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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date
of Report (Date of earliest event reported): May 12, 2008
CENTERPOINT ENERGY RESOURCES CORP.
(Exact name of registrant as specified in its charter)
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Delaware
(State or other jurisdiction
of incorporation)
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1-13265
(Commission File Number)
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76-0511406 (IRS Employer Identification No.) |
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1111 Louisiana
Houston, Texas
(Address of principal executive offices)
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77002
(Zip Code) |
Registrants telephone number, including area code: (713) 207-1111
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy
the filing obligation of the registrant under any of the following provisions (see General
Instruction A.2. below):
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
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Item 1.01 |
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Entry into a Material Definitive Agreement. |
On May 12, 2008, CenterPoint Energy Resources Corp. (CERC) entered into an Underwriting
Agreement, dated as of May 12, 2008 (the Underwriting Agreement), among CERC and the several
Underwriters named in Schedule I to the Underwriting Agreement, relating to the underwritten public
offering of $300,000,000 aggregate principal amount of CERCs 6.00% Senior Notes due 2018 (the
Notes). The offering is being made pursuant to CERCs registration statement on Form S-3
(Registration No. 333-145223).
The Notes are being issued pursuant to the Indenture, dated as of February 1, 1998, between
CERC (formerly NorAm Energy Corp.) and The Bank of New York Trust Company, National Association
(successor to JPMorgan Chase Bank, National Association (formerly Chase Bank of Texas, National
Association)), as trustee (the Trustee), as amended by Supplemental Indenture No. 13, dated as of
May 15, 2008, between CERC and the Trustee. The terms of the Notes are further described in the
prospectus supplement of CERC dated May 12, 2008, together with the related prospectus dated August
20, 2007, as filed with the Securities and Exchange Commission under Rule 424(b)(2) of the
Securities Act of 1933 on May 13, 2008, which description is incorporated herein by reference.
A copy of the Underwriting Agreement, the Indenture and the form of Supplemental Indenture No.
13 (including the form of Note) have been filed as Exhibits 1.1, 4.1 and 4.2, respectively, to this
report and are incorporated by reference herein.
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Item 9.01 |
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Financial Statements and Exhibits. |
The exhibits listed below are filed herewith. |
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(d) |
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Exhibits. |
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1.1 |
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Underwriting Agreement dated as of May 12, 2008, among
CenterPoint Energy Resources Corp. and the several Underwriters named in
Schedule I thereto. |
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4.1 |
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Indenture dated as of February 1, 1998, between CenterPoint
Energy Resources Corp. (formerly NorAm Energy Corp.) and The Bank of New York
Trust Company, National Association (successor to JPMorgan Chase Bank, National
Association (formerly Chase Bank of Texas, National Association)), as trustee
(the Indenture) (incorporated by reference to Exhibit 4.1 to CERCs Current
Report on Form 8-K dated February 5, 1998). |
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4.2 |
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Form of Supplemental Indenture No. 13 dated as of May 15, 2008,
to the Indenture between CenterPoint Energy Resources Corp. and The Bank of New
York Trust Company, National Association, as trustee. |
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4.3 |
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Form of Note (included in Exhibit 4.2 hereto). |
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5.1 |
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Opinion of Baker Botts L.L.P. |
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23.1 |
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Consent of Baker Botts L.L.P. (included in Exhibit 5.1 hereto). |
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly
caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
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CENTERPOINT ENERGY RESOURCES CORP. |
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Date: May 15, 2008
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By: |
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/s/ Walter L. Fitzgerald |
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Walter L. Fitzgerald |
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Senior Vice President and |
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Chief Accounting Officer |
EXHIBIT INDEX
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EXHIBIT |
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NUMBER |
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EXHIBIT DESCRIPTION |
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1.1 |
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Underwriting Agreement dated as of May 12, 2008, among
CenterPoint Energy Resources Corp. and the several
Underwriters named in Schedule I thereto. |
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4.1 |
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Indenture dated as of February 1, 1998, between
CenterPoint Energy Resources Corp. (formerly NorAm Energy
Corp.) and The Bank of New York Trust Company, National
Association (successor to JPMorgan Chase Bank, National
Association (formerly Chase Bank of Texas, National
Association)), as trustee (the Indenture) (incorporated by
reference to Exhibit 4.1 to CERCs Current Report on Form 8-K
dated February 5, 1998). |
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4.2 |
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Form of Supplemental Indenture No. 13 dated as of
February 15, 2008, to the Indenture between CenterPoint Energy
Resources Corp. and The Bank of New York Trust Company,
National Association, as trustee. |
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4.3 |
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Form of Note (included in Exhibit 4.2 hereto). |
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5.1 |
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Opinion of Baker Botts L.L.P. |
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23.1 |
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Consent of Baker Botts L.L.P. (included in Exhibit 5.1
hereto). |
exv1w1
Exhibit-1.1
CENTERPOINT ENERGY RESOURCES CORP.
$300,000,000 6.00% Senior Notes due 2018
Underwriting Agreement
May 12, 2008
Barclays Capital Inc.
200 Park Avenue
New York, New York 10166
Credit Suisse Securities (USA) LLC
Eleven Madison Avenue
New York, New York 10010
Lehman Brothers Inc.
745 Seventh Avenue
New York, New York 10019
c/o Barclays Capital Inc.
200 Park Avenue
New York, New York 10166
as the Representatives of the several Underwriters
Ladies and Gentlemen:
CenterPoint
Energy Resources Corp., a Delaware corporation (the Company), confirms, subject
to the terms and conditions stated herein, its agreement to issue and sell to the Underwriters
named in Schedule I hereto (the Underwriters) $300,000,000 aggregate principal amount of its
6.00% Senior Notes due 2018 (the Notes) to be issued pursuant to an Indenture dated as of
February 1, 1998 (the Base Indenture) between the Company and The Bank of New York Trust Company,
National Association (successor to JPMorgan Chase Bank, National Association), as trustee (the
Trustee) and a Supplemental Indenture No. 13 to the Base Indenture dated as of May 15, 2008 (the
Supplemental Indenture and, together with the Base Indenture and any amendments or supplements
thereto, the Indenture), between the Company and the Trustee. The Company understands that the
several Underwriters propose to offer the Notes for sale upon the terms and conditions contemplated
by this Agreement and by the documents listed in Schedule III (such documents herein called the
Pricing Disclosure Package).
1. Representations and Warranties of the Company.
(a) The Company represents and warrants to, and agrees with, each of the Underwriters,
on and as of the date hereof and the Closing Date (as defined in Section 2) that:
(i) A registration statement on Form S-3 with respect to the Notes and other securities
with an aggregate maximum initial public offering price of $900,000,000 (File No. 333-145223),
copies of which have been delivered to the Underwriters, has been prepared and filed by the Company
with the Securities and Exchange Commission (the
Commission). Such registration statement,
including a prospectus, has been declared effective under the Securities Act of 1933, as amended
(the 1933 Act), and no stop order suspending its effectiveness has been issued and no proceeding
for that purpose or pursuant to Section 8A of the 1933 Act against the Company or related to the
offering has been initiated or, to the best knowledge of the Company, threatened by the Commission.
The term Registration Statement means such registration statement, as deemed revised pursuant to
Rule 430B(f)(l) under the 1933 Act on the date of such registration statements effectiveness for
purposes of Section 11 of the 1933 Act, as such section applies to the Company and the Underwriters
for the Notes pursuant to Rule 430B(f)(2) under the 1933 Act
(the Effective Date). The base
prospectus included in the Registration Statement relating to the Notes and certain other issues of
debt securities (exclusive of any supplement filed pursuant to Rule 424) is herein called the
Basic Prospectus. The Basic Prospectus as amended and supplemented by a preliminary prospectus
supplement dated May 12, 2008 relating to the Notes immediately prior to the Applicable Time (as
defined below) is hereinafter called the Preliminary
Prospectus. The Company proposes to file
together with the Basic Prospectus and pursuant to Rule 424 under the 1933 Act a prospectus
supplement specifically relating to the Notes and reflecting the terms of the Notes and plan of
distribution arising from this Agreement (herein called the Pricing Supplement) and has
previously advised the Underwriters of all the information to be set forth therein. The term
Prospectus means the Basic Prospectus together with the Pricing Supplement, as first filed with
the Commission pursuant to Rule 424.
Any reference herein to the Basic Prospectus, the Preliminary Prospectus or the 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 1934 Act), on or before the date of such Basic Prospectus, Preliminary Prospectus or
Prospectus, as applicable; any reference herein to the terms amend, amendment or supplement
with respect to the Basic Prospectus, the Preliminary Prospectus or Prospectus shall be deemed to
refer to and include, without limitation, the filing of any document under the 1934 Act deemed to
be incorporated therein by reference after the date of such Basic Prospectus, Preliminary
Prospectus or Prospectus.
For purposes of this Agreement, the Applicable Time is 2:30 p.m. (New York Time) on
the date of this Agreement.
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(ii) The Registration Statement, the Permitted Free Writing Prospectus (as defined in
Section 3(a)), the Preliminary Prospectus and the Prospectus conform, and any amendments or
supplements thereto will conform, in all material respects to the requirements of the 1933 Act and
the Trust Indenture Act of 1939, as amended (the
TIA), and the rules and regulations of the
Commission under the 1933 Act and the TIA; and (A) the Registration Statement will not, as of the
Effective Date, contain an 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, and (B)
(i) the Pricing Disclosure Package does not as of the Applicable Time, (ii) the Prospectus and any
amendment or supplement thereto will not, as of their dates, and (iii) the Prospectus, as it may be
amended or supplemented pursuant to Section 4 hereof, as of the Closing Date will not, contain an
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, in the light of the circumstances under which they
were made, not misleading; provided, however, that this representation and warranty shall not apply
to: (A) any statements or omissions made in reliance upon and in conformity with any information
furnished in writing by, or through the Representatives on behalf of, any Underwriter for use
therein, and (B) any Form T-l Statement of Eligibility and Qualification included as an exhibit to
the Registration Statement;
(iii) Each document filed or to be filed pursuant to the 1934 Act and incorporated by
reference, or deemed to be incorporated by reference in the Preliminary Prospectus or the
Prospectus (including, without limitation, any document to be filed pursuant to the 1934 Act which
will be incorporated by reference in the Prospectus) conformed or, when so filed, will conform in
all material respects to the requirements of the 1934 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) Any Permitted Free Writing Prospectus listed on Schedule III hereto does not include
anything that conflicts with the information contained or incorporated by reference in the
Registration Statement, the Preliminary Prospectus or the Prospectus;
(v) At the determination date for purposes of the Notes within the meaning of Rule
164(h) under the 1933 Act, the Company was not an ineligible issuer as defined in Rule 405 under
the 1933 Act. The Company has been since the time of the initial filing of the Registration
Statement and continues to be eligible to use Form S-3 under the 1933 Act;
(vi) The Company has been duly incorporated and is validly
existing in good standing under the laws of the State of Delaware, with corporate power and
authority to own its properties and conduct its business as described in the Pricing Disclosure
Package and the Prospectus;
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(vii) Each Significant Subsidiary (as defined in Regulation S-X
under the 1933 Act) of the Company has been duly formed and is validly existing in good standing
under the laws of the jurisdiction of its formation, with power and authority (corporate and other)
to own its properties and conduct its business as described in the Pricing Disclosure Package and
the Prospectus; and each Significant Subsidiary of the Company is duly qualified to do business as
a foreign corporation, limited partnership or limited liability company in good standing in all
other jurisdictions in which its ownership or lease of property or the conduct of its business
requires such qualification; all of the issued and outstanding ownership interests of each
Significant Subsidiary of the Company have been duly authorized and validly issued in accordance
with the organizational documents of such Significant Subsidiary; and the ownership interests of
each Significant Subsidiary owned by the Company, directly or through subsidiaries, are owned free
from liens, encumbrances and defects;
(viii) This Agreement has been duly authorized, executed and delivered by the Company;
(ix) The Notes and the Indenture have been duly authorized by the Company and, when the
Supplemental Indenture has been duly executed and delivered by the Company in accordance with its
terms, and assuming the valid execution and delivery thereof by the Trustee, the Indenture will
constitute, and, in the case of the Notes, when they are delivered by the Company, paid for
pursuant to this Agreement and the Indenture and duly authenticated and delivered by the Trustee,
the Notes will, on the Closing Date, constitute, valid and legally binding obligations of the
Company, enforceable in accordance with their respective terms, subject, as to enforcement, to
bankruptcy, insolvency, fraudulent transfer, 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 delivered by
the Company, paid for pursuant to this Agreement and the Indenture 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 Pricing Disclosure Package and the Prospectus;
(x) 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 to which the Company or
any subsidiary is a party or by which the Company or any subsidiary is bound or to which any of the
property or assets of the Company or any subsidiary is subject, which conflict, breach, violation,
or default would individually, or in the aggregate, have a material adverse effect on the financial
condition, business or results of operations of the Company and its subsidiaries, taken as a whole
(Material Adverse Effect); and (b) will not result in any violation of the provisions of the
Certificate of Incorporation or By-laws or other organizational documents of the Company, the
charter, by-laws or other organizational documents of any subsidiary of the Company or any existing
statute or any order, rule or
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regulation of any court or governmental agency or body having jurisdiction over the Companys
or any of its or its subsidiaries properties;
(xi) The Commission has issued an order under the 1933 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 issuance 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;
(xii) The Company and its subsidiaries possess certificates,
authorities or permits issued by appropriate governmental agencies or bodies necessary to conduct
the business now operated by them and have not received any notice of proceedings relating to the
revocation or modification of any such certificate, authority or permit that, if determined
adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a
Material Adverse Effect;
(xiii) Except as disclosed in the Pricing Disclosure Package and the Prospectus, neither the
Company nor any of its subsidiaries is in violation of any statute, any rule, regulation, decision
or order of any governmental agency or body or any court, domestic or foreign, relating to the use,
disposal or release of hazardous or toxic substances or relating to the protection or restoration
of the environment or human exposure to hazardous or toxic substances (collectively, Environmental
Laws), owns or operates any real property contaminated with any substance that is subject to any
Environmental Laws, is liable for any off-site disposal or contamination pursuant to any
Environmental Laws, or is subject to any claim relating to any Environmental Laws, which violation,
contamination, liability or claim would individually or in the aggregate have a Material Adverse
Effect; and the Company is not aware of any pending investigation which has a reasonable
possibility of leading to such a claim;
(xiv) Except as disclosed in the Pricing Disclosure Package and the Prospectus, there are
no pending actions, suits or proceedings against or affecting the Company, any of its subsidiaries
or any of their respective properties that, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a Material Adverse Effect, or would
materially and adversely affect the ability of the Company to perform its obligations under the
Indenture or this Agreement, or which are otherwise material in the context of the sale of the
Notes; and no such actions, suits or proceedings are threatened or, to the Companys knowledge,
contemplated;
(xv) The financial statements included or incorporated by reference in the Registration
Statement, the Pricing Disclosure Package and the Prospectus present fairly the financial position
of the Company and its consolidated subsidiaries as of the dates shown and their results of
operations and cash flows for the
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periods shown, and, except as otherwise disclosed in the Registration Statement, the Pricing
Disclosure Package and the Prospectus, such financial statements have been prepared in conformity
with the generally accepted accounting principles in the United States applied on a consistent
basis; and
(xvi) Since the date of the latest audited financial statements
incorporated by reference in the Registration Statement, the Pricing Disclosure Package and the
Prospectus and except as disclosed in the Registration Statement, the Pricing Disclosure Package
and the Prospectus there has been no material adverse change in the business, financial condition,
prospects or results of operations of the Company and its subsidiaries taken as a whole, and there
has been no dividend or distribution of any kind declared, paid or made by the Company on any class
of its equity interests.
(xvii) The Company maintains a system of internal accounting controls and maintains
disclosure controls and procedures in conformity with the requirements of the 1934 Act and is
otherwise in compliance in all material respects with the requirements of the Sarbanes-Oxley Act of
2002 and the rules and regulations promulgated in connection therewith.
(xviii) Deloitte & Touche LLP, who have certified certain
financial statements of the Company and its subsidiaries, are an independent registered public
accounting firm with respect to the Company and its subsidiaries within the applicable rules and
regulations adopted by the Commission and the Public Accounting Oversight Board (United States) and
as required by the 1933 Act.
(xix) The Company is not, and after giving effect to the offering and sale of the Notes and
the application of the proceeds thereof as described in the Prospectus under the caption Use of
Proceeds, will not be an investment company as such term is defined in the Investment Company
Act of 1940, as amended (the Investment Company Act).
2. Sale and Delivery.
(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 8 hereof) at a price equal to 98.521% of the principal amount
thereof, plus accrued interest, if any, from May 15, 2008 to the Closing Date.
(b) The Notes to be purchased by each Underwriter hereunder will be
represented by one or more registered 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 Barclays Capital Inc.,
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,
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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 Closing Date by the
Company to Barclays Capital Inc., by causing DTC to credit the Notes to the account of Barclays
Capital Inc., at DTC. The Company will cause the global certificates representing the Notes to be
made available to Barclays Capital Inc., Credit Suisse Securities (USA) LLC and Lehman Brothers
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 Closing Date 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 May 15, 2008 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 Closing Date.
(c) The documents to be delivered on the Closing Date by or on behalf of the parties
hereto pursuant to Section 6 hereof, including the cross-receipt for the Notes and any additional
certificates requested by the Underwriters pursuant to Section 6(h) 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 on the
Closing Date. 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 New York
Business Day next preceding the Closing Date, 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.
For the purposes of this Section 2, New York Business Day shall mean each Monday, Tuesday,
Wednesday, Thursday and Friday which is not a day on which banking institutions in New York are
generally authorized or obligated by law or executive order to close.
3. Free Writing Prospectuses.
(a) The Company represents and agrees that, without the prior consent
of the Representatives, it has not made and will not make any offer relating to the Notes
that would constitute a free writing prospectus as defined in Rule 405 under the 1933
Act, other than a Permitted Free Writing Prospectus; each Underwriter, severally and not
jointly, represents and agrees that, without the prior consent of the Company and the
Representatives, it has not made and will not make any offer relating to the Notes that
would constitute a free writing prospectus as defined in Rule 405 under the 1933 Act,
other than a Permitted Free Writing Prospectus or a free writing prospectus that is not
required to be filed by the Company pursuant to Rule 433; any such free writing
prospectus (which shall include the pricing term sheet discussed in Section 3(b) hereof),
the use of which has been consented to by the Company and the Representatives, is listed
on Schedule III and herein called a Permitted Free
Writing Prospectus.
(b) The Company agrees to prepare a term sheet specifying the terms
of the Notes not contained in the Preliminary Prospectus, substantially in the form of
Schedule II hereto and approved by the Representatives, and to file such pricing term
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sheet pursuant to Rule 433(d) under the 1933 Act within the time period prescribed by such Rule.
(c) The Company and the Representatives have complied and will
comply with the requirements of Rule 433 under the 1933 Act applicable to any free
writing prospectus, including timely Commission filing where required and legending.
(d) The Company agrees that if at any time following issuance of a
Permitted Free Writing Prospectus any event has occurred that results in such Permitted
Free Writing Prospectus conflicting with the information in the Registration Statement,
the Preliminary Prospectus or the Prospectus, or the Pricing Disclosure Package including
an untrue statement of a material fact or omitting to state any material fact necessary in
order to make the statements therein, in light of the circumstances then prevailing, not
misleading, the Company will give prompt notice thereof to the Representatives and, if
requested by the Representatives, will prepare and furnish without charge to each
Underwriter a free writing prospectus or other document, the use of which has been
consented to by the Representatives, which will correct such conflict, statement or
omission; provided, however, that this representation and warranty shall not apply to any
statements or omissions in the Pricing Disclosure Package made in reliance upon and in
conformity with information furnished in writing to the Company by, or through the
Representatives on behalf of, any Underwriter expressly for use therein.
4. Covenants and Agreements.
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 written and electronic copies of the
Preliminary Prospectus, the Pricing Disclosure Package and 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;
(b) That the Company will cause the Preliminary Prospectus and 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 1934 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
the Representatives, based on advice of Dewey & LeBoeuf LLP, counsel for the
Underwriters, to deliver a prospectus (or in lieu thereof, the notice referred to in Rule
173(a) under the 1933 Act), (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
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threatening of any proceeding for that purpose or pursuant to Section 8A of the 1933 Act against
the Company or related to the offering, 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 the Representatives, based on advice of Dewey & LeBoeuf LLP,
to deliver a prospectus (or in lieu thereof, the notice referred to
in Rule 173(a) under the 1933
Act), the Company will not file any amendment to the Registration Statement or supplement to the
Preliminary Prospectus or the Prospectus to which the Representatives or Dewey & LeBoeuf LLP shall
have reasonably objected in writing and the Company shall furnish one copy of every such amendment
or supplement to each of the Representatives and to Dewey & LeBoeuf LLP. 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 promptly as practical;
(c) That if, at any time when in the reasonable opinion of the
Representatives, based on advice of Dewey & LeBoeuf LLP, the information in the
Pricing Disclosure Package or the Prospectus (or in lieu thereof, the notice referred to in
Rule 173(a) under the 1933 Act) 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 the Representatives, based on advice of Dewey & LeBoeuf LLP, or counsel
for the Company, to amend or supplement the Pricing Disclosure Package or 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 information in the
Pricing Disclosure Package or the Prospectus (or in lieu thereof, the notice referred to in
Rule 173(a) under the 1933 Act) 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
Pricing Disclosure Package or 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
Pricing Disclosure Package or the Prospectus or (ii) file with the Commission documents
incorporated by reference in the Pricing Disclosure Package and Prospectus, which shall
be so supplied to the Underwriters and such dealers, in either case so that the statements
in the Pricing Disclosure Package or the Prospectus as so amended, supplemented or
modified will not, in light of the circumstances when the information in the Pricing
Disclosure Package or the Prospectus (or in lieu thereof, the notice referred to in Rule
173(a) under the 1933 Act) is delivered to a purchaser, be misleading or so that the
Pricing Disclosure Package and 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
9
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 Closing Date which shall
satisfy the provisions of Section 1l(a) of the 1933 Act and the rules and regulations of the
Commission thereunder (including Rule 158 under the 1933 Act); and
(f) That during the period beginning on the date of this Agreement
and continuing to and including the Closing Date, the Company will not offer, sell,
contract to sell or otherwise distribute 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 Representatives.
5. Expenses.
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 Companys 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 Basic Prospectus, any Permitted Free Writing Prospectus, the Preliminary Prospectus, the
Pricing Disclosure Package and the 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 4(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 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; and (vii) 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 7 and 10 hereof, the Underwriters
will pay all of their own costs and expenses, including any advertising expenses connected with any
offers they may make and the reasonable fees, disbursements and expenses of counsel for the
Underwriters.
6. Conditions of Underwriters Obligations.
The obligations of the Underwriters hereunder shall be subject to the accuracy, at and (except
as otherwise stated herein) as of the date hereof, at and as of the Applicable Time, and at and as
of the Closing Date, of the representations and warranties made herein by the Company, to
compliance at and as of the Closing Date by the
10
Company with its covenants and agreements herein contained and the other provisions hereof to be
satisfied at or prior to the Closing Date, 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 or pursuant to Section 8A of the 1933 Act against the
Company or related to the offering shall be pending before or threatened by the Commission, (ii)
the Prospectus shall have been filed with the Commission pursuant to Rule 424(b) within the
applicable time period prescribed for filing by the rules and regulations under the 1933 Act and in
accordance herewith and each Permitted Free Writing Prospectus shall have been filed by the Company
with the Commission within the applicable time periods prescribed for such filings by, and
otherwise in compliance with Rule 433 under the 1933 Act to the extent so required and (iii) the
Underwriters shall have received on and as of the Closing Date, a certificate dated such date,
signed by an executive officer (including, without limitation, the Treasurer) of the Company or an
executive officer of CenterPoint Energy, Inc., the indirect sole stockholder of the Company
(CNP), to the foregoing effect (which certificate may be to the best of such officers knowledge
after reasonable investigation).
(b) Subsequent to the execution and delivery of this Agreement, there shall not have
occurred (i) any change in the business, financial condition, prospects or results of operations of
the Company and its subsidiaries taken as one enterprise which, in the reasonable judgment of the
Representatives, is material and adverse and makes it impractical to proceed with completion of the
offering or the sale of and payment for the Notes on the terms set forth herein; (ii) any
downgrading in the rating of any debt securities of the Company by any nationally recognized
statistical rating organization (as defined for purposes of Rule 436(g) under the 1933 Act), or
any public announcement that any such organization has newly placed under surveillance or review
its rating of any debt securities of the Company (other than an announcement with positive
implications of a possible upgrading, and no implication of a possible downgrading, of such
rating);
(iii) any material suspension or material limitation of trading in securities generally on the New
York Stock Exchange, or on the over-the-counter market or any suspension of trading of any
securities of CNP on any exchange or in the over-the-counter market;
(iv) any general moratorium on commercial banking activities declared by U.S. Federal or New York
State authorities; (v) any major disruption of settlements of securities or clearance services in
the United States or (vi) any act of terrorism in the United States, any attack on, outbreak or
escalation of hostilities involving the United States, any declaration of war by Congress or any
other national or international calamity or crisis if, in the judgment of the Representatives, the
effect of any such attack, outbreak, escalation, act, declaration, calamity or crisis on the
financial markets makes it impractical to proceed with completion of the offering or sale of and
payment for the Notes on the terms set forth herein.
(c) Dewey & LeBoeuf LLP, counsel for the Underwriters, shall have furnished to you such
opinion or opinions, dated the Closing Date, with respect to such matters as you may reasonably
request, and such counsel shall have received such papers
11
and information as they may reasonably request to enable them to pass upon such matters.
(d) Scott Rozzell, Esq., Executive Vice President and General Counsel of the
Company, or Rufus S. Scott, Esq., Senior Vice President and Deputy General Counsel of the Company,
shall have furnished to you his written opinion, dated the Closing Date, 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 own its properties and
conduct its business as described in the Pricing Disclosure Package and the Prospectus and to enter
into and perform its obligations under this Agreement, the Indenture and the Notes and the Company
is duly qualified to do business as a foreign corporation in good standing in all other
jurisdictions in which its ownership or lease of property or the conduct of its business requires
such qualification, except where the failure to so qualify would not reasonably be expected,
individually or in the aggregate, to have a Material Adverse Effect;
(ii) Each Significant Subsidiary of the Company has been duly formed and is validly existing
in good standing under the laws of the jurisdiction of its formation, with power and authority
(corporate and other) to own its properties and conduct its business as described in the Pricing
Disclosure Package and the Prospectus; and each Significant Subsidiary of the Company is duly
qualified to do business as a foreign corporation, limited partnership or limited liability company
in good standing in all other jurisdictions in which its ownership or lease of property or the
conduct of its business requires such qualification, except where the failure to so qualify would
not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect;
all of the issued and outstanding ownership interests of each Significant Subsidiary of the Company
have been duly authorized and validly issued in accordance with the organizational documents of
such Significant Subsidiary; and the ownership interests of each Significant Subsidiary owned by
the Company, directly or through subsidiaries, is owned free from liens, encumbrances and defects;
(iii) 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 Closing Date or for the consummation
by the Company of the transactions contemplated by this Agreement, the Indenture and the Notes;
(iv) To such counsels knowledge and other than as set forth or contemplated in the Pricing
Disclosure Package and the Prospectus, there are no legal or governmental proceedings pending or
threatened to which the Company is subject, which, individually or in the aggregate, have a
reasonable possibility of having a Material Adverse Effect;
12
(v) The execution, delivery and performance by the Company of this Agreement, the Indenture
and the issuance and sale of the Notes, will not result in the breach or violation of, or
constitute a default under, (a) the Certificate of Incorporation, the Bylaws or other
organizational documents of the Company, each as amended to date, (b) 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 (c) 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, in the case of clause
(b), individually or in the aggregate, would have a Material Adverse Effect;
(vi) The description of statutes and regulations set forth in Part I of the Companys
Annual Report on Form 10-K for the fiscal year ended December 31, 2007 under the captions
BusinessRegulation and BusinessEnvironmental Matters, and those described elsewhere in the
Pricing Disclosure Package and the Prospectus, fairly describe in all material respects the
portions of the statutes and regulations addressed thereby; and
(vii) Such counsel does not know of any contracts or documents of a character required to be
described in the Registration Statement, Pricing Disclosure Package or Prospectus or to be filed as
exhibits to the Registration Statement which are not so described and filed.
(e) Baker Botts L.L.P., counsel for the Company, shall have furnished to you their written opinion,
dated the Closing Date, in form and substance satisfactory to you, to the effect that:
(i) The statements set forth in the pricing term sheet discussed in Section 3(b) hereof, the
Preliminary Prospectus and the Prospectus under the caption Description of the Notes, and in the
Basic Prospectus under the caption Description of Our Senior Debt Securities accurately summarize
in all material respects the terms of the Notes;
(ii) The
Notes conform, as to legal matters in all material respects to the descriptions thereof contained in the Pricing Disclosure Package and the
Prospectus, including, without limitation, the description in the Preliminary Prospectus and the
Prospectus under the caption Description of the Notes, and in the Basic Prospectus, including,
without limitation, under the caption Description of Our Senior Debt Securities;
(iii) 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 duly executed, issued and authenticated in accordance with the terms of the
Indenture and delivered against payment therefor pursuant to the terms of this Agreement, will
constitute legal, valid and binding obligations of the Company enforceable against the Company in
accordance with their terms and will be entitled to the benefits afforded by the Indenture, except
as such enforceability and
13
entitlement are subject to the effect of (a) any applicable bankruptcy, insolvency, reorganization,
fraudulent conveyance, moratorium or other law relating to or affecting creditors rights
generally, (b) general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law) and (c) any implied covenants of good faith and
fair dealing;
(iv) The execution and delivery of the Indenture have been duly and validly authorized by all
necessary corporate action on the part of the Company; the Indenture has been duly and validly
executed and delivered by the Company; the Indenture constitutes a valid and binding instrument
enforceable against the Company in accordance with its terms, except as such enforceability is
subject to the effect of (a) any applicable bankruptcy, insolvency, reorganization, fraudulent
conveyance, moratorium or other law relating to or affecting creditors rights generally, (b)
general principles of equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law) and (c) any implied covenants of good faith and fair dealings;
(v) The Indenture has been duly qualified under the TIA;
(vi) The Registration Statement has become effective under the 1933 Act, and, to the best of
such counsels knowledge, no stop order suspending the effectiveness of the Registration Statement
or any part thereof has been issued and no proceedings for that
purpose or pursuant to Section 8A of the 1933 Act against the Company or related to the offering
have been instituted and are pending or are threatened by the Commission under the 1933 Act; the
Registration Statement, as of the date of this Agreement, and the Permitted Free Writing Prospectus
and the Prospectus, as of their dates and on the Closing Date (except for (A) the financial
statements, pro forma financial statements and financial statement schedules contained or
incorporated by reference therein (including the notes thereto and the auditors reports thereon)
and (B) the other financial information and any statistical information contained or incorporated
by reference therein, or omitted therefrom, as to which such counsel need not express an opinion)
appear on their face to have complied or to comply as to form in all material respects with the
requirements of the 1933 Act and the applicable rules and regulations of the Commission thereunder,
and each document incorporated by reference therein as originally filed pursuant to the 1934 Act
(except for (A) the financial statements, pro forma financial statements and financial statement
schedules contained or incorporated by reference therein (including the notes thereto and the
auditors reports thereon) and (B) the other financial information and any statistical information
contained or incorporated by reference therein, or omitted therefrom, as to which such counsel need
not express an opinion) when so filed appears on its face to have complied as to form in all
material respects with the 1934 Act and the applicable rules and regulations of the Commission
thereunder;
(vii) 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; and
14
(viii) The Company is not and, after giving effect to the offering and sale of the Notes and the
application of the proceeds thereof as described in the Pricing Disclosure Package and Prospectus,
will not be an investment company as defined in the Investment Company Act.
In addition, such counsel shall state that such counsel have participated in conferences with
officers and other representatives of the Company, representatives of the independent public
accountants of the Company and representatives of the Underwriters, at which the contents of the
Registration Statement, the Pricing Disclosure Package and the Prospectus and related matters were
discussed. Although such counsel have not undertaken to determine independently, and do not assume
any responsibility for, the accuracy, completeness or fairness of the statements contained in the
Registration Statement, the Pricing Disclosure Package and the Prospectus or any of the documents
incorporated by reference in the Registration Statement, the Pricing Disclosure Package and the
Prospectus (except to the extent set forth in paragraphs (i) and (ii) above), such counsel advises
the Underwriters that, on the basis of the foregoing, no facts have come to the attention of such
counsel that lead them to believe that the Registration Statement (except for (A) the financial
statements, pro forma financial statements and financial statement schedules contained or
incorporated by reference therein (including the notes thereto and the auditors reports thereon),
(B) the other financial information and any statistical information contained or incorporated by
reference therein, or omitted therefrom, (C) the representations and warranties and other
statements of fact included in any exhibit thereto, and (D) any Form T-l Statement of Eligibility
and Qualification of the Trustee included as an exhibit to the Registration Statement, as to which
such counsel need not comment) as of the date of this Agreement, 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 Pricing Disclosure Package (except for (A)
the financial statements, pro forma financial statements and financial statement schedules
contained or incorporated by reference therein (including the notes thereto and the auditors
reports thereon) and (B) the other financial information and any statistical information contained
or incorporated by reference therein, or omitted therefrom, as to which such counsel need not
comment), as of the Applicable Time contained any untrue statement of a material fact or omitted 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, or that the Prospectus (except for (A)
the financial statements, pro forma financial statements and financial statement schedules
contained or incorporated by reference therein (including the notes thereto and the auditors
reports thereon) and (B) the other financial information and any statistical information contained
or incorporated by reference therein, or omitted therefrom, as to which such counsel need not
comment) contained, as of its date, or contains, on the Closing Date, any untrue statement therein
of a material fact or omitted, as of its date, or omits, on the Closing Date, to state a material
fact necessary in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading.
In rendering its opinions and statements in subparagraphs (e)(vi) and in the immediately preceding
paragraph above, such counsel may assume that the date of
15
this Agreement is the earlier of the date the Prospectus is first used or the date and time of the
first contract of sale of the Notes unless the Representatives shall advise that the earlier of
such events occurred on a different date that it shall specify, in which case the phrase as of the
date of this Agreement in such subparagraph and paragraph shall be replaced by the date so
identified.
(f) 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.
(g) At the Closing Date, Deloitte & Touche LLP shall have furnished
you a letter, dated the Closing Date, to the effect that such accountants reaffirm, as of the
Closing Date and as though made on the Closing Date, the statements made in the letter
furnished by such accountants pursuant to paragraph (f) of this Section 6, except that the
specified date referred to in such letter will be a date not more than three business days
prior to the Closing Date.
(h) The Company shall have furnished or caused to be furnished to you at the Closing
Date certificates of the President or any Vice President and a principal financial or accounting
officer of the Company in which such officers, to the best of their knowledge after reasonable
investigation, shall state that (i) the representations and warranties of the Company in this
Agreement are true and correct, (ii) the Company has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date,
(iii) subsequent to the date of the most recent financial statements in the Pricing Disclosure
Package and the Prospectus, there has been no material adverse change in the business, financial
condition, prospects or results of operations of the Company and its subsidiaries taken as a whole
except as set forth in or contemplated by the Pricing Disclosure Package and the Prospectus or as
described in such certificate and (iv) as to such other matters as you may reasonably request.
(i) No action shall have been taken and no statute, rule, regulation or order shall have
been enacted, adopted or issued by any governmental agency or body which would as of the Closing
Date, prevent the issuance or the sale of the Notes; and no injunction, restraining order or order
of any other nature by any court of competent jurisdiction shall have been issued as of the Closing
Date which would prevent the issuance or sale of the Notes.
(j) The Notes shall be eligible for clearance and settlement through DTC.
7. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each Underwriter, the directors
and officers of each Underwriter and each person, if any, who controls each Underwriter within the
meaning of the 1933 Act or the 1934 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
16
connection therewith as such expenses are incurred), joint or several, which may be based upon
either the 1933 Act, or the 1934 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 Prospectus, any Permitted Free Writing Prospectus, the Prospectus or any other
Issuer Free Writing Prospectus (as defined in Rule 433 of the 1933 Act) (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, or through the Representatives on behalf of, any Underwriter
specifically for use in the preparation thereof, it being understood and agreed that the only such
information consists of the information described as such in subsection (b) below; provided that in
no case is the Company to be liable with respect to any claims made against any Underwriter or any
such director, officer or controlling person unless such Underwriter or such director, officer or
controlling person shall have notified the Company 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 such Underwriter or such director, officer or controlling person, but failure to notify
the Company of any such claim (i) shall not relieve the Company from liability under this paragraph
unless and to the extent the Company did not otherwise learn of such claim and such failure results
in the forfeiture by the Company of substantial rights and defenses and (ii) shall not relieve the
Company from any liability which it may have to such Underwriter or such director, officer or
controlling person otherwise than on account of the indemnity agreement contained in this
paragraph.
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 director or directors, officer or officers, 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 director or directors, officer or officers, controlling person or persons and the Underwriter or
Underwriters or director or directors, officer or officers or controlling person or persons and the
Company 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 director or
directors, officer or officers 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 (and not more than one local counsel) at any time for all
17
such Underwriters and their directors, officers and controlling persons, which firm shall be
designated in writing by the Representatives. The Company shall not be liable to indemnify any
person for any settlement of any such claim effected without the Companys prior written consent.
This indemnity agreement will be in addition to any liability which the Company might otherwise
have.
(b) Each Underwriter agrees severally and not jointly to indemnify and hold harmless the
Company, each of the Companys directors, each of the Companys officers who have signed the
Registration Statement, and each person, if any, who controls the Company within the meaning of the
1933 Act or the 1934 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 as such expenses are incurred), joint or several, which may be
based upon the 1933 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
Prospectus, any Permitted Free Writing 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, or through the Representatives on behalf of, such
Underwriter 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
Preliminary Prospectus and the Prospectus, (i) furnished on behalf of each Underwriter, the
information in the third paragraph, the third and fourth sentences of the fourth paragraph and the
fifth paragraph and (ii) furnished by Lazard Capital Markets LLC by separate letter to the Company,
the information in the eighth paragraph, each under the heading 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 (i) shall not relieve
such Underwriter from liability under this paragraph unless and to the extent such Underwriter did
not otherwise learn of such action and such failure results in the forfeiture by such Underwriter
of substantial rights and defenses and (ii) shall not relieve such Underwriter 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
18
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 (and not more than one local counsel) 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 Underwriters prior written consent.
This indemnity agreement will be in addition to any liability which such Underwriter might
otherwise have.
(c) If the indemnification provided for in this Section 7 is unavailable or insufficient
to hold harmless an indemnified party under subsection (a) or (b) above, then each indemnifying
party shall contribute to the amount paid or payable by such indemnified party as a result of the
losses, claims, damages or liabilities referred to in subsection (a) or (b) above (i) in such
proportion as is appropriate to reflect the relative benefits received by the Company on the one
hand and the Underwriters on the other from the offering of the Notes or (ii) if the allocation
provided by clause (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 (i) above but also the
relative fault of the Company on the one hand and the Underwriters on the other in connection with
the statements or omissions which resulted in such losses, claims, damages or liabilities as well
as any other relevant equitable considerations. The relative benefits received by the Company on
the one hand and the Underwriters on the other shall be deemed to be in the same proportion as the
total net proceeds from the offering (before deducting expenses) received by the Company bear to
the total discounts and commissions received by the Underwriters from the Company under this
Agreement. The relative fault shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company or the Underwriters and the parties
relative intent, knowledge, access to information and opportunity to correct or prevent such untrue
statement or omission. The amount paid by an indemnified party as a result of the losses, claims,
damages or liabilities referred to in the first sentence of this subsection (c) shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified party in connection
with investigating or defending any action or claim which is the subject of this subsection
(c). Notwithstanding the provisions of this subsection (c), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which the Notes purchased
by it were resold exceeds the amount of any damages which such Underwriter
19
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 1933 Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters obligations in this subsection (c)
to contribute are several in proportion to their respective purchase obligations and not joint.
8. 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 total principal amount of
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 any of the
non-defaulting Underwriters, but if no such arrangements are made by the Closing Date, the
non-defaulting Underwriters shall be obligated severally, in proportion to their respective
commitments hereunder, to purchase the Notes that such defaulting Underwriter agreed but failed to
purchase. If any Underwriter or Underwriters shall so default and the aggregate principal amount of
Notes with respect to which such default or defaults occur exceeds 10% of the total principal
amount of 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 36 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 8, (i) the Company shall have the right to postpone the Closing Date 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, Pricing Disclosure Package 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
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 8 shall be without liability on the part of the
non-defaulting Underwriters or the Company, other than as provided in Sections 7 and 10.
9. 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
20
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.
10. Termination.
If this Agreement shall be terminated pursuant to Section 8 or if for any reason the purchase
of the Notes by the Underwriters is not consummated, the Company shall remain responsible for the
expenses to be paid or reimbursed by it pursuant to Section 5 and the respective obligations of the
Company and the Initial Purchasers pursuant to Section 7 shall remain in effect. If the purchase of
the Notes by the Underwriters is not consummated for any reason other than solely because of the
termination of this Agreement pursuant to Section 8 or the occurrence of any event specified in
clause (iii), (iv), (v) or (vi) of Section 6(b), the Company will reimburse the Underwriters for
all out-of-pocket expenses (including fees and disbursements of counsel) reasonably incurred by
them in connection with the offering of the Notes.
11. Notices.
In all dealings hereunder, the Representatives 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 the Representatives.
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 the
Underwriters in care of Barclays Capital Inc., 200 Park Avenue, New York, New York 10166,
Attention: Fixed Income Syndicate, fax: 212-412-7305, Credit Suisse Securities (USA) LLC, Eleven
Madison Avenue, New York, New York 10010, Attention: LCD-IBD, fax 212-325-4296 and Lehman Brothers
Inc., 745 Seventh Avenue, New York, New York 10019, Attention: Debt Capital Markets, Global Power
Group; and (ii) if to the Company shall be delivered or sent by mail, telex or facsimile
transmission to the Company in care of CenterPoint Energy Resources Corp., 1111 Louisiana Avenue,
Houston, Texas 77002, Attention: Rufus Scott (facsimile number: 713-207-0490). Any such statements,
requests, notices or agreements shall take effect upon receipt thereof.
12. 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 7 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
21
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 1933 Act or the 1934 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 1933 Act.
13. Relationship
The Company acknowledges and agrees that (i) the purchase and sale of the Notes pursuant to
this Agreement is an arms-length commercial transaction between the Company, on the one hand, and
the several Underwriters, on the other, (ii) in connection therewith and with the process leading
to such transaction each Underwriter is acting solely as a principal and not the agent or fiduciary
of the Company, (iii) no Underwriter has assumed an advisory or fiduciary responsibility in favor
of the Company with respect to the offering contemplated hereby or the process leading thereto
(irrespective of whether such Underwriter has advised or is currently advising the Company on other
matters) or any other obligation to the Company except the obligations expressly set forth in this
Agreement and (iv) the Company has consulted its own legal and financial advisors to the extent it
deemed appropriate. The Company agrees that it will not claim that the Underwriters, or any of
them, has rendered advisory services of any nature or respect, or owes a fiduciary or similar duty
to the Company, in connection with such transaction or the process leading thereto.
14. Applicable Law.
This Agreement shall be governed by and construed in accordance with the laws of the State of
New York.
The Company hereby submits to the non-exclusive jurisdiction of the Federal and state courts
in the Borough of Manhattan in The City of New York in any suit or proceeding arising out of or
relating to this Agreement or the transactions contemplated hereby.
15. 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. Delivery of an executed signature page of
this Agreement by facsimile or any other rapid transmission device designed to produce a written
record of the communication transmitted shall be as effective as delivery of a manually executed
counterpart thereof.
22
If the foregoing is in accordance with your understanding, please sign and return to us seven
(7) 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,
CENTERPOINT ENERGY RESOURCES CORP.
|
|
|
By: |
/s/ Gary L. Whitlock
|
|
|
|
Name: |
Gary L. Whitlock |
|
|
|
Title: Chief Financial
Officer and Executive Vice President |
|
|
23
|
|
|
|
|
|
Accepted as of the date hereof:
Barclays Capital Inc.
|
|
|
By: |
/s/ Anne
Daley Gordon
|
|
|
|
Name: |
Anne Daley Gordon |
|
|
|
Title: |
MD |
|
|
|
Credit Suisse Securities (USA) LLC
|
|
|
By: |
/s/ Raymond
Wood
|
|
|
|
Name: |
Raymond Wood |
|
|
|
Title: |
Managing Director |
|
|
|
Lehman Brothers Inc.
|
|
|
By: |
/s/ Gregory J. Hall
|
|
|
|
Name: |
Gregory J. Hall |
|
|
|
Title: |
Managing Director |
|
|
For Themselves and as Representatives of the Underwriters Listed on Schedule I
SCHEDULE I
|
|
|
|
|
|
|
Principal Amount |
|
Underwriter |
|
of Notes |
|
Barclays
Capital Inc. |
|
$ |
70,000,000 |
|
Credit Suisse Securities (USA) LLC |
|
|
70,000,000 |
|
Lehman
Brothers Inc. |
|
|
70,000,000 |
|
HSBC
Securities (USA) Inc. |
|
|
15,000,000 |
|
Lazard Capital Markets LLC |
|
|
15,000,000 |
|
RBC Capital Markets Corporation |
|
|
15,000,000 |
|
SunTrust
Robinson Humphrey, Inc. |
|
|
15,000,000 |
|
Wachovia Capital Markets, LLC |
|
|
15,000,000 |
|
Wells Fargo Securities, LLC |
|
|
15,000,000 |
|
|
|
|
|
Total |
|
$ |
300,000,000 |
|
SCHEDULE II
PRICING TERM SHEET
(to Preliminary Prospectus Supplement dated May 12, 2008)
|
|
|
Issuer:
|
|
CenterPoint Energy Resources Corp. |
|
|
|
Security:
|
|
6.00% Senior Notes due 2018 |
|
|
|
Legal Format:
|
|
SEC Registered |
|
|
|
Size:
|
|
$300,000,000 |
|
|
|
Trade Date:
|
|
May 12, 2008 |
|
|
|
Expected Settlement Date:
|
|
May 15, 2008 |
|
|
|
Maturity Date:
|
|
May 15, 2018 |
|
|
|
Coupon:
|
|
6.00% |
|
|
|
Interest Payment Dates:
|
|
May 15 and November 15, commencing November 15, 2008 |
|
|
|
Price to Public:
|
|
99.171% |
|
|
|
Benchmark Treasury:
|
|
3.875% due May 15, 2018 |
|
|
|
Benchmark Treasury Yield:
|
|
3.762% |
|
|
|
Spread to Benchmark Treasury:
|
|
+ 235 basis points |
|
|
|
Re-offer Yield:
|
|
6.112% |
|
|
|
Make- whole call:
|
|
At any time at a discount rate of Treasury plus 35 basis points |
|
|
|
CUSIP:
|
|
15189Y AE6 |
|
|
|
Anticipated Ratings:
|
|
Moodys Baa3
Standard & Poors BBB
Fitch BBB |
|
|
|
Joint Book-Running Managers:
|
|
Barclays Capital Inc.
Credit Suisse Securities (USA) LLC
Lehman Brothers Inc. |
|
|
|
Co-Managers:
|
|
HSBC Securities (USA) Inc.
Lazard Capital Markets LLC
RBC Capital Markets Corporation
SunTrust Robinson Humphrey, Inc.
Wachovia Capital Markets, LLC
Wells Fargo Securities, LLC |
Note: A securities rating is not a recommendation to buy, sell or hold securities and may be
subject to revision or withdrawal at any time.
The issuer has filed a registration statement (including a prospectus) with the SEC for the
offering to which this communication relates. Before you invest, you should read the prospectus in
that registration statement and other documents the issuer has filed with the SEC for more complete
information about the issuer and this offering. You may get these documents for free by visiting
EDGAR on the SEC Web site at www.sec.gov. Alternatively, the issuer, any underwriter or any dealer
participating in the offering will arrange to send you the prospectus if you request it by calling
Barclays Capital Inc. toll free at 888-227-2275, ext. 2663, Credit Suisse Securities (USA) LLC toll
free at
800-221-1037 or Lehman Brothers Inc. toll free at 888-603-5847.
SCHEDULE III
PRICING DISCLOSURE PACKAGE
1) |
|
Preliminary Prospectus dated May 12, 2008 |
|
2) |
|
Permitted Free Writing Prospectuses |
|
a) |
|
Pricing Term Sheet attached as Schedule II hereto |
exv4w2
Exhibit-4.2
CENTERPOINT ENERGY RESOURCES CORP.
(formerly known as NorAm Energy Corp.)
To
THE BANK OF NEW YORK TRUST COMPANY, NATIONAL ASSOCIATION
(successor to JPMorgan Chase Bank, National Association
(formerly Chase Bank of Texas, National Association)),
Trustee
SUPPLEMENTAL INDENTURE NO. 13
Dated as of May 15, 2008
$300,000,000
6.00% Senior Notes due 2018
CENTERPOINT ENERGY RESOURCES CORP.
(formerly known as NorAm Energy Corp.)
SUPPLEMENTAL INDENTURE NO. 13
$300,000,000
6.00% Senior Notes due 2018
SUPPLEMENTAL INDENTURE No. 13, dated as of May 15, 2008, between CENTERPOINT ENERGY RESOURCES
CORP., a Delaware corporation formerly known as NorAm Energy Corp. (the Company), and THE BANK OF
NEW YORK TRUST COMPANY, NATIONAL ASSOCIATION (successor to JPMorgan Chase Bank, National
Association (formerly Chase Bank of Texas, National Association)), as Trustee (the Trustee).
RECITALS
The Company has heretofore executed and delivered to the Trustee an Indenture, dated as of
February 1, 1998 (the Original Indenture and, as previously and hereby supplemented and amended,
the Indenture), providing for the issuance from time to time of one or more series of the
Companys Securities.
The Company has changed its name from NorAm Energy Corp. to CenterPoint Energy Resources
Corp. and all references in the Indenture to the Company or NorAm Energy Corp. shall be deemed
to refer to CenterPoint Energy Resources Corp.
Pursuant to the terms of the Indenture, the Company desires to provide for the establishment
of a new series of Securities to be designated as the 6.00% Senior Notes due 2018 (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. 13.
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
-1-
of the Holders of the Securities of such series, as follows:
ARTICLE ONE
Relation to Indenture; Additional Definitions
Section 101. Relation to Indenture. This Supplemental Indenture No. 13 constitutes an
integral part of the Original Indenture.
Section 102. Additional Definitions. For all purposes of this Supplemental Indenture No. 13:
Capitalized terms used herein shall have the meaning specified herein or in the
Original Indenture, as the case may be;
Acquired Entity has the meaning set forth in Section 303(k) hereof;
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;
Comparable Treasury Yield has the meaning set forth in Section 402(a) hereof;
Consolidated Net Tangible Assets means the total amount of assets of the Company and
its Subsidiaries less, without duplication: (a) total current liabilities (excluding
indebtedness due within 12 months); (b) all reserves for depreciation and other asset
valuation reserves, but excluding reserves for deferred federal income taxes; (c) all
intangible assets such as goodwill, trademarks, trade names, patents and unamortized debt
discount and expense carried as an asset; and (d) all appropriate adjustments on account of
minority interests of other Persons holding common stock of any Subsidiary, all as reflected
in the Companys most recent audited consolidated balance sheet preceding the date of such
determination;
Corporate Trust Office means the principal office of the Trustee at which at any
particular time its corporate trust business shall be administered, as follows: (a) for
payment, registration and transfer of the Securities: 2001 Bryan Street, 9th Floor, Dallas,
Texas 75201, Attention: Bondholder Communications; telephone (214) 672-5125 or (800)
275-2048; telecopy: (214) 672-5873; and (b) for all other communications relating to the
Securities: 601 Travis Street, 18th Floor, Houston, Texas 77002, Attention: Global Corporate
Trust; telephone: (713) 483-6817; telecopy: (713) 483-7038;
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;
Funded Debt has the meaning set forth in Section 304 hereof.
H.15 Statistical Release has the meaning set forth in Section 402(b) hereof;
-2-
The term indebtedness, as applied to the Company or any Subsidiary, means bonds,
debentures, notes and other instruments or arrangements representing obligations created or
assumed by any such corporation, including any and all: (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
obligation listed in clause (i), (ii) or (iii) above. All indebtedness secured by a lien
upon property owned by the Company or any Subsidiary and upon which indebtedness any such
corporation customarily pays interest, although any such corporation has not assumed or
become liable for the payment of such indebtedness, shall for all purposes hereof be deemed
to be indebtedness of any such corporation. All indebtedness for borrowed money incurred by
other Persons which is directly guaranteed as to payment of principal by the Company or any
Subsidiary shall for all purposes hereof be deemed to be indebtedness of the Company or any
such Subsidiary, as applicable, but no other contingent obligation of the Company or any
such Subsidiary in respect of indebtedness incurred by other Persons shall for any purpose
be deemed to be indebtedness of the Company or any such Subsidiary;
Independent Investment Banker has the meaning set forth in Section 401(c) hereof;
Interest Payment Date has the meaning set forth in Section 204(a) hereof;
Issue Date has the meaning set forth in Section 204(a) hereof;
lien or liens have the meanings set forth in Section 303 hereof;
Long-Term Indebtedness means, collectively, the Companys outstanding: (a) 7.875%
Senior Notes due 2013, (b) 5.95% Senior Notes due 2014, and (c) any long-term indebtedness
(but excluding for this purpose any long-term indebtedness incurred pursuant to any
revolving credit facility, letter of credit facility or other similar bank credit facility)
of the Company issued subsequent to the issuance of the Notes and prior to the Termination
Date containing covenants substantially similar to the covenants set forth in Sections 303
and 304 hereof, or an event of default substantially similar to the event of default set
forth in Section 501(a) hereof, but not containing a provision substantially similar to the
provision set forth in Section 305 hereof;
Make-Whole Premium has the meaning set forth in Section 401(b) hereof;
Maturity Date has the meaning set forth in Section 203 hereof;
Non-Recourse Debt means (i) any indebtedness for borrowed money incurred by any
Project Finance Subsidiary to finance the acquisition, improvement, installation, design,
engineering, construction, development, completion, maintenance or operation of, or
otherwise to pay costs and expenses relating to or providing financing for, any project,
which indebtedness for borrowed money does not provide for recourse against the Company or
any Subsidiary of the Company (other than a Project Finance Subsidiary and
-3-
such recourse as exists under a Performance Guaranty) or any property or asset of the
Company or any Subsidiary of the Company (other than Equity Interests in, or the property or
assets of, a Project Finance Subsidiary and such recourse as exists under a Performance
Guaranty) and (ii) any refinancing of such indebtedness for borrowed money that does not
increase the outstanding principal amount thereof (other than to pay costs incurred in
connection therewith and the capitalization of any interest or fees) at the time of the
refinancing or increase the property subject to any lien securing such indebtedness for
borrowed money or otherwise add additional security or support for such indebtedness for
borrowed money.
Notes has the meaning set forth in the third paragraph of the Recitals hereof;
Original Indenture has the meaning set forth in the first paragraph of the Recitals
hereof;
Performance Guaranty means any guaranty issued in connection with any Non-Recourse
Debt that (i) if secured, is secured only by assets of or Equity Interests in a Project
Finance Subsidiary, and (ii) guarantees to the provider of such Non-Recourse Debt or any
other person (a) performance of the improvement, installation, design, engineering,
construction, acquisition, development, completion, maintenance or operation of, or
otherwise affects any such act in respect of, all or any portion of the project that is
financed by such Non-Recourse Debt, (b) completion of the minimum agreed equity or other
contributions or support to the relevant Project Finance Subsidiary, or (c) performance by a
Project Finance Subsidiary of obligations to persons other than the provider of such
Non-Recourse Debt.
Principal Property means any natural gas distribution property, natural gas pipeline
or gas processing plant located in the United States, except any such property that in the
opinion of the Board of Directors is not of material importance to the total business
conducted by the Company and its consolidated Subsidiaries. Principal Property shall not
include any oil or gas property or the production or proceeds of production from an oil or
gas producing property or the production or any proceeds of production of gas processing
plants or oil or gas or petroleum products in any pipeline or storage field;
Project Finance Subsidiary means any Subsidiary designated by the Company whose
principal purpose is to incur Non-Recourse Debt and/or construct, lease, own or operate the
assets financed thereby, or to become a direct or indirect partner, member or other equity
participant or owner in a Person created for such purpose, and substantially all the assets
of which Subsidiary or Person are limited to (x) those assets being financed (or to be
financed), or the operation of which is being financed (or to be financed), in whole or in
part by Non-Recourse Debt, or (y) Equity Interests in, or indebtedness or other obligations
of, one or more other such Subsidiaries or Persons, or (z) indebtedness or other obligations
of the Company or any Subsidiary or other Persons. At the time of designation of any
Project Finance Subsidiary, the sum of the net book value of the assets of such Subsidiary
and the net book value of the assets of all other Project Finance Subsidiaries then existing
shall not in the aggregate exceed 10 percent of Consolidated
-4-
Net Tangible Assets.
Redemption Price has the meaning set forth in Section 401(a) hereof;
Regular Record Date has the meaning set forth in Section 204(b) hereof;
Remaining Term has the meaning set forth in Section 402(a) hereof;
Sale and Leaseback Transaction means any arrangement entered into by the Company or
any Subsidiary with any Person providing for the leasing to the Company or any Subsidiary of
any Principal Property (except for temporary leases for a term, including any renewal
thereof, of not more than three years and except for leases between the Company and a
Subsidiary or between Subsidiaries), which Principal Property has been or is to be sold or
transferred by the Company or such Subsidiary to such Person;
Significant Subsidiary means any Subsidiary of the Company, other than a Project
Finance Subsidiary, that is a significant subsidiary as defined in Rule 1-02 of Regulation
S-X under the Securities Act of 1933 and the Securities Exchange Act of 1934, as such
regulation is in effect on the date of issuance of the Notes.
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 having ordinary voting power to elect a majority of the Board
of Directors of such corporation (irrespective of whether at the time capital stock of any
other class or classes of such corporation 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 entitys other subsidiaries.
Termination Date has the meaning set forth in Section 305.
Value with respect to a Sale and Leaseback Transaction has the meaning set forth in
Section 303 hereof;
All references herein to Articles and Sections, unless otherwise specified, refer to the
corresponding Articles and Sections of this Supplemental Indenture No. 13; and
The terms herein, hereof, hereunder and other words of similar import refer to this
Supplemental Indenture No. 13.
-5-
ARTICLE TWO
The Series of Securities
Section 201. Title of the Securities. The Notes shall be designated as the 6.00% Senior Notes
due 2018.
Section 202. Limitation on Aggregate Principal Amount. The Trustee shall authenticate and
deliver the Notes for original issue on the Issue Date in the aggregate principal amount of
$300,000,000 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
initially be outstanding shall not exceed $300,000,000; provided, however, that the
authorized aggregate principal amount of the Notes may be increased above such amount by a Board
Resolution to such effect.
Section 203. Stated Maturity. The Stated Maturity of the Notes shall be May 15, 2018 (the
Maturity Date).
Section 204. Interest and Interest Rates.
(a) The Notes shall bear interest at the rate of 6.00% per annum, from and including May 15,
2008 (the Issue Date) to, but excluding, the Maturity Date. Such interest shall be payable
semiannually in arrears, on May 15 and November 15, of each year (each such date, an Interest
Payment Date), commencing November 15, 2008.
(b) The interest so payable, and punctually paid or duly provided for, on any Interest Payment
Date shall be paid to the Persons in whose names the Notes (or one or more Predecessor Securities)
are registered at the close of business on the immediately preceding May 1 and November 1,
respectively, whether or not such day is a Business Day (each such date, a Regular Record Date).
Any such interest not so punctually paid or duly provided for shall forthwith cease to be payable
to the Holder on such Regular Record Date and shall either (i) be paid to the Person in whose name
such Note (or one or more Predecessor Securities) is registered at the close of business on the
Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice
whereof shall be given to Holders of the Notes not less than 10 days prior to such Special Record
Date, or (ii) be paid at any time in any other lawful manner not inconsistent with the requirements
of any securities exchange or automated quotation system on which the Notes may be listed or
traded, and upon such notice as may be required by such exchange or automated quotation system, all
as more fully provided in the Indenture.
(c) The amount of interest payable for any period shall be computed on the basis of a 360-day
year of twelve 30-day months. The amount of interest payable for any partial period shall be
computed on the basis of a 360-day year of twelve 30-day months and the days elapsed in any partial
month. In the event that any date on which interest is payable on a Note is not a Business Day,
then a payment of the interest payable on such date will be made on the next succeeding day which
is a Business Day (and without any interest or other payment in respect of
-6-
any such delay) with the same force and effect as if made on the date the payment was
originally payable.
(d) Any principal and premium, if any, and any installment of interest, which is overdue shall
bear interest at the rate of 6.00% per annum (to the extent permitted by law), from the dates such
amounts are due until they are paid or made available for payment, and such interest shall be
payable on demand.
Section 205. Place of Payment. The Trustee shall initially serve as the Paying Agent for the
Notes. The Place of Payment where the Notes may be presented or surrendered for payment shall be
the Corporate Trust Office of the Trustee.
Section 206. Place of Registration or Exchange; Notices and Demands With Respect to the Notes.
The place where the Holders of the Notes may present the Notes for registration of transfer or
exchange and may make notices and demands to or upon the Company in respect of the Notes shall be
the Corporate Trust Office of the Trustee.
Section 207. Percentage of Principal Amount. The Notes shall be initially issued at 99.171%
of their principal amount plus accrued interest, if any, from May 15, 2008.
Section 208. Global Securities. The Notes shall be issuable in whole or in part in the form
of one or more Global Securities. Such Global Securities shall be deposited with, or on behalf of,
The Depository Trust Company, New York, New York, which shall act as Depositary with respect to the
Notes. Such Global Securities shall bear the legends set forth in the form of Security attached as
Exhibit A hereto.
Section 209. Form of Securities. The Notes shall be substantially in the form attached as
Exhibit A hereto.
Section 210. Securities Registrar. The Trustee shall initially serve as the Security
Registrar for the Notes.
Section 211. Defeasance and Discharge; Covenant Defeasance.
(a) Article Fourteen of the Original Indenture, including without limitation, Sections 1402
and 1403 (as modified by Section 211(b) hereof) thereof, shall apply to the Notes.
(b) Solely with respect to the Notes issued hereby, the first sentence of Section 1403 of the
Original Indenture is hereby deleted in its entirety, and the following is substituted in lieu
thereof:
Upon the Companys exercise of its option (if any) to have this Section
applied to any Securities or any series of Securities, as the case may be,
(1) the Company shall be released from its obligations under Article Eight
and under any covenants provided pursuant to Section 301(20), 901(2) or
901(7) for the benefit of the Holders of such Securities, including, without
limitation, the covenants provided for in Article Three of Supplemental
Indenture No. 13 to the Indenture, and (2) the occurrence of any event
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specified in Sections 501(4) (with respect to Article Eight and to any such
covenants provided pursuant to Section 301(20), 901(2) or 901(7)) and 501(7)
shall be deemed not to be or result in an Event of Default, in each case
with respect to such Securities as provided in this Section on and after the
date the conditions set forth in Section 1404 are satisfied (hereinafter
called Covenant Defeasance).
Section 212. Sinking Fund Obligations. The Company shall have no obligation to redeem or
purchase any Notes pursuant to any sinking fund or analogous requirement or upon the happening of a
specified event or at the option of a Holder thereof.
ARTICLE THREE
Additional Covenants
Section 301. Maintenance of Properties. The Company shall cause all properties used or useful
in the conduct of its business or the business of any Subsidiary to be maintained and kept in good
condition, repair and working order and supplied with all necessary equipment and shall cause to be
made all necessary repairs, renewals, replacements, betterments and improvements thereof, all as in
the judgment of the Company may be necessary so that the business carried on in connection
therewith may be properly conducted at all times; provided, however, that nothing
in this Section shall prevent the Company from discontinuing the operation or maintenance of any of
such properties if such discontinuance is, in the judgment of the Company, desirable in the conduct
of its business or the business of any Subsidiary.
Section 302. Payment of Taxes and Other Claims. The Company shall pay or discharge or cause
to be paid or discharged, before the same shall become delinquent, (1) all taxes, assessments and
governmental charges levied or imposed upon the Company or any Subsidiary or upon the income,
profits or property of the Company or any Subsidiary, and (2) all lawful claims for labor,
materials and supplies which, if unpaid, might by law become a lien upon the property of the
Company or any Subsidiary; provided, however, that the Company shall not be
required to pay or discharge or cause to be paid or discharged any such tax, assessment, charge or
claim whose amount, applicability or validity is being contested in good faith by appropriate
proceedings.
Section 303. Restrictions on Liens. The Company shall not pledge, mortgage or hypothecate, or
permit to exist, and shall not cause, suffer or permit any Subsidiary to pledge, mortgage or
hypothecate, or permit to exist, except in favor of the Company or any Subsidiary, any mortgage,
deed of trust, pledge, hypothecation, assignment, deposit arrangement, charge, security interest,
encumbrance or lien of any kind whatsoever (including any Capital Lease) (collectively, a lien or
liens) upon, any Principal Property or any Equity Interest in any Significant Subsidiary owning
any Principal Property, at any time owned by it or a Subsidiary, to secure any indebtedness,
without making effective provisions whereby the Notes shall be equally and ratably secured with or
prior to any and all such indebtedness and any other indebtedness similarly entitled to be equally
and ratably secured; provided, however, that this provision shall not apply to or
prevent the creation or existence of:
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(a) undetermined or inchoate liens and charges incidental to construction, maintenance,
development or operation;
(b) the lien of taxes and assessments for the then current year;
(c) the lien of taxes and assessments not at the time delinquent;
(d) the lien of specified taxes and assessments which are delinquent but the validity of which
is being contested at the time by the Company or such Subsidiary in good faith and by appropriate
proceedings;
(e) any obligations or duties, affecting the property of the Company or such Subsidiary, to
any municipality or public authority with respect to any franchise, grant, license, permit or
similar arrangement;
(f) the liens of any judgments or attachment in an aggregate amount not in excess of
$10,000,000, or the lien of any judgment or attachment the execution or enforcement of which has
been stayed or which has been appealed and secured, if necessary, by the filing of an appeal bond;
(g) any lien on any property held or used by the Company or a Subsidiary in connection with
the exploration for, development of or production of oil, gas, natural gas (including liquefied gas
and storage gas), other hydrocarbons, helium, coal, metals, minerals, steam, timber, geothermal or
other natural resources or synthetic fuels, such properties to include, but not be limited to, the
Companys or a Subsidiarys interest in any mineral fee interests, oil, gas or other mineral
leases, royalty, overriding royalty or net profits interests, production payments and other similar
interests, wellhead production equipment, tanks, field gathering lines, leasehold or field
separation and processing facilities, compression facilities and other similar personal property
and fixtures;
(h) any lien on oil, gas, natural gas (including liquefied gas and storage gas), and other
hydrocarbons, helium, coal, metals, minerals, steam, timber, geothermal or other natural resources
or synthetic fuels produced or recovered from any property, an interest in which is owned or leased
by the Company or a Subsidiary;
(i) liens upon any property heretofore or hereafter acquired, constructed or improved, created
at the later of the time of acquisition or commercial operation thereof, or within one year
thereafter (and accessions and proceeds thereof), to secure all or a portion of the purchase price
thereof or the cost of such construction or improvement, or existing thereon at the date of
acquisition, whether or not assumed by the Company or a Subsidiary, provided that every such lien
shall apply only to the property so acquired or constructed and fixed improvements thereon (and
accessions and proceeds thereof);
(j) any extension, renewal or refunding, in whole or in part, of any lien permitted by
subparagraph (i) above, if limited to the same property or any portion thereof subject to, and
securing not more than the amount secured by, the lien extended, renewed or refunded;
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(k) liens upon any property of any entity heretofore or hereafter acquired by any entity that
is or becomes a Subsidiary after the date hereof (Acquired Entity) provided that every such lien
(1) shall either (A) exist prior to the time the Acquired Entity becomes a Subsidiary or (B) be
created at the time the Acquired Entity becomes a Subsidiary or within one year thereafter to
secure all or a portion of the acquisition price thereof and (2) shall only apply to those
properties owned by the Acquired Entity at the time it becomes a Subsidiary or thereafter acquired
by it from sources other than the Company or any other Subsidiary;
(l) the pledge of current assets, in the ordinary course of business, to secure current
liabilities;
(m) any lien arising by reason of deposits with, or the giving of any form of security to, any
governmental agency or any body created or approved by law or governmental regulation for any
purpose at any time in connection with the financing of the acquisition or construction of property
to be used in the business of the Company or a Subsidiary or as required by law or governmental
regulation as a condition to the transaction of any business or the exercise of any privilege or
license, or to enable the Company or a Subsidiary to maintain self-insurance or to participate in
any funds established to cover any insurance risks or in connection with workmens compensation,
unemployment insurance, old age pensions or other social security, or to share in the privileges or
benefits required for companies participating in such arrangements; the lien reserved in leases for
rent and for compliance with the terms of the lease in the case of leasehold estates; mechanics or
materialmens liens, any liens or charges arising by reason of pledges or deposits to secure
payment of workmens compensation or other insurance, good faith deposits in connection with
tenders, leases of real estate, bids or contracts (other than contracts for the payment of money),
deposits to secure duties or public or statutory obligations, deposits to secure, or in lieu of,
surety, stay or appeal bonds, and deposits as security for the payment of taxes or assessments or
similar charges;
(n) any lien of or upon any office equipment, data processing equipment (including, without
limitation, computer and computer peripheral equipment), or transportation equipment (including,
without limitation, motor vehicles, tractors, trailers, marine vessels, barges, towboats, rolling
stock and aircraft);
(o) any lien created or assumed by the Company or a Subsidiary in connection with the issuance
of debt securities the interest on which is excludable from gross income of the holder of such
security pursuant to the Internal Revenue Code, as amended, for the purposes of financing, in whole
or in part, the acquisition or construction of property to be used by the Company or a Subsidiary;
or
(p) the pledge or assignment of accounts receivable, or the pledge or assignment of
conditional sales contracts or chattel mortgages and evidences of indebtedness secured thereby,
received in connection with the sale by the Company or such Subsidiary or others of goods or
merchandise to customers of the Company or such Subsidiary.
In case the Company or any Subsidiary shall propose to pledge, mortgage, or hypothecate any
Principal Property at any time owned by it to secure any indebtedness, other than as permitted by
paragraphs (a) to (p), inclusive, of this Section 303, the Company shall prior thereto
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give written notice thereof to the Trustee, and the Company shall or shall cause such
Subsidiary to, prior to or simultaneously with such pledge, mortgage or hypothecation, by
supplemental indenture executed and delivered to the Trustee (or to the extent legally necessary to
another trustee or additional or separate trustee), in form satisfactory to the Trustee,
effectively secure all the Notes equally and ratably with, or prior to, such indebtedness.
Notwithstanding the foregoing provisions of this Section 303, the Company or a Subsidiary may
issue, assume or guarantee indebtedness secured by a mortgage which would otherwise be subject to
the foregoing restrictions in an aggregate amount which, together with all other indebtedness of
the Company or a Subsidiary secured by a mortgage which (if originally issued, assumed or
guaranteed at such time) would otherwise be subject to the foregoing restrictions (not including
indebtedness permitted to be secured under subdivisions (a) through (p) above) and the Value of all
Sale and Leaseback Transactions in existence at such time (other than any Sale and Leaseback
Transaction which, if such Sale and Leaseback Transaction had been a lien, would have been
permitted by paragraph (i), (j) or (k) of this Section 303 and other than Sale and Leaseback
Transactions as to which application of amounts have been made in accordance with Section 304) does
not at the time of incurrence of such indebtedness exceed 5% of Consolidated Net Tangible Assets.
Value means, with respect to a Sale and Leaseback Transaction, as of any particular time, the
amount equal to the greater of (1) the net proceeds from the sale or transfer of the property
leased pursuant to such Sale and Leaseback Transaction or (2) the fair value, in the opinion of the
Board of Directors, of such property at the time of entering into such Sale and Leaseback
Transaction, in either case divided first by the number of full years of the term of the lease and
then multiplied by the number of full years of such term remaining at the time of determination,
without regard to any renewal or extension options contained in the lease.
For purposes of this Section 303, Subsidiary does not include a Project Finance Subsidiary.
Section 304. Restrictions on Sale and Leaseback Transactions. The Company shall not, nor
shall it permit any Subsidiary to, enter into any Sale and Leaseback Transaction unless the net
proceeds of such sale are at least equal to the fair value (as determined by the Board of
Directors) of such Principal Property and either (a) the Company or such Subsidiary would be
entitled, pursuant to the provisions of (1) paragraph (i) or (j) of Section 303 or (2) paragraph
(k) of Section 303, to incur indebtedness secured by a lien on the Principal Property to be leased
without equally and ratably securing the Notes, or (b) the Company shall, and in any such case the
Company covenants that it will, within 120 days of the effective date of any such arrangement,
apply an amount not less than the fair value (as so determined) of such Principal Property (i) to
the payment or other retirement of Funded Debt incurred or assumed by the Company which ranks
senior to or pari passu with the Notes or of Funded Debt incurred or assumed by any Subsidiary
(other than, in either case, Funded Debt owned by the Company or any Subsidiary), or (ii) to the
purchase at not more than fair value (as so determined) of Principal Property (other than the
Principal Property involved in such sale). For this purpose, Funded Debt means any indebtedness
which by its terms matures at or is extendable or renewable at the sole option of the obligor
thereon without requiring the consent of the obligee to a date more than 12 months after the date
of the creation of such indebtedness.
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For purposes of this Section 304, Subsidiary does not include a Project Finance Subsidiary.
Section 305. Expiration of Restrictions on Liens and Restrictions on Sale and Leaseback
Transactions. Notwithstanding anything to the contrary herein, on the date (the Termination
Date) (and continuing thereafter) on which there remains outstanding, in the aggregate, no more
than $200,000,000 in principal amount of Long-Term Indebtedness, the covenants of the Company set
forth in Sections 303 and 304 hereof shall terminate and the Company shall no longer be subject to
the covenants set forth in such Sections.
ARTICLE FOUR
Optional Redemption of the Notes
Section 401. Redemption Price.
(a) The Company shall have the right to redeem the Notes, in whole or in part, at its option
at any time from time to time at a price equal to (i) 100% of the principal amount thereof plus
(ii) accrued and unpaid interest thereon, if any, to (but excluding) the Redemption Date plus
(iii) the Make-Whole Premium, if any (collectively, the Redemption Price).
(b) The amount of the Make-Whole Premium with respect to any Note (or portion thereof) to be
redeemed will be equal to the excess, if any, of: (i) the sum of the present values, calculated as
of the Redemption Date, of: (A) each interest payment that, but for such redemption, would have
been payable on the Note (or portion thereof) being redeemed on each Interest Payment Date
occurring after the Redemption Date (excluding any accrued and unpaid interest for the period prior
to the Redemption Date); and (B) the principal amount that, but for such redemption, would have
been payable on the Note (or portion thereof) being redeemed at the Maturity Date; over (ii) the
principal amount of the Note (or portion thereof) being redeemed. The present values of interest
and principal payments referred to in clause (i) above will be determined in accordance with
generally accepted principles of financial analysis. Such present values will be calculated by
discounting the amount of each payment of interest or principal from the date that each such
payment would have been payable, but for the redemption, to the Redemption Date at a discount rate
equal to the Comparable Treasury Yield (as defined below) plus 35 basis points.
(c) The Make-Whole Premium shall be calculated by an independent investment banking
institution of national standing appointed by the Company; provided, that if the Company fails to
make such appointment at least 45 days prior to the Redemption Date, or if the institution so
appointed is unwilling or unable to make such calculation, such calculation shall be made by
Barclays Capital Inc., Credit Suisse Securities (USA) LLC or Lehman Brothers Inc., or, if such
firms are unwilling or unable to make such calculation, by a different independent investment
banking institution of national standing appointed by the Company (in any such case, an
Independent Investment Banker).
Section 402. Make-Whole Premium Calculation.
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(a) For purposes of determining the Make-Whole Premium, Comparable Treasury Yield means a
rate of interest per annum equal to the weekly average yield to maturity of United States Treasury
securities that have a constant maturity that corresponds to the remaining term to maturity of the
Notes to be redeemed, calculated to the nearest 1/12th of a year (the Remaining Term). The
Comparable Treasury Yield shall be determined as of the third Business Day immediately preceding
the applicable Redemption Date.
(b) The weekly average yields of United States Treasury securities shall be determined by
reference to the most recent statistical release published by the Federal Reserve Bank of New York
and designated H.15 (519) Selected Interest Rates or any successor release (the H.15 Statistical
Release). If the H.15 Statistical Release sets forth a weekly average yield for United States
Treasury securities having a constant maturity that is the same as the Remaining Term, then the
Comparable Treasury Yield shall be equal to such weekly average yield. In all other cases, the
Comparable Treasury Yield shall be calculated by interpolation, on a straight-line basis, between
the weekly average yields on the United States Treasury securities that have a constant maturity
closest to and greater than the Remaining Term and the United States Treasury securities that have
a constant maturity closest to and less than the Remaining Term (in each case as set forth in the
H.15 Statistical Release). Any weekly average yields so calculated by interpolation shall be
rounded to the nearest 1/100th of 1%, with any figure of 1/200th of 1% or above being rounded
upward. If weekly average yields for United States Treasury securities are not available in the
H.15 Statistical Release or otherwise, then the Comparable Treasury Yield shall be calculated by
interpolation of comparable rates selected by the Independent Investment Banker.
Section 403. Partial Redemption. If the Company redeems the Notes in part pursuant to this
Article Four, the Trustee shall select the Notes to be redeemed on a pro rata basis or by lot or by
such other method that the Trustee in its sole discretion deems fair and appropriate. The Company
shall redeem Notes pursuant to this Article Four in multiples of $1,000 in original principal
amount. A new Note in principal amount equal to the unredeemed portion of the original Note shall
be issued upon cancellation of the original Note.
Section 404. Notice of Optional Redemption. If the Company elects to exercise its right to
redeem all or some of the Notes pursuant to this Article Four, the Company or the Trustee shall
mail a notice of such redemption to each Holder of a Note that is to be redeemed not less than 30
days and not more than 60 days before the Redemption Date. If any Note is to be redeemed in part
only, the notice of redemption shall state the portion of the principal amount to be redeemed.
ARTICLE FIVE
REMEDIES
Section 501. Additional Event of Default; Acceleration of Maturity.
(a) Solely with respect to the Notes issued hereby, Section 501(7) of the Original Indenture
is hereby deleted in its entirety, and the following is substituted in lieu thereof as an
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Event of Default in addition to the other events set forth in Section 501 of the Original
Indenture:
(7) the default by the Company or any Subsidiary, other than a Project
Finance Subsidiary, in the payment, when due, after the expiration of any
applicable grace period, of principal of indebtedness for money borrowed,
other than Non-Recourse Debt, in the aggregate principal amount then
outstanding of $50 million or more, or acceleration of any indebtedness for
money borrowed in such aggregate principal amount so that it becomes due and
payable prior to the date on which it would otherwise have become due and
payable and such acceleration is not rescinded or such default is not cured
within 30 days after there has been given, by registered or certified mail,
to the Company by the Trustee or to the Company and the Trustee by the
holders of at least 25% in principal amount of Notes written notice
specifying such default and requiring the Company to cause such acceleration
to be rescinded or such default to be cured and stating that such notice is
a Notice of Default under the Indenture;.
(b) Solely with respect to the Notes issued hereby, the first paragraph of Section 502 of the
Original Indenture is hereby deleted in its entirety, and the following is substituted in lieu
thereof:
If an Event of Default (other than an Event of Default specified in Section
501(5) or 501(6)) with respect to the Notes at the time Outstanding occurs
and is continuing, then in every such case the Trustee or the Holders of not
less than 25% in principal amount of the Notes Outstanding may declare the
principal amount of all the Notes to be due and payable immediately, by a
notice in writing to the Company (and to the Trustee if given by Holders),
and upon any such declaration such principal amount (or specified amount)
shall become immediately due and payable. If an Event of Default specified
in Section 501(5) or 501(6) with respect to the Notes at the time
Outstanding occurs and is continuing, the principal amount of all the Notes
shall automatically, and without any declaration or other action on the part
of the Trustee or any Holder, become immediately due and payable.
Section 502. Expiration of Additional Event of Default. Notwithstanding anything to the
contrary herein, on the Termination Date (and continuing thereafter), the event of default of the
Company set forth in Section 501(a) hereof shall terminate and the Company shall no longer be
subject to such event of default.
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ARTICLE SIX
Miscellaneous Provisions
Section 601. The Indenture, as supplemented and amended by this Supplemental Indenture No. 13,
is in all respects hereby adopted, ratified and confirmed.
Section 602. This Supplemental Indenture No. 13 may be executed in any number of counterparts,
each of which shall be an original, but such counterparts shall together constitute but one and the
same instrument.
Section 603. THIS SUPPLEMENTAL INDENTURE NO. 13 AND EACH NOTE SHALL BE DEEMED TO BE A CONTRACT
MADE UNDER THE LAWS OF THE STATE OF NEW YORK AND SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES THEREOF.
Section 604. If any provision in this Supplemental Indenture No. 13 limits, qualifies or
conflicts with another provision hereof which is required to be included herein by any provisions
of the Trust Indenture Act, such required provision shall control.
Section 605. In case any provision in this Supplemental Indenture No. 13 or the Notes shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
Section 606. The recitals contained herein shall be taken as the statements of the Company,
and the Trustee assumes no responsibility for their correctness. The Trustee makes no
representations as to the proper authorization or due execution hereof or of the Notes by the
Company.
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture No. 13 to be
duly executed, as of the day and year first written above.
CENTERPOINT ENERGY RESOURCES CORP.
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By: |
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Name:
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David M. McClanahan |
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Title:
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President and Chief Executive Officer |
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Attest: |
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Name: Richard B. Dauphin |
Title: Assistant Corporate Secretary
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(SEAL) |
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THE BANK OF NEW YORK TRUST COMPANY, NATIONAL |
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ASSOCIATION, |
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As Trustee |
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By: |
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Name:
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Marcella Burgess |
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Title:
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Assistant Vice President and Trust Officer |
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(SEAL) |
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Exhibit A
[FORM OF FACE OF SECURITY]
[IF THIS SECURITY IS TO BE A GLOBAL SECURITY -] THIS SECURITY IS A GLOBAL SECURITY WITHIN THE
MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE OF A DEPOSITARY. THIS SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A
PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
INDENTURE AND MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE
DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE
DEPOSITARY.
[For as long as this Global Security is deposited with or on behalf of The Depository Trust Company
it shall bear the following legend.] Unless this certificate is presented by an authorized
representative of The Depository Trust Company, a New York corporation (DTC), to CenterPoint
Energy Resources Corp. or its agent for registration of transfer, exchange, or payment, and any
certificate issued is registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC (and any payment is made to Cede & Co. or to such other entity
as is requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof,
Cede & Co., has an interest herein.
CENTERPOINT ENERGY RESOURCES CORP.
6.00% Senior Notes due 2018
CENTERPOINT ENERGY RESOURCES CORP., a corporation duly organized and existing under the laws
of the State of Delaware formerly known as NorAm Energy Corp. (herein called the Company, which
term includes any successor Person under the Indenture hereinafter referred to), for value
received, hereby promises to pay to , or registered assigns, the principal sum of
Dollars on May 15, 2018, and to pay interest thereon from May 15, 2008 or from
the most recent Interest Payment Date to which interest has been paid or duly provided for,
semi-annually on May 15 and November 15 in each year, commencing November 15, 2008, at the rate of
6.00% per annum, until the principal hereof is paid or made available for payment, provided
that any principal and premium, and any such installment of interest, which is overdue shall bear
interest at the rate of 6.00% per annum (to the extent permitted by applicable law), from the dates
such amounts are due until they are paid or made available for payment, and such interest shall be
payable on demand. The amount
A-1
of interest payable for any period shall be computed on the basis of twelve 30-day months and
a 360-day year. The amount of interest payable for any partial period shall be computed on the
basis of a 360-day year of twelve 30-day months and the days elapsed in any partial month. In the
event that any date on which interest is payable on this Security is not a Business Day, then a
payment of the interest payable on such date will be made on the next succeeding day which is a
Business Day (and without any interest or other payment in respect of any such delay) with the same
force and effect as if made on the date the payment was originally payable. A Business Day shall
mean, when used with respect to any Place of Payment, each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in that Place of Payment are authorized or
obligated by law or executive order to close. The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in such Indenture, be paid to the
Person in whose name this Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest, which shall be the May 1 or
November 1 (whether or not a Business Day), as the case may be, next preceding such Interest
Payment Date. Any such interest not so punctually paid or duly provided for shall forthwith cease
to be payable to the Holder on such Regular Record Date and shall either be paid to the Person in
whose name this Security (or one or more Predecessor Securities) is registered at the close of
business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof shall be given to Holders of Securities of this series not less than 10
days prior to such Special Record Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange or automated quotation system on
which the Securities of this series may be listed or traded, and upon such notice as may be
required by such exchange or automated quotation system, all as more fully provided in said
Indenture.
Payment of the principal of (and premium, if any) and any such interest on this Security will
be made at the Corporate Trust Office of the Trustee, in such coin or currency of the United States
of America as at the time of payment is legal tender for payment of public and private debts;
provided, however, that at the option of the Company payment of interest may be
made (i) by check mailed to the address of the Person entitled thereto as such address shall appear
in the Security Register or (ii) by wire transfer in immediately available funds at such place and
to such account as may be designated in writing by the Person entitled thereto as specified in the
Security Register.
Reference is hereby made to the further provisions of this Security set forth on the reverse
hereof, which further provisions shall for all purposes have the same effect as if set forth at
this place.
Unless the certificate of authentication hereon has been executed by the Trustee referred to
on the reverse hereof by manual signature, this Security shall not be entitled to any benefit under
the Indenture or be valid or obligatory for any purpose.
A-2
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed under its
corporate seal.
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Dated: May 15, 2008 |
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CENTERPOINT ENERGY RESOURCES CORP. |
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By: |
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Name:
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David M. McClanahan |
(SEAL)
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Title:
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President and Chief Executive
Officer |
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Attest: |
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Name: Richard B. Dauphin |
Title: Assistant Corporate Secretary |
This is one of the Securities of the series designated therein referred to in the
within-mentioned Indenture.
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THE BANK OF NEW YORK TRUST COMPANY, NATIONAL |
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ASSOCIATION |
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As Trustee |
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Date of Authentication: |
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By: |
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Authorized Signatory |
A-3
[FORM OF REVERSE SIDE OF SECURITY]
CENTERPOINT ENERGY RESOURCES CORP.
6.00% SENIOR NOTES DUE 2018
This Security is one of a duly authorized issue of securities of the Company (herein called
the Securities), issued and to be issued in one or more series under an Indenture, dated as of
February 1, 1998 (herein called the Indenture, which term shall have the meaning assigned to it
in such instrument), between the Company and The Bank of New York Trust Company, National
Association (successor to JPMorgan Chase Bank, National Association (formerly Chase Bank of Texas,
National Association)), as Trustee (herein called the Trustee, which term includes any successor
trustee under the Indenture), to which Indenture and all indentures supplemental thereto reference
is hereby made for a statement of the respective rights, limitations of rights, duties and
immunities thereunder of the Company, the Trustee and the Holders of the Securities and of the
terms upon which the Securities are, and are to be, authenticated and delivered. This Security is
one of the series designated on the face hereof, initially limited in aggregate principal amount to
$300,000,000; provided, however, that the authorized aggregate principal amount of
the Securities may be increased above such amount by a Board Resolution to such effect.
The Company shall have the right to redeem the Securities of this series, in whole or in part,
at its option at any time from time to time at a price equal to (i) 100% of the principal amount
thereof plus (ii) accrued and unpaid interest thereon, if any, to (but excluding) the Redemption
Date plus (iii) the Make-Whole Premium, if any.
The amount of the Make-Whole Premium with respect to any Security of this Series (or portion
thereof) to be redeemed will be equal to the excess, if any, of: (i) the sum of the present
values, calculated as of the Redemption Date, of: (A) each interest payment that, but for such
redemption, would have been payable on the Security of this series (or portion thereof) being
redeemed on each Interest Payment Date occurring after the Redemption Date (excluding any accrued
and unpaid interest for the period prior to the Redemption Date); and (B) the principal amount
that, but for such redemption, would have been payable on the Security of this series (or portion
thereof) being redeemed at May 15, 2018; over (ii) the principal amount of the Security of this
series (or portion thereof) being redeemed. The present values of interest and principal payments
referred to in clause (i) above will be determined in accordance with generally accepted principles
of financial analysis. Such present values will be calculated by discounting the amount of each
payment of interest or principal from the date that each such payment would have been payable, but
for the redemption, to the Redemption Date at a discount rate equal to the Comparable Treasury
Yield (as defined below) plus 35 basis points.
For purposes of determining the Make-Whole Premium, Comparable Treasury Yield means a rate
of interest per annum equal to the weekly average yield to maturity of United States Treasury
securities that have a constant maturity that corresponds to the remaining term to maturity of the
Securities of this series, calculated to the nearest 1/12th of a year (the Remaining Term). The
Comparable Treasury Yield shall be determined as of the third Business Day immediately preceding
the Redemption Date.
A-4
The weekly average yields of United States Treasury securities shall be determined by
reference to the most recent statistical release published by the Federal Reserve Bank of New York
and designated H.15 (519) Selected Interest Rates or any successor release (the H.15 Statistical
Release). If the H.15 Statistical Release sets forth a weekly average yield for United States
Treasury securities having a constant maturity that is the same as the Remaining Term, then the
Comparable Treasury Yield shall be equal to such weekly average yield. In all other cases, the
Comparable Treasury Yield shall be calculated by interpolation, on a straight-line basis, between
the weekly average yields on the United States Treasury securities that have a constant maturity
closest to and greater than the Remaining Term and the United States Treasury securities that have
a constant maturity closest to and less than the Remaining Term (in each case as set forth in the
H.15 Statistical Release). Any weekly average yields so calculated by interpolation shall be
rounded to the nearest 1/100th of 1%, with any figure of 1/200th of 1% or above being rounded
upward. If weekly average yields for United States Treasury securities are not available in the
H.15 Statistical Release or otherwise, then the Comparable Treasury Yield shall be calculated by
interpolation of comparable rates selected by the Independent Investment Banker.
In the event of redemption of this Security in part only, a new Security or Securities of this
series and of like tenor for the unredeemed portion hereof will be issued in the name of the Holder
hereof upon the cancellation hereof.
The Securities of this series are not entitled to the benefit of any sinking fund.
The Indenture contains provisions for satisfaction and discharge of the entire indebtedness of
this Security upon compliance by the Company with certain conditions set forth in the Indenture.
The Indenture contains provisions for defeasance at any time of the entire indebtedness of
this Security or certain restrictive covenants and Events of Default with respect to this Security,
in each case upon compliance with certain conditions set forth in the Indenture.
If an Event of Default with respect to Securities of this series shall occur and be
continuing, the principal of the Securities of this series may be declared due and payable in the
manner and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and
the modification of the rights and obligations of the Company and the rights of the Holders of the
Securities of each series to be affected under the Indenture at any time by the Company and the
Trustee with the consent of the Holders of a majority in principal amount of the Securities at the
time Outstanding of each series to be affected. The Indenture also contains provisions permitting
the Holders of specified percentages in principal amount of the Securities of each series at the
time Outstanding, on behalf of the Holders of all Securities of such series, to waive compliance by
the Company with certain provisions of the Indenture and certain past defaults under the Indenture
and their consequences. Any such consent or waiver by the Holder of this Security shall be
conclusive and binding upon such Holder and upon all future Holders of this Security and of any
Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Security.
A-5
As provided in and subject to the provisions of the Indenture, the Holder of this Security
shall not have the right to institute any proceeding with respect to the Indenture or for the
appointment of a receiver or trustee or for any other remedy thereunder, unless such Holder shall
have previously given the Trustee written notice of a continuing Event of Default with respect to
the Securities of this series, the Holders of not less than 25% in principal amount of the
Securities of this series at the time Outstanding shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default as Trustee and offered the Trustee
reasonable indemnity, and the Trustee shall not have received from the Holders of a majority in
principal amount of Securities of this series at the time Outstanding a direction inconsistent with
such request, and shall have failed to institute any such proceeding, for 60 days after receipt of
such notice, request and offer of indemnity. The foregoing shall not apply to any suit instituted
by the Holder of this Security for the enforcement of any payment of principal hereof or any
premium or interest hereon on or after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Security or of the Indenture
shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay
the principal of and any premium and interest on this Security at the times, place and rate, and in
the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set forth, the
transfer of this Security is registrable in the Security Register, upon surrender of this Security
for registration of transfer at the office or agency of the Company in any place where the
principal of and any premium and interest on this Security are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the Company and the
Security Registrar duly executed by, the Holder hereof or his attorney duly authorized in writing,
and thereupon one or more new Securities of this series and of like tenor, of authorized
denominations and for the same aggregate principal amount, will be issued to the designated
transferee or transferees. No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer, the Company, the
Trustee and any agent of the Company or the Trustee may treat the Person in whose name this
Security is registered as the owner hereof for all purposes, whether or not this Security be
overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
The Securities of this series are issuable only in registered form without coupons in
denominations of $1,000 and any integral multiple thereof. As provided in the Indenture and
subject to certain limitations therein set forth, Securities of this series are exchangeable for a
like aggregate principal amount of Securities of this series and of like tenor of a different
authorized denomination, as requested by the Holder surrendering the same.
All terms used in this Security which are defined in the Indenture shall have the meanings
assigned to them in the Indenture.
A-6
THE INDENTURE AND THIS SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES THEREOF.
A-7
exv5w1
Exhibit-5.1
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May 15, 2008
064363.0203
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ONE SHELL PLAZA
910 LOUISIANA
HOUSTON, TEXAS
77002-4995
TEL +1 713.229.1234
FAX +1 713.229.1522
www.bakerbotts.com
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AUSTIN
BEIJING
DALLAS
DUBAI
HONG KONG
HOUSTON
LONDON
MOSCOW
NEW YORK
RIYADH
WASHINGTON |
CenterPoint Energy Resources Corp.
1111 Louisiana
Houston, Texas 77002
Ladies and Gentlemen:
In connection with the issuance by CenterPoint Energy Resources Corp., a Delaware corporation
(the Company), of $300,000,000 aggregate principal amount of its 6.00% Senior Notes due 2018 (the
Notes) pursuant to (a) the Companys Registration Statement on Form S-3 (Registration No.
333-145223) (the Registration Statement), which was filed by the Company with the Securities and
Exchange Commission (the Commission) under the Securities Act of 1933, as amended (the Act),
and (b) the related prospectus dated August 20, 2007, as supplemented by the prospectus supplement
relating to the sale of the Notes dated May 12, 2008 (as so supplemented, the Prospectus), as
filed by the Company with the Commission pursuant to Rule 424(b) under the Act, certain legal
matters with respect to the Notes are being passed upon for you by us. At your request, this
opinion is being furnished to you for filing as Exhibit 5.1 to the Companys Current Report on Form
8-K to be filed with the Commission on the date hereof (the Form 8-K).
The Notes are to be issued pursuant to an Indenture, dated as of February 1, 1998, as
heretofore supplemented and amended (the Base Indenture), between the Company, formerly known as
NorAm Energy Corp., and The Bank of New York Trust Company, National
Association (successor to JPMorgan Chase Bank, National Association (formerly Chase Bank of
Texas, National Association)), as trustee (the Trustee), as supplemented by Supplemental
Indenture No. 13 to the Base Indenture, dated as of May 15, 2008 (the Supplemental Indenture and,
together with the Base Indenture, the Indenture), by and between the Company and the Trustee. The
terms of the Notes (including the form of Note) are established by the Supplemental Indenture.
In our capacity as your counsel in the connection referred to above, we have examined
originals, or copies certified or otherwise identified, of (i) the Companys Certificate of
Incorporation and By-laws, in each case as amended to date; (ii) the Underwriting Agreement, dated
May 12, 2008 (the Underwriting Agreement), by and among the Company and the Underwriters named in
Schedule I thereto (the Underwriters), relating to the issuance and sale of the Notes; (iii) the
Registration Statement and the Prospectus; (iv) the Indenture; and (v) the corporate records of the
Company as furnished to us by you, certificates of public officials and of representatives of the
Company, statutes and other instruments and documents as a basis for the opinions hereinafter
expressed. In giving such opinions, we have relied upon certificates of officers of the Company
and of public officials with respect to the accuracy of the material factual matters contained in
such certificates. In giving the opinions below, we have assumed that the signatures on all
documents examined by us are genuine, that all documents submitted to us
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CenterPoint Energy Resources Corp.
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May 15, 2008 |
as originals are accurate
and complete, that all documents submitted to us as copies are true and correct copies of the
originals thereof and that all information submitted to us was accurate and complete.
On the basis of the foregoing, and subject to the assumptions, limitations and qualifications
hereinafter set forth, we are of the opinion that the Notes will, when duly executed, issued and
delivered by the Company, authenticated and delivered by the Trustee in accordance with the terms
of the Indenture and duly purchased and paid for by the Underwriters in accordance with the terms
of the Underwriting Agreement, constitute legal, valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms, except as that enforcement is
subject to any applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer
or conveyance or other laws relating to or affecting creditors rights generally, general
principles of equity (regardless of whether that enforceability is considered in a proceeding in
equity or at law) and any implied covenants of good faith and fair dealing.
The opinions set forth above are limited in all respects to matters of the contract law of the
State of New York, the General Corporation Law of the State of Delaware and applicable federal law.
We hereby consent to the filing of this opinion of counsel as Exhibit 5.1 to the Form 8-K. We
also consent to the reference to our Firm under the heading Legal Matters in the Prospectus. In
giving this consent, we do not hereby admit that we are in the category of persons whose consent is
required under Section 7 of the Act or the rules and regulations of the Commission thereunder.
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Very truly yours,
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/s/ BAKER BOTTS L.L.P.
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GMS/JRD/GCJ