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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report: October 21, 1998
(Date of earliest event reported)
CENTEX CORPORATION
(Exact name of Registrant as specified in its charter)
Nevada 1-6776 75-0778259
(State of Incorporation) (Commission File No.) (I.R.S. Employer
Identification No.)
2728 N. Harwood Street
Dallas, Texas 75201
(Address of principal executive offices) (Zip Code)
Registrant's Telephone Number, Including Area Code: (214) 981-5000
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Item 5. Other Events.
Reference is hereby made to the Registrant's Registration Statements on
Form S-3 (File Nos. 33-61223 and 333-65217), filed with the Securities and
Exchange Commission (the "Commission") on July 21, 1995 and October 1, 1998,
respectively, and declared effective thereby on August 3, 1995 and October 8,
1998, respectively (collectively, the "Registration Statements"), pursuant to
which the Registrant registered $200,000,000 aggregate principal amount of its
Debt Securities, for various series (the "Securities"), for offer and sale in
accordance with applicable provisions of the Securities Act of 1933, as amended.
On October 21, 1998, the Registrant entered into a Distribution
Agreement (the "Distribution Agreement") with First Chicago Capital Markets,
Inc. ("First Chicago"), Credit Suisse First Boston Corporation ("CSFB"), Morgan
Stanley & Co. Incorporated, NationsBanc Montgomery Securities LLC and Warburg
Dillon Read LLC (collectively, the "Agents"), in connection with the proposed
public offering by the Agents of fixed and floating rate Medium-Term Notes,
Series A, covered by the Registration Statements. The Distribution Agreement in
the form in which it was executed is filed herewith as Exhibit 1.1.
In connection with the execution of the Distribution Agreement, the
Registrant entered into an Indenture dated as of October 1, 1998, with Chase
Bank of Texas, National Association, as trustee ("Trustee"), with respect to the
Securities. A copy of the Indenture in the form in which it was executed is
filed herewith as Exhibit 4.1.
Pursuant to the Indenture, the Registrant and the Trustee entered into
an Indenture Supplement No. 1 dated as of October 1, 1998 (the "Indenture
Supplement"), providing for the issuance of the Series A Notes (as defined
below). A copy of the Indenture Supplement in the form in which it was executed
is filed herewith as Exhibit 4.2.
Pursuant to the Distribution Agreement, on October 21, 1998, the
Registrant agreed to sell $15,000,000 aggregate principal amount of the
Registrant's 6.40% Medium-Term Notes, Series A, due October 25, 2002, which bear
interest at a fixed rate (the "Fixed Rate Notes"). The Fixed Rate Notes, which
were placed by First Chicago as Agent, were issued on October 26, 1998. The net
proceeds to the Registrant from the sale of the Fixed Rate Notes were
$14,932,500.
Also pursuant to the Distribution Agreement, on October 23, 1998, the
Registrant agreed to sell $50,000,000 aggregate principal amount of the
Registrant's Medium-Term Notes, Series A, due April 28, 2000, which bear
interest at a floating rate based on the London Interbank Offered Rate (the
"Floating Rate Notes," and collectively with the Fixed Rate Notes, the "Series A
Notes"). The Floating Rate Notes, which were placed by CSFB as Agent, were
issued on October 28, 1998. The net proceeds to the Registrant from the sale of
the Floating Rate Notes were $49,825,000.
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Item 7. Financial Statements and Exhibits.
(c) Exhibits
Exhibit No. Description
1.1 Distribution Agreement dated October 21, 1998 between Centex
Corporation and First Chicago Capital Markets, Inc., Credit
Suisse First Boston Corporation, Morgan Stanley & Co.
Incorporated, NationsBanc Montgomery Securities LLC and
Warburg Dillon Read LLC
4.1 Indenture dated as of October 1, 1998 between Centex
Corporation and Chase Bank of Texas, National Association
4.2 Indenture Supplement No. 1 dated as of October 1, 1998 with
respect to the Series A Notes, between Centex Corporation and
Chase Bank of Texas, National Association
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this Report to be signed on its behalf by the
undersigned thereunto duly authorized.
CENTEX CORPORATION
October 30, 1998 By: /s/ Raymond G. Smerge
-------------------------------
Raymond G. Smerge
Executive Vice President, Chief
Legal Officer and Secretary
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INDEX TO EXHIBITS
Exhibit No. Description
- ---------- -----------
1.1 Distribution Agreement dated October 21, 1998 between Centex
Corporation and First Chicago Capital Markets, Inc., Credit
Suisse First Boston Corporation, Morgan Stanley & Co.
Incorporated, NationsBanc Montgomery Securities LLC and Warburg
Dillon Read LLC
4.1 Indenture dated as of October 1, 1998 between Centex Corporation
and Chase Bank of Texas, National Association
4.2 Indenture Supplement No. 1 dated as of October 1, 1998 with
respect to the Series A Notes, between Centex Corporation and
Chase Bank of Texas, National Association
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EXHIBIT 1.1
CENTEX CORPORATION
$200,000,000
Medium-Term Notes, Series A
Due 9 Months or More from Date of Issue
DISTRIBUTION AGREEMENT
October 21, 1998
First Chicago Capital Markets, Inc.
1 First National Plaza
Chicago, Illinois 60670
Credit Suisse First Boston Corporation
11 Madison Avenue
New York, N.Y. 10010
Morgan Stanley & Co. Incorporated
1585 Broadway
2nd Floor
New York, N.Y. 10036
NationsBanc Montgomery Securities LLC
100 North Tryon Street
Mail Code NC1-007-07-01
Charlotte, North Carolina 28255
Warburg Dillon Read LLC
677 Washington Blvd.
Stamford, CT 06901
Dear Sirs:
Centex Corporation, a Nevada corporation (the "Company"), confirms its
agreement with each of you (individually, an "Agent" and collectively, the
"Agents") with respect to the issue and sale from time to time by the Company
of its medium-term notes due 9 months or more from
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date of issue (the "Notes"). The Notes will be issued under an Indenture dated
as of October 1, 1998, as supplemented by a first Supplemental Indenture
thereto dated as of October 1, 1998, as each may be amended, supplemented or
modified from time to time (the "Indenture"), between the Company and Chase
Bank of Texas, National Association, as Trustee (the "Trustee").
As of the date hereof, the Company has authorized the issuance and
sale of up to $200,000,000 aggregate initial offering price of Notes to the
Agents as principal or through the Agents as agent pursuant to the terms of
this Agreement. It is understood, however, that the Company may from time to
time authorize the issuance and sale of additional Notes and that such
additional Notes may be sold to or through the Agents pursuant to the terms of
this Agreement, all as though the issuance and sale of such Notes were
authorized as of the date hereof.
If Notes are sold by the Company to an Agent as principal, such Agent
may purchase as principal for resale to investors and other purchasers in
accordance with the provisions of Section 2(a) hereof, and, if requested by
such Agent, the Company will enter into a Terms Agreement relating to such sale
(each, a "Terms Agreement"). If Notes are sold by the Company directly to
investors (as may from time to time be agreed to by the Company and an Agent),
such Agent will act as agent of the Company in soliciting purchases of the
Notes in accordance with the provisions of Section 2(b) hereof.
Subject to the terms and conditions stated herein and subject to the
reservation by the Company of the right to sell Notes directly on its own
behalf, the Company hereby agrees that the Notes will be sold to or through the
Agents. The Company hereby appoints each Agent as its agent for the purpose of
soliciting and receiving offers to purchase Notes from the Company by others
and, on the basis of the representations and warranties herein contained, but
subject to the terms and conditions herein set forth, each Agent severally and
not jointly agrees to use reasonable best efforts to solicit and receive offers
to purchase Notes upon terms acceptable to the Company at such times and in
such amounts as the Company shall from time to time specify.
For purposes of this Agreement, all references to the Registration
Statement (as hereinafter defined), any preliminary prospectus, the Prospectus
(as hereinafter defined) or any amendment or supplement to any of the foregoing
shall be deemed to include the copy filed with the Securities and Exchange
Commission (the "SEC") pursuant to its Electronic Data Gathering, Analysis and
Retrieval system ("EDGAR").
1. Representations and Warranties. The Company represents and
warrants to and agrees with each Agent as of the date hereof, as of the date of
each acceptance by the Company of an offer to purchase Notes (whether to an
Agent as principal or through an Agent as agent), as of the date of each
delivery of Notes (whether to an Agent as principal or through an Agent as
agent) (the date of each such delivery being hereinafter referred to as a
"Settlement Date") and as of each date the Registration Statement (as
hereinafter defined) or the Prospectus (as hereinafter defined) is amended or
supplemented (other than by an amendment or supplement providing solely for a
change in the interest rates of Notes or similar changes, and, unless an Agent
shall otherwise specify, other than by an amendment or supplement which relates
exclusively to an
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offering of debt securities other than Notes) or there is filed with the SEC
any document that is incorporated by reference into the Prospectus (each of the
times referenced above being referred to as a "Representation Date"), as
follows (it being understood that such representations, warranties and
agreements shall be deemed to relate to the Registration Statement and the
Prospectus, each as amended or supplemented to each such date):
(a) The Company has filed with the SEC two registration statements
(File Nos. 33-61223 and 333-65217) in respect of the Notes in the forms
heretofore delivered or to be delivered to each Agent and such registration
statements (and any further registration statements which may be filed by the
Company for the purpose of registering additional Notes, including any
registration statement filed pursuant to Rule 462(b) of the regulations to the
Securities Act) in such forms have been declared effective by the SEC and no
stop order suspending the effectiveness of such registration statements has
been issued and no proceeding for that purpose has been initiated or threatened
by the SEC, and any requests on the part of the SEC for additional information
have been complied with (any preliminary prospectus included in such
registration statements being hereinafter called a "Preliminary Prospectus;"
the various parts of such registration statements, including the Prospectus,
all exhibits thereto (other than the Statements of Eligibility under the Trust
Indenture Act of 1939 of a Corporation Designated to Act as Trustee, on Form
T-1), each as amended, at the time such part became effective, being
hereinafter collectively called the "Registration Statement;" the prospectus
relating to the Notes and the prospectus supplement relating to any particular
issuance of Notes, in the form in which it has most recently been filed, or
transmitted for filing, with the SEC on or prior to the date of this Agreement,
being hereinafter collectively called the "Prospectus", except that if any
revised Prospectus shall be provided to each Agent by the Company for use in
connection with the offering of the Notes which is not required to be filed by
the Company pursuant to Rule 424(b) under the Securities Act, the term
"Prospectus" shall refer to such revised prospectus from and after the time it
is first provided to each Agent for such use; any reference herein to any
Preliminary Prospectus or the Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein pursuant to Item 12 of
Form S-3 under the Securities Act of 1933, as amended (the "Securities Act"),
as of the date of such Preliminary Prospectus or Prospectus, as the case may
be; any reference to any amendment or supplement to any Preliminary Prospectus
or Prospectus shall be deemed to refer to and include any documents filed after
such date under the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and incorporated by reference in such amendment or supplement; and any
reference to the Prospectus, as amended or supplemented, shall be deemed to
refer to the Prospectus as amended or supplemented in relation to the
applicable Notes in the form in which it is first filed, or transmitted for
filing, with the SEC pursuant to Rule 424 under the Securities Act, including
any documents incorporated by reference therein as of the date of such filing
or transmission);
(b) The documents incorporated by reference in the Prospectus,
when they were filed or hereafter are filed with the SEC, conformed or when so
filed will conform, in all material respects to the requirements of the
Exchange Act and the rules and regulations of the SEC thereunder; and any
further documents so filed and incorporated by reference in the Prospectus,
when such documents are filed with the SEC, will conform in all material
respects to the requirements of the Exchange Act and the rules and regulations
of the SEC thereunder;
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(c) Each part of the Registration Statement and the Prospectus
conformed, and as of the applicable Representation Date will conform, and any
amendments or supplements to the Registration Statement or the Prospectus will
conform, on the date of filing thereof with the SEC, in all material respects
to the requirements of the Securities Act and the Trust Indenture Act of 1939,
as amended (the "Trust Indenture Act"), as applicable, and the rules and
regulations of the SEC thereunder; the Registration Statement and any amendment
thereto, as of the applicable effective date, did not and at each time
thereafter at which any amendment to the Registration Statement becomes
effective and any Annual Report on Form 10-K is filed by the Company with the
SEC as of each Representation Date, will not, contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; the Prospectus and any
supplement thereto, as of the applicable filing date, did not and as of each
Representation Date will not, contain an untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; provided, however, that the representations and warranties in this
section shall not apply to any statements or omissions made in reliance upon
and in conformity with information furnished in writing to the Company by or on
behalf of any Agent expressly for use in the Registration Statement or
Prospectus. Each Preliminary Prospectus and the Prospectus delivered to the
Agents for use in connection with the offering of the Notes was identical to
the electronically transmitted versions thereof filed with the SEC pursuant to
EDGAR, except to the extent permitted by Regulation S-T;
(d) Neither the Company nor any of its subsidiaries has sustained
since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus any material loss or interference
with its business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental
action, order or decree, resulting in an adverse effect on the business,
assets, financial position or prospects of the Company and its subsidiaries
taken as a whole, otherwise than as set forth or contemplated in the
Prospectus; and, since the respective dates as of which information is given in
the Registration Statement and the Prospectus, except as otherwise set forth or
contemplated in the Prospectus: (i) there has not been any material change in
the capital stock or long-term debt of the Company or any of its subsidiaries;
(ii) there has not been any material adverse change, or any development
involving a prospective material adverse change, in or affecting the business,
assets, financial position or prospects of the Company and its subsidiaries,
taken as a whole, otherwise than as set forth or contemplated in the
Prospectus; (iii) no event has occurred that would result in a material
write-down in assets; (iv) there have been no material transactions entered
into by the Company, other than those publicly disclosed or in the ordinary
course of business; (v) the Company has not repurchased any of its outstanding
capital stock except as set forth in or contemplated by the Prospectus; and
(vi) there have been no dividends or distributions of any kind declared, paid
or made by the Company in respect of its capital stock except for regular cash
dividends paid in the ordinary course of business;
(e) The Company and its subsidiaries have indefeasible title in
fee simple to all real property and indefeasible title to all personal property
owned by them, in each case free and clear of all liens, encumbrances and
defects except such as are described in the Prospectus or such as
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are not material to the business of the Company and its subsidiaries, taken as
a whole; and any real property and buildings held under lease by the Company
and its subsidiaries are held by them under leases that are valid, subsisting
and in full force and effect, with such exceptions as are not material to the
business of the Company and its subsidiaries, taken as a whole;
(f) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of Nevada, and
each subsidiary of the Company has been duly incorporated or organized as a
limited liability company, as the case may be, and is validly existing as a
corporation or limited liability company, as the case may be, in good standing
under the laws of its jurisdiction of incorporation or organization, as the
case may be; each of the Company and its subsidiaries has full power and
authority (corporate and other) to own its properties and conduct its business
as described, or incorporated by reference, in the Prospectus, and has been
duly qualified as a foreign corporation, or limited liability company, as the
case may be, for the transaction of business and is in good standing under the
laws of each other jurisdiction in which it owns or leases properties, or
conducts any business, so as to require such qualification, or is subject to no
material liability or disability by reason of the failure to be so qualified in
any such jurisdiction;
(g) The Company has an authorized capitalization as set forth, or
as incorporated by reference, in the Prospectus, and all of the outstanding
shares of capital stock of the Company have been duly and validly authorized
and issued and are fully paid and nonassessable; and all of the outstanding
shares of capital stock or outstanding interests of each subsidiary of the
Company have been duly and validly authorized and issued, are fully paid and
nonassessable and (except (i) for directors' qualifying shares, (ii) as set
forth on Schedule I hereto and (iii) as otherwise set forth in the Prospectus)
are owned directly or indirectly by the Company, free and clear of all liens,
encumbrances, equities or claims affecting transferability or voting except as
set forth in the Prospectus;
(h) The Notes have been duly authorized, and, when executed,
authenticated, issued and delivered against payment therefor pursuant to this
Agreement, the Indenture and any applicable Terms Agreement with respect to
such Notes, such Notes will have been duly executed, authenticated, issued and
delivered and will constitute valid and legally binding obligations of the
Company, enforceable against the Company in accordance with their terms,
subject, as to enforcement, to bankruptcy, insolvency, reorganization and other
laws of general applicability relating to or affecting creditors' rights and to
general equity principles, and entitled to the benefits provided by the
Indenture, which has been or will be incorporated by reference as an exhibit to
the Registration Statement; the Indenture has been duly authorized, and when
executed and delivered by the Company will constitute a valid and legally
binding instrument, enforceable against the Company in accordance with its
terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization
and other laws of general applicability relating to or affecting creditors'
rights and to general equity principles; and the Notes and the Indenture are
substantially in the form heretofore delivered to each Agent and will conform
in all material respects to the descriptions thereof in the Prospectus; and
each holder of Notes will be entitled to the benefits of the Indenture;
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(i) The issue and sale of the Notes and the compliance by the
Company with all of the provisions of the Notes, the Remarketing Agreement
between the Company and any remarketing agent (the "Remarketing Agreement"),
the Indenture, this Agreement and any Terms Agreement, and the consummation of
the transactions herein and therein contemplated will not conflict with or
result in a breach of any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Company or any of its subsidiaries is a
party or by which the Company or any of its subsidiaries is bound or to which
any of the property or assets of the Company or any of its subsidiaries is
subject, nor will such action result in any violation of the provisions of the
Articles of Incorporation, as amended or restated, or the Bylaws of the Company
or any statute or order, rule or regulation of any court or governmental agency
or body having jurisdiction over the Company or any of its subsidiaries or any
of their properties; and no consent, approval, authorization, order,
registration or qualification of or with any such court or governmental agency
or body is required for the issuance and sale of the Notes or the consummation
by the Company of the other transactions contemplated by this Agreement or the
Remarketing Agreement or any Terms Agreement or the Indenture, except such as
have been, or will have been prior to any delivery of the Notes, obtained under
the Securities Act and the Trust Indenture Act and such consents, approvals,
authorizations, registrations or qualifications as may be required under state
securities or Blue Sky laws in connection with the purchase and distribution of
the Notes by the Agents;
(j) Other than as set forth or contemplated in the Prospectus,
there are no legal or governmental proceedings pending to which the Company or
any of its subsidiaries is a party or of which any property of the Company or
any of its subsidiaries is the subject that, if determined adversely to the
Company or any of its subsidiaries, would individually or in the aggregate have
a material adverse effect on the consolidated financial position, stockholders'
equity or results of operations of the Company and its subsidiaries; and, to
the best of the Company's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others;
(k) Arthur Andersen LLP, who have certified certain financial
statements of the Company and its subsidiaries, are independent public
accountants as required by the Securities Act and the rules and regulations of
the SEC thereunder;
(l) The Company has no knowledge of any default in any material
obligation to be performed by any party to any agreement to which it or any of
its subsidiaries is a party, which default or defaults in the aggregate would
have a material adverse effect upon the business, assets, financial position,
or prospects of the Company and its subsidiaries, considered as a whole;
(m) The consolidated financial statements of the Company and its
subsidiaries, including accompanying notes, included or incorporated by
reference in the Registration Statement and the Prospectus, comply in all
material respects with the requirements of the Securities Act and fairly
present the consolidated financial position and the consolidated results of the
operations of the Company and its subsidiaries at the respective dates and for
the
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respective periods to which they apply, and such financial statements have been
prepared in conformity with generally accepted accounting principles,
consistently applied throughout the periods involved except as may be expressly
stated in the notes thereto. The financial information and statistical data
set forth in the Prospectus under the caption "Summary of Selected Financial
Data" are fairly presented and prepared on a basis consistent with such
consolidated financial statements or the books and records of the Company, as
the case may be, unless otherwise stated in the Prospectus;
(n) Except as described in the Prospectus, the Company and each of
its subsidiaries have all necessary licenses, certificates, consents, permits,
authorizations, approvals, rights and orders of and from all governmental
agencies or bodies having jurisdiction over the Company or any of its
subsidiaries to own their respective properties and conduct their respective
businesses as described in the Prospectus, the failure to possess or the
failure to operate in compliance with which would have a material adverse
effect on the business of the Company and its subsidiaries, taken as a whole,
and the Company has received no notice of proceedings relating to the
revocation or modification of any such certificate, authority or permit that,
singly or in the aggregate, if the subject of an unfavorable decision, ruling
or finding, would materially adversely affect the business, assets, financial
position or prospects of the Company and its subsidiaries, taken as a whole;
(o) This Agreement has been duly and validly authorized, executed
and delivered by the Company and is a valid and binding agreement of the
Company, and any Terms Agreement with respect to the Notes, when executed and
delivered by the Company, will constitute a valid and binding agreement of the
Company, enforceable against the Company in accordance with its terms, subject,
in each case, as to enforcement, to bankruptcy, insolvency, reorganization, and
other laws of general applicability relating to or affecting creditors' rights,
and to general equity principles, and except to the extent that rights of
indemnification hereunder may be limited by applicable laws or equity
principles;
(p) Except as described in the Prospectus, each of the Company and
its subsidiaries owns or possesses all of the patents, trademarks, service
marks, trade names, copyrights and licenses and rights with respect to the
foregoing, necessary for the present conduct of its business, without any known
conflict with the rights of others, the result of which conflict would
materially and adversely affect the business, assets, financial position or
prospects of the Company and its subsidiaries, taken as a whole;
(q) There are no contracts, indentures, mortgages, loan
agreements, notes, bonds, debentures, other evidences of indebtedness, leases
or other agreements or instruments of the Company of a character required to be
described or referred to in the Registration Statement or the Prospectus or to
be filed as exhibits to the Registration Statement that are not described or
referred to or filed as required;
(r) No labor disturbance exists with the employees of the Company
or any of its subsidiaries, or, to the best of the Company's knowledge, is
imminent, that would result in a material adverse effect upon the Company and
its subsidiaries, taken as a whole, and the
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Company has not received notice of any existing or imminent labor disturbance
by the employees of any of its principal suppliers, that might reasonably be
expected to materially adversely affect the business, assets, financial
position or prospects of the Company and its subsidiaries, taken as a whole;
and
(s) The conditions to the use of a registration statement on Form
S-3 under the Securities Act, as set forth in the General Instructions to Form
S-3, have been satisfied with respect to the Company and the Registration
Statement and Prospectus;
(t) The Remarketing Agreement, if applicable, has been duly and
validly authorized, executed and delivered by the Company and, assuming the
Remarketing Agreement has been duly authorized, executed and delivered by the
Remarketing Agent (as defined in the Prospectus), will be a valid and legally
binding agreement of the Company; and
(u) Neither the Company nor any of its subsidiaries is required to
be registered under the Investment Company Act of 1940, as amended.
Any certificate signed by any director or officer of the Company and
delivered to the Agents or their counsel in connection with an offering of
Notes to an Agent as principal or through an Agent as agent shall be deemed a
representation and warranty by the Company to such Agent as to the matters
covered thereby on the date of such certificate and at each Representation Date
subsequent thereto.
2. Purchases as Principal; Solicitations as Agent.
(a) No Agent shall have any obligation to purchase Notes from the
Company as principal, but an Agent may agree from time to time to purchase
Notes as principal. Each sale of Notes to an Agent as principal shall be made
in accordance with the terms of this Agreement, except as otherwise agreed by
such Agent and the Company, and, if requested by such Agent, the Company will
enter into a Terms Agreement that will provide for the sale of such Notes to
and the purchase thereof by such Agent. Each Terms Agreement will be either
(i) substantially in the form of Exhibit A hereto, (ii) in the form of an
exchange of any form of written telecommunication between an Agent and the
Company or (iii) an oral agreement between an Agent and the Company confirmed
in writing by such Agent to the Company.
Each agreement by an Agent to purchase Notes as principal (whether or
not set forth in a Terms Agreement) shall specify the principal amount of Notes
to be purchased by such Agent pursuant thereto, the maturity date of such
Notes, the price to be paid to the Company for such Notes, the interest rate
and interest rate formula, if any, applicable to such Notes and any other terms
of such Notes. Each such agreement shall also specify any requirement for
officers' certificates, opinions of counsel and letters from the independent
public accountants to the Company pursuant to Section 5 hereto.
Each Terms Agreement shall specify the time and place of delivery of
and payment for such Notes. With respect to each sale of Notes to an Agent as
principal that is not made pursuant to a Terms Agreement, the procedural
details relating to the issue and delivery of such Notes and the payment
therefor shall be as set forth in the Administrative Procedures (as hereinafter
defined).
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Each purchase of Notes by an Agent as principal, unless otherwise
agreed, shall be at a discount from the principal amount of each such Note
equivalent to the applicable commission set forth in Subsection (b) hereof.
Each Agent may engage the services of any other broker or dealer in connection
with the resale of any Notes purchased by such Agent as principal and may allow
all or any portion of the discount received in connection with such purchases
from the Company to such brokers and dealers.
(b) If agreed upon by an Agent and the Company, such Agent, acting
solely as agent for the Company and not as principal, will solicit purchasers
of the Notes. In connection with the Agents' actions as agents hereunder, each
Agent agrees to use reasonable best efforts to solicit offers to purchase Notes
from the Company upon the terms and conditions set forth in the Prospectus (and
any supplement thereto) and in the Administrative Procedures. In soliciting
offers to purchase the Notes as agents, each Agent is acting solely as an agent
for the Company, and not as a principal, and does not assume any obligation
toward or relationship of agency or trust with any purchaser of Notes. Each
Agent shall make reasonable efforts to assist the Company in obtaining
performance by each purchaser whose offer to purchase Notes has been solicited
by such Agent and accepted by the Company, but no Agent shall have any
liability to the Company in the event any such purchase is not consummated for
any reason. If the Company shall default in its obligations to deliver Notes
to a purchaser whose offer it has accepted, the Company shall hold each Agent
harmless against any loss, claim, damage or liability arising from or as a
result of such default and shall, in particular, pay to each Agent the
commission each Agent would have received had such sale been consummated.
The Company may appoint additional agents in connection with the
offering of the Notes; provided that (i) the Company promptly notifies each
Agent of such appointment and (ii) the commission paid to any such additional
agent with respect to the sale of Notes by the Company as a result of a
solicitation made by such additional agent is the same as that percentage
specified below of the aggregate principal amount of such Notes sold by the
Company; and provided further that, unless the appointment of such additional
agent is expressly limited to the solicitation of offers to purchase a
specified principal amount of Notes on specified terms, such additional agent
enters into an agreement with the Company making such agent an Agent under this
Agreement or enters into an agreement with the Company on terms which are
substantially similar to those contained in this Agreement, which agreement
shall include appropriate changes to reflect the arrangements between the
Company and such additional agent. The Company may from time to time offer
Notes for sale otherwise than through an Agent.
No Agent is authorized to appoint sub-agents with respect to Notes
sold through an Agent as agent.
The Company reserves the right, in its sole discretion, to instruct
the Agents to suspend at any time, for any period of time or permanently, the
solicitation of offers to purchase Notes (other than Notes held by the Agents
that were purchased from the Company as principal). As
9
<PAGE> 10
soon as practicable after receipt of instructions from the Company, each Agent
will forthwith suspend solicitations of offers to purchase Notes from the
Company until such time as the Company has advised the Agents that such
solicitation may be resumed. While such solicitation is suspended, the Company
shall not be required to deliver any certificates, opinion or letter in
accordance with Sections 6(a), (b) and (c); provided, however, that if the
Registration Statement or the Prospectus is amended or supplemented during the
period of suspension (other than by an amendment or supplement providing solely
for a change in the interest rates of the Notes or for a change the Agents deem
to be immaterial), no Agent shall be required to resume soliciting offers to
purchase Notes until the Company has delivered such certificates, opinions and
letters an Agent may request. The Company also reserves the right to sell
Notes directly to purchasers in those jurisdictions in which it is authorized
to do so.
Except as otherwise agreed, the Company agrees to pay to each Agent,
as consideration for the sale of each Note resulting from a solicitation made
or an offer to purchase received by such Agent, a commission in the form of a
discount from the purchase price of such Note equal to the following percentage
of the principal amount of such Note:
<TABLE>
<CAPTION>
Term* Commission Rate
---- ---------------
<S> <C>
From 9 months to less than 1 year .125%
From 1 year to less than 18 months .150%
From 18 months to less than 2 years .200%
From 2 years to less than 3 years .250%
From 3 years to less than 4 years .350%
From 4 years to less than 5 years .450%
From 5 years to less than 6 years .500%
From 6 years to less than 7 years .550%
From 7 years to less than 10 years .600%
From 10 years to less than 15 years .625%
From 15 years to less than 20 years .700%
From 20 years to 30 years .750%
Greater than 30 years To be agreed to by the Company and each Agent at
time of sale.
</TABLE>
- ---------------
* Or Initial Rate Period, in the case of Remarketed Notes.
Each Agent shall communicate to the Company, orally or in writing,
each offer to purchase Notes received by an Agent as agent that in such Agent's
judgment should be considered by the Company. The Company shall have the sole
right to accept offers to purchase Notes and may reject any offer in whole or
in part. Each Agent shall have the right to reject any offer to purchase Notes
that such Agent considers to be unacceptable, and any such rejection shall not
be deemed a breach of such Agent's agreements contained herein.
Delivery of Notes sold through an Agent as agent shall be made by the
Company to such Agent for the account of any purchaser against payment therefor
in immediately available funds. In the event that a purchaser shall fail
either to accept delivery of or to make payment for a Note
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<PAGE> 11
on the date fixed for settlement, an Agent shall promptly notify the Company
and deliver such Note to the Company and if such Agent has theretofore paid the
Company for such Note, the Company will promptly return such funds to such
Agent. If such failure occurred for any reason other than default by an Agent
in the performance of its obligations hereunder, the Company will reimburse
such Agent on an equitable basis for its loss of the use of the funds for the
period such funds were credited to the Company's account.
(c) The Company and each Agent agree that any Notes purchased an
Agent shall be purchased, and any Notes the placement of which an Agent
arranges as agent shall be placed by such Agent, in reliance on the
representations, warranties, agreements and covenants of the Company contained
herein and on the terms and conditions and in the manner provided herein.
(d) The purchase price, interest rate or formula, maturity date
and other terms of the Notes (as applicable) shall be agreed upon by the
Company and each Agent and specified in a pricing supplement to the Prospectus
(each, a "Pricing Supplement") to be prepared in connection with each sale of
Notes. Except as otherwise specified in the applicable Pricing Supplement, the
Notes will be issued in denominations of U.S. $1,000, except for Remarketed
Notes which will be issued in minimum denominations of $100,000, or any larger
amount that is an integral multiple thereof. Each Agent and the Company agree
to perform the respective duties and obligations specifically provided to be
performed in the Medium-Term Notes Administrative Procedures (attached hereto
as Exhibit B) (the "Administrative Procedures"), as amended from time to time.
The Administrative Procedures may be amended only by written agreement of the
Company, each Agent and the Trustee. The Company will furnish to the Trustee a
copy of the Administrative Procedures as from time to time in effect. The
Company agrees to cause the Trustee to agree to perform the duties and
obligations specifically provided to be performed by the Trustee in such
Administrative Procedures.
3. Agreements. The Company agrees with each Agent that:
(a) The Company will notify each Agent immediately, and confirm
such notice in writing, of (i) the effectiveness of any amendment to the
Registration Statement, (ii) the transmittal to the SEC for filing of any
amendment or supplement to the Prospectus or any document to be filed pursuant
to the Exchange Act which will be incorporated by reference in the Prospectus
(other than any amendment, supplement or document relating solely to securities
other than the Notes), (iii) the receipt of any comments from the SEC with
respect to the Registration Statement or the Prospectus, (iv) any request by
the SEC for any amendment to the Registration Statement or any amendment or
supplement to the Prospectus or for additional information, and (v) the
issuance by the SEC of any stop order suspending the effectiveness of the
Registration Statement or the initiation of any proceedings for that purpose.
The Company will make every reasonable effort to prevent the issuance of any
stop order and, if any stop order is issued, to obtain the lifting thereof at
the earliest possible moment.
(b) The Company will give each Agent notice of its intention to
file or prepare any additional registration statement with respect to the
registration of additional Notes, any amendment to the Registration Statement
or any amendment or supplement to the Prospectus
11
<PAGE> 12
(other than an amendment or supplement providing solely for a change in the
interest rates or formula applicable to the Notes or relating solely to the
issuance and/or offering of securities other than the Notes), whether by the
filing of documents pursuant to the Exchange Act, the Securities Act or
otherwise, and will furnish each Agent with copies of any such amendment or
supplement or other documents proposed to be filed or prepared a reasonable
time in advance of such proposed filing or preparation, as the case may be, and
will not file any such amendment or supplement or other documents in a form to
which an Agent or its counsel shall reasonably object.
(c) The Company will deliver to the Agents as many signed and
conformed copies of the Registration Statement (as originally filed) and of
each amendment thereto (including exhibits filed therewith or incorporated by
reference therein and documents incorporated by reference in the Prospectus) as
the Agents may reasonably request. The Company will furnish to the Agents as
many copies of the Prospectus as the Agents shall reasonably request so long as
the Agents are required to deliver a Prospectus in connection with sales or
solicitations of offers to purchase the Notes.
(d) The Company will prepare, with respect to any Notes to be sold
to or through an Agent pursuant to this Agreement, a Pricing Supplement with
respect to such Notes in a form previously approved by such Agent and will file
such Pricing Supplement pursuant to Rule 424(b)(3) under the Securities Act not
later than the close of business of the SEC on the second business day after
the date on which such Pricing Supplement is first used.
(e) Except as otherwise provided in subsection (m) of this
Section, if at any time during the term of this Agreement any event shall occur
or condition exist as a result of which it is necessary, in the reasonable
opinion of your counsel or counsel for the Company, to further amend or
supplement the Prospectus in order that the Prospectus will not include an
untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein not misleading in the light
of the circumstances existing at the time the Prospectus is delivered to a
purchaser, or if it shall be necessary, in the reasonable opinion of either
such counsel, to amend or supplement the Registration Statement or the
Prospectus in order to comply with the requirements of the Securities Act or
the regulations to the Securities Act, immediate notice shall be given, and
confirmed in writing, to each Agent to cease the solicitation of offers to
purchase the Notes in such Agent's capacity as agent and to cease sales of any
Notes an Agent may then own as principal pursuant to an agreement by such Agent
to purchase Notes as principal, and the Company will promptly prepare and file
with the SEC such amendment or supplement, whether by filing documents pursuant
to the Exchange Act, the Securities Act or otherwise, as may be necessary to
correct such untrue statement or omission or to make the Registration Statement
and Prospectus comply with such requirements.
(f) Except as otherwise provided in subsection (m) of this
Section, if reasonably requested by an Agent , on or prior to the date on which
there shall be released to the general public interim financial statement
information related to the Company with respect to each of the first three
quarters of any fiscal year or preliminary financial statement information with
respect to any fiscal year, the Company shall furnish such information to such
Agent, confirmed in
12
<PAGE> 13
writing. The Company shall cause the Prospectus to be amended or supplemented
to include or incorporate by reference financial information with respect
thereto and corresponding information for the comparable period of the
preceding fiscal year, as well as such other information and explanations as
shall be necessary for an understanding thereof or as shall be required by the
Securities Act or the regulations to the Securities Act.
(g) Except as otherwise provided in subsection (m) of this
Section, if reasonably requested by an Agent, on or prior to the date on which
there shall be released to the general public financial information included in
or derived from the audited financial statements of the Company for the
preceding fiscal year, the Company shall furnish such information to such
Agent, confirmed in writing, and shall cause the Registration Statement and the
Prospectus to be amended, whether by the filing of documents pursuant the
Exchange Act, the Securities Act or otherwise, to include or incorporate by
reference such audited financial statements and the report or reports, and
consent or consents to such inclusion or incorporation by reference, of the
independent accountants with respect thereto, as well as such other information
and explanations as shall be necessary for an understanding of such financial
statements or as shall be required by the Securities Act or the Securities Act
Regulations.
(h) The Company will make generally available to its security
holders as soon as practicable, but not later than 90 days after the close of
the period covered thereby, an earnings statement (in form complying with the
provisions of Rule 158 under the Securities Act) covering each twelve-month
period beginning, in each case, not later than the first day of the Company's
fiscal quarter next following the "effective date" (as defined in such Rule
158) of the Registration Statement with respect to each sale of Notes.
(i) The Company will endeavor, in cooperation with the Agents, to
qualify the Notes for offering and sale under the applicable securities laws of
such states and other jurisdictions of the United States as the Agents may
designate, and will maintain such qualifications in effect for as long as may
be required for the distribution of the Notes; provided, however, that the
Company shall not be obligated to file any general consent to service of
process or to qualify as a foreign corporation in any jurisdiction in which it
is not so qualified. The Company will file such statements and reports as may
be required by the laws of each jurisdiction in which the Notes have been
qualified as above provided. The Company will promptly advise the Agents of
the receipt by the Company of any notification with respect to the suspension
of the qualification of the Notes for sale in any such state or jurisdiction or
the initiating or threatening of any proceeding for such purpose.
(j) The Company, during the period when a Prospectus is required
to be delivered under the Securities Act or the Exchange Act, will file
promptly all documents required to be filed with the SEC pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act within the time periods
prescribed by the Exchange Act and the Exchange Act Regulations.
(k) During the term of this Agreement, the Company shall furnish
to the Agents such relevant documents and certificates of officers of the
Company relating to the business, operations and affairs of the Company, the
Registration Statement, the Prospectus, any
13
<PAGE> 14
amendments or supplements thereto, the Indenture, the Notes, this Agreement,
any Terms Agreement, the Administrative Procedures and the performance by the
Company of its obligations hereunder or thereunder as the Agents may from time
to time reasonably request and shall notify the Agents promptly in writing of
any change in the rating accorded any of the Company's debt securities by any
"nationally recognized statistical rating organization", as such term is
defined for purposes of Rule 436(g)(2) under the Securities Act or the public
announcement by any nationally recognized statistical rating organization that
it has under surveillance or review, with possible negative implications, its
rating of any debt securities of the Company.
(l) Between the date of any agreement by an Agent to purchase
Notes as principal and the Settlement Date with respect to such agreement, the
Company will not, without such Agent's prior consent, offer or sell, or enter
into any agreement to sell, any debt securities of the Company (other than the
Notes that are to be sold pursuant to such agreement and commercial paper in
the ordinary course of business), except as may otherwise be provided in such
agreement.
(m) The Company shall not be required to comply with the
provisions of subsection (e), (f) or (g) of this Section during any period from
the time (i) an Agent shall have suspended solicitation of purchases of the
Notes in its capacity as agent pursuant to a request from the Company and (ii)
an Agent shall not then hold any Notes as principal purchased pursuant to an
agreement by such Agent to purchase Notes as principal, to the time the Company
shall determine that solicitation of purchases of the Notes should be resumed
or shall subsequently enter into a new agreement with such Agent for such Agent
to purchase Notes as principal.
4. Payment of Expenses. The Company covenants and agrees with
the Agents that the Company will pay or cause to be paid all expenses incident
to the performance of its obligations under this Agreement including:
(i) the preparation and filing of the
Registration Statement and all amendments thereto and the Prospectus
and any amendments or supplements thereto;
(ii) the preparation, filing and reproduction of
this Agreement and any Terms Agreements;
(iii) the preparation, printing, issuance and
delivery of the Notes, including any fees and expenses relating to the
use of book-entry notes;
(iv) the fees and disbursements of the Company's
accountants and counsel, of the Trustee and its counsel, and of any
Calculation Agent;
(v) The reasonable fees and disbursements of your
counsel incurred in connection with the establishment of the program
relating to the Notes and incurred from time to time in connection
with the transactions contemplated hereby;
14
<PAGE> 15
(vi) the qualification of the Notes under state
securities laws in accordance with the provisions of Section 3(h)
hereof, including filing fees and the reasonable fees and
disbursements of your counsel in connection therewith and in
connection with the preparation of any Blue Sky Survey and any Legal
Investment Survey;
(vii) the preparation and delivery to each Agent in
quantities as hereinabove stated of copies of the Registration
Statement and any amendments thereto, and of the Prospectus and any
amendments or supplements thereto, and the delivery by each Agent of
the Prospectus and any amendments or supplements thereto in connection
with solicitations or confirmations of sales of the Notes;
(viii) the preparation, reproducing and delivery to
each Agent of copies of the Indenture and all supplements and
amendments thereto;
(ix) any fees charged by rating agencies for the
rating of the Notes;
(x) the fees and expenses incurred in connection
with the listing of the Notes on any securities exchange if the
Company agrees to list the Notes;
(xi) the fees and expenses, if any, incurred with
respect to any filing with the National Association of Securities
Dealers, Inc.;
(xii) any advertising and other out-of-pocket
expenses an Agent incurs with the approval of the Company; and
(xiii) the cost of providing any CUSIP or other
identification numbers for the Notes.
It is understood, however, that, except as provided in this Section
and Section 7 hereof, each Agent will pay all of its own costs and expenses,
transfer taxes on resale of any of the Notes by an Agent, and any advertising
expenses connected with any offers an Agent may make as principal.
5. Conditions of Obligations. The obligation of the Agents to
purchase Notes as principal pursuant to any Terms Agreement or otherwise, the
Agents' obligation to solicit offers to purchase Notes as agent of the Company
and the obligation to purchase Notes of any purchaser of Notes sold through an
Agent as agent will be subject to the accuracy of the representations and
warranties on the part of the Company herein, to the accuracy of the statements
of the Company's officers made in each certificate furnished pursuant to the
provisions hereof and to the performance and observance by the Company of all
covenants and agreements herein contained on its part to be performed and
observed (in the case of an Agent's obligation to solicit offers to purchase
Notes, at the time of such solicitation and, in the case of an Agent's or any
other purchaser's obligation to purchase Notes, at the time the Company accepts
the offer to purchase such Notes and at the time of purchase) and (in each
case) to the following additional conditions precedent:
15
<PAGE> 16
(a) At the time of such solicitation in the case of (i), (ii) and
(v) below, or the time of such purchase, with respect to (i) to (v), as the
case may be:
(i) There shall not have occurred any change, or
any development involving a prospective change, in the condition,
financial or otherwise, or in the earnings, business or operations, of
the Company and its subsidiaries, taken as a whole, from that set
forth in the Registration Statement that, in each Agent's reasonable
judgment, is material and adverse and that makes it, in each Agent's
reasonable judgment, impracticable to market the Notes except, in the
case of any purchase of Notes, as disclosed to each Agent in writing
by the Company before an Agent or such other purchaser accepted the
offer to purchase such Notes.
(ii) No stop order suspending the effectiveness of
the Registration Statement shall have been issued and no proceeding
for that purpose shall have been initiated or threatened by the SEC;
and all requests for additional information on the part of the SEC
shall have been complied with to each Agent's reasonable satisfaction.
(iii) There shall not have occurred any (A)
suspension or material limitation of trading generally on or by, as
the case may be, the New York Stock Exchange, the American Stock
Exchange, the National Association of Securities Dealers, Inc., the
Chicago Board Options Exchange, the Chicago Mercantile Exchange or the
Chicago Board of Trade, (B) suspension of trading of any securities of
the Company on any exchange or in the over-the-counter market, (C)
declaration of a general moratorium on commercial banking activities
in New York by either federal, New York State or Texas authorities or
declaration of a banking moratorium by the relevant authorities in the
country or countries of origin of foreign currency or currencies in
which the Notes are denominated or payable or (D) any outbreak or
escalation of hostilities or any change in financial markets or any
calamity or crisis that, in each Agent's judgment, is material and
adverse and, in the case of any of the events described in clauses
(iii)(A) through (D), such event, singly or together with any other
such event, makes it, in each Agent's judgment, impracticable to
market the Notes or to enforce contracts for the sale of the Notes
except, in the case of any purchase of Notes, for any such event
occurring before the Company accepted the offer to purchase such
Notes.
(iv) The rating assigned by any "nationally
recognized statistical rating organization", as such term is defined
for purposes of Rule 436(g)(2) under the Securities Act, to any debt
securities of the Company shall not have been lowered nor shall any
such rating agency have publicly announced that it has under
surveillance or review, with possible negative implications, its
rating of any debt securities of the Company.
(v) There shall have not come to an Agent's
attention any facts which would cause such Agent to believe that the
Prospectus, at the time it was required to be delivered to a purchaser
of Notes, included an untrue statement of a material fact or omitted
to state a material fact necessary in order to make the statements
therein, in light of the circumstances existing at the time of
delivery, not misleading. As used in this
16
<PAGE> 17
clause, "Prospectus" means the Prospectus in the form first provided
to each Agent for use in confirming sales of the related Notes.
(b) On the date hereof and, if called for by any agreement by an
Agent to purchase Notes as principal, on the corresponding Settlement Date,
each Agent shall have received:
(A) The opinion, dated as of such date, of Raymond G.
Smerge, Executive Vice President, Chief Legal Officer and Secretary
(as to (i) through (vi) and (ix), (x) and (xiii) below) and Thompson &
Knight, A Professional Corporation, special counsel for the Company
(as to (vii), (viii), (xi), (xii) and (xiv) below) to the effect that:
(i) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the State of Nevada, with full corporate power and
authority to own its properties and conduct its business as
described in the Prospectus and to perform its obligations
under this Agreement;
(ii) The Company has an authorized capitalization
as set forth in the Prospectus, as amended or supplemented,
and all of the outstanding shares of capital stock of the
Company have been duly and validly authorized and issued and
are fully paid and nonassessable;
(iii) The Company has been duly qualified as a
foreign corporation for the transaction of business and is in
good standing under the laws of each jurisdiction in which the
failure to so qualify would have a material adverse effect
upon the Company and its subsidiaries, taken as a whole (such
counsel being entitled to rely in respect of the opinion in
this clause upon certificates issued by various state
authorities as deemed necessary by such counsel);
(iv) Each subsidiary of the Company has been duly
incorporated or organized as a limited liability company and
is validly existing as a corporation or limited liability
company, as the case may be, in good standing under the laws
of its jurisdiction of incorporation; each subsidiary of the
Company has been duly qualified as a foreign corporation or
limited liability company, as the case may be, for the
transaction of business and is in good standing under the laws
of each jurisdiction in which the failure to so qualify would
have a material adverse effect upon the Company and its
subsidiaries, taken as a whole (such counsel being entitled to
rely in respect of the opinion in this clause upon
certificates issued by various state authorities as deemed
necessary by such counsel); and all of the outstanding shares
of capital stock or outstanding interests of each such
subsidiary have been duly and validly authorized and issued,
are fully paid and nonassessable, and (except (i) for
directors' qualifying shares, (ii) as set forth in Schedule I
hereto, and (iii) as otherwise set forth in the Prospectus)
are owned directly or indirectly by the Company, free and
clear of all liens, encumbrances, equities or claims affecting
transferability or voting;
17
<PAGE> 18
(v) To the best of such counsel's knowledge and
other than as set forth or contemplated, or incorporated by
reference, in the Prospectus, there are no legal or
governmental proceedings pending to which the Company or any
of its subsidiaries is a party or of which any property of the
Company or any of its subsidiaries is the subject which, if
determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a
material adverse effect on the business, assets, financial
position or prospects of the Company and its subsidiaries,
taken as a whole; and, to the best of such counsel's
knowledge, no such proceedings are threatened or contemplated
by governmental authorities or threatened by others;
(vi) This Agreement and any applicable Terms
Agreement with respect to the Notes have been duly authorized,
executed and delivered by the Company and each constitutes a
valid and legally binding obligation of the Company,
enforceable against the Company in accordance with their
respective terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and
to general equity principles that may limit the availability
of certain remedies (including specific performance), and
except to the extent that rights of indemnification thereunder
may be limited by applicable law or equity principles;
(vii) The Notes, in the form(s) certified by the
Company as of the date hereof, have been duly authorized for
issuance, offer and sale pursuant to this Agreement and, when
issued, authenticated and delivered in accordance with this
Agreement, any applicable Terms Agreement and the Indenture
and duly paid for by the purchasers thereof in accordance with
this Agreement, any applicable Terms Agreement and the
Indenture, will constitute valid and legally binding
obligations of the Company entitled to the benefits provided
by the Indenture and enforceable against the Company in
accordance with their respective terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization and
other laws of general applicability relating to or affecting
creditors' rights and to general equity principles that may
limit the availability of certain remedies (including specific
performance); and the Notes and the Indenture conform in all
material respects to the descriptions thereof in the
Prospectus;
(viii) The Indenture has been duly authorized,
executed and delivered by the Company and constitutes a valid
and legally binding instrument enforceable against the Company
in accordance with its terms, subject, as to enforcement, to
bankruptcy, insolvency, reorganization and other laws of
general applicability relating to or affecting creditors'
rights and to general equity principles that may limit the
availability of certain remedies (including specific
performance); and the Indenture has been duly qualified under
the Trust Indenture Act;
(ix) The Remarketing Agreement, if applicable, has
been duly and validly authorized, executed and delivered by
the Company and, assuming the Remarketing Agreement has been
duly authorized, executed and delivered by the Remarketing
Agent, will be a valid and legally binding agreement of the
Company.
18
<PAGE> 19
(x) The issue and sale of the Notes and the
compliance by the Company with all of the provisions of the
Notes, any Remarketing Agreement, if applicable, the
Indenture, and this Agreement and any applicable Terms
Agreement and the consummation of the transactions herein and
therein contemplated will not conflict with or result in a
breach of any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument known to such
counsel to which the Company or any of its subsidiaries is a
party or by which the Company or any of its subsidiaries is
bound or to which any of the property or assets of the Company
or any of its subsidiaries is subject, nor will such action
result in any violation of the provisions of the Articles of
Incorporation, as amended or restated, or the Bylaws of the
Company or any statute or order, rule or regulation of any
court or governmental agency or body having jurisdiction over
the Company or any of its subsidiaries or any of their
properties;
(xi) To the best of such counsel's knowledge, no
consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency
or body is required for the performance by the Company of its
obligations under this Agreement, for the issue and sale of
the Notes or the consummation of the other transactions
contemplated by this Agreement, any Terms Agreement, the
Remarketing Agreement or the Indenture, except such as have
been obtained under the Securities Act and the Trust Indenture
Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under state
securities or Blue Sky laws in connection with the purchase
and distribution of the Notes by each Agent;
(xii) The Registration Statement is effective under
the Securities Act, and, to the best of such counsel's
knowledge, no proceedings for a stop order are pending or
threatened under the Securities Act;
(xiii) The documents incorporated by reference in
the Prospectus, as amended or supplemented (other than the
financial statements and related schedules therein, as to
which such counsel need express no opinion), when they became
effective or were filed with the SEC, as the case may be, and
as of the date this opinion is delivered, complied as to form
in all material respects with the requirements of the
Securities Act or the Exchange Act, as applicable, and the
rules and regulations of the SEC thereunder; nothing has come
to the attention of such counsel that would cause such counsel
to believe that any of such documents, when they became
effective or were so filed, as the case may be (other than the
financial statements and related schedules therein, as to
which such counsel need express no belief), and as of the date
this opinion is delivered contained, in the case of a
registration statement that became effective under the
19
<PAGE> 20
Securities Act, an untrue statement of a material fact or
omitted to state a material fact necessary in order to make
the statements therein not misleading, and, in the case of
other documents that were filed under the Securities Act or
the Exchange Act with the SEC, an untrue statement of a
material fact or omitted to state a material fact necessary in
order to make the statements therein, in light of the
circumstances under which they were made when such documents
were so filed, not misleading; and such counsel does not know
of any contracts or other documents of a character required to
be filed as an exhibit to the Registration Statement or
required to be incorporated by reference into the Prospectus
or required to be described in the Registration Statement or
the Prospectus that are not filed or incorporated by reference
or described as required; and
(xiv) such counsel (1) believes that (other than
the financial statements and related schedules therein as to
which such counsel need express no belief and except for that
part of the Registration Statement that constitutes the Form
T-l heretofore referred to) each part of the Registration
Statement, as amended, if applicable, when it became effective
(or if an amendment to the Registration Statement or an Annual
Report on Form 10-K has been filed by the Company with the SEC
subsequent to the effectiveness of the Registration Statement,
then at the time such amendment became effective or at the
time of the most recent such filing, as the case may be) did
not and, as of the date such opinion is delivered, does not
contain any untrue statement of a material fact or did not and
does not omit to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading, (2) is of the opinion that the Registration
Statement and the Prospectus, as amended or supplemented, if
applicable (other than the financial statements and related
schedules therein, as to which such counsel need express no
opinion), comply as to form in all material respects with the
Securities Act and the rules and regulations of the SEC
thereunder and (3) believes that (other than the financial
statements and related schedules therein as to which such
counsel need express no belief) the Prospectus, as of the date
such letter is delivered (or, if such letter is being
delivered in connection with the purchase of Notes from the
Company by an Agent as principal pursuant to Section 2(a)
hereof, at the date of any agreement by an Agent to purchase
such Notes as principal and at the Settlement Date with
respect thereto, as the case may be) (did not and) does not
include any untrue statement of a material fact or (did not
and) does not omit to state a material fact necessary in order
to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(B) The opinion, dated as of such date, of Milbank,
Tweed, Hadley & McCloy, your special counsel, covering the
incorporation of the Company, the validity of the Remarketing
Agreement, Indenture, the Notes, the Registration Statement, the
Prospectus, as amended or supplemented, and other related matters as
the Agents may reasonably request.
20
<PAGE> 21
(c) On the date hereof and, if called for by any Terms Agreement,
on the corresponding Settlement Date, each Agent shall have received a
certificate, dated as of the date hereof or the Settlement Date, as the case
may be, signed by (i) the Chairman, Vice Chairman, President or any Vice
President and (ii) the Chief Financial Officer or Treasurer of the Company to
the effect that (x) the representations and warranties of the Company contained
herein are true and correct as of such date and the Company has complied with
all of the agreements and satisfied all of the conditions on its part to be
performed or satisfied on or before such date and (y) none of the conditions
referred to in Section 5(a) exist.
The officer signing and delivering such certificate may rely upon the
best of his knowledge as to proceedings threatened.
(d) On the date hereof and, if required by any Terms Agreement, on
the corresponding Settlement Date, the Company's independent public accountants
shall have furnished to the Agents a letter or letters, dated as of the date
hereof or such Settlement Date, as the case may be, in form and substance
satisfactory to the Agents containing statements and information of the type
ordinarily included in accountant's "comfort letters" to underwriters with
respect to the financial statements and certain financial information contained
in or incorporated by reference into the Registration Statement and the
Prospectus.
(e) On the date hereof and on each Settlement Date, the Company
shall have furnished to the Agents such appropriate further information,
certificates, documents and opinions as the Agents may reasonably request or as
the Agents' counsel may require for purposes of rendering the opinion referred
to in Section 5(b)(B) and in order to evidence the accuracy and completeness of
any of the representations and warranties, or the fulfillment of any of the
conditions, herein contained; and all proceedings taken by the Company in
connection with the issuance and sale of Notes as herein contemplated shall be
satisfactory in form and substance to each Agent and its counsel.
(f) (i) Neither the Company nor any of its subsidiaries shall
have sustained since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus, as amended or
supplemented, any loss or interference with its business from fire, explosion,
flood or other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise than as set
forth or contemplated in the Prospectus, as amended or supplemented, and (ii)
since the respective dates as of which information is given in the Prospectus,
as amended or supplemented, there shall not have been any material change in
the capital stock, outstanding interests (other than through exercise of
employee stock options) or long-term debt of the Company and any of its
subsidiaries, taken as a whole (other than borrowings and repayments made in
the ordinary course of business), or any change, or any development involving a
prospective change, in or affecting the general affairs, management, financial
position, stockholders equity or results of operations of the Company and its
subsidiaries, otherwise than as set forth or contemplated in the Prospectus,
the effect of which, in any such case described in clause (i) or (ii), is in
your reasonable judgment so material and adverse as to make it impracticable or
inadvisable to proceed with the public offering or delivery of the Notes on the
terms and in the manner contemplated in the Prospectus, as amended or
supplemented;
21
<PAGE> 22
(g) Subsequent to the date of any Terms Agreement relating to the
Notes, no downgrading shall have occurred in the rating accorded the Company's
debt securities by any "nationally recognized statistical rating organization,"
as that term is defined by the SEC for purposes of Rule 436(g)(2) under the
Securities Act;
(h) Subsequent to the date of any Terms Agreement relating to the
Notes, there shall not have occurred any of the following: (i) a suspension or
material limitation in trading in securities generally on the New York Stock
Exchange; (ii) a general moratorium on commercial banking activities in New
York declared by either federal or New York State authorities; or (iii) the
engagement by the United States in hostilities that have resulted in the
declaration, on or after the date of such Terms Agreement, of a national
emergency or war if the effect of any such event specified in this clause
(iii), in your reasonable judgment, makes it impracticable or inadvisable to
proceed with the public offering or the delivery of the Notes on the terms and
in the manner contemplated in the Prospectus, as amended or supplemented; and
If any condition specified in this Section 5 shall not have been
fulfilled when and as required to be fulfilled, the Agents may terminate this
Agreement by notice to the Company at any time and any such termination shall
be without liability to the Company, except that the provisions of Sections
3(i), 4, 7, 8, 11, 12, and 15 shall remain in effect.
6. Additional Agreements of the Company. (a) Each time that (i)
the Registration Statement or the Prospectus shall be amended or supplemented
(other than by an amendment or supplement providing solely for a change in the
interest rates of Notes or for a change the Agents deem to be immaterial, and,
unless the Agents shall otherwise specify, other than by an amendment or
supplement which relates exclusively to an offering of debt securities other
than the Notes) or (ii) there is filed with the SEC any document incorporated
by reference into the Prospectus (other than any Current Report on Form 8-K
relating exclusively to the issuance of debt securities under the Registration
Statement, unless the Agents shall otherwise specify) or (iii) (if required
pursuant to the terms of an agreement by an Agent to purchase Notes as
principal) the Company sells Notes to an Agent pursuant to an agreement by such
Agent to purchase Notes as principal or (iv) the Company sells Notes in a form
not previously certified to the Agents by the Company, the Company shall
furnish or cause to be furnished to each Agent forthwith a certificate dated
the date of filing with the SEC of such supplement or document, the date of
effectiveness of such amendment, or the date of such sale, as the case may be,
in form satisfactory to each Agent to the effect that the statements contained
in the certificate referred to in Section 5(c) hereof which were last furnished
to such Agent are true and correct at the time of such amendment, supplement,
filing or sale, as the case may be, as though made at and as of such time
(except that such statements shall be deemed to relate to the Registration
Statement and the Prospectus as amended and supplemented to such time) or, in
lieu of such certificate, a certificate of the same tenor as the certificate
referred to in said Section 5(c), modified as necessary to relate to the
Registration Statement and the Prospectus as amended and supplemented to the
time of delivery of such certificate.
22
<PAGE> 23
(b) Each time that (i) the Registration Statement or the
Prospectus shall be amended or supplemented (other than by an amendment or
supplement providing solely for a change in the interest rates of the Notes or
for a change the Agents deem to be immaterial, and, unless the Agents shall
otherwise specify, other than by an amendment or supplement which relates
exclusively to an offering of debt securities other than the Notes) or (ii)
there is filed with the SEC any document incorporated by reference into the
Prospectus (other than any Current Report on Form 8-K or Quarterly Report on
Form 10-Q, unless the Agents shall otherwise specify), or (iii) (if required
pursuant to the terms of an agreement by an Agent to purchase Notes as
principal) the Company sells Notes to an Agent pursuant to an agreement by such
Agent to purchase Notes as principal or (iv) the Company sells Notes in a form
not previously certified to the Agents by the Company, the Company shall
furnish or cause to be furnished forthwith to each Agent and to its counsel a
written opinion of Thompson & Knight, independent counsel for the Company or
other counsel satisfactory to the Agents, and an opinion of Raymond G. Smerge,
Executive Vice President, Chief Legal Officer and Secretary of the Company,
dated the date of filing with the SEC of such supplement or document, the date
of effectiveness of such amendment, or the date of such sale, as the case may
be, in form and substance satisfactory to the Agents, of the same tenor as
their respective opinions referred to in Section 5(b)(A) hereof, but modified,
as necessary, to relate to the Registration Statement and the Prospectus as
amended and supplemented to the time of delivery of such opinion; or, in lieu
of such opinion, counsel last furnishing such opinion to the Agents shall
furnish the Agents with a letter to the effect that the Agents may rely on such
last opinion to the same extent as though it was dated the date of such letter
authorizing reliance (except that statements in such last opinion shall be
deemed to relate to the Registration Statement and the Prospectus as amended
and supplemented to the time of delivery of such letter authorizing reliance).
(c) Each time that (i) the Registration Statement or the
Prospectus shall be amended or supplemented to include additional financial
information unless the Agents shall otherwise specify, other than an amendment
or supplement which relates exclusively to an offering of debt securities other
than the Notes or there is filed with the SEC any document incorporated by
reference into the Prospectus which contains additional financial information
or (ii) (if required pursuant to the terms of any agreement by an Agent to
purchase Notes as principal) the Company sells Notes to an Agent pursuant to
any agreement by such Agent to purchase Notes as principal, the Company shall
cause its independent public accountants forthwith to furnish each Agent a
letter, dated the date of effectiveness of such amendment, supplement or
document with the SEC, or the date of such sale, as the case may be, in form
satisfactory to each Agent, of the same tenor as the letter referred to in
Section 5(d) hereof but modified to relate to the Registration Statement and
the Prospectus, as amended and supplemented to the date of such letter.
7. Indemnification.
(a) Indemnification of the Agent. The Company agrees to indemnify
and hold each Agent and each person, if any, who controls each Agent within the
meaning of Section 15 of the Securities Act harmless as follows:
23
<PAGE> 24
(i) against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, arising out of any untrue
statement or alleged untrue statement of a material fact contained in
the Registration Statement (or any amendment thereto), or the omission
or alleged omission therefrom of a material fact necessary to make the
statements therein not misleading or arising out of any untrue
statement or alleged untrue statement of a material fact contained in
the Prospectus (or any amendment or supplement thereto) or the
omission or alleged omission therefrom of a material fact necessary to
make the statements therein, in light of the circumstances under which
they were made, not misleading, unless such untrue statement or
omission or such alleged untrue statement or omission was made in
reliance upon and in conformity with information furnished to the
Company in writing by each Agent expressly for use in the Registration
Statement (or any amendment thereto) or the Prospectus (or any
amendment or supplement thereto) or in reliance upon the Trustee's
Statement of Eligibility and Qualification under the Trust Indenture
Act of 1939 filed as an exhibit to the Registration Statement;
(ii) against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, to the extent of the
aggregate amount paid in settlement of any litigation, or
investigation or proceeding by any governmental agency or body,
commenced or threatened, or of any claim whatsoever based upon any
such untrue statement or omission, or any such alleged untrue
statement or omission, if such settlement is effected with the written
consent of the Company; and
(iii) against any and all expense whatsoever, as
incurred (including the fees and disbursements of counsel chosen by
the Agents) reasonably incurred in investigating, preparing or
defending against any litigation, or investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission, to the extent that any such
expense is not paid under (i) or (ii) above.
(b) Indemnification of Company. Each Agent agrees, severally and
not jointly, to indemnify and hold harmless the Company, its directors, each of
its officers who signed the Registration Statement, and each person, if any,
who controls the Company within the meaning of Section 15 of the Securities Act
against any and all loss, liability, claim, damage and expense described in the
indemnity contained in subsection (a) of this Section, as incurred, but only
with respect to untrue statements or omissions, or alleged untrue statements or
omissions, made in the Registration Statement (or any amendment thereto) or the
Prospectus (or any amendment or supplement thereto) in reliance upon and in
conformity with information furnished to the Company in writing by the Agents
expressly for use in the Registration Statement (or any amendment thereto) or
the Prospectus (or any amendment or supplement thereto).
(c) General. Each indemnified party shall give prompt notice to
each indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder, but failure to so notify an indemnifying
party shall not relieve such indemnifying party from any liability which it may
have otherwise than on account of this indemnity agreement. An indemnifying
party may participate at its own expense and, to the extent that it
24
<PAGE> 25
wishes, jointly with any other indemnifying party, similarly notified, in the
defense of such action with counsel chosen by it (who shall not, except with
the consent of the indemnified party, be counsel to such indemnified party).
In no event shall the indemnifying parties be liable for the fees and expenses
of more than one counsel (in addition to any local counsel) for all indemnified
parties in connection with any one action or separate but similar or related
actions in the same jurisdiction arising out of the same general allegations or
circumstances. No indemnifying party shall, without the prior written consent
of the indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever in respect of which indemnification or contribution could be sought
under this Section 7 or Section 8 hereof (whether or not the indemnified
parties are actual or potential parties thereto), unless such settlement,
compromise or consent (i) includes an unconditional release of each indemnified
party from all liability arising out of such litigation, investigation,
proceeding or claim and (ii) does not include a statement as to or an admission
of fault, culpability or a failure to act by or on behalf of any indemnified
party.
8. Contribution.
(a) If the indemnification provided for in Section 7 is
unavailable to an indemnified party or insufficient in respect of any losses,
claims, damages or liabilities referred to therein in connection with any
offering of Notes, then each indemnifying party under such paragraph, in lieu
of indemnifying such indemnified party thereunder, shall contribute to the
amount paid or payable by such indemnified party as a result of such losses,
claims, damages or liabilities (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand and the
Agents on the other from the offering of such Notes or (ii) if the allocation
provided by clause (i) is not permitted by applicable law, in such proportion
as is appropriate to reflect not only the relative benefits referred to in
clause (i) above but also the relative fault of the Company on the one hand and
the Agents on the other in connection with the statements or omissions that
resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative benefits received by the
Company on the one hand and the Agents on the other in connection with the
offering of such Notes shall be deemed to be in the same respective proportions
as the total net proceeds from the offering of such Notes (before deducting
expenses) received by the Company bear to the total discounts and commissions
received by the Agents in respect thereof. The relative fault of the Company
and of each Agent shall be determined by reference to, among other things,
whether the untrue or allegedly untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company on the one hand or by the Agents on the other and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
(b) The Company and each Agent agree that it would not be just or
equitable if contribution pursuant to this Section 8 were determined by pro
rata allocation or by any other method of allocation that does not take account
of the equitable considerations referred to in paragraph (a) above. The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages and liabilities referred to in paragraph (a) above shall be deemed to
25
<PAGE> 26
include, subject to the limitations set forth above, any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 8, no Agent shall be required to contribute any
amount in excess of the amount by which the total price at which the Notes
referred to in paragraph (a) above that were offered and sold to the public
through such Agent exceeds the amount of any damages that such Agent would have
otherwise been required to pay by reason of such untrue or allegedly untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. Each Agent's obligation to contribute pursuant
to this Section 8 is several, in proportion to the respective principal amounts
of Notes purchased or sold by each Agent, and not joint. The remedies provided
for in this Section 8 are not exclusive and shall not limit any rights or
remedies which may otherwise be available to any indemnified party at law or in
equity.
9. Termination.
(a) This Agreement may be terminated at any time either by the
Company or by an Agent with respect to such Agent upon the giving of 30 days'
written notice of such termination to the other party hereto. The termination
of this Agreement shall not require termination of any agreement by an Agent to
purchase Notes as principal, and the termination of any such agreement shall
not require termination of this Agreement.
(b) An Agent may terminate any agreement to purchase Notes from
the Company as principal, immediately upon notice to the Company, at any time
prior to the Settlement Date relating thereto, if (i) there has been, since the
date of such agreement or since the respective dates as of which information is
given in the Prospectus, any material adverse change, or any development
involving a prospective material adverse change, in the condition, financial or
otherwise, or in the earnings, business or operations of the Company and its
subsidiaries, taken as a whole, whether or not arising in the ordinary course
of business, or (ii) a stop order suspending the effectiveness of the
Registration Statement shall have been issued or a proceeding for that purpose
shall have been initiated or threatened by the SEC, or (iii) there shall have
occurred any (A) suspension or material limitation of trading generally on or
by, as the case may be, the New York Stock Exchange, the American Stock
Exchange, the National Association of Securities Dealers, Inc., the Chicago
Board Options Exchange, the Chicago Mercantile Exchange or the Chicago Board of
Trade, (B) suspension of trading of any securities of the Company on any
exchange or in the over-the-counter market, (C) declaration of a general
moratorium on commercial banking activities in New York by either federal, New
York State or Texas authorities or declaration of a banking moratorium by the
relevant authorities in the country or countries of origin of foreign currency
or currencies in which the Notes are denominated or payable or (D) any outbreak
or escalation of hostilities or any change in financial markets or any calamity
or crisis that, in an Agent's reasonable judgment, is material and adverse and,
in the case of any of the events described in clauses (iii)(A) through (D),
such event, singly or together with any other such event, makes it, in an
Agent's reasonable judgment, impracticable to market the Notes or to enforce
contracts for the sale of the Notes, or (iv) the rating assigned by any
"nationally recognized statistical rating organization", as such term is
defined for purposes of
26
<PAGE> 27
Rule 436(g)(2) under the Securities Act, to any debt securities of the Company
as of the date of such agreement shall have been lowered since that date or if
any such rating organization shall have publicly announced that it has under
surveillance or review, with possible negative implications, its rating of any
debt securities of the Company, or (v) there shall have come to an Agent's
attention any facts that would cause such Agent to believe that the Prospectus,
at the time it was required to be delivered to a purchaser of Notes, included
an untrue statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in light of the
circumstances existing at the time of such delivery, not misleading. As used
in this Section, the term "Prospectus" means the Prospectus in the form first
provided to each Agent for use in confirming sales of the related Notes.
(c) In the event of any such termination, neither the Company nor an
Agent as to which this Agreement has been terminated will have any liability to
each other, except that (i) an Agent terminating this Agreement shall be
entitled to any commission earned in accordance with the fifth paragraph of
Section 2(b) hereof, (ii) if at the time of termination (a) an Agent shall own
any Notes purchased pursuant to any agreement by such Agent to purchase Notes
as principal with the intention of reselling them or (b) an offer to purchase
any of the Notes has been accepted by the Company but the time of delivery to
the purchaser or his agent of the Note or Notes relating thereto has not
occurred, the covenants set forth in Sections 2(d), 3 and 6 hereof shall remain
in effect until such Notes are so resold or delivered, as the case may be, and
(iii) the provisions of Sections 3(h) and 4 hereof, the indemnity and
contribution agreements set forth in Sections 7 and 8 hereof, and the
provisions of Sections 11, 13 and 15 hereof shall remain in effect.
10. Failure to Purchase. If the Company and two or more Agents
enter into an agreement pursuant to which such Agents agree to purchase Notes
from the Company as principal and one or more Agents shall fail at the relevant
Settlement Date to purchase the Notes which an Agent is obligated to purchase
(the "Defaulted Notes"), then the nondefaulting Agents shall have the right,
within 24 hours thereafter, to make arrangements for one Agent or one or more
other Agents to purchase all, but not less than all, of the Defaulted Notes in
such amounts as may be agreed upon and upon the terms herein set forth;
provided, however, that if such arrangements shall not have been completed
within such 24-hour period, then:
(A) if the aggregate principal amount of Defaulted
Notes does not exceed 10% of the aggregate principal amount of
Notes to be so purchased by all of such Agents on such
Settlement Date, the nondefaulting Agents shall be obligated,
severally and not jointly, to purchase the full amount thereof
in the proportions that their respective initial purchase
obligations bear to the purchase obligations of all
nondefaulting Agents; or
(B) if the aggregate principal amount of Defaulted
Notes exceeds 10% of the aggregate principal amount of Notes
to be so purchased by all of such Agents on such Settlement
Date, such agreement shall terminate without liability on the
part of any nondefaulting Agent.
27
<PAGE> 28
No action taken pursuant to this paragraph shall relieve any
defaulting Agent from liability in respect of its default. In the event of any
such default which does not result in a termination of such agreement, either
the nondefaulting Agents or the Company shall have the right to postpone the
relevant Settlement Date for a period not exceeding seven days in order to
effect any required changes in the Registration Statement or the Prospectus or
in any other documents or arrangements.
11. Representations and Indemnities to Survive. The respective
indemnity and contribution agreements, representations, warranties and other
statements of the Company, its officers and each Agent set forth in or made
pursuant to this Agreement or any agreement by an Agent to purchase Notes as
principal will remain in full force and effect, regardless of any termination
of this Agreement or any such agreement, any investigation made by or on behalf
of an Agent or the Company or any of the officers, directors or controlling
persons referred to in Sections 7 and 8 and delivery of and payment for the
Notes.
12. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to each Agent, will be mailed,
delivered or telefaxed and confirmed to each Agent at:
First Chicago Capital Markets, Inc.
1 First National Plaza
Chicago, Illinois 60670
Attention: Corporate Securities Structuring
Telephone: 312-732-8270
Telecopy: 312-732-4172
Credit Suisse First Boston Corporation
11 Madison Avenue
New York, N.Y. 10010
Attention: Short and Medium Term Finance
Telephone: 212-325-7198
Telecopy: 212-325-8183
Morgan Stanley & Co. Incorporated
1585 Broadway
2nd Floor
New York, N.Y. 10036
Attention: Manager - Continuously Offered Products
Telephone: 212-761-2000
Telecopy: 212-761-0780
with a copy to:
Morgan Stanley & Co. Incorporated
1585 Broadway
34th Floor
New York, N.Y. 10036
Attention: Peter Cooper, Investment Banking Information Center
Telephone: 212-761-8385
Telecopy: 212-761-0260
28
<PAGE> 29
NationsBanc Montgomery Securities LLC
100 North Tryon Street
Mail Code NC1-007-07-01
Charlotte, North Carolina 28255
Attention: Debt Finance Group/Medium Term Notes
Telephone: 704-386-7800
Telecopy: 704-388-9939
Warburg Dillon Read LLC
677 Washington Blvd.
Stamford, CT 06901
Attention: Debt Syndicate
Telephone: 203-719-1342
Telecopy: 203-719-7139
or, if sent to the Company, will be mailed, delivered or telefaxed and
confirmed to it at:
Centex Corporation,
2728 North Harwood Street,
Dallas, Texas 75201,
Attention: Vicki Roberts
Telephone: 214-981-6533
Telecopy: 214-981-6858
13. Successors. This Agreement and any Terms Agreement will inure
to the benefit of and be binding upon each of the parties hereto and their
respective successors and the officers, directors and controlling persons
referred to in Sections 6 and 7 and their heirs and legal representatives, any
legal or equitable right, remedy or claim under or in respect of this Agreement
or any Terms Agreement or any provision herein or therein contained. This
Agreement and any applicable Terms Agreement and all conditions and provisions
hereof and thereof are intended to be for the sole and exclusive benefit of the
parties hereto and respective successors and said controlling persons and
officers and directors and their heirs and legal representatives, and for the
benefit of no other person, firm or corporation. No purchaser of Notes shall
be deemed to be a successor by reason merely of such purchase.
14. Counterparts. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument.
15. Applicable Law. This Agreement and all the rights and
obligations of the parties shall be governed by and construed in accordance
with the laws of the State of New York applicable to agreements made and to be
performed in such State.
16. Headings. The headings of the sections of this Agreement have
been inserted for convenience of reference only and shall not be deemed a part
of this Agreement.
29
<PAGE> 30
If the foregoing is in accordance with your respective understandings
of our agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this instrument and your respective acceptances shall represent a
binding agreement between the Company and each Agent.
Very truly yours,
CENTEX CORPORATION
By:
--------------------------
Title:
The foregoing Agreement
is hereby confirmed
and accepted as of the
date first above written.
FIRST CHICAGO CAPITAL MARKETS, INC.
By
Title:
CREDIT SUISSE FIRST BOSTON CORPORATION
By
Title:
MORGAN STANLEY & CO. INCORPORATED
By
Title:
NATIONSBANC MONTGOMERY SECURITIES LLC
By
Title:
WARBURG DILLON READ LLC
By
Title:
30
<PAGE> 31
EXHIBIT A
CENTEX CORPORATION
MEDIUM-TERM NOTES, SERIES A
TERMS AGREEMENT
_____________________ 19__
Centex Corporation
2728 North Harwood Street
Dallas, Texas 75201
Attention:
Re: Distribution Agreement dated October 21, 1998
(the "Distribution Agreement")
Subject to the terms and conditions set forth or incorporated
by reference herein, the undersigned agrees to purchase $_____________ (or
principal amount of foreign currency or composite currency) aggregate principal
amount of your Medium-Term Notes having the following terms:
Interest Rate or Formula:
If Fixed Rate Note,
Interest Rate:
Default Rate:
Interest Payment Dates:
If Floating Rate Note,
Interest Rate Basis(es):
If LIBOR,
[ ] LIBOR Reuters
[ ] LIBOR Telerate
Index Currency:
If CMT Rate,
Designated CMT Telerate Page:
Designated CMT Maturity Index:
Index Maturity:
Spread and/or Spread Multiplier, if any:
Initial Interest Rate, if any:
Initial Interest Reset Date:
Interest Reset Dates:
Interest Payment Dates:
Default Rate:
Maximum Interest Rate, if any:
Minimum Interest Rate, if any:
Fixed Rate Commencement Date, if any:
Fixed Interest Rate, if any:
Calculation Agent:
31
<PAGE> 32
If Redeemable:
Initial Redemption Date:
Initial Redemption Percentage:
Annual Redemption Percentage Reduction, if any:
If Repayable:
Optional Repayment Date(s):
Original Issue Date:
Stated Maturity Date:
Specified Currency:
Authorized Denomination:
Purchase Price: ___%, plus accrued interest, if any, from ___________
Settlement Date and Time:
Additional/Other Terms:
The certificates, opinions and letters referred to in Sections
6(a), (b) and (c) of the Distribution Agreement [will/will not] be required.
All provisions contained in the Distribution Agreement, dated
October 21, 1998, between Centex Corporation and _________________________ are
herein incorporated by reference in their entirety and shall be deemed to be a
part of this Terms Agreement to the same extent as if such provisions had been
set forth in full here in.
[Name of Agent]
By
Name:
Title:
Accepted:
CENTEX CORPORATION
By
Name:
Title:
32
<PAGE> 33
SCHEDULE I
<TABLE>
<CAPTION>
Percent of Outstanding Equity Interests Owned
Subsidiary Directly or Indirectly by Centex Corporation
- ---------- ----------------------------------------------
<S> <C>
ADFINET, Inc. 80.1%
Advanced Financial Technology, Inc. 80.1%
Advanced Protection Systems, Inc. 84.75%
Cavco Industries, LLC 80.5%
CAV Holdings, LLC 80.5%
Centex-Aim Construction, L.L.C. 80%
Centex-Rooney/HLM Correctional Design/Builders, L.C. 90%
Centex-Rooney/RS&H Design Builders, L.C. 90%
Centex Seismic Services, Inc. 95%
Charles Church Homes Limited 50%
CRG Holdings, LLC 80.5%
CSL Agnews Development, LLC ?
Loan Processing Technologies, Inc. 80.1%
Parcel E, LLC 75%
Residential Contractors, Inc. 49%
The Student Communities Group, L.C. 50%
Wayne Homes, LLC 97%
Westfest, LLC 50%
Centex Construction Products, Inc. 56.4%
Wholly-owned subsidiaries of Centex Construction Products, Inc.:
CCP-Cement Company
Mountain Cement Company
Nevada Cement Company
Texas Cement Company
Western Cement Company of California
CCP Concrete/Aggregates Company
BP Sand & Gravel, Inc.
Centex Materials, Inc.
Mathews Readymix, Inc.
Western Aggregates, Inc.
CCP Gypsum Company
American Gypsum Company
CEGC Holding Company
Centex Eagle Gypsum Company
Centex Eagle Gypsum Company, L.L.C.
M&W Drywall Supply Company
CCP Land Company
Centex Cement Corporation
</TABLE>
33
<PAGE> 34
EXHIBIT B
CENTEX CORPORATION
ADMINISTRATIVE PROCEDURES
FOR FIXED RATE, FLOATING RATE AND REMARKETED
MEDIUM TERM NOTES
(DATED AS OF OCTOBER 21, 1998)
Fixed Rate Medium Term Notes (the "Fixed Rate Notes"), Floating Rate
Medium Term Notes (the "Floating Rate Notes") and Remarketed Medium Term Notes
(the "Remarketed Notes"), all Due Nine Months or More From Date of Issue
(collectively, the "Notes"), are to be offered from time to time by Centex
Corporation, a Nevada corporation (the "Company"), to or through First Chicago
Capital Markets, Inc., Credit Suisse First Boston Corporation, Morgan Stanley
Dean Witter, NationsBanc Montgomery Securities LLC and Warburg Dillon Read LLC
(individually, an "Agent" and collectively, the "Agents"), pursuant to a
Distribution Agreement dated October 21, 1998 (the "Distribution Agreement")
between the Company and the Agents. The Distribution Agreement provides both
for the sale of Notes by the Company to one or more of the Agents as principal
for resale to investors and other purchasers and for the sale of Notes by the
Company directly to investors (as may from time to time be agreed to by the
Company and the related Agent or Agents) in which case the Agents will act as
agents of the Company in soliciting Note purchases. Each sale of Notes will be
made in accordance with terms agreed upon by the related Agent or Agents and
the Company in a Terms Agreement in the form included in Exhibit A to the
Distribution Agreement. Only those provisions in these Administrative
Procedures that are applicable to the particular role that an Agent will
perform shall apply to the offer and sale of the relevant Notes.
The Notes will be issued as a series of debt securities pursuant to an
Indenture, dated as of October 1, 1998, as supplemented by a first Supplemental
Indenture thereto dated as of October 1, 1998, as each may be amended,
supplemented or modified from time to time (the "Indenture"), between the
Company and Chase Bank of Texas, National Association, as trustee with respect
to the Notes (together with any successor in such capacity, the "Trustee"). In
accordance with the provisions of the Indenture, the Trustee will act as
Authenticating Agent, Transfer Agent and Paying Agent with respect to the
Notes. Unless the context otherwise requires, references herein to the
Indenture include the form of Note adopted in accordance with the terms of the
Indenture.
Registration Statements on Form S-3 (No. 33-61223 and No. 333-65217)
(together, the "Registration Statement") with respect to debt securities,
including the Notes, have been filed under the Securities Act of 1933, as
amended (the "1933 Act"), with the Securities and Exchange Commission (the
"Commission") and declared effective on August 3, 1995 and October 3, 1998,
respectively. The most recent base Prospectus included in the Registration
Statement, as supplemented by the Prospectus Supplement dated October 21, 1998
with respect to the Notes, is
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<PAGE> 35
herein referred to as the "Prospectus". The most recent supplement to the
Prospectus setting forth the purchase price, interest rate and other terms of
the Notes (as applicable) is herein referred to as the "Pricing Supplement".
The Notes will either be issued in (a) fully registered book-entry
form and represented by one or more fully registered Notes without coupons
(each, a "Global Note") delivered to the Trustee, as custodian for The
Depository Trust Company ("DTC"), and recorded in the book-entry system
maintained by DTC, or (b) in certificated form (each, a "Certificated Note")
delivered to the investor or other purchaser thereof or a person designated by
such investor or other purchaser. Owners of beneficial interests in Notes
issued in book-entry form will be entitled to physical delivery of Notes in
certificated form equal in principal amount to their respective beneficial
interests only upon certain limited circumstances described in the Prospectus.
As set forth in the Prospectus, the Company shall appoint one or more
remarketing agents (each, a "Remarketing Agent" and, collectively, the
"Remarketing Agents") with respect to the Remarketed Notes pursuant to a
remarketing agreement (the "Remarketing Agreement").
General procedures relating to the initial issuance of Notes are set
forth in Part I hereof. Certain procedures relating to the initial issuance of
Notes issued in book-entry form and for remarketing of Remarketed Notes are set
forth in Part II hereof. Procedures for Certificated Notes are set forth in
Part III hereof. Certain additional procedures relating to the remarketing of
Remarketed Notes are set forth in Part IV hereof. Procedures relating to the
payment of principal and interest are set forth in Part V hereof.
In the event of any discrepancy between these Administrative
Procedures and the Distribution Agreement, the Remarketing Agreement, the
Letter of Representations or the Indenture, the latter documents shall govern.
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<PAGE> 36
PART I: PROCEDURES FOR INITIAL ISSUANCE OF NOTES
Date of Issuance/ Each Note will be dated as of the date of
Authentication: its authentication by the Trustee. Each Note
shall also bear an original issue date
(each, an "Original Issue Date"). The
Original Issue Date shall remain the same
for all Notes subsequently issued upon
transfer, exchange or substitution of an
original Note regardless of their dates of
authentication.
Maturities: Each Note will mature on a date nine months
or more from its Original Issue Date (the
"Stated Maturity Date") selected by the
investor or other purchaser and agreed to by
the Company.
Registration: Each Note will be issued as a Book-Entry
Note represented by one or more fully
registered Global Securities or as a fully
registered Certificated Note; except that
Remarketed Notes will be issued only as
Book-Entry Notes.
Denominations: Unless otherwise provided in the applicable
Pricing Supplement, the Notes will be issued
in denominations of $1,000 and integral
multiples thereof; except that Remarketed
Notes will be issued in minimum
denominations of $100,000 and integral
multiples of $1,000 in excess thereof.
Preparation of Pricing Supplement: If any offer to
purchase a Note is accepted by the Company,
the Company will promptly prepare a Pricing
Supplement reflecting the terms of such Note
and file such Pricing Supplement with the
Commission in accordance with Rule 424 under
the 1933 Act. Information to be included in
the Pricing Supplement shall include:
1. the name of the Company;
2. the title of the Notes;
3. the date of the Pricing Supplement and
the dates of the Prospectus and
Prospectus Supplement to which the
Pricing Supplement relates;
4. the name of the Offering Agent (as
hereinafter defined);
5. with respect to Notes sold to the Agent
as principal, whether such Notes will be
resold by the Offering
3
<PAGE> 37
Agent to investors and other purchasers
(i) at a fixed public offering price of a
specified percentage of their principal
amount, (ii) at varying prices related to
prevailing market prices at the time of
resale to be determined by the Offering
Agent or (iii) at 100% of their principal
amount;
6. with respect to Notes sold to an investor
or other purchaser through the Offering
Agent acting as agent for the Company,
whether such Notes will be sold at (i)
100% of their principal amount or (ii) at
a specified percentage of their principal
amount;
7. the Offering Agent's commission or
underwriting discount;
8. net proceeds to the Company;
9. any other provisions of the Notes
material to investors or other purchasers
of the Notes not otherwise specified in
the Prospectus.
One copy of such filed Pricing Supplement
will be sent by telecopy or overnight
express (for delivery as soon as practicable
following the trade, but in no event later
than 11:00 a.m. New York City time, on the
Business Day following the applicable trade
date) to the Trustee at 2200 Ross Avenue,
5th floor, Dallas, Texas 75201, Attention:
Michael Scrivner, telecopier: (214)
965-3577, and to the Agent that made or
presented the offer to purchase the
applicable Note (in such capacity, the
"Offering Agent") at the following
applicable address: if to First Chicago
Capital Markets, Inc., to: One First
National Plaza, Suite 0463, Chicago,
Illinois 60670, Attention: Evonne W. Taylor,
telecopier: (312) 732-4172; if to Credit
Suisse First Boston Corporation, to: 11
Madison Avenue, New York, New York 10010,
Attention: Helena Willner, telecopier: (212)
325-8183; if to Morgan Stanley Dean Witter,
to: 1585 Broadway, New York, New York 10036,
Attention: Harold Hendershot III,
telecopier: (212) 761-0783; if to
NationsBanc Montgomery Securities LLC, to :
Capital Market Services, 100 North Tyron
Street, NC1-007-07-01, Charlotte, North
Carolina 28255, Attention: Jennifer Arens,
telecopier: (704) 388-9939; if to Warburg
Dillon Read LLC, to: 535 Madison Avenue, New
York, New York 10022, Attention: Peter
Foote, telecopier: (203) 719-7139. For
4
<PAGE> 38
record keeping purposes, one copy of each
Pricing Supplement, as so filed, shall also
be mailed or telecopied to Milbank, Tweed,
Hadley & McCloy, 1 Chase Manhattan Plaza,
New York, New York 10005-1413, Attention:
Robert Williams, Esq.
In each instance that a Pricing Supplement
is prepared, the Offering Agent will provide
a copy of such Pricing Supplement to each
investor or purchaser of the relevant Notes
or its agent. Pursuant to Rule 434 ("Rule
434") under the 1933 Act, the Pricing
Supplement may be delivered separately from
the Prospectus. Outdated Pricing Supplements
(other than those retained for files) will
be destroyed.
Settlement: The receipt of immediately available funds
by the Company in payment for a Note and the
authentication and delivery of such Note
shall, with respect to such Note, constitute
"settlement." Offers accepted by the Company
will be settled in three Business Days, or
at a time as the purchaser, the applicable
Agent and the Company shall agree, pursuant
to the timetable for settlement set forth
below in Part II and in Part III hereof
under "Settlement Procedures" with respect
to Global Notes and Certificated Notes,
respectively (each such date fixed for
settlement is hereinafter referred to as a
"Settlement Date"). If procedures A and B of
the applicable Settlement Procedures with
respect to a particular offer are not
completed on or before the time set forth
under the "Settlement Procedures Timetable,"
such offer shall not be settled until the
Business Day next following the completion
of settlement procedures A and B or such
later date as the purchaser, the applicable
Agent and the Company shall agree.
The foregoing settlement procedures may be
modified, with respect to any purchase of
Notes by an Agent as principal, if so agreed
by the Company and such Agent.
Remarketing Settlement Procedures are set
forth in Part IV hereof under Settlement
Procedures for Remarketing.
Delivery of Prospectus and A copy of the most recent Prospectus
Applicable Pricing Supplement: covering the Notes and applicable Pricing
Supplement, which pursuant to Rule 434 may
be delivered separately from the Prospectus,
must accompany or precede the earlier of (a)
the written confirmation of a sale sent to
an investor or other purchaser
5
<PAGE> 39
or its agent and (b) the delivery of Notes
to an investor or other purchaser or its
agent. Delivery of the Prospectus and
Pricing Supplement shall be the
responsibility of the Offering Agent.
Acceptance and Rejection of If agreed upon by the Offering Agent and the
Offers from Solicitation as Company, then the Offering Agent acting
Offering Agents: solely as agent for the Company and not as
principal will solicit purchases of the
Notes. The Offering Agent will communicate
to the Company, orally or in writing, each
reasonable offer to purchase Notes solicited
by the Offering Agent on an agency basis,
other than those offers rejected by the
Offering Agent. The Offering Agent has the
right, in its discretion reasonably
exercised, to reject any proposed purchase
of Notes, as a whole or in part, and any
such rejection shall not be a breach of the
Offering Agent's agreement contained in the
Distribution Agreement. The Company has the
sole right to accept or reject any proposed
purchase of Notes, in whole or in part, and
any such rejection shall not be a breach of
the Company's agreement contained in the
Distribution Agreement. The Offering Agent
has agreed to make reasonable efforts to
assist the Company in obtaining performance
by each purchaser whose offer to purchase
Notes has been solicited by the Offering
Agent and accepted by the Company.
Authenticity of Signatures: The Offering Agent will have no obligation
or liability to the Company or the Trustee
in respect of the authenticity of the
signature of any officer, employee or agent
of the Company or the Trustee on any Note.
Documents Incorporated by The Company shall supply the Offering Agent
Reference: with an adequate supply of all documents
incorporated by reference in the
Registration Statement and the Prospectus.
6
<PAGE> 40
PART II: DTC PROCEDURES FOR INITIAL ISSUANCE OF
NOTES ISSUED IN BOOK-ENTRY FORM AND
FOR REMARKETING OF REMARKETED NOTES
In connection with the qualification of Notes issued initially in
book-entry form (each, a "Global Note") for eligibility in the book-entry
system maintained by DTC, the Trustee will perform the custodial, document
control and administrative functions described below, in accordance with its
respective obligations under a Letter of Representations from the Company and
the Trustee to DTC, dated October 26, 1998 (the "Letter of Representations"),
and a Certificate Agreement, dated October 26, 1998, between the Trustee and
DTC, as amended (the "Certificate Agreement"), and its obligations as a
participant in DTC, including DTC's Same-Day Funds Settlement System ("SDFS").
Issuance: All Fixed Rate Notes issued in book-entry
form having the same Original Issue Date,
Specified Currency, Interest Rate, Default
Rate, Interest Payment Dates, redemption
and/or repayment terms, if any, and Stated
Maturity Date (collectively, the "Fixed Rate
Terms") will be represented initially by a
single Global Note.
All Floating Rate Notes issued in book-entry
form having the same Original Issue Date,
Interest Category, formula for the
calculation of interest (including the
Interest Rate Basis or Bases, which may be
the CD Rate, the CMT Rate, the Commercial
Paper Rate, the Eleventh District Cost of
Funds Rate, the Federal Funds Rate, LIBOR,
the Prime Rate or the Treasury Rate or any
other interest rate basis or formula, and
Spread and/or Spread Multiplier, if any),
Day Count Convention, Initial Interest Rate,
Default Rate, Index Maturity (if
applicable), Minimum Interest Rate, if any,
Maximum Interest Rate, if any, redemption
and/or repayment terms, if any, Interest
Payment Dates, Initial Interest Reset Date,
Interest Reset Dates and Stated Maturity
Date (collectively, the "Floating Rate
Terms") will be represented initially by a
single Global Note.
For other variable terms with respect to the
Fixed Rate Notes and Floating Rate Notes,
see the Prospectus and the applicable
Pricing Supplement.
All Remarketed Notes issued having the same
Agent, Original Issue Date, Initial Interest
Rate, Initial Interest Rate Period and
Stated Maturity Date and other terms will be
represented initially by a single Global
Note in
7
<PAGE> 41
fully registered form without coupons. All
such initial terms will be recorded by the
Trustee on Annex A to such Global Note. The
terms of remarketing from time to time will
be evidenced by the records maintained by
the Trustee.
All Remarketed Notes subsequently remarketed
on the same Interest Adjustment Date in the
same Interest Rate Mode having the same
Interest Rate, Interest Rate Period and
other terms will be represented by a single
Global Note.
Each Global Note will be dated and issued as
of the date of its authentication by the
Trustee. The date from which interest will
begin to accrue with respect to each Note
will be (a) with respect to an original Note
(or any portion thereof), its Original Issue
Date and (b) with respect to any Note (or
portion thereof) issued subsequently upon
exchange of a Note or in lieu of a
destroyed, lost or stolen Note, the most
recent Interest Payment Date to which
interest has been paid or duly provided for
on the predecessor Note or Notes (or if no
such payment or provision has been made, the
Original Issue Date of the predecessor Note
or Notes), regardless of the date of
authentication of such subsequently issued
Note. No Global Note shall represent any
Note issued in certificated form.
Identification: The Company has arranged with the CUSIP
Service Bureau of Standard & Poor's Ratings
Services (the "CUSIP Service Bureau") for
the reservation of two series of CUSIP
numbers, each series consisting of
approximately 900 CUSIP numbers which have
been reserved for and relate to the Fixed
Rate and Floating Rate Global Notes in the
first instance, and to the Remarketed Global
Notes in the second instance. The Company
has delivered to each of the Trustee and DTC
such list of such CUSIP numbers.
The Trustee will assign CUSIP numbers to the
Global Notes upon initial issuance and upon
remarketing in the case of Remarketed Notes
as described above and then advise the
Company by telephone and facsimile
transmission or other electronic
transmission of such CUSIP number, after
receiving from the Company the information
specified in Part I above or, as the case
may be, Part IV below.
8
<PAGE> 42
DTC will notify the CUSIP Service Bureau
periodically of the CUSIP numbers that the
Trustee has assigned to the Global Notes.
The Trustee will notify the Company at any
time when fewer than 100 of the reserved
CUSIP numbers remain unassigned to the
Global Notes, and, if it deems necessary,
the Company will reserve and obtain
additional CUSIP numbers for assignment to
the Global Notes. Upon obtaining such
additional CUSIP numbers, the Company will
deliver a list of such additional numbers to
the Trustee and DTC.
Registration: Unless otherwise specified by DTC, each
Global Note will be registered in the name
of Cede & Co., as nominee for DTC, on the
register maintained by the Trustee under the
Indenture. The beneficial owner of a Global
Note (or one or more indirect participants
in DTC designated by such owner) will
designate one or more participants in DTC
(with respect to such Note, the "DTC
participants") to act as agent for such
beneficial owner in connection with the
book-entry system maintained by DTC, and DTC
will record in book-entry form, in
accordance with instructions provided by
such DTC participants, a credit balance with
respect to such Global Note in the account
of such DTC participants. The ownership
interest of such beneficial owner in such
Global Note will be recorded through the
records of such DTC participants or through
the separate records of such DTC
participants and one or more indirect
participants in DTC.
Transfers: Transfers of beneficial ownership interests
in a Global Note will be accomplished by
book entries made by DTC and, in turn, by
DTC participants (and in certain cases, one
or more indirect participants in DTC) acting
on behalf of beneficial transferors and
transferees of such Global Note.
Exchanges: The Trustee may deliver to DTC and the CUSIP
Service Bureau at any time a written notice
specifying (a) the CUSIP numbers of two or
more Global Notes outstanding on such date
that represent Global Notes having the same
Fixed Rate Terms, Floating Rate Terms or
Remarketed Terms, as the case may be (other
than Original Issue Dates), and for which
interest has been
9
<PAGE> 43
paid to the same date; (b) a date, occurring
at least 30 days after such written notice
is delivered and at least 30 days before the
next Interest Payment Date for the related
Notes issued in book-entry form, on which
such Global Notes shall be exchanged for a
single replacement Global Note; and (c) a
new CUSIP number, obtained from the Company,
to be assigned to such replacement Global
Note. Upon receipt of such a notice, DTC
will send to its Participants (including the
Trustee) a written reorganization notice to
the effect that such exchange will occur on
such date. Prior to the specified exchange
date, the Trustee will deliver to the CUSIP
Service Bureau written notice setting forth
such exchange date and the new CUSIP number
and stating that, as of such exchange date,
the CUSIP numbers of the Global Notes to be
exchanged will no longer be valid. On the
specified exchange date, the Trustee will
exchange such Global Notes for a single
Global Note bearing the new CUSIP number and
the CUSIP numbers of the exchanged Notes
will, in accordance with CUSIP Service
Bureau procedures, be canceled and not
immediately reassigned. Notwithstanding the
foregoing, if the Global Notes to be
exchanged exceed $200,000,000 (or the
equivalent thereof in one or more foreign or
composite currencies) in aggregate principal
amount, one replacement Note will be
authenticated and issued to represent each
$200,000,000 (or the equivalent thereof in
one or more foreign or composite currencies)
in aggregate principal amount of the
exchanged Global Notes and an additional
Global Note or Notes will be authenticated
and issued to represent any remaining
principal amount of such Global Notes. (See
"Denominations" below).
Denominations: Global Notes will not be denominated in
excess of $200,000,000 aggregate principal
amount. If one or more Notes are issued in
book-entry form in excess of $200,000,000
aggregate principal amount and would, but
for the preceding sentence, be represented
by a single Global Note, then one Global
Note will be issued to represent each
$200,000,000 in aggregate principal amount
of such Notes issued in book-entry form and
an additional Global Note or Notes will be
issued to represent any remaining aggregate
principal amount of such Note or Notes
issued in book-entry form. In such a case
each of the Global Notes representing Notes
issued in book-entry form shall be assigned
the same CUSIP number.
10
<PAGE> 44
Settlement Procedures: Settlement Procedures with regard to each
Note in book-entry form purchased by an
Agent, as principal, or sold by an Agent, as
agent of the Company, will be as follows:
A. The Offering Agent will advise the
Company by telephone, confirmed by
facsimile or appropriate electronic
media, of the following Settlement
information:
1. Principal amount of the Note.
2. (a) For Fixed Rate Notes:
(i) Interest Rate.
(ii) Interest Payment Dates.
(iii) Whether such Note is
being issued with
Original Issue Discount
and, if so, the terms
thereof.
(b) For Floating Rate Notes:
(i) Interest Category.
(ii) Interest Rate Basis or
Bases.
(iii) Initial Interest Rate.
(iv) Spread and/or Spread
Multiplier, if any.
(v) Initial Interest
Reset Date or Interest
Reset Date. (vi)
Interest Payment
Dates.
(vii) Index Maturity, if
any.
(viii) Maximum and/or Minimum
Interest Rates, if
any.
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<PAGE> 45
(ix) Day Count Convention.
(x) Calculation Agent.
(c) For Remarketed Notes:
(i) Initial Interest Rate.
(ii) Initial Interest Rate
Period.
(iii) First Interest Rate
Adjust-ment Date.
(iv) Interest Payment
Date(s) and Record
Dates in respect of
the Initial Interest
Rate Period.
(v) Redemption or
Repayment provisions,
if any, applicable to
the Initial Interest
Rate Period and the
name of the
Remarketing Agent, if
any.
3. Price to public, if any, of such
Note (or whether such Note is being
offered at varying prices relating
to prevailing market prices at time
of resale as determined by the
Offering Agent).
4. Trade Date.
5. Settlement Date (Original Issue
Date).
6. Stated Maturity Date.
7. Net proceeds to the Company.
8. The Offering Agent's commission or
underwriting discount.
9. Whether such Note is being sold to
the Offering Agent as principal or
to an investor or other purchaser
through the Offering Agent acting as
agent for the Company.
12
<PAGE> 46
10. Identification number of DTC
participant account maintained on
behalf of the Offering Agent.
11. Redemption provisions, if any.
12. Repayment provisions, if any.
13. Default Rate, if any.
14. Such other information specified
with respect to such Note.
B. The Trustee will assign a CUSIP number
to the Global Note representing such
Note (which CUSIP number assigned to
each Note shall consist of the base
issuer number and three additional
positions to form a CUSIP number unique
to that issuance) after being advised by
the Company by facsimile transmission or
other electronic transmission of the
above settlement information received
from the Offering Agent and the name of
the Offering Agent.
C. The Trustee will communicate to DTC and
the Offering Agent through DTC's
Participant Terminal System same-day
settlement issuance instructions
specifying the following settlement
information:
1. The information set forth in
Settlement Procedure A.
2. Identification numbers of the
participant accounts maintained by
DTC on behalf of the Trustee and the
Offering Agent.
3. Identification of the Note as a
Fixed Rate Note, Floating Rate Note
or a Remarketed Note.
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<PAGE> 47
4. Initial Interest Payment Date for
such Note, number of days by which
such date succeeds the related
record date for DTC purposes and, if
then calculable, the amount of
interest payable on such Interest
Payment Date.
5. CUSIP number of the Note.
6. Such other information as DTC may
require in accordance with its
procedures as in effect from time to
time in order to enter an SDFS
deliver order through DTC's
Participant Terminal System (i)
debiting such Note to the Trustee's
participant account and crediting
such Note to the participant account
of the Offering Agent maintained by
DTC and (ii) debiting the settlement
account of the Offering Agent and
crediting the settlement account of
the Trustee maintained by DTC, in an
amount equal to the price of such
Note less the Offering Agent's
discount or underwriting commission,
as applicable.
DTC will arrange for each pending
deposit message described above to
be transmitted to the CUSIP Service
Bureau (in the case of any
Remarketed Note, provided that the
Initial Interest Rate Period is more
than 270 days).
D. The Trustee will complete Annex A to the
Global Note and authenticate the
book-entry note representing the Note.
E. DTC will credit such Note to the
participant account of the Trustee
maintained by DTC.
F. The Trustee will enter the SDFS deliver
order to (i) debit the Note to the
Trustee's participant account and credit
such Note to the participant account of
the Offering Agent and (ii) debit the
settlement account of the Offering Agent
and credit the settlement account of the
Trustee. Any entry of such a deliver
order shall be deemed to
14
<PAGE> 48
constitute a representation and warranty
by the Trustee to DTC that (i) the
Global Note representing such Note has
been issued and authenticated and (ii)
the Trustee is holding such Global Note
pursuant to the Certificate Agreement.
G. In the case of Notes sold through the
Offering Agent, as agent, the Offering
Agent will enter an SDFS deliver order
through DTC's Participant Terminal
System instructing DTC (i) to debit such
Note to the Offering Agent's participant
account and credit such Note to the
participant account of the DTC
participants maintained by DTC, (ii) to
debit the settlement accounts of such
DTC participants and credit the
settlement account of the Offering Agent
maintained by DTC in an amount equal to
the initial public offering price of
such Note. In any case, the Offering
Agent, acting as agent or as principal,
will enter an SDFS deliver order
instructing DTC to debit the settlement
account of the Offering Agent and credit
the settlement account of the Trustee in
such amount less the Offering Agent's
discount or commission.
H. Transfers of funds in accordance with
SDFS deliver orders described in
Settlement Procedures F and G will be
settled in accordance with SDFS
operating procedures in effect on the
Settlement Date.
I. Upon receipt, the Trustee will pay the
Company, by wire transfer of immediately
available funds to an account specified
by the Company to the Trustee from time
to time, in the amount transferred to
the Trustee in accordance with
Settlement Procedure F.
J. The Trustee will send a copy of the
book-entry note representing the Note by
first class mail to the Company together
with a statement setting forth the
principal amount of Notes Outstanding as
of the related Settlement Date after
giving effect to such transaction and
all other offers to purchase Notes of
which the Company has
15
<PAGE> 49
advised the Trustee but which have not
yet been settled.
K. If the Note was sold through the
Offering Agent, as agent, the Offering
Agent will confirm the purchase of such
Note to the investor or other purchaser
either by transmitting to the DTC
participant with respect to such Note a
confirmation order through DTC's
Participant Terminal System or by
mailing a written confirmation to such
investor or other purchaser.
Settlement Procedures Timetable: For offers to purchase Notes accepted by the
Company, Settlement Procedures "A" through
"K" set forth above shall be completed as
soon as possible but not later than the
respective times (New York City time) set
forth below:
SETTLEMENT
PROCEDURE TIME
A. 11:00 a.m. on the trade date or
within one hour following the
trade
B. 12:00 noon on the trade date or
within one hour following the
trade
C. No later than the close of
business on the Business Day
prior to the trade date, in the
case of pending instructions, and
otherwise between 8:00 a.m. and
1:30 p.m. on the Settlement Date
D. 9:00 a.m. on Settlement Date
E. 3:00 p.m. on Settlement Date
F. 3:00 p.m. on Settlement Date
G. 3:00 p.m. on Settlement Date
H. 4:00 p.m. on Settlement Date
I.-K. 5:00 p.m. on Settlement Date
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<PAGE> 50
Settlement Procedure H is subject to
extension in accordance with any extension
of Fedwire closing deadlines and in the
other events specified in the SDFS operating
procedures in effect on the Settlement Date.
If settlement of a Note is rescheduled or
canceled, the Trustee will deliver to DTC,
through DTC's Participant Terminal System, a
cancellation message to such effect by no
later than 5:00 p.m., New York City time, on
the Business Day immediately preceding the
scheduled Settlement Date.
Failure to Settle: If the Trustee fails to enter an SDFS
deliver order with respect to a Note
pursuant to Settlement Procedure F, the
Trustee may deliver to DTC, through DTC's
Participant Terminal System, as soon as
practicable a withdrawal message instructing
DTC to debit such Note to the participant
account of the Trustee maintained at DTC.
DTC will process the withdrawal message,
provided that such participant account
contains a principal amount of the Notes
that is at least equal to the principal
amount to be debited. If withdrawal messages
are processed with respect to all the Notes
evidenced by a Global Note, the Trustee will
mark such Global Note "canceled", make
appropriate entries in its records and send
certificate of destruction of such canceled
Global Note to the Company. The CUSIP number
assigned to such Global Note shall, in
accordance with CUSIP Service Bureau
procedures, be canceled and not immediately
reassigned. If withdrawal messages are
processed with respect to a portion of the
Notes represented by a single Global Note,
the Trustee will exchange such Global Note
for two Notes, one of which shall represent
the Notes for which withdrawal messages are
processed and shall be canceled immediately
after issuance, and the other of which shall
represent the other Notes previously
represented by the surrendered Global Note
and shall bear the CUSIP number of the
surrendered Global Note.
In the case of any Note sold through the
Offering Agent, as agent, if the purchase
price for any Note is not timely paid to the
DTC participants with respect to such Note
by the beneficial investor or other
purchaser thereof (or a person, including an
indirect participant in DTC, acting on
behalf of such investor or other purchaser),
such DTC participants and, in turn, the
related Offering Agent may enter SDFS
deliver orders through DTC's Participant
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<PAGE> 51
Terminal System reversing the orders entered
pursuant to Settlement Procedures F and G,
respectively. Thereafter, the Trustee will
deliver the withdrawal message and take the
related actions described in the preceding
paragraph. If such failure shall have
occurred for any reason other than default
by the applicable Offering Agent to perform
its obligations hereunder or under the
Distribution Agreement, the Company will
reimburse such Offering Agent on an
equitable basis for its reasonable loss of
the use of funds during the period when the
funds were credited to the account of the
Company.
Notwithstanding the foregoing, upon any
failure to settle with respect to a Note,
DTC may take any actions in accordance with
its SDFS operating procedures then in
effect. In the event of a failure to settle
with respect to a Note that was to have been
represented by a Global Note also
representing other Notes, the Trustee will
provide, in accordance with Settlement
Procedure D, for the authentication and
issuance of a Global Note representing such
remaining Notes and will make appropriate
entries in its records.
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PART III: PROCEDURES FOR CERTIFICATED NOTES
Settlement Settlement Procedures with regard to each
Procedures: Certificated Note purchased by the Offering
Agent, as principal, or through the Offering
Agent, as agent, shall be as follows:
A. The Offering Agent will advise the
Company by telephone of the following
Settlement information with regard to
each Certificated Note:
1. Exact name in which the Certificated
Note(s) is to be registered (the
"Registered Owner").
2. Exact address or addresses of the
Registered Owner for delivery,
notices and payments of principal,
premium, if any, and interest.
3. Taxpayer identification number of
the Registered Owner.
4. Principal amount.
5. (a) Fixed Rate Notes:
(i) Interest Rate.
(ii) Interest Payment Dates.
(iii) Whether such Note is
being issued with
Original Issue Discount
and, if so, the terms
thereof.
(b) Floating Rate Notes:
(i) Interest Category.
(ii) Interest Rate Basis or
Bases.
(iii) Initial Interest Rate.
(iv) Spread and/or Spread
Multiplier, if any.
(v) Initial Interest Reset
Date and Interest Reset
Dates.
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<PAGE> 53
(vi) Interest Payment Dates.
(vii) Index Maturity, if any.
(viii) Maximum and/or Minimum
Interest Rates, if any.
(ix) Day Count Convention.
(x) Calculation Agent.
6. Price to public of such Certificated
Note (or whether such Note is being
offered at varying prices relating
to prevailing market prices at time
of resale as determined by the
Offering Agent).
7. Trade Date.
8. Settlement Date (Original Issue
Date).
9. Stated Maturity Date.
10. Redemption provisions, if any.
11. Repayment provisions, if any.
12. Default Rate, if any.
13. Net proceeds to the Company.
14. The Offering Agent's discount or
commission.
15. Whether such Note is being sold to
the Offering Agent as principal or
to an investor or other purchaser
through the Offering Agent acting as
agent for the Company.
16. Such other information specified
with respect to such Note (whether
by Addendum or otherwise).
B. After receiving such settlement
information from the Offering Agent, the
Company will advise the Trustee of the
above settlement information by
facsimile transmission confirmed by
telephone. The Company will cause the
Trustee to issue, authenticate and
deliver the Certificated Note.
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<PAGE> 54
C. The Trustee will complete the
Certificated Note in the form approved
by the Company and the Offering Agent,
and will make three copies thereof
(herein called "Stub 1", "Stub 2" and
"Stub 3"):
1. Certificated Note with the Offering
Agent's confirmation, if traded on a
principal basis, or the Offering
Agent's customer confirmation, if
traded on an agency basis.
2.Stub 1 for Trustee.
3. Stub 2 for Offering Agent.
4. Stub 3 for the Company.
D. With respect to each trade, the Trustee
will deliver the Certificated Note and
Stub 2 thereof to the Offering Agent at
the following applicable address: if to
First Chicago Capital Markets, Inc., to:
One First National Plaza, Suite 0463,
Chicago, Illinois 60670, Attention:
Evonne W. Taylor, telecopier: (312)
732-4172; if to Credit Suisse First
Boston Corporation, to: 11 Madison
Avenue, New York, New York 10010,
Attention: Helena Willner, telecopier:
(212) 325-8183; if to Morgan Stanley
Dean Witter, to: 1585 Broadway, New
York, New York 10036, Attention: Harold
Hendershot III, telecopier: (212)
761-0783; if to NationsBanc Montgomery
Securities LLC, to: Capital Market
Services, 100 North Tyron Street,
NC1-007-07-01, Charlotte, North Carolina
28255, Attention: Jennifer Arens,
telecopier: (704) 388-9939; if to
Warburg Dillon Read LLC, to: 535 Madison
Avenue, New York, New York 10022,
Attention: Peter Foote, telecopier:
(203) 719-7139, and the Trustee will
keep Stub 1. The Offering Agent will
acknowledge receipt of the Certificated
Note through a broker's receipt and will
keep Stub 2. Delivery of the
Certificated Note will be made only
against such acknowledgment of receipt.
Upon determination that the Certificated
Note has been authorized, delivered and
completed as aforementioned, the
Offering Agent will wire the net
proceeds of the Certificated Note after
deduction of its applicable commission
to the Company pursuant to standard wire
instructions given by the Company.
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<PAGE> 55
E. In the case of a Certificated Note sold
through the Offering Agent, as agent,
the Offering Agent will deliver such
Certificated Note (with the
confirmation) to the purchaser against
payment in immediately available funds.
F. The Trustee will send Stub 3 to the
Company.
Settlement Procedures Timetable: For offers to purchase Certificated Notes
accepted by the Company, Settlement
Procedures A through F set forth above shall
be completed as soon as possible following
the trade but not later than the respective
times (New York City time) set forth below:
Settlement
Procedure Time
A 11:00 a.m. on the trade date
or within one hour following
the trade
B 12:00 noon on the trade date
or within one hour following
the trade
C 2:15 p.m. on Settlement Date
D 2:15 p.m. on Settlement Date
E 3:00 p.m. on Settlement Date
F 5:00 p.m. on Settlement Date
Failure to Settle: In the case of Certificated Notes sold
through the Offering Agent, as agent, if an
investor or other purchaser of a
Certificated Note from the Company shall
either fail to accept delivery of or make
payment for such Certificated Note on the
date fixed for settlement, the Offering
Agent will forthwith notify the Trustee and
the Company by telephone, confirmed in
writing, and return such Certificated Note
to the Trustee.
The Trustee, upon receipt of such
Certificated Note from the Offering Agent,
will immediately advise the Company and the
Company will promptly arrange to credit the
account of the Offering Agent in an amount
of immediately available funds equal to the
amount previously paid to the Company by
such Offering Agent in settlement for such
Certificated Note. Such credits will be made
on the Settlement Date if possible, and in
any event not later than the Business Day
following the Settlement Date; provided that
the Company has received notice on
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<PAGE> 56
the same day. If such failure shall have
occurred for any reason other than failure
by such Offering Agent to perform its
obligations hereunder or under the
Distribution Agreement, the Company will
reimburse such Offering Agent on an
equitable basis for its reasonable loss of
the use of funds during the period when the
funds were credited to the account of the
Company. Immediately upon receipt of the
Certificated Note in respect of which the
failure occurred, the Trustee will cancel
and destroy such Certificated Note, make
appropriate entries in its records to
reflect the fact that such Certificated Note
was never issued, and accordingly notify in
writing the Company.
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<PAGE> 57
PART IV: PROCEDURES FOR REMARKETING OF REMARKETED NOTES
Conversions: As long as the Remarketed Notes are in the
Short Term Rate Mode or the Long Term Rate
Mode, the Company may change the Interest
Rate Mode or Interest Rate Period at its
option in the manner described in the
Remarketed Notes. Any Conversion Notice or
Floating Interest Rate Notice must be
received by the Trustee and the Remarketing
Agent from the Company in the manner and
within the time period prescribed in the
Remarketed Notes.
With respect to proposed conversions into a
Long Term Rate Period, notice of revocation
or change by the Company must be received by
the Trustee and the Remarketing Agent prior
to 4:00 p.m., New York City time, on the
third Business Day preceding the Interest
Rate Adjustment Date. With respect to
proposed conversions into a Short Term Rate
Period, notice of revocation or change by
the Company must be received by the Trustee
and the Remarketing Agent prior to 9:30
a.m., New York City time, on the Interest
Rate Adjustment Date.
Remarketing Procedures: The Trustee will keep a record of the
Remarketing Agent with respect to each
Remarketed Note.
Unless the context otherwise requires,
references herein to "interest rate" include
the Spread (if any) and Spread Multiplier
(if any), in the case of Remarketed Notes
being remarketed at a floating interest
rate.
In connection with any Remarketed Note that
is being remarketed into a Short Term Rate
Period on the next Interest Rate Adjustment
Date for such Remarketed Note, by 12:00
p.m., New York City time, on such Interest
Rate Adjustment Date, the applicable
Remarketing Agent will determine the
interest rate for such Remarketed Note to
the nearest one thousandth (0.001) of one
percent per annum for the next Interest Rate
Period; provided that, in the event that the
Remarketing Agent is unable to remarket such
Note by 11:00 a.m., New York City time, it
shall so notify the Company and, between
11:00 a.m., New York City time, and 12:00
p.m., New York City time, the Remarketing
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<PAGE> 58
Agent shall use its reasonable efforts to
determine the interest rate for any
Remarketed Notes not successfully remarketed
as of 11:00 a.m., New York City time.
In connection with any Remarketed Note that
is being remarketed into a Long Term Rate
Period on the next Interest Rate Adjustment
Date for such Remarketed Note, by 4:00 p.m.,
New York City time, on the third Business
Day preceding such Interest Rate Adjustment
Date, the Remarketing Agent will determine
the interest rate for such Remarketed Note
to the nearest one thousandth (0.001) of one
percent per annum for the next Interest Rate
Period, in the case of a fixed interest
rate, and the Spread, if any, or Spread
Multiplier, if any, in the case of a
floating interest rate; provided that, if
for any reason the Remarketing Agent is
unable to determine such interest rate at
such time, the next Interest Rate Period for
such Remarketed Note shall be a Weekly Rate
Period or such other Short Term Rate Period
as the Company may determine by 9:30 a.m.,
New York City time, on such Interest Rate
Adjustment Date.
By 12:30 p.m., New York City time, on the
Interest Rate Adjustment Date for any
Remarketed Note, the applicable Remarketing
Agent will notify the Company and the
Trustee in writing (which may include
facsimile or appropriate electronic media),
of (i) the interest rate or, in the case of
a floating interest rate, as applicable, the
initial interest rate and the initial
Interest Reset Date, the Spread and Spread
Multiplier, and in each case the Interest
Rate Adjustment Date applicable to such
Remarketed Note and all other Remarketed
Notes for which such Remarketing Agent is
responsible for remarketing for the next
Interest Rate Period, (ii) the Interest
Payment Dates (in the case of Notes in the
Long Term Rate Mode), (iii) the aggregate
principal amount of all tendered Notes for
which such Remarketing Agent is responsible
on such date, (iv) the aggregate principal
amount of tendered Notes that such
Remarketing Agent was able to remarket, at a
price equal to 100% of the principal amount
thereof and (v) such other information as is
contemplated by Section 4(e) of the
Remarketing Agreement and also such
information as the Trustee may require for
settlement purposes.
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<PAGE> 59
With respect to a remarketing into a Long
Term Rate Period, if by 4:00 p.m., New York
City time, on the third Business Day
preceding the Interest Rate Adjustment Date
the Remarketing Agent is unable to determine
the interest rate for any Remarketed Note
subject to such remarketing at such time,
the next Interest Rate Period for such
Remarketed Note shall be a Weekly Rate
Period or such other Short Term Rate Period
as the Company may determine by 9:30 a.m.,
New York City time, on the Interest Rate
Adjustment Date.
By telephone or in writing (including
facsimile or appropriate electronic media)
not later than approximately 1:00 p.m., New
York City time, on such Interest Rate
Adjustment Date, the applicable Remarketing
Agent will advise each purchaser of
Remarketed Notes remarketed on such date (or
the DTC Participant of each such purchaser
who it is expected in turn will advise such
purchaser) of the principal amount of
Remarketed Notes that such purchaser is to
purchase.
The applicable Remarketing Agent shall
supply to any Beneficial Owner upon request
information regarding the interest rate,
and, in the case of a floating interest
rate, Base Rate, Spread, if any, and Spread
Multiplier, if any, Interest Rate Period and
next Interest Rate Adjustment Date and other
terms applicable to such Beneficial Owner's
Remarketed Notes.
Settlement Procedures for Remarketing Settlement Procedures for each
Remarketings: Re-marketed Note will be as follows:
A. All tendered Remarketed Notes will be
automatically delivered to the account
of the Trustee by book entry through DTC
pending payment of the purchase price or
redemption price therefor, on the
Interest Rate Adjustment Date relating
thereto.
B. By 12:30 p.m., New York City time, on
the Interest Rate Adjustment Date for
the Remarketed Note, the applicable
Remarketing Agent will notify the
Company and the Trustee in writing
(which may include facsimile or
appropriate electronic media), of (i)
the interest rate or, in the case of a
floating interest rate, as applicable,
the initial
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<PAGE> 60
interest rate and the initial Interest
Reset Date, the Spread and Spread
Multiplier, and in each case the
Interest Rate Adjustment Date applicable
to such Remarketed Note and all other
Remarketed Notes for which such
Remarketing Agent is responsible for
remarketing for the next Interest Rate
Period, (ii) the Interest Payment Dates
(in the case of Notes in the Long Term
Rate Mode), (iii) the aggregate
principal amount of all tendered Notes
for which such Remarketing Agent is
responsible on the date, (iv) the
aggregate principal amount of tendered
Remarketed Notes that such Remarketing
Agent was able to remarket, at a price
equal to 100% of the principal amount
thereof and (v) such other information
as is contemplated by Section 4(e) of
the Remarketing Agreement and also such
information as the Trustee may require
for settlement purposes.
C. Immediately after receiving notice from
the Remarketing Agent as provided in B
above, and not later than 1:30 p.m., New
York City time, the Trustee will assign
a CUSIP number to the Remarketed Note
(which CUSIP number assigned to each
Remarketed Note shall consist of the
base issuer number and three additional
positions to form a CUSIP number unique
to that remarketing) after being
notified by the Remarketing Agent as
provided in Remarketing Settlement
Procedure B above and notify the
Remarketing Agent in writing.
D. Immediately after assigning the CUSIP
number as provided in C above and not
later than 1:30 p.m., New York City
time, the Trustee will communicate to
DTC and the Remarketing Agent through
DTC's Participant Terminal System
same-day settlement issuance
instructions specifying the following
settlement information:
1. The information set forth in the
Remarketing Settlement Procedure
B(i) and the principal amount of the
Remarketed Note.
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<PAGE> 61
2. Identification numbers of the
participant accounts maintained by
DTC on behalf of the Remarketing
Agent and the Trustee.
3. Next Interest Payment Date for such
Remarketed Note, number of days by
which such date succeeds the related
record date for DTC purposes and, if
then calculable, the amount of
interest payable on such Interest
Payment Date.
4. CUSIP number of the Remarketed Note.
5. Such other information as DTC may
require in accordance with its
procedures as in effect from time to
time in order to enter SDFS deliver
orders through DTC's Participant
Terminal System (i) debiting such
Note to the Trustee's participant
account and crediting such
Remarketed Note to the participant
account of the Remarketing Agent
(for crediting to the account of the
purchaser) maintained by DTC, (ii)
debiting the settlement account of
the Remarketing Agent's participant
and crediting the settlement account
of the Trustee and (iii) debiting
the settlement account of the
Trustee and crediting the settlement
account of the Beneficial Owner
maintained by DTC, in an amount
equal to 100% of the principal
amount of such Remarketed Note.
E. The Trustee will make the appropriate
computer entries of the Remarketed Note
to reflect the results of the
remarketing of such Remarketed Note. The
Trustee will preserve for record-keeping
purposes copies of the information
provided by the Remarketing Agent as
described above or by the Company in any
Conversion Notice or Floating Interest
Rate Notice and make such copies
available to the Company and the
Remarketing Agent upon request.
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<PAGE> 62
F. Each purchaser of Remarketed Notes in a
remarketing must give instructions to
its DTC Participant to pay the purchase
price therefor in same day funds to the
applicable Remarketing Agent (or to the
Trustee) against delivery of the
principal amount of such Remarketed
Notes by book entry through DTC by 3:00
p.m., New York City time, on the
Interest Adjustment Date. The
Remarketing Agent will make or use its
reasonable efforts to cause to be made
payment of such amount to the Trustee by
book-entry through DTC to facilitate
settlement as described in G below.
G. The Trustee will make payment by
book-entry settlement with DTC to enable
DTC to make payment to the DTC
Participant of each tendering Beneficial
Owner of Remarketed Notes subject to a
remarketing, by book entry through DTC
by the close of business on the Interest
Rate Adjustment Date against delivery
through DTC of such Beneficial Owner's
tendered Remarketed Notes, of: (i) the
purchase price for such tendered Notes
that have been sold in the remarketing,
and (ii) if any such Notes were subject
to purchase as described under "Failed
Remarketings" below, the purchase price
of such Remarketed Notes plus accrued
interest, if any, to such date.
Interest payable on any Remarketed Note on
any Interest Rate Adjustment Date will be
paid in accordance with the procedures set
forth in Part V below.
The Remarketing Agents may, in accordance
with the Remarketed Notes, modify the
settlement and remarketing procedures set
forth above in order to facilitate the
settlement and remarketing process.
Not later than the Business Day following
the Interest Rate Adjustment Date, the
Trustee shall confirm to DTC the interest
rate for the following Interest Rate Period.
Failed Remarketings: By 12:15 p.m., New York City time, on any
Interest Rate Adjustment Date, the
applicable Remarketing Agent shall notify
the Company and the Trustee in writing
(which includes facsimile or appropriate
electronic media), of the principal amount
of Remarketed Notes that such Remarketing
Agent was unable to remarket at a price
equal to 100% of the
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<PAGE> 63
principal amount thereof plus accrued
interest, if any, on such date. Such notice
will constitute a demand on the Company to
purchase such unremarketed Remarketed Notes
at an aggregate purchase price equal to 100%
of the principal amount thereof plus
accrued and unpaid interest, if any.
The Company will deposit same-day funds with
the Trustee by 3:00 p.m., New York City
time, on such Interest Rate Adjustment Date,
in an amount equal to the principal amount
of such unremarketed Remarketed Notes plus
accrued and unpaid interest, if any.
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<PAGE> 64
PART V: PRINCIPAL AND INTEREST PAYMENTS
Principal: Principal of each Note will be repayable by
the Company only at the Stated Maturity
thereof or upon earlier repayment at the
option of the holders thereof (if
applicable), upon earlier redemption at the
option of the Company or upon Special
Mandatory Purchase, in each case in
accordance with the terms of the Notes.
Interest: Each Note will bear interest in accordance
with its terms. Unless otherwise provided in
the applicable Pricing Supplement, interest
on each Note will accrue from and including
the Original Issue Date of such Note for the
first interest period or from the most
recent Interest Payment Date (as defined
below) to which interest has been paid or
duly provided for all subsequent interest
periods to, but excluding, the applicable
Interest Payment Date, the Stated Maturity
Date or, in the case of Remarketed Notes,
the Interest Rate Adjustment Date, or the
date of earlier redemption or repayment, as
the case may be (the Stated Maturity Date or
date of earlier redemption or repayment is
referred to herein as the "Maturity Date"
with respect to the principal repayable on
such date).
Each Remarketed Note initially will earn
interest at the Initial Interest Rate for
the Initial Interest Rate Period specified
in the applicable Pricing Supplement.
Thereafter, while a Remarketed Note is in
the Short Term Rate Mode, it will earn
interest during each Short Term Rate Period
at fixed rates established by the applicable
Remarketing Agent on the first day of such
Short Term Rate Period. While a Remarketed
Note is in the Long Term Rate Mode, it will
earn interest during each Long Term Rate
Period at fixed rates established prior to
the commencement of such Long Term Rate
Period and/or rates established on the first
day of such Long Term Rate Period and reset
at intervals established by the applicable
Remarketing Agent with the consent of the
Company prior to the commencement of such
Long Term Rate Period by reference to an
Interest Rate Basis established by the
Company prior to the commencement of such
Long Term Rate Period as adjusted by a
Spread, if any, and a Spread Multiplier, if
any, established prior to the commencement
of such Long Term Rate Period by the
Remarketing Agent.
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<PAGE> 65
Except as provided below, if an Interest
Payment Date or the Maturity Date with
respect to any Note falls on a day that is
not a Business Day, the required payment to
be made on such day need not be made on such
day, but may be made on the next succeeding
Business Day with the same force and effect
as if made on such day, and no interest
shall accrue on such payment for the period
from and after such day to the next
succeeding Business Day. In the case of a
Note bearing interest at a floating rate for
which LIBOR is an applicable Interest Rate
Basis, if such Business Day falls in the
next succeeding calendar month, such
Interest Payment Date will be the
immediately preceding Business Day. If the
Maturity Date with respect to any Note
bearing interest at a floating rate falls on
a day that is not a Business Day, the
required payment to be made on such day need
not be made on such day, but may be made on
the next succeeding Business Day with the
same force and effect as if made on such
day, and no interest shall accrue on such
payment for the period from and after the
Maturity Date to the next succeeding
Business Day. In case of Remarketed Notes,
each Interest Rate Adjustment Date shall be
a Business Day. "Business Day" means any
day, other than a Saturday or Sunday, that
is neither a legal holiday nor a day on
which banking institutions are authorized or
required by law, regulation or executive
order to close in the City of New York, New
York or Dallas, Texas; provided, however,
that, with respect to Notes as to which
LIBOR is an applicable Interest Rate Basis,
such day is also a London Business Day.
"London Business Day" means a day on which
dealings in the Designated LIBOR Currency
are transacted in the London interbank
market.
Calculation of Interest: Unless otherwise set forth in the applicable
Note, Interest (including payments for
partial periods) on Fixed Rate Notes, and
Remarketed Notes bearing interest at a fixed
rate during a Long Term Rate Period will be
calculated and paid on the basis of a
360-day year of twelve 30-day months.
Interest (including payments for partial
periods) on Remarketed Notes bearing
interest at a fixed rate during a Short Term
Rate Period will be calculated and paid on
the basis of actual days elapsed over 360
(or over the actual number of days in the
year if an applicable Interest Rate Basis is
the CMT Rate or Treasury Rate).
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<PAGE> 66
Floating interest rates will be calculated
by reference to the specified Interest Rate
Basis plus or minus the applicable Spread,
if any, and/or multiplied by the applicable
Spread Multiplier, if any.
Unless otherwise provided in the applicable
Pricing Supplement, interest on each
Floating Rate Note will be calculated by
multiplying its principal amount by an
accrued interest factor. Such accrued
interest factor is computed by adding the
interest factor calculated for each day in
the period for which accrued interest is
being calculated. Unless otherwise provided
in the applicable Pricing Supplement, the
interest factor for each such day is
computed by dividing the interest rate
applicable to such day by 360 if the CD
Rate, Commercial Paper Rate, Eleventh
District Cost of Funds Rate, Federal Funds
Rate, LIBOR or Prime Rate is an applicable
Interest Rate Basis, or by the actual number
of days in the year if the CMT Rate or
Treasury Rate is an applicable Interest Rate
Basis. As provided in the applicable Pricing
Supplement, the interest factor for Notes
for which the interest rate is calculated
with reference to two or more Interest Rate
Bases will be calculated in each period in
the same manner as if only the lowest,
highest or average of the applicable
Interest Rate Bases applied.
Interest Rate Basis Applicable Unless otherwise provided in the applicable
to Floating Interest Rates: Pricing Supplement, Floating Interest Rates
will be determined by reference to the CD
Rate, the CMT Rate, the Commercial Paper
Rate, the Eleventh District Cost of Funds
Rate, the Federal Funds Rate, LIBOR, the
Prime Rate, the Treasury Rate, or such other
interest rate basis or formula as may be set
forth in the applicable Pricing Supplement
or, in the case of Remarketed Notes,
Floating Interest Rate Notice or by
reference to two or more such rates, as
adjusted by the applicable Spread and/or
Spread Multiplier, if any.
Unless otherwise specified in the applicable
Pricing Supplement, with the consent of the
applicable Remarketing Agent, a floating
interest rate will apply to any Long Term
Rate Period for a Remarketed Note specified
by the Company upon receipt by the Trustee
and the Remarketing Agent of a notice in or
confirmed in writing (a "Floating Interest
Rate Notice") from the Company not less than
eleven (11) Business Days prior
33
<PAGE> 67
to the Interest Rate Adjustment Date for
such Long Term Rate Period. Each Floating
Interest Rate Notice must state each
Remarketed Note to which it relates and the
Long Term Rate Period to which it relates,
and must also state that the Beneficial
Owners of each such Remarketed Note will be
deemed to have tendered each such Remarketed
Note as of the Conversion Date and will not
be entitled to further accrual of interest
on each such Remarketed Note after such
date.
Each Floating Interest Rate Notice must also
state whether the floating interest rate is
a "Regular Floating Rate," a "Floating
Rate/Fixed Rate" or an "Inverse Floating
Rate," the Fixed Rate Commencement Date, if
applicable, the Fixed Interest Rate, if
applicable, the Interest Rate Basis, the
Initial Interest Rate, if any, the Initial
Interest Reset Date, the Interest Reset
Period and Dates, the Interest Payment
Period and Dates, the Index Maturity and the
Maximum Interest Rate and/or the Minimum
Interest Rate, if any. If one or more of the
applicable Interest Rate Basis is LIBOR or
the CMT Rate, the Floating Interest Rate
Notice will also specify the Index Currency
and Designated LIBOR Page or the Designated
CMT Maturity Index and Designated CMT
Telerate Page, respectively.
Redemption: The Notes will be subject to redemption by
the Company in accordance with the terms of
the Notes. Terms of redemption, if any,
during the Initial Interest Rate Period for
any Remarketed Note will be fixed at the
time of sale of such Remarketed Note and set
forth in the applicable Pricing Supplement.
Repayment: The Notes will be subject to repayment by
the Company at the option of the holders
thereof in accordance with the terms of the
Notes. In the case of Remarketed Notes,
terms of repayment, if any, during the
Initial Interest Rate Period for any Note
will be fixed at the time of sale of such
Remarketed Note and set forth in the
applicable Pricing Supplement.
Record Dates: Unless otherwise provided in the
applicable Pricing Supplement, the "Regular
Record Date" for a Fixed Rate Note or
Floating Rate Note shall be the date 15
calendar days (whether or not a Business
Day) preceding the applicable Interest
Payment Date.
34
<PAGE> 68
In the case of Remarketed Notes, for the
Initial Interest Rate Period, the Record
Dates will be specified in the applicable
Pricing Supplement or, if not so specified,
the Business Day next preceding the related
Interest Payment Date. Thereafter, unless
otherwise specified in the applicable
Pricing Supplement, the Record Date for each
Interest Payment Date will be (y) in the
case of each Short Term Rate Period, the
Business Day next preceding such Interest
Payment Date, and (z) in the case of each
Long Term Rate Period, the 15th day (whether
or not a Business Day) prior to such
Interest Payment Date.
Interest Payment Dates: Interest payments will be made on each
Interest Payment Date commencing with the
first Interest Payment Date following the
Original Issue Date.
Unless otherwise provided in the applicable
Pricing Supplement, interest payments on
Fixed Rate Notes will be made semiannually
in arrears on March 1 and September 1 of
each year and on the Maturity Date, while
interest payments on Floating Rate Notes
will be made as specified in the applicable
Pricing Supplement.
Interest on each Remarketed Note during the
Initial Interest Rate Period will be payable
on the Interest Payment Date or Dates
specified in the applicable Pricing
Supplement. Thereafter, unless otherwise
specified in the applicable Pricing
Supplement, the Interest Payment Dates for
such Remarketed Note will be determined as
follows: (i) interest with respect to each
Short Term Rate Period will be payable on
the Business Day next following such Short
Term Rate Period; and (ii) interest with
respect to each Long Term Rate Period will
be payable no less than semiannually on such
dates as are established by the Company and
the Remarketing Agent prior to the
commencement of each Long Term Rate Period
in the case of a fixed interest rate, and as
specified in the applicable Floating
Interest Rate Notice in the case of a
floating interest rate.
Payments of Principal, Premium, Payments of Interest Only. Promptly after
if any, and Interest on Book- each Regular Record Date, the Trustee will
Entry Notes (other than deliver to the Company a written notice
Special Mandatory Purchase specifying by CUSIP number the amount of
of a Remarketed Note): interest to be paid each Book-Entry Note on
the
35
<PAGE> 69
following Interest Payment Date (other than
an Interest Payment Date coinciding with the
Maturity Date) and the total of such
amounts. The Trustee and DTC will confirm
the amount payable on each Book-Entry Note
on such Interest Payment Date in accordance
with DTC's procedures as in effect from time
to time. On or before such Interest Payment
Date, the Company will pay to the Trustee in
immediately available funds an amount
sufficient to pay the interest then due and
owing on the Book-Entry Notes, and upon
receipt of such funds from the Company, the
Trustee in turn will pay to DTC such total
amount of interest due on such Book-Entry
Notes (other than on the Maturity Date) at
the times and in the manner set forth below
under "Manner of Payment".
Payments at Maturity. Not less than 15 days
nor more than 60 days prior to the Maturity
Date of any Book-Entry Note (subject to the
Trustee having received prior notice of
redemption, if applicable), the Trustee will
deliver to the Company a written list of
principal, premium, if any, and interest to
be paid on each such Book-Entry Note. The
Trustee and the Company will confirm the
amounts of such principal, premium, if any,
and interest payments with respect to each
such Book-Entry Note on or about the fifth
Business Day preceding the Maturity Date of
such Book-Entry Note. The Trustee and DTC
will confirm such amounts in accordance with
DTC's procedures as in effect from time to
time. On or before the Maturity Date, the
Company will pay to the Trustee in
immediately available funds an amount
sufficient to make the required payments,
and upon receipt of such funds the Trustee
in turn will pay to DTC the principal amount
of Book-Entry Notes, together with premium,
if any, and interest due on the Maturity
Date, at the times and in the manner set
forth below under "Manner of Payment".
Promptly after payment to DTC of the
principal, premium, if any, and interest due
on the Maturity Date of such Book-Entry
Note, the Trustee will cancel such
Book-Entry Note and deliver to the Company
an appropriate debit advice. On the first
Business Day of each month, the Trustee will
deliver to the Company a written statement
indicating the total principal amount of
outstanding Book-Entry Notes as of the close
of business on the immediately preceding
Business Day.
36
<PAGE> 70
Manner of Payment. The total amount of any
principal, premium, if any, and interest due
on Book-Entry Notes on any Interest Payment
Date or the Maturity Date, as the case may
be, shall be paid by the Company to the
Trustee in funds available for use by the
Trustee no later than 10:00 a.m., New York
City time, on such date. The Company will
make such payment on such Book-Entry Notes
to an account specified by the Trustee.
Thereafter on such date, DTC will debit the
account of the Trustee and pay, in
accordance with its SDFS operating
procedures then in effect, such amounts in
funds available for immediate use to the
respective DTC participants in whose names
the beneficial interests in such Book-Entry
Notes are recorded in the book-entry system
maintained by DTC. Neither the Company nor
the Trustee shall have any responsibility or
liability for the payment by DTC of the
principal of, or premium, if any, or
interest on, the Book-Entry Notes.
Withholding Taxes. The amount of any taxes
required under applicable law to be withheld
from any interest payment on a Book-Entry
Note will be determined and withheld by the
DTC participant, indirect participant in DTC
or other Person responsible for forwarding
payments and materials directly to the
beneficial owner of such Book-Entry Note.
Payments of Principal, Premium, Upon presentment and delivery of the
if any, and Interst on Certificated Note, the Trustee upon receipt
Certificated Notes of immediately available funds from the
Company will pay the principal of, premium,
if any, and interest on, each Certificated
Note on the Maturity Date in immediately
available funds. All interest payments on a
Certificated Note, other than interest due
on the Maturity Date, will be made by check
mailed to the address of the person entitled
thereto as such address shall appear in the
Security Register; provided, however, that
Holders of $10,000,000 or more in aggregate
principal amount of Certificated Notes
(whether having identical or different terms
and provisions) shall be entitled to receive
such interest payments by wire transfer of
immediately available funds if appropriate
wire transfer instructions have been
received in writing by the Trustee not less
than 15 calendar days prior to the
applicable Interest Payment Date.
37
<PAGE> 71
The Trustee will provide monthly to the
Company a list of the principal, premium, if
any, and interest to be paid on Certificated
Notes maturing in the next succeeding month.
The Trustee will be responsible for
withholding taxes on interest paid as
required by applicable law.
Certificated Notes presented to the Trustee
on the Maturity Date for payment will be
canceled by the Trustee. All canceled
Certificated Notes held by the Trustee shall
be destroyed, and the Trustee shall furnish
to the Company a certificate with respect to
such destruction.
Payments of Principal and Upon notice to the Company by a Remarketing
Interest (Special Mandatory Agent of a failed remarketing of a
Purchase of a Remarketed Remarketed Note on any Interest Rate
Note): Adjustment Date, as described in Part II
above, the Company will pay in immediately
available funds by deposit to the account of
the Trustee an amount sufficient to pay 100%
of the principal amount of such Note subject
to Special Mandatory Purchase, plus accrued
and unpaid interest, if any, and upon
receipt of such funds the Trustee in turn
will pay to DTC, the principal amount of
such Remarketed Note, together with
interest, if any, due at such Interest Rate
Adjustment Date, at the times and in the
manner set forth below under "Manner of
Payment". Promptly after payment to DTC of
the principal and interest, if any, due on
such Interest Rate Adjustment Date, the
Company may cause the Trustee to cancel the
Remarketed Note in accordance with the
Indenture, subject to Section 309 thereof.
Manner of Payment. The total amount of any
principal and interest, if any, due on
Remarketed Notes subject to Special
Mandatory Purchase on any Interest Rate
Adjustment Date shall be paid by the Company
to the Trustee in funds available for use by
the Trustee no later than 3:00 p.m., New
York City time, on such date. The Company
will make such payment on such Note to the
account specified by the Trustee. Thereafter
on such date, DTC will debit the account of
the Trustee and pay, in accordance with its
SDFS operating procedures then in effect,
such amounts in funds available for
immediate use to the respective DTC
participants in whose names such Remarketed
Note is recorded in the book-entry
38
<PAGE> 72
system maintained by DTC. Neither the
Company, the Trustee nor the Remarketing
Agent shall have any responsibility or
liability for the payment by DTC of the
principal of, or interest, if any, on, the
Remarketed Note to such DTC participants.
39
<PAGE> 1
EXHIBIT 4.1
------------------------
CENTEX CORPORATION
Issuer
AND
CHASE BANK OF TEXAS, NATIONAL ASSOCIATION
Trustee
---------------
I N D E N T U R E
Dated as of October 1, 1998
---------------
SENIOR DEBT SECURITIES
(Issuable in Series)
------------------------
<PAGE> 2
TIE-SHEET
of provisions of the Trust Indenture Act of 1939 with the Indenture, dated as
of October 1, 1998, between Centex Corporation and Chase Bank of Texas,
National Association, as Trustee:
<TABLE>
<CAPTION>
Section Section
of Act of Indenture
- ------ ------------
<S> <C>
310 (a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.09
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.09
(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not applicable
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.08 and 8.10(b)
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not applicable
311 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.13
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.13
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not applicable
312 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.01 and 6.02(a)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.02(b)
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.02(c)
313 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.04(a)
(b)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not applicable
(b)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.04(b)
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.04(c)
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.04(d)
314 (a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.03(a)
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.03(b)
(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.03(c)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not applicable
(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15.07
(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15.07
(c)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not applicable
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not applicable
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15.07
315 (a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.01(a)(1)
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.01(a)(2)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.07
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.01
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.01
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.08
</TABLE>
i
<PAGE> 3
<TABLE>
<CAPTION>
Section Section
of Act of Indenture
- ------ ------------
<S> <C>
316 (a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.01 and 7.06
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Omitted
(a) last sentence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.04
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.04
317 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.02
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.05
318 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15.09
</TABLE>
- --------------------------
This tie-sheet is not a part of the Indenture as executed.
ii
<PAGE> 4
TABLE OF CONTENTS*
<TABLE>
<CAPTION>
Page
----
<S> <C>
PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
PRELIMINARY STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE ONE.
DEFINITIONS.
SECTION 1.01. Certain terms defined; other terms defined in Trust Indenture Act of
1939 or by reference therein in Securities Act of 1933, as
amended, to have meanings therein assigned . . . . . . . . . . . . . . . . . . 1
Authorized Newspaper . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Board of Directors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Business Day . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Certificate of a Firm of Independent Public Accountants . . . . . . . . . . . . . . 2
Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Corporate Trust Office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Event of Default; default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Holder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Officers' Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Responsible Officer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Senior Debt Security; "outstanding" with reference to Senior
Debt Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Senior Debt Security Register;
Senior Debt Security Registrar . . . . . . . . . . . . . . . . . . . . . . . . 4
Series . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Series Supplement or Supplement . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Trust Indenture Act of 1939 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
</TABLE>
- ----------------------------------
*The Table of Contents, comprising pages i to xiv inclusive, is not part of
the Indenture.
iii
<PAGE> 5
<TABLE>
<CAPTION>
Page
----
ARTICLE TWO.
ISSUE, DESCRIPTION, FORM, EXECUTION,
REGISTRATION OF TRANSFER AND
EXCHANGE OF SENIOR DEBT SECURITIES.
<S> <C>
SECTION 2.01. Form of Senior Debt Securities and Certificate of Authentication . . . . . . . . . 5
SECTION 2.02. Amount unlimited; Senior Debt Securities issuable in Series;
Certain related provisions . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 2.03. Authentication and delivery of Senior Debt Securities . . . . . . . . . . . . . . . 11
SECTION 2.04. Date of Senior Debt Securities and denominations . . . . . . . . . . . . . . . . . 11
SECTION 2.05. Execution of Senior Debt Securities. . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 2.06. Exchange of Senior Debt
Securities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Senior Debt Securities to be accompanied by proper instruments
of transfer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Charges upon exchange, registration or transfer or registration of
Senior Debt Securities. . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Restrictions on issue, registration of transfer or exchange at certain
times . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 2.07. Temporary Senior Debt Securities. . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 2.08. Mutilated, destroyed, lost or stolen Senior Debt Securities. . . . . . . . . . . . 14
SECTION 2.09. Cancellation of surrendered Senior Debt Securities. . . . . . . . . . . . . . . . . 15
SECTION 2.10. Provisions of the Indenture and Senior Debt Securities for the
sole benefit of the parties, holders of Senior Debt Securities . . . . . . . . 15
ARTICLE THREE.
PRIORITY OF SENIOR DEBT SECURITIES.
SECTION 3.01. Confirmation of subordination of certain prior debt. . . . . . . . . . . . . . . . 16
</TABLE>
iv
<PAGE> 6
<TABLE>
<CAPTION>
Page
----
ARTICLE FOUR.
REDEMPTION OF SENIOR DEBT
SECURITIES - SINKING FUND.
<S> <C>
SECTION 4.01. Redemption prices of Senior Debt Securities . . . . . . . . . . . . . . . . . . . . 16
Restriction on redemption of Senior Debt Securities. . . . . . . . . . . . . . . . 16
SECTION 4.02. Mailing of notice of redemption . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Selection of Senior Debt Securities in case less than all Senior Debt
Securities to be redeemed. . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 4.03. When Senior Debt Securities called for redemption become due
and payable . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 4.04. Sinking Fund; amounts and payment dates . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 4.05. Credits against Sinking Fund payments . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 4.06. Certificates and Senior Debt Securities to be delivered to the Trustee . . . . . . 19
SECTION 4.07. Cash to be delivered to the Trustee . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 4.08. Application of Sinking Fund payments to redemption of Senior
Debt Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 4.09. Manner of redeeming Senior Debt Securities . . . . . . . . . . . . . . . . . . . . 20
Sinking Fund redemption price . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 4.10. Application of Sinking Fund . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 4.11. Cancellation and destruction of redeemed Senior Debt Securities. . . . . . . . . . 21
SECTION 4.12. Sinking Fund moneys to be held as security during continuance of
Event of Default; exceptions. . . . . . . . . . . . . . . . . . . . . . . . . 21
ARTICLE FIVE.
PARTICULAR COVENANTS OF THE COMPANY.
SECTION 5.01. Payment of principal of and premium, if any, and interest on
Senior Debt Securities. . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
</TABLE>
v
<PAGE> 7
<TABLE>
<CAPTION>
Page
----
<S> <C>
SECTION 5.02. Maintenance of office or agency for registration, registration of
transfer, exchange and payment of Senior Debt Securities. . . . . . . . . . . 22
SECTION 5.03. Prohibition of extension of claims for interest. . . . . . . . . . . . . . . . . . 22
SECTION 5.04. Appointment to fill a vacancy in the office of Trustee . . . . . . . . . . . . . . 22
SECTION 5.05. (a) Duties of paying agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
(b) Company as paying agent. . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
(c) Turnover to Trustee by paying agent or Company . . . . . . . . . . . . . . . . 23
(d) Holding sums in trust. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 5.06. Company to furnish annual compliance certificate . . . . . . . . . . . . . . . . . 23
ARTICLE SIX.
LISTS OF HOLDERS OF SENIOR DEBT
SECURITIES AND REPORTS BY THE
COMPANY AND THE TRUSTEE.
SECTION 6.01. Company to furnish Trustee information as to names and addresses of
holders of Senior Debt Securities. . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 6.02. (a) Trustee to preserve information as to names and addresses
of holders of Senior Debt Securities. . . . . . . . . . . . . . . . . . . 24
Trustee may destroy list of holders of Senior Debt Securities on
certain conditions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
(b) Trustee to make information as to names and addresses of
holders of Senior Debt Securities available to "applicants"
or mail communications to holders of Senior Debt Securities
in certain circumstances. . . . . . . . . . . . . . . . . . . . . . . . . 24
Procedure if Trustee elects not to make information available to
"applicants" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
(c) Company and Trustee not accountable for disclosure of information. . . . . . . 25
SECTION 6.03. (a) Annual and other reports to be filed by Company with Trustee. . . . . . . . . 25
(b) Additional information and reports to be filed with Trustee and
Securities and Exchange Commission . . . . . . . . . . . . . . . . . . . 26
(c) Summaries of information and reports to be transmitted by Company
to holders of Senior Debt Securities . . . . . . . . . . . . . . . . . . 26
SECTION 6.04. (a) Trustee to transmit reports to holders of Senior Debt Securities. . . . . . . 26
(b) Trustee to transmit certain further reports to holders of Senior Debt
Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
</TABLE>
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<S> <C>
(c) To which holders of Senior Debt Securities reports are to be mailed . . . . . 28
(d) Copies of reports to be filed with stock exchanges and Securities
and Exchange Commission . . . . . . . . . . . . . . . . . . . . . . . . . 28
ARTICLE SEVEN.
REMEDIES OF THE TRUSTEE AND HOLDERS
OF SENIOR DEBT SECURITIES
IN EVENT OF DEFAULT.
SECTION 7.01. Events of Default defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Acceleration of maturity upon Event of Default. . . . . . . . . . . . . . . . . . . 29
Waiver of default and rescission of declaration of acceleration . . . . . . . . . . 30
Restoration of former position and rights upon curing of all defaults. . . . . . . 30
SECTION 7.02. Covenant of Company to pay to Trustee whole amount due on Senior
Debt Securities on default in payment of interest . . . . . . . . . . . . . . 30
Trustee may recover judgment for whole amount due on Senior Debt
Securities on failure of Company to pay . . . . . . . . . . . . . . . . . . . 31
Filing of proof of claim by Trustee in bankruptcy, reorganization,
receivership, or other judicial proceedings . . . . . . . . . . . . . . . . . 31
Trustee may enforce rights of action and assert claims without possession
of Senior Debt Securities . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Trustee may enforce rights vested in it by Indenture by appropriate judicial
proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 7.03. Application of moneys collected by Trustee . . . . . . . . . . . . . . . . . . . . 32
SECTION 7.04. Limitation on suits by holders of Senior Debt Securities. . . . . . . . . . . . . . 33
SECTION 7.05. Remedies cumulative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Delay or omission in exercise of rights not a waiver of default . . . . . . . . . . 34
SECTION 7.06. Rights of holders of majority in principal amount of Senior Debt Securities
of a Series to direct Trustee and to waive default . . . . . . . . . . . . . . 34
SECTION 7.07. Trustee to give notice of defaults known to it, but may withhold in certain
circumstances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 7.08. Requirement of an undertaking to pay costs in certain suits under the
Indenture or against the Trustee. . . . . . . . . . . . . . . . . . . . . . . 35
</TABLE>
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ARTICLE EIGHT.
CONCERNING THE TRUSTEE.
<S> <C>
SECTION 8.01. Upon Event of Default occurring and continuing, Trustee shall exercise
powers vested in it, and use same degree of care and skill in their
exercise, as a prudent man would use . . . . . . . . . . . . . . . . . . . . . 35
Trustee not relieved from liability for negligence or willful misconduct
except as provided in this Section. . . . . . . . . . . . . . . . . . . . . . 36
(a) Prior to Event of Default and after the curing of all Events of
Default which may have occurred
(1) Trustee not liable except for performance of duties
specifically set forth. . . . . . . . . . . . . . . . . . . 36
(2) In absence of bad faith, Trustee may conclusively rely on
certificates or opinions furnished it hereunder,
subject to duty to examine the same if specifically
required to be furnished to it. . . . . . . . . . . . . . . 36
(b) Trustee not liable for error of judgment made in good faith by
responsible officer unless Trustee negligent. . . . . . . . . . . . . . . 36
(c) Trustee not liable for action or non-action in accordance with
direction of holders of majority in principal amount of Senior
Debt Securities of a Series . . . . . . . . . . . . . . . . . . . . . . . 36
Trustee not required to expend own funds . . . . . . . . . . . . . . . . . . . . . 36
SECTION 8.02. Subject to provisions of Section 8.01:
(a) Trustee may rely on documents believed genuine and properly signed
or presented. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
(b) Sufficient evidence by certain instruments provided for . . . . . . . . . . . 37
(c) Trustee may act on Opinion of Counsel. . . . . . . . . . . . . . . . . . . . . 37
(d) Trustee may require indemnity from holders of Senior Debt
Securities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
(e) Trustee not liable for action in good faith believed to be authorized . . . . 37
(f) Trustee not bound to make any investigation of any document. . . . . . . . . . 37
(g) Trustee may act through agent. . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 8.03. Trustee not liable for recitals in Indenture or in Senior Debt Securities. . . . . 38
No representations by Trustee as to validity of Indenture or of Senior
Debt Securities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Trustee not accountable for use of Senior Debt Securities or proceeds . . . . . . . 38
SECTION 8.04. Trustee, paying agent or Senior Debt Security Registrar may own
Senior Debt Securities. . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 8.05. Moneys received by Trustee to be held in trust without interest. . . . . . . . . . 38
</TABLE>
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SECTION 8.06. Trustee entitled to compensation, reimbursement and indemnity . . . . . . . . . . . 38
Obligations to Trustee to be secured by lien prior to Senior Debt
Securities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 8.07. Right of Trustee to rely on Officers' Certificate where no other evidence
specifically prescribed . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 8.08. (a) Trustee acquiring conflicting interest to eliminate conflict or resign. . . . 40
(b) Notice to holders of Senior Debt Securities in case of failure to
comply with subsection (a) . . . . . . . . . . . . . . . . . . . . . . . 40
(c) Definition of conflicting interest . . . . . . . . . . . . . . . . . . . . . . 40
(d) Definition of certain terms. . . . . . . . . . . . . . . . . . . . . . . . . . 44
(e) Calculations of percentage of securities . . . . . . . . . . . . . . . . . . . 45
SECTION 8.09. Requirements for eligibility of Trustee . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 8.10. (a) Resignation of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
(b) Removal of Trustee by Company or court on application of holders
of Senior Debt Securities. . . . . . . . . . . . . . . . . . . . . . . . 47
(c) Removal of Trustee by Company. . . . . . . . . . . . . . . . . . . . . . . . . 47
(d) Removal of Trustee by holders of majority in principal amount of
Senior Debt Securities . . . . . . . . . . . . . . . . . . . . . . . . . 48
(e) Time when resignation or removal of Trustee effective . . . . . . . . . . . . 48
(f) Company to deliver notice of appointment of successor trustee . . . . . . . . 48
SECTION 8.11. Acceptance by successor to Trustee. . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 8.12. Successor to Trustee by merger, consolidation or succession to business. . . . . . 49
SECTION 8.13. (a) Limitations on rights of Trustee as a creditor to obtain payment of
certain claims, within three months prior to default or during
default, or to realize on property as such creditor thereafter. . . . . . 50
(b) Certain creditor relationships excluded . . . . . . . . . . . . . . . . . . . 52
(c) Definition of certain terms. . . . . . . . . . . . . . . . . . . . . . . . . . 53
ARTICLE NINE.
CONCERNING THE HOLDERS OF
SENIOR DEBT SECURITIES.
SECTION 9.01. Evidence of action by holders of Senior Debt Securities. . . . . . . . . . . . . . 54
SECTION 9.02. Proof of execution of instruments and of holding of Senior Debt
Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
</TABLE>
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SECTION 9.03. Who may be deemed owners of Senior Debt Securities. . . . . . . . . . . . . . . . . 55
SECTION 9.04. Senior Debt Securities owned by Company or controlled or controlling
companies disregarded for certain purposes. . . . . . . . . . . . . . . . . . 55
SECTION 9.05. Instruments executed by holders of Senior Debt Securities bind future
holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
ARTICLE TEN.
MEETINGS OF HOLDERS OF
SENIOR DEBT SECURITIES.
SECTION 10.01. Purposes for which meetings may be called. . . . . . . . . . . . . . . . . . . . . 56
SECTION 10.02. Manner of calling meetings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
SECTION 10.03. Call of meetings by Company or holders of Senior Debt Securities. . . . . . . . . . 57
SECTION 10.04. Who may attend and vote at meetings . . . . . . . . . . . . . . . . . . . . . . . . 57
SECTION 10.05. Regulations may be made by Trustee. . . . . . . . . . . . . . . . . . . . . . . . . 57
Conduct of the meeting. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
Voting rights-adjournment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 10.06. Manner of voting at meetings and record to be kept . . . . . . . . . . . . . . . . 58
ARTICLE ELEVEN.
SUPPLEMENTAL INDENTURES.
SECTION 11.01. Purposes for which supplemental indentures may be entered into without
consent of holders of Senior Debt Securities . . . . . . . . . . . . . . . . . 59
SECTION 11.02. Modification of Indenture with consent of holders of majority in principal
amount of Senior Debt Securities of a Series . . . . . . . . . . . . . . . . . 60
SECTION 11.03. Effect of supplemental indentures . . . . . . . . . . . . . . . . . . . . . . . . . 61
SECTION 11.04. Senior Debt Securities may bear notation of changes by supplemental
indentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
</TABLE>
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ARTICLE TWELVE.
CONSOLIDATION, MERGER,
SALE OR CONVEYANCE.
<S> <C>
Section 12.01. Consolidations and mergers of Company and conveyances permitted . . . . . . . . . . 62
Assumption of obligations of Company by successor company or
transferee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
SECTION 12.02. Rights and duties of successor corporation . . . . . . . . . . . . . . . . . . . . 62
Appropriate changes may be made in form of Senior Debt Securities . . . . . . . . . 63
SECTION 12.03. Opinion of Counsel. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
ARTICLE THIRTEEN.
SATISFACTION AND DISCHARGE OF
INDENTURE; UNCLAIMED MONEYS.
SECTION 13.01. Satisfaction and discharge of Indenture . . . . . . . . . . . . . . . . . . . . . . 63
SECTION 13.02. Application by Trustee of funds deposited for payment of Senior Debt
Securities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
SECTION 13.03. Repayment of moneys held by paying agent . . . . . . . . . . . . . . . . . . . . . 65
SECTION 13.04. Repayment of moneys held by Trustee . . . . . . . . . . . . . . . . . . . . . . . . 65
SECTION 13.05. Reinstatement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
ARTICLE FOURTEEN.
IMMUNITY OF INCORPORATORS,
STOCKHOLDERS, OFFICERS AND DIRECTORS.
SECTION 14.01. Incorporators, stockholders, officers and directors of Company exempt
from individual liability . . . . . . . . . . . . . . . . . . . . . . . . . . 66
</TABLE>
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ARTICLE FIFTEEN.
MISCELLANEOUS PROVISIONS.
<S> <C>
SECTION 15.01. Successors and assigns of Company bound by Indenture. . . . . . . . . . . . . . . . 66
SECTION 15.02. Acts of board, committee or officer of successor corporation valid. . . . . . . . . 66
SECTION 15.03. Surrender of powers by Company. . . . . . . . . . . . . . . . . . . . . . . . . . . 66
SECTION 15.04. Service of required notices or demands. . . . . . . . . . . . . . . . . . . . . . . 67
SECTION 15.05. Notice to holders of Senior Debt Securities . . . . . . . . . . . . . . . . . . . . 67
SECTION 15.06. Indenture and Senior Debt Securities to be construed in accordance with
the laws of the State of Texas. . . . . . . . . . . . . . . . . . . . . . . . 67
SECTION 15.07. Officers' Certificate and Opinion of Counsel to be furnished upon
applications or demands by the Company . . . . . . . . . . . . . . . . . . . . 68
Statements to be included in each certificate or opinion with respect to
compliance with a condition or covenant. . . . . . . . . . . . . . . . . . . . 68
SECTION 15.08. Payments due on Saturdays, Sundays and holidays . . . . . . . . . . . . . . . . . . 68
SECTION 15.09. Provisions required by Trust Indenture Act of 1939 to control. . . . . . . . . . . 68
SECTION 15.10. Severability. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
SECTION 15.11. Indenture may be executed in counterparts. . . . . . . . . . . . . . . . . . . . . 68
SECTION 15.12. Computation of interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
SECTION 15.13. Acceptance of trusts by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . 69
TESTIMONIUM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
SIGNATURES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
</TABLE>
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<PAGE> 14
INDENTURE, dated as of October 1, 1998, between CENTEX CORPORATION, a
corporation duly organized and existing under the laws of the State of Nevada
(hereinafter sometimes referred to as the "Company"), and CHASE BANK OF TEXAS,
NATIONAL ASSOCIATION, a national banking association organized under the laws
of the United States of America (hereinafter sometimes referred to as the
"Trustee").
PRELIMINARY STATEMENT
The Company has duly authorized the execution and delivery of this
Indenture to provide for one or more series of Senior Debt Securities, issuable
as provided in this Indenture. Each series of such Senior Debt Securities will
be issued only under a separate Series Supplement to this Indenture duly
executed and delivered by the Company and the Trustee and limited to amounts
therein prescribed. All covenants and agreements made by the Company herein
are for the benefit and security of the holders of Senior Debt Securities. The
Company is entering into this Indenture, and the Trustee is accepting the trust
created hereby, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged.
ARTICLE ONE.
DEFINITIONS.
SECTION 1.01. The terms defined in this Section 1.01 (except as
herein otherwise expressly provided or unless the context otherwise requires)
for all purposes of this Indenture and of any indenture supplemental hereto
shall have the respective meanings specified in this Section 1.01. All other
terms used in this Indenture which are defined in the Trust Indenture Act of
1939 or which are by reference therein defined in the Securities Act of 1933,
as amended (except as herein otherwise expressly provided or unless the context
otherwise requires), shall have the meanings assigned to such terms in said
Trust Indenture Act and in said Securities Act as in force at the date of this
Indenture as originally executed.
Authorized Newspaper:
The term "authorized newspaper" shall mean a newspaper printed in the
English language and customarily published at least once a day for at least
five days in each calendar week, whether or not published on Saturdays, Sundays
or legal holidays, and of general circulation in the Borough of Manhattan, The
City of New York. Whenever under the provisions of this Indenture two or more
publications of a notice or other communication are required or permitted, such
publications may be in the same or different newspapers.
Board of Directors:
The term "Board of Directors" shall mean the Board of Directors of the
Company and duly authorized committees of such Board.
-1-
<PAGE> 15
Business Day:
The term "business day" shall mean any day except a Saturday, a Sunday
or a day on which banking institutions are legally authorized to close in The
City of New York, New York, or The City of Dallas, Texas.
Certificate of a Firm of Independent Public Accountants:
The term "Certificate of a Firm of Independent Public Accountants"
shall mean a certificate signed by an individual, partnership or corporation
engaged in accounting work who may be the accountants regularly employed by the
Company. Each such certificate shall include the statements provided for in
Section 15.07, if and to the extent required by the provisions thereof.
Company:
The term "Company" shall mean CENTEX CORPORATION, a Nevada
corporation, and, subject to the provisions of Article Twelve, shall also
include its successors and assigns.
Corporate trust office:
The term "corporate trust office" of the Trustee shall mean an office
or agency of the Trustee in the City of Dallas, Texas, designated by the
Trustee, from time to time, as the Trustee's corporate trust office for
purposes of this Indenture, which office at the date of the execution of this
Indenture is located at Chase Bank of Texas, National Association, 2200 Ross
Avenue, Fifth Floor, Dallas, Texas 75201.
Event of Default; default:
The term "Event of Default" shall mean any event specified in Section
7.01, continued for the period of time, if any, and after the giving of notice,
if any, therein designated.
Unless the context otherwise requires, the term "default" shall mean
any occurrence which is, or with notice or the lapse of time or both would
become, an Event of Default; provided that any occurrence which would become an
Event of Default pursuant to Section 7.01(c) hereof shall not be deemed a
default (but may nonetheless constitute an Event of Default upon notice and
lapse of time as provided in Section 7.01(c)) for purposes of the Indenture
until the expiration of five days after such occurrence shall first become
known, or in the exercise of reasonable care should become known, to an officer
of the Company. Notwithstanding the proviso clause of the immediately
preceding sentence, for purposes of Section 8.08 hereof, the term "default"
shall mean any occurrence which is, or with notice of the lapse of time or both
would become, an Event of Default.
-2-
<PAGE> 16
Holder:
The term "holder", "holder of Senior Debt Securities", or other
similar term, shall mean any person in whose name a Senior Debt Security shall
at the time be registered in the Senior Debt Security Register kept for that
purpose.
Indenture:
The term "Indenture" shall mean this instrument as originally
executed, or, if amended or supplemented as herein provided, as so amended or
supplemented.
Officers' Certificate:
The term "Officers' Certificate" shall mean a certificate signed by
the Chairman of the Board, the President or any Vice President and by the
Treasurer or any Assistant Treasurer or the Secretary or any Assistant
Secretary of the Company. Each such certificate shall include the statements
provided for in Section 15.07, if and to the extent required by the provisions
thereof.
Opinion of Counsel:
The term "Opinion of Counsel" shall mean an opinion in writing signed
by legal counsel who shall be satisfactory to the Trustee and may be counsel to
the Company. Each such opinion shall include the statements provided for in
Section 15.07, if and to the extent required by the provisions thereof.
Responsible Officer:
The term "responsible officer" when used with respect to the Trustee
shall mean the chairman or the vice-chairman of the board of directors, the
chairman of the executive committee of the board of directors, the president,
any vice president, any second or assistant vice president, the cashier, any
assistant cashier, the secretary, any assistant secretary, the treasurer, any
assistant treasurer, any senior trust officer or trust officer, or any other
officer or assistant officer of the Trustee customarily performing functions
similar to those performed by the persons who at the time shall be such
officers, respectively, or to whom any corporate trust matter is referred
because of his knowledge of and familiarity with the particular subject.
Senior Debt Security; "outstanding" with reference to Senior Debt Securities:
The term "Senior Debt Security" or "Senior Debt Securities" shall mean
a Senior Debt Security or Senior Debt Securities, as the case may be,
consisting of bonds, debentures, notes and/or other unsecured evidences of
indebtedness, authenticated and delivered under this Indenture.
The term "outstanding", when used with reference to Senior Debt
Securities, shall, subject to the provisions of Section 9.04, mean, as of any
particular time, all Senior Debt Securities authenticated and delivered by the
Trustee under this Indenture, except:
-3-
<PAGE> 17
(a) Senior Debt Securities theretofore canceled by the
Trustee or delivered to the Trustee for cancellation;
(b) Senior Debt Securities for the payment or redemption for
which moneys in the necessary amount shall have been deposited in
trust with the Trustee or with any paying agent (other than the
Company) or shall have been set aside and segregated in trust by the
Company (if the Company shall act as its own paying agent), provided
that, if such Senior Debt Securities are to be redeemed, notice of
such redemption shall have been given as in Article Four provided or
provision satisfactory to the Trustee shall have been made for giving
such notice; and
(c) Senior Debt Securities in lieu of or in substitution for
which other Senior Debt Securities shall have been authenticated and
delivered pursuant to the terms of Section 2.08.
Senior Debt Security Register; Senior Debt Security Registrar:
The terms "Senior Debt Security Register" and "Senior Debt Security
Registrar" shall have the respective meanings specified in Section 2.06.
Series:
The term "Series" shall mean a separate series of Senior Debt
Securities issued pursuant to this Indenture and the related Series Supplement.
Series Supplement or Supplement:
The term "Series Supplement" or "Supplement" shall mean an indenture
supplemental to this Indenture, in substantially the form attached hereto as an
exhibit, that authorizes a particular Series.
Trust Indenture Act of 1939:
The term "Trust Indenture Act of 1939" (except as herein otherwise
expressly provided or unless the context otherwise requires) shall mean the
Trust Indenture Act of 1939 as in force at the date of this Indenture as
originally executed.
Trustee:
The term "Trustee" shall mean Chase Bank of Texas, National
Association, and, subject to the provisions of Article Eight, shall also
include its successors and assigns.
-4-
<PAGE> 18
ARTICLE TWO.
ISSUE, DESCRIPTION, FORM, EXECUTION, REGISTRATION OF TRANSFER
AND EXCHANGE OF SENIOR DEBT SECURITIES.
SECTION 2.01. The Senior Debt Securities and the Trustee's
certificate of authentication are to be substantially in the forms set forth in
this Section 2.01, with such appropriate insertions, omissions, substitutions,
amendments, changes and other variations as are required or permitted by this
Indenture or any Series Supplement, and may have such letters, numbers or other
marks of identification and such legends or endorsements placed thereon as may
be required to comply with the rules of any securities exchange on which the
Senior Debt Securities may be listed or as may, consistently herewith, be
determined by the officers executing such Senior Debt Securities as evidenced
by their execution of the Senior Debt Securities.
The definitive Senior Debt Securities shall be printed, lithographed
or engraved or produced by any combination of these methods on steel engraved
borders or may be produced in any other manner permitted by any Series
Supplement or the rules of any securities exchange on which the Senior Debt
Securities may be listed, all as determined by the officers executing such
Senior Debt Securities, as evidenced by their execution of such Senior Debt
Securities.
The form of Senior Debt Securities and the Trustee's certificate of
authentication are to be substantially in the following forms, respectively:
-5-
<PAGE> 19
[FORM OF FACE OF SENIOR DEBT SECURITY]
No. ____________________ [$]____________________
CENTEX CORPORATION
[SENIOR DEBT SECURITY]
CENTEX CORPORATION, a corporation duly organized and existing under
the laws of the State of Nevada (herein referred to as the "Company"), for
value received, hereby promises to pay to
____________________________________________ or registered assigns, the
principal sum of _____________________ [Currency of Issue and Payment] on
__________________ , ____, in such coin or currency of the [Country Whose
Currency is Designated] as at the time of payment is legal tender for the
payment of public and private debts, and to pay interest on said principal sum
at the rate per annum specified in the title of this [Senior Debt Security],
with respect to interest accrued from [insert accrual date] to the date of the
current interest payment, to the registered holder hereof as of the close of
business on the ________ day of the month next preceding the month in which an
interest payment is due, in like coin or currency, all at any office or agency
of the Company to be maintained by the Company pursuant to Section 5.02 of the
Indenture, which at all times shall include an office or agency in the City of
Dallas, Texas, such interest payments to be made, except as otherwise provided
in the Indenture hereinafter referred to, [insert interest frequency] on
[insert payment dates], in each year, commencing ____________, 199__, until
payment of said principal sum has been made or duly provided for; provided,
however, that payment of interest may be made at the option of the Company by
check mailed on or before such payment date to the address of the person
entitled thereto as such address shall appear on the Senior Debt Security
Register.
This [Senior Debt Security] shall be deemed to be a contract made
under the laws of the State of Texas, and for all purposes shall be construed
in accordance with the laws of said State.
Additional provisions of this [Senior Debt Security] are contained on
the reverse hereof and such provisions shall for all purposes have the same
effect as though fully set forth at this place.
This [Senior Debt Security] shall not be valid or become obligatory
for any purpose until the certificate of authentication hereon shall have been
signed by the Trustee under the Indenture.
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<PAGE> 20
IN WITNESS WHEREOF, CENTEX CORPORATION has caused this instrument to
be signed in its corporate name by the facsimile signature of its President or
a Vice President and by its Secretary or an Assistant Secretary by his
signature or a facsimile thereof, and a facsimile of its corporate seal to be
affixed hereunto or imprinted hereon.
Dated:
CENTEX CORPORATION
[Seal]
By:
-------------------------------------
[Title]
ATTEST:
- ----------------------------------------
[Title]
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the [Senior Debt Securities] to which reference is made
in the within-mentioned Indenture.
CHASE BANK OF TEXAS, NATIONAL ASSOCIATION, as Trustee
By:
-------------------------------------
Authorized Signature
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<PAGE> 21
[FORM OF REVERSE OF SENIOR DEBT SECURITY]
CENTEX CORPORATION
This [Senior Debt Security] is one of a duly authorized issue of
Senior Debt Securities of the Company issued and to be issued in one or more
Series, and this [Senior Debt Security] is one of the Series of Senior Debt
Securities designated as its [Senior Debt Securities] (herein referred to as
the [Senior Debt Securities]), limited to the aggregate principal amount of
__________________________________________ Million [Currency of Issue and
Payment] ([$]____ ______________), all issued or to be issued under and
pursuant to an indenture dated as of October 1, 1998 (herein referred to as the
"Indenture"), duly executed and delivered by the Company to Chase Bank of
Texas, National Association (referred to herein as the "Trustee"), to which
Indenture and all indentures supplemental thereto (including the Series
Supplement dated as of ________, 199_ which authorizes the [Senior Debt
Securities]) reference is hereby made for a description of the rights,
limitations of rights, obligations, duties and immunities thereunder of the
Trustee, the Company and the holders of the Senior Debt Securities of each
particular Series and the terms upon which the Senior Debt Securities of each
Series are, and are to be, authenticated and delivered. All terms used in this
Senior Debt Security which are defined in the Indenture shall have the meanings
assigned to them in the Indenture. As provided in the Indenture, the Senior
Debt Securities are issuable in Series which may vary as in the Indenture
provided or permitted.
[The indebtedness evidenced by the [Senior Debt Securities] is, to the
extent and in the manner provided in the Indenture and the Series Supplement,
senior in right of payment to certain indebtedness of the Company.]
In case an Event of Default shall have occurred and be continuing with
respect to the [Senior Debt Securities], the principal hereof may be declared,
and upon such declaration shall become, due and payable, in the manner, with
the effect and subject to the conditions provided in the Indenture. The
Indenture provides that in certain events such declaration and its consequences
may be waived by the holders of a majority in aggregate principal amount of the
[Senior Debt Securities] then outstanding. An Event of Default with respect to
the Senior Debt Security of any other Series issued under the Indenture,
including the failure to make any payment of principal or interest with respect
thereto when and as due, will not be an Event of Default with respect to the
[Senior Debt Securities].
The Indenture contains provisions permitting the Company and the
Trustee, with the consent of the holders of not less than a majority in
aggregate principal amount of the [Senior Debt Securities] at the time
outstanding, evidenced as in the Indenture provided, to execute supplemental
indentures adding any provisions to or changing in any manner or eliminating
any of the provisions of the Indenture or of any supplemental indenture or
modifying in any manner the rights of the holders of the [Senior Debt
Securities]; provided, however, that no such supplemental indenture shall (i)
extend the fixed maturity of any [Senior Debt Securities], or reduce the
principal amount thereof, or reduce the rate or extend the time of payment of
interest thereon, or reduce any premium payable on the redemption thereof,
without the consent of the holder of each [Senior Debt Security] so affected,
or (ii) reduce the aforesaid percentage of [Senior Debt Securities], the
consent of the
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<PAGE> 22
holders of which is required for any such supplemental indenture, without the
consent of the holders of all [Senior Debt Securities] then outstanding. It is
also provided in the Indenture that the holders of a majority in aggregate
principal amount of the [Senior Debt Securities] at the time outstanding may on
behalf of the holders of all the [Senior Debt Securities] waive any past
default under the Indenture and its consequences, except a default in the
payment of the principal of or premium, if any, or interest on any of the
[Senior Debt Securities]. Any such consent or waiver by the holder of this
[Senior Debt Security] (unless revoked as provided in the Indenture) shall be
conclusive and binding upon such holder and upon all future holders and owners
of this [Senior Debt Security] and of any [Senior Debt Security] issued in
exchange or substitution herefor, whether or not any notation of such consent
or waiver is made upon this [Senior Debt Security].
No reference herein to the Indenture and no provision of this [Senior
Debt 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
premium, if any, and interest on this [Senior Debt Security] at the place, at
the respective times, at the rate and in the currency herein prescribed.
The [Senior Debt Securities] are issuable in registered form in
denominations of $_____ and any integral multiple of $_____.
[As provided in the Indenture, the [Senior Debt Securities] may be
redeemed, at the option of the Company, as a whole or from time to time in part
(otherwise than through the operation of the Sinking Fund), at any time prior
to maturity, upon the notice referred to below, [on terms specified in the
Series Supplement]. Notwithstanding the foregoing, no such redemption may be
made prior to ___________, 19__, directly or indirectly from or in anticipation
of moneys borrowed by the Company at an interest cost which is less than
[interest rate of the [Senior Debt Securities] as specified in the Series
Supplement].]
[The [Senior Debt Securities] are entitled to the benefits of a
Sinking Fund, operation of the provisions of which is required to begin on
_________________, 19__ as provided in the Series Supplement. The [Senior Debt
Securities] are subject to redemption (on notice as set forth below) through
the operation of the Sinking Fund at a redemption price equal to the principal
amount thereof, together with accrued interest to the date fixed for
redemption.]
Notice of redemption shall be given by mailing by first-class mail a
notice of such redemption not less than 20 nor more than 60 days prior to the
date fixed for redemption to the holders of [Senior Debt Securities] to be
redeemed to their last addresses as they shall appear upon the Senior Debt
Security Register for the [Senior Debt Securities], all as provided in the
Indenture.
Upon due presentment for registration of transfer of this [Senior Debt
Security] at any designated office or agency of the Company to be maintained by
the Company pursuant to Section 5.02 of the Indenture, which at all times shall
include an office or agency in the City of Dallas, Texas, a new [Senior Debt
Security] or [Senior Debt Securities] of authorized denominations for an equal
aggregate principal amount will be issued to the transferee in exchange
herefor, subject to the limitations provided in the Indenture, without charge
except for any tax or other governmental charge imposed in connection
therewith, and the [Senior Debt Securities] may in like manner be exchanged
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<PAGE> 23
for one or more new [Senior Debt Securities] of other authorized denominations
but of the same aggregate principal amount.
The Company, the Trustee, any paying agent and any Senior Debt
Security Registrar (as defined in the Indenture) for the [Senior Debt
Securities] may deem and treat the registered holder hereof as the absolute
owner of this [Senior Debt Security] (whether or not this [Senior Debt
Security] shall be overdue and notwithstanding any notation of ownership or
other writing hereon made by anyone other than the Company or any such Senior
Debt Security Registrar), for the purpose of receiving payment hereof or on
account hereof and for all other purposes, and neither the Company nor the
Trustee nor any paying agent nor any such Senior Debt Security Registrar shall
be affected by any notice to the contrary.
No recourse shall be had for the payment of the principal of, or
premium, if any, or interest on, this [Senior Debt Security], or for any claim
based hereon or otherwise in respect hereof, or based on or in respect of the
Indenture or any indenture supplemental thereto, against any incorporator,
stockholder, officer or director, as such, past, present or future, of the
Company or of any successor corporation, whether by virtue of any constitution,
statute or rule of law, or by the enforcement of any assessment or penalty or
otherwise, all such liability being, by the acceptance hereof and as part of
the consideration for the issue hereof, expressly waived and released.
--------------------
SECTION 2.02. The aggregate principal amount of Senior Debt
Securities which may be authenticated and delivered under this Indenture is
unlimited.
The Senior Debt Securities may, at the election of and as authorized
by the Board of Directors, be issued in one or more Series, and a particular
Series shall be designated as the Board of Directors may determine. Each
Senior Debt Security shall bear upon its face the designation so selected for
the Series for which it belongs. All Senior Debt Securities of the same Series
shall be identical in all respects except for the denominations thereof.
Each Series of Senior Debt Securities shall be created by a Series
Supplement authorized by the Board of Directors in establishing the terms and
provisions of such Series. The several Series may differ as between Series, in
respect of any of the following matters: (1) designation of the Series; (2)
the maximum aggregate principal amount of the Series; (3) accrual date; (4)
interest rate; (5) stated maturity of principal; (6) payment dates; (7)
authorized denominations; (8) currency of issue and payment; (9) redemption
dates; (10) provisions relating to redemption of the related Series on an
optional or mandatory basis by the Company or pursuant to a sinking fund; and
(11) any other provisions expressing or referring to the terms and conditions
upon which the Senior Debt Securities of that Series are to be issued under
this Indenture which are not in conflict with the provisions of this Indenture,
or any provisions expressly amending or modifying the terms of this Indenture
with respect to the Series of Senior Debt Securities to which such Series
Supplement relates. Each Series of Senior Debt Securities shall rank equally
in right of payment with other outstanding Series of Senior Debt Securities.
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<PAGE> 24
In authorizing issuance of any Series, the Board of Directors shall
determine and specify all matters in respect of the Senior Debt Securities of
such Series set forth in clauses (1) to (11) inclusive and shall also determine
and specify the form of Senior Debt Securities of such Series.
SECTION 2.03. The Senior Debt Securities shall be executed by the
Company and be delivered to the Trustee for authentication, and the Trustee
shall thereupon, or from time to time thereafter, authenticate and deliver said
Senior Debt Securities to and upon the written order of the Company, signed by
its President or a Vice President and by its Treasurer, Assistant Treasurer,
Secretary or Assistant Secretary, without any further action by the Company.
SECTION 2.04. The Senior Debt Securities shall be issuable as
registered Senior Debt Securities without coupons in denominations prescribed
by the terms of the Series Supplement creating the particular Series. Each
Senior Debt Security shall be dated the date of its authentication, shall bear
interest from the applicable date, and shall be payable on the dates, as
prescribed by the terms of the Series Supplement creating the particular
Series.
The person in whose name any Senior Debt Security is registered at the
close of business on any record date (as hereinafter defined) with respect to
any interest payment date shall be entitled to receive the interest payable on
such interest payment date (subject to the provisions of Article Four in the
case of any Senior Debt Security or Senior Debt Securities, or portion thereof,
redeemed on a date subsequent to the record date and on or prior to such
interest payment date), except if and to the extent the Company shall default
in the payment of the interest due on such interest payment date, in which case
such defaulted interest shall be paid to the persons in whose names outstanding
Senior Debt Securities are registered on a subsequent special record date
established by notice given by mail by or on behalf of the Company to the
holders of Senior Debt Securities not less than 15 days preceding such special
record date, which shall be not more than 15 days and not less than 10 days
prior to the date of the proposed payment. The term "record date" as used with
respect to any interest payment date shall mean the day of the calendar month
prescribed by the terms of the Series Supplement creating the particular Series
preceding the day on which such interest payment date falls or, in the case of
defaulted interest, the close of business on any special record date
established as hereinabove provided.
The principal of, and premium, if any, and interest on, the Senior
Debt Securities shall be payable at the office or agency of the Company
designated for that purpose in the City of Dallas, Texas, and any other office
or agency of the Company designated for that purpose; provided, however, that
interest may be payable at the option of the Company by check mailed to the
address of the person entitled thereto as such address shall appear on the
Senior Debt Security Register.
SECTION 2.05. The Senior Debt Securities shall be signed manually or
by facsimile signature on behalf of the Company by its President or a Vice
President under its corporate seal attested by the manual or facsimile
signature of its Secretary or an Assistant Secretary. The seal of the Company
may be in the form of a facsimile of the seal of the Company and may be
impressed, affixed, imprinted or otherwise reproduced on the Senior Debt
Securities.
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<PAGE> 25
Only such Senior Debt Securities as shall bear thereon a certificate
of authentication substantially in the form hereinabove recited, manually
executed by the Trustee, shall be entitled to the benefits of this Indenture or
be valid or obligatory for any purpose. Such certificate by the Trustee upon
any Senior Debt Security executed by the Company shall be conclusive evidence
that the Senior Debt Security so authenticated has been duly authenticated and
delivered hereunder.
In case any officer of the Company who shall have signed any of the
Senior Debt Securities shall cease to be such officer before the Senior Debt
Securities so signed shall have been authenticated and delivered by the
Trustee, or disposed of by the Company, such Senior Debt Securities
nevertheless may be authenticated and delivered or disposed of as though the
person who signed such Senior Debt Securities had not ceased to be such officer
of the Company; and any Senior Debt Security may be signed on behalf of the
Company by such persons as, at the actual date of the execution of such Senior
Debt Security, shall be the proper officers of the Company, although at the
date of the execution of this Indenture any such person was not an officer.
SECTION 2.06. The Senior Debt Securities may be exchanged for a like
aggregate principal amount of Senior Debt Securities of other authorized
denominations of a like Series. Senior Debt Securities to be exchanged shall
be surrendered at any office or agency to be maintained by the Company in
accordance with the provisions of Section 5.02, and the Company shall execute
and the Trustee shall authenticate and deliver in exchange therefor the Senior
Debt Security or Senior Debt Securities which the holder making the exchange
shall be entitled to receive.
The Company shall keep or cause to be maintained at said office or
agency a register (herein sometimes referred to as the "Senior Debt Security
Register") in which, subject to such reasonable regulations as it may
prescribe, the Company shall register Senior Debt Securities and shall register
the transfer of Senior Debt Securities as in this Article Two provided. For
the purposes of registration, exchange or registration of transfer of Senior
Debt Securities, the Trustee is hereby appointed Senior Debt Security
Registrar. Upon surrender for registration of transfer of any Senior Debt
Security at said office or agency, the Company shall execute and the Trustee
shall authenticate and deliver in the name of the transferee or transferees a
new Senior Debt Security or Senior Debt Securities in a like aggregate
principal amount and of a like Series. At all reasonable times the Senior Debt
Security Register shall be open for inspection by the Trustee. No transfer of
any Senior Debt Security shall be valid unless made at said office or agency.
All Senior Debt Securities presented or surrendered for registration
of transfer, exchange, redemption or payment shall (if so required by the
Company or the Trustee) be accompanied by a written instrument or instruments
of transfer, in form satisfactory to the Company and the Trustee, duly executed
by the registered holder or his attorney duly authorized in writing.
No service charge shall be made for any exchange or registration of
transfer of Senior Debt Securities, or issue of new Senior Debt Securities in
case of partial redemption, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto.
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<PAGE> 26
For the Senior Debt Securities of a Series which has a redemption
provision, the Company shall not be required (i) to issue, register the
transfer of, or exchange any Senior Debt Security during a period beginning at
the opening of business 15 days before the mailing of a notice of redemption of
the Senior Debt Securities selected for redemption and ending on the day of
such mailing, or (ii) to register the transfer of or exchange any Senior Debt
Security so selected for redemption in whole or in part, except the unredeemed
portions of Senior Debt Securities being redeemed in part.
SECTION 2.07. Pending the preparation of definitive Senior Debt
Securities, the Company may execute, and the Trustee shall authenticate and
deliver, temporary Senior Debt Securities (printed, lithographed or
typewritten), of any denomination, and substantially in the form of the
definitive Senior Debt Securities, but with such omissions, insertions and
variations as may be appropriate for temporary Senior Debt Securities, all as
may be determined by the Company. Temporary Senior Debt Securities may be
issued without a recital of any specific redemption prices as prescribed by the
terms of the Series Supplement creating the particular Series and may contain
such reference to any provisions of this Indenture as may be appropriate.
Every temporary Senior Debt Security shall be executed by the Company and be
authenticated by the Trustee upon the same conditions and in substantially the
same manner, and with like effect, as the definitive Senior Debt Securities.
The Company shall execute and furnish definitive Senior Debt Securities of the
same Series as soon as practicable, and thereupon any or all temporary Senior
Debt Securities of such Series may be surrendered in exchange therefor at the
corporate trust office of the Trustee, and the Trustee shall authenticate and
deliver in exchange for such temporary Senior Debt Securities a like aggregate
principal amount of definitive Senior Debt Securities of the same Series.
Until so exchanged, the temporary Senior Debt Securities of such Series shall
be entitled to the same benefits under this Indenture as definitive Senior Debt
Securities of the same Series authenticated and delivered hereunder.
SECTION 2.08. In case any temporary or definitive Senior Debt
Security shall become mutilated or be destroyed, lost or stolen, the Company in
its discretion may execute, and the Trustee shall authenticate and deliver, a
new Senior Debt Security of a like Series, in exchange and substitution for the
mutilated Senior Debt Security or in lieu of and substitution for the Senior
Debt Security destroyed, lost or stolen. In every case, the applicant for a
substituted Senior Debt Security shall furnish to the Company and the Trustee
such security or indemnity as may be required by them to save each of them
harmless, and, in every case of destruction, loss or theft, the applicant shall
also furnish to the Company and to the Trustee evidence to their satisfaction
of the destruction, loss or theft of such Senior Debt Security and of the
ownership thereof. The Trustee may authenticate any such substituted Senior
Debt Security and deliver the same upon the request or authorization of the
Company. Upon the issuance of any substituted Senior Debt Security, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses connected therewith, including fees and expenses of the Trustee. In
case any Senior Debt Security which has matured or is about to mature or has
been called for redemption shall become mutilated or be destroyed, lost or
stolen, the Company may, instead of issuing a substitute Senior Debt Security
of a like Series, pay or authorize the payment of the same (without surrender
thereof except in the case of a mutilated Senior Debt Security) if the
applicant for such payment shall furnish the Company and the Trustee with such
security or indemnity as may be required by them to save each of them harmless,
and, in case of destruction, loss or theft, evidence
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<PAGE> 27
to the satisfaction of the Company and the Trustee of the destruction, loss or
theft of such Senior Debt Security and of the ownership thereof.
Every substituted Senior Debt Security issued pursuant to the
provisions of this Section 2.08 upon evidence that any Senior Debt Security is
destroyed, lost or stolen shall, with respect to such Senior Debt Security,
constitute an additional contractual obligation of the Company, whether or not
the destroyed, lost or stolen Senior Debt Security shall be found at any time,
and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Senior Debt Securities of the same
Series duly issued hereunder. All Senior Debt Securities shall be held and
owned upon the express condition that the foregoing provisions are exclusive
with respect to the replacement or payment of mutilated, destroyed, lost or
stolen Senior Debt Securities, and shall preclude any and all other rights or
remedies, notwithstanding any law or statute existing or hereafter enacted to
the contrary with respect to the replacement or payment of negotiable
instruments or other securities without their surrender.
SECTION 2.09. All Senior Debt Securities surrendered for payment,
redemption, registration of transfer or exchange shall, if surrendered to the
Company or any paying agent, be delivered to the Trustee for cancellation, or,
if surrendered to the Trustee, shall be canceled by it, and no Senior Debt
Securities shall be issued in lieu thereof except as expressly permitted by any
of the provisions of this Indenture. On request of the Company, the Trustee
shall deliver to the Company canceled Senior Debt Securities held by the
Trustee; provided, however, that the Trustee may at any time destroy any
canceled Senior Debt Securities and deliver to the Company a certificate of
such destruction. If the Company shall acquire any of the Senior Debt
Securities, however, such acquisition shall not operate as a redemption or
satisfaction of the indebtedness represented by such Senior Debt Securities
unless and until the same are delivered to the Trustee or surrendered to the
Trustee for cancellation.
SECTION 2.10. Nothing in this Indenture or in the Senior Debt
Securities, expressed or implied, shall give or be construed to give to any
person, firm or corporation, other than the parties hereto and the holders of
the Senior Debt Securities of a Series, any legal or equitable right, remedy or
claim under or in respect of this Indenture, or under any covenant, condition
or provision herein contained; all its covenants, conditions and provisions
being for the sole benefit of the parties hereto and of the holders of the
Senior Debt Securities of such Series.
ARTICLE THREE.
PRIORITY OF SENIOR DEBT SECURITIES.
SECTION 3.01. Unless otherwise specified in the related Series
Supplement, the Company, for itself, its successors and assigns, confirms and
agrees that, notwithstanding any other provisions of the Senior Debt
Securities, this Indenture or any other agreement under which the Senior Debt
Securities are outstanding, the payment of the principal of, and the premium or
prepayment charge, if any, sinking funds and interest on (i) the Company's
$100,000,000 aggregate principal amount of 8-3/4% Subordinated Debentures due
March 1, 2007, (ii) the Company's $100,000,000 aggregate principal amount of
7-3/8% Subordinated Debentures due June 1, 2005, and (iii) any other debt
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<PAGE> 28
securities issued or to be issued under and pursuant to the Indenture described
below in this Section 3.01, are expressly subordinated, to the extent and in
the manner set forth in the Indenture dated as of March 12, 1987, as
supplemented by the Series Supplement dated as of March 12, 1987, and the
Series Supplement dated as of June 9, 1995, all between the Company and Texas
Commerce Bank National Association, to the prior payment in full of the Senior
Debt Securities.
ARTICLE FOUR.
REDEMPTION OF SENIOR DEBT SECURITIES - SINKING FUND.
SECTION 4.01. Subject to any contrary provisions set forth in the
related Series Supplement, the Company may, at its option, at any time prior to
maturity, redeem all, or from time to time any part, of the Senior Debt
Securities of a Series, otherwise than through the operation of the Sinking
Fund provided for in this Article Four, at the redemption prices and upon the
conditions, if any, applicable thereto, as permitted by the related Series
Supplement for redemption otherwise than through the operation of the Sinking
Fund. The election of the Company to exercise such option shall be evidenced
by an Officers' Certificate.
Unless otherwise specified in the related Series Supplement, the
Company may not, however, redeem any of the Senior Debt Securities of a Series
pursuant to such option prior to the time prescribed by the terms of the Series
Supplement creating the particular Series, directly or indirectly from or in
anticipation of money borrowed having an interest cost to the Company of less
than the interest rate applicable to the Senior Debt Securities of such Series.
In the event the Company shall optionally redeem any Senior Debt Securities of
a Series prior to such time, the Company shall deliver to the Trustee an
Officers' Certificate stating that such redemption will comply with this
requirement.
SECTION 4.02. In case the Company shall desire to exercise such right
to redeem all or, as the case may be, any part of the Senior Debt Securities in
accordance with the right reserved so to do, it shall so notify the Trustee in
writing and it shall give notice of such redemption to holders of the Senior
Debt Securities to be redeemed as hereinafter in this Section 4.02 provided.
Notice of redemption shall be given to the holders of Senior Debt
Securities to be redeemed as a whole or in part by mailing by first-class mail
a notice of such redemption not less than 20 nor more than 60 days prior to the
date fixed for redemption to their last addresses as they shall appear upon the
Senior Debt Security Register, but failure to give such notice by mail to the
holders of any Senior Debt Security, or any defect therein, shall not affect
the validity of the proceedings for the redemption of any other Senior Debt
Security.
Each such notice of redemption shall specify the date fixed for
redemption and the redemption price at which Senior Debt Securities are to be
redeemed, and shall state that payment of the redemption price of the Senior
Debt Securities to be redeemed will be made at the offices or agencies to be
maintained by the Company in accordance with the provisions of Section 5.02,
upon presentation and surrender of such Senior Debt Securities, that interest
accrued to the date fixed for redemption will be paid as specified in said
notice, and that on and after said date interest thereon
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<PAGE> 29
will cease to accrue. If less than all the Senior Debt Securities are to be
redeemed, the notice of redemption shall specify the Senior Debt Securities to
be redeemed as a whole or in part. In case any Senior Debt Security is to be
redeemed in part only, the notice which relates to such Senior Debt Security
shall state the portion of the principal amount thereof to be redeemed, and
shall state that on and after the redemption date, upon surrender of such
Senior Debt Security, a new Senior Debt Security or Senior Debt Securities of a
like Series in principal amount equal to the unredeemed portion thereof will be
issued.
If less than all the Senior Debt Securities of a Series are to be
redeemed, the Company shall give the Trustee at least 45 days' written notice
in advance of the date fixed for redemption as to the aggregate principal
amount of Senior Debt Securities of such Series to be redeemed, and thereupon
the Trustee shall select, by random lot, the particular Senior Debt Securities
of such Series to be redeemed in whole or in part and shall thereafter promptly
notify the Company in writing of the numbers of the Senior Debt Securities of
such Series or portions thereof to be redeemed. The selection of Senior Debt
Securities to be redeemed may provide for the selection of portions (equal to
$1,000 (unless otherwise provided in the related Series Supplement) or a
multiple thereof) of the principal of Senior Debt Securities of a denomination
larger than $1,000 (unless otherwise provided in the related Series
Supplement). The Senior Debt Securities (or portions thereof) so selected
shall be deemed duly designated for redemption for all purposes of this
Indenture. For the purposes of such selection, the Company will close the
Senior Debt Security Register with respect to such Series for the purposes of
exchange and transfer of Senior Debt Securities of such Series, for a period
not exceeding 15 days.
SECTION 4.03. If the giving of notice of redemption shall have been
completed as above provided, the Senior Debt Securities or portions of Senior
Debt Securities specified in such notice shall become due and payable on the
date and at the place stated in such notice at the applicable redemption price,
together with interest accrued to the date fixed for redemption, and on and
after such date fixed for redemption (unless the Company shall default in the
payment of such Senior Debt Securities at the redemption price, together with
interest accrued to the date fixed for redemption) interest on the Senior Debt
Securities or portions of Senior Debt Securities so called for redemption shall
cease to accrue. On presentation and surrender of such Senior Debt Securities
at the place stated in said notice, the said Senior Debt Securities shall be
paid and redeemed by the Company at the applicable redemption price, together
with interest accrued to the date fixed for redemption.
Upon presentation of any Senior Debt Security which is redeemed in
part only, the Company shall execute, and the Trustee shall authenticate and
deliver, at the expense of the Company, a new Senior Debt Security or Senior
Debt Securities of a like Series in principal amount equal to the unredeemed
portion of the Senior Debt Security so presented. Prior to the date fixed for
the redemption of any Senior Debt Securities as provided in this Article Four,
the Company shall deposit in trust with the Trustee or with any paying agent,
or if and to the extent that it shall be acting as its own paying agent, the
Company shall set aside, segregate and hold in trust, funds sufficient to
redeem the Senior Debt Securities or portions thereof to be redeemed on such
date, at the applicable redemption price, together with interest accrued to the
date fixed for redemption.
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<PAGE> 30
SECTION 4.04. As and for a Sinking Fund for the retirement of Senior
Debt Securities of a Series, if as set forth in the related Series Supplement
the Company so elects to include a Sinking Fund obligation in the terms of the
Senior Debt Securities of a particular Series, the Company covenants that on or
before the applicable date or dates set forth in the Series Supplement, it will
pay to the Trustee a sum in cash sufficient to retire by redemption at the
Sinking Fund redemption price the principal amount of the Senior Debt
Securities of such Series on the date as prescribed by the terms of the Series
Supplement creating the particular Series; provided, however, that in any such
year in which such day is not a business day, such payment shall be made to the
Trustee on the last business day preceding such day. In any year, the Company
may, at its sole option, increase the payment required to be made pursuant to
this Section 4.04 for such year by an amount as prescribed by the terms of such
Series Supplement; provided that such increase shall be an integral multiple of
$1,000 (unless otherwise provided in the related Series Supplement).
All cash paid to the Trustee pursuant to the provisions of this
Section 4.04 shall be applied in accordance with the provisions of this Article
Four.
SECTION 4.05. In lieu of making all or any part of any mandatory
Sinking Fund payment as required pursuant to Section 4.04 in cash, the Company
may (a) deliver to the Trustee for cancellation Senior Debt Securities of such
Series theretofore issued and acquired by the Company at any time prior to the
first day of the month next preceding the due date of such payment and not
theretofore made the basis for the reduction of a Sinking Fund payment, or (b)
deliver to the Trustee an Officers' Certificate setting forth the principal
amount of any Senior Debt Securities of such Series theretofore redeemed and
paid pursuant to the provisions of this Article Four (otherwise than through
the operation of the mandatory Sinking Fund), or which have been duly called
for redemption (otherwise than through the operation of the mandatory Sinking
Fund) and the redemption price of which, together with the accrued interest
thereon, shall have been deposited in trust for that purpose, as in this
Article Four provided, and in either case not theretofore made the basis of the
reduction of a Sinking Fund payment; and in each such case the principal amount
of Senior Debt Securities of such Series required by Section 4.04 to be
redeemed shall be reduced to the extent of the principal amount of the Senior
Debt Securities of such Series so delivered or referred to in such certificate.
SECTION 4.06. On or before the applicable date specified in the
Series Supplement of each year in which the Company is obligated to make a
Sinking Fund payment, the Company shall deliver to the Trustee:
(a) An Officer's Certificate stating:
(i) the manner in which the Company will fulfill its
Sinking Fund obligation under this Article Four for that year;
(ii) the amount of cash, if any, which the Company will
pay to the Trustee on or before the next succeeding Sinking Fund
payment date;
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(iii) the principal amount of Senior Debt Securities of
such Series, if any, which the Company will surrender to the Trustee
for cancellation in lieu of the payment of cash, and that such Senior
Debt Securities were theretofore issued and acquired by the Company
prior to said Sinking Fund payment date and have not theretofore been
made the basis for the reduction of a Sinking Fund payment; and
(iv) the principal amount of any Senior Debt Securities of
such Series set forth in a certificate of the character described in
clause (b) of Section 4.05, if any such certificate is to be
concurrently delivered to the Trustee;
(b) The Senior Debt Securities, if any, referred to in Section
4.06(a)(iii); and
(c) The certificate, if any, referred to in Section 4.06(a)(iv).
SECTION 4.07. On or before the applicable date specified in the
Series Supplement or, if such day is not a business day, on the last business
day preceding such date of each year in which the Company is obligated to make
a Sinking Fund payment, the Company shall pay to the Trustee the amount of
cash, if any, payable on or before such Sinking Fund payment date, after giving
credit for the principal amount of any Senior Debt Securities delivered
pursuant to clause (a) of Section 4.05 or referred to in any certificate
delivered pursuant to clause (b) of Section 4.05, in respect of such Sinking
Fund payment date.
SECTION 4.08. In the event that the amount of cash specified in the
certificate given pursuant to Section 4.06, plus the amount, if any, of cash
then held pursuant to Section 4.10, is in excess of one percent of the required
sinking fund payment, the Trustee shall, as soon as practicable after the
receipt of such certificate, take the action herein specified to call for
redemption, at the Sinking Fund redemption price, on the next succeeding
Sinking Fund payment date, an amount of Senior Debt Securities of such Series
sufficient to exhaust such funds as nearly as may be.
SECTION 4.09. The Senior Debt Securities to be redeemed from time to
time as provided in Section 4.04 or Section 4.08 shall be selected by the
Trustee for redemption in the manner provided in Section 4.02 and notice
thereof shall be given by the Trustee to the Company, and the Company hereby
irrevocably authorizes the Trustee, in the name of and at the expense of the
Company, to give notice on behalf of the Company of the call of such Senior
Debt Securities, all in the manner and with the effect in this Article Four
specified, except that, in addition to the matters required to be included in
such notice by Section 4.02, such notice shall also state that the Senior Debt
Securities therein designated for redemption are to be redeemed through
operation of the Sinking Fund. Such Senior Debt Securities shall be redeemed
and paid in accordance with such notice in the manner and with the effect
provided in Sections 4.02 and 4.03.
Senior Debt Securities redeemed through operation of the Sinking Fund
are to be redeemed at the redemption price prescribed by the terms of the
Series Supplement creating the particular Series for redemption through
operation of the Sinking Fund, such price being sometimes referred to herein as
the Sinking Fund redemption price.
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SECTION 4.10. In the event that at the time of the receipt of the
Officers' Certificate required by Section 4.06 the sum of the amount of cash
required to be paid to the Trustee pursuant to Section 4.07 and the amount of
cash then in the hands of the Trustee in the Sinking Fund and not required for
payment of Senior Debt Securities previously called for redemption or purchased
through operation of the Sinking Fund, is one percent of the amount of the
required Sinking Fund payment or less, such moneys shall not, unless requested
by the Company, in said Officers' Certificate, be applied to the redemption of
Senior Debt Securities, but shall be retained by the Trustee in the manner
directed by the Company in writing and added to the Sinking Fund payment to be
made in cash on the next succeeding Sinking Fund payment date, or, upon request
of the Company, shall be applied by the Trustee, to the extent practicable,
prior to the next succeeding Sinking Fund payment date to the purchase of
Senior Debt Securities of such Series, by public or private purchase in the
open market or otherwise, at prices (excluding accrued interest and brokerage
commissions) not exceeding the Sinking Fund redemption price.
SECTION 4.11. All Senior Debt Securities surrendered to or purchased
by the Trustee, pursuant to the provisions of this Article Four, shall be
forthwith canceled by it, and at the written direction of the Company, such
Senior Debt Securities shall be disposed of by the Trustee, which shall deliver
its certificate of disposition thereof to the Company.
SECTION 4.12. The Trustee shall not redeem any Senior Debt Securities
of a Series with Sinking Fund moneys or mail any notice of redemption of Senior
Debt Securities of a Series during the continuance of any Event of Default with
respect to the Senior Debt Securities of such Series, except that where notice
of redemption of any Senior Debt Securities shall have been mailed prior to the
occurrence of such Event of Default, the Trustee shall redeem such Senior Debt
Securities provided funds are deposited with it for such purpose. Except as
aforesaid, any moneys in the Sinking Fund at such time, and any moneys
thereafter paid into the Sinking Fund, shall during the continuance of an Event
of Default be held as security for the payment of all the Senior Debt
Securities; provided, however, that in case such Event of Default shall have
been waived as permitted by this Indenture or otherwise cured, such moneys
shall thereafter be held and applied in accordance with the provisions of this
Article Four.
ARTICLE FIVE.
PARTICULAR COVENANTS OF THE COMPANY.
SECTION 5.01. The Company will duly and punctually pay or cause to be
paid the principal of and premium, if any, and interest on each of the Senior
Debt Securities at the place, at the respective times and in the manner
provided in the Senior Debt Securities.
SECTION 5.02. As long as any of the Senior Debt Securities remain
outstanding, the Company will maintain in the City of Dallas, Texas, an office
or agency where the Senior Debt Securities may be presented for registration of
transfer and exchange as in this Indenture provided, and where the Senior Debt
Securities may be presented for payment, and where notices or demands to or
upon the Company in respect of the Senior Debt Securities or of this Indenture
may be served. Such an office or agency may also be maintained by the Company,
at its option, in other locations. Until otherwise
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designated by the Company in a written notice to the Trustee, such office or
agency for purposes of registration of transfer and exchange and presentation
for payment shall be the corporate trust office of the Trustee. In case the
Company shall fail to maintain such office or agency or shall fail to give such
notice of the location or of any change in the location thereof, notices or
demands may be served at the corporate trust offices of the Trustee.
SECTION 5.03. In order to prevent any accumulation of claims for
interest after maturity thereof, the Company will not directly or indirectly
extend or consent to the extension of the time for the payment of any claim for
interest on any of the Senior Debt Securities of a Series and will not directly
or indirectly be a party to or approve any such arrangement by the purchase or
funding of said claims for interest or in any other manner. No claim for
interest, the time of payment of which shall have been so extended or which
shall have been so purchased or funded, shall be entitled, in case of an Event
of Default with respect to the Senior Debt Securities of such Series hereunder,
to the benefit of this Indenture except after the prior payment in full of the
principal of all the Senior Debt Securities of such Series and premiums, if
any, and of all claims for interest not so extended, purchased or funded;
provided, however, that this Section 5.03 shall not apply in any case where an
extension shall be made pursuant to a plan proposed by the Company to the
holders of all the Senior Debt Securities of such Series then outstanding.
SECTION 5.04. The Company, whenever necessary to avoid or fill a
vacancy in the office of Trustee, will appoint, in the manner provided in
Section 8.10, a Trustee, so that there shall at all times be a Trustee
hereunder.
SECTION 5.05. (a) The Trustee is appointed the initial paying
agent. If the Company shall appoint a paying agent other than the Trustee, it
will cause such paying agent to execute and deliver to the Trustee an
instrument in which such agent shall agree with the Trustee, subject to the
provisions of this Section 5.05:
(1) that it will hold all sums held by it as such agent
for the payment of the principal of and premium, if any, and interest
on the Senior Debt Securities of a Series (whether such sums have been
paid to it by the Company or by any other obligor on the Senior Debt
Securities) in trust for the benefit of the holders of the Senior Debt
Securities of such Series,
(2) that it will give the Trustee written notice of any
default by the Company (or by any other obligor on the Senior Debt
Securities of any Series) in making any payment of the principal of or
premium, if any, or interest on the Senior Debt Securities of a Series
when the same shall be due and payable, and
(3) that it will, at any time during the continuance of
any such default, upon the written request of the Trustee, forthwith
pay to the Trustee all sums so held in trust by such paying agent.
(b) If the Company shall act as its own paying agent, it will, on
or before each due date of the principal of and premium, if any, or interest on
the Senior Debt Securities of a Series, set
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aside, segregate and hold in trust for the benefit of the holders of the Senior
Debt Securities of such Series a sum sufficient to pay such principal and
premium, if any, or interest so becoming due. The Company will promptly notify
the Trustee in writing of any failure by it to take such action or the failure
by any other obligor on the Senior Debt Securities of such Series to make any
payment of the principal of or premium, if any, or interest on the Senior Debt
Securities of such Series when the same shall be due and payable.
(c) Anything in this Section 5.05 to the contrary notwithstanding,
the Company may, at any time, for the purpose of obtaining a satisfaction and
discharge of this Indenture, or for any other reason, pay or cause to be paid
to the Trustee all sums held in trust by it or any paying agent hereunder, as
required by this Section 5.05, such sums to be held by the Trustee upon the
trusts herein contained.
(d) Anything in this Section 5.05 to the contrary notwithstanding,
the agreement to hold sums in trust as provided in this Section 5.05 is subject
to the provisions of Section 13.03 and 13.04.
SECTION 5.06. On or before the 90th day after the end of the
Company's fiscal year beginning with the fiscal year ended March 31, 1999, the
Company will file with the Trustee a certificate from its principal executive
officer, principal financial officer or principal accounting officer as to his
or her knowledge of the Company's compliance with all conditions and covenants
under this Indenture.
ARTICLE SIX.
LISTS OF HOLDERS OF SENIOR DEBT SECURITIES AND
REPORTS BY THE COMPANY AND THE TRUSTEE.
SECTION 6.01. The Company covenants and agrees that it will furnish
or cause to be furnished to the Trustee within 60 days after each interest
payment date and at such other times as the Trustee may request in writing,
within 30 days after receipt by the Company of any such request, a list in such
form as the Trustee may reasonably require containing all information in the
possession or control of the Company, or any of its paying agents, other than
the Trustee, as to the names and addresses of the holders of the Senior Debt
Securities of any Series obtained since the date as of which the next previous
list, if any, was furnished with respect to such Series; but so long as the
Trustee is the Senior Debt Security Registrar no such list shall be required to
be furnished. Any such list may be dated as of a date not more than 15 days
prior to the time such information is furnished or caused to be furnished, and
need not include information received after such date.
SECTION 6.02. (a) The Trustee shall preserve, in as current a form as
reasonably practicable, all information as to the names and addresses of the
holders of Senior Debt Securities (1) contained in the most recent list
furnished to it as provided in Section 6.01 and (2) received by it in the
capacity of Senior Debt Security Registrar or of paying agent (if so acting)
hereunder. The Trustee may destroy any list furnished to it pursuant to
Section 6.01 upon receipt of a new list so furnished.
(b) In case three or more holders of Senior Debt Securities
(hereinafter referred to as "applicants") apply in writing to the Trustee, and
furnish to the Trustee reasonable proof that each
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such applicant has owned a Senior Debt Security for a period of at least six
months preceding the date of such application, and such application states that
the applicants desire to communicate with other holders of Senior Debt
Securities of a particular Series (in which case the applicants must all hold
Senior Debt Securities of such Series) or with holders of all Senior Debt
Securities with respect to their rights under this Indenture or under the
Senior Debt Securities, and is accompanied by a copy of the form of proxy or
other communication which such applicants propose to transmit, then the Trustee
shall, within five business days after the receipt of such application, at its
election, either:
(1) afford such applicants access to the information
preserved at the time by the Trustee in accordance with the provisions
of subsection (a) of this Section 6.02, or
(2) inform such applicants as to the approximate number
of holders of Senior Debt Securities of such Series or all Senior Debt
Securities, as the case may be, whose names and addresses appear in
the information preserved at the time by the Trustee, in accordance
with the provisions of subsection (a) of this Section 6.02, and as to
the approximate cost of mailing to such holders the form of proxy or
other communication, if any, specified in such application.
If the Trustee shall elect not to afford such applicants access to
such information the Trustee shall, upon the written request of such
applicants, mail to each holder of such Series or all Senior Debt Securities,
as the case may be, whose name and address appears in the information preserved
at the time by the Trustee in accordance with the provisions of subsection (a)
of this Section 6.02, a copy of the form of proxy or other communication which
is specified in such request, with reasonable promptness after a tender to the
Trustee of the material to be mailed and of payment, or provision for the
payment, of the reasonable expenses of mailing, unless within five days after
such tender, the Trustee shall mail to such applicants and file with the
Securities and Exchange Commission, together with a copy of the material to be
mailed, a written statement to the effect that, in the opinion of the Trustee,
such mailing would be contrary to the best interests of the holders of Senior
Debt Securities of such Series or all Senior Debt Securities, as the case may
be, or would be in violation of applicable law. Such written statement shall
specify the basis of such opinion. If said Commission, after opportunity for a
hearing upon the objections specified in the written statements so filed, shall
enter an order refusing to sustain any of such objections or if, after the
entry of an order sustaining one or more of such objections, said Commission
shall find, after notice and opportunity for hearing, that all the objections
so sustained have been met and shall enter an order so declaring, the Trustee
shall mail copies of such material to all holders of Senior Debt Securities of
such Series or all Senior Debt Securities, as the case may be, with reasonable
promptness after the entry of such order and the renewal of such tender;
otherwise the Trustee shall be relieved of any obligation or duty to such
applicants respecting their application.
(c) Each and every holder of the Senior Debt Securities, by
receiving and holding the same, agrees with the Company and the Trustee that
neither the Company nor the Trustee nor any paying agent nor any Senior Debt
Security Registrar should be held accountable by reason of the disclosure of
any such information as to the names and addresses of the holders of Senior
Debt Securities in accordance with the provisions of subsection (b) of this
Section 6.02, regardless of the source from which such information was derived,
and that the Trustee shall not be held accountable
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by reason of mailing any material pursuant to a request made under said
subsection (b) or for taking any action in good faith under said subsection
(b).
SECTION 6.03. (a) The Company covenants and agrees to file with
the Trustee, within 15 days after the Company is required to file the same with
the Securities and Exchange Commission, copies of the annual reports and of the
information, documents and other reports (or copies of such portions of any of
the foregoing as said Commission may from time to time by rules and regulations
prescribe) which the Company may be required to file with said Commission
pursuant to section 13 or section 15(d) of the Securities Exchange Act of 1934;
or, if the Company is not required to file information, documents or reports
pursuant to either of such sections, then to file with the Trustee and said
Commission, in accordance with rules and regulations prescribed from time to
time by said Commission, such supplementary and periodic information, documents
and reports which may be required pursuant to section 13 of the Securities
Exchange Act of 1934 in respect of a security listed and registered on a
national securities exchange as may be prescribed from time to time in such
rules and regulations.
(b) The Company covenants and agrees to file with the Trustee and
the Securities and Exchange Commission, in accordance with the rules and
regulations prescribed from time to time by said Commission, such additional
information, documents and reports with respect to compliance by the Company
with the conditions and covenants provided for in the Indenture as may be
required from time to time by such rules and regulations.
(c) The Company covenants and agrees to transmit by mail to the
holders of Senior Debt Securities as their names and addresses appear on the
Senior Debt Security Register for each Series of Senior Debt Securities, (1)
within 30 days after the filing thereof with the Trustee, such summaries of any
information, documents and reports required to be filed by the Company pursuant
to subsections (a) and (b) of this Section 6.03 as may be required by rules and
regulations prescribed from time to time by the Securities and Exchange
Commission, and (2) within 120 days after the end of each fiscal year of the
Company, copies of audited financial statements, on a consolidated basis if
applicable, including balance sheets, statements of operations, statements of
shareholders' equity and statements of changes in financial position, together
with the respective reports of independent certified public accountants
relating thereto.
SECTION 6.04. (a) Within 60 days after May 15 of each year
commencing with the year 1999, so long as any Senior Debt Securities of a
particular Series are outstanding hereunder, the Trustee shall transmit to the
holders of each such Series as hereinafter in this Section 6.04 provided, a
brief report dated as of such May 15, with respect to any of the following
events which may have occurred within the previous twelve months (but if no
such event has occurred within such period, no report needs to be transmitted):
(1) any change to its eligibility under Section 8.09, and
its qualifications under Section 8.08;
(2) the creation of or any material change to a
relationship specified in paragraphs (1) through (10) of Section
8.08(c);
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(3) the character and amount of any advances (and if the
Trustee elects so to state, the circumstances surrounding the making
thereof) made by the Trustee (as such) which remain unpaid on the date
of such report, and for the reimbursement of which it claims or may
claim a lien or charge, prior to that of the Senior Debt Securities of
such Series, on any property or funds held or collected by it as
Trustee, except that the Trustee shall not be required (but may elect)
to report such advances if such advances so remaining unpaid aggregate
not more than one-half of one percent of the principal amount of the
Senior Debt Securities of such Series outstanding on the date of such
report;
(4) the amount, interest rate and maturity date of all
other indebtedness owing by the Company (or by any other obligor on
the Senior Debt Securities) to the Trustee in its individual capacity,
on the date of such report, with a brief description of any property
held as collateral security therefor, except an indebtedness based
upon a creditor relationship arising in any manner described in
paragraphs (2), (3), (4) or (6) of subsection (b) of Section 8.13;
(5) any change to the property and funds, if any,
physically in the possession of the Trustee as such on the date of
such report;
(6) any change to any release, or release and
substitution, of property subject to the lien of this Indenture (and
consideration therefor, if any) not previously reported;
(7) any additional issue of Senior Debt Securities not
previously reported; and
(8) any action taken by the Trustee in the performance of
its duties under this Indenture which it has not previously reported
and which in its opinion materially affects the Senior Debt Securities
except action in respect of a default, notice of which has been or is
to be withheld by it in accordance with the provisions of Section
7.07.
(b) The Trustee shall transmit to the holders of a Series, as
hereinafter provided, a brief report with respect to the character and amount
of any advances (and if the Trustee elects so to state, the circumstances
surrounding the making thereof) made by the Trustee as such since the date of
the last report transmitted pursuant to the provisions of subsection (a) of
this Section 6.04 (or if no such report has yet been so transmitted, since the
date of execution of this Indenture), for the reimbursement of which it claims
or may claim a lien or charge prior to that of the Senior Debt Securities of
such Series, on property or funds held or collected by it as Trustee, and which
it has not previously reported pursuant to this subsection (b), except that the
Trustee shall not be required (but may elect) to report such advances if such
advances remaining unpaid at any time aggregate 10 percent or less of the
principal amount of Senior Debt Securities of such Series outstanding at such
time, such report to be transmitted within 90 days after such time.
(c) Reports pursuant to this Section 6.04 shall be transmitted by
mail to all holders of Senior Debt Securities of a Series, as the names and
addresses of such holders appear upon the Senior Debt Security Register.
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(d) A copy of each such report shall, at the time of such
transmission to holders, be filed by the Trustee with each stock exchange upon
which the Senior Debt Securities are listed and also with the Securities and
Exchange Commission. The Company agrees to notify the Trustee when and as the
Senior Debt Securities of any Series become listed on any stock exchange.
ARTICLE SEVEN.
REMEDIES OF THE TRUSTEE AND HOLDERS OF SENIOR
DEBT SECURITIES IN EVENT OF DEFAULT.
SECTION 7.01. In case one or more of the following Events of Default
with respect to the Senior Debt Securities of a Series shall have occurred and
be continuing, that is to say:
(a) default in the payment of any installment of interest upon any
of the Senior Debt Securities of such Series as and when the same shall become
due and payable, and continuance of such default for a period of 30 days; or
(b) default in the payment of the principal of or premium, if any,
on any of the Senior Debt Securities of such Series or of any Sinking Fund
payment as and when the same shall become due and payable either at maturity,
upon redemption, by declaration or otherwise; or
(c) failure on the part of the Company duly to observe or perform
any other of the covenants or agreements on the part of the Company in the
Senior Debt Securities or in this Indenture contained for a period of 60 days
after the date on which written notice (such written notice to state it is a
"Notice of Default" hereunder) of such failure, requiring the Company to remedy
the same, shall have been given to the Company by the Trustee, or to the
Company and the Trustee by the holders of at least 25 per cent in principal
amount of the Senior Debt Securities of such Series at the time outstanding; or
(d) a court having jurisdiction in the premises shall enter a
decree or order for relief in respect of the Company in an involuntary case
under any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, or appointing a receiver, liquidator, assignee, custodian,
trustee, sequestrator (or similar official) of the Company or for any
substantial part of its property or ordering the winding up or liquidation of
its affairs, and such decree or order shall remain unstayed and in effect for a
period of 60 consecutive days; or
(e) the Company shall commence a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, or shall consent to the entry of an order for relief in an involuntary
case under any such law, or consent to the appointment or taking possession by
a receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar
official) of the Company or for any substantial part of its property, or make
any general assignment for the benefit of creditors, or shall fail generally to
pay its debts as they become due, or corporate action shall be taken by the
Company in furtherance of any such action; then, and in each and every such
case, unless the principal of all the Senior Debt Securities of such Series
shall have already become due and payable, either the Trustee or the holders of
not less than 25 per cent in aggregate principal amount of the Senior Debt
Securities of such Series then outstanding hereunder, by notice in writing to
the Company (and to the Trustee if given by holders of Senior Debt Securities),
may, and at the request of the holders of not less than 25 per cent in
aggregate principal
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amount of the Senior Debt Securities of such Series then outstanding hereunder,
the Trustee by notice in writing to the Company shall, declare the principal of
all the Senior Debt Securities of such Series to be due and payable
immediately, and upon any such declaration the same shall become and shall be
immediately due and payable, anything in this Indenture or in the said Senior
Debt Securities of such Series contained to the contrary notwithstanding. This
provision, however, is subject to the condition that if, at anytime after the
principal of the Senior Debt Securities of such Series shall have been so
declared due and payable, and before any judgment or decree for the payment of
the moneys due shall have been obtained or entered as hereinafter provided, the
Company shall pay or shall deposit with the Trustee a sum sufficient to pay all
matured installments of interest upon all the Senior Debt Securities of that
Series and the principal of and premium, if any, on any and all such Senior
Debt Securities which shall have become due otherwise than by acceleration
(with interest upon such principal and premium, if any, and, to the extent that
payment of such interest is enforceable under applicable law, upon overdue
installments of interest, at the rate borne by the Senior Debt Securities of
that Series to the date of such payment or deposit) and such amount as shall be
sufficient to cover reasonable compensation to the Trustee, its agents and
counsel, and all other expenses and liabilities incurred, and all advances
made, by the Trustee except as a result of its negligence or bad faith, and any
and all defaults under the Indenture, other than the nonpayment of the
principal of Senior Debt Securities of that Series which shall have become due
by acceleration, shall have been remedied -- then, and in every such case, the
holders of a majority in aggregate principal amount of the Senior Debt
Securities of such Series then outstanding, by written notice to the Company
and to the Trustee, may waive all defaults and rescind and annul such
declaration and its consequences; but no such waiver or rescission and
annulment shall extend to or shall affect any subsequent default or shall
impair any right consequent thereon.
In case the Trustee shall have proceeded to enforce any right under
this Indenture and such proceedings shall have been discontinued or abandoned
because of such rescission or annulment or for any other reason or shall have
been determined adversely to the Trustee, then, and in every such case, the
Company, the Trustee and the holders of the Senior Debt Securities of such
Series shall be restored respectively to their former positions and rights
hereunder, and all rights, remedies and powers of the Company and the Trustee
and the holders of the Senior Debt Securities of such Series shall continue as
though no such proceedings had been taken.
The Trustee shall not be charged with notice of any default or Event
of Default under subsections (c), (d) or (e) of this Section 7.01 unless the
Trustee shall have actually received (at its corporate trust office) written
notice thereof from the Company or any holder of Senior Debt Securities
describing said default or Event of Default.
SECTION 7.02. The Company covenants that (1) in case default shall be
made in the payment of any installment of interest on any of the Senior Debt
Securities of a Series, as and when the same shall become due and payable, and
such default, shall have continued for a period of 60 days, or (2) in case
default shall be made in the payment of the principal of or premium, if any, on
any of the Senior Debt Securities of a Series or of any Sinking Fund payment
when the same shall have become
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payable, whether upon maturity of the Senior Debt Securities of such Series or
upon redemption or upon declaration or otherwise then, upon demand of the
Trustee, the Company will pay to the Trustee, for the benefit of the holders of
the Senior Debt Securities of such Series, the whole amount that then shall
have become due and payable on all such Senior Debt Securities of such Series
for principal and premium, if any, or interest, or both, as the case may be,
with interest upon the overdue principal and premium, if any, and (to the
extent that payment of such interest is enforceable under applicable law) upon
overdue installments of interest at the rate borne by the Senior Debt
Securities of such Series; and, in addition thereto, such further amount as
shall be sufficient to cover reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel.
In case the Company shall fail forthwith to pay such amounts upon such
demand, the Trustee, in its own name and as trustee of an express trust, shall
be entitled and empowered to institute any action or proceedings at law or in
equity for the collection of the sums so due and unpaid, and may prosecute any
such action or proceedings to judgment or final decree, and may enforce any
such judgment or final decree against the Company or any other obligor upon the
Senior Debt Securities and collect in the manner provided by law out of the
property of the Company or other obligor upon the Senior Debt Securities
wherever situated the moneys adjudged or decreed to be payable.
In case there shall be pending proceedings for the bankruptcy or for
the reorganization of the Company or any other obligor upon the Senior Debt
Securities under the Federal bankruptcy laws, as now or hereafter constituted,
or any other Federal or State bankruptcy, insolvency or similar laws relative
to the Company or to such other obligor, its creditors or its property, or in
case a receiver or trustee shall have been appointed for its property, or in
case of any other judicial proceedings relative to the Company or other obligor
upon the Senior Debt Securities, its creditors or its property, the Trustee
irrespective of whether the principal of any Senior Debt Securities shall then
be due and payable as therein expressed or by declaration or otherwise and
irrespective of whether the Trustee shall have made any demand pursuant to the
provisions of this Section 7.02, shall be entitled and empowered, by
intervention in such proceedings or otherwise, to file and prove a claim or
claims for the whole amount of principal and premium, if any, and interest
owing and unpaid in respect of the Senior Debt Securities, and to file such
other papers or documents as may be necessary or advisable in order to have the
claims of the Trustee (including any claim for reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel)
and of the holders of Senior Debt Securities allowed in any judicial
proceedings relative to the Company or other obligor upon the Senior Debt
Securities, its creditors or its property, and to collect and receive any
moneys or other property payable or deliverable on any such claims, and to
distribute all amounts received with respect to the claims of the holders of
Senior Debt Securities and of the Trustee on their behalf; and any receiver,
assignee, liquidator, sequestrator or trustee in bankruptcy or reorganization
is hereby authorized by each of the holders of Senior Debt Securities to make
payments to the Trustee, and, in the event that the Trustee shall consent to
the making of payments directly to the holders of Senior Debt Securities, to
pay to the Trustee such amount as shall be sufficient to cover reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due to the Trustee under Section 8.06.
All rights of action and of asserting claims under this Indenture, or
under any of the Senior Debt Securities, may be enforced by the Trustee without
the possession of any of the Senior Debt
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Securities, or the production thereof in any trial or other proceedings
relative thereto, and any such action or proceedings instituted by the Trustee
shall be brought in its own name and as trustee of an express trust, and any
recovery of judgment shall be for the ratable benefit of the holders of the
Senior Debt Securities.
In case of a default of which the Trustee has or is deemed to have
notice hereunder occurs and is continuing, the Trustee may in its discretion
proceed to protect and enforce the rights vested in it by this Indenture by
such appropriate judicial proceedings as the Trustee shall deem most effectual
to protect and enforce any of such rights, either at law or in equity or in
bankruptcy or otherwise, whether for the specified enforcement of any covenant
or agreement contained in this Indenture or in aid of the exercise of any power
granted in this Indenture, or to enforce any other legal or equitable right
vested in the Trustee by this Indenture or by law.
SECTION 7.03. Any moneys collected by the Trustee pursuant to Section
7.02 shall be applied in the following order, at the date or dates fixed by the
Trustee and, in case of the distribution of such moneys on account of principal
or premium, if any, or interest, upon presentation of the several Senior Debt
Securities, and stamping thereon the payment, if only partially paid, and upon
surrender thereof if fully paid:
FIRST: To the payment of costs and expenses of collection,
and reasonable compensation, expenses, disbursements and advances of
the Trustee, it agents and counsel, and any other amounts due to the
Trustee under this Indenture, including without limitation amounts due
under Section 8.06;
SECOND: In case the principal of the Senior Debt Securities
of a Series shall not have become due, to the payment of interest on
the Senior Debt Securities, in the order of the maturity of the
installments of such interest, with interest (to the extent that such
interest has been collected by the Trustee) upon the overdue
installments of interest at the rate borne by the Senior Debt
Securities of such Series, such payments to be made ratably to the
persons entitled thereto, without discrimination or preference;
THIRD: In case the principal of the Senior Debt Securities of
a Series shall have become due, by declaration or otherwise, to the
payment of the whole amount then owing and unpaid upon the Senior Debt
Securities of such Series for principal, and premium, if any, and
interest, with interest on the overdue principal, and premium, if any,
and (to the extent that such interest has been collected by the
Trustee) upon overdue installments of interest at the rate borne by
the Senior Debt Securities of such Series; and in case such moneys
shall be insufficient to pay in full the whole amount so due and
unpaid on the Senior Debt Securities of such Series, then to the
payment of such principal, and premium, if any, and interest, without
preference or priority of principal, and premium, if any, over
interest, or of interest over principal, and premium, if any, or of
any installment of interest over any other installment of interest, or
of any Senior Debt Security of such Series over any other Senior Debt
Security of such Series, ratably to the aggregate of such principal,
and premium, if any, and accrued and unpaid interest.
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SECTION 7.04. No holder of any Senior Debt Security of a Series shall
have any right by virtue or by availing of any provision of this Indenture to
institute any action or proceedings at law or in equity or in bankruptcy or
otherwise, upon or under or with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy hereunder, unless
such holder previously shall have given to the Trustee written notice of
default in respect of such Series and of the continuance thereof, as
hereinbefore provided, and unless also the holders of not less than 25 percent
in aggregate principal amount of the Senior Debt Securities of such Series then
outstanding shall have made written request upon the Trustee to institute such
action or proceedings in its own name as Trustee hereunder and shall have
furnished to the Trustee such reasonable indemnity as it may require against
the costs, expenses and liabilities to be incurred therein or thereby, and the
Trustee, for 60 days after its receipt of such notice, request and furnishing
of indemnity, shall have failed to institute any such action or proceedings and
no direction inconsistent with such written request shall have been given to
the Trustee pursuant to Section 7.06; it being understood and intended, and
being expressly covenanted by the taker and holder of every Senior Debt
Security of such Series with every other such taker and holder and the Trustee,
that no one or more holders of Senior Debt Securities of a Series shall have
any right in any manner whatever by virtue or by availing of any provision of
this Indenture to affect, disturb or prejudice the rights of the holders of any
other of such Senior Debt Securities of such Series, or to obtain or seek to
obtain priority over or preference to any other such holder, or to enforce any
right under this Indenture, except in the manner herein provided and for the
equal, ratable and common benefit of all holders of Senior Debt Securities of
such Series. For the protection and enforcement of the provisions of this
Section 7.04, each and every holder of such Series and the Trustee shall be
entitled to such relief as can be given either at law or in equity.
Notwithstanding any other provisions in this Indenture, however, the
right of any holder of any Senior Debt Security to receive payment of the
principal of, and premium, if any, and interest on, such Senior Debt Security,
on or after the respective due dates expressed in such Senior Debt Security, or
to institute suit for the enforcement of any such payment on or after such
respective dates, shall not be impaired or affected without the consent of such
holder.
SECTION 7.05. All powers and remedies given by this Article Seven to
the Trustee or to the holders of Senior Debt Securities shall, to the extent
permitted by law, be deemed cumulative and not exclusive of any thereof or of
any other powers and remedies available to the Trustee or such holders, by
judicial proceedings or otherwise, to enforce the performance or observance of
the covenants and agreements contained in this Indenture, and no delay or
omission of the Trustee or of any holder of any of the Senior Debt Securities
to exercise any right or power accruing upon any default occurring and
continuing as aforesaid, shall impair any such right or power, or shall be
construed to be a waiver of any such default or an acquiescence therein; and,
subject to the provisions of Section 7.04, every power and remedy given by this
Article Seven or by law to the Trustee or to the holders of Senior Debt
Securities may be exercised from time to time, and as often as shall be deemed
expedient, by the Trustee or by such holders.
SECTION 7.06. The holders of a majority in aggregate principal amount
of the Senior Debt Securities of a Series at the time outstanding shall have
the right to direct the time, method, and place of conducting any proceeding of
any remedy available to the Trustee with respect to the Senior Debt
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Securities of such Series, or exercising any trust or power conferred on the
Trustee with respect to such Series; provided, however, that the Trustee shall
be entitled to receive indemnity or security reasonably satisfactory to it
prior to following such direction or taking such action, and providing further
that subject to the provisions of Section 8.01 the Trustee shall have the right
to decline to follow any such direction if the Trustee being advised by counsel
shall determine that the action so directed may not lawfully be taken, or if
the Trustee in good faith shall, by a responsible officer or officers,
determine that the action so directed would be unduly prejudicial to the
holders of the Senior Debt Securities of such Series not taking part in such
direction or would involve the Trustee in personal liability. Prior to the
declaration of the maturity of the Senior Debt Securities of any Series as
provided in Section 7.01, the holders of a majority in aggregate principal
amount of the Senior Debt Securities of a Series at the time outstanding may on
behalf of the holders of all of the Senior Debt Securities of such Series waive
any past default hereunder and its consequences, except a default in the
payment of the principal of, or premium, if any, or interest on, any of the
Senior Debt Securities of such Series or in respect of a covenant or provision
hereof which under Section 11.02 cannot be modified or amended without the
consent of the holder of each Senior Debt Security so affected. In the case of
any such waiver, the Company, the Trustee and the holders of the Senior Debt
Securities of such Series shall be restored to their former positions and
rights hereunder, respectively; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
SECTION 7.07. The Trustee shall, within 90 days after the occurrence
of a default with respect to a Series of which the Trustee has or is deemed to
have knowledge hereunder, give to the holders of such Series, in the manner and
to the extent provided in subsection (c) of Section 6.04, notice of all such
defaults, unless such default shall have been cured before the giving of such
notice (the term "default" or "defaults" for the purposes of this Section 7.07
being hereby defined to be any event or events, as the case may be, specified
in clause (a), (b), (c), (d) and (e) of Section 7.01, not including periods of
grace, if any, provided for therein and irrespective of the giving of the
written notice specified in clause (c) of Section 7.01); provided, however,
that, except in the case of default in the payment of the principal of, or
premium, if any, or interest on, any of the Senior Debt Securities, or in the
payment of any Sinking Fund installment, the Trustee shall be protected in
withholding such notice if and so long as the board of directors, the executive
committee, or a trust committee of directors and/or responsible officers, of
the Trustee in good faith determines that the withholding of such notice is in
the interests of the holders of such Series.
SECTION 7.08. All parties to this Indenture agree, and each holder of
any Senior Debt Security by his acceptance thereof shall be deemed to have
agreed, that any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture, or in any suit against
the Trustee for any action taken or omitted by it as Trustee, the filing by any
party litigant in such suit of an undertaking to pay the costs of such suit,
and that such court may in its discretion assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in such suit, having due
regard to the merits and good faith of the claims or defenses made by such
party litigant; but the provisions of this Section 7.08 shall not apply to any
suit instituted by the Trustee, to any suit instituted by any holder of Senior
Debt Securities, or group of holders of Senior Debt Securities, holding in the
aggregate more than 10 percent in aggregate principal amount of the Senior Debt
Securities of a Series then outstanding, or to any suit instituted by any
holder of Senior Debt
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Securities for the enforcement of the payment of the principal of, or premium,
if any, or interest on, any Senior Debt Security, on or after the due date
expressed in such Senior Debt Security.
ARTICLE EIGHT.
CONCERNING THE TRUSTEE.
SECTION 8.01. The Trustee, prior to the occurrence of an Event of
Default with respect to the Senior Debt Securities of a particular Series and
after the curing or waiver of all Events of Default with respect to the Senior
Debt Securities of a particular Series which may have occurred, undertakes to
perform such duties and only such duties as are specifically set forth in this
Indenture. In case an Event of Default with respect to the Senior Debt
Securities of any Series has occurred (which has not been cured or waived), the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs.
No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own wilful misconduct, except that:
(a) prior to the occurrence of an Event of Default with respect to
the Senior Debt Securities of a particular Series and after the curing of all
Events of Default with respect to the Senior Debt Securities of any Series
which may have occurred:
(1) the duties and obligations of the Trustee shall be
determined solely by the express provisions of this Indenture, and the
Trustee shall not be liable except for the performance of such duties
and obligations as are specifically set forth in this Indenture, and
no implied covenants or obligations shall be read into this Indenture
against the Trustee; and
(2) in the absence of bad faith on the part of the
Trustee, the Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon
any certificates or opinions furnished to the Trustee and conforming
to the requirements of this Indenture; but in the case of any such
certificates or opinions which by any provision hereof are
specifically required to be furnished to the Trustee, the Trustee
shall be under a duty to examine the same to determine whether or not
they conform to the requirements of this Indenture;
(b) the Trustee shall not be liable for any error of judgment made
in good faith by a responsible officer, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts; and
(c) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with the
direction of the holders of not less than a majority in aggregate principal
amount of the Senior Debt Securities of a Series at the time outstanding
relating to the time, method and place of conducting any proceeding for any
remedy available to the Trustee,
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or exercising any trust or power conferred upon the Trustee, under this
Indenture relating to such Series.
None of the provisions contained in this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder or in the exercise
of any of its rights or powers, if there is reasonable ground for believing
that the repayment of such funds is not reasonably assured to it or at the
option of the Trustee indemnity reasonably satisfactory to the Trustee against
such risk or liability has not been provided.
Whether or not herein expressly so provided, every provision of this
Indenture relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of this Section
8.01.
SECTION 8.02. Except as otherwise provided in Section 8.01:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, direction, approval, order, bond,
debenture, or other paper or document believed by it to be genuine and to have
been signed or presented by the proper party or parties;
(b) Any request, direction, order or demand of the Company
mentioned herein shall be sufficiently evidenced by an instrument signed in the
name of the Company by the Chairman of the Board, President or any Vice
President and the Secretary or an Assistant Secretary or the Treasurer or an
Assistant Treasurer (unless other evidence in respect thereof be herein
specifically prescribed); and any resolution of the Board of Directors of the
Company may be evidenced to the Trustee by a copy thereof certified by the
Secretary or an Assistant Secretary of the Company;
(c) The Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon;
(d) The Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request, order or
direction of any of the holders of Senior Debt Securities, pursuant to the
provisions of this Indenture, unless such holders shall have offered to the
Trustee reasonable security or indemnity against the costs, expenses and
liabilities which may be incurred therein or thereby;
(e) The Trustee shall not be liable for any action taken or
omitted by it in good faith and believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Indenture;
(f) The Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, discretion,
approval, bond, debenture or other paper or document, but the Trustee, in its
discretion, may make such further inquiry or investigation into such facts or
matters as it may see
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fit, and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and premises
of the Company, personally or by agent or attorney; and
(g) The Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents or
attorneys, and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney (other than an employee of the
Trustee) appointed by it with due care hereunder.
SECTION 8.03. The recitals contained herein and in the Senior Debt
Securities (except in the Trustee's certificate 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 Indenture or of the
Senior Debt Securities. The Trustee shall not be accountable for the use or
application by the Company of any of the Senior Debt Securities or of the
proceeds thereof.
SECTION 8.04. The Trustee or any paying agent or Senior Debt Security
Registrar, in its individual or any other capacity, may become the owner or
pledgee of Senior Debt Securities with the same rights it would have if it were
not Trustee, paying agent or Senior Debt Security Registrar.
SECTION 8.05. Subject to the provisions of Section 13.04, all moneys
received by the Trustee shall, until used or applied as herein provided, be
held in trust for the purposes for which they were received, but need not be
segregated from other funds except to the extent required by law. Neither the
Trustee nor any paying agent shall be under any liability for interest on any
moneys received by it hereunder except such as it may agree in writing with the
Company to pay thereon. So long as no Event of Default with respect to the
Senior Debt Securities of any Series shall have occurred and be continuing, all
interest allowed on any such moneys shall be paid from time to time upon the
written order of the Company, signed by its President or any Vice President or
its Treasurer or an Assistant Treasurer.
SECTION 8.06. The Company covenants and agrees to pay to the Trustee
from time to time, and the Trustee shall be entitled to, reasonable
compensation for all services rendered by it hereunder (which shall not be
limited by any provision of law in regard to the compensation of a trustee of
an express trust), and, except as otherwise expressly provided, the Company
will pay or reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance with
any of the provisions of this Indenture (including the reasonable compensation
and the expenses and disbursements of its counsel and of all persons not
regularly in its employ) except any such expense, disbursement or advance as
may arise from its negligence or bad faith.
If any property other than cash shall at any time be subject to a lien
in favor of the holders of Senior Debt Securities, the Trustee, if and to the
extent authorized by a receivership or bankruptcy court of competent
jurisdiction or by the supplemental instrument subjecting such property to such
lien, shall be entitled to make advances for the purpose of preserving such
property or of discharging tax liens or other prior liens or encumbrances
thereon, provided that the Trustee shall be under no
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affirmative duty to make such advances. The Company also covenants to
indemnify the Trustee, its directors, officers, employees or agents for, and to
hold each of them harmless against, any loss, liability or expense incurred
without negligence, intentional wrongdoing or bad faith on the part of the
Trustee, its directors, officers, employees or agents, arising out of or in
connection with the acceptance or administration of this trust, the offering,
issuance or sale of the Senior Debt Securities or any or all other transactions
contemplated hereunder, including the reasonable cost and expenses of defending
against any claim of liability in the premises. The obligations of the Company
under this Section 8.06 to compensate the Trustee, its directors, officers,
employees or agents and to pay or reimburse the Trustee, its directors,
officers, employees or agents for expenses, disbursements and advances shall
constitute additional indebtedness hereunder. The Trustee shall give the
Company prompt notice of any action commenced against it in respect of which
indemnity may be sought hereunder. The Trustee's willful failure to so notify
the Company, after the receipt by the Trustee at its Corporate Trust Office of
written notification of such action, shall relieve the Company from any
liability under this Indenture with respect to such action. In any such action
the Company, by written notice to the Trustee, may assume the defense thereof
with counsel of the Trustee's choosing, who shall be subject to the approval of
the Company; and such approval shall not be unreasonably withheld by the
Company. In no event shall the Company be required to indemnify or reimburse
the Trustee hereunder in respect of any claim settled or compromised without
its consent. In no event shall the Company be liable for the fees and
expenses, which in all cases must be reasonable under the circumstances, of
more than one counsel in connection with any one action. Such additional
indebtedness shall be secured by a lien prior to that of the Senior Debt
Securities upon all property and funds held or collected by the Trustee as
such, except funds held in trust for the benefit of the holders of particular
Senior Debt Securities of any Series.
SECTION 8.07. Except as otherwise provided in Section 8.01, whenever
in the administration of the provisions of this Indenture the Trustee shall
deem it necessary or desirable that a matter be proved or established prior to
taking or suffering any action hereunder, such matter (unless other evidence in
respect thereof be herein specifically prescribed) may, in the absence of
negligence or bad faith on the part of the Trustee, be deemed to be
conclusively proved and established by an Officers' Certificate delivered to
the Trustee and such Officers' Certificate, in the absence of negligence or bad
faith on the part of the Trustee, shall be full warrant to the Trustee for any
action taken, suffered or omitted by it under the provisions of this Indenture
upon the faith thereof.
SECTION 8.08. (a) If the Trustee has or shall acquire any
conflicting interest, as defined in this Section 8.08, it shall, within 90 days
after ascertaining that it has such conflicting interest, either eliminate such
conflicting interest or resign in the manner and with the effect specified in
Section 8.10, such resignation to become effective upon the appointment of a
successor trustee and such successor's acceptance of such appointment, and the
Company shall take prompt steps to have a successor appointed in the manner
provided in Section 8.10.
(b) In the event that the Trustee shall fail to comply with the
provisions of subsection (a) of this Section 8.08, the Trustee shall, within 10
days after the expiration of such 90 day period, transmit notice of such
failure to the holders of Senior Debt Securities in the manner and to the
extent provided in subsection (c) of Section 6.04.
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(c) For the purposes of this Section 8.08 the Trustee shall be
deemed to have a conflicting interest if a default or an Event of Default
exists with respect to the Senior Debt Securities of any Series and if:
(1) the Trustee is trustee under another indenture under
which any other securities, or certificates of interest or
participation in any other securities, of the Company are outstanding
or is trustee for more than one outstanding "series of securities" (as
hereafter defined) issued under a single indenture (including, without
limitation, this Indenture) of the Company unless such other indenture
is a collateral trust indenture under which the only collateral
consists of Senior Debt Securities issued under this Indenture,
provided that there shall be excluded from the operation of this
paragraph any other Series of Senior Debt Securities issued under this
Indenture, and any other indenture or indentures under which other
securities, or certificates of interest or participation in other
securities, of the Company are outstanding if (i) this Indenture and
such other indenture or indentures (and all series of securities
issuable thereunder) are wholly unsecured and rank equally, and such
other indenture or indentures (and such series) are specifically
described in this Indenture or are hereafter qualified under the Trust
Indenture Act of 1939, unless the Securities and Exchange Commission
shall have found and declared by order pursuant to subsection (b) of
Section 305 or subsection (c) of Section 307 of the Trust Indenture
Act of 1939 that differences exist between the provisions of this
Indenture (or such series) and the provisions of such other indenture
or indentures (or such series) which are so likely to involve a
material conflict of interest as to make it necessary in the public
interest or for the protection of investors to disqualify the Trustee
from acting as such under this Indenture or such other indenture or
indentures, or (ii) the Company shall have sustained the burden of
proving, on application to the Securities and Exchange Commission and
after opportunity for hearing thereon, that the trusteeship under this
Indenture and such other indenture, or under more than one outstanding
series under a single indenture, is not so likely to involve a
material conflict of interest as to make it necessary in the public
interest or for the protection of investors to disqualify the Trustee
from acting as such under one of such indentures or with respect to
such series;
(2) the Trustee or any of its directors or executive
officers is an underwriter for the Company;
(3) the Trustee directly or indirectly controls or is
directly or indirectly controlled by or is under direct or indirect
common control with an underwriter for the Company;
(4) the Trustee or any of its directors or executive
officers is a director, officer, partner, employee, appointee, or
representative of the Company, or of an underwriter (other than the
Trustee itself) for the Company who is currently engaged in the
business of underwriting, except that (A) one individual may be a
director and/or an executive officer of the Trustee and a director
and/or an executive officer of the Company, but may not be at the same
time an executive officer of both the Trustee and the Company; (B) if
and so long as the number of directors of the Trustee in office is
more than nine, one additional individual may be a director and/or an
executive officer of the Trustee and a director of the
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Company; and (C) the Trustee may be designated by the Company, or by
any underwriter for the Company, to act in the capacity of transfer
agent, registrar, custodian, paying agent, fiscal agent, escrow agent,
or depositary, or in any other similar capacity, or, subject to the
provisions of paragraph (1) of this subsection (c), to act as trustee
whether under an indenture or otherwise;
(5) 10 percent or more of the voting securities of the
Trustee is beneficially owned either by the Company or by any
director, partner, or executive officer thereof, or 20 percent or more
of such voting securities is beneficially owned, collectively, by any
two or more of such persons; or 10 percent or more of the voting
securities of the Trustee is beneficially owned either by an
underwriter for the Company or by any director, partner, or executive
officer thereof, or is beneficially owned, collectively, by any two or
more such persons;
(6) the Trustee is the beneficial owner of, or holds as
collateral security for an obligation which is in default (as
hereinafter in this subsection (c) defined), (A) 5 percent or more of
the voting securities, or 10 per cent or more of any other class of
security, of the Company, not including the Senior Debt Securities
issued under this Indenture and securities issued under any other
indenture under which the Trustee is also trustee, or (B) 10 percent
or more of any class of security of an underwriter for the Company;
(7) the Trustee is the beneficial owner of, or holds as
collateral security for an obligation which is in default (as
hereinafter in this subsection (c) defined), 5 per cent or more of the
voting securities of any person who, to the knowledge of the Trustee,
owns 10 percent or more of the voting securities of, or controls
directly or indirectly, or is under direct or indirect common control
with, the Company;
(8) the Trustee is the beneficial owner of, or holds as
collateral security for an obligation which is in default (as
hereinafter in this subsection (c) defined), 10 per cent or more of
any class of security of any person who, to the knowledge of the
Trustee, owns 50 per cent or more of the voting securities of the
Company; or
(9) the Trustee owns on the date of default upon the
Senior Debt Securities of any Series or any anniversary of such
default while such default upon the Senior Debt Securities of such
Series remains outstanding, in the capacity of executor,
administrator, testamentary or inter vivos trustee, guardian,
committee or conservator, or in any other similar capacity, an
aggregate of 25 per cent or more of the voting securities, or of any
class of security, of any person, the beneficial ownership of a
specified percentage of which would have constituted a conflicting
interest under paragraph (6), (7) or (8) of this subsection (c). As
to any such securities of which the Trustee acquired ownership through
becoming executor, administrator, or testamentary trustee of an estate
which included them, the provisions of the preceding sentence shall
not apply, for a period of two years from the date of such
acquisition, to the extent that such securities do not exceed 25
percent of such voting securities or 25 per cent of any such class of
security. Promptly after the dates of any such default upon the
Senior Debt Securities of any Series and annually in each succeeding
year
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that the Senior Debt Securities of such Series remain in default, the
Trustee shall make a check of its holdings of such securities in any
of the above-mentioned capacities as of such dates. If the Company
fails to make payment in full of principal of or interest on any of
the Senior Debt Securities when and as the same become due and
payable, and such failure continues for 30 days thereafter, the
Trustee shall make a prompt check of its holdings of such securities
in any of the above-mentioned capacities as of the date of the
expiration of such 30 day period, and after such date, notwithstanding
the foregoing provisions of this paragraph (9), all such securities so
held by the Trustee, with sole or joint control over such securities
vested in it, shall, but only so long as such failure shall continue,
be considered as though beneficially owned by the Trustee for the
purposes of paragraphs (6), (7) and (8) of this subsection (c).
(10) Except under the circumstances described in
paragraphs (1), (3), (4), (5) or (6) of Section 8.13(b), the Trustee
shall be or shall become a creditor of the Company.
For purposes of paragraph (1) of this subsection (c) and Section 7.06,
the term "series of securities" or "series" means a series, class or group of
securities issuable under an indenture pursuant to whose terms holders of one
such series may vote to direct the trustee, or otherwise take action pursuant
to a vote of such holders, separately from holders of another series; provided,
that "series of securities" or "series" shall not include any series of
securities issuable under an indenture if all such series rank equally and are
wholly unsecured.
The specifications of percentages in paragraphs (5) to (9), inclusive,
of this subsection (c) shall not be construed as indicating that the ownership
of such percentages of the securities of a person is or is not necessary or
sufficient to constitute direct or indirect control for the purposes of
paragraph (3) or (7) of this subsection (c).
For the purposes of paragraphs (6), (7), (8) and (9) of this
subsection (c) only, (A) the terms "security" and "securities" shall include
only such securities as are generally known as corporate securities, but shall
not include any note or other evidence of indebtedness issued to evidence an
obligation to repay moneys lent to a person by one or more banks, trust
companies or banking firms, or any certificate of interest or participation in
any such note or evidence of indebtedness; (B) an obligation shall be deemed to
be "in default" when a default in payment of principal shall have continued for
30 days or more and shall not have been cured; and (C) the Trustee shall not be
deemed to be the owner or holder of (i) any security which it holds as
collateral security (as trustee or otherwise) for an obligation which is not in
default as defined in clause (B) above, or (ii) any security which it holds as
collateral security under this Indenture, irrespective of any default
hereunder, or (iii) any security which it holds as agent for collection, or as
custodian, escrow agent, or depositary, or in any similar representative
capacity.
Except as above provided, the word "security" or "securities" as used
in this Indenture shall mean any note, stock, treasury stock, bond, debenture,
evidence of indebtedness, certificate of interest or participation in any
profit-sharing agreement, collateral-trust certificate, pre-organization
certificate or subscription, transferable share, investment contract,
voting-trust certificate, certificate of deposit for a security, fractional
undivided interest in oil, gas, or other mineral rights, or, in
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general, any interest or instrument commonly known as a "security", or any
certificate of interest or participation in, temporary or interim certificate
for, receipt for, guarantee of or warrant or right to subscribe to or purchase,
any of the foregoing.
(d) For the purposes of this Section 8.08:
(1) The term "underwriter" when used with reference to
the Company shall mean every person who, within one year prior to the
time as of which the determination is made, has purchased from the
Company with a view to, or has offered for sale or has sold for the
Company in connection with, the distribution of any security of the
Company outstanding at such time, or has participated or has had a
direct or indirect participation in any such undertaking, or has
participated or has had a participation in the direct or indirect
underwriting of any such undertaking, but such term shall not include
a person whose interest was limited to a commission from an
underwriter or dealer not in excess of the usual and customary
distributors' or sellers' commission.
(2) The term "director" shall mean any director of a
corporation or any individual performing similar functions with
respect to any organization whether incorporated or unincorporated.
(3) The term "person" shall mean an individual, a
corporation, a partnership, an association, a joint-stock company, a
trust, an unincorporated organization, or a government or political
subdivision thereof. As used in this paragraph, the term "trust"
shall include only a trust where the interest or interests of the
beneficiary or beneficiaries are evidenced by a security.
(4) The term "voting security" shall mean any security
presently entitling the owner or holder thereof to vote in the
direction or management of the affairs of a person, or any security
issued under or pursuant to any trust, agreement or arrangement
whereby a trustee or trustees or agent or agents for the owner or
holder of such security are presently entitled to vote in the
direction or management of the affairs of a person.
(5) The term "Company" shall mean any obligor upon the
Senior Debt Securities.
(6) The term "executive officer" shall mean the
president, every vice president, every trust officer, the cashier, the
secretary and the treasurer of a corporation, and any individual
customarily performing similar functions with respect to any
organization whether incorporated or unincorporated, but shall not
include the chairman of the board of directors.
(e) The percentage of voting securities and other securities
specified in this Section 8.08 shall be calculated in accordance with the
following provisions:
(A) A specified percentage of the voting securities of
the Trustee, the Company or any other person referred to in this
Section 8.08 (each of whom is referred to as a "person" in this
paragraph) means such amount of the outstanding voting securities of
such person as
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entitles the holder or holders thereof to cast such specified
percentage of the aggregate votes which the holders of all the
outstanding voting securities of such person are entitled to cast in
the direction or management of the affairs of such person.
(B) A specified percentage of a class of securities of a
person means such percentage of the aggregate amount of securities of
the class outstanding.
(C) The term "amount", when used in regard to securities,
means the principal amount if relating to evidences of indebtedness,
the number of shares if relating to capital shares, and the number of
units if relating to any other kind of security.
(D) The term "outstanding" means issued and not held by
or for the account of the issuer. The following securities shall not
be deemed outstanding within the meaning of this definition:
(i) Securities of an issuer held in a sinking
fund relating to another class of securities of the issuer of
the same class.
(ii) Securities of an issuer held in a sinking
fund relating to another class of securities of the issuer, if
the obligation evidenced by such other class of securities is
not in default as to principal or interest or otherwise.
(iii) Securities pledged by the issuer thereof as
security for an obligation of the issuer not in default as to
principal or interest or otherwise.
(iv) Securities held in escrow if placed in escrow
by the issuer thereof;
provided, however, that any voting securities of an issuer shall be
deemed outstanding if any person other than the issuer is entitled to
exercise the voting rights thereof.
(E) A security shall be deemed to be of the same class as
another if both securities confer upon the holder or holders thereof
substantially the same rights and privileges; provided, however, that,
in the case of secured evidences of indebtedness, all of which are
issued under a single indenture, differences in the interest rates or
maturity dates of various series thereof shall not be deemed
sufficient to constitute such series different classes; and provided,
further, that, in the case of unsecured evidences of indebtedness,
differences in the interest rates or maturity dates thereof shall not
be deemed sufficient to constitute them securities of different
classes, whether or not they are issued under a single indenture.
SECTION 8.09. The Trustee hereunder shall at all times be a
corporation organized and doing business under the laws of the United States or
of any State or of the District of Columbia, authorized under such laws to
exercise corporate trust powers, having a combined capital and surplus of at
least $10,000,000, subject to supervision or examination by Federal, State or
District of Columbia authority. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the
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purposes of this Section 8.09, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. Neither the Company nor
any person directly or indirectly controlling, controlled by or under common
control with the Company shall serve as Trustee under this Indenture or any
Series Supplement. In case at any time the Trustee shall cease to be eligible
in accordance with the provisions of this Section 8.09, the Trustee shall
resign immediately in the manner and with the effect specified in Section 8.10.
SECTION 8.10. (a) The Trustee may at any time resign with
respect to one or more or all Series of Senior Debt Securities by giving
written notice by first-class mail of such resignation to the Company. Upon
receiving such notice of resignation, the Company shall promptly appoint a
successor trustee by written instrument in duplicate executed by order of the
Board of Directors of the Company, one copy of which instrument shall be
delivered to the resigning Trustee and one copy to the successor trustee. If
no successor trustee shall have been so appointed and have accepted appointment
within 30 days after the giving of such notice of resignation, the resigning
Trustee may petition any court of competent jurisdiction for the appointment of
a successor trustee, or any holder who has been a bona fide holder of a Senior
Debt Security or Senior Debt Securities of the applicable Series for at least
six months may, subject to the provisions of Section 8.08, on behalf of himself
and all others similarly situated, petition any such court for the appointment
of a successor trustee. Such court may thereupon, after such notice, if any,
as it may deem proper and prescribe, appoint a successor trustee. Any
resignation of the Trustee shall be subject to the provisions of subparagraph
(d) hereof.
(b) In case at any time any of the following shall occur:
(1) the Trustee shall fail to comply with the provisions
of subsection (a) of Section 8.08 with respect to any Series of Senior
Debt Securities after written request therefor by the Company or by
any holder who has been a bona fide holder of a Senior Debt Security
or Senior Debt Securities for at least six months, or
(2) the Trustee shall cease to be eligible in accordance
with the provisions of Section 8.09 and shall fail to resign after
written request therefor by the Company or by any such holder, or
(3) the Trustee shall become incapable of acting, or
shall be adjudged a bankrupt or insolvent, or a receiver of the
Trustee or of its property shall be appointed, or any public officer
shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or
liquidation, then, in any such case, the Company may remove the
Trustee and appoint a successor trustee by written instrument, in
duplicate, executed by order of the Board of Directors of the Company,
one copy of which instrument shall be delivered to the Trustee so
removed and one copy to the successor trustee, or, subject to the
provisions of Section 7.08, any holder who has been a bona fide holder
of a Senior Debt Security or Senior Debt Securities of such Series for
at least six months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the removal
of the Trustee with respect to the applicable Series and the
appointment of a
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successor trustee. Such court may thereupon, after such notice, if
any, as it may deem proper and prescribe, remove the Trustee with
respect to the applicable Series and appoint a successor trustee.
(c) The Company may also remove the Trustee, pursuant to the
procedures set forth in Section 8.10(b) hereof, if the Company has given 60
days written notice to the Trustee and the holders of the applicable Series of
Senior Debt Securities and has delivered to the Trustee and such holders of
Senior Debt Securities an Officers' Certificate stating:
(1) the reasons for such removal;
(2) that such removal will in no way be detrimental to
the interests of such holders of Senior Debt Securities; and
(3) the identity of the successor trustee to be
appointed;
provided that (i) such successor trustee shall have a combined capital and
surplus of at least $20,000,000, (ii) the rating assigned to the debt
obligations of such successor trustee by the rating agency or agencies rating
any such debt obligations shall be no lower than the rating assigned, at the
time of appointment of the Trustee being replaced, to the debt obligations of
the Trustee being replaced, and (iii) such successor trustee shall be
independent and shall be eligible to act as Trustee pursuant to Sections 8.08
and 8.09 hereof; and, provided further that if after receiving such notice, the
holders of a majority in principal amount of the outstanding Senior Debt
Securities of the applicable Series shall notify the Trustee that they are
opposed to such removal, the Company shall not be entitled to remove the
Trustee pursuant to this Section 8.10(c) and the Company shall not be entitled
to exercise its rights pursuant to this Section 8.10(c) for six months after
such notice by the holders of Senior Debt Securities.
(d) The holders of a majority in aggregate principal amount of the
Senior Debt Securities of any Series at the time outstanding may at any time
remove the Trustee with respect to the Senior Debt Securities of such Series
and appoint a successor trustee of the applicable Series of Senior Debt
Securities by delivery to the Trustee so removed, to the successor trustee so
appointed and to the Company, the evidence provided for in Section 9.01 of the
action taken by the holders of the Senior Debt Securities.
(e) Any resignation or removal of the Trustee and any appointment
of a successor trustee pursuant to any of the provisions of this Section 8.10
shall become effective upon acceptance of appointment by the successor trustee
as provided in Section 8.11.
(f) The Company shall give notice of each resignation and each
removal of the Trustee and each appointment of a successor trustee by mailing
written notice of such event by first-class mail, postage prepaid, to the
holders of the applicable Series of Senior Debt Securities as their names and
addresses appear in the Senior Debt Security Register. Each notice shall
include the name of the successor trustee and the address of its principal
corporate trust office. If the Company fails to
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mail such notice within 10 days after acceptance of appointment by the
successor trustee, the successor trustee shall cause such notice to be mailed
at the expense of the Company.
SECTION 8.11. Any successor trustee appointed as provided in Section
8.10 shall execute, acknowledge and deliver to the Company and to its
predecessor trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the predecessor trustee with respect to all or any
applicable Series shall become effective and such successor trustee without any
further act, deed or conveyance shall become vested with all the rights,
powers, duties and obligations of its predecessor, with like effect as if
originally named as trustee herein; but, nevertheless, on the written request
of the Company or of the successor trustee, the Trustee ceasing to act shall,
upon payment of any amounts then due it pursuant to the provisions of Section
8.06, execute and deliver an instrument transferring to such successor trustee
all the right and powers of the Trustee so ceasing to act. Upon request of any
such successor trustee, the Company shall execute any and all instruments in
writing for more fully and certainly vesting in and confirming to such
successor trustee all such rights and powers. Any trustee ceasing to act
shall, nevertheless, retain a lien upon all property or funds held or collected
by such trustee to secure any amounts then due it pursuant to the provisions of
Section 8.06.
If a successor trustee is appointed with respect to the Senior Debt
Securities of one or more (but not all) Series, the Company, the predecessor
trustee and each successor trustee with respect to the Senior Debt Securities
of any applicable Series shall execute and deliver an agreement supplemental
hereto which shall contain such provisions as shall be deemed necessary or
desirable to confirm that all the rights, powers, trusts and duties of the
predecessor trustee with respect to the Senior Debt Securities of any Series as
to which the predecessor trustee is not retiring shall continue to be vested in
the predecessor trustee, and shall add to or change any of the provisions of
this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one trustee, it being
understood that nothing herein or in such supplemental agreement shall
constitute such trustees co-trustees of the same trust and that each such
trustee shall be a trustee of a trust or trusts under separate Indentures.
No successor trustee shall accept appointment as provided in this
Section 8.11 unless at the time of such acceptance such successor trustee shall
be qualified under the provisions of Section 8.08 and eligible under the
provisions of Section 8.09.
SECTION 8.12. Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger or conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to all or substantially all of the
corporate trust business of the Trustee, shall be the successor of the Trustee
hereunder, provided such corporation shall be qualified under the provisions of
Section 8.08 and eligible under the provisions of Section 8.09, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto, anything herein to the contrary notwithstanding.
In case at the time such successor to the Trustee shall succeed to the
trusts created by this Indenture any of the Senior Debt Securities shall have
been authenticated but not delivered, any such successor to the Trustee may
adopt the certificate of authentication of any predecessor Trustee, and
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deliver such Senior Debt Securities so authenticated; and in case at that time
any of the Senior Debt Securities shall not have been authenticated, any
successor to the Trustee may authenticate such Senior Debt Securities either in
the name of any predecessor hereunder or in the name of the successor trustee;
and in all such cases such certificate shall have the full force which it is
anywhere in the Senior Debt Securities or in this Indenture provided that the
certificate of the Trustee shall have; provided, however, that the right to
adopt the certificate of authentication of any predecessor Trustee or
authenticate Senior Debt Securities in the name of any predecessor Trustee
shall apply only to its successor or successors by merger, conversion or
consolidation.
SECTION 8.13. (a) Subject to the provisions of subsection (b)
of this Section 8.13, if the Trustee shall be or shall become a creditor,
directly or indirectly, secured or unsecured, of the Company on the Senior Debt
Securities within three months prior to a default, as defined in subsection (c)
of this Section 8.13, or subsequent to such a default, then, unless and until
such default shall be cured, the Trustee shall set apart and hold in a special
account for the benefit of the Trustee individually, the holders of the Senior
Debt Securities and the holders of other indenture securities (as defined in
subsection (c) of this Section 8.13):
(1) an amount equal to any and all reductions in the
amount due and owing upon any claim as such creditor in respect of
principal or interest, effected after the beginning of such three
months' period and valid as against the Company and its other
creditors, except any such reduction resulting from the receipt or
disposition of any property described in paragraph (2) of this
subsection, or from the exercise of any right of set-off which the
Trustee could have exercised if a petition in bankruptcy had been
filed by or against the Company upon the date of such default; and
(2) all property received by the Trustee in respect of
any claim as such creditor, either as security therefor, or in
satisfaction or composition thereof, or otherwise, after the beginning
of such three months' period, or an amount equal to the proceeds of
any such property, if disposed of, subject, however, to the rights, if
any, of the Company and its other creditors in such property or such
proceeds.
Nothing herein contained, however, shall affect the right of the
Trustee
(A) to retain for its own account (i) payments made on
account of any such claim by any person (other than the Company) who
is liable thereon, and (ii) the proceeds of the bona fide sale of any
such claim by the Trustee to a third person, and (iii) distributions
made in cash, securities or other property in respect of claims filed
against the Company in bankruptcy or receivership or in proceedings
for reorganization pursuant to the Federal bankruptcy laws, as now or
hereafter constituted, or any other Federal or State bankruptcy,
insolvency or similar law;
(B) to realize, for its own account, upon any property
held by it as security for any such claim, if such property was so
held prior to the beginning of such three months' period;
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(C) to realize, for its own account, but only to the
extent of the claim hereinafter mentioned, upon any property held by
it as security for any such claim, if such claim was created after the
beginning of such three months' period and such property was received
as security therefor simultaneously with the creation thereof, and if
the Trustee shall sustain the burden of proving that at the time such
property was so received the Trustee had no reasonable cause to
believe that a default as defined in subsection (c) of this Section
8.13 would occur within three months; or
(D) to receive payment on any claim referred to in
paragraph (B) or (C), against the release of any property held as
security for such claim as provided in such paragraph (B) or (C), as
the case may be, to the extent of the fair value of such property.
For the purposes of paragraphs (B), (C) and (D), property substituted
after the beginning of such three months' period for property held as security
at the time of such substitution shall, to the extent of the fair value of the
property released, have the same status as the property released, and, to the
extent that any claim referred to in any of such paragraphs is created in
renewal of or in substitution for or for the purpose of repaying or refunding
any preexisting claim of the Trustee as such creditor, such claim shall have
the same status as such preexisting claim.
If the Trustee shall be required to account, the funds and property
held in such special account and the proceeds thereof shall be apportioned
between the Trustee, the holders of Senior Debt Securities and the holders of
other indenture securities in such manner that the Trustee, the holders of
Senior Debt Securities and the holders of other indenture securities realize,
as a result of payments from such special account and payments of dividends on
claims filed against the Company in bankruptcy or receivership or in
proceedings for reorganization pursuant to the Federal bankruptcy laws, as now
or hereafter constituted, or any other Federal or State bankruptcy, insolvency
or similar law, the same percentage of their respective claims, figured before
crediting to the claim of the Trustee anything on account of the receipt by it
from the Company of the funds and property in such special account and before
crediting to the respective claims of the Trustee, the holders of Senior Debt
Securities and the holders of other indenture securities dividends on claims
filed against the Company in bankruptcy or receivership or in proceedings for
reorganization pursuant to the Federal bankruptcy laws, as now or hereafter
constituted, or any other Federal or State bankruptcy, insolvency or similar
law, but after crediting thereon receipts on account of the indebtedness
represented by their respective claims from all sources other than from such
dividends and from the funds and property so held in such special account. As
used in this paragraph, with respect to any claim, the term "dividends" shall
include any distribution with respect to such claim, in bankruptcy or
receivership or in proceedings for reorganization pursuant to the Federal
bankruptcy laws, as now or hereafter constituted, or any other Federal or State
bankruptcy, insolvency or similar law, whether such distribution is made in
cash, securities, or other property, but shall not include any such
distribution with respect to the secured portion, if any, of such claim. The
court in which said bankruptcy, receivership, or proceeding for reorganization
is pending shall have jurisdiction (i) to apportion between the Trustee, the
holders of Senior Debt Securities and the holders of other indenture
securities, in accordance with the provisions of this paragraph, the funds and
property held in such special account and the proceeds thereof, or (ii) in lieu
of such apportionment, in whole or in part, to give to the provisions of this
paragraph due consideration in determining the fairness of
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the distributions to be made to the Trustee, the holders of Senior Debt
Securities and the holders of other indenture securities with respect to their
respective claims, in which event it shall not be necessary to liquidate or to
appraise the value of any securities or other property held in such special
account or as security for any such claim, or to make a specific allocation of
such distributions as between the secured and unsecured portions of such
claims, or otherwise to apply the provisions of this paragraph as a
mathematical formula.
Any Trustee which has resigned or been removed after the beginning of
such three months' period shall be subject to the provisions of this subsection
(a) as though such resignation or removal had not occurred. If any Trustee has
resigned or been removed prior to the beginning of such three months' period,
it shall be subject to the provisions of this subsection (a) if and only if the
following conditions exist:
(i) the receipt of property or reduction of claim which
would have given rise to the obligation to account, if such Trustee
had continued as trustee, occurred after the beginning of such three
months' period; and
(ii) such receipt of property or reduction of claim
occurred within three months after such resignation or removal.
(b) There shall be excluded from the operation of subsection (a)
of this Section 8.13 a creditor relationship arising from:
(1) the ownership or acquisition of securities issued
under any indenture, or any security or securities having a maturity
of one year or more at the time of acquisition by the Trustee;
(2) advances authorized by a receivership or bankruptcy
court of competent jurisdiction, or by this Indenture, for the purpose
of preserving any property which shall at any time be subject to the
lien of this Indenture or of discharging tax liens or other prior
liens or encumbrances thereof, if notice of such advance and of the
circumstances surrounding the making thereof is given to the holders
of Senior Debt Securities at the time and in the manner provided in
this Indenture;
(3) disbursements made in the ordinary course of business
in the capacity of trustee under an indenture, transfer agent,
registrar, custodian, paying agent, fiscal agent or depositary, or
other similar capacity;
(4) an indebtedness created as a result of services
rendered or premises rented; or an indebtedness created as a result of
goods or securities sold in a cash transaction as defined in
subsection (c) of this Section 8.13;
(5) the ownership of stock or of other securities of a
corporation organized under the provisions of Section 25(a) of the
Federal Reserve Act, as amended, which is directly or indirectly a
creditor of the Company; or
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(6) the acquisition, ownership, acceptance or negotiation
of any drafts, bills of exchange, acceptances or obligations which
fall within the classification of self-liquidating paper as defined in
subsection (c) of this Section 8.13.
(c) As used in this Section 8.13:
(1) The term "default" shall mean any failure to make
payment in full of the principal of or interest on any of the Senior
Debt Securities or upon the other indenture securities when and as
such principal or interest becomes due and payable.
(2) The term "other indenture securities" shall mean
securities upon which the Company is an obligor (as defined in the
Trust Indenture Act of 1939) outstanding under anyother indenture (A)
under which the Trustee is also trustee, (B) which contains provisions
substantially similar to the provisions of subsection (a) of this
Section 8.13, and (C) under which a default exists at the time of the
apportionment of the funds and property held in said special account.
(3) The term "cash transaction" shall mean any
transaction in which full payment for goods or securities sold is made
within seven days after delivery of the goods or securities in
currency or in checks or other orders drawn upon banks or bankers and
payable upon demand.
(4) The term "self-liquidating paper" shall mean any
draft, bill of exchange, acceptance or obligation which is made,
drawn, negotiated or incurred by the Company for the purpose of
financing the purchase, processing, manufacture, shipment, storage or
sale of goods, wares or merchandise and which is secured by documents
evidencing title to, possession of, or a lien upon, the goods, wares
or merchandise or the receivables or proceeds arising from the sale of
the goods, wares or merchandise previously constituting the security,
provided the security is received by the Trustee simultaneously with
the creation of the creditor relationship with the Company arising
form the making, drawing, negotiating or incurring of the draft, bill
of exchange, acceptance or obligation.
(5) The term "Company" shall mean any obligor upon the
Senior Debt Securities.
ARTICLE NINE.
CONCERNING THE HOLDERS OF SENIOR DEBT SECURITIES.
SECTION 9.01. Whenever in this Indenture it is provided that the
holders of a specified percentage in aggregate principal amount of the Senior
Debt Securities of a Series may take any action (including the making of any
demand or request, the giving of any notice, consent or waiver or the taking of
any other action), the fact that at the time of taking any such action the
holders of such specified percentage have joined therein may be evidenced (a)
by any instrument or any number of instruments of similar tenor executed by
holders in person or by agent or proxy appointed in writing, or (b) by the
record of the holders of the Senior Debt Securities of such Series voting in
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favor thereof at any meeting of holders duly called and held in accordance with
the provisions of Article Ten, or (c) by a combination of such instrument or
instruments and any such record of such a meeting of holders.
SECTION 9.02. Subject to the provisions of Section 9.01 and Section
9.05, proof of the execution of any instrument by a holder or his agent or
proxy and proof of the holding by any person of any of the Senior Debt
Securities of a Series shall be sufficient if made in the following manner:
The fact and date of the execution by any such person of any
instrument may be proved by the certificate of any notary public or other
officer of any jurisdiction within the United States of America authorized to
take acknowledgments of deeds to be recorded in such jurisdiction, that the
person executing such instrument acknowledged to him the execution thereof, by
an affidavit of a witness to such execution sworn to before any such notary or
other such officer or by any other method or in any other manner as shall be
acceptable to the Trustee. If such execution is by an officer of a corporation
or association or a member of a partnership on behalf of such corporation,
association or partnership, such certificate or affidavit shall also constitute
sufficient proof of his authority.
The ownership of Senior Debt Securities of a Series shall be proved by
the Senior Debt Security Register or by a certificate of the Senior Debt
Security Registrar thereof.
The Trustee shall not be bound to recognize any person as a holder
unless and until his title to the Senior Debt Securities held by him is proved
in the manner in this Article Nine provided.
The Trustee may require such additional proof of any matter referred
to in this Section 9.02 as it shall deem necessary.
The record of any holders' meeting shall be proved in the manner
provided in Section 10.06.
SECTION 9.03. The Company, the Trustee, any paying agent and any
Senior Debt Security Registrar may deem and treat the person in whose name any
Senior Debt Security shall be registered in the Senior Debt Security Register
as the absolute owner of such Senior Debt Security (whether or not such Senior
Debt Security shall be overdue and notwithstanding any notation of ownership or
other writing thereon made by anyone other than the Company or any Senior Debt
Security Registrar) for the purpose of receiving payment thereof or on account
thereof and for all other purposes, and neither the Company nor the Trustee nor
any paying agent nor any Senior Debt Security Registrar shall be affected by
any notice to the contrary. All such payments so made to any such registered
holder for the time being, or upon his order, shall be valid, and, to the
extent of the sum or sums so paid, effectual to satisfy and discharge the
liability for monies payable upon any such Senior Debt Security.
SECTION 9.04. In determining whether the holders of the requisite
aggregate principal amount of Senior Debt Securities of a Series have concurred
in any direction, consent or waiver under this Indenture, Senior Debt
Securities of such Series which are owned by the Company, or any other obligor
on the Senior Debt Securities of such Series or by any person directly or
indirectly
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controlling or controlled by or under direct or indirect common control with
the Company, or any other obligor on the Senior Debt Securities of such Series
shall be disregarded and deemed not to be outstanding for the purpose of any
such determination, except that for the purpose of determining whether the
Trustee shall be protected in relying on any such direction, consent or waiver
only Senior Debt Securities of such Series which the Trustee knows are so owned
shall be so disregarded. Senior Debt Securities of such Series so owned which
have been pledged in good faith may be regarded as outstanding for the purposes
of this Section 9.04, if the pledgee shall establish to the satisfaction of the
Trustee the pledgee's right to vote such Senior Debt Securities and that the
pledgee is not a person directly or indirectly controlling or controlled by or
under direct or indirect common control with the Company, or any such other
obligor. Upon request of the Trustee, the Company shall furnish to the Trustee
promptly an Officers' Certificate listing and identifying all Senior Debt
Securities of such Series, if any, known by the Company to be owned or held by
or for the account of any of the above described persons; and, subject to the
provisions of Section 8.01, the Trustee shall be entitled to accept such
Officers' Certificate as conclusive evidence of the facts therein set forth and
of the fact that all Senior Debt Securities of such Series not listed therein
are outstanding for the purposes of any such determination.
SECTION 9.05. At any time prior to (but not after) the evidencing to
the Trustee, as provided in Section 9.01, of the taking of any action by the
holders of the percentage in aggregate principal amount of the Senior Debt
Securities of a Series specified in this Indenture in connection with such
action, any holder of a Senior Debt Security of such Series the serial number
of which is shown by the evidence to be included in the Senior Debt Securities
of such Series the holders of which have consented to such action may, by
filing written notice with the Trustee at its office and upon proof of holding
as provided in Section 9.02, revoke such action so far as concerns such Senior
Debt Security. Except as aforesaid, any such action taken by the holder of any
Senior Debt Security shall be conclusive and binding upon such holder and upon
all future holders and owners of such Senior Debt Security, and of any Senior
Debt Security issued in exchange or substitution therefor, irrespective of
whether or not any notation in regard thereto is made upon such Senior Debt
Security. Any action taken by the holders of the percentage in aggregate
principal amount of the Senior Debt Securities of a Series specified in this
Indenture in connection with such action shall be conclusively binding upon the
Company, the Trustee and the holders of all the Senior Debt Securities of such
Series.
ARTICLE TEN.
MEETINGS OF HOLDERS OF SENIOR DEBT SECURITIES.
SECTION 10.01. A meeting of holders of Senior Debt Securities of any
or all Series may be called at any time and from time to time pursuant to the
provisions of this Article Ten for any of the following purposes:
(1) to give any notice to the Company or to the Trustee,
or to give any directions to the Trustee, or to consent to the waiving
of any default hereunder and its consequences, or to take any other
action authorized to be taken by holders pursuant to any of the
provisions of Article Seven;
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(2) to remove the Trustee with respect to one or more or
all Series and appoint a successor trustee pursuant to the provisions
of Article Eight;
(3) to consent to the execution of an indenture or
indentures supplemental hereto pursuant to the provisions of Section
11.02; or
(4) to take any other action authorized to be taken by or
on behalf of the holders of any specified aggregate principal amount
of the Senior Debt Securities of any or all Series under any other
provision of this Indenture or under applicable law.
SECTION 10.02. The Trustee may at any time call a meeting of holders
of Senior Debt Securities to take any action specified in Section 10.01, to be
held at such time and at such place as the Trustee shall determine. Notice of
every meeting of the holders of any or all Series, setting forth the time and
the place of such meeting and in general terms the action proposed to be taken
at such meeting, shall be mailed to such holders of Senior Debt Securities at
their addresses as shown by the Senior Debt Security Register not less than 20
nor more than 60 days prior to the date fixed for the meeting.
SECTION 10.03. In case at any time the Company, pursuant to a
resolution of its Board of Directors, shall have requested the Trustee to call
a meeting of holders of any or all Series, or the holders of at least 10 per
cent in aggregate principal amount of the Senior Debt Securities of the Series
then outstanding with respect to which a meeting is proposed to be called shall
have requested the Trustee to call a meeting of the holders of the applicable
Series, to take any action authorized in Section 10.01 by written request
setting forth in reasonable detail the action proposed to be taken at the
meeting, and the Trustee shall not have mailed the notice of such meeting
within 20 days after receipt of such request, then the Company or the holders
of Senior Debt Securities of the applicable Series in the amount above
specified may determine the time and the place for such meeting and may call
such meeting by mailing notice thereof as provided in Section 10.02.
SECTION 10.04. To be entitled to vote at any meeting of holders of
Senior Debt Securities of any or all Series a person shall (a) be a holder of
one or more Senior Debt Securities with respect to which such meeting was
called, or (b) be a person appointed by an instrument in writing as proxy by a
holder of one or more Senior Debt Securities with respect to which such meeting
was called. The only persons who shall be entitled to be present or to speak
at any meeting of holders of Senior Debt Securities of any or all Series shall
be the persons entitled to vote at such meeting and their counsel and any
representatives of the Trustee and its counsel and any representatives of the
Company and its counsel.
SECTION 10.05. Notwithstanding any other provisions of this
Indenture, the Trustee may make such reasonable regulations as it may deem
advisable for any meeting of holders of Senior Debt Securities, in regard to
proof of the holding of Senior Debt Securities and of the appointment of
proxies, and in regard to the appointment and duties of inspectors of votes,
the submission and examination of proxies, certificates and other evidence of
the right to vote, and such other matters concerning the conduct of the meeting
as it shall deem appropriate. Except as otherwise permitted or required by any
such regulations, the holding of Senior Debt Securities shall be proved in the
manner specified in Section 9.02 and the appointment of any proxy shall be
proved in the
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manner specified in said Section 9.02 or by having the signature of the person
executing the proxy witnessed or guaranteed by any bank, banker or trust
company.
The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by holders as provided in Section 10.03, in which case the Company
or the holders calling the meeting, as the case may be, shall in like manner
appoint a temporary chairman. A permanent chairman and a permanent secretary
of the meeting shall be elected by vote of the holders of a majority in
aggregate principal amount of the Senior Debt Securities represented at the
meeting and entitled to vote.
Subject to the provisions of Section 9.04, at any meeting each holder
or proxy shall be entitled to one vote for each $1,000 (unless otherwise
provided in the related Series Supplement) principal amount of Senior Debt
Securities of the Series entitled to vote held or represented by him; provided,
however, that no vote shall be cast or counted at any meeting in respect of any
Senior Debt Security challenged as not outstanding and ruled by the chairman of
the meeting to be not outstanding. The chairman of the meeting shall have no
right to vote other than by virtue of Senior Debt Securities of the Series
entitled to vote held by him or instruments in writing as aforesaid duly
designating him as the person to vote on behalf of other holders. Any meeting
of holders duly called pursuant to the provisions of Section 10.02 or 10.03 may
be adjourned from time to time, and the meeting may be held as so adjourned
without further notice.
At any meeting of holders of Senior Debt Securities of any or all
Series, the presence of persons holding or representing Senior Debt Securities
of the applicable Series in an aggregate principal amount sufficient to take
action upon the business for the transaction of which such meeting was called
shall be necessary to constitute a quorum; but, if less than a quorum be
present, the persons holding or representing a majority of the Senior Debt
Securities of the applicable Series represented at the meeting may adjourn such
meeting with the same effect as though a quorum had been present.
SECTION 10.06. The vote upon any resolution submitted to any meeting
of holders shall be by written ballots on which shall be subscribed the
signatures of the holders or proxies and the serial number or numbers of the
Senior Debt Securities held or represented by them. The permanent chairman of
the meeting shall appoint two inspectors of votes who shall count all votes
cast at the meeting for or against any resolution and who shall make and file
with the secretary of the meeting their verified written reports in duplicate
of all votes cast at the meeting. A record in duplicate of the proceedings of
each meeting of holders shall be prepared by the secretary of the meeting and
there shall be attached to said record the original reports of the inspectors
of votes on any vote by ballot taken thereat and affidavits by one or more
persons having knowledge of the facts setting forth a copy of the notice of the
meeting and showing that said notice was mailed as provided in Section 10.02.
The record shall be signed and verified by the affidavits of the permanent
chairman and secretary of the meeting and one of the duplicates shall be
delivered to the Company and the other to the Trustee to be preserved by the
Trustee, the latter to have attached thereto the ballots voted at the meeting.
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Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
ARTICLE ELEVEN.
SUPPLEMENTAL INDENTURES.
SECTION 11.01. The Company, when authorized by resolutions of its
Board of Directors, and the Trustee may from time to time and at any time enter
into an indenture or indentures supplemental hereto (which shall conform to the
provisions of the Trust Indenture Act of 1939 as in force at the date of the
execution thereof) for one or more of the following purposes:
(a) to evidence the succession of another corporation to the
Company or successive successions, and the assumption by the successor
corporation of the covenants, agreements and obligations of the Company
pursuant to Article Twelve;
(b) to add to the covenants of the Company such further covenants,
restrictions, conditions or provisions as its Board of Directors and the
Trustee shall consider to be for the protection of the holders of any Series of
Senior Debt Securities, and to make the occurrence, or the occurrence and
continuance, of a default in any of such additional covenants, restrictions,
conditions or provisions a default or an Event of Default permitting the
enforcement of all or any of the several remedies provided in this Indenture as
herein set forth; provided, however, that in respect of any such additional
covenant, restriction, condition or provision such supplemental indenture may
provide for a particular period of grace after default (which period may be
shorter or longer than that allowed in the case of other defaults) or may
provide for an immediate enforcement upon such default or may limit the
remedies available to the Trustee upon such default or may limit the right of
the holders of a majority in aggregate principal amount of the Senior Debt
Securities of a Series to waive such default;
(c) to cure any ambiguity or to correct or supplement any
provision contained herein or in any supplemental indenture which may be
defective or inconsistent with any other provision contained herein or in any
supplemental indenture; to convey, transfer, assign, mortgage or pledge any
property to or with the Trustee; or to make such other provisions in regard to
matters or questions arising under this Indenture which shall not be
inconsistent with the provisions of this Indenture, provided that such action
shall not adversely affect the interests of the holders of the Senior Debt
Securities; and
(d) to set forth the terms of any Series that has not theretofore
been authorized by a Series Supplement.
The Trustee is hereby authorized to join with the Company in the
execution of any such supplemental indenture, to make any further appropriate
agreements and stipulations which may be therein contained and to accept the
conveyance, transfer, assignment, mortgage or pledge of any property
thereunder, but the Trustee shall not be obligated to enter into any such
supplemental indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
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Any supplemental indenture authorized by the provisions of this
Section 11.01 may be executed by the Company and the Trustee without the
consent of the holders of any of the Senior Debt Securities at the time
outstanding, notwithstanding any of the provisions of Section 11.02.
SECTION 11.02. With the consent (evidenced as provided in Section
9.01) of the holders of not less than a majority in aggregate principal amount
of the Senior Debt Securities of each Series to be affected at the time
outstanding, the Company, when authorized by resolutions of its Board of
Directors, and the Trustee may from time to time and at any time enter into an
indenture or indentures supplemental hereto (which shall conform to the
provisions of the Trust Indenture Act of 1939 as in force at the date of the
execution thereof) for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of any
supplemental indenture or of modifying in any manner the rights of the holders
of the Senior Debt Securities of such Series; provided, however, that no such
supplemental indenture shall (i) extend the fixed maturity of any Senior Debt
Securities, or reduce the principal amount thereof, or reduce the rate or
extend the time of payment of interest thereon, or reduce any premium payable
upon the redemption thereof, without the consent of the holder of each Senior
Debt Security so affected, (ii) reduce the aforesaid percentage of Senior Debt
Securities of any Series, the consent of the holders of which is required for
any such supplemental indenture, without the consent of the holders of all
Senior Debt Securities of such Series then outstanding, or (iii) modify any of
the provisions of this Section or Section 7.06, except to increase any such
percentage or to provide that certain other provisions of this Indenture cannot
be modified or waived without the consent of the holder of each Senior Debt
Security affected thereby.
Upon the request of the Company, accompanied by a copy of resolutions
of its Board of Directors certified by the Secretary or an Assistant Secretary
of the Company authorizing the execution of any such supplemental indenture,
and upon the filing with the Trustee of evidence of the consent of the holders
as aforesaid, the Trustee shall join with the Company in the execution of such
supplemental indenture unless such supplemental indenture affects the Trustee's
own rights, duties or immunities under this Indenture or otherwise, in which
case the Trustee may in its discretion, but shall not be obligated to, enter
into such supplemental indenture.
It shall not be necessary for the consent of the holders under this
Section 11.02 to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of this Section 11.02, the
Company shall mail to the holders to which such supplemental indenture relates
a notice, setting forth in general terms the substance of such supplemental
indenture. Any failure of the Company to mail such notice, or any defect
therein, shall not, however, in any way impair or affect the validity of any
such supplemental indenture.
SECTION 11.03. Upon the execution of any supplemental indenture
pursuant to the provisions of this Article Eleven, this Indenture shall be and
be deemed to be modified and amended in accordance therewith with respect to
each Series of Senior Debt Securities affected thereby or all Senior Debt
Securities, as the case may be, and the respective rights, limitations of
rights,
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obligations, duties and immunities under this Indenture of the Trustee, the
Company and the holders of Senior Debt Securities of each Series affected
thereby shall thereafter be determined, exercised and enforced hereunder
subject in all respects to such modifications and amendments, and all the terms
and conditions of any such supplemental indenture shall be and be deemed to be
part of the terms and conditions of this Indenture for any and all purposes.
The Trustee, subject to the provisions of Section 8.01, may receive an
Opinion of Counsel as conclusive evidence that any such supplemental indenture
complies with the provisions of this Article Eleven and that all conditions
precedent thereto have been met.
SECTION 11.04. Senior Debt Securities authenticated and delivered
after the execution of any supplemental indenture pursuant to the provisions of
this Article Eleven or after any action taken at a meeting of holders of Senior
Debt Securities pursuant to Article Ten, may, and shall if required by the
Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture or as to any such action. New
Senior Debt Securities so modified as to conform, in the opinion of the Trustee
and the Board of Directors of the Company, to any modification of this
Indenture contained in any such supplemental indenture or reflecting such
action may be prepared by the Company, and such Senior Debt Securities may be
authenticated by the Trustee and delivered in exchange for the Senior Debt
Securities then outstanding.
ARTICLE TWELVE.
CONSOLIDATION, MERGER, SALE OR CONVEYANCE.
SECTION 12.01. (a) Nothing contained in this Indenture or in any
of the Senior Debt Securities shall prevent any consolidation or merger of the
Company with or into any other corporation or corporations or successive
consolidations or mergers in which the Company or its successor or successors
shall be a party or parties, or shall prevent any sale or conveyance of the
property of the Company as an entirety or substantially as an entirety to any
other corporation authorized to acquire and operate the same; provided,
however, and the Company hereby covenants and agrees, that any such
consolidation, merger, sale or conveyance shall be upon the condition that (a)
immediately after such consolidation, merger, sale or conveyance, the
corporation (whether the Company or such other corporation) formed by or
surviving any such consolidation or merger, or to which such sale or conveyance
shall have been made, shall not be in default in the performance or observance
of any of the terms, covenants and conditions of this Indenture to be kept or
performed by the Company; (b) the corporation (if other than the Company)
formed by or surviving any such consolidation or merger, or to which such sale
or conveyance shall have been made, shall be a corporation organized under the
laws of the United States of America or any state thereof; and (c) the due and
punctual payment of the principal of (and premium, if any) and interest on all
of the Senior Debt Securities, according to their tenor, and the due and
punctual performance and observance of all the covenants and conditions of this
Indenture to be performed, or observed by the Company, shall be expressly
assumed by the corporation formed by such consolidation, or into which the
Company shall have been merged, or by the corporation which shall have acquired
such property, by supplemental indenture, satisfactory in form to the Trustee,
executed and delivered to
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the Trustee by the corporation formed by such consolidation, or into which the
Company shall have been merged, or by the corporation which shall have acquired
such property.
SECTION 12.02. In case of any such consolidation, merger, sale or
conveyance in accordance with Section 12.01, such successor corporation shall
succeed to and be substituted for the Company with the same effect as if it had
been named herein as a party, and the Company (including any intervening
successor to either hereunder) shall be relieved of any further obligation
under this Indenture and the Senior Debt Securities; provided, however, that in
the case of a sale or conveyance of the property of the Company (including any
such intervening successor), in connection with which there is no plan
providing for the complete liquidation of the Company (including any such
intervening successor), the Company (including any such intervening successor)
shall continue to be liable on its obligations under this Indenture and the
Senior Debt Securities to the extent, but only to the extent, of liability to
pay the principal of and premium, if any, and interest on the Senior Debt
Securities at the time, places and rate, and in the coin or currency,
prescribed in this Indenture and the Senior Debt Securities. Any such
successor corporation thereupon may cause to be signed, and may issue either in
its own name or in the name of the Company any or all of the Senior Debt
Securities issuable hereunder which theretofore shall not have been signed by
the Company and delivered to the Trustee; and, upon the order of any such
successor corporation, and subject to all the terms, conditions and limitations
in this Indenture prescribed, the Trustee shall authenticate and shall deliver
any Senior Debt Securities which previously shall have been signed and
delivered by the officers of the Company to the Trustee for authentication, and
any Senior Debt Securities which such successor corporation thereafter shall
cause to be signed and delivered to the Trustee for that purpose. All the
Senior Debt Securities so issued shall in all respects have the same legal rank
and benefit under this Indenture as the Senior Debt Securities theretofore or
thereafter issued in accordance with the terms of this Indenture as though all
of such Senior Debt Securities had been issued at the date of the execution
hereof.
In case of any such consolidation, merger, sale or conveyance, such
changes in phraseology and form (but not in substance) may be made in the
Senior Debt Securities thereafter to be issued as may be appropriate.
SECTION 12.03. The Trustee, subject to the provisions of Sections
8.01 and 8.02, may receive an Officer's Certificate and an Opinion of Counsel
as conclusive evidence that any such consolidation, merger, sale or conveyance
complies with the provisions of this Article Twelve and that all conditions
precedent herein provided relating to such transaction have been complied with.
ARTICLE THIRTEEN.
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS.
SECTION 13.01. The Company may terminate its obligation under the
Senior Debt Securities of a Series and this Indenture with respect to such
Senior Debt Securities, except those obligations referred to in the immediately
succeeding paragraph, if at any time (a) the Company shall have delivered to
the Trustee for cancellation all Senior Debt Securities of any Series
theretofore
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authenticated and delivered (other than any Senior Debt Securities which shall
have been destroyed, lost or stolen and which shall have been replaced or paid
as provided in Section 2.08) and the Company shall have paid or caused to be
paid all sums payable by it hereunder, or (b) if the Company has irrevocably
deposited or caused to be deposited with the Trustee under the terms of an
irrevocable trust agreement in form and substance satisfactory to the Trustee,
as trust funds in trust solely for the benefit of the holders of the Senior
Debt Securities of such Series for that purpose, money or direct non-callable
obligations of, or non-callable obligations guaranteed by, the United States of
America for the payment of which guarantee or obligation the full faith and
credit of the United States is pledged ("U.S. Government Obligations") maturing
as to principal and interest in such amounts and at such times as are
sufficient, as verified in a Certificate of a Firm of Independent Public
Accountants, without consideration of any reinvestment of such interest, to pay
principal of and interest or sinking funds on the outstanding Senior Debt
Securities of such Series to maturity or redemption as the case may be,
provided that the Trustee or any paying agent shall have been irrevocably
instructed to apply such money or the proceeds of such U.S. Government
Obligations to the payment of said principal and interest and said sinking fund
with respect to the Senior Debt Securities of such Series. The Company may
make an irrevocable deposit pursuant to this Section 13.01 only if at such time
the Company shall have delivered to the Trustee and any such paying agent an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions herein precedent to the satisfaction and discharge of this Indenture
have been complied with and the Opinion of Counsel further states that the
making of such deposit (i) does not contravene or violate any provision of any
indenture, mortgage, loan agreement or other similar agreement known to such
counsel to which the Company is a party or by which it or any of its property
is bound, and (ii) does not require registration by the deposit referred to
above under the Investment Company Act of 1940, as amended.
Notwithstanding the foregoing paragraph, the Company's obligations in
Sections 2.06, 2.08, 5.01, 5.02, 5.05, 6.01, 8.06, 8.10, 13.04 and 13.05 shall
survive until the Senior Debt Securities of such Series are no longer
outstanding. Thereafter, the Company's obligations in Section 8.06, 13.04 and
13.05 shall survive.
After any such irrevocable deposit, the Trustee upon request shall (i)
acknowledge in writing the discharge of the Company's obligations under the
Senior Debt Securities of such Series and this Indenture except for those
surviving obligations specified above, (ii) execute, deliver and file
termination statements, releases and other instruments of satisfaction, release
and discharge with respect to such released security interest and (iii) assign,
transfer and deliver to the Company all the Trustee's rights and interest in
and to that portion of the trust estate so released.
SECTION 13.02. Subject to the provisions of Section 13.04, all moneys
or U.S. Government Obligations deposited with the Trustee pursuant to Section
13.01 shall be held in trust and applied by it to the payment, either directly
or through any paying agent (including the Company acting as its own paying
agent), to the holders of the particular Senior Debt Securities of the
applicable Series, for the payment or redemption of which such moneys or U.S.
Government Obligations have been deposited with the Trustee, of all sums due
and to become due thereon for principal and interest and premium, if any, and
Sinking Fund payments.
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SECTION 13.03. In connection with the satisfaction and discharge of
this Indenture with respect to the Senior Debt Securities of any Series, all
moneys then held by any paying agent under the provisions of this Indenture
with respect to such Series of Senior Debt Securities shall, upon demand of the
Company, be repaid to it or paid to the Trustee and thereupon such paying agent
shall be released from all further liability with respect to such moneys.
SECTION 13.04. Any moneys deposited with the Trustee or any paying
agent for the payment of the principal of and premium, if any, or interest on
Senior Debt Securities of any Series and not applied but remaining unclaimed by
the holders of Senior Debt Securities of such Series for two years after the
date upon which such payment shall have become due, shall be held uninvested
and without liability for interest and shall be repaid to the Company by the
Trustee or by such paying agent on demand; and the holder of any of the Senior
Debt Securities of the applicable Series entitled to receive such payment shall
thereafter look only to the Company for the payment thereof and all liability
of the Trustee or any paying agent with respect to such moneys shall thereupon
cease; provided, however, that the Trustee or such paying agent, before being
required to make any such repayment, may at the expense of the Company cause to
be published once a week for two successive weeks (in each case on any day of
the week) in an authorized newspaper a notice that said moneys have not been so
applied and that after a date named therein any unclaimed balance of said
moneys then remaining will be returned to the Company.
SECTION 13.05. If the Trustee is unable to apply any money or U.S.
Government Obligations in accordance with Section 13.01 by reason of any legal
proceeding or by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application, the
Company's obligations under this Indenture and the Senior Debt Securities of
any Series affected thereby shall be revived and reinstated as though no
deposit had occurred pursuant to Section 13.01, until such time as the Trustee
is permitted to apply all such money or U.S. Government Obligations in
accordance with Section 13.01; provided, however, that if the Company has made
any payment of interest on or principal of any Senior Debt Securities of such
Series because of the reinstatement of its obligations, the Company shall be
subrogated to the rights of the holders of such Senior Debt Securities to
receive such payment from the money or U.S. Government Obligations held by the
Trustee.
ARTICLE FOURTEEN.
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS.
SECTION 14.01. No recourse under or upon any obligation, covenant or
agreement of this Indenture, or of any Senior Debt Security, or for any claim
based thereon or otherwise in respect thereof, shall be had against any
incorporator, stockholder, officer or director, as such, past, present or
future, of the Company or of any successor corporation, either directly or
through the Company, whether by virtue of any constitution, statute or rule of
law, or by the enforcement of any assessment or penalty or otherwise; it being
expressly understood that this Indenture and the obligations issued hereunder
are solely corporate obligations, and that no such personal liability whatever
shall attach to, or is or shall be incurred by, the incorporators,
stockholders, officers or directors, as such, of the Company or of any
successor corporation, or any of them, because of the creation of the
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indebtedness hereby authorized, or under or by reason of the obligations,
covenants or agreements contained in this Indenture or in the Senior Debt
Securities of any Series or implied therefrom; and that any and all such
personal liability, either at common law or in equity or by constitution or
statute, of, and any and all such rights and claims against, every such
incorporator, stockholder, officer or director, as such, because of the
creation of the indebtedness hereby authorized, or under or by reason of the
obligations, covenants or agreements contained in this Indenture or in the
Senior Debt Securities of any Series or implied therefrom, are hereby expressly
waived and released as a condition of, and as a consideration for, the
execution of this Indenture and the issue of such Senior Debt Securities.
ARTICLE FIFTEEN.
MISCELLANEOUS PROVISIONS.
SECTION 15.01. All the covenants, stipulations, promises and
agreements in this Indenture contained by or on behalf of the Company shall
bind its successors and assigns, whether so expressed or not.
SECTION 15.02. Any act or proceeding by any provision of this
Indenture authorized or required to be done or performed by any board,
committee or officer of the Company shall and may be done and performed with
like force and effect by the like board, committee or officer of any
corporation that shall at that time be the successor of the Company.
SECTION 15.03. The Company by instrument in writing executed by
authority of its Board of Directors and delivered to the Trustee may surrender
any of the powers or rights reserved to the Company and thereupon such power or
right so surrendered shall terminate both as to the Company and as to any
successor corporation.
SECTION 15.04. Any notice or demand which by any provisions of this
Indenture is required or permitted to be given or served by the Trustee or by
the holders of Senior Debt Securities to or on the Company shall be delivered
by hand or sent by first-class mail, postage prepaid, addressed (until another
address is filed by the Company with the Trustee), as follows: Centex
Corporation, 2728 North Harwood, Dallas, Texas 75201, Attention: Corporate
Secretary. Any notice, direction, request or demand by any holder to or upon
the Trustee shall be deemed to have been sufficiently given or made, for all
purposes, if given or made at any corporate trust office of the Trustee.
SECTION 15.05. Where this Indenture provides for notice to holders of
any event, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class, postage prepaid, to
each holder affected by such event, at his address as it appears on the Senior
Debt Security Register, not later than the latest date, and not earlier than
the earliest date, prescribed for the giving of such notice. In any case where
notice to holders is given by mail, neither the failure to mail such notice,
nor any defect in any notice so mailed, to any particular holder shall affect
the sufficiency of such notice with respect to other holders, and any notice
which is mailed in the manner herein provided shall be conclusively presumed to
have been duly given.
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When this Indenture provides for notice in any manner, such notice may
be waived in writing by the person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken
in reliance upon such waiver.
In case, by reason of the suspension of regular mail service as a
result of a strike, work stoppage or similar activity, it shall be impractical
to mail notice of any event to holders of Senior Debt Securities when such
notice is required to be given pursuant to any provision of this Indenture,
then any manner of giving such notice as shall be satisfactory to the Trustee
shall be deemed to be a sufficient giving of such notice.
SECTION 15.06. This Indenture, each indenture supplemental thereto
and each Senior Debt Security shall be deemed to be a contract made under the
laws of the State of Texas, and for all purposes shall be construed in
accordance with the laws of said State, provided that the rights, duties,
immunities and standard of care of the Trustee shall be governed by and
construed in accordance with the laws of the United States of America.
SECTION 15.07. Upon any application or demand by the Company to the
Trustee to take any action under any of the provisions of this Indenture, the
Company shall furnish to the Trustee an Officers' Certificate stating that all
conditions precedent (including any covenant compliance with which constitutes
a condition precedent) provided for in this Indenture relating to the proposed
action have been complied with and an Opinion of Counsel stating that in the
opinion of such counsel all such conditions precedent have been complied with,
except that in the case of any such application or demand as to which the
furnishing of such document is specifically required by any provision of this
Indenture relating to such particular application or demand, no additional
certificate or opinion need be furnished.
Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or
covenant provided for in this Indenture shall include (1) a statement that the
person making such certificate or opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based; (3) a statement that, in the opinion of such
person, he has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant or
condition has been complied with; and (4) a statement as to whether or not, in
the opinion of such person, such condition or covenant has been complied with.
SECTION 15.08. In any case where the date of maturity of interest on
or principal of the Senior Debt Securities or the date fixed for redemption of
any Senior Debt Security shall not be a business day then payment of interest
or principal and premium, if any, to the holders need not be made on such date,
but may be made on the next succeeding business day with the same force and
effect as if made on the date of maturity or the date fixed for redemption, and
no interest shall accrue for the period after such date.
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SECTION 15.09. If and to the extent that any provision of this
Indenture limits, qualifies or conflicts with another provision included in
this Indenture which is required to be included in this Indenture by any of
Sections 310 to 317, inclusive, of the Trust Indenture Act of 1939, such
required provision shall control.
SECTION 15.10. In case any provision in this Indenture or in the
Senior Debt Securities shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
SECTION 15.11. This Indenture 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 15.12. Unless specified otherwise in the Series Supplement,
interest on the Senior Debt Securities shall be computed on the basis of a
360-day year consisting of twelve 30-day months.
SECTION 15.13. Chase Bank of Texas, National Association hereby
accepts the trusts in this Indenture declared and provided, upon the terms and
conditions hereinabove set forth.
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IN WITNESS WHEREOF, CENTEX CORPORATION has caused this Indenture to be
signed by its President or one of its Vice Presidents, and its corporate seal
to be affixed hereunto, and the same to be attested by its Secretary or an
Assistant Secretary, and CHASE BANK OF TEXAS, NATIONAL ASSOCIATION has caused
this Indenture to be signed by one of its duly authorized trust officers and
its corporate seal to be affixed hereunto, and the same to be duly attested,
all as of the day and year first above written.
CENTEX CORPORATION
By:
------------------------------
Vicki A. Roberts
Vice President and Treasurer
ATTEST:
- -----------------------------------
Drew F. Nachowiak, Associate
General Counsel and Assistant
Secretary
CHASE BANK OF TEXAS, NATIONAL
ASSOCIATION, as Trustee
By:
-----------------------------
Title:
-----------------------------
ATTEST:
- -----------------------------------
[Name and title]
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STATE OF TEXAS ss.
ss.
COUNTY OF DALLAS ss.
BEFORE ME, the undersigned authority, a Notary Public in and for said
state, on this day personally appeared Vicki A. Roberts and Drew F. Nachowiak,
known to me to be the persons and officers whose names are subscribed to the
foregoing instrument and acknowledged to me that the same was the act of the
said CENTEX CORPORATION, a Nevada corporation, and that they executed the same
as the act of said corporation for the purposes and consideration therein
expressed, and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this ____ day of October,
1998.
-------------------------------------------
Notary Public in and for the State of Texas
My commission expires:
-------------------------------------------
(Type or print name)
- --------------------------------
STATE OF TEXAS ss.
ss.
COUNTY OF DALLAS ss.
BEFORE ME, the undersigned authority, a Notary Public in and for said
state, on this day personally appeared _________________________, known to me
to be the persons and officers whose names are subscribed to the foregoing
instrument and acknowledged to me that the same was the act of the said CHASE
BANK OF TEXAS, NATIONAL ASSOCIATION, a national banking association, and that
they executed the same as the act of said banking association for the purposes
and consideration therein expressed, and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this ____ day of October,
1998.
-------------------------------------------
Notary Public in and for the State of Texas
My commission expires:
-------------------------------------------
(Type or print name)
- -------------------------------
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<PAGE> 1
EXHIBIT 4.2
CENTEX CORPORATION
Issuer
and
CHASE BANK OF TEXAS, NATIONAL ASSOCIATION
Trustee
INDENTURE SUPPLEMENT NO. 1
Dated as of October 1, 1998
to
INDENTURE
Dated as of October 1, 1998
$200,000,000 Medium-Term Notes, Series A
<PAGE> 2
INDENTURE SUPPLEMENT NO. 1 ("Indenture Supplement"), dated as of
October 1, 1998, between CENTEX CORPORATION, a Nevada corporation (together
with its successors and assigns as provided in the Indenture referred to below,
the "Company"), and CHASE BANK OF TEXAS, NATIONAL ASSOCIATION, a national
banking association (together with its successors in trust thereunder as
provided in the Indenture referred to below, the "Trustee"), as trustee under
an Indenture dated as of October 1, 1998 (the "Indenture").
PRELIMINARY STATEMENT
Section 2.02 of the Indenture provides, among other things, that the
Company may, when authorized by its Board of Directors, and the Trustee may at
any time and from time to time, enter into a series supplement to the Indenture
for the purpose of authorizing one or more Series of Senior Debt Securities and
to specify certain terms of each such Series of Senior Debt Securities. The
Board of Directors of the Company has duly authorized the creation of a Series
of Senior Debt Securities with an aggregate principal amount of $200,000,000 to
be known as the Company's Medium-Term Notes, Series A (the "Notes"), and the
Company and the Trustee are executing and delivering this Indenture Supplement
in order to provide for the issuance of the Notes.
ARTICLE ONE
Definitions
Except to the extent such terms are otherwise defined in this
Indenture Supplement or the context clearly requires otherwise, all terms used
in this Indenture Supplement which are defined in the Indenture or the form of
Fixed Rate Note or Floating Rate Note attached hereto as Exhibits A and B,
respectively, either directly or by reference therein, shall have the meanings
assigned to them therein.
As used in this Indenture Supplement, the following terms shall have
the following meanings:
AMORTIZED FACE AMOUNT:
The term "Amortized Face Amount" of an Original Issue Discount Note,
as of the date that (i) the principal amount of such Note is to be repaid prior
to its Stated Maturity, whether upon declaration of acceleration, call for
redemption, repayment at the option of the Holder or otherwise, or (ii) any
consent, notice, request, direction, waiver or suit by the Noteholders shall be
deemed to be given, made or commenced under this Indenture, shall mean the
principal amount of such Note multiplied by its Issue Price plus the portion of
the difference between the dollar amount thus obtained and the principal amount
of such Note that has accreted at the Yield to maturity of such Note (computed
in accordance with generally accepted United States bond yield computation
principles) to such date, but in no event shall the Amortized Face Amount of an
Original Issue Discount Note exceed its principal amount stated in the
applicable Company Order.
AMORTIZING NOTE:
The term "Amortizing Note" shall mean a Note for which payments of
principal of and interest on such Note are made in installments over the life
of such Note, and unless otherwise specified in the applicable Company Order,
payments with respect to an Amortizing Note shall be applied first to interest
due and payable thereon and then to the reduction of the unpaid principal
amount thereof.
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<PAGE> 3
AUTHORIZED AGENT:
The term "Authorized Agent" shall mean an agent of the Company
designated by an Officers' Certificate to give to the Trustee the information
specified in clause (a) of "Company Order" for the issuance of a Note.
BASIS POINT:
The term "Basis Point" shall mean one-one hundredth of a percentage
point.
CD RATE:
The term "CD Rate" shall mean, with respect to any CD Rate Interest
Determination Date, the rate on such date for negotiable United States dollar
certificates of deposit having the Index Maturity specified in the applicable
Pricing Supplement as published in H.15(519) (as hereinafter defined) under the
heading "CD (secondary market)" or, if not so published by 3:00 P.M., New York
City time, on the related Calculation Date, the rate on such CD Rate Interest
Determination Date for negotiable United States dollar certificates of deposit
of the Index Maturity specified in the applicable Pricing Supplement as
published in H.15 Daily Update (as hereinafter defined), or such other
recognized electronic source used for the purpose of displaying such rate,
under the caption "CD (secondary market)." If such rate is not yet published in
H.15(519), H.15 Daily Update or another recognized electronic source by 3:00
P.M., New York City time, on the related Calculation Date, then the CD Rate on
such CD Rate Interest Determination Date will be calculated by the Calculation
Agent and will be the arithmetic mean of the secondary market offered rates as
of 10:00 A.M., New York City time, on such CD Rate Interest Determination Date,
of three leading nonbank dealers in negotiable United States dollar
certificates of deposit in The City of New York (which may include the Agents
or their affiliates) selected by the Calculation Agent for negotiable United
States dollar certificates of deposit of major United States money center banks
for negotiable certificates of deposit with a remaining maturity closest to the
Index Maturity specified in the applicable Pricing Supplement in an amount that
is representative for a single transaction in that market at that time;
provided, however, that if the dealers so selected by the Calculation Agent are
not quoting as mentioned in this sentence, the CD Rate determined as of such CD
Rate Interest Determination Date will be the CD Rate in effect on such CD Rate
Interest Determination Date.
CD RATE INTEREST DETERMINATION DATE:
The term "CD Rate Interest Determination Date" shall mean the Interest
Determination Date relating to a Floating Rate Note for which the interest rate
is determined with reference to the CD Rate.
CMT RATE:
The term "CMT Rate" shall mean, with respect to any Interest
Determination Date relating to a Floating Rate Note for which the interest rate
is determined with reference to the CMT Rate, the rate displayed on the
Designated CMT Telerate Page under the caption "...Treasury Constant
Maturities...Federal Reserve Board Release H.15...Mondays Approximately 3:45
P.M.," under the column for the Designated CMT Maturity Index for (i) if the
Designated CMT Telerate Page is 7051, the rate on such CMT Rate Interest
Determination Date and (ii) if the Designated CMT Telerate Page is 7052, the
weekly or monthly average, as specified in the Company Order, for the week or
the month, as applicable, ended immediately preceding the week or the month, as
applicable, in which the related CMT Rate Interest Determination Date falls. If
such rate is no longer displayed on the relevant page or is not so displayed by
3:00 P.M., New York
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<PAGE> 4
City time, on the related Calculation Date, then the CMT Rate for such CMT Rate
Interest Determination Date will be such treasury constant maturity rate for
the Designated CMT Maturity Index as published in H.15(519). If such rate is no
longer published or is not so published by 3:00 P.M., New York City time, on
the related Calculation Date, then the CMT Rate on such CMT Rate Interest
Determination Date will be such treasury constant maturity rate for the
Designated CMT Maturity Index (or other United States Treasury rate for the
Designated CMT Maturity Index) for the CMT Rate Interest Determination Date
with respect to such Interest Reset Date as may then be published by either the
Board of Governors of the Federal Reserve System or the United States
Department of the Treasury that the Calculation Agent determines to be
comparable to the rate formerly displayed on the Designated CMT Telerate Page
and published in H.15(519). If such information is not so provided by 3:00
P.M., New York City time, on the related Calculation Date, then the CMT Rate on
the CMT Rate Interest Determination Date will be calculated by the Calculation
Agent and will be a yield to maturity, based on the arithmetic mean of the
secondary market offered rates as of approximately 3:30 P.M., New York City
time, on such CMT Rate Interest Determination Date reported, according to their
written records, by three leading primary United States government securities
dealers in The City of New York (which may include the Agents or their
affiliates) (each, a "Reference Dealer") selected by the Calculation Agent
(from five such Reference Dealers selected by the Calculation Agent and
eliminating the highest quotation (or, in the event of equality, one of the
highest) and the lowest quotation (or, in the event of equality, one of the
lowest)), for the most recently issued direct noncallable fixed rate
obligations of the United States ("Treasury Notes") with an original maturity
of approximately the Designated CMT Maturity Index and a remaining term to
maturity of not less than such Designated CMT Maturity Index minus one year. If
the Calculation Agent is unable to obtain three such Treasury Note quotations,
the CMT Rate on such CMT Rate Interest Determination Date will be calculated by
the Calculation Agent and will be a yield to maturity based on the arithmetic
mean of the secondary market offered rates as of approximately 3:30 P.M., New
York City time, on such CMT Rate Interest Determination Date of three Reference
Dealers in The City of New York (from five such Reference Dealers selected by
the Calculation Agent and eliminating the highest quotation (or, in the event
of equality, one of the highest) and the lowest quotation (or, in the event of
equality, one of the lowest)), for Treasury Notes with an original maturity of
the number of years that is the next highest to the Designated CMT Maturity
Index and a remaining term to maturity closest to the Designated CMT Maturity
Index and in an amount of at least $100 million. If three or four (and not
five) of such Reference Dealers are quoting as described above, then the CMT
Rate will be based on the arithmetic mean of the offered rates obtained and
neither the highest nor the lowest of such quotes will be eliminated; provided,
however, that if fewer than three Reference Dealers so selected by the
Calculation Agent are quoting as mentioned herein, the CMT Rate determined as
of such CMT Rate Interest Determination Date will be the CMT Rate in effect on
such CMT Rate Interest Determination Date. If two Treasury Notes with an
original maturity as described in the second preceding sentence have remaining
terms to maturity equally close to the Designated CMT Maturity Index, the
Calculation Agent will obtain quotations for the Treasury Note with the shorter
remaining term to maturity.
CMT RATE INTEREST DETERMINATION DATE:
The term "CMT Rate Interest Determination Date" shall mean any
Interest Determination Date relating to a Floating Rate Note for which the
interest rate is determined with reference to the CMT Rate.
CALCULATION AGENT:
The term "Calculation Agent" for a particular Floating Rate Note shall
mean the Trustee, unless otherwise specified in the applicable Company Order.
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<PAGE> 5
CALCULATION DATE:
The term "Calculation Date" shall, unless otherwise specified in the
applicable Company Order, mean with regard to any particular Interest
Determination Date, the earlier of (i) the tenth calendar day after such
Interest Determination Date, or, if any such day is not a Business Day, the
next day that is a Business Day, or (ii) the Business Day immediately preceding
the applicable Interest Payment Date or Maturity Date, as the case may be.
COMMERCIAL PAPER RATE:
The term "Commercial Paper Rate" for a particular Floating Rate Note,
unless otherwise indicated in the applicable Company Order, shall mean, with
respect to any Interest Determination Date, the Money Market Yield on such date
of the rate for commercial paper having the Index Maturity specified in such
Company Order, as such rate shall be published in H.15(519) under the caption
"Commercial Paper -- Nonfinancial" or, if not so published by 3:00 P.M., New
York City time, on the related Calculation Date, the rate on such Commercial
Paper Rate Interest Determination Date for commercial paper having the Index
Maturity specified in the applicable Company Order as published in H.15 Daily
Update, or such other recognized electronic source used for the purpose of
displaying such rate, under the caption "Commercial Paper-Nonfinancial." If
such rate is not yet published in H.15(519), H.15 Daily Update or another
recognized electronic source by 3:00 P.M., New York City time, on the related
Calculation Date, then the Commercial Paper Rate on such Commercial Paper Rate
Interest Determination Date will be calculated by the Calculation Agent and
will be the Money Market Yield of the arithmetic mean of the offered rates at
approximately 11:00 A.M., New York City time, on such Commercial Paper Rate
Interest Determination Date of three leading dealers of commercial paper in The
City of New York (which may include the Agents or their affiliates) selected by
the Calculation Agent for commercial paper having the Index Maturity specified
in the applicable Pricing Supplement placed for industrial issuers whose bond
rating is "Aa," or the equivalent, from a nationally recognized statistical
rating organization; provided, however, that if the dealers so selected by the
Calculation Agent are not quoting as mentioned in this sentence, the Commercial
Paper Rate determined as of such Commercial Paper Rate Interest Determination
Date will be the Commercial Paper Rate in effect on such Commercial Paper Rate
Interest Determination Date.
COMMERCIAL PAPER RATE INTEREST DETERMINATION DATE:
The term "Commercial Paper Rate Interest Determination Date" shall
mean any Interest Determination Date relating to a Floating Rate Note for which
the interest rate is determined with reference to the Commercial Paper Rate.
COMMERCIAL PAPER RATE NOTES:
The term "Commercial Paper Rate Notes" shall mean Floating Rate Notes
which are specified in the applicable Company Order as bearing interest at an
interest rate calculated with reference to the Commercial Paper Rate.
COMPANY ORDER:
The term "Company Order" shall mean:
(a) a written order signed in the name of the Company by the Chairman
of the Board, the President or any Vice President and by the Secretary or an
Assistant Secretary of the Company, and delivered to the Trustee, to
authenticate a Note and to make it available for delivery, and specifying for
such Note the following information:
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<PAGE> 6
(1) the name of the Person in which a Note to be issued and
authenticated shall be registered;
(2) the address of such Person;
(3) the taxpayer identification number of such Person;
(4) the principal amount of such Note and, if multiple Notes are
to be issued to such Person, the denominations of such Notes;
(5) the Issue Price of such Note;
(6) the Original Issue Date of such Note;
(7) the date upon which such Note is scheduled to mature and the
Final Maturity Date;
(8) if the Note is to be redeemable at the option of the Company,
the Initial Redemption Date and the date or dates on which, and the
price or prices at which, such Note is redeemable at the option of the
Company;
(9) if the Note is to be repayable prior to the Stated Maturity
at the option of the Holder, the date or dates on which, and the price
or prices at which, such Note is repayable at the option of the
Holder;
(10) if the Note is a Fixed Rate Note, the rate of interest on
such Note and the Interest Payment Dates, if other than March 1 and
September 1, and the Record Dates, if other than February 15 and
August 15;
(11) if the Note is an Original Issue Discount Note, its Yield to
Maturity;
(12) if such Note is an Amortizing Note, a table setting forth
the schedule of dates and amounts of payments of principal of and
interest on such Note or the formula for the amortization of principal
and/or interest;
(13) if the Note is a Reset Note, the Optional Interest Reset
Date and the formula, if any, for resetting the interest rate of a
Fixed Rate Note or the Spread and/or Spread Multiplier of a Floating
Rate Note;
(14) if the Note is a Floating Rate Note, its:
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<PAGE> 7
(A) Initial Interest Rate (I) Interest Reset Dates
(B) Interest Rate Basis or Bases (J) Spread
(including any Designated LIBOR
Currency and Designated LIBOR
Page or any Designated CMT
Maturity Index and Designated CMT
Telerate Page)
(C) Index Maturity (K) Spread Multiplier
(D) Interest Determination Dates (L) Maximum Interest Rate
(E) Interest Reset Period (M) Minimum Interest Rate
(F) Initial Interest Reset Date (N) Interest Payment Dates
(G) Fixed Rate Commencement Date, if (O) Record Dates
applicable
(H) Fixed Interest Rate, if applicable
(15) If such Note is a Floating Rate Note, whether it is a
Regular Floating Rate Note or a Floating Rate/Fixed Rate Note;
(16) whether or not such Note is to be issued in the form of a
Global Note to the Depositary;
(17) the name and address of the Calculation Agent, if other than
the Trustee;
(18) if other than United States dollars or denominations of
$1,000 and integral multiples thereof, the authorized currency or
denominations in which Notes shall be issued; and
(19) all other information necessary for the issuance of such
Note not inconsistent with the provisions of this Indenture; or
(b) confirmation given to the Trustee by an officer of the Company
designated by an Officers' Certificate, by telephone, confirmed by telex or
facsimile or similar writing, of the information given to the Trustee by an
Authorized Agent for the issuance of a Note, and the written order of the
Company to authenticate such Note and to make it available for delivery.
COMPOSITE QUOTATIONS:
The term "Composite Quotations" shall mean the daily statistical
release "Composite 3:30 P.M. Quotations for U. S. Government Securities" or any
successor publication published by the Federal Reserve Bank of New York.
CONSOLIDATED NET TANGIBLE ASSETS:
The term "Consolidated Net Tangible Assets" shall mean the aggregate
amount of assets included on the most recent consolidated balance sheet of the
Company and its subsidiaries, less applicable reserves and other properly
deductible items and after deducting therefrom (a) all current liabilities and
(b) all goodwill, trade names, trademarks, patents, unamortized debt discount
and expense, and other like intangibles, all in accordance with generally
accepted accounting principles consistently applied.
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<PAGE> 8
CUSIP:
The term "CUSIP" shall mean the registered trademark "Committee on
Uniform Securities Identification Procedures" or "CUSIP" and a unique system of
identification of each public issue of a security owned by the American Bankers
Association and administered by Standard and Poor's Corporation, as agent of
the American Bankers Association.
DEPOSITARY:
The term "Depositary" shall mean, unless otherwise specified by the
Company, The Depository Trust Company, New York, New York, or any successor
thereto registered as a Clearing Agency under the Securities and Exchange Act
of 1934, as amended, or any successor statute or regulation.
DESIGNATED CMT TELERATE PAGE:
The term "Designated CMT Telerate Page" shall mean the display on
Bridge Telerate, Inc. (or any successor service) on the page specified in the
applicable Pricing Supplement (or any other page as may replace such page on
such service) for the purpose of displaying Treasury Constant Maturities as
reported in H.15(519) or, if no such page is specified in the applicable
Pricing Supplement, page 7052.
DESIGNATED CMT MATURITY INDEX:
The term "Designated CMT Maturity Index" shall mean the original
period to maturity of the U.S. Treasury securities (either 1, 2, 3, 5, 7, 10,
20 or 30 years) specified in the applicable Pricing Supplement with respect to
which the CMT Rate will be calculated or, if no such maturity is specified in
the applicable Pricing Supplement, 2 years.
DESIGNATED LIBOR CURRENCY:
The term "Designated LIBOR Currency" shall mean the currency or
composite currency specified in the applicable Company Order as to which LIBOR
shall be calculated or, if no such currency or composite currency is specified
in the applicable Company Order, United States dollars.
DESIGNATED LIBOR PAGE:
The term "Designated LIBOR Page" shall mean either (a) the display on
the Reuters Monitor Money Rates Service (or any successor service) on the page
specified in such Company Order (or any other page as may replace such page on
such service) for the purpose of displaying the London interbank rates of major
banks for the Designated LIBOR Currency (if "LIBOR Reuters" is specified in the
applicable Company Order), or (b) the display on Bridge Telerate, Inc. (or any
successor service) on the page specified in the applicable Company Order (or
any other page as may replace such page on such service) for the purpose of
displaying the London interbank rates of major banks for the Designated LIBOR
Currency (if "LIBOR Telerate" is specified in the applicable Company Order or
neither "LIBOR Reuters" nor "LIBOR Telerate" is specified in the applicable
Company Order as the method for calculating LIBOR).
ELEVENTH DISTRICT COST OF FUNDS RATE:
The term "Eleventh District Cost of Funds Rate" shall mean, with
respect to any Interest Determination Date relating to a Floating Rate Note for
which the interest rate is determined with reference
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<PAGE> 9
to the Eleventh District Cost of Funds Rate (an "Eleventh District Cost of
Funds Rate Interest Determination Date"), the rate equal to the monthly
weighted average cost of funds for the calendar month immediately preceding the
month in which such Eleventh District Cost of Funds Rate Interest Determination
Date falls as set forth under the caption "11th District" on the display on
Bridge Telerate, Inc. (or any successor service) on page 7058 ("Telerate Page
7058") as of 11:00 A.M., San Francisco time, on such Eleventh District Cost of
Funds Rate Interest Determination Date. If such rate does not appear on
Telerate Page 7058 on such Eleventh District Cost of Funds Rate Interest
Determination Date, then the Eleventh District Cost of Funds Rate on such
Eleventh District Cost of Funds Rate Interest Determination Date shall be the
monthly weighted average cost of funds paid by member institutions of the
Eleventh Federal Home Loan Bank District that was most recently announced (the
"Index") by the FHLB of San Francisco as such cost of funds for the calendar
month immediately preceding such Eleventh District Cost of Funds Rate Interest
Determination Date. If the FHLB of San Francisco fails to announce the Index on
or prior to such Eleventh District Cost of Funds Rate Interest Determination
Date for the calendar month immediately preceding such Eleventh District Cost
of Funds Rate Interest Determination Date, the Eleventh District Cost of Funds
Rate determined as of such Eleventh District Cost of Funds Rate Interest
Determination Date will be the Eleventh District Cost of Funds Rate in effect
on such Eleventh District Cost of Funds Rate Interest Determination Date.
FEDERAL FUNDS RATE:
The terms "Federal Funds Rate" shall mean, with respect to any
Interest Determination Date relating to a Floating Rate Note for which the
interest rate is determined with reference to the Federal Funds Rate (a
"Federal Funds Rate Interest Determination Date"), the rate on such date for
United States dollar federal funds as published in H.15(519) under the heading
"Federal Funds (Effective)", as such rate is displayed on Bridge Telerate, Inc.
(or any successor service) on page 120 ("Telerate Page 120"), or, if such rate
does not appear on Telerate Page 120 or is not so published by 3:00 P.M., New
York City time, on the related Calculation Date, the rate on such Federal Funds
Rate Interest Determination Date for United States dollar federal funds as
published in H.15 Daily Update, or such other recognized electronic source used
for the purpose of displaying such rate, under the caption "Federal Funds
(Effective)." If such rate does not appear on Telerate Page 120 or is not yet
published in H.15(519), H.15 Daily Update or another recognized electronic
source by 3:00 P.M., New York City time, on the related Calculation Date, then
the Federal Funds Rate on such Federal Funds Rate Interest Determination Date
will be calculated by the Calculation Agent and will be the arithmetic mean of
the rates for the last transaction in overnight United States dollar federal
funds arranged by three leading brokers of federal funds transactions in The
City of New York (which may include the Agents or their affiliates) selected by
the Calculation Agent prior to 9:00 A.M., New York City time, on such Federal
Funds Rate Interest Determination Date; provided, however, that if the brokers
so selected by the Calculation Agent are not quoting as mentioned in this
sentence, the Federal Funds Rate determined as of such Federal Funds Rate
Interest Determination Date will be the Federal Funds Rate in effect on such
Federal Funds Rate Interest Determination Date.
FINAL MATURITY DATE:
The term "Final Maturity Date" shall mean the date beyond which the
Stated Maturity of a particular Note may not be extended at the option of the
Company.
FIXED RATE AMORTIZING NOTE:
The term "Fixed Rate Amortizing Note" shall mean a Fixed Rate Note
which is an Amortizing Note.
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FIXED RATE NOTE:
The term "Fixed Rate Note" shall mean a Note which bears interest at a
fixed rate (which may be zero in the case of a Zero Coupon Note) specified in
the applicable Company Order.
FLOATING RATE NOTE:
The term "Floating Rate Note" shall mean a Note which bears interest
at a variable rate determined by reference to an interest rate formula, and
includes a CD Rate Note, a CMT Rate Note, a Commercial Paper Rate Note, an
Eleventh District Cost of Funds Rate Note, a Federal Funds Rate Note, a LIBOR
Note, a Prime Rate Note or a Treasury Rate Note.
FUNDED INDEBTEDNESS:
The term "Funded Indebtedness" shall mean notes, bonds, debentures or
other similar evidences of indebtedness for money borrowed which by its terms
matures at or is extendible or renewable at the option of the obligor to a date
more than 12 months after the date of the creation of such debt.
GLOBAL NOTE:
The term "Global Note" shall mean a single Note that is issued to
evidence Notes having identical terms and provisions, which is delivered to the
Depositary or pursuant to instructions of the Depositary and which shall be
registered in the name of the Depositary or its nominee.
H.15(519):
The term "H.15(519)" shall mean the weekly publication "Statistical
Release H.15(519), Selected Interest Rates" or any successor publication
published by the Board of Governors of the Federal Reserve System.
H.15 DAILY UPDATE:
The term "H.15 Daily Update" shall mean the daily update of H.15(519),
available through the world- wide-web site of the Board of Governors of the
Federal Reserve System at http://www.bog.frb.fed.us/releases/h15/update, or any
successor site or publication.
INDEX MATURITY:
The term "Index Maturity" of a particular Floating Rate Note shall
mean the period to Stated Maturity of the instrument or obligation with respect
to which the related Interest Rate Basis or Bases of such Floating Rate Note is
calculated, as specified in the applicable Company Order.
INITIAL INTEREST RATE:
The term "Initial Interest Rate" for a particular Floating Rate Note
shall mean the interest rate specified in the applicable Company Order as in
effect from the Original Issue Date of such Floating Rate Note to its first
Interest Reset Date.
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INITIAL REDEMPTION DATE:
The term "Initial Redemption Date" shall mean the earliest date, if
any, on which a particular Note shall be redeemable at the option of the
Company prior to the Stated Maturity of such Note, as specified in the
applicable Company Order.
INTEREST ACCRUAL PERIOD:
The term "Interest Accrual Period" for a particular Floating Rate Note
shall mean the period from the date of issue of such Floating Rate Note, or
from an Interest Reset Date, if any, to its next subsequent Interest Reset
Date.
INTEREST DETERMINATION DATE:
The term "Interest Determination Date" shall mean, with respect to the
CD Rate, the CMT Rate, the Commercial Paper Rate, the Federal Funds Rate and
the Prime Rate, the second Business Day immediately preceding the applicable
Interest Reset Date; the "Interest Determination Date" with respect to the
Eleventh District Cost of Funds Rate shall be the last working day of the month
immediately preceding the applicable Interest Reset Date on which the Federal
Home Loan Bank of San Francisco (the "FHLB of San Francisco") publishes the
Index; and the "Interest Determination Date" with respect to LIBOR shall be the
second London Business Day immediately preceding the applicable Interest Reset
Date, unless the Designated LIBOR Currency is British pounds sterling, in which
case the "Interest Determination Date" shall be the applicable Interest Reset
Date. With respect to the Treasury Rate, the "Interest Determination Date"
shall be the day in the week in which the applicable Interest Reset Date falls
on which day Treasury Bills are normally auctioned (Treasury Bills are normally
sold at an auction held on Monday of each week, unless such Monday is a legal
holiday, in which case the auction is normally held on the immediately
succeeding Tuesday although such auction may be held on the preceding Friday);
provided, however, that if an auction is held on the Friday of the week
preceding the applicable Interest Reset Date, the "Interest Determination Date"
shall be such preceding Friday; provided, further, that if the Interest
Determination Date would otherwise fall on an Interest Reset Date, then such
Interest Reset Date shall be postponed to the next succeeding Business Day. The
"Interest Determination Date" pertaining to a Floating Rate Note the interest
rate of which is determined by reference to two or more Interest Rate Bases
shall be the most recent Business Day which is at least two Business Days prior
to the applicable Interest Reset Date for such Floating Rate Note on which each
Interest Rate Basis is determinable. Each Interest Rate Basis shall be
determined as of such date, and the applicable interest rate shall take effect
on the applicable Interest Reset Date.
INTEREST PAYMENT DATE:
(a) The term "Interest Payment Date" shall mean with respect to a
Floating Rate Note, including a Floating Rate Amortizing Note, which has an
Interest Reset Date reset (1) daily, weekly or monthly: the third Wednesday of
each month or the third Wednesday of March, June, September and December of
each year, as specified in the applicable Company Order, (2) quarterly: the
third Wednesday of March, June, September and December of each year, as
specified in the applicable Company Order, (3) semiannually: the third
Wednesday of the two months of each year, as specified in the applicable
Company Order; (4) annually: the third Wednesday of the month of each year, as
specified in the applicable Company Order, and, in each case, the Maturity Date
of such Floating Rate Note and, with respect to defaulted interest on such
Floating Rate Note, the date established by the Company for the payment of such
defaulted interest. If any Interest Payment Date (other than at Maturity) for
any Floating Rate Note would fall on a day that is not a Business Day with
respect to such Floating Rate Note, such Interest Payment Date will be the
immediately following day that is a Business Day with respect to such Floating
Rate Note, except that, in the case of a LIBOR Note, if such Business Day with
respect to such Floating Rate Note is in the next succeeding calendar month,
such Interest Payment Date shall be the immediately preceding London Business
Day.
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(b) The term "Interest Payment Date" shall mean with respect to a
Fixed Rate Note, including a Fixed Rate Amortizing Note, each March 1 and
September 1, or such other dates which are specified in the applicable Company
Order during the period such Fixed Rate Note is outstanding, the Maturity Date
of such Fixed Rate Note, and with respect to defaulted interest on such Fixed
Rate Note, the date established by the Company for the payment of such
defaulted interest.
(c) Notwithstanding the foregoing, the first Interest Payment Date for
any Note originally issued between a Record Date and the next Interest Payment
Date shall be the Interest Payment Date following the next succeeding Record
Date.
INTEREST RATE:
(a) The term "Interest Rate" for a particular Floating Rate Note shall
mean (1) from the date of issue of such Floating Rate Note to the first
Interest Reset Date for such Floating Rate Note, the Initial Interest Rate, and
(2) each Interest Accrual Period commencing on or after such First Interest
Reset Date, the Base Rate with reference to the Index Maturity for such
Floating Rate Note as specified in the applicable Company Order plus or minus
the Spread, if any, multiplied by the Spread Multiplier, if any; PROVIDED that
in the event no Spread or Spread Multiplier is provided in such Company Order,
the Spread and Spread Multiplier shall be zero and one, respectively; PROVIDED,
FURTHER, in no event shall the Interest Rate be greater than the Maximum
Interest Rate, if any, or less than the Minimum Interest Rate, if any;
PROVIDED, FURTHER, the Interest Rate in effect for the ten days immediately
prior to Maturity will be the Interest Rate in effect on the tenth day
preceding such Maturity; and PROVIDED, FURTHER, the Interest Rate will in no
event be higher than the maximum rate permitted by Texas or other applicable
law, as the same may be modified by United States federal laws of general
application.
(b) The term "Interest Rate" for a particular Fixed Rate Note shall
mean the interest rate specified in the applicable Company Order.
INTEREST RATE BASIS:
The term "Interest Rate Basis" shall mean with respect to (a) CD Rate
Notes, the CD Rate, (b) CMT Rate Notes, the CMT Rate, (c) Commercial Paper Rate
Notes, the Commercial Paper Rate, (d) Eleventh District Cost of Funds Note, the
Eleventh District Cost of Funds Rate, (e) Federal Funds Rate Notes, the Federal
Funds Rate, (f) LIBOR Notes, LIBOR, (g) Prime Rate Notes, the Prime Rate, (h)
Treasury Rate Notes, the Treasury Rate, and (i) any other Floating Rate Note,
the interest rate formula which determines the variable rate at which such Note
bears interest.
INTEREST RESET DATE:
The term "Interest Reset Date" shall mean, in the case of a Floating
Rate Note specified in the applicable Company Order as being reset (a) daily:
each Business Day; (b) weekly: the Wednesday of each week (with the exception
of weekly reset Treasury Rate Notes which reset the Tuesday of each week,
except as specified below); (c) monthly: the third Wednesday of each month
(with the exception of monthly reset Floating Rate Notes as to which the
Eleventh District Cost of Funds Rate is an applicable Interest Rate Basis which
will reset on the first calendar day of the month); (d) quarterly: the third
Wednesday of March, June, September and December; (e) semiannually: the third
Wednesday of the two months specified in the applicable Company Order; and (f)
annually: the third Wednesday of the month specified in the applicable
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Company Order. If any Interest Reset Date for a Floating Rate Note would
otherwise be a day which is not a Business Day, such Interest Reset Date shall
be postponed to the next succeeding day that is a Business Day, except that in
the case of a LIBOR Note, if such Business Day is in the next succeeding
calendar month, such Interest Reset Date shall be the immediately preceding
London Business Day. If, in the case of a Treasury Rate Note, an Interest Reset
Date shall fall on a day on which the Treasury auctions Treasury Bills, then
such Interest Reset Date shall instead be the first Business Day immediately
following such auction.
INTEREST RESET PERIOD:
The term "Interest Reset Period" shall mean for:
(a) each Floating Rate Note on which interest is reset
monthly, quarterly, semiannually or annually, and each Fixed Rate
Note, the period:
(1) beginning on and including the Original Issue Date of
such Note or the most recent Interest Payment Date on which
interest was paid on such Note, and
(2) ending on but not including the next Interest Payment
Date or, for the last Interest Reset Period, the Maturity
Date, of such Note;
(b) each Floating Rate Note on which interest is reset daily
or weekly, the period:
(1) beginning on and including the Original Issue Date of
such Floating Rate Note, or beginning on but excluding the
most recent Record Date through which interest was paid on
such Note, and
(2) ending on and including the next Record Date or, for
the last Interest Reset Period, ending on but excluding the
Maturity Date, of such Note;
PROVIDED, HOWEVER, that the first Interest Reset Period for any Note which has
its Original Issue date after a Record Date and prior to its next Interest
Payment Date, shall begin on and include such Original Issue Date and (i) end
on and include the next Record Date for Floating Rate Notes on which interest
is reset daily or weekly, and (ii) end on but not include the second Interest
Payment Date after the Original Issue Date for all other Notes.
ISSUE PRICE:
The term "Issue Price" shall mean the price expressed as a percentage
of the aggregate principal amount of a Note at which such Note is issued.
LIBOR:
The term "LIBOR" for a particular Floating Rate Note, unless otherwise
indicated in the applicable Company Order, shall mean, with respect to any
LIBOR Interest Determination Date, the rate determined:
(i) With respect to any LIBOR Interest Determination Date,
LIBOR shall be either: (a) if "LIBOR Telerate" is specified in the
applicable Company Order or if neither "LIBOR Reuters" nor "LIBOR
Telerate" is specified in the applicable Company Order as the method
for calculating LIBOR, the rate for deposits in the Designated LIBOR
Currency having the Index Maturity specified in such Company Order,
commencing on such Interest Reset Date, that appears on the Designated
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<PAGE> 14
LIBOR Page as of 11:00 A.M., London time, on such LIBOR Interest
Determination Date; or (b) if "LIBOR Reuters" is specified in the
applicable Pricing Supplement, the arithmetic mean of the offered
rates (unless the Designated LIBOR Page by its terms provides only for
a single rate, in which case such single rate shall be used) for
deposits in the Designated LIBOR Currency having the Index Maturity
specified in such Pricing Supplement, commencing on the applicable
Interest Reset Date, that appear (or, if only a single rate is
required as aforesaid, appears) on the Designated LIBOR Page as of
11:00 A.M., London time, on such LIBOR Interest Determination Date. If
fewer than two such offered rates so appear, or if no such rate so
appears, as applicable, LIBOR on such LIBOR Interest Determination
Date shall be determined in accordance with the provisions described
in clause (ii) below.
(ii) With respect to a LIBOR Interest Determination Date on
which fewer than two offered rates appear, or no rate appears, as the
case may be, on the Designated LIBOR Page as specified in clause (i)
above, the Calculation Agent will request the principal London offices
of each of four major reference banks (which may include affiliates of
the Agents) in the London interbank market, as selected by the
Calculation Agent, to provide the Calculation Agent with its offered
quotation for deposits in the Designated LIBOR Currency for the period
of the Index Maturity specified in the applicable Pricing Supplement,
commencing on the applicable Interest Reset Date, to prime banks in
the London interbank market at approximately 11:00 A.M., London time,
on such LIBOR Interest Determination Date and in a principal amount
that is representative for a single transaction in the Designated
LIBOR Currency in such market at such time. If at least two such
quotations are so provided, then LIBOR on such LIBOR Interest
Determination Date shall be the arithmetic mean of such quotations. If
fewer than two such quotations are so provided, then LIBOR on such
LIBOR Interest Determination Date shall be the arithmetic mean of the
rates quoted at approximately 11:00 A.M., in the applicable Principal
Financial Center, on such LIBOR Interest Determination Date by three
major banks (which may include affiliates of the Agents) in such
Principal Financial Center selected by the Calculation Agent for loans
in the Designated LIBOR Currency to leading European banks, having the
Index Maturity specified in the applicable Company Order and in a
principal amount that is representative for a single transaction in
the Designated LIBOR Currency in such market at such time; provided,
however, that if the banks so selected by the Calculation Agent are
not quoting as mentioned in this sentence, LIBOR determined as of such
LIBOR Interest Determination Date shall be LIBOR in effect on such
LIBOR Interest Determination Date.
LIBOR INTEREST DETERMINATION DATE:
The term "LIBOR Interest Determination Date" shall mean the Interest
Determination Date pertaining to a LIBOR Note.
LIBOR NOTES:
The term "LIBOR Notes" shall mean Floating Rate Notes which are
specified in the applicable Company Order as bearing interest at an interest
rate calculated with reference to LIBOR.
LONDON BUSINESS DAY:
The term "London Business Day" shall mean any day on which dealings in
the Designated LIBOR Currency are transacted in the London interbank market.
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MATURITY DATE:
The term "Maturity Date," when used with respect to any Note, shall
mean the date on which the principal of such Note or an installment of
principal becomes due and payable in accordance with its terms and the terms of
this Indenture as therein or herein provided, whether at Stated Maturity, upon
declaration of acceleration, call for redemption, repayment at the option of
the Holder or otherwise.
MAXIMUM INTEREST RATE:
The term "Maximum Interest Rate" shall mean the maximum rate of
interest, if any, which may be applicable to any Floating Rate Note during any
Interest Accrual Period as specified in the applicable Company Order.
MINIMUM INTEREST RATE:
The term "Minimum Interest Rate" shall mean the minimum rate of
interest, if any, which may be applicable to any Floating Rate Note during any
Interest Accrual Period as specified in the applicable Company Order.
MONEY MARKET YIELD:
The term "Money Market Yield" shall be the yield (expressed as a
percentage) calculated in accordance with the following formula:
Money Market Yield = [(D x 360)/(360 - (D x M))] x 100
where "D" refers to the applicable per annum rate for commercial paper quoted
on a bank discount basis and expressed as a decimal, and "M" refers to the
actual number of days in the applicable Interest Reset Period.
NOTEHOLDER; HOLDER:
The terms "Noteholder" or "Holder" shall mean any Person in whose name
at the time a particular Note is registered in the register of the Company kept
for that purpose in accordance with the terms hereof.
OFFICERS' CERTIFICATE:
The term "Officers' Certificate" when used with respect to the
Company, shall mean a certificate signed by the Chairman of the Board, the
President or any Vice President and by the Secretary or an Assistant Secretary
of the Company.
OPTIONAL INTEREST RESET DATE:
The term "Optional Interest Reset Date" shall mean each date on which
the interest rate on a Fixed Rate Reset Note or the Spread and/or Spread
Multiplier of a Floating Rate Reset Note may be reset at the option of the
Company.
ORIGINAL ISSUE DATE:
The term "Original Issue Date" shall mean for a particular Note, or
portions thereof, the date upon which it, or such portion, was issued by the
Company pursuant to this Indenture or any indenture supplemental thereto and
authenticated by the Trustee (other than in connection with a transfer,
exchange or substitution).
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ORIGINAL ISSUE DISCOUNT NOTE:
The term "Original Issue Discount Note" shall mean (i) a Note that has
a "stated redemption price at maturity" that exceeds its "issue price", each as
defined for United States federal income tax purposes, by at least 0.25% of its
stated redemption price at maturity multiplied by the number of complete years
from the Original Issue Date to the Stated Maturity for such Note (or in the
case of a Note that provides for payment of any amount other than the
"qualified stated interest", as defined for United States federal income tax
purposes, prior to maturity, the weighted average maturity of the Note) and
(ii) any other Note designated by the Company in the applicable Company Order
as issued with original issue discount for United States federal income tax
purposes.
PERSON:
The term "Person" shall mean any individual, corporation, partnership,
joint venture, association, joint-stock company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
PRIME RATE:
The term "Prime Rate" for a particular Floating Rate Note, unless
otherwise indicated in the applicable Company Order, shall mean, with respect
to any Prime Rate Interest Determination Date, the rate on such date as
published in H.15(519) under the caption "Bank Prime Loan" or, if not published
by 3:00 P.M., New York City time, on the related Calculation Date, the rate on
such Prime Rate Interest Determination Date as published in H.15 Daily Update,
or such other recognized electronic source used for the purpose of displaying
such rate, under the caption "Bank Prime Loan." If such rate is not yet
published in H.15(519), H.15 Daily Update or another recognized electronic
source by 3:00 P.M., New York City time, on the related Calculation Date, then
the Prime Rate shall be the arithmetic mean of the rates of interest publicly
announced by each bank that appears on the Reuters Screen USPRIME1 Page (as
hereinafter defined) as such bank's prime rate or base lending rate as of 11:00
A.M., New York City time, on such Prime Rate Interest Determination Date. If
fewer than four such rates appear on the Reuters Screen USPRIME1 Page for such
Prime Rate Interest Determination Date, then the Prime Rate shall be the
arithmetic mean of the prime rates or base lending rates quoted on the basis of
the actual number of days in the year divided by a 360-day year as of the close
of business on such Prime Rate Interest Determination Date by four major money
center banks (which may include affiliates of the Agents) in The City of New
York selected by the Calculation Agent. If fewer than four such quotations are
so provided, then the Prime Rate shall be the arithmetic mean of four prime
rates quoted on the basis of the actual number of days in the year divided by a
360-day year as of the close of business on such Prime Rate Interest
Determination Date as furnished in The City of New York by the major money
center banks, if any, that have provided such quotations and by a reasonable
number of substitute banks or trust companies (which may include affiliates of
the Agents) to obtain four such prime rate quotations, provided such substitute
banks or trust companies are organized and doing business under the laws of the
United States, or any State thereof, each having total equity capital of at
least $500 million and being subject to supervision or examination by Federal
or State authority, selected by the Calculation Agent to provide such rate or
rates; provided, however, that if the banks or trust companies so selected by
the Calculation Agent are not quoting as mentioned in this sentence, the Prime
Rate determined as of such Prime Rate Interest Determination Date will be the
Prime Rate in effect on such Prime Rate Interest Determination Date.
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PRIME RATE NOTES:
The term "Prime Rate Notes" shall mean Floating Rate Notes which are
specified in the applicable Company Order as bearing interest at an interest
rate calculated with reference to the Prime Rate.
PRINCIPAL AMOUNT:
The term "principal amount" with respect to any Note shall mean the
principal amount thereof set forth in the applicable Company Order; PROVIDED
that in the case of any Original Issue Discount Note, its principal amount as
of (i) any date that the principal amount of such Note is to be repaid prior to
its Stated Maturity, whether upon declaration of acceleration, call for
redemption, repayment at the option of the Noteholder or otherwise, or (ii) any
date that any consent, notice, request, direction, waiver or suit by the
Noteholders shall be deemed to be given, made or commenced under this
Indenture, such term shall mean the Amortized Face Amount of such Note as of
such date.
PRINCIPAL FINANCIAL CENTER:
The term "Principal Financial Center" shall mean the capital city of
the country to which the Designated LIBOR Currency relates (or, in the case of
ECU, Luxembourg), except that with respect to United States dollars, Australian
dollars, Canadian dollars, Deutsche marks, Dutch guilders, Portuguese escudos,
South African rand and Swiss francs, the "Principal Financial Center" shall be
The City of New York, Sydney, Toronto, Frankfurt, Amsterdam, London,
Johannesburg and Zurich, respectively
RECORD DATE:
The term "Record Date" shall mean for the Interest Payment Date for
the payment of interest for an Interest Reset Period for a particular Note,
unless otherwise specified in the applicable Company Order, (a) the day which
is fifteen calendar days immediately prior to such Interest Payment Date,
whether or not such day is a Business Day, (b) the Maturity Date of such Note,
unless such Maturity Date for a Fixed Rate Note is a January 1 or a July 1, in
which event the Record Date will be as provided in clause (a), and (c) a date
which is not less than five Business Days immediately preceding the Interest
Payment Date of defaulted interest on such Note established by notice given by
first-class mail by or on behalf of the Company to the Holder of such Note not
less than fifteen calendar days prior to such Interest Payment Date.
REDEMPTION DATE:
The term "Redemption Date" for a Note shall mean the date fixed for
the redemption of such Note in accordance with the provisions of this
Indenture.
RESET NOTE:
The term "Reset Note" shall mean a Fixed Rate Note, with respect to
which the Company has the option to reset the interest rate, and a Floating
Rate Note, with respect to which the Company has the option to reset the Spread
and/or Spread Multiplier.
REUTERS SCREEN USPRIME1 PAGE:
The term "Reuters Screen USPRIME1" shall mean the display designated
as page "USPRIME1" on the Reuters Monitor Money Rate Service (or such other
page which may replace the USPRIME1 page on such service) for the purpose of
displaying the prime rate or base lending rate of major United States banks.
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SPREAD:
The term "Spread" applicable to a particular Floating Rate Note shall
mean the number of Basis Points to be added to or subtracted from the related
Interest Rate Basis or Bases applicable to such Floating Rate Note as specified
in the applicable Company Order, used in the calculation of the Interest Rate
for such Floating Rate Note.
SPREAD MULTIPLIER:
The term "Spread Multiplier" applicable to a particular Floating Rate
Note shall mean the percentage of the related Interest Rate Basis or Bases
applicable to such Floating Rate Note as specified in the applicable Company
Order, used in the calculation of the Interest Rate for such Floating Rate
Note.
STATED MATURITY:
The term "Stated Maturity," when used with respect to any Note, shall
mean the date specified in such Note as the date on which the principal of such
Note is due and payable.
TREASURY:
The term "Treasury" shall mean the United States Department of
Treasury.
TREASURY BILLS:
The term "Treasury Bills" shall mean direct obligations of the United
States.
TREASURY RATE:
The term "Treasury Rate" for a particular Floating Rate Note, unless
otherwise indicated in the applicable Company Order, shall mean, with respect
to any Treasury Rate Interest Determination Date, the rate from the auction
held on such Treasury Rate Interest Determination Date (the "Auction") of
Treasury Bills having the Index Maturity specified in the applicable Company
Order under the caption "AVGE INVEST YIELD" on the display on Bridge Telerate,
Inc. (or any successor service) on page 56 ("Telerate Page 56") or page 57
("Telerate Page 57") or, if not so published by 3:00 P.M., New York City time,
on the related Calculation Date, the auction average rate of such Treasury
Bills (expressed as a bond equivalent on the basis of a year of 365 or 366
days, as applicable, and applied on a daily basis) as otherwise announced by
the United States Department of the Treasury. In the event that the results of
the Auction of Treasury Bills having the Index Maturity specified in the
applicable Company Order are not so published by 3:00 P.M., New York City time,
on the related Calculation Date, or if no such Auction is held, then the
Treasury Rate shall be the rate (expressed as a bond equivalent on the basis of
a year of 365 or 366 days, as applicable, and applied on a daily basis) on such
Treasury Rate Interest Determination Date of Treasury Bills having the Index
Maturity specified in the applicable Company Order as published in H.15(519)
under the caption "U.S. Government Securities/Treasury Bills/Secondary Market"
or, if not yet published by 3:00 P.M., New York City time, on the related
Calculation Date, the rate on such Treasury Rate Interest Determination Date of
such Treasury Bills as published in H.15 Daily Update, or such other recognized
electronic source used for the purpose of displaying such rate, under the
caption "U.S. Government Securities/Treasury Bills/Secondary Market." If such
rate is not yet published in H.15(519), H.15 Daily Update or another recognized
electronic source, then the Treasury Rate shall be calculated by the
Calculation Agent and shall be a yield to maturity (expressed as a bond
equivalent on the basis of a year of 365 or 366 days, as applicable, and
applied on a daily basis) of the arithmetic mean of the secondary market bid
rates, as of approximately 3:30 P.M.,
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New York City time, on such Treasury Rate Interest Determination Date, of three
leading primary United States government securities dealers (which may include
the Agents or their affiliates) selected by the Calculation Agent, for the
issue of Treasury Bills with a remaining maturity closest to the Index Maturity
specified in the applicable Company Order; provided, however, that if the
dealers so selected by the Calculation Agent are not quoting as mentioned in
this sentence, the Treasury Rate determined as of such Treasury Rate Interest
Determination Date shall be the Treasury Rate in effect on such Treasury Rate
Interest Determination Date.
TREASURY RATE NOTES:
The term "Treasury Rate Notes" shall mean Floating Rate Notes which
are specified in the applicable Company Order as bearing interest at an
interest rate calculated with reference to the Treasury Rate.
TRUSTEE:
The term "Trustee" shall mean Chase Bank of Texas, National
Association and shall also include any successor Trustee.
YIELD TO MATURITY:
The term "Yield to Maturity" shall mean for a particular Note the
yield to maturity of such Note, computed in accordance with generally accepted
United States bond yield computation principles and expressed as a percentage,
specified in the applicable Company Order.
ZERO COUPON NOTE:
The term "Zero Coupon Note" means a Note issued at a price
representing a discount from the principal amount payable at maturity and
bearing a zero fixed rate of interest.
ARTICLE TWO
Terms and Issuance of the Notes
Section 2.01. Issuance and Designation. A Series of Senior Debt
Securities which shall be designated as the Company's "Medium-Term Notes,
Series A" shall be executed, authenticated and delivered from time to time in
accordance with the provisions of, and shall in all respects be subject to, the
terms, conditions and covenants of, the Indenture and this Indenture Supplement
(including the form of Notes set forth in Exhibits A and B). The aggregate
principal amount of the Notes which may be authenticated and delivered under
the Indenture Supplement shall not, except as permitted by the provisions of
the Indenture, exceed $200,000,000.
Section 2.02. Form and Other Terms of Notes; Incorporation of Terms.
(a) Subject to subsection (b) below, the Notes shall be in the form attached
hereto as Exhibits A and B, respectively. The Notes shall be registered in such
names, shall be in such amounts and shall have such Original Issue Dates,
Interest Rates, Maturity Dates, Redemption Dates, if any, Initial Redemption
Percentages, if any, and Annual Redemption Percentage Reductions, if any, and
such other terms as are communicated by the Company to the Trustee in
accordance with the Administrative Procedures described in the Distribution
Agreement, dated October 21, 1998, between the Company and the agents named
therein. The terms of such Notes are herein incorporated by reference and are
part of this Indenture Supplement.
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<PAGE> 20
(b) Any Note may be issued without the consent of the Holders of any
Notes in any such other form or forms and have such other term or terms that
may be established consistent with the Indenture and this Indenture Supplement,
including, but not limited to, Notes denominated in a foreign currency
("Foreign Currency Notes"), and Notes that initially bear interest at a fixed
rate or floating rate through a certain date and then bear interest as
established by a remarketing agent for either a period of 365 days or less or a
period of more than 365 days ("Remarketed Notes").
Section 2.03. Depository for Global Securities. The Depositary for any
Global Securities of the series of which this Note is a part shall be the
Depository Trust Company in The City of New York.
Section 2.04. Place of Payment. The Place of Payment in respect of the
Notes will be at the principal office or agency of the Company in Dallas, Texas
or at the office or place of business of the Trustee or its successor in trust
under the Indenture, which, at the date hereof, is located at Chase Global
Trust, 450 W. 33rd, 15th Floor, New York, New York 10001.
ARTICLE THREE
Additional Covenants
Section 3.01. Limitation on Liens. The following provisions shall
apply to the Notes unless specifically otherwise provided in a series
supplement.
(a) The Company will not itself, and will not permit any subsidiary
(other than Centex Financial Services, Inc. and its subsidiaries) to, issue,
assume or guarantee any indebtedness for borrowed money if such borrowed money
is secured by a mortgage, pledge, security interest, lien or other encumbrance
(any such mortgage, pledge, security interest, lien or other encumbrance being
hereinafter in this Section 3.01 referred to as a "Lien") upon or with respect
to any of the properties or assets of the Company or any such subsidiary or on
any shares of capital stock or other equity interests of any subsidiary that
owns property or assets (other than Centex Financial Services, Inc. and its
subsidiaries), whether, in each case, owned at the date of this Indenture
Supplement or thereafter acquired, unless the Company makes effective provision
whereby the Notes shall be secured by such Lien equally and ratably with any
and all other borrowed money thereby secured; provided, however, that the
foregoing restrictions shall not be applicable to:
(i) Any Lien existing on any of the Company's properties or
assets or shares of capital stock or other equity interests at the
date of this Indenture Supplement;
(ii) Any Lien created by a subsidiary in favor of the Company
or any wholly-owned subsidiary;
(iii) Any Lien on any asset of any corporation or other
entity (or on any accession or improvement to such asset or any
proceeds thereof) existing at the time such corporation or other
entity becomes a subsidiary;
(iv) Any Lien on any asset of any corporation or other entity
(or on any accession or improvement to such asset or any proceeds
thereof) existing at the time such corporation or other entity is
merged or consolidated with or into the Company or a subsidiary;
(v) Any Lien on any asset existing at the time of acquisition
thereof (or on any accession or improvement to such asset or any
proceeds thereof) by the Company or any subsidiary;
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<PAGE> 21
(vi) Any Lien on any asset (or on any accession or
improvement to such asset or any proceeds thereof) securing
Indebtedness incurred or assumed for the purpose of financing all or
any part of the cost of acquiring such asset or the making of any
improvement thereof; provided that such Lien attaches to such asset
concurrently with or within 180 days after the acquisition thereof or
the making of such improvement;
(vii) Any Lien incurred in connection with pollution control,
industrial revenue or any similar financing;
(viii) Any Lien arising out of the refinancing, extension,
renewal or replacement of any of the Liens permitted by any of clauses
(i) through (vii) above; provided that such Indebtedness is not
increased and is not secured by any additional assets; and
(ix) any Lien imposed by law.
(b) Notwithstanding the provisions of subsection (a) of this Section
3.01, the Company or any subsidiary may issue, assume or guarantee indebtedness
for borrowed money secured by a Lien which would otherwise be subject to the
foregoing restrictions in an aggregate amount which, together with all other
such secured borrowings of the Company and its subsidiaries and the
Attributable Debt (as defined below) in respect of Sale and Lease-Back
Transactions (as defined in Section 3.02) existing at such time (other than
Sale and Lease-Back Transactions not subject to the limitation contained in
Section 3.02), does not at the time exceed twenty percent (20%) of the
Consolidated Net Tangible Assets of the Company and its subsidiaries, as shown
on the audited consolidated balance sheet contained in the latest annual report
to stockholders of the Company. The term "Attributable Debt" as used in this
paragraph shall mean, as of any particular time, the present value of the
obligation of a lessee for rental payments during the remaining term of any
lease (including any period for which such lease has been extended or may, at
the option of the lessor, be extended).
Section 3.02. Limitation on Sale and Lease-Back Transactions. The
Company will not, nor will it permit any subsidiary to, enter into any
arrangement with any person (other than the Company) providing for the leasing
by the Company or a subsidiary of any of its properties or assets (except for
temporary leases for a term of not more than three (3) years and except for
sales and leases of model homes), which property has been or is to be sold or
transferred by the Company or such subsidiary to such person (herein referred
to as a "Sale and Lease-Back Transaction"), unless (a) the net proceeds to the
Company or such subsidiary from such sale or transfer equal or exceed the fair
value (as determined by the Board of Directors, the Chairman of the Board, the
Vice Chairman, the President or the principal financial officer of the Company)
of the property so leased, (b) the Company or such subsidiary would be entitled
to incur Indebtedness secured by a Lien on the property to be leased pursuant
to Section 3.01, (c) the Company shall, and in any such case the Company
covenants that it will, apply an amount equal to the fair value (as determined
by the Board of Directors, the Chairman of the Board, the Vice Chairman, the
President or the principal financial officer of the Company) of the property so
leased to the retirement (other than any mandatory retirement), within 180 days
of the effective date of any such Sale and Lease-Back Transaction, of Funded
Indebtedness of the Company, (d) such Sale and Lease-Back Transaction relates
to a sale which occurred within 180 days from the date of acquisition of such
property by the Company or a subsidiary or the date of the completion of
construction or commencement of full operations on such property, whichever is
later, or (e) such transaction was consummated prior to the date of this
Indenture Supplement.
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<PAGE> 22
ARTICLE FOUR
Defeasance
Section 4.01. Option to Effect Legal Defeasance or Covenant
Defeasance. The Company may, at any time, with respect to the Notes, elect to
have either Section 13.01 of the Indenture or Section 4.03 of this Indenture
Supplement be applied to all outstanding Notes upon compliance with the
conditions set forth in Article Thirteen of the Indenture and below in this
Article Four.
Section 4.02. Legal Defeasance. Upon the Company's exercise under
Section 4.01 of the option applicable to Section 13.01 of the Indenture, the
Company may terminate its obligations under the Notes, the Indenture and this
Indenture Supplement by complying with the terms and conditions of Section
13.01 of the Indenture; provided, however, that the Opinion of Counsel
delivered to the Trustee will also state that either (A) the Company has
received from, or there has been published by, the Internal Revenue Service, a
ruling or (B) since the date hereof, there has been a change in the applicable
federal income tax law, in either case to the effect that, and based thereon
such Opinion of Counsel shall confirm that, the holders of the outstanding
Notes will not recognize income, gain or loss for federal income tax purposes
as a result of such defeasance and will 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 such defeasance had not occurred.
Section 4.03. Covenant Defeasance. Upon the Company's exercise under
Section 4.01 of the option applicable to this Section 4.03, the Company shall
be released from its obligations under the covenants contained in Article Three
of this Indenture Supplement with respect to the outstanding Notes on and after
the date the conditions set forth below are satisfied ("Covenant Defeasance"),
and the Notes shall thereafter be deemed not "outstanding" for the purposes of
any direction, waiver, consent or declaration or act of Holders (and the
consequences of any thereof) in connection with such covenants, but shall
continue to be deemed "outstanding" for all other purposes hereunder (it being
understood that such Notes shall not be deemed outstanding for accounting
purposes). For this purpose, such Covenant Defeasance means that, with respect
to the outstanding Notes, the Company may omit to comply with and shall have no
liability in respect of any term, condition or limitation set forth in any such
covenant, whether directly or indirectly, by reason of any reference elsewhere
herein to any such covenant or by reason of any reference in any such covenant
to any other provision herein or in any other document and such omission to
comply shall not constitute a Default or an Event of Default, but, except as
specified above, the remainder of the Indenture and such Notes shall be
unaffected thereby. In addition, the Company's exercise under Section 4.01 of
the option applicable to this Section 4.03 shall not constitute an Event of
Default.
Section 4.04. Conditions to Covenant Defeasance. The following shall
be the conditions to the application of Section 4.03 to the outstanding Notes:
(1) the Company shall irrevocably have deposited or caused to
be deposited with the Trustee under the terms of an irrevocable trust
agreement in form and substance satisfactory to the Trustee, as trust
funds in trust solely for the benefit of the holders of such Notes for
that purpose, money or direct non-callable obligations of, or
non-callable obligations guaranteed by, the United States of America
for the payment of which guarantee or obligation the full faith and
credit of the United States is pledged ("U.S. Government Obligations")
maturing as to principal and interest in such amounts and at such
times as are sufficient, as verified in a Certificate of a Firm of
Independent Public Accountants, without consideration of any
reinvestment of such interest, to pay principal of and interest or
sinking funds on the outstanding Notes to maturity or redemption as
the case may be, provided that the Trustee or any paying agent shall
have been irrevocably instructed to apply such money or the proceeds
of such U.S. Government Obligations to the payment of said principal
and
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<PAGE> 23
interest and said sinking fund with respect to the Notes. The Company may make
an irrevocable deposit pursuant to this Section 4.04 only if at such time the
Company shall have delivered to the Trustee and any such paying agent an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions herein precedent to the satisfaction and discharge of this Indenture
have been complied with and the Opinion of Counsel further states that the
making of such deposit (i) does not contravene or violate any provision of any
indenture, mortgage, loan agreement or other similar agreement known to such
counsel to which the Company is a party or by which it or any of its property
is bound, (ii) does not require registration by the deposit referred to above
under the Investment Company Act of 1940, as amended, and (iii) to the effect
that the holders of the outstanding Notes will not recognize income, gain or
loss for federal income tax purposes as a result of such defeasance and will be
subject to federal income tax in the same amount, in the same manner and at the
same times as would have been the case if such defeasance had not occurred.
Notwithstanding the foregoing paragraph, the Company's obligations in
Sections 2.06, 2.08, 5.01, 5.02, 5.05, 6.01, 8.06, 8.10, 13.04 and 13.05 of the
Indenture shall survive until the Notes are no longer outstanding. Thereafter,
the Company's obligations in Section 8.06, 13.04 and 13.05 of the Indenture
shall survive.
ARTICLE FIVE
Miscellaneous
Section 5.01. Ratification of Indenture. As supplemented by this
Indenture Supplement, the Indenture is in all respects ratified and confirmed
and the Indenture as so supplemented by this Indenture Supplement shall be
read, taken and construed as one and the same instrument.
Section 5.02. Conflict with Trust Indenture Act. If any provision
hereof limits, qualifies or conflicts with another provision hereof which is
required to be included in this Indenture Supplement by any of the provisions
of the Trust Indenture Act, such required provisions shall control.
Section 5.03. Effect of Headings. The article and section headings
herein are included for convenience only and shall not affect the construction
hereof.
Section 5.04. Counterparts. This Indenture Supplement 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 5.05. Severability. In case any provision of this Indenture
Supplement or in the Senior Notes shall be found invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
Section 5.06. Benefits of Indenture Supplement. Nothing in this
Indenture Supplement or in the Notes, express or implied, shall give to any
Person, other than the parties hereto and their successors hereunder and the
Holders, any benefit or any legal or equitable right, remedy or claim under
this Indenture Supplement.
Section 5.07. Acceptance of Trusts. Chase Bank of Texas, National
Association hereby accepts the trusts in this Indenture Supplement declared and
provided, upon the terms and conditions herein and in the Indenture set forth.
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<PAGE> 24
Section 5.08. Governing Law. This Indenture Supplement and each Note
issued hereunder shall be deemed to be a contract made under the laws of the
State of Texas, and for all purposes shall be construed in accordance with the
laws of said State.
[Remainder of page intentionally left blank.]
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<PAGE> 25
IN WITNESS WHEREOF, the Company and the Trustee have caused this
Indenture Supplement to be duly executed by their respective officers thereunto
duly authorized and their respective seals duly attested to be hereunto affixed
all as of the day and year first above written.
CENTEX CORPORATION
[SEAL]
Attest: By:
-------------------------------------
Vicki A. Roberts
Vice President and Treasurer
- ----------------------------------
Drew F. Nachowiak
Assistant Secretary
CHASE BANK OF TEXAS, NATIONAL
ASSOCIATION, as Trustee
[SEAL]
Attest: By:
-------------------------------------
Name:
Title:
- ----------------------------------
Name:
Title:
-24-
<PAGE> 26
STATE OF TEXAS ss.
ss.
COUNTY OF DALLAS ss.
BEFORE ME, the undersigned authority, a Notary Public in and for said
state, on this day personally appeared Vicki A. Roberts and Drew F. Nachowiak,
known to me to be the persons and officers whose names are subscribed to the
foregoing instrument and acknowledged to me that the same was the act of the
said CENTEX CORPORATION, a Nevada corporation, and that they executed the same
as the act of said corporation for the purposes and consideration therein
expressed, and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this ____ day of October,
1998.
---------------------------------------------
Notary Public in and for the State of Texas
My commission expires: ---------------------------------------------
Printed Name of Notary Public
- ------------------------------
STATE OF TEXAS ss.
ss.
COUNTY OF DALLAS ss.
BEFORE ME, the undersigned authority, a Notary Public in and for said
state, on this day personally appeared ________________ and ________________,
known to me to be the persons and officers whose names are subscribed to the
foregoing instrument and acknowledged to me that the same was the act of the
said CHASE BANK OF TEXAS, NATIONAL ASSOCIATION, a national banking association,
and that they executed the same as the act of said national banking association
for the purposes and consideration therein expressed, and in the capacity
therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this ____ day of October,
1998.
---------------------------------------------
Notary Public in and for the State of Texas
My commission expires: ---------------------------------------------
Printed Name of Notary Public
- ------------------------------
-25-
<PAGE> 27
EXHIBIT A
GLOBAL FIXED RATE NOTE
REGISTERED PRINCIPAL AMOUNT
NO.______________ $
CENTEX CORPORATION
Medium-Term Note, Series A
Fixed Rate
Unless this Note is presented by an authorized representative of The
Depository Trust Company, a New York corporation, 55 Water Street, New York,
New York ("DTC"), to Centex Corporation, a Nevada corporation (herein called
the "Company," which term includes any successor person under the Indenture
referred to on the reverse hereof), or its agent for registration of transfer,
exchange or payment, and any Note 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 since
the registered owner hereof, Cede & Co., has an interest herein.
Unless and until it is exchanged in whole or in part for Notes in
certificated form, this Note may not be transferred except as a whole by DTC to
a nominee of DTC or by a nominee of DTC to DTC or another nominee of DTC or by
DTC or any such nominee to a successor of DTC or a nominee of such successor of
DTC.
The following summary of terms is subject to the provisions set forth
below:
CUSIP No.: OPTION TO ELECT REPAYMENT: [ ] Yes [ ] No
ORIGINAL ISSUE DATE(S): OPTIONAL REPAYMENT DATE: [ ] Yes [ ] No
PRINCIPAL AMOUNT: CURRENCY:
STATED MATURITY DATE: OPTIONAL INTEREST RESET: [ ] Yes [ ] No
INTEREST RATE: OPTIONAL INTEREST RESET DATES:
INTEREST PAYMENT DATES: ORIGINAL ISSUE
DISCOUNT NOTE: [ ] Yes [ ] No
RECORD DATES: ISSUE PRICE (percentage of principal):
OPTIONAL REDEMPTION: [ ] Yes [ ] No YIELD TO MATURITY:
INITIAL REDEMPTION DATE:
AMORTIZING NOTE: [ ] Yes [ ] No ANNEX ATTACHED (and incorporated by
reference herein): [ ] Yes [ ] No
AUTHORIZED DENOMINATION: OTHER/ADDITIONAL PROVISIONS:
[ ] $1,000 and integral multiples thereof
[ ] Other:
The Company, for value received, hereby promises to pay to Cede & Co.,
or registered assigns, the principal sum specified above, in such coin or
currency of the ________________ as at the time of payment is legal tender for
payment of public and private debts, on the Maturity Date specified above and
to pay interest thereon, in such coin or currency, from and including the
Original Issue Date (or if this Global Note has two or more Original Issue
Dates, interest shall, beginning on each such Original Issue Date, begin to
accrue for that part of the principal amount to which such Original Issue Date
is applicable) specified above, or from and including the most recent Interest
Payment Date
<PAGE> 28
specified above to which interest has been paid or duly provided for, as the
case may be. Interest shall be paid in arrears semiannually on each Interest
Payment Date in each year commencing on (a) the first such Interest Payment
Date next succeeding the earliest Original Issue Date or Dates, or (b) if such
Original Issue Date is after a Record Date and prior to the first Interest
Payment Date, on the second Interest Payment Date, at the per annum Interest
Rate set forth above until Maturity and the principal hereof is paid or made
available for payment. The interest so payable and punctually paid or duly
provided for on any Interest Payment Date will, as provided in the Indenture,
be paid to the Person in whose name this Note is registered at the close of
business on the Record Date specified above next preceding such Interest
Payment Date; PROVIDED, HOWEVER, that if an Original Issue Date falls between a
Record Date and the next Interest Payment Date, the first payment of interest
with respect to such Original Issue Date will be made on the second Interest
Payment Date subsequent to such Original Issue Date to the Person in whose name
this Note is registered at the close of business on the Record Date for such
second Interest Payment Date; and PROVIDED, FURTHER, that interest payable on
the Maturity Date or, if applicable, upon redemption, shall be payable to the
Person to whom principal shall be payable. Except as otherwise provided in the
Indenture, any such interest not so punctually paid or duly provided for will
forthwith cease to be payable to the Holder on such Record Date and shall be
paid to the Person in whose name this Note is registered at the close of
business on a Record Date for the payment of such defaulted interest to be
fixed by the Company, notice whereof shall be given to Noteholders not less
than fifteen calendar days prior to such Record Date. Payment of the principal
of and any premium and interest on this Note shall be made on or before 10:30
A.M., New York City time or such other time as shall be agreed upon between the
Trustee and the Depositary, on the day on which such payment is due, by wire
transfer into the account specified by the Depositary; PROVIDED, HOWEVER, that
as a condition to the payment at the Maturity Date of any part of the principal
and any applicable premium of this Global Note, the Depositary shall surrender,
or cause to be surrendered, this Global Note to the Trustee. The Company will
pay any administrative costs imposed by banks in connection with making
payments by wire transfer, but not any tax, assessment or governmental charge
imposed on the Holder of this Note.
Under certain circumstances, this Global Note is exchangeable in whole
or from time to time in part for a definitive individual Note or Notes, with
the same Original Issue Date or Dates, Maturity Date, Interest Rate and
redemption and other provisions as provided herein or in the Indenture.
The Indenture and the Notes shall be governed by, and construed in
accordance with, the laws of the State of Texas.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS GLOBAL NOTE
SET FORTH IN FULL ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL
PURPOSES HAVE THE SAME EFFECT AS IF SET FORTH IN FULL AT THIS PLACE.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof, directly or through a duly
appointed and authorized authenticating agent, by manual signature of an
authorized signatory, this Note shall not be entitled to any benefit under the
Indenture or be valid or obligatory for any purpose.
2
<PAGE> 29
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.
Dated: CENTEX CORPORATION
[SEAL] By:
----------------------------
Vicki A. Roberts
Vice President and Treasurer
ATTEST:
- -----------------------------
Drew F. Nachowiak
Assistant Secretary
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the Notes referred
to in the within-mentioned Indenture.
CHASE BANK OF TEXAS, NATIONAL ASSOCIATION, as Trustee
By:
--------------------------
Authorized Signatory
3
<PAGE> 30
[REVERSE OF GLOBAL FIXED RATE NOTE]
CENTEX CORPORATION
FIXED RATE MEDIUM-TERM NOTE, SERIES A
This Global Note is one of, and a global security which represents
Notes which are part of, a duly authorized issue of Senior Debt Securities of
the Company (herein called the "Notes"), issued and to be issued in one or more
Series under an Indenture dated as of October 1, 1998 (herein called the
"Senior Indenture") between the Company and Chase Bank of Texas, National
Association, as Trustee (herein called the "Trustee," which term includes any
successor Trustee under the Senior Indenture), to which Senior Indenture and
all indentures supplemental thereto (including the Indenture Supplement dated
as of October 1, 1998 which authorizes the Notes) 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 Noteholders, and of
the terms upon which the Notes are, and are to be, authenticated and delivered.
All terms used in this Note which are defined in the Senior Indenture or in any
indenture supplemental thereto but are not defined in this Note shall have the
meanings assigned to them in the Senior Indenture or in any indenture
supplemental thereto.
Each Note shall be dated the date of its authentication by the
Trustee. Each Note shall also bear an Original Issue Date or Dates which with
respect to this Global Note (or any portion thereof) shall mean the date or
dates of the original issue of the Notes represented hereby as specified on the
face hereof, and such Original Issue Date or Dates shall remain the same for
all Notes subsequently issued upon transfer, exchange or substitution of such
original Note (or such subsequently issued Notes) regardless of their dates of
authentication. The Notes may bear different dates, mature at different times,
bear interest at different rates, be subject to different redemption
provisions, if any, and may otherwise vary, all as provided in the Senior
Indenture.
The indebtedness evidenced by the Notes is, to the extent and in the
manner provided in the Senior Indenture and the Indenture Supplement, senior in
right of payment to certain indebtedness of the Company.
Interest on this Note will be payable on the Interest Payment Date or
Interest Payment Dates as specified on the face hereof and, in either case, at
Maturity. Unless otherwise specified on the face hereof, payments on this Note
with respect to any particular Interest Payment Date or the Maturity Date will
include interest accrued from and including the applicable Original Issue Date,
or from and including the most recent Interest Payment Date to which interest
has been paid or duly provided for, to but excluding the particular Interest
Payment Date or the Maturity Date. Interest on this Note will be computed and
paid on the basis of a 360-day year of twelve 30-day months.
Unless otherwise specified on the face hereof or the Company Order, if
this Note is an Amortizing Note, payments with respect to this Note will be
applied first to interest due and payable hereon and then to the reduction of
the unpaid principal amount hereof. If this Note is an Amortizing Note, a
table setting forth the schedule of dates and amounts of payments of principal
of and interest on this Note or the formula for the amortization of principal
and/or interest is set forth in an annex attached to this Note.
All percentages resulting from any calculation with respect to this
Note will be rounded, if necessary, to the nearest one hundred-thousandth of a
percentage point (with five one-millionths of a percentage point rounded
upward) and all dollar or foreign or composite currency amounts used in or
resulting from any such calculation with respect to this Note will be rounded,
in the case of United States dollars, to the nearest cent or, in the case of a
foreign or composite currency, to the nearest unit (with one-half cent or unit
being rounded upward).
If an Interest Payment Date or the Maturity Date for this Note falls
on a day that is not a Business Day, payment of principal, premium, if any, and
interest to be made on such day with respect to this Note will be made on the
next succeeding day that is a Business Day with the same force and effect as if
made on the due date, and no additional interest will be payable on the date of
payment for the period from and after the due date as a result of such delayed
payment.
This Note will be redeemable at the option of the Company prior to its
Stated Maturity Date only if an Initial Redemption Date is specified on the
face hereof. If so specified, this Note will be subject to redemption at the
option of the Company on any date on and after such Initial Redemption Date in
whole or from time to time in part in
4
<PAGE> 31
increments of $1,000 or any other integral multiple thereof, at the redemption
prices specified in an annex attached to this Note, plus accrued and unpaid
interest to but excluding the date of redemption, but payments due with respect
to this Note prior to the date of redemption will be payable to the Holder of
this Note of record at the close of business on the relevant Record Date
specified on the face hereof, all as provided in the Senior Indenture. Notice
of such redemption shall be given by mailing by first-class mail a notice of
such redemption not less than 20 nor more than 60 calendar days prior to the
date fixed for redemption to the Holder of this Note, in accordance with the
provisions of the Senior Indenture. In the event of redemption of this Note in
part only, this Note will be canceled and a new Note or Notes representing the
unredeemed portion hereof will be issued in the name of the Holder hereof.
This Note is not subject to a sinking fund unless otherwise specified in an
annex attached hereto.
If so specified on the face of this Note, (i) this Note shall be
subject to repayment, in whole or in part, prior to the Stated Maturity Date at
the option of the Holder on a certain date or dates and at a certain price or
prices, plus accrued and unpaid interest to but excluding the date of payment;
and/or (ii) the Interest Rate specified on the face hereof may be reset by the
Company in accordance with a formula or otherwise on the Optional Interest
Reset Date or Dates specified on the face hereof.
Notwithstanding anything herein to the contrary, if this Note is an
Original Issue Discount Note as specified on the face hereof, the amount
payable in the event the principal amount hereof is declared to be due and
payable immediately by reason of an Event of Default or in the event of
redemption or repayment hereof prior to the Stated Maturity hereof, in lieu of
the principal amount due at the Stated Maturity hereof, shall be the Amortized
Face Amount of this Note as of the date of declaration, redemption or
repayment, as the case may be. The "Amortized Face Amount" of this Note shall
be the amount equal to the principal amount of this Note multiplied by the
Issue Price specified on the face hereof plus (b) the portion of the difference
between the dollar amount thus obtained and the principal amount hereof that
has accreted at the Yield to Maturity specified on the face hereof (computed in
accordance with generally accepted United States bond yield computation
principles) to such date of declaration, redemption or repayment but in no
event shall the Amortized Face Amount of this Note exceed the principal amount
stated on the face hereof.
In case an Event of Default shall have occurred and be continuing with
respect to the Notes, the principal hereof may be declared, and upon such
declaration shall become, due and payable, in the manner, with the effect and
subject to the conditions provided in the Senior Indenture. The Senior
Indenture provides that in certain events such declaration and its consequences
may be waived by the Holders of a majority in aggregate principal amount of the
Notes then outstanding. An Event of Default with respect to the Senior Debt
Security of any other Series issued under the Senior Indenture, including the
failure to make any payment of principal or interest with respect thereto when
and as due, will not be an Event of Default with respect to the Notes.
The Senior Indenture contains provisions permitting the Company and
the Trustee, with the consent of the Holders of not less than a majority in
aggregate principal amount of the Notes at the time outstanding, evidenced as
in the Senior Indenture provided, to execute supplemental indentures adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Senior Indenture or of any supplemental indenture or modifying in any
manner the rights of the Holders of the Notes; PROVIDED, HOWEVER, that no such
supplemental indenture shall (i) extend the fixed maturity of any Notes, or
reduce the principal amount thereof, or reduce the rate or extend the time of
payment of interest thereon, or reduce any premium payable on the redemption
thereof, without the consent of the Holder of each Note so affected, or (ii)
reduce the aforesaid percentage of Notes, the consent of the Holders of which
is required for any such supplemental indenture, without the consent of the
Holders of all Notes then outstanding. It is also provided in the Senior
Indenture that the Holders of a majority in aggregate principal amount of the
Notes at the time outstanding may on behalf of the Holders of all the Notes
waive any past default under the Senior Indenture and its consequences, except
a default in the payment of the principal of or premium, if any, or interest on
any of the Notes. Any such consent or waiver by the Holder of this Global Note
(unless revoked as provided in the Senior Indenture) shall be conclusive and
binding upon such Holder and upon all future Holders and owners of this Global
Note and of any Note issued in exchange or substitution herefor, whether or not
any notation of such consent or waiver is made upon this Global Note.
As set forth in, and subject to, the provisions of the Senior
Indenture, no Holder of any Notes will have any right to institute any
proceeding with respect to the Senior Indenture or for any remedy thereunder,
unless such Holder shall have previously given to the Trustee written notice of
default in respect of the Notes and the continuance thereof,
5
<PAGE> 32
and unless the Holders of not less than 25 percent in aggregate principal
amount of the Notes then outstanding shall have made written request upon the
Trustee to institute such action or proceedings in its own name as Trustee
hereunder and shall have furnished to the Trustee such reasonable indemnity as
it may require, and the Trustee shall have failed to institute such proceeding
within 60 calendar days; PROVIDED, HOWEVER, that such limitations do not apply
to a suit instituted by the Holder hereof for the enforcement of payment of the
principal of and any premium or interest on this Global Note on or after the
respective due dates expressed herein.
THIS NOTE IS A GLOBAL NOTE REGISTERED IN THE NAME OF THE DEPOSITARY OR
A NOMINEE THEREOF AND, UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR
THE INDIVIDUAL NOTES REPRESENTED HEREBY, THIS GLOBAL NOTE 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 OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY
OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
If at any time the Depositary for this Global Note notifies the
Company that it is unwilling or unable to continue as Depositary for this
Global Note or if at any time the Depositary for this Global Note shall no
longer be registered as a clearing agency under the Securities Exchange Act of
1934, as amended, or any successor statute or regulation, the Company may
appoint a successor Depositary with respect to this Global Note. If (A) a
successor Depositary for this Global Note is not appointed by the Company
within 60 calendar days after the Company receives such notice or becomes aware
of such ineligibility, or (B) any Notes are represented by this Global Note at
a time when an Event of Default with respect to the Notes shall have occurred
and be continuing, then in each case the Company's election to issue this Note
in global form shall no longer be effective with respect to this Global Note
and the Company will execute, and the Trustee, upon receipt of a Company Order
for the authentication and delivery of individual Notes in exchange for this
Global Note, shall authenticate and make available for delivery, individual
Notes of like tenor and terms in definitive form in an aggregate principal
amount equal to the principal amount of this Global Note in exchange for this
Global Note.
If agreed by the Company and the Depositary with respect to Notes
issued in the form of this Global Note, the Depositary for such Global Note
shall surrender this Global Note in exchange in whole or in part for individual
Notes of like tenor and terms in definitive form on such terms as are
acceptable to the Company and such Depositary. Thereupon the Company shall
execute, and the Trustee shall authenticate and make available for delivery,
without a service charge, (1) to each Person specified by such Depositary, a
new Note or Notes of like tenor and terms, and of any authorized denominations
as requested by such Person in aggregate principal amount equal to and in
exchange for the beneficial interest of such Person in this Global Note, and
(2) to such Depositary a new Global Note of like tenor and terms and in a
denomination equal to the difference, if any, between the principal amount of
this Global Note and the aggregate principal amount of Notes delivered to
Holders thereof.
Under certain circumstances specified in the Senior Indenture, the
Depositary may be required to surrender any two or more Global Notes which have
identical terms (but which may have differing Original Issue Dates) to the
Trustee, and the Company shall execute and the Trustee shall authenticate and
deliver to, or at the direction of, the Depositary a Global Note in principal
amount equal to the aggregate principal amount of, and with all terms identical
to, the Global Notes surrendered to the Trustee, and such new Global Note shall
indicate each applicable Original Issue Date and the principal amount
applicable to each such Original Issue Date.
No reference herein to the Senior Indenture and no provision of this
Global Note or of the Senior Indenture shall alter or impair the obligation of
the Company, which is absolute and unconditional, to pay the principal of,
premium, if any, and interest on this Global Note at the times, places and
rates, and in the coin or currency, herein prescribed.
The Senior Indenture contains provisions for the satisfaction and
discharge of the Senior Indenture upon compliance by the Company with certain
conditions specified therein, which provisions apply to this Note.
The Company, the Trustee, any paying agent and any Senior Debt
Security Registrar (as defined in the Senior Indenture) for the Notes may deem
and treat the Holder hereof as the absolute owner of this Global Note (whether
or
6
<PAGE> 33
not this Global Note shall be overdue and notwithstanding any notation of
ownership or other writing hereon made by anyone other than the Company or any
such Senior Debt Security Registrar), for the purpose of receiving payment
hereof or on account hereof and for all other purposes, and neither the Company
nor the Trustee nor any paying agent nor any such Senior Debt Security
Registrar shall be affected by any notice to the contrary.
No recourse shall be had for the payment of the principal of, or
premium, if any, or interest on, this Global Note, or for any claim based
hereon or otherwise in respect hereof, or based on or in respect of the Senior
Indenture or any indenture supplemental thereto, against any incorporator,
stockholder, officer or director, as such, past, present or future, of the
Company or of any successor corporation, whether by virtue of any constitution,
statute or rule of law, or by the enforcement of any assessment or penalty or
otherwise, all such liability being, by the acceptance hereof and as part of
the consideration for the issue hereof, expressly waived and released.
7
<PAGE> 34
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) and instruct(s) the
Company to repay this Note (or portion hereof specified below) pursuant to its
terms at a price equal to 100% of the principal amount to be repaid, together
with unpaid interest accrued hereon to the Repayment Date, to the undersigned,
at _______________________________________.
If less than the entire principal amount of this Note is to be repaid,
specify the portion hereof (which shall be increments of _______________) which
the holder elects to have repaid and specify the denomination or denominations
(which shall be an authorized denomination) not less than ___________ of the
Notes to be issued to the Holder for the portion of this Note not being repaid
(in the absence of any such specification, one such Note will be issued for the
portion not to be repaid).
Principal Amount
to be Repaid:
$
- ---------------------------------- ----------------
CUSIP Number or other identifier:
Date:
----------------------------- ------------------------------------
NOTICE: The signature(s) to this
assignment must correspond with the
name(s) as written upon the face of
the within instrument in every
particular, without alteration or
enlargement or any change whatever.
The signature(s) must be guaranteed
by an "eligible guarantor
institution" that is a member or
participant in the Securities
Transfer Agents Medallion Program,
the Stock Exchange Medallion
Program or the New York Stock
Exchange, Inc. Medallion Program.
Notice: The signature(s) on this Option to Elect Repayment must correspond
with the name(s) as written upon the face of this Note in every particular,
without alteration or enlargement or any change whatsoever.
8
<PAGE> 35
ABBREVIATIONS
The following abbreviations, when used in the inscription of the face of this
instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT
MIN ACT - ____ Custodian _____
TEN ENT - as tenants by the entireties (Cust) (Minor)
Under Uniform Gifts
JT TEN - as joint tenants with right of to Minors Act
survivorship and not as tenants in
common ----------------------
State
Additional abbreviations may also be used though not in the above list.
-----------
FOR VALUE RECEIVED the undersigned hereby sell(s) assign(s) and transfer(s)
unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
- -----------------------
- -----------------------
- --------------------------------------------------------------------------------
Please print or typewrite name and address
including postal zip code of assignee
- --------------------------------------------------------------------------------
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing _____________________________________________attorney to transfer
said note on the books of the Company, with full power of substitution in the
premises.
Dated:
--------------------------- ------------------------------------
NOTICE: The signature(s) to this
assignment must correspond with the
name(s) as written upon the face of
the within instrument in every
particular, without alteration or
enlargement or any change whatever.
The signature(s) must be guaranteed
by an "eligible guarantor
institution" that is a member or
participant in the Securities
Transfer Agents Medallion Program,
the Stock Exchange Medallion
Program or the New York Stock
Exchange, Inc. Medallion Program.
9
<PAGE> 36
EXHIBIT B
GLOBAL FLOATING RATE NOTE
REGISTERED PRINCIPAL AMOUNT
NO. $
---------
CENTEX CORPORATION
Medium-Term Note, Series A
Floating Rate
Unless this Note is presented by an authorized representative of The
Depository Trust Company, a New York corporation, 55 Water Street, New York, New
York ("DTC"), to Centex Corporation, a Nevada corporation (herein called the
"Company," which term includes any successor person under the Indenture referred
to on the reverse hereof) or its agent for registration of transfer, exchange or
payment, and any Note 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 since the registered owner
hereof, Cede & Co., has an interest herein.
Unless and until it is exchanged in whole or in part for Notes in
certificated form, this Note may not be transferred except as a whole by DTC to
a nominee of DTC or by a nominee of DTC to DTC or another nominee of DTC or by
DTC or any such nominee to a successor of DTC or a nominee of such successor of
DTC.
The following summary of terms is subject to the provisions set forth
below:
<TABLE>
<S> <C> <C>
CUSIP No.: CURRENCY:
ORIGINAL ISSUE DATE(S): OPTIONAL REDEMPTION: [ ] Yes [ ] No
PRINCIPAL AMOUNT: INITIAL REDEMPTION DATE:
STATED MATURITY DATE: AMORTIZING NOTE: [ ] Yes [ ] No
INITIAL INTEREST RATE: CALCULATION AGENT:
INTEREST RATE BASIS OR BASES OPTION TO ELECT REPAYMENT: [ ] Yes [ ] No
(including any Designated LIBOR Page):
INDEX MATURITY: AUTHORIZED DENOMINATIONS:
[ ] $1,000 and integral multiples thereof
[ ] Other:
INTEREST DETERMINATION DATES:
INTEREST RESET PERIOD: OPTIONAL REPAYMENT DATE:
INTEREST RESET DATES: OPTIONAL INTEREST RESET: [ ] Yes [ ] No
SPREAD: OPTIONAL INTEREST RESET DATES:
SPREAD MULTIPLIER: ORIGINAL ISSUE DISCOUNT NOTE: [ ] Yes [ ] No
MAXIMUM INTEREST RATE: ISSUE PRICE (percentage of principal):
MINIMUM INTEREST RATE: YIELD TO MATURITY:
INTEREST PAYMENT DATES: ANNEX ATTACHED (and incorporated
by reference herein): [ ] Yes [ ] No
RECORD DATES: OTHER/ADDITIONAL PROVISIONS
</TABLE>
<PAGE> 37
<TABLE>
<S> <C>
IF LIBOR: IF CMT RATE:
[ ] LIBOR Reuters Page: Designated CMT Telerate Page:
[ ] LIBOR Telerate Page: IF Telerate Page 7052:
DESIGNATED LIBOR CURRENCY: [ ] Weekly Average
[ ] Monthly Average
Designated CMT Maturity Index:
INTEREST CATEGORY: DAY COUNT CONVENTION
[ ] Regular Floating Rate Note [ ] 30/360 for the period from
[ ] Floating Rate/Fixed Rate Note to
Fixed Rate Commencement [ ] Actual/360 for the period from
Date: to
Fixed Interest Rate: % [ ] Actual/Actual for the period from to.
[ ] Inverse Floating Rate Note Applicable Interest Rate Basis:
Fixed Interest Rate: %
</TABLE>
The Company, for value received, hereby promises to pay to Cede & Co.
or registered assigns, the principal sum specified above, in such coin or
currency of the ______________________ as at the time of payment is legal tender
for payment of public and private debts, on the Stated Maturity Date specified
above and to pay interest thereon, in such coin or currency, from and including
the Original Issue Date (or if this Global Note has two or more Original Issue
Dates, interest shall, beginning on each such Original Issue Date, begin to
accrue for that part of the principal amount to which such Original Issue Date
is applicable) specified above, or from and including the most recent Interest
Payment Date specified above to which interest has been paid or duly provided
for, as the case may be. Interest shall be paid in arrears monthly, quarterly,
semiannually or annually as specified above under Interest Payment Dates, on
each Interest Payment Date in each year and at Maturity, commencing on (a) the
first such Interest Payment Date next succeeding the earliest Original Issue
Date or Dates, or (b) if such Original Issue Date is after a Record Date and
prior to the first Interest Payment Date, on the second Interest Payment Date,
at a rate per annum equal to the Initial Interest Rate specified above until the
initial Interest Reset Date specified above, and thereafter at a rate per annum
determined in accordance with the provisions in the Indenture for calculating
the Interest Rate for Notes having the Interest Rate Basis specified above,
until Maturity and the principal hereof is paid or made available for payment.
The interest so payable and punctually paid or duly provided for on any Interest
Payment Date will, as provided in the Indenture, be paid to the Person in whose
name this Note is registered at the close of business on the Record Date
specified above next preceding such Interest Payment Date; PROVIDED, HOWEVER,
that if an Original Issue Date falls between a Record Date and the next Interest
Payment Date, the first payment of interest with respect to such Original Issue
Date will be made on the second Interest Payment Date subsequent to such
Original Issue Date to the Person in whose name this Note is registered at the
close of business on the Record Date for such second Interest Payment Date; and
PROVIDED, FURTHER, that interest payable on the Maturity Date or, if applicable,
upon redemption, shall be payable to the Person to whom principal shall be
payable. Except as otherwise provided in the Indenture, any such interest not so
punctually paid or duly provided for will forthwith cease to be payable to the
Holder on such Record Date and shall be paid to the Person in whose name this
Note is registered at the close of business on a Record Date for the payment of
such defaulted interest to be fixed by the Company, notice whereof shall be
given to Noteholders not less than fifteen calendar days prior to such Record
Date. Payment of the principal of and any premium and interest on this Note
shall be made on or before 10:30 A.M., New York City time or such other time as
shall be agreed upon between the Trustee and the Depositary, on the day on which
such payment is due, by wire transfer into the account specified by the
Depositary; PROVIDED, HOWEVER, that as a condition to the payment at the
Maturity Date of any part of the principal and any applicable premium of this
Global Note, the Depositary shall surrender, or cause to be surrendered, this
Global Note to the Trustee. The Company will pay any administrative costs
imposed by banks in connection with making payments by wire transfer, but not
any tax, assessment or governmental charge imposed on the Holder of this Note.
Under certain circumstances, this Global Note is exchangeable in whole
or from time to time in part for a definitive individual Note or Notes, with the
same Original Issue Date or Dates, Maturity Date, Interest Rate Basis or Bases
and redemption and other provisions as provided herein or in the Indenture.
2
<PAGE> 38
The Indenture and the Notes shall be governed by, and construed in
accordance with, the laws of the State of Texas.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS GLOBAL NOTE
SET FORTH IN FULL ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL
PURPOSES HAVE THE SAME EFFECT AS IF SET FORTH IN FULL AT THIS PLACE.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof, directly or through a duly
appointed and authorized authenticating agent, by manual signature of an
authorized signatory, this Note shall not be entitled to any benefit under the
Indenture or be valid or obligatory for any purpose.
3
<PAGE> 39
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
Dated:
CENTEX CORPORATION
[SEAL]
By:
------------------------------------
Vicki A. Roberts
Vice President and Treasurer
ATTEST:
- -------------------------------
Drew F. Nachowiak
Assistant Secretary
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the Notes referred
to in the within-mentioned Indenture.
CHASE BANK OF TEXAS, NATIONAL ASSOCIATION, as Trustee
By:
-----------------------------
Authorized Signatory
4
<PAGE> 40
[REVERSE OF GLOBAL FLOATING RATE NOTE]
CENTEX CORPORATION
FLOATING RATE MEDIUM-TERM NOTE, SERIES A
This Global Note is one of, and a global security which represents
Notes which are part of, a duly authorized issue of Senior Debt Securities of
the Company (herein called the "Notes"), issued and to be issued in one or more
Series under an Indenture dated as of October 1, 1998 (herein called the "Senior
Indenture") between the Company and Chase Bank of Texas, National Association,
as Trustee (herein called the "Trustee," which term includes any successor
Trustee under the Senior Indenture), to which Senior Indenture and all
indentures supplemental thereto (including the Indenture Supplement dated as of
October 1, 1998 which authorizes the Notes) 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 Noteholders, and of the terms
upon which the Notes are, and are to be, authenticated and delivered. All terms
used in this Note which are defined in the Senior Indenture or in any indenture
supplemental thereto but are not defined in this Note shall have the meanings
assigned to them in the Senior Indenture or in any indenture supplemental
thereto.
Each Note shall be dated the date of its authentication by the Trustee.
Each Note shall also bear an Original Issue Date or Dates which with respect to
this Global Note (or any portion thereof) shall mean the date or dates of the
original issue of the Notes represented hereby as specified on the face hereof,
and such Original Issue Date or Dates shall remain the same for all Notes
subsequently issued upon transfer, exchange or substitution of such original
Note (or such subsequently issued Notes) regardless of their dates of
authentication. The Notes may bear different dates, mature at different times,
bear interest at different rates, be subject to different redemption provisions,
if any, and may otherwise vary, all as provided in the Senior Indenture.
The indebtedness evidenced by the Notes is, to the extent and in the
manner provided in the Senior Indenture and the Series Supplement, senior in
right of payment to certain indebtedness of the Company.
Interest on this Note will be payable on the Interest Payment Date or
Interest Payment Dates as specified on the face hereof and, in either case, at
Maturity. Unless otherwise specified on the face hereof, payments on this Note
with respect to any particular Interest Payment Date or the Maturity Date will
include interest accrued from and including the applicable Original Issue Date,
or from and including the most recent Interest Payment Date to which interest
has been paid or duly provided for, to but excluding the particular Interest
Payment Date or the Maturity Date. Interest on this Note shall be calculated for
each day during such period by dividing the interest rate applicable to such day
by 360, if the Interest Rate Basis specified on the face hereof is the CD Rate,
the Commercial Paper Rate, the Eleventh District Cost of Funds Rate, the Federal
Funds Rate, LIBOR or the Prime Rate, or by the actual number of days in the
year, if the Interest Rate Basis specified on the face hereof is the CMT Rate or
the Treasury Rate. Unless otherwise provided in an annex attached hereto, the
Trustee, acting in the capacity of Calculation Agent, will calculate the
Interest Rate on this Note. Upon the request of any Holder of this Note, the
Trustee shall provide to such Holder the Interest Rate then in effect and, if
then determined, the interest rate that will become effective on the next
Interest Reset Date with respect to this Note. Each such determination of an
Interest Rate will be final and binding in the absence of manifest error.
Unless otherwise specified in an annex attached hereto, if this Note is
an Amortizing Note, payments with respect to this Note will be applied first to
interest due and payable hereon and then to the reduction of the unpaid
principal amount hereof. If this Note is an Amortizing Note, a table setting
forth the schedule of dates and amounts of payments of principal of and interest
on this Note or the formula for the amortization of principal and/or interest is
set forth in an annex attached to this Note.
All percentages resulting from any calculation with respect to this
Note will be rounded, if necessary, to the nearest one hundred-thousandth of a
percentage point (with five one-millionths of a percentage point rounded upward)
and all dollar or foreign or composite currency amounts used in or resulting
from any such calculation with respect to this Note will be rounded, in the case
of United States dollars, to the nearest cent or, in the case of a foreign or
composite currency, to the nearest unit (with one-half cent or unit being
rounded upwards).
5
<PAGE> 41
If an Interest Payment Date or Maturity for this Note falls on a day
that is not a Business Day, payment of principal, premium, if any, and interest
to be made on such day with respect to this Note will be made on the next
succeeding day that is a Business Day with the same force and effect as if made
on the due date, and no additional interest will be payable on the date of
payment for the period from and after the due date as a result of such delayed
payment. Notwithstanding the foregoing, in the case LIBOR is the applicable
Interest Rate Basis with respect to this Note and the next succeeding Business
Day falls in the next succeeding calendar month, payment of interest to be made
on such day with respect to this Note will be made on the immediately preceding
Business Day.
This Note will be redeemable at the option of the Company prior to its
Stated Maturity Date only if an Initial Redemption Date is specified on the face
hereof. If so specified, this Note will be subject to redemption at the option
of the Company on any date on and after such Initial Redemption Date in whole or
from time to time in part in increments of $1,000 or any other integral multiple
thereof, at the redemption prices specified in an annex attached to this Note,
plus accrued and unpaid interest to but excluding the date of redemption, but
payments due with respect to this Note prior to the date of redemption will be
payable to the Holder of this Note of record at the close of business on the
relevant Record Date specified on the face hereof, all as provided in the Senior
Indenture. Notice of such redemption shall be given by mailing by first-class
mail a notice of such redemption not less than 20 nor more than 60 calendar days
prior to the date fixed for redemption to the Holder of this Note, in accordance
with the provisions of the Senior Indenture. In the event of redemption of this
Note in part only, this Note will be canceled and a new Note or Notes
representing the unredeemed portion hereof will be issued in the name of the
Holder hereof. This Note is not subject to a sinking fund unless otherwise
specified in an annex attached hereto.
If so specified on the face of this Note, (i) this Note shall be
subject to repayment, in whole or in part, prior to Stated Maturity Date at the
option of the Holder on a certain date or dates and at a certain price or
prices, plus accrued and unpaid interest to but excluding the date of payment;
and/or (ii) the interest rate specified on the face hereof may be reset by the
Company in accordance with a formula or otherwise on the Optional Interest Reset
Date or Dates specified on the face hereof.
In case an Event of Default shall have occurred and be continuing with
respect to the Notes, the principal hereof may be declared, and upon such
declaration shall become, due and payable, in the manner, with the effect and
subject to the conditions provided in the Senior Indenture. The Senior Indenture
provides that in certain events such declaration and its consequences may be
waived by the Holders of a majority in aggregate principal amount of the Notes
then outstanding. An Event of Default with respect to the Senior Debt Security
of any other Series issued under the Senior Indenture, including the failure to
make any payment of principal or interest with respect thereto when and as due,
will not be an Event of Default with respect to the Notes.
The Senior Indenture contains provisions permitting the Company and the
Trustee, with the consent of the Holders of not less than a majority in
aggregate principal amount of the Notes at the time outstanding, evidenced as in
the Senior Indenture provided, to execute supplemental indentures adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Senior Indenture or of any supplemental indenture or modifying in any manner
the rights of the Holders of the Notes; PROVIDED, HOWEVER, that no such
supplemental indenture shall (i) extend the fixed maturity of any Notes, or
reduce the principal amount thereof, or reduce the rate or extend the time of
payment of interest thereon, or reduce any premium payable on the redemption
thereof, without the consent of the Holder of each Note so affected, or (ii)
reduce the aforesaid percentage of Notes, the consent of the Holders of which is
required for any such supplemental indenture, without the consent of the Holders
of all Notes then outstanding. It is also provided in the Senior Indenture that
the Holders of a majority in aggregate principal amount of the Notes at the time
outstanding may on behalf of the Holders of all the Notes waive any past default
under the Senior Indenture and its consequences, except a default in the payment
of the principal of or premium, if any, or interest on any of the Notes. Any
such consent or waiver by the Holder of this Global Note (unless revoked as
provided in the Senior Indenture) shall be conclusive and binding upon such
Holder and upon all future Holders and owners of this Global Note and of any
Note issued in exchange or substitution herefor, whether or not any notation of
such consent or waiver is made upon this Global Note.
As set forth in, and subject to, the provisions of the Senior
Indenture, no Holder of any Notes will have any right to institute any
proceeding with respect to the Senior Indenture or for any remedy thereunder,
unless such Holder shall have previously given to the Trustee written notice of
default in respect of the Notes and of the continuance
6
<PAGE> 42
thereof, and unless the Holders of not less than 25 percent in aggregate
principal amount of the Notes then outstanding shall have made written request
upon the Trustee, to institute such action or proceedings in its own name as
Trustee hereunder and shall have furnished to the Trustee such reasonable
indemnity as it may require, and the Trustee shall have failed to institute such
proceeding within 60 calendar days; PROVIDED, HOWEVER, that such limitations do
not apply to a suit instituted by the Holder hereof for the enforcement of
payment of the principal of and any premium or interest on this Global Note on
or after the respective due dates expressed herein.
THIS NOTE IS A GLOBAL NOTE REGISTERED IN THE NAME OF THE DEPOSITARY OR
A NOMINEE THEREOF AND, UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR
THE INDIVIDUAL NOTES REPRESENTED HEREBY, THIS GLOBAL NOTE 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
OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE
OF SUCH SUCCESSOR DEPOSITARY.
If at any time the Depositary for this Global Note notifies the Company
that it is unwilling or unable to continue as Depositary for this Global Note or
if at any time the Depositary for this Global Note shall no longer be registered
as a clearing agency under the Securities Exchange Act of 1934, as amended, or
any successor statute or regulation, the Company may appoint a successor
Depositary with respect to this Global Note. If (A) a successor Depositary for
this Global Note is not appointed by the Company within 60 calendar days after
the Company receives such notice or becomes aware of such ineligibility, or (B)
any Notes are represented by this Global Note at a time when an Event of Default
with respect to the Notes shall have occurred and be continuing, then in each
case the Company's election to issue this Note in global form shall no longer be
effective with respect to this Global Note and the Company will execute, and the
Trustee, upon receipt of a Company Order for the authentication and delivery of
individual Notes in exchange for this Global Note, shall authenticate and make
available for delivery, individual Notes of like tenor and terms in definitive
form in an aggregate principal amount equal to the principal amount of this
Global Note in exchange for this Global Note.
If agreed by the Company and the Depositary with respect to Notes
issued in the form of this Global Note, the Depositary for such Global Note
shall surrender this Global Note in exchange in whole or in part for individual
Notes of like tenor and terms in definitive form on such terms as are acceptable
to the Company and such Depositary. Thereupon the Company shall execute, and the
Trustee shall authenticate and make available for delivery, without a service
charge, (1) to each Person specified by such Depositary, a new Note or Notes of
like tenor and terms, and of any authorized denominations as requested by such
Person in aggregate principal amount equal to and in exchange for the beneficial
interest of such Person in this Global Note, and (2) to such Depositary a new
Global Note of like tenor and terms and in a denomination equal to the
difference, if any, between the principal amount of this Global Note and the
aggregate principal amount of Notes delivered to Holders thereof.
Under certain circumstances specified in the Senior Indenture, the
Depositary may be required to surrender any two or more Global Notes which have
identical terms (but which may have differing Original Issue Dates) to the
Trustee, and the Company shall execute and the Trustee shall authenticate and
deliver to, or at the direction of, the Depositary a Global Note in principal
amount equal to the aggregate principal amount of, and with all terms identical
to, the Global Notes surrendered to the Trustee, and such new Global Note shall
indicate each applicable Original Issue Date and the principal amount applicable
to each such Original Issue Date.
No reference herein to the Senior Indenture and no provision of this
Global Note or of the Senior Indenture shall alter or impair the obligation of
the Company, which is absolute and unconditional, to pay the principal of,
premium, if any, and interest on this Global Note at the times, places and
rates, and in the coin or currency, herein prescribed.
The Senior Indenture contains provisions for the satisfaction and
discharge of the Senior Indenture upon compliance by the Company with certain
conditions specified therein, which provisions apply to this Note.
The Company, the Trustee, any paying agent and any Senior Debt Security
Registrar (as defined in the Senior Indenture) for the Notes may deem and treat
the Holder hereof as the absolute owner of this Global Note (whether or
7
<PAGE> 43
not this Global Note shall be overdue and notwithstanding any notation of
ownership or other writing hereon made by anyone other than the Company or any
such Senior Debt Security Registrar), for the purpose of receiving payment
hereof or on account hereof and for all other purposes, and neither the Company
nor the Trustee nor any paying agent nor any such Senior Debt Security Registrar
shall be affected by any notice to the contrary.
No recourse shall be had for the payment of the principal of, or
premium, if any, or interest on, this Global Note, or for any claim based hereon
or otherwise in respect hereof, or based on or in respect of the Senior
Indenture or any indenture supplemental thereto, against any incorporator,
stockholder, officer or director, as such, past, present or future, of the
Company or of any successor corporation, whether by virtue of any constitution,
statute or rule of law, or by the enforcement of any assessment or penalty or
otherwise, all such liability being, by the acceptance hereof and as part of the
consideration for the issue hereof, expressly waived and released.
8
<PAGE> 44
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) and instruct(s) the
Company to repay this Note (or portion hereof specified below) pursuant to its
terms at a price equal to 100% of the principal amount to be repaid, together
with unpaid interest accrued hereon to the Repayment Date, to the undersigned,
at ______________________________________________.
If less than the entire principal amount of this Note is to be repaid,
specify the portion hereof (which shall be increments of ____________) which the
holder elects to have repaid and specify the denomination or denominations
(which shall be an authorized denomination) not less than ________ of the Notes
to be issued to the Holder for the portion of this Note not being repaid (in the
absence of any such specification, one such Note will be issued for the portion
not to be repaid).
Principal Amount
to be Repaid:
$
- ------------------------------------ ------------------
CUSIP Number or other identifier:
Date:
------------------------------- -----------------------------------
NOTICE: The signature(s) to this
assignment must correspond with the
name(s) as written upon the face of
the within instrument in every
particular, without alteration or
enlargement or any change whatever.
The signature(s) must be guaranteed
by an "eligible guarantor
institution" that is a member or
participant in the Securities
Transfer Agents Medallion Program,
the Stock Exchange Medallion Program
or the New York Stock Exchange, Inc.
Medallion Program.
Notice: The signature(s) on this Option to Elect Repayment must correspond with
the name(s) as written upon the face of this Note in every particular, without
alteration or enlargement or any change whatsoever.
9
<PAGE> 45
ABBREVIATIONS
The following abbreviations, when used in the inscription of the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
<TABLE>
<S> <C> <C>
TEN COM - as tenants in common UNIF GIFT
MIN ACT - ________Custodian________
TEN ENT - as tenants by the entireties (Cust) (Minor)
Under Uniform Gifts
JT TEN - as joint tenants with right of to Minors Act
survivorship and not as tenants in __________________________
common State
</TABLE>
Additional abbreviations may also be used though not in the above list.
----------------------
FOR VALUE RECEIVED the undersigned hereby sell(s) assign(s) and
transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF
ASSIGNEE
- --------------------------
- --------------------------
- --------------------------------------------------------------------------------
Please print or typewrite name and address
including postal zip code of assignee
- --------------------------------------------------------------------------------
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing ______________________________________________ attorney to transfer
said note on the books of the Company, with full power of substitution in the
premises.
Dated:
---------------------------- ------------------------------------
NOTICE: The signature(s) to this
assignment must correspond with the
name(s) as written upon the face of
the within instrument in every
particular, without alteration or
enlargement or any change whatever.
The signature(s) must be guaranteed
by an "eligible guarantor
institution" that is a member or
participant in the Securities
Transfer Agents Medallion Program,
the Stock Exchange Medallion Program
or the New York Stock Exchange, Inc.
Medallion Program.
