NRG Energy, Inc. 8.50% Senior Notes Due 2019 UNDERWRITING AGREEMENT
Exhibit 1.1
Execution Copy
$700,000,000
8.50% Senior Notes Due 2019
UNDERWRITING AGREEMENT
June 2, 2009
June 2, 2009
To the Representatives of the Underwriters named in Schedule II hereto
Ladies and Gentlemen;
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 Xxxxxxxx & Xxxxx LLP, outside counsel for the Company, dated the Closing Date,
to the effect set forth on Schedule III. Additionally, Xxxxxxx Xxxxxxxx, 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 Xxxxxx & Xxxxxxx 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 earlier than the date hereof.
6. Covenants of the Company. The Company covenants with each Underwriter as follows:
(a) To furnish to the Representatives, without charge, a conformed copy of the Registration
Statement (without exhibits thereto) and to deliver to each of the Underwriters during the period
mentioned in Section 6(f) below, as
many copies of the Time of Sale Prospectus, the Prospectus, any documents incorporated therein
by reference therein and any supplements and amendments thereto or to the Registration Statement as
the Representatives may reasonably request; provided, that the Company shall not be required to
furnish copies of the Prospectus if the conditions of Rule 172(c) under the Securities Act are
satisfied by the Company.
(b) Before amending or supplementing the Registration Statement, the Time of Sale Prospectus
or the Prospectus, to furnish to the Representatives a copy of each such proposed amendment or
supplement and not to file any such proposed amendment or supplement to which the Representatives
reasonably object.
(c) To furnish to the Representatives a copy of each proposed free writing prospectus to be
prepared by or on behalf of, used by, or referred to by the Company and not to use or refer to any
proposed free writing prospectus to which the Representatives reasonably object.
(d) Not to take any action that would result in an Underwriter or the Company being required
to file with the Commission pursuant to Rule 433(d) under the Securities Act a free writing
prospectus prepared by or on behalf of the Underwriters that the Underwriters otherwise would not
have been required to file thereunder. For the avoidance of doubt, this paragraph (d) shall not be
applicable to the June 2 Issuer FWP (as defined below).
(e) If the Time of Sale Prospectus is being used to solicit offers to buy the Securities at a
time when the Prospectus is not yet available to prospective purchasers and any event shall occur
or condition exist as a result of which the Time of Sale Prospectus would include an untrue
statement of a material fact or omit to state a material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the circumstances, not
misleading, or if any event shall occur or condition exist as a result of which, in the reasonable
opinion of counsel for the Underwriters or counsel for the Company, the Time of Sale Prospectus
conflicts with the information contained in the Registration Statement then on file, or if, in the
reasonable opinion of counsel for the Underwriters or counsel for the Company, it is necessary to
amend or supplement the Time of Sale Prospectus to comply with applicable law, forthwith to
prepare, file with the Commission and furnish, at its own expense, to the Underwriters and to any
dealer upon request, either amendments or supplements to the Time of Sale Prospectus so that either
the statements in the Time of Sale Prospectus as so amended or supplemented will not, in the light
of the circumstances when delivered to a prospective purchaser, be misleading or so that the Time
of Sale Prospectus, as amended or supplemented, will no longer conflict with the Registration
Statement, or so that the Time of Sale Prospectus, as amended or supplemented, will comply with
applicable law.
(f) If, during such period after the first date of the public offering of the Securities as in
the reasonable opinion of counsel for the Underwriters the Prospectus (or in lieu thereof the
notice referred to in Rule 173(a) under the Securities Act) is required by law to be delivered in
connection with sales by an Underwriter or dealer, any event shall occur or condition exist as a
result of which, in the reasonable opinion of counsel for the Underwriters or counsel for the
Company, the Prospectus would include any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to make the statements therein,
in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in
Rule 173(a) under the Securities Act) is delivered to a purchaser, not misleading, or if, in the
reasonable opinion of counsel for the Underwriters or counsel for the Company, it is necessary to
amend or supplement the Prospectus to comply with applicable law, forthwith to prepare, file with
the Commission and furnish, at its own expense, to the Underwriters and to the dealers (whose names
and addresses you will furnish to the Company) to which Securities may have been sold by you on
behalf of the Underwriters and to any other dealers upon request, either amendments or supplements
to the Prospectus so that either the statements in the Prospectus as so amended or supplemented
will not, in the light of the circumstances when the Prospectus (or in lieu thereof the notice
referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, be misleading or
so that the Prospectus, as amended or supplemented, will comply with applicable law; provided, that
the Company shall not be required to furnish copies of the Prospectus if the conditions of Rule
172(c) under the 1933 Act are satisfied by the Company.
(g) To use its reasonable best efforts to qualify the Securities for offer and sale under the
securities or Blue Sky laws of such jurisdictions as you shall reasonably request; provided,
however, that nothing contained herein shall require the Company to qualify to do business in any
jurisdiction, to execute a general consent to service of process in any state or to subject itself
to taxation in any jurisdiction in which it is otherwise not so subject.
(h) To make generally available to the Company’s security holders and to the Representatives
as soon as practicable an earning statement covering a period of at least twelve months beginning
with the first fiscal quarter of the Company occurring after the date of this Agreement which shall
satisfy the provisions of Section 11(a) of the Securities Act and the rules and regulations of the
Commission thereunder.
(i) Whether or not the transactions contemplated in this Agreement are consummated or this
Agreement is terminated, to pay or cause to be paid the costs and expenses relating to the
following matters: (i) the fees, disbursements and expenses of the Company’s counsel and the
Company’s accountants in connection with the registration and delivery of the Securities under the
Securities Act and all other fees or expenses in connection with the preparation and filing of the
Registration Statement, any preliminary prospectus, the Time of Sale
Prospectus, the Prospectus, any free writing prospectus prepared by or on behalf of, used by,
or referred to by the Company and amendments and supplements to any of the foregoing, including the
filing fees payable to the Commission relating to the Securities (within the time required by Rule
456 (b)(1), if applicable), all printing costs associated therewith, and the mailing and delivering
of copies thereof to the Underwriters and dealers, in the quantities hereinabove specified, (ii)
all costs and expenses related to the transfer and delivery of the Securities to the Underwriters,
including any transfer or other taxes payable thereon, (iii) the cost of printing or producing any
Blue Sky or legal investment memorandum in connection with the offer and sale of the Securities
under state securities laws and all expenses in connection with the qualification of the Securities
for offer and sale under state securities laws as provided in Section 6(f) hereof, including filing
fees and the reasonable fees and disbursements of counsel for the Underwriters in connection with
such qualification and in connection with the Blue Sky or legal investment memorandum, which shall
be $10,000 in the aggregate for this offering and the concurrent offerings by the Company of its
common stock and mandatory convertible preferred stock, (iv) any fees charged by the rating
agencies for the rating of the Securities, (v) the cost of the preparation, issuance and delivery
of the Securities, (vi) the costs and charges of any trustee, transfer agent, registrar or
depositary, (vii) the document production charges and expenses associated with printing this
Agreement and (viii) all other costs and expenses incident to the performance of the obligations of
the Company hereunder for which provision is not otherwise made in this Section; provided however
that any costs and expenses of the Company relating to investor presentations on any “road show”
undertaken in connection with the marketing or the offering of the Securities, including, without
limitation, expenses associated with the preparation or dissemination of any electronic road show,
expenses associated with the production of road show slides and graphics, fees and expenses of any
consultants engaged in connection with the road show presentations, travel and lodging expenses of
the representatives and officers of the Company and any such consultants, and the cost of any
aircraft chartered in connection with the road show, shall be paid or caused to be paid by the
Underwriters. It is understood, however, that except as provided in this Section, Section 8
entitled “Indemnity and Contribution,” and the last paragraph of Section 10 below, the Underwriters
will pay all of their costs and expenses, including fees and disbursements of their counsel,
transfer taxes payable on resale of any of the Securities by them and any advertising expenses
connected with any offers they may make.
(j) To prepare the issuer free writing prospectus (as defined in Rule 433 promulgated under
the Securities Act) attached hereto as Exhibit A (the “June 2 Issuer FWP”) and to file such June 2
Issuer FWP on June 2, 2009 as soon as reasonably practicable.
(k) If the third anniversary of the initial effective date of the Registration Statement
occurs before all the Securities have been sold by the Underwriters, prior to the third anniversary
to file a new shelf registration statement and to take any other action necessary to permit the
public offering of
the Securities to continue without interruption; references herein to the Registration
Statement shall include the new registration statement declared effective by the Commission.
(l) During the period beginning on the date hereof and continuing to and including the Closing
Date, not to offer, sell, contract to sell or otherwise dispose of any debt securities of the
Company or warrants to purchase or otherwise acquire debt securities of the Company substantially
similar to the Securities (other than (i) the Securities, (ii) commercial paper issued in the
ordinary course of business or (iii) securities or warrants permitted with the prior written
consent of the Representatives, provided that nothing in this paragraph (l) shall be construed as a
limitation on the Company’s ability to consummate, or prevent the Company from consummating the
transactions as described in the Time of Sale Prospectus and the Final Prospectus under the heading
“The Transactions.”
7. Covenant of the Underwriters. Each Underwriter severally covenants with the Company not to
take any action that would result in the Company being required to file with the Commission under
Rule 433(d) a free writing prospectus prepared by or on behalf of such Underwriter that otherwise
would not be required to be filed by the Company thereunder, but for the action of the Underwriter.
For the avoidance of doubt, this Section 7 shall not restrict the dissemination by the
Underwriters of the June 2 Issuer FWP (as defined below).
8. Indemnity and Contribution. (a) The Company agrees to indemnify and hold harmless each
Underwriter, each person, if any, who controls any Underwriter within the meaning of either Section
15 of the Securities Act or Section 20 of the Exchange Act and each affiliate of any Underwriter
within the meaning of Rule 405 under the Securities Act (provided that the Company’s
indemnification obligation shall not extend to any free writing prospectus required to be filed by
the Company due to an Underwriter’s breach of Section 7) from and against any and all losses,
claims, damages and liabilities (including, without limitation, any legal or other expenses
reasonably incurred in connection with defending or investigating any such action or claim) caused
by any untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement or any amendment thereof, any preliminary prospectus, the Time of Sale
Prospectus, any free writing prospectus that the Company has used or referred to in connection with
the Securities Act or the Prospectus or any amendment or supplement thereto (if the Company
furnished any amendments or supplements thereto), or caused by any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make the statements
therein, (i) with respect to the Registration Statement or any amendment thereof, not misleading,
and (ii) with respect to any preliminary prospectus, the Time of Sale Prospectus, any free writing
prospectus that the Company has used or referred to in connection with the Securities Act or the
Prospectus or any amendment or supplement thereto (if the Company furnished any amendments or
supplements thereto), not misleading in light of the
circumstances under which they were made, except in each case insofar as such losses, claims,
damages or liabilities are caused by any such untrue statement or omission or alleged untrue
statement or omission based upon information relating to any Underwriter furnished to the Company
in writing by such Underwriter through the Representatives expressly for use therein.
(b) Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the
Company, its directors, its officers who sign the Registration Statement and each person, if any,
who controls the Company within the meaning of either Section 15 of the Securities Act or Section
20 of the Exchange Act to the same extent as the foregoing indemnity from the Company to such
Underwriter, but only with reference to information relating to such Underwriter furnished to the
Company in writing by such Underwriter through the Representatives expressly for use in the
Registration Statement, any preliminary prospectus, the Time of Sale Prospectus, any other free
writing prospectus that the Company has used or referred to in connection with the Securities Act
or the Prospectus or any amendment or supplement thereto.
(c) In case any proceeding (including any governmental investigation) shall be instituted
involving any person in respect of which indemnity may be sought pursuant to Section 8(a) or 8(b),
such person (the “indemnified party”) shall promptly notify the person against whom such indemnity
may be sought (the “indemnifying party”) in writing and the indemnifying party, upon request of the
indemnified party, shall retain counsel chosen by the indemnifying party and reasonably
satisfactory to the indemnified party to represent the indemnified party and any others entitled to
indemnification pursuant to this section 9 the indemnifying party may designate in such proceeding
and shall pay the reasonably incurred fees and expenses of such counsel related to such proceeding
as incurred. In any such proceeding, any indemnified party shall have the right to retain its own
counsel, but the reasonably incurred fees and expenses of such counsel shall be at the expense of
such indemnified party unless (i) the indemnifying party and the indemnified party shall have
mutually agreed to the retention of such counsel or (ii) the named parties to any such proceeding
(including any impleaded parties) include both the indemnifying party and the indemnified party and
representation of both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood and agreed that the indemnifying
party shall not, in connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the reasonably incurred fees and expenses of more than one separate firm (in addition
to any local counsel) for all such indemnified parties and that all such reasonably incurred fees
and expenses shall be reimbursed as they are incurred. Such firm shall be designated in writing by
the Representatives in the case of parties indemnified pursuant to Section 8(a), and by the
Company, in the case of parties indemnified pursuant to Section 8(b). The indemnifying party shall
not be liable for any settlement of any proceeding effected without its written consent, but if
settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party
agrees to indemnify the indemnified party from and against
any loss or liability by reason of such settlement or judgment. No indemnifying party shall,
without the prior written consent of the indemnified party, effect any settlement of any pending or
threatened proceeding in respect of which any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified party, unless such settlement
includes an unconditional release of such indemnified party from all liability on claims that are
the subject matter of such proceeding.
(d) To the extent the indemnification provided for in Section 8(a) or Section 8(b) is
unavailable to an indemnified party or insufficient in respect of any losses, claims, damages or
liabilities referred to therein, then each indemnifying party under such paragraph, in lieu of
indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or liabilities (i) in such
proportion as is appropriate to reflect the relative benefits received by the indemnifying party or
parties on the one hand and the indemnified party or parties on the other hand from the offering of
the Securities or (ii) if the allocation provided by clause 8(d)(i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the relative benefits
referred to in clause 8(d)(i) above but also the relative fault of the indemnifying party or
parties on the one hand and of the indemnified party or parties on the other hand in connection
with the statements or omissions that resulted in such losses, claims, damages or liabilities, as
well as any other relevant equitable considerations. The relative benefits received by the Company
on the one hand and the Underwriters on the other hand in connection with the offering of the
Securities shall be deemed to be in the same respective proportions as the net proceeds (before
deducting expenses) received by the Company from the sale of Securities and the total underwriting
discounts and commissions received by the Underwriters in connection therewith, in each case as set
forth in the table on the cover page of the Prospectus bear to the aggregate offering price of the
Securities. The relative fault of the Company on the one hand and the Underwriters on the other
hand shall be determined by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a material fact relates
to information supplied by the Company or by the Underwriters and the parties’ relative intent,
knowledge, access to information and opportunity to correct or prevent such statement or omission.
The Underwriters’ respective obligations to contribute pursuant to this Section 8 are several in
proportion to the respective principal amounts of Securities they have purchased hereunder, and not
joint.
(e) The Company and the Underwriters agree that it would not be just or equitable if
contribution pursuant to this Section 8 were determined by pro rata allocation (even if the
Underwriters were treated as one entity for such purpose) or by any other method of allocation that
does not take account of the equitable considerations referred to in Section 8(d). The amount paid
or payable by an indemnified party as a result of the losses, claims, damages and liabilities
referred to in Section 8(d) shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such indemnified party in connection
with investigating or defending any such action or claim. Notwithstanding the provisions of this
Section 8, no Underwriter shall be required to contribute any amount in excess of the amount by
which the total price at which the Securities underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages that such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The remedies provided for in this Section 8 are not exclusive and
shall not limit any rights or remedies which may otherwise be available to any indemnified party at
law or in equity.
(f) The indemnity and contribution provisions contained in this Section 8 and the
representations, warranties and other statements of the Company contained in this Agreement shall
remain operative and in full force and effect regardless of (i) any termination of this Agreement,
(ii) any investigation made by or on behalf of any Underwriter, any person controlling any
Underwriter or any affiliate of any Underwriter or by or on behalf of the Company, its officers or
directors or any person controlling the Company and (iii) acceptance of and payment for any of the
Securities.
9. Termination. The Underwriters may terminate this Agreement by notice given by the
Representatives to the Company, if after the execution and delivery of this Agreement and prior to
the Closing Date (i) trading generally shall have been suspended or materially limited on, or by,
as the case may be, any of the New York Stock Exchange or the Nasdaq National Market, (ii) trading
of any securities of the Company shall have been suspended on the New York Stock Exchange, (iii) a
material disruption in securities settlement, payment or clearance services in the United States
shall have occurred, (iv) any moratorium on commercial banking activities shall have been declared
by Federal or New York State authorities or (v) there shall have occurred any outbreak or
escalation of hostilities, or any change in financial markets or any calamity or crisis that, in
your judgment, is material and adverse and which, singly or together with any other event specified
in this clause (v), makes it, in the Representatives judgment, impracticable or inadvisable to
proceed with the offer, sale or delivery of the Securities on the terms and in the manner
contemplated in the Time of Sale Prospectus or the Prospectus.
10. Effectiveness; Defaulting Underwriters. This Agreement shall become effective upon the
execution and delivery hereof by the parties hereto.
If, on the Closing Date, any one or more of the Underwriters shall fail or refuse to purchase
Securities that it has or they have agreed to purchase hereunder on such date, and the aggregate
principal amount of Securities which such defaulting Underwriter or Underwriters agreed but failed
or refused to purchase is
not more than one-tenth of the aggregate principal amount of the Securities to be purchased on
such date, the other Underwriters shall be obligated severally in the proportions that the
principal amount of Securities set forth opposite their respective names in Schedule II bears to
the aggregate principal amount of Securities set forth opposite the names of all such
non-defaulting Underwriters, or in such other proportions as you may specify, to purchase the
Securities which such defaulting Underwriter or Underwriters agreed but failed or refused to
purchase on such date; provided that in no event shall the principal amount of Securities that any
Underwriter has agreed to purchase pursuant to this Agreement be increased pursuant to this Section
10 by an amount in excess of one-ninth of such principal amount of Securities without the written
consent of such Underwriter. If, on the Closing Date, any Underwriter or Underwriters shall fail
or refuse to purchase Securities and the aggregate principal amount of Securities with respect to
which such default occurs is more than one-tenth of the aggregate principal amount of Securities to
be purchased on such date, and arrangements satisfactory to you and the Company for the purchase of
such Securities are not made within 36 hours after such default, this Agreement shall terminate
without liability on the part of any non-defaulting Underwriter or the Company. In any such case
either you or the Company shall have the right to postpone the Closing Date, but in no event for
longer than seven days, in order that the required changes, if any, in the Registration Statement,
in the Time of Sale Prospectus, in the Prospectus or in any other documents or arrangements may be
effected. Any action taken under this paragraph shall not relieve any defaulting Underwriter from
liability in respect of any default of such Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or any of them, because of any
failure or refusal on the part of the Company to comply with the terms or to fulfill any of the
conditions of this Agreement (other than by reason of a default by any of the Underwriters
described in the preceding paragraph), or if for any reason the Company shall be unable to perform
its obligations under this Agreement the Company will reimburse the Underwriters or such
Underwriters as have so terminated this Agreement with respect to themselves, severally, through
the Representatives for all out-of-pocket expenses (including the reasonable fees and disbursements
of their counsel) reasonably incurred by such Underwriters in connection with this Agreement or the
offering contemplated hereunder.
11. Entire Agreement. (a) This Agreement, together with any contemporaneous written
agreements and any prior written agreements (to the extent not superseded by this Agreement) that
relate to the offering of the Securities, represents the entire agreement between the Company and
the Underwriters with respect to the preparation of any preliminary prospectus, the Time of Sale
Prospectus, the Prospectus, the conduct of the offering, and the purchase and sale of the
Securities.
(b) The Company acknowledges that in connection with the offering of the Securities: (i) the
Underwriters have acted at arms length, are not agents of, and owe no fiduciary duties to, the
Company or any other person, (ii) the
Underwriters owe the Company only those duties and obligations set forth in this Agreement and
prior written agreements (to the extent not superseded by this Agreement), if any, and (iii) the
Underwriters may have interests that differ from those of the Company. The Company waives to the
full extent permitted by applicable law any claims it may have against the Underwriters arising
from an alleged breach of fiduciary duty in connection with the offering of the Securities.
12. Counterparts. This Agreement may be signed in two or more counterparts, each of which
shall be an original, with the same effect as if the signatures thereto and hereto were upon the
same instrument.
13. Applicable Law. This Agreement shall be governed by and construed in accordance with the
internal laws of the State of New York.
14. Headings. The headings of the sections of this Agreement have been inserted for
convenience of reference only and shall not be deemed a part of this Agreement.
15. Notices. All communications hereunder shall be in writing and effective only upon receipt
and if to the Underwriters shall be delivered, mailed or sent to you at the address set forth in
Schedule I hereto; and if to the Company shall be delivered, mailed or sent to the address set
forth in Schedule I hereto.
[Signatures follow]
| Very truly yours, NRG ENERGY, INC. |
||||
| By: | /s/ Xxxxxxxxxxx Xxxxx | |||
| Name: | Xxxxxxxxxxx Xxxxx | |||
| Title: | Vice President and Treasurer | |||
GUARANTORS:
Xxxxxx Kill Power LLC
Astoria Gas Turbine Power LLC
Berrians I Gas Turbine Power LLC
Big Cajun II Unit 4 LLC
Cabrillo Power I LLC
Cabrillo Power II LLC
Chickahominy River Energy Corp.
Commonwealth Atlantic Power LLC
Conemaugh Power LLC
Connecticut Jet Power LLC
Devon Power LLC
Dunkirk Power LLC
Eastern Sierra Energy Company
El Segundo Power, LLC
El Segundo Power II LLC
Hanover Energy Company
Xxxxxxx Summit Wind Project, LLC
Xxxxxxx IGCC LLC
Xxxxxxx Power LLC
Indian River IGCC LLC
Indian River Operations Inc.
Indian River Power LLC
Xxxxx River Power LLC
Xxxxxxx Xxxxx XX
Keystone Power LLC
Lake Erie Properties Inc.
Louisiana Generating LLC
Middletown Power LLC
Montville IGCC LLC
Montville Power LLC
NEO Xxxxxxx-Gen LLC
NEO Corporation
NEO Freehold-Gen LLC
NEO Power Services Inc.
Astoria Gas Turbine Power LLC
Berrians I Gas Turbine Power LLC
Big Cajun II Unit 4 LLC
Cabrillo Power I LLC
Cabrillo Power II LLC
Chickahominy River Energy Corp.
Commonwealth Atlantic Power LLC
Conemaugh Power LLC
Connecticut Jet Power LLC
Devon Power LLC
Dunkirk Power LLC
Eastern Sierra Energy Company
El Segundo Power, LLC
El Segundo Power II LLC
Hanover Energy Company
Xxxxxxx Summit Wind Project, LLC
Xxxxxxx IGCC LLC
Xxxxxxx Power LLC
Indian River IGCC LLC
Indian River Operations Inc.
Indian River Power LLC
Xxxxx River Power LLC
Xxxxxxx Xxxxx XX
Keystone Power LLC
Lake Erie Properties Inc.
Louisiana Generating LLC
Middletown Power LLC
Montville IGCC LLC
Montville Power LLC
NEO Xxxxxxx-Gen LLC
NEO Corporation
NEO Freehold-Gen LLC
NEO Power Services Inc.
New Xxxxx XX, LLC
Norwalk Power LLC
NRG Affiliate Services Inc.
NRG Xxxxxx Kill Operations Inc.
NRG Asia-Pacific, Ltd.
NRG Astoria Gas Turbine Operations Inc.
NRG Bayou Cove LLC
NRG Cabrillo Power Operations Inc.
NRG Cadillac Operations Inc.
NRG California Peaker Operations LLC
NRG Cedar Bayou Development Company, LLC
NRG Connecticut Affiliate Services Inc.
NRG Devon Operations Inc.
NRG Dunkirk Operations Inc.
NRG El Segundo Operations Inc.
NRG Generation Holdings, Inc.
NRG Xxxxxxx Operations Inc.
NRG International LLC
NRG Xxxxxxx LLC
NRG Mesquite LLC
NRG MidAtlantic Affiliate Services Inc.
NRG Middletown Operations Inc.
NRG Montville Operations Inc.
NRG New Jersey Energy Sales LLC
NRG New Roads Holdings LLC
NRG North Central Operations Inc.
NRG Northeast Affiliate Services Inc.
NRG Norwalk Harbor Operations Inc.
NRG Operating Services, Inc.
NRG Oswego Harbor Power Operations Inc.
NRG Power Marketing LLC
NRG Rocky Road LLC
NRG Saguaro Operations Inc.
NRG South Central Affiliate Services Inc.
NRG South Central Generating LLC
NRG South Central Operations Inc.
NRG Texas LLC
NRG Texas Power LLC
NRG West Coast LLC
NRG Western Affiliate Services Inc.
Oswego Harbor Power LLC
Padoma Wind Power, LLC
Saguaro Power LLC
San Xxxx Xxxx Wind Project II, LLC
Somerset Operations Inc.
Somerset Power LLC
Norwalk Power LLC
NRG Affiliate Services Inc.
NRG Xxxxxx Kill Operations Inc.
NRG Asia-Pacific, Ltd.
NRG Astoria Gas Turbine Operations Inc.
NRG Bayou Cove LLC
NRG Cabrillo Power Operations Inc.
NRG Cadillac Operations Inc.
NRG California Peaker Operations LLC
NRG Cedar Bayou Development Company, LLC
NRG Connecticut Affiliate Services Inc.
NRG Devon Operations Inc.
NRG Dunkirk Operations Inc.
NRG El Segundo Operations Inc.
NRG Generation Holdings, Inc.
NRG Xxxxxxx Operations Inc.
NRG International LLC
NRG Xxxxxxx LLC
NRG Mesquite LLC
NRG MidAtlantic Affiliate Services Inc.
NRG Middletown Operations Inc.
NRG Montville Operations Inc.
NRG New Jersey Energy Sales LLC
NRG New Roads Holdings LLC
NRG North Central Operations Inc.
NRG Northeast Affiliate Services Inc.
NRG Norwalk Harbor Operations Inc.
NRG Operating Services, Inc.
NRG Oswego Harbor Power Operations Inc.
NRG Power Marketing LLC
NRG Rocky Road LLC
NRG Saguaro Operations Inc.
NRG South Central Affiliate Services Inc.
NRG South Central Generating LLC
NRG South Central Operations Inc.
NRG Texas LLC
NRG Texas Power LLC
NRG West Coast LLC
NRG Western Affiliate Services Inc.
Oswego Harbor Power LLC
Padoma Wind Power, LLC
Saguaro Power LLC
San Xxxx Xxxx Wind Project II, LLC
Somerset Operations Inc.
Somerset Power LLC
Texas Genco Financing Corp.
Texas Xxxxx XX, LLC
Texas Genco Holdings, Inc.
Texas Genco Operating Services LLC
Vienna Operations Inc.
Vienna Power LLC
WCP (Generation) Holdings LLC
West Coast Power LLC
Texas Xxxxx XX, LLC
Texas Genco Holdings, Inc.
Texas Genco Operating Services LLC
Vienna Operations Inc.
Vienna Power LLC
WCP (Generation) Holdings LLC
West Coast Power LLC
| By: | /s/ Xxxxxxxxxxx Xxxxx | |||
| Name: | Xxxxxxxxxxx Xxxxx | |||
| Title: | Treasurer | |||
| GCP Funding Company, LLC Texas Xxxxx XX, LLC |
||||
| By: | /s/ Xxxxxxxxxxx Xxxxx | |||
| Name: | Xxxxxxxxxxx Xxxxx | |||
| Title: | Manager | |||
| NRG South Texas LP By: Texas Xxxxx XX, LLC, its general partner |
||||
| By: | /s/ Xxxxxxxxxxx Xxxxx | |||
| Name: | Xxxxxxxxxxx Xxxxx | |||
| Title: | Vice President and Treasurer | |||
Texas Genco Services, LP By: New Xxxxx XX, LLC, its general partner |
||||
| By: | /s/ Xxxxxxxxxxx Xxxxx | |||
| Name: | Xxxxxxxxxxx Xxxxx | |||
| Title: | Vice President and Treasurer | |||
| NRG Construction LLC |
||||
| By: | /s/ Xxxxxx Xxxxx | |||
| Name: | Xxxxxx Xxxxx | |||
| Title: | Treasurer | |||
| Accepted as of the date hereof XXXXXX XXXXXXX & CO. INCORPORATED |
||||
| By: | /s/ Xxxxxxx Xxxxxx | |||
| Name: | Xxxxxxx Xxxxxx | |||
| Title: | Managing Director | |||
| CITIGROUP GLOBAL MARKETS INC. |
||||
| By: | /s/ Xxxx Paris | |||
| Name: | Xxxx Paris | |||
| Title: | Managing Director | |||
| Acting severally on behalf of themselves and the several Underwriters named in Schedule II hereto | ||||
SCHEDULE I
Representatives: |
||
Xxxxxx, Xxxxxxx & Co.
Incorporated |
||
Citigroup Global Market Inc. |
||
Indentures:
|
Base Indenture dated as of February 2, 2006, between the Company and the Trustee, as supplemented by the Supplemental Indenture relating to the Securities to be dated June 5, 2009. | |
Trustee:
|
Law Debenture Trust Company of New York | |
Registration Statement File No.:
|
333-157351 | |
Time of Sale Prospectus
|
1. Prospectus dated February 13,
2009 relating to the Shelf
Securities |
|
2. the Preliminary Prospectus
Supplement dated June 2, 2009
relating to the Securities |
||
3. the June 2 Issuer FWP |
||
Securities to be purchased:
|
8.50% Senior Notes Due 0000 | |
Xxxxxxxxx Principal Amount:
|
$700.0 million | |
Purchase Price:
|
96.848% of the principal amount of the Securities, plus accrued interest, if any, from June 5, 2009 | |
Maturity:
|
June 15, 2019 | |
Interest Rate: |
||
Coupon:
|
8.50% |
I-1
Yield:
|
8.75% | |
Interest Payment Dates:
|
June 15 and December 15 of each year, commencing December 15, 2009 | |
Closing Date and Time:
|
June 5, 2009, 9:00 a.m. | |
Closing Location:
|
Xxxxxx & Xxxxxxx LLP 000 Xxxxx Xxxxxx Xxx Xxxx, XX 00000 |
|
Address for Notices to Underwriters:
|
Xxxxxx Xxxxxxx & Co. Incorporated 0000 Xxxxxxxx Xxx Xxxx, Xxx Xxxx 00000 |
|
| Citigroup Global Markets Inc. 000 Xxxxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 |
||
Address for Notices to the Company:
|
NRG Energy, Inc. 000 Xxxxxxxx Xxxxxx Xxxxxxxxx, XX 00000-0000 |
SCHEDULE II
| Underwriter | 8.50% Senior Notes Due 2019 |
|||
Xxxxxx Xxxxxxx & Co. Incorporated |
$ | 280,000,000 | ||
Citigroup Global Markets Inc. |
$ | 192,500,000 | ||
Banc of America Securities LLC |
$ | 52,500,000 | ||
BNP Paribas Securities Corp. |
$ | 29,166,667 | ||
ING Financial Markets LLC |
$ | 29,166,667 | ||
Natixis Bleichroeder Inc. |
$ | 29,166,667 | ||
RBS Securities Inc. |
$ | 29,166,667 | ||
TD Securities (USA) LLC |
$ | 29,166,667 | ||
Wedbush Xxxxxx Securities Inc. |
$ | 29,166,667 | ||
Total |
$ | 700,000,000 | ||
II-1
EXHIBIT A
Filed Pursuant to Rule 433 under the Securities Act of 1933
Registration Statement No. 333-157351
Registration Statement No. 333-157351
Issuer Free Writing Prospectus, dated June 2, 2009
(Related to Preliminary Prospectus Supplement, dated June 2, 2009)
(Related to Preliminary Prospectus Supplement, dated June 2, 2009)
NRG Energy, Inc.
$700,000,000 aggregate principal amount of 8.50% Senior Notes due 2019
$700,000,000 aggregate principal amount of 8.50% Senior Notes due 2019
The issuer has filed a registration statement (including a prospectus) with the SEC to which this
communication relates. Before you invest, you should read the prospectus in that registration
statement and other documents the issuer has filed with the SEC for more complete information about
the issuer and this offering. You may get these documents for free by visiting XXXXX on the SEC
web site at xxx.xxx.xxx. Alternatively, the issuer, any underwriter or any dealer participating in
the offering will arrange to send you the prospectus and the Preliminary Prospectus Supplement
referenced below if you request it by calling toll-free 0-000-000-0000.
The following information supplements the Preliminary Prospectus Supplement, dated June 2, 2009,
filed pursuant to Rule 424(b)(3) promulgated under the Securities Act, Registration Statement No.
333-157351.
Issuer:
|
NRG Energy, Inc. | |
Underwriters:
|
Xxxxxx Xxxxxxx & Co. Incorporated | |
| Citigroup Global Markets Inc. Banc of America Securities LLC BNP Paribas Securities Corp. ING Financial Markets LLC Natixis Bleichroeder Inc. RBS Securities Inc. TD Securities (USA) LLC Wedbush Xxxxxx Securities Inc. |
||
Title of securities:
|
8.50% Senior Notes due 2019 (the “Notes”) | |
Aggregate principal amount offered:
|
$700,000,000 principal amount of Notes | |
Principal amount per bond:
|
$5,000 | |
Price to Public:
|
98.348% of principal amount |
Net proceeds to NRG, after Underwriters’
discount, but before other offering expenses:
|
$677,936,000 | |
Underwriters’ discount:
|
1.50% | |
Estimated expenses of notes offering (not including
Underwriters’ discount):
|
$300,000 | |
Annual interest rate: |
||
Coupon:
|
8.50% | |
Yield:
|
8.75% | |
Interest payment dates:
|
June 15 and December 15 of each year, commencing December 15, 2009 | |
Record Dates:
|
June 1 and December 1 | |
Maturity:
|
June 15, 2019 | |
Optional Redemption:
|
At any time prior to June 15, 2012, NRG may on any one or more occasions redeem up to 35% of the aggregate principal amount of the Notes issued under the indenture at a redemption price of 108.5% of their principal amount, plus accrued and unpaid interest to the redemption date, with the proceeds of one or more equity offerings, subject to certain conditions set forth in the Preliminary Prospectus Supplement, dated June 2, 2009. | |
| At any time prior to June 15, 2014, NRG may on any one or more occasions redeem all or a part of the Notes at a redemption price equal to 100% of the principal amount of the Notes redeemed plus the Applicable Premium as of, and accrued and unpaid interest, if any, to the redemption date, all as set forth in the Preliminary Prospectus Supplement, dated June 2, 2009. | ||
| On or after June 15, 2014, NRG may on any one or more occasions redeem all or a part of the Notes at the redemption prices (expressed as |
| percentages of principal amount) set forth below plus accrued and unpaid interest on the Notes redeemed, to the applicable redemption date, if redeemed during the twelve-month period beginning on June 15 of the years indicated below, subject to the rights of noteholders on the relevant record date to receive interest on the relevant interest payment date: |
2014 |
104.25 | % | ||
2015 |
102.83 | % | ||
2016 |
101.42 | % | ||
2017 (and thereafter) |
100.00 | % |
Ranking:
|
Senior unsecured | |
Trade date:
|
June 2, 2009 | |
Settlement date:
|
June 5, 2009 | |
CUSIP:
|
629377 BG6 |
