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EXHIBIT 4.1
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SECOND SUPPLEMENTAL INDENTURE
Dated as of April 5, 2001
to
INDENTURE
Dated as of March 13, 2001
between
NRG ENERGY, INC.
and
THE BANK OF NEW YORK,
as Trustee
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SECOND SUPPLEMENTAL INDENTURE, dated as of April 5, 2001 (this "Second
Supplemental Indenture"), to the Indenture, dated as of March 13, 2001 (the
"Base Indenture"), between NRG ENERGY, INC., a Delaware corporation (the
"Company"), and THE BANK OF NEW YORK, a New York banking corporation (the
"Trustee"), as supplemented by the First Supplemental Indenture, dated as of
March 13, 2001 (the "First Supplemental Indenture"), between the Company and the
Trustee.
WHEREAS, the Company and the Trustee have heretofore executed and
delivered the Base Indenture to provide for the issuance from time to time of
Securities (as defined in the Base Indenture) of the Company, to be issued in
one or more Series (as defined in the Base Indenture);
WHEREAS, Sections 2.1, 2.2 and 7.1 of the Base Indenture provide, among
other things, that the Company and the Trustee may enter into indentures
supplemental to the Base Indenture for, among other things, the purpose of
establishing the designation, form, terms and provisions of Securities of any
Series as permitted by Sections 2.1, 2.2 and 7.1 of the Base Indenture;
WHEREAS, the Company (i) desires the issuance of two new separate
Series of Securities to be designated as hereinafter provided and (ii) has
requested the Trustee to enter into this Second Supplemental Indenture for the
purpose of establishing the designation, form, terms and provisions of the
Securities of such Series;
WHEREAS, all action on the part of the Company necessary to authorize
the issuance of said Securities under the Base Indenture and this Second
Supplemental Indenture has been duly taken.
NOW, THEREFORE, THIS SECOND SUPPLEMENTAL INDENTURE WITNESSETH:
That, in order to establish the designation, form, terms and provisions
of, and to authorize the authentication and delivery of, said Securities, and in
consideration of the acceptance of said Securities by the Holders thereof and of
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto hereby agree as follows:
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ARTICLE I
DEFINITIONS
(a) Capitalized terms used herein and not otherwise defined herein
shall have the respective meanings ascribed thereto in the Base Indenture.
(b) The rules of interpretation set forth in the Base Indenture shall
be applied hereto as if set forth in full herein.
(c) For all purposes of this Second Supplemental Indenture, except as
otherwise expressly provided or unless the context otherwise requires, the
following terms shall have the following respective meanings (such meanings
shall apply equally to both the singular and plural forms of the respective
terms): "Change of Control" means the occurrence of one or more of the following
events: (i) Xcel or its successors ceases to own a majority of the outstanding
Voting Stock of the Issuer, (ii) at any time following the occurrence of the
event described in the preceding clause (i), a Person or group (as that term is
used in Section 13(d)(3) of the Exchange Act) of Persons (other than Xcel) shall
have become the beneficial owner directly or indirectly, or shall have acquired
the absolute power to direct the vote, of more than 35% of the outstanding
Voting Stock of the Issuer or (iii) during any twelve-month period, individuals
who at the beginning of such period constitute the Board of Directors (together
with any new directors whose election or nomination was approved by a majority
of the directors then in office who were either directors at the beginning of
such period or who were previously so approved) shall cease for any reason to
constitute a majority of the Board of Directors. Notwithstanding the foregoing,
a Change of Control shall be deemed not to have occurred with respect to a
Series of Securities if one or more of the above events occurs or circumstances
exist and, after giving effect thereto, the Securities of such Series are rated
Investment Grade.
"Comparable Treasury Issue" means the United States Treasury security
selected by Banc of America Securities LLC, Salomon Smith Barney Inc., or any of
their respective affiliates as having a maturity comparable to the remaining
term of the Notes that would be utilized, at the time of selection and in
accordance with customary financial practice, in pricing new issues of corporate
debt securities of comparable maturity to the remaining term of the Notes.
"Comparable Treasury Price" means the average of three Reference
Treasury Dealer Quotations obtained by the Trustee in respect of the Notes to be
redeemed on the applicable redemption date.
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"Make Whole Amount" means, with respect to the Notes at any time, the
sum of the present values of the Remaining Scheduled Payments discounted, on a
semiannual basis (assuming a 360 day year consisting of twelve 30-day months),
at a rate equal to the Treasury Rate plus 35 basis points in the case of the
Senior Notes due 2011 and 40 basis points in the case of the Senior Notes due
2031. The Make Whole Amount shall be computed as of the third Business Day prior
to the applicable redemption date, and certified, by an Investment Banker.
"Notes" means the Senior Notes due 2011 and the Senior Notes due 2031.
"Reference Treasury Dealer Quotation" means, with respect to each
Reference Treasury Dealer and any redemption date, the average, as determined by
the Trustee, of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) quoted in
writing to the Trustee by a Reference Treasury Dealer at 3:30 p.m., New York
City time, on the third Business Day preceding the redemption date.
"Reference Treasury Dealers" means Banc of America Securities LLC and
Salomon Smith Barney Inc. (so long as they continue to be primary U.S.
Government securities dealers) and any two other primary U.S. Government
securities dealers chosen by the Company. If Banc of America Securities LLC or
Salomon Smith Barney Inc. ceases to be a primary U.S. Government securities
dealer, the Company will appoint in its place another nationally recognized
investment banking firm that is a primary U.S. Government securities dealer.
"Remaining Scheduled Payments" means, with respect to each Note that
the Company is redeeming, the remaining scheduled payments of the principal and
interest that would be due after the related redemption date if such Note were
not redeemed. However, if the redemption date is not a scheduled interest
payment date with respect to that Note, the amount of the next succeeding
scheduled interest payment on that Note will be reduced by the amount of
interest accrued on such Note to the redemption date.
"Senior Notes due 2011" shall have the meaning ascribed thereto in
Section 2.1(a) hereof.
"Senior Notes due 2031" shall have the meaning ascribed thereto in
Section 2.1(a) hereof.
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"Treasury Rate" means, with respect to any redemption date, an annual
rate equal to the semiannual equivalent yield to maturity of the Comparable
Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as
a percentage of its principal amount) equal to the Comparable Treasury Price for
the redemption date. The semiannual equivalent yield to maturity will be
computed as of the third Business Day immediately preceding the redemption date.
ARTICLE II
GENERAL TERMS AND CONDITIONS OF THE NOTES
2.1 SECTION Designation and Principal Amount.
(a) There is hereby authorized two new separate Series of Securities
designated the 7.75% Senior Notes due 2011 (the "Senior Notes due 2011") and the
8.625% Senior Notes due 2031 (the "Senior Notes due 2031").
(b) The aggregate principal amount of the two new separate Series of
Securities authorized by this Second Supplemental Indenture shall be limited
(except as otherwise provided in Article II of the Base Indenture) to
$690,000,000, with the aggregate principal amount of the respective Securities
limited to $350,000,000 for the Senior Notes due 2011 and $340,000,000 for the
Senior Notes due 2031.
(c) The Notes may be issued from time to time upon written order of the
Company to the Trustee for the authentication and delivery of the Notes pursuant
to Section 2.2 of the Base Indenture
(d) The Notes shall have and be subject to such other terms as provided
in the Base Indenture and shall be evidenced by one or more Securities of that
Series in the form of Exhibit A to the Base Indenture.
(e) The Notes shall be issuable in minimum denominations of $100,000
and integral multiples of $1,000 in excess thereof.
2.2 SECTION Maturity.
(a) The date upon which the Senior Notes due 2011 shall become due and
payable at final maturity, together with any accrued and unpaid interest, is
April 1, 2011 (the "2011 Notes Maturity Date").
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(b) The date upon which the Senior Notes due 2031 shall become due and
payable at final maturity, together with any accrued and unpaid interest, is
April 1, 2031 (the "2031 Notes Maturity Date" and, together with the 2011 Notes
Maturity Date, the "Maturity Dates").
2.3 SECTION Interest.
(a) The Notes will bear interest at the Interest Rates (as defined
below) from April 5, 2001, until the principal thereof becomes due and payable.
Interest on the Notes will be payable semi-annually in arrears on April 1 and
October 1 of each year, commencing October 1, 2001, to the Person in whose name
any such Note or any predecessor Note is registered, at the close of business on
the regular record date for such interest installment, which, in the case of a
Global Security, shall be the close of business on the March 15 and September 15
next preceding such Interest Payment Date. Notwithstanding the foregoing
sentence, if the Notes are no longer in book-entry only form, the regular record
dates for the Notes, shall be the March 15 and September 15 prior to the
applicable Interest Payment Date.
(b) The interest rate in respect of the Senior Notes due 2011 will be
7.75% per annum (the "2011 Notes Interest Rate") and the interest rate in
respect of the Senior Notes due 2031 will be 8.625% per annum (the "2031 Notes
Interest Rate" and, together with the 2011 Notes Interest Rate, the "Interest
Rates").
(c) In the event that any date on which interest is payable on the
Notes is not a Business Day, then payment of interest payable on such date will
be made on the next succeeding day which is a Business Day, with the same force
and effect as if made on such date, and no interest shall accrue on the amount
so payable from the period from and after such Interest Payment Date or Maturity
Date, as the case may be (each date on which interest is actually payable, an
"Interest Payment Date").
2.4 SECTION Global Securities.
Each Series of Notes shall be issued in the form of one or more Global
Securities in an aggregate principal amount equal to the aggregate principal
amount of all outstanding Notes of that Series, to be registered in the name of
the U.S. Depositary, or its nominee, and delivered by the Trustee to or upon the
order of the U.S. Depositary for crediting to the accounts of its participants
pursuant to the written instructions of the Company. The Company upon any such
presentation shall execute one or more Global Securities in such aggregate
principal amount and deliver the same to the Trustee for authentication and
delivery in accordance with the Base Indenture
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and this Second Supplemental Indenture. Payments on Notes issued as one or more
Global Securities will be made to the U.S. Depositary.
ARTICLE III
REDEMPTION OF THE NOTES
3.1 SECTION Optional Redemption of the Notes.
The Company at its option may, at any time, redeem the Notes, in whole
or in part, upon payment of a redemption price equal to (A) the greater of (i)
100% of the principal amount of the Notes to be redeemed and (ii) the Make Whole
Amount, plus (B) accrued and unpaid interest, if any, on the principal amount of
Notes being redeemed to the redemption date.
3.2 SECTION No Sinking Fund.
The Notes are not entitled to the benefit of any sinking fund.
ARTICLE IV
ORIGINAL ISSUE OF NOTES
4.1 SECTION Original Issue of Senior Notes due 2011.
The Senior Notes due 2011 in the aggregate principal amount of
$350,000,000 may, upon execution of this Second Supplemental Indenture, be
executed by the Company and delivered to the Trustee for authentication, and the
Trustee shall thereupon authenticate and deliver said Notes to or upon the
written order of the Company pursuant to Section 2.2 of the Base Indenture
without any further action of the Company.
4.2 SECTION Original Issue of Senior Notes due 2031.
The Senior Notes due 2031 in the aggregate principal amount of
$340,000,000 may, upon execution of this Second Supplemental Indenture, be
executed by the Company and delivered to the Trustee for authentication, and the
Trustee shall thereupon authenticate and deliver said Notes to or upon the
written
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order of the Company pursuant to Section 2.2 of the Base Indenture without any
further action of the Company.
ARTICLE V
MISCELLANEOUS
5.1 SECTION Ratification of Base Indenture and First Supplemental
Indenture.
The Base Indenture and the First Supplemental Indenture, as
supplemented by this Second Supplemental Indenture, are in all respects ratified
and confirmed, and this Second Supplemental Indenture shall be deemed part of
the Base Indenture in the manner and to the extent herein and therein provided.
5.2 SECTION Trustee Not Responsible for Recitals.
The recitals contained herein and in the Notes, except with respect to
the Trustee's certificates of authentication, shall be taken as the statements
of the Company, and the Trustee assumes no responsibility for the correctness of
the same. The Trustee makes no representations as to the validity or sufficiency
of this Second Supplemental Indenture or of the Notes.
5.3 SECTION Governing Law.
THIS SECOND SUPPLEMENTAL INDENTURE AND EACH NOTE OF EACH SERIES CREATED
HEREUNDER SHALL, PURSUANT TO SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS
LAW, BE GOVERNED BY THE LAW OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO THE
CHOICE OF LAW PROVISIONS THEREOF (OTHER THAN SUCH SECTION 5-1401).
5.4 SECTION Separability .
In case any one or more of the provisions contained in this Second
Supplemental Indenture or in the Notes shall for any reason be held to be
invalid, illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provisions of this Second
Supplemental Indenture or of the Notes, but this Second Supplemental Indenture
and the Notes shall be construed as if such invalid or illegal or unenforceable
provision had never been contained herein or therein.
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5.5 SECTION Counterparts.
This Second Supplemental Indenture may be executed in any number of
counterparts, each of which when so executed shall be deemed to be an original,
but all such counterparts shall together constitute but one and the same
instrument.
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IN WITNESS WHEREOF, the parties have caused this Second Supplemental
Indenture to be duly executed by their respective officers thereunto duly
authorized as of the date first above written.
NRG ENERGY, INC.
By:
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Name:
Title:
THE BANK OF NEW YORK, as Trustee
By:
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Name:
Title: