expenses (including reasonable fees and disbursements of counsel) that shall
have been incurred by them in connection with the proposed purchase and sale of
the Securities.
8. Indemnification and Contribution. (a) The Company agrees to
indemnify and hold harmless each Underwriter, the directors, officers, employees
and agents of each Underwriter and each person who controls any Underwriter
within the meaning of either the Act or the Exchange Act against any and all
losses, claims, damages or liabilities, joint or several, to which they or any
of them may become subject under the Act, the Exchange Act or other Federal or
state statutory law or regulation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the registration statement for the registration of
the Securities as originally filed or in any amendment thereof, or in the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus, or in any
amendment thereof or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
agrees to reimburse each such indemnified party, as incurred, for any legal or
other expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that the Company will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written information furnished to
the Company by or on behalf of any Underwriter through the Representatives
specifically for inclusion therein; provided, further, that with respect to any
untrue statement or omission of a material fact made in the Basic Prospectus or
any Preliminary Final Prospectus, the indemnity agreement contained in this
Section 8(a) shall not inure to the benefit of any Underwriter from whom the
person asserting any such loss, claim, damage or liability purchased the
Securities concerned, to the extent that it shall have been determined by a
court of competent jurisdiction by
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final and nonappealable judgment that (v) the Company had previously furnished
copies of the Final Prospectus to the Representatives, (w) delivery of the Final
Prospectus was required to be made to such person, (x) the untrue statement or
omission of a material fact contained in the Preliminary Final Prospectus was
corrected in the Final Prospectus, (y) there was not sent or given to such
person, at or prior to the written confirmation of the sale of such Securities
to such person, a copy of the Final Prospectus, and (z) such loss, claim, damage
or liability is directly attributable to the failure of the applicable
Underwriter to so deliver a Final Prospectus. This indemnity agreement will be
in addition to any liability which the Company may otherwise have.
(b) Each Underwriter severally and not jointly agrees to
indemnify and hold harmless the Company, each of its directors, each of
its officers who signs the Registration Statement, and each person who
controls the Company within the meaning of either the Act or the
Exchange Act, to the same extent as the foregoing indemnity from the
Company to each Underwriter, but only with reference to written
information relating to such Underwriter furnished to the Company by or
on behalf of such Underwriter through the Representatives specifically
for inclusion in the documents referred to in the foregoing indemnity.
This indemnity agreement will be in addition to any liability which any
Underwriter may otherwise have. The Company acknowledges that the
statements set forth in the last paragraph of the cover page regarding
delivery of the Securities, the third paragraph under the heading
"Underwriting" concerning the terms of the offering by the Underwriters
and the fourth, fifth and sixth paragraphs under the heading
"Underwriting" concerning over-allotment and stabilization transactions
by the Underwriters constitute the only information furnished in
writing by or on behalf of the several Underwriters for inclusion in
any Preliminary Final Prospectus or the Final Prospectus.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under this Section 8, notify the indemnifying party
in writing of the commencement thereof; but the failure so to notify
the indemnifying party (i) will not relieve it from liability under
paragraph (a) or (b) above unless and to the extent it did not
otherwise learn of such action and such failure results in the
forfeiture by the indemnifying party of substantial rights and defenses
and (ii) will not, in any event, relieve the indemnifying party from
any obligations to any indemnified party other than the indemnification
obligation provided in paragraph (a) or (b) above. The indemnifying
party shall be entitled to appoint counsel of the indemnifying party's
choice at the indemnifying party's expense to represent the indemnified
party in any action for which indemnification is sought (in which case
the indemnifying party shall not thereafter be responsible for the fees
and expenses of any separate counsel retained by the indemnified party
or parties except as set forth below); provided, however, that such
counsel shall be satisfactory to the indemnified party. Notwithstanding
the indemnifying party's election to appoint counsel to represent the
indemnified party in an action, the indemnified party shall have the
right to employ separate counsel (including local counsel), and the
indemnifying party shall bear the reasonable fees, costs and expenses
of such separate counsel if (i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would
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present such counsel with a conflict of interest, (ii) the actual or
potential defendants in, or targets of, any such action include both
the indemnified party and the indemnifying party and the indemnified
party shall have reasonably concluded that there may be legal defenses
available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, (iii)
the indemnifying party shall not have employed counsel satisfactory to
the indemnified party to represent the indemnified party within a
reasonable time after notice of the institution of such action or (iv)
the indemnifying party shall authorize the indemnified party to employ
separate counsel at the expense of the indemnifying party, it being
understood that the indemnifying party shall not be liable for more
than one separate firm (in addition to one local firm in each
jurisdiction) for all indemnified parties in each jurisdiction in which
any claim or action arising out of the same general allegations or
circumstances is brought. An indemnifying party will not, without the
prior written consent of the indemnified parties, settle or compromise
or consent to the entry of any judgment with respect to any pending or
threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not
the indemnified parties are actual or potential parties to such claim
or action) unless such settlement, compromise or consent includes an
unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding. An indemnifying
party will not, without the prior written consent of the indemnified
party, enter into any settlement or compromise or consent to the entry
of any judgment.
(d) In the event that the indemnity provided in paragraph (a)
or (b) of this Section 8 is unavailable to or insufficient to hold
harmless an indemnified party for any reason, the Company and the
Underwriters severally agree to contribute to the aggregate losses,
claims, damages and liabilities (including legal or other expenses
reasonably incurred in connection with investigating or defending same)
(collectively "Losses") to which the Company and one or more of the
Underwriters may be subject in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand
and by the Underwriters on the other from the offering of the
Securities; provided, however, that in no case shall any Underwriter
(except as may be provided in any agreement among underwriters relating
to the offering of the Securities) be responsible for any amount in
excess of the underwriting discount or commission applicable to the
Securities purchased by such Underwriter hereunder. If the allocation
provided by the immediately preceding sentence is unavailable for any
reason, the Company and the Underwriters severally shall contribute in
such proportion as is appropriate to reflect not only such relative
benefits but also the relative fault of the Company on the one hand and
of the Underwriters on the other in connection with the statements or
omissions which resulted in such Losses as well as any other relevant
equitable considerations. Benefits received by the Company shall be
deemed to be equal to the total net proceeds from the offering (before
deducting expenses) received by it, and benefits received by the
Underwriters shall be deemed to be equal to the total underwriting
discounts and commissions, in each case as set forth on the cover page
of the Final Prospectus. Relative fault shall be determined by
reference to, among other things,
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whether any untrue or any alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information provided by the Company on the one hand or the Underwriters
on the other. The Company and the Underwriters agree that it would not
be just and equitable if contribution were determined by pro rata
allocation or any other method of allocation which does not take
account of the equitable considerations referred to above.
Notwithstanding the provisions of this paragraph (d), no person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. For purposes of this
Section 8, each person who controls an Underwriter within the meaning
of either the Act or the Exchange Act and each director, officer,
employee and agent of an Underwriter shall have the same rights to
contribution as such Underwriter, and each person who controls the
Company within the meaning of either the Act or the Exchange Act, each
officer of the Company who shall have signed the Registration Statement
and each director of the Company shall have the same rights to
contribution as the Company, subject in each case to the applicable
terms and conditions of this paragraph (d).
9. Default by an Underwriter. If any one or more Underwriters
shall fail to purchase and pay for any of the Securities agreed to be purchased
by such Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the principal amount of
Securities set forth opposite their names in Schedule I hereto bears to the
aggregate principal amount of Securities set forth opposite the names of all the
remaining Underwriters) the Securities which the defaulting Underwriter or
Underwriters agreed but failed to purchase; provided, however, that in the event
that the aggregate principal amount of Securities which the defaulting
Underwriter or Underwriters agreed but failed to purchase shall exceed 10% of
the aggregate principal amount of Securities set forth in Schedule I hereto, the
remaining Underwriters shall have the right to purchase all, but shall not be
under any obligation to purchase any, of the Securities, and if such
nondefaulting Underwriters do not purchase all the Securities, this Agreement
will terminate without liability to any nondefaulting Underwriter or the
Company. In the event of a default by any Underwriter as set forth in this
Section 9, the Closing Date shall be postponed for such period, not exceeding
five Business Days, as the Representatives shall determine in order that the
required changes in the Registration Statement and the Final Prospectus or in
any other documents or arrangements may be effected. Nothing contained in this
Agreement shall relieve any defaulting Underwriter of its liability, if any, to
the Company and any nondefaulting Underwriter for damages occasioned by its
default hereunder.
10. Termination. This Agreement shall be subject to
termination in the absolute discretion of the Representatives, by notice given
to the Company prior to delivery of and payment for the Securities, if at any
time prior to such time (i) trading in securities generally on the New York
Stock Exchange or the Nasdaq National Market shall have been suspended or
limited or minimum prices shall have been established on such Exchange or the
Nasdaq National Market, (ii) a banking moratorium shall have been declared
either by Federal or New York State
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authorities or (iii) there shall have occurred any outbreak or escalation of
hostilities, declaration by the United States of a national emergency or war, or
other calamity or crisis the effect of which on financial markets is such as to
make it, in the reasonable judgment of the Representatives, impractical or
inadvisable to proceed with the offering or delivery of the Securities as
contemplated by the Final Prospectus (exclusive of any supplement thereto).
11. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and of the Underwriters set forth in or made pursuant to
this Agreement will remain in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or the Company or any of
the officers, directors, employees, agents or controlling persons referred to in
Section 8 hereof, and will survive delivery of and payment for the Securities.
The provisions of Sections 7 and 8 hereof shall survive the termination or
cancellation of this Agreement.
12. Notices. All communications hereunder will be in writing
and effective only on receipt, and, if sent to the Representatives, will be
mailed, delivered or telefaxed to Banc of America Securities LLC General Counsel
(fax no.: (000) 000-0000) and confirmed to Banc of America Securities LLC at 000
Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Attention: General Counsel;
or, if sent to the Company, will be mailed, delivered or telefaxed to Xxxxx X.
Xxxxxx, Vice President and General Counsel at (000) 000-0000.
13. Successors. This Agreement will inure to the benefit of
and be binding upon the parties hereto and their respective successors and the
officers, directors, employees, agents and controlling persons referred to in
Section 8 hereof, and no other person will have any right or obligation
hereunder.
14. Applicable Law. This Agreement will be governed by and
construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed within the State of New York.
15. Counterparts. This Agreement may be signed in one or more
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
16. Headings. The section headings used herein are for
convenience only and shall not affect the construction hereof.
17. Definitions. The terms which follow, when used in this
Agreement, shall have the meanings indicated.
"Act" shall mean the Securities Act of 1933, as amended and
the rules and regulations of the Commission promulgated thereunder.
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"Basic Prospectus" shall mean the prospectus referred to in
paragraph 1(a) above contained in the Registration Statement at the
Effective Date including any Preliminary Final Prospectus.
"Business Day" shall mean any day other than a Saturday, a
Sunday or a legal holiday or a day on which banking institutions or
trust companies are authorized or obligated by law executive order or
regulation to close in New York City.
"Commission" shall mean the Securities and Exchange
Commission.
"Effective Date" shall mean each date and time that the
Registration Statement, any post-effective amendment or amendments
thereto and any Rule 462(b) Registration Statement became or become
effective.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended, and the rules and regulations of the Commission promulgated
thereunder.
"Execution Time" shall mean the date and time that this
Agreement is executed and delivered by the parties hereto.
"Final Prospectus" shall mean the prospectus supplement
relating to the Securities that was first filed pursuant to Rule 424(b)
after the Execution Time, together with the Basic Prospectus.
"Preliminary Final Prospectus" shall mean any preliminary
prospectus supplement to the Basic Prospectus which describes the
Securities and the offering thereof and is used prior to filing of the
Final Prospectus, together with the Basic Prospectus.
"Registration Statement" shall mean the registration statement
referred to in paragraph 1(a) above, including exhibits and financial
statements, as amended at the Execution Time (or, if not effective at
the Execution Time, in the form in which it shall become effective)
and, in the event any post-effective amendment thereto or any Rule
462(b) Registration Statement becomes effective prior to the Closing
Date, shall also mean such registration statement as so amended or such
Rule 462(b) Registration Statement, as the case may be. Such term shall
include any Rule 430A Information deemed to be included therein at the
Effective Date as provided by Rule 430A.
"Rule 415", "Rule 424", "Rule 430A" and "Rule 462" refer to
such rules under the Act.
"Rule 430A Information" shall mean information with respect to
the Securities and the offering thereof permitted to be omitted from
the Registration Statement when it becomes effective pursuant to Rule
430A.
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"Rule 462(b) Registration Statement" shall mean a registration
statement and any amendments thereto filed pursuant to Rule 462(b)
relating to the offering covered by the registration statement referred
to in Section 1(a) hereof.
"Trust Indenture Act" shall mean the Trust Indenture Act of
1939, as amended and the rules and regulations of the Commission
promulgated thereunder.
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If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
among the Company and the several Underwriters.
Very truly yours,
NRG Energy, Inc.
By:
---------------------------
Name:
Title:
The foregoing Agreement is
hereby confirmed and accepted
as of the date first above written.
Banc of America Securities LLC
CIBC World Markets Corp.
Credit Suisse First Boston Corporation
Xxxxxxx, Xxxxx & Co.
By: Banc of America Securities LLC
By:
-----------------------------
Name:
Title:
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SCHEDULE I
Principal Amount
of Securities to
Underwriters be Purchased
------------ ------------
Banc of America Securities LLC ......................................$ 150,000,000
CIBC World Markets Corp..............................................$ 30,000,000
Credit Suisse First Boston Corporation...............................$ 30,000,000
Xxxxxxx, Sach & Co...................................................$ 30,000,000
-------------
Total................................................................$ 240,000,000
=============
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SCHEDULE II
Subsidiaries
Xxxxxx Kill Power LLC
Astoria Gas Turbine Power LLC
Cobee Holdings Inc.
Dunkirk Power LLC
Energy National, Inc.
ENI Xxxxxxxx Limited Partnership
ENIGEN, Inc.
Xxxxxxx Power LLC
Kladno Power (No. 1) B.V.
Kladno Power (No.2) B.V.
Lambique Beheer B.V.
Louisiana Generating LLC
NEO Corporation
NEO Landfill Gas Inc.
North American Thermal Systems LLC
Northeast Generation Holding LLC
NRG Cabrillo I Inc.
NRG Cabrillo I LLC
NRG Cabrillo II Inc.
NRG Cabrillo II LLC
NRG del Coronado, Inc.
NRG Eastern LLC
NRG El Segundo, Inc.
NRG Energeticky Provoz, s.r.o.
NRG Gladstone Operating Services Pty Ltd
NRG International, Inc.
NRG Long Beach, Inc.
NRG Northeast Generating LLC
NRG Operating Services, Inc.
NRG PacGen Inc.
NRG Pittsburgh Thermal Inc.
NRG Power Marketing Inc.
NRG San Diego, Inc.
NRG San Francisco Thermal Inc.
NRG Victoria I Pty Ltd
NRG Xxxxxxxx XX Pty Ltd
NRG Victoria III Pty Ltd
NRGenerating Holdings (No. 4) B.V.
NRGenerating Holdings (No. 5) B.V.
NRGenerating International B.V.
II-1
26
Oswego Harbor Power LLC
Pacific Xxxxxxxx Energy, Inc.
Pacific Xxxxxxxx Holdings, Inc.
Pacific Generation Company
Pacific Generation Holdings Company
Pacific Kingston Energy, Inc.
Pittsburgh Thermal, Limited Partnership
Power Operations, Inc.
RSD Power Partners, L.P.
San Francisco Thermal, Limited Partnership
Somerset Power LLC
Sunshine State Power (No.2) B.V.
Sunshine State Power B.V.
Project Affiliates
Cabrillo Power I LLC
Cabrillo Power II LLC
Cogeneration Corporation of America
Compania Boliviana de Energia Electrica X.X.
Xxxxxxxx Cogeneration, A California Limited Partnership
XXX Generating, s.r.o.
El Segundo Power LLC
Energeticke Centrum Kladno, s.r.o.
Energy Developments Limited
Enfield Energy Centre Limited
Enfield Holdings B.V.
Gladstone Power Station Joint Venture (unincorporated)
Kingston Cogen Limited Partnership
Kraftwerk Schkopau Betriebsgesellschaft mbH
Kraftwerk Schkopau GbR
Long Beach Generation LLC
Xxx Xxxx Power Management Pty Ltd
Xxx Xxxx Power Partners
Xxx Xxxx Power
Projects Pty Ltd
Matra Powerplant Holding B.V.
MIBRAG B.V.
Minnesota Methane LLC
Mitteldeutsche Braunkohlengesellschaft mbH
MM Biogas Power LLC
Northbrook Acquisition Corp.
Northbrook Energy, LLC
NRG Energy Center, Inc.
II-2
27
Saale Energie GmbH
Saale Energie Services GmbH
Xxxxxxx Latin American Power I-C L.D.C.
Xxxxxxx Latin American Power I-P L.D.C.
STS Hydropower Ltd.
The PowerSmith Cogeneration Project L.P.
Tosli Investments B.V.
II-3
28
SCHEDULE III
CHANGES IN PROJECT OWNERSHIP
None.
