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As filed with the Securities and Exchange
Commission on August 10, 2011
Registration No. 333-174322
UNITED STATES SECURITIES AND
EXCHANGE COMMISSION
Washington, D.C. 20549
Amendment No. 2 to
Form S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
CenterPoint Energy Resources
Corp.
(Exact name of registrant as
specified in its charter)
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Delaware
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4911
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76-0511406
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(State or other jurisdiction
of
incorporation or organization)
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(Primary Standard Industrial
Classification Code Number)
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(I.R.S. Employer
Identification No.)
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1111 Louisiana
Houston, Texas 77002
(713) 207-1111
(Address,
including zip code, and telephone number,
including area code, of registrants principal executive
offices)
Christopher J. Arntzen
Vice President, Deputy General
Counsel and Assistant Secretary
1111 Louisiana
Houston, Texas 77002
(713) 207-1111
(Name, address, including zip
code, and telephone number, including area code, of agent for
service)
Copies to:
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Gerald M. Spedale
Baker Botts L.L.P.
One Shell Plaza
910 Louisiana
Houston, Texas
77002-4995
(713) 229-1234
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Approximate date of commencement of proposed sale to the
public: As soon as practicable following the
effectiveness of this registration statement.
If the securities being registered on this Form are to be
offered in connection with the formation of a holding company
and there is compliance with General Instruction G, check the
following
box. o
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act of
1933, check the following box and list the Securities Act
registration statement number of the earlier effective
registration statement for the same
offering. o
If this Form is a post-effective amendment filed pursuant to
Rule 462(d) under the Securities Act of 1933, check the
following box and list the Securities Act registration statement
number of the earlier effective registration statement for the
same
offering. o
Indicate by check mark whether the registrant is a large
accelerated filer, an accelerated filer, a non-accelerated
filer, or a smaller reporting company. See the definitions of
large accelerated filer, accelerated
filer and smaller reporting company in
Rule 12b-2 of the Exchange Act.
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Large accelerated
filer o
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Accelerated
filer o
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Non-accelerated
filer þ
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Smaller reporting
company o
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(Do not check if a smaller
reporting company)
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If applicable, place an X in the box to designate the
appropriate rule provision relied upon in conducting this
transaction:
Exchange Act Rule 13e-4(i) (Cross-Border Issuer Tender
Offer)
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Exchange Act Rule 14d-1(d) (Cross-Border Third-Party Tender
Offer)
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The registrant hereby amends this registration statement on
such date or dates as may be necessary to delay its effective
date until the registrant shall file a further amendment which
specifically states that this registration statement shall
thereafter become effective in accordance with Section 8(a)
of the Securities Act of 1933 or until this registration
statement shall become effective on such date as the Commission,
acting pursuant to said Section 8(a), may determine.
The
information in this prospectus is not complete and may be
changed. We may not sell these securities until the registration
statement filed with the Securities and Exchange Commission is
effective. This prospectus is not an offer to sell nor does it
seek an offer to buy these securities in any jurisdiction where
the offer or sale is not permitted.
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Subject to Completion, dated
August 10, 2011
PROSPECTUS
$892,998,000
CenterPoint Energy Resources
Corp.
Offer to Exchange
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4.50% Senior Notes due 2021, Series B
for all outstanding
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5.85% Senior Notes due 2041, Series B
for all outstanding
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4.50% Senior Notes due 2021, Series A
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5.85% Senior Notes due 2041, Series A
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CenterPoint Energy Resources Corp. (CERC Corp.) is
offering to exchange (this exchange offer) up to
(i) $592,998,000 aggregate principal amount of its
registered 4.50% Senior Notes due 2021, Series B,
which are referred to as the Exchange 2021 Notes,
for $592,998,000 aggregate principal amount of its outstanding
unregistered 4.50% Senior Notes due 2021, Series A,
which are referred to as the Original 2021 Notes,
and (ii) $300,000,000 aggregate principal amount of its
registered 5.85% Senior Notes due 2041, Series B,
which are referred to as the Exchange 2041 Notes
(and, together with the Exchange 2021 Notes, the Exchange
Notes), for $300,000,000 aggregate principal amount of its
outstanding unregistered 5.85% Senior Notes due 2041,
Series A, which are referred to as the Original 2041
Notes (and, together with the Original 2021 Notes, the
Original Notes). The terms of the Exchange Notes are
identical in all material respects to the terms of the Original
Notes for which they would be exchanged, except that the
Exchange Notes have been registered under the Securities Act of
1933 (the Securities Act) and, therefore, the terms
relating to transfer restrictions, registration rights and
additional interest applicable to the Original Notes are not
applicable to the Exchange Notes, and the Exchange Notes will
bear different CUSIP numbers.
The terms of this exchange offer include the following:
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This exchange offer will expire at 5:00 p.m., New York City
time,
on ,
2011, unless extended (the expiration date).
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All Original Notes that are validly tendered, and not validly
withdrawn, will be exchanged. You should carefully review the
procedures for tendering the Original Notes beginning on
page 17 of this prospectus.
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You may validly withdraw tenders of Original Notes at any time
before the expiration of this exchange offer.
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If you fail to tender your Original Notes, you will continue to
hold unregistered, restricted securities, and your ability to
transfer them could be adversely affected.
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The exchange of Original Notes for Exchange Notes will not be a
taxable event for United States federal income tax purposes.
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Original Notes may be exchanged for Exchange Notes only in
minimum denominations of $2,000 and integral multiples of $1,000.
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We will not receive any proceeds from this exchange offer.
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No public trading market currently exists for the Exchange
Notes. The Exchange Notes will not be listed on any national
securities exchange, and, therefore, an active public trading
market is not anticipated.
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The Exchange Notes will be issued under the same indenture as
the Original Notes.
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Each broker-dealer that receives Exchange Notes for its own
account in this exchange offer must acknowledge that it will
deliver a prospectus meeting the requirements of the Securities
Act in connection with any resale of those Exchange Notes. The
related letter of transmittal that is delivered with this
prospectus states that by so acknowledging and by delivering a
prospectus, a broker-dealer will not be deemed to admit that it
is an underwriter within the meaning of the
Securities Act. Accordingly, this prospectus, as it may be
amended or supplemented from time to time, may be used by a
broker-dealer in connection with resales of Exchange Notes
received in exchange for Original Notes the broker-dealer
acquired as a result of market-making activities or other
trading activities. We have agreed that we will make this
prospectus available to any broker-dealer for use in connection
with any such resale for a period of 180 days following
consummation of the exchange offer. See The Exchange
Offer Resale of Exchange Notes and Plan
of Distribution.
Each holder of Original 2021 Notes or Original 2041 Notes, as
the case may be, wishing to accept this exchange offer must
effect a tender of Original 2021 Notes or Original 2041 Notes,
as the case may be, by book-entry transfer into the account of
The Bank of New York Mellon Trust Company, N.A. (the
exchange agent) at The Depository Trust Company
(DTC). All deliveries are at the risk of the holder.
You can find detailed instructions concerning delivery in the
section of this prospectus entitled The Exchange
Offer.
See Risk Factors beginning on page 8 for a
discussion of factors that you should consider in connection
with participating in this exchange offer.
Neither the Securities and Exchange Commission (the
SEC) nor any state securities commission has
approved or disapproved of these securities or passed upon the
adequacy or accuracy of this prospectus. Any representation to
the contrary is a criminal offense.
YOU SHOULD READ THIS ENTIRE DOCUMENT AND THE ACCOMPANYING
LETTER OF TRANSMITTAL AND RELATED DOCUMENTS AND ANY AMENDMENTS
OR SUPPLEMENTS CAREFULLY BEFORE MAKING YOUR DECISION TO
PARTICIPATE IN THIS EXCHANGE OFFER.
, 2011
TABLE OF
CONTENTS
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Page
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10
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EX-23.1 |
You should rely only on the information contained or
incorporated by reference in this prospectus. We have not
authorized anyone to provide you with different information. If
anyone provides you with different or inconsistent information,
you should not rely on it. We are not making an offer to sell
these securities and are not soliciting an offer to buy these
securities in any jurisdiction where the offer or sale is not
permitted. You should assume that the information we have
included in this prospectus is accurate only as of the date of
this prospectus supplement and that any information we have
incorporated by reference is accurate only as of the date of the
document incorporated by reference.
This prospectus incorporates important business and financial
information about us from other documents that are not included
in or delivered with this prospectus. See Where You Can
Find More Information. The information is available to you
without charge upon your request. You can obtain the documents
incorporated by reference in this prospectus by requesting them
in writing or by telephone from us at the following address and
telephone number:
CenterPoint
Energy Resources Corp.
c/o CenterPoint
Energy, Inc.
Attn: Investor Relations
P.O. Box 4567
Houston, Texas
77210-4567
(713) 207-6500
To ensure timely delivery of any of our filings, agreements
or other documents, you must make your request to us no later
than ,
2011, which is five business days before the exchange offer will
expire at 5:00 p.m., New York City time,
on ,
2011.
SUMMARY
This summary highlights information from this prospectus. It
is not complete and may not contain all of the information that
you should consider before making your decision whether to
tender your Original Notes for exchange. We encourage you to
read this prospectus and the documents incorporated by reference
in their entirety before making a decision to participate in
this exchange offer, including the information set forth under
the heading Risk Factors. Unless the context clearly
indicates otherwise, references in this prospectus to
we, us, our, or other
similar terms mean CenterPoint Energy Resources Corp. and its
subsidiaries, and references to CenterPoint Energy
mean our indirect parent, CenterPoint Energy, Inc.
CenterPoint
Energy Resources Corp.
General
We own and operate natural gas distribution systems in six
states. Subsidiaries of ours own interstate natural gas
pipelines and gas gathering systems and provide various
ancillary services. A wholly owned subsidiary of ours offers
variable and fixed-price physical natural gas supplies primarily
to commercial and industrial customers and electric and gas
utilities. We are an indirect wholly owned subsidiary of
CenterPoint Energy, a public utility holding company.
Our principal executive offices are located at 1111 Louisiana,
Houston, Texas 77002 (telephone number:
713-207-1111).
1
Summary
of the Terms of the Exchange Offer
On January 11, 2011, we completed the private offering of
$250,000,000 aggregate principal amount of Original 2021 Notes
and $300,000,000 aggregate principal amount of Original 2041
Notes. We received proceeds, after deducting the discount to the
initial purchasers, of $545,357,000 from that offering. On
January 20, 2011, pursuant to an exchange offer (the
2013 Notes Exchange Offer), we issued an additional
$342,998,000 aggregate principal amount of Original 2021 Notes
and made a cash payment of approximately $114 million, in
exchange for $397,236,000 aggregate principal amount of our
7.875% senior notes due 2013.
In connection with the issuance of the Original Notes, we
entered into a registration rights agreement (the
registration rights agreement) with the initial
purchasers of the Original Notes and the dealer managers for the
2013 Notes Exchange Offer, in which we agreed to deliver to you
this prospectus and to use our reasonable commercial efforts to
complete this exchange offer for the Original Notes within
225 days after the date of issuance of additional Original
2021 Notes pursuant to the 2013 Notes Exchange Offer (unless the
registration statement of which this prospectus is a part is
reviewed by the SEC, in which case within 285 days). In
this exchange offer, you are entitled to exchange your Original
2021 Notes or Original 2041 Notes, as the case may be, for
Exchange 2021 Notes or Exchange 2041 Notes, respectively, with
substantially identical terms to the notes for which they are
exchanged, that are registered with the SEC.
The Exchange Notes will be governed by the indenture, dated as
of February 1, 1998, as supplemented (referred to in this
prospectus as the indenture), between us and The
Bank of New York Mellon Trust Company, N.A. (successor to
JPMorgan Chase Bank, National Association), as trustee. You
should read the discussion under the headings
Summary of the Terms of the Exchange
Notes and Description of the Exchange Notes
for further information about the Exchange Notes.
After this exchange offer is complete, you will no longer be
entitled to any exchange or registration rights for your
Original Notes.
We have summarized the terms of this exchange offer below. You
should read the discussion under The Exchange Offer
for further information about this exchange offer and resale of
the Exchange Notes.
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The Exchange Offer |
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We are offering to exchange up to |
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$592,998,000 in aggregate principal amount of
Exchange 2021 Notes for the same aggregate principal amount of
Original 2021 Notes, and
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$300,000,000 in aggregate principal amount of
Exchange 2041 Notes for the same aggregate principal amount of
Original 2041 Notes,
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properly tendered and not validly withdrawn before the
expiration date. This exchange offer consists of separate,
independent offers for each series of Original Notes. Original
Notes tendered must be in minimum denominations of $2,000 and
integral multiples of $1,000, with an equal principal amount of
Exchanges Notes to be exchanged for Original Notes surrendered.
The terms of each series of Exchange Notes are identical in all
material respects to those of the Original Notes for which they
may be exchanged except the Exchange Notes have been registered
under the Securities Act and will not contain provisions with
respect to transfer restrictions, registration rights or
additional interest. The Exchange Notes of a series will vote
together with the outstanding Original Notes of that series not
exchanged on all matters which the holders of such series of
Original Notes or Exchange Notes are entitled to vote. We are
making this exchange offer for all of the Original Notes. Your |
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participation in this exchange offer is voluntary, and you
should carefully consider whether to accept this offer. |
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On the date of this prospectus, $592,998,000 in aggregate
principal amount of Original 2021 Notes are outstanding and
$300,000,000 in aggregate principal amount of Original 2041
Notes are outstanding. Our obligations to accept Original Notes
for Exchange Notes pursuant to this exchange offer are limited
by the conditions listed below under
Conditions to the Exchange Offer. |
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Resale of Exchange Notes |
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Based on existing interpretations of the Securities Act by the
Staff of the Division of Corporation Finance of the SEC set
forth in several no-action letters to third parties and subject
to certain exceptions described in The Exchange
Offer Resale of Exchange Notes, we believe
that the Exchange Notes to be issued pursuant to this exchange
offer in exchange for Original Notes may be offered for resale,
resold and otherwise transferred without further compliance with
the registration and prospectus delivery requirements of the
Securities Act. |
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Expiration Date |
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The exchange offer for each series of Original Notes will expire
at 5:00 p.m., New York City time,
on ,
2011, unless we have extended the period of time that such
exchange offer is open. We may extend the expiration date for
the exchange offer for each series of Original Notes
independently. Please read The Exchange Offer
Expiration Date; Extension; Termination; Amendment for
more information about an extension of the expiration date. |
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Withdrawal Rights |
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You may withdraw your tender of Original Notes at any time
before 5:00 p.m., New York City time, on the expiration
date. The exchange agent will return the properly withdrawn
Original Notes promptly following receipt of a notice of
withdrawal. Please read The Exchange Offer
Withdrawal Rights for more information about withdrawing
tenders. |
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Conditions to the Exchange Offer |
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We will not be required to accept for exchange, or to issue
Exchange Notes of a series in exchange for, any Original Notes
of that series, if: |
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the exchange offer for that series, or the making of
any exchange by a holder of Original Notes of that series, would
violate applicable law or any applicable interpretation of the
Staff of the SEC; or
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any action or proceeding has been instituted or
threatened in any court or by or before any governmental agency
with respect to the exchange offer for that series that, in our
judgment, would reasonably be expected to impair our ability to
proceed with the exchange offer.
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The exchange offer for Original Notes of a series is not
conditioned upon any minimum aggregate principal amount of
Original Notes being tendered for exchange or upon the
consummation of the exchange offer for Original Notes of any
other series. This exchange offer is subject to customary
conditions, which we may waive in our sole discretion. Please
read The Exchange Offer |
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Conditions to the Exchange Offer for more information
about the conditions to this exchange offer. |
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Procedures for Tendering Original Notes |
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In order for Original Notes to be validly tendered pursuant to
this exchange offer, either |
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on or prior to the expiration date,
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a properly completed and
duly executed letter of transmittal or an electronic message
agreeing to be bound by the letter of transmittal properly
transmitted through DTCs Automated Tender Offer Program
for a book-entry transfer, with any required signature
guarantees and any other required documents, must be received by
the exchange agent and
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tendered Original Notes must
be received by the exchange agent, or such Original Notes must
be tendered pursuant to the procedures for book-entry transfer,
or
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the guaranteed delivery procedures set forth under
The Exchange Offer Procedures for Tendering
Original Notes Guaranteed Delivery must be
complied with.
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Please read The Exchange Offer Procedures for
Tendering Original Notes for more information on the
procedures for tendering Original Notes. |
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Beneficial Owners |
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Any beneficial owner of Original Notes that are held by or
registered in the name of a broker, dealer, commercial bank,
trust company or other nominee is urged to contact such entity
promptly if such beneficial holder wishes to participate in this
exchange offer. |
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Guaranteed Delivery |
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If a holder desires to tender Original Notes pursuant to this
exchange offer and the certificates for such Original Notes are
not immediately available or time will not permit all required
documents to reach the exchange agent before the expiration
date, or the procedures for book-entry transfer cannot be
completed on a timely basis, such Original Notes may
nevertheless be tendered by following the procedures set forth
under The Exchange Offer Procedures for
Tendering Original Notes Guaranteed Delivery. |
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Consequences of Failure to Exchange |
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If you do not exchange your Original Notes for Exchange Notes
pursuant to this exchange offer, you will continue to be subject
to the restrictions on transfer of the Original Notes as
described in the legend on the Original Notes. In general, the
Original Notes may be offered or sold only if registered under
the Securities Act, except pursuant to an exemption from, or in
a transaction not subject to, the Securities Act and applicable
state securities laws. Other than in connection with this
exchange offer, we do not currently anticipate that we will
register the Original Notes under the Securities Act. |
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If you do not tender your Original Notes in this exchange offer,
you will be entitled to all of the rights and limitations
applicable to the Original Notes under the indenture, except for
any rights under the registration rights agreement that by their
terms end or cease to |
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have further effectiveness as a result of the making of this
exchange offer, including, among others, the right to require us
to register your Original Notes. Please read The Exchange
Offer Consequences of Failure to Exchange. |
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Certain U.S. Federal Income Tax Considerations |
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The exchange of Original Notes for Exchange Notes will not be a
taxable event for United States federal income tax purposes.
Please read Certain U.S. Federal Income Tax
Considerations. |
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Use of Proceeds |
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We will not receive any cash proceeds from the issuance of the
Exchange Notes in this exchange offer. |
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Exchange Agent |
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The Bank of New York Mellon Trust Company, N.A. is the
exchange agent for this exchange offer. Any question and
requests for assistance with respect to accepting or withdrawing
from the exchange offer, requests for additional copies of this
prospectus or of the letter of transmittal and requests for the
notice of guaranteed delivery should be directed to the exchange
agent. The address and telephone number of the exchange agent
are set forth in the section captioned The Exchange
Offer Exchange Agent. |
5
Summary
of the Terms of the Exchange Notes
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Issuer |
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CenterPoint Energy Resources Corp. |
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Notes Offered |
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$592,998,000 aggregate principal amount of 4.50% Senior
Notes due 2021, Series B. |
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$300,000,000 aggregate principal amount of 5.85% Senior
Notes due 2041, Series B. |
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Interest Payment Dates |
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January 15 and July 15, beginning
on ,
2012. |
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Maturity Date |
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January 15, 2021 for the Exchange 2021 Notes. |
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January 15, 2041 for the Exchange 2041 Notes. |
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Ranking |
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The Exchange Notes will: |
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be general unsecured obligations;
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rank equally in right of payment with all of our
other existing and future unsecured and unsubordinated
indebtedness; and
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with respect to the assets and earnings of our
subsidiaries, structurally rank below all of the liabilities of
our subsidiaries.
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As of June 30, 2011, our consolidated subsidiaries had no
outstanding third-party debt. As of June 30, 2011, a
50 percent owned affiliate of ours had $375 million of
outstanding third-party debt. See Description of the
Exchange Notes Ranking of the Exchange Notes. |
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Significant Covenants |
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We will issue each series of the Exchange Notes under an
indenture containing certain restrictive covenants for your
benefit. Certain of these covenants, which are described under
Description of the Exchange Notes Restrictive
Covenants and are subject to termination as described,
initially restrict our ability, with some exceptions, to: |
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incur certain debt secured by liens; and
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engage in sale/leaseback transactions.
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Such covenants will terminate upon the maturity of our
7.875% senior notes due 2013 (assuming we incur no
additional long-term indebtedness that would delay the
termination). |
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In addition, the indenture restricts our ability to merge,
consolidate or transfer substantially all of our assets. See
Description of the Exchange Notes
Consolidation, Merger and Sale of Assets. |
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Optional Redemption |
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We may redeem all or a part of the Exchange Notes at any time
and from time to time as described under Description of
the Exchange Notes Optional Redemption. |
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Lack of Public Market |
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There is no existing market for either series of the Exchange
Notes. We cannot provide any assurance about: |
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the liquidity of any markets that may develop for
either series of the Exchange Notes;
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your ability to sell the Exchange Notes; or
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the prices at which you will be able to sell the
Exchange Notes.
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Future trading prices of the Exchange Notes will depend on many
factors, including: |
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prevailing interest rates;
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our operating results;
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the ratings of the notes; and
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the market for similar securities.
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We do not intend to apply for listing of either series of the
Exchange Notes on any securities exchange or for quotation of
either series of the Exchange Notes in any automated dealer
quotation system. |
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Trustee and Paying Agent |
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The Bank of New York Mellon Trust Company, N.A. (successor
to JPMorgan Chase Bank, National Association). |
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Governing Law |
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The indenture and the Exchange Notes are governed by, and
construed in accordance with, the laws of the State of New York. |
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Risk Factors |
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You should consider carefully all the information set forth and
incorporated by reference in this prospectus and, in particular,
you should evaluate the specific factors set forth under
Risk Factors in this prospectus, including, without
limitation, the information incorporated by reference therein
from Risk Factors in our Annual Report on
Form 10-K
for the year ended December 31, 2010, before deciding
whether to participate in this exchange offer. |
7
RISK
FACTORS
You should consider carefully the following information about
risks, the information identified in Part I, Item 1A
Risk Factors of our Annual Report on
Form 10-K
for the year ended December 31, 2010 (2010
Form 10-K)
and risks arising from any legal proceedings identified in
Part I Item 3 Legal Proceedings of our
2010
Form 10-K
and in Part II Item 3 Legal Proceedings of
our Quarterly Report on
Form 10-Q
for the quarter ended June 30, 2011, together with the
other information contained or incorporated by reference in this
prospectus, before making a decision whether to participate in
this exchange offer.
Risks
Factors Affecting Our Businesses
In considering whether to participate in this exchange offer,
you should carefully consider the information included or
incorporated by reference in this prospectus. In particular, you
should carefully consider the factors listed in Cautionary
Statement Regarding Forward-Looking Information as well as
the Risk Factors contained in our 2010
Form 10-K,
which is incorporated by reference herein.
Risk
Factors Relating to this Exchange Offer and the Exchange
Notes
If you
do not properly tender your Original Notes for Exchange Notes,
you will continue to hold unregistered notes that are subject to
transfer restrictions.
We will only issue Exchange Notes in exchange for Original Notes
that are received by the exchange agent in a timely manner
together with all required documents. Therefore, you should
allow sufficient time to ensure timely delivery of the Original
Notes, and you should carefully follow the instructions on how
to tender your Original Notes set forth under The Exchange
Offer Procedures for Tendering Original Notes
and in the letter of transmittal that you receive with this
prospectus. Neither we nor the exchange agent are required to
tell you of any defects or irregularities with respect to your
tender of the Original Notes.
If you do not tender your Original Notes or if we do not accept
your Original Notes because you did not tender your Original
Notes properly, you will continue to hold Original Notes. Any
Original Notes that remain outstanding after the expiration of
this exchange offer will continue to be subject to restrictions
on their transfer in accordance with the Securities Act. After
the expiration of this exchange offer, holders of Original Notes
will not have any further rights to have their Original Notes
registered under the Securities Act. In addition, if you tender
your Original Notes for the purpose of participating in a
distribution of the Exchange Notes, you will be required to
comply with the registration and prospectus delivery
requirements of the Securities Act in connection with any resale
of the Exchange Notes. If you continue to hold any Original
Notes after this exchange offer is completed, you may have
difficulty selling them because of the restrictions on transfer
and because we expect that there will be fewer Original Notes
outstanding, which could result in an illiquid trading market
for the Original Notes. The value of the remaining Original
Notes could be adversely affected by the conclusion of this
exchange offer. There may be no market for the remaining
Original Notes and thus you may be unable to sell such notes.
An
active trading market for the Exchange Notes may not
develop.
The Exchange Notes will be new issues of securities for which
there is currently no established trading market. We do not
intend to apply for the listing of either series of the Exchange
Notes on any securities exchange or for quotation of either
series of the Exchange Notes on any dealer quotation system.
Even if a market for the Exchange Notes does develop, we cannot
assure you that there will be liquidity in that market, or that
the Exchange Notes might not trade for less than their original
value or face amount. The liquidity of any market for the
Exchange Notes will depend on the number of holders of those
Notes, the interest of securities dealers in making a market in
the Exchange Notes and other factors. If a liquid market for the
Exchange Notes does not develop, you may be unable to resell the
Exchange Notes for a long period of time, if at all.
Accordingly, we cannot assure you as to the development or
liquidity of any trading market for the Exchange Notes or as to
your ability to sell your Exchange Notes.
8
The prices of the Exchange Notes will depend on many factors,
including prevailing interest rates, our operating results and
financial conditions and the market for similar securities.
Declines in the market prices for debt securities generally may
also materially and adversely affect the liquidity of the
Exchange Notes, independent of our financial performance.
If you
are a broker-dealer, your ability to transfer the Exchange Notes
may be restricted.
A broker-dealer that purchased Original Notes for its own
account as part of market-making or trading activities must
deliver a prospectus when it resells the Exchange Notes and will
be required to acknowledge this obligation in connection with
participating in this exchange offer. Our obligation to make
this prospectus available to broker-dealers is limited.
Consequently, we cannot guarantee that a proper prospectus will
be available to broker-dealers wishing to resell their Exchange
Notes.
9
CAUTIONARY
STATEMENT REGARDING FORWARD-LOOKING INFORMATION
In this prospectus, including the information we incorporate by
reference, we make statements concerning our expectations,
beliefs, plans, objectives, goals, strategies, future events or
performance and underlying assumptions and other statements that
are not historical facts. These statements are
forward-looking statements. Actual results may
differ materially from those expressed or implied by these
statements. You can generally identify our forward-looking
statements by the words anticipate,
believe, continue, could,
estimate, expect, forecast,
goal, intend, may,
objective, plan, potential,
predict, projection, should,
will or other similar words.
We have based our forward-looking statements on our
managements beliefs and assumptions based on information
available to our management at the time the statements are made.
We caution you that assumptions, beliefs, expectations,
intentions and projections about future events may and often do
vary materially from actual results. Therefore, we cannot assure
you that actual results will not differ materially from those
expressed or implied by our forward-looking statements.
The following are some of the factors that could cause actual
results to differ materially from those expressed or implied in
forward-looking statements:
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state and federal legislative and regulatory actions or
developments relating to the environment, including those
related to global climate change;
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other state and federal legislative and regulatory actions or
developments affecting various aspects of our business,
including, among others, energy deregulation or re-regulation,
pipeline integrity and safety, health care reform, financial
reform and tax legislation;
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timely and appropriate rate actions and increases, allowing
recovery of costs and a reasonable return on investment;
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the timing and outcome of any audits, disputes or other
proceedings related to taxes;
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problems with construction, implementation of necessary
technology or other issues with respect to major capital
projects that result in delays or in cost overruns that cannot
be recouped in rates;
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industrial, commercial and residential growth in our service
territory and changes in market demand, including the effects of
energy efficiency measures and demographic patterns;
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the timing and extent of changes in commodity prices,
particularly natural gas and natural gas liquids, and the
effects of geographic and seasonal commodity price differentials;
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the timing and extent of changes in the supply of natural gas,
including supplies available for gathering by our field services
business and transporting by our interstate pipelines;
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weather variations and other natural phenomena;
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the impact of unplanned facility outages;
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changes in interest rates or rates of inflation;
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commercial bank and financial market conditions, our access to
capital, the cost of such capital, and the results of our
financing and refinancing efforts, including availability of
funds in the debt capital markets;
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actions by credit rating agencies;
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effectiveness of our risk management activities;
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inability of various counterparties to meet their obligations to
us;
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non-payment for our services due to financial distress of our
customers;
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the ability of GenOn Energy, Inc. (formerly known as RRI Energy,
Inc., Reliant Energy, Inc. and Reliant Resources, Inc.) and its
subsidiaries to satisfy their obligations to us, including
indemnity
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obligations, or obligations in connection with the contractual
arrangements pursuant to which we are their guarantor;
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the outcome of litigation brought by or against us;
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our ability to control costs;
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the investment performance of CenterPoint Energys pension
and postretirement benefit plans;
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our potential business strategies, including restructurings,
acquisitions or dispositions of assets or businesses, which we
cannot assure you will be completed or will have the anticipated
benefits to us;
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acquisition and merger activities involving our parent or our
competitors; and
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other factors we discuss in Risk Factors in this
prospectus and in the reports we file from time to time with the
SEC.
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You should not place undue reliance on forward-looking
statements. Each forward-looking statement speaks only as of the
date of the particular statement.
11
WHERE YOU
CAN FIND MORE INFORMATION
We file annual, quarterly and current reports and other
information with the SEC. You may read and copy any document we
file with the SEC at the SECs public reference room
located at 100 F Street, N.E., Washington, D.C.
20549. You may obtain further information regarding the
operation of the SECs public reference room by calling the
SEC at
1-800-SEC-0330.
Our filings are also available to the public on the SECs
Internet site located at
http://www.sec.gov.
You can obtain information about us at the offices of the New
York Stock Exchange, 20 Broad Street, New York, New York
10005.
INCORPORATION
BY REFERENCE
We are incorporating by reference into this
prospectus certain information we file with the SEC. This means
we are disclosing important information to you by referring you
to the documents containing the information. The information we
incorporate by reference is considered to be part of this
prospectus. Information that we file later with the SEC that is
deemed incorporated by reference into this prospectus (but not
information deemed pursuant to the SECs rules to be
furnished to and not filed with the SEC) will automatically
update and supersede information previously included.
We are incorporating by reference into this prospectus the
documents listed below and any subsequent filings, including
filings after the date of the initial registration statement of
which this prospectus is a part and prior to the effectiveness
of such registration statement, that we make with the SEC under
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act
(excluding information deemed pursuant to the SECs rules
to be furnished and not filed with the SEC) until this exchange
offer is terminated:
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our Annual Report on
Form 10-K
for the year ended December 31, 2010;
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our Quarterly Reports on
Form 10-Q
for the quarters ended March 31, 2011 and June 30,
2011; and
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our Current Reports on
Form 8-K
filed January 5, 2011, January 10, 2011,
January 20, 2011 and February 7, 2011.
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You may obtain a copy of our filings with the SEC at no cost by
writing to or telephoning us at the following address:
CenterPoint
Energy Resources Corp.
c/o CenterPoint
Energy, Inc.
Attn: Investor Relations
P.O. Box 4567
Houston, Texas
77210-4567
(713) 207-6500
12
USE OF
PROCEEDS
We will not receive any cash proceeds from the issuance of the
Exchange Notes. In consideration for issuing the Exchange Notes
of each series, we will receive in exchange a like principal
amount of Original Notes of that series. The Original Notes
surrendered in exchange for the Exchange Notes will be retired
and canceled and cannot be reissued. Accordingly, issuance of
the Exchange Notes will not result in any change in our
capitalization.
THE
EXCHANGE OFFER
General
We are offering to exchange up to (i) $592,998,000 in
aggregate principal amount of Exchange 2021 Notes for the same
aggregate principal amount of Original 2021 Notes, and
(ii) $300,000,000 in aggregate principal amount of Exchange
2041 Notes for the same aggregate principal amount of Original
2041 Notes, properly tendered and not validly withdrawn before
the expiration date. Unlike the Original Notes, the Exchange
Notes will be registered under the Securities Act. We are making
this exchange offer for all of the Original Notes. Your
participation in this exchange offer is voluntary, and you
should carefully consider whether to accept this offer.
On the date of this prospectus, $592,998,000 in aggregate
principal amount of Original 2021 Notes are outstanding and
$300,000,000 in aggregate principal amount of Original 2041
Notes are outstanding. Our obligations to accept Original Notes
for Exchange Notes pursuant to this exchange offer are limited
by the conditions listed below under
Conditions to the Exchange Offer. We
currently expect that each of the conditions will be satisfied
and that no waivers will be necessary.
Purpose
of the Exchange Offer
On January 11, 2011, we issued and sold $250,000,000
aggregate principal amount of Original 2021 Notes (the
Initial 2021 Notes) and $300,000,000 aggregate
principal amount of Original 2041 Notes in a transaction exempt
from the registration requirements of the Securities Act. The
initial purchasers for the Initial 2021 Notes and the Original
2041 Notes subsequently resold such notes to qualified
institutional buyers in reliance on Rule 144A under the
Securities Act and to persons other than U.S. persons in
offshore transactions in compliance with Regulation S under
the Securities Act. On January 20, 2011, pursuant to the
2013 Notes Exchange Offer, we issued an additional $342,998,000
in aggregate principal amount of Original 2021 Notes in a
transaction exempt from the registration requirements of the
Securities Act.
Because the above-described transactions were exempt from
registration under the Securities Act, a holder may reoffer,
resell or otherwise transfer Original Notes only if the Original
Notes are registered under the Securities Act or if an
applicable exemption from the registration and prospectus
delivery requirements of the Securities Act is available.
In connection with the issuance of the Original Notes, we
entered into the registration rights agreement. We are offering
the Exchange Notes as described in this prospectus in an
exchange offer for the Original Notes to satisfy our obligations
under the registration rights agreement. See Registration
Rights. This exchange offer consists of separate,
independent offers for each series of Original Notes.
Holders of Original Notes who do not tender their Original Notes
or whose Original Notes are tendered but not accepted will have
to rely on an applicable exemption from the registration
requirements under the Securities Act and applicable state
securities laws in order to resell or otherwise transfer their
Original Notes.
Each broker-dealer that receives Exchange Notes for its own
account in exchange for Original Notes, where such Original
Notes were acquired by such broker-dealer as a result of
market-making activities or other trading activities, must
acknowledge that it will deliver a prospectus in connection with
any resale of such Exchange Notes. See Plan of
Distribution.
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Each series of Exchange Notes will be issued in a like principal
amount and will be identical in all material respects to the
related series of Original Notes, except that such series of
Exchange Notes will be registered under the Securities Act, will
be issued without a restrictive legend, will bear a different
CUSIP number than the related series of Original Notes and will
not be entitled to the rights of holders of the related series
of Original Notes under the registration rights agreement,
including additional interest. Consequently, subject to certain
exceptions, the Exchange Notes, unlike the Original Notes, may
be resold by a holder without any restrictions on their transfer
under the Securities Act, except as noted above in the case of a
holder that is a broker-dealer.
Resale of
Exchange Notes
Based on existing interpretations of the Securities Act by the
Staff of the Division of Corporation Finance of the SEC set
forth in several no-action letters to third parties, and subject
to the immediately following sentence, we believe that the
Exchange Notes issued pursuant to this exchange offer may be
offered for resale, resold and transferred by the holders
thereof without further compliance with the registration and
prospectus delivery requirements of the Securities Act. However,
any holder of Original Notes who is an affiliate of ours or who
intends to participate in this exchange offer for the purpose of
distributing the Exchange Notes, or any participating
broker-dealer who purchased Original Notes or the
7.875% senior notes due 2013 (the 2013 Notes)
from us or one of our affiliates to resell pursuant to
Rule 144A or any other available exemption under the
Securities Act and who, in the case of the 2013 Notes, exchanged
such 2013 Notes for Original Notes in the 2013 Notes Exchange
Offer:
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will not be able to rely on the interpretations of the Staff set
forth in the above-mentioned no-action letters;
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will not be able to tender its Original Notes in this exchange
offer; and
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must comply with the registration and prospectus delivery
requirements of the Securities Act in connection with any sale
or transfer of the Original Notes, unless such sale or transfer
is made pursuant to an exemption from such requirements.
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We do not intend to seek our own no-action letter, and there is
no assurance that the Staff would make a similar determination
with respect to the Exchange Notes as it has in such no-action
letters to third parties. The information described above
concerning interpretations of and positions taken by the Staff
is not intended to constitute legal advice, and holders should
consult their own legal advisors with respect to these matters.
Each holder of Original Notes, other than certain specified
holders, who wishes to exchange the Original Notes for the
Exchange Notes pursuant to this exchange offer will be required
to represent that:
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it is not our affiliate (as defined in Rule 405 under the
Securities Act);
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it is not a broker-dealer (i) tendering Original Notes that
it acquired directly from us or one of our affiliates for its
own account or (ii) tendering Original 2021 Notes acquired
by such broker-dealer in exchange for the 2013 Notes in the 2013
Notes Exchange Offer that it acquired directly from us or one of
our affiliates for its own account;
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the Exchange Notes to be received by it will be acquired in the
ordinary course of its business; and
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at the time of the consummation of this exchange offer, it is
not engaged in, has no intention to engage in, and has no
arrangement or understanding with any person to participate in,
a distribution (within the meaning of the Securities Act) of the
Exchange Notes.
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In addition, in connection with resales of Exchange Notes, any
broker-dealer who acquired Original Notes for its own account as
a result of market-making activities or other trading activities
must deliver a prospectus meeting the requirements of the
Securities Act. The Staff has taken the position that such
broker-dealers may fulfill their prospectus delivery
requirements with respect to the Exchange Notes (other than a
resale of Exchange Notes acquired in exchange for
(i) Original Notes comprising an unsold allotment from the
original sale of the Original Notes or (ii) Original 2021
Notes acquired in exchange for the 2013 Notes comprising an
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unsold allotment from the original sale of the 2013 Notes), with
this prospectus. Under the registration rights agreement, we
will be required to allow such broker-dealers to use this
prospectus, for up to 180 days, subject to certain
black out periods, following this exchange offer, in
connection with the resale of Exchange Notes received in
exchange for Original Notes acquired by such broker-dealers for
their own account as a result of market-making trading
activities. See Plan of Distribution.
Terms of
This Exchange Offer
Upon the terms and subject to the conditions set forth in this
prospectus and in the letter of transmittal, we will accept for
exchange any Original Notes validly tendered and not withdrawn
before expiration of this exchange offer. The date of acceptance
for exchange of the Original Notes and completion of this
exchange offer is the exchange date, which will be as soon as
practicable after the expiration date. The Original Notes may be
tendered only in minimum denominations of $2,000 and integral
multiples of $1,000. We will issue $1,000 principal amount of
Exchange Notes in exchange for each $1,000 principal amount of
Original Notes surrendered under this exchange offer. The
Exchange Notes will be delivered on the earliest practicable
date following the expiration date.
The form and terms of each series of Exchange Notes will be
substantially identical to the form and terms of the related
series of Original Notes, except each series of Exchange Notes:
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will be registered under the Securities Act;
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will not bear legends restricting their transfer;
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will bear a different CUSIP number than the related series of
Original Notes; and
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will not be entitled to the rights of holders of Original Notes
under the registration rights agreement, including additional
interest.
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The Exchange Notes will evidence the same debt as the Original
Notes. The Exchange Notes will be issued under and entitled to
the benefits of the indenture, as described below, under which
the Original Notes were issued such that each series of Exchange
Notes and each series of Original Notes will be treated as a
single series of senior debt securities under the indenture.
The exchange offer for Original Notes of a series is not
conditioned upon any minimum aggregate principal amount of
Original Notes being tendered for exchange or upon consummation
of the exchange offer for Original Notes of any other series.
This prospectus and the accompanying letter of transmittal are
being sent to all registered holders of outstanding Original
Notes. There will be no fixed record date for determining
registered holders of Original Notes entitled to participate in
this exchange offer.
We intend to conduct this exchange offer in accordance with the
applicable requirements of the registration rights agreement,
the Securities Act, the Exchange Act and the related rules and
regulations of the SEC. Original Notes that are not exchanged in
this exchange offer will:
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remain outstanding;
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continue to accrue interest; and
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be entitled to the rights and benefits their holders have under
the indenture relating to the Original Notes and Exchange Notes.
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However, the Original Notes will not be freely tradable because
they will continue to be subject to transfer restrictions as
unregistered securities. Holders of Original Notes do not have
any appraisal or dissenters rights under the indenture in
connection with this exchange offer. Except as specified in the
registration rights agreement, we are not obligated to, nor do
we currently anticipate that we will, register the Original
Notes under the Securities Act. Please read
Consequences of Failure to Exchange
below.
We will be deemed to have accepted for exchange validly tendered
Original Notes when we have given oral (promptly confirmed in
writing) or written notice of the acceptance to the exchange
agent. The exchange agent will act as agent for the holders of
Original Notes who surrender them in this exchange offer for the
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purposes of receiving Exchange Notes from us and delivering
Exchange Notes to their holders. The exchange agent will make
the exchange promptly after the expiration date. We expressly
reserve the right to amend or terminate either exchange offer
and not to accept for exchange any Original Notes not previously
accepted for exchange, upon the occurrence of any of the
conditions specified below under Conditions to
the Exchange Offer.
Holders who tender Original Notes in this exchange offer will
not be required to pay brokerage commissions or fees or, subject
to the instructions in the letter of transmittal, transfer taxes
with respect to the exchange of Original Notes. We will pay all
charges and expenses, other than applicable taxes described
below, in connection with this exchange offer. It is important
that you read Solicitation of Tenders; Fees
and Expenses and Transfer Taxes
below for more details regarding fees and expenses incurred in
this exchange offer.
If any tendered Original Notes are not accepted for exchange for
any reason, such Original Notes will be returned, without
expense, to the tendering holder thereof promptly after the
expiration date.
Expiration
Date; Extension; Termination; Amendment
The exchange offer for each series of Original Notes will expire
at 5:00 p.m., New York City time,
on ,
2011, unless we have extended the period of time that such
exchange offer is open.
We reserve the right to extend the period of time that the
exchange offer for any series is open, and delay acceptance for
exchange of any series of Original Notes, by giving oral
(promptly confirmed in writing) or written notice to the
exchange agent and by timely public announcement no later than
9:00 a.m., New York City time, on the next business day
after the previously scheduled expiration date. During any
extension, all Original Notes of a series previously tendered
will remain subject to the exchange offer for such series unless
validly withdrawn.
We also reserve the right, in our sole discretion, subject to
applicable law and the terms of the registration rights
agreement, to:
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terminate the exchange offer for any series and not to accept
for exchange any Original Notes of that series not previously
accepted for exchange upon the occurrence of any of the events
specified below under Conditions to the
Exchange Offer that have not been waived by us; or
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amend the terms of the exchange offer for any series in any
manner.
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If any termination or amendment occurs, we will give oral
(promptly confirmed in writing) or written notice to the
exchange agent and will either make a public announcement or
give oral or written notice to holders of Original Notes of the
affected series as promptly as practicable. We may terminate or
amend the exchange offer for each series independently. Without
limiting the manner in which we may choose to make a public
announcement of any extension, amendment or termination of the
exchange offer, we will not be obligated to publish, advertise
or otherwise communicate any such public announcement, other
than by making a timely press release. In the event of a
material change in the exchange offer, including the waiver of a
material condition, we will extend the exchange offer if
necessary so that at least five business days remain in the
exchange offer following notice of the material change.
Exchange Notes will only be issued after the exchange agent
timely receives (1) a properly completed and duly executed
letter of transmittal (or facsimile thereof or an agents
message (as hereinafter defined) in lieu thereof) and
(2) all other required documents. However, we reserve the
absolute right to waive any defects or irregularities in the
tender or conditions of this exchange offer.
Original Notes submitted for a greater principal amount than the
tendering holder desires to exchange will be returned, without
expense, to the tendering holder thereof promptly after the
expiration date.
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Procedures
For Tendering Original Notes
Valid
Tender
Except as set forth below, in order for Original Notes to be
validly tendered pursuant to this exchange offer, either (i)
(a) a properly completed and duly executed letter of
transmittal (or facsimile thereof) or an electronic message
agreeing to be bound by the letter of transmittal properly
transmitted through DTCs Automated Tender Offer Program
(ATOP) for a book-entry transfer, with any required
signature guarantees and any other required documents, must be
received by the exchange agent at the address or the facsimile
number set forth under The Exchange Offer
Exchange Agent on or prior to the expiration date and
(b) tendered Original Notes must be received by the
exchange agent, or such Original Notes must be tendered pursuant
to the procedures for book-entry transfer set forth below and a
book-entry confirmation must be received by the exchange agent,
in each case on or prior to the expiration date, or
(ii) the guaranteed delivery procedures set forth below
must be complied with. To receive confirmation of valid tender
of Original Notes, a holder should contact the exchange agent at
the telephone number listed under The Exchange
Offer Exchange Agent.
If less than all of the Original Notes held by a holder are
tendered, a tendering holder should fill in the amount of
Original Notes being tendered in the appropriate box on the
letter of transmittal. The entire amount of Original Notes
delivered to the exchange agent will be deemed to have been
tendered unless otherwise indicated.
If any letter of transmittal, endorsement, note power, power of
attorney or any other document required by the letter of
transmittal is signed by a trustee, executor, administrator,
guardian, attorney-in fact, officer of a corporation or other
person acting in a fiduciary or representative capacity, such
person should so indicate when signing. Unless waived by us,
evidence satisfactory to us of such persons authority to
so act also must be submitted.
Any beneficial owner of Original Notes that are held by or
registered in the name of a broker, dealer, commercial bank,
trust company or other nominee is urged to contact such entity
promptly if such beneficial holder wishes to participate in this
exchange offer.
The method of delivering Original Notes, the letter of
transmittal and all other required documents is at the option
and sole risk of the tendering holder. Delivery will be deemed
made only when actually received by the exchange agent. Instead
of delivery by mail, it is recommended that holders use an
overnight or hand delivery service. In all cases, sufficient
time should be allowed to assure timely delivery and proper
insurance should be obtained. No Original Note, letter of
transmittal or other required document should be sent to us.
Holders may request their respective brokers, dealers,
commercial banks, trust companies or other nominees to effect
these transactions for them.
Book-Entry
Transfer
The exchange agent has established an account with respect to
the Original Notes at DTC for purposes of this exchange offer.
The exchange agent and DTC have confirmed that any financial
institution that is a participant in DTC may utilize DTCs
ATOP procedures to tender Original Notes. Any participant in DTC
may make book-entry delivery of Original Notes by causing DTC to
transfer the Original Notes into the exchange agents
account in accordance with DTCs ATOP procedures for
transfer.
However, the exchange for the Original Notes so tendered will be
made only after a book-entry confirmation of such book-entry
transfer of Original Notes into the exchange agents
account and timely receipt by the exchange agent of an
agents message and any other documents required by the
letter of transmittal. The term agents message
means a message, transmitted by DTC and received by the exchange
agent and forming part of a book-entry confirmation, which
states that DTC has received an express acknowledgment from a
participant tendering Original Notes that are the subject of the
book-entry confirmation that the participant has received and
agrees to be bound by the terms of the letter of transmittal,
and that we may enforce that agreement against the participant.
Delivery of documents to DTC does not constitute delivery to the
exchange agent.
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Signature
Guarantees
Certificates for Original Notes need not be endorsed and
signature guarantees on a letter of transmittal or a notice of
withdrawal, as the case may be, are unnecessary unless
(i) a certificate for Original Notes is registered in a
name other than that of the person surrendering the certificate
or (ii) a registered holder completes the box entitled
Special Issuance Instructions or Special
Delivery Instructions in the letter of transmittal. In the
case of (i) or (ii) above, such certificates for
Original Notes must be duly endorsed or accompanied by a
properly executed note power, with the endorsement or signature
on the note power and on the letter of transmittal or the notice
of withdrawal, as the case may be, guaranteed by a firm or other
entity identified in
Rule 17Ad-15
under the Exchange Act as an eligible guarantor
institution, including (as such terms are defined therein)
(i) a bank, (ii) a broker, dealer, municipal
securities broker or dealer or government securities broker or
dealer, (iii) a credit union, (iv) a national
securities exchange, registered securities association or
clearing agency or (v) a savings association that is a
participant in a Securities Transfer Association (each an
Eligible Institution), unless an Original Note is
surrendered for the account of an Eligible Institution. See
Instruction 2 to the letter of transmittal.
Guaranteed
Delivery
If a holder desires to tender Original Notes pursuant to this
exchange offer and the certificates for such Original Notes are
not immediately available or time will not permit all required
documents to reach the exchange agent before the expiration
date, or the procedures for book-entry transfer cannot be
completed on a timely basis, such Original Notes may
nevertheless be tendered, provided that all of the following
guaranteed delivery procedures are complied with:
(i) such tenders are made by or through an Eligible
Institution;
(ii) prior to the expiration date, the exchange agent
receives from the Eligible Institution a properly completed and
duly executed notice of guaranteed delivery, substantially in
the form accompanying the letter of transmittal, or an
electronic message through ATOP with respect to guaranteed
delivery for book-entry transfers, setting forth the name and
address of the holder of Original Notes and the amount of
Original Notes tendered, stating that the tender is being made
thereby and guaranteeing that within three New York Stock
Exchange, Inc. trading days after the date of execution of the
notice of guaranteed delivery, or transmission of such
electronic message through ATOP for book-entry transfers, the
certificates for all physically tendered Original Notes, in
proper form for transfer, or a book-entry confirmation, as the
case may be, together with a properly completed and duly
executed letter of transmittal with any required signature
guarantees (or a facsimile thereof), or a properly transmitted
electronic message through ATOP in the case of book-entry
transfers, and any other documents required by the letter of
transmittal will be deposited by the Eligible Institution with
the exchange agent; and
(iii) the certificates (or book-entry confirmation)
representing all tendered Original Notes, in proper form for
transfer, together with a properly completed and duly executed
letter of transmittal with any required signature guarantees (or
a facsimile thereof), or a properly transmitted electronic
message through ATOP in the case of book-entry transfers, and
any other documents required by the letter of transmittal, are
received by the exchange agent within three New York Stock
Exchange, Inc. trading days after the date of execution of the
notice of guaranteed delivery or transmission of such electronic
message through ATOP with respect to guaranteed delivery for
book-entry transfers.
Determination
of Validity
We will determine in our sole discretion all questions as to the
validity, form, eligibility, including time of receipt,
acceptance and withdrawal of tendered Original Notes. Our
determination will be final and binding. We reserve the absolute
right to reject any Original Notes not properly tendered or any
Original Notes the acceptance of which would, in the opinion of
our counsel, be unlawful. We also reserve the right to waive any
defects, irregularities or conditions of tender as to particular
Original Notes. Our interpretation of the terms and conditions
of this exchange offer, including the instructions in the letter
of transmittal, will be final and binding on all parties.
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Unless waived, any defects or irregularities in connection with
tenders of Original Notes must be cured within the time that we
determine. Although we intend to notify holders of defects or
irregularities with respect to tenders of Original Notes,
neither we, the exchange agent nor any other person will incur
any liability for failure to give notification. Tenders of
Original Notes will not be deemed made until those defects or
irregularities have been cured or waived. Any Original Notes
received by the exchange agent that are not properly tendered
and as to which the defects or irregularities have not been
cured or waived will be returned by the exchange agent without
cost to the tendering holder, unless otherwise provided in the
letter of transmittal, as soon as practicable after withdrawal,
rejection of tender or termination of this exchange offer.
Prospectus
Delivery Requirement
Each broker-dealer that receives Exchange Notes for its own
account in exchange for Original Notes, where such Original
Notes were acquired by such broker-dealer as a result of
market-making activities or other trading activities, must
acknowledge that it will deliver a prospectus in connection with
any resale of such Exchange Notes. See Plan of
Distribution.
Withdrawal
Rights
You may withdraw your tender of Original Notes at any time
before 5:00 p.m., New York City time, on the expiration
date. In order for a withdrawal to be effective on or prior to
that time, a written or facsimile transmission of a notice of
withdrawal, or a computer-generated notice of withdrawal
transmitted by DTC on behalf of the holder in accordance with
the standard operating procedures of DTC, must be received by
the exchange agent at its address set forth under
Exchange Agent.
Any notice of withdrawal must:
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specify the name of the person that tendered the Original Notes
to be withdrawn;
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identify the Original Notes to be withdrawn, including the
certificate number or numbers (if in certificated form) and
principal amount of such Original Notes;
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include a statement that the holder is withdrawing its election
to have the Original Notes exchanged;
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be signed by the holder in the same manner as the original
signature on the letter of transmittal by which the Original
Notes were tendered or as otherwise described above, including
any required signature guarantees, or be accompanied by
documents of transfer sufficient to have the trustee under the
indenture register the transfer of the Original Notes into the
name of the person withdrawing the tender; and
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specify the name in which any of the Original Notes are to be
registered, if different from that of the person that tendered
the Original Notes.
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The exchange agent will return the properly withdrawn Original
Notes promptly following receipt of a notice of withdrawal. If
Original Notes have been tendered pursuant to the procedure for
book-entry transfer, any notice of withdrawal must specify the
name and number of the account at DTC to be credited with the
withdrawn Original Notes or otherwise comply with DTCs
procedures.
Any Original Notes withdrawn will not have been validly tendered
for exchange for purposes of this exchange offer. Any Original
Notes that have been tendered for exchange but which are not
exchanged for any reason will be returned to the holder without
cost to the holder as soon as practicable after withdrawal,
rejection of tender or termination of this exchange offer. In
the case of Original Notes tendered by book-entry transfer into
the exchange agents account at DTC pursuant to its
book-entry transfer procedures, the Original Notes will be
credited to an account with DTC specified by the holder, as soon
as practicable after withdrawal, rejection of tender or
termination of this exchange offer. Properly withdrawn Original
Notes may be retendered by following one of the procedures
described under Procedures for Tendering
Original Notes above at any time on or before the
expiration date.
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Acceptance
of Original Notes for Exchange; Delivery of Exchange
Notes
Upon satisfaction or waiver of all of the conditions to the
exchange offer for a series of Original Notes, we will accept,
promptly after the expiration date, all Original Notes of such
series validly tendered and will issue the Exchange Notes of
such series promptly after the expiration date. Please refer to
Conditions to the Exchange Offer below.
For purposes of this exchange offer, we will be deemed to have
accepted validly tendered Original Notes for exchange when we
give notice of acceptance to the exchange agent.
For each Original Note accepted for exchange, the holder of the
Original Note will receive an Exchange Note having a principal
amount at maturity equal to that of the surrendered Original
Note. The Exchange Notes will be delivered on the earliest
practicable date following the expiration date.
In all cases, delivery of Exchange Notes in exchange for
Original Notes tendered and accepted for exchange pursuant to
this exchange offer will be made only after timely receipt by
the exchange agent of:
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Original Notes or a book-entry confirmation of a book-entry
transfer of Original Notes into the exchange agents
account at DTC;
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a properly completed and duly executed letter of transmittal or
an electronic message agreeing to be bound by the letter of
transmittal properly transmitted through ATOP with any required
signature guarantees; and
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any other documents required by the letter of transmittal.
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Conditions
to the Exchange Offer
We are required to accept for exchange, and to issue Exchange
Notes in exchange for, any Original Notes duly tendered and not
validly withdrawn pursuant to this exchange offer and in
accordance with the terms of this prospectus and the
accompanying letter of transmittal.
We will not be required to accept for exchange, or to issue
Exchange Notes of a series in exchange for, any Original Notes
of that series, and we may terminate the exchange offer for that
series as provided in this prospectus before accepting any
Original Notes of that series for exchange, if:
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the exchange offer for that series, or the making of any
exchange by a holder of Original Notes of that series, would
violate applicable law or any applicable interpretation of the
staff of the SEC; or
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any action or proceeding has been instituted or threatened in
any court or by or before any governmental agency with respect
to the exchange offer for that series that, in our judgment,
would reasonably be expected to impair our ability to proceed
with that exchange offer.
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In addition, we will not be required to accept for exchange, or
to issue Exchange Notes in exchange for, any Original Notes
tendered by a holder if:
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such holders Original Notes are not tendered in accordance
with the terms of this exchange offer; or
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such holder of Original Notes exchanged in this exchange offer
has not represented that all Exchange Notes to be received by it
shall be acquired in the ordinary course of its business, that
it is not an affiliate of ours and that at the time of the
consummation of this exchange offer it shall have no arrangement
or understanding with any person to participate in any
distribution (within the meaning of the Securities Act) of the
Exchange Notes and shall not have made such other
representations as may be reasonably necessary under applicable
SEC rules, regulations or interpretations to render available
the use of the registration statement of which this prospectus
is a part.
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In addition, we will not be obligated to accept for exchange the
Original Notes of any holder who has not made to us the
representations described under Resale of
Exchange Notes above and Plan of Distribution.
In addition, we will not accept for exchange any Original Notes
tendered, and no Exchange Notes will be issued in exchange for
those Original Notes, if at such time any stop order is
threatened or in effect with
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respect to the registration statement of which this prospectus
constitutes a part or the qualification of the indenture under
the Trust Indenture Act of 1939. In any of those events we
are required to use reasonable best efforts to obtain the
withdrawal of any stop order at the earliest possible time.
Exchange
Agent
We have appointed The Bank of New York Mellon
Trust Company, N.A. as the exchange agent for this exchange
offer. You should direct questions and requests for assistance,
in each case, with respect to exchange offer procedures,
requests for additional copies of this prospectus or of the
letter of transmittal, requests for the notice of guaranteed
delivery with respect to the exchange of Original Notes as well
as all executed letters of transmittal, to the exchange agent at
the address listed below:
The Bank of
New York Mellon Trust Company, N.A.
c/o Bank
of New York Mellon Corporation
Corporate Trust Operations
Reorganization Unit
101 Barclay Street
New York, NY 10286
Attn: David Mauer
The Trustees telephone number is
(212) 815-3687.
The Trustees facsimile number is
(212) 298-1915.
Delivery to an address other than as listed above, or
transmissions to a facsimile number other than as listed above,
will not constitute a valid delivery.
The Bank of New York Mellon Trust Company, N.A. is the
trustee under the indenture governing the Original Notes and the
Exchange Notes.
Solicitation
of Tenders; Fees and Expenses
We will pay the expenses of soliciting tenders. The principal
solicitation is being made by mail; however, additional
solicitation may be made by telecopier, telephone or in person
by officers and employees of ours and of our affiliates.
We have not retained any dealer manager in connection with this
exchange offer and will not make any payments to brokers,
dealers or others soliciting acceptances of this exchange offer.
However, we will pay the exchange agent reasonable and customary
fees for its services and will reimburse it for its reasonable
out-of-pocket
expenses in connection with this exchange offer.
We will pay the estimated cash expenses to be incurred in
connection with this exchange offer, including the following:
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fees and expenses of the exchange agent and the trustee;
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SEC registration fees;
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accounting and legal fees; and
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printing and mailing expenses.
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Transfer
Taxes
We will pay all transfer taxes, if any, applicable to the
exchange of Original Notes under this exchange offer. The
tendering holder, however, will be required to pay any transfer
taxes, whether imposed on the registered holder or any other
person, if:
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certificates representing Original Notes for principal amounts
not tendered or accepted for exchange are to be delivered to, or
are to be issued in the name of, any person other than the
registered holder of Original Notes tendered;
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Exchange Notes are to be delivered to, or issued in the name of,
any person other than the registered holder of the Original
Notes;
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tendered Original Notes are registered in the name of any person
other than the person signing the letter of transmittal; or
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a transfer tax is imposed for any reason other than the exchange
of Original Notes under this exchange offer.
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If satisfactory evidence of payment of such transfer taxes is
not submitted with the letter of transmittal, the amount of any
transfer taxes will be billed to the tendering holder.
Accounting
Treatment
The Exchange Notes will be recorded at the same carrying value
as the Original Notes as reflected in our accounting records on
the date of the exchange. Accordingly, we will recognize no gain
or loss upon completion of the exchange offer. The costs of the
exchange offer will be immediately expensed or amortized over
the term of the Exchange Notes of that series as appropriate
under generally accepted accounting principles.
Consequences
of Failure to Exchange
If you do not exchange your Original Notes for Exchange Notes
pursuant to this exchange offer, you will continue to be subject
to the restrictions on transfer of the Original Notes as
described in the legend on the Original Notes. In general, the
Original Notes may be offered or sold only if registered under
the Securities Act, except pursuant to an exemption from, or in
a transaction not subject to, the Securities Act and applicable
state securities laws.
Your participation in this exchange offer is voluntary, and you
should carefully consider whether to participate. We urge you to
consult your financial and tax advisors in making a decision
whether or not to tender your Original Notes. Please refer to
the section in this prospectus entitled Certain United
States Federal Income Tax Consequences.
As a result of the making of, and upon acceptance for exchange
of all validly tendered Original Notes pursuant to the terms of,
this exchange offer, we will have fulfilled a covenant contained
in the registration rights agreement. If you do not tender your
Original Notes in this exchange offer, you will be entitled to
all of the rights and limitations applicable to the Original
Notes under the indenture, except for any rights under the
registration rights agreement that by their terms end or cease
to have further effectiveness as a result of the making of this
exchange offer, including the right to require us to register
your Original Notes. To the extent that Original Notes of a
series are tendered and accepted in this exchange offer, the
trading market for untendered, or tendered but unaccepted,
Original Notes of that series could be adversely affected.
Please refer to the section in this prospectus entitled
Risk Factors Risk Factors Relating to this
Exchange Offer and the Exchange Notes If you do not
properly tender your Original Notes for Exchange Notes, you will
continue to hold unregistered notes that are subject to transfer
restrictions.
We may in the future seek to acquire untendered Original Notes
in open market or privately negotiated transactions through
subsequent exchange offers or otherwise. However, we have no
present plans to acquire any Original Notes that are not
tendered in this exchange offer or to file a registration
statement to permit resales of any untendered Original Notes.
Holders of each series of Original Notes that remain outstanding
after consummation of this exchange offer will vote together
with any issued Exchange Notes of the related series as a single
series for purposes of determining whether holders of the
requisite percentage thereof have taken certain actions or
exercised certain rights under the indenture.
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DESCRIPTION
OF THE EXCHANGE NOTES
We will issue the Exchange Notes, and we issued the Original
Notes, under an indenture, dated as of February 1, 1998, as
supplemented (the indenture), between us and The
Bank of New York Mellon Trust Company, N.A. (successor to
JPMorgan Chase Bank, National Association), as trustee. In this
section of the prospectus, we sometimes refer to the Original
2021 Notes and the Exchange 2021 Notes collectively as the
2021 Notes, to the Original 2041 Notes and the
Exchange 2041 Notes collectively as the 2041 Notes,
and to the Original Notes and the Exchange Notes collectively as
the notes. The following description is a summary of
the material provisions of the Exchange Notes and the indenture.
This summary is not complete and is qualified in its entirety by
reference to the indenture and the notes. For a complete
description of the notes, you should refer to the indenture,
including the supplemental indentures establishing the terms of
the notes, all of which we have filed with the SEC. Please read
Where You Can Find More Information.
There is no limitation on the amount of debt securities we may
issue under the indenture. As of June 30, 2011,
approximately $2.7 billion aggregate principal amount of
debt securities were outstanding under the indenture.
The 2021 Notes and the 2041 Notes will each constitute a single
series of debt securities under the indenture. If the exchange
offer for Original Notes of a series is consummated, holders of
Original Notes of that series who do not exchange their Original
Notes for Exchange Notes of that series will vote together with
holders of the Exchange Notes of that series for all relevant
purposes under the indenture. Accordingly, in determining
whether the required holders have given any notice, consent or
waiver or taken any other action permitted under the indenture,
any Original Notes of a series that remain outstanding after the
exchange offer will be aggregated with the Exchange Notes of
that series, and the holders of those Original Notes and
Exchange Notes will vote together as a single series. All
references in this prospectus to specified percentages in
aggregate principal amount of notes of a series means, at any
time after the exchange offer is consummated, the percentages in
aggregate principal amount of the Original Notes of that series
and the Exchange Notes of that series collectively then
outstanding.
We have included cross-references in the summary below to refer
you to the section numbers of the indenture we are describing.
Ranking
of the Exchange Notes
The Exchange Notes will:
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be general unsecured obligations,
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rank equally in right of payment with all of our other existing
and future unsecured and unsubordinated indebtedness, and
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with respect to the assets and earnings of our subsidiaries,
structurally rank below all of the liabilities of our
subsidiaries.
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As of June 30, 2011, we, on a consolidated basis, had
approximately $3.2 billion aggregate principal amount of
indebtedness outstanding. As of June 30, 2011, our
consolidated subsidiaries had no outstanding third-party debt.
As of June 30, 2011, a 50 percent owned affiliate of
ours had $375 million of outstanding third-party debt.
Subject to exceptions, and subject to compliance with the
applicable requirements, set forth in the indenture, we may
discharge our obligations under the indenture with respect to
the Exchange Notes as described below under
Defeasance.
Principal,
Maturity and Interest
The 2021 Notes will mature on January 15, 2021, and are
initially limited to $592,998,000 in aggregate principal amount.
The 2041 Notes will mature on January 15, 2041, and are
initially limited to $300,000,000 in aggregate principal amount.
However, we may, in each case, issue additional notes of the
same series from
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time to time, without the consent of the holders of such notes.
The Exchange Notes will be issued only in denominations of
$2,000 principal amount and integral multiples of $1,000
principal amount in excess thereof.
Interest on the Exchange Notes will:
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accrue at the rate of 4.50% per annum, in the case of the 2021
Notes, and 5.85% per annum, in the case of the 2041 Notes, from
the latest date to which interest shall have been paid on the
Original Notes surrendered in exchange therefor or, if no
interest has been paid on such Original Notes, from
January 11, 2011,
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be payable semi-annually in arrears on each January 15 and
July 15, with the initial interest payment date following
the exchange offer
being ,
2012,
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be payable to the person in whose name such notes are registered
at the close of business on the January 1 and July 1 immediately
preceding the applicable interest payment date, which we refer
to with respect to such notes as regular record
dates,
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be computed on the basis of a
360-day year
comprised of twelve
30-day
months, and
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be payable on overdue interest to the extent permitted by law at
the same rate as interest is payable on principal.
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If any interest payment date, the maturity date or any
redemption date falls on a day that is not a business day, the
required payment will be made on the next succeeding business
day with the same force and effect as if made on the relevant
interest payment date, maturity date or redemption date and no
additional amounts will accrue on that payment for the period
from and after the interest payment date, maturity date or
redemption date, as the case may be, to the date of that payment
on the next succeeding business day. Unless we default on a
payment, no interest will accrue for the period from and after
the applicable maturity date or redemption date.
Optional
Redemption
We may redeem each series of the notes, in whole or in part, at
our option exercisable at any time and from time to time upon
not less than 30 and not more than 60 days notice as
provided in the indenture, on any date prior to October 15,
2020, in the case of the 2021 Notes (three months prior to the
maturity date of the 2021 Notes), or July 15, 2040, in the
case of the 2041 Notes (six months prior to the maturity date of
the 2041 Notes), at a redemption price equal to:
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100% of the principal amount of the notes to be redeemed, plus
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accrued and unpaid interest thereon, if any, to, but excluding,
the redemption date; plus
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the make-whole premium described below, if any.
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The redemption price will never be less than 100% of the
principal amount of the notes redeemed plus accrued and unpaid
interest thereon, if any, to, but excluding, the redemption date.
At any time on or after October 15, 2020, in the case of
the 2021 Notes, or at any time on or after July 15, 2040,
in the case of the 2041 Notes, we may redeem the notes of such
series, in whole or in part, at our option upon not less than 30
and not more than 60 days notice at a redemption
price equal to 100% of the principal amount of the notes to be
redeemed plus accrued and unpaid interest thereon, if any, to,
but excluding, the redemption date.
The amount of the make-whole premium with respect to any note to
be redeemed will be equal to the excess, if any, of:
(1) the sum of the present values, calculated as of the
redemption date, of:
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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
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the principal amount that, but for such redemption, would have
been payable at the final maturity of the note or portion
thereof being redeemed, over
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(2) the principal amount of the note or portion thereof
being redeemed.
The present values of interest and principal payments referred
to in clause (1) above will be determined in accordance
with generally accepted principles of financial analysis. These
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 20 basis points in
the case of each of the 2021 Notes and the 2041 Notes.
The make-whole premium will be calculated by an independent
investment banking institution of national standing appointed by
us. If we fail to appoint an independent investment banking
institution at least 45 days prior to the redemption date,
or if the independent investment banking institution we appoint
is unwilling or unable to calculate the make-whole premium, the
calculation will be made by RBS Securities Inc., Merrill Lynch,
Pierce, Fenner & Smith Incorporated, RBC Capital
Markets, LLC or SunTrust Robinson Humphrey, Inc. If RBS
Securities Inc., Merrill Lynch, Pierce, Fenner & Smith
Incorporated, RBC Capital Markets, LLC and SunTrust Robinson
Humphrey, Inc. are unwilling or unable to make the calculation,
we will appoint a different independent investment banking
institution of national standing to make the calculation.
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
relevant series of notes, calculated to the nearest
1/12th of a year. The comparable treasury yield will be
determined as of the third business day immediately preceding
the applicable redemption date.
The weekly average yields of United States Treasury Securities
will 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. If this 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 of the relevant series of notes calculated as set forth
above, then the comparable treasury yield will be equal to such
weekly average yield. In all other cases, the comparable
treasury yield will 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 of the relevant
series of notes and the United States Treasury Securities that
have a constant maturity closest to and less than the remaining
term of the relevant series of notes (in each case as set forth
in the H.15 statistical release or any successor release). Any
weekly average yields calculated by interpolation will 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 will be calculated by interpolation of comparable rates
selected by an independent investment banking institution
selected in the manner described in the second preceding
paragraph.
If we redeem less than all the notes of a series, the trustee
will select the notes of that series for redemption on a pro
rata basis, by lot or by such other method as the trustee in its
sole discretion deems fair and appropriate. We will only redeem
notes in multiples of $1,000 in original principal amount. If
any note is to be redeemed in part only, the notice of
redemption will state the portion of the principal amount to be
redeemed. A new note in principal amount equal to the unredeemed
portion of the original Exchange Note will be issued upon the
cancellation of the original note.
Sinking
Fund
We are not obligated to make mandatory redemption or sinking
fund payments with respect to the notes.
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Restrictive
Covenants
The indenture does not limit the amount of indebtedness or other
obligations that we may incur and does not contain provisions
that would give holders of the notes the right to require us to
repurchase their notes in the event of a change in control of
us, or in the event we enter into one or more highly leveraged
transactions, regardless of whether a rating decline results
therefrom, or in the event we dispose of one or more of our
business units, nor are any such events deemed to be events of
default under the terms of the indenture.
The indenture contains certain covenants for the benefit of the
holders of the notes, which we have summarized immediately below
and under the heading Consolidation, Merger
and Sale of Assets. The restrictive covenants summarized
below will terminate pursuant to the termination provision of
the indenture and will no longer be applicable to the notes on
and after the date, which we refer to as the termination
date, on which there remains outstanding, in the
aggregate, no more than $200 million in principal amount of
our:
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7.875% Senior Notes due 2013 ($365 million outstanding
as of June 30, 2011),
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5.95% Senior Notes due 2014 ($160 million outstanding
as of June 30, 2011), and
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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) issued subsequent to the issuance of the notes and
prior to the termination date containing covenants substantially
similar to the restrictive covenants summarized below, or an
event of default substantially similar to the event of default
described in the fourth bullet under Events of
Default below, but not containing the termination
provision.
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Our 7.875% Senior Notes due 2013 and our 5.95% Senior
Notes due 2014 have covenants similar to the restrictive
covenants summarized below. The terms of our 6.15% Senior
Notes due 2016, our 6.25% Senior Notes due 2037, our
6.125% Senior Notes due 2017, our 6.625% Senior Notes
due 2037 and our 6.00% Senior Notes due 2018 have covenants
similar to the restrictive covenants summarized below and the
termination provision described above. Such covenants will
terminate upon the maturity of our 7.875% Senior Notes due
2013 (assuming we incur no additional long-term indebtedness
that would delay the termination).
Limitations on Liens. We will not, and we will
not permit any subsidiary (as defined below) to, pledge,
mortgage or hypothecate, or permit to exist, except in our favor
or in favor of any subsidiary, any lien (as defined below) upon
any principal property (as defined below) or any equity interest
(as defined below) in any significant subsidiary (as defined
below) owning any principal property, at any time owned by us or
by a subsidiary, to secure any indebtedness (as defined below),
unless effective provision is made whereby outstanding notes
will be secured equally and ratably therewith (or prior
thereto), and with any other indebtedness similarly entitled to
be equally and ratably secured. This restriction will not apply
to or prevent the creation or existence of:
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liens on any property held or used by us 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, our 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,
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liens on 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 produced or recovered from any property, an
interest in which is owned or leased by us or a subsidiary,
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liens (or certain extensions, renewals or refundings thereof)
upon any property acquired, constructed or improved before or
after the date the notes are first issued, which liens were or
are
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created at the later of the time of acquisition or commercial
operation thereof, or within one year thereafter to secure all
or a portion of the purchase price thereof or the cost of
construction or improvement, or existing thereon at the date of
acquisition, provided that every such mortgage, pledge, lien or
encumbrance applies only to the property so acquired or
constructed and fixed improvements thereon,
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liens upon any property of any entity acquired by any entity
that is or becomes a subsidiary after the date the notes are
first issued, each of which we refer to as an acquired
entity, provided that every such mortgage, pledge, lien or
encumbrance:
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exist prior to the time the acquired entity becomes a
subsidiary, or
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be created at the time the acquired entity becomes a subsidiary
or within one year thereafter to secure payment of the
acquisition price thereof, and
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will 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 us or any other subsidiary,
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pledges of current assets, in the ordinary course of business,
to secure current liabilities,
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deposits, including among others, good faith deposits in
connection with tenders, leases of real estate or bids or
contracts, or liens, including among others, liens reserved in
leases and mechanics or materialmens liens, to
secure certain duties or public or statutory obligations,
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liens upon any office, data processing or transportation
equipment,
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liens created or assumed 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, for the purpose of financing the acquisition or
construction of property to be used by us or a subsidiary,
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pledges or assignments of accounts receivable or conditional
sales contracts or chattel mortgages and evidence of
indebtedness secured thereby, received in connection with the
sale of goods or merchandise to customers, or
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certain liens for taxes, judgments and attachments.
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Notwithstanding the foregoing, we 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 of our other
indebtedness or indebtedness of a subsidiary secured by a
mortgage (not including secured indebtedness permitted under the
foregoing exceptions) and the value (as defined below) of all
sale and leaseback transactions (as defined below) existing at
such time (other than sale and leaseback transactions
(i) which, if a lien, would have been permitted under the
third or fourth bullet points above or (ii) as to which
application of amounts have been made in accordance with
Limitation on Sale and Leaseback
Transactions below), does not at the time such
indebtedness is incurred exceed 5% of consolidated net tangible
assets (as defined below), as shown on our most recent audited
consolidated balance sheet preceding the date of determination.
For purposes of this Limitation on Liens covenant,
subsidiary does not include a project finance subsidiary (as
defined below).
Limitation on Sale and Leaseback
Transactions. We will not, and we will not permit
any subsidiary to, engage in a sale and leaseback transaction of
any principal property unless the net proceeds of such sale are
at least equal to the fair value of such principal property (as
determined by our board of directors) and either:
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we or such subsidiary would be entitled under the indenture to
incur indebtedness secured by a lien on the principal property
to be leased, without equally and ratably securing the notes,
pursuant to the exceptions provided in the third and fourth
bullet points of the second sentence of
Limitations on Liens above, or
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within 120 days after the sale or transfer of the principal
property, we apply an amount not less than the fair value of
such property:
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to the payment or other retirement of our long-term indebtedness
or long-term indebtedness of a subsidiary, in each case ranking
senior to or on parity with the notes, or
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to the purchase at not more than the fair value of principal
property (other than that involved in such sale and leaseback
transaction).
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For purposes of this Limitation on Sale and Leaseback
Transactions covenant, subsidiary does not include a
project finance subsidiary.
Defined
Terms
Capital lease means a lease that, in accordance with
accounting principles generally accepted in the United States,
would be recorded as a capital lease on the balance sheet of the
lessee.
Consolidated net tangible assets means the total
amount of our assets, including the assets of our subsidiaries,
less, without duplication:
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total current liabilities (excluding indebtedness due within
12 months),
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all reserves for depreciation and other asset valuation
reserves, but excluding reserves for deferred federal income
taxes,
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all intangible assets such as goodwill, trademarks, trade names,
patents and unamortized debt discount and expense carried as an
asset, and
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all appropriate adjustments on account of minority interests of
other persons holding common stock of any subsidiary, all as
reflected in our most recent audited consolidated balance sheet
preceding the date of such determination.
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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.
Indebtedness, as applied to us or any subsidiary,
means bonds, debentures, notes and other instruments or
arrangements representing obligations created or assumed by us
or any such subsidiary, including any and all:
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obligations for money borrowed, other than unamortized debt
discount or premium,
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obligations evidenced by a note or similar instrument given in
connection with the acquisition of any business, properties or
assets of any kind,
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obligations as lessee under a capital lease, and
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amendments, renewals, extensions, modifications and refundings
of any such indebtedness or obligation listed in the three
immediately preceding bullet points.
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All indebtedness secured by a lien upon property owned by us or
any subsidiary and upon which indebtedness we or any such
subsidiary customarily pays interest, although we or any such
subsidiary has not assumed or become liable for the payment of
such indebtedness, is also deemed to be indebtedness of us or
any such subsidiary. All indebtedness for borrowed money
incurred by other persons which is directly guaranteed as to
payment of principal by us or any subsidiary will for all
purposes of the indenture be deemed to be indebtedness of us or
any such subsidiary, but no other contingent obligation of us or
any such subsidiary in respect of indebtedness incurred by other
persons shall be deemed indebtedness of us or any such
subsidiary.
Lien means any mortgage, deed of trust, pledge,
hypothecation, assignment, deposit arrangement, charge, security
interest, encumbrance or lien of any kind whatsoever (including
any capital lease).
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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 us or
any of our subsidiaries (other than a project finance subsidiary
and such recourse as exists under a performance guaranty) or any
property or asset of us or any of our subsidiaries (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.
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 our board of directors is not of material
importance to the total business conducted by us and our
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 and project finance
subsidiaries means any of our subsidiaries designated by
us 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 us or our
subsidiaries 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 the consolidated
net tangible assets.
Sale and leaseback transaction means any arrangement
entered into by us or any subsidiary with any person providing
for the leasing to us 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 us and a subsidiary or between subsidiaries),
which principal property has been or is to be sold or
transferred by us or such subsidiary to such person.
Significant subsidiary means any subsidiary of ours,
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 Original 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
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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.
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 our
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.
Payment
and Paying Agent
Under the indenture, we will pay interest on the notes to the
persons in whose names the notes are registered at the close of
business on the regular record date for each interest payment.
However, we will pay the interest payable on the notes at their
stated maturity to the persons to whom we pay the principal
amount of the notes. (Section 307)
We will pay principal, premium, if any, and interest on the
notes at the offices of the paying agents we designate. However,
except in the case of a global security, we may pay
interest by:
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check mailed to the address of the person entitled to the
payment as it appears in the security register, or
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by wire transfer in immediately available funds to the place and
account designated in writing by the person entitled to the
payment as specified in the security register.
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We have designated the trustee as the sole paying agent for the
notes. At any time, we may designate additional paying agents or
rescind the designation of any paying agents. However, we are
required to maintain a paying agent in each place of payment for
the notes at all times. (Sections 307 and 1002)
Any money deposited with the trustee or any paying agent for the
payment of principal, premium, if any, and interest on the notes
that remains unclaimed for two years after the date the payments
became due, may be repaid to us upon our request. After we have
been repaid, holders entitled to those payments may only look to
us for payment as our unsecured general creditors. The trustee
and any paying agents will not be liable for those payments
after we have been repaid. (Section 1003)
Consolidation,
Merger and Sale of Assets
Under the indenture, we may not consolidate with or merge into,
or convey, transfer or lease our properties and assets
substantially as an entirety, to any person, referred to as a
successor person, and we may not permit any person
to consolidate with or merge into, or convey, transfer or lease
its properties and assets substantially as an entirety to us,
unless:
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the successor person is a corporation, partnership, trust or
other entity organized and validly existing under the laws of
the United States of America or any state thereof or the
District of Columbia,
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the successor person expressly assumes our obligations with
respect to the notes and the indenture,
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immediately after giving effect to the transaction, no event of
default, and no event which, after notice or lapse of time or
both, would become an event of default, would occur and be
continuing, and
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we have delivered to the trustee the certificates and opinions
required under the indenture. (Section 801)
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As used in the indenture, the term corporation means
a corporation, association, company, joint-stock company or
business trust.
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Events of
Default
Each of the following is an event of default under the indenture
with respect to each series of the notes; provided, however,
that the event of default described in the fourth bullet point
below will terminate pursuant to the termination provision of
the indenture and will no longer be applicable to the notes on
and after the termination date referred to under
Restrictive Covenants above:
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our failure to pay principal or premium, if any, on the notes of
that series when due, including at maturity or upon redemption,
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our failure to pay any interest on the notes of that series for
30 days after interest becomes due,
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our failure to perform, or our breach in any material respect
of, any other covenant or warranty in the indenture, other than
a covenant or warranty included in the indenture solely for the
benefit of another series of our debt securities issued under
the indenture, for 90 days after either the trustee or
holders of at least 25% in principal amount of the outstanding
notes of that series have given us written notice of the breach
in the manner required by the indenture,
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the default by us or any subsidiary, other than a project
finance subsidiary, of ours 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 notice to us in accordance with the indenture, and
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specified events involving bankruptcy, insolvency or
reorganization,
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provided, however, that no event described in the third, fourth
or fifth bullet points above will be an event of default until
an officer of the trustee, assigned to and working in the
trustees corporate trust department, has actual knowledge
of the event or until the trustee receives written notice of the
event at its corporate trust office, and the notice refers to
the series of notes generally, us or the indenture.
(Section 501)
If an event of default occurs and is continuing with respect to
either series of the notes, either the trustee or the holders of
at least 25% in principal amount of the outstanding notes of the
affected series may declare the principal amount of the notes of
that series due and immediately payable. In order to declare the
principal amount of the notes of either series due and
immediately payable, the trustee or the holders of that series
must deliver a notice that satisfies the requirements of the
indenture. Upon a declaration by the trustee or the holders, we
will be obligated to pay the principal amount of the notes of
the affected series.
This right does not apply if an event of default described in
the fifth bullet point above occurs. If one of the events of
default described in the fifth bullet point above occurs and is
continuing, the notes then outstanding under the indenture shall
be due and payable immediately.
After any declaration of acceleration of the notes of either
series, but before a judgment or decree for payment, the holders
of a majority in principal amount of the outstanding notes of
the affected series may, under certain circumstances, rescind
and annul the declaration of acceleration if all events of
default, other than the non-payment of principal, have been
cured or waived as provided in the indenture.
(Section 502) For information regarding waiver of
defaults, please read Modification and
Waiver below.
If an event of default occurs and is continuing, the trustee
will generally have no obligation to exercise any of its rights
or powers under the indenture at the request or direction of any
of the holders, unless the holders offer reasonable indemnity to
the trustee. (Section 603) The holders of a majority
in principal amount of the outstanding notes of a series will
generally have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the
trustee or exercising any trust or power conferred on the
trustee for the notes with respect to that series, provided that:
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the direction is not in conflict with any law or the indenture,
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the trustee may take any other action it deems proper which is
not inconsistent with the direction, and
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the trustee will generally have the right to decline to follow
the direction if an officer of the trustee determines, in good
faith, that the proceeding would involve the trustee in personal
liability or would otherwise be contrary to applicable law.
(Section 512)
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A holder of a note may only pursue a remedy under the indenture
if:
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the holder has previously given the trustee written notice of a
continuing event of default for the notes of that series,
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holders of at least 25% in principal amount of the outstanding
notes of that series have made a written request to the trustee
to pursue that remedy,
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the holders have offered reasonable indemnity to the trustee,
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the trustee fails to pursue that remedy within 60 days
after receipt of the notice, request and offer of
indemnity, and
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during that
60-day
period, the holders of a majority in principal amount of the
notes of that series do not give the trustee a direction
inconsistent with the request. (Section 507)
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However, these limitations do not apply to a suit by a holder of
a note demanding payment of the principal, premium, if any, or
interest on a note on or after the date the payment is due.
(Section 508)
We will be required to furnish to the trustee annually a
statement by some of our officers regarding our performance or
observance of any of the terms of the indenture and specifying
all of our known defaults, if any. (Section 1004)
Modification
and Waiver
We may enter into one or more supplemental indentures with the
trustee without the consent of the holders of any of the notes
in order to:
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evidence the succession of another corporation to us, or
successive successions and the assumption of our covenants,
agreements and obligations by a successor,
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add to our covenants for the benefit of the holders of any
series of debt securities or to surrender any of our rights or
powers,
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add events of default for any series of debt securities,
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add to or change any provisions of the indenture to the extent
necessary to issue debt securities in bearer form,
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add to, change or eliminate any provision of the indenture
applying to one or more series of debt securities, provided that
if such action adversely affects the interests of any holder of
any series of debt securities, the addition, change or
elimination will become effective with respect to that series
only when no security of that series remains outstanding,
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convey, transfer, assign, mortgage or pledge any property to or
with the trustee or surrender any right or power conferred upon
us by the indenture,
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establish the form or terms of any series of debt securities,
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provide for uncertificated securities in addition to
certificated securities,
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evidence and provide for successor trustees or add or change any
provisions to the extent necessary to appoint a separate trustee
or trustees for a specific series of debt securities,
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correct any ambiguity, defect or inconsistency under the
indenture, provided that such action does not adversely affect
the interests of the holders of any series of debt securities,
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supplement any provisions of the indenture necessary to defease
and discharge any series of debt securities, provided that such
action does not adversely affect the interests of the holders of
any series of debt securities,
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comply with the rules or regulations of any securities exchange
or automated quotation system on which any debt securities are
listed or traded, or
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add, change or eliminate any provisions of the indenture in
accordance with any amendments to the Trust Indenture Act
of 1939, provided that the action does not adversely affect the
rights or interests of any holder of debt securities. (Section
901)
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We may enter into one or more supplemental indentures with the
trustee in order to add to, change or eliminate provisions of
the indenture or to modify the rights of the holders of one or
more series of debt securities, including the notes, if we
obtain the consent of the holders of a majority in principal
amount of the outstanding debt securities of each series
affected by the supplemental indenture, treated as one class.
However, without the consent of the holders of each outstanding
debt security affected by the supplemental indenture, we may not
enter into a supplemental indenture that:
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changes the stated maturity of the principal of, or any
installment of principal of or interest on, any debt security,
except to the extent permitted by the indenture,
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reduces the principal amount of, or any premium or interest on,
any debt security,
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reduces the amount of principal of an original issue discount
security or any other debt security payable upon acceleration of
the maturity thereof,
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changes the place or currency of payment of principal, premium,
if any, or interest,
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impairs the right to institute suit for the enforcement of any
payment on any debt security,
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reduces the percentage in principal amount of outstanding debt
securities of any series, the consent of whose holders is
required for modification of the indenture, for waiver of
compliance with certain provisions of the indenture or for
waiver of certain defaults,
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makes certain modifications to the provisions for modification
of the indenture and for certain waivers, except to increase the
principal amount of debt securities necessary to consent to any
such change,
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makes any change that adversely affects the right to convert or
exchange any debt security or decreases the conversion or
exchange rate or increases the conversion price of any
convertible or exchangeable debt security, or
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changes the terms and conditions pursuant to which any series of
debt securities is secured in a manner adverse to the holders of
the debt securities. (Section 902)
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Holders of a majority in principal amount of the outstanding
notes of either series may waive past defaults or noncompliance
with restrictive provisions of the indenture with respect to
that series. However, such holders of a majority in principal
amount may not waive, and consequently, the consent of holders
of each outstanding note of a series would be required to:
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waive any default in the payment of principal, premium, if any,
or interest on any note of that series, or
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waive any covenants and provisions of the indenture that may not
be amended without the consent of the holder of each outstanding
note of that series. (Sections 513 and 1006)
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In order to determine whether the holders of the requisite
principal amount of the outstanding debt securities have taken
an action under the indenture as of a specified date:
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the principal amount of an original issue discount
security that will be deemed to be outstanding will be the
amount of the principal that would be due and payable as of that
date upon acceleration of the maturity to that date,
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if, as of that date, the principal amount payable at the stated
maturity of a debt security is not determinable, for example,
because it is based on an index, the principal amount of the
debt security deemed to be outstanding as of that date will be
an amount determined in the manner prescribed for the debt
security,
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the principal amount of a debt security denominated in one or
more foreign currencies or currency units that will be deemed to
be outstanding will be the U.S. dollar equivalent,
determined as of that date in the manner prescribed for the debt
security, of the principal amount of the debt security or, in
the case of a debt security described in the two preceding
bullet points, of the amount described above, and
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debt securities owned by us or any other obligor upon the debt
securities or any of our or their affiliates will be disregarded
and deemed not to be outstanding.
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An original issue discount security means a debt
security issued under the indenture which provides for an amount
less than the principal amount thereof to be due and payable
upon a declaration of acceleration of maturity. Some debt
securities, including those for the payment or redemption of
which money has been deposited or set aside in trust for the
holders and those that have been fully defeased pursuant to
Section 1402 of the indenture, will not be deemed to be
outstanding. (Section 101)
We will generally be entitled to set any day as a record date
for determining the holders of outstanding notes of a series
entitled to give or take any direction, notice, consent, waiver
or other action under the indenture. In limited circumstances,
the trustee will be entitled to set a record date for action by
holders of outstanding notes of a series. If a record date is
set for any action to be taken by holders, the action may be
taken only by persons who are holders of outstanding notes of
the relevant series on the record date. To be effective, the
action must be taken by holders of the requisite principal
amount of the notes of that series within a specified period
following the record date. For any particular record date, this
period will be 180 days or such shorter period as we may
specify, or the trustee may specify, if it set the record date.
This period may be shortened or lengthened by not more than
180 days. (Section 104)
Defeasance
If we deposit with the trustee funds or government securities
sufficient to make payments on the notes of either series on the
dates those payments are due and payable, then, at our option,
either of the following will occur:
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we will be discharged from our obligations with respect to the
notes of that series (legal defeasance), or
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we will no longer have any obligation to comply with the
restrictive covenants under the indenture and the related events
of default in the third bullet point under
Events of Default above, the events of
default described in the fourth bullet point under
Events of Default above and the
restrictions described under Consolidation,
Merger and Sale of Assets above will no longer apply to
us, but some of our other obligations under the indenture and
the notes of that series, including our obligation to make
payments on those notes, will survive.
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If we effect legal defeasance of a series of the notes, the
holders of the notes of the affected series will not be entitled
to the benefits of the indenture, except for our obligations to:
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register the transfer or exchange of the notes of that series,
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replace mutilated, destroyed, lost or stolen notes, and
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maintain paying agencies and hold moneys for payment in trust.
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We will be required to deliver to the trustee an opinion of
counsel that the deposit and related defeasance would not cause
the holders of the notes to recognize gain or loss for federal
income tax purposes and that the holders would be subject to
federal income tax on the same amounts, in the same manner and
at the same times as would have been the case if the deposit and
related defeasance had not occurred. If we elect legal
defeasance, that opinion of counsel must be based upon a ruling
from the United States Internal Revenue Service or a change in
law to that effect. (Sections 1401, 1402, 1403 and 1404)
Satisfaction
and Discharge
We may discharge our obligations under the indenture while notes
remain outstanding if (1) all outstanding debt securities
issued under the indenture have become due and payable,
(2) all outstanding debt securities issued under the
indenture have or will become due and payable at their scheduled
maturity within one year or (3) all outstanding debt
securities issued under the indenture are scheduled for
redemption in one year, and in each case, we have deposited with
the trustee an amount sufficient to pay and discharge all
outstanding debt securities issued under the indenture on the
date of their scheduled maturity or the scheduled date of
redemption and we have paid all other sums payable under the
indenture. (Section 401)
Exchange
and Transfer of the Exchange Notes
We will issue the Exchange Notes in registered form, without
coupons. We will only issue Exchange Notes in denominations of
$2,000 principal amount and integral multiples of $1,000.
Holders may present notes for exchange or for registration of
transfer at the office of the security registrar or at the
office of any transfer agent we designate for that purpose. The
security registrar or designated transfer agent will exchange or
transfer the notes if it is satisfied with the documents of
title and identity of the person making the request. We will not
charge a service charge for any exchange or registration of
transfer of notes. However, we may require payment of a sum
sufficient to cover any tax or other governmental charge payable
for the exchange or registration of transfer. The trustee will
serve as the security registrar. (Section 305) At any
time we may:
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designate additional transfer agents,
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rescind the designation of any transfer agent, or
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approve a change in the office of any transfer agent.
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However, we are required to maintain a transfer agent in each
place of payment for the notes at all times. (Sections 305
and 1002)
In the event we elect to redeem the notes of a series, neither
we nor the trustee will be required to register the transfer or
exchange of the notes of the affected series:
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during the period beginning at the opening of business
15 days before the day we mail the notice of redemption for
the notes and ending at the close of business on the day the
notice is mailed, or
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if we have selected the notes for redemption, in whole or in
part, except for the unredeemed portion of the notes.
(Section 305)
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Notices
Holders will receive notices by mail at their addresses as they
appear in the security register. (Section 106)
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Title
We may treat the person in whose name a note is registered on
the applicable record date as the owner of the note for all
purposes, whether or not it is overdue. (Section 309)
Governing
Law
New York law will govern the indenture and the notes.
(Section 112)
Regarding
the Trustee
The Bank of New York Mellon Trust Company, N.A., successor
to JPMorgan Chase Bank, National Association, is the trustee,
security registrar and paying agent under the indenture for the
notes. As of June 30, 2011, the trustee served as trustee
for approximately $2.7 billion aggregate principal amount
of our debt securities. In addition, the trustee served as
trustee or fiscal agent for debt securities issued by or on
behalf of our affiliates aggregating approximately
$5.7 billion as of June 30, 2011.
Our affiliates maintain investment management, stock option
administration and brokerage relationships with the trustee and
its affiliates.
If an event of default occurs under the indenture and is
continuing, the trustee will be required to use the degree of
care and skill of a prudent person in the conduct of that
persons own affairs. The trustee will become obligated to
exercise any of its powers under the indenture at the request of
any of the holders of the notes only after those holders have
offered the trustee indemnity satisfactory to it.
If the trustee becomes one of our creditors, its rights to
obtain payment of claims in specified circumstances, or to
realize for its own account on certain property received in
respect of any such claim as security or otherwise will be
limited under the terms of the indenture pursuant to the
provisions of the Trust Indenture Act.
(Section 613) The trustee may engage in certain other
transactions; however, if the trustee acquires any conflicting
interest (within the meaning specified under the
Trust Indenture Act), it will be required to eliminate the
conflict or resign. (Section 608)
36
REGISTRATION
RIGHTS
The following description of the material provisions of the
registration rights agreement is a summary only. Because this
section is a summary, it does not describe every aspect of the
registration rights agreement. This summary is subject to and
qualified in its entirety by reference to all the provisions of
the registration rights agreement, a copy of which we have filed
as an exhibit to the registration statement on
Form S-4
with respect to the Exchange Notes offered by this prospectus.
In addition, the information below concerning specific
interpretations of and positions taken by the staff of the SEC
is not intended to constitute legal advice, and prospective
investors should consult their own legal advisors with respect
to those matters.
Registration
In connection with the sale of the Original Notes, we entered
into a registration rights agreement with the initial purchasers
and the dealer managers of the 2013 Notes Exchange Offer.
Pursuant to the registration rights agreement, we agreed, for
the benefit of the holders of the Original Notes, at our cost,
to use our reasonable commercial efforts:
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to file with the SEC not later than 120 days following the
ultimate date of issuance of any Original Notes pursuant to the
2013 Exchange Offer (the Registration Rights Issue
Date) the registration statement of which this prospectus
forms a part (the Exchange Offer Registration
Statement) relating to the exchange offer for the Original
Notes pursuant to which the Exchange Notes would be offered in
exchange for the Original Notes;
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to cause the Exchange Offer Registration Statement to be
declared effective under the Securities Act within 180 days
after the Registration Rights Issue Date (unless the Exchange
Offer Registration Statement is reviewed by the SEC, in which
case within 240 days of the Registration Rights Issue Date)
and to keep the Exchange Offer Registration Statement effective
until the closing of the exchange offer; and
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unless the exchange offer would not be permitted by applicable
law or SEC policy, to cause the exchange offer to be consummated
within 225 days after the Registration Rights Issue Date
(unless the Exchange Offer Registration Statement is reviewed by
the SEC, in which case within 285 days of the Registration
Rights Issue Date).
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We agreed that, upon the Exchange Offer Registration Statement
being declared effective, we would offer the Exchange Notes of a
series in exchange for surrender of the Original Notes of that
series. We agreed to keep the exchange offer open for not less
than 20 business days (or longer if required by applicable law)
after the date that notice of the exchange offer is mailed to
registered holders of the Original Notes. For each Original Note
validly tendered to us pursuant to the exchange offer and not
withdrawn by the holder thereof, the holder of such Original
Note will receive an Exchange Note having a principal amount
equal to that of the surrendered Original Note.
Shelf
Registration
In the event that:
(1) we reasonably determine that changes in law or
applicable interpretations of the Staff do not permit us to
effect the exchange offer;
(2) the exchange offer is not consummated on or prior to
the 225th day following the Registration Rights Issue Date
(unless the Exchange Offer Registration Statement is reviewed by
the SEC, in which case on or prior to the 285th day
following the Registration Rights Issue Date); or
(3) a holder notifies us within 20 business days following
consummation of the exchange offer that it is not permitted by
applicable law or SEC policy to participate in the exchange
offer, that it may not resell Exchange Notes with the prospectus
contained in the Exchange Offer Registration Statement or that
it is a broker dealer and owns Original Notes acquired directly
from us or one of our affiliates,
37
then we will at our cost in lieu of effecting (or, in the case
of such a request by a holder, in addition to effecting) the
registration of the Exchange Notes pursuant to the Exchange
Offer Registration Statement:
(1) as promptly as practicable, file with the SEC a shelf
registration statement (Shelf Registration
Statement) to cover resales of the Original Notes;
(2) use our reasonable commercial efforts to cause the
Shelf Registration Statement to be declared effective under the
Securities Act not later than 225 days after the
Registration Rights Issue Date (unless the Shelf Registration
Statement is reviewed by the SEC, in which case, not later than
285 days after the Registration Rights Issue Date); and
(3) use our reasonable commercial efforts to keep effective
the Shelf Registration Statement until the earlier of one year
after the Registration Rights Issue Date and the date all of the
Original Notes covered by the Shelf Registration Statement have
been sold.
We will have the ability to suspend the availability of the
Shelf Registration Statement during certain black
out periods.
In the event of the filing of a Shelf Registration Statement, we
will provide to each holder of Original Notes that are covered
by the Shelf Registration Statement copies of the prospectus
that is a part of the Shelf Registration Statement and notify
such holder when the Shelf Registration Statement has become
effective. A holder of Original Notes that sells such Original
Notes pursuant to the Shelf Registration Statement generally
will be required to be named as a selling securityholder in the
related prospectus and to deliver a prospectus to purchasers,
will be subject to the civil liability provisions under the
Securities Act in connection with such sales and will be bound
by the provisions of the registration rights agreement that are
applicable to such holder (including indemnification
obligations). In addition, each holder of Original Notes will be
required to deliver to us information to be used in connection
with the Shelf Registration Statement and to provide comments to
us on the Shelf Registration Statement in order to have such
holders Original Notes included in the Shelf Registration
Statement and to benefit from the provisions regarding the
increase in the interest rate borne by the Original Notes
described below.
Additional
Interest
In the event that:
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the Exchange Offer Registration Statement is not declared
effective by the SEC on or prior to the 180th day following the
Registration Rights Issue Date (unless the Exchange Offer
Registration Statement is reviewed by the SEC, in which case on
or prior to the 240th day following the Registration Rights
Issue Date);
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the Exchange Offer is not consummated or the Shelf Registration
Statement is not declared effective on or prior to the 225th day
following the Registration Rights Issue Date (unless the
Exchange Offer Registration Statement or the Shelf Registration
Statement is reviewed by the SEC, in which case on or prior to
the 285th day following the Registration Rights Issue
Date); or
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any required exchange offer registration statement or shelf
registration statement relating to the Original Notes is filed
and declared effective but shall thereafter either be withdrawn
by us or becomes subject to an effective stop order suspending
the effectiveness of such registration statement (except as
specifically permitted in the registration rights agreement)
without being succeeded within 30 days by an amendment
thereto or an additional registration statement filed and
declared effective, each such event listed in the bullet points
above, referred to as a registration default;
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then the interest rate borne by the applicable Original Notes
will be increased by 0.25% per annum upon the occurrence of each
registration default, which rate will increase by an additional
0.25% per annum if such registration default has not been cured
within 90 days after the occurrence thereof and continuing
until all registration defaults have been cured, provided that
the aggregate amount of any such increase in the interest rate
on the applicable Original Notes shall in no event exceed 0.50%
per annum; and provided, further, that if the Exchange Offer
Registration Statement is not declared effective on or prior to
the 180th day following the
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Registration Rights Issue Date (unless the Exchange Offer
Registration Statement is reviewed by the SEC, in which case on
or prior to the 240th day following the Registration Rights
Issue Date) and we shall request holders of Original Notes to
provide the information called for by the registration rights
agreement for including in the Shelf Registration Statement,
then Original Notes owned by holders who do not deliver such
information to us or who do not provide comments to us on the
Shelf Registration Statement when required pursuant to the
registration rights agreement will not be entitled to any such
increase in the interest rate for any day after the 225th day
following the Registration Rights Issue Date (unless the
Exchange Offer Registration Statement or the Shelf Registration
Statement is reviewed by the SEC, in which case for any day
after the 285th day following the Registration Rights Issue
Date). All accrued interest will be paid to holders of Original
Notes in the same manner and at the same time as regular
payments of interest on the Original Notes. Following the cure
of all registration defaults, the accrual of additional interest
will cease and the interest rate will revert to the original
rate.
Governing
Law
The registration rights agreement is governed by, and construed
in accordance with, the laws of the State of New York.
39
BOOK-ENTRY
SYSTEM
DTC will act as securities depository for the Exchange Notes.
Each series of Exchange Notes will be issued as fully registered
securities in the name of Cede & Co. (DTCs
partnership nominee) or such other name as may be requested by
an authorized representative of DTC in the aggregate principal
amount of such series of Exchange Notes, and will be deposited
with DTC or its custodian.
DTC, the worlds largest securities depository, is a
limited-purpose trust company organized under the New York
Banking Law, a banking organization within the
meaning of the New York Banking Law, a member of the Federal
Reserve System, a clearing corporation within the
meaning of the New York Uniform Commercial Code, and a
clearing agency registered pursuant to the
provisions of Section 17A of the Exchange Act. DTC holds
and provides asset servicing for over 2.2 million issues of
U.S. and
non-U.S. equity,
corporate and municipal debt issues, and money market
instruments from over 100 countries that DTCs participants
(Direct Participants) deposit with DTC. DTC also
facilitates the post-trade settlement among Direct Participants
of sales and other securities transactions in deposited
securities through electronic computerized book-entry transfers
and pledges between Direct Participants accounts. This
eliminates the need for physical movement of securities
certificates. Direct Participants include both U.S. and
non-U.S. securities
brokers and dealers, banks, trust companies, clearing
corporations, and certain other organizations. DTC is a wholly
owned subsidiary of The Depository Trust & Clearing
Corporation (DTCC). DTCC, in turn, is owned by a
number of Direct Participants of DTC and members of the National
Securities Clearing Corporation, Fixed Income Clearing
Corporation, and Emerging Markets Clearing Corporation (NSCC,
FICC, and EMCC, also subsidiaries of DTCC), as well as by The
New York Stock Exchange, Inc., the American Stock Exchange LLC,
and the National Association of Securities Dealers, Inc. Access
to the DTC system is also available to other entities such as
both U.S. and
non-U.S. securities
brokers and dealers, banks, trust companies, and clearing
corporations that clear through or maintain a custodial
relationship with a Direct Participant, either directly or
indirectly (Indirect Participants). The DTC rules
applicable to its Participants are on file with the SEC. More
information about DTC can be found at www.dtcc.com. The
information on this website is not a part of this prospectus.
Purchases of Exchange Notes under the DTC system must be made by
or through Direct Participants, which will receive a credit for
the Exchange Notes on the records of DTC. The ownership interest
of each actual purchaser of each Exchange Note (Beneficial
Owner) is in turn to be recorded on the records of the
Direct and Indirect Participants records. Beneficial
Owners will not receive written confirmation from DTC of their
purchase. Beneficial Owners are, however, expected to receive
written confirmations providing details of the transaction, as
well as periodic statements of their holdings, from the Direct
or Indirect Participant through which the Beneficial Owner
entered into the transaction. Transfers of ownership interests
in the Exchange Notes are to be accomplished by entries made on
the books of Direct and Indirect Participants acting on behalf
of Beneficial Owners. Beneficial Owners will not receive
certificates representing their ownership interests in the
Exchange Notes, except in the event that use of the book-entry
system for the Exchange Notes is discontinued.
To facilitate subsequent transfers, all Exchange Notes deposited
by Direct Participants with DTC are registered in the name of
DTCs partnership nominee, Cede & Co., or such
other name as may be requested by an authorized representative
of DTC. The deposit of Exchange Notes with DTC and their
registration in the name of Cede & Co. or such other
DTC nominee do not effect any change in beneficial ownership.
DTC has no knowledge of the actual Beneficial Owners of the
Exchange Notes; the records of DTC reflect only the identity of
the Direct Participants to whose accounts such Exchange Notes
are credited, which may or may not be the Beneficial Owners. The
Direct and Indirect Participants will remain responsible for
keeping account of their holdings on behalf of their customers.
Conveyance of notices and other communications by DTC to Direct
Participants, by Direct Participants to Indirect Participants,
and by Direct Participants and Indirect Participants to
Beneficial Owners will be governed by arrangements among them,
subject to any statutory or regulatory requirements as may be in
effect from time to time. Beneficial Owners of Exchange Notes
may wish to take certain steps to augment the transmission to
them of notices of significant events with respect to the
Exchange Notes, such as redemptions,
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defaults and proposed amendments to the documents establishing
the Exchange Notes. For example, Beneficial Owners of Exchange
Notes may wish to ascertain that the nominee holding the
Exchange Notes for their benefit has agreed to obtain and to
transmit notices to Beneficial Owners or, in the alternative,
Beneficial Owners may wish to provide their names and addresses
to the transfer agent and request that copies of notices be
provided directly to them.
Redemption notices shall be sent to DTC. If less than all the
Exchange Notes within an issue are being redeemed, the practice
of DTC is to determine by lot the amount of the interest of each
Direct Participant in such issue to be redeemed.
Neither DTC nor Cede & Co. (nor such other DTC
nominee) will consent or vote with respect to the Exchange Notes
unless authorized by a Direct Participant in accordance with
DTCs procedures. Under its usual procedures, DTC mails an
omnibus proxy to us as soon as possible after the record date.
The omnibus proxy assigns Cede & Co.s consenting
or voting rights to those Direct Participants to whose accounts
the Exchange Notes are credited on the record date, identified
in a listing attached to the omnibus proxy.
Redemption proceeds and distribution and interest payments on
the Exchange Notes will be made to Cede & Co. or such
other nominee as may be requested by an authorized
representative of DTC. The practice of DTC is to credit the
accounts of Direct Participants, upon the receipt by DTC of
funds and corresponding detail information from us, on the
payable date in accordance with their respective holdings shown
on the records of DTC. Payments by Participants to Beneficial
Owners will be governed by standing instructions and customary
practice, as is the case with securities held for the accounts
of customers in bearer form or registered in street
name, and will be the responsibility of such Participant
and not of DTC or its nominee, the initial purchaser or us,
subject to any statutory or regulatory requirements as may be in
effect from time to time. Payment of redemption proceeds and
distribution and interest payments to Cede & Co. or
such other nominee as may be requested by an authorized
representative of DTC is our responsibility, disbursement of
such payments to Direct Participants will be the responsibility
of DTC, and disbursement of such payments to the Beneficial
Owners will be the responsibility of Direct and Indirect
Participants.
A Beneficial Owner shall give notice to elect to have its
Exchange Notes purchased or tendered, through its Participant,
to the tender or remarketing agent and shall effect delivery of
such Exchange Notes by causing the Direct Participant to
transfer the interest of the Participant in the Exchange Notes,
on the records of DTC, to the tender or remarketing agent. The
requirement for physical delivery of Exchange Notes in
connection with an optional tender or a mandatory purchase will
be deemed satisfied when the ownership rights in the Exchange
Notes are transferred by Direct Participants on the records of
DTC and followed by a book-entry credit of tendered Exchange
Notes to the DTC account of the tender or remarketing agent.
DTC may discontinue providing its services as securities
depository with respect to the Exchange Notes at any time by
giving reasonable notice to us. Under such circumstances, in the
event that a successor depository is not obtained, Exchange Note
certificates are required to be printed and delivered.
We may decide to discontinue use of the system of book-entry
transfers through DTC or a successor securities depository. In
that event, Exchange Note certificates will be printed and
delivered.
The information in this section concerning DTC and its
book-entry system has been obtained from sources that we believe
to be reliable, but we take no responsibility for the accuracy
thereof.
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CERTAIN
U.S. FEDERAL INCOME TAX CONSIDERATIONS
The following is a summary of certain U.S. federal income
tax consequences of the disposition of the Original Notes in the
exchange offer and the ownership and disposition of Exchange
Notes acquired therein. Except where noted, this summary deals
only with Original Notes and Exchange Notes held as capital
assets. This summary is based upon the provisions of the Code,
the Treasury Regulations promulgated thereunder and judicial and
administrative rulings and decisions now in effect, all of which
are subject to change or differing interpretations, possibly
with retroactive effect. This summary does not purport to
address all aspects of U.S. federal income taxation that
may affect particular investors in light of their individual
circumstances, or certain types of investors subject to special
treatment under the U.S. federal income tax laws, such as
persons that mark to market their securities, financial
institutions, regulated investment companies, real estate
investment trusts, corporations subject to the accumulated
earnings tax, holders subject to the alternative minimum tax,
individual retirement and other tax-deferred accounts,
tax-exempt organizations, brokers, dealers in securities and
commodities, certain former U.S. citizens or long-term
residents, life insurance companies, persons that hold Original
Notes or Exchange Notes as part of a hedge against currency or
interest rate risks or that hold Original Notes or Exchange
Notes as part of a position in a constructive sale, straddle,
conversion transaction or other integrated transaction for
U.S. federal income tax purposes, controlled foreign
corporations, passive foreign investment companies, persons that
acquire their Original Notes or Exchange Notes in connection
with employment or other performance of personal services,
partnerships or other pass-through entities and investors in
such entities, subsequent purchasers of the Exchange Notes and
U.S. holders (as defined below) whose functional
currency is not the U.S. dollar. This summary does
not address any aspect of state, local or foreign taxation or
any U.S. federal tax other than the income tax. In
addition, this discussion does not address the tax consequences
to persons who acquired Original Notes other than pursuant to
their additional issuance and distribution.
For purposes of this summary, a U.S. holder is
a beneficial owner of an Original Note or Exchange Note that,
for U.S. federal income tax purposes, is:
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an individual citizen or resident of the United States;
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a corporation, or other entity treated as a corporation, created
or organized in or under the laws of the United States, any
state thereof or the District of Columbia;
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an estate, the income of which is subject to U.S. federal
income taxation regardless of its source; or
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a trust, if (a) a court within the United States is able to
exercise primary jurisdiction over administration of the trust
and one or more U.S. persons have authority to control all
substantial decisions of the trust or (b) it has a valid
election in effect to be treated as a U.S. person.
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For purposes of this summary, a
non-U.S. holder
is a beneficial owner of an Original Note or Exchange Note that
is not a U.S. holder or a partnership (including an entity
or arrangement treated as a partnership for U.S. federal
income tax purposes).
If a partnership (including an entity or arrangement treated as
a partnership for U.S. federal income tax purposes) is a
beneficial owner of Original Notes or Exchange Notes, the tax
treatment of a partner in the partnership will generally depend
upon the status of the partner and the activities of the
partnership. Partnerships that hold Original Notes or Exchange
Notes (and partners in such partnerships) should consult their
tax advisors.
We have not requested, and do not intend to request, a ruling
from the U.S. Internal Revenue Service (the
IRS), with respect to any of the U.S. federal
income tax consequences described below. There can be no
assurance that the IRS will not disagree with or challenge any
of the conclusions set forth herein.
Persons considering a tender of an Original Note for an
Exchange Note are urged to consult with their tax advisors as to
the U.S. federal income tax consequences of the disposition
of their Original Notes in the exchange offer and the ownership
and disposition of Exchange Notes acquired therein, in light of
their particular circumstances, as well as the effect of any
state, local or other tax laws.
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Exchange
Offer
The exchange of Original Notes for Exchange Notes pursuant to
this exchange offer will not be a taxable event to a holder for
United States federal income tax purposes. Accordingly, a holder
will not recognize gain or loss upon receipt of an Exchange Note
for an Original Note, and the holder will have the same basis
and holding period in an Exchange Note as it had in the tendered
Original Note immediately before the exchange.
Effect of
Certain Additional Payments
Under certain circumstances (for example, see Description
of the Exchange Notes Optional Redemption),
CERC Corp. may be required to pay amounts on the Original Notes
or Exchange Notes that are in excess of stated interest or
principal on the Original Notes or Exchange Notes. Under the
U.S. Treasury Regulations, the possibility of additional
payments under a debt instrument may be disregarded for purposes
of determining the amount of interest or original issue discount
(OID) income to be recognized by the holder in
respect of the debt instrument (or the timing of such
recognition) if the likelihood of the payments, as of the date
the debt instrument is issued, is remote, the amount of
potential payments is incidental or another applicable exception
applies. CERC Corp. believes that the possibility of additional
payments will be disregarded. Therefore, CERC Corp. does not
intend to treat the possibility of such additional payments as
affecting the amount of interest or OID to be recognized by the
beneficial owner of an Original Note or an Exchange Note or the
timing or character of such recognition. Our determination is
binding on each holder unless the holder explicitly discloses to
the IRS in the proper manner that its determination is different
than ours.
Our determination is not binding on the IRS. It is possible that
the IRS may take a different position regarding the possibility
of such additional payments. If that position were sustained,
the timing, amount and character of income recognized with
respect to the Original Notes or Exchange Notes might differ
substantially, and possibly adversely, from the consequences
described herein. The remainder of this discussion assumes that
the possibility of such additional payments will be disregarded.
Holders should consult their own tax advisors as to the tax
considerations that relate to the possibility of additional
payments.
U.S.
Holders
Payments of interest. Stated interest on
Exchange Notes will generally be taxable to a U.S. holder
as ordinary interest income at the time it accrues or is
received in accordance with the U.S. holders regular
method of accounting for U.S. federal income tax purposes.
Sale, exchange or other taxable disposition of Exchange
Notes. Upon the sale, exchange, redemption or
other taxable disposition of an Exchange Note, a
U.S. holder will recognize taxable gain or loss equal to
the difference between the amount realized on the sale,
exchange, redemption or other taxable disposition and the
holders adjusted tax basis in the Exchange Note. For these
purposes, the amount realized does not include any amount
attributable to accrued interest. Amounts attributable to
accrued interest are treated as interest as described under
Payments of interest above. A
U.S. holders adjusted tax basis in an Exchange Note
will generally be such holders cost for the Exchange Note.
Gain or loss realized on the sale, exchange, redemption or other
taxable disposition of an Exchange Note will generally be
capital gain or loss and will be long-term capital gain or loss
if at the time of the sale, exchange, redemption or other
taxable disposition the Note has been held by the holder for
more than one year. Long-term capital gains of individual
holders are eligible for preferential rates of United States
federal income taxation. The deductibility of capital losses is
subject to limitations under the Code.
U.S. holders who acquired Original 2021 Notes pursuant to
the 2013 Notes Exchange Offer should consult their tax advisors
with respect to the tax basis of their Original 2021 Notes (and
therefore the Exchange 2021 Notes received in exchange therefor
pursuant to this exchange offer) and the potential applicability
of the market discount rules to a sale, exchange or other
taxable disposition of such Exchange 2021 Notes.
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Information reporting and backup
withholding. Information returns will be filed
with the IRS in connection with payments on the Exchange Notes
and the proceeds from a sale or other disposition of the
Exchange Notes, unless the U.S. holder is an exempt
recipient such as a corporation and, if requested, demonstrates
this fact. A U.S. holder will be subject to
U.S. backup withholding on these payments if the
U.S. holder fails to provide its taxpayer identification
number to the payor and comply with certain certification
procedures or otherwise establish an exemption from backup
withholding. Backup withholding is not an additional tax. The
amount of any backup withholding from a payment to a
U.S. holder will be allowed as a credit against the
U.S. holders U.S. federal income tax liability
and may entitle the U.S. holder to a refund, provided that
the required information is timely furnished to the IRS.
New legislation regarding Medicare Tax. For
taxable years beginning after December 31, 2012, certain
U.S. holders that are individuals, estates or trusts will
be subject to a 3.8% tax on all or a portion of their net
investment income, which may include all or a portion of
their interest and net gains from the disposition of Exchange
Notes. If you are a U.S. holder that is an individual,
estate or trust, you should consult your tax advisors regarding
the applicability of the Medicare tax to your income and gains
in respect of your investment in the Exchange Notes.
Non-U.S.
Holders
Payments of interest. Subject to the
discussion below concerning backup withholding, payments of
interest on an Exchange Note received or accrued by a
non-U.S. holder
generally will not be subject to U.S. federal income or
withholding tax, as long as the
non-U.S. holder:
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does not conduct a trade or business in the United States with
respect to which the interest is effectively connected;
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does not actually, indirectly or constructively own 10% or more
of the total combined voting power of all classes of our stock
entitled to vote, within the meaning of Section 871(h)(3)
of the Code;
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is not a controlled foreign corporation with respect
to which we are a related person within the meaning
of Section 881(c)(3)(C) of the Code;
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is not a bank whose receipt of the interest is described in
Section 881(c)(3)(A) of the Code; and
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satisfies the certification requirements described below.
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The certification requirements will be satisfied if either
(a) the beneficial owner of the Exchange Note timely
certifies, under penalties of perjury, to us or to the person
who otherwise would be required to withhold U.S. tax that
such owner is a
non-U.S. holder
and provides its name and address or (b) a custodian,
broker, nominee or other intermediary acting as an agent for the
beneficial owner (such as a securities clearing organization,
bank or other financial institution that holds customers
securities in the ordinary course of its trade or business) that
holds the Exchange Note in such capacity timely certifies, under
penalties of perjury, to us or to the person who otherwise would
be required to withhold U.S. tax that such statement has
been received from the beneficial owner of the Exchange Note by
such intermediary, or by any other financial institution between
such intermediary and the beneficial owner, and furnishes to us
or to the person who otherwise would be required to withhold
U.S. tax a copy thereof.
A
non-U.S. holder
that is not exempt from tax under the foregoing rules generally
will be subject to U.S. federal income tax withholding on
payments of interest at a rate of 30% unless:
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the interest is effectively connected with a U.S. trade or
business conducted by such holder (and, if an applicable income
tax treaty so provides, is attributable to a permanent
establishment maintained in the United States by the
non-U.S. holder),
in which case the
non-U.S. holder
will be subject to U.S. federal income tax on a net income
basis at the rate applicable to U.S. holders
generally; or
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an applicable income tax treaty provides for a lower rate of, or
exemption from, withholding tax.
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A
non-U.S. holder
that is treated as a corporation for U.S. federal income
tax purposes and has effectively connected interest income (as
described in the first bullet point above) may also, under
certain circumstances,
44
be subject to an additional branch profits tax at a
30% rate, unless the rate is reduced or eliminated by an
applicable income tax treaty.
To claim the benefit of a reduced rate or exemption from
withholding under an income tax treaty or to claim exemption
from withholding because income is effectively connected with a
U.S. trade or business, the
non-U.S. holder
must timely provide the appropriate, properly executed IRS
forms. Certification to claim income that is effectively
connected with a U.S. trade or business is generally made
on IRS
Form W-8ECI.
Certification to claim the benefit of a reduced rate or
exemption from withholding under an income tax treaty is
generally made on IRS
Form W-8BEN.
These forms may be required to be periodically updated.
Sale, exchange or other taxable disposition of Exchange
Notes. A
non-U.S. holder
generally will not be subject to U.S. federal income tax on
any gain realized on the sale, exchange, retirement or other
taxable disposition of an Exchange Note unless (a) such
gain is effectively connected with the conduct by the
non-U.S. holder
of a U.S. trade or business (and, if an applicable income
tax treaty so provides, is attributable to a permanent
establishment maintained in the United States by the
non-U.S. holder)
or (b) except to the extent that an applicable income tax
treaty otherwise provides, in the case of a
non-U.S. holder
who is an individual, the holder is present in the United States
for 183 days or more during the taxable year in which such
gain is realized and certain other conditions exist.
Except to the extent that an applicable income tax treaty
otherwise provides, in the case of a
non-U.S. holder
that is described under clause (a), gain will be subject to
U.S. federal income tax on a net income basis and, in
addition, if the
non-U.S. holder
is treated as a corporation for U.S. federal income tax
purposes, such holder may be subject to the branch profits tax
as described above. An individual
non-U.S. holder
who is described under clause (b) above will be subject to
a flat 30% tax on gain derived from the sale, which may be
offset by certain U.S. capital losses (notwithstanding the
fact that he or she is not considered a U.S. resident for
U.S. federal income tax purposes).
Information reporting and backup
withholding. Payments of interest on Exchange
Notes to a
non-U.S. holder
generally will be reported to the IRS and to the
non-U.S. holder.
Copies of applicable IRS information returns may be made
available under the provisions of a specific tax treaty or
agreement to the tax authorities of the country in which the
non-U.S. holder
resides.
Non-U.S. holders
are generally exempt from backup withholding and additional
information reporting on payments of principal, premium (if
any), or interest, provided that the
non-U.S. holder
(a) certifies its nonresident status on the appropriate IRS
Form (or a suitable substitute form) and certain other
conditions are met or (b) otherwise establishes an
exemption.
Payments of the proceeds from a sale of Exchange Notes by a non
U.S. holder made to or through a foreign office of a broker
generally will not be subject to information reporting or backup
withholding. Information reporting may apply to such payments,
however, if the broker is a U.S. person, a controlled
foreign corporation for U.S. tax purposes, the
U.S. branch of a foreign bank or a foreign insurance
company, a foreign partnership controlled by U.S. persons
or engaged in a U.S. trade or business, or a foreign person
50% or more of whose gross income is effectively connected with
a U.S. trade or business for a specified three-year period.
Payments of the proceeds from the sale of Exchange Notes through
the U.S. office of a broker is subject to information
reporting and backup withholding unless the
non-U.S. holder
certifies as to its
non-U.S. status
or otherwise establishes an exemption from information reporting
and backup withholding.
Backup withholding is not an additional tax. Any backup
withholding generally will be allowed as a credit or refund
against the
non-U.S. holders
U.S. federal income tax liability, provided that the
required information is timely furnished to the IRS.
Non-U.S. holders
should consult their own tax advisors regarding the application
of the information reporting and backup withholding rules in
their particular situations, the availability of an exemption
therefrom and the procedure for obtaining such an exemption, if
available.
Recently
Enacted Legislation
Recently enacted legislation regarding foreign account tax
compliance, effective for payments made after December 31,
2012, imposes a withholding tax of 30% on interest and gross
proceeds from the disposition of
45
certain debt instruments paid to certain foreign entities unless
various information reporting and certain other requirements are
satisfied. However, the withholding tax will not be imposed on
payments pursuant to obligations outstanding as of
March 18, 2012. Nevertheless, certain account information
with respect to U.S. holders who hold Exchange Notes
through certain foreign financial institutions may be reportable
to the IRS. Investors should consult with their own tax advisors
regarding the possible implications of this recently enacted
legislation on their participation in this exchange offer.
THE PRECEDING DISCUSSION IS FOR GENERAL INFORMATION PURPOSES
ONLY AND IS NOT TAX ADVICE. ACCORDINGLY, EACH PROSPECTIVE HOLDER
OF AN EXCHANGE NOTE SHOULD CONSULT ITS OWN TAX ADVISOR AS
TO THE PARTICULAR TAX CONSEQUENCES TO IT OF PURCHASING, OWNING
AND DISPOSING OF EXCHANGE NOTES, INCLUDING THE APPLICABILITY AND
EFFECT OF ANY STATE, LOCAL OR FOREIGN TAX LAWS, AND OF ANY
PROPOSED CHANGES IN APPLICABLE LAW.
46
PLAN OF
DISTRIBUTION
Based on existing interpretations of the Securities Act by the
Staff of the Division of Corporation Finance of the SEC set
forth in several no-action letters to third parties, and subject
to the immediately following sentence, we believe that the
Exchange Notes issued pursuant to this exchange offer may be
offered for resale, resold and transferred by the holders
thereof without further compliance with the registration and
prospectus delivery requirements of the Securities Act. However,
any holder of Original Notes who is an affiliate of ours or who
intends to participate in this exchange offer for the purpose of
distributing the Exchange Notes, or any participating
broker-dealer who purchased Original Notes or the
7.875% senior notes due 2013 (the 2013 Notes)
from us or one of our affiliates to resell pursuant to
Rule 144A or any other available exemption under the
Securities Act and who, in the case of the 2013 Notes, exchanged
such 2013 Notes for Original Notes in the 2013 Notes Exchange
Offer:
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will not be able to rely on the interpretations of the Staff set
forth in the above-mentioned no-action letters;
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will not be able to tender its Original Notes in this exchange
offer; and
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must comply with the registration and prospectus delivery
requirements of the Securities Act in connection with any sale
or transfer of the Exchange Notes, unless such sale or transfer
is made pursuant to an exemption from such requirements.
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We do not intend to seek our own no-action letter and there is
no assurance that the Staff would make a similar determination
with respect to the Exchange Notes as it has in such no-action
letters to third parties. The information described above
concerning interpretations of and positions taken by the Staff
is not intended to constitute legal advice, and holders should
consult their own legal advisors with respect to these matters.
If you wish to exchange your Original Notes for Exchange Notes
in the exchange offer, you will be required to make
representations to us as described in The Exchange
Offer Resale of Exchange Notes and in the
letter of transmittal. In addition, each broker-dealer that
receives Exchange Notes for its own account pursuant to the
exchange offer must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Notes.
This prospectus, as it may be amended or supplemented from time
to time, may be used by a broker-dealer in connection with
resales of Exchange Notes received in exchange for Original
Notes where such Original Notes were acquired as a result of
market-making activities or other trading activities. We have
agreed that, for a period of 180 days after the expiration
of the exchange offer, subject to certain black-out
periods, we will make this prospectus, as amended or
supplemented, available to any broker-dealer for use in
connection with any such resale. In addition, all dealers
effecting transactions in the Exchange Securities may be
required to deliver a prospectus.
We will not receive any proceeds from any sale of Exchange Notes
by broker-dealers. Exchange Notes received by broker-dealers for
their own account pursuant to the exchange offer may be sold
from time to time in one or more transactions in the
over-the-counter
market, in negotiated transactions, through the writing of
options on the Exchange Notes or a combination of such methods
of resale, at market prices prevailing at the time of resale, at
prices related to such prevailing market prices or negotiated
prices. Any such resale may be made directly to purchasers or to
or through brokers or dealers who may receive compensation in
the form of commissions or concessions from any such
broker-dealer or the purchasers of any such Exchange Notes. Any
broker-dealer that resells Exchange Notes that were received by
it for its own account pursuant to the exchange offer and any
broker or dealer that participates in a distribution of such
Exchange Notes may be deemed to be an underwriter
within the meaning of the Securities Act and any profit on any
such resale of Exchange Notes and any commission or concessions
received by any such persons may be deemed to be underwriting
compensation under the Securities Act. The letter of transmittal
states that, by acknowledging that it will deliver and by
delivering a prospectus, a broker-dealer will not be deemed to
admit that it is an underwriter within the meaning
of the Securities Act.
For a period of 180 days after the expiration of the
exchange offer, we will promptly send additional copies of this
prospectus and any amendment or supplement to this prospectus to
any broker-dealer that requests such documents in the letter of
transmittal. We have agreed to pay all expenses incident to the
47
exchange offer (including the expenses of one counsel for the
holders of the Original Notes) other than commissions or
concessions of any brokers or dealers and will indemnify the
holders of the Original Notes (including any broker-dealers)
against certain liabilities, including liabilities under the
Securities Act.
LEGAL
MATTERS
Baker Botts L.L.P., Houston, Texas will pass on the validity of
the Exchange Notes offered in this prospectus. Scott E.
Rozzell, Esq., our Executive Vice President, General
Counsel and Corporate Secretary, or Christopher J. Arntzen, our
Vice President, Deputy General Counsel and Assistant Secretary,
may pass upon other legal matters for us. Each of
Messrs. Rozzell and Arntzen is the beneficial owner of less
than 1% of CenterPoint Energys common stock.
EXPERTS
The consolidated financial statements and the related
consolidated financial statement schedule, incorporated in this
document by reference from our Annual Report on
Form 10-K
for the year ended December 31, 2010, have been audited by
Deloitte & Touche LLP, an independent registered
public accounting firm, as stated in their reports, which are
incorporated herein by reference, and have been so incorporated
in reliance upon the reports of such firm given upon their
authority as experts in accounting and auditing.
48
PART II
INFORMATION
NOT REQUIRED IN PROSPECTUS
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Item 20.
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Indemnification
of Directors and Officers
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Section 145 of the General Corporation Law of Delaware (the
DGCL) gives corporations the power to indemnify
officers and directors under certain circumstances.
Article V of the By-Laws of CERC Corp. provides for
indemnification of officers and directors to the extent
permitted by the DGCL. CERC Corp. also has policies insuring its
officers and directors against certain liabilities for action
taken in such capacities, including liabilities under the
Securities Act of 1933, as amended.
Article Ninth of CERC Corp.s Certificate of
Incorporation adopted the provision of Delaware law limiting or
eliminating the potential monetary liability of directors to
CERC Corp. or its stockholders for breaches of a directors
fiduciary duty of care. However, the provision does not limit or
eliminate the liability of a director for disloyalty to CERC
Corp. or its stockholders, failing to act in good faith,
engaging in intentional misconduct or a knowing violation of the
law, obtaining an improper personal benefit or paying a dividend
or approving a stock repurchase that was illegal under
section 174 of the DGCL.
Article Ninth of CERC Corp.s Certificate of
Incorporation also provides that if the DGCL is subsequently
amended to authorize further limitation or elimination of the
liability of directors, such subsequent limitation or
elimination of directors liability will be automatically
implemented without further stockholder action. Furthermore,
repeal or modification of the terms of Article Ninth will
not adversely affect any right or protection of a director
existing at the time of such repeal or modification.
See Item 22. Undertakings for a description of
the Commissions position regarding such indemnification
provisions.
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Item 21.
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Exhibits
and Financial Statement Schedules
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The following is a list of all exhibits filed as a part of this
Registration Statement on
Form S-4,
including those incorporated herein by reference as indicated.
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Report or
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Exhibit
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Registration
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Registration
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Exhibit
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Number
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Document Description
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Statement
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Number
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Reference
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4
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.1*
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Certificate of Incorporation of Reliant Energy Resources Corp.
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Form 10-K for the
year ended
December 31, 1997
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1-3187
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3(a)(1)
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4
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.2*
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Certificate of Merger merging former NorAm Energy Corp. with and
into HI Merger, Inc. dated August 6, 1997
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Form 10-K for the
year ended
December 31, 1997
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1-3187
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3(a)(2)
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4
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.3*
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Certificate of Amendment changing the name to Reliant Energy
Resources Corp.
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Form 10-K for the
year ended
December 31, 1998
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1-3187
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3(a)(3)
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4
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.4*
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Certificate of Amendment changing the name to CenterPoint Energy
Resources Corp.
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Form 10-Q for the
quarter ended
June 30, 2003
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1-13265
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3(a)(4)
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4
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.5*
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Bylaws of Reliant Energy Resources Corp.
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Form 10-K for the
year ended
December 31, 1997
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1-3187
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3(b)
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4
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.6*
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Indenture, dated as of February 1, 1998, between Reliant Energy
Resources Corp. and Chase Bank of Texas, National Association,
as Trustee
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Form 8-K dated
February 5, 1998
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1-13265
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4.1
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4
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.7*
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Supplemental Indenture No. 14 to Exhibit 4.6 dated as of January
11, 2011, providing for the issuance of CERC Corp.s
4.50% Senior Notes due 2021 and 5.85% Senior Notes due
2041 (including the forms of the Notes)
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CenterPoint Energys
Form 10-K for the
year ended
December 31, 2010
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1-13265
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4(f)(15)
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II-1
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Report or
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Exhibit
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Registration
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Registration
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Exhibit
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Number
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Document Description
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Statement
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Number
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Reference
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4
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.8*
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Supplemental Indenture No. 15 to Exhibit 4.6 dated as of January
20, 2011, providing for the issuance of CERC Corp.s
4.50% Senior Notes due 2021
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CenterPoint Energys
Form 10-K
for the
year ended
December 31, 2010
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1-13265
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4(f)(16)
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4
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.9
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Registration Rights Agreement, dated as of January 11, 2011,
among CERC Corp., the Initial Purchasers (as defined therein)
and the Dealer Managers (as defined therein)
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5
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.1
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Opinion of Baker Botts L.L.P.
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12
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.1*
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Computation of ratios of earnings to fixed charges for the
twelve-month periods ended December 31, 2006, 2007, 2008,
2009 and 2010
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Form 10-K for the
year ended
December 31, 2010
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1-13265
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12
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12
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.2*
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Computation of ratios of earnings to fixed charges for the six
months ended June 30, 2011
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Form 10-Q for the
quarter ended
June 30, 2011
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1-13265
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12
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23
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.1
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Consent of Deloitte & Touche LLP
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23
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.2
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Consent of Baker Botts L.L.P. (included in Exhibit 5.1)
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24
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.1
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Powers of Attorney
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25
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.1
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Statement of Eligibility and Qualification under the Trust
Indenture Act of 1939 of the Trustee under the Indenture on Form
T-1
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99
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.1
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Form of Letter of Transmittal
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99
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.2
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Form of Notice of Guaranteed Delivery
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99
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.3
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Form of Letter to Depository Trust Company Participants
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* |
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Incorporated herein by reference as indicated. |
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Previously filed. |
The undersigned registrant hereby undertakes:
(1) to file, during any period in which offers or sales are
being made, a post-effective amendment to this registration
statement:
(i) to include any prospectus required by
section 10(a)(3) of the Securities Act of 1933;
(ii) to reflect in the prospectus any facts or
events arising after the effective date of the registration
statement (or the most recent post-effective amendment thereof)
which, individually or in the aggregate, represent a fundamental
change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar
value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to
Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than a 20% change in the maximum
aggregate offering price set forth in the Calculation of
Registration Fee table in the effective registration
statement; and
(iii) to include any material information with
respect to the plan of distribution not previously disclosed in
the registration statement or any material change to such
information in the registration statement;
provided, however, that paragraphs (1)(i), (1)(ii) and
(1)(iii) do not apply if the information required to be included
in a post-effective amendment by those paragraphs is contained
in periodic reports filed with or furnished to the Commission by
the registrant pursuant to section 13 or section 15(d)
of the Securities
II-2
Exchange Act of 1934 that are incorporated by reference in the
registration statement, or contained in a form of prospectus
filed pursuant to Rule 424(b) that is part of the registration
statement.
(2) that, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) to remove from registration by means of a
post-effective amendment any of the securities being registered
which remain unsold at the termination of the offering.
(4) that, for purposes of determining liability under the
Securities Act of 1933 to any purchaser, if the registrant is
subject to Rule 430C, each prospectus filed pursuant to
Rule 424(b) as part of a registration statement relating to
an offering, other than registration statements relying on
Rule 430B or other than prospectuses filed in reliance on
Rule 430A, shall be deemed to be part of and included in
the registration statement as of the date it is first used after
effectiveness. Provided, however, that no statement made in a
registration statement or prospectus that is part of the
registration statement or made in a document incorporated or
deemed incorporated by reference into the registration statement
or prospectus that is part of the registration statement will,
as to a purchaser with a time of contract of sale prior to such
first use, supersede or modify any statement that was made in
the registration statement or prospectus that was part of the
registration statement or made in any such document immediately
prior to such date of first use.
(5) that, for the purpose of determining liability of the
registrant under the Securities Act of 1933 to any purchaser in
the initial distribution of the securities, the undersigned
registrant undertakes that in a primary offering of securities
of the undersigned registrant pursuant to this registration
statement, regardless of the underwriting method used to sell
the securities to the purchaser, if the securities are offered
or sold to such purchaser by means of any of the following
communications, the undersigned registrant will be a seller to
the purchaser and will be considered to offer or sell such
securities to such purchaser:
(i) any preliminary prospectus or prospectus of the
undersigned registrant relating to the offering required to be
filed pursuant to Rule 424;
(ii) any free writing prospectus relating to the
offering prepared by or on behalf of the undersigned registrant
or used or referred to by the undersigned registrant;
(iii) the portion of any other free writing
prospectus relating to the offering containing material
information about the undersigned registrant or its securities
provided by or on behalf of the undersigned registrant; and
(iv) any other communication that is an offer in the
offering made by the undersigned registrant to the purchaser.
The undersigned registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act of 1933,
each filing of that registrants annual report pursuant to
Section 13(a) or Section 15(d) of the Securities
Exchange Act of 1934 that is incorporated by reference in the
registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors,
officers and controlling persons of the registrant pursuant to
the provisions set forth in Item 20, or otherwise, the
registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is
against public policy as expressed in the Act and is, therefore,
unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer
or controlling person of the registrant in the successful
defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the
securities being registered, the registrant will, unless in the
opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate
jurisdiction the question whether such
II-3
indemnification by it is against public policy as expressed in
the Act and will be governed by the final adjudication of such
issue.
The undersigned registrant hereby undertakes to respond to
requests for information that is incorporated by reference into
the prospectus pursuant to Items 4, 10(b), 11, or 13 of
Form S-4,
within one business day of receipt of such request, and to send
the incorporated documents by first class mail or other equally
prompt means. This includes information contained in documents
filed subsequent to the effective date of the registration
statement through the date of responding to the request.
The undersigned registrant hereby undertakes to supply by means
of a post-effective amendment all information concerning a
transaction that was not the subject of and included in the
registration statement when it became effective.
II-4
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on
Form S-4
and has duly caused this Amendment to be signed on its behalf by
the undersigned, thereunto duly authorized, in the City of
Houston, the State of Texas, on August 10, 2011.
CENTERPOINT ENERGY RESOURCES CORP.
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By:
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/s/ David
M. McClanahan
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David M. McClanahan
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Amendment has been signed by the following persons on
August 10, 2011 in the capacities indicated.
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Signature
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Title
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/s/ David
M. McClanahan
David
M. McClanahan
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President, Chief Executive Officer and Director (Principal
Executive Officer and Sole Director)
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/s/ Gary
L. Whitlock
Gary
L. Whitlock
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Executive Vice President and Chief Financial Officer (Principal
Financial Officer)
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/s/ Walter
L. Fitzgerald
Walter
L. Fitzgerald
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Senior Vice President and Chief Accounting Officer (Principal
Accounting Officer)
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II-5
EXHIBIT INDEX
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Report or
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Exhibit
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Registration
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Registration
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Exhibit
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Number
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Document Description
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Statement
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Number
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Reference
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4
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.1*
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Certificate of Incorporation of Reliant Energy Resources Corp.
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Form 10-K for the
year ended
December 31, 1997
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1-3187
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3(a)(1)
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4
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.2*
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Certificate of Merger merging former NorAm Energy Corp. with and
into HI Merger, Inc. dated August 6, 1997
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Form 10-K for the
year ended
December 31, 1997
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1-3187
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3(a)(2)
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4
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.3*
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Certificate of Amendment changing the name to Reliant Energy
Resources Corp.
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Form 10-K for the
year ended
December 31, 1998
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1-3187
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3(a)(3)
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4
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.4*
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Certificate of Amendment changing the name to CenterPoint Energy
Resources Corp.
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Form 10-Q for the
quarter ended
June 30, 2003
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1-13265
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3(a)(4)
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4
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.5*
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Bylaws of Reliant Energy Resources Corp.
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Form 10-K for the
year ended
December 31, 1997
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1-3187
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3(b)
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4
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.6*
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Indenture, dated as of February 1, 1998, between Reliant Energy
Resources Corp. and Chase Bank of Texas, National Association,
as Trustee
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Form 8-K dated
February 5, 1998
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1-13265
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4.1
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4
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.7*
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Supplemental Indenture No. 14 to Exhibit 4.6 dated as of January
11, 2011, providing for the issuance of CERC Corp.s
4.50% Senior Notes due 2021 and 5.85% Senior Notes due
2041 (including the forms of the Notes)
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CenterPoint Energys
Form 10-K for the
year ended
December 31, 2010
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1-13265
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4(f)(15)
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4
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.8*
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Supplemental Indenture No. 15 to Exhibit 4.6 dated as of January
20, 2011, providing for the issuance of CERC Corp.s
4.50% Senior Notes due 2021
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CenterPoint Energys
Form 10-K
for the
year ended
December 31, 2010
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1-13265
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4(f)(16)
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4
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.9
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Registration Rights Agreement, dated as of January 11, 2011,
among CERC Corp., the Initial Purchasers (as defined therein)
and the Dealer Managers (as defined therein)
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5
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.1
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Opinion of Baker Botts L.L.P.
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12
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.1*
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Computation of ratios of earnings to fixed charges for the
twelve-month periods ended December 31, 2006, 2007, 2008,
2009 and 2010
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Form 10-K for the
year ended
December 31, 2010
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1-13265
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12
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12
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.2*
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Computation of ratios of earnings to fixed charges for the six
months ended June 30, 2011
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Form 10-Q for the
quarter ended
June 30, 2011
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1-13265
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12
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23
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.1
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Consent of Deloitte & Touche LLP
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23
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.2
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Consent of Baker Botts L.L.P. (included in Exhibit 5.1)
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24
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.1
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Powers of Attorney
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25
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.1
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Statement of Eligibility and Qualification under the Trust
Indenture Act of 1939 of the Trustee under the Indenture on Form
T-1
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99
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.1
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Form of Letter of Transmittal
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99
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.2
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Form of Notice of Guaranteed Delivery
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99
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.3
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Form of Letter to Depository Trust Company Participants
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* |
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Incorporated herein by reference as indicated. |
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Previously filed. |
II-6
exv23w1
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent
to the incorporation by reference in this Amendment No. 2 to the
Registration Statement No. 333-174322 on Form S-4 of our
reports dated March 11, 2011, relating to the consolidated financial statements and the
consolidated financial statement schedule of CenterPoint Energy Resources Corp. and subsidiaries,
appearing in the Annual Report on Form 10-K of CenterPoint Energy Resources Corp. for the year
ended December 31, 2010, and to the reference to us under the heading Experts in the Prospectus,
which is part of this Registration Statement.
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/s/ DELOITTE & TOUCHE LLP
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Houston, Texas
August 10, 2011