EXHIBIT 1.1
RELIANT ENERGY RESOURCES CORP.
$550,000,000
7.75% Notes due 2011
Underwriting Agreement
February 15, 2001
Banc of America Securities LLC
Chase Securities Inc.
Barclays Capital Inc.
Commerzbank Capital Markets Corp.
First Union Securities, Inc.
TD Securities (USA) Inc.
c/o Banc of America Securities LLC
Chase Securities Inc., as the Representatives
Ladies and Gentlemen:
Reliant Energy Resources Corp., a Delaware corporation (the "Company"),
proposes, subject to the terms and conditions stated herein, to issue and sell
to the Underwriters named in Schedule I hereto (the "Underwriters") $550,000,000
aggregate principal amount of its 7.75% Notes due 2011 (the "Notes") to be
issued pursuant to an Indenture dated as of February 1, 1998 (the "Base
Indenture") between the Company and The Chase Manhattan Bank (formerly Chase
Bank of Texas, National Association), as trustee (the "Trustee") and a
Supplemental Indenture No. 4 to the Base Indenture dated as of February 15, 2001
(the "Supplemental Indenture," and together with the Base Indenture and any
amendments or supplements thereto, the "Indenture"), between the Company and the
Trustee.
1. Representations and Warranties of the Company.
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(a) The Company represents and warrants to, and agrees with, each of
the Underwriters that:
(i) A registration statement on Form S-3 with respect to the
Notes and other debt securities with an aggregate maximum initial public
offering price of $600,000,000 (File No. 333-54256), copies of which have been
delivered to you, has been prepared and filed by the Company with the Securities
and Exchange Commission (the "Commission"). The Registration Statement,
including a prospectus has been declared effective under the Securities Act of
1933, as amended (the "Act"). No stop order suspending the effectiveness of the
Registration Statement has been issued and no
proceeding for that purpose has been initiated or, to the best knowledge of the
Company, threatened by the Commission. The Registration Statement (including all
documents filed as part thereof or incorporated by reference therein, but
excluding any Forms T-1, as amended), as amended and supplemented at the date of
this Agreement, is hereinafter referred to as the "Registration Statement." The
prospectus contained in the Registration Statement at the time that the
Registration Statement was declared effective is hereinafter referred to as the
"Basic Prospectus." The prospectus included in the Registration Statement, as
amended and supplemented to the date of this Agreement (including all documents
then incorporated by reference therein and including the Final Prospectus
Supplement (hereinafter defined)), is hereinafter referred to as the
"Prospectus".
A prospectus supplement, subject to completion, dated
February 8, 2001 has been prepared and the Basic Prospectus, as so supplemented
(the "Preliminary Supplemented Prospectus"), was included in the pre-effective
Amendment No. 1 to the Registration Statement as filed with the Commission on
February 8, 2001. A prospectus supplement, dated the date hereof, setting forth
the terms of the Notes and of their sale and distribution (the "Final Prospectus
Supplement") has been prepared and the Basic Prospectus, as supplemented by the
Final Prospectus Supplement, will be filed pursuant to Rule 424(b) under the Act
("Rule 424(b)").
Any reference herein to the Registration Statement, the
Prospectus, the Basic Prospectus or the Preliminary Supplemented Prospectus
shall be deemed to refer to and include the documents incorporated by reference
therein, or deemed to be incorporated by reference therein, and filed under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), on or before
the date of the Registration Statement, the Prospectus, the Basic Prospectus or
the Preliminary Supplemented Prospectus, as applicable. Any reference herein to
the terms "amend," "amendment" or "supplement" with respect to the Registration
Statement or the Prospectus shall be deemed to refer to and include, without
limitation, the filing of any document under the Exchange Act deemed to be
incorporated therein by reference after the date of such Registration Statement
or Prospectus.
(ii) On the effective date of the Registration Statement, the
Registration Statement, as amended and supplemented at that time, conformed in
all material respects to the requirements of the Act and the Trust Indenture Act
of 1939, as amended (the "TIA"), and the applicable rules and regulations of the
Commission thereunder, and did not include any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading; on the date of the
Preliminary Supplemented Prospectus, the Preliminary Supplemented Prospectus
conformed in all material respects to the requirements of the Act and the
applicable rules and regulations of the Commission thereunder, and did not
include any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein
not misleading; and on the date of this Agreement, the Registration Statement
and the Prospectus conform, and at the Time of Delivery (hereinafter defined)
they will conform, in all material respects to the requirements of the Act and
the TIA and the applicable rules and regulations of the Commission thereunder,
and on the date of this Agreement do not, and on the Time of
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Delivery will not, contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make the
statements therein not misleading;
(iii) Each document filed or to be filed pursuant to the
Exchange Act and incorporated by reference, or deemed to be incorporated by
reference in the Prospectus (including any document to be filed pursuant to the
Exchange Act which will constitute an amendment to the Prospectus) conformed or,
when so filed, will conform in all material respects to the requirements of the
Exchange Act and the applicable rules and regulations of the Commission
thereunder, and none of such documents included or, when so filed, will include
any untrue statement of a material fact or omitted or, when so filed, will omit
to state any material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under which they were
made, not misleading;
(iv) This Agreement has been duly authorized, executed and
delivered by the Company;
(v) The Notes and the Indenture have been duly authorized by
the Company and, assuming the valid execution and delivery thereof by the
Trustee, the Indenture constitutes, and, in the case of the Notes, when they are
validly issued by the Company and duly authenticated and delivered by the
Trustee, the Notes will constitute, valid and legally binding obligations of the
Company and the Trustee, enforceable in accordance with their respective terms,
subject, as to enforcement, to bankruptcy, insolvency, reorganization and other
laws of general applicability relating to or affecting creditors' rights and to
general equity principles (regardless of whether such enforceability is
considered in a proceeding in equity or at law); the Notes when validly issued
by the Company and duly authenticated and delivered by the Trustee, will be
entitled to the benefits of the Indenture; and the Notes conform to the
descriptions thereof in the Prospectus.
(vi) The issuance by the Company of the Notes, the compliance
by the Company with all of the provisions of this Agreement, the Notes and the
Indenture, and the consummation of the transactions contemplated herein and
therein (a) will not conflict with or result in a breach or violation of any of
the terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument for
borrowed money to which the Company or any Significant Subsidiary (as defined in
Regulation S-X) of the Company (each, a "Significant Subsidiary") is a party or
by which the Company or any Significant Subsidiary is bound or to which any of
the property or assets of the Company or any Significant Subsidiary is subject,
which conflict, breach, violation, or default would singly, or in the aggregate,
have a material adverse effect on the business, properties or financial
condition of the Company and the Significant Subsidiaries, taken as a whole; and
(b) will not result in any violation of the provisions of the Certificate of
Incorporation or By-laws of the Company or any existing statute or any order,
rule or regulation of any court or governmental agency or body having
jurisdiction over the Company's or any of its or its Significant Subsidiaries'
properties.
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(vii) The Commission has issued an order under the Act declaring
the Registration Statement effective and qualifying the Indenture under the TIA
and no other consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or body is
required for the issue of the Notes or the consummation by the Company of the
other transactions contemplated by this Agreement, and the Indenture, except
such consents, approvals, authorizations, registrations or qualifications as may
be required under state securities or blue sky laws in connection with the
issuance by the Company of the Notes and the purchase and distribution of the
Notes by the Underwriters.
(viii) At the date hereof, the Company has outstanding the
following securities (excluding for this purpose any revolving credit facility,
letter of credit facility or similar bank credit facility), and no others, which
contain covenants (i) limiting liens on any Principal Property (as defined in
the Prospectus) and (ii) limiting the sale and leaseback of assets: (a) Medium-
Term Notes, Series B (due through 2001), (b) 8.90% Debentures due 2006, (c) 6
1/2 % Debentures due February 1, 2008, (d) 6 3/8% Term Enhanced ReMarketable
Securities and (e) 8.125% Notes due 2005.
2. Sale and Delivery.
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(a) Subject to the terms and conditions herein set forth, the Company
agrees to issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Company,
the principal amount of the Notes set forth in Schedule I opposite the name of
such Underwriter (plus an additional amount of Notes that such Underwriter may
become obligated to purchase pursuant to the provisions of Section 7 hereof) at
a price equal to 99.024 % of the principal amount thereof, plus accrued
interest, if any, from February 21, 2001 to the Time of Delivery.
(b) The Notes to be purchased by each Underwriter hereunder will be
represented by one or more definitive global notes in book-entry form which will
be deposited by or on behalf of the Company with The Depository Trust Company
("DTC") or its designated custodian. The Company will deliver the Notes to Banc
of America Securities LLC, acting on behalf of the Underwriters for the account
of each Underwriter, against payment by or on behalf of such Underwriter of the
amount therefor, as set forth above, by wire transfer of Federal (same day)
funds to a commercial bank account located in the United States and designated
in writing at least forty-eight hours prior to the Time of Delivery by the
Company to Banc of America Securities LLC, by causing DTC to credit the Notes to
the account of Banc of America Securities LLC at DTC. The Company will cause the
global certificates representing the Notes to be made available to Banc of
America Securities LLC and Chase Securities Inc., as joint-book running managing
underwriters (together, the "Representatives"), acting on behalf of the
Underwriters, 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 time and date of such delivery and payment shall be 9:30 a.m., New
York City time, on February 21, 2001 or such other time and date as the
Representatives and the Company may agree upon in writing. Such time and date
are herein called the "Time of Delivery."
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(c) The documents to be delivered at the Time of Delivery by or on
behalf of the parties hereto pursuant to Section 5 hereof, including the cross-
receipt for the Notes and any additional documents requested by the Underwriters
pursuant to Section 5(g) hereof, will be delivered at such time and date at the
offices of Baker Botts L.L.P., One Shell Plaza, 910 Louisiana, Houston, Texas
77002-4995 or such other location as the Representatives and the Company may
agree in writing (the "Closing Location"), and the Notes will be delivered at
the Designated Office, all at the Time of Delivery. A meeting will be held at
the Closing Location at 1:00 p.m., New York City time or at such other time as
the Representatives and the Company may agree in writing, on the date next
preceding the Time of Delivery, at which meeting the final drafts of the
documents to be delivered pursuant to the preceding sentence will be available
for review by the parties hereto.
3. Covenants and Agreements.
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The Company covenants and agrees with each of the Underwriters:
(a) That the Company will furnish without charge to the Underwriters
a copy of the Registration Statement, including all documents incorporated by
reference therein and exhibits filed with the Registration Statement (other than
exhibits which are incorporated by reference and have previously been so
furnished), and, during the period mentioned in paragraph (c) below, as many
copies of the Prospectus, any documents incorporated by reference therein at or
after the date thereof (including documents from which information has been so
incorporated) and any supplements and amendments thereto as each Underwriter may
reasonably request so long as such Underwriter is required to deliver a
prospectus;
(b) That the Company will cause the Prospectus to be filed pursuant
to, and in compliance with, Rule 424(b) and will promptly advise the
Underwriters (i) when any amendment to the Registration Statement shall have
been filed; provided, that, with respect to documents filed pursuant to the
Exchange Act and incorporated by reference into the Registration Statement, such
notice shall only be required during such time as the Underwriters are required
in the reasonable opinion of Dewey Ballantine LLP, counsel for the Underwriters,
to deliver a prospectus, (ii) of any request by the Commission for any amendment
of the Registration Statement, (iii) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement or the
institution or threatening of any proceeding for that purpose, and (iv) of the
receipt by the Company of any notification with respect to the suspension of the
qualification of the Notes for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose. So long as any Underwriter is
required in the reasonable opinion of Dewey Ballantine LLP to deliver a
prospectus, the Company will not file any amendment to the Registration
Statement or supplement to the Prospectus unless the Company has furnished one
copy of such amendment or supplement to each of the Representatives and to Dewey
Ballantine LLP, and, if such amendment or supplement is to be filed on or prior
to the Time of Delivery, or under circumstances where the Underwriters are
required in the reasonable opinion of Dewey Ballantine LLP, to deliver a
prospectus, the
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Underwriters or Dewey Ballantine LLP, shall not reasonably have objected
thereto. If the Commission shall issue a stop order suspending the effectiveness
of the Registration Statement, the Company will take such steps to obtain the
lifting of that order as in the best judgment of the Company are not contrary to
the interests of the Company;
(c) That if, at any time when in the reasonable opinion of Dewey
Ballantine LLP the Prospectus is required by law to be delivered by an
Underwriter or a dealer, any event shall occur as a result of which it is
necessary, in the reasonable opinion of Dewey Ballantine LLP or counsel for the
Company, to amend or supplement the Prospectus or modify the information
incorporated by reference therein in order to make the statements therein, in
light of the circumstances existing when the Prospectus is delivered to a
purchaser, not misleading, or if it shall be necessary in the reasonable opinion
of any such counsel, to amend or supplement the Prospectus or modify such
information to comply with law, the Company will forthwith (i) prepare and
furnish, at its own expense, to the Underwriters and to the dealers (whose names
and addresses the Underwriters will furnish to the Company) to whom Notes may
have been sold by the Underwriters and to any other dealers upon reasonable
request, either amendments or supplements to the Prospectus or (ii) file with
the Commission documents incorporated by reference in the Prospectus, which
shall be so supplied to the Underwriters and such dealers, in either case so
that the statements in the Prospectus as so amended, supplemented or modified
will not, in light of the circumstances when the Prospectus is delivered to a
purchaser, be misleading or so that the Prospectus will comply with law;
(d) That the Company will endeavor to qualify, at its expense, the
Notes for offer and sale under the securities or Blue Sky laws of such
jurisdictions as the Underwriters shall reasonably request and to pay all filing
fees, reasonable expenses and legal fees in connection therewith and in
connection with the determination of the eligibility for investment of the
Notes; provided, that the Company shall not be required to qualify as a foreign
corporation or a dealer in securities or to file any consents to service of
process under the laws of any jurisdiction;
(e) That the Company will make generally available to its security
holders and the holders of the Notes as soon as practicable an earnings
statement of the Company covering a twelve-month period beginning after the Time
of Delivery which shall satisfy the provisions of Section 11(a) of the Act and
the rules and regulations of the Commission thereunder (including Rule 158 under
the Act).
(f) That during the period beginning on the date of this Agreement
and continuing to and including the Time of Delivery, the Company will not
offer, sell, contract to sell or otherwise dispose of any notes, any security
convertible into or exchangeable into or exercisable for notes or any other debt
securities substantially similar to the Notes (except for the Notes issued
pursuant to this Agreement), without the prior written consent of the
Underwriters.
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4. Expenses.
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The Company covenants and agrees with the several Underwriters that
the Company will pay or cause to be paid the following: (i) all expenses in
connection with the preparation, printing and filing of the Registration
Statement as originally filed and of each amendment thereto; (ii) the fees,
disbursements and expenses of the Company's counsel and accountants in
connection with the issue of the Notes and all other expenses in connection with
the preparation, printing and filing of the Prospectus and the Preliminary
Supplemented Prospectus and any amendments and supplements thereto and the
mailing and delivering of copies thereof to the Underwriters and dealers; (iii)
all reasonable expenses in connection with the qualification of the Notes, for
offering and sale under state securities laws as provided in Section 3(d)
hereof, including the reasonable fees and disbursements of counsel for the
Underwriters in connection with such qualification and in connection with the
Blue Sky and legal investment surveys; (iv) any fees charged by Notes rating
services for rating the Notes; (v) the cost of preparing the Notes; (vi) the
fees and expenses of the Trustee and any agent of the Trustee and the fees and
disbursements of counsel for the Trustee in connection with the Indenture; (vii)
the reasonable fees, disbursements and expenses of Underwriters' counsel to the
extent that such fees, disbursements and expenses relating to the offering and
the sale of the Notes exceed $100,000; and (viii) all other costs and expenses
incident to the performance of its obligations hereunder which are not otherwise
specifically provided for in this Section. It is understood, however, that,
except as provided in this Section, and Sections 6 and 9 hereof, the
Underwriters will pay all of their own costs and expenses, including any
advertising expenses connected with any offers they may make.
5. Conditions of Underwriters' Obligations.
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The obligations of the Underwriters hereunder shall be subject to the
accuracy, at and (except as otherwise stated herein) as of the date hereof and
at and as of the Time of Delivery, of the representations and warranties made
herein by the Company, to compliance at and as of the Time of Delivery by the
Company with its covenants and agreements herein contained and the other
provisions hereof to be satisfied at or prior to the Time of Delivery, and to
the following additional conditions:
(a) (i) No stop order suspending the effectiveness of the
Registration Statement shall be in effect, and no proceeding for such purpose
shall be pending before or threatened by the Commission, and the Underwriters
shall have received on and as of the Time of Delivery, a certificate dated such
date, signed by an executive officer (including, without limitation, the
Treasurer) of the Company or an executive officer of Reliant Energy,
Incorporated, the sole stockholder of the Company ("Reliant"), to the foregoing
effect, and (ii) there shall have been no material adverse change in or
affecting the business, properties or financial condition of the Company from
that set forth in or contemplated by the Registration Statement at the time such
Registration Statement became effective, except as set forth in or contemplated
by the Prospectus, and the Underwriters shall have received on and as of the
Time of Delivery, a certificate dated such date, signed by an executive officer
of the Company or an executive officer of Reliant to the foregoing effect. The
officers or agents making such
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certificates may rely upon the best of his or her knowledge as to proceedings
pending or threatened.
(b) Dewey Ballantine LLP, counsel for the Underwriters, shall have
furnished to you such opinion or opinions, dated the Time of Delivery, with
respect to such matters as you may reasonably request, and such counsel shall
have received such papers and information as they may reasonably request to
enable them to pass upon such matters. In giving such opinion, such counsel may
rely as to the exemption of Reliant under the Public Utility Holding Company Act
of 1935, as amended (the "1935 Act"), upon the opinion of Baker Botts L.L.P.
referred to in (d) below.
(c) Hugh Rice Kelly, Esq., Executive Vice President, General Counsel
and Secretary of the Company, or Rufus S. Scott, Esq., Vice President, Deputy
General Counsel and Assistant Secretary of the Company, shall have furnished to
you his written opinion, dated the Time of Delivery, in form and substance
satisfactory to you, to the effect that:
(i) The Company has been duly incorporated and is validly
existing in good standing under the laws of the State of Delaware and has
corporate power and authority to enter into and perform its obligations under
this Agreement and the Indenture;
(ii) No consent, approval, authorization or other order of, or
registration with, any governmental regulatory body (other than such as may be
required under applicable state securities laws, as to which such counsel need
not express an opinion) is required for the issuance and sale of the Notes being
delivered at the Time of Delivery or for the consummation by the Company of the
transactions contemplated by this Agreement and the Indenture;
(iii) To the best of such counsel's knowledge and other than as
set forth or contemplated in the Prospectus, there are no legal or governmental
proceedings pending or threatened to which the Company is subject, which,
individually or in the aggregate, are expected to have a material adverse effect
on the financial position, stockholder's equity or results of operations of the
Company;
(iv) The execution, delivery and performance by the Company of
this Agreement and the Indenture will not result in the breach or violation of,
or constitute a default under, the Certificate of Incorporation or the Bylaws of
the Company, each as amended to date, any indenture, mortgage, deed of trust or
other agreement or instrument for borrowed money to which the Company is a party
or by which it is bound or to which its property is subject or any law, order,
rule or regulation of any court or governmental agency or body having
jurisdiction over the Company or its property, in any manner which would have a
material adverse effect on the business of the Company; and
(v) The description of statutes and regulations set forth in
Part I of the Company's Annual Report on Form 10-K for the fiscal year ended
December 31,
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1999 under the captions "Business--Regulation" and "Business--Environmental
Matters," as updated in the Quarterly Reports on Forms 10-Q for the quarters
ended March 31, June 30, and September 30, 2000 and the Current Reports on Form
8-K dated July 27, 2000, October 25, 2000, December 31, 2000 and January 26,
2001 fairly describe in all material respects the portions of the statutes and
regulations addressed thereby.
(d) Baker Botts L.L.P., counsel for the Company, shall have furnished
to you their written opinion, dated the Time of Delivery, in form and substance
satisfactory to you, to the effect that:
(i) Such counsel does not know of any contracts or documents
of a character required to be described in the Registration Statement or
Prospectus or to be filed as exhibits to the Registration Statement which are
not so described and filed;
(ii) The statements set forth in the Prospectus under the
caption "Description of the Notes", and in the Basic Prospectus under the
caption "Description of Our Debt Securities" accurately summarizes in all
material respects the terms of the Notes;
(iii) The Notes conform, as to legal matters in all material
respects to the descriptions thereof contained in the Prospectus including,
without limitation, under the caption "Description of the Notes", and in the
Basic Prospectus including, without limitation, under the caption "Description
of Our Debt Securities";
(iv) The Notes are in the form prescribed in or pursuant to the
Indenture, have been duly and validly authorized by all necessary corporate
action on the part of the Company and, when executed and delivered by the
Company and authenticated by the Trustee as specified in or pursuant to the
Indenture, will be valid and binding obligations of the Company, enforceable in
accordance with their terms, except as such enforceability is subject to the
effect of any applicable bankruptcy, insolvency, reorganization or other law
relating to or affecting creditors' rights generally and to general principles
of equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law); the Indenture has been duly authorized,
executed and delivered by the Company and, assuming it was duly executed and
delivered by the Trustee, constitutes a valid and binding obligation of the
Company, enforceable in accordance with its terms, except as such enforceability
is subject to the effect of any applicable bankruptcy, insolvency,
reorganization or other law relating to or affecting creditors' rights generally
and to general principles of equity (regardless of whether such enforceability
is considered in a proceeding in equity or at law);
(v) The Indenture has been duly qualified under the TIA;
(vi) Pursuant to a Memorandum Opinion and Order Granting
Exemption to Holding Company dated July 24, 1997 issued by the Commission
(Release No. 35-26744), Reliant is exempt from regulation as a public utility
holding company under Section 3(a)(2) of the 1935 Act, except the provisions of
Section 9(a)(2) thereof;
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(vii) The Registration Statement has become effective under the
Act, and, to the best of such counsel's knowledge, no stop order suspending the
effectiveness of the Registration Statement or any part thereof has been issued
and no proceedings for that purpose have been instituted and are pending or are
threatened by the Commission under the Act; the Registration Statement, as of
its effective date, and the Prospectus, as of February 15, 2000, (except for (A)
the operating statistics, financial statements, pro forma financial statements
and financial statement schedules contained or incorporated by reference therein
(including the auditors' reports on the financial statements and the notes to
the financial statements), (B) the other financial and statistical information
contained or incorporated by reference therein and (C) the exhibits thereto, as
to which such counsel need not express an opinion) complied as to form in all
material respects with the requirements of Form S-3 under the Act and the
applicable rules and regulations of the Commission thereunder, and each document
incorporated by reference therein as originally filed pursuant to the Exchange
Act (except for (A) the operating statistics, financial statements, pro forma
financial statements and financial statement schedules contained or incorporated
by reference therein (including the auditors' reports on the financial
statements and the notes to the financial statements), (B) the other financial
and statistical information contained or incorporated by reference therein and
(C) the exhibits thereto, as to which such counsel need not express an opinion)
when so filed complied as to form in all material respects with the Exchange Act
and the applicable rules and regulations of the Commission thereunder; and
(viii) The execution, delivery and performance by the Company of
this Agreement has been duly authorized by all necessary corporate action on the
part of the Company, and this Agreement has been duly executed and delivered by
the Company.
In addition, such counsel shall state that no facts have come to the
attention of such counsel that lead them to believe that the Registration
Statement (except for (A) the operating statistics, financial statements, pro
forma financial statements and financial statement schedules contained or
incorporated by reference therein (including the auditors' reports on the
financial statements and the notes to the financial statements, except to the
extent that such notes describe legal or governmental proceedings to which the
Company is a party and are incorporated by reference into one or more items of a
report that is incorporated by reference in the Registration Statement or the
Prospectus, other than an item that requires that financial statements be
provided), (B) the other financial and statistical information contained or
incorporated by reference therein and (C) the exhibits thereto, as to which such
counsel need not comment) as of the time such Registration Statement became
effective, contained any untrue statement of a material fact or omitted to state
a material fact required to be stated therein or necessary to make the
statements therein not misleading, or that the Prospectus, as amended,
supplemented or modified by the filing of a document incorporated by reference
therein if so amended, supplemented or modified (except for (A) the operating
statistics, financial statements, pro forma financial statements and financial
statement schedules contained or incorporated by reference therein (including
the auditors' reports on the financial statements and the notes to the financial
statements, except to the extent that such notes describe legal or governmental
proceedings to which the Company is a party and are
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incorporated by reference into one or more items of a report that is
incorporated by reference in the Prospectus, other than an item that requires
that financial statements be provided), (B) the other financial and statistical
information contained or incorporated by reference therein and (C) the exhibits
thereto, as to which such counsel need not comment), as of the date of the
Prospectus contained, or as of the Time of Delivery contains, any untrue
statement of a material fact or omits to state a material fact necessary in
order to make the statements therein, in light of the circumstances under which
they were made, not misleading.
(e) At the time of execution of this Agreement, Deloitte & Touche LLP
shall have furnished to you a letter dated the date of such execution,
substantially in the form heretofore supplied and deemed satisfactory to you.
(f) At the Time of Delivery, Deloitte & Touche LLP shall have
furnished you a letter, dated the Time of Delivery, to the effect that such
accountants reaffirm, as of the Time of Delivery and as though made on the Time
of Delivery, the statements made in the letter furnished by such accountants
pursuant to paragraph (e) of this Section 5, except that the specified date
referred to in such letter will be a date not more than three business days
prior to the Time of Delivery.
(g) The Company shall have furnished or caused to be furnished to you
at the Time of Delivery certificates of officers of the Company satisfactory to
you as to the accuracy of the representations and warranties of the Company
herein at and as of the Time of Delivery, as to the performance by the Company
of all of its obligations hereunder to be performed at or prior to the Time of
Delivery, as to the matters set forth in the introductory paragraph to this
Section 5 and subsection (a) of this Section and as to such other matters as you
may reasonably request.
6. Indemnification and Contribution.
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(a) The Company agrees to indemnify and hold harmless each
Underwriter, and each person, if any, who controls each Underwriter within the
meaning of the Act or the Exchange Act, against any losses, claims, damages,
liabilities or expenses (including the reasonable cost of investigating and
defending against any claims therefore and counsel fees incurred in connection
therewith), joint or several, which may be based upon either the Act, or the
Exchange Act, or any other statute or at common law, on the ground or alleged
ground that the Registration Statement, any preliminary prospectus, the Basic
Prospectus, the Preliminary Supplemented Prospectus, or the Prospectus (or any
such document, as from time to time amended, or deemed to be amended,
supplemented or modified) includes or allegedly includes an untrue statement of
material fact or omits to state a material fact required to be stated therein or
necessary in order to make the statements therein not misleading, unless such
statement or omission was made in reliance upon, and in conformity with, written
information furnished to the Company by any Underwriter through the
Representatives specifically for use in the preparation thereof; provided that
in no case is the Company to be liable with respect to any claims made against
any Underwriter or any such controlling person unless such Underwriter or such
controlling person shall have notified the Company in writing within
11
a reasonable time after the summons or other first legal process giving
information of the nature of the claim shall have been served upon such
Underwriter or such controlling person, but failure to notify the Company of any
such claim shall not relieve it from any liability which it may have to such
Underwriter or such controlling person otherwise than on account of the
indemnity agreement contained in this paragraph; and provided, further, that the
foregoing indemnity with respect to any preliminary prospectus, the Basic
Prospectus, the Preliminary Supplemented Prospectus and the Prospectus shall not
inure to the benefit of any Underwriter if a copy of the Prospectus as amended
or supplemented at the time of a sale, had not been sent or given by or on
behalf of such Underwriter to the person asserting any such losses, claims,
damages or liabilities concurrently with or prior to delivery of the written
confirmation of the sale of Notes to such person and the untrue statement or
omission of a material fact contained in any preliminary prospectus, the Basic
Prospectus, Preliminary Supplemented Prospectus or Prospectus was corrected in
the Prospectus, as amended or supplemented at that time.
The Company will be entitled to participate at its own expense in the
defense, or, if it so elects, to assume the defense of any suit brought to
enforce any such liability, but, if the Company elects to assume the defense,
such defense shall be conducted by counsel chosen by it. In the event that the
Company elects to assume the defense of any such suit and retains such counsel,
the Underwriter or Underwriters or controlling person or persons, defendant or
defendants in the suit, may retain additional counsel but shall bear the fees
and expenses of such counsel unless (i) the Company shall have specifically
authorized the retaining of such counsel or (ii) the parties to such suit
include the Underwriter or Underwriters or controlling person or persons and the
Underwriter or Underwriters or controlling person or persons have been advised
by such counsel that one or more legal defenses may be available to it or them
which may not be available to the Company, in which case the Company shall not
be entitled to assume the defense of such suit on behalf of such Underwriter or
Underwriters or controlling person or persons, notwithstanding their obligation
to bear the reasonable fees and expenses of such counsel, it being understood,
however, that the Company shall not, in connection with any one such suit or
proceeding or separate but substantially similar or related actions or
proceedings 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 at any time for all such Underwriters and their
controlling persons, which firm shall be designated in writing by Banc of
America Securities LLC. The Company shall not be liable to indemnify any person
for any settlement of any such claim effected without the Company's consent.
This indemnity agreement will be in addition to any liability which the Company
might otherwise have.
(b) Each Underwriter agrees to indemnify and hold harmless the
Company, each of the Company's directors, each of the Company's officers who
have signed the Registration Statement, and each person, if any, who controls
the Company within the meaning of the Act or the Exchange Act, against any
losses, claims, damages, liabilities or expenses (including the reasonable cost
of investigating and defending against any claims therefor and counsel fees
incurred in connection therewith), joint or several, which may be based upon the
Act, or any other statute or at common law, on the ground or alleged ground that
any preliminary prospectus, the Preliminary Supplemented
12
Prospectus, the Registration Statement, the Basic Prospectus or the Prospectus
(or any such document, as from time to time amended, or deemed to be amended,
supplemented or modified) includes or allegedly includes an untrue statement of
a material fact or omits to state a material fact required to be stated therein
or necessary in order to make the statements therein not misleading, but only
insofar as any such statement or omission was made in reliance upon, and in
conformity with, written information furnished to the Company by such
Underwriter through the Representatives specifically for use in the preparation
thereof, it being understood and agreed that the only such information furnished
by any Underwriter consists of the following information in the Prospectus
furnished on behalf of each Underwriter: the last paragraph at the bottom of the
cover page concerning the terms of the delivery by the underwriters and the
fourth, fifth, sixth and seventh paragraphs under the caption "Underwriting";
provided that in no case is such Underwriter to be liable with respect to any
claims made against the Company or any such director, officer, trustee or
controlling person unless the Company or any such director, officer, trustee or
controlling person shall have notified such Underwriter in writing within a
reasonable time after the summons or other first legal process giving
information of the nature of the claim shall have been served upon the Company
or any such director, officer, trustee or controlling person, but failure to
notify such Underwriter of any such claim shall not relieve it from any
liability which it may have to the Company or any such director, officer,
trustee or controlling person otherwise than on account of the indemnity
agreement contained in this paragraph. Such Underwriter will be entitled to
participate at its own expense in the defense, or, if it so elects, to assume
the defense of any suit brought to enforce any such liability, but, if such
Underwriter elects to assume the defense, such defense shall be conducted by
counsel chosen by it. In the event that such Underwriter elects to assume the
defense of any such suit and retain such counsel, the Company or such director,
officer, trustee or controlling person, defendant or defendants in the suit, may
retain additional counsel but shall bear the fees and expenses of such counsel
unless (i) such Underwriter shall have specifically authorized the retaining of
such counsel or (ii) the parties to such suit include the Company or any such
director, officer, trustee or controlling person and such Underwriter and the
Company or such director, officer, trustee or controlling person have been
advised by such counsel that one or more legal defenses may be available to it
or them which may not be available to such Underwriter, in which case such
Underwriter shall not be entitled to assume the defense of such suit on behalf
of the Company or such director, officer, trustee or controlling person,
notwithstanding its obligation to bear the reasonable fees and expenses of such
counsel, it being understood, however, that such Underwriter shall not, in
connection with any one such suit or proceeding or separate but substantially
similar or related actions or proceedings 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 at any time for
all of the Company and any such director, officer, trustee or controlling
person, which firm shall be designated in writing by the Company. Such
Underwriter shall not be liable to indemnify any person for any settlement of
any such claim effected without such Underwriter's consent. This indemnity
agreement will be in addition to any liability which such Underwriter might
otherwise have.
13
(c) If recovery is not available under Section 6(a) or 6(b) hereof,
for any reason other than as specified therein, the parties entitled to
indemnification by the terms thereof shall be entitled to contribution for
liabilities and expenses, except to the extent that contribution is not
permitted under Section 11(f) of the Act. In determining the amount of
contribution to which the respective parties are entitled, there shall be
considered the relative benefits received by each party from the offering of the
Notes (taking into account the portion of the proceeds of the offering realized
by each), the parties' relative knowledge and access to information concerning
the matter with respect to which the claim was asserted, the opportunity to
correct and prevent any statement or omission, and any other equitable
considerations appropriate under the circumstances. The Company and the
Underwriters agree that it would not be equitable if the amount of such
contribution were determined by pro rata or per capita allocation (even if the
Underwriters were treated as one entity for such purpose). No Underwriters or
any person controlling such Underwriters shall be obligated to make contribution
hereunder which in the aggregate exceeds the total public offering price of the
Notes purchased by such Underwriters under this Agreement, less the aggregate
amount of any damages which such Underwriters and its controlling persons have
otherwise been required to pay in respect of the same claim or any substantially
similar claim. The Underwriters' obligations to contribute are several in
proportion to their respective underwriting obligations, and not joint.
7. Substitution of Underwriters.
----------------------------
If any Underwriter shall default in its obligation to purchase the
Notes which it has agreed to purchase hereunder and the aggregate principal
amount of such Notes which such defaulting Underwriter agreed but failed to
purchase does not exceed 10% of the aggregate principal amount of all the Notes,
the non-defaulting Underwriters may make arrangements satisfactory to the
Company for the purchase of the aggregate principal amount of such Notes by
other persons, including the non-defaulting Underwriters, but if no such
arrangements are made prior to the Time of Delivery, the non-defaulting
Underwriters shall be obligated severally in proportion to their respective
commitments hereunder, to purchase the Notes which such defaulting Underwriter
agreed but failed to purchase. If any Underwriter or Underwriters shall so
default and the aggregate principal amount of such Notes with respect to which
such default or defaults occur is more than 10% of the aggregate principal
amount of all the Notes and arrangements satisfactory to the non-defaulting
Underwriters and the Company for the purchase of such Notes by other persons are
not made within 48 hours after such default, this agreement will terminate.
If the non-defaulting Underwriter or Underwriters or substituted
underwriter or underwriters are required hereby or agree to take up all or part
of the Notes of the defaulting Underwriter as provided in this Section 7, (i)
the Company shall have the right to postpone the Time of Delivery for a period
of not more than five full business days, in order that the Company may effect
whatever changes may thereby be made necessary in the Registration Statement or
Prospectus or in any other documents or arrangements, and the Company agrees to
promptly file any amendments to the Registration Statement or supplements to the
Prospectus which may thereby be made
14
necessary, and (ii) the respective aggregate principal amount of Notes which the
non-defaulting Underwriters or substituted purchaser or purchasers shall
thereafter be obligated to purchase shall be taken as the basis of their
underwriting obligation for all purposes of this Agreement. Nothing herein
contained shall relieve any defaulting Underwriter of its liability to the
Company or the non-defaulting Underwriters for damages occasioned by its default
hereunder. Any termination of this Agreement pursuant to this Section 7 shall be
without liability on the part of the non-defaulting Underwriters or the Company,
other than as provided in Sections 6 and 9.
8. Survival of Indemnities, Representations, Warranties, etc.
----------------------------------------------------------
The respective indemnities, agreements, representations, warranties
and other statements of the Company and the several Underwriters, as set forth
in this Agreement or made by or on behalf of them, respectively, pursuant to
this Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter or any controlling person of any Underwriter, or the Company,
or any officer or director or controlling person of the Company, and shall
survive delivery of and payment for the Notes.
9. Termination.
-----------
If this Agreement shall be terminated by the Underwriters, 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
respective indemnities shall remain in full force and effect and the Company
will reimburse the Underwriter or such Underwriters as have so terminated this
Agreement with respect to themselves for all out-of-pocket expenses (including
the fees and disbursements of their counsel) reasonably incurred by them in
connection with the transactions contemplated by this Agreement.
10. Notices.
-------
In all dealings hereunder, you shall act on behalf of each of the
Underwriters, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made or
given by you.
All statements, requests, notices and agreements hereunder shall be in
writing, and (i) if to the Underwriters shall be delivered or sent by mail,
telex or facsimile transmission to you in care of Banc of America Securities
LLC, Bank of America Corporate Center, 100 North Tryon Street, Charlotte, NC
28255 (facsimile number: 704-388-9939), Attention: Investment Banking
Department - Transactions Advisory Group and Chase Securities Inc., 270 Park
Avenue, 8/th/ Floor, New York, NY 10017-2076, Attention: Peter Madonia
(facsimile number: 212-834-6170), as the Representatives; and (ii) if to the
Company shall be delivered or sent by mail, telex or facsimile transmission to
the Company in care of Reliant Energy, Incorporated, 1111 Louisiana, Houston,
Texas
15
77002, Attention: Assistant Treasurer. Any such statements, requests, notices or
agreements shall take effect upon receipt thereof.
11. Successors.
----------
This Agreement shall inure to the benefit of and be binding upon the
several Underwriters and the Company and their respective successors and the
directors, trustees, officers and controlling persons referred to in Section 6
of this Agreement. Nothing expressed or mentioned in this Agreement is intended
or shall be construed to give any person other than the persons mentioned in the
preceding sentence any legal or equitable right, remedy or claim under or in
respect of this Agreement, or any provisions herein contained; this Agreement
and all conditions and provisions hereof being intended to be, and being, for
the sole and exclusive benefit of such persons and for the benefit of no other
person; except that the representations, warranties, covenants, agreements and
indemnities of the Company contained in this Agreement shall also be for the
benefit of the person or persons, if any, who control any Underwriter within the
meaning of the Act or the Exchange Act, and the representations, warranties,
covenants, agreements and indemnities of the several Underwriters shall also be
for the benefit of each director of the Company, each person who has signed the
Registration Statement and the person or persons, if any, who control the
Company within the meaning of the Act.
12. Applicable Law.
--------------
This Agreement shall be governed by and construed in accordance with
the laws of the State of New York.
13. Counterparts.
------------
This Agreement may be executed by any one or more of the parties
hereto in any number of counterparts, each of which shall be deemed to be an
original, but all such respective counterparts shall together constitute one and
the same instrument.
16
If the foregoing is in accordance with your understanding, please sign
and return to us nine counterparts hereof, and upon the acceptance hereof by
you, on behalf of each of the Underwriters, this letter and such acceptance
hereof shall constitute a binding agreement between each of the Underwriters and
the Company. It is understood that your acceptance of this letter on behalf of
each of the Underwriters is pursuant to the authority set forth in a form of
Agreement among Underwriters, the form of which shall be submitted to the
Company for examination upon request, but without warranty on your part as to
the authority of the signers thereof.
Very truly yours,
Reliant Energy Resources Corp.
By: /s/ Stephen W. Naeve
-------------------------------
Name: Stephen W. Naeve
Title: Executive Vice President
Accepted as of the date hereof:
Banc of America Securities LLC
Chase Securities Inc.
Barclays Bank PLC
Commerzbank Capital Markets Corp.
First Union Securities, Inc.
TD Securities (USA) Inc.
c/o Banc of America Securities LLC
Chase Securities Inc., as the Representatives
By: Banc of America Securities LLC
By: /s/ Lily Chang
------------------------------
Name: Lily Chang
Title: Principal
By: Chase Securities Inc.
By: /s/ Robert Gelnaw
------------------------------
Name: Robert Gelnaw
Title: Vice President
17
SCHEDULE I
Principal Amount
Underwriters of Notes
------------ ------------
Banc of America Securities LLC.............................. $192,500,000
Chase Securities Inc........................................ 192,500,000
Barclays Capital Inc........................................ 41,250,000
Commerzbank Capital Markets Corp............................ 41,250,000
First Union Securities, Inc................................. 41,250,000
TD Securities (USA) Inc..................................... 41,250,000
Total.............................................. $550,000,000
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