EXHIBIT 4.136
AGREEMENT
AGREEMENT (the "AGREEMENT"), dated as of November 25, 2002, by and
among XCEL ENERGY INC., a Minnesota corporation, with headquarters located at
000 Xxxxxxxx Xxxx, Xxxxxxxxxxx, XX 00000 (the "COMPANY"), and the entities party
hereto (individually, a "BUYER" and collectively, the "BUYERS").
WHEREAS:
A. The Company and the Buyers entered into a Securities Purchase
Agreement, dated as of November 8, 2002 (the "PURCHASE AGREEMENT");
B. Pursuant to the terms of the Purchase Agreement, the Buyers
purchased senior convertible notes of the Company (the "FIRST NOTES") in an
aggregate principal amount of $100 million;
C. The Company consummated a Qualified 144A Offering (as defined in the
First Notes) on November 21, 2002, in which the Company issued an aggregate
principal amount of $230 million of its 7 1/2% Convertible Senior Notes due 2007
(the "144A NOTES") pursuant to the Indenture between the Company and Xxxxx Fargo
Bank Minnesota, National Association, dated as of November 21, 2002 (the
"INDENTURE");
D. Pursuant to the terms of the First Notes, the Company is now
obligated to provide the Buyers with the Company Optional Redemption
Consideration (as defined in the First Notes);
E. The Company and the Buyers now desire to amend certain of the terms
and conditions of the First Notes;
F. Capitalized terms not otherwise defined herein shall have the
meanings attributable to such term in the First Notes;
NOW THEREFORE, the Company and each Buyer hereby agree that
notwithstanding any provision in the First Notes to the contrary, the Company
and each Buyer hereby agree as follows:
1. Definitions.
(a) The definition of "COMPANY OPTIONAL REDEMPTION DATE" set
forth in Section (10)(c)(ii) of the First Notes shall mean November 25, 2002.
(b) The definition of "CASH OPTIONAL REDEMPTION CONSIDERATION"
set forth in Section 28(b) of the First Notes shall be replaced in its entirety
and shall mean each Buyer's pro rata portion of an aggregate amount equal to One
Hundred Seven Million Three Hundred Seventy-Two Thousand Six Hundred Two Dollars
and Seventy-Four Cents ($107,372,602.74). Upon surrender of its First Notes to
the Company or to Company's counsel, each Buyer shall receive on the date hereof
the amount set forth opposite such Buyer's name on
Exhibit A attached hereto pursuant to the wire transfer instructions set forth
on such Exhibit A. Upon redemption, the parties acknowledge that, pursuant to
the terms of the Purchase Agreement, the Company has no further obligations to
issue Notes or Conversion Shares.
2. Non-Cash Optional Redemption Consideration. The parties hereto agree
that the following provisions shall apply to the Non-Cash Optional Redemption
Consideration required to be delivered by the Company to the Buyers on the date
hereof pursuant to the terms of the First Notes:
(a) At any time and from time to time on or after the date
hereof and on or prior to November 25, 2003 (the "EXERCISE PERIOD"), each of the
Buyers shall have the right (the "PURCHASE RIGHT") to purchase up to its pro
rata portion (based on the principal amount of First Notes each Buyer purchased
in relation to the aggregate principal amount of First Notes issued) of $57.5
million aggregate principal amount of 7 1/2% Convertible Senior Notes of the
Company (the "BUYER NOTES"), which Buyer Notes and any related indenture (the
"BUYER INDENTURE") shall be identical to the 144A Notes and the terms of the
Indenture, other than as set forth herein, and the form of such Buyer Notes and
any Buyer Indenture to be delivered as set forth in Section 2(e) below.
(b) During the Exercise Period, a Buyer may exercise on one
occasion or on multiple occasions up to an aggregate of its pro rata portion of
the Purchase Right by (i) delivery of a written notice, in the form of the
notice attached as Exhibit B hereto or a reasonable facsimile thereof (an
"EXERCISE NOTICE"), to the Company of such Buyer's election to exercise its
Purchase Right, which Exercise Notice shall specify the aggregate principal
amount of Buyer Notes to be purchased and the date for the closing (a "CLOSING")
of such exercise, which date shall be five (5) Business Days after delivery of
the Exercise Notice (a "CLOSING DATE"), and (ii) payment to the Company on the
Closing Date of an amount equal to the aggregate principal amount of Buyer Notes
to be purchased (the "PURCHASE PRICE") in cash or delivery of a certified check
or bank draft payable to the order of the Company or wire transfer of
immediately available funds. In the event of any exercise of the rights
represented by the Purchase Right in compliance with this Section 2(b), the
Company shall on the applicable Closing Date issue and deliver to the address as
specified in the Exercise Notice, a Buyer Note or Buyer Notes in such
denominations as may be requested by the applicable Buyer in the Exercise
Notice, registered in the name of such Buyer or its designee, for the aggregate
principal amount of Buyer Notes to which such Buyer shall be entitled upon such
exercise. The time of each Closing shall be 10:00 A.M. Central Time, on the
applicable Closing Date (or such later time or date as is mutually agreed to by
the Company and the Buyer). Each Closing shall occur on the applicable Closing
Date at the offices of Xxxxxxx Xxxx & Xxxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000.
(c) If the Company shall fail for any reason or for no reason
to issue to an exercising Buyer on a Closing Date the Buyer Notes being
purchased by such Buyer, the Company shall, in addition to any other remedies
available to such Buyer, be required to pay as additional damages for each day
after a Closing Date such Buyer Notes are not delivered, interest on the
aggregate principal amount of such Buyer Notes at the rate of 12% per annum from
the date such Buyer Notes were due until the aggregate principal amount of such
Buyer Notes are issued in full.
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(d) Notwithstanding the requirement of Section 2(a) hereof
that the Buyer Notes and any Buyer Indenture be identical to the 144A Notes and
the terms of the Indenture, the parties hereto acknowledge and agree that the
following provisions shall apply to the Buyer Notes and any Buyer Indenture:
(i) The issuance date of any Buyer Note shall be the
date on which such Buyer Note is issued by the Company and the maturity
date of any Buyer Note shall be the fifth anniversary thereof; and
(ii) The Company shall either (A) provide for
registration rights relating to the Buyer Notes in conjunction with the
registration rights relating to the 144A Notes or (B) provide similar
registration rights by filing a registration statement within 90 days
of a Closing Date which registration statement shall be declared
effective within 180 days of such Closing Date.
(e) The Company agrees to deliver to the Buyers an initial
draft of the form of Buyer Notes and any Buyer Indenture within 10 Business Days
after the date hereof. Upon receipt of such initial drafts, the Company and the
Buyers shall negotiate in good faith the final form of the Buyer Notes and any
Buyer Indenture (both of which shall contain terms substantially identical to
the 144A Notes and the Indenture) and shall finalize such forms within 30
Business Days of the date hereof.
3. Representations and Warranties.
(a) Representations of Buyers. Each Buyer represents and
warrants that this Agreement has been duly and validly authorized, executed and
delivered on behalf of such Buyer and is a valid and binding agreement of such
Buyer enforceable against such Buyer in accordance with its terms, subject as to
enforceability to general principles of equity and to applicable bankruptcy,
insolvency, reorganization, moratorium, liquidation and other similar laws
relating to, or affecting generally, the enforcement of applicable creditors'
rights and remedies. Each Buyer represents that it will acquire the Buyer Notes
for its own account for investment only and not with a view towards, or for
resale in connection with, the public sale or distribution of the Buyer Notes,
except pursuant to sales registered or exempted under the Securities Act of
1933, as amended (the "1933 ACT"); provided, however, that by making the
representations herein, such Buyer does not agree to hold any Buyer Notes for
any minimum or other specific term and reserves the right to dispose of the
Buyer Notes at any time in accordance with or pursuant to a registration
statement or an exemption under the 1933 Act. Each Buyer further represents, by
acceptance hereof, that, as of this date, such Buyer is an "accredited investor"
as such term is defined in Rule 501(a) of Regulation D promulgated by the
Securities and Exchange Commission under the 1933 Act.
(b) Representations of the Company. The Company represents and
warrants to each of the Buyers that:
(i) Authorization; Enforcement; Validity. The Company
has the requisite corporate power and authority to enter into and perform its
obligations under this Agreement, the Buyer Notes, any Buyer Indenture and each
of the other agreements entered into
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by the parties hereto in connection with the transactions contemplated by this
Agreement (collectively, the "TRANSACTION DOCUMENTS") and to issue the Buyer
Notes in accordance with the terms hereof and thereof. The execution and
delivery of the Transaction Documents by the Company and the consummation by the
Company of the transactions contemplated hereby and thereby, including without
limitation the issuance of the Buyer Notes, have been duly authorized by the
Company's Board of Directors and no further consent or authorization is required
by the Company, its Board of Directors or its stockholders. This Agreement and
the other Transaction Documents of even date herewith have been duly executed
and delivered by the Company, and constitute the valid and binding obligations
of the Company enforceable against the Company in accordance with their terms,
except as such enforceability may be limited by general principles of equity or
applicable bankruptcy, insolvency, reorganization, moratorium, liquidation or
similar laws relating to, or affecting generally, the enforcement of creditors'
rights and remedies.
(ii) Issuance of Buyer Notes. The Buyer Notes are
duly authorized and, upon issuance in accordance with the terms hereof, shall be
free from all taxes, liens and charges with respect to the issue thereof.
Assuming the accuracy of the representations, warranties and covenants of the
Buyers set forth herein, the issuance by the Company of the Buyer Notes shall be
exempt from registration under the 1933 Act.
(iii) No Conflicts. The execution, delivery and
performance of the Transaction Documents by the Company and the consummation by
the Company of the transactions contemplated hereby and thereby (including,
without limitation, the issuance of the Buyer Notes) will not (i) result in a
violation of the certificate of incorporation, any certificate of designations,
preferences and rights of any outstanding series of preferred stock or bylaws of
the Company or any subsidiary of the Company or (ii) conflict with, or
constitute a default (or an event which with notice or lapse of time or both
would become a default) under, or give to others any rights of termination,
amendment, acceleration or cancellation of, any material agreement, indenture or
instrument to which the Company or any of its subsidiaries is a party, or (iii)
result in a violation of any law, rule, regulation, order, judgment or decree
(including federal and state utilities and securities laws and regulations and
the rules and regulations of the Principal Market) applicable to the Company or
any of its subsidiaries or by which any property or asset of the Company or any
of its subsidiaries is bound or affected.
(iv) Consents. The Company is not required to obtain
any consent, authorization or order of, or make any filing or registration with,
any court, governmental agency or any regulatory or self-regulatory agency or
any other Person in order for it to execute, deliver or perform any of its
obligations under or contemplated by the Transaction Documents, in each case in
accordance with the terms hereof or thereof, except for such consents,
authorizations, orders, filings and registrations which have been obtained or
effected on or prior to the date hereof.
(v) No General Solicitation; No Integrated Offering.
Neither the Company, nor any of its affiliates, nor any Person acting on its or
their behalf, has engaged in any form of general solicitation or general
advertising (within the meaning of Regulation D under the 0000 Xxx) in
connection with entering into this Agreement or the offer or sale of the Buyer
Notes. None of the Company, its subsidiaries, any of their affiliates, and any
Person acting on their behalf has, directly or indirectly, made any offers or
sales of any security or
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solicited any offers to buy any security, under circumstances that would require
registration of the Purchase Right or any of the Buyer Notes under the 1933 Act
or cause the entering into of this Agreement or the issuance of the Buyer Notes
to be integrated with prior offerings by the Company for purposes of the 1933
Act or any applicable stockholder approval provisions, including, without
limitation, under the rules and regulations of any exchange or automated
quotation system on which any of the securities of the Company are listed or
designated. None of the Company, its subsidiaries, their affiliates and any
Person acting on their behalf will take any action or steps referred to in the
preceding sentence that would require such registration under the 1933 Act or
cause entering into this Agreement or the offering or issuance of the Purchase
Right or the Buyer Notes to be integrated with other offerings.
4. Miscellaneous.
(a) Governing Law; Jurisdiction; Jury Trial. All questions
concerning the construction, validity, enforcement and interpretation of this
Agreement shall be governed by the internal laws of the State of Illinois,
without giving effect to any choice of law or conflict of law provision or rule
(whether of the State of Illinois or any other jurisdictions) that would cause
the application of the laws of any jurisdictions other than the State of
Illinois. Each party hereby irrevocably submits to the non-exclusive
jurisdiction of the state and federal courts sitting in the City of Chicago for
the adjudication of any dispute hereunder or in connection herewith or with any
transaction contemplated hereby or discussed herein, and hereby irrevocably
waives, and agrees not to assert in any suit, action or proceeding, any claim
that it is not personally subject to the jurisdiction of any such court, that
such suit, action or proceeding is brought in an inconvenient forum or that the
venue of such suit, action or proceeding is improper. Each party hereby
irrevocably waives personal service of process and consents to process being
served in any such suit, action or proceeding by mailing a copy thereof to such
party at the address for such notices to it under this Agreement and agrees that
such service shall constitute good and sufficient service of process and notice
thereof. Nothing contained herein shall be deemed to limit in any way any right
to serve process in any manner permitted by law. EACH PARTY HEREBY IRREVOCABLY
WAIVES ANY RIGHT IT MAY HAVE, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE
ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION WITH OR ARISING OUT OF
THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY.
(b) Counterparts. This Agreement may be executed in two or
more identical counterparts, all of which shall be considered one and the same
agreement and shall become effective when counterparts have been signed by each
party and delivered to the other party; provided that a facsimile signature
shall be considered due execution and shall be binding upon the signatory
thereto with the same force and effect as if the signature were an original, not
a facsimile signature.
(c) Severability. If any provision of this Agreement shall be
invalid or unenforceable in any jurisdiction, such invalidity or
unenforceability shall not affect the validity or enforceability of the
remainder of this Agreement in that jurisdiction or the validity or
enforceability of any provision of this Agreement in any other jurisdiction.
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(d) Amendments. No provision of this Agreement may be amended
other than by an instrument in writing signed by the Company and the Buyers, and
no provision hereof may be waived other than by an instrument in writing signed
by the party against whom enforcement is sought. No such amendment shall be
effective to the extent that it applies to less than all of the Buyers. No
consideration shall be offered or paid to any Person to amend or consent to a
waiver or modification of any provision of any of the Transaction Documents
unless the same consideration also is offered to all of the parties to the
Transaction Documents.
(e) Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of the parties and their respective successors and
assigns.
(f) Further Assurances. Each party shall do and perform, or
cause to be done and performed, all such further acts and things, and shall
execute and deliver all such other agreements, certificates, instruments and
documents, as the other party may reasonably request in order to carry out the
intent and accomplish the purposes of this Agreement and the consummation of the
transactions contemplated hereby.
[Remainder of Page Intentionally Left Blank.]
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IN WITNESS WHEREOF, each Buyer and the Company have caused this
Agreement to be duly executed as of the date first written above.
COMPANY: BUYERS:
XCEL ENERGY INC. CITADEL EQUITY FUND LTD.
By: Citadel Limited Partnership, Portfolio
Manager
By: GLB Partners, L.P., its General Partner
By: Citadel Investment Group, L.L.C., its
General Partner
By: /s/ Xxxxxxxx X.X. Xxxxx III
------------------------------
Name: Xxxxxxxx X.X. Xxxxx III
Title: Vice President
and Treasurer By: /s/ Xxxxxxx X. Simpler
-----------------------------------------------
Name: Xxxxxxx X. Simpler
Title: Managing Director
CITADEL CREDIT TRADING LTD.
By: Citadel Limited Partnership, Portfolio
Manager
By: GLB Partners, L.P., its General Partner
By: Citadel Investment Group, L.L.C., its
General Partner
By: /s/ Xxxxxxx X. Simpler
------------------------------------------
Name: Xxxxxxx X. Simpler
Title: Managing Director
XXXXXXX INVESTMENT FUND LTD.
By: Citadel Limited Partnership, Portfolio
Manager
By: GLB Partners, L.P., its General Partner
By: Citadel Investment Group, L.L.C., its
General Partner
By: /s/ Xxxxxxx X. Simpler
------------------------------------------
Name: Xxxxxxx X. Simpler
Title: Managing Director
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EXHIBIT A
SCHEDULE OF BUYERS
CASH OPTIONAL
REDEMPTION
BUYER ADDRESS AND FACSIMILE NUMBER CONSIDERATION WIRE INSTRUCTIONS
---------------------------- ------------------------------------ ------------- -------------------------------------
Citadel Equity Fund Ltd. c/o Citadel Investment Group, $85,898,082.18 Bank of New York
L.L.C. ABA 000000000
000 Xxxx Xxxxxxxxxx Xxxxxx Swift: XXXXXX0X
Xxxxxxx, Xxxxxxxx 00000 Acct:0000-000-000
Attention: Xxxxxxx X. Simpler ACCT NAME: CITADEL EQUITY FUND LTD.
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
Residence: Cayman Islands
Citadel Credit Trading Ltd. c/o Citadel Investment Group, $10,737,260.28 Bank of New York
L.L.C. ABA 000000000
000 Xxxx Xxxxxxxxxx Xxxxxx Swift: XXXXXX0X
Xxxxxxx, Xxxxxxxx 00000 Acct:0000-000-000
Attention: Xxxxxxx X. Simpler ACCT NAME: CITADEL CREDIT TRADING LTD.
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
Residence: Cayman Islands
Xxxxxxx Investment Fund c/o Citadel Investment Group, $10,737,260.28 Bank of New York
Ltd. L.L.C. ABA 000000000
000 Xxxx Xxxxxxxxxx Xxxxxx Swift: XXXXXX0X
Xxxxxxx, Xxxxxxxx 00000 Acct:0000-000-000
Attention: Xxxxxxx X. Simpler ACCT NAME: XXXXXXX INVESTMENT
Facsimile: (000) 000-0000 FUND LTD.
Telephone: (000) 000-0000
Residence: Cayman Islands
EXHIBIT B
EXERCISE NOTICE
XCEL ENERGY INC.
The undersigned holder hereby exercises the right to purchase an aggregate
principal amount of $_________ of the 7 1/2% Convertible Senior Notes (the
"BUYER NOTES") of Xcel Energy Inc., a Minnesota corporation (the "COMPANY"),
pursuant to the Purchase Right granted to the undersigned in that certain
agreement dated as of November 25, 2002 by and among the Company, the
undersigned and the other parties thereto (the "AGREEMENT"). The Closing Date
(as defined in the Agreement) shall be ______, __ 200_.
Please issue the Buyer Notes being purchased hereunder in the following name(s)
and denominations:
-------------------------
-------------------------
-------------------------
Please deliver the Buyer Notes to the following address:
-------------------------
-------------------------
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Date: _______________ __, 200_
Name of Buyer: _____________________
By:________________________________
Name:_____________________________
Title:______________________________
