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Title: |
Supplemental Indenture [No. 4] |
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Entities: |
Banc of America Securities LLC; Banc One Capital Markets, Inc.; Barclays Capital Inc.; Cede & Co.; CenterPoint Energy, Inc.; Citibank, NA; Citigroup Global Markets Inc.; Credit Suisse First Boston LLC; Deutsche Bank Securities Inc.; J.P. Morgan Securities Inc.; JPMorgan Chase Bank; Scotia Capital (USA) Inc.; Texas Genco Holdings, Inc.; Wachovia Capital Markets, LLC; Bank of America, NA |
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Date: |
2003 |
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Preview shows 31KB of 204KB total |
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$67 |
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#316165 |
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CENTERPOINT ENERGY, INC.
SUPPLEMENTAL INDENTURE NO. 4
2.875% Convertible Senior Notes due 2024
SUPPLEMENTAL INDENTURE No. 4, dated as of December 17, 2003, between
CENTERPOINT ENERGY, INC., a Texas corporation (the "Company"), and JPMORGAN
CHASE BANK, as Trustee (the "Trustee").
RECITALS
The Company has heretofore executed and delivered to the Trustee an
Indenture, dated as of May 19, 2003 (the "Original Indenture" and, as hereby
supplemented and amended, the "Indenture"), providing for the issuance from time
to time of one or more series of the Company's Securities.
Pursuant to the terms of the Indenture, the Company desires to provide
for the establishment of one new series of Securities to be designated as the
"2.875% Convertible Senior Notes due 2024 (the "Notes"), the form and substance
of such Notes and the terms, provisions and conditions thereof to be set forth
as provided in the Original Indenture and this Supplemental Indenture No. 4.
Section 301 of the Original Indenture provides that various matters
with respect to any series of Securities issued under the Indenture may be
established in an indenture supplemental to the Indenture.
Subparagraph (7) of Section 901 of the Original Indenture provides that
the Company and the Trustee may enter into an indenture supplemental to the
Indenture to establish the form or terms of Securities of any series as
permitted by Sections 201 and 301 of the Original Indenture.
For and in consideration of the premises and the issuance of the series
of Securities provided for herein, it is mutually covenanted and agreed, for the
equal and proportionate benefit of the Holders of the Securities of such series,
as follows:
ARTICLE I
Relation to Indenture; Additional Definitions
Section 101 Relation to Indenture. This Supplemental Indenture No. 4
constitutes an integral part of the Original Indenture.
1
{PAGE}
Section 102 Additional Definitions. For all purposes of this
Supplemental Indenture No. 4:
Capitalized terms used herein shall have the meaning specified
herein or in the Original Indenture, as the case may be.
"Additional Amounts" has the meaning provided in Section
204(f) hereof.
"Affiliate" of, or a Person "affiliated" with, a specific
Person means a Person that directly, or indirectly through one or more
intermediaries, controls, or is controlled by, or is under common
control with, the Person specified. For purposes of this definition,
"control" (including the terms "controlled by" and "under common
control with") means the possession, direct or indirect, of the power
to direct or cause the direction of the management and policies of a
Person, whether through the ownership of voting shares, by contract, or
otherwise.
"Applicable Stock Price" has the meaning provided in Section
802(a)(2).
"Beneficial Owner" shall be determined in accordance with Rule
13d-3 promulgated by the Commission under the Exchange Act.
"Bid Solicitation Agent" has the meaning provided in Section
212 hereof.
"Business Day" means, with respect to any Note, any day other
than a Saturday, a Sunday or a day on which banking institutions in The
City of New York are authorized or required by law, regulation or
executive order to close. If any Interest Payment Date, Maturity Date,
Redemption Date, Purchase Date or Fundamental Change Purchase Date of a
Note falls on a day that is not a Business Day, the required payment
will be made on the next succeeding Business Day with the same force
and effect as if made on the relevant date that the payment was due and
no interest will accrue on such payment for the period from and after
the Interest Payment Date, Maturity Date, Redemption Date, Purchase
Date or Fundamental Change Purchase Date, as the case may be, to the
date of that payment on the next succeeding Business Day. The
definition of "Business Day" in this Supplemental Indenture No. 4 and
the provisions described in the preceding sentence shall supersede the
definition of Business Day in the Original Indenture and Section 113 of
the Original Indenture.
"Capital Lease" means a lease that, in accordance with
accounting principles generally accepted in the United States of
America, would be recorded as a capital lease on the balance sheet of
the lessee.
"Cash Settlement" has the meaning provided in Section
802(a)(2).
"CenterPoint Houston" means CenterPoint Energy Houston
Electric, LLC, a Texas limited liability company, and any successor
thereto; provided that at any given time, there shall not be more than
one such successor.
2
{PAGE}
"CERC" means CenterPoint Energy Resources Corp., a Delaware
corporation, and any successor thereto; provided that at any given
time, there shall not be more than one such successor.
"Combined Settlement" has the meaning provided in Section
802(a)(3).
"Common Equity" of any Person means capital stock of such
Person that is generally entitled to (1) vote in the election of
directors of such Person or (2) if such Person is not a corporation,
vote or otherwise participate in the selection of the governing body,
partners, managers or others that will control the management or
policies of such Person.
"Common Stock" means the common stock, par value $.01 per
share, of the Company.
"Company Credit Facility" means that certain Credit Agreement,
dated as of October 7, 2003, among the Company, as borrower, the banks
party thereto, Citibank, N.A., as syndication agent, Deutsche Bank AG,
New York Branch, Credit Suisse First Boston and Bank of America, N.A.,
as co-documentation agents, and JPMorgan Chase Bank, as administration
agent.
"Company Notice" has the meaning provided in Section 701
hereof.
"Company Notice Date" has the meaning provided in Section 701
hereof.
"Contingent Interest" has the meaning provided in Section
204(a) hereof.
"Continuing Director" means a director who either was a member
of the Board of Directors on December 12, 2003 or who becomes a member
of the Board of Directors subsequent to that date and whose
appointment, election or nomination for election by the Company's
shareholders is duly approved by a majority of the Continuing Directors
on the Board of Directors at the time of such approval, either by a
specific vote or by approval of the proxy statement issued by the
Company on behalf of the Board of Directors in which such individual is
named as nominee for director.
"Conversion Agent" means the office or agency designated by
the Company where Notes may be presented for conversion. The Trustee
will initially act as Conversion Agent.
"Conversion Date" has the meaning provided in Section 802(a)
hereof.
"Conversion Obligation" has the meaning provided in Section
801.
"Conversion Price" means $1,000 divided by the Conversion
Rate.
"Conversion Rate" has the meaning provided in Section 801
hereof.
"Conversion Retraction Period" has the meaning provided in
Section 802(b)(4).
3
{PAGE}
"CPDI Regulations" has the meaning provided in Section 213
hereof.
"Distributed Assets or Securities" has the meaning provided in
Section 806(c) hereof.
"Distribution Compliance Period" means the period which
expires immediately after one year following the later of: (a) the
commencement of the offering of the Notes to Persons other than
"distributors" (as defined in Regulation S) in reliance upon Regulation
S; and (b) the date of closing of the offering of the Notes.
"Equity Interests" means any capital stock, partnership, joint
venture, member or limited liability or unlimited liability company
interest, beneficial interest in a trust or similar entity or other
equity interest or investment of whatever nature.
"ex-date" has the meaning provided in the definition of
Spin-off Market Price.
"Fair Market Value" means the amount which a willing buyer
would pay a willing seller in an arm's length transaction.
A "Fundamental Change" shall be deemed to have occurred at
such time after the original issuance of the Notes as any of the
following occurs: (a) the Common Stock or other common stock into which
the Notes are convertible is neither listed for trading on a United
States national securities exchange nor approved for trading on the
Nasdaq National Market or another established automated
over-the-counter trading market in the United States; (b) a "person" or
"group" within the meaning of Section 13(d) of the Exchange Act, other
than the Company, any Subsidiary of the Company or any employee benefit
plan of the Company or any such Subsidiary, files a Schedule TO (or any
other schedule, form or report under the Exchange Act) disclosing that
such person or group has become the direct or indirect ultimate
Beneficial Owner of Common Equity of the Company representing more than
50% of the voting power of the Company's Common Equity; (c)
consummation of any share exchange, consolidation or merger of the
Company pursuant to which the Common Stock will be converted into cash,
securities or other property or any sale, lease or other transfer (in
one transaction or a series of transactions) of all or substantially
all of the consolidated assets of the Company and its Subsidiaries,
taken as a whole, to any Person (other than the Company or one or more
of the Company's Subsidiaries); provided, however, that a transaction
where the holders of the Company's Common Equity immediately prior to
such transaction own, directly or indirectly, more than 50% of the
aggregate voting power of all classes of Common Equity of the
continuing or surviving corporation or transferee immediately after
such event shall not be a Fundamental Change; or (d) Continuing
Directors cease to constitute at least a majority of the Board of
Directors; provided, however, that a Fundamental Change shall not be
deemed to have occurred in respect of any of the foregoing if either
(i) the Last Reported Sale Price per share of Common Stock for any five
Trading Days within the period of 10 consecutive Trading Days ending
immediately before the later of the Fundamental Change or the public
announcement thereof shall equal or exceed 105% of the Conversion Price
of the Notes in effect immediately before the Fundamental Change or the
public announcement thereof; or (ii) at least 90% of the consideration
4
{PAGE}
(excluding cash payments for fractional shares) in the transaction or
transactions constituting the Fundamental Change consists of shares of
Capital Stock traded on a national securities exchange or quoted on the
Nasdaq National Market (or which shall be so traded or quoted when
issued or exchanged in connection with such Fundamental Change) (such
securities being referred to as "Publicly Traded Securities") and as a
result of such transaction or transactions the Notes become convertible
into such Publicly Traded Securities (excluding cash payments for
fractional shares). For purposes of the foregoing, the term "Capital
Stock" of any Person means any and all shares (including ordinary
shares or American Depositary Shares), interests, participations or
other equivalents however designated of corporate stock or other equity
participations, including partnership interests, whether general or
limited, of such Person and any rights (other than debt securities
convertible or exchangeable into an equity interest), warrants or
options to acquire an equity interest in such Person.
"Fundamental Change Purchase Date" has the meaning provided in
Section 501 hereof.
"Fundamental Change Purchase Notice" has the meaning provided
in Section 503 hereof.
"Fundamental Change Purchase Price" has the meaning provided
in Section 501 hereof.
"Global Notes" has the meaning provided in Section 208(a)
hereof.
"Indebtedness," as applied to any Person, means bonds,
debentures, notes and other instruments or arrangements representing
obligations created or assumed by any such Person, in respect of: (i)
obligations for money borrowed (other than unamortized debt discount or
premium); (ii) obligations evidenced by a note or similar instrument
given in connection with the acquisition of any business, properties or
assets of any kind; (iii) obligations as lessee under a Capital Lease;
and (iv) any amendments, renewals, extensions, modifications and
refundings of any such indebtedness or obligations listed in clause
(i), (ii) or (iii) above. All indebtedness of such type secured by a
lien upon property owned by such Person, although such Person has not
assumed or become liable for the payment of such indebtedness, shall
also for all purposes hereof be deemed to be indebtedness of such
Person. All indebtedness for borrowed money incurred by any other
Persons which is directly guaranteed as to payment of principal by such
Person shall for all purposes hereof be deemed to be indebtedness of
any such Person, but no other contingent obligation of such Person in
respect of indebtedness incurred by any other Persons shall for any
purpose be deemed to be indebtedness of such Person.
"Initial Purchasers" means Citigroup Global Markets Inc.,
Deutsche Bank Securities Inc., Banc of America Securities LLC, Credit
Suisse First Boston LLC, J.P. Morgan Securities Inc., Wachovia Capital
Markets, LLC, ABN AMRO Rothschild LLC, Banc One Capital Markets, Inc.,
Barclays Capital Inc., Merrill Lynch, Pierce, Fenner & Smith
Incorporated, Commerzbank Aktiengesellschaft and Scotia Capital (USA)
Inc., as
5
{PAGE}
initial purchasers in the offering of the Notes pursuant to the
Offering Memorandum dated December 12, 2003 relating thereto.
"Interest Payment Date" has the meaning provided in Section
204(a) hereof.
"Issue Date" has the meaning provided in Section 204(a)
hereof.
"Last Reported Sale Price" of Common Stock on any date means
the closing sale price per share (or, if no closing sale price is
reported, the average of the bid and ask prices or, if more than one in
either case, the average of the average bid and the average ask prices)
on that date as reported in composite transactions for the principal
U.S. securities exchange on which the Common Stock is traded or, if the
Common Stock is not listed on a U.S. national or regional securities
exchange, as reported by the Nasdaq National Market. If the Common
Stock is not listed for trading on a U.S. national or regional
securities exchange and not reported by the Nasdaq National Market on
the relevant date, the "Last Reported Sale Price" shall be the last
quoted bid price for Common Stock in the over-the-counter market on the
relevant date as reported by the National Quotation Bureau or similar
organization. If the Common Stock is not so quoted, the "Last Reported
Sale Price" will be the average of the mid-point of the last bid and
ask prices for the Common Stock on the relevant date from each of at
least three nationally recognized independent investment banking firms
selected by the Company for this purpose.
"Market Price" means the average of the Last Reported Sale
Prices of Common Stock for the 20 Trading Day period ending on the
applicable date of determination (if the applicable date of
determination is a Trading Day or, if not, then on the last Trading Day
prior to such applicable date of determination), appropriately adjusted
to take into account the occurrence, during the period commencing on
the first of the Trading Days during such 20 Trading Day period and
ending on the applicable date of determination, of any event that would
result in an adjustment of the Conversion Rate pursuant to the
provisions hereof.
"Maturity Date" has the meaning provided in Section 203
hereof.
"Non-U.S. Person" means persons other than "U.S. persons" as
defined in Regulation S under the Securities Act.
"Notes" has the meaning provided in the second paragraph of
the Recitals hereof.
"Original Indenture" has the meaning provided in the first
paragraph of the Recitals hereof.
"Partial Cash Amount" has the meaning provided in Section
802(a)(3).
"Purchase Agreement" means that certain Purchase Agreement
dated December 12, 2003 between the Company and the Initial Purchasers
which provides for the sale by the Company to the Initial Purchasers of
the Notes.
6
{PAGE}
"Purchase Date" has the meaning provided in Section 601(a)
hereof.
"Purchase Notice" has the meaning provided in Section
601(a)(i) hereof.
"Purchase Price" has the meaning provided in paragraph 8 of
the Notes.
"Qualified Institutional Buyer" has the meaning assigned to
such term in Rule 144A under the Securities Act.
"Redemption Price" has the meaning provided in paragraph 6 of
the Notes.
"Registrable Securities" has the meaning assigned to such term
in the Registration Rights Agreement.
"Registration Default" has the meaning assigned to such term
in the Registration Rights Agreement.
"Registration Rights Agreement" means that certain
Registration Rights Agreement, dated as of December 17, 2003, between
the Company and the Initial Purchasers.
"Regular Record Date" has the meaning provided in Section
204(a) hereof.
"Regulation S" means Regulation S under the Securities Act.
"Resale Restriction Termination Date" has the meaning provided
in Section 902(b).
"Restricted Common Stock Legend" means the legend labeled as
such, substantially in the form set forth in Exhibit H hereof.
"Rights Plan" means that certain Rights Agreement dated
January 1, 2002, between the Company and JPMorgan Chase Bank, as rights
agent, as amended from time to time.
"Settlement Notice Period" has the meaning provided in Section
802(b)(3).
"Share Settlement" has the meaning provided in Section
802(a)(1).
"Shelf Registration Statement" has the meaning assigned to
such term in the Registration Rights Agreement.
"Significant Subsidiary" means CERC, CenterPoint Houston and
Texas Genco, and any other Subsidiary which, at the time of the
creation of a pledge, mortgage, security interest or other lien upon
any Equity Interests of such Subsidiary, has consolidated gross assets
(having regard to the Company's beneficial interest in the shares, or
the like, of that Subsidiary) that represents at least 25% of the
Company's consolidated gross assets appearing in the Company's most
recent audited consolidated financial statements.
7
{PAGE}
"Spin-off Market Price" per share of Common Stock of the
Company or the Equity Interests in a subsidiary or other business unit
of the Company on any day means the average of the daily Last Reported
Sale Price for the 10 consecutive Trading Days commencing on and
including the fifth Trading Day after the "ex date" with respect to the
issuance or distribution requiring such computations. As used herein,
the term "ex date," when used with respect to any issuance or
distribution, shall mean the first date on which the security trades
regular way on the New York Stock Exchange or such other national
regional exchange or market in which the security trades without the
right to receive such issuance or distribution.
"Subsidiary" of any entity means any corporation, partnership,
joint venture, limited liability company, trust or estate of which (or
in which) more than 50% of (i) the issued and outstanding capital stock
or Equity Interests having ordinary voting power to elect a majority of
the Board of Directors or comparable governing body of such corporation
or other entity (irrespective of whether at the time capital stock of
any other class or classes of such corporation or other entity shall or
might have voting power upon the occurrence of any contingency), (ii)
the interest in the capital or profits of such limited liability
company, partnership, joint venture or other entity, or (iii) the
beneficial interest in such trust or estate is at the time directly or
indirectly owned or controlled by such entity, by such entity and one
or more of its other Subsidiaries, or by one or more of such entity's
other Subsidiaries.
"Texas Genco" means Texas Genco Holdings, Inc., a Texas
corporation, and any successor thereto; provided that at any given
time, there shall not be more than one such successor.
"Trading Day" means (a) if the applicable security is listed,
admitted for trading or quoted on the New York Stock Exchange, the
Nasdaq National Market or another national security exchange, a day on
which the New York Stock Exchange, the Nasdaq National Market or
another national security exchange is open for business or (b) if the
applicable security is not so listed, admitted for trading or quoted, a
Business Day.
"Trading Price" of the Notes on any date of determination
means the average of the secondary market bid quotations per $1,000
principal amount of Notes obtained by the Bid Solicitation Agent for
$10 million principal amount of Notes at approximately 4:00 p.m., New
York City time, on such determination date from three unaffiliated,
nationally recognized securities dealers the Company selects, provided
that if: (i) at least three such bids are not obtained by the Bid
Solicitation Agent, or (ii) in the Company's reasonable judgment, the
bid quotations are not indicative of the secondary market value of the
Notes, then the Trading Price of the Notes will equal (a) the then
applicable Conversion Rate of the Notes multiplied by (b) the average
of the Last Reported Sale Prices of Common Stock for the five Trading
Days ending on such determination date, appropriately adjusted to take
into account the occurrence, during the period commencing on the first
of such Trading Days during such five Trading Day period and ending on
such determination date, of any event that would result in an
adjustment of the Conversion Rate pursuant to the provisions hereof.
8
{PAGE}
"Transfer Restricted Securities" means the Registrable
Securities under the Registration Rights Agreement.
All references herein to Articles and Sections, unless
otherwise specified, refer to the corresponding Articles and Sections
of this Supplemental Indenture No. 4.
The terms "herein," "hereof," "hereunder" and other words of
similar import refer to this Supplemental Indenture No. 4.
ARTICLE II
The Series of Securities
Section 201 Title of the Securities. The Notes shall be designated as
the "2.875% Convertible Senior Notes due 2024." The Notes shall be treated for
all purposes under the Indenture as a single class or series of Securities.
Section 202 Limitation on Aggregate Principal Amount. The Trustee shall
authenticate and deliver Notes for original issue on the Issue Date in the
aggregate principal amount of $255,000,000 upon a Company Order for the
authentication and delivery thereof and satisfaction of Sections 301 and 303 of
the Original Indenture. Such order shall specify the amount of the Notes to be
authenticated, the date on which the original issue of Notes is to be
authenticated and the name or names of the initial Holder or Holders. The
aggregate principal amount of Notes that may be outstanding shall not exceed
$255,000,000.
Section 203 Stated Maturity. The stated maturity of the Notes shall be
January 15, 2024 (the "Maturity Date"). The principal amount of the Notes shall
be payable on the Maturity Date unless the Notes are earlier redeemed, purchased
or converted in accordance with the terms of the Indenture.
Section 204 Interest and Interest Rates.
(a) The Notes shall bear interest at a rate of 2.875% per year,
from December 17, 2003 (the "Issue Date") or from the most recent Interest
Payment Date (as defined below) to which payment has been made or duly provided
for, payable semiannually in arrears on January 15 and July 15 of each year
(each an "Interest Payment Date"), beginning July 15, 2004 to the persons in
whose names the Notes are registered at the close of business on January 1 and
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