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EXHIBIT 4.6
The Bank of New York, not in its individual
capacity but solely as Trustee of NRG
ENERGY PASS-THROUGH TRUST 2000-1
(a New York trust)
$250,000,000
8.70% Remarketable or Redeemable Securities ("ROARS") Xxx Xxxxx 00, 0000
XXXXXXXX AGREEMENT
March 14, 0000
Xxxx xx Xxxxxxx Securities LLC
ABN AMRO Incorporated
Deutsche Bank Securities Inc.
c/o Banc of America Securities LLC, as Representative 000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Ladies and Gentlemen:
The Bank of New York, as Trustee (the "Trustee") of the NRG Energy
Pass-Through Asset Trust 2000-1 (the "Trust"), a trust organized under the laws
of the State of New York, confirms its agreement with Banc of America Securities
LLC, ABN AMRO Incorporated and Deutsche Bank Securities Inc. (the "Initial
Purchasers"), acting severally and not jointly, to issue and sell to the Initial
Purchasers, for whom Banc of America Securities LLC is acting as representative
(the "Representative"), $250,000,000 aggregate principal amount of 8.70%
Remarketable or Redeemable Securities ("ROARS") Due March 15, 2005
(collectively, the "Certificates"), each such Certificate representing a
fractional undivided beneficial interest in the assets of the Trust. NRG Energy,
Inc., a company incorporated under the laws of the State of Delaware (the
"Company"), confirms its agreement with the Trustee with respect to the issue
and sale by the Company and the purchase by the Trust, on the terms set forth
herein, of (pound)160,000,000 aggregate principal amount of 7.97% Reset Senior
Notes Due March 15, 2020, which are referred to herein as the "Senior Notes" and
which, together with the Certificates, are referred to herein as the
"Securities." Prior to the purchase of the Senior Notes by the Trustee, Bank of
America, N.A. ("BofA") is expected to enter into an ISDA Master Agreement dated
as of March 20, 2000 with the Trustee, as supplemented and amended by the
Schedule thereto (as so supplemented and amended, the "Master Agreement") and a
Confirmation dated March 20, 2000 between the Trustee and BofA (the "Swap
Counterparty") under the Master Agreement providing for a (pound) Sterling to US
Dollar swap (the "Currency Swap"). Concurrently, the Trustee shall also enter
into a Confirmation dated March 20, 2000 with BofA (the "Callholder") under the
Master Agreement providing a call option to the Callholder (the "Trust Call
Option").
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The Certificates will be offered and sold to the Initial Purchasers,
and the Senior Notes will be sold to the Trust, in each case without
registration under the United States Securities Act of 1933, as amended (the
"Act"), in reliance upon an exemption from the registration requirements of the
Act. In connection with the offering and resale of the Certificates, the Company
has prepared a preliminary offering circular, subject to completion, dated March
9, 2000, including the documents incorporated therein by reference (the
"Preliminary Offering Circular"), and a final offering circular dated the date
hereof, including the documents incorporated therein by reference as of the date
hereof (the "Offering Circular"), each setting forth or incorporating by
reference certain information concerning, among other things, the Trust, the
Company, the Swap Counterparty, the Currency Swap, the Certificates and the
Senior Notes. The Company hereby confirms that it has authorized the use of the
Preliminary Offering Circular and the Offering Circular in connection with the
offer and sale of the Certificates. Unless stated to the contrary, all
references herein to the Offering Circular are to the Offering Circular as of
the date hereof and are not meant to include any amendment or supplement thereto
subsequent to the date hereof. All references herein to amendments or
supplements to the Offering Circular shall be deemed to mean and include the
filing of any document by the Company with the United States Securities and
Exchange Commission (the "Commission") pursuant to Section 13(a), 13(c), 14 or
15(d) of the United States Securities Exchange Act of 1934, as amended (the
"Exchange Act"), after the date hereof and prior to the termination of the
offering of the Certificates.
The Trust and the Company understand that the Initial Purchasers
propose to offer and resell the Certificates only on the terms and in the manner
set forth in the Offering Circular and Section 3 hereof, as soon as the
Representative deems advisable after this Agreement has been executed and
delivered, only to persons in the United States whom the Initial Purchasers
reasonably believe to be "qualified institutional buyers" ("QIBs") as defined in
Rule 144A under the Act ("Rule 144A") in transactions under Rule 144A or in
offshore transactions complying with Regulation S under the Act ("Regulation
S").
When used herein in reference to the Trust or the Trustee, the term
"Operative Documents" shall refer collectively to (1) this Agreement, (2) the
Certificates, (3) the Trust Call Option, (4) the Currency Swap and (5) the Trust
Agreement, dated as of March 20, 2000 (the "Trust Agreement"), between the
Company and The Bank of New York, as trustee (the "Trustee"). When used herein
in reference to the Company, the term "Operative Documents" shall refer to (1)
this Agreement, (2) the Senior Notes, (3) the Indenture, dated as of March 20,
2000 (the "Indenture"), between the Company and The Bank of New York, as
indenture trustee (the "Indenture Trustee"), (4) the Trust Agreement, (5) the
Remarketing Agreement, dated as of March 20, 2000 (the "Remarketing Agreement"),
between the Company and Banc of America Securities LLC, as remarketing agent,
(6) an ISDA Master Agreement, dated as of March 20, 2000, between the Company
and Bank of America, N.A., as supplemented and amended by the Schedule thereto,
dated as of March 20, 2000 (as so supplemented and amended, the "NRG Master
Agreement"), (7) a Confirmation, dated March 20, 2000, between BofA (the
"Contingent Swap Counterparty") and the Company under the NRG Master Agreement
providing for a contingent pound Sterling to US Dollar swap (the "Contingent
Swap") and (8) a Confirmation, dated March 20, 2000, between Bank of America,
N.A. (the
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"Contingent Seller") and the Company under the NRG Master Agreement providing a
contingent call option to the Company (the "Contingent Call Option").
1. The Company represents and warrants to, and agrees with, the
Initial Purchasers that:
(1) The Preliminary Offering Circular and the Offering Circular
have been prepared in connection with the offering of the
Certificates. Any reference to the Preliminary Offering
Circular or the Offering Circular shall be deemed to refer to
any Additional Issuer Information (as defined in Section 5(h)
hereof) furnished by the Company or the Trust prior to the
completion of the distribution of the Certificates. The
Preliminary Offering Circular, as of its date, did not, and
the Offering Circular, as of the date of this Agreement, does
not, and at the Time of Purchase (as defined in Section 4
hereof) the Offering Circular will not, contain 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, except that the Company makes no warranty or
representation to any of the Initial Purchasers with respect
to (i) any statements or omissions made therein in reliance
upon and in conformity with the Initial Purchaser Information
(as defined in Section 7(e) hereof) or (ii) any information
with respect to DTC, The Euroclear System ("Euroclear") or
Clearstream Banking, societe anonyme ("Clearstream,
Luxembourg") or their respective systems or procedures as set
forth in the Offering Circular or the Preliminary Offering
Circular under "Description of the Certificates - Book-Entry
Issuance" and "Description of the Certificates - Exchange of
Global Certificate for Definitive Certificates";
(2) Each of the Preliminary Offering Circular and the Offering
Circular, as of its respective date, contains or incorporates
all of the information that, if requested by a prospective
purchaser of the Certificates, would be required to be
provided to such prospective purchaser pursuant to Rule
144A(d)(4) under the Securities Act;
(3) The Company has been duly incorporated and is validly existing
and in good standing as a corporation under the laws of the
State of Delaware with the power and authority to own property
and to conduct its business as described in the Offering
Circular, to issue and sell the Senior Notes and to enter into
and perform its obligations under the other Operative
Documents, to which it is a party; the Company is duly
qualified to transact business as a foreign corporation and is
in good standing in any other jurisdiction in which such
qualification is necessary, except to the extent that the
failure to so qualify or be in good standing is not reasonably
likely to have a material adverse effect on the Company;
(4) Under current law and assuming full compliance with the terms
of the Indenture and the Trust Agreement, the Trust will be
classified for United States federal income tax
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purposes as a grantor trust and not as an association or a
publicly traded partnership taxable as a corporation;
(5) This Agreement has been duly authorized, executed and
delivered by the Company;
(6) The performance of the obligations of the Company under the
Operative Documents to which it is a party, has been duly
authorized by the Company and, at the Time of Purchase, each
of such Operative Documents, will have been duly executed and
delivered by the Company, and assuming due authorization,
execution, issue, authentication and delivery by the other
parties thereto, the same will constitute legal, valid and
binding obligations of the Company enforceable against the
Company in accordance with their respective terms, except as
may be limited by (1) bankruptcy, insolvency, reorganization,
receivership, liquidation, fraudulent conveyance and transfer,
moratorium or other similar laws affecting creditors' rights
generally or (2) general principles of equity (considered in a
proceeding in equity or at law) (number 1 and 2, collectively,
the "Enforceability Exceptions"), and except that rights to
indemnity under this Agreement may be limited;
(7) The issuance and delivery of the Senior Notes have been duly
authorized by the Company and, at the Time of Purchase, the
Senior Notes will have been duly executed by the Company and,
when authenticated by the Indenture Trustee in the manner
provided for in the Indenture and delivered against payment
therefor, will constitute legal, valid and binding obligations
of the Company enforceable against the Company in accordance
with their terms, except as may be limited by the
Enforceability Exceptions, and will be entitled to the
benefits of the Indenture;
(8) The issue and sale of the Senior Notes by the Company, the
execution, delivery and performance by the Company of the
other Operative Documents to which it is a party and the
consummation by the Company of the transactions contemplated
herein and therein and compliance by the Company with its
respective obligations hereunder and thereunder does not and
will not result in any violation of the certificate of
incorporation or bylaws of the Company and does not and will
not conflict with, or result in a breach of any of the terms
or provisions of, or constitute a default under (A) any
contract, indenture, mortgage, loan agreement, note, lease or
other agreement or instrument to which the Company is a party
or by which it may be bound or to which any of its properties
may be subject (except for conflicts, breaches or defaults
which would not, individually or in the aggregate, be
reasonably likely to be materially adverse to the Company or
materially adverse to the transactions contemplated by this
Agreement) or (B) any existing applicable law, rule,
regulation, judgment, order or decree of any government,
governmental instrumentality or court, domestic or foreign, or
any regulatory body or administrative agency or other
governmental body having jurisdiction over the Company or any
of its respective properties (except for conflicts, breaches
or defaults which would not, individually or
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in the aggregate, be reasonably likely to be materially
adverse to the Company or materially adverse to the
transactions contemplated by this Agreement);
(9) The issue and sale of the Certificates by the Trust and the
performance of the obligations of the Trust under the
Operative Documents to which it or the Trustee is a party have
been duly authorized by the terms of the Trust Agreement and
upon due execution, issue and delivery and payment therefor in
accordance with the terms hereof, the Certificates will
constitute valid and undivided beneficial interests in the
Trust and will be entitled to the benefits of the Trust
Agreement;
(10) No authorization, approval, consent or order of any court or
governmental authority or agency of the United States is
necessary in connection with the issuance and sale of the
Senior Notes or the transactions contemplated by the Operative
Documents to which the Company is a party, except such as may
be required under state securities or "blue sky" laws;
(11) Neither the Company nor any of its Affiliates (as defined in
Rule 501(b) of Regulation D under the Securities Act) has
directly or through any agent (i) sold, offered for sale,
solicited offers to buy or otherwise negotiated in respect of
any security (as defined in the Securities Act) which is or
will be integrated with the sale of the Senior Notes or the
sale of the Certificates in a manner that would require the
registration under the Securities Act of any of the Securities
or (ii) engaged in any form of general solicitation or general
advertising (as those terms are used in Rule 502(c) of
Regulation D under the Securities Act) in connection with the
offering of the Securities, or acted in any manner involving a
public offering of any of the Securities within the meaning of
Section 4(2) of the Securities Act;
(12) The Certificates are eligible for resale pursuant to Rule 144A
and none of the Securities will be, at the Time of Purchase,
of the same class (within the meaning of Rule 144A(d)(3) under
the Securities Act) as securities of the Company listed on a
national securities exchange registered under Section 6 of the
Exchange Act, or quoted on a U.S. automated inter-dealer
quotation system;
(13) Assuming the accuracy of each of the Initial Purchasers'
representations contained herein, and the Initial Purchasers'
compliance with their agreements hereunder, the offer, sale
and delivery of the Certificates to the Initial Purchasers and
the initial resales of the Certificates by the Initial
Purchasers, each in the manner contemplated by this Agreement,
do not require registration of the Certificates under the
Securities Act or qualification of the Trust Agreement under
the United States Trust Indenture Act of 1939, as amended (the
"TIA");
(14) The documents incorporated by reference in the Preliminary
Offering Circular and the Offering Circular, when they were
filed with the Commission pursuant to the
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Exchange Act by the Company (or, if any amendment with
respect to any such document was filed, when such amendment
was filed), complied in all material respects with the
applicable provisions of the Exchange Act and the rules and
regulations of the Commission thereunder, and any documents
deemed to be incorporated by reference in the Offering
Circular, when they are filed with the Commission pursuant to
the Exchange Act by the Company, will comply in all material
respects with the applicable provisions of the Exchange Act
and the rules and regulations of the Commission thereunder;
(15) The consolidated financial statements of the Company and its
consolidated subsidiaries, together with the notes thereto,
incorporated by reference in the Preliminary Offering Circular
and the Offering Circular present fairly the financial
position of the Company and its consolidated subsidiaries at
the dates or for the periods indicated; said consolidated
financial statements have been prepared in conformity with
generally accepted accounting principles applied on a
consistent basis throughout the periods involved. The selected
financial data and the summary financial information
incorporated by reference in the Preliminary Offering Circular
and the Offering Circular present fairly the information shown
therein and have been compiled on a basis consistent with that
of the audited financial statements incorporated by reference
in the Preliminary Offering Circular and the Offering
Circular.
(16) 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 Offering Circular, will not be an
"investment company" required to be registered under the
Investment Company Act of 1940, as amended (the "1940 Act");
and
(17) Each of the Operative Documents, including the Securities,
will conform in all material respects to all statements
relating thereto contained in the Offering Circular.
1A. The Trustee represents and warrants to, and agrees with, the
Company and the Initial Purchasers that:
(18) The execution and delivery of the Operative Documents to be
executed by the Trustee and the performance of its obligations
thereunder have been duly authorized pursuant to the Trust
Agreement and each of such Operative Documents has been duly
authorized pursuant to the Trust Agreement and, at the Time of
Purchase, will be duly executed and delivered by the Trustee
on behalf of the Trust;
(19) The Operative Documents, when executed and delivered by the
Trustee and assuming due authorization, execution and delivery
by the other parties thereto, will constitute valid and
legally binding obligations of the Trustee enforceable against
the Trustee in accordance with their respective terms, except
as may be limited by the
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Enforceability Exceptions and except that certain of such
obligations may be enforceable solely against the Trust Assets
(as defined in the Trust Agreement);
(20) The execution, delivery or performance by the Trustee of the
applicable Operative Documents to which it is a party do not
require any consent, approval or authorization of, or any
registration or filing with, any New York or United States
federal court or governmental agency or body having
jurisdiction over the trust powers of the Trustee;
(21) The Trust is not a party to any documents or instruments other
than the Operative Documents and the execution and delivery by
the Trustee and the performance by the Trustee of the
obligations assumed under, and the terms of, the Operative
Documents will not infringe or constitute a default under any
laws or regulations of any governmental or regulatory body
having jurisdiction over the trust powers of the Trustee.
2. On the basis of the representations, warranties and covenants
contained in this Agreement, and subject to the terms and conditions herein set
forth, (a) the Trust agrees to (i) issue and sell to the Initial Purchasers, and
each Initial Purchaser, severally and not jointly, agrees to purchase from the
Trust, the principal amount of Certificates set forth opposite such Initial
Purchaser's name on Schedule I hereto, at a purchase price of 99.891% of such
principal amount , (ii) purchase the Senior Notes from the Company at the
purchase price set forth in clause (b) below, (iii) issue and sell to the
Callholder the Trust Call Option in accordance with the terms thereof at a
purchase price of (pound)15,440,000 (the "Call Price") and (iv) enter into the
Currency Swap with the Swap Counterparty and (b) the Company agrees to issue the
Senior Notes and sell the Senior Notes to the Trust at a purchase price of
(pound)157,696,343.
3. With respect to the initial offer and resale of the Certificates by
the Initial Purchasers and the placement with the Trust of the Senior Notes,
each Initial Purchaser, severally and not jointly, represents and warrants to,
and agrees with, the Company that:
(1) It is a QIB within the meaning of Rule 144A and an "accredited
investor" within the meaning of Rule 501(a) of Regulation D
under the Securities Act and is purchasing the Certificates
pursuant to Section 4(2) of the Securities Act;
(2) It has not offered or sold, and will not offer or sell, any of
the Certificates except (i) to persons inside the United
States whom it reasonably believes to be QIBs or, if any such
person is buying for one or more institutional accounts for
which such person is acting as fiduciary or agent, only if
such Initial Purchaser reasonably believes that each such
account is a QIB to whom notice has been given that such sale
or delivery is being made in reliance on Rule 144A or (ii)
subject to the proviso in clause (i) of Section 3(d) hereof,
to persons other than "U.S. Persons" (within the meaning of
Regulation S) outside the United States in reliance upon
Regulation S;
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(3) Neither it nor any of its United States affiliates nor any
person acting on its or their behalf has made or will make
offers or sales of the Certificates or the Senior Notes in the
United States by means of any form of general solicitation or
general advertising (within the meaning of Rule 502(c) of
Regulation D under the Securities Act) or in any manner
involving a public offering (within the meaning of Section
4(2) of the Securities Act) in the United States;
(4) With respect to offers and sales of Certificates outside the
United States in reliance on Regulation S, (i) it will sell
Certificates only in accordance with Regulation S and has not
offered or sold, and will not offer or sell, Certificates
within the United States or to, or for the account or benefit
of, U.S. Persons (A) as part of its distribution at any time
or (B) otherwise until 40 days after the later of the date of
the commencement of the offering of the Certificates to the
public and the Time of Purchase (the "Distribution Compliance
Period"), except in either case in reliance on Rule 144A; (ii)
neither it nor any of its affiliates or any persons acting on
its or their behalf has engaged or will engage in any directed
selling efforts (within the meaning of Regulation S) and (iii)
it will send or have sent, at or prior to confirmation of a
sale of Certificates (other than in reliance on Rule 144A), to
each distributor, dealer or other person receiving a selling
concession, fee or other remuneration to which it sells
Certificates during the Distribution Compliance Period a
confirmation or other notice setting forth the restrictions on
offers and sales of Certificates within the United States or
to, or for the account or benefit of, U.S. Persons (terms used
in this paragraph have the meanings ascribed to them in
Regulation S);
(5) It will comply with all applicable laws and regulations in
each jurisdiction in which it purchases, offers, sells or
delivers Certificates or Senior Notes or has in its possession
or distributes or causes or permits to be distributed the
Offering Circular or any other offering material relating to
the offering of the Certificates.
4. The Certificates to be purchased by the Initial Purchasers hereunder
will be issued by the Trust in definitive, fully registered book-entry form and
represented by two global securities, which initially will be registered in the
name of Cede & Co., as nominee of, and deposited with the Trustee, on behalf of
and as custodian for, The Depository Trust Company ("DTC") . The Trust will
deliver the Certificates to the Initial Purchasers against payment by or on
behalf of the Initial Purchasers of the purchase price therefor by electronic
transfer to the order of the Trustee in same- day funds, by causing DTC to
credit the Certificates to the account of the Initial Purchasers at DTC. The
Company will cause the global securities representing the Certificates to be
made available to the Representative for checking at least twenty-four hours
prior to the Time of Delivery at the office of DTC or its designated custodian
(the "Designated Office"). The Trust shall deliver the Trust Call Option to the
Callholder upon receipt of the Call Price. The time and date of such delivery
and payment shall be 10:00 a.m., New York City time, on March 20, 2000 or such
other time and date as
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the Representative, the Trust and the Company may agree upon in writing. Such
time and date are herein called the "Time of Purchase."
The Senior Notes to be purchased by the Trustee hereunder will be
represented by a definitive Note registered in the name of the Trustee. The
Company will deliver such Note to the Trustee against payment by electronic
transfer in same-day funds of the purchase price therefor. The Company will
cause the definitive Note representing the Senior Notes to be made available to
the Representative for checking at least twenty-four hours prior to the Time of
Delivery.
The documents to be delivered at the Time of Purchase by or on behalf
of the parties hereto pursuant to Section 6 hereof, including the Certificates
and the Senior Notes and the cross-receipts for the Certificates and the Senior
Notes and any additional documents requested by the Initial Purchasers pursuant
to Section 6(a) hereof, will be delivered at such time and date at the offices
of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, Four Times Square, New York, New
York 10036 (the "Closing Location"). The Certificates will be delivered at the
Designated Office at the Time of Purchase.
5. The Company (and, if so specified, the Trustee), agrees with each of
the Initial Purchasers:
(1) At any time prior to completion of the initial resales of the
Certificates by the Initial Purchasers to purchasers, before
amending or supplementing the Offering Circulars, to advise
the Representative thereof and to furnish the Representative a
copy of such proposed amendment or supplement;
(2) To use its best efforts to qualify the Certificates for offer
and sale under the securities or "blue sky" laws of such
jurisdictions as the Initial Purchasers may designate within
six months after the date hereof and to pay, or to reimburse
the Initial Purchasers and their counsel for, reasonable
filing fees and expenses in connection therewith in an amount
not exceeding $3,500 in the aggregate (including filing fees
and expenses paid and incurred prior to the date hereof);
provided, however, that the Company shall not be required to
qualify as a foreign corporation or to file a consent to
service of process or to file annual reports or to comply with
any other requirements deemed by the Company to be unduly
burdensome;
(3) To pay, except as otherwise expressly provided herein, all
expenses incidental to the performance of its obligations and
the obligations of the Trust under this Agreement, including
(i) the preparation of the Preliminary Offering Circular and
the Offering Circular (and any amendments or supplements
thereto), (ii) the issuance and delivery of the Securities,
(iii) the fees and disbursements of the Company's counsel and
accountants, and the fees of any paying agent, (iv) the fees
and expenses in connection with the ratings of the Securities
by securities rating organizations, (v) the printing and
delivery of copies of the Preliminary Offering Circular and
the Offering
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Circular (and any amendments or supplements thereto), (vi) the
fees and expenses in connection with the listing of the Senior
Notes on the Luxembourg Stock Exchange including the
application therefor and (vii) the Company's costs and
expenses for travel, lodging and incidental expenses relating
to investor presentations on any "road show" undertaken in
connection with the marketing of the Certificates. It is
understood that, except as provided in this Section 5(c), and
in Section 5(b), Section 5(d) and Section 7 hereof, the
Initial Purchasers will pay all of their costs and expenses
(including the fees and disbursements of their counsel,
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP), transfer taxes
payable on resale of any of the Certificates by them, and any
advertising expenses connected with any offers they may make;
(4) If the Initial Purchasers shall not take up and pay for the
Certificates due to the failure of the Company to comply with
any of the conditions specified in Section 6 hereof, or, if
this Agreement shall be terminated in accordance with the
provisions of Section 8 or 9 hereof, to pay the fees and
disbursements of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP,
counsel to the Initial Purchasers, and, if the Initial
Purchasers shall not take up and pay for the Certificates due
to the failure of the Company to comply with any of the
conditions specified in Section 6 hereof, to reimburse the
Initial Purchasers for their reasonable out-of-pocket
expenses, in an aggregate amount not exceeding a total of
$10,000, incurred in connection with the financing
contemplated by this Agreement;
(5) During the period from the date hereof and continuing to and
including the earlier of (i) the date on which the
distribution of the Certificates ceases, as determined by the
Initial Purchasers in their sole discretion, or the Time of
Purchase, whichever is later, and (ii) the date which is 30
days after the Time of Purchase, not to offer, sell, contract
to sell or otherwise dispose of any senior debt securities of
the Company (other than the Senior Notes) or any substantially
similar debt securities of the Company without the consent of
the Representative;
(6) To prepare the Offering Circular in a form approved by the
Representative and to furnish to the Initial Purchasers,
without charge, as many copies of the Offering Circular and
any supplements and amendments thereto as the Initial
Purchasers may reasonably request;
(7) At any time prior to completion of the initial resales of the
Certificates by the Initial Purchasers to purchasers, if any
event shall have occurred as a result of which it is necessary
to amend or supplement the Offering Circular in order to make
the statements therein, in the light of the circumstances
existing when the Offering Circular is delivered to a
purchaser, not misleading, forthwith to prepare and deliver,
at its own expense, such amendment or supplement as may be
necessary to make the
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Offering Circular not misleading and to furnish the Initial
Purchasers with such number of copies as the Initial
Purchasers may reasonably request;
(8) So long as the Certificates are outstanding and are
"restricted securities" within the meaning of Rule 144(a)(3)
under the Securities Act, (i) to furnish to holders of
Certificates and prospective purchasers of Certificates
designated by such holders, upon request of such holders or
such prospective purchasers, the information required to be
delivered pursuant to Rule 144A(d)(4) under the Securities Act
("Additional Issuer Information"), unless such Additional
Issuer Information is contained, at the time of such request,
in documents filed with the Commission pursuant to Section 13
or 15(d) of the Exchange Act;
(9) Not to distribute, prior to the later to occur of the Time of
Purchase and completion of the initial resales of the
Certificates, any offering material in connection with the
offering and sale of the Certificates other than the
Preliminary Offering Circular and the Offering Circular and
any amendments or supplements thereto contemplated hereby;
(10) To use their reasonable best efforts to permit the
Certificates to be eligible for clearance and settlement
through DTC;
(11) Not to, and to ensure that none of its Affiliates directly or
through any agent, solicit any offer to buy or offer to sell
the Securities by means of any form of general solicitation or
general advertising (as those terms are used in Rule 502(c) of
Regulation D under the Securities Act) or in any manner
involving a public offering within the meaning of Section 4(2)
of the Securities Act;
(12) To refrain, and cause its Affiliates to refrain, from selling,
offering for sale or soliciting offers to buy or otherwise
negotiating in respect of any security (as defined in the
Securities Act) in a transaction that could be integrated with
the sale of the Certificates or the sale of the Senior Notes
in a manner that would require the registration under the
Securities Act of any of the Securities;
(13) To not, and not permit any of its Affiliates to, purchase,
agree to purchase or otherwise acquire any of the Certificates
which constitute "restricted securities" under Rule 144 under
the Securities Act under circumstances that would require the
registration of any of the Securities under the Securities
Act;
(14) With respect to those Certificates sold in reliance on
Regulation S, (i) not to, and to ensure that none of its
Affiliates or any person acting on behalf of the Company or
its Affiliates (other than the Initial Purchasers), engage in
any directed selling efforts within the meaning of Regulation
S and (ii) to, and to ensure that each of its Affiliates or
any person acting on behalf of the Company or its Affiliates
(other than
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the Initial Purchasers), comply with the offering restrictions
requirement of Regulation S;
(15) To use the net proceeds received from the sale of the
Certificates pursuant to this Agreement in the manner
specified under "Use of Proceeds" in the Offering Circular;
(16) The Trust agrees with the Initial Purchasers that the Trustee
shall promptly furnish to the Company any Additional Issuer
Information with respect to the Trustee required by the
Company to comply with their agreement contained in Section
5(h) hereof.
6. The obligations of the Initial Purchasers hereunder shall be
subject, in their discretion, to the condition that all representations and
warranties and other statements hereunder of the Trust, the Trustee and the
Company are, at and as of the Time of Purchase, true and correct, the condition
that the Trust, the Trustee and the Company shall have performed all of their
respective obligations hereunder theretofore to be performed, and the following
additional conditions:
(1) That all legal proceedings to be taken and all legal opinions
to be rendered in connection with the issuance and sale of the
Certificates and the other transactions contemplated hereby
shall be satisfactory in form and substance to the Initial
Purchasers and Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP,
counsel to the Initial Purchasers, and the Company and the
Trust shall have furnished such counsel all documents and
information that it may reasonably request to enable it to
pass upon such matters;
(2) That, at the Time of Purchase, the Initial Purchasers shall be
furnished with the following opinions, dated the day of the
Time of Purchase, with such changes therein as may be agreed
upon by the Company and the Initial Purchasers with the
approval of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel
to the Initial Purchasers:
(1) Opinion of Xxxxxx, Xxxx & Xxxxxxxx LLP, counsel to
the Company, substantially in the form attached
hereto as Exhibit A;
(2) Opinion of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP,
counsel to the Initial Purchasers, substantially in
the form attached hereto as Exhibit B; and
(3) Opinion of Winthrop, Stimson, Xxxxxx & Xxxxxxx,
counsel to the Trustee, substantially in the form
attached hereto has Exhibit D.
(3) That the Initial Purchasers shall have received a letter from
PricewaterhouseCoopers LLP in form and substance satisfactory
to the Initial Purchasers and dated the date of the Time of
Purchase;
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(4) That no amendment or supplement to the Offering Circular shall
contain material information substantially different from that
contained in the Offering Circular which is unsatisfactory in
substance to the Initial Purchasers or unsatisfactory in form
to Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel to the
Initial Purchasers;
(5) That, at the Time of Purchase, there shall not have been any
material adverse change in the business, properties or
financial condition of the Company from that set forth in the
Offering Circular (other than changes set forth in or
contemplated by the Offering Circular), and that the Company
shall, at the Time of Purchase, have delivered to the Initial
Purchasers a certificate of the Company executed by one of its
officers to the effect that, (i) to the best of his knowledge,
information and belief, there has been no such change, (ii)
the warranties and representations contained in this Agreement
are true and correct in all material respects with the same
force and effect as though expressly made at and as of the
Time of Purchase, and (iii) the Company has complied with all
agreements and satisfied all conditions on its part to be
performed or satisfied under this Agreement at or prior to the
Time of Purchase;
(6) That the Initial Purchasers shall have received a certificate
of the Swap Counterparty, dated the date of the Time of
Purchase, regarding certain matters relating to the Swap
Counterparty satisfactory to the Initial Purchasers;
(7) That the Initial Purchasers shall have received evidence
satisfactory to them that Xxxxx'x Investors Service, Inc.
("Moody's") and Standard & Poor's Ratings Services, a division
of the XxXxxx-Xxxx Companies, Inc. ("S&P"), shall have
publicly assigned ratings to the Certificates of at least
"Baa3" and of at least "BBB-", respectively;
(8) The Trustee shall have delivered the Trust Call Option to the
Callholder;
(9) The Callholder shall have delivered the Company Call Option to
the Company;
(10) The Trustee shall have delivered the Currency Swap to the Swap
Counterparty; and
(11) The Company shall have delivered the Contingent Swap to the
Swap Counterparty.
In case any of the conditions specified above in this Section 6 shall
not have been fulfilled in all material respects when and as provided in this
Agreement, this Agreement may be terminated by the Initial Purchasers at any
time at or prior to the Time of Purchase upon written notice thereof to the
Company. Any such termination shall be without liability of any party to any
other party except as otherwise provided in Section 5(b), Section 5(c) and
Section 5(d) hereof and except for any liability under Section 7 hereof.
7. (a) The Company agrees, to the extent permitted by law, to
indemnify and hold harmless each of the Initial Purchasers and
each person, if any, who
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controls any such Initial Purchaser within the meaning of
Section 20(a) of 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 Exchange Act
or otherwise, and to reimburse the Initial Purchasers and such
controlling person or persons, if any, for any legal or other
expenses as incurred by them in connection with defending any
action, insofar as such losses, claims, damages, liabilities
or actions arise out of or are based upon any untrue statement
or alleged untrue statement of a material fact contained in
the Preliminary Offering Circular or the Offering Circular, or
if the Company shall furnish or cause to be furnished to the
Initial Purchasers any amendments or any supplements to the
Offering Circular, in the Offering Circular as so amended or
supplemented, or arise out of or are based upon any omission
or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements
therein not misleading, except insofar as such losses, claims,
damages, liabilities or actions arise out of or are based upon
any such untrue statement or alleged untrue statement or
omission or alleged omission which was made in the Preliminary
Offering Circular or the Offering Circular as so amended or
supplemented in reliance upon the Initial Purchaser
Information expressly for use therein, and except that this
indemnity shall not inure to the benefit of either Initial
Purchaser (or of any person controlling such Initial
Purchaser) on account of any losses, claims, damages,
liabilities or actions arising from the sale of the
Certificates to any person if a copy of the Offering Circular,
as the same may then be supplemented or amended (excluding,
however, any documents then incorporated or deemed
incorporated therein by reference), was not sent or given by
or on behalf of such Initial Purchaser to such person with or
prior to the written confirmation of the sale involved and the
omission or alleged omission or untrue statement or alleged
untrue statement was corrected in the Offering Circular as
supplemented or amended at the time of such confirmation and
the Offering Circular, as so amended and supplemented, was
timely delivered to the Initial Purchasers by the Company.
Each Initial Purchaser agrees within ten days after the
receipt by it of notice of the commencement of any action in
respect to which indemnity from the Company on account of its
agreement contained in this Section 7(a) may be sought by it,
or by any person controlling it, to notify the Company in
writing of the commencement thereof, but the failure of such
Initial Purchaser to so notify the Company of any such action
shall not release the Company from any liability which it may
have to such Initial Purchaser or to such controlling person
pursuant hereto or otherwise, unless and to the extent it did
not learn of such action otherwise and such failure results in
the forfeiture by the Company of substantial rights and
defenses. In case any such action shall be brought against
either Initial Purchaser or any such person controlling such
Initial Purchaser and such Initial Purchaser shall notify the
Company of the commencement thereof, as above provided, the
Company shall be entitled to participate in (and, to the
extent that the Company shall wish, including the selection of
counsel (which counsel shall be reasonably satisfactory to the
Initial Purchasers), to direct) the defense thereof at their
own expense. In case the
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Company elects to direct such defense and select such counsel
("Company's Counsel") , any of the Initial Purchasers or any
controlling person shall have the right to employ its own
counsel, but, in any such case, the fees and expenses of such
counsel shall be at the expense of such Initial Purchaser or
controlling person unless (i) the Company has agreed in
writing to pay such fees and expenses or (ii) the named
parties to any such action (including any impleaded parties)
include both such Initial Purchaser or any controlling person
and the Company, and such Initial Purchaser or any controlling
person shall have been advised by its counsel that a conflict
of interest between the Company and such Initial Purchaser or
controlling person may arise (and the Company's Counsel shall
have concurred in good faith with such advice) and for this
reason it is not desirable for the Company's Counsel to
represent both the indemnifying party and the indemnified
party (it being understood, however, that the Company shall
not, in connection with any one such action or separate but
substantially similar or related actions in the same
jurisdiction arising out of the same general allegations or
circumstances, be liable for the reasonable fees and expenses
of more than one separate firm of attorneys for any Initial
Purchaser or any controlling person (plus any local counsel
retained by such Initial Purchaser or any controlling person
in their reasonable judgment), which firm (or firms) shall be
designated in writing by such Initial Purchaser or any
controlling person).
(1) Each Initial Purchaser agrees, to the extent permitted by law,
to indemnify, hold harmless and reimburse the Company, its
directors and its officers, and each person, if any, who
controls the Company within the meaning of Section 20(a) of
the Exchange Act, to the same extent and upon the same terms
as the indemnity agreement of the Company set forth in Section
7(a) hereof, but only with respect to untrue statements or
alleged untrue statements or omissions or alleged omissions
made in the Preliminary Offering Circular, the Offering
Circular, or in the Offering Circular as amended or
supplemented, in reliance upon and in conformity with the
Initial Purchaser Information furnished in writing to the
Company by such Initial Purchaser expressly for use therein.
The Company agrees within ten days after the receipt by it or
notice of the commencement of any action in respect to which
indemnity from either Initial Purchaser on account of its
agreement contained in this Section 7(b) may be sought by it,
or by a person controlling it, to notify such Initial
Purchaser in writing of the commencement thereof, but failure
of the Company to so notify such Initial Purchaser of any such
action shall not release such Initial Purchaser from any
liability which it may have to the Company or to such
controlling person pursuant hereto or otherwise, unless and to
the extent it did not learn of such action otherwise and such
failure results in the forfeiture by the Company of
substantial rights and defenses.
(2) In the event that the indemnity provided in Section 7(a) or
7(b) hereof is unavailable to or insufficient to hold harmless
an indemnified party for any reason, the Company and the
Initial Purchasers severally agree to contribute to the
aggregate losses,
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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 Initial Purchasers 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 Initial Purchasers on the other from the offering of
the Certificates; provided, however, that in no case shall any
Initial Purchaser (except as may be provided in any agreement
among initial purchasers relating to the offering of the
Certificates) be responsible for any amount in excess of the
discount or commission applicable to the Certificates
purchased by such Initial Purchaser hereunder. If the
allocation provided by the immediately preceding sentence is
unavailable for any reason, the Company and the Initial
Purchasers 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 Initial Purchasers 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 Initial
Purchasers shall be deemed to be equal to the total discounts
and commissions. Relative fault shall be determined by
reference to, among other things, 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
Initial Purchasers on the other. The Company and the Initial
Purchasers 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 Section 7(c), 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. For purposes of this Section 7, each person
who controls an Underwriter within the meaning of either the
Securities Act or the Exchange Act and each director, officer,
employee and agent of an Initial Purchaser shall have the same
rights to contribution as such Initial Purchaser, and each
person who controls the Company within the meaning of either
the Securities Act or the Exchange Act 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 Section 7(c).
(3) No indemnifying party shall, without the prior written consent
of the indemnified parties, settle or compromise or consent to
the entry of any judgment with respect to any litigation, or
any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in
respect of which indemnification or contribution could be
sought under this Section 7 (whether or not the indemnified
parties are actual or potential parties thereto), unless such
settlement,
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compromise or consent includes an unconditional release of
each indemnified party from all liability arising out of such
litigation, investigation, proceeding or claim.
(4) Each of the Initial Purchasers confirms that the statements in
the Preliminary Offering Circular and the Offering Circular
with respect to (i) the delivery of the Certificates set forth
in the last paragraph on the cover page, (ii) transactions
that stabilize, maintain or otherwise affect the price of the
Certificates set forth in the penultimate paragraph under
"Plan of Distribution" and (iii) the offer and resale of the
Certificates set forth in the third paragraph under the table
in "Plan of Distribution" (such statements, collectively, the
"Initial Purchaser Information") are correct as to such
Initial Purchaser and were furnished in writing to the Company
by the Initial Purchasers expressly for use in the Preliminary
Offering Circular and the Offering Circular.
8. If any Initial Purchaser under this Agreement shall fail or refuse
(otherwise than for some reason sufficient to justify, in accordance with the
terms hereof, the cancellation or termination of its obligations hereunder) to
purchase and pay for the principal amount of Certificates which it has agreed to
purchase and pay for hereunder, and the aggregate principal amount of
Certificates which such defaulting Initial Purchaser agreed but failed or
refused to purchase is not more than one-tenth of the aggregate principal amount
of the Certificates, the other Initial Purchasers shall be obligated severally
in the proportions which the amount of Certificates set forth opposite their
names in Schedule I hereto bears to the aggregate principal amount of
Certificates set forth opposite the name of such non-defaulting Initial
Purchaser, to purchase the Certificates which such defaulting Initial Purchaser
agreed but failed or refused to purchase on the terms set forth herein; provided
that in no event shall the principal amount of Certificates which any Initial
Purchaser has agreed to purchase pursuant to Section 2 hereof be increased
pursuant to this Section 8 by an amount in excess of one-ninth of such principal
amount of Certificates without the written consent of such Initial Purchaser. In
the event of any such purchase, (a) the non-defaulting Initial Purchaser or the
Company shall have the right to fix as a postponed Time of Purchase a date not
exceeding four full business days after the date specified in Section 4 hereof
and (b) the new principal amount of Certificates to be purchased by the
non-defaulting Initial Purchaser shall be taken as the basis of its underwriting
obligation for all purposes of this Agreement. If any Initial Purchaser shall
fail or refuse to purchase Certificates and the aggregate principal amount of
Certificates with respect to which such default occurs is more than one-tenth of
the aggregate principal amount of the Certificates then this Agreement shall
terminate. In the event of any such termination, the Company shall not be under
any liability to any Initial Purchaser (except to the extent, if any, provided
in Section 5(b), Section 5(c), Section 5(d) or Section 7 hereof), nor shall any
Initial Purchaser (other than an Initial Purchaser who shall have failed or
refused to purchase the Certificates it has agreed to purchase and pay for
hereunder without some reason sufficient to justify, in accordance with the
terms hereof, its cancellation or termination of its obligations hereunder) be
under any liability to the Company or the other Initial Purchasers.
Nothing herein contained shall release a defaulting Initial Purchaser
from its liability to the Company or a non-defaulting Initial Purchaser for
damages occasioned by its default hereunder.
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9. This Agreement may be terminated at any time prior to the Time of
Purchase by the Representative if, after the execution and delivery of this
Agreement and prior to the Time of Purchase, in the Representative's reasonable
judgment, the Initial Purchasers' ability to market the Certificates shall have
been materially adversely affected because:
(1) trading in securities on the New York Stock Exchange shall
have been generally suspended by the Commission or by the New
York Stock Exchange, or
(2) any outbreak or material escalation of hostilities or other
calamity or crisis materially adversely affecting the
financial markets of the United States of America shall have
occurred, or
(3) a general banking moratorium shall have been declared by
federal, New York or Minnesota authorities.
If the Representative elects to terminate this Agreement, as provided
in this Section 9, the Representative will promptly notify the Company by
telephone or by telex or facsimile transmission, confirmed in writing. If this
Agreement shall not be carried out by any Initial Purchaser for any reason
permitted hereunder, or if the sale of the Certificates to the Initial
Purchasers as herein contemplated shall not be carried out because the Company
is not able to comply with the terms hereof, the Company shall not be under any
obligation under this Agreement (except to the extent, if any, provided in
Section 5(b), Section 5(c), Section 5(d) or Section 7 hereof) and shall not be
liable to any Initial Purchaser or to any member of any selling group for the
loss of anticipated profits from the transactions contemplated by this Agreement
and the Initial Purchasers shall be under no liability to the Company nor be
under any liability under this Agreement or to each other.
10. All statements, requests, notices and agreements hereunder shall be
in writing, and if to the Initial Purchasers shall be delivered or sent by mail,
telex or facsimile transmission to the Representative at 000 Xxxxx Xxxxx Xxxxxx,
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Attention: General Counsel; if to the Company
to NRG Energy, Inc., 0000 Xxxxxxxx Xxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000,
Attention: General Counsel and if to the Trust, to the Trustee at 000 Xxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx X. Xxxxxx. Any such
statements, requests, notices or agreements shall take effect upon receipt
thereof.
11. The agreement herein set forth has been and is made solely for the
benefit of the Initial Purchasers, the Trustee, the Company, the controlling
persons, if any, referred to in Section 7 hereof, and their respective
successors, assigns, executors and administrators, and, except as expressly
otherwise provided in Section 8 hereof, no other person shall acquire or have
any right under or by virtue of this Agreement.
12. The obligations of the Company and the Trust hereunder are subject
to the Initial Purchasers' performance of their obligations hereunder. The
obligations of the Company are subject
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to the Trust's performance of its obligations hereunder and to the delivery at
the Time of Purchase of the Company Call Option to the Company by the
Callholder.
13. This Agreement will be governed and construed in accordance with
the laws of the State of New York. The term "successors" as used in this
Agreement shall not include any purchaser, as such purchaser, of any of the
Certificates from either of the Initial Purchasers.
14. This Agreement may be executed in several counterparts, each of
which shall be regarded as an original and all of which shall constitute one and
the same document.
15. The indemnity and contribution agreements contained in Section 7
hereof, and all covenants, warranties and representations contained in this
Agreement, shall remain in full force and effect regardless of any investigation
made by or on behalf of any persons, and shall survive the delivery of and
payment for the Certificates hereunder.
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If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this letter agreement will become a binding agreement among the Company, the
Trust and the Initial Purchasers in accordance with its terms.
Very truly yours,
NRG Energy, Inc.
By: /s/ Xxxxx X. Xxxx
-----------------------------------------
Name: Xxxxx X. Xxxx
Title: Vice President and Treasurer
NRG Energy Pass-Through Trust 2000-1
By: The Bank of New York, not in its
individual capacity but solely as Trustee
By: /s/ Xxxx X. Xxxxxx
-----------------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
Accepted as of the date hereof:
Banc of America Securities LLC
ABN AMRO Incorporated
Deutsche Bank Securities Inc.
By: Banc of America Securities LLC,
as Representative
By: /s/ Xxxxx X. Xxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
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SCHEDULE I
Principal Amount
of Certificates to
Initial Purchaser be Purchased
----------------- -------------------
Banc of America Securities LLC ........................................$200,000,000
ABN AMRO Incorporated...................................................$25,000,000
Deutsche Bank Securities Inc............................................$25,000,000
-----------
Total..................................................................$250,000,000
============
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