EXHIBIT 4(g)(8)
CENTERPOINT ENERGY, INC.
To
THE BANK OF NEW YORK TRUST COMPANY, NATIONAL ASSOCIATION
(successor to JPMorgan Chase Bank, National Association
(formerly JPMorgan Chase Bank))
Trustee
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SUPPLEMENTAL INDENTURE NO. 7
Dated as of February 6, 2007
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$250,000,000
5.95% Senior Notes due 2017
CENTERPOINT ENERGY, INC.
SUPPLEMENTAL INDENTURE NO. 7
5.95% Senior Notes due 2017
SUPPLEMENTAL INDENTURE No. 7, dated as of February 6, 2007, between
CENTERPOINT ENERGY, INC., a Texas corporation (the "Company"), and THE BANK OF
NEW YORK TRUST COMPANY, NATIONAL ASSOCIATION (successor to JPMorgan Chase Bank,
National Association (formerly JPMorgan Chase Bank)), as Trustee (the
"Trustee").
RECITALS
The Company has heretofore executed and delivered to the Trustee an
Indenture, dated as of May 19, 2003 (the "Original Indenture" and, as hereby
supplemented and amended, the "Indenture"), providing for the issuance from time
to time of one or more series of the Company's Securities.
Pursuant to the terms of the Indenture, the Company desires to provide for
the establishment of a new series of Securities to be designated as the "5.95%
Senior Notes due 2017" (the "Notes"), the form and substance of such Notes and
the terms, provisions and conditions thereof to be set forth as provided in the
Original Indenture and this Supplemental Indenture No. 7.
Section 301 of the Original Indenture provides that various matters with
respect to any series of Securities issued under the Indenture may be
established in an indenture supplemental to the Indenture.
Subparagraph (7) of Section 901 of the Original Indenture provides that the
Company and the Trustee may enter into an indenture supplemental to the
Indenture to establish the form or terms of Securities of any series as
permitted by Sections 201 and 301 of the Original Indenture.
For and in consideration of the premises and the issuance of the series of
Securities provided for herein, it is mutually covenanted and agreed, for the
equal and proportionate benefit of the Holders of the Securities of such series,
as follows:
ARTICLE I
Relation to Indenture; Additional Definitions
Section 101 Relation to Indenture. This Supplemental Indenture No. 7
constitutes an integral part of the Original Indenture.
Section 102 Additional Definitions. For all purposes of this Supplemental
Indenture No. 7:
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Capitalized terms used herein shall have the meaning specified herein
or in the Original Indenture, as the case may be;
"Affiliate" of, or a Person "affiliated" with, a specific Person means
a Person that directly, or indirectly through one or more intermediaries,
controls, or is controlled by, or is under common control with, the Person
specified. For purposes of this definition, "control" (including the terms
"controlled by" and "under common control with") means the possession,
direct or indirect, of the power to direct or cause the direction of the
management and policies of a Person, whether through the ownership of
voting shares, by contract, or otherwise.
"Business Day" means, with respect to any Note, any day other than a
Saturday, a Sunday or a day on which banking institutions in The City of
New York are authorized or required by law, regulation or executive order
to close. If any Interest Payment Date, Stated Maturity or Redemption Date
of a Note falls on a day that is not a Business Day, the required payment
will be made on the next succeeding Business Day with the same force and
effect as if made on the relevant date that the payment was due and no
interest will accrue on such payment for the period from and after the
Interest Payment Date, Stated Maturity or Redemption Date, as the case may
be, to the date of that payment on the next succeeding Business Day. The
definition of "Business Day" in this Supplemental Indenture No. 7 and the
provisions described in the preceding sentence shall supersede the
definition of Business Day in the Original Indenture and Section 113 of the
Original Indenture.
"Capital Lease" means a lease that, in accordance with accounting
principles generally accepted in the United States of America, would be
recorded as a capital lease on the balance sheet of the lessee;
"CenterPoint Houston" means CenterPoint Energy Houston Electric, LLC,
a Texas limited liability company, and any successor thereto; provided,
that at any given time, there shall not be more than one such successor;
"CERC" means CenterPoint Energy Resources Corp., a Delaware
corporation, and any successor thereto; provided, that at any given time,
there shall not be more than one such successor;
"Comparable Treasury Yield" has the meaning set forth in Section
402(a) hereof;
"Corporate Trust Office" means the principal office of the Trustee at
which at any particular time its corporate trust business shall be
administered, as follows: (a) for payment, registration and transfer of the
Securities: 2001 Bryan Street, 9th Floor, Dallas, Texas 75201, Attention:
Bondholder Communications; telephone (214) 672-5125 or (800) 275-2048;
telecopy: (214) 672-5873; and (b) for all other communications relating to
the Securities: 601 Travis Street, 18th Floor, Houston, Texas 77002,
Attention: Global Corporate Trust; telephone: (713) 483-6603; telecopy:
(713) 483-6590;
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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;
"H.15 Statistical Release" has the meaning set forth in Section 402(b)
hereof;
The term "Indebtedness" as applied to any Person, means bonds,
debentures, notes and other instruments or arrangements representing
obligations created or assumed by any such Person, in respect of: (i)
obligations for money borrowed (other than unamortized debt discount or
premium); (ii) obligations evidenced by a note or similar instrument given
in connection with the acquisition of any business, properties or assets of
any kind; (iii) obligations as lessee under a Capital Lease; and (iv) any
amendments, renewals, extensions, modifications and refundings of any such
indebtedness or obligations listed in clause (i), (ii) or (iii) above. All
indebtedness of such type, secured by a lien upon property owned by such
Person although such Person has not assumed or become liable for the
payment of such indebtedness, shall also for all purposes hereof be deemed
to be indebtedness of such Person. All indebtedness for borrowed money
incurred by any other Persons which is directly guaranteed as to payment of
principal by such Person shall for all purposes hereof be deemed to be
indebtedness of any such Person, but no other contingent obligation of such
Person in respect of indebtedness incurred by any other Persons shall for
any purpose be deemed to be indebtedness of such Person.
"Independent Investment Banker" has the meaning set forth in Section
401(c) hereof;
"Interest Payment Date" has the meaning set forth in Section 204(a)
hereof;
"Issue Date" has the meaning provided in Section 204(a) hereof;
"Long-Term Indebtedness" means, collectively, the Company's
outstanding: (a) 5.875% Senior Notes due 2008, (b) 6.850% Senior Notes due
2015, (c) 7.25% Senior Notes due 2010, (d) 3.75% Convertible Senior Notes
due 2023, and (e) any long-term indebtedness (but excluding for this
purpose any long-term indebtedness incurred pursuant to any revolving
credit facility, letter of credit facility or other similar bank credit
facility) of the Company issued subsequent to the issuance of the Notes and
prior to the Termination Date containing a covenant substantially similar
to the covenant set forth in Section 301 hereof, or an event of default
substantially similar to the event of default set forth in Section 501(c)
hereof, but not containing a provision substantially similar to the
provision set forth in Section 302 hereof;
"Make-Whole Premium" has the meaning set forth in Section 401(b)
hereof;
"Maturity Date" has the meaning set forth in Section 203 hereof;
"Notes" has the meaning set forth in the second paragraph of the
Recitals hereof;
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"Original Indenture" has the meaning set forth in the first paragraph
of the Recitals hereof;
"Redemption Price" has the meaning set forth in Section 401(a) hereof;
"Regular Record Date" has the meaning set forth in Section 204(a)
hereof;
"Remaining Term" has the meaning set forth in Section 402(a) hereof;
"Significant Subsidiary" means, CERC, CenterPoint Houston and any
other Subsidiary which, at the time of the creation of a pledge, mortgage,
security interest or other lien upon any Equity Interests of such
Subsidiary, has consolidated gross assets (having regard to the Company's
beneficial interest in the shares, or the like, of that Subsidiary) that
represents at least 25% of the Company's consolidated gross assets
appearing in the Company's most recent audited consolidated financial
statements;
"Subsidiary" of any entity means any corporation, partnership, joint
venture, limited liability company, trust or estate of which (or in which)
more than 50% of (i) the issued and outstanding capital stock or Equity
Interests having ordinary voting power to elect a majority of the Board of
Directors or comparable governing body of such corporation or other entity
(irrespective of whether at the time capital stock of any other class or
classes of such corporation or other entity shall or might have voting
power upon the occurrence of any contingency), (ii) the interest in the
capital or profits of such limited liability company, partnership, joint
venture or other entity, or (iii) the beneficial interest in such trust or
estate is at the time directly or indirectly owned or controlled by such
entity, by such entity and one or more of its other Subsidiaries, or by one
or more of such entity's other Subsidiaries;
"Termination Date" has the meaning set forth in Section 302.
All references herein to Articles and Sections, unless otherwise
specified, refer to the corresponding Articles and Sections of this
Supplemental Indenture No. 7; and
The terms "herein," "hereof," "hereunder" and other words of similar
import refer to this Supplemental Indenture No. 7.
ARTICLE II
The Series of Securities
Section 201 Title of the Securities. The Notes shall be designated as the
"5.95% Senior Notes due 2017".
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Section 202 Limitation on Aggregate Principal Amount. The Trustee shall
authenticate and deliver the Notes for original issue on the Issue Date in the
aggregate principal amount of $250,000,000 upon a Company Order for the
authentication and delivery thereof and satisfaction of Sections 301 and 303 of
the Original Indenture. Such order shall specify the amount of the Notes to be
authenticated, the date on which the original issue of Notes is to be
authenticated and the name or names of the initial Holder or Holders. The
aggregate principal amount of Notes that may initially be outstanding shall not
exceed $250,000,000; provided, however, that the authorized aggregate principal
amount of the Notes may be increased above such amount by a Board Resolution to
such effect.
Section 203 Stated Maturity. The stated maturity of the Notes shall be
February 1, 2017 (the "Maturity Date").
Section 204 Interest and Interest Rates.
(a) The Notes shall bear interest at a rate of 5.95% per year, from and
including February 6, 2007 (the "Issue Date") to, but excluding, the Maturity
Date. Such interest shall be payable semiannually in arrears on February 1 and
August 1 of each year (each an "Interest Payment Date"), beginning August 1,
2007 to the persons in whose names the Notes (or one or more Predecessor
Securities) are registered at the close of business on January 15 and July 15
(each a "Regular Record Date") (whether or not a Business Day), as the case may
be, immediately preceding such Interest Payment Date.
(b) Any such interest not so punctually paid or duly provided for shall
forthwith cease to be payable to the Holder on such Regular Record Date and
shall either (i) be paid to the Person in whose name such Note (or one or more
Predecessor Securities) is registered at the close of business on the Special
Record Date for the payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof shall be given to Holders of the Notes not less than 10
days prior to such Special Record Date, or (ii) be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities exchange
or automated quotation system on which the Notes may be listed or traded, and
upon such notice as may be required by such exchange or automated quotation
system, all as more fully provided in the Indenture.
(c) The amount of interest payable for any period shall be computed on the
basis of a 360-day year of twelve 30-day months. The amount of interest payable
for any partial period shall be computed on the basis of a 360-day year of
twelve 30-day months and the days elapsed in any partial month. In the event
that any date on which interest is payable on a Note is not a Business Day, then
a payment of the interest payable on such date will be made on the next
succeeding day which is a Business Day (and without any interest or other
payment in respect of any such delay) with the same force and effect as if made
on the date the payment was originally payable.
(d) Any principal and premium, if any, and any installment of interest,
which is overdue shall bear interest at the rate of 5.95% per annum (to the
extent permitted by law), from the dates such amounts are due until they are
paid or made available for payment, and such interest shall be payable on
demand.
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Section 205 Paying Agent; Place of Payment. The Trustee shall initially
serve as the Paying Agent for the Notes. The Company may appoint and change any
Paying Agent or approve a change in the office through which any Paying Agent
acts without notice, other than notice to the Trustee. The Company or any of its
Subsidiaries or any of their Affiliates may act as Paying Agent. The Place of
Payment where the Notes may be presented or surrendered for payment shall be the
Corporate Trust Office of the Trustee. At the option of the Company, payment of
interest may be made (i) by check mailed to the address of the Person entitled
thereto as such address shall appear in the Security Register or (ii) by wire
transfer in immediately available funds at such place and to such account as may
be designated in writing by the Person entitled thereto as specified in the
Security Register.
Section 206 Place of Registration or Exchange; Notices and Demands With
Respect to the Notes. The place where the Holders of the Notes may present the
Notes for registration of transfer or exchange and may make notices and demands
to or upon the Company in respect of the Notes shall be the Corporate Trust
Office of the Trustee.
Section 207 Percentage of Principal Amount. The Notes shall be initially
issued at 99.741% of their principal amount plus accrued interest, if any, from
February 6, 2007.
Section 208 Global Securities.
(a) The Notes shall be issuable in whole or in part in the form of one or
more Global Securities. Such Global Securities shall be deposited with, or on
behalf of, The Depository Trust Company, New York, New York, which shall act as
Depositary with respect to the Notes. Such Global Securities shall bear the
legends set forth in the form of Security attached as Exhibit A hereto
Section 209 Form of Securities. The Notes shall be substantially in the
form attached as Exhibit A hereto.
Section 210 Securities Registrar. The Trustee shall initially serve as the
Security Registrar for the Notes.
Section 211 Sinking Fund Obligations. The Company shall have no obligation
to redeem or purchase any Notes pursuant to any sinking fund or analogous
requirement or upon the happening of a specified event or at the option of a
Holder thereof.
Section 212 Defeasance and Discharge; Covenant Defeasance.
(a) Article Fourteen of the Original Indenture, including without
limitation, Sections 1402 and 1403 thereof, shall apply to the Notes.
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ARTICLE III
Additional Covenant
Section 301 Limitations on Liens. The Company shall not pledge, mortgage,
hypothecate, or grant a security interest in, or permit any such mortgage,
pledge, security interest or other lien upon any Equity Interests now or
hereafter owned by the Company in any Significant Subsidiary to secure any
Indebtedness, without making effective provisions whereby the outstanding Notes
shall be equally and ratably secured with or prior to any and all such
Indebtedness and any other Indebtedness similarly entitled to be equally and
ratably secured; provided, however, that this provision shall not apply to or
prevent the creation or existence of:
(a) any mortgage, pledge, security interest, lien or encumbrance upon the
Equity Interests of CenterPoint Energy Transition Bond Company, LLC,
CenterPoint Energy Transition Bond Company II, LLC or any other special
purpose Subsidiary created on or after the date of this Supplemental
Indenture by the Company in connection with the issuance of securitization
bonds for the economic value of generation-related regulatory assets and
stranded costs;
(b) any mortgage, pledge, security interest, lien or encumbrance upon any
Equity Interests in a Person which was not affiliated with the Company
prior to one year before the grant of such mortgage, pledge, security
interest, lien or encumbrance (or the Equity Interests of a holding company
formed to acquire or hold such Equity Interests) created at the time of the
Company's acquisition of the Equity Interests or within one year after such
time to secure all or a portion of the purchase price for such Equity
Interests; provided that the principal amount of any Indebtedness secured
by such mortgage, pledge, security interest, lien or encumbrance does not
exceed 100% of such purchase price and the fees, expenses and costs
incurred in connection with such acquisition and acquisition financing;
(c) any mortgage, pledge, security interest, lien or encumbrance existing
upon Equity Interests in a Person which was not affiliated with the Company
prior to one year before the grant of such mortgage, pledge, security
interest, lien or encumbrance at the time of the Company's acquisition of
such Equity Interests (whether or not the obligations secured thereby are
assumed by the Company or such Subsidiary becomes a Significant
Subsidiary); provided that (i) such mortgage, pledge, security interest,
lien or encumbrance existed at the time such Person became a Significant
Subsidiary and was not created in anticipation of the acquisition, and (ii)
any such mortgage, pledge, security interest, lien or encumbrance does not
by its terms secure any Indebtedness other than Indebtedness existing or
committed immediately prior to the time such Person becomes a Significant
Subsidiary;
(d) liens for taxes, assessments or governmental charges or levies to the
extent not past due or which are being contested in good faith by
appropriate proceedings diligently conducted and for which the Company has
provided adequate reserves for the payment thereof in accordance with
generally accepted accounting principles;
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(e) pledges or deposits in the ordinary course of business to secure
obligations under workers' compensation laws or similar legislation;
(f) materialmen's, mechanics', carriers', workers' and repairmen's liens
imposed by law and other similar liens arising in the ordinary course of
business for sums not yet due or currently being contested in good faith by
appropriate proceedings diligently conducted;
(g) attachment, judgment or other similar liens, which have not been
effectively stayed, arising in connection with court proceedings; provided
that such liens, in the aggregate, shall not secure judgments which exceed
$50,000,000 aggregate principal amount at any one time outstanding;
provided further that the execution or enforcement of each such lien is
effectively stayed within 30 days after entry of the corresponding judgment
(or the corresponding judgment has been discharged within such 30 day
period) and the claims secured thereby are being contested in good faith by
appropriate proceedings timely commenced and diligently prosecuted;
(h) other liens not otherwise referred to in paragraphs (a) through (g)
above, provided that the Indebtedness secured by such liens in the
aggregate, shall not exceed 1% of the Company's consolidated gross assets
appearing in the Company's most recent audited consolidated financial
statements at any one time outstanding;
(i) any mortgage, pledge, security interest, lien or encumbrance on the
Equity Interests of any Subsidiary that was otherwise permitted under this
Section 301 if such Subsidiary subsequently becomes a Significant
Subsidiary; or
(j) any extension, renewal or refunding of Indebtedness secured by any
mortgage, pledge, security interest, lien or encumbrance described in
paragraphs (a) through (i) above; provided that the principal amount of any
such Indebtedness is not increased by an amount greater than the fees,
expenses and costs incurred in connection with such extension, renewal or
refunding.
Section 302 Expiration of Restrictions on Liens. Notwithstanding anything
to the contrary herein, on the date (the "Termination Date") (and continuing
thereafter) on which there remains outstanding, in the aggregate, no more than
$200,000,000 in principal amount of Long-Term Indebtedness, the covenant of the
Company set forth in Section 301 hereof shall terminate and the Company shall no
longer be subject to the covenant set forth in such Section.
ARTICLE IV
Optional Redemption of the Notes
Section 401 Redemption Price.
(a) The Company shall have the right to redeem the Notes, in whole or in
part, at its option at any time from time to time at a price equal to (i) 100%
of the principal amount thereof plus (ii) accrued and unpaid interest thereon,
if any, to (but excluding) the Redemption Date plus (iii) the Make-Whole
Premium, if any (collectively, the "Redemption Price").
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(b) The amount of the Make-Whole Premium with respect to any Note (or
portion thereof) to be redeemed will be equal to the excess, if any, of: (i) the
sum of the present values, calculated as of the Redemption Date, of: (A) each
interest payment that, but for such redemption, would have been payable on the
Note (or portion thereof) being redeemed on each Interest Payment Date occurring
after the Redemption Date (excluding any accrued and unpaid interest for the
period prior to the Redemption Date); and (B) the principal amount that, but for
such redemption, would have been payable on the Note (or portion thereof) being
redeemed at the Maturity Date; over (ii) the principal amount of the Note (or
portion thereof) being redeemed. The present values of interest and principal
payments referred to in clause (i) above will be determined in accordance with
generally accepted principles of financial analysis. Such present values will be
calculated by discounting the amount of each payment of interest or principal
from the date that each such payment would have been payable, but for the
redemption, to the Redemption Date at a discount rate equal to the Comparable
Treasury Yield (as defined below) plus 20 basis points.
(c) The Make-Whole Premium shall be calculated by an independent investment
banking institution of national standing appointed by the Company; provided,
that if the Company fails to make such appointment at least 45 days prior to the
Redemption Date, or if the institution so appointed is unwilling or unable to
make such calculation, such calculation shall be made by Banc of America
Securities LLC, Deutsche Bank Securities Inc. or J.P. Morgan Securities Inc.,
or, if such firms are unwilling or unable to make such calculation, by a
different independent investment banking institution of national standing
appointed by the Company (in any such case, an "Independent Investment Banker").
Section 402 Make-Whole Premium Calculation.
(a) For purposes of determining the Make-Whole Premium, "Comparable
Treasury Yield" means a rate of interest per annum equal to the weekly average
yield to maturity of United States Treasury securities that have a constant
maturity that corresponds to the remaining term to maturity of the Notes to be
redeemed, calculated to the nearest 1/12th of a year (the "Remaining Term"). The
Comparable Treasury Yield shall be determined as of the third Business Day
immediately preceding the applicable Redemption Date.
(b) The weekly average yields of United States Treasury securities shall be
determined by reference to the most recent statistical release published by the
Federal Reserve Bank of New York and designated "H.15 (519) Selected Interest
Rates" or any successor release (the "H.15 Statistical Release"). If the H.15
Statistical Release sets forth a weekly average yield for United States Treasury
securities having a constant maturity that is the same as the Remaining Term,
then the Comparable Treasury Yield shall be equal to such weekly average yield.
In all other cases, the Comparable Treasury Yield shall be calculated by
interpolation, on a straight-line basis, between the weekly average yields on
the United States Treasury securities that have a constant maturity closest to
and greater than the Remaining Term and the United States Treasury securities
that have a constant maturity closest to and less than the Remaining Term (in
each case as set forth in the H.15 Statistical Release). Any weekly average
yields so calculated by interpolation shall be rounded to the nearest 1/100th of
1%, with any figure of 1/200th of 1% or above being rounded upward. If weekly
average yields for United States Treasury securities are not available in the
H.15 Statistical Release or otherwise, then the
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Comparable Treasury Yield shall be calculated by interpolation of comparable
rates selected by the Independent Investment Banker.
Section 403 Partial Redemption. If the Company redeems the Notes in part
pursuant to this Article Four, the Trustee shall select the Notes to be redeemed
on a pro rata basis or by lot or by such other method that the Trustee in its
sole discretion deems fair and appropriate. The Company shall redeem Notes
pursuant to this Article IV in multiples of $1,000 in original principal amount.
A new Note in principal amount equal to the unredeemed portion of the original
Note shall be issued upon cancellation of the original Note.
Section 404 Notice of Optional Redemption. If the Company elects to
exercise its right to redeem all or some of the Notes pursuant to this Article
IV, the Company or the Trustee shall mail a notice of such redemption to each
Holder of a Note that is to be redeemed not less than 30 days and not more than
60 days before the Redemption Date. If any Note is to be redeemed in part only,
the notice of redemption shall state the portion of the principal amount to be
redeemed.
ARTICLE V
Remedies
Section 501 Additional Events of Default; Acceleration of Maturity.
(a) Solely with respect to the Notes issued hereby, Section 501(5) of the
Original Indenture is hereby deleted in its entirety, and the following is
substituted in lieu thereof as an Event of Default in addition to the other
events set forth in Section 501 of the Original Indenture:
"(5) the entry by a court having jurisdiction in the premises of
(A) a decree or order for relief in respect of the Company, CERC or
CenterPoint Houston in an involuntary case or proceeding under any
applicable federal or state bankruptcy, insolvency, reorganization or
other similar law or (B) a decree or order adjudging the Company, CERC
or CenterPoint Houston a bankrupt or insolvent, or approving as
properly filed a petition seeking reorganization, arrangement,
adjustment or composition of or in respect of the Company, CERC or
CenterPoint Houston under any applicable federal or state law, or
appointing a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company, CERC or
CenterPoint Houston or of any substantial part of its respective
property, or ordering the winding up or liquidation of its respective
affairs, and the continuance of any such decree or order for relief or
any such other decree or order unstayed and in effect for a period of
90 consecutive days; provided that any specified event in (A) or (B)
involving CERC or CenterPoint Houston shall not constitute an Event of
Default if, at the time such event occurs, CERC or CenterPoint
Houston, as the case may be, shall no longer be an Affiliate of the
Company; or"
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(b) Solely with respect to the Notes issued hereby, Section 501(6) of the
Original Indenture is hereby deleted in its entirety, and the following is
substituted in lieu thereof as an Event of Default in addition to the other
events set forth in Section 501 of the Original Indenture:
"(6) the commencement by the Company, CERC or CenterPoint Houston
of a voluntary case or proceeding under any applicable federal or
state bankruptcy, insolvency, reorganization or other similar law or
of any other case or proceeding to be adjudicated a bankrupt or
insolvent, or the consent by any of them to the entry of a decree or
order for relief in respect of the Company, CERC or CenterPoint
Houston in an involuntary case or proceeding under any applicable
federal or state bankruptcy, insolvency, reorganization or other
similar law or to the commencement of any bankruptcy or insolvency
case or proceeding against any of them, or the filing by any of them
of a petition or answer or consent seeking reorganization or relief
under any applicable federal or state law, or the consent by any of
them to the filing of such petition or to the appointment of or taking
possession by a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company, CERC or
CenterPoint Houston or of any substantial part of its respective
property, or the making by any of them of an assignment of a
substantial part of its respective property for the benefit of
creditors, or the admission by any of them in writing of the inability
of any of the Company, CERC or CenterPoint Houston to pay its
respective debts generally as they become due, or the taking of
corporate action by the Company, CERC or CenterPoint Houston in
furtherance of any such action; provided that any such specified event
involving CERC or CenterPoint Houston shall not constitute an Event of
Default if, at the time such event occurs, CERC or CenterPoint
Houston, as the case may be, shall no longer be an Affiliate of the
Company; or"
(c) Solely with respect to the Notes issued hereby, and pursuant to Section
501(7) of the Original Indenture, Section 501(7) of the Original Indenture is
hereby deleted in its entirety, and the following is substituted in lieu
thereof, as an "Event of Default" in addition to the other events set forth in
Section 501 of the Original Indenture:
"(7) The default by the Company, CERC or CenterPoint Houston in a
scheduled payment at maturity, upon redemption or otherwise, in the
aggregate principal amount of $50 million or more, after the
expiration of any applicable grace period, of any Indebtedness or the
acceleration of any Indebtedness of the Company, CERC or CenterPoint
Houston 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 payment default is not cured or such acceleration
is not
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rescinded within 30 days after notice to the Company in accordance
with the terms of the Indebtedness; provided that such payment default
or acceleration of CERC or CenterPoint Houston shall not to be an
Event of Default if, at the time such event occurs, CERC or
CenterPoint Houston, as the case may be, shall not be an Affiliate of
the Company."
Section 502 Expiration of Additional Event of Default. Notwithstanding
anything to the contrary herein, on the Termination Date (and continuing
thereafter), the event of default of the Company set forth in Section 501(c)
hereof shall terminate and the Company shall no longer be subject to such event
of default.
ARTICLE VI
Miscellaneous Provisions
Section 601 The Indenture, as supplemented and amended by this Supplemental
Indenture No. 7, is in all respects hereby adopted, ratified and confirmed.
Section 602 This Supplemental Indenture No. 7 may be executed in any number
of counterparts, each of which shall be an original, but such counterparts shall
together constitute but one and the same instrument.
Section 603 THIS SUPPLEMENTAL INDENTURE NO. 7 AND EACH NOTE SHALL BE DEEMED
TO BE A CONTRACT MADE UNDER THE LAWS OF THE STATE OF NEW YORK AND SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES THEREOF.
Section 604 If any provision in this Supplemental Indenture No. 7 limits,
qualifies or conflicts with another provision hereof which is required to be
included herein by any provisions of the Trust Indenture Act, such required
provision shall control.
Section 605 In case any provision in this Supplemental Indenture No. 7 or
the Notes shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
12
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture No. 7 to be duly executed, as of the day and year first written above.
CENTERPOINT ENERGY, INC.
By: /s/ Gary L. Whitlock
------------------------------------
Gary L. Whitlock
Executive Vice President and
Chief Financial Officer
Attest:
/s/ Richard B. Dauphin
- -------------------------------------
Richard B. Dauphin
Assistant Corporate Secretary
(SEAL)
THE BANK OF NEW YORK TRUST COMPANY,
NATIONAL ASSOCIATION,
As Trustee
By: /s/ Mauri J. Cowen
------------------------------------
Name: Mauri J. Cowen
Title: Vice President and Trust Officer
(SEAL)
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Exhibit A
[FORM OF FACE OF SECURITY]
[IF THIS SECURITY IS TO BE A GLOBAL SECURITY -] THIS SECURITY IS A GLOBAL
SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS
REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE OF A DEPOSITARY. THIS
SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER
THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED
IN THE INDENTURE AND MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY
TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE
DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY.
[For as long as this Global Security is deposited with or on behalf of The
Depository Trust Company it shall bear the following legend.] Unless this
certificate is presented by an authorized representative of The Depository Trust
Company, a New York corporation ("DTC"), to CenterPoint Energy, Inc. or its
agent for registration of transfer, exchange, or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
CENTERPOINT ENERGY, INC.
5.95% Senior Notes due 2017
No. __________ $_________
CUSIP No. ________
CENTERPOINT ENERGY, INC., a corporation duly organized and existing under
the laws of the State of Texas (herein called the "Company", which term includes
any successor Person under the Indenture hereinafter referred to), for value
received, hereby promises to pay to _______________, or registered assigns, the
principal sum of ____________________ Dollars on February 1, 2017, and to pay
interest thereon from February 6, 2007 or from the most recent Interest Payment
Date to which interest has been paid or duly provided for, semi-annually on
February 1 and August 1 in each year, commencing August 1, 2007, at the rate of
5.95% per annum, until the principal hereof is paid or made available for
payment, provided that any principal and premium, and any such installment of
interest, which is overdue shall bear interest at the rate of 5.95% per annum
(to the extent permitted by applicable law), from the dates such amounts are due
until they are paid or made available for payment, and such interest shall be
payable on demand. The amount of interest payable for any period shall be
computed on the
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basis of twelve 30-day months and a 360-day year. The amount of interest payable
for any partial period shall be computed on the basis of a 360-day year of
twelve 30-day months and the days elapsed in any partial month. In the event
that any date on which interest is payable on this Security is not a Business
Day, then a payment of the interest payable on such date will be made on the
next succeeding day which is a Business Day (and without any interest or other
payment in respect of any such delay) with the same force and effect as if made
on the date the payment was originally payable. A "Business Day" shall mean any
day other than a Saturday, a Sunday or a day on which banking institutions in
The City of New York are authorized or required by law, regulation or executive
order to close. The interest so payable, and punctually paid or duly provided
for, on any Interest Payment Date will, as provided in such Indenture, be paid
to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest, which shall be January 15 or July 15 (whether or not a
Business Day), as the case may be, next preceding such Interest Payment Date.
Any such interest not so punctually paid or duly provided for shall forthwith
cease to be payable to the Holder on such Regular Record Date and shall either
be paid to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest to be fixed by the Trustee, notice
whereof shall be given to Holders of Securities of this series not less than 10
days prior to such Special Record Date, or be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities exchange
or automated quotation system on which the Securities of this series may be
listed or traded, and upon such notice as may be required by such exchange or
automated quotation system, all as more fully provided in said Indenture.
Payment of the principal of (and premium, if any) and any such interest on
this Security will be made at the Corporate Trust Office of the Trustee, in such
coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts; provided, however, that at
the option of the Company payment of interest may be made (i) by check mailed to
the address of the Person entitled thereto as such address shall appear in the
Security Register or (ii) by wire transfer in immediately available funds at
such place and to such account as may be designated in writing by the Person
entitled thereto as specified in the Security Register.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
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IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated: February 6, 2007 CENTERPOINT ENERGY, INC.
By:
------------------------------------
Name: Gary L. Whitlock
(SEAL) Title: Executive Vice President and
Chief Financial Officer
Attest:
- -------------------------------------
Name: Richard B. Dauphin
Title: Assistant Corporate Secretary
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
THE BANK OF NEW YORK TRUST COMPANY,
NATIONAL ASSOCIATION
As Trustee
Date of Authentication:
-------------
By:
---------------------------------
Authorized Signatory
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[FORM OF REVERSE SIDE OF SECURITY]
CENTERPOINT ENERGY, INC.
5.95% NOTES DUE 2017
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated as of May 19, 2003 (herein called the
"Indenture", which term shall have the meaning assigned to it in such
instrument), between the Company and The Bank of New York Trust Company,
National Association (successor to JPMorgan Chase Bank, National Association
(formerly JPMorgan Chase Bank)), as Trustee (herein called the "Trustee", which
term includes any successor trustee under the Indenture), to which Indenture and
all indentures supplemental thereto reference is hereby made for a statement of
the respective rights, limitations of rights, duties and immunities thereunder
of the Company, the Trustee and the Holders of the Securities and of the terms
upon which the Securities are, and are to be, authenticated and delivered. This
Security is one of the series designated on the face hereof, initially limited
in aggregate principal amount to $250,000,000; provided, however, that the
authorized aggregate principal amount of the Securities may be increased above
such amount by a Board Resolution to such effect.
The Company shall have the right to redeem the Securities of this series,
in whole or in part, at its option at any time from time to time at a price
equal to (i) 100% of the principal amount thereof plus (ii) accrued and unpaid
interest thereon, if any, to (but excluding) the Redemption Date plus (iii) the
Make-Whole Premium, if any.
The amount of the Make-Whole Premium with respect to any Security of this
Series (or portion thereof) to be redeemed will be equal to the excess, if any,
of: (i) the sum of the present values, calculated as of the Redemption Date, of:
(A) each interest payment that, but for such redemption, would have been payable
on the Security of this series (or portion thereof) being redeemed on each
Interest Payment Date occurring after the Redemption Date (excluding any accrued
and unpaid interest for the period prior to the Redemption Date); and (B) the
principal amount that, but for such redemption, would have been payable on the
Security of this series (or portion thereof) being redeemed at February 1, 2017;
over (ii) the principal amount of the Security of this series (or portion
thereof) being redeemed. The present values of interest and principal payments
referred to in clause (i) above will be determined in accordance with generally
accepted principles of financial analysis. Such present values will be
calculated by discounting the amount of each payment of interest or principal
from the date that each such payment would have been payable, but for the
redemption, to the Redemption Date at a discount rate equal to the Comparable
Treasury Yield (as defined below) plus 20 basis points.
For purposes of determining the Make-Whole Premium, "Comparable Treasury
Yield" means a rate of interest per annum equal to the weekly average yield to
maturity of United States Treasury securities that have a constant maturity that
corresponds to the remaining term to maturity of the Securities of this series,
calculated to the nearest 1/12th of a year (the "Remaining Term"). The
Comparable Treasury Yield shall be determined as of the third Business Day
immediately preceding the Redemption Date.
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The weekly average yields of United States Treasury securities shall be
determined by reference to the most recent statistical release published by the
Federal Reserve Bank of New York and designated "H.15 (519) Selected Interest
Rates" or any successor release (the "H.15 Statistical Release"). If the H.15
Statistical Release sets forth a weekly average yield for United States Treasury
securities having a constant maturity that is the same as the Remaining Term,
then the Comparable Treasury Yield shall be equal to such weekly average yield.
In all other cases, the Comparable Treasury Yield shall be calculated by
interpolation, on a straight-line basis, between the weekly average yields on
the United States Treasury securities that have a constant maturity closest to
and greater than the Remaining Term and the United States Treasury securities
that have a constant maturity closest to and less than the Remaining Term (in
each case as set forth in the H.15 Statistical Release). Any weekly average
yields so calculated by interpolation shall be rounded to the nearest 1/100th of
1%, with any figure of 1/200th of 1% or above being rounded upward. If weekly
average yields for United States Treasury securities are not available in the
H.15 Statistical Release or otherwise, then the Comparable Treasury Yield shall
be calculated by interpolation of comparable rates selected by the Independent
Investment Banker.
In the event of redemption of this Security in part only, a new Security or
Securities of this series and of like tenor for the unredeemed portion hereof
will be issued in the name of the Holder hereof upon the cancellation hereof.
The Securities of this series are not entitled to the benefit of any
sinking fund.
The Indenture contains provisions for satisfaction and discharge of the
entire indebtedness of this Security upon compliance by the Company with certain
conditions set forth in the Indenture.
The Indenture contains provisions for defeasance at any time of the entire
indebtedness of this Security or certain restrictive covenants and Events of
Default with respect to this Security, in each case upon compliance with certain
conditions set forth in the Indenture.
If an Event of Default with respect to Securities of this series shall
occur and be continuing, the principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of a majority in principal amount of the Securities at
the time Outstanding of each series to be affected. The Indenture also contains
provisions permitting the Holders of specified percentages in principal amount
of the Securities of each series at the time Outstanding, on behalf of the
Holders of all Securities of such series, to waive compliance by the Company
with certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the registration
of transfer hereof or in exchange
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herefor or in lieu hereof, whether or not notation of such consent or waiver is
made upon this Security.
As provided in and subject to the provisions of the Indenture, the Holder
of this Security shall not have the right to institute any proceeding with
respect to the Indenture or for the appointment of a receiver or trustee or for
any other remedy thereunder, unless such Holder shall have previously given the
Trustee written notice of a continuing Event of Default with respect to the
Securities of this series, the Holders of not less than 25% in principal amount
of the Securities of this series at the time Outstanding shall have made written
request to the Trustee to institute proceedings in respect of such Event of
Default as Trustee and offered the Trustee reasonable indemnity, and the Trustee
shall not have received from the Holders of a majority in principal amount of
Securities of this series at the time Outstanding a direction inconsistent with
such request, and shall have failed to institute any such proceeding, for 60
days after receipt of such notice, request and offer of indemnity. The foregoing
shall not apply to any suit instituted by the Holder of this Security for the
enforcement of any payment of principal hereof or any premium or interest hereon
on or after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Security or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and any premium and interest
on this Security at the times, place and rate, and in the coin or currency,
herein prescribed.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Security is registrable in the Security Register,
upon surrender of this Security for registration of transfer at the office or
agency of the Company in any place where the principal of and any premium and
interest on this Security are payable, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Company and the
Security Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Securities of this series
and of like tenor, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees. No
service charge shall be made for any such registration of transfer or exchange,
but the Company may require payment of a sum sufficient to cover any tax or
other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
The Securities of this series are issuable only in registered form without
coupons in denominations of $1,000 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Securities of this series are exchangeable for a like aggregate principal amount
of Securities of this series and of like tenor of a different authorized
denomination, as requested by the Holder surrendering the same.
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All terms used in this Security which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
THE INDENTURE AND THIS SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF
LAWS PRINCIPLES THEREOF.
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