EX-10.11



 








Exhibit 10.11




Execution Copy




 




 




NRG ENERGY, INC.




Common Shares, Par Value $0.01 Per Share




UNDERWRITING AGREEMENT




 




 




 




 




August 8, 2006




 









 





UNDERWRITING AGREEMENT




          THIS UNDERWRITING AGREEMENT (this “Agreement”) is entered into as of August 8, 2006, by and
among NRG Energy, Inc. a Delaware corporation (the “Company”), Credit Suisse International
(“International”), Credit Suisse Capital LLC (“CS”) and Credit Suisse Securities (USA) LLC (“CSS”
and, together with International and CS, the “CS Purchasers”).



W I T N E S S E T H:




          WHEREAS, pursuant to (i) a Note Purchase Agreement, dated August 8, 2006 (the “Finance I Note
Purchase Agreement”), between International, CSS and NRG Common Stock Finance I, a Delaware limited
liability company and a wholly-owned subsidiary of the Company (“Finance I”), and (ii) a Note
Purchase Agreement, dated August 8, 2006 (the “Finance II Note Purchase Agreement” and, together
with the Finance I Note Purchase Agreement, the “Note Purchase Agreements”), between International,
CSS and NRG Common Stock Finance II, a Delaware limited liability company and a wholly-owned
subsidiary of the Company (“Finance II” and, together with Finance I, the “Finance Subsidiaries”),
International and CSS have agreed to purchase from each Finance Subsidiary, and each Finance
Subsidiary has agreed to sell to International and CSS, notes (the “Notes”) having the terms set
forth in the Note Purchase Agreements;



          WHEREAS, pursuant to (i) a Preferred Interest Purchase Agreement, dated August 8, 2006 (the
“Finance I Preferred Purchase Agreement”), between CS, CSS and Finance I, and (ii) a Preferred
Interest Purchase Agreement, dated August 8, 2006 (the “Finance II Preferred Purchase Agreement”
and, together with the Finance I Preferred Purchase Agreement, the “Preferred Purchase
Agreements”), between CS, CSS and Finance II, CS and CSS have agreed to purchase from each Finance
Subsidiary, and each Finance Subsidiary has agreed to sell to CS and CSS, preferred membership
interests (the “Preferred Interests”) on each date on which an extension of credit is made under
the applicable Note (the sale of Preferred Interests and Notes is referred to herein as, the
“Transactions”);



          WHEREAS, pursuant to (i) a Common Interest Purchase Agreement, dated August 8, 2006 (the
“Finance I Common Purchase Agreement”), between the Company and Finance I, and (ii) a Common
Interest Purchase Agreement, dated August 8, 2006 (the “Finance II Common Purchase Agreement” and,
together with the Finance I Common Purchase Agreement, the “Common Purchase Agreements”), between
the Company and Finance II, the Company has agreed to purchase from each Finance Subsidiary, and
each Finance Subsidiary has agreed to sell to the Company, common membership interests (the “Common
Interests”) on each date on which an extension of credit is made under the applicable Note;



          WHEREAS, each Finance Subsidiary will use the proceeds from extensions of credit under the
Note and from the issuance and sale of the Preferred Interests and Common Interests to purchase
shares of the Company’s common stock, par value $0.01 per share (“Common Stock”), in open market
transactions or privately negotiated transactions;



 









 





          WHEREAS, the shares of Common Stock purchased by each Finance Subsidiary (the “Collateral”)
will be pledged by such Finance Subsidiary to secure the obligations of such Finance Subsidiary
under its Note;



          WHEREAS, to hedge its equity exposure in relation to the Transactions, each CS Purchaser
anticipates (a) borrowing shares of Common Stock (the “Shares”) from one or more unrelated third
parties, (b) selling such Shares through CSS in connection with a registered public offering of
such Shares, and (c) repurchasing a lesser number of Shares in open market transactions (each in
the manner contemplated by the Goldman, Sachs & Co. no action letter (available October 9,
2003));



          WHEREAS, the Company has determined that it is in its the best interest to assist the CS
Purchasers in connection with a registered sale of the Shares as set forth herein; and



          WHEREAS, the Company has filed with the Securities and Exchange Commission (the “Commission”)
a registration statement, including a prospectus, on Form S-3 (File No. 333-130549), relating to
the registration of certain securities described therein, including the Shares;



          NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein, and
for other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:



          1.     Defined Terms.




     (a)     As used herein, the following terms have the following meanings:



          “Base Prospectus”: the prospectus included in the Registration Statement, effective December
21, 2005, in the form first used to confirm sales of Shares (or in the form first made available to
CSS by the Company to meet requests of purchasers pursuant to Rule 173 under the Securities Act).



          “Daily Notional Number of Shares”: has the meaning set forth in the Note Purchase Agreements.



          “Exchange Act”: Securities Exchange Act of 1934, as amended.



          “Existing Debt Documents”: the Credit Agreement, dated February 2, 2006, among the Company,
the lenders from time to time party hereto, Morgan Stanley Senior Funding, Inc. and Citigroup
Global Markets Inc., as joint lead book runners, joint lead arrangers and as co-documentation
agents, Morgan Stanley Senior Funding, Inc., as administrative agent, Morgan Stanley & Co.
Incorporated, as collateral agent, and Citigroup Global Markets Inc., as syndication agent, and the
Indentures, each dated February 2, 2006, between the Company, the Guarantors named therein, and Law
Debenture Trust Company of New York, governing the Company’s 7.250% Senior Notes due 2014 and
7.375% Senior Notes due 2016, in each case as amended or supplemented from time to time.



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          “free writing prospectus”: has the meaning set forth in Rule 405 under the Securities Act.



          “Investor Rights Agreement”: the Investor Rights Agreement, dated as of February 2, 2006, by
and among the Company and certain stockholders of the Company.



          “Prospectus”: the Base Prospectus, as supplemented by the prospectus supplement specifically
relating to the Shares in the form first used to confirm sales of the Shares (or in the form first
made available to CSS by the Company to meet requests of Purchasers pursuant to Rule 173 under the
Securities Act). For purposes of this definition, information contained in a form of prospectus
(including a prospectus supplement) that is deemed retroactively to be a part of the Registration
Statement pursuant to Rule 430B shall be considered to be included in the Prospectus as of the
actual time that form of prospectus (including a prospectus supplement) is filed with the
Commission pursuant to Rule 424(b) under the Securities Act.



          “Purchase Agreements”: the Note Purchase Agreements, the Preferred Purchase Agreements and the
Common Purchase Agreements.



          “Reference Period”: has the meaning set forth in the Note Purchase Agreements.



          “Registration Statement”: the registration statement on Form S-3 (File No. 333-130549), as
fined with the Securities and Exchange Commission on December 21, 2005 and, as amended to the date
of this Agreement (for purposes of this definition, information contained in a form of prospectus
or prospectus supplement that is deemed retroactively to be a part of the Registration Statement
pursuant to Rule 430B shall be considered to be included in the Registration Statement as of the
time specified in Rule 430B).



          “Sale
Date”: any Exchange Business Day (as defined in the Note Purchase Agreements) on which
the Daily Notional Number of Shares under a Note Purchase Agreement is greater than zero.



          “Securities Act”: the Securities Act of 1933, as amended.



          “Structuring Fee”: the fee payable to CSS pursuant to the Fee Letter dated August 8, 2006,
between the Company and CSS.



          “Time of Sale Prospectus”: the Base Prospectus and the preliminary prospectus, if any,
together with the free writing prospectuses, if any, as of each applicable Sale Date.




     (b)     Other Definitional Provisions:



                             (i)     As used herein, the terms “Registration Statement,” “preliminary prospectus,” “Time
of Sale Prospectus” and Prospectus shall include the documents, if any, incorporated by reference
therein. The terms “supplement” and “amendment” and “amend” as used in this Agreement with respect
to the Registration Statement, the Base Prospectus, the Time of Sale Prospectus, the preliminary
prospectus, if any, or any free writing prospectus shall include all documents subsequently filed
by the Company with the Commission pursuant to the Exchange Act, that are incorporated by reference
therein. If the Company has filed an
abbreviated registration statement to register additional Shares pursuant to Rule 462(b) under
the Securities Act (the “Rule 462 Registration Statement”), then any reference herein to the term
“Registration Statement” shall be deemed to include such Rule 462 Registration Statement.



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                             (ii)     As used herein, the words “hereof,” “herein” and “hereunder” and words of similar
import when used in this Agreement shall refer to this Agreement as a whole and not to any
particular provision of this Agreement, and Section, Schedule and Exhibit references are to this
Agreement unless otherwise specified. The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.



          2.     Representations and Warranties of the Company.   The Company represents and warrants
to, and agrees with, CSS and each CS Purchaser that, on the date hereof and at all times during the
Reference Period (subject to the notice provisions of Section 6(d)):




          (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 during the Reference Period 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
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 at all times during the Reference Period 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
Shares on a Sale Date, 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 at any time during the
Reference Period 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 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 CSS furnished to
the Company in writing by CSS.



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          (c)     The Company is not an “ineligible issuer” in connection with the offering
pursuant to Rules 164, 405 and 433 under the Securities Act. Each 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 at all times during the Reference Period 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, if any, 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, 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 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 share 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.



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          (f)     This Agreement has been duly authorized, executed and delivered by the
Company.




          (g)     The authorized capital stock of the Company conforms as to legal matters to
the description thereof contained in each of the Time of Sale Prospectus, the Prospectus,
and the Registration Statement.




          (h)     The shares of Common Stock outstanding prior to each issuance of the Shares
have been duly authorized and are validly issued, fully paid and non-assessable.




          (i)     The Shares have been duly authorized and, when issued and delivered in
accordance with the terms of this Agreement, against payment of the consideration set forth
herein will be validly issued, fully paid and non-assessable, and the issuance of such
Shares will not be subject to any preemptive or similar rights.




          (j)     The execution and delivery by the Company of, and the performance by the
Company of its obligations under, this Agreement, the consummation of the transactions
contemplated by this Agreement and the Purchase Agreements, and the use of the proceeds from
each extension of credit under the Note and the issuance and sale of the Preferred Interests
and Common Interests will not contravene (i) any provision of the amended and restated
certificate of incorporation or the amended and restated by-laws of the Company, (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
(including Regulation M promulgated under the Securities Act) 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 of its obligations under this Agreement,
consummation of the transactions contemplated by this Agreement and the Purchase Agreements,
or the use of the proceeds from each extension of credit under the Note and the issuance and
sale of the Preferred Interests and Common Interests, except (x) for such consents,
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 Shares under the Securities 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 Shares. The Company is not aware of any change to the position of the Commission set
forth in the Goldman, Sachs & Co. no action letter (available October 9, 2003).




          (k)     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, the Prospectus, and the
Registration Statement.



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          (l)     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.




          (m)     Each preliminary prospectus supplement, if any, 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.




          (n)     The Company is not, and after giving effect to the offering and sale of the
Shares 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.




          (o)     Except as set forth in the Registration Statement, the 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”) has an order from
the Federal Energy Regulatory Commission, 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 purports to own 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 or any of 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; (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.



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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.




          (r)     Except as described in the Time of Sale Prospectus, the Prospectus, and the
Registration Statement, the Company has not sold, issued or distributed any shares of Common
Stock during the six-month period preceding the date hereof, including any sales pursuant to
Rule 144A under, or Regulation D or S of, the Securities Act, other than shares issued
pursuant to employee benefit plans, qualified stock option plans or other employee
compensation plans or pursuant to outstanding options, rights or warrants.




          (s)     Each Finance Subsidiary (i) has been duly designated as, and is, an
“Unrestricted Subsidiary” under the Existing Debt Documents, and (ii) at all times since its
formation complied with the covenants set forth in Sections 6(k)(ii) and 6(k)(iii) as if
such covenant had been applicable to such Finance Subsidiary on and after its date of
formation. The representations and warranties of the Company’s subsidiaries contained in
the Purchase Agreements are correct; the Company and its subsidiaries have complied with
each of its covenants in each of the Purchase Agreements; and, no default or event of
default exists under any of the Purchase Agreements.




          (t)     The Company is eligible to use free writing prospectuses in connection with
this offering pursuant to Rules 164 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 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 by the Company complies or will comply in all material respects with
the requirements of the Securities Act.



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          3.     Agreements to Sell and Purchase.   The CS Purchasers agree to sell through CSS, on
each Sale Date, and CSS, upon the basis of the representations and warranties herein contained, but
subject to the conditions hereinafter stated, agrees to sell on behalf of each CS Purchaser, on
each Sale Date, the Shares. The Company agrees that it will not have any rights arising from the
provisions of this first paragraph of Section 3.



          The Company hereby agrees that, without the prior written consent of CSS, it will not, during
the period ending 60 days after the date of each Sale Date, (i) offer, pledge, sell, contract to
sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any
option, right or warrant to purchase, lend, or otherwise transfer or dispose of, directly or
indirectly any Common Shares or any securities convertible into or exercisable or exchangeable for
Common Shares, or (ii) enter into any swap or other arrangement that transfers to another, in whole
or in part, any of the economic consequences of ownership of the Common Shares, whether any such
transaction described in clause (i) or (ii) above is to be settled by delivery of Common Shares or
such other securities, in cash or otherwise. Each of the parties hereto hereby acknowledges that
the foregoing sentence does not apply to repurchases of shares by a Finance Subsidiary or any other
share repurchase program by the Company for its Common Stock.



          The restrictions contained in the preceding paragraph shall not apply to (A) repurchases of
Shares by a CS Purchaser or one of its affiliates, (B) the issuance by the Company of Common Stock
upon the exercise of an option or warrant or the conversion of a security outstanding on the date
hereof of which CSS has been advised in writing, (C) grants by the Company of employee stock
options or other equity-based compensation pursuant to the terms of a plan in effect on the date of
this Agreement, (D) transactions by persons other than the Company relating to Common Stock, (E)
the filing by the Company of a shelf registration statement with respect to Common Stock or
securities convertible into or exercisable or exchangeable for Common Stock or (F) actions
undertaken by the Company to comply with the terms of the Investors Rights Agreement.



          4.     Payment and Delivery.   The Shares shall be registered in such names and in such
denominations as CSS shall request in writing not later than one full business day prior to the
appropriate Sale Date. The Shares shall be delivered on each Sale Date for the account of CSS or
to the account of a third party identified by CSS, with any transfer taxes payable in connection
with the transfer of the Shares duly paid, against payment of the purchase price therefor. The
Company agrees that it shall not have any rights arising from this Section 4.



          5.     Conditions to CSS’ Obligations.   The obligations of CSS on each Sale Date are
subject to the following conditions:




          (a)     Subsequent to the execution and delivery of this Agreement and prior to such
Sale Date 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 results of operations of the Company and its combined subsidiaries, taken as a whole,
from that set forth in the Time of Sale Prospectus that, in the judgment of CSS, is material
and adverse and that makes it, in the judgment of CSS, impracticable to market the Shares on
the terms and in the manner contemplated in this Agreement and the Time of Sale Prospectus.



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          (b)     CSS and each CS Purchaser shall have received on the first Sale Date a
certificate, dated such Sale Date and signed by the Chief Executive Officer or Chief
Financial Officer of the Company, to the effect set forth in Section 5(a) 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 such Sale Date and that the Company
has complied with all of the agreements and satisfied all of the conditions on its part to
be performed or satisfied hereunder on or before such Sale Date (including, without
limitation, the delivery of the letters contemplated by Section 6(h)).




          (c)     CSS and each CS Purchaser shall have received on the first Sale Date an
opinion and a negative assurance letter from Kirkland & Ellis LLP, outside counsel for the
Company, dated the first Sale Date, covering the matters referred to in Exhibit A-1.
Additionally, Tim O’Brien, General Counsel of the Company shall provide opinions, dated the
first Sale Date, as CSS and each CS Purchaser shall reasonably request. The opinion and a
negative assurance letter of Kirkland & Ellis LLP shall be rendered to CSS and each CS
Purchaser at the request of the Company and shall so state therein.




          (d)     CSS shall have received on the first Sale Date an opinion and a negative
assurance letter of Latham & Watkins LLP, counsel for CSS, dated the first Sale Date,
covering the matters referred to in the last paragraph of Exhibit A-2.




          (e)     CSS and each CS Purchaser shall have received, on each of the date of this
Agreement and on the first Sale Date, letters dated the respective dates of delivery
thereof, in form and substance satisfactory to CSS and each CS Purchaser, from KPMG LLP and
PricewaterhouseCoopers 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 Time of Sale Prospectus and the Prospectus; provided that the letters
delivered on the first Sale Date shall use a “cut-off date” not earlier than the date
hereof.




          (f)     The delivery to CSS on such Sale Date of such documents as CSS may
reasonably request with respect to the good standing of the Company and each Finance
Subsidiary and other matters related to the delivery of the Shares.



          6.     Covenants of the Company.   In consideration of the agreements of CSS and each CS
Purchaser herein contained, the Company covenants with CSS and each CS Purchaser as follows:




          (a)     To furnish to CSS, without charge, five conformed copies of the Registration
Statement (including exhibits thereto and documents incorporated by reference) and to
furnish to CSS, without charge, prior to 10:00 a.m. New York City time on the business day
next succeeding the date of this Agreement and during the period mentioned in Section 6(d)
below, as many copies of the Time of Sale Prospectus, the
Prospectus, any documents incorporated therein by reference and any supplements and
amendments thereto or to the Registration Statement as CSS may reasonably request.



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          (b)     Before amending or supplementing the Registration Statement, the Time of
Sale Prospectus or the Prospectus (including by causing an additional document to be
incorporated by reference into the Registration Statement, the Time of Sale Prospectus or
the Prospectus), to furnish to CSS a copy of each such proposed amendment or supplement and
not to file any such proposed amendment or supplement to which CSS reasonably objects,
unless in each case at such time all of the Shares have been sold as contemplated in this
Agreement, and to file with the Commission within the applicable period specified in Rule
424(b) under the Securities Act any prospectus required to be filed pursuant to such Rule.




          (c)     To furnish to CSS a copy of each proposed free writing prospectus prepared
by or on behalf of, used by, or referred to by the Company during the Reference Period and
not to use or refer to any proposed free writing prospectus which CSS has not consented to
in advance, which consent shall not be unreasonably withheld, and to file with the
Commission within the applicable period specified in Rule 433(d) under the Securities Act
any free writing prospectus required to be filed pursuant to such rule.




          (d)     If:




          (i)     at a time when a prospectus relating to the Shares is
required to be delivered under the Securities Act, any representation or
warranty made pursuant to Section 2 ceases to be true and correct or any
event occurs as a result of which the Prospectus as then amended or
supplemented would include any untrue statement of a material fact or omit
to state any material fact necessary to make the statements therein in the
light of the circumstances under which they were made not misleading, or




          (ii)     it shall be necessary to amend the Registration Statement
or supplement the Prospectus to comply with the Securities Act or the
Exchange Act or the respective rules thereunder,




          (iii)     the Company shall have received notice under Section
3.1(d) of the Investors Rights Agreement or otherwise that a stockholder of
the Company will conduct a registered offering of Common Stock,




          (iv)     the Company shall, at any time, determine that the CS
Purchasers and CSS should stop selling shares pursuant to this Agreement,




then, the Company promptly will notify CSS and each CS Purchaser of such event, and either
(A) (1) prepare and file with the Commission an amendment or supplement which will correct
any such statement or omission or effect any such compliance and (2) at its own expense,
supply any supplemented Prospectus to CSS in such quantities as CSS may reasonably request
or (B) inform CSS and each CS Purchaser that a blackout period (a
“Blackout”) has commenced and instruct each such person to discontinue offers and sales of
the Shares until such time as the Company informs CSS and each CS Purchaser that offers and
sales may be resumed (such days during which offers and sales of the Shares are so
discontinued, “Suspension Days”) and, if the Company elects to so instruct CSS and each CS
Purchaser, CSS and each CS Purchaser shall follow such instructions.



11









 






          (e)     To endeavor to qualify the Shares for offer and sale under the securities or
Blue Sky laws of such jurisdictions as CSS shall reasonably request, provided, that in no
event shall the Company be obligated to qualify to do business in any jurisdiction where it
is not now so qualified or to take any action that would subject it to material taxation or
service of process in suits, other than those arising out of the offering or sale of the
Shares, in any jurisdiction where it is not now so subject.




          (f)     To make generally available to the Company’s security holders and to CSS as
soon as practicable an earnings 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 and the last day of the Reference Period which shall satisfy the provisions of
Section 11(a) of the Securities Act and the rules and regulations of the Commission
thereunder.




          (g)     Whether or not the transactions contemplated in this Agreement are
consummated or this Agreement is terminated, to pay or cause to be paid all expenses
incident to the performance of its obligations under this Agreement, including: (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 Shares under the Securities Act and all
other fees or expenses in connection with the preparation and filing of the Registration
Statement, the preliminary prospectus, if any, 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 all printing costs
associated therewith, and the mailing and delivering of copies thereof to CSS, CS Purchaser
and dealers, if any, in the quantities hereinabove specified, (ii) all costs and expenses
related to the transfer and delivery of the Shares to CSS, including any transfer or other
taxes payable thereon, (iii) the cost of printing or producing any Blue Sky memorandum in
connection with the offer and sale of the Shares under state securities laws and all
expenses in connection with the qualification of the Shares for offer and sale under state
securities laws as provided in Section 6(e) hereof, including filing fees and the reasonable
fees and disbursements of counsel for CSS in connection with such qualification and in
connection with the Blue Sky memorandum, which shall not exceed $25,000, (iv) all filing
fees and the reasonable fees and disbursements of counsel to CSS incurred in connection with
the review and qualification of the offering of the Shares by the National Association of
Securities Dealers, Inc., (v) the cost of printing certificates representing the Shares,
(vi) the costs and charges of any transfer agent, registrar or depositary, and (vii) 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. 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, CSS will pay all of its costs and
expenses,
including fees and disbursements of its counsel, stock transfer taxes payable on resale
of any of the Shares by it and any advertising expenses connected with any offers it may
make.



12









 





          (h)     Upon (i) the date of the filing by the Company with the SEC of a Quarterly
Report on Form 10-Q or a Current Report on Form 8-K, (ii) the date that is 30 days after the
last date on which the letters described in this Section (h) have been delivered, and (iii)
at the request of CSS or any CS Purchaser, the date of the furnishing by the Company with
the SEC of a Current Report on Form 8-K, unless at such time all of the Shares have been
sold as contemplated in this Agreement, the Company shall deliver, or cause to be delivered,
to CSS and each

CS Purchaser:




	 	(a)	 	A negative assurance letter dated such date from Kirkland & Ellis
LLP and addressed to the CS Purchasers and CSS confirming as of such
date the statements contained in the negative assurance letter of
Kirkland & Ellis LLP set forth on Exhibit A-1 hereto. (The negative
assurance letter of Kirkland & Ellis LLP shall be rendered to CSS and
each CS Purchaser at the request of the Company and shall so state
therein.)
	 
	 	(b)	 	A negative assurance letter dated such date from Latham & Watkins
LLP and addressed to CSS confirming as of such date the statements
contained in the negative assurance letter of Latham & Watkins LLP set
forth on Exhibit A-2 hereto.
	 
	 	(c)	 	Letters dated such date, in form and substance satisfactory to
CSS and each CS Purchaser, from KPMG LLP and (if requested by CSS or
any CS Purchaser) PricewaterhouseCoopers 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 Time of Sale Prospectus and the
Prospectus; provided that the letters delivered on the first Sale Date
shall use a “cut-off date” not earlier than such date; provided that in
connection with a filing on Form 8-K (other than a filing pursuant to
Item 1.03, Section 2, and Section 4 thereof) any such letter from KPMG
LLP will only need to be delivered upon request.
	 
	 	(d)	 	An officers certificate dated such date confirming that the
conditions set forth in Section 5 have been satisfied with respect to
each Sale Date occurring since the date hereof or since the date of the
most recent officers certificate delivered pursuant to this Section
(h), if later.




In the event that the Company does not satisfy such request, then CSS may instruct the
Company that each subsequent day, to the date of delivery, be deemed a Suspension Day.




13









 






     (i)     The Company shall cause each of the conditions set forth in Section 5 to be
satisfied on or before the first Sale Date.




     (j)     To afford CSS, each CS Purchaser and any affiliates of CSS or any CS
Purchaser on reasonable notice, a reasonable opportunity to conduct a due diligence
investigation with respect to the Company customary in scope for transactions pursuant to
which CSS, any CS Purchaser or any affiliates of CSS acts as an underwriter of equity
securities (including, without limitation, the availability of the chief financial officer
and general counsel to respond to questions regarding the business and financial condition
of the Company and the right to have made available to them for inspection such records and
other information as they may reasonably request).




     (k)     The Company agrees to take all actions necessary (i) to cause each Finance
Subsidiary to remain an “Unrestricted Subsidiary” under the Company’s Existing Debt
Documents, (ii) to cause each Finance Subsidiary to comply with its organizational documents
and not to amend, modify or supplement (or cause to be amended, modified or supplemented)
any provision of, terminate or otherwise change any provision of its organizational
documents, (iii) to cause each Finance Subsidiary not to take any action or cause any action
to be taken that shall submit NRG or any of its other subsidiaries to any proceeding under
any applicable law involving bankruptcy, insolvency, reorganization or other laws affecting
the rights of creditors generally, and (iv) to cause each Finance Subsidiary to (A) maintain
its own books and records and bank accounts separate from those of the Company and any other
person, (B) maintain its assets in such a manner that it is not costly or difficult to
segregate, identify or ascertain such assets, (C) cause its managers to meet at least
annually or act pursuant to written consent and keep minutes of such meetings and actions
and observe all other Delaware limited liability company formalities, (D) hold itself out to
creditors and the public as a legal entity separate and distinct from the Company and any
other person, (E) prepare separate financial statements and separate tax returns, if
separate returns for the Company are required under applicable tax law, or if part of a
consolidated group, then it will be shown as a separate member of such group, and pay any
taxes required to be paid under applicable tax law, (F) pay the salaries of its own
employees, if any, (G) allocate and charge fairly and reasonably any common employee or
overhead shared with affiliates, (H) transact all business with affiliates on an
arm’s-length basis and pursuant to enforceable agreements, (I) conduct business in its own
name, use separate invoices, stationery and checks and strictly comply with all
organizational formalities to maintain its separate existence, (J) not commingle its assets
or funds with those of any other person, (K) not hold out its credit or assets as being
available to satisfy the obligations of others, (L) not assume, guarantee or pay the debts
or obligations of any other person or otherwise pledge its assets for the benefit of any
other person, (M) correct any known misunderstanding regarding its separate identity, (N)
maintain adequate capital in light of its contemplated business purpose, transactions and
liabilities, (O) pay its own liabilities only out of its own funds, (P) cause the managers
and any officers, managers, agents and other representatives of such Finance Subsidiary to
act at all times with respect to such Finance Subsidiary and the Company consistently and in
furtherance of the foregoing and in the best interests of such Finance Subsidiary, and (Q)
to reflect the transactions by each Finance Subsidiary on its financial statements in
accordance with GAAP and provide footnote disclosure in such financial statements to indicate that the assets of a
Finance Subsidiary are not available to the general creditors of the Company or its
subsidiaries (other than such Finance Subsidiary).



14









 






     (l)     The Company agrees that no portion of the proceeds of the Note or Preferred
Interests shall be used in any manner that causes or might cause an extension of credit
under the Note or the application of such proceeds to violate any provision of the Exchange
Act or to violate Regulation T, Regulation U, or Regulation X of the Board of Governors of
the Federal Reserve System.



          7.     Covenants of CSS. CSS hereby represents and agrees that:




     (a)     It has not made, and will not make any offer relating to the Shares that
would constitute a free writing prospectus, without the prior consent of the Company, which
consent shall not be unreasonably withheld.




     (b)     Any free writing prospectus used or referred to by it will not be subject to
broad unrestricted dissemination and will not be required to be filed with the Commission,
in accordance with Rule 433 under the Securities Act, as a result of any action taken or
caused to be taken by CSS, without the prior written consent of the Company, which consent
shall not be unreasonably withheld.




     (c)     Any free writing prospectus used or referred to by it, except any “issuer
free writing prospectus” as defined in Rule 433 under the Securities Act, as to which CSS
makes no representation or warranty, complied in all material respects with the Securities
Act.



          8.     Indemnity and Contribution.



          (a)     The Company agrees to indemnify and hold harmless CSS and each CS Purchaser
and each person, if any, who controls CSS or any CS Purchaser within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act, and each affiliate of
CSS or any CS Purchaser 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 CSS’ breach of the covenants set forth
in 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, the preliminary prospectus, if any, the Time of Sale
Prospectus, any free writing prospectus that the Company has filed, or is required to file,
pursuant to Rule 433(d) of 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 filed, or is required to file, pursuant to Rule
433(d) under the Securities Act, or the Prospectus or any amendment or supplement thereto
(if the Company furnished any amendments or supplements thereto), not misleading in the
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 CSS or a CS
Purchaser furnished to the Company in writing by CSS or CS Purchaser expressly for use
therein.



15









 






     (b)     CSS agrees to indemnify and hold harmless the Company, each CS Purchaser,
the directors of the Company and each CS Purchaser, the officers of the Company who sign the
Registration Statement and each person, if any, who controls the Company or any CS Purchaser
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 CSS and the CS
Purchasers, but only with reference to information relating to CSS furnished to the Company
in writing by CSS expressly for use in the Registration Statement, any preliminary
prospectus, the Time of Sale Prospectus, any other free writing prospectus that the Company
has filed or is required to file pursuant to Rule 433(d) of the Securities Act, or the
Prospectus or any amendment or supplement thereto.




     (c)     Each CS Purchaser agrees to indemnify and hold harmless the Company, CSS,
the directors of the Company and CSS, the officers of the Company who sign the Registration
Statement and each person, if any, who controls the Company or CSS within the meaning of
either Section 15 of the Securities Act or Section 20 of the Exchange Act to the same extent
as the indemnity in subsection (a) above from the Company to CSS and the CS Purchasers, but
only with reference to information relating to such CS Purchaser furnished to the Company in
writing by such CS Purchaser expressly for use in the Registration Statement, any
preliminary prospectus, the Time of Sale Prospectus, any other free writing prospectus that
the Company has filed or is required to file pursuant to Rule 433(d) of the Securities Act,
or the Prospectus or any amendment or supplement thereto.




     (d)     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 8 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 1) the indemnifying party and the indemnified party shall have
mutually agreed to the retention of such counsel or 2) 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.



16









 






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 CSS, in the case of parties indemnified pursuant to Section 8(a), by the
Company, in the case of parties indemnified pursuant to Section 8(b), and by the CS
Purchaser, in the case of parties indemnified pursuant to Section 8(c). 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.




     (e)     To the extent the indemnification provided for in Section 8(a), 8(b) or 8(c)
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 Shares or (ii) if the allocation
provided by clause 8(e)(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(e)(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 CSS and the CS Purchaser, as applicable, on the other hand in connection with the
offering of the Shares shall be deemed to be in the same respective proportions as the net
proceeds from the sale of the Notes and Preferred Interests (before deducting expenses)
received by the Finance Subsidiaries, on the one hand, and the Structuring Fee received by
CSS, on the other hand, bear to the aggregate public offering price of the Shares. The
relative fault of the Company on the one hand and CSS and the CS Purchaser, as applicable,
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, by CSS, by the CS
Purchaser, as applicable, and the parties’ relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.



17









 






     (f)     The Company, CSS and each CS Purchaser, agree that it would not be just or
equitable if contribution pursuant to this Section 8 were determined by pro rata allocation
or by any other method of allocation that does not take account of the equitable
considerations referred to in Section 8(e). The amount paid or payable by an indemnified
party as a result of the losses, claims, damages and liabilities referred to in Section 8(e)
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,
neither CSS nor any CS Purchaser shall be required to contribute any amount in excess of the
amount by which the total price at which the Shares underwritten and distributed to the
public were offered to the public exceeds the amount of any damages that CSS 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.




     (g)     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 CSS or any
person controlling CSS or any affiliate of CSS or by or on behalf of the Company, the
officers or directors of the Company or any person controlling the Company, (iii) any
investigation made by or on behalf of the CS Purchaser or any person controlling the CS
Purchaser or any affiliate of the CS Purchaser or by or on behalf of the Company, the
officers or directors of the Company or any person controlling the Company and (iv)
acceptance of and payment for any of the Shares.



          9.     Termination.   CSS may terminate this Agreement at any time by notice to the Company
and each CS Purchaser if after the execution and delivery of this Agreement and prior to any Sale
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, the American Stock Exchange or the Nasdaq National
Market, (ii) trading of any securities of the Company shall have been suspended on any exchange or
in any over-the-counter market, (iii) a material disruption in the 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 CSS’ judgment, is material and adverse and which, singly or
together with any other event specified in this clause (v), makes it, in CSS’ judgment,
impracticable or inadvisable to proceed with the offer, sale or delivery of the Shares on the terms
and in the manner contemplated in the Time of Sale Prospectus and the Prospectus. CSS shall not be
obligated to close the purchase and sale of any shares pursuant to this Agreement on any date on
which this Agreement is terminated pursuant to this Section 9.



18









 





          CSS may terminate this Agreement for 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. If this Agreement
shall be terminated by CSS 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, or if for any reason
the Company shall be unable to perform its obligations under this Agreement, the Company will
reimburse CSS for all out-of-pocket expenses (including the fees and disbursements of their
counsel, but without duplication of any reimbursement obligation pursuant to any other agreement)
reasonably incurred by CSS in connection with this Agreement or the offering contemplated
hereunder. In the event that the this Agreement is terminated pursuant to this Section 9, each day
subsequent to such termination shall be deemed a Suspension Day.



          10.     Effectiveness.   This Agreement shall become effective upon the execution and
delivery hereof by the parties hereto.



          11.     Successors and Assigns.   This Agreement shall be binding upon and inure solely to
the benefit of the parties hereto and their respective successors and assigns, and no other person
shall acquire or have any right under or by virtue of this Agreement. No purchaser of any of the
Shares from CSS shall be deemed a successor or assign solely by reason of such purchase.



          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; Submission to Jurisdiction; Appointment of Agent for Service.   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.     No Fiduciary Duty.   The Company acknowledges and agrees that in connection with
this offering, sale of the Shares or any other services CSS or any CS Purchaser may be deemed to be
providing hereunder, notwithstanding any preexisting relationship, advisory or otherwise, between
the parties or any oral representations or assurances previously or subsequently made by CSS or any
CS Purchaser: (i) no fiduciary or agency relationship between the Company and any other person, on
the one hand, and CSS and any CS Purchaser, on the other, exists; (ii) neither CSS nor any CS
Purchaser is acting as advisor, expert or otherwise, to the Company, and such relationship between
the Company on the one hand, and CSS and each CS Purchaser, on the other, is entirely and solely
commercial, based on arms-length negotiations; (iii) any duties and obligations that CSS or any CS
Purchaser may have to the Company shall be limited to those duties and obligations specifically
stated herein; and (iv) CSS and each CS Purchaser and their affiliates may have interests that
differ from those of the Company. The Company hereby waives any claims that the Company may have
against CSS or any CS Purchaser with respect to any breach of fiduciary duty in connection with the
sale of the Shares.



          16.     Covenant of the CS Purchaser.   Each CS Purchaser agrees to provide a report to the
Company promptly upon completion of its sale of the Shares under this Agreement, which report shall
include the date of such completion and the price or prices at which the Shares were sold to the
public by CSS or such CS Purchaser, as the case may be.



19









 







	 	 	 	 	 	 	 
	 	 	NRG Energy, Inc.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/  Robert C. Flexon	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:  Robert
C. Flexon	 	 
	 

	 	 	 	Title:  Executive Vice
President, CFO	 	 
	 
	 	 	 	 	 	 













 





	 	 	 	 	 
	Accepted as of the date hereof	 	 
	 
	 	 	 	 
	Credit Suisse Securities (USA) LLC	 	 
	 
	 	 	 	 
	 
	 	 	 	 
	By:
	 	/s/  Timothy Block	 	 
	 

	 	 

Name:  Timothy Block	 	 
	 

	 	Title:    Managing
Director	 	 
	 
	 	 	 	 
	 
	 	 	 	 
	Credit Suisse International	 	 
	 
	 	 	 	 
	 
	 	 	 	 
	By:
	 	/s/  Laura Muir	 	 
	 

	 	 

Name:  Laura Muir	 	 
	 

	 	Title:    Authorized
Signatory	 	 
	 
	 	 	 	 
	 
	 	 	 	 
	By:
	 	/s/  Christian Bettley	 	 
	 

	 	 

Name:  Christian Bettley	 	 
	 

	 	Title:    Authorized
Signatory	 	 






 









 





	 	 	 	 	 
	Credit Suisse Capital LLC	 	 
	 
	 	 	 	 
	 
	 	 	 	 
	By:
	 	/s/  Sean T.
Brady	 	 
	 

	 	 

Name:  Sean T. Brady	 	 
	 

	 	Title:    Managing
Director	 	 






 









 





EXHIBIT A-1




FORM OF OPINION OF KIRKLAND & ELLIS LLP

TO BE DELIVERED PURSUANT

TO SECTION 5(C)




(attached)




 









 





EXHIBIT A-2




FORM OF OPINION OF LATHAM & WATKINS LLP

TO BE DELIVERED PURSUANT

TO SECTION 5(D)




(attached)