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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: November 24, 1998
(Date of earliest event reported)
CENTEX CORPORATION
(Exact name of Registrant as specified in its charter)
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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)
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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
senior and subordinated debt securities, various series, 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 "Original 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 $200,000,000 aggregate principal
amount of senior fixed and floating rate Medium-Term Notes, Series A (the
"Senior Debt Securities"), covered by the Registration Statements. The Original
Distribution Agreement in the form in which it was executed was filed as Exhibit
1.1 to the Registrant's Form 8-K (Date of Report: October 21, 1998), and is
incorporated herein by reference.
In connection with the execution of the Original Distribution
Agreement, the Registrant entered into an Indenture dated as of October 1, 1998
(the "Senior Indenture"), with Chase Bank of Texas, National Association, as
trustee (the "Trustee"), with respect to the Senior Debt Securities. A copy of
the Senior Indenture in the form in which it was executed was filed as Exhibit
4.1 to the Registrant's Form 8-K (Date of Report: October 21, 1998), and is
incorporated herein by reference.
Pursuant to the Senior Indenture, the Registrant and the Trustee
entered into an Indenture Supplement No. 1 dated as of October 1, 1998 (the
"Senior Indenture Supplement"), providing for the issuance of the Senior Debt
Securities. A copy of the Senior Indenture Supplement in the form in which it
was executed was filed as Exhibit 4.2 to the Registrant's Form 8-K (Date of
Report: October 21, 1998), and is incorporated herein by reference.
Pursuant to the Original 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.
Pursuant to the Original 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
"CSFB Floating Rate Notes"). The CSFB 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 CSFB Floating Rate Notes were $49,825,000.
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Pursuant to the Original Distribution Agreement, on November 17, 1998,
the Registrant agreed to sell $10,000,000 aggregate principal amount of the
Registrant's Medium-Term Notes, Series A, due May 19, 2000, which bear interest
at a floating rate based on the London Interbank Offered Rate (the "First
Chicago Floating Rate Notes"). The First Chicago Floating Rate Notes, which were
placed by First Chicago as Agent, were issued on November 20, 1998. The net
proceeds to the Registrant from the sale of the First Chicago Floating Rate
Notes were $9,985,000.
On November 24, 1998, the Registrant entered into a new Distribution
Agreement (the "Distribution Agreement") with the Agents, in connection with the
proposed public offering by the Agents of $125,000,000 aggregate principal
amount of senior and/or subordinated fixed and floating rate Medium-Term Notes,
Series A (the "Debt Securities"), covered by the Registration Statements. The
Distribution Agreement in the form in which it was executed is filed herewith as
Exhibit 1.2.
The Registrant has previously entered into an Indenture dated March 12,
1987 (the "Subordinated Indenture"), with the Trustee, formerly Texas Commerce
Bank National Association, with respect to the subordinated debt securities of
the Registrant (the "Subordinated Debt Securities"). A copy of the Subordinated
Indenture in the form in which it was executed was filed as Exhibit 4.7 to the
Registrant's Form 10-K for the year ended March 31, 1993, and is incorporated
herein by reference.
Pursuant to the Subordinated Indenture, the Registrant and the Trustee
entered into an Indenture Supplement No. 4 dated as of November 1, 1998 (the
"Subordinated Indenture Supplement"), providing for the issuance of the
Subordinated Debt Securities. A copy of the Subordinated Indenture Supplement in
the form in which it was executed is filed herewith as Exhibit 4.4.
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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 (filed
as Exhibit 1.1 to the Registrant's Form 8-K dated
October 21, 1998 and incorporated herein by
reference)
1.2 Distribution Agreement dated November 24, 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 October 1, 1998 between Centex
Corporation and Chase Bank of Texas, National
Association (filed as Exhibit 4.1 to the
Registrant's Form 8-K dated October 21, 1998 and
incorporated herein by reference)
4.2 Indenture Supplement No. 1 dated as of October 1,
1998 with respect to the Senior Debt Securities,
between Centex Corporation and Chase Bank of Texas,
National Association (filed as Exhibit 4.2 to the
Registrant's Form 8-K dated October 21, 1998 and
incorporated herein by reference)
4.3 Indenture dated March 12, 1987 between Centex
Corporation and Chase Bank of Texas, National
Association (formerly, Texas Commerce Bank National
Association) (filed as Exhibit 4.7 to the Joint
Annual Report of the Registrant, 333 Holding
Corporation and Centex Development Company, L.P. on
Form 10-K for the fiscal year ended March 31, 1993
and incorporated herein by reference)
4.4 Indenture Supplement No. 4 dated as of November 1,
1998 with respect to the Subordinated Debt
Securities, between Centex Corporation and Chase Bank
of Texas, National Association (formerly, Texas
Commerce Bank National Association)
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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
November 9, 1998 By: /s/ Raymond G. Smerge
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Raymond G. Smerge
Executive Vice President, Chief Legal
Officer and Secretary
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INDEX TO EXHIBITS
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Exhibit No. Description
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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 (filed as Exhibit 1.1 to the
Registrant's Form 8-K dated October 21, 1998 and incorporated
herein by reference)
1.2 Distribution Agreement dated November 24, 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 October 1, 1998 between Centex Corporation and
Chase Bank of Texas, National Association (filed as Exhibit
4.1 to the Registrant's Form 8-K dated October 21, 1998 and
incorporated herein by reference)
4.2 Indenture Supplement No. 1 dated as of October 1, 1998 with
respect to the Senior Debt Securities, between Centex
Corporation and Chase Bank of Texas, National Association
(filed as Exhibit 4.2 to the Registrant's Form 8-K dated
October 21, 1998 and incorporated herein by reference)
4.3 Indenture dated March 12, 1987 between Centex Corporation and
Chase Bank of Texas, National Association (formerly, Texas
Commerce Bank National Association) (filed as Exhibit 4.7 to
the Joint Annual Report of the Registrant, 333 Holding
Corporation and Centex Development Company, L.P. on Form 10-K
for the fiscal year ended March 31, 1993 and incorporated
herein by reference)
4.4 Indenture Supplement No. 4 dated as of November 1, 1998 with
respect to the Subordinated Debt Securities, between Centex
Corporation and Chase Bank of Texas, National Association
(formerly, Texas Commerce Bank National Association)
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EXHIBIT 1.2
FINAL
CENTEX CORPORATION
$125,000,000
Senior Medium-Term Notes, Series A
Subordinated Medium-Term Notes, Series A
Due 9 Months or More from Date of Issue
DISTRIBUTION AGREEMENT
November 24, 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 Senior Medium-Term Notes, Series A (the "Senior Notes") and its Subordinated
Medium-Term Notes, Series A (the "Subordinated Notes"), each due 9 months or
more from date of issue (the Senior Notes and the Subordinated Notes are herein
collectively referred to as the "Notes"). The Senior Notes will be issued under
a Senior Indenture (the "Senior Indenture") dated as of October 1, 1998, as
supplemented by a first
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Supplemental Indenture thereto dated as of October 1, 1998. The Subordinated
Notes will be issued under a Subordinated Indenture (the "Subordinated
Indenture") dated as of March 12, 1987, as supplemented by a fourth Supplemental
Indenture thereto dated as of November 1, 1998, as each may be amended,
supplemented or modified from time to time. The Senior Indenture and the
Subordinated Indenture are individually referred to herein as an "Indenture" and
collectively referred to herein as the "Indentures". The Indentures are each
between the Company and Chase Bank of Texas, National Association (formerly
Texas Commerce Bank National Association), as Trustee (the "Trustee"). This
Agreement shall replace for purposes of any Notes issued after the date hereof
that certain Distribution Agreement among the parties hereto dated as of October
21, 1998.
As of the date hereof, the Company has authorized the issuance and sale
of up to $125,000,000 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
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otherwise specify, other than by an amendment or supplement which relates
exclusively to an 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;
(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
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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 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
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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 Indentures 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 each
Indenture, which has been or will be incorporated by reference as an exhibit to
the Registration Statement; each 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 Indentures 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 applicable Indenture;
(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 Indentures,
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
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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
Indentures, 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 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
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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 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.
7
<PAGE> 8
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 (in the case of Senior Notes) or Exhibit
B (in the case of Subordinated Notes) 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).
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.
8
<PAGE> 9
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 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.
9
<PAGE> 10
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 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 C) (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
10
<PAGE> 11
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 (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.
11
<PAGE> 12
(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 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
12
<PAGE> 13
amendments or supplements thereto, the Indentures, 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;
(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;
13
<PAGE> 14
(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 Indentures 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:
(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
14
<PAGE> 15
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 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
15
<PAGE> 16
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;
(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
16
<PAGE> 17
(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 applicable Indenture and
duly paid for by the purchasers thereof in accordance with this
Agreement, any applicable Terms Agreement and the applicable
Indenture, will constitute valid and legally binding obligations
of the Company entitled to the benefits provided by the
applicable 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 Indentures conform in all
material respects to the descriptions thereof in the Prospectus;
(viii) Each of the Indentures 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 each of
the Indentures 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.
(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 Indentures, 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
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<PAGE> 18
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 Indentures, 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 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
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<PAGE> 19
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, the Indentures, the
Notes, the Registration Statement, the Prospectus, as amended or
supplemented, and other related matters as the Agents may reasonably
request.
(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.
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<PAGE> 20
(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;
(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
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<PAGE> 21
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.
(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.
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<PAGE> 22
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:
(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
22
<PAGE> 23
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 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
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<PAGE> 24
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 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
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<PAGE> 25
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.
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
25
<PAGE> 26
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
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
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<PAGE> 27
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.
27
<PAGE> 28
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:
28
<PAGE> 29
EXHIBIT A
CENTEX CORPORATION
SENIOR MEDIUM-TERM NOTES, SERIES A
TERMS AGREEMENT
___________19__
Centex Corporation
2728 North Harwood Street
Dallas, Texas 75201
Attention:
Re: Distribution Agreement dated November 24, 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
Senior 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:
29
<PAGE> 30
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
November 24, 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:
30
<PAGE> 31
EXHIBIT B
CENTEX CORPORATION
SUBORDINATED MEDIUM-TERM NOTES, SERIES A
TERMS AGREEMENT
_____________19__
Centex Corporation
2728 North Harwood Street
Dallas, Texas 75201
Attention:
Re: Distribution Agreement dated November 24, 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
Subordinated 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
November 24, 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
EXHIBIT C
CENTEX CORPORATION
ADMINISTRATIVE PROCEDURES
FOR FIXED RATE, FLOATING RATE AND REMARKETED
MEDIUM TERM NOTES
(DATED AS OF NOVEMBER 24, 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 November 24, 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 one or more series of debt securities and
will be either Senior Debt Securities ("Senior Notes") or Subordinated Debt
Securities ("Subordinated Notes"). The Senior 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 (the "Senior Indenture"), and the
Subordinated Notes will be issued under an Indenture dated as of March 12, 1987,
as supplemented by a fourth Supplemental Indenture thereto dated as of November
1, 1998 (the "Subordinated Indenture" and, together with the Senior Indenture,
the "Indentures"), as each may be amended, supplemented or modified from time to
time, between the Company and Chase Bank of Texas, National Association, as
trustee with respect to the Notes (formerly, Texas Commerce Bank National
Association) (together with any successor in such capacity, the "Trustee"). In
accordance with the provisions of the Indentures, 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 Indentures
include the form of Note adopted in accordance with the terms of the Indentures.
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,
<PAGE> 34
respectively. The most recent base Prospectus included in the Registration
Statement, as supplemented by the Prospectus Supplement dated November 13, 1998
with respect to the Notes, is 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 Letters of
Representations or the Indentures, the latter documents shall govern.
2
<PAGE> 35
PART I: PROCEDURES FOR INITIAL ISSUANCE OF NOTES
Date of Issuance/ Each Note will be dated as of the date of its
Authentication: 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 If any offer to purchase a Note is accepted by
Supplement: 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> 36
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
4
<PAGE> 37
Foote, telecopier: (203) 719-7139. For 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 covering
Applicable Pricing the Notes and applicable Pricing Supplement,
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> 38
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 solely
Offering Agents: 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> 39
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, dated October 26, 1998, relating
to the issuance of Senior Notes, and a Letter of Representations, dated November
18, 1998, relating to the issuance of Subordinated Notes, both from the Company
and the Trustee to DTC (collectively, the "Letters of Representations"), and a
Certificate Agreement, dated December 2, 1988, 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
7
<PAGE> 40
initially by a single Global Note in 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 Senior Fixed Rate and Senior
Floating Rate Global Notes in the first
instance, to the Remarketed Global Notes in
the second instance, and to the Subordinated
Fixed Rate and Subordinated Floating Rate
Global Notes in the third 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> 41
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
Indentures. 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 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
9
<PAGE> 42
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.
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:
10
<PAGE> 43
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.
(ix) Day Count Convention.
(x) Calculation Agent.
(c) For Remarketed Notes:
11
<PAGE> 44
(i) Initial Interest Rate.
(ii) Initial Interest Rate
Period.
(iii) First Interest Rate
Adjustment 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.
10. Identification number of DTC
participant account maintained on
behalf of the Offering Agent.
11. Redemption provisions, if any.
12
<PAGE> 45
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.
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
13
<PAGE> 46
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 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
14
<PAGE> 47
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 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 Procedures For offers to purchase Notes accepted by the
Timetable: 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:
15
<PAGE> 48
<TABLE>
<CAPTION>
SETTLEMENT
PROCEDURE TIME
--------------
<S> <C>
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
</TABLE>
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
16
<PAGE> 49
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 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.
17
<PAGE> 50
PART III: PROCEDURES FOR CERTIFICATED NOTES
Settlement Procedures: Settlement Procedures with regard to each
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.
18
<PAGE> 51
(v) Initial Interest Reset Date
and Interest Reset Dates.
(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
19
<PAGE> 52
the above settlement information by
facsimile transmission confirmed by
telephone. The Company will cause the
Trustee to issue, authenticate and deliver
the Certificated Note.
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
20
<PAGE> 53
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.
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 For offers to purchase Certificated Notes
Timetable: 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:
<TABLE>
<CAPTION>
Settlement
Procedure Time
---------- ----
<S> <C>
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
</TABLE>
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.
21
<PAGE> 54
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 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.
22
<PAGE> 55
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 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.
23
<PAGE> 56
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.
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
24
<PAGE> 57
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: Remarketed 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
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
25
<PAGE> 58
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.
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.
26
<PAGE> 59
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.
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
27
<PAGE> 60
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 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.
28
<PAGE> 61
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.
29
<PAGE> 62
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).
Floating interest rates will be calculated by
reference to the specified Interest Rate Basis
plus or minus the applicable
30
<PAGE> 63
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 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
31
<PAGE> 64
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.
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,
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<PAGE> 65
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, Payments of Interest Only. Promptly after each
Premium, if any, and Interest Regular Record Date, the Trustee will deliver
on Book-Entry Notes (other to the Company a written notice specifying by
than Special Mandatory CUSIP number the amount of interest to be paid
Purchase of a Remarketed on each Book-Entry Note on the following
Note): 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
33
<PAGE> 66
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.
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
34
<PAGE> 67
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, Upon presentment and delivery of the
Premium, if any, and Interest Certificated Note, the Trustee upon receipt of
on Certificated immediately available funds from the Company
Notes: 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.
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.
35
<PAGE> 68
Payments of Principal and Upon notice to the Company by a Remarketing
Interest (Special Mandatory Agent of a failed remarketing of a Remarketed
Purchase of a Remarketed Note on any Interest Rate Adjustment Date, as
Note): 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 Indentures,
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
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.
36
<PAGE> 69
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 33.33%
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>
<PAGE> 1
EXHIBIT 4.4
CENTEX CORPORATION
Issuer
and
CHASE BANK OF TEXAS, NATIONAL ASSOCIATION
(Formerly Texas Commerce Bank National Association)
Trustee
INDENTURE SUPPLEMENT NO. 4
Dated as of November 1, 1998
to
INDENTURE
Dated as of March 12, 1987
Subordinated Medium-Term Notes, Series A
<PAGE> 2
INDENTURE SUPPLEMENT NO. 4 ("Indenture Supplement"), dated as of
November 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 (formerly, Texas Commerce Bank National 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
March 12, 1987 (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 Subordinated Debt
Securities and to specify certain terms of each such Series of Subordinated Debt
Securities. The Board of Directors of the Company has duly authorized the
creation of a Series of Subordinated Debt Securities to be known as the
Company's Subordinated Medium-Term Notes, Series A (the "Subordinated Notes"),
and the Company and the Trustee are executing and delivering this Indenture
Supplement in order to provide for the issuance of the Subordinated 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 Subordinated 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 Subordinated Note multiplied by its Issue Price plus
the portion of the difference between the dollar amount thus obtained and the
principal amount of such Subordinated Note that has accreted at the Yield to
maturity of such Subordinated 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 Subordinated Note for which
payments of principal of and interest on such Subordinated Note are made in
installments over the life of such Subordinated 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.
-1-
<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 Subordinated
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 City time, on the related Calculation Date, then the CMT
Rate for such CMT Rate Interest Determination
-2-
<PAGE> 4
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
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to the Trustee, to authenticate a Subordinated Note and to make it available for
delivery, and specifying for such Subordinated Note the following information:
(1) the name of the Person in which a Subordinated 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 Subordinated Note and, if
multiple Subordinated Notes are to be issued to such Person, the
denominations of such Subordinated Notes;
(5) the Issue Price of such Subordinated Note;
(6) the Original Issue Date of such Subordinated Note;
(7) the date upon which such Subordinated Note is scheduled to
mature and the Final Maturity Date;
(8) if the Subordinated 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 Subordinated Note is
redeemable at the option of the Company;
(9) if the Subordinated 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 Subordinated Note is
repayable at the option of the Holder;
(10) if the Subordinated Note is a Fixed Rate Note, the rate
of interest on such Subordinated 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 Subordinated Note is an Original Issue Discount
Note, its Yield to Maturity;
(12) if such Subordinated Note is an Amortizing Note, a table
setting forth the schedule of dates and amounts of payments of
principal of and interest on such Subordinated Note or the formula for
the amortization of principal and/or interest;
(13) if the Subordinated 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 Subordinated Note is a Floating Rate Note, its:
<TABLE>
<S> <C>
(A) Initial Interest Rate (I) Interest Reset Dates
</TABLE>
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<PAGE> 7
<TABLE>
<S> <C>
(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
</TABLE>
(15) If such Subordinated 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 Subordinated 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 Subordinated Notes shall be issued; and
(19) all other information necessary for the issuance of such
Subordinated 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 Subordinated Note, and the written order
of the Company to authenticate such Subordinated 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.
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.
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<PAGE> 8
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 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
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<PAGE> 9
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 Subordinated 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.
FIXED RATE NOTE:
The term "Fixed Rate Note" shall mean a Subordinated 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.
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<PAGE> 10
FLOATING RATE NOTE:
The term "Floating Rate Note" shall mean a Subordinated 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.
GLOBAL NOTE:
The term "Global Note" shall mean a single Subordinated Note that is
issued to evidence Subordinated 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. INITIAL REDEMPTION DATE:
The term "Initial Redemption Date" shall mean the earliest date, if
any, on which a particular Subordinated Note shall be redeemable at the option
of the Company prior to the Stated Maturity of such Subordinated 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.
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<PAGE> 11
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.
(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 Subordinated 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.
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<PAGE> 12
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
Subordinated 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 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:
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<PAGE> 13
(1) beginning on and including the Original Issue
Date of such Subordinated Note or the most recent Interest
Payment Date on which interest was paid on such Subordinated
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 Subordinated 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 Subordinated 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 Subordinated Note;
PROVIDED, HOWEVER, that the first Interest Reset Period for any Subordinated
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 Subordinated
Notes.
ISSUE PRICE:
The term "Issue Price" shall mean the price expressed as a percentage
of the aggregate principal amount of a Subordinated Note at which such
Subordinated 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
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
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<PAGE> 14
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.
MATURITY DATE:
The term "Maturity Date," when used with respect to any Subordinated
Note, shall mean the date on which the principal of such Subordinated 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.
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<PAGE> 15
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 Subordinated 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 Subordinated
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).
ORIGINAL ISSUE DISCOUNT NOTE:
The term "Original Issue Discount Note" shall mean (i) a Subordinated
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
Subordinated Note (or in the case of a Subordinated 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
-14-
<PAGE> 16
of the Subordinated Note) and (ii) any other Subordinated 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.
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 Subordinated 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 Subordinated Note is
to be repaid prior to its Stated Maturity, whether upon declaration of
acceleration, call for redemption,
-15-
<PAGE> 17
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 Subordinated 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 Subordinated
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
Subordinated 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 Subordinated Note
established by notice given by first-class mail by or on behalf of the Company
to the Holder of such Subordinated Note not less than fifteen calendar days
prior to such Interest Payment Date.
REDEMPTION DATE:
The term "Redemption Date" for a Subordinated Note shall mean the date
fixed for the redemption of such Subordinated 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.
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.
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<PAGE> 18
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 Subordinated
Note, shall mean the date specified in such Subordinated Note as the date on
which the principal of such Subordinated 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., 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.
-17-
<PAGE> 19
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 Subordinated
Note the yield to maturity of such Subordinated 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 Subordinated 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 Subordinated Notes
Section 2.01. Issuance and Designation. A Series of Subordinated Debt
Securities which shall be designated as the Company's "Subordinated 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 Subordinated Notes set forth in Exhibits A and
B). The aggregate principal amount of the Subordinated Notes which may be
authenticated and delivered under the Indenture Supplement shall not, except as
permitted by the provisions of the Indenture, exceed $125,000,000.
Section 2.02. Form and Other Terms of Subordinated Notes; Incorporation
of Terms. (a) Subject to subsection (b) below, the Subordinated Notes shall be
in the form attached hereto as Exhibits A and B, respectively. The Subordinated
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 November 24, 1998, between the Company and the
agents named therein. The terms of such Subordinated Notes are herein
incorporated by reference and are part of this Indenture Supplement.
(b) Any Subordinated Note may be issued without the consent of the
Holders of any Subordinated 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, Subordinated Notes
denominated in a foreign currency ("Foreign Currency Subordinated Notes"), and
Subordinated Notes that initially bear interest at a fixed rate or floating rate
through a certain date and then
-18-
<PAGE> 20
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 Subordinated
Notes").
Section 2.03. Depository for Global Securities. The Depositary for any
Global Securities of the series of which a Subordinated 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
Subordinated 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
Defeasance
Section 3.01. Option to Effect Legal Defeasance. The Company may, at
any time, with respect to the Subordinated Notes, elect to have either Section
13.01 of the Indenture or Section 3.02 of this Indenture Supplement be applied
to all outstanding Subordinated Notes upon compliance with the conditions set
forth in Article Thirteen of the Indenture and below in this Article Three.
Section 3.02. Legal Defeasance. Upon the Company's exercise under
Section 3.01 of this Indenture Supplement of the option applicable to Section
13.01 of the Indenture, the Company may terminate its obligations under the
Subordinated 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 Subordinated 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.
ARTICLE FOUR
Miscellaneous
Section 4.01. 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 4.02. 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 4.03. Effect of Headings. The article and section headings
herein are included for convenience only and shall not affect the construction
hereof.
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<PAGE> 21
Section 4.04. 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 4.05. Severability. In case any provision of this Indenture
Supplement or in the Subordinated 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 4.06. Benefits of Indenture Supplement. Nothing in this
Indenture Supplement or in the Subordinated 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 4.07. 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.
Section 4.08. Governing Law. This Indenture Supplement and each
Subordinated 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.]
-20-
<PAGE> 22
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:
-21-
<PAGE> 23
STATE OF TEXAS )
)
COUNTY OF DALLAS )
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 November,
1998.
-------------------------------------------
Notary Public in and for the State of Texas
My commission expires: -------------------------------------------
Printed Name of Notary Public
- ----------------------
STATE OF TEXAS )
)
COUNTY OF DALLAS )
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 November,
1998.
-------------------------------------------
Notary Public in and for the State of Texas
My commission expires: -------------------------------------------
Printed Name of Notary Public
- ----------------------
-22-
<PAGE> 24
EXHIBIT A
GLOBAL SUBORDINATED FIXED RATE NOTE
REGISTERED PRINCIPAL AMOUNT
NO.______ $
CENTEX CORPORATION
Subordinated Medium-Term Note, Series A
Fixed Rate
Unless this Subordinated 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 Subordinated 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 Subordinated
Notes in certificated form, this Subordinated 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>
<CAPTION>
<S> <C> <C>
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:
</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 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 Subordinated 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
<PAGE> 25
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 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 Subordinated 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 Subordinated 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 Subordinated 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 Subordinated
Noteholders not less than fifteen calendar days prior to such Record Date.
Payment of the principal of and any premium and interest on this Subordinated
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 Subordinated Note, the Depositary shall surrender, or cause to be
surrendered, this Global Subordinated 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 Subordinated Note.
Under certain circumstances, this Global Subordinated Note is
exchangeable in whole or from time to time in part for a definitive individual
Subordinated Note or Subordinated 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 Subordinated 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
SUBORDINATED 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 Subordinated Note shall not be entitled to any
benefit under the Indenture or be valid or obligatory for any purpose.
2
<PAGE> 26
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 Subordinated Notes referred
to in the within-mentioned Indenture.
CHASE BANK OF TEXAS, NATIONAL ASSOCIATION, as Trustee
By:
-------------------------------
Authorized Signatory
3
<PAGE> 27
[REVERSE OF GLOBAL SUBORDINATED FIXED RATE NOTE]
CENTEX CORPORATION
SUBORDINATED FIXED RATE MEDIUM-TERM NOTE, SERIES A
This Global Subordinated Note is one of, and a global security which
represents Subordinated Notes which are part of, a duly authorized issue of
Subordinated Debt Securities of the Company (herein called the "Subordinated
Notes"), issued and to be issued in one or more Series under an Indenture dated
as of March 12, 1987 (herein, together with all indentures supplemental thereto,
called the "Subordinated Indenture") between the Company and Chase Bank of
Texas, National Association, as Trustee (formerly, Texas Commerce Bank National
Association) (herein called the "Trustee," which term includes any successor
Trustee under the Subordinated Indenture), to which Subordinated Indenture and
all indentures supplemental thereto (including the Indenture Supplement dated as
of November 1, 1998 which authorizes the Subordinated 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 Subordinated
Noteholders, and of the terms upon which the Subordinated Notes are, and are to
be, authenticated and delivered. All terms used in this Subordinated Note which
are defined in the Subordinated Indenture or in any indenture supplemental
thereto but are not defined in this Subordinated Note shall have the meanings
assigned to them in the Subordinated Indenture or in any indenture supplemental
thereto.
Each Subordinated Note shall be dated the date of its authentication by
the Trustee. Each Subordinated Note shall also bear an Original Issue Date or
Dates which with respect to this Global Subordinated Note (or any portion
thereof) shall mean the date or dates of the original issue of the Subordinated
Notes represented hereby as specified on the face hereof, and such Original
Issue Date or Dates shall remain the same for all Subordinated Notes
subsequently issued upon transfer, exchange or substitution of such original
Subordinated Note (or such subsequently issued Subordinated Notes) regardless of
their dates of authentication. The Subordinated 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 Subordinated Indenture.
The indebtedness evidenced by the Subordinated Notes is, to the extent
and in the manner provided in the Subordinated Indenture and Indenture
Supplement, subordinated and subject in right of payment to the prior payment in
full of all Senior Indebtedness of the Company. As provided in the Subordinated
Indenture, each holder of this Subordinated Note, by his acceptance hereof,
agrees to and shall be bound by all the provisions of the Subordinated Indenture
relating to such subordination and authorizes the Trustee to take such action in
his behalf as may be necessary or appropriate to effectuate the subordination as
provided in the Subordinated Indenture and appoints the Trustee his
attorney-in-fact for any and all such purposes.
Interest on this Subordinated 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 Subordinated 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 Subordinated 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 Subordinated Note is an Amortizing Note, payments with respect to this
Subordinated Note will be applied first to interest due and payable hereon and
then to the reduction of the unpaid principal amount hereof. If this
Subordinated Note is an Amortizing Note, a table setting forth the schedule of
dates and amounts of payments of principal of and interest on this Subordinated
Note or the formula for the amortization of principal and/or interest is set
forth in an annex attached to this Subordinated Note.
All percentages resulting from any calculation with respect to this
Subordinated 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
4
<PAGE> 28
with respect to this Subordinated 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 Subordinated
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 Subordinated
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 Subordinated 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 Subordinated 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 Subordinated Note, plus accrued and
unpaid interest to but excluding the date of redemption, but payments due with
respect to this Subordinated Note prior to the date of redemption will be
payable to the Holder of this Subordinated Note of record at the close of
business on the relevant Record Date specified on the face hereof, all as
provided in the Subordinated 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 Subordinated Note, in accordance with the provisions of the Subordinated
Indenture. In the event of redemption of this Subordinated Note in part only,
this Subordinated Note will be canceled and a new Subordinated Note or
Subordinated Notes representing the unredeemed portion hereof will be issued in
the name of the Holder hereof. This Subordinated Note is not subject to a
sinking fund unless otherwise specified in an annex attached hereto.
If so specified on the face of this Subordinated Note, (i) this
Subordinated 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 Subordinated
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 Subordinated Note as of the date of declaration, redemption
or repayment, as the case may be. The "Amortized Face Amount" of this
Subordinated Note shall be the amount equal to the principal amount of this
Subordinated 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
Subordinated 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 Subordinated 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 Subordinated Indenture. The
Subordinated 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 Subordinated Notes then outstanding. An Event of Default with
respect to the Subordinated Debt Security of any other Series issued under the
Subordinated 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 Subordinated Notes.
The Subordinated 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 Subordinated Notes at the time outstanding,
evidenced as in the Subordinated Indenture provided, to execute supplemental
indentures adding any provisions to or changing in any manner or eliminating any
of the provisions of the Subordinated Indenture or of any supplemental indenture
or modifying in any manner the rights of the Holders of the Subordinated Notes;
PROVIDED, HOWEVER,
5
<PAGE> 29
that no such supplemental indenture shall (i) extend the fixed maturity of any
Subordinated 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
Subordinated Note so affected, or (ii) reduce the aforesaid percentage of
Subordinated Notes, the consent of the Holders of which is required for any such
supplemental indenture, without the consent of the Holders of all Subordinated
Notes then outstanding. It is also provided in the Subordinated Indenture that
the Holders of a majority in aggregate principal amount of the Subordinated
Notes at the time outstanding may on behalf of the Holders of all the
Subordinated Notes waive any past default under the Subordinated Indenture and
its consequences, except a default in the payment of the principal of or
premium, if any, or interest on any of the Subordinated Notes. Any such consent
or waiver by the Holder of this Global Subordinated Note (unless revoked as
provided in the Subordinated Indenture) shall be conclusive and binding upon
such Holder and upon all future Holders and owners of this Global Subordinated
Note and of any Subordinated Note issued in exchange or substitution herefor,
whether or not any notation of such consent or waiver is made upon this Global
Subordinated Note.
As set forth in, and subject to, the provisions of the Subordinated
Indenture, no Holder of any Subordinated Notes will have any right to institute
any proceeding with respect to the Subordinated Indenture or for any remedy
thereunder, unless such Holder shall have previously given to the Trustee
written notice of default in respect of the Subordinated Notes and the
continuance thereof, and unless the Holders of not less than 25 percent in
aggregate principal amount of the Subordinated 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 Subordinated Note on or after the respective due dates expressed herein.
THIS SUBORDINATED NOTE IS A GLOBAL SUBORDINATED 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 SUBORDINATED 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 Subordinated Note and the Company will
execute, and the Trustee, upon receipt of a Company Order for the authentication
and delivery of individual Subordinated Notes in exchange for this Global
Subordinated Note, shall authenticate and make available for delivery,
individual Subordinated Notes of like tenor and terms in definitive form in an
aggregate principal amount equal to the principal amount of this Global
Subordinated Note in exchange for this Global Subordinated Note.
If agreed by the Company and the Depositary with respect to
Subordinated Notes issued in the form of this Global Subordinated Note, the
Depositary for such Global Subordinated Note shall surrender this Global
Subordinated Note in exchange in whole or in part for individual Subordinated
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 Subordinated Note
or Subordinated 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
Subordinated Note, and (2) to such Depositary a new Global Subordinated Note
6
<PAGE> 30
of like tenor and terms and in a denomination equal to the difference, if any,
between the principal amount of this Global Subordinated Note and the aggregate
principal amount of Subordinated Notes delivered to Holders thereof.
Under certain circumstances specified in the Subordinated Indenture,
the Depositary may be required to surrender any two or more Global Subordinated
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
Subordinated Note in principal amount equal to the aggregate principal amount
of, and with all terms identical to, the Global Subordinated Notes surrendered
to the Trustee, and such new Global Subordinated Note shall indicate each
applicable Original Issue Date and the principal amount applicable to each such
Original Issue Date.
No reference herein to the Subordinated Indenture and no provision of
this Global Subordinated Note or of the Subordinated 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 Subordinated
Note at the times, places and rates, and in the coin or currency, herein
prescribed.
The Subordinated Indenture contains provisions for the satisfaction and
discharge of the Subordinated Indenture upon compliance by the Company with
certain conditions specified therein, which provisions apply to this
Subordinated Note.
The Company, the Trustee, any paying agent and any Subordinated Debt
Security Registrar (as defined in the Subordinated Indenture) for the
Subordinated Notes may deem and treat the Holder hereof as the absolute owner of
this Global Subordinated Note (whether or not this Global Subordinated Note
shall be overdue and notwithstanding any notation of ownership or other writing
hereon made by anyone other than the Company or any such Subordinated 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 Subordinated 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 Subordinated Note, or for any claim
based hereon or otherwise in respect hereof, or based on or in respect of the
Subordinated Indenture, 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> 31
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) and instruct(s) the
Company to repay this Subordinated 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 Subordinated 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 Subordinated Notes to be issued to the Holder for
the portion of this Subordinated Note not being repaid (in the absence of any
such specification, one such Subordinated 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 Subordinated Note in every
particular, without alteration or enlargement or any change whatsoever.
8
<PAGE> 32
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>
<CAPTION>
<S> <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 Subordinated Note and all rights thereunder, hereby irrevocably
constituting and appointing
_________________________________________________________________ attorney to
transfer said Subordinated 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> 33
EXHIBIT B
GLOBAL SUBORDINATED FLOATING RATE NOTE
REGISTERED PRINCIPAL AMOUNT
NO. ________ $
CENTEX CORPORATION
Subordinated Medium-Term Note, Series A
Floating Rate
Unless this Subordinated 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 Subordinated 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 Subordinated
Notes in certificated form, this Subordinated 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> 34
<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 Subordinated 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 Subordinated 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 Subordinated 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 Subordinated 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
Subordinated 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 Subordinated Noteholders not less than fifteen
calendar days prior to such Record Date. Payment of the principal of and any
premium and interest on this Subordinated 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 Subordinated Note, the Depositary
shall surrender, or cause to be surrendered, this Global Subordinated 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 Subordinated Note.
2
<PAGE> 35
Under certain circumstances, this Global Subordinated Note is
exchangeable in whole or from time to time in part for a definitive individual
Subordinated Note or Subordinated 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.
The Indenture and the Subordinated 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
SUBORDINATED 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 Subordinated Note shall not be entitled to any
benefit under the Indenture or be valid or obligatory for any purpose.
3
<PAGE> 36
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 Subordinated Notes referred
to in the within-mentioned Indenture.
CHASE BANK OF TEXAS, NATIONAL ASSOCIATION, as Trustee
By:
--------------------------------
Authorized Signatory
4
<PAGE> 37
[REVERSE OF GLOBAL SUBORDINATED FLOATING RATE NOTE]
CENTEX CORPORATION
SUBORDINATED FLOATING RATE MEDIUM-TERM NOTE, SERIES A
This Global Subordinated Note is one of, and a global security which
represents Subordinated Notes which are part of, a duly authorized issue of
Subordinated Debt Securities of the Company (herein called the "Subordinated
Notes"), issued and to be issued in one or more Series under an Indenture dated
as of March 12, 1987 (herein, together with all indentures supplemental thereto,
called the "Subordinated Indenture") between the Company and Chase Bank of
Texas, National Association, as Trustee (formerly, Texas Commerce Bank National
Association) (herein called the "Trustee," which term includes any successor
Trustee under the Subordinated Indenture), to which Subordinated Indenture and
all indentures supplemental thereto (including the Indenture Supplement dated as
of November 1, 1998 which authorizes the Subordinated 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 Subordinated
Noteholders, and of the terms upon which the Subordinated Notes are, and are to
be, authenticated and delivered. All terms used in this Subordinated Note which
are defined in the Subordinated Indenture or in any indenture supplemental
thereto but are not defined in this Subordinated Note shall have the meanings
assigned to them in the Subordinated Indenture or in any indenture supplemental
thereto.
Each Subordinated Note shall be dated the date of its authentication by
the Trustee. Each Subordinated Note shall also bear an Original Issue Date or
Dates which with respect to this Global Subordinated Note (or any portion
thereof) shall mean the date or dates of the original issue of the Subordinated
Notes represented hereby as specified on the face hereof, and such Original
Issue Date or Dates shall remain the same for all Subordinated Notes
subsequently issued upon transfer, exchange or substitution of such original
Subordinated Note (or such subsequently issued Subordinated Notes) regardless of
their dates of authentication. The Subordinated 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 Subordinated Indenture.
The indebtedness evidenced by the Subordinated Notes is, to the extent
and in the manner provided in the Subordinated Indenture, subordinated and
subject in right of payment to the prior payment in full of all Senior
Indebtedness of the Company. As provided in the Subordinated Indenture, each
holder of this Subordinated Note, by his acceptance hereof, agrees to and shall
be bound by all the provisions of the Subordinated Indenture relating to such
subordination and authorizes the Trustee to take such action in his behalf as
may be necessary or appropriate to effectuate the subordination as provided in
the Subordinated Indenture and appoints the Trustee his attorney-in-fact for any
and all such purposes.
Interest on this Subordinated 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 Subordinated 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 Subordinated 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
Subordinated Note. Upon the request of any Holder of this Subordinated 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 Subordinated 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
Subordinated Note is an Amortizing Note, payments with respect to this
Subordinated Note will be applied first to interest due and payable hereon and
then to the reduction of the unpaid principal amount hereof. If this
Subordinated Note is an Amortizing Note, a table setting forth
5
<PAGE> 38
the schedule of dates and amounts of payments of principal of and interest on
this Subordinated Note or the formula for the amortization of principal and/or
interest is set forth in an annex attached to this Subordinated Note.
All percentages resulting from any calculation with respect to this
Subordinated 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
Subordinated 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 Maturity for this Subordinated 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 Subordinated 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 Subordinated 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 Subordinated
Note will be made on the immediately preceding Business Day.
This Subordinated 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 Subordinated 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 Subordinated Note, plus accrued and
unpaid interest to but excluding the date of redemption, but payments due with
respect to this Subordinated Note prior to the date of redemption will be
payable to the Holder of this Subordinated Note of record at the close of
business on the relevant Record Date specified on the face hereof, all as
provided in the Subordinated 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 Subordinated Note, in accordance with the provisions of the Subordinated
Indenture. In the event of redemption of this Subordinated Note in part only,
this Subordinated Note will be canceled and a new Subordinated Note or
Subordinated Notes representing the unredeemed portion hereof will be issued in
the name of the Holder hereof. This Subordinated Note is not subject to a
sinking fund unless otherwise specified in an annex attached hereto.
If so specified on the face of this Subordinated Note, (i) this
Subordinated 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 Subordinated 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 Subordinated Indenture. The
Subordinated 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 Subordinated Notes then outstanding. An Event of Default with
respect to the Subordinated Debt Security of any other Series issued under the
Subordinated 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 Subordinated Notes.
The Subordinated 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 Subordinated Notes at the time outstanding,
evidenced as in the Subordinated Indenture provided, to execute supplemental
indentures adding any provisions to or changing in any manner or eliminating any
of the provisions of the Subordinated Indenture or of any supplemental indenture
or modifying in any manner the rights of the Holders of the Subordinated Notes;
PROVIDED, HOWEVER, that no such supplemental indenture shall (i) extend the
fixed maturity of any Subordinated 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 Subordinated Note so affected, or (ii)
6
<PAGE> 39
reduce the aforesaid percentage of Subordinated Notes, the consent of the
Holders of which is required for any such supplemental indenture, without the
consent of the Holders of all Subordinated Notes then outstanding. It is also
provided in the Subordinated Indenture that the Holders of a majority in
aggregate principal amount of the Subordinated Notes at the time outstanding may
on behalf of the Holders of all the Subordinated Notes waive any past default
under the Subordinated Indenture and its consequences, except a default in the
payment of the principal of or premium, if any, or interest on any of the
Subordinated Notes. Any such consent or waiver by the Holder of this Global
Subordinated Note (unless revoked as provided in the Subordinated Indenture)
shall be conclusive and binding upon such Holder and upon all future Holders and
owners of this Global Subordinated Note and of any Subordinated Note issued in
exchange or substitution herefor, whether or not any notation of such consent or
waiver is made upon this Global Subordinated Note.
As set forth in, and subject to, the provisions of the Subordinated
Indenture, no Holder of any Subordinated Notes will have any right to institute
any proceeding with respect to the Subordinated Indenture or for any remedy
thereunder, unless such Holder shall have previously given to the Trustee
written notice of default in respect of the Subordinated Notes and of the
continuance thereof, and unless the Holders of not less than 25 percent in
aggregate principal amount of the Subordinated 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 Subordinated Note on or after the respective due dates expressed herein.
THIS SUBORDINATED NOTE IS A GLOBAL SUBORDINATED 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 SUBORDINATED 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 Subordinated Note
notifies the Company that it is unwilling or unable to continue as Depositary
for this Global Subordinated Note or if at any time the Depositary for this
Global Subordinated 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 Subordinated Note. If (A) a successor Depositary for this Global
Subordinated 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 Subordinated Notes are represented by this Global Subordinated Note at a
time when an Event of Default with respect to the Subordinated Notes shall have
occurred and be continuing, then in each case the Company's election to issue
this Subordinated Note in global form shall no longer be effective with respect
to this Global Subordinated Note and the Company will execute, and the Trustee,
upon receipt of a Company Order for the authentication and delivery of
individual Subordinated Notes in exchange for this Global Subordinated Note,
shall authenticate and make available for delivery, individual Subordinated
Notes of like tenor and terms in definitive form in an aggregate principal
amount equal to the principal amount of this Global Subordinated Note in
exchange for this Global Subordinated Note.
If agreed by the Company and the Depositary with respect to
Subordinated Notes issued in the form of this Global Subordinated Note, the
Depositary for such Global Subordinated Note shall surrender this Global
Subordinated Note in exchange in whole or in part for individual Subordinated
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 Subordinated Note
or Subordinated 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
Subordinated Note, and (2) to such Depositary a new Global Subordinated Note of
like tenor and terms and in a denomination equal to the difference, if any,
between the principal amount of this Global Subordinated Note and the aggregate
principal amount of Subordinated Notes delivered to Holders thereof.
7
<PAGE> 40
Under certain circumstances specified in the Subordinated Indenture,
the Depositary may be required to surrender any two or more Global Subordinated
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
Subordinated Note in principal amount equal to the aggregate principal amount
of, and with all terms identical to, the Global Subordinated Notes surrendered
to the Trustee, and such new Global Subordinated Note shall indicate each
applicable Original Issue Date and the principal amount applicable to each such
Original Issue Date.
No reference herein to the Subordinated Indenture and no provision of
this Global Subordinated Note or of the Subordinated 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 Subordinated
Note at the times, places and rates, and in the coin or currency, herein
prescribed.
The Subordinated Indenture contains provisions for the satisfaction and
discharge of the Subordinated Indenture upon compliance by the Company with
certain conditions specified therein, which provisions apply to this
Subordinated Note.
The Company, the Trustee, any paying agent and any Subordinated Debt
Security Registrar (as defined in the Subordinated Indenture) for the
Subordinated Notes may deem and treat the Holder hereof as the absolute owner of
this Global Subordinated Note (whether or not this Global Subordinated Note
shall be overdue and notwithstanding any notation of ownership or other writing
hereon made by anyone other than the Company or any such Subordinated 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 Subordinated 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 Subordinated Note, or for any claim
based hereon or otherwise in respect hereof, or based on or in respect of the
Subordinated Indenture, 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> 41
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) and instruct(s) the
Company to repay this Subordinated 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 Subordinated 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 Subordinated Notes to be issued to the Holder for the
portion of this Subordinated Note not being repaid (in the absence of any such
specification, one such Subordinated 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 Subordinated Note in every
particular, without alteration or enlargement or any change whatsoever.
9
<PAGE> 42
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 Subordinated Note and all rights thereunder, hereby irrevocably
constituting and appointing _______________________________________________
attorney to transfer said Subordinated 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.
